The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
COREY BROWN, :
:
Petitioner, : 16cr559-1(DLC)
: 22cv9149(DLC)
-v- :
: OPINION AND
UNITED STATES OF AMERICA, : ORDER
:
Respondent. :
:
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DENISE COTE, District Judge:
On October 24, 2022, Corey Brown, appearing pro se, filed a
petition to vacate his conviction pursuant to 28 U.S.C. § 2255.
For the following reasons, his petition is denied.
Background
On May 1, 2017, Brown and two co-defendants were indicted
in a six count superseding indictment in connection with their
participation in the gang known as Sex Money Murder (“SMM”).
The charges included counts related to the murder of a member of
the organization, Vincent Davis.
The five counts in which Brown was charged were as follows:
Count 1: Racketeering conspiracy, 18 U.S.C. § 1962(d);
Count 2: Murder in aid of racketeering activity, 18 U.S.C.
§§ 1959(a)(1) and (2);
Count 3: Conspiracy to commit murder in aid of racketeering
activity, 18 U.S.C. § 1959(a)(5);
Count 4: Causing the murder of a person through the use of
a firearm, 18 U.S.C. § 924(j); and
Count 6: Felon in possession of a firearm, 18 U.S.C.
§ 922(g)(1).
Brown proceeded to trial. Relying on testimony from
members of SMM, the Government proved that SMM was a criminal
organization that achieved its objectives through drug dealing
and violence. Brown was a high-ranking member of the gang and
had the power to induct new members and to discipline members
through violence. Brown had a rivalry with Davis, another high-
ranking member. In the summer of 2011, Davis slashed Brown’s
face with a razor. On July 15, 2012, Christopher Lopez –- a
young man whom Brown had recruited into SMM -- shot and killed
Davis as Davis left a cookout. Lopez testified at trial that
Brown had told him that Davis had slashed him and that he was
putting Davis “on the plate,” i.e., he wanted Davis killed.
On the night of the shooing, Lopez learned that Davis was
at a cookout. He spoke briefly on the telephone with Brown,
told Brown that he had just seen Davis at a cookout, and asked
if Brown still wanted him “to take care of that.” Brown
authorized Lopez to kill Davis. Lopez retrieved a gun, went to
the street outside the cookout, and shot Davis as he emerged.
On June 21, 2017, the jury found the defendant guilty on all
five counts.
On October 6, 2017, Brown was sentenced principally to life
imprisonment plus 60 months. Represented by counsel, Brown
appealed his conviction on October 13, 2017. He asserted in his
appeal that there was insufficient evidence that he knew that a
gun would be used to kill Davis; that the Court erred in
allowing the Government to introduce evidence of uncharged acts
involving his drug sales, assaults, and a shooting; and that the
Court ought to have suppressed evidence obtained during the
search of his home.
On May 1, 2019, Brown filed a supplemental pro se
memorandum in support of his appeal. He further challenged his
conviction and sentence on the grounds that there was
insufficient evidence to prove that he was involved with SMM’s
distribution of crack, cocaine, or heroin, or that he benefitted
from these sales; that the trial evidence and jury charges
constructively amended the indictment as to whether he had
agreed to engage in distribution of narcotics as part of the
RICO conspiracy; and that there was insufficient evidence that
he agreed to the murder of Vincent Davis. The Government filed
a supplemental memorandum on October 31, 2019 in response to
Brown’s pro se memorandum.
On June 11, 2021, the Court of Appeals affirmed Brown’s
conviction. United States v. Canada, 858 F.App’x 436 (2d Cir.
2021). The defendant petitioned for rehearing en banc, which
was denied, and the mandate issued on October 6, 2021. Brown
did not petition for certiorari to the Supreme Court of the
United States.
Brown filed a motion pursuant to 28 U.S.C. § 2255 on
October 24, 2022. The motion raised several grounds for relief
and stated that the arguments would be further explained in a
memorandum of law that would follow at a later date. After
several extensions, Brown filed the memorandum of law on
November 21, 2023. The petition became fully submitted on April
15, 2024.
Discussion
Under 28 U.S.C. § 2255, a movant may petition the court to
vacate his conviction if “the sentence was imposed in violation
of the Constitution or laws of the United States” or the
sentence is “otherwise subject to collateral attack.” Stone v.
United States, 37 F.4th 825, 828 (2d Cir 2022) (citing 28 U.S.C.
§ 2255). Pro se litigants are “entitled to a liberal
construction of their pleadings, which should be read to raise
the strongest arguments that they suggest.” Green v. United
States, 260 F.3d 78, 83 (2d Cir. 2001) (citation omitted). Pro
se habeas petitioners, however, must still prove the
unconstitutionality of their sentences under § 2255 by a
preponderance of the evidence. See Triana v. United States, 205
F.3d 36, 40 (2d Cir. 2000).
Brown brings two challenges to his conviction. He first
argues that the jury was improperly instructed on the term
racketeering. He next argues that there was insufficient
evidence to support his conviction. Neither argument has merit.
I. Jury Charge
Brown argues that his conviction should be vacated because
the Court improperly instructed the jury on the term
“racketeering.” The instruction on the term racketeering was as
follows:
The use of the word racketeering is purely technical.
You should ignore whatever meaning the term may have
for you in every day English. All that matters is
whether the Government has proven beyond a reasonable
doubt each of the elements of the crime.
Brown contends that Congress intended the racketeering
statutes to apply to serious criminal conduct and the failure to
give the jury a definition of the word racketeering to reflect
that meaning prejudiced him. He argues that the charge allowed
the jury to convict him without evidence that he had engaged in
significant criminal activity.
Brown’s challenge to the jury charge is procedurally
defaulted. Brown did not raise this objection on direct appeal.
Where a defendant has procedurally defaulted a claim by failing
to raise it on direct appeal, the claim may be raised on a
motion under § 2255 “only if the defendant can first demonstrate
either cause and actual prejudice, or that he is actually
innocent.” Gomez v. United States, 87 F.4th 100, 107 (2d Cir.
2023) (citation omitted). Brown’s petition does not meet any of
these requirements.
First, Brown has not shown cause for his default. In order
to demonstrate cause, a defendant must show “some objective
factor external to the defense, such that the claim was so novel
that its legal basis was not reasonably available to counsel.”
Gupta v. United States, 913 F.3d 81, 84 (2d Cir 2019) (citing
Murray v. Carrier, 477 U.S. 478, 488 (1986); Reed v. Ross, 468
U.S. 1, 16 (1984)). Brown has not shown that this claim was not
reasonably available at the time of his appeal.
Moreover, Brown has not shown prejudice or actual
innocence. A jury instruction is erroneous “if it misleads the
jury as to the correct legal standard or does not adequately
inform the jury on the law.” United States v. Jimenez, 96 F.4th
317, 322 (2d Cir. 2024) (citation omitted). The inquiry to
determine whether an instruction meets the standard of prejudice
necessary to overcome a procedural default is “not merely
whether the instruction is undesirable, erroneous, or even
universally condemned,” but rather “whether the ailing
instruction by itself so infected the entire trial that the
resulting conviction violates due process.” Gupta, 913 F.3d at
85 (citing U.S. v. Frady, 456 U.S. 152, 169 (1982)).
The jury charge correctly informed the jury as to the legal
standards and elements needed to convict Brown on each of the
charges related to racketeering activity, and Brown does not
contend otherwise. Nor has Brown shown that he was actually
innocent of the charges on which he was convicted. Among other
things, he does not dispute that he placed Davis “on the plate”
after Davis slashed him.
Brown also argues that his counsel was ineffective for not
objecting to the instruction on the word racketeering, and for
not raising the purported error on appeal. To prevail on a
claim of ineffective assistance of counsel, Brown must
“demonstrate both that counsel’s performance was deficient and
that the deficient performance prejudiced the defense.” United
States v. Ortiz, 100 F.4th 112, 116 (2d Cir. 2024) (quoting
Strickland v. Washington, 466 U.S. 668, 687 (1984)). As
discussed, however, Brown has not shown either that his
counsel’s performance was deficient or that he was prejudiced as
a result of his attorney’s failure to contest the jury
instruction or raise the issue on appeal.
II. Insufficient Evidence
Brown next argues that there was insufficient evidence that
he was responsible for the murder of Davis or a participant in
the drug dealing that was charged as racketeering activity. A
§ 2255 petitioner “may not relitigate questions which were
raised and considered on direct appeal.” Yick Man Mui v. United
States, 614 F.3d 50, 55 (2d Cir. 2010) (citation omitted).
Brown raised these arguments on direct appeal. The Court of
Appeals, in its summary order, noted that it had “considered all
of Defendant[‘s] arguments” and found them to be “without
merit.” United States v. Canada, 858 F.App’x 436, 444 (2d Cir.
2021). These arguments have already been considered and
rejected and thus they are not properly raised as part of a
§ 2255 petition.
Conclusion
Brown’s October 24, 2022 petition to vacate his conviction
pursuant to 28 U.S.C. § 2255 is denied. The defendant having
not made a substantial showing of a denial of a federal right, a
certificate of appealability shall not be granted. Hoffler v.
Bezio, 726 F.3d 144, 154 (2d Cir. 2013); Tankleff v. Senkowski,
135 F.3d 235, 241 (2d Cir. 1998); Rodriquez v. Scully, 905 F.2d
24, 24 (2d Cir. 1990). Pursuant to 28 U.S.C. § 1915(a)(3), any
appeal from this Opinion and Order would not be taken in good
faith, Coppedge v. United States, 369 U.S. 438, 445 (1962).
Dated: New York, New York
June 17, 2024
Lace Bi
DENISE COTE
United States District Judge