Opinion

Brown v. United States

Court
District Court, S.D. New York
Filed
Jun 17, 2024
Cited by
0 cases
Authority
More cited than 31.7%

The opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

--------------------------------------- X

:

COREY BROWN, :

:

Petitioner, : 16cr559-1(DLC)

: 22cv9149(DLC)

-v- :

: OPINION AND

UNITED STATES OF AMERICA, : ORDER

:

Respondent. :

:

--------------------------------------- X

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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