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govinfo:USCOURTS-nyed-2_14-cr-00264-8
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
RAPHAEL OSBORNE,
Petitioner,
MEMORANDUM AND ORDER
-against- 14-CR-0264(JS)
UNITED STATES OF AMERICA,
Respondent.
-------------------------------------X
APPEARANCES
For Petitioner: Raphael Osborne, pro se
#83520-053
U.S.P. Pollock
P.O. Box 2099
Pollock, Louisiana 71467
For Respondent: Michael R. Maffei, Esq.
Christopher Caffarone, Esq.
Nicole Boeckmann, Esq.
United States Attorney’s Office
Eastern District of New York
610 Federal Plaza
Central Islip, New York 11722
SEYBERT, District Judge:
On December 5, 2019, pro se petitioner Raphael Osborne
(“Petitioner”) moved to vacate, set aside, or correct his
conviction and sentence pursuant to 28 U.S.C. § 2255 (hereafter,
the “Petition”). (See ECF No. 603; see also Support Memo, ECF No.
629.) The Government opposes the Petition. (See Opp’n, ECF No.
665.) For the reasons that follow, Petitioner’s Motion is DENIED
in its entirety.
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BACKGROUND
I. The Underlying Crimes1
A. The Gang, Generally
Petitioner was the leader and co-founder of the Rollin’
60s, a set of the Crips street gang based in Roosevelt, New York
(hereafter, the “Gang”). (Tr. 278:18-22.) The Gang engaged in a
variety of criminal activities, including narcotics trafficking,
robbery, and murder. By participating in these crimes, members
achieved higher standing in the Gang, i.e., the more crimes
committed by the member, the higher the member’s rank. Petitioner
was considered a “Big Whale”, which was the highest rank (Tr.
272:15-21, 280:25-281:10) and had final say in the Gang’s local
operations (Tr. 291:8-25, 1026:2-1027:9). Under Petitioner’s
leadership, among other things, members were required to attack
and kill rival gang members on sight (the “on sight rule”). For
example, in accordance with the “on sight rule”, in 2006 and 2008,
Gang members shot and killed Bloods gang members solely because of
their gang affiliation. (Tr. 485:1-487:7, 488:5-489:3, 495:25-
497:6, 1074:5-19, 1069:7-25.) Additionally, Gang members were to
1 The Court presumes familiarity with the facts underlying this
case, but provides the following summary for the reader’s
convenience, with the facts being drawn from the Superseding
Indictment (ECF No. 226), and Petitioner’s criminal trial before
this Court held on March 8, 2016 through April 11, 2016. See also
generally Hernandez v. United States, No. 14-CR-0264, 2021 WL
3426110, at *1-2 (E.D.N.Y. Aug. 5, 2021).
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remain loyal to the Gang, which included refusing to cooperate
with law enforcement. (Tr. 285:23-286:6, 287:8-22, 483:11-23,
1017:17-25, 1030:13-1031:22.) Infractions of the Gang’s rules
resulted in discipline, including the punishment of death for
cooperating with law enforcement. (Tr. 288:10-19.)
B. Various Criminal Activities by the Gang
In Fall 2010, Petitioner and Aaron Halyard (“Hayland”),
along with other Gang members, committed robberies of two drug
dealers. The first robbery was of a marijuana dealer known as
“Fish” (hereafter, the “Fish Robbery”). (Tr. 455:2-456:23.) The
day of the Fish Robbery, Petitioner, Halyard, and another Gang
member drove to meet Fish; Halyard entered Fish’s vehicle, took
the marijuana, then displayed a firearm. (Tr. 459:13-460:4.)
Petitioner then pulled Fish out of his car and struck him with the
butt of a gun. (Tr. 460:5-19.)
A second robbery occurred in the “Trackside”
neighborhood of Hempstead, New York (hereafter, the “Trackside
Robbery”). On the day of that Robbery, Petitioner and Halyard,
along with two other Gang members, drove to the “Trackside”
neighborhood with firearms. (Tr. 449:12-22.) Armed with guns,
Halyard and another Gang member robbed a drug dealer of five grams
of cocaine, between fifteen and twenty grams of crack cocaine, and
$1,500 in cash. (Tr. 450:18-453:10.)
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In Spring 2012, Gang member Maurice Gardner (“Gardner”)
began operating as a confidential informant for the FBI during its
investigation into the Gang’s activities. (Tr. 171:17-172:10.)
In that regard, Gardner had participated in five controlled
purchases of firearms from Gang members. (Tr. 173:4-174:2, 181:25-
184:15, 187:4-189:22.) Further, a Special Agent, David
Biddiscombe (“Biddiscombe”), attempted to conduct a controlled
purchase of a firearm from Petitioner, that did not occur when
Petitioner became suspicious that Gardener was working as an
informant. (Tr. 191:21-193:23, 583:14-584:19.) Later, Petitioner
learned his suspicion regarding Gardner was correct; therefore, he
conspired with fellow Gang member Derick Hernandez (“Hernandez”)
to murder Gardner. (Tr. 590:15-592:8.) Hernandez recruited Denzel
Smith (“Smith”), who was interested in joining the Gang, to commit
the murder. (Tr. 2009:17-2011:22 2014:3-18, 2038:6-2039:13.)
Hernandez supplied Smith with a firearm to carry out the hit.
Gardner survived the October 13, 2012 murder attempt by Smith, but
was paralyzed from the waist down. (Tr. 1199:1-9.) Garner
subsequently wrongfully identified Petitioner as the shooter and
has maintained that mistaken belief. (Tr. 2440:19-2442:24.)
On January 30, 2013, Petitioner and fellow Gang members
attempted to murder Bloods gang member Johnny Green (“Green”) by
firing multiple gunshots into a passing vehicle in which Green was
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a passenger, striking Green in the stomach. (Tr. 924:11-925:20.)
Green survived Petitioner’s murder attempt. (Tr. 2302:10-23.)
II. Petitioner’s Prosecution
Following his April 17, 2013 arrest for his
participation in criminal acts that arose from Gang activity,
Petitioner and his co-defendants, all Gang members, were indicted
under a Superseding Indictment, charging counts of various
racketeering and VICAR
2 offenses, weapons possession charges, and
narcotics and firearm trafficking charges. (See Superseding
Indictment, ECF No. 226.) A jury trial commenced before this Court
on March 8, 2016.
The Government’s case included: testimony from (1) four
cooperators who were former members of the Gang, including Halyard
and Smith, (2) associates of the Gang who were also involved in
the Gang’s criminal activities, (3) members of federal and local
law enforcement, and (4) expert witnesses; audio recordings of
phone conversations; copies of text messages; social media
postings and photographs; and audio recordings of gunfire.
After the Government rested, defense counsel informed
the Court that he was interested in calling co-conspirator
Hernandez and two Nassau County Police Department Detectives,
George Colby (“Colby”) and John Mitchell (“Mitchell” and, together
2 “VICAR” is an acronym for “Violent Crimes in Aid of Racketeering”.
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with Colby, “the Detectives”). (Tr. 2554:23-2560:23.) The
Detectives were involved in the Gardner attempted murder
investigation. Petitioner, speaking directly with the Court,
stated he sought to call Mitchell to contest and re-litigate a
wiretap affidavit. (Tr. 2561:5-22, 2565:1-2566:22.) The Court
rejected Petitioner’s application to call the Detectives.
Ultimately, defense counsel did not call Hernandez as a witness
(Tr. 2568:18-2569:2); nor did Petitioner testify.
On April 11, 2016, the jury convicted Petitioner of all
twenty-one counts of the Superseding Indictment:
Count One: racketeering in violation of 18 U.S.C. §
1962(c);
Count Two: racketeering conspiracy in violation of 18
U.S.C. § 1962(d);
Count Three: Hob bs Act robbery conspiracy in violation
of 18 U.S.C. § 1951(a);
Count Four: Hobbs Act robbery in violation of 18 U.S.C.
§ 1951(a);
Count Five: brandishing firearms during a crim
e of
violence, Hobbs Act conspiracy and robbery, in violation
of 18 U.S.C. § 924(c)(1)(C)(i);
Count Six: Hobbs Act robbery conspiracy in violation of
18 U.S.C. § 1951(a);
Count Seven: Hobb s Act robbery in violation of 18 U.S.C.
§ 1951(a);
Count Eight: br andishing a firearm during a crime of
violence, Hobbs Act conspiracy and robbery, in violation
of 18 U.S.C. § 924(c)(1)(C)(i);
Count Nine: murder conspiracy in violation of 18 U.S.C.
§ 1959(a)(5);
Count Ten: attempted murder in violation of 18 U.S.C. §
1959(a)(5);
Count Eleven: assault with a dangerous weapon in
violation of 18 U.S.C. § 1959(a)(3);
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Count Twelve: witness retaliation in violation of 18
U.S.C. § 1513(a)(1)(B);
Count Thirteen: witness retaliation conspiracy in
violation of 18 U.S.C. § § 1513(f), 1513(a)(1)(B),
1513(a)(2)(B);
Count Fourteen: discharging a firearm during a crime of
violence in violation of 18 U.S.C. § 924(c)(1)(C)(i);
Count Fifteen: a
ttempted murder of a rival gang member
in violation of 18 U.S.C. § 1959(a)(5);
Count Sixteen: assault of a
rival gang member in
violation of 18 U.S.C. § 1959(a)(3);
Count Seventeen: discharging a fir
earm during a crime of
violence in violation of 18 U.S.C. § 924(c)(1)(C)(i);
Count Eighteen: conspiracy to distribute controlled
substances in violation of 21 U.S.C. §§ 846,
841(b)(1)(A)(iii);
Count Nineteen: use of fire
arms during a drug
trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A)(i);
Count Twenty: conspiracy to murder and assault
rival
gang members with dangerous weapons in violation of 18
U.S.C. §§ 1959(a)(5), 1959(a)(6); and
Count Twenty-One: illegal possession of ammunition in
violation of 18 U.S.C. §§ 922(g), 924(a)(2).
(See Verdict Sheet, ECF No. 266.) On October 13, 2016, this Court
sentenced Petitioner to consecutive terms of life imprisonment on
Counts One, Two, and Eighteen; consecutive terms of 300 months’
imprisonment on Counts Five, Eight, Fourteen, and Seventeen; a
consecutive term of 60 months’ imprisonment on Count Nineteen;
concurrent terms of 240 months’ imprisonment on Counts Three, Four,
Six, Seven, Ten, Eleven, and Sixteen; concurrent terms of 120
months’ imprisonment on Counts Nine, Fifteen, Twenty, and Twenty-
One; and concurrent terms of 360 months’ imprisonment on Counts
Twelve and Thirteen; the aggregate term of imprisonment was three
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consecutive life terms plus a mandatory 135 years’ imprisonment.
(See Min. Entry, ECF No. 413; Sent’g J., ECF No. 414.)
III. Post-Conviction Proceedings
On January 19, 2017, Petitioner appealed his conviction
and sentence to the Second Circuit Court of Appeals, challenging:
(1) the sufficiency of evidence supporting his conviction; (2)
denial of his Batson challenge; (3) the applicability of Pinkerton
liability; (4) the denial of calling the Detectives as defense
witnesses; (5) admission of alleged hearsay evidence; (6)
admission of crime scene and autopsy photographs; and (7) his
sentence being substantially unreasonable. The Second Circuit
rejected Petitioner’s challenges and affirmed the Judgment of this
Court. See United States v. Osborne, 739 F. App’x 11 (2018). It
held: there was sufficient evidence to support Petitioner’s
racketeering convictions and this Court did not err by denying
Petitioner a pre-trial Franks hearing with respect to the wiretap
application, see id. at 15-17; this Court acted within its
discretion in denying Petitioner’s application to call the
Detectives as defense witnesses, see id. at 17; and, Petitioner’s
other appellate claims were without merit, see id. at 15-18.
On December 5, 2019, Petitioner filed the instant
Petition raising four claims: (1) there is “newly discovered
evidence” supporting the vacatur of his conviction; (2) his
convictions pursuant to Section 924(c) must be dismissed pursuant
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to United States v. Davis, 139 S. Ct. 2319 (2019); (3) ineffective
assistance of defense counsel; and (4) ineffective assistance of
appellate counsel. (See Petition.) As part of his ineffective
assistance of defense counsel claim, Petitioner alleges the
following failures by counsel: (a) failure to raise a Brady
violation; (b) failure to expose perjury by Colby; (c) failure to
expose perjury by Biddiscombe; and (d) failure to call Mitchell as
a defense witness. (See id. at ECF 4-14; see also Support Memo.)
The Government opposed the Petition on July 21, 2020, to which
Petitioner replied on February 22, 2021. 3 (See Reply, ECF No.
687.)
DISCUSSION
I. The § 2255 Standard
Section § 2255(a) of Title 28 of the United States Code
provides:
[a] prisoner in custody under sentence of a
court established by Act of Congress claiming
the right to be released upon the ground that
3 In his Reply, Petitioner devotes five pages renewing arguments
made on the record, as well as in multiple filings, asserting that
the Court lacked subject matter jurisdiction and venue over his
criminal prosecution. (See Reply at ECF pp.2-6; see also Sept.
10, 2014 Aff., ECF No. 53; Dec. 21, 2016 Aff., ECF No. 400, at ECF
pp.2-6.) This Court has rejected that argument on numerous
occasions and has explained its reasoning for its rejection in
detail at Petitioner’s sentencing. To the extent Petitioner
presses this same argument but under a theory of “sovereign
citizenship”, that theory has been uniformly rejected by courts in
this Circuit and others. See Bey v. New York, No. 11-CV-3296,
2012 WL 4370272, at *6 (E.D.N.Y. Sept. 21, 2012) (collecting
cases). Therefore, the Court declines to consider it here.
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the sentence was imposed in violation of the
Constitution or laws of the United States, or
that the court was without jurisdiction to
impose such sentence, or that the sentence was
in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may
move the court which imposed the sentence to
vacate, set aside, or correct the sentence.
28 U.S.C. § 2255(a). To obtain relief under § 2255, a petitioner
must demonstrate “a constitutional error, a lack of jurisdiction
in the sentencing court, or an error of law or fact that
constitutes a fundamental defect which inherently results in a
complete miscarriage of justice.” Cuoco v. United States, 208
F.3d 27, 30 (2d Cir. 2000) (internal quotation marks and citations
omitted). A petitioner must also show that the error had
“substantial and injurious effect” that caused “actual prejudice.”
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation
marks and citations omitted); Underwood v. United States, 166 F.3d
84, 87 (2d Cir. 1999) (applying Brecht to a § 2255 motion).
To “obtain collateral relief a prisoner must clear a
significantly higher hurdle than would exist on direct appeal.”
United States v. Frady, 456 U.S. 152-53, 166 (1982). A court must
exercise its discretion sparingly because § 2255 applications “are
in tension with society’s strong interest in the finality of
criminal convictions.” Elize v. United States, No. 02-CV-1530,
2008 WL 4425286, at *5 (E.D.N.Y. Sept. 30, 2008) (internal
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quotation marks and citation omitted); see also Brecht, 507 U.S.
at 633–34.
II. An alysis of Petitioner’s Habeas Claims
A. The Newly Discovered Evidence Claim
Petitioner asserts that newly discovered evidence, in
the form of an affidavit by Kurtis “Knoxx” Phillip (the “Phillip
Affidavit”), supports his claim for habeas relief on the grounds
that Smith committed perjury. (Petition at 5; Phillip Aff., ECF
No. 629, at ECF pp.19-20.) The Phillip Affidavit purports to
demonstrate that Smith’s trial testimony alleging Petitioner’s
involvement in the Gardner shooting was false, and that the
Government should have been aware of Smith’s false testimony.
4 For
the reasons below, Petitioner’s claim is meritless.
To the extent that Petitioner proffers the Phillip
Affidavit supports a claim for prosecutorial misconduct based on
false testimony, Petitioner must establish: (a) that there was
false testimony; (b) that the prosecution knew or should have known
that the testimony was false; and (c) that there was “any
reasonable likelihood that the perjured testimony could have
4 Petitioner’s instant claim is also related to his
ineffectiveness claims alleging that the Government withheld
purported Brady material, namely various cell phone records which
he alleges would have shown that he was not involved in Gardner’s
attempted murder. The Phillip Affidavit professes to demonstrate
what those records would have shown, which, without more, is
tantamount to speculative and conclusory assertions.
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affected the judgement of the jury.” United States v. Helmsley,
985 F. 2d 1202, 1205-06 (2d Cir. 1993) (quoting United States v.
Agurs, 427 U.S. 97, 103 (1976)). The threshold question is whether
the witness in fact committed perjury. See United States v.
Monteleone, 257 F. 3d 210, 219 (2d Cir. 2001). Petitioner has the
burden of demonstrating by a preponderance of the evidence that
the witness did commit perjury. See Boyle v. United States, No.
10-CV-2639, 2013 WL 6684995, at *2 (E.D.N.Y. Dec. 18, 2013).
Here, Petitioner is unable to meet his burden of
establishing Smith committed perjury. As an initial matter, the
Phillip Affidavit repeats Petitioner’s conclusory assertions
regarding exculpatory phone records. Phillip alleges that the
Government ignored “cell phone tower records” that would have
demonstrated that the meeting discussing Gardner’s shooting never
actually occurred. (Phillip Aff. at ¶ 1.) However, the Government
is not, and never has been, in possession of any such phone
records. (See Opp’n at 12-13.) Nor has Petitioner provided copies
of the phone records to support his claim and defeat the
Government’s representation.
The remainder of the Phillip Affidavit does not
demonstrate that any portion of Smith’s trial testimony was false.
To the extent Phillip contends that the Government wiretapped his
phone, and, therefore, would know that he was not in communication
with Petitioner before Gardner’s shooting that is irrelevant. (See
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Phillip Aff. at ¶ 2.) While law enforcement obtained warrants to
wiretap Petitioner’s and Hernandez’s cell phones, those
wiretapping did not commence until after the Gardner shooting.
(See Opp’n at 17.) Moreover, Phillip affirms that Gardner stated
Phillip did not shoot him, which is not inconsistent with Smith’s
testimony that Smith was the shooter. (Cf. Phillip Aff. at ¶ 3,
with Tr. 2058-2071.) Additionally, Phillip declares that he and
Petitioner were not present at the shooting, and they were not
identified by any eyewitness. (Phillip Aff. at ¶ 4.) Again,
these statements do not contradict Smith’s testimony.
As such, the Phillip Affidavit does not provide any
actual “newly discovered evidence” and fails the threshold inquiry
that any portion of Smith’s testimony was false. Accordingly,
Petitioner’s new-evidence claim is without merit.
B. The Davis Claim
Petitioner claims that he is entitled to habeas relief
on the grounds that each of his convictions under 18 U.S.C. §
924(c) -- Counts Five, Eight, Fourteen, Seventeen, and Nineteen -
- should be vacated pursuant to United States v. Davis, 139 S. Ct.
2319 (2019). (Petition at 9; Support Memo at ECF p.11.) For the
following reasons, Petitioner’s claim is denied.
In Johnson
v. United States, the Supreme Court held that
the Armed Career Criminal Act’s residual clause, that defined a
“violent felony,” was unconstitutionally vague and violated due
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process because it left “grave uncertainty about how to estimate
the risk posed by a crime.” 576 U.S. 591, at 593-97 (2015).
Following Johnson, litigants sought to apply its holding to other
statutes including, as relevant here, Section 924(c). See, e.g.,
Davis, 139 S. Ct at 2325. A defendant violates Section 924(c) if
he used or carried a firearm during and in relation to, or
possessed a firearm in furtherance of, a “crime of violence” or
“drug trafficking crime.” 18 U.S.C. § 924(c)(1)(A). Section
924(c)(3) defines a crime of violence as “an offense that is a
“felony” and:
(A) has as an element the use, attempted use,
or threatened use of physical force against
the person or property of another, or
(B) that by its nature, involves a substantial
risk that physical force against the person or
property of another may be used in the course
of committing the offense.
18 U.S.C. § 924(c)(3)(A) & (B). Subsection (c)(3)(A) is often
referred to as the elements or force clause (hereinafter, the
“Elements Clause”), with subsection (c)(3)(B) often called the
residual or risk-of-force clause (hereinafter, the “Residual
Clause”). See Davis, 139 S. Ct. at 2324.
In light of its recent holdings in Johnson and in
Sessions v. Dimaya, 138 S. Ct. 1204 (2018), in Davis, the Supreme
Court invalidated the Residual Clause of Section 924(c) as
unconstitutionally vague. See Davis, 139 S. Ct. at 2325-27. Thus,
a conviction under Section 924(c) survives only if a predicate
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offense is a “crime of violence” under the Elements Clause. See,
e.g., Rosario Figueroa v. United States, No. 16-CV-4469, 2020 WL
2192536, at *2 (S.D.N.Y. May 6, 2020); Vilar v. United States, No.
16-CV-5283, 2020 WL 85505, at *1 (S.D.N.Y. Jan. 3, 2020).
As reiterated by the Davis Co urt, courts apply a
categorical approach to determine whether an offense is a crime of
violence under the Elements Clause. See United States v. Hill,
890 F.3d 51, 55 (2d Cir. 2018) (citing Taylor v. United States,
495 U.S. 575, 600 (1990)). Under that approach, an offense is a
crime of violence where the “minimum conduct necessary for a
conviction of the predicate offense” involves violence. See id.
at 55–56; see also United States v. Culbert, 453 F. Supp. 3d 595,
597 (E.D.N.Y. 2020). Courts “look only to the statutory
definitions--i.e., the elements--of the offense,” to resolve
whether “such conduct amounts to a crime of violence under §
924(c)(3)(A).” Hill, 890 F.3d at 55–56 (internal quotation marks
and alterations omitted).
The categorical approach saves courts from determining
the level of vio
lence at issue on a case-by-case basis or from
making the general inquiry into “the kind of conduct that the crime
involves in the ordinary case.” Davis, 139 S. Ct. at 2326 (citing
Dimaya, 138 S. Ct. at 1216). A predicate crime will not support
a conviction under the Elements Clause if there is “a realistic
probability, not a theoretical possibility, that the statute at
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issue could be applied to conduct that does not” constitute a crime
of violence. Hill, 890 F.3d at 56 (internal quotation marks and
citation omitted).
1. As to Counts Five and Eight
Petitioner contends that Hobbs Act robbery conspiracy
cannot serve as the predicate offense for his Section 924(c)
convictions for Count Five and Count Eight. While that is true,
it is not conclusive here because Petitioner’s convictions with
respect to the Fish Robbery and the Trackside Robbery remain
“crimes of violence”; hence, those robbery convictions remain
valid predicates for his convictions on Counts Five and Eight.
Following his trial, the jury convicted Petitioner not
only of Hobbs Acts robbery conspiracy for his participation in the
Fish and Trackside Robberies, i.e., Counts Three and Six,
respectively, but also convicted him of substantive Hobbs Act
robbery for both those Robberies, i.e., Counts Four and Seven,
respectively. The Second Circuit has held “that Hobbs Act robbery
‘has as an element the use, attempted use, or threatened use of
physical force against the person or property of another.’” Hill,
890 F.3d at 60 (quoting 18 U.S.C. § 924(c)(3)(A)). Although Hill
predates Davis, the Second Circuit has consistently reaffirmed
Hill post-Davis. See United State v. Walker, 789 F. App’x 241,
245 (2d Cir. 2019) (holding that “[o]ur prior holding in United
States v. Hill, that substantive Hobbs Act robbery is a crime of
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violence under the elements clause of § 924(c)(3)(A), is unaffected
by Davis, Stokeling, and Barrett and remains binding on us in this
case” (internal citations omitted)); see also United States v.
Biba, 788 F. App’x 70, 72 (2d Cir. 2019). Moreover, where, as
here, “a jury is instructed on both valid and invalid predicate
offenses, the conviction stands if the verdict undoubtedly rests
on a valid . . . predicate.” United States v. Sessa, No. 20-CV-
1957, 2020 WL 3451657. at *5 (E.D.N.Y. Jun. 24, 2020) (internal
quotation marks omitted); see also United States v. Vasquez, 672
F. App’x 56, 61 (2d Cir. 2016) (holding that where a defendant’s
Section 924(c) conviction was predicated on a crime that is not a
categorial crime of violence, the error was harmless because “there
was no possibility that the jury’s § 924(c) verdict rested only on
[a potentially unlawful] predicate”); United States v. Walker, 789
F. App’x 241, 244–45 (2d Cir. 2019), cert. denied, 140 S. Ct. 979
(2020).
Because Petitioner was convi cted of substantive Hobbs
Act robbery for both the Fish and Trackside Robberies, Petitioner’s
corresponding Section 924(c) convictions on Counts Five and Eight
are not affected by Davis. Accordingly, Petitioner’s claim for
habeas relief on that basis fails.
2. As to Counts Fourteen and Seventeen
Petitioner claims that conspiracy to commit murder
cannot serve as the predicate crime of violence for his Section
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924(c) convictions under Counts Fourteen and Seventeen because,
pursuant to Davis, conspiracy to commit murder no longer qualifies
as a “crime of violence”. (Support Memo at ECF p.11.) This is
so. See United States v. Heyward, 3 F.4th 75, 78 (2d Cir. 2021)
(holding conspiracy to commit murder does not qualify as a
predicate crime supporting a Section 924(c) conviction); see also
United States v. Erbo, No. 97 -CR-1105, 2020 WL 6802946, *2
(S.D.N.Y. Nov. 19, 2020) (“Following Davis, a mere conspiracy to
commit a crime of violence will ordinarily fail to qualify under
Section 924(c)’s force[, i.e., elements,] clause.” (citing United
States v. Barrett, 937 F.3d 126, 127 (2d Cir. 2019), and Ianelli
v. United States, 420 U.S. 770, 777 (1975))). However, another
offense may serve as a predicate if there is “legally sufficient
proof that the crime was, in fact, committed.” Johnson v. United
States, 779 F.3d 125, 129 (2d Cir. 2015) (“Every circuit court to
have considered the issue has concluded that § 924(c) does not
require the defendant to be convicted of (or even charged with)
the predicate crime, so long as there is legally sufficient proof
that the predicate crime was, in fact, committed.” (collecting
cases)); United States v. Rivera, 679 F. App’x 51, 55 (2d Cir.
2017) (summary order) (denying a petitioner’s Johnson claim where
the defendant’s plea allocution provided sufficient proof for a
predicate offense that was later dismissed at sentencing).
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(a) Regarding Count Fourteen
Conspiracy to commit murder and witness retaliation
conspiracy were not the only predicate crimes for Petitioner’s
Count Fourteen Section 924(c) conviction. There is no dispute
Petitioner was also convicted of attempted murder (Count Ten),
assault with a dangerous weapon (Count Eleven), and witness
retaliation (Count Thirteen) in connection with the assault and
attempted murder of Gardner. Thus, while two of the predicate
offenses for Petitioner’s Count Fourteen Section 924(c) conviction
were conspiracy counts, his three other convictions, i.e., Counts
Ten, Eleven, and Thirteen, are unaffected by Davis and remain valid
predicate offenses for the Count Fourteen conviction. See States
v. Medunjanin, No. 10-CR-0019, 2020 WL 5912323, at *5 (E.D.N.Y.
Oct. 6, 2020); Abrue v. United States, No. 16-CV-5052, 2020 WL
4570338, at *4 (S.D.N.Y. Aug. 7, 2020).
To the extent Petitioner argues that it is not clear
which predicate offense the jury relied upon in convicting him
under Count Fourteen (
see Support Memo at ECF p.11.), that argument
is unavailing because “regardless of what theory of liability [he]
was convicted under, he was convicted of . . . crime[s] of violence
that unquestionably used a firearm.” Sessa, 2020 WL 3451657, at
*6; see also id. at *5 (“A substantive conviction of a categorical
crime of violence involving a firearm is a valid predicate for a
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§ 924(c) conviction, regardless of what theory of liability it
proceeds on.” (citations omitted)).
(b) Regarding Count Seventeen
As an initial matter, Petitioner is mistaken regarding
his conviction on Count Seventeen; he was not charged or convicted
with conspiracy to murder rival gang member Johnny Green. Rather,
the predicate offenses supporting Petitioner’s Count Seventeen
Section 924(c) conviction were the attempted murder of Green in
violation of 18 U.S.C. § 1959(a)(5) (Count Fifteen) and the assault
of Green in violation of 18 U.S.C. § 1959(a)(3) (Count Sixteen)
(see, e.g., Opp’n at 28 n.18), both Counts upon which Petitioner
was convicted. As such, Petitioner’s Count Seventeen conviction
is unaffected by Davis. See Medunjanin, 2020 WL 5912323, at *5
(attempted murder and assault with a deadly weapon are crimes of
violence); Abrue, 2020 WL 4570338, at *4 (attempted murder is a
crime of violence).
In sum, Petitioner’s Section 924(c) convictions under
Counts Fourteen and Seventeen are not implicated by
Davis because
they were predicated upon substantive crimes of violence for which
Petitioner was convicted, which convictions are more than legally
sufficient proof that the crimes were, in fact, committed.
Accordingly, Petitioner’s reliance upon Counts Fourteen and
Seventeen as grounds for granting habeas relief is unavailing.
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3. As to Count Nineteen
Petitioner also contends that his Count Nineteen
conviction for use of firearms during a drug trafficking crime is
also void under Davis. (See Support Memo at ECF p.11.) Not so.
The ruling in Davis does not extend to Section 924(c)’s definition
of “drug trafficking crime.” Section 924(c) states in relevant
part:
For purposes of this subsection, the term
“drug trafficking crime” means any felony
punishable under the Controlled Substances Act
(21 U.S.C. 801 et seq.), the Controlled
Substances Import and Export Act (21 U.S.C.
951 et seq.), or chapter 705 of title 46.
18 U.S.C. § 924(c)(2). Unlike the residual clause in Johnson and
Dimaya, Section 924(c)’s definition of “drug trafficking crime”
lacks a residual clause and is not unconstitutionally vague. See,
e.g., McCoy v. United States, Nos. 02-CR-1372, 16-CV-5226, 2017 WL
1291766, *1-2 (S.D.N.Y. Apr. 7, 2017). Accordingly, Davis does
not apply to Count Nineteen. See, e.g., Matthews v. United States,
No. 16-2212, slip order (D.E. 44), at 1-2 (2d Cir. Feb. 14, 2020)
(holding Johnson and Davis do not affect Section 924(c) convictions
predicated on a drug trafficking crime); Cooper v. United States,
No. 16-1925, slip order (D.E. 40), at 1 (2d Cir. Feb. 20, 2019)
(“Although Petitioner’s Section 924(c) and (j) convictions were
predicated on several crimes of violence, they also were predicated
on drug trafficking crimes . . .,” and, therefore, “[b]ecause
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Petitioner’s drug trafficking crimes were not affected by Johnson
or Dimaya, his convictions under [Section] 924(c) and (j) remain
valid.” (citing Harrington v. United States, 689 F.3d 124, 137 (2d
Cir. 2012))); Fuller v. United States, No. 16-1888, slip order
(D.E. 51), at 1-2 (2d Cir. Feb. 20, 2019) (same); In re Navarro,
931 F.3d 1298, 1302 (11th Cir. 2019) (denying permission to file
successive motion pursuant to 28 U.S.C. § 2255 raising a Davis
challenge to a Section 924(c) conviction where the conviction was
predicated both on a Hobbs Act robbery conspiracy and a narcotics
offense); Francis v. United States, No. 16-CV-5046, 2016 WL
3881000, at *1 (S.D.N.Y. June 30, 2016) (summarily denying Section
2255 petition where defendant was sentenced under Section 924(c)’s
“drug trafficking crime” prong instead of the “crime of violence”
prong). Accordingly, Petitioner’s claim with respect to his Count
Nineteen conviction is without merit.
C. The
Ineffective Assistance of Defense Counsel Claim
For Petitioner to prevail on his ineffective assistance
of counsel claims, he must “(1) demonstrate that his counsel’s
performance ‘fell below an objective standard of reasonableness’
in light of ‘prevailing professional norms,’ and (2)
‘affirmatively prove prejudice’ arising from counsel’s allegedly
deficient representation.” United States v. Cohen, 427 F.3d 164,
167 (2d Cir. 2005) (quoting Strickland v. Washington, 466 U.S.
668, 688, 693 (1984)). When considering counsel’s alleged errors,
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the Court “must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689. If a petitioner is
able to establish an error of constitutional magnitude, he must
next establish that he was prejudiced by counsel’s performance,
meaning that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694.
1. As to the Failure to Allege a Brady Violation Claim
Petitioner claims that he is entitled to habeas relief
because defense counsel was ineffective for fail ing to raise an
argument that the Government committed a Brady violation.
(Petition at 6.) Petitioner alleges that the Government improperly
withheld Smith’s phone records from the day of the Gardner
shooting. (See id.) He contends these records would have shown
that the meeting at which Smith was ordered to shoot Gardner never
transpired; in turn, that would have revealed that Smith testified
falsely regarding his involvement in the shooting and would have
exculpated Petitioner. (See id.) For the following reasons,
Petitioner’s Brady claim is meritless.
To establish a Brady violation, a defendant must
demonstrate: (1) the evidence at issue is favorable to him because
it is either exculpatory or impeaching; (2) the Government
suppressed that evidence; and (3) the defendant was thereby
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prejudiced. See Strickler v. Greene, 527 U.S. 263, 281–82 (1999).
A habeas claim alleging a Brady violation should be denied on the
merits where a petitioner is unable to demonstrate the exculpatory
nature of the evidence at issue. See Jones v. Conway, 442 F. Supp.
2d 113, 128 (S.D.N.Y. 2006). Additionally, “[u]ndisclosed
evidence is material only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.” United States v.
Payne, 63 F.3d 1200, 1209 (2d Cir. 1995) (quoting Bagley, 473 U.S.
at 682)).
Here, Petitioner
is unable to show that the Government
violated its Brady obligation as he merely puts forth conclusory
assertions and speculations about what the purported Smith phone
records would have shown, failing to present actual phone records.
That is not surprising.
The [G]overnment . . . never was[] in
possession of any phone records for Denzel
Smith for the time surrounding the shooting of
Gardner. Indeed, Smith was never able to
provide law enforcement with his cell phone
number from the time of the Gardner shooting.
. . . Smith testified that Derick Hernandez
instructed him to get rid of his phone number
in the days after the shooting, and Smith
complied with this directive.
(Opp’n at 12-13 (footnote omitted).) Hence, as the Government
aptly argues, “Because the [G]overnment did not possess Smith’s
[phone] records, and therefore could not have suppressed said
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records, [Petitioner] fails to establish a Brady violation.” (Id.
at 12.)
In turn, Petitioner cannot demonstrate that defense
counsel was deficient for failing to allege a Brady violation where
there was no basis to do so. Further, Petitioner has not shown
that he was prejudiced by defense counsel’s failure to raise a
Brady challenge because he has not shown the outcome of the trial
would have been different, but for the Brady violation not having
been made.
Accordingly, Petitioner’s
ineffective assistance claim
based on his Brady argument is unavailing.
2. As to the Failure to Cross-Examine Colby Claim
Petitioner contends that defense counsel was ineffective
for failing to effectively cross-examine Colby, thereby allowing
false testimony to go uncorrected. (See Petition at ECF p.13;
Support Memo at ECF p.3.) He alleges that Colby gave false
testimony that Petitioner was the shooter in Gardner’s attempted
murder. (Id. at ECF p.13.) Petitioner’s claim fails as it is
belied by the record, which shows (a) defense counsel questioned
Colby about Petitioner not being the shooter in the Gardner
attempted murder, and (b) Colby testified that Gardner wrongly
identified Petitioner as the shooter. (Tr. 2440:19-2443:2.)
Counsel even informed the Court that his intention and strategy
behind this line of questioning was to establish that Colby was
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biased against Petitioner, a defense theory counsel pursued at
Petitioner’s request. (Tr. 2437:5-2438:5.) As defense counsel
pursued this line of questioning at Petitioner’s behest,
Petitioner is unable to demonstrate counsel’s assistance fell
outside the wide range of reasonable professional assistance.
Accordingly, Petitioner’s ineffective assistance claim on this
basis is denied.
3. As to the Failure to Cross-Examine Biddiscombe Claim
Petitioner further claims that counsel was ineffective
for failing to adequately cross-examine Biddiscombe regarding
controlled purchases of illegal firearms, which failure
purportedly enabled Biddiscombe to commit perjury. (See Petition
at ECF p.13.) Petitioner’s claim fails.
Petitioner contends that Biddiscombe
falsely testified
that Gardner was the first cooperator he worked with and offers
that Biddiscombe actually worked with another cooperator in 2011
regarding a previous controlled firearm sale. (See Petition at
ECF p.13.) He asserts that defense counsel was deficient for
allowing Biddiscombe’s perjury to stand. This claim is also
refuted by the record.
During Biddiscombe’s cross-examination, defense counsel
specifically inquired about working with another cooperator in
2011. (Tr. 206:13-21.) Although Biddiscombe testified not
recalling the details of the controlled firearm sale with the other
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cooperator, he did testify that Petitioner was not present for
that prior controlled firearm sale. (Tr. 206:18-207:10.) Because
defense counsel clearly questioned Biddiscombe regarding the prior
transaction involving the other cooperator, i.e., the very line of
questioning Petitioner alleges counsel failed to make,
Petitioner’s claim is baseless; it certainly does not demonstrate
that defense counsel’s performance in this regard was deficient.
Accordingly, Petitioner’s ineffective assistance claim
cannot be established on this ground.
4. As to the Failure to Call Witnesses Claim
Petitioner asserts that counsel was ineffective for
failing to call Mitchell as a defense witness. He also argues
that counsel failed to raise “the relevant issues why Detective
John Mitchell should be called as a witness.” (Support Memo at
ECF p.4.)
At trial, after the Government rested, defense counsel
informed the Court that he intended to call the Detectives as
defense witnesses, proffering that the subject matter of the
Detectives’ testimonies would include a wiretap application, and
the investigation related to the phone call analysis and cell phone
tower records.
5 (Tr. 2555:3-5, 2557:7-13, 2560:7-13.) Petitioner
5 The Government argued that no such cell phone records or cell
tower information had been admitted into evidence, and whether
there had been any cell phone analysis had not been introduced;
therefore, such questioning would be irrelevant. (Tr. 2557:14-
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also spoke to the Court directly, arguing Mitchell falsified his
wiretap affidavit. (Tr. 2561:6-21.) The Court rejected defense
counsel’s application to call the Detectives having already
granted the wiretap application prior to trial based on probable
cause. (Tr. 2568:18-22.) Petitioner further submits that Mitchell
should have been called as a witness to testify about Gary Mosley
(“Mosley”), who at the time of the trial was a cooperating witness
and who Petitioner contends was the person who ordered the hit on
Gardner. (See Petition at ECF p.14; Opp’n at 15.)
Petitioner raised the crux of this claim on direct
appeal, arguing this Court erred by precluding him from calling
the Detectives as defense witnesses. See Osborne, 739 F. App’x at
12. The Second Circuit rejected this claim, holding this Court
acted within its discretion, i.e., that after thoroughly exploring
Petitioner’s reasons for calling the Detectives, this Court
appropriately found that relitigating the wiretap affidavit was an
impermissible purpose to do so. Id. at 17. Although Petitioner
now raises the same claim, albeit cast as an ineffective assistance
of counsel claim, the “so-called mandate rule bars re-litigation
of issues already decided on direct appeal.” Yick Man Mui v.
United States, 614 F.3d 50, 53 (2010) (citing Burrell v. United
21.) Moreover, as discussed herein, the Government maintains it
never was in possession of any such phone records. (See Opp’n at
12-13.)
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States, 467 U.S. 160, 165 (2d Cir. 2006)) (relying upon the mandate
rule to bar ineffective assistance of counsel claims raised in
habeas petitions where the factual predicates of those claims were
resolved on direct appeal).6
Accordingly, Petitioner’s claim that counsel was
ineffective for failing to call the Detectives Mitchell as a
defense witness is rejected as barred.
D. The Ineffective Assistance of Appellate Counsel Claim
Petitioner contends that appellate counsel was
ineffective for failing to raise on appeal a claim that the
Government committed a Brady violation. Petitioner’s claim fails.
6 In support of his claim, Petitioner also states that defense
counsel promised him that he could not be convicted of ordering
the hit on Gardner because Mosley was charged with that conduct,
and further promised that phone call recordings of Mosley ordering
the hits would be played at trial. (Support Memo at ECF p.15.)
Defense counsel, John F. Carman, Esq. (“Carman”), declares he never
promised Petitioner that he could not be convicted of ordering the
hit on Gardner. (Carman Decl., ECF No. 665-1, ¶4.) Carman avers
that he “regularly counseled [Petitioner] on the risks of
proceeding to trial and the possibility that he could be convicted
of any or all of the crimes charged in the indictment against him.”
(Id.) To the extent Petitioner argues that counsel was ineffective
based on this claimed promise, the Court rejects his claim. See
Chung Yu-Holguin v. United States, No. 13-CR-0259, 2020 WL 804945,
at *13-14 (E.D.N.Y. Feb. 18, 2020) (“Conclusory assertions like
[Petitioner’s], without detail or supporting documentation, have
been found inadequate to support a claim of ineffective assistance
in the face of a credible and contradictory affidavit by counsel”
(collecting cases)), certificate of appealability denied sub nom.
Yu-Holguin v. United States, No. 20-961, 2020 WL 8918594 (2d Cir.
Oct. 13, 2020).
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The Strickland standard also applies to claims of
ineffective assistance of appellate counsel. See Smith v. Murray,
477 U.S. 527, 536, (1986); Claudio v. Scully, 982 F.2d 798, 803
(2d Cir. 1992) (“Although Strickland addressed the constitutional
standard for ineffective assistance of counsel in the trial counsel
context, our Circuit has also adopted the Strickland two-prong
test in assessing the effectiveness of appellate counsel.”). “[I]t
is not sufficient for the habeas petitioner to show merely that
counsel omitted a nonfrivolous argument, for counsel does not have
a duty to advance every nonfrivolous argument that could be made.”
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (citing Jones
v. Barnes, 463 U.S. 745, 754 (1983)). However, a petitioner may
demonstrate ineffective assistance by demonstrating that
“[appellate] counsel omitted significant and obvious issues while
pursuing issues that were clearly and significantly weaker.” Id.
at 533.
As discussed herein, Petitioner raised the same Brady
claim with respect to defense counsel. Again, Petitioner alleges
that the Government wrongfully suppressed Smith’s phone records
which, he contends, would have demonstrated his innocence with
respect to the Gardner shooting. For the same reasons previously
articulated, Petitioner’s claim against appellate counsel
similarly has no merit. The Government states that it does not,
and has never, been in possession of Smith’s phone records from
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the subject timeframe. (See Opp’n at 12-13.) As such,
Petitioner’s claim is based solely on speculation and conclusory
assertions of what he purports the records would have shown.
Accordingly, Petitioner cannot demonstrate that the Government
violated its Brady obligations, nor can he demonstrate that
appellate counsel’s representation constituted deficient
performance or prejudiced him for failing to raise a baseless claim
on appeal.
Thus, Petitioner’s claim of ineffective assistance by
appellate counsel does not warrant granting habeas relief.
***
To the extent not explicitly addressed herein, the Court
has considered Petitioner’s new arguments (see Petitioner’s May 8,
2022 Letter, ECF No. 732 (proffering Borden v. United States, 141
S. Ct. 1817 (2021) in further support of his Petition)), and finds
them to be without merit.
CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED
that Petitioner’s Petition (ECF No. 603) is DENIED in its entirety;
IT IS FURTHER ORDERED that, because there can be no
debate among reasonable jurists that Petitioner was not entitled
to habeas relief, the Court does not issue a Certificate of
Appealability, see 28 U.S.C. § 2253(c); see also Middleton v.
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Att’ys Gen., 396 F.3d 207, 209 (2d Cir. 2005); and, (2) certifies
that any appeal of this Order would not be taken in good faith,
and thus his in forma pauperis status is denied for the purposes
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-
45 (1962); and
IT IS FURTHER ORDERED that the Clerk of the Court: (1)
mark CLOSED the corresponding civil case, Case No. 19-CV-6919; and
(2) mail a copy of this Memorandum and Order to the pro se litigant
at his address of record, including the notation “LEGAL MAIL” on
the mailing envelope.
SO ORDERED.
_/s/ JOANNA SEYBERT____
Joanna Seybert, U.S.D.J.
Dated: May _26_, 2022
Central Islip, New York
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