The opinion of the court was delivered by: SCULLIN
Petitioners, George K. Harney and David T. Chaleux-DeLeon, seek to vacate their sentences pursuant to 28 U.S.C. § 2255, based upon the Supreme Court's decision in Bailey v. United States, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995). Petitioner Harney also seeks the appointment of counsel. Following a joint trial, Petitioner Harney and Chaleux-DeLeon were convicted of, inter alia, conspiracy to commit armed robbery, and "using" or "carrying" a firearm during and in relation to that conspiracy in violation of 18 U.S.C. § 371 and 18 U.S.C. § 924(c)(1), respectively. Petitioners contend that the evidence adduced at their criminal trial was insufficient to support their convictions for "using or carrying" a firearm during and in relation to the underlying conspiracy to commit armed robbery, in light of the Supreme Court's re-definition of "use" in Bailey.
At the underlying criminal trial, testimony was presented by the Government which recounted the following factual events. In late March or early April 1992, Ronald LeClair of Springfield, Massachusetts called Peter Manfredi of Whitehall, New York to discuss the possibility of robbing a bank in Whitehall. LeClair told Manfredi that he knew people interested in coming from Springfield to Whitehall to rob banks. During a later telephone conversation, LeClair introduced Manfredi to Petitioner Chaleux-DeLeon who indicated that he was interested in coming to Whitehall, New York to rob banks.
On April 13, 1992, Petitioner Harney, along with Petitioner Chaleux-DeLeon, met Manfredi in Whitehall, New York at a Stewart's store. At this first meeting, Petitioners showed Manfredi the guns they were each wearing under their coats. Thereafter, Harney, Chaleux-DeLeon, and Manfredi conducted an initial surveil of the Whitehall Police Station and the two banks in Whitehall, Key Bank and Troy Savings Bank, on their way to Manfredi's house. Once they reached Manfredi's house the Petitioners brought three pistols, ammunition, belly bands, and clothes into the house and stored them in a dresser.
That evening, the Petitioners discussed robbing banks with Manfredi. The parties agreed that at least three individuals would be needed and that the first person to enter the bank would "smash the teller's head" in order to confuse and scare others in the bank. They further agreed that if anyone in the bank moved, they would "shoot them in the head."
On April 14, 1992, the three went to the Whitehall Grand Union and Troy Savings Banks in order to assess their security systems, cameras, and to generally see how easily each could be robbed. They agreed that Troy Savings Bank would be less difficult to rob because of its location and accessibility. Later that day, Petitioners Harney and Chaleux-DeLeon returned to Massachusetts to recruit more people for the robbery.
After they left, Manfredi went to the Whitehall Police Department to inform the police of their plan and to surrender the guns left by the Petitioners. Upon their return to Whitehall on April 15, 1992, Petitioner Harney and Chaleux-DeLeon were arrested by F.B.I. agents.
After a five day trial, Petitioner Harney and Chaleux-DeLeon were convicted on August 21, 1992 of conspiracy to commit armed robbery in violation of 18 U.S.C. § 371 (count one), using or carrying firearms during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (count three), interstate transportation of a stolen firearm in violation of 18 U.S.C. § 922(i) (count four), and interstate transportation of a firearm with an obliterated or altered serial number in violation of 18 U.S.C. § 922(k) (count five).
Petitioner Harney was sentenced to 46 months imprisonment on counts one, four and five to run concurrently, and 60 months imprisonment on count three to run consecutively, for a total of 106 months. Petitioner Chaleux-DeLeon was sentenced to 60 months imprisonment on count one and 71 months imprisonment on counts four through seven to run concurrently with count one, and 60 months imprisonment on count three to run consecutively with the 71 month sentence, for a total of 131 months.
As stated, Petitioners contend that their 18 U.S.C. § 924(c) convictions must be vacated in light of the Supreme Court's Bailey decision because there is insufficient evidence to support a conviction for "using" or "carrying" a firearm. Petitioner Harney also requests appointment of counsel pursuant to 18 U.S.C. § 3006(a)(2)(B). The Court will first address Petitioner's request for counsel.
I. Appointment of Counsel
In determining whether to appoint counsel to an indigent litigant, a court needs to consider the following factors: (1) the merits of the litigant's claims, (2) the litigant's ability to pay for private counsel, (3) the litigant's efforts to obtain counsel, (4) the availability of counsel, (5) the litigant's ability to gather facts without the assistance of counsel, (6) the complexity of the legal issues, and (7) the need for expertly conducted cross-examination. Garcia v. Keane, 1997 U.S. Dist. LEXIS 3062, 1997 WL 124073 at *2 (S.D.N.Y., March 18, 1997) (citing Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989)). Having reviewed the relevant legal arguments and issues present in this matter, the Court finds that the legal questions are straightforward, and have been adequately briefed by the Petitioners. Furthermore, there is no need for expertly ...