United States District Court, N.D. New York
February 11, 2004.
TOMMY WALKER, Petitioner,
UNITED STATES OF AMERICA, Respondent
The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge
MEMORANDUM DECISION AND ORDER
Three petitioners, pro se, file a motion attacking their sentences
28 U.S.C. § 2255, and initially move to have their individual cases
consolidated and considered jointly by the court. The court recognizes
that pro se pleadings should be construed in a liberal and deferential
manner. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96,
30 L.Ed.2d 652 (1972). After a jury trial in this court, the petitioners
were convicted of operating a continuing criminal enterprise and
conspiracy to violate drug and firearm laws. Because each petitioner
raises identical issues about the reality and appearance of fairness of
their convictions and punishment, the court grants their motion and their
cases are consolidated into a single proceeding.
On October 19, 1995, a twenty-seven count indictment was filed charging
the petitioners with operating a continuing criminal enterprise ("CCE"),
in violation of 21 U.S.C. § 848, and conspiracy to distribute
cocaine, cocaine base (CRACK), methamphetamine (ICE), and marijuana, in
violation of 21 U.S.C. § 846. The petitioners were also charged with
various other weapons possession, firearms conspiracy counts, drug
possession and distribution felonies. A jury trial began on May 7, 1996
and terminated on July 2, 1996 with petitioners being convicted on all
counts. Tommy Walker was convicted operating a CCE, conspiracy to
distribute narcotics, conspiracy to distribute firearms, and several
counts of possession with intent to distribute narcotics; Gary Miller was
convicted of conspiracy to distribute narcotics, and several counts of
possession to distribute cocaine and crack cocaine; Raymond Cobbs was
convicted of conspiracy to possess with intent to distribute cocaine base
and methamphetamine, and unlawful possession of a firearm by a felon. A
sentencing hearing was conducted on January 23, 1997 for petitioner's
fellow defendant Miller with regard to the drug quantity attributable to
Miller and other defendants. At the hearing's conclusion, the court found
that the conspiracy
involved in excess of 1.5 kilograms of crack cocaine. Petitioner Walker
was sentenced to serve life imprisonment on the most serious counts with
concurrent terms on the lesser counts; Miller was sentenced to serve 188
months of imprisonment on each count, to be served concurrently, then
five years supervised release; Cobbs was sentenced to serve 262 months in
prison then four years of supervised release.
Petitioners and their co-defendants appealed their convictions and
sentences to the United States Court of Appeals for the Second Circuit,
and, on March 18, 1999, the appeals court affirmed all aspects of the
convictions for petitioners and their co-defendants. These three
petitioners then filed petitions for writs of certiorari to the United
States Supreme Court. The petitions were all denied on October 4, 1999.
Petitioners filed this motion attacking their sentences pursuant to
28 U.S.C. § 2255 on July 13, 2000.
Subsequent to the petition's filing, petitioners made two motions
seeking the court's permission to amend the petition pursuant to Federal
Rule of Civil Procedure 15(a) to add two new claims for relief to their
A habeas petitioner, like any civil litigant, is entitled to amend his
petition. Zarvela v. Artuz, 254 F.3d 374, 282 (2d Cir. 2001). "Sections
2254 and 2255 are generally seen in pari materia" and therefore "the
reasoning of [cases] in the context of § 2255 petitions applies
equally to § 2254 petitions." 235 F.3d 804, 815-16 (2d Cir. 2000).
The Anti-terrorism and Effective Death Penalty Act (the "AEDPA") affords
every prisoner a full opportunity to seek collateral review. Part of that
opportunity-part of every civil case-is an entitlement to add or drop
issues while litigation proceed.
Motions to amend habeas petitions should not be construed as second or
petitions. Corrao v. United States, 152 F.3d 188, 191 (2d Cir. 1998). The
standard for granting or denying a motion to amend is thus governed by
Federal Rule of Civil Procedure 15(a). The application of this Rule is
supported by 28 U.S.C. § 2242, which state that a petition for habeas
corpus "may be amended or supplemented as provided in the rules of
procedure applicable to civil actions," and Rule 11 of the Rules Governing
§ 2254 cases which provides that the Federal Rules of Civil
Procedure, "to the extent that they are not inconsistent with these
rules, may be applied, when appropriate, to petitions filed under these
rules." Even though Rule 15 requires that leave be freely given,
nevertheless, district courts retain the discretion to deny that leave in
order to thwart tactics that are dilatory, unfairly prejudicial or
otherwise abusive. Forman v. Davis, 371 U.S. 178, 181, 83 So. Ct. 227,
9 L.Ed.2d 22(1962). Nothing in the AEDPA appears to be inconsistent with
the application of Rule 15, which promotes consideration of all of a
party's claims on the merits. Farma v. Commissioner of Correctional
Services, 235 F.3d 804, 808 (2d Cir. 2000).
The court finds no apparent abuse by petitioners in the proposed
amendments to their petition, and no prejudice to the government which
would result therefrom, therefore, the claims raised in petitioners'
amendments will be forthwith addressed by the court in connection with
their § 2255 motion.
In their first motion seeking to add another claim to their § 2255
motion, petitioners assert that their Due Process rights were violated
under the holding in Maryland v. Brady, 373 U.S. 83, 83 S.Ct. 1194,
10 L.Ed.2d 215 (1963), when the Government did not meet its responsibility
to disclose favorable impeaching evidence to the defense. Walker alleges
that a key witness against petitioners was, Damien McCovery, who had been
arrested prior to the
trial and had been cooperating with the criminal investigation of
Walker since his arrest. This claim could not be made in earlier
proceedings because petitioner Walker did not come into possession of
documentary proof of these allegations until June 2001.
Prosecutorial non-disclosure of exculpatory evidence does not assume
unconstitutional dimensions unless the undisclosed evidence is "material
. . . to guilt or to punishment." Brady, 373 U.S. at 87, 83 S.Ct. at
1197. "Since impeachment evidence is exculpatory under Brady. the
question we ask in a prosecutorial non-disclosure setting is `whether the
omitted evidence is of sufficient materiality to call for a new trial.'"
United States v. Sanchez, 917 F.2d 607, 617 (1st Cir. 1990)(quoting
United States v. Imbruglia, 617 F.2d 1, 4 (1st Cir. 1980), cert. denied,
499 U.S. 977, 111 S.Ct. 1625, 113 L.Ed.2d 722 (1991)). The materiality
test under Brady is not met unless the non-disclosure of evidence
"undermine[s] confidence in the outcome of the trial," United States v.
Bagley, 473 U.S. 677, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985),
which can occur if "there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding
would have been different." Id. at 682, 105 S.Ct. at 3383; Sanchez, 917
F.2d at 617.
In their direct appeal to the Second Circuit, petitioners claimed that
the prosecution suborned perjury in employing the testimony of Damien
McCovery. In finding the testimony of this witness to be discredited, the
Second Circuit stated that, "[a] reading of the transcript of McCovery's
testimony shows an unreliable, inarticulate witness who had a faulty
memory and often misunderstood the questions posed to him." United States
v. Blackwell, et. al., 179 F.3d 846, 1999 WL 163980 at ** 1, (2d Cir.
March 18, 1999).
Furthermore, attached to petitioner Walker's motion papers is a letter
from Joseph T.
Flood, Esq., a criminal defense attorney seeking information. He
had spoken with Salvatore J. Piemonte, Esq., Walker's trial and appellate
attorney, concerning Damien McCovery, who was going to testify against
his client in a pending case. Attorney Flood stated in his letter that he
had read the testimony McCovery had given in Walker's case and "it is
apparent [on cross examination] that Sal [Piemonte Walker's
attorney] had at his disposal numerous additional documents including
McCovery's rap sheet, a statement McCovery gave to [co-defendant]
Prentise Lindsey, and other materials."
This court's review of McCovery's testimony concurs with the Second
Circuit's opinion of him as a witness. Petitioners' trial counsel was
given ample opportunity to make a record from which he could argue that
the witness was biased because of a particular hope or expectation
Barrett v. United States, 965 F.2d 433, 439 (1st Cir. 1982). Petitioners'
Sixth Amendment rights were adequately protected, and defense counsel,
through extensive cross-examination, fully established the potential bias
of McGovern stemming from his cooperation with the government.
Additionally, petitioners have not shown that 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.
Bagley, 473 U.S. at 682, 105 S.Ct. 3375.
In their second motion to add another claim, petitioners contend that
their sentences were made illegal by the Supreme Court's holding in
Apprendi v. New Jersey. 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 444
(1995), because the jury did not determine that they were guilty of every
element of the crimes with which they were charged beyond a reasonable
doubt. In Append, the Supreme Court held that "[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490.
The court will not consider this claim due to the following reason.
Petitioners' convictions became final when the Supreme Court denied their
petitions for certiorari on October 4, 1999, and Apprendi was decided on
June 26, 2000. The Second Circuit has concluded that "Apprendi announced
a rule that is both "new" and "procedural", but not "watershed," we
conclude that Apprendi does not apply retroactively to initial § 2255
motions for habeas relief. We therefore affirm the judgment of the
district court without reaching the merits of [petitioner's] Apprendi
claim." Coleman v. United States, 329 F.3d 77, 89 (2d Cir. 2003).
Additionally, in authoring the dissenting opinion in the five to four
decision in Harris v. United States, 536 U.S. 545, 581, 122 S.Ct. 2406,
70 USLW 4655 (2000), Justice Thomas wrote, "[n]o Court of Appeals, let
alone this court, has held that Apprendi has retroactive effect."
Harris, at 581, 122 S.Ct. at 2427. Petitioners' motion to include this
claim in their petition is denied.
Because a motion pursuant to § 2255 is a collateral attack on the
judgment of conviction or sentence, the burden is on the petitioner to
establish a basis for relief on the grounds set forth in the statute.
Consequently, to be successful on this motion the petitioners must allege
substantial issues of fact, which if proven, would entitle them to the
relief they seek. Taylor v. United States, 229 F.2d 826 (8th Cir.),
cert. denied, 351 U.S. 986, 75 S.Ct. 1055, 100 L.Ed. 1500 (1956); United
States v. Pisciotta, 199 F.2d 603 (2d Cir. 1952). In determining whether
to grant an evidentiary hearing on the petition, the court is mindful of
its obligation to do so "[U]less the motion and the files and the records
of the case conclusively show that the prisoner is entitled to no relief
28 U.S.C. § 2255, Torre v. United States, 370 F. Supp. 1348
1974). "A hearing is not required where petitioner's allegations are
insufficient in law, undisputed, immaterial, vague, conclusory, palpably
false or patently frivolous. United States v. Malcom, 432 F.2d 809, 812
(2d Cir. 1970). A district judge considering a § 2255 motion can rely
on his/her personal familiarity with the case and dismiss the habeas
claim without a hearing if he/she finds that the petitioner "lack[s] any
truly meritorious allegation" and there is "overwhelming evidence of
[petitioner's] guilt." United States v. Aiello, 900 F.2d 528, 534 (2d
Petitioner asserts eight grounds in support of his 2255 motion which
shall be addressed seriatim by the court.
1) The indictment is jurisdictionally defective
because it failed to include all the elements of
the crime charged and essential facts, and failed
to provide proper notice in violation of the Fifth
and Sixth Amendments of the U.S. Constitution,
2) a letter from a non-testifying co-defendant
deprived petitioner of his Sixth Amendment
right to confront a witness against him,
3) the Government interfered with petitioner's
attorney-client relationship thereby violating
his Fifth and Sixth Amendment rights and left
the court without jurisdiction,
4) petitioner was denied his right to a unanimous jury
verdict in violation of the Federal Rules of
Criminal Procedure 31(a), and the Sixth Amendment,
5) petitioner's being detained without bail for over
four hundred days violated his Due Process clause
of the Fifth Amendment, and his right to a speedy
trial under the Sixth Amendment,
6) his prosecution was brought selectively,
vindictively and for improper purpose,
7) the search and seizure in this case were
unreasonable and in violation of the Fourth
8) the testimony of an alleged accomplice, and
the testimony of one who provided evidence
against a defendant as an informer for pay or
immunity from punishment or for personal
advantage, denied the defendant Due Process of law
and a fair trial.
In his first point, Walker claims that the indictment is
jurisdictionally defective and his conviction should be vacated based on
the decision in Richardson v. United States, 526 U.S. 813,
119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). This opinion holds that a conviction could
be vacated if the indictment failed to identify three specific predicate
violations, elements necessary for a CCE conviction.
He correctly states that Richardson applies retroactively here because
it is his first § 2255 motion. Santana-Madera v. United States,
260 F.3d 133, 138-39 (2d Cir. 2001), but the Government contends, and the
court agrees, that this claim has been procedurally defaulted because it
was not raised on his direct appeal.
Procedural default may be found if a § 2255 petitioner has waived
or abandoned a claim by failing to either preserve it for, or raise it on
direct appeal. United States v. Frady, 456 U.S. 152, 167-68 (1982).
Procedural default will bar review of claimed errors unless the
petitioner can show cause for the default and prejudice resulting from the
error or that he is actually innocent. Bousley v. United States,
523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).
"[A]ctual innocence means factual innocence, not mere legal
insufficiency." Id. Prior to Walkers conviction, a number of circuits had
considered the purportedly novel question decided in Richardson, In
fact, there was already a circuit split on it. Although the Second
Circuit had not specifically addressed the issue, the court alerted
counsel to the fact that some district courts in the circuit were
requiring it. The fact that the argument was not uniformly accepted by
these courts does not excuse Walker's failure to raise it. "Where the
basis of a . . . claim is available, and other defense counsel have
perceived and litigated that claim, the
demands of comity and finality counsels against labeling alleged
unawareness of objection as a cause for procedural default." Engel v.
Issac, 456 U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Since
Walker has neither established cause for his default or actual
innocence, this claim is procedurally defaulted and cannot be reviewed.
Walker has set forth additional claims that the defective indictment
deprived the court of jurisdiction. He alleges that the indictment did
not include all of the elements of the crimes charged, failed to include
essential facts and to give proper notice. The Supreme Court, however,
has determined that defects in an indictment are non-jurisdictional.
United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 1785-86,
152 L.Ed.2d 860 (2002).
A ruling "that the indictment is defective does not effect the
jurisdiction of the trial court to determine the case presented by the
indictment." United Stated v. Williams, 341 U.S. 58, 66, 71 So. Ct. 595,
95 L.Ed. 747 (1951). In Lamar v. United States, 240 U.S. 60,
36 S.Ct. 1781, 152 L.Ed. 526 (1916), Justice Holmes explained that a district
court "has jurisdiction of all crimes cognizable under the authority of
the United States . . .[and] [t]he objection that the indictment does not
charge a crime goes only to the merits of the case." at 65.
The Supreme Court has determined that defects in an indictment are
non-jurisdictional. United States v. Cotton, 535 U.S. 625,
122 S.Ct. 1781, 1785-86, 152 L.Ed.2d 860 (2002), and, if found, the defects are to
be reviewed under the plain error test of Federal Rule of Criminal
Procedure 52(b). Under that test, an appellate court may correct an error
if (1) there is an error (2)(that) is plain and (3) that affects
substantial rights. United States v. Olano, 507 U.S. 725, 732-36,
113 S.Ct. 2770, 123 L.Ed.2d 508 (1993). "If all three [of these] conditions
are met, an appellate court may then exercise its discretion to notice a
forfeited error but only if (4) the
error seriously affect[s] the fairness integrity, or public reputation of
judicial proceedings." Johnson v. United States, 520 U.S. 461. 467.
117S. Ct. 1544, 1549 137 L.Ed.2d 718 (1997).
The indictment charged, and Walker was convicted of Aiding and Abetting
a CCE, but it is not a crime to aid and abet a CCE. Walker was a kingpin
in the drug dealing conspiracy, and it has been held "that a drug felony
conviction based upon aiding and abetting may qualify as a "series"
predicate where, as here, the aider and abettor is a kingpin. United
States v. Aiello, 864 F.2d 257, 264 (2d Cir. 1988), cert. denied,
525 U.S. 932, 119 S.Ct. 302, 142 L. Ed.2d (1998).
Petitioners were not charged by the Grand Jury as to the (b) portion of
21 U.S.C. § 841, but were sentenced and convicted under the (b)
portion of § 841. Petitioners were convicted under § 841(a), but
they were sentenced under § 841(b) because it sets forth the
penalties for being convicted of violating § 841(a).
Count two of the indictment is duplicitous because it contains three
counts, 21 U.S.C. § 841, § 846, § 841 and 18 U.S.C. § 2.
An indictment is duplicitous if it combines two or more crimes in a
single count. United States v. Murray, 618 F.2d 892, 896 (2d Cir. 1980).
A conspiracy indictment presents "unique issues" in the duplicity
analysis because "a single agreement may encompass multiple illegal
objects." Id. In this Circuit "it is well established `that the
allegation in a single count of conspiracy to commit several crimes is
not duplicitous for "[t]he conspiracy is the crime and that is one,
however divers its objects;'" Id. see also > Braverman v. United
States, 317 U.S. 49, 63 S.Ct. 999, 101 L.Ed.2d 23 (1942) ("Whether the
object of a single agreement is to commit one or more crimes, it is in
either case that agreement
which constitutes the conspiracy which the statute punishes. The
one agreement cannot be taken to be several agreements and hence several
conspiracies because it envisages the violation of several statutes
rather than one").
The indictment does not include essential facts and proper notice. "It
is well settled that in an indictment for conspiring to commit an offense
in which conspiracy is the gist of the crime it is not
necessary to allege with technical precision all the elements essential
to the commission of the offense which was the object of the conspiracy."
Wong v. United States, 273 U.S. 77, 81, 47 S.Ct. 300, 71 L.Ed.2d 545
(1927). "The rational is that the crime is complete whether or not the
substantive offense which was its object was committed. The indictment
need only put the defendants on notice that they are being charged with a
conspiracy to commit the underlying offense or . . . apprise the grand
jury in essential terms of the object of the conspiracy." United States
v. Wdermyer, 51 F.3d 319, 325 (2d Cir. 1995).
The court further finds that grounds 2, 4, 5, 6, 7 and 8 of the
petition are procedurally defaulted because they were not raised on direct
appeal. On a motion to vacate, set aside or correct sentence, the court
may raise the issue of procedural default sua sponte, Rosario v. United
States, 164 F.3d 729, 732 (2d Cir. 1998), cert. denied, 527 U.S. 1012,
115 S.Ct. 2355, 114 L.Ed.2d 250 (1998).
In the remaining ground 3, petitioner Walker contends that the
Government's interference with petitioner Walker's attorney client
relationship violated his Fifth and Sixth Amendment rights and left the
court without jurisdiction. This ground has five separate allegations.
Two of the allegations, the trial courts's removal of his trial attorney
due to a potential conflict of interest, and the denial of Walker's
severance motion, will not be reviewed
because they were raised on direct appeal and rejected by the Second
Circuit. "A § 2255 motion may not re-litigate issues that were raised
and considered on direct appeal." United States v. Perez, 129 F.3d 255,
260 (2d Cir. 1997), cert. denied, 525 U.S. 953, 119 S.Ct. 384,
142 L.Ed.2d 318 (1998).
In the first of the other three allegations, Walker maintains that he
was denied effective assistance of counsel as a result of the court
appointing an advisory counsel.
A party claiming ineffective assistance of counsel must show that his
or her attorney's performance fell below an objective standard of
reasonableness, and that there is a reasonable probability that counsel's
ineffectiveness prejudiced the result of the proceeding., Strickland v.
Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Proving prejudice requires an affirmative showing of "a reasonable
probability that but for counsel's unprofessional errors, the result of
the proceedings would have been different." Id. at 694, 104 S.Ct. 2052.
There is a strong presumption that a counsel's conduct at trial was
reasonable and that any challenged conduct might be considered sound
trial strategy. Id. at 689, Maddox v. Lord, 818 F.2d 1058, 1061 (2d Cir.
Because the right to counsel of one's choice is not absolute, a trial
court may require a defendant to proceed to trial with counsel not of
defendant's choosing; although it may not compel defendant to proceed
with incompetent counsel. United States v. Schmidt, 105 F.3d 82, 88 (2d
Cir. 1997), cert. denied, 522 U.S. 846, 118 S.Ct. 130, 139 L.Ed.2d 80
(1997). In fact, the advisory attorney appointed by this court, Salvatore
Piemonte, Esq., was a highly proficient, veteran criminal trial lawyer
who had tried many federal and state criminal cases when representing
defendants accused of drug crimes. He was appointed well before the
and had sufficient time to review all the discovery and to meet with
Walker to discuss strategy, tactics and various options. In this court's
estimation, his work before, during and after the trial was very
In the second allegation, Walker states that while government witness,
Tracy Blackwell, was being cross examined at trial, he provided the court
with letters she had written to him while they were both incarcerated.
The letters were offered to show Blackwell's state of mind. Walker claims
that instead of doing that, the letters bolstered Blackwell's testimony
against the defendants, and that his counsel was incompetent in advising
him to put the letters in evidence. That in some respects defense
counsel's strategy might have backfired, or that from hindsight one may
think of a better way to have conducted the defense, is not a proper
measure of the care and effort counsel expended on Walker's defense or
the effectiveness of his assistance. United States ex rel. Pedro Crispin
v. Mangusi, 488 F.2d 233, 237, (2d Cir. 1971), cert. denied, 404 U.S. 967,
92 S.Ct. 346, 30 L.Ed.2d 288 (1974). In view of the evidence produced by
the Government, petitioners have not demonstrated that the result of the
proceeding would have been different if the letters had not been
introduced into evidence.
On direct appeal, petitioner Miller raised the matter of the letters
being produced and used at the trial and the appellate court found that
the use of the letters did not prejudice him.
In the third allegation, Walker declares that his right to represent
himself on appeal was denied when court appointed advisory counsel was
forced upon him during his direct appeal. Initially, Walker did represent
himself at the trial. He made his own opening statement, and could have
proceeded with the trial if he chose to do so. Instead, he apprised the
court that he wanted his advisory counsel to conduct the trial. Advisory
counsel was not forced upon him,
and he could have again taken over the trial and/or appeal of his
case if he had wished to.
Reviewing the alleged indictment defects for plain error, the court
finds none. "The key question [as to whether an indictment is adequate]
is whether an error or omission in an indictment worked to the prejudice
of the accused . . . Absent such prejudice, the conviction may not be
reversed for any omission in the indictment. James 980 F.2d 1314, 1317
(9th Cir. 1992). Petitioners' trial attorneys were aware of the nature of
the alleged offenses and knew what the Government had to prove to convict
Accordingly, petitioners' two motions to amend their § 2255
petition are DENIED; and petitioners motion under 28 U.S.C. § 2255, to
vacate, set aside, or correct sentence, is DENIED.
IT IS SO ORDERED.
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