United States District Court, N.D. New York
June 2, 2004.
TOMMY WALKER, GARY MILEER, RAYMOND COBBS, Petitioners,
UNITED STATES OF AMERICA, Respondent
The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge
Petitioners bring this motion to alter or amend judgment pursuant to
Federal Rule of Civil Procedure 59(e) seeking reconsideration of this
court's order of February 11, 2004, which denied petitioners' § 2255 motion. A motion to reconsider a § 2255 ruling
shall be filed no later than ten days after entry of the challenged
order. Williams v. United States, 984 F.2d 28 (2d Cir. 1993). In the
instant case, the motion was timely filed within the ten day limitation
A Rule 59(e) motion to alter or amend a judgment should only be granted
where the court has overlooked factual issues or controlling decisions
which were presented to it on the underlying motion. Cohen v. Konig,
932 F. Supp. 505, 506-07 (S.D.N.Y. 1996); Parkas v. Ellis, 783 F. Supp. 830
(S.D.N.Y.), aff'd. 979 F.2d 845 (2d Cir. 1992). Rule 59(e) may not be
used to relitigate old matters, or to raise arguments or present evidence
that could have been raised prior to the entry of judgment. F.D.I.C. V.
World University, Inc., 978 F.2d 10, 16 (1st Cir. 1992).
Rule 59(e) "is to be narrowly construed and strictly applied so as to
avoid repetitive arguments on issues that have been considered fully by
the court." Ades v. Deloitte & Touche, 843 F. Supp. 888, 892 (S.D.N.Y.
1994). The decision to grant or deny a Rule 59(e) motion rests in the
discretion of the district court. McCarthy v. Manson, 714 F.2d 234, 237
(2d Cir. 1983).
In ruling on petitioners' § 2255 motion, this court found that six of
the grounds raised therein had been procedurally defaulted. Petitioners
now assert that they are actually innocent of the sentences imposed, and
in such circumstances, a habeas court can apply the miscarriage of
justice exception to a procedural default to correct a fundamentally
unfair incarceration. Washington v. James, 996 F.2d 1442, 1450 (2d Cir.
1993), and/or that the six grounds were not defaulted because they raised
an ineffective assistance of counsel claim.
Petitioners argue when there is a general verdict of conviction for
conspiring to possess a controlled substance, and more then one substance
is involved, the court is to assume the conviction is for conspiracy to possess a controlled substance that
carries most lenient statutorily prescribed sentence, but the trial
court, although it did not have jurisdiction to do so, gave them illegal
sentences that exceeded the most lenient statutory prescribed sentence.
United States v. Barnes, 158 F.3d 662 (2d Cir. 1998). Therefore, their §
2255 motion could be construed as seeking habeas relief on the grounds of
actual innocence, and is not subject to procedural default.
The holding in Barnes, is not applicable in the instant case. In
Barnes the jury returned a general guilty verdict on a single count of
conspiracy involving multiple controlled substances. The counts upon
which petitioners Miller and Cobbs were convicted did not involve
multiple controlled substances.
Petitioner Miller was convicted on a single count of Conspiracy to
Possess and Distribute and to Distribute Cocaine Base, a single count of
Aiding and Abetting Possession with intent to Distribute Cocaine, and two
individual counts of Aiding and Abetting Possession with Intent to
Distribute Cocaine Base.
Petitioner Cobbs was convicted on individual counts of Conspiracy to
Possess With Intent to Distribute and to Distribute Cocaine base; Aiding
and Abetting Possession With Intent to Distribute Cocaine Base; Aiding
and Abetting Possession With Intent to Distribute Methamphetamine; and,
Unlawful Possession of a Firearm by a Felon.
Therefore, since there was only one controlled substance involved in
each of the narcotic convictions of these two individuals, there was no
statutory compunction for the court to impose sentences shorter then they
With regard to petitioner Walker, even if he was convicted on a single
count containing multiple controlled substances, unlike the appellant in Barnes, the jury
also convicted Walker of possession with attempt to distribute cocaine
base. In United States v. Orozco-Prada, 732 F.2d 1076, cert. denied,
469 U.S. 845, S. Ct., L. Ed.2d (1984), which Barnes itself affirmed as
authorative, the Second Circuit adopted an exception to the general
verdict doctrine, citing, United States v. Peters. 617 F.2d 503 (7th
Cir. 1980). Peters holds that where a jury also convicts a defendant of
offenses that were the object of an alleged conspiracy, it is reasonable
to conclude that the jury found the defendant guilty of conspiracy to
commit that substantive offense. Id. at 506. Since Walker was also
convicted of possession with intent to distribute cocaine base, the court
could reasonably infer that the jury convicted Walker for conspiracy to
possess cocaine base despite the absence of a special verdict on that
Petitioners' contention that their procedural default can be considered
because there are seeking relief on the grounds of actual innocence is
Petitioners' further assert that the six claims set forth in their
petition at paragraphs 2, 4, 5, 6, 7 and 8, were not procedurally
defaulted because they requested that they all be considered under
ineffective assistance of counsel. In their current motion, petitioners
concede that advisory trial counsel Sal Piemonte, Esq., was not
ineffective at trial, but claim that he was ineffective as appellate
counsel. (Petition p. 13).
In order to sustain a claim for ineffective assistance of trial counsel
it must be shown that 1) counsel' performance was deficient and, (2) the
deficient performance prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2952, 2054, 90 L.Ed.2d 674 (1984). To
establish prejudice, "[t]he defendant must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the
confidence in the result Id. at 694. The Strickland test applies to
challenges of the effectiveness of both trial and appellate counsel.
Abdurraham v. Henderson, 987 F.2d 71, 74 (2d Cir. 1990).
Petitioners set forth the following claims they maintain should have
been raised on direct appeal, but their appellate counsel failed to do
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.
2) a letter from a non-testifying witness deprived
petitioner Walker from his Sixth Amendment right to
confront a witness against him;
3) the government interfered with petitioner Walker's
attorney-client relationship thereby violating his
Fifth and Sixth Amendment rights and left the court
4) petitioner Walker was denied a right of a unanimous
verdict in violation of Federal Rule of Civil
Procedure 31(a) and the Sixth Amendment;
5) petitioner Walker's being detained without
bail for over four hundred days violated the
Due Process clause of the Fifth Amendment and
his right to a speedy trial under the Sixth
6) petitioner Walkers' prosecution was brought
selectively, vindictively and for an improper
7) the search and seizure in this case were
unreasonable and in violation the Fourth
8) the testimony of an alleged accomplice, and
the testimony of one who provided evidence
against a defendant as a informer for pay or
for immunity from punishment or for personal
advantage, denied petitioner Walker Due Process
While failure to raise a claim of ineffective assistance of trial
counsel on direct appeal will not result in a procedural default where trial counsel was also
appellate counsel, Abbamonte v. United States, 160 F.3d 922
, 928 (2d Cir.
1998), the claims petitioners have raised are without substance and,
thus, no prejudice could have occurred.
It must first be noted that petitioners' 1 and 3 Grounds were
considered and rejected in this court's decision on petitioners' § 2255
motion, and the court finds no reason to alter the rulings it made on
these Grounds. Grounds 2 and 8 were raised on direct appeal, and were
rejected by the appellate court and need not be further considered by
In ground 4, petitioner Walker claims he was denied his right to a
unanimous jury verdict because the trial court did not instruct the jury
that they must unanimously agree on each of the offenses comprising the
"continuing series" in a Continuing Criminal Enterprise ("CCE"), citing
Richardson v. United States, 526 U.S. 813. 119 S.Ct. 1707, 143 L. ED.2d
In Santana-Madera v. United States. 250 F.2d 133 (2d Circuit 2001), the
Second Circuit found that a Richardson type jury instruction was subject
to harmless error review. Id. at 140. The error in that case took place
when the district court did not require the jury to specifically and
separately agree on each of the three violations that made up the
"continuing series of violations" needed for a CCE conviction. Id.
However, in addition to the CCE count, the jury also convicted
Santa-Madera of eight substantive counts of cocaine distribution and a
single count of conspiring to distribute cocaine. Therefore, the jury
unanimously agreed on at least nine major violations of the federal drug
laws, any three of which are sufficient to establish the "continuing
series of violations" under Richardson and 21 U.S.C. § 848 In the case at
bar, petitioner Walker was convicted of the CCE count as well as 4 counts
of cocaine distribution, 2 counts of cocaine base distribution and 2
counts of methamphetamine distribution and a single count of conspiracy to distribute cocaine base. If the trial court had
given the jury the instructions mandated by Richardson, it is beyond
question that the jury would have unanimously agreed on three predicate
violations of the drug laws. They unanimously agreed on nine such
violations making the error here clearly harmless.
Petitioner Walker's Ground 5 claims of bail denial and violations of
the Speedy Trial Act, and his Ground 7 unreasonable search and seizure
claims, were previously considered and denied by this court in the
decisions it made on petitioner Walker's omnibus motion seeking pretrial
relief Petitioner Walker's denial of bail claim was considered by this
court when it reviewed and affirmed the denial by Magistrate Judge
DiBianco of that portion. Walker's omnibus motion seeking revocation of
his detention order. A summary of the portion of this court's order of
April 23, 1996 affirming the Magistrate Judge's findings is set forth
Magistrate Judge DiBianco issued an order to detain petitioner Walker
pending trial because the government proved by a preponderance of the
evidence that Walker presented a substantial risk to the community, and
that the government had also proved by clear and convincing evidence that
Walker presented a danger to the community. The Magistrate Judge's
findings were based on (1) the nature of the circumstances of the offense
charged, (2) the weight of the evidence against Walker, (3) his personal
history and characteristics, including his character, past conduct,
criminal history and whether he was on supervised release at the time of
the charged offense and (4) the danger he posed to the community by being
This court fully considered the Magistrate Judge's findings before
issuing its order approving them. With regard to risk of flight, Walker requested the court to consider
his diligence in appearing in court in a prior criminal case in which he
was charged with various felonies. The Bail Rail Reform Act (
18 U.S.C. § 1342 et seq.) creates a rebuttal presumption that a person
accused of a serious narcotics offense will flee before trial. United
States v. Mercedes, (2d Cir. 2001). In the present case, Walker is
charged with multiple counts of illegal possession of narcotics in
violation of 21 U.S.C. § 841 and 848, as well as firearms violations
under 18 U.S.C. § 371 and § 922(g). If Walker was convicted of these
various offenses, he could be sentenced to a substantial period of
imprisonment, with the possibility of a term for life. Furthermore,
Walker's previous behavior with regard to making court appearances is
only one factor for the court to consider. Therefore, the court finds
that Walker has not provided sufficient evidence to rebut the presumption
that he will flee if released on bail.
Additionally, even if the court concludes that Walker was not a flight
risk, the government sufficiently demonstrated that he posed a
substantial danger to the community. Walker was on parole from a 2 to 6
year sentence from a conviction for Criminal Possession of a Weapon at
the time the current charges were brought against him. The prosecution
averred that as part of Walker's conducting a Continuing Criminal
Enterprise, he used violence and intimidations on many occasions against
numerous individuals, including some co-defendants in the current
proceeding against him. The prosecution intended to call these
co-defendants to testify against him at trial.
In support of his contention that he did not pose a threat of risk of
harm to others, Walker submitted recent letters to the court assumed to
be from several of his co-defendants. Walker claimed that the content of
these letters showed that these people did not fear him. The court reviewed these letters and concluded that Walker did not present
sufficient evidence to establish that the Magistrate Judge's findings
with respect to the likelihood that Walker poses a serious danger were
erroneous. Nor did Walker suggest any new conditions that could
reasonably assure the safety of the community.
After a careful review of the Magistrate Judge's, findings and the
record before the court, the court held that the government had proven by
clear and convincing evidence that no condition or combination of
conditions existed that would reasonably assure the safety of the
community. The court also decided that the government had shown by a
preponderance of the evidence that defendant Walker posed a serious risk
of flight, and his motion for revocation of his detention order was
The court finds no reason to alter the prior ruling it made on this
Walker's § 2255 motion indicates that after his indictment, the
government used improper tactics in securing the grand jury's issuance of
superceding indictments which added defendants to the case, thereby
extending the Speedy Trial time limits.
Post-indictment action is permitted to identify or investigate other
individuals involved in criminal schemes. United States v. Sasso,
59 F.3d 341, 353 (2d Cir. 1995), or to prepare superceding indictments
against persons already charged. United States v. Vanwort, 997 F.2d 375,
387 (2d Cir. 1989) A superceding indictment may be obtained by the
government anytime before trial. United States v. Edwards, 777 F.2d 644,
649 (11th Cir. 1985), cert. denied, sub nom. Bolden v. United States.
475 U.S. 1123, 106 S.Ct. 1644, 90 L.Ed.2d 189 (1986).
The government continued to investigate Walker's criminal conduct and
was able to identify other persons involved in the drug conspiracy and
develop probative evidence which was presented to the grand jury as a result of cooperating witnesses
pleading guilty and testifying before the grand jury. By bringing
superceding indictments against Walker and his co-defendants, the
government here was not preparing an already pending indictment for
trial. Rather, it was ensuring that it could try at the same time before
the same jury all the crimes relating to the drug conspiracy. The
government's continued detention of Walker in furtherance of that ongoing
investigation was proper.
The court found then and does now, that, after reviewing the exclusions
from the Speedy Trial Act that it deemed necessary at that time, there
was no violation of that statute.
In Ground Seven, petitioner Walker contends that there was no
justification to detain or search a package in regard to the narcotic
investigation conducted by the Utica Police at the Greyhound bus station
in Utica, NY, on September 9, 1992; the unauthorized search of the hotel
room of Hugo Divers at the Days Inn in Auburn, N.Y. on October 6, 1994;
and that the search warrants issued on March 20, 1995 and executed at
three Utica, N.Y. properties, 724 Plant Street, the apartment of Tracy
Blackwell; at 1214 Donner Avenue, the residence of Cynthia Cheney; and
1411 West Street, the residence of Lorraine Howard, were not based on
During Walker's trial Utica Police investigator Robert Nolan testified
that on September 9, 1992, the manager of the Utica bus station notified
him that a suspicious package addressed to Raymond Cobbs in Utica, N.Y.
from Tommy Walker in New York City had arrived there. He testified that
he became suspicious because as a narcotics investigator, these names
were known to him. A narcotics canine sniff of the package pointed to a
positive smell for narcotics. Application for a state search warrant was
made and, later, the package was opened and found to contain cocaine. The
package was repackaged with soap flakes, but the two individuals who retrieved it eluded police officers who tried to follow them. The
cocaine was subject to a court order to be destroyed and a further court
order permitting it to be used for training purposes by police personnel.
The cocaine was later destroyed in compliance with the court order.
Raymond Cobbs' subsequent claim that the cocaine's destruction illegally
destroyed evidence was considered on his direct appeal and needs no
Walker alleges that the police planted the drugs they recovered in the
Days Inn search. Three narcotic investigators testified at the trial that
the Auburn, N.Y. police knocked on the door of Hugo Divers room at the Days
Inn, Auburn, N.Y. on October 2, 1994, the door was opened and Divers
consented to a search of the room. They then observed cocaine in plain
view. There were several others in the room at the time. Divers later
claimed that he did not recall leaving any narcotics in plain view,
however, the trial record does not indicate in any manner that the
testimonies of the three testifying officers were false.
Before denying petitioners' motion to suppress the other three search
warrants in question that were executed on the other three Utica, N.Y.
properties, this court examined the procedures followed in procuring them
and in their execution, and found that they had been properly and legally
applied for, issued and carried out. No reason presently appears to
compel reexamination of petitioner's Ground 7.
Petitioner Walker's remaining Ground 6 states that his prosecution was
brought selectively, vindictively and for an improper purpose. Walker
claims that his prosecution in federal court rather than in state court
constituted selective or discriminatory prosecution because, if convicted
in federal court, he could be punished more severely than in state court. A defendant has no constitutional right to elect which of two
applicable statutes shall be the basis of his indictment and prosecution.
Hutcherson v. United States. 345 F.2d 964, 967 (D.C. Cir.), cert.
denied, 382 U.S, 894, 86 S.Ct. 188, 15 L.Ed.2d 151 (1965). This is true
even where there are widely differing penalties available under the two
statutes. Donaldson v. Hon. S. Dalshem, 508 F. Supp. 294, 297, aff'd,
372 F.2d 899 (1981), cert. denied, 455 U.S. 951, 102 S.Ct. 1455,
71 L.Ed.2d 666 (1982).
Walker's other arguments in Ground 5 concern the testimony of
prosecution witness Damion McCovery against him at trial. These arguments
were considered on direct appeal and require no further discussion here.
Petitioners have not shown the existence of manifest error of law or
fact or the existence of new evidence entitling them to relief under
Federal Rule of Civil Procedure 59(e)
Accordingly, Petitioners' motion for reconsideration, construed as a
motion to alter or amend judgment under Federal Rule of Civil Procedure
59(e) is DENIED.
IT IS SO ORDERED.
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