The opinion of the court was delivered by: HAROLD BAER JR., District Judge
On October 6, 2003, pro se Petitioners Anthony and
Christopher Griffith (the "Griffiths") moved to vacate their
convictions and sentences pursuant to 28 U.S.C. § 2255. Each
raises thirty-two separate claims, with Anthony Griffith raising
one additional claim on his own.*fn1 They seek new trials,
or alternatively, evidentiary hearings. For the reasons stated
below, the petitions are both DENIED.
Given the large number of claims raised, and that two prior
opinions have stated the factual record in detail, this Court
assumes knowledge of the general facts of this case. See United States v. Griffith, 284 F.3d 338 (2d Cir.
2002); United States v. Griffith, No. 99cr786, 2000 U.S. Dist.
LEXIS 12655 (S.D.N.Y. Sept. 5, 2000).
Briefly, the Griffiths, who are brothers, recruited several
minor females for the purposes of prostitution and the production
of at least one pornographic videotape, and on at least two
occasions they transported a minor round-trip between New York
and New Jersey for those purposes.
On September 22, 2000, following a jury trial in this Court,
the Griffiths were found guilty of conspiracy to violate and
violation of (1) 18 U.S.C. §§ 2422 and 2423 (transportation of a
minor in interstate commerce with the intent that she engage in
prostitution), and (2) 18 U.S.C. § 2251(a) (use of a minor to
engage in sexually explicit conduct for the purposes of producing
a videotape). The Griffiths were originally found guilty on eight
counts total involving two minors, "Ebony" and "Jody Ann."
Following the trial, the government agreed to dismiss two of
those counts as multiplicitous. This Court then granted the
Griffiths' Motion for Judgment of Acquittal on two additional
counts pursuant to Fed.R.Crim.P. 29(c) and 33. Griffith,
2000 U.S. Dist. LEXIS 12655 (S.D.N.Y. Sept. 5, 2000).
Consequently, the Judgment of Conviction was entered on the four
remaining counts that involved "Ebony" and not "Jody Ann."
Anthony and Christopher Griffith were sentenced by this Court
to 126 and 120 month terms of imprisonment, respectively. They
appealed their convictions to the Second Circuit Court of Appeals
on four separate grounds: (1) that Section 2251(a) is an
unconstitutional exercise of Congress' Commerce Clause power and,
in any event, there was insufficient evidence to support their
convictions under that statute; (2) this Court incorrectly
instructed the jury that Sections 2422 and 2423 do not require
that the Griffiths know their victim was a minor; (3) this
Court's erroneous jury instructions, coupled with the dismissal
of the "Jody Ann" counts, prejudiced the jury against the
Griffiths; and (4) the Griffiths claimed they were denied a fair
trial because this Court restricted cross-examination of Ebony
about her drug use, sexual history, and relationship with her
father. Christopher Griffith petitioned and received permission to file
his own pro se brief in connection with the appeal. In
addition to repeating the arguments contained in his attorney's
brief, the pro se brief argued that (1) the conspiracy count
was duplicitous, (2) there was insufficient evidence to support
conviction under Sections 2422(a) and 2423(a), and (3) all
evidence obtained as a result of kidnapping charges that were
later recanted should have been suppressed. On March 21, 2002,
the Court of Appeals denied both of the brothers' appeals. See
United States v. Griffith, 284 F.3d 338 (2d Cir. 2002).
To prevail on a Section 2255 motion, the petitioner must
right to be released upon the ground that the
sentence was imposed in violation of the Constitution
or the laws of the United States, or that the court
was without jurisdiction to impose such a sentence,
or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to
28 U.S.C. § 2255 (2005). As a collateral action, Section 2255 is
not a substitute for direct appeal and claims raised on direct
appeal are procedurally barred. United States v. Sanin,
252 F.3d 79
, 83 (2d Cir. 1998). Reconsideration is only appropriate
where there is an intervening change in the law and the new law
would have exonerated a defendant had it been in place before the
conviction was affirmed on direct appeal. Id.
Section 2255 claims that were not raised on direct review are
also procedurally barred "unless they raise constitutional or
jurisdictional claims, or result in a `complete miscarriage of
justice.'" Johnson v. United States, 313 F.3d 815, 817 (2d Cir.
2002) (quoting Chin v. United States, 622 F.2d 1090, 1092 (2d
Cir. 1980). A petitioner who seeks to raise a claim in a Section
2255 motion that he did not raise on direct appeal must show
"cause and prejudice" or a "fundamental miscarriage of justice"
for his failure to do so. United States v. Frady, 456 U.S. 152,
165 (1982). To show "cause" the petitioner must demonstrate that he was prevented
from filing a direct appeal. Coleman v. Thompson, 501 U.S. 722,
752 (1991) (cause is "something external to the petitioner" which
"cannot be fairly attributed to him"). Similarly, "actual
prejudice" requires that a petitioner "establish that the errors
worked to his actual and substantial disadvantage, infecting his
entire [proceeding] with error of constitutional dimensions."
Torres v. Senkowski, 316 F.3d 147, 152 (2d Cir. 2003) (internal
marks and citations omitted).
B. Claims Previously Considered and Rejected on Appeal
Most of the Griffiths' thirty-three claims were previously
raised and considered on appeal and are thus barred ...