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GRIFFITH v. U.S.

October 6, 2005.

ANTHONY GRIFFITH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. CHRISTOPHER GRIFFITH, Petitioner, v. UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: HAROLD BAER JR., District Judge

OPINION & ORDER

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.

I. BACKGROUND

  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).

  II. DISCUSSION

  A. Standard of Review

  To prevail on a Section 2255 motion, the petitioner must demonstrate the

 
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 collateral attack.
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 ...


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