The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
Henry Lucifer Boone ("Petitioner"), proceeding pro se, brings this motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Petitioner argues that (1) his convictions on counts One and Two resulted from an unconstitutional constructive amendment of the Superseding Indictment, (2) the search that led to his arrest was unconstitutional, (3) his confession was coerced and both his trial and appellate counsel failed to raise this issue, (4) his conviction was obtained in violation of his Fifth Amendment right to a fair trial due to suppressed material evidence, and (5) the Government engaged in prosecutorial misconduct during its summation. (Petitioner's Mem. Supp. §2255 Mot.)
For the reasons set forth below, Petitioner's motion is denied.
On the morning of June 5, 2002, members of the Street Narcotics Enforcement Unit went to 1408 Webster Avenue, Apartment 14H in the Bronx to execute a search warrant. (Trial Tr. at 114.) Police officers were stationed in and around the apartment building, including two officers who were stationed in the courtyard below Apartment 14H. (Id. at 73, 116.) While officers from the Emergency Services Unit (the "ESU") were attempting to enter the apartment, one of the officers stationed in the courtyard saw several small blue objects coming from a window on the 14th floor. (Id. at 78.) These object turned out to be narcotics. Police officers recovered, in total, forty-seven blue "slabs" of crack cocaine from the courtyard. (Id. at 82-83.) After the ESU gained entry into Apartment 14H, Petitioner and his girlfriend Shakima Lopez were removed from the apartment (Id. at 125.)
During the search of the apartment, the police found, among other things, a loaded firearm with the serial number defaced, various ammunition, a plate, two razors, a straw with cocaine residue, drug packaging materials, a large bag of marijuana, and another bag containing smaller packets of marijuana (Id. at 125-60.) At the police precinct, Petitioner signed a written confession witnessed by two officers. (Id. at 195, 387.)
The Government filed a five-count indictment (S2 02 Cr. 1185) against Petitioner on November 6, 2003. Count One charged Boone with distributing and possessing with intent to distribute cocaine base (or "crack") in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(c) and 18 U.S.C. § 2. Count Two charged Petitioner with using and carrying a firearm during and in relation to a drug trafficking crime and with possessing a firearm in furtherance of such crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) and 18 U.S.C. § 2. Count Three charged Petitioner with possessing a firearm which had the serial number removed, obliterated or altered, in violation of 18 U.S.C. § 922(k) and 18 U.S.C. § 2. Count Four charged Petitioner with possessing a firearm following three prior convictions for violent felonies in violation of 18 U.S.C §§ 922(g)(1), 924(e) and 18 U.S.C § 2.*fn1 Count Five charged Petitioner with possessing ammunition following three prior convictions for violent felonies in violation of 18 U.S.C. §§ 922(g)(1), 924(e) and 18 U.S.C § 2.
Petitioner's trial commenced on November 10, 2003 and ended on November 18, 2003 when the jury returned a guilty verdict on all five counts of the indictment. On December 12, 2003, Petitioner filed a motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c) and for a new trial pursuant to Federal Rule of Criminal Procedure 33. Petitioner challenged the sufficiency of the evidence, claiming that the Government failed to present evidence legally sufficient to permit the jury to convict Petitioner of any count in the indictment. Upon its conclusion that the Government had presented sufficient evidence to sustain Petitioner's convictions, this Court denied Petitioner's motion on January 29, 2004. Petitioner was sentenced to a term of 324 months' imprisonment to be followed by five years of supervised release.
Petitioner appealed his conviction, raising four issues. Petitioner argued that (1) the Government had failed to prove his guilt beyond a reasonable doubt as to each count on which he was convicted, (2) the court erred in denying his motion to withdraw the aiding and abetting instruction (given initially without defense objection) from the jury during deliberations, (3) he received ineffective assistance of counsel because counsel failed to object timely to the aiding and abetting charge, and (4) he was sentenced in violation of his Sixth Amendment rights because the Court believed the Sentencing Guidelines were mandatory. The Second Circuit affirmed Petitioner's convictions on February 7, 2005. United States v. Boone, 120 Fed. Appx. 868 (2d Cir. 2005). The Second Circuit held that the Government had presented sufficient evidence to sustain Petitioner's conviction on all five counts, that the trial court did not err in charging the jury on aiding and abetting liability, and that Petitioner could not show a reasonable probability that but for his counsel's failure to timely object to the jury instruction, the result of the trial would have been different. Id. at 870-71.
The Second Circuit remanded to the district court for the purpose of determining whether to re-sentence Petitioner in light of United States v. Booker, 543 U.S. 220 (2005), and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). On May 2, 2006, Petitioner appeared before this Court for re-sentencing. Following oral arguments from both parties and hearing from Petitioner, this Court reduced Petitioner's prison sentence to the minimum mandatory sentence of 240 months.
In reviewing the instant petition, this Court is mindful that Petitioner is proceeding pro se. For this reason, Petitioner's submissions will be "liberally construed in his favor," Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)), and read "to raise the strongest arguments that they suggest," Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citation omitted).
Section 2255 of Title 28 of the United States Code provides, in pertinent part: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise ...