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Sanders v. United States

July 27, 2009

RASHEEN SANDERS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION AND ORDER

On November 2, 2005, petitioner pro se, Rasheen Sanders, was convicted by a jury before the undersigned of being a previously convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1)*fn1, namely, a Hi-Point.380 caliber semi-automatic pistol and ammunition. On February 9, 2006, Sanders was sentenced to a 92-month term of imprisonment followed by three years of supervised release. Presently before this Court is petitioner's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 on the following grounds:

(1) petitioner's trial counsel was constitutionally ineffective in violation of the Sixth Amendment; (2) irrelevant evidence was admitted at trial; (3) the Court improperly lowered the burden of proof in its jury charge; (4) the arresting officers did not have probable cause to arrest petitioner; (5) all evidence against petitioner was the fruit of an illegal arrest and thus erroneously admitted; (6) the arresting officer perjured himself at trial; (7) the government violated petitioner's rights under the Confrontation Clause of the Sixth Amendment by not calling two witnesses to testify; (8) petitioner's counsel violated petitioner's Sixth Amendment right to compel witnesses in his favor by failing to investigate and call the two witnesses to testify; (9) the prosecutor inappropriately vouched for the officers' credibility to the jury during closing remarks and rebuttal summation; and (10) petitioner's sentence was incorrectly calculated.*fn2 For the reasons stated below, the petition is denied.

BACKGROUND

The following facts are drawn from the parties' submissions in connection with this motion and the record from the underlying criminal proceedings.

Officer Kevin Rodgers testified at trial that at approximately 10:15 p.m. on June 11, 2005, he and his partner, Anthony Rivelli, were conducting a routine patrol in a van heading southbound on Sheffield Avenue when they heard multiple gunshots as they approached Dumont Avenue.*fn3 Tr. at 34, 36. Officer Rodgers advised Rivelli, who was driving the unmarked van, to drive to a residential building at the corner of Dumont Avenue and Williams Avenue where the officers had previously encountered disturbances. Tr. at 37. Before arriving at Williams Avenue, the officers stopped their van when they saw three men, including petitioner, running eastbound on Dumont Avenue. Tr. at 41.

The officers exited the vehicle and identified themselves as police to the three men. Tr. at 48. Two of the men, Antoine Singleton and William Juarbes, stopped, but petitioner increased his speed. Tr. at 49. Officer Rodgers chased petitioner and witnessed petitioner discard a firearm. Tr. at 51. The firearm discharged, but no one was injured. Tr. at 52-53. Officer Rodgers drew his weapon and ordered petitioner to stop running. Tr. at 53-54. Petitioner ran another 10-15 feet and stopped.

Tr. at 54. Officer Rodgers arrested petitioner and retrieved the gun and discharged shell casing. Tr. at 57. Singleton and Juarbes were also arrested. Tr. at 61. Singleton was charged with criminal possession of a weapon in the third degree for having a dagger on his person, but was not prosecuted. Tr. at 64. Juarbes was released without charges. Tr. at 64. Petitioner was arrested for violating New York Penal Law § 265.02(4)*fn4 and was ultimately charged with violating with 18 U.S.C. § 922(g)(1).

Petitioner's counsel spoke with Juarbes and Singleton, but did not call either of the men to testify at trial. Both had been served with subpoenas by the government at the request of petitioner's counsel and were present in court during trial. Government Brief, Exhibit A, Affidavit of Nicole Bellina at ¶ 2 (Nov. 19, 2007).

At summation, the prosecutor's closing remarks included the following:

Now, ask yourself how do you evaluate [Officer Rodgers'] credibility? That is your job. I can't tell you how to do it... If [Officer Rodgers'] story makes sense, it hangs together internally and if the evidence shows that, he has no reason to come in here and make up a story about that, then I submit that you can rely on what he told you... That's why you can trust what Kevin Rodgers told you because it is backed up, not only by the other testimony, but by the physical evidence as well... Ladies and gentlemen, I ask you to look at the evidence, look at the testimony...

Tr. at 223-229.

At the conclusion of the trial, the Court's instructions to the jury included the following: "[I]f... you do not find the defendant guilty beyond a reasonable doubt with respect to the accusation against him, then you should not hesitate to acquit." Tr. at 255. The jury deliberated briefly before indicating by note to the Court that the jurors were "roughly split" and that they had taken several rounds of votes, but it "[did] not appear the jurors are willing to vote differently without additional evidence." Tr. at 277. The Court delivered a supplemental charge emphasizing the importance of reaching a unanimous verdict and instructing the jury members to express to each other the "common sense reasons" behind their decisions instead of taking "a number of votes." Tr. at 277-281. After more deliberation, the jury returned with a guilty verdict. Tr. at 282.

Following the verdict, petitioner moved for a new trial under Rule 33 of the Federal Rules of Criminal Procedure on the ground that the Court's supplemental jury instruction was an improper and coercive modified Allen charge.*fn5 Cf. Allen v. United States, 164 U.S. 492, 501 (1896). On February 9, 2006, the Court denied the motion and sentenced petitioner to a 92-month term of imprisonment followed by three years of supervised release, adopting the recommendation of the Presentence Investigation Report ("PSR"), which placed petitioner in Criminal History Category V with a total of 12 Criminal History Points, including nine points from three prior felony convictions.*fn6 PSR at 7.

Petitioner appealed his sentence on the ground that the supplemental jury charge was a coercive Allen charge. On May 11, 2007, the Court of Appeals affirmed petitioner's sentence. United States v. Sanders, 232 Fed. Appx. 42, 44 (2d Cir. 2007).

DISCUSSION

Petitioner has moved pursuant to 28 U.S.C. § 2255*fn7 to vacate or correct the sentence imposed by this Court. Relief "is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in complete miscarriage of justice." Graziano v. U.S., 83 F.3d 587, 589 (2d Cir. 1996) (internal quotation marks and citation omitted).

I. Timeliness

28 U.S.C. § 2255(f)(1) requires § 2255 motions to be made within a one-year period of limitation that begins from "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). "[A] judgment of conviction becomes final for purposes of § 2255 when the Supreme Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." Burrell v. U.S., 467 F.3d 160, 164 (2d Cir. 2006) (internal quotation marks and citation omitted). Accordingly, petitioner's motion, filed October 3, ...


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