The opinion of the court was delivered by: Sand, J.
Before the Court is Petitioner Leonardo Fairley's Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255, on remand from the Court of Appeals for the Second Circuit. The Second Circuit directed the Court to expand the factual record and issue a decision addressing "whether [Petitioner's] counsel was ineffective for failing to move for dismissal of the charges pursuant to the Speedy Trial Act [18 U.S.C. § 3161] . . . ." Fairley v. United States, No. 09-0669 (2d Cir. Jan. 25, 2010). Upon due consideration, the Court finds that there was no violation of the Speedy Trial Act that would have merited dismissal had such a motion been filed. Furthermore, the decision not to pursue the Speedy Trial motion was a deliberate, strategic decision made after careful discussion between Fairley and his attorney, Margaret Shalley.
In January 2006, Leonardo Fairley was arrested on charges relating to a series of gunpoint robberies committed in the Bronx between December 2005 and January 2006. While he ultimately pleaded guilty to seven robberies, during proffer sessions with the Government, Fairley admitted to robbing an additional 17 businesses over the course of his crime spree. Hr'g Tr. 60:7--14, Feb. 28, 2011.
Fairley targeted small, store-front businesses-several insurance brokerages and travel agencies, a jewelry store, and a convenience store-that were unlikely to have sophisticated security systems. Presentence Report ("PSR") at ¶¶ 12--25. In the course of the robberies, Fairley displayed a firearm and threatened to use it if victims did not cooperate. PSR ¶¶ 12--25 ("Do you want to die?") ("Tell me where the money is, or I'll shoot someone.") ("You better shut the fuck up before I knock out your teeth.") ("Calm down before I kill somebody here.") ("I'll put a bullet through your head."). Fairley engaged in physical violence, hitting a female employee on the head with his gun because she was talking on the phone, PSR ¶ 24, and punching a male store-owner in the mouth without provocation. PSR ¶ 20. He also humiliated his victims, forcing two male store-owners to remove their pants at gunpoint, PSR ¶¶ 20--21, and smacking a female employee's buttocks as he made her accompany him around the store at gunpoint. PSR ¶ 15.
Fairley was initially indicted on four robberies that took place on December 10, 15, and 27, 2005, and January 5, 2006. The evidence against Fairley at the time of his indictment on these robberies was strong. The owner of the get-away car used in a robbery on January 5, 2006, Roxanne Palmer, told police that Fairley and co-conspirator Joseph Brooks had used her car that day. Zornberg Decl. ¶ 34. Seven victims of the four charged robberies who were shown photo arrays containing Fairley's photo positively identified him as the perpetrator. Id. Following his arrest, six more victims of the four robberies positively identified Fairley in lineups as the robber, though two others were unable to positively identify Fairley. Id. ¶ 36.
The evidence continually grew stronger as the investigation progressed. At lineups corresponding to a fifth robbery on January 3, 2006, three additional robbery victims positively identified Fairley as the perpetrator. Id. ¶ 36. In mid-February, a fingerprint recovered from the change drawer inside a cash register at the charged robbery on December 15, 2005 was determined to belong to Fairley. Id.¶ 37. This conclusion was confirmed by a fingerprint expert hired by the defense. Shalley Decl. ¶ 44. The Government also discovered a video surveillance tape, taken from the scene of a sixth robbery on December 30, 2005, which clearly portrayed Fairley displaying a gun and rifling through the pockets of a customer in the store. Zornberg Decl. ¶ 40; Shalley Decl. ¶ 12. In October 2006, the Government secured the cooperation of Joseph Brooks, an accomplice during two armed robberies. Zornberg Decl. ¶ 38. At trial, Brooks would have testified that he and Fairley knew each other well and were both crack addicts, Id. ¶ 38(a); that Fairley recruited Brooks to act as a lookout during two armed robberies, Id.; that he helped Fairley to obtain a gun to use during a third robbery, Id.; that Fairley told Brooks that he targeted insurance stores because such stores were unlikely to have security cameras, Id. ¶ 38(b); that Brooks knew Dana Foster, with whom Fairley committed some of the robberies, Id.; that Brooks recruited Roxanne Palmer to drive the get-away car during one of the robberies, Id. ¶ 38(c); and that after Palmer warned Brooks that she had given Brooks' and Fairley's names to the police, he and Fairley began hiding from the police, Id. ¶ 38(d).
By the time the second superseding indictment was returned against Fairley, he was charged with 11 counts: one count of robbery conspiracy, five counts of robbery, and five gun counts. Zornberg Decl. Ex. 25 (S2 Indictment).
On January 20, 2006, Fairley was presented before a federal magistrate judge on a criminal complaint charging him with counts relating to four robberies. On January 30, 2006, Fairley was indicted on four counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and four counts of brandishing a firearm in furtherance of a robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Zornberg Decl. Ex. 1 (Indictment). Fairley was arraigned on February 1, 2006. With the parties' consent, the Court granted a Speedy Trial exclusion until the next scheduled conference on March 29, 2006 in order to permit discovery. Pretrial Conference ("PTC") Tr. 4:9--13, Feb. 1, 2006. Immediately thereafter, the Court endorsed the Government's written request for a Speedy Trial exclusion, finding the ends of justice would be served by such a continuance because it allowed the Government to produce discovery and the parties to continue discussing a pre-trial disposition of the matter. Zornberg Decl. Ex. 3.
On March 14, 2006, Richard Boulware, Fairley's court-appointed counsel, requested a four-week extension, an adjournment of the conference, and an "exclusion of time under the Speedy Trial Act until the rescheduled conference." Zornberg Decl. Ex. 5. The Court signed the attached proposed order and scheduled the conference for April 24, 2006. Zornberg Decl. Ex. 6 (Order, Mar. 15, 2006). However the proposed exclusion order contained a typographical error; it stated that time would be excluded through March 7, rather than April 24.
At a conference on April 6, 2006, Boulware sought to be relieved as counsel due to a conflict discovered by his office. The Court appointed Martin Geduldig to replace Boulware and granted Geduldig's request for additional time to file pretrial motions. PTC Tr. 2:10--4:6, Apr. 6, 2006. The parties consented to a Speedy Trial exclusion from April 7 until the next scheduled conference on April 27, Id. at 4:13--20, and the Court signed an Order finding the ends of justice were served by such an exclusion because it would "allow newly appointed counsel to, among other things, review discovery and consult with his client, and moreover, will allow the parties to discuss a possible disposition of this case." Zornberg Decl. Ex. 9 (Order, Apr. 10, 2006).
On April 10, 2006, the Government requested an adjournment and Speedy Trial exclusion in light of the superseding indictment it intended to file and the need to produce additional discovery regarding the new charges. The Court endorsed the letter and granted the exclusion until May 17, 2006. Zornberg Decl. Ex. 10. The superseding indictment was returned on April 13, 2006, adding an additional Hobbs Act robbery count and an additional § 924(c) gun count. Zornberg Decl. Ex. 11 (S1 Indictment).*fn1 Fairley was arraigned on the superseding indictment on April 20, 2006. At the arraignment, the parties again consented to ...