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Kevin O. Kelley v. United States of America

April 26, 2011


The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge


Kevin Kelley brings this petition pursuant to 28 U.S.C. § 2255 seeking to vacate, set aside, or correct the sentence imposed on him following his conviction for securities and wire fraud. He argues that his counsel was ineffective. The parties have consented to my presiding over all aspects of this case pursuant to 28 U.S.C. § 636(c). For the reasons that follow, the petition is denied.


Mr. Kelley was indicted on four counts of securities fraud and three counts of wire fraud in February of 2006. (Superseding Indictment ("S. Ind."), attached as Exh. B to Memorandum of Law of the United States of America in Opposition to the Motion ("Resp. Memo.")). The indictment alleged that the petitioner, a registered stock broker employed by Royal Alliance Associates ("Royal Alliance"), defrauded many of his clients by (1) encouraging them to invest in companies in which he held an undisclosed interest, (2) overstating the value of their holdings, and (3) misappropriating their money. (S. Ind.).

Prior to the start of trial, the petitioner's attorney, Richard Lind, asked the Honorable Kimba M. Wood, U.S.D.J., to recuse herself pursuant to 28 U.S.C. § 455(a) on the ground that her husband held shares in AIG, the parent company of Royal Alliance. (Order dated April 28, 2006; Transcript dated May 11, 2006 ("5/11/06 Tr."), attached as Exh. C to Resp. Memo., at 2-3). Judge Wood determined that recusal was not warranted because her husband's interest in AIG was extremely small and, moreover, it was not clear that AIG's and Mr. Kelley's interests were adverse. (5/11/06 Tr. at 4-5).

The Government presented thirteen witnesses at the petitioner's jury trial, the last of whom was Postal Inspector Richard Cinnamo, the agent assigned to the petitioner's case. (Memorandum of Law in Support of Petition for Habeas Corpus ("Pet. Memo.") at 6; Resp. Memo. at 1, 3). Mr. Cinnamo gave the jury an overview of Mr. Kelley's fraudulent activities, including at one point interpreting a financial document that showed a loss on one victim's investment. (Pet. Memo. at 6-7; Resp. Memo. at 3). Following the close of the Government's evidence, the defense presented two witnesses, including the petitioner. (Resp. Memo. at 3; Sentencing Transcript ("S. Tr.") at 40). On June 7, 2006, the jury returned a guilty verdict on all seven counts of the indictment. (Resp. Memo. at 5).

In preparation for sentencing, Probation Officer Claude Jean-Baptiste prepared a pre-sentence report to which both the Government and Mr. Lind filed objections. (Letter of Richard B. Lind dated Sept. 26, 2006 ("9/26/06 Lind Letter"); Letter of Steven Feldman dated Aug. 28, 2006, attached as Exh. A to 9/26/06 Lind Letter). Among other objections, Mr. Lind challenged Mr. Jean-Baptiste's recommendation that Judge Wood apply the 2006 version of the United States Sentencing Commission Guidelines Manual (the "2006 Manual") to calculate Mr. Kelley's sentence. (9/26/06 Lind Letter at 2-3). He argued that application of the 2006 Manual would violate the Ex Post Facto Clause of the Constitution, art. I, § 9, cl. 3, because the behavior underlying three of the counts on which the petitioner was convicted had occurred in 2000, at which time an earlier version of the Guidelines Manual (the "2000 Manual") was in effect. (9/26/06 Lind Letter at 2). Relying on United States v.Keller, 58 F.3d 884 (2d Cir. 1995), Mr. Lind proposed that Judge Wood avoid the Ex Post Facto Clause problem by using the 2000 Manual to calculate the sentence for all seven of the counts on which the petitioner was convicted. (9/26/06 Lind Letter at 2-3).

In response to Mr. Lind's objections, which were submitted to Judge Wood as well as to Mr. Jean-Baptiste, Assistant United States Attorney Steven Feldman wrote a letter to Judge Wood on behalf of the Government, arguing that use of the 2006 Manual to calculate the entirety of the petitioner's sentence did not violate the Ex Post Facto Clause. (Letter of Steven D. Feldman dated Oct. 4, 2006 ("Feldman Letter") at 7-10; 9/26/06 Lind Letter at 14). Mr. Lind replied by letter, again arguing that application of the 2006 Manual to all the counts of the conviction would violate Mr. Kelley's constitutional rights. (Letter of Richard B. Lind dated Oct. 9, 2006 ("10/9/06 Lind Letter") at 2). In this second letter, however, Mr. Lind suggested that Judge Wood might also avoid the Ex Post Facto Clause problem by adopting a hybrid approach, using the 2000 Manual to calculate the sentence for those counts on which the underlying behavior stopped in 2000 and the 2006 Manual for the remaining counts (the "hybrid approach"). (10/9/06 Lind Letter at 2); see also, e.g., United States v. Johnson, Nos. 97 CR 206, 98 CR 160, 1999 WL 395381, at *10-11 (N.D.N.Y. June 4, 1999), aff'd, 221F.3d 83 (2d Cir. 2000), superseded, United States v. Kumar, 617 F.3d 612 (2d Cir. 2010).

Judge Wood addressed the parties' Ex Post Facto Clause arguments at the sentencing hearing on November 8, 2006. (S. Tr. at 1). After confirming that she had received and reviewed both attorneys' letters, she decided to adopt the hybrid approach, using "the earlier guidelines for the earlier conduct, and the more recent guidelines for the more recent conduct." (S. Tr. at 3, 18, 30, 34). This approach yielded a sentencing guideline range of 168 to 210 months' imprisonment. (Resp. Memo. at 5). Judge Wood then imposed a prison term of 170 months. (S. Tr. at 42).

Mr. Kelley appealed his conviction and sentence to the Court of Appeals for the Second Circuit, where Mr. Lind appeared on his behalf. United States v. Kelley, 305 Fed. Appx. 705, 706 (2d Cir. 2009). Among the various grounds raised on appeal, the petitioner argued that Mr. Cinnamo gave inappropriate expert testimony and that Judge Wood's use of the hybrid approach violated the Ex Post Facto Clause. Id. at 708-09. The Court of Appeals rejected all of Mr. Kelley's arguments and affirmed his conviction and sentence. Id. at 711. This petition followed.


A. Ineffective Assistance of Counsel The petitioner alleges that he received ineffective assistance of his trial and appellate counsel because Mr. Lind (1) failed to object properly to Mr. Cinnamo's testimony, (2) "failed to adequately prepare" for Mr. Cinnamo's testimony, (3) "opened the door" to the hybrid approach Judge Wood employed in calculating his sentence, (4) failed to appeal Judge Wood's decision not to recuse herself, (5) failed to argue against the entry of a temporary restraining order ("TRO") in a related civil case, and (6) failed to provide information to the sentencing court that would have led to a reduction in his sentence. I will address each of these arguments in turn.

1. Legal Standard

A criminal defendant's claim that he received ineffective assistance of trial or appellate counsel is analyzed according to the principles set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Ortiz v. Artuz, No. 06 Civ. 6444, 2010 WL 3238994, at *2 (S.D.N.Y. Aug. 11, 2010) (citing Smith v. Robbins, 528 U.S. 259, 285 (2000), and Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001)). Under this test, a petitioner must demonstrate (1) that the representation he received "fell below an objective standard of reasonableness," Strickland, 466 U.S. at 688, and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694; accord United States v. De La Pava, 268 F.3d 157, 163 (2d Cir. 2001). When reviewing counsel's performance, a court should be "highly deferential" and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable ...

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