The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge
(Xavier Williams) (Michael Williams) (Elijah Bobby Williams)
Xavier Williams ("Xavier"), Elijah Bobby Williams ("Bobby"), and Michael Williams ("Michael") (collectively "petitioners") all move to vacate, set aside, or correct their respective sentences pursuant to 28 U.S.C. § 2255. Each of the petitioners sets forth numerous claims of ineffective assistance by his respective counsel at trial and at sentencing. For the reasons that follow, all three petitions are denied.
All three petitioners were charged with operating a violent criminal organization that enriched its members by trafficking in cocaine and cocaine base in New York and Pennsylvania. Initially, and indeed until shortly before the trial of Bobby and Michael, the government sought the death penalty against all three defendants for their roles in a February 1996 triple homicide in Pennsylvania. After Xavier's counsel persuaded the government not to seek the death penalty against him, the cases were severed. Bobby and Michael were thus tried separately from Xavier on a superseding indictment that charged fifteen counts:
Ԝracketeering, in violation of 18 U.S.C. § 1962(c) (Count One); racketeering conspiracy, in violation of 18 U.S.C. § 1962(d) (Count Two); conspiracy to commit murder in aid of racketeering activity, in violation of 18 U.S.C. § 1959(a)(5) (Counts Three and Four)*fn2 ; murder in aid of racketeering activity, in violation of 18 U.S.C. §§ 2, 1959(a)(1) (Counts Five through Seven); conspiracy to distribute narcotics, in violation of 21 U.S.C. § 846 (Count Eight); murder while engaged in a narcotics conspiracy, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 848(e)(1)(A) (Counts Nine through Eleven); use of a firearm during and in relation to a drug trafficking crime or crime of violence (specifically, murder), in violation of 18 U.S.C. §§ 2, 924(j) (Counts Twelve through Fourteen); and conspiracy to launder money derived from narcotics trafficking, in violation of 18 U.S.C. § 1956(h) (Count Fifteen).
Because all three petitioners were initially indicted for death-eligible offenses, each was appointed two counsel, including one "learned in the law of capital cases." 18 U.S.C. § 3005.
On May 6, 2005, after a six-week trial, a jury returned separate verdicts for Bobby and Michael, finding Bobby guilty on all counts except Counts Three and Four, and Michael guilty on all counts except Count Four. The jury determined that neither Bobby nor Michael should receive the death penalty, and each was subsequently sentenced to life imprisonment on August 17, 2005.
After the conclusion of Bobby and Michael's trial, Xavier was tried separately on a superseding indictment charging fourteen counts that mirrored Bobby's and Michael's indictment through Count Thirteen, omitted one of the firearm counts, and charged the money laundering count as Count Fourteen instead of Count Fifteen. On July 6, 2005, after the close of the government's case at trial, this Court dismissed Counts Five, Six, Seven, Nine, Ten, Eleven, and Twelve upon the government's motion. As a result, Xavier ultimately faced seven counts in a redacted Superseding Indictment, which charged: racketeering, in violation of 18 U.S.C. § 1962(c) (Count One); racketeering
conspiracy, in violation of 18 U.S.C. § 1962(d) (Count Two); conspiracy to commit murder in aid of racketeering activity, in violation of 18 U.S.C. § 1959(a)(5) (Counts Three and Four); conspiracy to distribute and possess with intent to distribute narcotics, in violation of 21 U.S.C. § 846 (Count Five); use of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c) and 2 (Count Six); and conspiracy to launder money derived from narcotics trafficking, in violation of 18 U.S.C. § 1956(h) (Count Seven). On July 8, 2005, after a three-week trial, the jury found Xavier guilty on all remaining counts except Count Four. He was sentenced to life imprisonment on October 11, 2005.
On October 23, 2007 the Second Circuit affirmed Xavier's, Michael's and Bobby's convictions and sentences. United States v. Williams, No. 05-6036-cr, 2007 WL 3105760 (2d Cir. Oct. 23, 2007)(summary order); United States v. Williams, 506 F.3d 151 (2d Cir. 2007). Xavier and Bobby filed petitions for a writ of certiorari with the United States Supreme Court in January 2008. Both petitions were denied on February 19, 2008. Williams v. United States, 552 U.S. 1223 (2008)(Xavier); Williams v. United States, 552 U.S. 1224 (2008)(Bobby). Michael filed a petition for writ of certiorari to the Supreme Court in February 2008. His petition was denied on March 24, 2008. Williams v. United States, 552 U.S. 1290 (2008).
A claim of ineffective assistance of counsel is analyzed under the two-part standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a "defendant claiming ineffective assistance must (1) demonstrate that his counsel's performance 'fell below an objective standard of reasonableness' in light of 'prevailing professional norms,' and
(2) 'affirmatively prove prejudice' arising from counsel's allegedly deficient representation." United States v. Cohen, 427 F.3d 164, 167 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 688, 693). "[T]he burden rests on the accused to demonstrate a constitutional violation." United States v. Cronic, 466 U.S. 648, 658 (1984).
To satisfy the "performance" prong, "the record must demonstrate that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (quoting Strickland, 466 U.S. at 687) (internal quotation marks omitted). In carrying out this inquiry, "[j]udicial scrutiny of counsel's performance must be highly deferential" and the court should make every effort "to eliminate the distorting effects of hindsight." Strickland, 466 U.S. at 689. Indeed, the court should "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Brown v. Greene, 577 F.3d 107, 110 (2d Cir. 2009) (quoting Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001)) (internal quotation marks omitted). Counsel's omissions fall outside this range of reasonableness only if they "cannot be explained convincingly as resulting from a sound trial strategy, but instead arose from oversight, carelessness, ineptitude, or laziness." Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
To establish prejudice, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.; see also Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir. 2010); Mazzuca, 570 F.3d at 502; Lindstadt v. Keane, 239 F.3d 191, 204 (2d Cir. 2001).
In considering an ineffective assistance of counsel claim, the district court has discretion to determine whether an evidentiary hearing is required. 28 U.S.C. § 2255; Pham v. United States, 317 F.3d 178, 184 (2d Cir. 2003). The Second Circuit has stated that:
To warrant a hearing on an ineffective assistance of counsel claim, the defendant need establish only that he has a "plausible" claim of ineffective assistance of counsel, not that "he will necessarily succeed on the claim." Armienti v. United States, 234 F.3d 820, 823 (2d Cir. 2000). (quoting United States v. Tarricone, 996 F.2d 1414, 1418 (2d Cir. 1993)). Rule 4(b) of the Rules Governing § 2255 Proceedings further provides that "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion." Rules Governing § 2255 Proceedings for the United States District Courts, Rule 4(b), 281 U.S.C. foll. § 2255.
Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009).
Each petitioner raises more than ten ineffective assistance of counsel claims. Before discussing the individual claims of ineffective assistance, it is worth noting that it is hard to imagine a case where more effective assistance was provided at public expense. Each defendant was appointed two counsel, one each from the capital case panel who met the statutory requirement that they be "learned" in the law applicable to death penalty cases. Over one and a half million dollars of public funds were expended in their defense, not only on counsel, but on jury consultants, psychiatrists, psychologists, investigators, experts and mitigation specialists. Finally, as this judge can attest, all counsel represented these defendants with vigor, intelligence and dedication. Quite simply, these defendants not only did not receive ineffective assistance, they received highly effective assistance in the finest traditions of the American justice system. Nonetheless, we consider each claim in turn.*fn3
A petitioner's claim that defense counsel was ineffective in the context of plea negotiations is evaluated under the two- pronged Strickland test. See Pham, 317 F.3d at 182. "Defense counsel have a constitutional duty to give their clients professional advice on the crucial decision of whether to accept a plea offer from the government." Id. "Even if there might be circumstances where defense counsel need not render advice as to acceptance of a plea bargain, there can be no doubt that counsel must always communicate to the defendant the terms of any plea bargain offered by the prosecution." Id. (internal quotation marks and citations omitted). See also Roccisano v. Menifee, 293 F.3d 52, 60 (2d Cir. 2002) ("[D]efense counsel in a criminal case must advise his client of the merits of the government's case, of what plea counsel recommends, and of the likely results of a trial[.]").
"With respect to a claim that counsel's ineffective assistance led to the rejection of a plea offer that, properly informed, would have been accepted, a petitioner seeking a hearing must proffer arguably credible evidence of a prima facie case that, but for counsel's improper advice, the petitioner would have accepted the plea offer." Puglisi v. United States, 586 F.3d 209, 215 (2d Cir. 2009). "This may be accomplished through the petitioner's own sworn statement if it is credible in light of all the relevant circumstances . . . but 'a judge is well within his discretion in denying a petition when the supporting affidavit is insufficient on its face to warrant a hearing.'" Id. (quoting Dalli v. United States, 491 F.2d 758, 760 (2d Cir. 1974)); see also Purdy v. Zeldes, 337 F.3d 253, 259 (2d Cir. 2003).
The Second Circuit has stated that a petitioner's "self-serving post-conviction statement" that he would have pled had he received proper advice of counsel is usually not enough to satisfy the prejudice prong of the Strickland test. See United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998). Rather, a petitioner's statement must be accompanied by some other "objective evidence" that he likely would have pled differently. Id. The Second Circuit has recognized a "significant sentencing disparity" as an example of "objective evidence" that can warrant a hearing. See Puglisi, 586 F.3d at 216; see also Pham, 317 F.3d at 184.
In his September 4, 2009 affidavit, Xavier contends that his counsel "did not discuss plea bargaining with [him] or even attempt to negotiate a plea bargain with the government." Sept. 4, 2009 Affidavit of Xavier Williams ("XW Aff.") at 1. Xavier further contends that if counsel had discussed with him the "true risks of proceeding to trial versus pleading guilty, including the fact that [Xavier] would have received an acceptance of responsibility reduction at the very least," he would have entered a guilty plea. Id. at 1. Finally, Xavier states that "[i]f counsel had presented a proposed plea bargain to [him], [he] would have entered a guilty plea to the indictment." Id.
For the reasons discussed below, we find that Xavier's claims that his counsel (1) did not attempt to negotiate a plea bargain, and (2) did not communicate any potential bargain to him lack credibility. We also find that his claims are inconsistent with statements in his November 26, 2010 affidavit submitted to this Court. As a result, we find that Xavier's affidavits are "insufficient on [their] face to warrant a hearing." Puglisi, 586 F.3d at 215.
In an affidavit submitted to this Court on November 2, 2010, Xavier's counsel David Stern stated that he (and his co-counsel Michael Young) met with Assistant United States Attorneys ("AUSAs") Glen McGorty, Helen Cantwell, Richard Daddario, and Sharon McCarthy in May 2005 "in an effort to work out a plea acceptable to both sides." Nov. 2, 2010 Affirmation of David Stern ("Stern Aff."), at 1. Stern further stated that in the May 2005 meeting, the government offered a plea of thirty years imprisonment, and that after the meeting Stern and Young met with Xavier to discuss the plea offer. Id. According to Stern, he and Young told Xavier "the terms of the government's offer" and "gave him [their] advice and answered his questions concerning the matter." Id. at 1-2. Stern states that Xavier "decided to reject the plea offer and to proceed to trial." Id. at 2.
Stern's affidavit is consistent with the affidavit of AUSA McGorty. In his affidavit, AUSA McGorty states that a meeting between the government and Xavier's counsel took place on or about May 24, 2005 and that "at that meeting the parties discussed a possible resolution of the case prior to trial." April 26, 2010 Affirmation by Glen G. McGorty ("McGorty Aff."), at 2. McGorty further states that after the May 2005 meeting, the government spoke with Xavier's counsel and was advised that Xavier "would not be pleading guilty pursuant to any agreement with the Government, and would be proceeding to trial." Id.
We find that Xavier's declarations lack credibility for the following reasons. First, Xavier's statement that Stern "did not even attempt to negotiate a plea bargain with the government" (XW Aff. at 1) is directly contradicted by the affidavits of both Stern and AUSA McGorty, both of which detail a meeting at which a potential plea was discussed.
Second, Xavier's statement in his September 24, 2009 affidavit that prior to trial Stern "did not discuss plea-bargaining with him" (id. at 1) is inconsistent with his own affirmation that when he "met with Mr. Stern regarding any type of plea discussion, [he] asked Mr. Stern to tell the government he was willing to take 20 to 25 years. Mr. Stern stated that the government would not consider anything less than 40 to 50 years." Nov. 26 2010 Response to David Stern's Affidavit ("XW Response"), at 1. Xavier's position is also logically inconsistent with counsel's extended, persistent, and successful efforts to persuade the government to reverse its decision to seek the death penalty if Xavier was convicted on death eligible charges.
Third, had Xavier pled guilty to the indictment in order to obtain acceptance of responsibility points, as he claims he would have (see XW Aff.), he would have faced a mandatory life sentence for pleading guilty to Counts Five, Six, and Seven of the Indictment, which charged him with murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1). As noted above, these counts were not dismissed until July 6, 2005, after the close of the government's case at trial. Thus, Xavier's statement that he would have pled guilty to the indictment is neither credible nor supported by "objective evidence" of a "significant sentencing disparity." Puglisi, 586 F.3d at 216. Indeed, Xavier maintains that he was not involved with the murders and thus contends that he "would have entered a plea to the indictment without any involvement with murder or murder conspiracy if counsel would have negotiated such a deal." XW. Aff. at 3. However, that option was never available.
Fourth, even in his affirmation submitted in response to Stern's affidavit, Xavier does not state that he would have accepted an offer of thirty years; rather, he states that he told Stern to tell the government that he was willing to accept twenty-five years. Xavier's statement that "Mr. Stern stated that the government would not consider anything less than 40 to 50 years" (XW Reply Aff. at 1) is unsupported by anything in the record and lacks credibility under the circumstances.
Thus, while there is a disparity between the thirty year sentence that Stern stated the government offered and the life sentence that was ultimately imposed*fn4 , such a disparity does not warrant a hearing in this case because, in light of all the relevant circumstances, we accept Stern's affidavit that he presented the government's position to Xavier and provided legal advice on the issue, and find that Xavier's affidavits lack credibility. It is simply inconceivable that the same experienced lawyer who fought against the death penalty would have not fulfilled his obligations in the context of plea negotiations once the death penalty was off the table.
As the Second Circuit has stated, "[i]t may . . . be perfectly appropriate, depending upon the nature of the allegations, for the district court to proceed by requiring that the record be expanded to include letters, documentary evidence, and, in an appropriate case, even affidavits." Chang v. United States, 250 F.3d 79, 85-86 (2d Cir. 2001). Here, where we have considered affidavits from Xavier and AUSA McGorty, and expanded the record by requesting an affidavit from Xavier's counsel, we find that ruling on the basis of the affidavits is an appropriate "middle road that avoid[s] the delay, the needless expenditures of judicial resources, [and] the burden on trial counsel and the government" associated with a full hearing. Id. at 86. See also Crisci v. United States, 108 Fed. Appx. 25, 27 (2d Cir. Aug. 31, 2004); see also Brown v. United States, 03 CV 3909 (RJD), 03 CV 4371 (RJD), 2010 WL 2594040, at *12 ("A hearing at which each declarant merely reiterates his written submission will accomplish nothing.").*fn5
Federal Rule of Evidence 404(b) states in relevant part that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person . . . . It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . ." Bobby and Xavier each claim that their respective counsel provided ineffective assistance by failing to request a limiting instruction under Rule 404(b), either during the introduction of evidence or at the conclusion of trial.
Bobby contends that "[n]o 404(b) instruction was ever given to the jury" and that, as a result, he "was seriously prejudiced by counsel's error . . . ." BW Mem. at 6. Bobby's claim wholly lacks merit because this Court did in fact provide the jury with a limiting instruction, which stated the following:
You have heard evidence that on earlier occasions, the defendants engaged in conduct that was similar in nature to the conduct charged in the Indictment. Let me remind you that the defendants are only on trial for committing the acts alleged in the Indictment. Accordingly, you may not consider this evidence of similar acts as a substitute for proof that the defendants committed the crime charged. Nor may you consider this evidence as proof that the defendants have a criminal personality or bad character. This evidence was admitted for a more limited purpose, and you may consider it for that purpose only.
If you determine that the defendants committed the acts charged in the Indictment and the similar acts as well, then you may but need not draw an inference that in doing the acts charged in the Indictment, the defendants acted knowingly and intentionally and not because of some mistake, accident, or other reasons. Additionally, if you find that the defendants engaged in similar acts with other persons alleged to be members of the enterprise or conspiracies charged in the Indictment, you may consider those acts in deciding whether the conspiracy existed. If you find that the defendants engaged in the earlier acts and if you find that the earlier acts had sufficiently similar characteristics to those charged in the Indictment, then you may but need not infer that the acts charged in this Indictment and the earlier conduct were part of a common plan or scheme committed by the defendants.
Nevertheless, the evidence of similar conduct is to be considered by you only on the issues I have just described and not on any other issues. You may not consider such evidence for any other purposes. Specifically, you may not consider it as evidence that the defendant you are considering is of bad character or has a propensity to commit a crime.
This charge, which closely tracks Judge Sand's Modern Federal Jury Instructions (1 L. Sand, et al., Modern Federal Jury Instructions-Criminal at 5-71-76 (Instructions 5-26, 5-26) (2010)), was sufficient. In any event, a defendant is not entitled to have the exact language he may want read to the jury, so long as the charge actually given properly addresses the necessary legal issues. See, e.g., United States v. Russo, 74 F.3d 1383, 1393 (2d Cir. 1996).*fn6 Thus, defense counsel's decision not to object to the limiting instruction was not unreasonable and did not cause Bobby prejudice.
Xavier also contends that his counsel provided ineffective assistance by failing to obtain a 404(b) limiting instruction. XW. Mem. at 7-13. Xavier's claim is without merit because Xavier's counsel actually requested that this Court not issue a limiting instruction. See XW Tr. at 2247.*fn7 As the Second Circuit stated in Strickland, "[t]here are countless ways to provide effective assistance in any given case." Strickland, 466 U.S. at 689. Here, in light of the substantial evidence against Xavier, counsel's decision to not seek a limiting ...