The opinion of the court was delivered by: John Gleeson, United States District Judge:
On June 24, 2009, Charles Victor was convicted after a jury trial of possession of ammunition and body armor by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 931(a). He was sentenced on November 20, 2009, principally to a nine-year prison term. His conviction and sentence were affirmed on September 29, 2010. United States v. Victor, 394 Fed. App'x 747 (2d Cir. 2010).
Victor now seeks relief from his conviction and sentence pursuant to 28 U.S.C. § 2255 on the ground that he received ineffective assistance of trial and appellate counsel. For the reasons set forth below, Victor's arguments have no merit, and his application for relief is denied.
At 9:00 in the evening of January 21, 2009, a snowy winter night, the police responded to an emergency call by going to 189 York Street in Brooklyn. The genesis of the call was the decision by Victor, who resided in the first floor of that address, to warm his pillows in the oven. Others lived in the building, and they understandably thought this was a bad idea and quite dangerous. When they confronted Victor with their objections, he reacted by threatening them with a firearm. That induced them to call 911.
When the police arrived they entered the house, a multi-story residence, through a shared entryway. They encountered four agitated people, including Victor, who were arguing in loud voices and gesticulating wildly. Two witnesses reported that they had argued with Victor (who was promptly surrounded by police officers) and that he had threatened them with a firearm he had retrieved from the backyard. The premises were so poorly lit that the police needed flashlights to see their way around. Pit bulls were heard growling and whining elsewhere in the building. To ensure that everyone in the building was accounted for, the police conducted a brief protective sweep of the first floor of the premises and in doing so observed a bulletproof vest protruding from a hall closet.
After the protective sweep, the police continued interviewing the witnesses, though they moved upstairs away from Victor, who remained on the first floor. The witnesses described Victor's insistence on warming his pillows in the oven and their objections, and they said Victor had run into the backyard of the home, returning with a weapon that he menaced them with. They said he had returned the firearm to the backyard before the police arrived. Two of the complaining witnesses were the landlords of the premises, and they consented to a search of the common areas of the building and the backyard.
Concerned about a possible ongoing fire hazard in the first-floor kitchen, the police returned there to make sure there were no pillows in Victor's oven. They proceeded directly (and only) to the kitchen. On their way they once again saw the bulletproof vest and also observed bullets in plain view in another room.
Finally, the police went out to the backyard, where they recovered a rifle from under a tarp at the end of a trail of footsteps that had been left in the snow. After finding the firearm, the police arrested Victor. The next day, based in substantial part on the observations they had made of the bulletproof vest and ammunition, they obtained and executed a search warrant for the basement and first floor of the premises, seizing bulletproof vests, a loaded high-capacity magazine, and about 60 rounds of different kinds of ammunition in various locations on the first floor of the house.
Trial counsel moved to suppress the various items seized pursuant to the search warrant. The arguments concerned the scope of the warrant and whether it satisfied the particularity requirements with respect to the places to be searched and the items to be seized. The motion was denied after an evidentiary hearing. I found there was no Fourth Amendment violation prior to the issuance of the warrant because it was lawful for the police to conduct the protective sweep upon their initial entry and to later check the oven to ensure there was no fire hazard. I also rejected the arguments directed at the provisions in the warrant and the execution of the search.
On June 24, 2009, after a jury trial, Victor was found guilty of Counts Two and Three of the indictment, which charged him with possessing the ammunition (Count Two) and the body armor (Count Three) recovered from the house while in the status of convicted felon, in violation of 18 U.S.C. §§ 922(g) and 931(a). However, the jury acquitted Victor of Count
One, which charged that he had unlawfully possessed the firearm recovered from under the tarp in the backyard.
Victor appealed his convictions and sentence to the United States Court of Appeals for the Second Circuit. Represented on appeal by the same lawyer who represented him at trial, Victor contended that the motion to suppress evidence seized from his home had been ...