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Tucker v. United States

September 24, 2012


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.


Petitioner Von Tucker, incarcerated and proceeding pro se, brings this collateral attack challenging his conviction pursuant to 28 U.S.C. § 2255 ("section 2255"). After an eight-day trial, the jury found Tucker guilty of four of the five offenses with which he was charged in the fifth Superseding Indictment, S5 05 CR 711. Tucker was charged with participating in a conspiracy to distribute at least fifty grams of cocaine base ("crack), in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846 ("Count One"); possession with intent to distribute at least five grams of crack in violation of Title 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) ("Count Two"); the murder of Kenneth Scott through the discharge of a firearm, in violation of Title 18 U.S.C. § 924(j) ("Count Three"); possession of a firearm in furtherance of the crack distribution conspiracy charged in Count One, in violation of Title 18 U.S.C. § 924(c) ("Count Four"); and the intentional murder of Kenneth Scott, in furtherance of the crack distribution conspiracy charged in Count One, in violation of Title 21 U.S.C. § 848(e)(1)(A) ("Count Five").*fn1

On February 6, 2008, the jury convicted Tucker on Counts One, Two, Four, and Five and acquitted him on Count Three. On August 7, 2009, this Court sentenced Tucker to 480 concurrent months imprisonment, to be followed by five years of supervised release. Tucker appealed his judgment of conviction to the Second Circuit on a single ground -- ineffective assistance of counsel at trial.*fn2 The Second Circuit declined to address this claim and affirmed the Court's judgment.*fn3

On September 9, 2011, Tucker filed a motion to vacate, set aside, or correct sentence pursuant to section 2255.*fn4 In his accompanying Memorandum of Law in Support of 28 U.S.C. [§] 2255 ("Def. Mem."), Tucker argues that his judgment of conviction should be reversed based on the following: (1) there was insufficient evidence to support the jury's guilty verdict; (2) he received ineffective assistance of counsel from his two trial attorneys; and (3) the Government committed prosecutorial misconduct by allowing one of its witnesses to commit perjury.*fn5 Tucker is currently serving his sentence at the United States Penitentiary at Big Sandy. For the following reasons, his Petition is denied.


A. The Offense Conduct

1. The Drug Trafficking Conspiracy

Beginning in late 2004, Shedret Whitehead and Ronald Allen successfully ran an organization that distributed crack out of an apartment located at 3355 Seymour Avenue in the Bronx.*fn6 Whitehead and Allen were the leaders of the organization which sold crack twenty-four hours per day, seven days per week, thereby generating thousands of dollars in revenue every day.*fn7 Tucker acted as the organization's principal "enforcer."*fn8 Other members of the conspiracy included Jameek Rich and Jadrien Smith, who also served as enforcers.*fn9 Beatrice Jones, Dana Curry, and Nathaniel Jones served as street-level retail sellers of crack.*fn10 As an enforcer, it was Tucker's job to protect the business from non-paying customers, rival drug dealers, and any other threats.*fn11 Of the three enforcers, Tucker was the person looked to the most for protection because of his physical stature, intimidating presence, and willingness to do anything Whitehead asked of him.*fn12

2. The Murder of Kenneth Scott

On the morning of May 6, 2005, Kenneth Scott robbed Whitehead's drug organization.*fn13 After gaining entry into the apartment at 3355 Seymour Avenue, Scott drew a gun on Beatrice Jones and Curry and demanded all of the crack and cash in the apartment.*fn14 Scott then left with the crack given to him by Beatrice Jones.*fn15 Beatrice Jones immediately called Whitehead and told him that Scott robbed them.*fn16 Whitehead was enraged and he immediately summoned Tucker, Allen, Rich, and Smith (collectively, the "conspirators") to the apartment at 3355 Seymour Avenue .*fn17 Whitehead expressed his outrage over the robbery and the fact that Scott had threatened the ongoing existence of his crack distribution operation.*fn18

During the meeting, Allen left and returned with a black handgun.*fn19

Whitehead told the conspirators: "We going to kill this guy. We going to kill him."*fn20 Whitehead then put the matter to a vote and all five conspirators voted in favor of murdering Scott.*fn21 Tucker volunteered to be Scott's executioner.*fn22 When the meeting ended, Tucker left carrying the gun in his sweatshirt.*fn23

Two days later, on May 8, 2005 (Mother's Day), Tucker and Whitehead murdered Scott.*fn24 After Whitehead learned of Scott's location, he and Tucker left in a light-colored van to look for Scott.*fn25 A witness to the murder, Ken Matthew, testified that a tan van pulled up next to Scott on the corner of Hicks Street and Seymour Avenue.*fn26 The shooter fired approximately thirteen shots at Scott from a single 9 millimeter, semiautomatic pistol.*fn27 Three of the bullets hit Scott and killed him.*fn28

B. The Trial and Jury Verdict

Trial commenced on January 1, 2008. At trial, defense counsel offered the following stipulation into evidence, which provided that: "Mr. Tucker was not within the confines of the City of New York at any time commencing January 2004 through March 25, 2005."*fn29 This stipulation, agreed to by the Government, contradicted Matthew's testimony that he had first met Tucker in New York City in the summer of 2004.*fn30 On February 6, 2008, after approximately two days of deliberations, Tucker was convicted of Counts One, Two, Four and Five, and acquitted of Count Three.*fn31

C. Tucker's Post-Trial Motion and Change in Counsel

Tucker was represented at trial by James LeBow and George Goltzer, both of whom were appointed pursuant to the Criminal Justice Act. Goltzer was initially appointed as "learned counsel" because Tucker was eligible for the death penalty. Although the Government elected not to seek the death penalty, Goltzer continued to represent Tucker at trial and thereafter.

On April 10, 2008, approximately two months after the trial ended, a representative from LeBow's office sent a letter to the Court.*fn32 The letter stated that LeBow was "very ill," had been hospitalized, and was "undergoing treatment in California."*fn33 For these reasons, LeBow was "unable to attend to his cases for an indefinite period of time."*fn34 The letter further stated that Goltzer was "prepared to proceed on his own as sole attorney for Mr. Tucker."*fn35 On August 28, 2008, LeBow was formally relieved as Tucker's counsel.

After Lebow's removal, Goltzer continued to represent Tucker. On May 2, 2008, Goltzer submitted a letter motion seeking a judgment of acquittal pursuant to Federal Rule of Criminal Procedure ("Rule") 29 as to Count Two and a new trial pursuant to Rule 33 as to the other counts of conviction.*fn36 In particular, Tucker argued that: (1) the Court should enter a judgment of acquittal on Count Two because the evidence was insufficient to support the jury's verdict on that count; (2) the Court should grant him a new trial on all counts of conviction because the jury's verdict was against the weight of the evidence; and (3) the Court should set aside the verdicts on Counts Four and Five because the jury's verdict of guilty as to those counts was inconsistent with its finding of not guilty as to Count Three. I rejected each of Tucker's arguments and denied the motion in a Memorandum Opinion and Order dated August 13, 2008.*fn37

In anticipation of Tucker's sentencing, Goltzer submitted a detailed sentencing memorandum on November 15, 2008. On November 18, 2008, Goltzer notified my Chambers that Tucker had physically assaulted him during a jail visit. On November 24, 2008, based on a concern that Goltzer might someday be required to testify against Tucker as to the assault, I relieved Goltzer as counsel and appointed Louis Freeman in his stead.

D. Tucker's Ineffective Assistance of Counsel Claim

On July 20, 2009, Tucker made a second motion to vacate his conviction on the ground that LeBow rendered ineffective assistance of counsel at trial.*fn38 Tucker moved, in the alternative, for a hearing on this issue.*fn39 At a conference held on July 23, 2009, I met with the parties to discuss whether sentencing should be delayed further to address Tucker's ineffective assistance of counsel claim.*fn40 During the conference, I advised defense counsel that Tucker's ineffective assistance claim should be raised through a section 2255 motion rather than a Rule 33 motion, which would have been untimely.*fn41 Defense counsel stated that the section 2255 route was acceptable to Tucker.*fn42 With regard to the merits of such a motion, I doubted whether Tucker would be able to establish prejudice from any alleged ineffectiveness on the part of LeBow because he had been ably represented throughout the trial by Goltzer.*fn43 I was also skeptical whether prejudice could be presumed on the ground that LeBow's conduct was so egregious that it infected the entire trial proceeding.*fn44 Defense counsel acknowledged that Goltzer took over a large percentage of the trial.*fn45

E. Tucker's Direct Appeal

Represented by Freeman on appeal, Tucker appealed his conviction and sentence to the Second Circuit. The sole issue raised on appeal was Lebow's alleged ineffective assistance of counsel.*fn46 Tucker argued that there was an "actual conflict of interest" because his trial counsel used drugs while representing him.*fn47
Tucker further argued that "his trial counsel committed at least five separate errors that prejudiced the outcome of his trial."*fn48 On September 24, 2010, the Second Circuit issued a Summary Order affirming the judgment of conviction. The Second Circuit refused to rule on Tucker's ineffective assistance claim. Expressing a "baseline aversion" to deciding such claims on direct review, the Second Circuit stated as follows:

Here, [defendant's] claim that his trial counsel abused drugs cannot properly be evaluated on the record before us; all of [defendant's] factual allegations in support of this claim are outside the record on appeal. [Defendant's] additional claims, the majority of which allege a failure by his trial counsel to interview and/or call as defense witnesses certain persons identified by [defendant] in preparation of trial, are similarly incapable of resolution. The trial record does not reflect these alleged errors of omission, and their potential effect (or lack ...

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