United States District Court, W.D. New York
DECISION AND ORDER
DAVID G. LARIMER, District Judge.
On March 18, 2013, defendant Algernon Toole (sometimes referenced as "defendant" and at other times "Algernon") filed, pro se, a motion to vacate the judgment and conviction pursuant to 28 U.S.C. § 2255. This is Algernon's third attempt to vacate the judgment entered against him and his brother after a four-week jury trial concluding in the Spring of 2010. At sentencing on October 1, 2010, Algernon Toole was sentenced principally to a term of 240 months imprisonment, well below the range of 292-365 months suggested by the United States Sentencing Guidelines ("Guidelines").
Algernon and his brother Everette Toole filed direct appeals of their convictions, which were denied by the Second Circuit, by summary order (Dkt. #380) on December 23, 2011, 453 Fed.Appx. 74. Thereafter, Algernon and his brother moved before this Court for a new trial based on newly discovered evidence relative to one of the cooperating witnesses, Brian Leonard, who testified at trial against them. This Court denied the motion, 2012 WL 464219, and by summary order entered April 23, 2013 (Dkt. #396), 526 Fed.Appx. 80, the Second Circuit affirmed this Court's decision denying a new trial.
The only ground alleged in the pending motion to vacate is ineffective assistance of counsel. Algernon supplemented his motion by filing a memorandum of law (Dkt. #400) and the Government has filed a detailed, 65-page answer and memorandum of law in response to Algernon's motion (Dkt. #407).
The motion to vacate is denied. Defendant has failed to establish a constitutional violation based on ineffective assistance of counsel.
Algernon Toole raises a spate of matters which he claims constitute ineffective assistance of counsel. A careful review of the record and the claims made by Toole suggest otherwise. Whether considered separately or together, none of the matters raised by defendant constitute ineffective assistance of counsel.
First, as the Government notes in its answer (Dkt. #407), the evidence against the Tooles was very strong. As the Government notes in describing the evidence in detail, there were several coconspirators who testified for the Government and described in detail the Tooles' drug activity, including arranging shipments of drugs from Chicago, Illinois to Rochester, New York. There were tape recordings, physical evidence and very damaging testimony from the co-conspirators. On direct appeal, Everette Toole challenged the sufficiency of the evidence, but the Second Circuit rejected the claim, found there was sufficient evidence and recounted much of the evidence presented at trial which formed the basis for the conviction.
The matters raised by Algernon Toole which he claims constituted ineffective assistance of counsel pale when juxtaposed with the substantial evidence presented by the Government at the trial.
To obtain relief under § 2255, Algernon must establish that he was convicted in violation of the Constitution. The judgment of conviction carries a presumption of correctness and regularity.
Furthermore, the test is stringent when the movant relies on alleged ineffective assistance of counsel. There is a two-pronged test which was established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 686-87 (1984). The moving party must establish both that his counsel's performance fell below an objective standard of reasonableness and, also, that there was some demonstrated prejudice arising from the alleged deficient performance.
There is also a strong presumption that counsel's conduct falls within the wide range of reasonable and professional assistance. Questions of strategy are not grounds for finding ineffective assistance and the defendant must show that there is a reasonable probability that but for counsel's alleged errors the result of the proceeding would have been different.
In light of the strength of the Government's proof, I concur with the Government that it is difficult to conceive how the result would have been different but for the challenged conduct on the part of defense counsel. On that basis alone, I would deny the motion under § 2255; defendant Algernon Toole has simply failed to demonstrate prejudice relating to any of the matters that he raises in his pro se motion. In short, Algernon is unable to establish the requisite prejudice required under the Supreme Court's Strickland test.
The specific items raised by Algernon are all covered by the Government in its Answer. Many are belied by what actually occurred at trial and none form any basis for relief. It should also be noted, as the Government points out in its Answer, that there was significant activity and trial work performed by experienced defense counsel. Numerous motions were filed and counsel engaged in vigorous representation at trial, including lengthy ...