United States District Court, E.D. New York
Petitioner proceeds pro se.
Respondent is represented by Loretta E. Lynch, United States Attorney, Eastern District of New, East, Brooklyn, NY.
MEMORANDUM AND ORDER
JOSEPH F. BIANCO, District Judge.
Petitioner Terrance Barlow ("Barlow" or "petitioner") moves, pursuant to 28 U.S.C. § 2255, for an order vacating his November 23, 2010 judgment of conviction. In the alternative, Barlow requests an evidentiary hearing on the issues raised in the motion. Barlow asserts that his trial counsel provided ineffective assistance by (1) failing to request a mistrial after the mid-trial discovery of exculpatory testimony, and (2) entering into a stipulation with the government with respect to testimony about the location where the ammunition Barlow was charged with possessing was manufactured. For the reasons set forth below, the Court denies the motion its entirety and without an evidentiary hearing. It is evident from the face of the motion and the prior proceedings, including the direct appeal of Barlow's conviction, that Barlow is not entitled to relief.
On October 20, 2009, a jury convicted petitioner of being a felon in possession of ammunition in and affecting interstate commerce, in violation of 18 U.S.C. § 922(g). On November 20, 2009, Barlow moved for a new trial under Rule 33 of the Federal Rules of Criminal Procedure on three grounds: (1) the jury's verdict was against the weight of the evidence; (2) the prosecution violated its obligation under Brady v. Maryland, 373 U.S. 83 (1963), to disclose exculpatory and impeachment evidence in its possession; and (3) Barlow's Sixth Amendment right to a jury draw from a fair cross-section of the community was violated. On August 5, 2010, this Court denied that motion in its entirety. United States v. Barlow, 732 F.Supp.2d 1 (E.D.N.Y. 2010) [hereinafter Barlow 1 ]. On November 23, 2010, the Court sentenced Barlow to 72 months imprisonment, 3 years supervised release, and a $100 special assessment. On May 3, 2012, the Second Circuit affirmed the conviction. United States v. Barlow, 479 F.Appx. 372 (2d Cir. 2012) [hereinafter Barlow II]. Barlow filed a petition for writ of certiorari, which the Supreme Court summarily denied on November 26, 2012. Barlow v. United States, 133 S.Ct. 672 (2012).
Barlow's present motion largely is copyand-pasted from his post-conviction motion and direct appeal. For the sake of brevity, the Court refers the parties to the recitation of the underlying facts and issues in Barlow I, and only briefly summarizes relevant facts below. Barlow filed the instant motion on June 4, 2013. The government opposed on October 24, 2013. Barlow did not reply.
A. The Trial
The New York City Police ("NYPD") arrested Barlow on July 16, 2009. He was subsequently transferred to federal custody and indicted on August 18, 2009, on one count of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g). 18 U.S.C. § 922(g) has three elements: (1) the knowing possession of ammunition; (2) a prior felony conviction; and (3) the possession "being in or affecting" interstate commerce. United States v. Amante, 418 F.3d 220, 221 n.1 (2d Cir. 2005); see also 18 U.S.C. § 922(g). Trial began on October 13, 2009, after Barlow refused to waive speedy trial time.
In Barlow I, the Court held that the guilty verdict on the felon-in-possession of ammunition charge was not against the weight of the evidence. The government presented, inter alia, the following evidence to the jury: (1) the eyewitness testimony of Police Officer John Serdaros and Sergeant Vassilios Aidiniou that the loaded gun fell from Barlow's waistband during a brief struggle between Barlow and Officer Serdaros as they attempted to stop Barlow in response to a burglary in progress on July 16, 2009; (2) the testimony that the defendant orally confessed to Officer Serdaros that he possessed the firearm and then confessed, in writing, to Detective Roland Garcia that he possessed the gun in connection with the attempted burglary/robbery; and (3) a defense stipulation that the ammunition recovered from the firearm had been transported in interstate commerce and that the defendant had been convicted of a felony prior to July 16, 2009. Jermaine Jackson and Delon Joseph testified for Barlow. Jackson testified that while speaking with Serdaros at the scene, he "caught a glimpse" of an officer- not Serdaros-retrieving a gun from a heavyset individual, not Barlow. Joseph testified that Barlow was not the "big dude" upon whom the officers discovered the gun.
The Court concluded that the testimony of Jackson and Joseph, when considered in light of the entire trial record, did not support the conclusion that the verdict was against the weight of the evidence such that a new trial was required. There was more than sufficient basis, in light of the entire trial record, for the jury to rationally reject the testimony of the defense witnesses and, instead, credit the police testimony that the gun and ammunition belonged to Barlow. Although Barlow argued that the jury should have accepted the testimony of the defense witnesses over the police officers, Barlow had failed to demonstrate the "exceptional circumstances" that are required before a court will disturb the jury's credibility assessments, nor had he demonstrated that it would be a manifest injustice to let the jury's verdict stand. Based upon the government's cross-examination of the two defense witnesses, as well as the other proof at trial, the Court concluded that the jury could have rationally concluded that the defense witnesses' testimony should be rejected, inter alia, because they were not in a position to observe the defendant's arrest or because the testimony was based upon an honest, but erroneous, perception that the firearm was recovered from a second individual arrested on the street (an erroneous perception that may have been caused by Officer Serdaros assisting in the arrest of the second individual while he was still holding the gun that had fallen from defendant's waistband in his hand).
B. Interstate Commerce Stipulation
The parties stipulated that (1) Barlow had been convicted of a felony before July 16, 2009; (2) a police officer in the NYPD's Firearms Analysis Section would, if called to testify, testify that he received a.45 caliber Remington semi-automatic firearm and seven rounds of ammunition from Serdaros for ballistics testing on July 18, 2009, and that the rounds were made by an ammunition manufacturer named Federal Ammunition; and (3) an ATF agent, if called to testify, would testify that ammunition from Federal Ammunition is manufactured outside of New York and, therefore, had traveled in interstate commerce before July 16, 2009. (Motion, Docket No. 1, at 32-34.)
Barlow now argues that his conviction should be vacated because his trial counsel rendered ineffective assistance by agreeing to this stipulation without Barlow's knowledge or permission. Barlow also claims that the government had the burden to prove the interstate commerce ...