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Pannell v. United States

United States District Court, E.D. New York

April 15, 2014

Derrek PANNELL, Petitioner,
v.
United States of America, Respondent.

OPINION AND ORDER

NINA GERSHON, District Judge.

Petitioner Derek Pannell moves under 28 U.S.C. § 2255 to vacate his conviction and sentence. A jury found Pannell guilty of conspiracy to assault and rob employees of the United States Postal Service, robbery of the Postal Service, and unlawful use of a firearm. Pannell's judgment of conviction was filed on May 8, 2008. The evidence against Pannell, including the evidence that he was one of the robbers, was overwhelming. His conviction was affirmed on April 7, 2009. United States v. Pannell, 321 Fed.App'x 51 (2d Cir. 2009), cert. denied, 558 U.S. 1019 (2009).

Petitioner now asserts that his highly experienced trial and sentencing counsel were ineffective in three respects: trial counsel failed to seek dismissal of the Indictment on Speedy Trial Act grounds; trial counsel failed to move for suppression of pretrial identifications; and sentencing counsel failed to challenge sentencing enhancements on the ground that the enhancements violated the Sixth Amendment because the court, and not the jury, made the factual findings underlying the enhancements.

I. Timeliness of Petition

To begin with, the government argues that petitioner's motion for post-conviction relief is time-barred. As relevant here, a § 2255 motion must be brought within one year of "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). When a federal criminal defendant takes a direct appeal, the judgment of conviction becomes final for § 2255 purposes "when the time for filing a certiorari petition expires" or, if the defendant timely petitions for certiorari, when the Supreme Court "affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari." Clay v. United States, 537 U.S. 522, 527 (2003). Here, although petitioner's § 2255 motion was filed within one year of the Supreme Court's denial of his certiorari petition, the government argues that the motion is time-barred because the petition for certiorari itself was not timely filed.

A petition for certiorari "is timely when it is filed... within 90 days after entry of the judgment." Sup.Ct. R. 13.1. Accordingly, petitioner's time for seeking a writ of certiorari presumptively expired on July 6, 2009, ninety days after the Second Circuit entered judgment affirming his conviction, yet petitioner did not file his § 2255 motion until July 29, 2009. In his traverse, Pannell contends that he timely filed his certiorari petition, but that it was not docketed until a later date because the original petition did not comply with the Supreme Court's formatting rules. When a petition for certiorari suffers from a defect in form, a corrected petition "will be deemed timely" if submitted no more than 60 days after the date of a letter from the Clerk of the Supreme Court indicating the deficiency. Sup.Ct. R. 14.5. A review of the record, however, belies petitioner's contention: Pannell filed his petition for certiorari on July 29, 2009; the Clerk of the Supreme Court issued the letter of deficiency on August 5, 2009; and the corrected petition was filed on October 5, 2009. See Petition for Writ of Certiorari, Pannell v. United States, 558 U.S. 1019 (2009) (No. 09-424), 2009 WL 3236350; Aug. 5, 2009 Ltr. of Deficiency (attached to petitioner's traverse). Pannell did not take thisposition in his corrected certiorari petition itself; rather, there he represented that, after the Second Circuit entered judgment on April 7, 2009, he timely filed a petition for rehearing in the court of appeals, see Petition for Writ of Certiorari at 1, which would have extended the deadline for petitioning for certiorari, see Sup.Ct. R. 13.3. This assertion may explain why the Clerk of the Supreme Court filed Pannell's certiorari petition, given that the Supreme Court's rules provide that "[t]he Clerk will not file any petition for a writ of certiorari that is jurisdictionally out of time." Sup.Ct. R. 112. There is, however, no indication on the face of the Second Circuit docket that Pannell ever filed such a petition for rehearing, and he does not provide any supporting evidence with his traverse.

In any event, as will be seen, the petition is without merit.

II. Ineffectiveness of Counsel

To succeed on a claim of ineffective assistance of counsel, a petitioner must "show that counsel's representation fell below an objective standard of reasonableness, " that is, that "counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Judicial review of counsel's performance is "highly deferential, " and courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. A petitioner must also establish that "the deficient performance prejudiced the defense, " id. at 687, such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, " id. at 694.

Courts need not address both prongs of the Strickland analysis, as a petitioner must prove both unconstitutionally deficient performance and prejudice; a failure to make either showing will defeat an ineffectiveness of counsel claim. Accordingly, "there is no reason for a court deciding an ineffective assistance claim... to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697. "If it is easier to dispose of an infectiveness claim" on one of the components, without addressing the other, "that course should be followed." Id.

A. Failure to Seek Dismissal of the Indictment on Speedy Trial Grounds

Petitioner challenges the delay in starting the trial from March 29, 2007 to September 17, 2007. Upon review of the various grounds for continuances set forth in the record, a motion to dismiss the Indictment would not have been successful, and therefore counsel was not constitutionally ineffective in not making such a motion.

The reasons for each continuance were stated on the record and included the unavailability of defense counsel, either petitioner's or a co-defendant's, the pendency of motions, and the need for new counsel for petitioner to prepare for trial. Ultimately, when petitioner's appointed lawyer was substituted by another, so that the substituted lawyer could be available to testify at a scheduled pretrial hearing or the trial, the trial date was moved forward from October 2, 2007 to September 17, 2007 because new counsel was available on that date. See Dkt. Entry, United States v. Pannell, No. 1:06-cr-00578-NG (E.D.N.Y. July 19, 2007).

Petitioner correctly notes that the court did not expressly state the rubric "interests of justice" in granting the continuances; however, it is clear from the record that the court appreciated the need for a speedy trial, even offering to look for a different judge to try the case if counsel's schedule and the court's were incompatible, an offer petitioner's counsel rejected. See Transcript of May 4, 2007 Conf., attached as Ex. 7 to Govt's Response. And, had a motion to dismiss on speedy trial grounds been made, the court assuredly would have placed on the record the express finding that the ends of justice served by the granting of each continuance outweighed the best interests of the public and the defendant in a speedy trial, as required by (then) 18 U.S.C. § 3161(10(7). See Zedner v. United States, ...


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