United States District Court, S.D. New York
OPINION & ORDER
SIDNEY H. STEIN, District Judge.
Guang Ju Lin, currently serving a sentence of life imprisonment for his convictions for racketeering and racketeering conspiracy, has moved pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The crux of Lin's motion asserts that he was deprived of the effective assistance of counsel because his attorney omitted, at trial and on direct appeal, arguments that Lin perceives as outcome-determinative. In reality, however, the trial record demonstrates that these arguments are meritless. Lin's attorney acted reasonably and did not prejudice his client's case when he did not raise with the Court the arguments that Lin now advances. The Court therefore denies Lin's motion.
In 2009, Lin was charged with a series of violent crimes perpetrated in his leadership role in a gang based in the Chinatown neighborhood of Manhattan. Specifically, he was charged with: (1) racketeering, (2) racketeering conspiracy, and (3) murder in aid of racketeering. (Indictment S3, Dkt. No. 74, returned May 24, 2011.) This Court presided over a three-week jury trial in June and July 2011.
The evidence at trial revealed that Lin held a leadership position in a Chinatown-based gang-a position variously called "Dai Lo" or "Ah Di"-in which he directed the activities of approximately twenty gang members. (Liu Tr. 119; see id. 121-23, 148-51, 235-36.) According to witnesses who testified at trial, the gang operated several illegal gambling parlors in Chinatown, which Lin either owned or helped operate. ( See, e.g., Liu Tr. 319; Yu Tr. 1524; Wittenberg Tr. 1860-64; Li Tr. 1236-37.)
The trial record includes extensive evidence concerning the racketeering acts charged in the indictment. First was the attempted murder of Jian Liu, known as "Jackie, " who led a rival Chinatown gang. (Logan Tr. 1445-47; Wittenberg Tr. 1895-98.) An FBI agent testified at trial that Lin confessed his involvement in this November 19, 2001 shooting. (Wittenberg Tr. 1895-1904.) According to Lin's confession, Jackie and his followers had embarrassed Lin and Ah Bo (Lin's fellow gang member) in a series of verbal and physical altercations, after which Lin's superior in the gang ordered him and Ah Bo to pursue Jackie. ( Id. at 1901-02.) The agent's recounting of Lin's confession revealed that after the gang leader provided handguns to Lin and Ah Bo, the two pursued Jackie to a Chinatown restaurant. ( Id. ) Outside the restaurant, Lin told the FBI agent, the two men aimed their handguns at Jackie while Jackie brandished a knife. ( Id. at 1902.) Four bullets were fired at Jackie, and Lin said that at least one bullet struck Jackie. ( Id. at 1902-03.) Lin told the FBI agent that Ah Bo fired all four bullets. ( Id. ) Lin and Ah Bo fled the scene together. ( Id. at 1903.) A follower of Lin testified at trial that Lin also confessed to him, with the added color that Lin attempted to fire his handgun but his gun jammed and failed to discharge. (Liu Tr. 265-67.)
The trial evidence also linked Lin to the December 11, 2001 murder of Daniel Cabezas. According to witness testimony and a surveillance video, Cabezas bested Lin in a physical altercation while Cabezas was working as a night club security guard. (Yee Tr. 871-73; GX 802.) Shortly afterward, Lin and a fellow gang member "rushed" Cabezas and several of Cabezas's associates (Yee Tr. 873), with Lin's gang colleague stabbing Cabezas to death ( id. ; see Wittenberg 1888-89, 1961, 1974).
After the Cabezas murder, Lin fled to Los Angeles where he organized a West Coast extension of his New York gang. (Liu Tr. 160, 406, 419; Yu Tr. 1548-49; Wittenberg Tr. 1918.) The testimony portrayed a flourishing bicoastal gang of murderous thugs, which, among other crimes, extorted bus and van drivers for protection money in New York City (Liu Tr. 120; Li Tr. 1310), distributed narcotics in New York and California (Liu Tr. 391-97, 550-52), operated illegal gambling parlors in Los Angeles (Liu Tr. 457-75; Lee Tr. 1097-1113), and attempted to rob a restaurant in Los Angeles using a knife and a fake handgun (Liu Tr. 609-16). Gang members testified at Lin's trial that Lin supervised and participated in these activities. (Liu Tr. 120, 513, 550-52, 609-16; Li Tr. 1303-06.)
The gang's activities went beyond the commercial, even extending to murder. According to members of Lin's gang in California, in the weeks preceding the death of another individual-Xui Kang Xiao-a member of Lin's gang named Alex told fellow gang members that Xiao had assaulted Alex and Alex's girlfriend. (Liu Tr. 492-94.) Alex also told fellow gang members that Xiao owed him money from a past insurance fraud they had undertaken together. (Liu Tr. 1707-08.) Fellow gang members testified that four of them, including Lin and Alex, met at Lin's home before driving to Xiao's home at night and entering Xiao's bedroom where he was asleep. (Liu Tr. 494-514; Liu Tr. 1722-23.) The witnesses explained that Xiao awoke and attempted to attack them, whereupon one gang member stabbed him. (Liu Tr. 512; Liu Tr. 1722.) Next, Xiao attempted to flee: as one of the gang members testified, Xiao "tried to get up but [Lin] keep kicking him, keep kicking him. Won't let him get up." (Liu Tr. 512-13.) Xiao eventually stood up and began to run away, at which time Alex shot him. ( Id. 513-16.)
The jury convicted Lin on Counts One and Two, which charged him with racketeering and racketeering conspiracy. With respect to Count One, the jury found that four charged racketeering acts had been proven beyond a reasonable doubt, namely: (1) the attempted murder of Jackie, (2) operation of illegal gambling enterprises, (3) narcotics trafficking, and (4) the murder of Xiao. It acquitted Lin on Count Three, which charged him with the Cabezas murder. This Court subsequently sentenced Lin to two concurrent life sentences.
Lin filed an appeal to the U.S. Court of Appeals for the Second Circuit. His appellate counsel identified two putative errors by this Court: first, in admitting evidence relating to the Xiao murder and failing to strike the relevant portions of the indictment, and second, in admitting recordings of ten telephone calls Lin made while incarcerated at the Metropolitan Correction Center ("MCC"). See United States v. Lin, 505 F.App'x 10, 12 (2d Cir. 2012).
On December 10, 2012, the Second Circuit affirmed Lin's convictions and sentence in a summary order. Id. With respect to the inclusion of the Xiao murder in the indictment and at trial, the Court of Appeals noted that the government added the murder to the indictment as a racketeering act "less than one month before the scheduled start of trial, " but it concluded that Lin neither made a showing of bad faith nor "attempt[ed] to cure the potential prejudice by moving for a reasonable continuance." Id. Accordingly, the court wrote that it could "see no reason... that the District Court should have dismissed the relevant portion of the  Indictment or excluded relevant evidence." Id. at 13. With respect to the MCC calls, the Second Circuit determined that Lin's statements were properly admitted as opposing party statements pursuant to Federal Rule of Evidence 801(d)(2)(A) and that this Court did not abuse its discretion when it declined to exclude them as unfairly prejudicial pursuant to Federal Rule of Evidence 403. Id. at 13-14.
Lin has now timely moved pro se pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the grounds of ineffective assistance of counsel at trial and on appeal. ( See Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody, Dkt. No. 1 ("Mot.").) Lin's motion comprises a litany of arguments that he insists his attorney should have pursued.
II. LEGAL STANDARDS
To establish ineffective assistance of counsel, a prisoner must demonstrate both that: (1) his counsel's performance was objectively unreasonable under professional standards prevailing at the time, and (2) his counsel's deficient performance resulted in prejudice to his case. See Strickland v. Washington, 466 U.S. 668, 587 (1984); Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009); see also Williams v. Taylor, 529 U.S. 362, 389 (2000) (applying Strickland standard to collateral appeal). Under the first prong, a prisoner must establish that his "counsel made errors so serious that counsel was not functioning as the counsel' guaranteed... by the Sixth Amendment." Strickland, 466 U.S. at 687; Massillon v. Conway, 574 F.Supp.2d 381, 393 (S.D.N.Y. 2008). There is a "strong presumption" that defense counsel's conduct fell within the broad spectrum of reasonable professional assistance. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (citing Strickland, 466 U.S. at 688-89). To satisfy the second prong, the defendant must show that "[t]here is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694; Massillon, 574 F.Supp.2d at 393-94.
In a petition challenging appellate counsel's representation, a prisoner must show that "counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker, " Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994), and that "there was a reasonable probability that [the omitted claim] would have been successful before the ...