United States District Court, S.D. New York
SKENDER CAKONI, Petitioner.
UNITED STATES OF AMERICA, Respondent.
OPINION & ORDER
KATHERINE B. FORREST, District Judge.
Petitioner Skender Cakoni seeks to vacate, set aside, or correct his conviction and sentencing on drug conspiracy and firearm charges following a jury trial on June 23, 2011. On April 13, 2012, this Court sentenced Cakoni to a term of 200 months' incarceration, to be followed by eight years of supervised release. Cakoni appealed his conviction and sentencing, which the Second Circuit affirmed on August 22, 2013. United States v. Sejdaris, 534 Fed.App'x 23, 25 (2d Cir. 2013). On March 21, 2014, Cakoni filed the § 2255 habeas petition now before the Court. (ECF No. 1 ("Pet.").)
In his moving papers, most of which are devoted to summarizing the course of the earlier proceedings in this matter, Cakoni essentially argues that all the lawyers who represented him were ineffective at all of the stages of the proceedings below on account of basically all of the discretionary decisions they made. According to Cakoni, if only his counsel had been effective, he would have been acquitted, or would have been given a lower sentence, or would have won a point on appeal to the Second Circuit. In other words, Cakoni's § 2255 petition is an attempt to take a second bite at the apple regarding nearly every issue that has been litigated or negotiated in this case. While the Court recognizes that Mr. Cakoni has been eminently respectful to the Court, and that he has worked diligently on his petition, it is wholly without merit, and for the reasons that follow it must be DENIED in its entirety.
At Cakoni's trial, which was presided over by Judge Holwell, the Government introduced evidence that from at least 2003 to 2007, Cakoni and his co-defendant, Plaurent Cela, were members of a large-scale Albanian marijuana trafficking organization headed by Parid Gjoka (the "Gjoka Crew"). The Government's proof at trial included the testimony of Gjoka, one of Gjoka's assistants, a member of the rival Krasniqi Organization, with which the Gjoka Crew had a violent feud, and various law enforcement officers. The Government also introduced evidence of trips to and from Canada by Gjoka Crew members, Western Union records documenting money transfers to drug suppliers in Canada, and phone records of calls amongst Gjoka Crew members and co-conspirators.
Cakoni's counsel at trial was Winston Lee, who has submitted a declaration. (Attorney's Declaration, 10-cr-464 ECF No. 454 ex. A ("Lee Decl.").) Lee's theory of the case was simple and straightforward: Cakoni was not a member of the Gjoka Crew, and the witnesses against him were lying. Cakoni's defense consisted primarily of cross-examination, particularly of Gjoka, who testified as a cooperating witness. Both the Government's and the defense's examination of Gjoka was extensive and thorough: in total, the parties' examination of Gjoka comprises over 600 pages of the trial transcript. (See Tr. 370-449, 469-662, 668-701, 712-925, 939-1030.) The jury returned guilty verdicts on both counts against both Cakoni and Cela (Tr. 1753-54.)
Following Cakoni's trial, Judge Holwell left the federal bench, and this case was reassigned to the undersigned. (10-cr-464 ECF No. 352.) At the beginning of Cakoni's sentencing proceeding, the Court indicated that it was considering an upward variance from the statutory minimum of 180 months' incarceration. (Sentencing Tr. 6.) The Court stated that in making its sentencing determination it was required by 18 U.S.C. § 3553(a) to consider the "history and characteristics of this particular defendant." (Sentencing Tr. 9.) Among these characteristics was the "possibility of recidivism, " to which it noted that a defendant's expression of "remorse" is relevant. (Sentencing Tr. 11-12.) The Court further noted that in considering whether Cakoni expressed remorse, it was mindful that Cakoni might reasonably have avoided making admissions of guilt during the sentencing proceeding to preserve points on appeal. (See Sentencing Tr. 12.)
After statements by counsel, Cakoni was given the opportunity to address the Court, which he did at length, despite some attempts by his counsel to convey to him that doing so was not in his best interest. (See Sentencing Tr. 16-44.) Cakoni claimed, inter alia, that he was "innocent of all these charges, " and that he "lost the trial because [he] was an Albanian." (Sentencing Tr. 27.) He also stated to the Court that every witness against him, including law enforcement witnesses, had lied, and that he "never in [his] life... bought, sold or even used marijuana." (Sentencing Tr. 40.) Cakoni's statement proceeded for over an hour and 28 pages of transcript. (See Sentencing Tr. 16-44.) It was filled with his theory of innocence.
In its remarks, the Court stated directly that it did not find Mr. Cakoni's statements credible. The Court listed the various factors that it took into account in determining an appropriate sentence, which included: (1) Cakoni's role as an enforcer of a violent drug-trafficking organization; (2) the harm from drug addiction and violence that resulted from Cakoni's involvement in drug trafficking; (3) the mortal danger posed by Cakoni's and his co-conspirators' use of firearms; (4) Cakoni's prior incarceration for a drug crime; and (5) Cakoni's lack of remorse. (Sentencing Tr. 45-50.) As to this last point, the Court stated:
It is important to this Court... that you still do not take any responsibility for the crimes for which you have been convicted. That, in fact, you pick on small pieces of inconsistencies to try to suggest that there is a widespread conspiracy to somehow put you in prison. This suggests... that society would be at risk of repeated criminal behavior from [you]... if you were released. It suggests that you don't understand the magnitude of what you have done, that in the face of truly overwhelming evidence of your guilt, you still believe that you can credibly say that you were innocent. Not taking responsibility for this crime and with the statements that you have made suggests personal character traits that can lead to recidivism and a continued danger to society.
(Sentencing Tr. 50.) The Court also noted Cakoni's positive characteristics, including his strong family and personal relationships, his intelligence, and his talents. (Sentencing Tr. 49-50.) After considering all of these factors, the Court sentenced Cakoni to 200 months' imprisonment. (Sentencing Tr. 53.)
Cakoni submitted two briefs on appeal: one written by his appellate counsel, and one he wrote himself. The counseled brief raises three points. (See United States v. Krasniqi (Cakoni), No. 12-1888 (2d Cir.), ECF No. 68 ("Counseled App. Br.").) First, it argues that the Court violated Cakoni's Fifth Amendment rights when it interpreted Cakoni's insistence that he was innocent during his sentencing proceeding as a lack of remorse, and then considered this as a relevant factor in determining Cakoni's sentence. (Counseled App. Br. at 43-55.) Second, it argues that this Court failed to follow the appropriate procedures in imposing an enhanced sentence as a result of Cakoni's prior felony drug offense. (See Counseled App. Br. at 55-61.) Third, it argued that the Court abused its discretion in permitting testimony about uncharged offenses, such as, inter alia, testimony that Cakoni loaned his car to Gjoka so that Gjoka could drive to Michigan to pick up a marijuana shipment. (Counseled App. Br. at 62-68.)
Cakoni's pro se appellate brief (United States v. Krasniqi (Cakoni), No. 12-186 (2d Cir.), ECF No. 171 ("Pro Se App. Br.")) raised two additional points. First, Cakoni argued that the Government constructively amended the indictment by presenting evidence of Cakoni's carrying or possession of a firearm at times other than the time period alleged in the firearm count, or alternatively presented the jury with a prejudicial variance because a single marijuana distribution conspiracy was charged while the evidence at trial demonstrated two separate conspiracies. (Pro Se App. Br. at 35-40.) Second, Cakoni argued that the Government engaged in multiple acts of prosecutorial misconduct, including making various unethical statements, violating a Rule 404(b) ruling, and eliciting perjury. (Pro Se App. Br. at 41-52.)
The Second Circuit rejected Cakoni's appeal in its entirety in a summary order, specifically noting that it had considered all of the arguments raised by Cakoni and his appellate counsel. Sejdaris, 534 Fed.App'x at 24-25.
II. LEGAL STANDARDS
A. Bar on Raising Issues That Were Raised Or Could Have Been Raised on Direct Appeal
"[A] Section 2255 petitioner may not relitigate questions which were raised and considered on direct appeal." Yick Man Mui v. United States, 614 F.3d 50, 55 (2d Cir. 2010) (internal quotation marks omitted). "This rule may not apply, however, where an intervening change in the law has taken place or where the issues were not raised at all on direct appeal due to ineffective assistance of counsel.'" Underwood v. United States, 15 F.3d 16, 18 (2d Cir. 1993) (quoting Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986) (per curiam)).
"In general, a defendant is barred from collaterally challenging a conviction under § 2255 on a ground that he failed to raise on direct appeal." United States v. Thorn, 659 F.3d 227, 231 (2d Cir. 2011). "An exception applies, however, if the defendant establishes (1) cause for the procedural default and ensuing prejudice or (2) actual innocence." Id. Ineffective assistance of counsel is cause for a procedural default. See Sapia v. United States, 433 F.3d 212, 217-18 (2d Cir. 2005); see also Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007) ("The rule does not generally apply to claims of ineffective assistance of counsel.").
B. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, a petitioner must show that (1) his or her counsel's performance "fell below an objective standard of reasonableness" measured under "prevailing professional norms, " and (2) he or she was prejudiced by counsel's deficient performance such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington. 466 U.S. 668, 687-88, 694 (1984). "This ...