United States District Court, S.D. New York
THOMAS P. GRIESA, District Judge.
Petitioner Kevin Aller ("petitioner") moves, through counsel, to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner claims that he was deprived of his right to effective assistance of counsel in violation of the Fourth and Sixth Amendments. He also claims that, in imposing sentence, the district court violated his Fifth Amendment due process rights and his Sixth Amendment right to a jury trial.
For the reasons that follow, the motion is denied.
Petitioner was first indicted in 2000 for crimes allegedly committed as a member of a racketeering enterprise known as "Baby J's Crew." "Baby J's Crew" was headed by a man named Kevin McAllister. The enterprise distributed narcotics and committed many acts of violence.
The indictment was superseded several times. In May of 2003, petitioner was tried before a jury on six counts: (1) racketeering (18 U.S.C. §1962(c)); (2) conspiracy to commit racketeering (18 U.S.C. §1962(d)); (3) conspiracy to distribute narcotics (21 U.S.C. §812, 841(a) and (b)(l)(A)); (4) conspiracy to commit murder in aid of racketeering (18 U.S.C. §1959(a)(5)); (5) murder in aid of racketeering (18 U.S.C. §1959(a)(1) and (2)); and (6) murder while engaged in drug trafficking (21 U.S.C. §848(e)(1)(A)). On the murder-related counts, the Government argued that petitioner was involved in the murder of two men-Joseph Coppedge and Kiron Little-in connection with his membership in "Baby J's Crew." Petitioner was tried alone, as his original co-defendants did not proceed to trial, and a number of them cooperated against petitioner at trial.
The jury convicted petitioner on three counts: (1) RICO conspiracy, 18 U.S.C. § 1962(d) (Count Two), (2) narcotics conspiracy, 21 U.S.C. § 846 (Count Three), and (3) conspiracy to commit murder in aid of racketeering, 18 U.S.C. § 1959(a) (Count 4). However, the jury acquitted petitioner of Counts Five and Six, which alleged that he murdered Coppedge in connection with other criminal activity. The jury also failed to reach a verdict on the substantive RICO charge (Count One). Finally, the jury found petitioner responsible for distributing less than five grams of crack, as opposed to the more than five kilograms alleged in the indictment.
On September 26, 2003, District Judge John Martin sentenced petitioner to an aggregate prison term of 50 years. Defense counsel had urged the court to impose concurrent sentences, arguing that the "illegal conduct on which the RICO conspiracy was based encompassed both the narcotics conspiracy and the murder conspiracy, " and that petitioner merited a downward departure under United States v. Rahman, 189 F.3d 88 (2d Cir. 1999). (Pet. Br. at 23-27.) However, Judge Martin refused to depart downward, and reached a 50 year term of imprisonment by sentencing petitioner to consecutive, maximum terms of incarceration on each count of conviction: 20 years for RICO conspiracy (Count Two), 20 years for a narcotics conspiracy involving less than five grams of crack (Count Three), and 10 years for murder conspiracy (Count Four). In imposing sentence, Judge Martin stated: "The families of the murdered victims are entitled to feel that the life of their loved ones has been appropriately valued by the court, and to sentence the defendant at anything below the maximum under the guidelines would be to undervalue those lives that he has taken." (Pet. Br. at 26-27 (quoting 9/26/03 Transcript at 13).)
Petitioner appealed his conviction and sentence to the Court of Appeals for the Second Circuit. The Second Circuit rejected petitioner's claims of error, but ordered that the case be remanded to the district court pursuant to United States v. Booker, 543 U.S. 220 (2004) and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), for a determination as to whether petitioner should be re-sentenced. After Judge Martin retired, the case was reassigned to the undersigned.
This court proceeded with the Crosby remand by conducting a re-sentencing hearing. During the re-sentencing hearing, the court found that petitioner's Guidelines Offense Level was 43, which dictated a Guidelines sentence of life imprisonment. Because a life sentence could not be achieved on any individual count of conviction, the court noted that the imposition of a Guidelines sentence would require that the maximum sentences on the three counts of conviction run consecutively. (5/28/09 Tr. at 31.)
After reviewing the Section 3553 factors, including the nature of the offense, the court stated that it "was compelled to say that a guidelines' sentence here is consistent with the factors listed in Section 3553 and in no way inconsistent." (Id. at 31.) The court went on to describe one of the relevant offenses as the commission of murder, which was committed "in connection with the activities of a group or gang that was involved in the sale of narcotics." (Id. at 32.) The court also mentioned petitioner's background of personal hardship, but ultimately discounted it as a mitigating factor, given that "it was a voluntary thing to get involved in this gang, this group." (Id. ) The court also gave weight to the Government's claim that petitioner had engaged in post-conviction misconduct, noting that petitioner's behavior did "not give [the court] reassurance that deterrence of future criminal conduct will occur without a very substantial prison term." (Id. at 32.) The court ultimately imposed the same 50-year term of imprisonment that was previously imposed by Judge Martin: 20 years' imprisonment on Count Two, 20 years' imprisonment on Count Three, and 10 years' imprisonment on Count Four, with all sentences running consecutively. (Id. at 34.)
The court entered a judgment of conviction on May 28, 2009. Petitioner again appealed to the Second Circuit, through counsel, arguing that this court's sentence was substantively unreasonable, that this court failed to address the parsimony clause, and that petitioner's sentence was disproportionate to the sentences received by his co-defendants. Petitioner also filed a pro se brief to the Second Circuit, arguing that this court erred in calculating his base offense level. Petitioner argued that because he was acquitted on the substantive crime of murder, his offense level should not have been increased based on the fact that the conspiracy to commit murder in aid of racketeering actually resulted in the victim's death.
The Second Circuit affirmed this court's sentence. In so holding, the Second Circuit first stated that petitioner's sentence fell "comfortably within the range of permissible decisions, " because a district court "is not obliged to account for disparities among co-defendants in imposing a sentence, " and because petitioner was actually "not similarly situated to his co-defendants for various reasons-not the least of which is that appellant refused to cooperate with authorities and insisted on going to trial." United States v. Aller, 384 F.Appx. 34, 36 (2d Cir. petitioner's argument that this court erred in calculating petitioner's offense level, stating that it "is well settled that in the post- Booker world, a sentencing judge retains the authority to find facts relevant to sentencing by a preponderance of the evidence, even those of acquitted conduct, " and it was "therefore not improper for the court to rely on the fact that the conspiracy resulted in the death of a victim in calculating appellant's base offense level of 43." Id. (citing United States v. Vaughn, 430 F.3d 518, 525-27 (2d Cir. 2005)).
Petitioner then petitioned for writ of certiorari in the United States Supreme Court. The Supreme Court denied the writ on December 13, 2010. This petition followed.
A. Legal Standard for § 2255 Petitions
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal prisoner is entitled to habeas relief if "the sentence imposed was in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law." 28 U.S.C. § 2255(a). Relief under Section 2255 is available "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (citation omitted). "Where the petitioner... failed properly to raise his claim on direct review, the writ is available only if the petitioner establishes cause for the waiver and shows actual prejudice resulting from the alleged violation." Reed v. Farley, 512 U.S. 339, 354 (1994) (internal citation omitted).
The AEDPA provides that "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall... grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. § 2255(b). However, if it "plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion." Puglisi v. United States, 586 F.3d 209, 214 (2d Cir. 2009).
B. Legal Standard for Ineffective Assistance of Counsel Claims
Petitioners may raise ineffective assistance of counsel claims on collateral review. U.S. v. Tarbell, 728 F.3d 122 (2d Cir. 2013) ("[I]n most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance of counsel") (internal citation omitted). To state a claim for ineffective assistance of counsel, petitioner must show (1) deficient performance that was objectively unreasonable, and (2) prejudice such that the reliability of the outcome is put into question. Strickland v. Washington, 466 U.S. 668 (1984). Courts are not required to address both Strickland elements if the petitioner "makes an insufficient showing in one." Wynder v. Smith, No. 09 Civ. 4541 (LAP) (JLC), 2011 WL 70556, at *13 (S.D.N.Y. Jan. 10, 2011).
On a § 2255 petition, a "defendant seeking a hearing on an ineffective assistance of counsel claim need establish only that he has a plausible claim of ineffective assistance of counsel, not that he will necessarily succeed on the claim." Raysor v. U.S., 647 F.3d 491, 494 (2d Cir. 2011) (citing Puglisi, 586 F.3d at 213) (internal quotation marks omitted). The court must determine "whether, viewing the evidentiary proffers, where credible, and record in the light most favorable to the petitioner, the petitioner, who has the burden, may be able to establish at a hearing a prima facie case for relief. If material facts are in dispute, a hearing should usually be held, and relevant findings of facts made." Puglisi, 586 U.S. at 213. However, the court "need not assume the credibility of the factual assertions." Id. at 214. "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard." Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001).
Petitioner challenges his conviction and sentence on five grounds.
First, he argues that appellate counsel violated his Sixth Amendment right to effective assistance by failing to present a significant issue that had a stronger possibility of success on appeal than those issues that appellate counsel chose to pursue. Specifically, petitioner claims that appellate counsel should have focused on an alleged error by the court at the ...