United States District Court, E.D. New York
the Petitioner: ROBERT BOODIE, Pro Se United States
the Respondent: JAMES PATRICK LOONAM United States Attorney
MEMORANDUM & ORDER
FREDERIC BLOCK Senior United States District Judge
proceeding under 28 U.S.C. § 2255, petitioner
(“Boodie”) advances three claims: (1) his trial
counsel, Mark S. DeMarco (“DeMarco”) and Eric M.
Schlosser (“Schlosser”),  were constitutionally
ineffective for failing to file a motion to withdraw his plea
of guilty prior to his sentencing; (2) via a proposed
amendment to his petition, that his sentence contravenes
Johnson v. United States, 135 S.Ct. 2551 (2015); and
(3) that the Court should appoint counsel to represent him.
For the reasons set forth below, Boodie's petition
(“Petition”), motion to amend the petition
(“Motion”), and request for counsel are DENIED.
November 9, 2004, Boodie pled guilty to conspiracy to
distribute and possess with intent to distribute cocaine base
(Count One), conspiracy to commit robbery (Count Two), and
conspiracy to use interstate commerce facilities in the
commission of murder-for-hire (Count Three) in violation of
21 U.S.C. §§ 846 and 841(b)(1)(B)(iii), 18 U.S.C.
§ 1951, and 18 U.S.C. § 1958(a), respectively.
Almost nine years later, on September 27, 2013, Boodie was
sentenced to 360 months' imprisonment and five years'
supervised release. His conviction was affirmed on appeal.
See United States v. Boodie, 590 F. App'x 67 (2d
Ineffective Assistance of Counsel
prevail on his ineffective assistance claim, Boodie must
satisfy the familiar Strickland test by showing
“(1) that his attorney's performance fell below an
objective standard of reasonableness, and (2) that as a
result he suffered prejudice.” United States v.
Jones, 482 F.3d 60, 76 (2d Cir. 2006) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Either Strickland requirement may be used to dispose
of a claim. Strickland, 466 U.S. at 670. Prejudice
is shown if “there is a reasonable probability that,
but for counsel's unprofessional error, the outcome of
the proceeding would have been different.” Wiggins
v. Smith, 539 U.S. 510, 534 (2003).
the Petition bases Boodie's ineffectiveness claim on his
counsel's alleged failure to move to withdraw his plea,
Boodie must show a reasonable probability that the motion
would have been granted. See Gonzalez v. United
States, 722 F.3d 118, 130-33 (2d Cir. 2013). This
requires the petitoner to “show a fair and just reason
for requesting the withdrawal.” Fed. R. Crim. P.
11(d)(2)(B); see United States v. Quinones, 906 F.2d
924, 928-29 (2d Cir. 1990) (burden on petitioner to prove
“fair and just reason[s]”).
at the totality of the circumstances, none of the factors
typically considered by the Second Circuit favors a finding
of the kind of “fair and just reason” that Rule
11(d)(2)(B) requires. The first factor-whether defendant has
made an assertion of actual innocence, see United States
v. Lopez, 385 F.3d 245, 253-54 (2d Cir. 2004)-militates
against withdrawal. Boodie does not advance a claim of actual
innocence, see, e.g., Def.'s Sentencing Memo. at
1, 6-9; Sent. Tr. 9:2-11:10, 20:15-24, and conceded his guilt
during his plea allocution. See Plea Hr'g
19:11-20:21. At the time that he entered his plea, moreover,
he was seemingly concerned that there was a “chance
that he would be sentenced to life imprisonment.”
DeMarco Affirmation ¶¶ 5-8; see also Memo.
Supp. Petition at 4. Such “a change of heart” is
insufficient. Gonzalez, 970 F.2d at 1100.
second factor-that “a significant question about the
voluntariness of the original plea” reasonably exists,
Lopez, 385 F.3d at 354-is belied by the overall
record since Boodie's plea was entered into voluntarily
and freely. See Plea Tr. 20:15-21:10; Sent. Tr.
33:10-12. A trial court may rely upon a petitioner's
sworn statements made in open court, see United States v.
Logan, 845 F.Supp. 499, 512-13 (E.D.N.Y. 2012), rather
than a petitioner's post-dated self-serving statements,
see United States v. Juncal, 245 F.3d 166, 171 (2d
third and fourth factors also count against Boodie. First,
the length of time that had elapsed before Brodie challenged
the plea was about nine years. Courts have rejected
withdrawal applications when just months have passed.
See, e.g., United States v. Santos, 152 F.
App'x. 24, 26 (2d Cir. 2005) (eight months); United
States v. Grimes, 225 F.3d 254, 259 (2d Cir. 2000) (five
months). Lastly, by virtue of this same passage of time, the
government would likely suffer substantial prejudice,
see, e.g., United States v. Couto, 311 F.3d
179, 185 (2d Cir. 2002). The prosecution of Boodie's
co-conspirators' has ended, and the government would be
hard-pressed to retry the case, especially given the
likelihood of faded memories by its witnesses. This is
textbook prejudice. See Lopez, 385 F.3d at 254.
Viability of Boodie's Proposed Amendment
proposed amendment should be denied “for good reason,
” including futility. McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 200-01 (2d Cir. 2007).
Predicated solely on Johnson, Petitioner's
amended pleading would be legally insufficient and hence
futile for two reasons. First, Boodie's sentence fell
within the governing statutory range, one calculated without
reference to the Armed Career Criminal Act construed in
Johnson. See PSR ¶ 176; 21 U.S.C.
§ 841(b)(1)(B)(iii). Second, the sentence did ...