United States District Court, S.D. New York
OPINION & ORDER
WILLIAM H. PAULEY III, United States District Judge:
Gunn moves pro se for habeas relief pursuant to 28
U.S.C. § 2255. Gunn argues that his criminal convictions
should be vacated because they were contrary to the weight of
the evidence, resulted from the ineffective assistance of
counsel, and amounted to violations of his constitutional
rights. On June 23, 2016, the Federal Defenders of New York,
Inc. filed a placeholder habeas petition on behalf of Gunn in
connection with the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015).
That action is stayed pursuant to the Southern District's
standing order for Johnson petitions. See Gunn
v. United States, No. 16-CV-4887. Accordingly, this
Opinion & Order addresses all of the issues raised by
Gunn in Case Number 14-CV-3228. For the reasons that follow,
Gunn's pro se petition is denied.
and 2003, Roderick Gunn, Alton Davis, and Derrilyn Needham
were part of a violent armed robbery crew that targeted drug
dealers. (Trial Transcript at 375-78, 399- 402, 454-55, 458,
461-62, 470-71, 473-80, 483-87, 767-72 (“Trial
Tr.”).) In 2002, acting on a tip from a drug
dealer's girlfriend, they stole approximately $49, 000
from a home. (Trial Tr. at 465-68.) Subsequently, they also
attempted to rob a beauty parlor owned by a drug dealer who
was stockpiling cash. (Trial Tr. 471-81.) Later that year,
Davis and Needham stole $1, 000, 000 from a drug dealer in
Maryland. (Trial Tr. at 487-88.) Gunn was originally part of
that plan, but declined to participate on the day the group
set out for Maryland to commit the robbery. (Trial Tr. at
the fall of 2002, Gunn asked Needham to help him locate a
drug dealer named Robert Deleon a/k/a “Bobby
Sox.” (Trial Tr. at 375.) Needham found Deleon in the
Bronx, recorded his license-plate number, and traced it to an
address in Elmont, New York. (Trial Tr. at 376-78.) Gunn
scouted out the Elmont home in preparation for the robbery
and asked Needham to contact Davis. (Trial Tr. at 381-84.) On
October 31, 2002, Davis proceeded to Elmont as planned, but
Gunn did not appear. (Trial Tr. at 384-86.) Nonetheless,
Davis followed Deleon's young daughter into the home. A
gunfight ensued. Deleon wounded Davis and then ran out of the
house and down the street. (Trial Tr. at 246-47, 387-88,
394-95.) Davis pried open the bedroom door where Deleon's
wife-Stephanie Laing-and Deleon's mother were hiding.
(Trial Tr. at 109-11.) Davis shot and killed Laing. When his
gun jammed, Davis fled the scene. (Trial Tr. at 109-12.)
January 2003, Gunn, Davis, and Needham agreed to rob Gary
Grey, a drug dealer living on Wickham Avenue in the Bronx.
(Trial Tr. at 399-401.) At the time, Davis's 15-year-old
niece, Petrianne Aldridge, was dating Grey. She told Davis
that Grey was storing large amounts of cash in his apartment
safe. (Trial Tr. at 399-400, 714, 755.) Fearing that Grey
might retaliate against his niece, Davis told Needham the
night before the robbery that he intended to kill Grey.
(Trial Tr. at 403.) Needham called Gunn and explained the
plan. (Trial Tr. at 402- 03, 703-04, 1439.)
day of the robbery, Aldridge let Gunn and Davis into
Grey's apartment, where they waited for him to return.
(Trial Tr. at 402-04.) However, Mark Wright, a man who was
staying with Grey, returned home first. (Trial Tr. at
1170-73.) Gunn and Davis hit Wright on the head, bound his
hands and feet with plastic ties, and asked where the money
was hidden. (Trial Tr. at 1170-73.) Ronald Knibbs, another
participant in the robbery crew, arrived at Grey's
apartment and began searching for the money. (Trial Tr. at
412, 753, 757, 1177.)
Grey arrived, Davis and Gunn beat him and tied him up. (Trial
Tr. at 1175-76.) Gunn found a handgun that Grey was carrying
and gave it to Davis. (Trial Tr. at 757.) Grey opened the
safe, explaining that it was empty because he had used the
money to buy more marijuana. (Trial Tr. at 758-59.) Davis
called Needham to explain the situation, and told Needham and
Knibbs to go to the apartment of Grey's girlfriend to
search for the money. (Trial Tr. at 414, 424-25, 869.) There,
the robbers found approximately $3, 000 in a water bottle.
complained to Davis that the ties around his hands and feet
were too tight. (Trial Tr. at 1178.) Davis attempted to
replace them. When Davis began to adjust them, Grey attempted
to break free. (Trial Tr. at 1178-79.) During the melee,
Wright managed to escape from the house. (Trial Tr. at
1178-79.) Davis then executed Grey with Grey's own gun.
(Trial Tr. at 1179, 1182, 431-32.)
2006, the Government indicted Gunn, Davis, Needham, and
Knibbs, charging them with conspiring and attempting to
commit the robberies, carrying and discharging firearms
during the robberies, and conspiring to distribute marijuana.
Gunn was convicted on Counts One, Three, Six, Seven, and
Eight. Gunn was sentenced to life in prison and lifetime
supervised release. (August 20, 2010 Sentencing Transcript at
challenged his convictions and sentence in post-trial motions
and in an appeal to the Second Circuit, which affirmed the
convictions and sentence in its entirety. See United
States v. Davis, 689 F.3d 179 (2d Cir. 2012), cert
denied, 133 S.Ct. 1296 (2013); United States v.
Davis, 491 F. App'x 219 (2d Cir. 2012), cert
denied, 133 S.Ct. 1296 (2013).
prisoner may seek collateral review of a federal conviction
or sentence that was “imposed in violation of the
Constitution or laws of the United States.” 28 U.S.C.
§ 2255. Because collateral challenges conflict with
“society's strong interest in the finality of
criminal convictions, ” courts have established a high
bar for defendants “to upset a conviction on a
collateral, as opposed to direct, attack.” Yick Man
Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010).
Petitioners are barred by the “so-called mandate
rule” from “re-litigation of issues already
decided on direct appeal, ” including any issues
“impliedly resolved by the appellate court's
mandate.” Yick Man Mui, 614 F.3d at 53.
Additionally, any claim that the petitioner failed to assert
on direct appeal is procedurally defaulted absent a showing
of either (1) “cause” and “actual
prejudice” or (2) “actual innocence.”
Bousley v. United States, 523 U.S. 614, 622 (1998).
“[A]ctual innocence” means that the petitioner
“in fact [did] not commit the crimes on which the
calculation or imposition of [his] sentence was based.”
Campos v. Superintendent of Gowanda, No. 11-cv-3619,
2013 WL 106017, at *3 (S.D.N.Y. Jan. 7, 2013) (quoting
Poindexter v. Nash, 333 F.3d 372, 381 (2d Cir.
2003)). And “technical” legal arguments do not
establish “actual innocence.” Campos,
2013 WL 106017, at *3 (citing Poindexter, 333 F.3d
at 380). An “important exception” to the
procedural default rule is that “a petitioner may bring
an ineffective assistance of counsel claim whether or not the
petitioner could have raised the claim on direct
appeal.” Yick Man Mui, 614 F.3d at 50.
se submissions are held to “less stringent
standards” than submissions drafted by attorneys.
Bey v. City of White Plains, No. 10-civ-1887, 2011
WL 6019360, at *3 (S.D.N.Y. Nov. 15, 2011) (quoting
Haines v. Kerner, 404 U.S. 519, 520 (1972)). This
Court therefore “liberally construes” Gunn's
pleadings “to raise the strongest arguments they
suggest.” Bey, 2011 WL 6019360, at *3 (quoting
Berlin v. United States, 478 F.3d 489, 491 (2d Cir.
Court distills five arguments from Gunn's petition: (1)
that Gunn is factually and legally innocent of the charges;
(2) that his trial counsel was ineffective; (3) that his
due-process and Sixth Amendment rights were violated; (4)
that his convictions under the Hobbs Act were
unconstitutional; and (5) that his firearms convictions
rested on an unconstitutionally vague statute.
Factual and ...