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Gunn v. United States

United States District Court, S.D. New York

March 7, 2017

RODERICK GUNN, Petitioner,

          OPINION & ORDER

          WILLIAM H. PAULEY III, United States District Judge:

         Roderick 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.


         In 2002 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 485.)

         During 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.)

         In 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.)

         On the 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.)

         When 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.

         Wright 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.)

         In 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 37:11-16, 38:5-7.)

         Gunn 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).


         A 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.

         Pro 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. 2007)).


         This 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.[1]

         I. Factual and ...

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