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Roberts v. United States

United States District Court, E.D. New York

March 30, 2018

O'NEAL ROBERTS, pro se, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM & ORDER

          DORA L. IRIZARRY, CHIEF UNITED STATES DISTRICT JUDGE

         On January 10, 2013, pro se Petitioner O'Neal Roberts (“Petitioner”) filed this Petition[1]for a writ of habeas corpus, challenging his sentence pursuant to 28 U.S.C. § 2255. See generally, Dkt. Entry No. 1 (“Pet.”).

         On June 30, 2009, a jury convicted Petitioner after trial of two counts of conspiracy to import cocaine, one count of importing cocaine, and one count of attempting to distribute cocaine, in violation of 21 U.S.C. §§ 841, 846, 952, 960, and 963. (See generally, Dkt. 07-CR-425, Entry Nos. 117, 149.) On March 30, 2010, this Court sentenced Petitioner to 240 months' imprisonment on each count, to run concurrently. (See Id., Dkt. Entry No. 149.) On March 31, 2010, Petitioner appealed his conviction, which the Second Circuit Court of Appeals affirmed on September 29, 2011. (See Id. Notice of Appeal, Dkt. Entry No. 151; Judgment of USCA “Second Circuit Opinion, ” Dkt. Entry No. 164.) Upon Petitioner's motion to reduce his sentence, on October 29, 2015, the Court reduced Petitioner's sentence to 235 months' imprisonment. (See Id., Dkt. Entry Nos. 173, 178.)

         Petitioner now challenges his sentence based upon ineffective assistance of counsel against attorney John Moore, Esq., and insufficient evidence of guilt. (Pet. at 4-8.) On May 16, 2013, the government filed an opposition to the Petition. (See Opposition to Habeas Petition (“Opp.”), Dkt. Entry Nos. 7-17.) On August 30, 2013, Petitioner filed a reply in further support of the Petition. (See Petitioner's Reply (“Reply”), Dkt. Entry Nos. 24, 25.) For the reasons set forth below, the Petition is denied.

         BACKGROUND

         Petitioner was arrested on October 11, 2006 in connection with an investigation into the importation of cocaine on an American Airlines flight into John F. Kennedy Airport, while he was an American Airlines employee. (Opp. at 3.) Upon his arrest, United States Immigration and Customs Enforcement (“ICE”) agents interviewed Petitioner regarding the drug transactions in which he was involved. (Id. at 3-4.) Petitioner waived his Miranda rights prior to the commencement of the interview. (Id.)

         Following his arrest, Petitioner, accompanied by his attorney, John Moore, Esq. (“Moore”), met with the government for three proffer sessions, each time pursuant to a proffer agreement. (Id. at 4.) At these interviews, Petitioner admitted his involvement in the importation of cocaine on the American Airlines flight. (Id.)

         Subsequent to the three proffer sessions, Petitioner retained a new attorney. (Id. at 5.) Petitioner recanted his prior statements and filed a motion to suppress the statements made during the proffer sessions. (Id.) The Court held a two-day hearing on the motion. (Id. at 7.) Moore testified that he had discussed the proffer agreements in private with Petitioner. (Id. at 9.) Moore also testified that he had discussed with Petitioner the advantages and disadvantages of cooperating and entering into the proffer agreement. (Id.)

         In a memorandum and order dated March 13, 2009, the Court denied Petitioner's motion to suppress. (Dkt. 07-CR-425, Entry No. 52.) The Court made factual findings regarding the October 16, 2006 proffer session, including: (1) Petitioner was accompanied by Moore at the proffer session; (2) the government gave Petitioner and Moore time to review a proffer agreement in private; (3) Petitioner signed the proffer agreement; (4) the proffer agreement remained in place for the next two proffer sessions; (5) no law enforcement officers threatened Petitioner with job loss for failure to cooperate; and (6) no law enforcement officers questioned Petitioner until they read him his Miranda rights, explained his rights to him, and Petitioner voluntarily and knowingly waived his right to remain silent. (Id. at 15.)

         The case proceeded to trial. On June 30, 2009, a jury convicted Defendant of two counts of conspiracy to import cocaine, one count of importing cocaine, and one count of attempting to distribute cocaine, in violation of 21 U.S.C. §§ 841, 846, 952, 960, and 963. (See generally, Dkt. 07-CR-425, Entry Nos. 117, 149.) On March 30, 2010, this Court sentenced Petitioner, below the calculated guidelines range, to 240 months' imprisonment on each count, to run concurrently. (See Id., Dkt. Entry No. 149.) Upon Petitioner's motion to reduce his sentence, on October 29, 2015, the Court reduced Petitioner's sentence to 235 months' imprisonment. (See Id., Dkt. Entry Nos. 173, 178.)

         On appeal to the Second Circuit Court of Appeals, Petitioner argued that his conviction should be vacated and the case remanded, because: (1) the Court should have suppressed the proffer session statements; (2) the Court should not have admitted Petitioner's statements during trial; and (3) the Court erroneously applied an abuse of trust sentencing enhancement in determining the applicable sentencing guidelines range. (Opp. at 28.) The Second Circuit rejected Petitioner's arguments and affirmed the conviction. (See generally, Second Circuit Opinion.)

         On January 30, 2013, Petitioner filed the instant motion. Petitioner asks the Court to vacate his conviction because he was deprived of effective assistance of counsel and there was insufficient evidence of his guilt presented at trial. (Pet. at 4-8.) Specifically, Petitioner contends that Moore was ineffective because Moore: (1) did not advise Petitioner of the consequences of the proffer sessions; (2) “appeared to be working for the government”; (3) “did not know what he was doing”; and (4) advised Petitioner to cooperate with law enforcement, compromising Petitioner's right to a fair trial. (Pet. at 4, 5.) Petitioner does not allege actual innocence as a basis for his petition, but, in elaborating on his ineffective assistance of counsel claim, Petitioner twice asserts that he is innocent. (Pet. at 4, 8.)

         In his reply, Petitioner contends that not only was Moore ineffective, but Petitioner's “three defense counselors, ” as well as his “appeal attorney, ” were ineffective. (Reply at 1-2.) In support of these assertions, Petitioner states that Stephanie Carvlin, his appellate attorney appointed from the CJA panel, was ineffective for not visiting Petitioner, and, instead, speaking with him three times on the phone. (Id. at 2.) Petitioner further alleges that his attorneys Blackman and Sneider were ineffective because they failed “to effectively gain a reasonable plea and further failed to adequately raise a defense at trial.” (Id.)

         The Court will not address the ineffective assistance of counsel claims against attorneys Carvlin, Blackman, and Sneider. Petitioner raises these claims for the first time in his reply papers, and does not allege sufficient facts in support of his bare assertion. The Court is entitled to disregard any legal argument raised for the first time on reply, particularly since the government had no opportunity to oppose it. See In re Harris, 464 F.3d 263, 268 n.3 (2d Cir. 2006); ErnstHaas Studio, Inc. v. Palm Press, Inc., 164 F.3d 110, 112 (2d Cir. 1999) (per curiam). See also Melo v. United States, ...


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