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Frederick v. United States

United States District Court, E.D. New York

December 30, 2019




         On July 14, 2014 pro se petitioner Kissone Frederick (“petitioner”), currently incarcerated at USP Big Sandy in Inez, Kentucky, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. (ECF No. 1, Motion to Vacate, Set Aside or Correct Sentence (“Pet. Mot.”).) Petitioner challenges his conviction for multiple counts of robbery in violation of the Hobbs Act on the grounds that he did not receive effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution, the trial court provided improper jury instructions to the jury, and that he is actually innocent of one of the crimes for which he was convicted. For the following reasons, the court finds petitioner's claims are without merit and denies his petition.


         Petitioner's conviction and the instant habeas petition relate to two armed robberies, one attempted and one completed, that occurred in Brooklyn, New York on May 14, 2006. On April 24, 2009, a federal grand jury returned a six-count indictment charging defendant and others with a conspiracy to commit Hobbs Act armed robbery, attempted Hobbs Act armed robbery, Hobbs Act armed robbery, and three related weapons charges. (United States of America v. Kissone Frederick, No. 09-cr-258 (KAM) (“Criminal Case”), ECF No. 1, Indictment.)[1]Specifically, Count Two of the Indictment charged petitioner with using a firearm in an attempt to rob a retail store known as Satellite Communications, in violation of the Hobbs Act, 18 U.S.C. § 1951(a). (Id. Count Two.) Count Four charged petitioner with the completed robbery of another retail store known as Card Corner, also in violation of the Hobbs Act. (Id. Count Four.) Given petitioner's prior felony conviction, his alleged use of a firearm in connection with a robbery and attempted robbery resulted in additional charges. (Id. Count Three (18 U.S.C. § 924(c)(1)(A)(i)), Count Five (18 U.S.C. § 924(c)(1)(A)(ii)), Count Six (18 U.S.C. §§ 922(g)(1), 924(a)(2)).)

         Petitioner was also charged by the Kings County prosecutor in New York State Court for crimes relating to the completed armed robbery of Card Corner described in Count Four of the Indictment, but was not prosecuted in connection with the attempted robbery of Satellite Communications described in Count Two. (Criminal Case, ECF No. 10, Government Motion in Limine, 3.) On October 3, 2007, petitioner pleaded guilty in New York State Court to a lesser-included offense of attempted robbery in the second degree in full satisfaction of all state charges. (Id.) Following petitioner's state conviction, the government received authorization from the Department of Justice under the Petite Policy to prosecute the petitioner in federal court. (Id.)[2] Petitioner was subsequently indicted by a federal grand jury. (See generally Indictment.)

         Petitioner was represented at the plea and trial stages by Ephraim Savitt, Esq. (“Savitt”). (Pet. Mot. 10.) Savitt remained petitioner's counsel in the Criminal Case until July 14, 2010, when petitioner requested new counsel. (Criminal Case, Minute Entry dated July 14, 2010.) The court initially appointed Dawn M. Cardi, Esq. as CJA counsel to represent petitioner in the Criminal Case, but one week later, Joyce C. London, Esq. (“London”) replaced Ms. Cardi as petitioner's criminal counsel. (Criminal Case, Minute Entry dated July 21, 2010.) London represented petitioner during his sentencing in the Criminal Case and on appeal. (See generally Criminal Case.)

         Petitioner's four-day jury trial commenced on December 7, 2009. (Criminal Case, Minute Entry dated Dec. 7, 2009.) During petitioner's trial, the government offered extensive testimony by a cooperating witness and co-conspirator who was the getaway driver for the robberies, video surveillance footage and victim witness testimony providing direct evidence that a firearm was used or possessed in connection with the attempted Satellite Robbery, and petitioner's sworn statements made in state court during his guilty plea to attempted robbery in the second degree for the Card Corner robbery. See United States v. Frederick, No. 09-CR258(KAM), 2010 U.S. Dist. LEXIS 58560, at *3-8 (E.D.N.Y. June 14, 2010); United States v. Frederick, 702 F.Supp.2d 32, 38 (E.D.N.Y. 2009).

         At trial, the parties stipulated that retail store Satellite Communications “engaged in interstate commerce and sold a variety of items including cellular telephones and cellular telephone products that were manufactured outside of the State of New York” and that retail store Card Corner Three likewise “was engaged in interstate commerce and sold a variety of items, including greeting cards, that were manufactured outside the State of New York.” (Criminal Case, ECF No. 132-2, Trial Transcript (“Tr.”) 470-71.)[3]

         On December 9, 2009, after the parties' closing arguments, but prior to jury deliberations, the court learned that a juror (“Juror No. Eight”) had reportedly expressed concern for his own safety and that of his fellow jurors to the courtroom deputy. (Tr. 578.) Juror No. Eight's reported concern was apparently precipitated by an exchange between the petitioner and individuals associated with the petitioner situated in the courtroom's rear, and while the court and counsel were occupied in a sidebar. (See Criminal Case, ECF No. 44, Juror Concern Ltr. 1; see also Tr. 578-79 (“[AUSA Carter] Burwell: I was informed by a colleague from the United States Attorney's Office who said that after argument when we came up for a sidebar, the defendant was making a lot of gestures toward his - - who I believe to be friends and family and that caught [Juror No. Eight's] attention.”).) At sidebar, the parties and the undersigned registered concern that Juror No. Eight may have expressed his concerns in the presence of other jurors. (See Tr. 584.) The government proposed the court conduct a brief voir dire hearing to inquire whether Juror No. Eight made any statements, whether the juror discussed safety concerns with fellow jurors, and whether Juror No. Eight's concerns, if any, would impact his ability to be fair and impartial. (Juror Concern Ltr. 1.)

         On the morning of December 10, the court held a closed voir dire hearing with counsel and summoned Juror No. Eight to appear. (Tr. 612.) Petitioner was present as well. (Id. 608:14.) At the hearing, Juror No. Eight testified to the undersigned that he had indeed reported certain misgivings to the courtroom deputy about the presence of individuals in the courtroom gallery at petitioner's trial. (Id. 614.) Juror No. Eight informed the court that his concerns were not based on any specific gestures or statements, that he had confined his comments solely to the courtroom deputy, and that he had no doubt that he could perform his duty as a juror to render a verdict fairly and impartially based only on the evidence and the law. (Id. 615-16, 620.) Juror No. Eight also confirmed that he had not shared his concerns with other jurors, and that no other jurors had shared similar concerns with him. (Id. 621.) Petitioner's counsel, Savitt, nonetheless requested that the court excuse Juror No. Eight “in the excess of caution, ” (id. 623), notwithstanding Savitt's concession that Juror No. ORDER Eight had likely provided candid testimony to the court. (Id. 622.) The court granted Savitt's request, excused Juror Number Eight, and replaced him with an alternate juror. (Id. 632-33.)

         Later on December 10, 2009, the undersigned charged the jury with instructions, which had been discussed at a charging conference, and following deliberations, the jury returned a verdict convicting petitioner on all six counts of the Indictment. (Id. 633-84, 698-99.)[4] On June 19, 2012, the petitioner, now represented by London, was sentenced to 32 years in custody, based on statutory mandatory minimums of 25 years pursuant 18 U.S.C. § 924(c)(1)(C)(i), and 7 years pursuant to 18 U.S.C. § 924(c)(1)(A)(ii). (Criminal Case, ECF No. 121, Minute Entry dated June 19, 2012; id., ECF No. 123, Judgment; see also id., ECF No. 127, Sentencing Transcript 20:11, 36:5-8.) On June 26, 2012, London filed a notice of appeal to the Second Circuit on behalf of petitioner. (Id., ECF No. 125, Notice of Appeal.) On May 24, 2013, the Court of Appeals issued a mandate affirming the trial court's judgment. (Id., ECF No. 134, USCA Mandate.)


         On July 14, 2014, petitioner filed the present petition to vacate, set aside, or correct his sentence and conviction. (Pet. Mot.) Petitioner brings this petition on seven grounds, five of which are claims of ineffective assistance of counsel. Specifically, petitioner asserts he received ineffective assistance of counsel from:

(1) London, for her failure to appeal petitioner's robbery conviction on double jeopardy grounds;
(2) London, for her failure to raise jury contamination claims on appeal;
(3) Savitt, for his failure to secure petitioner's presence during the “voir dire, in camera hearing of juror number 8”;
(4) London, for her failure to bring an ineffective assistance of counsel claim against Savitt for his stipulation to the interstate commerce element of petitioner's Hobbs Act offenses;
(5) Savitt and London, respectively, for failing to raise the proper cooperating witness jury instruction during trial, and for failing to appeal petitioner's conviction on the basis of an improper cooperating witness jury instruction.

         In addition, petitioner claims that:

(6) the court's aiding and abetting jury instruction created a structural error by lowering the government's burden of proof; and
(7) he is actually innocent of the sentence he received for brandishing a firearm.

(See generally id.)

         Petitioner also requested that the court order London to submit an affidavit responding to petitioner's claims of ineffective assistance of counsel. (Id. at 20, 24.) On August 21, 2014, the court issued an order instructing London and Savitt to respond to petitioner's allegations within 30 days of the date of the order and requiring the government to show cause why petitioner's motion should not be granted. (ECF No. 3, Order to Show Cause, ¶¶ 1-2.) London and Savitt filed responses to the Order to Show Cause on September 19, 2014 and December 12, 2014, respectively, contesting petitioner's claims that they provided ineffective assistance of counsel. (ECF No. 4, London Decl.; ECF No. 7, Savitt Ltr.)

         On January 28, 2015, the government filed its response to petitioner's motion, arguing that neither Savitt nor London rendered ineffective assistance of counsel, that petitioner's claims regarding the alleged improper jury instructions are hopelessly vague, and asserting petitioner is not innocent of brandishing a firearm. (See generally, ECF No. 10, Gov. Opp.) On April 23, 2015, petitioner filed his reply. (ECF No. 12, Petitioner's Traverse (“Pet. Reply”).)

         There was no activity on the docket for approximately one year following petitioner's response until May 6, 2016, when petitioner filed a letter requesting that the court expedite judgment in the instant case, as petitioner has not “heard anything for a year.” (ECF No. 15, Petitioner's Ltr.) From June 2016 through September 2019, there were various delays and updates in the case due to pending Second Circuit and Supreme Court decisions that petitioner believed would affect his petition.

         First, on June 9, 2016, an Assistant Federal Defender assigned to petitioner's case informed the court of petitioner's intent to amend his motion to include claims of due process violations at conviction and sentencing, pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). (ECF No. 17, Fed. Defender Ltr.) On October 20, 2017, the court then ordered that the government file a response to the Federal Defenders' June 9, 2016 letter. (Order dated Oct. 20, 2017.)

         Second, on October 24, 2017, petitioner filed a consent motion to stay proceedings in light of a pending rehearing petition for the Second Circuit's decision in United States v. Hill, 832 F.3d 135 (2d Cir. 2016). The consent motion asserted that, in light of Johnson, petitioner's convictions on Counts Three and Five, for violations of 18 U.S.C. § 924(c), should be vacated since “Hobbs Act robbery . . . no longer qualifies as a ‘crime of violence.'” (ECF No. 20, Consent Mot. 1.)[5] Citing the Second Circuit's acknowledgement in Hill that there was a deep circuit split on the issue of whether Johnson invalidated the residual clause in 18 U.S.C. § 924(c), the consent motion explained that the continued validity of Hill, and the Supreme Court's then-pending decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018), could potentially vacate petitioner's convictions on Counts Three and Five of the Indictment. (Id. 1-2.)

         The court granted the motion to stay, and the parties were ordered to advise the court of the Second Circuit's disposition of Hill within two business days of the court's final decision and how the parties wished to proceed. (Order dated Oct. 25, 2017.) On May 17, 2018, following the Second Circuit's amended opinion in United States v. Hill, 890 F.3d 51, 52 (2d Cir. 2018), cert. denied, 139 S.Ct. 844 (2019), the court ordered the parties to file a letter advising as to how they intended to proceed. (Order dated May 17, 2018.) On May 18, 2018, the parties filed another consent motion to stay petitioner's case pending the Federal Defenders' amended motion in Hill for a rehearing or rehearing en banc. (ECF No. 21, Consent Motion (2nd) 2.) The court granted the parties' motion and continued the stay. (Order dated May 18, 2018.)

         Third, on September 6, 2018, petitioner filed a motion to stay pending the resolution of another Second Circuit case, United States v. Barrett, No. 14-2641, involving the related question of whether attempted Hobbs Act robbery qualifies as a crime of violence under § 924(c). (ECF No. 22, Motion to Stay 3.) The court denied the motion; however, by consent of the parties, the court ordered that the stay remain in effect until the Second Circuit issued a mandate in the Barrett case. (Order dated Sept. 18, 2018.)

         On April 3, 2019, the court ordered the parties to file a joint status report as to how they intended to proceed. (Order dated Apr. 3, 2019.) On April 5, 2019, petitioner sought leave to voluntarily dismiss his Johnson-based claims without prejudice, and requested that the court proceed with petitioner's remaining claims, originally filed pro se. (ECF No. 24, Ltr. Requesting Dismissal.) The court granted petitioner's request and lifted the stay, deeming the petitioner's motion ripe for adjudication. (Order dated May 8, 2019.)

         Then, on September 16, 2019, petitioner moved to amend his motion to challenge his § 924(c) convictions in light of Barrett's holding that, pursuant to the Supreme Court's decision in United Sates v. Davis, 139 S.Ct. 2319 (2019), Hobbs Act conspiracy is not a crime of violence, which led the Barrett court to vacate a § 924(c) conviction premised on conspiracy to commit Hobbs Act robbery. (ECF No. 26, Motion to Amend.) The court nevertheless denied petitioner's motion to amend, and noted that the Second Circuit in Barrett had affirmed the defendant's other counts of conviction under § 924(c) that were based on the predicate offense of substantive Hobbs Act robbery. (Order dated Oct. 15, 2019.) Because petitioner's two counts of conviction pursuant to § 924(c) were predicated on his two counts of substantive Hobbs Act robbery, and not his single count of conspiracy to commit Hobbs Act robbery, Barrett's holding would not relieve petitioner from his § 924(c) convictions and sentence, rendering an amendment futile. (Id.)

         Therefore, what remains for the court's review are petitioner's original pro se claims that pre-date his June 9, 2016 amendment.


         A prisoner in federal custody may challenge the validity of his sentence by petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the basis “that the sentence was imposed 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, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); Reisman v. United States, No. 12-CV-291, 2013 WL 5774592, at *3 (E.D.N.Y. Oct. 24, 2013) (citing Adams v. United States, 372 F.3d 132 (2d Cir. 2004)). Collateral relief from a final judgment 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 miscarriage of justice.'” United States v. Bokun, 73 F.3d 8, 12 (2d Cir.1995) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)). The grounds for relief under § 2255 are limited out of “respect for the finality of criminal sentences, the efficient allocation of judicial resources, and an aversion to retrying issues years after the underlying events took place." Davis v. United States, No. 13-CR-986, 2019 WL 1533073, at *2 (S.D.N.Y. Apr. 9, 2019) (quoting Bokun, 73 F.3d at 12).

         Section 2255 petitions must be filed in the district court “which imposed the sentence” being challenged. 28 U.S.C. § 2255(a). Additionally, prisoners may not use Section 2255 as a substitute for a direct appeal. Marone v. United States, 10 F.3d 65, 67 (2d Cir. 1993) (citing United States v. Frady, 456 U.S. 152, 165 (1982)). Generally, with the exception of ineffective assistance claims, “a claim may not be presented in a habeas petition where the petitioner failed to properly raise the claim on direct review.” Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007) (citation omitted). “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause' and actual ‘prejudice,' or that he is ‘actually innocent.'” Bousley v. United States, 523 U.S. 614, 622 (1998) (citations omitted).

         Further, it is well established that Section 2255 may not be used to litigate issues that have been decided adversely to a defendant on direct appeal. United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001); see Reese v. United States, 329 Fed.Appx. 324, 326 (2d Cir. 2009); United States v. Natelli, 553 F.2d 5, 7 (2d Cir. 1977) (per curiam) (“[O]nce a matter has been decided adversely to a defendant on direct appeal it cannot be relitigated in a collateral attack under section 2255.”). “[A] petitioner may bring an ineffective assistance of counsel claim [in a petition pursuant to Section 2255] whether or not the petitioner could have raised the claim on direct appeal.” Mui v. United States, 614 F.3d 50, 54 (2d Cir. 2010) (citing Massaro v. United States, 538 U.S. 500, 509 (2003)).

         In reviewing the instant petition, the court is mindful that “[a] document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted); Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983) (noting that courts should review pro se habeas petitions with a lenient eye). Accordingly, the court is obliged to interpret petitioner's pleadings as raising the strongest arguments they suggest. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); Martin v. United States, 834 F.Supp.2d 115, 119 (E.D.N.Y. 2011) (citing Williams, 722 F.2d at 1050).

         In ruling on a motion under § 2255, the district court is required to hold a hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). A hearing is not required where the allegations are "vague, conclusory, or palpably incredible." Machibroda 131 v. United States, 368 U.S. 487, 495 (1962). Therefore, to warrant a hearing, the motion “must set forth specific facts supported by competent evidence, raising detailed and controverted issues of fact that, if proved at a hearing, would entitle him to relief.” Gonzalez v. United States, 722 F.3d 118, 131 (2d Cir. 2013).


         Petitioner filed the instant petition for a writ of habeas corpus to vacate his conviction for violations of 18 U.S.C. § 1951(a) and 18 U.S.C. § 924(c). Petitioner brings the writ on seven grounds, five of which are for his counsels' alleged ineffective assistance during trial and on appeal, one for alleged improper jury instruction by the court, and one for alleged actual innocence of his sentence of brandishing a firearm. The government argues that petitioner's claims are vague and conclusory, thereby meriting no habeas relief pursuant to 28 U.S.C. § 2255. For the reasons stated below, the petition is DENIED.

         I. Ineffective ...

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