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Jones v. United States

United States District Court, D. Connecticut

January 7, 2018



          Hon. Vanessa L. Bryant, United States District Judge

         Petitioner, Jermaine Jones (“Jones” or “Petitioner”), brings this pro se petition for habeas relief under 28 U.S.C. § 2255, asserting twelve ineffective assistance of counsel claims against his counsel who represented him for trial and sentencing. For the foregoing reasons, this Motion to Vacate, Set Aside, or Correct Sentence, [Dkt. 1], is DENIED.


         On May 20, 2010, Mr. Jones was arrested in Florida for charges stemming from the initial Indictment issued on April 1, 2010. See United States v. Williams, Case No. 10-cr-00080 (VLB) (hereinafter “Williams”), [Dkt. 1 (Sealed Indictment)]. The Indictment charged Mr. Jones and his two co-defendants, Sheikera Williams and Michael Jones, with 70 counts of bank fraud in violation of 18 U.S.C. § 1344, one count of conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349, and three counts of aggravated identity theft in violation of 18 U.S.C. § 1028A. At the arraignment on June 29, 2010, Mr. Jones entered a plea of not guilty and was appointed Frank Riccio, Jr. (“Attorney Riccio”) as CJA counsel. See Williams, [Dkt. No. 13 and 14 (Attorney Appearance)]. Mr. Jones was ordered detained.

         After several continuances, the trial was ultimately scheduled for November 2011. Co-defendant Williams pleaded guilty on October 3, 2011. See Williams, [Dkt. No. 104 (Change of Plea Hearing)]. A Superseding Indictment was issued on October 11, 2011, which decreased the total counts and instead included seven counts of bank fraud, one count of conspiracy to commit bank fraud, and seven counts of aggravated identity theft, all in violation of the same statutes as previously stated. See Williams, [Dkt. No. 115 (Superseding Indictment)].

         The trial began on November 2, 2011 and the jury rendered its verdict on November 17, 2011: guilty on all counts. See Williams, [Dkt. No. 182 (Jury Verdict)]. Mr. Jones was sentenced on May 16, 2012 and received 216 months' imprisonment on the bank fraud and conspiracy counts to run concurrently; 24 months' imprisonment on the aggravated identity theft counts to run consecutive to the 216 months; 60 months' supervised release; a special assessment of $1, 500.00; and $237.790.00[1] payable at a rate of not less than $25.00 per week. See Williams, [Dkt. No. 245 (Judgment)].

         By and through Attorney Riccio, Mr. Jones appealed his conviction and sentence. See Williams, [Dkt. No. 238 (Notice of Appeal)]. The Second Circuit affirmed the conviction and sentence in summary order filed February 26, 2014. See Williams, [Dkt. No. 291 (Mandate)]. Specifically, the Second Circuit upheld his conviction for failure to demonstrate insufficient evidence at trial, ruling, “In short, plentiful evidence was presented at trial of Jones's intent to join a conspiracy to commit bank fraud, his intent to commit the substantive crime of bank fraud, and his knowledge that the means of identification at issue belonged to another person.” Id. at 4. In addition, the Second Circuit upheld his sentence and found that this Court did not err in (1) calculating the loss amount pursuant to § 2B1.1(b)(1), (2) applying a two-level enhancement for “sophisticated means” under § 2B1.1(b)(10), and (3) applying a four-level enhancement for 50 fifty or more victims pursuant to § 2B1.1(b)(2)(B). See Id. at 6-7. Thereafter, Mr. Jones timely filed this habeas petition before the Court.

         Legal Standard

         Section 2255 enables a prisoner is federal custody to petition a federal court to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). Relief under Section 2255 is generally 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 complete miscarriage of justice.” Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (internal quotation marks and citation omitted). Section 2255 provides that a district court should grant 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).

         Claims for ineffective assistance of counsel are analyzed under the two part test established in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, a movant must both allege facts demonstrating that “counsel's representation fell below an objective standard of reasonableness” and that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 687-88, 694. As to the first showing, a movant must demonstrate that counsel's performance “amounted to incompetence under ‘prevailing professional norms'” rather than demonstrating that the performance “deviated from best practices or most common custom.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 690). As to the second showing, a movant must demonstrate “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.


         Mr. Jones brings 12 ineffective assistance of counsel claims, which raise instances that occurred during both trial and sentencing. The Court addresses each claim in turn.

         I. Failure to Raise a Batson Challenge

         Mr. Jones claims the jury pool included approximately five African Americans and the Government used its peremptory challenges to strike all but one of these individuals. The use of peremptory challenges, Mr. Jones contends, was done “in a systematic racial[ly] mot[i]vated manner to [e]nsure that neither one of the African-American prospective jurors were actually seated on the jury.” [Dkt. 1-1 (Petitioner's Mem. Law) at 8]. As a result, the jury was comprised entirely of white people, and Mr. Jones argues counsel acted deficiently in failing to object to the jury composition “[i]n light of the [G]overnment's theory of the case, that Movant sought out, and only used, white females to commit the crimes for which he was on trial for. . . .” Id.

         The Government disputes the validity of Mr. Jones's Batson challenge claim for the primary reason that he fails to establish a prima facie case of purposeful discrimination. [Dkt. 14 (Gov. Response) at 17]. The Government points out that Mr. Jones does not cite the transcript or another document identifying the demographics of the venire or the Government's peremptory strikes. Even if he were to satisfy the prima facie case, the Government contends he nonetheless fails to establish prejudice. Id. at 18.

         Batson v. Kentucky, 476 U.S. 79 (1986) created a three-step procedure for courts to determine “whether a peremptory strike has been exercised in a racially discriminatory manner.” United States v. Diaz, 176 F.3d 52, 76 (1999). First, a court must determine whether the petitioner makes out “a prima facie showing that the prosecution has exercised its peremptory strike on the basis of race.” Id. If defendant satisfies the first step, the court must then evaluate “whether the government has satisfied its burden of coming forward with a race-neutral explanation for striking the juror in question.” Id. If so, the court evaluates “whether the defendant has carried his burden of persuasion of proving purposeful discrimination.” Id.

         There are several ways in which a petitioner can make a prima facie showing of racial discrimination. A court should consider “how many members of the cognizable racial group are in the venire panel from which the petit jury is chosen, the pattern of strikes against racial group jurors in the particular venire, the prosecutor's statements and questions during selection, as well as any other relevant circumstances.” Tankleff v. Senkowski, 135 F.3d 235, 249 (2d Cir. 1998) (addressing prima facie showing in the Powers context). “When the asserted prima facie case is based upon the use of strikes to exclude all or nearly all of the members of a particular racial group, the record need only include how many members of that group were in the venire, and how many of those were struck.” Jones v. West, 555 F.3d 90, 99 (2d Cir. 2009).

         Mr. Jones has not provided the Court with any evidence supporting his claim. Nonetheless, the Court independently assessed the venire documents kept by the Clerk. The jury pool contained only two individuals who identified as African American. The first person was randomly assigned pool number 39, and the Court, not the Government, struck him for cause. The second person was randomly assigned pool number 64, and she was chosen as the third alternate. It is worth noting the twelfth juror was assigned pool number 49, and therefore the random nature of the jury selection process essentially made it impossible for the alternate to have been picked as a juror given she was questioned 15 people later. The Court also notes the Government used peremptory challenges on eight people, seven who were listed as White and one who was listed as Other. One chosen juror was also listed as Other. The objective evidence does not support a finding that the Government's actions were racially motivated or that Attorney Riccio acted below an objective standard of reasonableness in failing to object to petit jurors having been stricken. Neither Mr. Jones nor the record offer any factual support for this claim and therefore a hearing is not warranted. See Strickland, 466 U.S. at 687-88.

         II. Failure to Object to Discovery

         Mr. Jones claims the Government withheld exculpatory evidence as demonstrated by the changes in the Superseding Indictment, which reduced the number of Defendants from three to two and the number of bank fraud counts from 74 to seven. [Dkt. 1-1 at 12-13]. Specifically, Mr. Jones believes the Government withheld all discovery pertaining to Counts 9, 11, 13 and 15 of the Superseding Indictment. Id. The Government maintains that it “provided early and fulsome discovery in this case, beginning in July 2010, ” and that Mr. Jones's characterization demonstrates a misunderstanding of the discovery process rather than any potential misconduct. See [Dkt. 14 at 19].

         In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court established the requirement to disclose all evidence that could be considered exculpatory or bearing on a defendant's innocence or guilt. The Government's obligations under Brady are well-established. The prosecution has a constitutional duty to disclose evidence favorable to an accused when such evidence is material to guilt or punishment. Id. at 87. This duty covers not only exculpatory evidence, but also information that could be used to impeach a key government witness. See Giglio v. United States, 405 U.S. 150, 154 (1972). Brady does not, however, require the prosecution to disclose all exculpatory and impeachment evidence; it need disclose only that, which “if suppressed, would deprive the defendant of a fair trial.” United States v. Bagley, 473 U.S. 667, 675 (1985). In the context of Brady, a defendant is deprived of a fair trial only where there is a reasonable probability that the government's suppression affected the outcome of the case, see Id. at 682, or where the suppressed evidence “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict, ” Kyles v. Whitley, 514 U.S. 419, 435 (1995).

         Mr. Jones has failed to identify any evidence withheld by the Government, much less any evidence that would have changed the outcome of the trial and the withholding of which thus deprived him of a fair trial. It appears as if the evidence Mr. Jones challenges was not even “favorable to the accused” as his position is the Government “failed to disclose any discovery whatsoever to support its inclusion of Counts 9, 11, 13, and 15 of the Superseding Indictment. . . .” [Dkt. 1-1 at 13]. The Government avers that it timely disclosed all discovery beginning in June 2010, which relate to the Superseding Indictment filed October 2011.[2] See [Dkt. 14 at 22]. The filing of a Superseding Indictment, which reduced the total number of counts and adjusted the nature of the counts, does not inherently mean discovery was withheld. Mr. Jones clearly has not met his burden to establish deficient performance because he has not alleged any facts demonstrating how the absence of an objection on these grounds means counsel's performance fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88; Lewis v. Feliciano, No. 3:09cv20171 (DJS), 2012 WL 1247264, at *9 (D. Conn. Apr. 13, 2014) (stating that “[a]bsent any indication as to what the witnesses would have stated or what the evidence would have shown, Lewis failed to meet [his] burden” of demonstrating deficient performance on Brady grounds). Therefore, the Court need not address the prejudice prong.

         III. Failure to File Motion to Sever

         Mr. Jones criticizes defense counsel's failure to file a motion to sever his case from that of his co-defendant, Michael Johnson. According to Mr. Jones, severance would have been essential because he stopped participating in the conspiracy after his arrest and detention. Severance, the Government contends, is not warranted simply because a defendant did not participate in the entire conspiracy, because the critical question is whether a joint trial prejudiced the movant and Mr. Jones has not addressed this factor. See [Dkt. 14 at 22].

         Rule 14 of the Federal Rules of Criminal Procedure provides that “[i]f the joinder of offenses or defendants in an indictment . . . appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires.” Fed. R. Crim. P. 14(a). There is a clear preference for a joint trial where “the defendants are alleged to have participated in a common plan or scheme.” United States v. Fazio, 770 F.3d 160, 166 (2d Cir. 2014) (citing United States v. Salameh, 152 F.3d 88, 115 (2d Cir. 1998)).

         “[I]t is well-settled that withdrawal from a conspiracy is an affirmative defense for which the defendant bears the burden of proof at trial.” United States v. Leslie, 658 F.3d 140, 143 (2d Cir. 2011). A conspirator's membership in a conspiracy is presumed to continue until he affirmatively withdraws or the conspiracy ends. United States v. Flaharty, 295 F.3d 182, 192 (2d Cir. 2002). The defendant has the burden of proving withdrawal. United States v. Berger, 224 F.3d 107, 118 (2d Cir. 2000). Here, Mr. Jones fails to establish that his involuntary incapacitation even constitutes withdrawal. Evidence of imprisonment can, but does not necessarily, constitute withdrawal from a conspiracy. See Flaharty, 295 F.3d at 192-93. To withdraw from a conspiracy, a person must take some affirmative action either by “the making of a clean breast to the authorities, or communication of the abandonment in a manner reasonably calculated to reach co-conspirators.” United States v. Borelli, 336 F.2d 376, 388 (2d Cir. 1964); Berger, 224 F.3d at 118 (same). To withdraw, an individual must not take any subsequent acts to promote the conspiracy. United States v. Basciano, 634 F. App'x 832, 834 (2d Cir. 2015). At trial, evidence that identity documents stolen by Jones was used by his co-conspirators when he was not present.

         Severance is not automatic in circumstances where a defendant is incarcerated during the conspiracy, particularly where there is substantial evidence of the defendant's involvement in the conspiracy prior to incarceration and withdrawal relates “only to the improper use against him of subsequent acts and declarations of coconspirators.” See United States v. Agueci, 310 F.2d 817, 838-39 (2d Cir. 1962); United States v. Bless, 422 F.2d 210, 213 (2d Cir. 1970). A court is to sever defendants “only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” United States v. Astra Motor Cars, 352 F.Supp.2d 367, 369-70 (E.D.N.Y. 2005) (quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)). Such a determination is left to the sound discretion of the court. Zafiro v. United States, 506 U.S. at 539.

         Mr. Jones has not presented the Court with any evidence that he was denied a fair trial. After reviewing the trial transcripts, the Court finds that Defendants participated in a “common scheme or plan, ” Fazio, 770 F.3d at 166, and that there was substantial evidence of his involvement in the conspiracy, see Agueci, 310 F.2d at 838-39.

         Moreover, Mr. Jones's withdrawal was relevant “only to the improper use against him of subsequent acts and declarations of coconspirators, ” see Agueci, 310 F.2d at 838-39, which he freely acknowledges as relevant to the length of time he participated in the conspiracy, see [Dkt. 5 (Jones Decl.) ¶ 15]. Mr. Jones points to no improper use of the evidence.

         The Second Circuit's mandate on Mr. Jones's appeal concluded that “plentiful evidence was presented at trial” of Mr. Jones's intent to join the conspiracy and commit the substantive offenses with the knowledge that the means of identification belonged to other people. See [Dkt. 291 at 4].

         Attorney Riccio declares that he considered severance and advised Mr. Jones that courts typically deny motions to sever. See [Dkt. 19 (Riccio Aff.) at 7 of PDF]. Counsel did not act unreasonably when he elected not to move to sever defendants in light of the facts of the case, his understanding of prevailing ...

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