Lee v. United States

1

DELROY LEE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Nos. 18-CV-1856 (LAP), 07-CR-00003 (LAP)

United States District Court, S.D. New York

August 25, 2023

OPINION & ORDER

LORETTA A. PRESKA, Senior United States District Judge:

Before the Court is Petitioner Delroy Lee's (“Mr Lee” or “Petitioner”) pro se motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence.^[1] The Government opposes the motion.^[2] For the reasons set forth below Petitioner's § 2255 motion is granted in part and denied in part.

I. Background

Petitioner was a member of a racketeering “enterprise,” as defined by 18 U.S.C. § 1961(4), known as the DeKalb Avenue Crew, which operated principally around DeKalb Avenue in the Bronx during the 1990s and 2000s. See United States v. Lee, 834 F.3d 145, 149 (2d Cir. 2016). In furtherance of the enterprise, Petitioner and his co-defendants “engaged in extensive drug dealing, violence, robberies of drug dealers, and murders.” Id.

a. The Indictment

On February 20, 2008, a grand jury charged Petitioner and his co-defendants in a thirty-five-count Superseding Indictment. (See Superseding Indictment (the “Indictment”), dated Feb. 20, 2008 [dkt. no. 93].)^[3] The Indictment charged the defendants with engaging in, “among other things, armed robbery, narcotics trafficking, and murder.” (See Redacted Indictment at 1.) Petitioner was charged in seventeen counts. (See generally id.)

Count One of the Redacted Indictment charged Petitioner with racketeering through the commission of multiple acts, including conspiracy to commit robbery, robbery, kidnapping, felony murder, and narcotics conspiracy, in violation of 18 U.S.C. § 1961 and 1962(c). (Id. at 3-14.) Count Two charged Petitioner with racketeering conspiracy, in violation of 18 U.S.C. § 1962(d). (Id. at 14-15.)

Counts Three and Five charged Petitioner with the murders of Patrick Taylor, (id. at 15-17), and Bunny Campbell (id. at 18-19), respectively, in aid of racketeering activity, in violation of 18 U.S.C. § 1959(a)(1) and 2. Count Six charged Petitioner with participating in a narcotics conspiracy, in violation of 21 U.S.C. § 846. (Id. at 19-20.) Count Seven charged Petitioner with the murder of Patrick Taylor in connection with a drug crime, in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. (Id. at 20-21.)

Count Eight charged Petitioner with various robbery offenses, including robbery conspiracy and robbery, in violation of 18 U.S.C. § 1951 (the “Hobbs Act”). (Id. at 21.) Counts Twelve and Fourteen charged Petitioner with robbery and attempted robbery, respectively, both in violation of the Hobbs Act. (Id. at 24-26.)

Count Sixteen charged Petitioner with the use, carrying, and possession of firearms during and in relation to the narcotics conspiracy charged in Count Six, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2. (Id. at 27.) Count Seventeen charged Petitioner with the murder of Patrick Taylor through the use of a firearm in connection with the narcotics conspiracy charged in Count Six, in violation of 18 U.S.C. §§ 924(j)(1) and 2. (Id. at 28.) Count Twenty-Two charged Petitioner with the use, carrying, possession, and brandishing of a firearm during and in relation to the robbery charged in Count Twelve, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), 924(c)(1)(C)(i) and 2. (Id. at 31.) Count Twenty-Four charged Petitioner with the murder of Bunny Campbell through the use of a firearm in connection with the attempted robbery charged in Count Fourteen, in violation of 18 U.S.C. §§ 924(j)(1) and 2. (Id. at 32.) Count Twenty-Five charged Petitioner with the use, carrying, possession, and discharge of a firearm during and in relation to the attempted robbery charged in Count Fourteen, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), 924(c)(1)(C)(i) and 2. (Id. at 32-33.) Finally, Count Twenty-Seven charged Petitioner with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). (Id. at 33-34.)

b. Trial and Sentencing

Following a six-week trial before Judge Barbara S. Jones, a jury found Petitioner guilty of all counts in which he was named. (See dkt. no. 412; Gov't Opp. at 8.) On March 25, 2011, Petitioner was sentenced to a total of life imprisonment plus thirty years. (Gov't Supp. Opp. at 2 (citing Sentencing Tr. (“Sent. Tr.”), dated Mar. 25, 2011 [dkt. no. 496 at 9].)^[4] This sentence included: 1) concurrent terms of life imprisonment on each of Counts One, Two, Three, Five, Seven, Seventeen, and Twenty-Four; 2) concurrent twenty-year terms of imprisonment on each of Counts Six, Eight, Twelve, and Fourteen; and 3) consecutive terms of five years' imprisonment on Count Sixteen and twenty-five years' imprisonment on Count Twenty-Two. (Gov't Supp. Opp. at 2.) The Court did not impose a sentence for Count Twenty-Five based on the “corresponding 924(j) conviction for the same underlying conduct.” (Id. (quoting Sent. Tr. at 3).)

c. Post-Trial Proceedings

Petitioner appealed his conviction on June 21, 2011. (See docket entry dated June 22, 2011 [dkt. no. 503]; see also Gov't Opp. at 9.) On January 16, 2013, Petitioner's case was reassigned to this Court. (See dkt. no. 589.)

On July 17, 2012, Petitioner filed an appeal brief, followed by three pro se supplemental briefs. Petitioner challenged “the sufficiency of the evidence to prove”: 1) “the interstate commerce element of [the] various charged substantive Hobbs Act robberies,” Lee, 834 F.3d at 150; 2) his involvement in the murders of Patrick Taylor and Bunny Campbell, see United States v. Lee, 660 Fed.Appx. 8, 15-16 (2d Cir. 2016) (summary order); 3) that the murder of Bunny Campbell was for the “purpose of ‘maintaining or increasing [his] position' in the Dekalb Avenue Crew,” id. at 16; and 4) his firearm convictions, see id. Petitioner also claimed that the District Court: 1) “erred in denying his motion to suppress a witness's photographic identification of him without an evidentiary hearing,” id. at 12; 2) failed to suppress evidence seized without a warrant at the scene of Bunny Campbell's murder, see id. at 13-14; 3) failed to inspect the Government's files relating to charges the Government dismissed from the indictment for any Brady or Giglio materials, see id. at 14-15; Gov't Opp. at 9-10; 4) failed to investigate an individual juror's mental state, see Lee, 660 Fed.Appx. at 18; 5) provided insufficient jury instructions, see id. at 19; and 6) lacked jurisdiction on Counts Seventeen and Twenty-Four, see id. at 16-17; see also Gov't Opp. at 9. The Court of Appeals denied each of Petitioner's claims, affirming Petitioner's conviction and sentence. Lee, 660 Fed.Appx. at 22; Lee, 834 F.3d at 149. On April 17, 2017, the Supreme Court denied Lee's petition for a writ of certiorari. Lee v. United States, 137 S.Ct. 1599 (Mem.) (2017).

d. The Instant Motion

On February 28, 2018, Petitioner filed the instant pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (See Mot. Vacate.) Petitioner's initial motion raised claims that: 1) his 18 U.S.C. § 924(c) convictions violate the Double Jeopardy Clause because they are lesser included offenses of the § 924(j) convictions, (see Pet. Mot. at 3); 2) that Hobbs Act robbery is not a “crime of violence” following the Supreme Court's decision in Johnson v. United States, 576 U.S. 591 (2015), that the residual clause of the definition of a “violent felony” under the Armed Career Criminal Act is unconstitutionally vague, (see Pet. Mot. at 26); and 3) that Counsel was ineffective for a number of reasons, (see id. at 7, 22, 27; see also Gov't Opp. at 11 (reordering Petitioner's claims).

On May 7, 2018, this Court ordered Petitioner's trial Counsel, Winston Lee (“Counsel”), to address Petitioner's allegations of ineffective assistance of counsel by filing an affidavit. (See order dated May 7, 2018 [dkt. no. 739].) In an affidavit filed on July 3, 2018, Counsel responded to each of Petitioner's ineffective assistance of counsel claims. (See Attorney's Declaration (“Att'y Decl.”), dated July 3, 2018 [dkt. no. 748].)

Following the Supreme Court's decision in United States v. Taylor, 142 S.Ct. 2015, 2020-21 (2022), this Court ordered the parties to file supplemental briefing regarding the impact of the Supreme Court's decision on Petitioner's pending habeas motion. (See order dated July 14, 2022 [dkt. no. 942].) On August 2, 2022, Petitioner filed a pro se supplemental brief, arguing that the Supreme Court's holding in Taylor invalidates his convictions for Counts Twenty-Two and Twenty-Five under 18 U.S.C. § 924(c) and Count Twenty-Four under 18 U.S.C. § 924(j). (See Pet. Supp. Mot.) The Government filed its opposition on October 28, 2022. (See Gov't Supp. Opp.) Petitioner filed his reply on December 28, 2022. (See Pet. Supp. Reply.)

II. Legal Standards

a. Motion to Vacate

Under 28 U.S.C. § 2255, a federal prisoner “may move the court which imposed the sentence to vacate, set aside, or correct the sentence” on the grounds, inter alia, that the “sentence was imposed in violation of the Constitution or laws of the United States . . . or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Relief under § 2255 is only available “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 complete miscarriage of justice.'” United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (citations omitted).

1. Procedural Bar to Relitigating Issues Already Decided on Direct Appeal

In general, a § 2255 motion may not be used to relitigate issues already decided on direct appeal. See Burrell v United States, 467 F.3d 160,...