McKenzie v. United States

TROY MCKENZIE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

12-CV-3221 (KAM)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

November 2, 2015

MEMORANDUM & ORDER

MATSUMOTO, United States District Judge:

On June 25, 2012, petitioner Troy McKenzie ("petitioner"), proceeding pro se, filed a petition pursuant to 28 U.S.C. § 2255 ("Section 2255") seeking to vacate, set aside, or correct his sentence. Petitioner was convicted by a jury on April 18, 2008, and on August 13, 2009, the Honorable David G. Trager sentenced petitioner to concurrent sentences of 120 months of custody on each count of conviction. (Trial Transcript ("Tr.") 374; 8/13/09 Safety Valve and Sentencing Transcript ("Sent. Tr.") 44.) On December 11, 2009, the Honorable David G. Trager entered a judgment of conviction in the United States Eastern District of New York. Petitioner is currently incarcerated at the Adams County Correctional Institution in Natchez, Mississippi.

Petitioner seeks to vacate his conviction and sentence on two grounds. First, petitioner alleges that his Sixth Amendment rights were violated by the ineffective assistance of his trial counsel, Barry Turner, Esq. ("Turner"), who petitioner claims did not permit him to testify at trial and failed to advise him to truthfully proffer and testify in connection with his safety valve hearing. Second, petitioner claims actual innocence based on what he claims is new, and allegedly exculpatory, evidence in the form of an affidavit written by federal inmate Marlon Campbell. For the reasons set forth below, the petition is denied.

BACKGROUND

I. The Charges And Conviction

Petitioner Troy McKenzie was indicted in a superseding indictment on February 27, 2008. The superseding indictment charged him with the following: (1) Count One: conspiracy to possess with intent to distribute 1,000 kilograms or more of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A)(vii)¹; (2) Count Two: conspiracy to commit money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), (ii) and 1956(a)(1)(B)(i); (3) Count Three: attempted possession with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(ii)(II); (4) Count Four: possession with intent to distribute 100 kilogramsor more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(vii); and (5) Count Five: money laundering in violation of 21 U.S.C. §§ 846 and 841(a)(1).

II. Petitioner's 2008 Trial and Sentencing

Petitioner was convicted after a five-day jury trial in the Eastern District of New York of Counts One and Three, respectively conspiracy to possess with intent to distribute 1,000 kilograms or more of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A)(vii), and attempted possession with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(ii)(II). United States v. Troy McKenzie, No. 04-CR-1110 (DGT) (E.D.N.Y.).

A. The Government's Case

Petitioner's conviction stems from his participation in a marijuana and cocaine distribution scheme. At trial, the government primarily relied on testimony by cooperating witness and co-conspirator Robert McCleary ("McCleary"), a tractor-trailer driver who transported drugs for petitioner and his co-conspirators, and recorded telephone conversations between cooperating witness McCleary and petitioner regarding the transportation of narcotics. The government's evidence also included photographs, telephone records, and law enforcement testimony. McCleary testified about his role as a drug courierfor petitioner and co-conspirator Clacon James² ("James") and testified in detail about McCleary's transportation of large quantities of marijuana and cocaine between 2003 and 2004 on behalf of petitioner and co-conspirator James. McCleary testified that he understood James to be the "boss" of the operation, but considered James and petitioner to be "partners," and that James had instructed McCleary to contact petitioner in the event he could not reach James. (Tr. 160.)

McCleary testified that in or about early 2003, James paid McCleary $15,000 to transport marijuana from Texas to New Jersey. (Tr. 56-72.) McCleary understood that this shipment contained 1,000 pounds of marijuana, but was later told it was slightly less. (Tr. 71.) Two associates of James, nicknamed "6-0" and "Mr. Respect" paid McCleary $15,000 upon his delivery of the narcotics in New York. (Tr. 72.) McCleary further testified that he first met petitioner in 2003, after he was instructed by 6-0 to meet petitioner and other co-conspirators at an apartment in the Bronx, New York, to pick up money for the next shipment of marijuana. (Tr. 72-74.) When he arrived at the apartment, McCleary observed petitioner counting money contained in a garbage bag using a machine that petitioner had removed from another travel or "pull bag." (Tr. 74-75.)McCleary testified that after petitioner finished counting the money, he handed it to Mr. Respect, who passed the money to McCleary to drive back to Texas. (Tr. 75-76.) When McCleary arrived in Texas, he was instructed by James to give the money to James's associate, "Desi." (Tr. 78-79.)

Approximately three weeks later, Mr. Respect called McCleary and instructed him to go to Houston, Texas and call James for further instruction. (Tr. 79-80.) Once in Texas, McCleary called James, who instructed him to contact Desi. Desi then instructed McCleary to pick up a "load" in Houston, Texas containing electrical fixtures, such as wires, sockets, and other fixtures, as well as a load of marijuana from a ranch in Seguin, Texas. (Tr. 80-82.) He testified that "the same person that called [him] before on the first trip" instructed him to deliver this marijuana shipment to a warehouse in New Jersey that was "the same place that we go before [sic]." (Tr. 83.) At the warehouse, after McCleary and others unloaded the marijuana from the truck, McCleary received a call from James, 6-0, and Desi informing him that part of the load was believed to be missing. (Tr. 84-85.) McCleary testified that after the delivery, he met 6-0, who brought him to the apartment in the Bronx where Mr. Respect was waiting. (Tr. 86.) The three men went to a restaurant to meet James; however, when they arrived, petitioner was waiting without James. (Tr. 86-87.) At thistime, petitioner instructed Mr. Respect to inform McCleary that James had to make a decision about the missing marijuana. (Tr. 86.) McCleary drove home to Miami, Florida after the encounter and began driving legitimate loads because James and petitioner did not want him to transport marijuana after the incident with the missing drugs. (Tr. 87-90.)

McCleary testified that in October 2003 he was again called by James who told him that none of the marijuana had been missing and there had been a mistake. (Tr. 94-95.) James asked McCleary to start transporting drugs again for him, and in June 2004, McCleary drove eight duffel bags filled with 400 pounds of marijuana from Florida to New York. (Tr. 94-100.) While on the New Jersey Turnpike, McCleary called James, who informed him that his "brother," who McCleary understood to be petitioner, would call McCleary with directions to a location in Ridgewood, New York. (Tr. 98.) McCleary testified that petitioner then called him and provided directions to a construction yard, where petitioner met him with another man and unloaded the marijuana from the truck into an Altima, in which petitioner then drove off. (Tr. 99-100.) For this trip, James paid McCleary $17,000. (Tr. 100.) In September 2004, McCleary transported approximately 150 pounds of marijuana from New Mexico to the Bronx. (Tr. 102-109.) James met McCleary in the Bronx to pickup the marijuana, and two days later paid McCleary $7,500. (Tr. 106-07.)

In October 2004, McCleary began transporting cocaine, and couriered approximately five boxes of cocaine from Seguin, Texas to Atlanta, Georgia. (Tr. 108-13.) After delivering the shipment in Atlanta, where he met Desi, McCleary was handed a "small . . . bag with a small quantity" of cocaine; James had previously told McCleary that Desi was going to give him the small package of cocaine to bring to James in the Bronx. (Tr. 111-12.) McClearly couriered this remaining quantity from Atlanta to the Bronx, where he met and delivered the drugs to James. (Tr. 111-12.) James paid McCleary $15,000 of the $50,000 he was due for the transportation. (Tr. 113.) According to McCleary, three days later — after the cocaine was sold — he called petitioner, who told him that James gave petitioner the money to pay McCleary for the cocaine. Petitioner then met McCleary in the Bronx and paid McCleary the remaining balance of $35,000. (Tr. 113-14.)

In early November 2004, McCleary transported four duffel bags of cocaine from Texas to Georgia for James, for which he received $50,000. (Tr. 124-30.) Following this trip, James instructed McCleary to transport four duffel bags containing approximately 100.1 kilograms of 85% pure cocaine from Texas to New York. (Tr. 138-42; Ex. B (GX 4 (DEALaboratory Report dated Dec. 22, 2004)); Ex. C (GX 5 (Stipulation dated Apr. 11, 2008))). On the morning of November 27, 2004, while en route to New York, McCleary was pulled over by a Louisiana state trooper on a Louisiana highway. After the trooper checked McCleary's tags, license, and registration, the trooper told McCleary that he was the subject of an outstanding warrant from South Carolina on a gun possession charge. (Tr. 142-43) During the stop, McCleary consented to a search and the state trooper discovered the cocaine shipment and placed McCleary under arrest. (Tr. 26-28, 143-45.) After his arrest, McCleary was brought to the "narcotics headquarters" where he agreed to cooperate with law enforcement by participating in a controlled delivery using sham cocaine and engaged in consensually-monitored and recorded telephone calls with James...