Smith v. United States

1

DEARICK SMITH, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Nos. 09-CR-6064 (CJS), 18-CV-6917 (CJS)

United States District Court, W.D. New York

May 17, 2022

DECISION AND ORDER

CHARLES J. SIRAGUSA UNITED STATES DISTRICT JUDGE

INTRODUCTION

Petitioner Dearick Smith was a member of a street gang known as both the Chain Gang and as the Wolfpack, which was operating in Rochester, New York from 2006 through early 2009. After a jury trial in 2011, he was convicted and given an aggregate sentence of fifty years imprisonment on four charges: RICO conspiracy, in violation of 18 U.S.C. § 1962(d); knowingly and unlawfully possessing a firearm in furtherance of the RICO conspiracy, in violation of 18 U.S.C. § 924(c); conspiracy to distribute narcotics, in violation of 21 U.S.C. § 846; and knowingly and unlawfully possessing a firearm in furtherance of the narcotics conspiracy, in violation of 18 U.S.C. § 924(c). The conviction and sentence were affirmed on appeal.

Now before the Court is Smith's application pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Pet., Dec. 14, 2018, ECF No. 1431. Petitioner maintains that he received the ineffective assistance of counsel, and that his conviction of knowingly and unlawfully possessing a firearm in furtherance of the RICO conspiracy in violation of 18 U.S.C. § 924(c) should be vacated under United States v. Davis, 139 S.Ct. 2319 (2019).

For the reasons set forth below, the application [ECF No. 1431] is denied with respect to Smith's arguments that he received the ineffective assistance of counsel. However, the application [ECF No. 1431] is granted with respect to Petitioner's request to vacate his conviction on the charge of knowingly and unlawfully possessing a firearm in furtherance of the RICO conspiracy in violation of 18 U.S.C § 924(c). See United States v. Capers, 20 F.4th 105, 119 n. 10 (2d Cir. 2021) (noting that the logic underlying the Second Circuit's decision affirming Petitioner's § 924(c) conviction based on the RICO conspiracy has been “abrogated by Davis's invalidation of the residual clause.”). Counsel for Petitioner is directed to contact the Court within fourteen (14) days from the date of this order to schedule a plenary resentencing on the remaining three convictions: RICO conspiracy, in violation of 18 U.S.C. § 1962(d); conspiracy to distribute narcotics in violation of 21 U.S.C. § 846; and knowingly and unlawfully possessing a firearm in furtherance of the narcotics conspiracy, in violation of 18 U.S.C. § 924(c).

BACKGROUND

The reader is presumed to be familiar with the factual and procedural background of this case. In affirming Petitioner's sentence, the Second Circuit provided a concise summary of much of the relevant detail:

In 2011, Defendants-Appellants Dearick Smith [i.e Petitioner], Michael Jackson, and Russell Hampton were tried by a jury for crimes alleged to have been committed by each during the period from 2006 through early 2009, as members of the violent Chain Gang (also known as the Wolfpack street gang), which was then operating in Rochester, New York. The jury found each guilty of RICO conspiracy, in violation of 18 U.S.C. § 1962(d); knowingly and unlawfully possessing a firearm in furtherance of that RICO conspiracy, in violation of 18 U.S.C. § 924(c); and conspiracy to distribute narcotics, in violation of 21 U.S.C. § 846. The jury also found [Petitioner] and Jackson guilty of knowingly and unlawfully possessing a firearm in furtherance of the narcotics conspiracy, in violation of 18 U.S.C. § 924(c).

United States v. Scott, 681 Fed.Appx. 89, 91-92 (2d Cir. 2017).

After the verdict, Petitioner joined in a supplemental motion under Rule 29 of the Federal Rules of Criminal Procedure, seeking a judgment of acquittal based upon the application of the federal Juvenile Delinquency Act (“JDA”), 18 U.S.C. § 5031, et seq. Order, 1, Oct. 30, 2012, ECF No. 903. Petitioner noted that all of the conduct for which he was convicted occurred before he turned eighteen years of age, and argued that he was entitled to acquittal under the JDA because the jury's failure to specifically find that “he engaged in post-eighteen conduct, thereby ‘ratifying' his participation in the conspiracy” divested the Court of subject matter jurisdiction in the matter. Order at 2. After hearing oral argument, the Court found:

Whether this Court, upon request by defendants, would have been required to instruct the jury that they must be unanimous beyond a reasonable doubt as to a finding of post-18 activity before they could return a verdict of guilty even if viewed in a light most favorable . . . to the defendants a[s] opposed to the government is at best not clear. What is clear, however, is that despite being given ample opportunity to request specific instructions, defendants never asked for such a charge nor was there any objection to the failure to give such instruction at the time the jury was in fact charged .... so the plain error standard applies ....

* * *

The Court finds here that there was no plain error .... there has been no showing that the error affected any substantial rights or the error in any way impaired the integrity, fairness or public reputation of the proceedings.

Hrg. Tr., 16:6-18:5, Oct. 30, 2012, ECF No. 903-1 (quoting United States v. Vargas-De Jesus, 618 F.3d 59 (1st Cir. 2010)) (internal quotation marks omitted). Thereafter, Petitioner was sentenced to 50 years' imprisonment. Scott, 681 Fed.Appx. at 92.

Petitioner challenged the Court's ruling on the JDA issue on appeal, but the Second Circuit affirmed. Scott, 681 Fed.Appx. at 97. Petitioner now moves the Court under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.

LEGAL STANDARDS

As indicated above, the primary matter before this Court is a petition for habeas relief pursuant to 28 U.S.C. § 2255, on the grounds that the petitioner received the ineffective assistance of counsel. § 2255 provides, in relevant part, as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

Most claims under § 2255 are procedurally barred if they are not pursued on direct appeal. See Mui v. United States, 614 F.3d 50, 55 (2d Cir. 2010). However, ineffective assistance of counsel claims may be raised in a § 2255 petition even though they were not raised on direct appeal. Massaro v. United States, 538 U.S. 500, 504-05 (2003). Indeed, as the Supreme Court has stated, “in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance” because collateral attack allows the claim to be “litigated in the first instance in the district court, the forum best suited to developing the facts necessary to determining the adequacy of representation during an entire trial.” Id. at 505-06.

The Sixth Amendment guarantees a criminal defendant the right to “reasonably effective assistance” of counsel. To establish ineffective assistance of counsel, a defendant must satisfy the two-prong test outlined in Strickland v. Washington, 466 U.S. 668 (1984). A defendant's failure to satisfy one prong of this two-pronged test relieves the court of any requirement to consider the other prong. Strouse v. Leonardo, 928 F.2d 548, 556 (2d Cir. 1991).

First, the defendant must demonstrate that his attorney's performance “fell below an objective standard of reasonableness” under the “prevailing professional norms.” Vadas v. U.S., 527 F.3d 16, 20 (2d Cir. 2007) (citing Strickland, 466 U.S. at 688). When applying this first Strickland prong, courts must be mindful of the variety of approaches effective attorneys might employ when dealing with a particular set of facts, and “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Parisi v. U.S., 529 F.3d 134, 141 (2d Cir. 2008) (quoting Strickland, 466 U.S. at 689). Hence, the Court must “consider the circumstances counsel faced at the time of the relevant conduct and . . . evaluate the conduct from counsel's point of view.” Davis v. Greiner, 428 F.3d 81, 88 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 689). In this context, “‘[s]trategic choices made by counsel after thorough investigation . . . are virtually unchallengeable.” Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir. 2005) (internal quotation marks and citation omitted).

Second, the defendant must demonstrate he was prejudiced by the ineffective conduct. Strickland at 687-88. That is, he must show there is a “reasonable probability” that but for counsel's error, the outcome of the proceeding would have been different. Strickland at 694. In evaluating prejudice, we look to the cumulative effect of all of counsel's unprofessional errors. Gersten, 426 F.3d at 611. The strength of the government's case is relevant to this analysis. See United States v. Wilke, No. 09-CR-6099 CJS, 2017 WL 3167657, at *2 (W.D.N.Y. July 25, 2017) (citing Rosario v. Ercole, 601 F.3d 118, 136 (2d Cir. 2010)).

DISCUSSION

Petitioner identifies eight instances of what he believes to constitute the ineffective assistance of trial counsel. Certification of Defendant (“Def.'s Cert.”), Dec. 14, 2018 ECF No. 1431. Specifically, Petitioner claims that trial counsel: (1) misadvised him on the ratification issue, failed...