Stevenson v. United States

ORDER

LORETTA A. PRESKA, Senior United States District Judge:

Before the Court is Petitioner Eric Stevenson's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.^[1](See dkt. nos. 19, 20 in 18-cv-1722 and dkt. no. 172 in 13-cr-161.)^[2] The Government opposes the motion. (See dkt. no. 174.) For the reasons set out below, the motion is denied.

I. Background

a. The Investigation and Indictment

From January 2011 until his conviction in January 2014, Mr. Stevenson was a member of the New York State Assembly representing District 79 in the Bronx. (See dkt. nos. 34 at 1; 101; N.Y. Pub. Officers L. § 30(e) (“Every office shall be vacant upon the happening of . . . [an Assemblyman's] conviction

of a felony.”).) Beginning in early 2012, a group of businessmen including twin brothers Igor and Rostislav Belyansky, Igor Tsimerman, and David Binman (together, “the Businessmen”)^[3] sought then-State Assemblyman Nelson Castro's assistance in opening an adult day care center in the Bronx. (Dkt. no. 174 at 4-5.) Another politician, Sigfredo Gonzalez, brokered meetings between the Businessmen and Mr. Castro. (Id.) Unbeknownst to the Businessmen and Mr. Gonzalez, Mr. Castro was cooperating with the Government as an informant. (Id.) After the Businessmen paid then-State Assemblyman Castro a bribe to further their adult day care center in January 2012 -- of which Mr. Gonzalez took a cut -- the Government subsequently secured Mr. Gonzalez's cooperation in April 2012. (Id. at 5-6.)

Through Mr. Gonzalez's cooperation, the Government surveilled multiple bribes from the Businessmen to Mr. Stevenson. (See Id. at 6-13.) In exchange for helping the Businessmen open their adult day care center and introducing legislation in the New York State Assembly (“the Moratorium Legislation”) that would benefit them financially after the center's opening, Mr. Stevenson accepted four bribes from the Businessmen, totaling

$22, 000, between July 2012 and February 2013.^[4](See id. at 615.)

On August 15, 2013, a grand jury charged Mr. Stevenson and the Businessmen in a six-count superseding indictment. (See dkt. no. 34.) The indictment charged Mr. Stevenson in four counts. (Id.) Count One charged Mr. Stevenson with Honest Services Fraud Conspiracy, in violation of 18 U.S.C. §§ 1343 and 1346. (Id. ¶¶ 6-9.) Counts Two and Three charged Mr. Stevenson with Federal Programs Bribery and Travel Act Conspiracy, in violation of 18 U.S.C. §§ 666(a)(1)(B), 666(a)(2), and 1952(a)(3). (Id. ¶¶ 10-17.) Count Five charged Mr. Stevenson with Extortion Under Color of Official Right, in violation of 18 U.S.C. §§ 1951(b)(2) and (b)(3). (Id. ¶¶ 20-21.) Following the initial indictment, the Court appointed Andrew G. Patel as Criminal Justice Act (“CJA”) counsel to represent Mr. Stevenson. (See dkt. no. 28.)

b. Pre-Trial

The late Judge William H. Pauley III initially presided over Mr. Stevenson's criminal case. (See, e.g., dkt. no. 38.)

On December 10, 2013, Judge Pauley ordered a conference to discuss Mr. Stevenson's dissatisfaction with his appointed counsel. (See dkt. no. 63.) At the conference, both Mr. Stevenson's CJA counsel and his proposed substitute counsel, Mr. Muhammad Ibn Bashir, were present. (See dkt. no. 74 at 2-3.) Judge Pauley repeatedly asked Mr. Bashir if he would be ready for trial on January 6, 2014. (Id. at 5-6.) Mr. Bashir answered affirmatively, stating that he had no intention of delaying the trial. (Id. at 5.) Judge Pauley thus granted Mr. Stevenson's request for new counsel. (Id. at 14.)

On December 18, 2013, Mr. Stevenson's case was reassigned to this Court. (See dkt. no. 66.) Thereafter, Mr. Bashir moved for a trial adjournment of two weeks. (Dkt. no. 174-1 at 18, 25.) At a final pre-trial conference on January 2, 2014, the Court denied that motion, noting that Judge Pauley had allowed Mr. Bashir's substitution on the condition that he would be ready for trial on January 6, 2014. (See id. at 28-29.)

c. Trial and Sentencing

Trial began on January 7, 2014. (See dkt. no. 93.) At trial, the Government called seven witnesses: (1) Mr. Gonzalez, the cooperating witness who participated in and recorded Mr. Stevenson's and the Businessmen's conversations regarding bribes; (2) the Government investigator who surveilled those discussions; (3) a bill-writer from Albany, New York, who

converted Mr. Stevenson's proposed Moratorium Legislation into a drafted bill that Mr. Stevenson introduced in the New York State Assembly; (4) a Con Edison official who described how Mr. Stevenson asked Con Edison to accelerate work on one of the Businessmen's adult day care centers; (5) a New York State Board of Elections employee, (6) an employee from the Legislative Ethics Commission, who outlined public officials' duty to disclose certain payments, which Mr. Stevenson never made; and (7) a car dealership employee from where Mr. Stevenson bought a Jaguar sports car the day after he received a $10, 000 cash bribe from the Businessmen. (See dkt. no. 174 at 3-4.) Further, the Government introduced “numerous exhibits, ” including recordings of conversations between Mr. Stevenson, the Businessmen, and Mr. Gonzalez. (Id. at 4.) Following the Government's case in chief, the defense did not call any witnesses. (See dkt. no. 99 at 132-35.) The jury found Mr. Stevenson guilty on all four counts. (See dkt. no. 101 at 140-42.)

On May 21, 2014, this Court sentenced Mr. Stevenson to an aggregate term of 36 months imprisonment. (See dkt. no. 133 at 2.) The Court then issued a preliminary forfeiture order, which included forfeiture of the substitute asset of Mr. Stevenson's pension fund held in an account with the New York State and Local Retirement System. (See dkt. nos. 150 at 2; 157 at 1-2.) After briefing from the parties, the Court signed its final

order forfeiting the substitute asset in July 2015. (See dkt. nos. 148, 150, 156, and 162 at 4.)

d. The Defendant's Appeals and the Instant Motion

On direct appeal, Mr. Stevenson advanced six principal arguments: (1) the district court's calculation of his sentencing guidelines was improper because two enhancements that the court selected (“public official” and “elected public official”) impermissibly overlapped (see U.S.S.G §§ 2C.1.1(a)(1), (b)(3)); (2) a jury should have decided the amount of forfeiture beyond a reasonable doubt; (3) the district court's denial of a trial adjournment deprived him of effective counsel; (4) an adverse evidentiary ruling violated his Fifth Amendment rights; (5) the evidence proffered at trial was insufficient to sustain a guilty verdict; and (6) his counsel was ineffective for failing to raise an entrapment defense. See generally United States v. Stevenson, 834 F.3d 80 (2d Cir. 2016), cert. denied, 137 S.Ct. 1212 (2017); United States v. Stevenson, 660 Fed.Appx. 4 (2d Cir. 2016), cert. denied, 137 S.Ct. 1212 (2017). In a published opinion and an unpublished summary order, the Court of Appeals denied all but the last of Mr. Stevenson's arguments. See Stevenson, 834 F.3d at 88; Stevenson, 660 Fed.Appx. at 8. The Court of Appeals noted that the “preferred means” for deciding ineffective assistance claims is a 28 U.S.C. § 2255 motion, and, while briefly discussing

challenges that such a claim would face, the Court of Appeals left Mr. Stevenson the choice to bring such a motion. Stevenson, 660 Fed.Appx. at 8.

Accordingly, on February 26, 2018, Mr. Stevenson filed the instant pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (See dkt. no. 2 in 18-cv-1722.) Mr. Stevenson's motion argues that (1) the evidence introduced at trial was insufficient to sustain a conviction, and (2) he received ineffective assistance of counsel. (See Id. at 5-10.) The latter claim rests on the grounds that Mr. Stevenson's defense counsel failed to: (1) present an entrapment defense; (2) object to the Court's definition of “official act” in its jury instructions; (3) object to the Court's forfeiture order; (4) challenge the Court's decision precluding evidence of Gonzalez's racial bias; (5) present acquittal evidence; and (6) challenge the Court's rejection of adjournment. (See id. at 615.) After the Government filed its opposition, Mr. Stevenson moved to strike the latter three grounds of his ineffective assistance of counsel claim. (See dkt. no. 19 in 18-cv-1722.)

II. Legal Standards

a. The Habeas Statute and The Mandate Rule

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).

In general, however, a § 2255 motion may not be used to relitigate issues already decided on direct appeal. See Burrell v. United States, 467 F.3d 160, 165 (2d Cir. 2006); United States v. Minicone, 994 F.2d 86, 89 (2d Cir. 1993) . This is known as the mandate rule. Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010). The mandate rule “prevents re-litigation in the district court not only of matters expressly decided by the appellate court, but also precludes re-litigation of issues impliedly resolved by the appellate court's mandate.” Id.; see also United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001) . In the specific context of § 2255 ineffective assistance of counsel litigation, the United States Court of Appeals for the Second Circuit has applied the mandate rule in this manner, including “when the factual predicates of []claims, while not explicitly raised on direct appeal, were nonetheless...