United States v. Key

UNITED STATES OF AMERICA, v. ROGER KEY, Defendant.

12-Cr-712-1 (SHS)

18-Cv-7716 (SHS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

May 31, 2019

OPINION & ORDER

SIDNEY H. STEIN, U.S. District Judge.

In 2014, after a two-week trial, a jury convicted Roger Key of six charges related to drug trafficking and two conspiracies to commit murder-for-hire. This Court sentenced Key to life imprisonment plus 30 years. The U.S. Court of Appeals for the Second Circuit affirmed. United States v. Babilonia, 854 F.3d 163 (2d Cir. 2017), cert. denied sub nom., 138 S. Ct. 438 (2017). In 2018, Key, acting pro se, timely petitioned the Court to vacate his sentence through two procedural mechanisms: 28 U.S.C. § 2255 and Federal Rule of Civil Procedure 60(b) and (d). (Doc. Nos. 640, 645.) For the reasons that follow, petitioner's motions fail to establish that he is entitled to relief and are therefore denied.

I. BACKGROUND

In February 2014, Key was indicted on nine offenses in a superseding indictment. (Doc. No. 330.) The indictment included charges related to a narcotics conspiracy involving firearms (Counts I-II), the conspiracy and attempted murder-for-hire of Matthew Allen—the abusive boyfriend of Key's lover Aisha Babilonia (Counts III-V)—and the conspiracy and murder-for-hire of Terry Harrison, a rival drug dealer of Key's (Counts VI-IX).

In March 2014, Key proceeded to trial. The government put on a substantial case revealing that Key became a high-level drug distributor in Manhattan and the Bronx beginning in 2010, when he was released from a period in custody. The government's case also included significant evidence that Key and others plotted to have Harrison and Allen killed. The government called 25 witnesses, including six cooperating witnesses. It introduced wiretap recordings of Key and coconspirators, narcotics paraphernalia, the gun used in the Allen attempted murder, a GPS device that coconspirators placed on Allen's car, bank records, phone and cell site records, and vehicular records. The defense elected not to call any witnesses. On April 2, 2014, the jury rendered its verdict, convicting Key on Counts I-VI (the drug trafficking charges, the Allen murder-for-hire charges, and the conspiracy to commit the Harrison murder-for-hire) and finding him not guilty on Counts VII-IX (the other Harrison murder-for-hire charges).

In March 2015, the Court sentenced Key to life imprisonment on Count I, 10 years concurrently on Counts III, IV, and VI, five years consecutively on Count II, and 25 years consecutively on Count V. The Second Circuit upheld Key's convictions on direct appeal, observing the significant and substantial evidence at trial against him. Babilonia, 854 F.3d at 181; id. at 173 ("The government called approximately 25 witnesses . . . and introduced wiretap records and physical records, including narcotics paraphernalia, a firearm, a photograph of items seized during the Car Stop, cell site records, phone records, Department of Motor Vehicle records, and bank records."). The U.S. Supreme Court denied Key's subsequent petition for a writ of certiorari. Key v. United States, 138 S. Ct. 438 (2017). Within 28 U.S.C. § 2255(f)'s one-year limitation period, Key filed the present motions. See Rosa v. United States, 785 F.3d 856, 859 (2d Cir. 2015).

II. DISCUSSION OF KEY'S SECTION 2255 MOTION

Pursuant to 28 U.S.C. § 2255, the Court may vacate a petitioner's judgment if it determines "that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255(b). Petitioner raises three avenues for relief in his Section 2255 motion. First, he offers myriad rationales for why his trial counsel's representation wasconstitutionally inadequate. Next, he maintains that recent Supreme Court precedent renders one of the statutes that he was convicted of violating impermissibly vague. Finally, Key asserts that if the Court disposes of some of the counts against him, it must grant him a new trial on the remaining charges, due to the prejudicial impact of trying the drug and murder-for-hire charges simultaneously. As set forth below, none of petitioner's arguments state plausible claims for relief.

A. Ineffective Assistance of Counsel

Key's central argument accuses his trial counsel of inadequate representation. To succeed on a claim of ineffective assistance of counsel, a petitioner must show that (1) his counsel performed below an objective standard of reasonableness and (2) but-for the deficiencies in counsel's representation, there exists a reasonable probability that the proceeding's outcome would have differed. Morales v. United States, 635 F.3d 39, 43 (2d Cir. 2011) (citing Strickland v. Washington, 466 U.S. 668, 688, 692-94 (1984)). Key must overcome a "strong presumption" that his attorney's conduct fell within the acceptable range of professional assistance and constituted a reasonable trial strategy. Weingarten v. United States, 865 F.3d 48, 52 (2d Cir. 2017) (citation omitted); United States v. Nunez-Polanco, 20 F. Supp. 3d 473, 477 (S.D.N.Y. 2014); United States v. Brunshtein, 545 F. Supp. 2d 357, 359-60 (S.D.N.Y. 2008). To satisfy the prejudice prong, Key must demonstrate a probability that sufficiently undermines confidence in the verdict. Id. Key fails to show that but-for the alleged deficiencies, considered alone or cumulatively, his convictions or sentence would have differed.

1. Failure to Advise During Plea Negotiations

First, Key claims that he received ineffective representation during the plea-bargaining process. "Defense counsel have a constitutional duty to give their clients professional advice on the crucial decision of whether to accept a plea offer from the government." Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003). "Even if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence." Lafler v. Cooper, 566 U.S. 156, 166 (2012).

According to Key, his attorney learned about incriminating cell-site location information (CSLI) evidence the night before trial. (Tr. 1317-18, 1356-63.)¹ Because counsel allegedly had not known about this evidence, he did not investigate it. Thus, the attorney did not adequately advise Key about the weight of the government's case against him during earlier plea negotiations. In fact, Key alleges, he does not even recall his "lawyer advising [him] of the plea offer or what it was." (Doc. No. 660, Second Key Aff. ¶ 4.) Had Key known how inculpatory the CSLI was, he avers, he would have "accepted the plea offer extended pre-trial." (Id.; see also Doc. No. 640, First Key Aff. ¶ 3.)

The Court "need not accept . . . at face value" Key's uncorroborated statements that his counsel failed to inform him about the government's plea offer. Samet v. United States, 559 F. App'x 47, 49 (2d Cir. 2014). His claim is particularly incredible since the government stated clearly on the record during a pre-trial conference, at which Key was present, that an oral plea offer was made and had been rejected. (Doc. No. 380, Hr'g Tr. 2, 76.)

Regardless, Key cannot establish that he suffered any prejudice. Key must show a reasonable probability that a plea offer would have been presented to and accepted by the Court, and that his conviction or sentence would have been less severe. Fulton v. Graham, 802 F.3d 257, 266 (2d Cir. 2015). "[A] defendant may not rely solely on his own, self-serving statement post-verdict that he would have accepted a more favorable plea deal." United States v. Bent, 654 F. App'x 11, 13 (2d Cir. 2016). Thus, Key's promises, alone, that he would have pled areinsufficient. Additional "objective" evidence is required. Raysor v. United States, 647 F.3d 491, 495 (2d Cir. 2011).²

Such evidence "may include a significant sentencing disparity between the sentence imposed and the sentence that effective counsel would have obtained for the defendant." Bent, 654 F. App'x at 13. Key points to the sentence of Ruben Davis, a co-conspirator who pled and received a 228-month sentence, as a plausible comparator. The government contends that Davis's plea offer is inapposite, because unlike Key, Davis faced no charges related to murder-for-hire. (Doc. No. 93.) Thus, Key received a more punitive pre-trial oral plea offer. Key's "suggestion that he would have received a sentence similar to those of his cooperating co-defendants is based on pure speculation, particularly since he has not demonstrated that he would have cooperated to a degree satisfactory to the government." Zandi v. United States, 460 F. App'x 51, 52-54 (2d Cir. 2012) (rejecting, without a hearing, defendant's argument, based on his sworn affidavit, that he would have accepted a plea offer). Because Key has not made any showing of "what sentence he would have received pursuant to a plea agreement," id. at 53, he has not demonstrated that he experienced prejudice as a result of any deficiencies in his counsel's representation during plea bargaining.

2. Failure to Suppress CSLI

Next, Key faults his trial counsel for not moving to suppress the CSLI, which the government obtained without a search warrant supported by probable cause. Four years after Key's trial, the Supreme Court held that the Fourth Amendment required such a warrant to collect CSLI. Carpenter v. United States, 138 S. Ct. 2206, 2223 (2018). Although Key may wish that his attorney had been more prescient, "attorneys are not required to predict changes in the law." United States v. Carrano, 340 F. Supp. 3d 388,397 (S.D.N.Y. 2018) (rejecting defendant's Strickland argument that his attorney should have preemptively moved to suppress CSLI before Carpenter was issued).

Moreover, counsel's...