United States v. Washington

1

UNITED STATES OF AMERICA v. RANDY WASHINGTON, Petitioner.

Nos. 11-cr-605 (RJS), 18-cv-1187 (RJS)

United States District Court, S.D. New York

January 7, 2022

OPINION AND ORDER

RICHARD J. SULLIVAN, CIRCUIT JUDGE

Randy Washington, proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 in connection with his conviction and sentence for conspiracy to commit robbery, robbery and attempted robbery, brandishing a firearm during the commission of a robbery, conspiracy to distribute and possess narcotics, and trafficking firearms. (Doc. No. 146 (“Petition”).) For the reasons set forth below, the petition is DENIED.

I. BACKGROUND

Between October 2008 and February 2011, Washington and his coconspirators participated in a series of robberies, drug crimes, and weapons offenses in the Bronx.^[1] Among other crimes, Washington and his accomplices (collectively, the “Crew”) robbed a bar called The Magic Pot Lounge in the Bronx on October 11, 2008, during which they held patrons and employees at gunpoint and stole their wallets cash from the register, and bottles of liquor. (Presentence Investigation Report (“PSR”) ¶ 19.) On August 12, 2010, Washington and two Crew members impersonated police and entered the apartment of an individual believed to possess drug proceeds; Washington used a gun to pistol-whip that person about the face. (Id. at ¶ 20.) Several days later, on August 18, 2010, Washington and the Crew drove to the apartment of another suspected drug dealer, where two of the men used a similar ruse to enter the apartment and steal fifteen pounds of marijuana. (Id. at ¶¶ 21-23.) Between 2007 and 2011, Washington was also involved in the sale of marijuana, cocaine, and heroin, as well as the transportation of firearms from North Carolina to New York for the purpose of illegal sale. (Id. at ¶¶ 24-27.)

On June 16, 2011, Washington was arrested for the robbery, narcotics, and firearm offenses described above. A grand jury ultimately returned a superseding indictment that charged Washington with conspiracy to commit robbery, in violation of 18 U.S.C. § 1951 (Count One); robbery and attempted robbery, in violation of 18 U.S.C. §§ 1951 and 2 (Counts Two, Three, and Four); brandishing a firearm during the commission of a robbery, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), 924(c)(1)(C), and 2 (Counts Five and Six); conspiracy to distribute and possess with intent to distribute narcotics, in violation of 18 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846 (Count Seven); and trafficking firearms, in violation of 18 U.S.C. §§ 922(a)(1)(A) and 2 (Count Eight). (Doc. No. 29 (the “Indictment”).)

Prior to trial, the government made a plea offer that would have permitted Washington to plead guilty to one robbery count and one count of brandishing a firearm in connection with that robbery. (Doc. Nos. 84 at 3, 106 at 6:8-18.) At Washington's arraignment, his then-attorney, Louis Freeman, acknowledged the plea offer and noted that the brandishing charge carried a sevenyear minimum prison term, which combined with the robbery charge would produce a total guidelines sentence of approximately 120 months' imprisonment. (Id.) The government explained during the arraignment that, if convicted on all counts at trial, Washington would face a mandatory minimum sentence of forty-two years of imprisonment, which would increase to fifty-two years if the government filed a prior felony information in connection with the narcotics conspiracy count. (Id. at 7:11-14.) Thereafter, Washington, Freeman, and the government held a reverse proffer session during which the government again explained to Washington the terms of the proposed plea deal and its possible sentencing consequences. (Doc. No. 84 at 3.)

Washington declined the plea offer (id.), and the government filed a prior felony information, which increased the combined mandatory minimum sentence to fifty-two years. (Doc. No. 21.) Before trial, Washington filed a motion to suppress evidence (Doc. No. 37) and a motion to sever the robbery-related, narcotics, and firearms counts from each other (Doc. No. 42), both of which the Court denied (Doc. No. 48). Washington then filed a motion in limine to preclude certain evidence (Doc. No. 46), which the Court also denied (Doc. No. 49). Trial commenced on March 12, 2012, and on March 20, the jury returned guilty verdicts on all counts.

Prior to sentencing, Freeman sent a letter requesting that the Court order an evaluation of Washington's cognitive capacity. (Doc. No. 103 at 2.) The Court granted the request and appointed the psychiatrist proposed by Washington, Dr. Sanford L. Drob, to evaluate Washington's mental competence. (Id. at 5.) In his subsequent written report, Dr. Drob determined that Washington suffered from a number of cognitive impairments but found no evidence that Washington had been incompetent to stand trial; Dr. Drob also concluded that Washington was competent to proceed with sentencing. (Aff. of David Gordon, dated Aug. 9, 2013 (“Gordon Aff.”), Doc. No. 87, Ex. 3.) Notwithstanding Dr. Drob's diagnosis, Freeman requested a further neuropsychological evaluation of Washington, which the Court also granted. (Doc. No. 70.) Dr. William B. Barr, also selected by Washington's counsel, examined Washington and issued a report that largely confirmed Dr. Drob's findings. (Gordon Aff., Ex. 4.) Although Freeman subsequently requested further testing to determine the origin and nature of Washington's cognitive impairments (Doc. No. 103 at 7), the Court denied the request, finding that such information was not relevant to the issue of competency (Doc. No. 73).

Freeman later sent a letter to the Court moving for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, arguing that (1) Washington did not have “a meaningful opportunity to knowingly and voluntarily plead guilty” (Doc. No. 103 at 11 (citing Lafler v. Cooper, 566 U.S. 156, 173 (2012))), or (2) in the alternative, Washington's neurological impairment deprived him of effective assistance of counsel during plea negotiations (Doc. No. 103 at 11-15). In light of Washington's representation to Dr. Barr that Freeman failed to convey certain provisions of the plea offer (Doc. No. 104 at 4:15-5:24), the Court relieved Freeman and appointed David Gordon to represent Washington going forward (id. at 9:10-17, 12:18-16:5).

On August 9, 2013, Washington, through Gordon, filed a motion requesting that the Court (1) set aside the jury's verdict because Washington was incompetent to engage in plea negotiations and stand trial, or (2) order the government to renew its prior plea agreement to Washington because Freeman provided ineffective assistance of counsel during plea negotiations. (Doc. No. 85.) The Court denied the motion, finding that Washington was both competent and adequately represented before, during, and after trial. (Doc. No. 109 (“Op.”).)

Nevertheless, at the Court's suggestion the government ultimately agreed to dismiss Count Five of the Indictment - the first of the two Section 924(c) counts - which reduced Washington's mandatory minimum prison term to twenty-five years. (Doc. No. 133 at 2:23-3:5, 4:7-12.)^[2] The Court imposed a total term of imprisonment of twenty-seven years, including (1) twenty years on Counts One through Four, twenty-two years on Count Seven, and five years on Count Eight, all to run concurrently; and (2) five years on Count Six, to run consecutive to the other sentences. (Doc. No. 130.) The Second Circuit affirmed Washington's conviction in a summary order. United States v. Bent, 654 Fed.Appx. 11 (2d Cir. 2016), cert. denied, 137 S.Ct. 698 (2017) (mem.).

Now before the Court is Washington's petition pursuant to 28 U.S.C. § 2255, raising an assortment of constitutional, statutory, and evidentiary arguments.^[3] (Doc. No. 146 (“Pet.”).) At the government's request, the Court stayed the matter pending the Second Circuit's resolution of two cases, United States v. Barrett, 903 F.3d 166 (2d Cir. 2018), and United States v. Hill, 890 F.3d 51 (2d Cir. 2018), which were expected to implicate Washington's claim that he had not committed “crimes of violence.”

After the Second Circuit rendered its decisions in those cases, the parties filed supplemental submissions to this Court. (Case No. 18-cv-1187, Doc. No. 12; Case No. 11-cr-605, Doc. Nos. 157, 158, 160). The government subsequently filed another supplemental brief after the Supreme Court issued its decision in United States v. Davis, 139 S.Ct. 2319 (2019). (Doc. No. 162.) Finally, on May 28, 2021, the Court received a letter from Washington dated May 17, 2021, which the Court liberally construed to be a motion for compassionate release under the First Step Act of 2018, Pub. L. No. 115-391, § 401(c), 132 Stat. 5194, 5221. (Doc. No. 177.) The government submitted a response on June 11, 2021, opposing Washington's motion for compassionate release. (Doc. No. 179.)

II. LEGAL STANDARD

Section 2255 enables a prisoner who was sentenced by a federal court to petition that court to vacate, set aside, or correct the sentence on the ground 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 generally available “only 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) (quoting Hill v. United States 368 U.S. 424, 428 (1962)). “Because collateral challenges are in ‘tension with society's strong interest in the finality of...