Walker v. United States

1

KEVIN WALKER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 21-CV-7887 (JSR) (KHP)

United States District Court, S.D. New York

August 23, 2022

REPORT AND RECOMMENDATION

KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE

TO THE HONORABLE JED S. RAKOFF, UNITED STATES DISTRICT JUDGE FROM: KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE

In 2018, Kevin Walker (“Petitioner”) was convicted in the United States District Court, Southern District of New York, of conspiracy to commit Hobbs Act Robbery violating 18 U.S.C. § 1951 (“Count One”), Hobbs Act Robbery violating 18 U.S.C. § 1951 (“Count Two”), and a firearms related charge in violation of 18 U.S.C. § 924(c) (“Count Three”). On August 14, 2018 he was sentenced to 13 years imprisonment on Counts One and Two to run concurrently and an additional 7 years for Count Three to run consecutively. On August 31, 2021 Petitioner filed the instant petition for a writ of habeas corpus (the “Petition”) pursuant to 28 U.S.C § 2255. (ECF No. 1.)

Petitioner contends that Meredith Heller (“Heller”), one of his two trial attorneys, provided ineffective assistance of counsel and that his conviction should be vacated and a new trial ordered, or, in the alternative, that his sentence be reduced. Petitioner points to five ways in which his counsel was ineffective: (1) she failed to investigate evidence and contact witnesses; (2) she failed to properly cross-examine a Government witness; (3) she improperly pressured Petitioner not to testify on his own behalf; (4) she failed to challenge a Career Offender Enhancement because Hobbs Act Robbery is not a crime of violence; and (5) she suffered from “stage fright” which hurt her performance as an advocate.^[1] (Petition, pp. 16-31.) Petitioner also argues that independent of his ineffective assistance of counsel claim, he was sentenced incorrectly because Hobbs Act Robbery does not qualify as a crime of violence. He contends that his sentence also should be reduced to be commensurate with his codefendants. (Id. at 2.) For the reasons set forth below, Petitioner's claims are without merit. Thus, I respectfully recommend that his Petition be denied.

BACKGROUND

I. The Robbery Conspiracy

In October 2014, Petitioner solicited his brothers, Melvin Walker (“Melvin”) and Tyrone Walker (“Tyrone”), to commit robberies. (Trial Transcript of May 7-14, 2018 at Tr. 412:8414:25^[2]; ECF No. 13.)(“ Tr.”) Gerold Cooper (“Cooper”) and Brad Burrus (“Burrus”) were also recruited. (Id. at 414:11-419:25.) Petitioner provided a nine-millimeter handgun for the robberies as well as another gun that he obtained from Tyrone. (Id. at 414:18-417:8.)

II. The Robberies

Petitioner and his accomplices committed over a dozen robberies from December 2014 to February 5, 2015. (Id. at 42:3-841:12.) A majority of the robberies concentrated on food delivery trucks in Manhattan and the Bronx. (Id. at 98:8-129:9, 165:3-187:11, 320:3-327:25, 350:7-360:13, 455:5-480:23, 616:10-643:16, 709:5-723:8.) The crew's gunman would confront the delivery truck driver, threaten the driver with a gun, and demand money from the driver. (Id. at 124:1-125:20.) Petitioner orchestrated the robberies from a getaway car where he monitored a police radio scanner to help the crew avoid police detection. (Id. at 419:2420:25, 423:4-424:6.)

III. The Final Robbery

The last robbery occurred in the Bronx in 2015. (Id. at 119:1-129:7.) The crew robbed a food delivery truck that was delivering products to a dollar store. (Id. at 121:3-19.) The delivery truck driver entered the dollar store and told the employees what occurred. (Id. at 214:9-25.) In response, a dollar store employee chased Cooper, one of the robbers in the crew. (Id. at 214:21-220:23, 491:4-15.) Cooper fired his gun at the employee but did not strike him. (Id. at 218:1-219:10, 491:7-15.) Although Cooper made it to the getaway car, the crew ultimately abandoned the vehicle after the shooting. (Id. at 702:7-16, 818:17-18.) When law enforcement located and searched the getaway car, the officers found Petitioner's wallet wedged in between the seat and center console, with his driver's license and birth certificate inside. (Id. at 269:5-273:25.)

PROCEDURAL HISTORY

I. Initial Charges and First Trial

On May 24, 2016, Petitioner was charged by complaint and soon thereafter indicted by a grand jury on the same charges. (Kevin Walker Indictment, 1-4, USA v. Walker et al., 1:16-cr-567-JSR-1, ECF No. 18.) A jury found Petitioner guilty on all three counts. (Id. at ECF No. 80.) However, the Honorable Jed S. Rakoff granted a new trial when Melvin, Petitioner's brother, proffered with the Government and disclosed new evidence that contradicted the trial testimony of Tyrone. (Declaration of Meredith S. Heller, USA v. Walker et al., 1:16-cr-00567-JSR-1, ECF Nos. 124, 157.)

II. The Second Trial

During the second trial held in May 2018, the Government presented evidence that Petitioner robbed various establishments and delivery trucks. (Tr. at 42:3-841:12.) The Government presented testimony of an FBI Special Agent, text messages from the Petitioner, and dozens of other exhibits. (Id.) The Special Agent testified that the Petitioner's cell phone connected to cell towers within two to five blocks of each robbery at the time it occurred, placing him in close proximity to each of the robberies. (Id. at 777:13-15, 763:20-819:14.) Further, the cell phone data showed that the Petitioner was on the phone with members of the robbery crew during the robberies. (Id. at 763:15-819:10.) Melvin testified that they were being directed by the Petitioner through their cell phones. (Id. at 579:13-17.)

One of the Government's exhibits included the Petitioner's wallet and birth certificate that were found inside the abandoned getaway car. (Id. at 269:16-273:25.) The Government also presented a text message from Petitioner to his brother Tyrone concerning Tyrone's girlfriend that said, “[d]on't tell her this, but tell her if they happen to have my wallet to say that she dropped me off three days ago and I lost my wallet.” (Id. at 763:5-7.)

Although no witnesses actually saw the Petitioner organizing the crimes from the getaway car, victims of all the robberies were robbed at the same time and place as when the cell phone data placed Petitioner and the robbery crew in close proximity. (Id. at 42:3-841:13.) Further, Melvin testified to taking part in several robberies. (Id. at 406:19-20, 418:20-22.) He also testified that Petitioner directed the robberies, paid the participants, picked the locations, and assigned their roles. (Id. at 419:3-421:23.) Kyell Clay (“Clay”), a passenger in Petitioner's car at one time, also testified that Petitioner described to him in detail how to rob a delivery truck and that Petitioner and Clay even attempted an unsuccessful robbery together. (Id. at 647:6-655:19.)

Additionally, the Government called Detective Steven Saint Hilaire of the New York Police Department, who testified that the police found a police radio scanner in Petitioner's bedroom. (Id. at 593:5-25.) Melvin testified that the Petitioner used the scanner to evade police detection during the robberies, and Clay testified that he saw the scanner in the car with Petitioner during their attempted robbery. (Id. at 423:18-25, 653:8-654:1.) To corroborate this testimony, the Government presented video footage throughout the trial showing various robberies being performed at the same time and places where the cell data placed Petitioner. (Id. at 54:13-718:23.)

Just before the Government's last witness, the Petitioner made a motion for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure, which Judge Rakoff denied. (Id. at 829:16-19.) Petitioner renewed this motion when the Government rested, and Judge Rakoff again denied the motion. (Id. at 841:2-4.) Petitioner elected not to testify, as his counsel advised him that doing so would open him up to cross-examination on his prior robbery convictions from 2016. (Id. at 830:6-831:16.) Petitioner confirmed that it was his decision not to testify when asked by Judge Rakoff. (Id. at 848:25-849:6.) Petitioner did not call any other witnesses. (Id. at 843:10-11.)

On May 14, 2018, a jury again found Petitioner guilty of all three counts. (Id. at 950:1116.) As noted in Petitioner's presentence report, Petitioner faced up to twenty years imprisonment for each Counts One and Two-conspiracy to commit Hobbs Act Robbery and Hobbs Act Robbery. (Presentencing Report, pp. 1-2 (“PSR")). Petitioner also faced a mandatory consecutive minimum sentence of seven years imprisonment for Count Three - brandishing a firearm. (Id.) Based upon a total offense level of 32 and a criminal history category of VI, Petitioner's guideline imprisonment range was 210 months to 262 months. (Id. at 28.) However, as a career offender, Petitioner faced 360 months to life imprisonment. (Id.)

At sentencing, Judge Rakoff sentenced Petitioner to “13 years, that is to say 156 months,” on Counts One and Two, “concurrent with each other, and then on Count Three seven years, that is to say 84 months, consecutive to the other counts, for a grand total of 240 months.” (Sentencing Transcript 12:20-13:2) (“Sent. Tr.") Judge Rakoff made clear that his sentence was not tethered to the Guidelines range and would be the same without the career offender enhancement. (Id. at 5:15-25.) Judge Rakoff also made it a point to highlight that he found the sentencing guidelines “too Draconian." (Id. at 12:21.)

After Petitioner was sentenced, he appealed to the Second Circuit. On appeal, Petitioner argued that Clay should not have been able to testify, that his sentence was unreasonably long compared to his co-defendants, and that Hobbs Act...