Dervishaj v. United States
| Docket Number | 21-CV-373,13-CR-00668 (ENV) |
| Decision Date | 31 July 2022 |
| Parties | REDINEL DERVISHAJ Petitioner, v. UNITED STATES Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Petitioner Redinel Dervishaj, through counsel, seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2255, challenging his conviction following a jury trial, and sentence, on twelve counts: three counts of extortion conspiracy in violation of the Hobbs Act, 18 U.S.C. § 1951(a); three counts of attempted Hobbs Act extortion; three counts of Hobbs Act violence-in-furtherance-of-planned-extortion; and three counts of possession or brandishing of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C § 924(c)(1)(A)(ii).
In this petition, Dervishaj raises two claims: first, that his trial counsel, Federal Defenders, was, for various reasons constitutionally ineffective, and second, and alternatively that the Court should retroactively apply § 403 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (the “First Step Act”), to reduce the sentences imposed on the § 924(c) counts of conviction. See Petitioner's Motion (“Pet.”) Dkt. 312. For the reasons that follow, the writ is denied and the petition is dismissed.
Background[1]
The Court assumes the parties' familiarity with the underlying criminal case, No. 13-CR-00668, aff'd, No. 17-2570-CR,[2] and with the record facts upon which the judgment rests, as prefigured in the Court's various decisions filed on that docket. See Dkts. 81, 89. These facts, founded on the trial record, will be recited here only as context requires.
In summary, Dervishaj was convicted by a jury following a three-week trial, which saw the prosecution introduce a mountain of evidence against him, including the testimony of 27 witnesses and the admission of over 155 exhibits. See generally Trial Transcript (“Tr.”), Dkts. 280-89. The facts developed at trial laid bare a conspiracy, forged between Dervishaj and his coconspirators, to extort three owners of nightclubs or eateries located in Queens, as well as their attempts at executing the scheme through the use of physical assault, threats of violence, and, notably, the carrying and use of firearms. See Jury Verdict, Dkt. 206. Dervishaj's conviction on all twelve counts highlighted the enterprise's multi-phased breadth: counts 1 through 4 related to the coconspirators' attempted extortion of George Stoupas (John Doe #1), counts 5 through 8 covered the attempts to extort Dritan Xhuke (John Doe #2), and Counts 9 through 12 targeted the extortion scheme as to Andreas Petrou (John Doe #3), as well as the violence committed against Petrou's friend, Vangelis Dimou (John Doe #4), in furtherance of the attempted extortion of Petrou. See id.
On March 24, 2017, Dervishaj was sentenced to concurrent terms of one day in custody on counts 1, 2, 3, 5, 6, 7, 9, 10, and 11. See Judgment, Dkt. 253, at 3. He was then sentenced to seven years of custody on count 4, 25 years of custody on count 8, and 25 years of custody on count 12, all to run consecutively with each other, and to all other counts. See id.
Prior to sentencing, Dervishaj, eventually with the assistance of counsel, moved for a judgment of acquittal pursuant to Fed. R. Crim. P. 29(c), or, in the alternative, for a new trial pursuant to Fed. R. Crim. P. 33. He argued that none of his convictions was supported by constitutionally sufficient evidence. The post-trial motions were denied on March 3, 2017. Dkt. 225. With sentencing to follow shortly thereafter, Dervishaj soon directly appealed his conviction, and, proceeding pro se, pressed several claims, including that the nine Hobbs Act charges were multiplicitous, in violation of the Fifth Amendment's Double Jeopardy Clause, and that there was insufficient evidence to support his three 924(c) convictions. By summary order dated September 18, 2019, the Second Circuit affirmed the judgment of conviction. United States v. Dervishaj, 787 Fed.Appx. 12 (2d Cir. 2019). On March 23, 2020, the Supreme Court denied Dervishaj's petition for a writ of certiorari. See Dervishaj v. United States, 140 S.Ct. 2548 (2020). Dervishaj filed the instant petition on January 22, 2021. Dkt. 312.
A person who has been convicted and is currently a federal prisoner may petition the sentencing court to correct, vacate, or set aside his conviction and/or the sentence under 28 U.S.C. § 2255. The grounds for relief are very limited. The § 2255 court may only grant relief if it concludes: “(1) that the sentence was imposed in violation of the Constitution or laws of the United States, (2) that the court was without jurisdiction to impose such sentence, (3) that the sentence was in excess of the maximum authorized by law, [or] (4) that the sentence is otherwise subject to collateral attack.” Hill v. United States, 368 U.S. 424, 426-27 (1962) (citing 28 U.S.C. § 2255) (internal quotation marks omitted). Restated, collateral relief under § 2255 is 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, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)).
Petitioner first claims that his convictions should be set aside for ineffective assistance of counsel. Specifically, Dervishaj targets five facets of his counsel's performance for attack: (1) failure to move for dismissal of the nine Hobbs Act charges as multiplicitous, and therefore violative of his double jeopardy rights; (2) failure to move to dismiss the three § 924(c) charges as impermissibly duplicitous; (3) failure to move to dismiss count 7 on jurisdictional grounds; (4) failure to object to the admission of certain evidence at trial; and (5) alleged concession of guilt as to count 11. See Pet. at 1-2.
There is no procedural roadblock to Dervishaj's application for the writ: a petitioner may raise a claim of ineffective assistance of counsel for the first time in a § 2255 motion, even where, as here, the petitioner could have raised the claim on direct appeal. Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 1693, 155 L.Ed.2d 714 (2003). Equally settled is the applicable standard for such claims, as established by the watershed Strickland v. Washington, 466 U.S. 688, 697 (1984). The Strickland standard prescribes a two-pronged test to determine ineffective assistance of counsel claims. Both must be satisfied by an aggrieved criminal applicant. More concretely, to satisfy Strickland, a defendant must first show that his “counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result.” Regis v. United States, 665 F.Supp.2d 370, 371 (S.D.N.Y.2009) (quoting United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987).
But, not every failed trial strategy punches a ticket to reversal; courts “must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,” and “judicial scrutiny of counsel's performance must be highly deferential.” Strickland, 466 U.S. at 689. In advancing such a claim, the habeas petitioner bears the burden of proving that counsel's performance was unreasonable under prevailing professional norms. Kimmelman v. Morrison, 477 U.S. 365, 381,106 S.Ct. 2574 (1986). As for the second prong, a petitioner must demonstrate prejudice, meaning he must show a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Failure to prove either dooms any claim of ineffective assistance. Strickland, 466 U.S. at 697; see also Abrams v. United States, No. 11 Civ. 672 (ENV), 2012 WL 4086765, at *5 (E.D.N.Y. Sept. 17, 2012). In fact, a court need not even analyze the performance prong “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice.” Kimmelman, 477 U.S. at 697; cf. Brown v. Artuz, 124 F.3d 73, 80 (2d Cir. 1997).
In a wide-ranging assault, Dervishaj argues that he received ineffective assistance because his counsel failed to move to dismiss the indictment since the Hobbs Act charges are multiplicitous and violative of his Fifth Amendment right against double jeopardy. “An indictment is multiplicitous when it charges a single offense as an offense multiple times, in separate counts, when, in law and fact, only one crime has been committed.” United States v. Chacko, 169 F.3d 140, 145 (2d Cir. 1999). Because it subjects a person to punishment for the same crime more than once, a multiplicitous indictment runs afoul of the Double Jeopardy clause of the Fifth Amendment. See id.
Sharpening his focus, Dervishaj claims, with respect to each set of victims, that the counts charging attempted extortion (counts 2, 6, and 10) are indistinguishable from and multiplicitous of counts 3, 7, and 11, which charge threatening physical violence in furtherance of a plan to extort, and that trial counsel's failure to object to his sentencing on the multiplicitous charges rendered trial counsel's representation of him constitutionally deficient. Id. at 22-24.
Dervishaj's argument on this point repackages the one he asserted on direct appeal. The Second Circuit declined to consider it on the merits then, finding, first, that he had waived the argument and, second, and more interestingly, that because he had been sentenced, on each of the nine extortion-related...
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