Frederick v. United States

• Decision Date: 30 December 2019
• Docket Number: 14-cv-4216(KAM)
• Parties: KISSONE FREDERICK, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Eastern District of New York

KISSONE FREDERICK, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

14-cv-4216(KAM)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

December 30, 2019

MEMORANDUM & ORDER

KIYO A. MATSUMOTO, United States District Judge:

On July 14, 2014 pro se petitioner Kissone Frederick ("petitioner"), currently incarcerated at USP Big Sandy in Inez, Kentucky, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. (ECF No. 1, Motion to Vacate, Set Aside or Correct Sentence ("Pet. Mot.").) Petitioner challenges his conviction for multiple counts of robbery in violation of the Hobbs Act on the grounds that he did not receive effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution, the trial court provided improper jury instructions to the jury, and that he is actually innocent of one of the crimes for which he was convicted. For the following reasons, the court finds petitioner's claims are without merit and denies his petition.

BACKGROUND

Petitioner's conviction and the instant habeas petition relate to two armed robberies, one attempted and one completed, that occurred in Brooklyn, New York on May 14, 2006. On April 24, 2009, a federal grand jury returned a six-count indictment charging defendant and others with a conspiracy to commit Hobbs Act armed robbery, attempted Hobbs Act armed robbery, Hobbs Act armed robbery, and three related weapons charges. (United States of America v. Kissone Frederick, No. 09-cr-258 (KAM) ("Criminal Case"), ECF No. 1, Indictment.)¹ Specifically, Count Two of the Indictment charged petitioner with using a firearm in an attempt to rob a retail store known as Satellite Communications, in violation of the Hobbs Act, 18 U.S.C. § 1951(a). (Id. Count Two.) Count Four charged petitioner with the completed robbery of another retail store known as Card Corner, also in violation of the Hobbs Act. (Id. Count Four.) Given petitioner's prior felony conviction, his alleged use of a firearm in connection with a robbery and attempted robbery resulted in additional charges. (Id. Count Three (18 U.S.C. § 924(c)(1)(A)(i)), Count Five (18 U.S.C. § 924(c)(1)(A)(ii)), Count Six (18 U.S.C. §§ 922(g)(1), 924(a)(2)).)

Petitioner was also charged by the Kings County prosecutor in New York State Court for crimes relating to the completed armed robbery of Card Corner described in Count Four of the Indictment, but was not prosecuted in connection with the attempted robbery of Satellite Communications described in Count Two. (Criminal Case, ECF No. 10, Government Motion in Limine, 3.) On October 3, 2007, petitioner pleaded guilty in New York State Court to a lesser-included offense of attempted robbery in the second degree in full satisfaction of all state charges. (Id.) Following petitioner's state conviction, the government received authorization from the Department of Justice under the Petite Policy to prosecute the petitioner in federal court. (Id.)² Petitioner was subsequently indicted by a federal grand jury. (See generally Indictment.)

Petitioner was represented at the plea and trial stages by Ephraim Savitt, Esq. ("Savitt"). (Pet. Mot. 10.) Savitt remained petitioner's counsel in the Criminal Case until July 14, 2010, when petitioner requested new counsel. (CriminalCase, Minute Entry dated July 14, 2010.) The court initially appointed Dawn M. Cardi, Esq. as CJA counsel to represent petitioner in the Criminal Case, but one week later, Joyce C. London, Esq. ("London") replaced Ms. Cardi as petitioner's criminal counsel. (Criminal Case, Minute Entry dated July 21, 2010.) London represented petitioner during his sentencing in the Criminal Case and on appeal. (See generally Criminal Case.)

Petitioner's four-day jury trial commenced on December 7, 2009. (Criminal Case, Minute Entry dated Dec. 7, 2009.) During petitioner's trial, the government offered extensive testimony by a cooperating witness and co-conspirator who was the getaway driver for the robberies, video surveillance footage and victim witness testimony providing direct evidence that a firearm was used or possessed in connection with the attempted Satellite Robbery, and petitioner's sworn statements made in state court during his guilty plea to attempted robbery in the second degree for the Card Corner robbery. See United States v. Frederick, No. 09-CR258(KAM), 2010 U.S. Dist. LEXIS 58560, at *3-8 (E.D.N.Y. June 14, 2010); United States v. Frederick, 702 F. Supp. 2d 32, 38 (E.D.N.Y. 2009).

At trial, the parties stipulated that retail store Satellite Communications "engaged in interstate commerce and sold a variety of items including cellular telephones and cellular telephone products that were manufactured outside ofthe State of New York" and that retail store Card Corner Three likewise "was engaged in interstate commerce and sold a variety of items, including greeting cards, that were manufactured outside the State of New York." (Criminal Case, ECF No. 132-2, Trial Transcript ("Tr.") 470-71.)³

On December 9, 2009, after the parties' closing arguments, but prior to jury deliberations, the court learned that a juror ("Juror Number Eight") had reportedly expressed concern for his own safety and that of his fellow jurors to the courtroom deputy. (Tr. 578.) Juror Number Eight's reported concern was apparently precipitated by an exchange between the petitioner and individuals associated with the petitioner situated in the courtroom's rear, and while the court and counsel were occupied in a sidebar. (See Criminal Case, ECF No. 44, Juror Concern Ltr. 1; see also Tr. 578-79 ("[AUSA Carter] Burwell: I was informed by a colleague from the United States Attorney's Office who said that after argument when we came up for a sidebar, the defendant was making a lot of gestures toward his - - who I believe to be friends and family and that caught [Juror Number Eight's] attention.").) At sidebar, the parties and the undersigned registered concern that Juror Number Eight may have expressed his concerns in the presence of other jurors.(See Tr. 584.) The government proposed the court conduct a brief voir dire hearing to inquire whether Juror Number Eight made any statements, whether the juror discussed safety concerns with fellow jurors, and whether Juror Number Eight's concerns, if any, would impact his ability to be fair and impartial. (Juror Concern Ltr. 1.)

On the morning of December 10, the court held a closed voir dire hearing with counsel and summoned Juror Number Eight to appear. (Tr. 612.) Petitioner was present as well. (Id. 608:14.) At the hearing, Juror Number Eight testified to the undersigned that he had indeed reported certain misgivings to the courtroom deputy about the presence of individuals in the courtroom gallery at petitioner's trial. (Id. 614.) Juror Number Eight informed the court that his concerns were not based on any specific gestures or statements, that he had confined his comments solely to the courtroom deputy, and that he had no doubt that he could perform his duty as a juror to render a verdict fairly and impartially based only on the evidence and the law. (Id. 615-16, 620.) Juror Number Eight also confirmed that he had not shared his concerns with other jurors, and that no other jurors had shared similar concerns with him. (Id. 621.) Petitioner's counsel, Savitt, nonetheless requested that the court excuse Juror Number Eight "in the excess of caution," (id. 623), notwithstanding Savitt's concession that Juror NumberEight had likely provided candid testimony to the court. (Id. 622.) The court granted Savitt's request, excused Juror Number Eight, and replaced him with an alternate juror. (Id. 632-33.)

Later on December 10, 2009, the undersigned charged the jury with instructions, which had been discussed at a charging conference, and following deliberations, the jury returned a verdict convicting petitioner on all six counts of the Indictment. (Id. 633-84, 698-99.)⁴ On June 19, 2012, the petitioner, now represented by London, was sentenced to 32 years in custody, based on statutory mandatory minimums of 25 years pursuant 18 U.S.C. § 924(c)(1)(C)(i), and 7 years pursuant to 18 U.S.C. § 924(c)(1)(A)(ii). (Criminal Case, ECF No. 121, Minute Entry dated June 19, 2012; id., ECF No. 123, Judgment; see also id., ECF No 127, Sentencing Transcript 20:11, 36:5-8.) On June 26, 2012, London filed a notice of appeal to the Second Circuit on behalf of petitioner. (Id., ECF No. 125, Notice of Appeal.) On May 24, 2013, the Court of Appeals issued a mandate affirming the trial court's judgment. (Id., ECF No. 134, USCA Mandate.)

PROCEDURAL HISTORY

On July 14, 2014, petitioner filed the present petition to vacate, set aside, or correct his sentence and conviction. (Pet. Mot.) Petitioner brings this petition on seven grounds, five of which are claims of ineffective assistance of counsel. Specifically, petitioner asserts he received ineffective assistance of counsel from:

(1) London, for her failure to appeal petitioner's robbery conviction on double jeopardy grounds;

(2) London, for her failure to raise jury contamination claims on appeal;

(3) Savitt, for his failure to secure petitioner's presence during the "voir dire, in camera hearing of juror number 8";

(4) London, for her failure to bring an ineffective assistance of counsel claim against Savitt for his stipulation to the interstate commerce element of petitioner's Hobbs Act offenses;

(5) Savitt and London, respectively, for failing to raise the proper cooperating witness jury instruction during trial, and for failing to appeal petitioner's conviction on the basis of an improper cooperating witness jury instruction.

In addition, petitioner claims that:

(6) the court's aiding and abetting jury instruction created a structural error by lowering the government's burden of proof; and

(7) he is actually innocent of the sentence he received for brandishing a firearm.

(See generally id.)

Petitioner also requested that the court order London to...