Mayes v. United States
| Decision Date | 21 September 2018 |
| Docket Number | 1:12-CR-0385 (ARR),1:17-CV-6789 (ARR) |
| Parties | Antoine Mayes, Petitioner, v. United States, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Not for Publication
After a jury trial, the petitioner was found guilty of, inter alia, racketeering; unlawful use, possession, and discharge of firearms, including a machinegun, in furtherance of racketeering; three counts of attempted murder in aid of racketeering; and three counts of unlawful use, possession, and discharge of firearms, in furtherance of the three attempted murders. I sentenced the petitioner to 110 years in prison, of which 30 were the statutory minimum for the machinegun conviction and 75 were the statutory minimum for the three other firearm convictions. See 18 U.S.C. § 924(c). This judgment was affirmed on direct appeal to the Second Circuit. United States v. Mayes, 650 F. App'x 787 (2d Cir.), cert. denied, 137 S. Ct. 526 (2016). The petitioner now seeks to set aside these four gun convictions, which compose the vast majority of his sentence, on the grounds of ineffective assistance of counsel and lack of due process. For the reasons explained below, I deny the petition.
The defendants—the petitioner and his brother, Anthony Mayes Jr.—were jointly tried before a jury in my courtroom in Spring 2014. They stood accused of running a violent criminal enterprise that involved the selling of cocaine and guns in the East New York section of Brooklyn and in Williamston, North Carolina. They were also accused of numerous violent acts in support of their criminal enterprise. The defendants had separate counsel, and neither defendant testified in his defense.
The charges relevant to the petition mostly relate to a rivalry between members of the defendants' enterprise and another group that also sold drugs in East New York.1 The defendants' group was centered around Ashford Street, and the rival group around nearby Atkins Avenue. According to a former member of the Ashford group, Simeon Hall, the defendants "started having problems" with the Atkins group in 2008, and in particular with one of its members, Dupree Gales, who was understood to be set to testify in a murder trial against someone in the Ashford group. Trial Tr. 2423-25, ECF No. 283; see also id. at 2650. The petitioner and Hall discussed the need to "take [Gales] out," and the petitioner devised a plan to have someone shoot Gales. Id. at 2426.
Hall, however, was friendly with a member of the Atkins group named Travis Timmons, and Hall approached Timmons and recommended that he distance himself from Gales. Id. at 2430-31, 2651-52. Timmons in turn warned Gales that Gales was in danger from the Ashford group, prompting Gales to decide to strike first. Id. at 2652-53.
In the evening of June 4, 2008, Gales, Timmons, and two of their associates went over to Ashford Street and shot three members of the Ashford group. Trial Tr. 1534-36, ECF No. 280; Trial Tr. 2431-32, 2552-57, 2653-56. That night, Hall and the defendants agreed that they needed to arm themselves, and the following day the petitioner gave Hall a .357. Trial Tr. 2434-35. At trial, counsel for the government asked Hall, Id. at 2435. Hall responded that "[i]t was an automatic." Id.
Later that day, Hall encountered Gales on the street. Id. at 2435-36. Hall immediately retrieved a 9-millimeter handgun from a house used by the Ashford group and confronted Gales. Id. at 2436-37. This confrontation culminated in Hall shooting at Gales, who got away despite being hit in the arm. Trial Tr. 1537-38; Trial Tr. 2438, 2620, 2659.
Tensions continued. At some point later that summer, Timmons and Gales saw the defendants driving down the street, in separate cars, and shot at one of them. Trial Tr. 2445, 2669-70.2 In order to get revenge, the defendants, Hall, and another member of the Ashford group, Johnny Mercado, began waiting outside Timmons's house at night in order to catch him leaving and shoot him. Id. at 2445-46. On the night of September 9, 2008, while driving around, Hall and Mercado spotted Timmons on the street. Trial Tr. 2355-56, ECF No. 282; Trial Tr. 2381-85, 2447. They immediately drove to pick up the petitioner, and then drove to pick up another member of their group, Don Johnson, from the group's house. Trial Tr. 543, ECF No. 220; Trial Tr. 2447. They then drove back to the area where Timmons had been seen, pointed Timmons out to Johnson, and let Johnson out of the car. Trial Tr. 544-45; Trial Tr. 2448. Either Hall or the petitioner gave Johnson a 9-millimeter,3 and both instructed him to shoot Timmons. Trial Tr. 545-46; Trial Tr. 2448-49. Johnson complied, approaching Timmons and firing about fifteen shots at him. Trial Tr. 548-49; Trial Tr. 2449. Timmons was hit, but survived. Trial Tr. 551; Trial Tr. 2449-50, 2672.
The third attempted murder came a year later. On September 20, 2009, Hall and the petitioner were riding in a van driven by another associate of theirs, Willie Flowers, when they unexpectedly saw Gales and other members of the Atkins group in a car. Trial Tr.2240-42; Trial Tr. 2463-64, 2638-39. The petitioner had Flowers drive around the block, and the petitioner took a 9-millimeter from Hall, saying that he would "show [Hall] how to shoot." Trial Tr. 2463-64. When they came back around the block, they saw that the car had parked, and Flowers drove past it. Id. at 2465. The car then began following their van, including through a U-turn, at which point the petitioner had Flowers execute another U-turn and stop the van in the middle of the street. Id. The petitioner jumped out of the van and fired the gun at the car containing Gales and his associates. Id. at 2465-66. Gales and another man were hit. Trial Tr. 2242; see also Trial Tr. 1540-41.
In addition to the testimony about those shootings, there was also witness testimony that could support a jury finding that the petitioner had used a machinegun4 in furtherance of his racketeering activity. Most notably, Johnson testified that Mayes Jr. once "told [him] about one incident where [the petitioner] shot a block up with a Tec." Trial Tr. 487. Johnson explained that a "Tec" is "a fully auto gun," which means that "[i]t fires round after round when you squeeze the trigger." Id. In addition, Hall testified that on one occasion the petitioner was carrying an Uzi, then offered that he thought that it might have been a Tec-9, but then reverted to calling it an Uzi for the rest of his testimony. Trial Tr. 2467-69.5
After a two-week trial, the jury rendered a unanimous verdict of guilty on all counts for both defendants. Of relevance in this matter, the jury found the petitioner guilty of (1) racketeering, in violation of 18 U.S.C. § 1962(c); (2) unlawful use, possession, brandishing, and discharge of one or more firearms, including a machinegun, in furtheranceof racketeering, in violation of § 924(c)(1); (3) three counts of attempted murder (of Gales, of Timmons, and then of Gales again) in aid of racketeering, in violation of § 1959(a)(5); and (4) three counts of unlawful use, possession, brandishing, and discharge of one or more firearms, in furtherance of attempted murder in aid of racketeering, in violation of § 924(c)(1).
Under 28 U.S.C. § 2255, a federal prisoner may petition his sentencing court to "vacate, set aside, or correct [his] sentence" "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States." § 2255(a). Generally speaking, however, "claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro v. United States, 538 U.S. 500, 504 (2003). One important exception to this rule is that "failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255." Id. at 509.
Here, the petitioner pro se seeks to set aside his sentences on his 18 U.S.C. § 924(c)(1) convictions, because, he argues, they were imposed in violation of his constitutional rights—namely, his Fifth Amendment right to due process and his Sixth Amendment right to assistance of counsel. For the reasons discussed below, they were not, so I deny the petition.
The Fifth Amendment's guarantee of due process is violated when the government imposes criminal penalties under a "law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement." Johnson v. United States, 135 S. Ct. 2551, 2556 (2015). In Johnson, the Supreme Court considered § 924(e)(2)(B)(ii), which defined "violent felony" as a felony that "involvesconduct that presents a serious potential risk of physical injury to another." See 135 S. Ct. at 2555-56. The Court ruled that this "residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges" and therefore that "[i]ncreasing a defendant's sentence under the clause denies due process of law." Id. at 2557.
The petitioner was sentenced not under § 924(e) but under § 924(c), which provides for increased sentences for the use of firearms in connection with "any crime of violence or drug trafficking crime." § 924(c)(1)(A). For this purpose, the statute defines "crime of violence" as one that "is a felony" and:
§ 924(c)(3). The petitioner received increased sentences under § 924(c)(1) based on my ruling at trial that his charges of...
To continue reading
Request your trial