Peebles v. United States

• Decision Date: 31 January 2022
• Docket Number: 17-CV-463-A,9-CR-331-A
• Parties: TONY PEEBLES, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Western District of New York

TONY PEEBLES, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Nos. 9-CR-331-A, 17-CV-463-A

United States District Court, W.D. New York

January 31, 2022

DECISION AND ORDER

HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE

Pro se petitioner Tony Peebles, a prisoner in federal custody, has filed a Motion to Vacate, Set Aside, or Correct the Sentence Under 28 U.S.C. § 2255 (“§ 2255 Motion”) (Dkt. No. 2105), and a Motion for Appointment of Counsel (Dkt. No. 2379). For the reasons set forth below the § 2255 Motion (Dkt. No. 2105), as amended to include the new claims in the previously granted Motion to Amend/Correct (Dkt. No. 2194), is DENIED; and the Motion for Appointment of Counsel (Dkt. No. 2379) is DENIED.

BACKGROUND

I. The Indictments and Plea Offers

On November 25, 2009, Peebles was charged in 8 counts of a 25-count Superseding Indictment (Dkt. No. 9) with RICO and other offenses related to drug-dealing activities and shootings committed by Peebles and other individuals as members of Buffalo's 10th Street Gang. On September 15 2010, Peebles was charged in 11 counts of a 62-count Second Superseding Indictment (Dkt. No. 69).

On March 17, 2011, the Government conveyed a written plea offer (“Plea Offer #1) (Dkt. No. 2340-1), which contemplated that Peebles would plead guilty to Count 1 (RICO Conspiracy in violation of 18 U.S.C. § 1962(d)), Count 2 (RICO, in violation of 18 U.S.C § 1962(c)), and Count 18 (discharge of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C § 924(c)(1)(A)(iii)) of the Second Superseding Indictment. The parties contemplated that with their calculations of the total offense level and a Criminal History Category II, the Peebles would be facing an aggregate Guidelines range of 480 months to life in prison. Pursuant to Plea Offer #1, Peebles would be required to cooperate and testify against co-defendants but without the benefit of a downward departure motion pursuant to United States Sentencing Guideline Section 5K1.1 or 18 U.S.C. § 3553(e), or Federal Rules of Criminal Procedure 35(b) for a reduction of Peebles' sentence. Plea Offer #1 expired by its terms on October 4, 2011, because Peebles was uninterested in cooperating (Dkt. No. 2340 at 5).

Peebles was later charged, on April 28, 2011, with a Third Superseding Indictment (Dkt. No. 226), and on February 2, 2012, Peebles was charged with 29 counts (Counts 1, 2, 5-7, 21-35, 52-54, 57-59, 62, 63, and 66) of the 74-count Fourth Superseding Indictment (Dkt. No. 408), namely, with RICO conspiracy (Count 1), RICO (Count 2), assault with a dangerous weapon in aid of racketeering (Counts 5, 25, 28, 30, 31, 53, and 58), attempted murder in aid of racketeering (Counts 6, 21, 24, 33, 52, and 57), possession and discharge of a firearm in furtherance of a crime of violence (Counts 7, 23, 27, 29, 32, 35, 54, and 59), attempted assault with a dangerous weapon in aid of racketeering (Counts 22 and 34), assault in aid of racketeering (Count 26), narcotics conspiracy (Count 62), possession of firearms in furtherance of a drug crime (Count 63), and possession of cocaine base with intent to distribute (Count 66).

The Government conveyed Plea Offer #2 (Dkt. No. 2340-4) on or about January 24, 2013, which contemplated that Peebles would plead guilty to Count 1 (RICO Conspiracy, in violation of 18 U.S.C. § 1962(d)) and Count 27 (possession and discharge of firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and 18 U.S.C. § 2) of the Fourth Superseding Indictment (Dkt. No. 408). The parties contemplated that with their calculations of the total offense level and a Criminal History Category II, Peebles would be facing an aggregate Guidelines range of 412 months to 485 months. Pursuant to Plea Offer #2's cooperation section, Peebles would be required to cooperate, if the Government was satisfied that Peebles had fully complied with its terms and conditions, the Government would move to depart downward 2 levels as provided in Guidelines § 5K1.1 and/or 18 U.S.C. § 3553(e); if that motion was granted by the Court, it would result in a contemplated aggregate Guidelines rangeof 292 to 365 months' imprisonment. According to the Government, “[t]he cooperation section would have left open the potential for the government to move for a greater 5K, depending on the quality, nature, and extent of [Peebles'] cooperation and testimony.” (See Dkt. No. 2340 at 8 & n.4; Dkt. No. 2340-4 at 22-23). If convicted on all 29 counts against him in the Fourth Superseding Indictment, Peebles faced life sentences on each of the two RICO counts (the conspiracy count and the substantive count), and an aggregate 210 years in mandatory minimum sentences based upon the various counts charging violations of 18 U.S.C. §§ 924(c)(1) and 924(c)(1)(A)(iii), which would have been consecutive to any other sentences, including a narcotics conspiracy with a 10-year mandatory minimum sentence. (Dkt. No. 2340 at 2-4).

Peebles' trial was scheduled to commence on March 25, 2014. (Dkt. No. 1182 [Pretrial Order). The Court later adjourned jury selection to March 26, 2014, with a final pretrial conference scheduled for March 25, 2014. (Dkt. No. 1278 [Text Order]; 03/24/2014 notation).

At the final pretrial conference on March 25, 2014(Dkt. No. 2340-5 [transcript of 3/25/2014 Pretrial Conference]; 03/25/2014 Minute Entry), it was noted by the Government that Plea Offer #2 had expired on March 11, 2014, because Peebles remained unwilling to cooperate. The Government stated it was “no longer interested in his cooperation at all, ” and “[a]s you know, Judge, we're at trial. That ship has sailed. So, it's through no fault of Mr. Cantwell [defense counse] that the defendant decided not to avail himself of cooperation . . . The defendant chose not to cooperate.”

E. Carey Cantwell, Esq. (“Cantwell”), who had represented Peebles since the inception of the case, stated that Peebles had asked him to file a motion to withdraw as counsel for substitute counsel. Cantwell also reported that the Government had verbally conveyed a third plea offer, ^[1] which he had transmitted to Peebles by letter; however, Peebles was refusing to accept mail from or otherwise communicate with him and Cantwell did not know whether Peebles received, read, or knew about that letter.

For his part, Peebles complained largely about the pace at which Cantwell was providing discovery documents to him and claimed that Cantwell had not provided any of the discovery to look over. Cantwell explained that he had received the last three discs of discovery from the Government that same day, and he was downloading copies of the voluminous discovery documents for Peebles; however, Peebles did not have access to discs so all discovery had to be on papers, and the jail where he was detained limited the No. of documents Peebles could have in his cell at any given time.

Since it was the eve of trial, the Court declined to assign substitute counsel and informed Peebles that he could proceed pro se, with jury selection to commence on March 27, 2014. The Court directed Cantwell to act as standby counsel. The Government raised its concern that Peebles should not be provided copies of any Government witnesses' 18 U.S.C. § 3500 material, even in light of his pro se status. The Court directed the Government to provide papers copies of the 18 U.S.C. § 3500 material to defense counsel prior to the next appearance.

On March 26, 2014, the Government conveyed approved Plea Offer #3 (Dkt. No. 2340-7) just prior to the scheduled status conference. Plea Offer #3 provided that Peebles would plead guilty to Counts 1 and 27 of the Fourth Superseding Indictment (the same as in Plea Offer #2). The parties contemplated that with their calculations of the total offense level and a Criminal History Category I (rather than Category II as in Plea Offer #2), Peebles would be facing an aggregate Guidelines range of 382 to 447 months. The plea agreement contemplated a two-level § 5K1.1 motion for completed cooperation which, subject to Court approval, would result in an aggregate Guidelines range of 292 to 365 months.

At the March 26, 2014 status conference (Dkt. No. 2340-6 [transcript of 3/26/2014 Status Conference]; 03/26/2014 Minute Entry), Peebles appeared pro se, with Cantwell as standby counsel. The Assistant U.S. Attorney (“AUSA”) noted that he had met with Peebles (pro se) and Cantwell (as standby counsel) earlier that day and advised Peebles of what the plea offer would be. After the meeting, Cantwell called the AUSA and stated Peebles wanted what they had discussed written up in agreement form, which was then approved by the U.S. Attorney and copies had been provided to Peebles and Cantwell. The AUSA explained that it resulted in a Guidelines range of 292 to 365 months.

The AUSA explained that no further plea offers would be forthcoming, and the transcript indicates that Peebles understood he was facing significant mandatory minimum sentences and a potential life sentence if convicted after trial. The Court gave Peebles another night to think about Plea Offer #3 and make a decision about whether to accept the plea or proceed to trial by no later than 3:00 p.m. the following day. The Court also assigned a second CJA attorney Clarence Johnson, Esq. (“Johnson”) to act as additional standby counsel (“co-standby counsel”) for Peebles, so that he would have the benefit of two attorneys' expertise to discuss Plea Offer #3 with him and because Peebles had indicated some issues with Cantwell. If Plea Offer #3 did not sound agreeable to Peebles, the Court would pick a jury not the next day, as previously scheduled, but the following day, which was a Friday-to allow Peebles more time to discuss...