Saxon v. United States
| Decision Date | 08 July 2016 |
| Docket Number | 14 Civ. 733 (ER),13 Civ. 4966 (ER),12 Cr. 320 (ER) |
| Parties | TORRELL SAXON, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Ramos, D.J.:
Torrell Saxon ("Petitioner") brings this motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (the "Petition"). Petitioner asserts that he was denied his Sixth Amendment right to counsel because his lawyer provided ineffective assistance during plea negotiations with the Government, which culminated in the sentence that Petitioner now challenges. For the reasons stated below, the Petition is DENIED.
Petitioner was arrested on March 25, 2012 at a residence in Middletown, New York after the owner of the residence called 911 and reported that Petitioner had entered the residence with a gun in an attempt to rob the four inhabitants. In the process, Petitioner shot at one of the inhabitants. The police officers who arrived found a gun at the scene and arrested Petitioner. Petitioner was transferred to federal custody and indicted on April 23, 2012 on one count of being a felon-in-possession of a firearm under 18 U.S.C. § 922(g)(1). (12-cr-320, Doc. 4).
The Indictment also charged that Petitioner was subject to an enhanced mandatory minimum sentence of fifteen years under the Armed Career Criminal Act ("ACCA") because he had previously been convicted of three or more violent felonies or serious drug offenses. See 18 U.S.C. § 924(e). Specifically, in 2000, Petitioner had been convicted of two robberies in the first degree, and in 1996, he had been convicted of criminal sale of a controlled substance in the third degree, a Class B felony under New York law.
Petitioner was appointed an attorney from the Federal Defenders of New York ("trial counsel"), and subsequently pleaded not guilty at his arraignment. Trial counsel did not contest the Government's contention that Petitioner's three prior convictions were sufficient predicates for enhancement of his sentence under the ACCA. Thus, trial counsel never challenged the enhancement, and instead settled on a strategy with the primary goal of avoiding the fifteen-year minimum sentence mandated by the ACCA. Specifically, the defense adopted a strategy of admitting certain criminal conduct but denying that Petitioner had a gun on the night of his arrest (the "Innocence Proffer"), in the hopes that the Government would drop the ACCA charge. In the Innocence Proffer, Petitioner admitted to the Government that he went to the residence to sell oxycodone, but insisted it was he who was robbed at gunpoint by the inhabitants, and further insisted that he did not possess a gun on the night of his arrest.
Among other challenges, Petitioner now asserts that trial counsel was ineffective because her entire strategy was premised on the incorrect assumption that Petitioner's three prior felonies qualified as ACCA predicates, a proposition she never bothered to research or contest. Instead, invoking recent case law from the United States Supreme Court and two decisions in this District, Petitioner argues that New York's recent adoption and retroactive application of a more lenient sentencing regime for drug offenses means that his 1996 drug conviction no longer qualifies as a predicate "serious drug offense" under the ACCA. § 924(e)(2)(A). According to Petitioner, therefore, because trial counsel failed to research the issue of whether the ACCAenhancement applied, she provided ineffective assistance causing Petitioner to agree to plead guilty to a charge that subjected him to a higher sentence than he otherwise would have faced.
Trial counsel's strategy was at least successful on its own terms. On December 21, 2012, the parties negotiated and entered into a plea agreement (the "Plea Agreement") under which the Government dismissed the felon-in-possession charge in exchange for Petitioner's guilty plea to a two-count Superseding Information: one count of distribution and possession with intent to distribute oxycodone, in violation of 21 U.S.C. § 841(b)(1)(C), and one count of distribution and possession with intent to distribute alprazolam and clonazepam, in violation of 21 U.S.C. § 841(b)(1)(E)(2).1 See Government's Memorandum of Law in Opposition to Petitioner's Supplemental Motion To Vacate, Set Aside or Correct His Sentence Pursuant to 28 U.S.C. § 2255 ("Gov't Opp'n") (13-cv-4966, Doc. 62), Ex. D ("Plea Agreement") at 1-2. The new charges did not include an ACCA enhancement, which requires a conviction on a firearms violation, and hence contained no mandatory-minimum sentence. The Plea Agreement stipulated that, based on Petitioner's status as a career offender, Petitioner faced a Sentencing Guidelines range of 151 to 188 months' imprisonment (the "Stipulated Range") and a statutory maximum sentence of twenty years. Id. at 2-4. The Plea Agreement also stipulated that the Government could not charge Petitioner with possession of a firearm, but could attempt to establish such possession solely for the purposes of securing a two-level enhancement of Petitioner's offense level at a hearing pursuant to United States v. Fatico. Id. at 3.2 The PleaAgreement also provided that the Petitioner could not appeal, nor collaterally challenge any sentence within or below the Stipulated Guidelines Range of 151 to 188 months' imprisonment. Id. at 5.3
Petitioner pleaded guilty on December 21, 2012. Gov't Opp'n, Ex. E ("Plea Tr."). After the Probation Office issued its Presentence Report recommending the same sentencing range that the parties had agreed upon in the Plea Agreement, Petitioner informed trial counsel that he wanted to withdraw his guilty plea because it left open the possibility that his sentence could be enhanced by possession of the gun, despite his strenuous insistence that he did not possess the gun on the night in question. At a conference before this Court on April 9, 2013, however, trial counsel informed the Court that she had advised Petitioner not to withdraw his plea, and Petitioner then confirmed that he had indeed changed his mind and was rescinding his request to withdraw. See Gov't Opp'n, Ex. F.
The Court held a Fatico hearing4 on April 17 and April 23, 2013 with respect to Petitioner's possession of the gun. Gov't Opp'n, Exs. G, H ("Fatico Tr."). Testifying for the Government was (1) Juan Moreira Adular, one of the inhabitants of the residence, who described the encounter with Petitioner, testified that Petitioner shot at him, and described how he and the other inhabitants ultimately restrained Petitioner until the police arrived, and (2) an ATF firearms and tool mark examiner, who testified that the tool mark evidence corroborated Juan Moreira Adular's version of events on the night in question. The Government also played the 911 call from the residence on the night in question. Testifying for Petitioner was (1) a criminalisticsexpert, (2) the officer who responded to the 911 call, (3) the officer who conducted the crime scene investigation, and (4) Petitioner himself, who again claimed that he had been robbed by the inhabitants of the residence, and that he had not possessed or discharged a firearm. Petitioner also submitted two statements from Rodrigo Perez-Suarez, another inhabitant of the residence present on that night. The first was the police statement given by Perez-Suarez on the night of the arrest, the second was given by Perez-Suarez to an agent five-and-a-half months after the arrest, and both statements actually corroborated the Government's theory that Petitioner possessed and discharged a firearm at the residence, and described the altercation during which Perez-Suarez and the other inhabitants managed to physically restrain Petitioner. See Fatico Tr. at 142-45.5
On May 30, 2013, the Court concluded that the Government had proven by a preponderance of the evidence at the Fatico hearing that Petitioner possessed and discharged a firearm on the night in question. Gov't Opp'n, Ex. I ("Sentencing Tr."), at 2-6. The Court found that the Government's theory that Petitioner had possessed and discharged a firearm was corroborated by Moreira's testimony, the ATF expert's testimony, the two statements from Perez-Suarez, the 911 call, and other forensic evidence presented by the Government. Sentencing Tr. at 4. On the other hand, the Court found that Petitioner's theory that he was actually a victim of robbery was supported only by his own testimony, which was contradicted by other record evidence and not particularly credible given Petitioner's admission that he was drunk at the time of the incident and did not remember much of the night in question prior to reviewing discovery produced in the case. Id. at 4-5. The Court also found that Petitioner'sexpert witness agreed with the Government's ATF expert regarding the bullet strikes in the residence, both of which were consistent with the Government's recitation of the facts. Id. at 6.
Based on the finding that Petitioner possessed and discharged a firearm, the Court determined that Petitioner's Sentencing Guidelines range was 151 to 188 months' imprisonment. The Court nonetheless imposed a below-Guidelines sentence of 120 months' imprisonment. Id. at 8, 22. After sentencing Petitioner, the Court stated its belief that Petitioner had "put in...all the evidence that [he] had" and "received a full hearing on whether or not there was a gun in that apartment, who had the gun in the apartment," and "who fired the gun." Id. at 30-31. Nonetheless, the Court found Petitioner's theory of events "inherently preposterous" and "absolutely implausible." Id.
Petitioner filed his initial § 2255 petition pro se, claiming ineffective assistance of counsel on July 16, 2013, and followed up with an amended petition on July 31, 2013 and a supplemental petition on August 22, 2013. (13-cv-4966, Docs. 1, 3, 6). Petitioner then filed a separate § 2255 petition pro se, covering...
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