United States v. Rumble, 5:09–CR–230.

CourtUnited States District Courts. 2nd Circuit. United States District Court of Northern District of New York
Citation111 F.Supp.3d 207
Docket NumberNo. 5:09–CR–230.,5:09–CR–230.
Parties UNITED STATES of America, v. John RUMBLE, Petitioner–Defendant.
Decision Date01 July 2015

111 F.Supp.3d 207

John RUMBLE, Petitioner–Defendant.

No. 5:09–CR–230.

United States District Court, N.D. New York.

Signed July 1, 2015.

111 F.Supp.3d 209

John Rumble, Waymart, PA, pro se.

Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY, for United States of America.



On July 7, 2014, petitioner-defendant John Rumble ("Rumble" or "defendant"), proceeding pro se, moved pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct

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the sentence imposed on him following his conviction, after a jury trial, of various unlawful acts related to the possession and sale of firearms. The United States of America (the "Government") filed a response in opposition on January 16, 2015. Defendant replied on February 2, 2015.

The motion has been fully briefed and will be considered on the basis of the submissions, including the Declaration by George Hildebrandt, Esq. ("Attorney Hildebrandt") defendant's former trial attorney, and the letter brief from Jeremy Gutman, Esq. ("Attorney Gutman"), defendant's former appellate counsel.


On March 31, 2009, U.S. Magistrate Judge David E. Peebles authorized the execution of a search warrant covering Rumble's residence and vehicle as well as the collection of hair, blood, or urine samples from his person. The warrant was supported by informant statements indicating defendant, a federally licensed firearms dealer, was involved in the unlawful sale of firearms to known drug users and/or the exchange of firearms for controlled substances.

On April 2, 2009, federal law enforcement officials executed this warrant. The agents seized, among other items, approximately 174 firearms and their associated federal firearm licensee records, a triple beam scale allegedly containing marijuana residue, and defendant's hair and urine samples. Defendant was arrested at the scene.

On April 15, 2009, a federal grand jury sitting in the Northern District of New York returned a one-count indictment charging Rumble with being an unlawful user of a controlled substance in possession of a firearm in violation of 18 U.S.C. § 922(g)(3). Defendant, represented by Attorney Hildebrandt, waived his right to a personal appearance at an arraignment and entered a plea of not guilty.

On July 29, 2009, a federal grand jury returned a superseding indictment expanding the time period during which Rumble allegedly violated § 922(g)(3), identifying the 150 firearms at issue, and adding forfeiture allegations against this property.2 Defendant again waived his right to a personal appearance at an arraignment and renewed his plea of not guilty.

On December 2, 2009, Rumble moved for omnibus pre-trial relief, primarily seeking to suppress statements made during and after the execution of the search of his residence and vehicle. An evidentiary hearing was conducted and defendant's motion was granted in part on May 26, 2010.

On July 26, 2010, Rumble moved again for omnibus pre-trial relief, this time seeking to preclude certain expert testimony and obtain evidence in the Government's possession. Defendant also requested a Daubert hearing regarding the admissibility of evidence of a drug sniffing dog sweep that had been conducted during the search of his residence. This motion was dismissed without prejudice to renew at trial.

On February 8, 2011, Rumble moved to suppress all of the items seized from his residence pursuant to the search warrant executed by federal agents in 2009 based on a series of alleged omissions of material facts by the Government's agents. In the interim, a federal grand jury returned a

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second superseding indictment against defendant on March 23, 2011, adding a number of charges related to his allegedly unlawful conduct in the sale and possession of firearms. Defendant again waived his right to a personal appearance and renewed his plea of not guilty. Defendant's suppression motion was denied.

Finally, on May 23, 2011, the charges in the second superseding indictment were tried to a jury in Utica, New York. Rumble was found guilty on the first six counts of that indictment; the Government voluntary dismissed count seven after the jury failed to reach a verdict. Defendant was sentenced principally to 121 months' imprisonment.

Represented by Attorney Gutman on appeal, Rumble argued the trial court: (1) improperly admitted prejudicial evidence of his alleged threats against a federal agent; and (2) erred in calculating his base offense level under the sentencing guidelines.

By mandate issued April 13, 2013, the U.S. Court of Appeals for the Second Circuit affirmed Rumble's conviction and sentence. United States v. Rumble, 520 Fed.Appx. 26, 29 (2d Cir.2013) (summary order). The Circuit rejected defendant's argument regarding evidence of the alleged threats because this evidence pertained to count seven, which was dismissed on the Government's motion, and further noted that "[b]ecause the evidence with respect to [the other counts] was strong separate and apart from the evidence relating to Count Seven, we conclude that the claimed evidentiary errors were in any event harmless." Id. The Circuit likewise rejected defendant's sentencing challenge, noting the Government proffered ample evidence from which the trial court could conclude that U.S.S.G. § 2K2.1(a)(4)(B), which mandates a base offense level of twenty, was applicable to defendant's conduct. Id. at 29.


A. Section 2255

Section 2255 permits a court to "vacate, set aside or correct" a conviction or sentence "imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). This section limits claims to those that allege "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." Id. Accordingly, 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. Jackson, 41 F.Supp.3d 156, 161 (N.D.N.Y.2014) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir.1995) ).

Because Rumble is proceeding pro se, his submissions will be "liberally construed in his favor," and will be read "to raise the strongest arguments that they suggest." Jackson, 41 F.Supp.3d at 161 (internal citation and citation omitted). However, a § 2255 petitioner still bears the burden of proving his claim by a preponderance of the evidence, Triana v. United States, 205 F.3d 36, 40 (2d Cir.2000), and "[a]iry generalities, conclusory assertions[,] and hearsay statements will not suffice" to meet this standard. United States v. Aiello, 814 F.2d 109, 113 (2d Cir.1987). Nor is a reviewing court required to credit factual assertions that are "contradicted by the record in the underlying proceeding." Puglisi v. United States, 586 F.3d 209, 214 (2d Cir.2009).

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B. Ineffective Assistance of Counsel

A defendant seeking to attack his conviction and sentence based on the ineffective assistance of counsel must meet the two-pronged test laid out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must overcome the "strong presumption" that counsel's conduct was reasonable by showing that counsel's performance fell below an "objective standard of reasonableness" under "prevailing professional norms" by identifying "errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment." Id. at 687–89, 104 S.Ct. 2052.

Second, the defendant must also "affirmatively prove prejudice" by showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 693–94, 104 S.Ct. 2052. To demonstrate this prejudice, the defendant must show that there is a reasonable probability that counsel's error altered the result of the proceeding. Id. at 691, 104 S.Ct. 2052. A reasonable probability is defined as "a probability sufficient to undermine confidence in the outcome" of the integrity of the proceeding. Id. at 694, 104 S.Ct. 2052. This prong "requires some objective evidence other than defendant's assertions to establish prejudice." Pham v. United States, 317 F.3d 178, 182 (2d Cir.2003) (citation omitted).


Rumble claims that Attorney Hildebrandt was ineffective for failing to: (1) negotiate and /or inform him of a plea deal; (2) move to dismiss the indictment for a violation of the Speedy Trial Act; (3) call Richard...

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    ...that Scott was not a credible witness and that his testimony was unlikely to benefit Petitioner. See United States v. Rumble , 111 F.Supp.3d 207, 217 (N.D.N.Y.2015) (counsel was not ineffective for failing to call a witness who "had made a number of contradictory factual assertions that cal......

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