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In Moore, plaintiffs sought trail-wide certification of a class of 2,000 landowners whose reversionary interests in a railroad right-of-way were allegedly taken by operation of the Rails-to-Trails Act.
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97 CV 1267 (RR), 97 CV 1526 (RR)
March 31, 1998
PAUL MOORE, Petitioner Pro Se.
SHERWIN J. BIRKETT, Petitioner Pro Se.
THE HONORABLE ZACHARY W. CARTER UNITED STATES ATTORNEY EASTERN DISTRICT OF NEW YORK Assistant U.S. Attorney, Attorney for Respondent
Memorandum and ORDER
Paul Moore and Sherwin Birkett were convicted in 1992 after a jury trial in this district for various crimes relating to their participation in a violent narcotics distribution ring known as the Vassell Enterprise. Specifically, Moore was found guilty of racketeering, 18 U.S.C. § 1962 (c); conspiring to distribute narcotics, 21 U.S.C. § 841 (b)(1)(A), 846; assault in furtherance of racketeering, 18 U.S.C. § 1959 (a)(3); money laundering, 18 U.S.C. § 1956 (a)(1); and structuring financial transactions, 31 U.S.C. § 5324 (a)(3), 5322(b). Because one of Moore's predicate acts of racketeering was murder, and because his narcotics trafficking involved significant quantities of crack cocaine, his guideline range required the imposition of a term of life imprisonment. Birkett was also convicted of racketeering and conspiring to distribute narcotics. Because he too was found by the jury to have committed murder as a predicate act of racketeering and to have assisted in the distribution of crack cocaine, a life sentence was mandated by the guidelines applicable to his case.
Proceeding pro se, Moore and Birkett separately petition this court to vacate their convictions pursuant to 28 U.S.C. § 2255 (1994 Supp. 1998). Moore contends (1) that he was denied effective assistance of trial counsel in that his counsel (a) failed to investigate a possible alibi defense, (b) refused to allow him to testis', and (c) failed to request a specific verdict specifying which of three alleged drugs he trafficked in; (2) that he was denied effective assistance of counsel on appeal because his attorney failed to challenge this court's use of U.S.S.G. § 2A1.1, the guideline applicable to first degree murder, in calculating his sentence; and (3) that he was the victim of vindictive prosecution. Birkett argues that (1) this court erred in allowing the jury to consider a murder racketeering predicate for which there was no venue in this district, (2) the court misapplied the guidelines in sentencing him, and (3) the court failed to instruct the jury properly with respect to the elements of racketeering. In opposition to these claims, the government submits that the petitions are untimely and, in any event, without merit.
Having carefully reviewed the submissions of the parties, as well as substantial portions of the record, this court agrees that the petitions must be dismissed as untimely. In any event, it appears that most of the claims asserted are without merit.
Factual Background
Between 1979 and 1991, Eric Vassell headed a drug distribution network that operated in Brooklyn, New York. At its height, some two dozen individuals worked for the enterprise, distributing cocaine and heroin from various locations throughout Brooklyn. The enterprise's headquarters was a 60-unit apartment building at Sterling Place and Schenectedy Avenue, acquired in 1985 after Eric Vassell ordered the murder of one of two owners who had been reluctant to sell him the property. Thereafter, Sterling Place operated as a veritable drug supermarket, open 24 hours a day, 365 days a year. In the late 1980's Vassell expanded his business to include the large-scale distribution of crack cocaine in Dallas, Texas. The crack was generally processed in Brooklyn and driven to Dallas concealed in the trunks of rental cars. Proceeds from crack sales were subsequently returned to Brooklyn via Western Union wire transfers. Throughout its existence, the Vassell Enterprise used physical force to maintain discipline within its ranks and to deter competitors. The government charged various members of the enterprise with eleven murders.
Paul Moore became a member of the Vassell Enterprise sometime in 1985. In 1988, Eric Vassell sent Moore from Brooklyn to Dallas to assist in the distribution of crack cocaine. Moore often transported crack to workers at various spots run by the enterprise. He also arranged for the laundering and structuring of the proceeds realized from these sales. Sherwin Birkett joined the Vassell Enterprise in 1988, assisting in the Dallas operation by packaging crack and resupplying retail sellers. Both Moore and Birkett served as enforcers for the enterprise. Most particularly, on April 7, 1989, in Dallas, Moore and Birkett shot and killed Harold Spence, a rival Jamaican crack dealer. In October 1989, in Brooklyn, Moore and another confederate shot fellow gang member Everton Henry in the leg to punish him for being disrespectful to Eric Vassell.
After they were found guilty and sentenced in this court, Moore and Birkett both challenged their convictions on direct appeal. Moore's single contention, that he was tried in violation of his constitutional right to a speedy trial, was rejected by the Court of Appeals in a decision issued on August 3, 1992. See United States v. Vassell, 970 F.2d 1162 (1992). The appeals court similarly denied a host of challenges raised by Birkett and various co-defendants in a subsequent unpublished decision issued on May 13, 1993. See United States v. Vassell, Nos. 92-1296, 92-1444, 92-1445, 92-1446, 92-1702 (2nd Cir. May 13, 1993).
On or about March 6, 1997, Moore filed his § 2255 motion with this court. Birkett's motion was filed shortly before March 19, 1997.
Moore's motion was actually docketed by the court on March 13, 1997. Nevertheless, a pro se prisoner is deemed to have filed his papers on the day he delivers them to prison officials for transmittal to the court. See Houston v. Lack, 487 U.S. 266 (1988). In this case, Moore's affidavit in support of his motion is dated March 6, 1997. It thus appears reasonable to conclude that it was on that date or soon thereafter that he gave his papers to prison officials.
Birkett's papers, which are undated, were received by the court on March 19, 1997. The court assumes they were delivered to prison officials sometime the week earlier.
Discussion
I. TimelinessThe United States asserts that the § 2255 motions of both Moore and Birkett should be dismissed as untimely in light of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, § 105, 110 Stat. 1214, 1220 (1996), which became effective April 24, 1996. That statute amends 28 U.S.C. § 2255 to require that a motion made under that section be filed no later than one year after the date on which the judgment of conviction becomes final. Moore's conviction became final no later than November 1, 1993, and Birkett's conviction became final no later than August 11, 1993, ninety days after the dates when the Court of Appeals' mandates issued on their direct appeals. See Supreme Court Rule 13 (providing that petition for certiorari to the Supreme Court must be filed within ninety days after entry of judgment). Both petitioners waited over three years after their convictions became final and some ten months after the effective date of the AEDPA before filing their current § 2255 motions.
The AEDPA does not specifically indicate how its time requirements should apply to cases such as these that became final before the statute's enactment. In Reves v. Keane, 90 F.3d 676 (2d Cir. 1996), the Second Circuit ruled that the parallel one-year filing requirement applicable to § 2254 petitions would not be applied retroactively to petitions filed before the effective date of the AEDPA. This, however, left open the question of how much time should be afforded a petitioner who filed for collateral relief after the effective date of the AEDPA from a conviction fully reviewed some years earlier. See id. at 679 (reserving on this question). The Seventh, Ninth, and Tenth Circuits appear to allow a full year from the effective date of the AEDPA for federal prisoners to file § 2255 motions. See United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997); see also Calderon v. United States Dist. Court for the Cent. Dist. of California, 128 F.3d 1283, 1287 (9th Cir. 1997) (allowing full year for § 2254 petitions), cert. denied 118 S.Ct. 898 (1998); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996) (en banc) (allowing full year from AEDPA to file § 2254 petition), rev'd on other grounds. 117 S.Ct. 2059 (1997). In Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997). however, a case arising under § 2254, the Second Circuit adopted a more flexible, case specific approach. It ruled that in cases "where a state prisoner has had several years to contemplate bringing a federal habeas corpus petition, " there is no need to afford a full year from the effective date of the AEDPA to file a motion. See id. at 93. Instead, courts may dismiss petitions not filed within a "reasonable" time. Id. In Peterson, a prisoner whose conviction had become final eighteen years earlier, filed for collateral relief seventy-two days after the effective date of the AEDPA. The Court of Appeals found it reasonable for petitioner to have filed within two and one-half months of the new law. Indeed, the court emphasized that the "reasonable" time standard should "not be applied with undue rigor." Id. Rather, the circumstances of each case must be considered individually.
Here, Moore and Birkett waited over three years after their convictions became final and some ten months after the enactment of the AEDPA before filing their § 2255 petitions. They provide no excuse to explain this delay. They simply submit that the AEDPA is not intended to apply retroactively and insist that they are entitled to a full year after the statute's effective date. in support, Birkett cites the Supreme Court's recent decision in Lindh v. Murphy, 117 S.Ct. 2059 (1997). That case is of little assistance to these petitioners. It holds that the AEDPA does not apply to petitions "that were already pending when the Act was passed." Id. at 2061. As noted, the Second Circuit had already reached the same conclusion in Reves v. Keane. The holding in Lindh does not apply to cases such as these, where § 2255 motions were filed after the effective date of the AEDPA by petitioners whose convictions had become final some years earlier. In this circuit, such cases must reviewed under the "reasonable time" standard enunciated in Peterson v. Demskie.
It appears that all of the claims raised by Moore and Birkett are based on the record as it existed at the time of their convictions. In light of this, and in the absence of any excuse justifying the delay, the court finds that neither petitioner required more than three years after their judgments became final and ten months after the effective date of the AEDPA to file their collateral challenges with this court. Because the § 2255 motions were not filed within a "reasonable time," they are appropriately' dismissed as untimely.
II. The Merits of the Claims
Even if the petitions were not untimely, neither Moore nor Birkett would be entitled to the relief sought since they have not demonstrated the merit of any of their claims. To the extent any claims might otherwise warrant an evidentiary hearing, the court does not order such a hearing in light of the untimely filings.
A. Birkett
1. Murder Racketeering Predicate
Birkett submits that this court erred when it allowed the jury to hear evidence about the murder of Harold Spence, a crime that occurred outside this district. In belatedly raising this venue challenge, Birkett ignores the fact that he was not tried in this district for murder. The offense with which he was charged was racketeering. The Spence murder was only' one act in furtherance of a far-reaching racketeering enterprise. Continuing crimes, such as racketeering, may be tried in any district in which the enterprise operated, and all acts in furtherance of a continuing crime may be proved without regard to where they occurred.See 18 U.S.C. § 3237 (a) (1985) ("any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed"); United States v. Persico, 621 F. Supp. 842, 857 (S.D.N.Y. 1985) (applying § 3237 to racketeering charge).
In this case, ample proof supported the prosecution of the Vassell Enterprise in this district. The enterprise regularly distributed cocaine and heroin in Brooklyn. It processed crack cocaine in Brooklyn for subsequent distribution in Dallas, Texas. Not insignificantly, the Brooklyn end of the operation even provided a haven for Birkett and Moore after they murdered Harold Spence. In sum, Birkett's claim that it was error to allow the government to prove the Spence murder in support of the racketeering charge filed against him in this district is without merit.
2. Sentencing Guidelines
Birkett's guideline challenges to his sentencing are somewhat confusing. A liberal reading of his papers suggests that he thinks the court erred (1) in failing to make findings as to whether the criminal conduct of confederates was foreseeable by Birkett, (2) in enhancing his guidelines for possessing a firearm in connection with his drug crime, and (3) in treating the Spence homicide as first degree rather than second degree murder.
In fact, the court adjusted the calculation of drugs attributable to Birkett from level 42, as initially recommended by the Probation Department, to level 40, to ensure that he was only held accountable for the Dallas crack cocaine trafficking in which he actively participated. Since Birkett was not held accountable for the criminal activity of others, his ability to foresee such conduct was simply not an issue in the calculation of his guidelines.
Next, Birkett suggests that this court engaged in double counting when it calculated his racketeering guidelines with reference both to murder and his possession of a gun in connection with his drug activities. He argues that the murder guideline contemplates the use of a gun in the commission of the crime. U.S.S.G. § 2E1.1(a)(2) provides for the base offense level of racketeering to be calculated with reference to the offense levels "applicable to the underlying racketeering activity." Since Birkett was found to have committed two separate predicate acts murder and drug trafficking — the court properly calculated the guidelines applicable to each act before then grouping them pursuant to U.S.S.G. § 3D1.2. The guideline level for the murder was determined to be 43 without any reference to the weapon used in the commission of the crime; the level for drug trafficking was determined to be 42, which included an enhancement for the use of a firearm in connection with this conduct. It was the higher murder guideline that ultimately controlled Birkett "s racketeering offense level. The gun enhancement for the narcotics trafficking made no difference to this result. Thus, there was no impermissible double counting that unfairly increased Birkett's sentence.
In his motion papers, Birkett submits that his crime was second degree murder. This court can only assume that he is relying on the original Presentence Report, which so characterized the Spence homicide. In a subsequent addendum, however, the Probation Department noted that the Spence murder was premeditated, and as such was properly viewed as first degree homicide pursuant to U.S.S.G. § 2A1.1(a) with a guideline level of 43. This addendum was adopted by the court at sentencing. Since Birkett fails to show that this conclusion was erroneous, he is not entitled to any reduction in his sentence. The mandated term was life imprisonment.
3. Charge on Racketeering
In his response papers to the government, Birkett complains that the court did not instruct the jury as to the elements of racketeering as set forth in United States v. Concepcion 983 F.2d 369, 380-81 (2d Cir. 1992), cert. denied sub nom. Frias v. United States, 510 U.S. 856 (1993). That case deals with the elements required to prove a violation of 18 U.S.C. § 1959, which prohibits acts of violence committed to gain entry to or maintain or increase position in a racketeering enterprise. Birkett was not convicted of a § 1959 offense. Rather, he was convicted under 18 U.S.C. § 1962 (c). the substantive RICO charge. Because he points to no error in the court's instructions under this statute, his § 2255 motion must be denied.
Birkett was tried before the Supreme Court's ruling in Reves v. Ernst Young, 507 U.S. 170, 183 (1993) that conviction under 18 U.S.C. § 1962 (c) required proof that a defendant "participated in the operation or management of the enterprise itself." Thus, this court did not specifically charge on this point, nor did any attorney seek such an instruction. Assuming such an omission — not objected to at trial, and not raised on direct appeal — were properly reviewed in considering a § 2255 motion, the court finds that there was no prejudice to Birkett since the evidence demonstrated that he did indeed participate in the operation and management of the Vassell Enterprise. As the Supreme Court noted in Reves, "an enterprise is "operated' not just by upper management but also by lower rung participants in the enterprise who are under the direction of upper management." Id. at 185. Birkett plainly fell within this sphere. He regularly packaged crack cocaine for the enterprise and provided it to the organization's retail sale spots. Even more significantly, together with Paul Moore, Birkett acted as an enforcer for the enterprise, them taking it upon themselves to kill rival drug dealer Harold Spence. Birkett's activities thus evidenced far more discretion and initiative than the mere janitorial duties found inadequate to satisfy Reves in United States v. Viola, 35 F.3d 37, 43 (2d Cir. 1994)
B. Moore
1. Ineffective Assistance of Counsel
Moore contends that his trial counsel was ineffective in that he failed to conduct a pretrial investigation that would have developed alibi evidence for the date of the Spence murder. He further complains that his attorney did not allow him to testify in his own behalf Neither did counsel request a special verdict as to the multiple objectives of the drug conspiracy charge against him, nor pursue this issue on appeal. Finally, counsel failed to raise an appellate challenge to this court's reliance on U.S.S.G. § 2A1.1, the guideline applicable to first degree murder.
A prisoner asserting a claim of ineffective assistance of trial counsel carries a heavy burden. He must demonstrate both (I) that counsel's performance was so unreasonable under prevailing professional norms that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment," Strickland v. Washington, 466 U.S. 668, 687 (1984); and (2) that counsel's ineffectiveness prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." id. at 694; accord United States v. Trzaska, 111 F.3d 1019, 1029 (2d Cir. 1997). In assessing the performance of counsel, a habeas court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound [legal] strategy.'"Strickland v. Washington, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Paramount to the court's consideration of any claim of ineffectiveness is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. Moore's complaints about his trial counsel do not satisfy the strict criteria ofStrickland.
a. Failure to Investigate Possible Alibi Witnesses
Moore complains that counsel failed to investigate a possible alibi defense that he had to the April 7, 1989 shooting of Harold Spence. Specifically, he submits that he told counsel that he had traveled from Dallas to New York on March 30, 1989 in the company of two females and did not return to Texas until April 27, 1989. He complains that counsel never interviewed these potential witnesses or called them to testify in his defense.
Whether or not to call certain witnesses to testify is a strategic decision generally left to the discretion of counsel and not subject to collateral review. See United States v. Nersesian. 824 F.2d 1294, 1321 (2d Cir.) ("The decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial."), cert. denied, 484 U.S. 957 (1987). Nevertheless, such discretion must be exercised in a responsible manner. This usually means that counsel must conduct a reasonable inquiry into the possibility of calling potential witnesses. See Strickland v. Washington, 466 U.S. at 690 ("strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable"). If Moore's counsel in fact totally ignored the existence of possible alibi witnesses he would not have acted in an objectively reasonable manner.
Normally, this court would conduct a hearing to determine whether such attorney misconduct occurred. In this case, however, no such hearing is warranted. First, as this court has already noted, Moore's § 2255 motion is untimely. Further, it does not appear that Moore can satisfy the prejudice prong of the Strickland standard. His alibi witness claim is stated in conclusory terms. He does not identify the potential witnesses. Neither does he submit any affidavits from them indicating that they would have been willing to testify favorably to him at trial. Absent such a showing, there is no reason to think that counsel's purported lack of investigation prejudiced Moore in any way. Finally, as the government points out, Moore's claim that he was in New York from March 30 to April 27, 1989 — raised for the first time over five years after his trial — is at odds with statements he made to the court's Probation Department in 1991. The report he then gave of his movements between New York and Texas did not indicate that he was out of Dallas at the time of the Spence murder. To the contrary, he stated that he left Dallas for New York on January 27, 1989 together with his common law wife, Winsome Vassel. See Presentence Report ¶¶ 72, 151. Sometime in February, Moore returned to Dallas and continued to deal drugs on behalf of the enterprise. Although Moore told Probation that he had not been involved in the Spence murder on April 7, 1989, he admitted that he "accidentally" shot fellow gang member Alvin Grant in that same month. See Presentence Report ¶¶ 73, 77. The evidence at trial established that the Grant shooting took place in Dallas on April 13, 1989. Moore told Probation that it was this incident that led him to return to New York City and retreat from criminal activity. See Presentence Report ¶ 73. In sum, Moore's own past statements discredit his current claim that he was out of Texas at the time of the Spence murder. Not surprisingly, Moore now insists that he never admitted the Grant shooting to any Probation officials. He did not, however, raise any objection to the Probation Report at the time of sentence. From the totality of these circumstances, the court concludes that there would be no purpose in holding a hearing to explore this untimely and unsupported claim of attorney ineffectiveness.
Winsome Vassell is the sister of Eric Vassell. On January 27, 1989, she and Moore were detained by DEA officials at the Dallas/Fort Worth airport when they gave inconsistent responses regarding their possession of over $17,000. See Presentence Report ¶ 151. The two had also been arrested in New York in October 1985 in possession of six firearms and 292 vials of crack cocaine. See Presentence Report ¶ 150.
Indeed, it would have been futile for him to do so. A host of witnesses at trial testified to conversations they had with Moore in which he explained how he "accidentally" shot Grant.
b. Refusal to Allow Moore to Testify
Over five years after the jury found him guilty in this case, Moore asserts that he wished to testify in his own behalf but was prevented from doing so by his attorney. The right to testify is personal to a defendant and, thus, can only be waived by him. See Brown v. Artuz, 124 F.3d 73, 78 (2d Cir. 1997), cert. denied, 118 S.Ct. 1077 (1998). Absent extraordinary circumstances, however, a trial court is not required to itself make inquiry of a defendant to ensure that he is knowingly waiving his right. See id. at 79. It can rely on responsible counsel to ensure that a client understands his right to testify as well as the benefits and risks that any decision present. See id. When a convicted defendant subsequently asserts that his attorney absolutely refused to allow him to exercise his right to testify, the two-prong analysis of Strickland must be undertaken: did counsel act in an objectively unreasonable manner, see generally Dean v. Superintendent, 93 F.3d 58 (2d Cir. 1996) (court distinguishes between an attorney's appropriate efforts to persuade a client to do what is in his best interest and impermissible coercion that overbears a defendant's free will), cert. denied, 117 S.Ct. 987 (1997), and was the petitioner thereby prejudiced. see Brown v. Artuz, 124 F.3d at 81 (petitioner not prejudiced by counsel's purported refusal to allow him to testify where proffered testimony would not have established the defense at issue). In this case, Moore states that he would have denied shooting Harold Spence and asserted that he was in New York. Although he claims that witnesses could have testified to his departure from Dallas for New York on March 27, 1989, he proffers no corroborative evidence for his claim that he was not in Dallas on April 7, 1989. While it seems highly unlikely to this court that such conclusory statements would have altered the jury's view of the considerable evidence implicating Moore in the Spence murder, this court would normally resolve petitioner's Sixth Amendment claim through an evidentiary hearing where it could evaluate Moore's credibility as well as that of his trial attorney. In this case, the court will not order a hearing because, as noted, the entire § 2255 claim is untimely.
c. Special Verdict on Narcotics Charge
Moore contends that his attorney was constitutionally ineffective for failing to request a special verdict on the drug conspiracy charge. Count Four of the indictment which was also predicate act number one on the racketeering charge, accused Moore and other members of the Vassell Enterprise of conspiring "to distribute and to possess with intent to distribute substantial quantities of heroin, cocaine, and cocaine base . . . ." Preliminarily, the court notes that Moore cannot show that his counsel's failure to seek a special verdict was objectively unreasonable since none of the four other lawyers in the case all experienced criminal defense attorneys — requested such a verdict. Further. he cannot demonstrate prejudice since the claim is without merit.
A general verdict on a conspiracy count listing multiple objectives is ambiguous only when the "indictment is phrased in the disjunctive."United States v. Banks, 78 F.3d 1190, 1202 (7th Cir. 1996). When, as in this case, "the indictment is phrased in the conjunctive . . . a general verdict does not result in ambiguity." Id. at 1203. This is because a jury is presumed to have found proved all the objectives listed conjunctively in the charge. See id. That presumption is certainly warranted in this case. In its charge to the jury, the court was careful to maintain the conjunctive construction: "you must be convinced beyond a reasonable doubt that in the period between 1979 and December 6, 1990, there was an agreement between two or more people to distribute and possess with intent to distribute substantial quantities of heroin, cocaine and cocaine base . . . ." Moreover, the court emphasized the government's obligation to prove this specific agreement by charging the jury on multiple conspiracies. It noted that certain defendants were contending that "with respect to any agreement to traffic in drugs," the evidence adduced "at best establishes multiple separate and independent conspiracies and not the one conspiracy charged in Count Four of the indictment." The court specifically instructed the jury that [p]roof of several separate and independent conspiracies to traffic in drugs" was "not proof of the single overall conspiracy charged in Count Four" of the indictment. It emphasized the government's burden to prove "the existence of an agreement having the singular purpose charged in Count Four." Because the jury's general verdict of guilty was not ambiguous, petitioner was not prejudiced by the failure to submit a special verdict form. Whether framed as a Sixth Amendment or Due Process challenge to the conviction, this claim does not warrant § 2255 relief.
d. Use of U.S.S.G. § 2A1.1
Moore contends that his counsel was ineffective on appeal for failing to challenge this court's reliance on U.S.S.G. § 2A1.1 in sentencing him for the Spence murder. This guideline applies when a defendant intentionally causes the death of another person. See Application Note 1 to U.S.S.G, § 2A1.1 (possible application of§ 2A1.2 if defendant acts negligently or recklessly).
The jury at trial was instructed that to convict Moore of the Spence murder under Texas law, it was required to find that he intended to kill Spence or intended to cause him serious bodily injury endangering his life. The verdict of guilty indicates that the jury found Moore to have operated with this specific intent and not simply out of negligence or recklessness. Further, the jury rejected the possibility that Moore had acted in self defense. These findings amply supported the court's reliance on U.S.S.G. § 2A1.1. Since there is no reason to think that this factually supported conclusion would have been disturbed on appeal, Moore cannot show any prejudice from his attorney s failure to raise this claim.
2. Vindictive Prosecution
Moore was arrested in October 1990 in Brooklyn on a Texas warrant charging him with the murder of Harold Spence. Before the end of the year, he was indicted federally in this district for his involvement in the Vassell Enterprise and the Spence murder was charged as a predicate act of racketeering. Moore contends that the transfer of his case from state to federal authorities was constitutionally vindictive because he faced a life sentence in federal court but only a five-year maximum term in Texas. He submits that the threat of a higher prison sentence was used to try to compel his cooperation.
Due process prohibits judges or prosecutors from vindictively retaliating against defendants who properly invoke their constitutional rights, including the right to a jury trial and the right to appeal. See North Carolina v. Pearce, 395 U.S. 711 (1969). In this case, however, there is no "objective evidence" before the court to support the claim of vindictiveness. See United States v. Goodwin, 457 U.S. 368, 380 n. 12 and 284 (1982).
Indeed, the factual premise on which Moore bases his claim, i.e., that he faced a much more severe sentence federally than in Texas — is erroneous. A conviction for intentional murder under section 19.02(b) of the Texas Penal Code carries a sentence of "life or for any term of not more than 99 years or less than 5 years." Texas Penal Code Ann. § 12.32(a) (West 1994). In any event, vindictive prosecution is not evidenced by the mere fact that prosecutors chose to pursue federal rather than state charges against an individual. The Supreme Court has expressly held that prosecutors "should remain free before trial to exercise the broad discretion entrusted to [them] to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct." United States v. Goodwin, 457 U.S. at 382. Neither is vindictiveness established by claims that a prosecution was pursued to encourage a defendant to cooperate. In Bordenkircher v. Hayes, 434 U.S. 357 (1978), the Supreme Court explained that "no element of punishment or retaliation" is present when a defendant who is confronted with a plea agreement or cooperation proposal remains "free to accept or reject the prosecutor's offer." Id. at 363; see also Brady v. United States, 397 U.S. 742, 749-51 (1970) guilty plea to charge carrying life sentence not involuntary because prompted in part by fear of death penalty).
In this case, when the court charged the jury on the predicate act of murder, it used the elements of this Texas law. A conviction for intentional murder is deemed a first degree felony under Texas law, Texas Penal Code § 19.02(c), triggering the penalties in § 12.32.
Whatever charges the prosecution brings, it ultimately bears the burden of proving its accusations beyond a reasonable doubt. In this case federal authorities met that burden at trial. Moore's conviction was upheld on appeal. Nothing in the record reflects vindictiveness violative of Moore's right to due process of law.
Conclusion
The court finds that neither Paul Moore nor Sherwin Birkett filed their § 2255 motions within a reasonable time of the effective date of the AEDPA. Accordingly, the motions in both cases are dismissed as untimely. For the reasons stated in this memorandum, the court further finds that most of the claims asserted are without merit. To the extent that an evidentiary hearing would be required to resolve any of the claims made, the court declines to order such a hearing in light of the untimely filings. A certificate of appealability is denied in both cases.
SO ORDERED.
Dated: Brooklyn, New York March 31, 1998
REENA RAGGI UNITED STATES DISTRICT JUDGE