Opinion
21-2872
01-31-2023
Tyrin Gayle, Petitioner-Appellant, v. United States of America, Respondent-Appellee.
FOR PETITIONER-APPELLANT: Tyrin Gayle, pro se, Waymart, PA. FOR RESPONDENT-APPELLEE: Maurene Comey, Jacqueline C. Kelly, Hagan Scotten, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.
UNPUBLISHED OPINION
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 31st day of January, two thousand twenty-three.
Appeal from a judgment of the United States District Court for the Southern District of New York (Seibel, J.).
FOR PETITIONER-APPELLANT: Tyrin Gayle, pro se, Waymart, PA.
FOR RESPONDENT-APPELLEE: Maurene Comey, Jacqueline C. Kelly, Hagan Scotten, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.
PRESENT: STEVEN J. MENASHI, EUNICE C. LEE, SARAH A. L. MERRIAM, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Appellant Tyrin Gayle, proceeding pro se, appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate his conviction and sentence. In the motion, Gayle challenged his 2017 conviction for using or carrying a firearm during and in relation to a crime of violence or a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A). Gayle argued, among other things, that the jury charge on the § 924(c) count amounted to an error under Yates v. United States, 354 U.S. 298 (1957). Such an error occurs when both valid and invalid theories of culpability are submitted to a jury that returns a general verdict of guilty, and it is "impossible to tell" whether the jury selected the valid or invalid ground. United States v. Agrawal, 726 F.3d 235, 250 (2d Cir. 2013) (quoting Yates, 354 U.S. at 312).
When charging the § 924(c) count at Gayle's trial, the district court had instructed the jury that either a racketeering conspiracy (as a crime of violence) or a narcotics conspiracy (as a drug trafficking offense), or both, could serve as a valid predicate offense. It is undisputed, however, that racketeering conspiracy is no longer a valid predicate crime of violence after the Supreme Court's decision in United States v. Davis, 139 S.Ct. 2319 (2019). See United States v. Capers, 20 F.4th 105, 118-20 (2d Cir. 2021). Thus, Gayle argued that the unclear predicate for his guilty verdict constituted a Yates error. Gayle also contended that his counsel was ineffective for failing to raise this jury-instruction issue on direct appeal. In response, the government argued that the underlying Yates claim was procedurally defaulted and otherwise without merit.
In denying relief, the district court concluded that the jury would have rendered the same verdict if properly instructed. The evidence at trial, the district court explained, showed the racketeering and narcotics conspiracies to be "essentially co-extensive," such that the jury "inescapabl[y]" would have chosen both as predicates, not just the now-invalid racketeering conspiracy. Gayle v. United States, Nos. 16-CR-361-1, 20-CV-10086, 2021 WL 5234762, at *4-7 (S.D.N.Y. Nov. 8, 2021). Moreover, Gayle's claim was procedurally defaulted because he did not raise it on direct appeal and his ineffective assistance of counsel claim did not excuse the default because there was no prejudice. Id. at *3. But because "the Court ha[d] not found a case in which a narcotics conspiracy and racketeering conspiracy were found to be inextricably intertwined based on the record from a trial," the court granted a certificate of appealability. Id. at *7; see 28 U.S.C. § 2253(c). We assume the parties' familiarity with the underlying facts and the procedural history of the case.
The district court also certified for our review whether, in a § 2255 proceeding, an error of this type is evaluated under the harmless error standard of Brecht v. Abrahamson, 507 U.S. 619 (1993), which requires a "substantial and injurious effect or influence" on the jury's verdict. Id. at 637. Shortly before the government filed its brief in this appeal, we applied Brecht in a similar § 924(c) case arising out of a § 2255 motion. See Stone v. United States, 37 F.4th 825, 829 & n.18 (2d Cir. 2022). Regardless, as explained below, we resolve this appeal on plain error due to the threshold question of ineffective assistance of counsel.
In an appeal from the denial of a § 2255 motion, we review legal conclusions de novo and the district court's findings of fact for clear error. Rivera v. United States, 716 F.3d 685, 687 (2d Cir. 2013). Because Gayle proceeds pro se, we liberally construe his filings. Marmolejo v. United States, 196 F.3d 377, 378 (2d Cir. 1999).
Gayle raised the jury-charge claim both directly and as an ineffectiveness claim, with the latter also relevant to the separate question of procedural default. Cf. Pietri v. Fla. Dep't of Corr., 641 F.3d 1276, 1289 (11th Cir. 2011) (explaining that an ineffectiveness claim and an underlying substantive error on which it is premised are "separate and distinct"). To prevail on a claim of ineffective assistance of appellate counsel, and to excuse procedural default, Gayle must show at a minimum that the failure to raise the jury-charge error amounted to deficient performance and led to prejudice. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). However, because the underlying jury-charge error was not preserved, see Fed. R. Crim. P. 30(d), it would have been reviewed on direct appeal under the plain error standard.
Thus, we need not determine the precise interplay between the various standards relevant to this appeal-Brecht's substantial-and-injurious-effect standard, ineffective assistance of counsel's prejudice standard, and procedural default-if Gayle cannot prevail under plain error review, which is the least "stringent." Napoli v. United States, 32 F.3d 31, 36 (2d Cir. 1994); see also Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir. 2009) (observing that satisfying Strickland "necessarily" satisfies Brecht). Under plain error review, relief is not warranted unless "(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant's substantial rights; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings." United States v. Martinez, 991 F.3d 347, 351 (2d Cir. 2021) (quoting United States v. Miller, 954 F.3d 551, 557-58 (2d Cir. 2020)). In the context of a Yates jury-instruction error, the third and fourth requirements are not met if the court is "confident" that the jury would have rendered a guilty verdict "in the absence of the error." United States v. Laurent, 33 F.4th 63, 87 (2d Cir. 2022).
We conclude that Gayle cannot show plain error. First, on direct appeal, we rejected Gayle's argument that insufficient evidence supported the "requisite nexus" between his firearm use and possession and the narcotics conspiracy. United States v. Gayle, 797 Fed.Appx. 46, 49-50 (2d Cir. 2019). To the contrary, the trial testimony showed that Gayle owned multiple firearms that he often shared with other members of the gang, that the gang's "firearm stash" locations were strategically located near where the gang sold narcotics, and that Gayle personally participated in several shootings against a "rival drug-dealing gang." 797 Fed.Appx. at 50. On this basis, we "expressly affirm[ed] Gayle's conviction under [§ 924(c)] in sole reliance on the narcotics predicate." Id. at 50 n.2.
Convictions for violations of § 924(c) require some nexus between the gun and the predicate offense, and when a drug trafficking crime serves as a predicate, "the firearm must have some purpose or effect with respect to the drug trafficking crime; [the gun's] presence or involvement cannot be the result of accident or coincidence." Smith v. United States, 508 U.S. 223, 238 (1993).
At the initial sentencing, moreover, the district court commented on the nexus between the racketeering and narcotics conspiracies that served as predicates for the § 924(c) conviction. The district court found the evidence against Gayle to be "incredibly strong" and determined that witness testimony tying the firearm use to the narcotics conspiracy was sufficiently corroborated by social media posts "including those of the defendant identifying himself as a member of the enterprise and hanging out with other members who were doing the same as well as displaying guns and drugs and taunting rival gangs." Supp. App'x 10-14. The "cooperator testimony alone" showed that gang members "shared guns to protect their turf and, also, cooperator testimony put a gun in the defendant's personal hands," and this evidence was further "corroborated by Facebook video ... the defendant's cell phone search ... [and] Facebook posts by the defendant and others as well as seized firearms." Id. at 13-14. Thus, even at the initial sentencing, the district court thought it "inescapable that [the jury] must have based the 924(c) conviction on both Count One, the RICO conspiracy, and Count Four, the narcotics conspiracy." Id. at 24 (emphasis added). Specifically, because the jury found that the narcotics conspiracy was in essence a predicate act of the racketeering conspiracy, the invalid racketeering predicate was "inextricably intertwined with the narcotics conspiracy," and there was "simply no way" that the verdict rested only on the racketeering predicate. Id. at 24-25.
The district court reaffirmed and extensively referenced these sentencing-stage findings when it denied Gayle's § 2255 motion. The district court stated that the evidence "overwhelmingly supports" that the two conspiracies were "intertwined" and that the "evidence doesn't really allow for any other inference." Gayle, 2021 WL 5234762, at *5. Far from having "grave doubt" about the jury's choice of predicate, the district court had earlier "concluded-and continue[d] to conclude-that it was not impossible to tell on which ground the jury based its § 924(c) conviction, because the jury could not but have selected both grounds." Id. (internal quotation marks omitted). These factual findings, to which we defer-both under the § 2255 standard, but also in recognition of the district court's "vantage point" as the presider at Gayle's trial, United States v. Stewart, 433 F.3d 273, 296 (2d Cir. 2006)-compel the conclusion that there was no plain error here.
Gayle argues that our decision in United States v. Heyward, 3 F.4th 75 (2d Cir. 2021) requires a contrary conclusion, but we agree with the district court that he is mistaken. While Heyward invalidated a § 924(c) conviction on plain error review of a Yates error, we faced there a "distinct factual separation" between the valid and invalid predicate offenses. Id. at 83. This case, by contrast, presents no such factual separation. We therefore conclude that the same result would have obtained regardless of the error. See Laurent, 33 F.4th at 87.
We have considered Gayle's remaining arguments, which we conclude are without merit. Accordingly, we AFFIRM the judgment of the district court.