Opinion
CIVIL ACTION 19 Civ. 867 (GHW) (SLC) CRIMINAL ACTION 16 Cr. 691 (GHW)
04-20-2021
DASHAWN HAWKINS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
THE HONORABLE GREGORY H. WOODS, United States District Judge
REPORT AND RECOMMENDATION
SARAH L. CAVE, United States Magistrate Judge.
I. INTRODUCTION
Dashawn Hawkins (“Hawkins”) pled guilty to distributing and possessing with intent to distribute heroin and fentanyl, which resulted in the overdose death of Colin Cameron in September 2016, and for which the Honorable Gregory H. Woods sentenced Hawkins to 252 months' imprisonment, over 100 months below the advisory guidelines range to which he had agreed in his plea agreement. Hawkins, who is incarcerated at the Federal Correctional Institution in Ray Brook, New York, has now filed a petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (the “Petition”). (ECF No. 1). In the Petition, Hawkins argues that: (i) his counsel was constitutionally ineffective for failing to investigate the cause of Cameron's death; (ii) his plea was not knowing and voluntary; (iii) “newly discovered evidence” shows that “he is actually innocent of the sentence enhancement for distribution of heroin resulting in death[;]” and (iv) the statute under which he was convicted is unconstitutionally vague. (ECF No. 2 at 2; see ECF No. 1 at 5-9). For the reasons below, I respectfully recommend that the Petition be denied.
Page numbers refer to the ECF page number, unless otherwise noted. Citations to “ECF” refer to documents filed in this civil action, and citations to “Cr. ECF” refer to documents filed in United States v. Hawkins, No. 16 Cr. 691 (GHW) (the “Criminal Case”).
II. BACKGROUND
This summary of the Factual Background is derived largely from the Presentence Report (“PSR”), as revised based on the parties' corrections during Hawkins' sentencing hearing. (Cr. ECF Nos. 56 at 18-19, 58). A summary of the Factual and Procedural Background also appears in Judge Woods' January 28, 2021 Order in the Criminal Case denying Hawkins' motion for the return of forfeited cash. United States v. Hawkins, No. 16 Cr. 691 (GHW), 2021 WL 292750 (S.D.N.Y. Jan. 28, 2021) (Cr. ECF No. 110).
1. The death of Colin Cameron
On September 2, 2016, New York City Police Department (“NYPD”) officers and emergency medical service personnel responded to a 911 call at an apartment in Manhattan (“Cameron's Apartment”), where they found Colin Cameron (“Cameron”) unresponsive. (Cr. ECF No. 58 at 7 ¶ 13, 8 ¶ 24). After efforts to revive him were unsuccessful, Cameron was pronounced dead at the scene. (Id. at 7 ¶ 13). The Office of the Chief Medical Examiner (“OCME”) determined that Cameron “died from an acute heroin and fentanyl intoxication resulting from an accidental overdose.” (Id.) In Cameron's Apartment, NYPD officers recovered: three needles that tested positive for heroin and fentanyl; a spoon that tested positive for heroin, fentanyl, and ketamine; and a vial that tested positive for ketamine. (Id. at 7 ¶ 14).
The NYPD's investigation determined that Cameron had purchased heroin from Hawkins, alias “Jhonny Cash, ” and one of Hawkins' associates, Leonce Cunningham, alias “Audi.” (Cr. ECF No. 58 at 7 ¶ 15). For approximately two years, Hawkins had been Cameron's primary heroin dealer, although, earlier in 2016, Cameron had completed a rehabilitation program and abstained from using heroin for some time. (Id. at 7 ¶¶ 15-16). Until early August 2016, Cameron had also been receiving monthly doses of Vivitrol, a drug used to treat opioid dependence after rehabilitation. (Id. at 7 ¶¶ 16-17). Then, on August 6, 2016, after receiving a text message from Hawkins the day before, Cameron bought heroin from Hawkins again for the first time in several months. (Id. at 7 ¶¶ 17-18). Between August 6, 2016 and August 28, 2016, Cameron and his girlfriend bought heroin from Hawkins or one of his associates approximately ten times. (Id. at 7-8 ¶¶ 19-22).
At about 7:45 p.m. on September 1, 2016, Cameron bought heroin from Hawkins; Cameron and his girlfriend used some of the heroin that night, and Cameron used the remainder the following morning. (Cr. ECF No. 58 at 8 ¶ 23). When Cameron's girlfriend found him unresponsive at 7:53 a.m. on September 2, 2016, she called 911. (Id. at 8 ¶ 24). Later that night, Cameron's girlfriend sent a text message to Cunningham informing him of Cameron's death; Hawkins and Cunningham then stopped using their cellphones and bought new ones that same night. (Id. at 8 ¶ 25).
2. Investigation, charges, and arrest
After recovering text messages between Cameron, Cunningham, and Hawkins, from the end of September 2016 until early October 2016, NYPD officers conducted surveillance of Hawkins and his apartment (“Hawkins' Apartment”). (Cr. ECF No. 58 at 8 ¶ 26). On October 19, 2016, a sealed indictment (the “Indictment”) was filed, charging Hawkins with one count of distribution and possession with intent to distribute heroin and fentanyl, the use of which resulted in Cameron's death, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C), and one count of conspiracy to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C). (Cr. ECF No. 2).
On October 20, 2016, pursuant to an arrest warrant issued with the Indictment, the NYPD arrested Hawkins. (Cr. ECF No. 58 at 9 ¶ 31). NYPD officers also executed a search warrant at Hawkins' Apartment, where they found, inter alia: (i) fentanyl packaging; (ii) $14,681 in cash; (iii) a “stash of drugs” consisting of plastic bags containing heroin and cutting agents, “twists” of heroin and fentanyl, cocaine, methamphetamine, and a scale with heroin and cocaine residue; (iv) a semi-automatic 9mm short-barreled rifle with two loaded magazines and a silencer; (v) a business card for “Jhonny Cash, ” described as “party supplier, ” “bringing the night to life, ” and located at 187 Candyland Drive; and (vi) a notebook containing Hawkins' handwriting with the following entry signed “Jhonny Cash”:
The number twenty two on the top right corner indicates my remaining time © I on the MF! Countdown bitches. . .did my time like a champ! Like your pops said, don't do the crime if you can't do the time. Which is straight #facts. Timeless but cliche, ‘paying taxes' is my analogy. Because I don't consider myself a criminal. I'm a businessman that receives tax free, cold cash! I love money I need it every day. I'm a junkie, lol, just being honest Daniele. . .(Cr. ECF No. 58 at 8-9 ¶ 27). While the NYPD officers were executing the search warrant, Cunningham appeared, and when questioned by the officers, said that he was there to visit “Dashawn.” (Id. at 9 ¶¶ 28-29). The officers arrested Cunningham, and on searching him, found two twists of heroin, $1,191 in cash, and two cellphones. (Id. at 9 ¶ 29).
Following his arrest, Hawkins appeared before the Honorable Henry B. Pitman, who appointed Federal Defenders of New York, specifically, Julia Gatto, Esq. (“Gatto”), to represent him. (Cr. ECF No. 5). Several months later, Amy Gallicchio, Esq. (“Gallichio”) also appeared as Hawkins' counsel (Gatto and Gallicchio, together, “Counsel”). (Cr. ECF minute entry Mar. 6, 2017).
3. The Superseding Indictment
On December 19, 2016, a grand jury returned a superseding indictment (the “Superseding Indictment”), charging Hawkins with: (i) distribution of and possession with intent to distribute heroin and fentanyl, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C) (“Count I”); (ii) conspiracy to distribute and possess with intent to distribute 100 grams and more of heroin, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B) (“Count II”); (iii) use, carry, and possession of a short-barreled rifle during a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 924(c)(1)(B)(i) (“Count III”); and (iv) being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (“Count IV”). (Cr. ECF No. 11).
4. Discovery and Protective Order
In contemplation of the Government's production of discovery to Hawkins, the parties agreed to a protective order (the “Protective Order”), which Judge Woods so-ordered on October 31, 2016. (Cr. ECF No. 6). The Protective Order permitted Hawkins to review with his counsel, but not to keep a copy of, Cameron's autopsy report and related documents, and crime scene photographs from Cameron's Apartment, and to review outside of counsel's presence the contents of Cameron's cellphone. (Id. ¶ 2(b)).
Thereafter, the Government produced discovery to Hawkins, including Cameron's girlfriend's 911 call, historical cell site data, the results of the search of Hawkins' Apartment, the contents of Cameron's cellphone, OCME materials, NYPD laboratory results on the controlled substances found in Cameron's Apartment and Hawkins' Apartment, and the contents of Hawkins' cellphones. (ECF No. 23 at 10; see Cr. ECF No. 7 at 1; Cr. ECF No. 9 at 5-7; Cr. ECF No. 13; Cr. ECF No. 15 at 2-4).
5. The Plea Agreement and Allocution
On July 14, 2017, Hawkins pled guilty, pursuant to a plea agreement (the “Plea Agreement”) to one count of distributing heroin and fentanyl resulting in Cameron's death, in violation of 21 U.S.C. § 841(b)(1)(C) (the “Offense”). (Cr. ECF No. 30 at 17-18; ECF No. 2 at 5157). As set forth in the Plea Agreement, this offense carried a mandatory minimum term of imprisonment of 20 years. (ECF No. 2 at 51; see Cr. ECF No. 30 at 13).
21 U.S.C. § 841(b) sets forth the penalties for violation of § 841(a)(1), and specifically in (b)(1)(C) provides: “In the case of a controlled substance in schedule I or II . . . such person shall be sentenced to a term of imprisonment of not more than 20 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprisonment of not less than twenty years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18 or $1,000,000 if the defendant is an individual ....” Heroin is a Schedule I controlled substance, and fentanyl is a Schedule II controlled substance. 21 C.F.R. §§ 1308.11(c)(11), 1308.12(c)(9).
At the beginning of the plea allocution (the “Plea Allocution”), Judge Woods first asked Hawkins a series of questions that established that Hawkins was competent, was pleading guilty because he was “in fact guilty and not for some other reason, ” and understood the rights he was giving up by entering his guilty plea. (Cr. ECF No. 30 at 2-10). Among the rights that Hawkins acknowledged he understood he was giving up was the right to “appeal with respect to whether the government could use the evidence that it has against [him], or with respect to whether [he] did or did not commit this crime.” (Id. at 9-10). Judge Woods then confirmed that Hawkins understood the maximum and minimum penalties for the Offense, including the mandatory minimum punishment of 20 years' imprisonment. (Id. at 12-14). Hawkins also acknowledged that “the sentence ultimately imposed may be different from any estimate that [his] attorney may have given [him].” (Id. at 14). Judge Woods next confirmed that Hawkins had read the Plea Agreement, discussed it with his Counsel, and “fully underst[oo]d it before [he] signed it.” (Id. at 17). Judge Woods again confirmed that Hawkins understood that, in the Plea Agreement, he “agreed not to file a direct appeal or to bring a collateral challenge including but not limited to [a § 2255 Motion], or to seek a sentence modification . . . of any sentence within or below the stipulated guidelines range of 360 months to life imprisonment.” (Id. at 18-20). In response to Judge Woods' request, Hawkins described the conduct on which his guilty plea was based as follows:
On September 1st, 2016, I sold a small quantity of personal use heroin to Colin Cameron in a hand-to-hand drug sale in Manhattan, New York. Although I certainly did not intend for him to overdose, I am told - I do not dispute that Colin's death resulted from the drugs I sold him. Also, I considered him a friend. I never meant for this to happen. I would like to say I'm sorry.(Id. at 21). Hawkins also agreed that when he sold the drugs to Cameron, he knew what he was “doing was wrong and illegal.” (Id.) Finally, Judge Woods formally received Hawkins' guilty plea:
THE COURT: Mr. Hawkins, Count One of the indictment charges that you intentionally and knowingly did distribute and possessed with the intent to distribute heroin and Fentanyl, and that the use of those substances resulted in the death of Colin Cameron all in violation of 21 U.S.C. Sections 812, 841(a)(1), and 841(b)(1)(C); how do you plead to that count?
THE DEFENDANT: Guilty.
...
THE COURT: Thank you. It is the finding of the Court in this case that Mr. Hawkins is fully competent and capable of entering an informed plea, that Mr. Hawkins is aware of the nature of the charges and the consequences of the plea, and that the plea of guilty is a knowing and a voluntary plea supported by an independent basis in fact containing each of the essential elements of the offense. The plea is therefore accepted and the defendant, Mr. Hawkins, is now adjudged guilty of that offense.(Id. at 22-23).
6. Sentencing
On January 24, 2018, Judge Woods sentenced Hawkins to “a nonguidelines sentence of 252 months” imprisonment, followed by five years of supervised release. (Cr. ECF No. 56 at 57; see Cr. ECF No. 53 at 2-3). Judge Woods also ordered Hawkins to pay $17,219.84 in restitution to Cameron's family, and to forfeit $14,681 in funds traceable to the Offense and seized from Hawkins at the time of his arrest. (Cr. ECF No. 53 at 6-7).
In explaining the sentence, Judge Woods noted that Hawkins' sentencing submissions:
include a lengthy description of the increased likelihood of overdose for people who are using opioid blockers. And I have ordered unsealed the medical records that described some of the communications about those medications and their effects. Unfortunately, we'll never know why it was that [] Cameron passed away after using [] Hawkins' drugs and others did not. [] Hawkins is, in no doubt, an immoral criminal, dedicated to the cold pursuit of cash. But I don't understand that his mental state was that of a murderer, as opposed to the reckless dealer of a toxin.(Cr. ECF No. 56 at 60).
B. Procedural Background
On January 28, 2019, Hawkins filed the Petition, supporting memorandum of law, and his own Affidavit (“Hawkins' Affidavit”). (ECF Nos. 1-2). In Hawkins' Affidavit, he admits that his Counsel made him aware of “text messages and other discovery material, ” including a statement by Cameron's girlfriend that she and Cameron “only did heroin the night before he overdosed, ” and that his Counsel told him during plea discussions that he could not receive copies of Cameron's autopsy materials. (ECF No. 2 at 36-37 ¶¶ 5, 6, 8). Hawkins attests that, when his Counsel sent him copies of Cameron's autopsy materials after his sentencing, he “discovered” Cameron's girlfriend's statement to the NYPD that she and Cameron “were using Ketamine and opiate mix the night before his death, ” and asserts that, had he known of that statement during the Criminal Case, he would not have taken his Counsel's advice to plead guilty. (Id. at 37 ¶¶ 910). He asserts that his Counsel “misled” him into entering a guilty plea that “required” him “to accept a sentence enhancement based on the death that resulted from [] Cameron's use of multiple drugs.” (Id. at 37 ¶ 11).
On February 1, 2019, Judge Woods ordered the Government to respond to the Petition. (ECF No. 4). Because the Petition includes a claim that his defense counsel was ineffective, on May 1, 2019, Judge Pitman, to whom this case was then assigned, ordered Hawkins to execute and return an “Attorney-Client Privilege Waiver” (the “Waiver”), or face dismissal of the Petition. (ECF No. 11). On June 6, 2019, Hawkins executed the Waiver, authorizing his Counsel to provide testimony concerning Hawkins' allegations of ineffective assistance. (Cr. ECF No. 90 at 6-7).
After the action was reassigned to the undersigned, the Court ordered Hawkins' Counsel to submit an affidavit addressing Hawkins' allegations of ineffective assistance, 30 days after which the Government was to file its opposition to the Petition. (ECF No. 21). On December 17, 2019, the Government filed its opposition (the “Opposition”), accompanied by an affidavit from Counsel (“Counsel's Affidavit”). (ECF Nos. 23, 23-1).
In response to Hawkins' allegations, Counsel stated that, before Hawkins' guilty plea, they investigated whether ketamine contributed to Cameron's death by: (i) retaining “an expert-forensic toxicologist to review the autopsy and relevant medical records”; (ii) subpoenaed and received from OCME additional documents that the Government had not provided in discovery showing toxicology tests performed at the time of Cameron's autopsy; and (iii) interviewed “at least one OCME medical examiner who interpreted the records . . . .” (ECF No. 23-1 at 1-2 ¶¶ 45). Based on these investigative steps, Counsel “determined that there was no forensic evidence to support the argument that ketamine contributed to [] Cameron's overdose death.” (Id. at 2 ¶ 5). In addition, Counsel met with Cameron's girlfriend, who stated that she and Cameron were not using ketamine the night before his death, and that she had told the NYPD that she and Cameron had used “special K” (ketamine) in the past but not the night before his death. (Id. at 2 ¶ 6). Finally, Counsel attested that, in December 2016, they explained to Hawkins that the Protective Order prevented them from sending him a copy of Cameron's autopsy report and related materials, but they did review those materials with him during their visits to him in detention. (Id. at 2-3 ¶ 7). In response to his post-sentencing request, without objection by the Government, Counsel sent copies of the materials to Hawkins. (Id. at 3 ¶ 7).
On March 11, 2020, Hawkins filed a supplemental response in further support of his Petition, on March 17, 2020, filed a second supplemental response, and on August 28, 2020, filed a third supplemental response. (ECF Nos. 31, 35, 39).
III. DISCUSSION
A. Legal Standard
Pursuant to Section 2255, a prisoner sentenced in federal court “may move the court which imposed the sentence to vacate, set aside or correct the sentence” if the prisoner claims “that 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.” 28 USC § 2255(a). Relief under Section 2255 is only available “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 complete miscarriage of justice.” Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (per curiam) (internal citation omitted). In addition, “[b]ecause collateral challenges are in tension with society's strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack.” Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010) (internal citation omitted).
The Court must hold an evidentiary hearing under Section 2255 “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). “It is within the district court's discretion to determine whether a hearing is warranted.” Pham v. United States, 317 F.3d 178, 184 (2d Cir. 2003).
Because Hawkins is appearing pro se, the Court liberally construes his submissions and interprets them to raise the strongest arguments they suggest. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (stating that pro se papers “must be held to less stringent standards than formal pleadings drafted by lawyers”); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (collecting cases); United States v. Deaza-Alcala, No. 18 Civ. 7285 (GHW), 2019 WL 2208839, at *4 (S.D.N.Y. May 22, 2019) (quoting Triestman, 470 F.3d at 474)).
B. Ineffective Assistance of Counsel
1. Legal standard
“It is well established that the Sixth Amendment to the United States Constitution guarantees criminal defendants' right to the effective assistance of counsel.” Deaza-Alcala, 2019 WL 2208839, at *4 (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). To prove that his counsel's assistance was ineffective, a petitioner “must show (1) ‘that counsel's representation fell below an objective standard of reasonableness'; and (2) ‘that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” Pham, 317 F.3d at 182 (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)); Massaro v. United States, 538 U.S. 500, 505 (2003) (“a defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial”); United States v. Brown, 623 F.3d 104, 112 (2d Cir. 2010) (same); Deaza-Alcala, 2019 WL 2208839, at *4 (same).
Under the first Strickland prong, “a petitioner must demonstrate that the attorney ‘made errors so serious' that the representation fell below an ‘objective standard of reasonableness.'” Deaza-Alcala, 2019 WL 2208839, at *4 (quoting Strickland, 466 U.S. at 687-88). “[T]he record must demonstrate that” these errors were such “that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (quoting Strickland, 466 U.S. at 687). “‘Judicial scrutiny'” of counsel's performance “‘must be highly deferential, '” and the petitioner must overcome the “‘presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'” Bell v. Cone, 535 U.S. 685, 698 (2002) (quoting Strickland, 466 U.S. at 689); see Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (according counsel a “strong presumption” of competence). Judicial review of counsel's performance is deferential because “‘[t]here are countless ways to provide effective assistance in any given case'” and “‘[e]ven the best criminal defense attorneys would not defend a particular client in the same way.'” United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 589)). As set forth in Strickland, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . . In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” 466 U.S. at 690-91. “[A] habeas petitioner will be able to demonstrate that trial counsel's decisions were objectively unreasonable only if there was no tactical justification for the course taken.” Lynn v. Bliden, 443 F.3d 238, 247 (2d Cir. 2006) (internal citation omitted).
To satisfy the prejudice requirement, the petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The prejudice prong of the Strickland analysis “focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). Courts in the Second Circuit generally “require[] some objective evidence other than [petitioner]'s assertions to establish prejudice.” Pham, 317 F.3d at 182 (citing United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998) (per curiam)).
2. Application
Hawkins alleges that his Counsel was ineffective for failing to investigate other possible causes of Cameron's death. (ECF Nos. 1 at 4; 2 at 6-17). In particular, Hawkins contends that his Counsel failed to interview Cameron's girlfriend, failed to hire an expert to show that heroin was not Cameron's cause of death, and failed to show him Cameron's autopsy materials. (ECF Nos. 2 at 11-33; 31 at 3-9). Hawkins believes that his Counsel's performance prejudiced him in that he was sentenced to 252 months' imprisonment. (ECF Nos. 2 at 31; 31 at 5).
Viewed against the standards set forth above, the Court finds that Hawkins' 2255 Motion does not support the conclusion that his Counsel's representation fell below an objective standard of reasonableness, or that he was prejudiced as a result.
a. Counsel's performance did not fall below an objective standard of reasonableness.
The Second Circuit has recognized that defense counsel has a duty “to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary, ” but that duty does not “compel defense counsel to investigate comprehensively every lead or every possible defense . . . or to scour the globe on the off-chance that something will turn up.” Greiner v. Wells, 417 F.3d 305, 320-21 (2d Cir. 2005) (internal citations omitted). Rather, “constitutional error generally comes into play when counsel fails to undertake any investigation, not when counsel makes a reasonable effort to secure evidence but is simply unsuccessful.” Frias v. United States, No. 09 Civ. 2537 (JFK), 2010 WL 3564866, at *3 (S.D.N.Y. Sept. 13, 2020) (emphasis added) (citing Greiner, 417 F.3d at 322). In addition, conclusory assertions about “what exculpatory evidence may have been revealed by an investigation” fail to establish an ineffective assistance of counsel claim. Petrucelli v. United States, No. 05 Civ. 9582 (TPG), 2009 WL 4858081, at *10 (S.D.N.Y. Dec. 15, 2009); Halo v. United States, No. 06 Civ. 5041 (ARR) (RLM), 2007 WL 1299158, at *13 (E.D.N.Y. Apr. 30, 2007) (explaining that a “petitioner alleging that counsel's ineffectiveness was centered on a supposed failure to investigate has the burden of providing the court sufficiently precise information, that is, a comprehensive showing as to what the investigation would have produced.”) (citation omitted).
The Court finds that Counsel's actions demonstrate reasonable diligence in investigating alternate causes for Cameron's death and other mitigating circumstances that might have rendered the enhancement in § 841(b)(1)(C) inapplicable. As set forth in Counsel's Affidavit, Counsel's investigation included retaining an expert forensic toxicologist to review Cameron's autopsy materials, obtaining additional toxicology testing records beyond those provided by the Government, and interviewing OCME personnel to understand the forensic records. (ECF No. 231 at 2 ¶ 5). Although, based on those efforts, Hawkins' Counsel determined that “there was no forensic evidence to support the argument that ketamine contributed to [] Cameron's overdose death, ” they did not cease their investigation there. (Id.) Instead, they sought out and interviewed Cameron's girlfriend, who represented that she would testify that she and Cameron were “not using ketamine” the night he overdosed, and that the NYPD officer incorrectly recorded her as saying that she and Cameron used “special K” the night before he died. (Id. at 2 ¶ 6). Thus, Counsel's sworn statements directly rebut Hawkins' assertions about what he believes they should have done: they did obtain forensic documents, they did hire an expert, and they did interview witnesses. That Counsel's reasonable efforts did not produce evidence of an alternative cause for Cameron's death “does not render [their] representation ineffective.” Frias, 2010 WL 3564866, at *3; see Matura v. United States, 875 F.Supp. 235, 237 (S.D.N.Y. 1995) (finding that “Petitioner's bald assertion that counsel should have conducted a more thorough pre-trial investigation fails to overcome the presumption that counsel acted reasonably.”).
Furthermore, the fact that Counsel did not provide Hawkins with Cameron's autopsy materials until after his sentencing did not render their representation ineffective. (ECF No. 2 at 6). As Hawkins acknowledges, his Counsel told him before he entered his guilty plea that they could not provide him with copies of Cameron's autopsy materials, (ECF No. 2 at 37 ¶ 7-8), because of the restrictions in the Protective Order; instead, they reviewed those materials with him in person. (Cr. ECF No. 6; ECF No. 23-1 at 2-3 ¶ 7). Had his Counsel provided him with his own copies of those documents any earlier than they did (i.e. after his sentencing), they would have violated a court order and subjected Hawkins, and themselves, to possible sanctions. Fed. R. Crim. P. 16(d)(2) (setting forth penalties for violation of a protective order). Therefore, Counsel's conduct in showing Hawkins, but not providing copies of, Cameron's autopsy materials was reasonable and did not render their representation ineffective. Cf. United States v. Moore, 322 Fed.Appx. 78, 83 (2d Cir. 2009) (finding reasonable a protective order that prevented defendant from possessing copies of discovery material in his jail cell without defense counsel present).
Finally, the exhibits Hawkins has submitted contradict his assertions that no ketamine testing was performed and that he did not know about Cameron's ketamine use before his Plea Allocution. (ECF No. 31 at 3, 7). Exhibit 4 to his Petition is an NYPD Laboratory Report reflecting testing of items seized from Cameron's Apartment, several of which contained ketamine “residue.” (ECF No. 2 at 45). Pursuant to the Protective Order, Hawkins was also able to review during his Criminal Case Cameron's text messages, an excerpt of which he submitted as Exhibit 5 to the Petition and which, the Government represents, reflect several occasions on which Cameron sought to purchase ketamine. (Id. at 47-48; ECF No. 23 at 2 n.2, 15). Accordingly, Hawkins' after-the-fact assertion that his Counsel failed to investigate whether Cameron's death was caused by ketamine is belied by the record and fails to establish that his Counsel was ineffective.
b. Hawkins was not prejudiced.
Hawkins alleges that his Counsel's conduct prejudiced him because, had he known about Cameron's girlfriend's statement to the NYPD, he would not have taken Counsel's “advice to plead guilty, ” and therefore would not have been subject to the § 841(b)(1)(C) sentencing enhancement. (ECF No. 2 at 37 ¶¶ 10-11). Although “there is no reason” for the Court “to address both components of the [ineffective-assistance] inquiry” given Hawkins' “insufficient showing” that his Counsel's performance fell below an objective standard of reasonableness, Strickland, 466 U.S. at 697, the Court also finds that Hawkins has failed to show that further investigation by his Counsel “would have made any difference to the outcome of this case.” Belk v. United States, No. 05 Civ. 2696 (LTS) (HBP), 2006 WL 963880, at *3 (S.D.N.Y. Apr. 13, 2006).
First, as the Court has found above, Hawkins' Counsel did review with him Cameron's autopsy materials, which contained Cameron's girlfriend's statement to the NYPD, as well as Cameron's cellphone records, some of which reflected Cameron's attempts to purchase ketamine. (See § III.B.2.a, supra). Therefore, Hawkins' contention that “he first ‘discovered'” evidence suggesting that Cameron may have used ketamine when his Counsel sent him copies of the autopsy materials in June 2018 is baseless, and simply self-serving. (ECF No. 2 at 6). Accordingly, even had his Counsel given him actual copies before his plea-which the Protective Order prohibited-those copies contained the same information his Counsel had already shared with him during the plea negotiations. Hawkins has therefore failed to show that having his own copies of Cameron's autopsy materials would have caused him to change his plea. See Frias, 2010 WL 3564866, at *3.
Second, Counsel did investigate ketamine as a possible alternative cause of Cameron's death, and found “no forensic evidence to support the argument that ketamine contributed to [] Cameron's overdose death.” (ECF No. 23-1 at 2 ¶ 5). Hawkins' “opinion” that Cameron's death was the result of “multiple or mixed drug intoxication” (ECF No. 2 at 10), is simply “[m]ere speculation” that further investigation might have led “to a different outcome, ” which is insufficient to show prejudice. Mocombe v. United States, No. 02 Civ. 1846 (HB), 2005 WL 730566, at *3 (S.D.N.Y. Mar. 31, 2005).
Third, to the extent that Hawkins is contending that he was prejudiced because § 841(b)(1)(C) did not apply unless the heroin and fentanyl he sold Cameron were the sole cause of Cameron's death, that “argument is defeated by Burrage v. United States, -- U.S. --, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014), wherein the Supreme Court clearly and repeatedly stated that the causation element for § 841(b) offenses resulting in death requires only that the defendant's conduct be ‘a but-for cause of the death[.]"' United States v. Sica, 676 Fed.Appx. 81, 83-84 (2d Cir. 2017) (emphasis to Burrage added by Sica). As the Second Circuit explained in Sica, “Burrage distinguished between instances in which the defendant's narcotics trafficking ‘merely played a nonessential contributing role' in the death, which does not suffice to establish causation, and instances in which the ‘incremental effect' of the drugs was the ‘straw that broke the camel's back,' which does suffice.” Sica, 676 Fed.Appx. at 84 (quoting Burrage v. United States, 571 U.S. 204, 211(2014)). As in Sica, the record underlying Hawkins' guilty plea “fixes this case firmly within the latter category, as toxicology reports and witness accounts provided a sufficient basis to conclude that the narcotics sold by [Hawkins] were essential to [Cameron's] death[], and therefore a but-for cause.” 676 Fed.Appx. at 84. In addition to the categories of evidence in Sica, here, Hawkins admitted that he sold heroin to Cameron, and that Cameron's “death resulted from the drugs [he] sold him.” (Cr. ECF No. 30 at 21). See United States v. Tate, 523 F.Supp.2d 165, 170 (D. Conn. 2007) (where defendant stipulated during plea colloquy to distribution of “cocaine base or crack cocaine, ” finding that defense counsel's decision “not to independently investigate the identity of the substance” was not “unreasonable” and did not cause prejudice); see also Blackledge v. Allison, 431 U.S. 63, 74 (1977) (explaining that defendant's statements during plea allocution “carry a strong presumption of verity”); Jackson v. United States, No. 19 Civ. 1243 (VAB), 2020 WL 3619547, at *4 (D. Conn. July 2, 2020) (rejecting defendant's arguments that were contradicted by his sworn statements during plea allocution). Accordingly, the investigative steps Hawkins contends his Counsel should have made “would not have succeeded in defeating” the § 841(b)(1)(C) sentence enhancement. Belk, 2006 WL 963880, at *4.
For each of these reasons, the Court finds that Hawkins has failed to show that he was denied effective assistance of counsel in violation of his rights under the Sixth Amendment.
C. Voluntariness of Guilty Plea
Hawkins “contends that his guilty plea was not knowing and voluntary” as required by Federal Rule of Criminal Procedure 11(b)(1)(G), and therefore, Judge Woods should not have accepted it. (ECF No. 2 at 28). Specifically, Hawkins argues that “the record is inadequate to establish that [he] was sufficiently aware of each element of 21 U.S.C. § 841(b)(1)(C), ” including that he was pleading guilty “to the fact that the heroin was laced with fentanyl.” (Id.)
1. Legal standards
a. Rule 11
Federal Rule of Criminal Procedure 11 requires the district court, after placing the defendant under oath, to address the defendant personally in open court and “inform the defendant of, and determine that the defendant understands” fifteen specific things, including, “the nature of each charge to which the defendant is pleading.” Fed. R. Crim. P. 11(b)(1)(G). The purpose of Rule 11 is “to ensure that a defendant's plea of guilty is a voluntary and intelligent choice among the alternative causes of action open to the defendant.” United States v. Renaud, 999 F.2d 622, 624 (2d Cir. 1993) (internal citations omitted). Rule 11 thus sets forth “[t]he minimum standard of information that a district court must personally impart to [a] defendant, ” United States v. Andrades, 169 F.3d 131, 133 (2d Cir. 1999), but “[a] variance from the requirements of [Rule 11] is harmless error if it does not affect substantial rights.” Fed. R. Crim. P. 11(h). The Second Circuit generally does not disturb guilty pleas “when there has been a minor and technical violation of Rule 11 which amounts to harmless error.” Renaud, 999 F.2d at 624 (internal citations omitted).
Although the statute underlying Count I, to which Hawkins pled guilty, “makes it unlawful for a defendant ‘knowingly or intentionally' to manufacture, distribute, or dispense (or possess with intent to manufacture, distribute, or dispense) a controlled substance, ‘the law is settled that a defendant need not know the exact nature of a drug in his possession to violate § 841(a)(1); it is sufficient that he be aware that he possesses some controlled substance.'” United States v. Abdulle, 564 F.3d 119, 125 (2d Cir. 2009) (Sotomayor, J.) (quoting United States v. Morales, 577 20 F.2d 769, 776 (2d Cir. 1978)); see McFadden v. United States, 576 U.S. 186, 192 (2015) (explaining that the knowledge requirement of § 841(a)(1) “may be met by showing that the defendant knew he possessed a substance listed on the schedules, even if he did not know which substance it was”); United States v. Soerbotten, 398 Fed.Appx. 686, 688 (2d Cir. 2010) (“It is well established that knowledge of the specific type of controlled substance is not an essential element of” § 841(a)(1)). Heroin is a Schedule I controlled substance, and fentanyl is a Schedule II controlled substance. 21 C.F.R. §§ 1308.11(c)(11), 1308.12(c)(9). Thus, “when an indictment charges a defendant with knowing possession with intent to distribute” a particular controlled substance (as Hawkins' Superseding Indictment did (Cr. ECF No. 11)), “the government need not prove that the defendant knew that he or she possessed” that particular controlled substance. Abdulle, 564 F.3d at 126. Instead, the Second Circuit has explained that the mens rea requirement will “be satisfied if, for example, the government proved that the defendant knew that he or she possessed a controlled substance, but thought that substance was [either the substance listed in the indictment] or another regulated substance.” Id. The Second Circuit has also explained that “a variation between the controlled substance described in the indictment and the controlled substance proven at trial may be permissible when it ‘affect[s] neither the Government's case nor the sentence imposed” and does not ‘prejudice[] the ability of the defendants to make their defense to the charge that they violated 21 U.S.C. § 841.” Id. (quoting United States v. Knuckles, 581 F.2d 305, 311 (2d Cir. 1978)).
2. Application
As set forth above, under Second Circuit precedent, it was not necessary for Hawkins to know that the heroin he sold to Cameron resulting in Cameron's overdose death also contained fentanyl. See Abdulle, 564 F.3d at 127. Therefore, it was not necessary for his plea allocution to include a specific acknowledgment that the heroin he sold also contained fentanyl; it was enough for purposes of § 841(a)(1) and the sentencing enhancement in § 841(b)(1)(C) that he acknowledged that he sold heroin. In any event, as the plea transcript reflects, the Government detailed the elements of Count I, which included that Hawkins “knowingly possessed a controlled substance which in this case is heroin and Fentanyl, ” immediately following which Hawkins agreed that, if he “were to go to trial, the government would have to prove all of the elements of this offense beyond a reasonable doubt.” (Cr. ECF No. 30 at 11). Asked to describe his conduct that made him “believe that [he is] guilty of the charge to which [he was] pleading guilty, ” Hawkins acknowledged that he knew he sold a controlled substance-heroin-to Cameron, and did “not dispute that [Cameron's] death resulted from the drugs [he] sold him.” (Id. at 21). Finally, the Plea Agreement, which Hawkins signed and acknowledged he read, discussed with his Counsel, and fully understood (ECF No. 30 at 17), provided that Hawkins was pleading guilty to Count I, which charged him “with distributing and possessing with intent to distribute heroin and fentanyl.” (ECF No. 2 at 51) (emphasis added). Accordingly, Hawkins' plea allocution satisfied Rule 11(b)(1)(G).
D. Actual Innocence
Notwithstanding his guilty plea, Hawkins now contends that he is actually innocent of selling the heroin and fentanyl to Cameron that caused his death. (ECF Nos. 2 at 22-27; 35 at 2; 39 at 2-11). Hawkins predicates his “actual innocence” claim on three theories: (i) “newly discovered evidence” to suggest that Cameron used ketamine the night before his death; (ii) a combination of Vivitrol, ketamine, heroin, and fentanyl caused Cameron's death, such that “at most, heroin was a contributing cause”; and (iii) Hawkins “distributed heroin using cut off corners from sandwhich [sic] bags and not in the glass vial and clear glassine bags found” in Cameron's Apartment. (ECF Nos. 2 at 22-27; 39 at 5). Hawkins also now suggests that “it is possible that Cameron purposely overdosed, ” and that Cameron's girlfriend's “actions contributed to his death.” (ECF No. 39 at 7-9).
1. Legal standard
“‘Actual innocence' is more than ‘legal innocence' or an assertion of insufficiency of evidence.'” Flom v. United States, No. 19 Civ. 6476 (RRM), 2021 WL 84230, at *6 (E.D.N.Y. Jan. 11, 2021) (quoting Poindexter v. Nash, 333 F.3d 372, 380 (2d Cir. 2003)). Rather, it “means that the petitioner in fact did not commit the crimes on which the calculation or imposition of his sentence was based.” Abdur-Rahman v. United States, No. 09 Cr. 442 (WHP), 2016 WL 1599491, at *3 (S.D.N.Y. Apr. 19, 2016) (citation omitted). The Supreme Court has yet to recognize a “federal constitutional right to be released upon proof of ‘actual innocence.'” Dist. Atty's Off. for Third Jud. Dist. v. Osborne, 557 U.S. 52, 71 (2009); see Herrera v. Collins, 506 U.S. 390, 400 (1993) (“Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring the underlying [] criminal proceeding.”); Friedman v. Rehal, 618 F.3d 142, 159 (2d Cir. 2010) (quoting Osborne); Pimentel v. United States, No. 96 Civ. 5891 (JFK), 2008 WL 2151796, at *7 (S.D.N.Y. May 21, 2008) (“District courts, following Herrera, have repeatedly held that a ‘freestanding' claim of actual innocence based on newly discovered evidence, i.e., one unaccompanied by an allegation of some constitutional error, does not provide a basis for habeas relief.”). Similarly, in the context of habeas relief, “neither the Supreme Court nor the Second Circuit has recognized a freestanding claim of actual innocence.” Flom, 2021 WL 84230, at *6 (collecting cases); see McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (“We have not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.”); Bethea v. Walsh, No. 09 Civ. 5037 (NGG), 2016 WL 258639, at *46 (E.D.N.Y. Jan. 19, 2016) (noting that “even if Petitioner were to make out a free-standing federal claim of actual innocence, the availability of relief for such a claim has been limited in dicta to capital cases, which this case is not”).
Even if an actual innocence claim were cognizable, “the threshold showing for such an assumed right would necessarily be extraordinarily high.” Herrera, 406 U.S. at 417. That showing would require a defendant to show “more convincing proof of innocence” than simply proof “that, in light of new evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'” House v. Bell, 547 U.S. 518, 536-37, 555 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); Erminchine v. United States, No. 06 Civ. 10208 (LAP) (JLC), 20111842951, at *15 (S.D.N.Y. May 12, 2011) (finding that petitioner “fail[ed] to offer any convincing proof of innocence that would enable him to meet even the Schlup standard-the theoretical floor of any such actual innocence claim-let alone that of Herrera.”); Chin v. United States, No. 08 Civ. 1735 (FB), 2009 WL 3380725, at *7 (E.D.N.Y. Oct. 19, 2009) (explaining that burden of proving actual innocence claim “at least ‘requires more convincing evidence of innocence than Schlup'”) (quoting House, 547 U.S. at 555). Such a claim “sets an exceedingly high bar and ensures that a petitioner may only succeed on an actual innocence claim if his case is ‘truly extraordinary.'” Flom, 2021 WL 84230, at *6 (quoting House, 547 U.S. at 537).
2. Application
The Court recommends that Hawkins' actual innocence claim be denied for four reasons. First, Hawkins has “failed to establish any independent constitutional claims, ” and accordingly, he is not entitled to relief under § 2255. Pizzuti v. United States, No. 10 Civ. 199 (LAP) (HBP), 2014 WL 4636521, at *45 (S.D.N.Y. Sept. 16, 2014) (emphasis added); see Herrera, 506 U.S. at 400; United States v. Quinones, 313 F.3d 49, 67 (2d Cir. 2002) (citing Herrera and noting that actual innocence has not been recognized as an independent basis for habeas relief).
Second, by virtue of his guilty plea to the Offense, Hawkins “waived a challenge to the facts themselves.” Salas v. United States, 139 F.3d 322, 324 (2d Cir. 1998) (citations omitted); Stern v. United States, No. 09 Civ. 6044 (PAC) (FM), 2013 WL 71773, at *18 (S.D.N.Y. Jan. 4, 2013) (holding that guilty plea precluded petitioner from “contest[ing] the facts to which he pleaded guilty, ” and therefore he was “unable to establish a freestanding innocence claim”), adopted by, 2013 WL 989382 (S.D.N.Y. Mar. 14, 2013).
Third, the evidence to which Hawkins now points is not “newly discovered.” All of the evidence was produced in discovery and Hawkins' Counsel shared it with him when they met with him during his pre-trial detention. (ECF No. 23-1 at 3 ¶ 7; see Cr. ECF No. 7 at 1; Cr. ECF No. 9 at 5-7; Cr. ECF No. 13; Cr. ECF No. 15 at 2-4). Cameron's girlfriend's statement to the NYPD that she and Cameron had used ketamine was included in that discovery, and Hawkins' Counsel separately interviewed her to clarify when that use occurred. (ECF No. 23-1 at 2 ¶ 6, 3 ¶ 7). Also included in the discovery were Cameron's cellphone records, in which he mentions-to Hawkins and others-that he was on Vivitrol. (ECF No. 2 at 47-48). The Government also represents that the discovery provided to Hawkins included the affidavit in support of the warrant to search Hawkins' Apartment, in which law enforcement officers attested to their recovery of packaging material during a search of trash outside Hawkins' Apartment. (ECF No. 23 at 23; see Cr. ECF No. 7 at 1; Cr. ECF No. 9 at 3, 6; Cr. ECF No. 15 at 2-4). Thus, the evidence to which Hawkins points is not newly-discovered.
Fourth and finally, for the same reasons set forth in § III.C.2, supra, the Court finds that Hawkins has not sustained the high burden that a theoretical actual innocence claim requires. In addition to Hawkins' own admission that Cameron's “death resulted from the drugs [he] sold him, ” (Cr. ECF No. 30 at 21), the Government's evidence included: (i) text messages between Hawkins and Cameron demonstrating that Hawkins was Cameron's exclusive dealer as of early August 2016 and in the weeks leading up to his death; (ii) text messages and other electronic records showing that Hawkins sold Cameron drugs the night before he died; and (iii) Cameron's autopsy records showing heroin and fentanyl in his system and the OCME's conclusion that those drugs caused his death. (See ECF No. 23 at 23). Hawkins offers nothing more than speculation that another drug, such as ketamine, Vivitrol, or diphenhydramine, or the intentional actions of Cameron or his girlfriend might have been the real cause of Cameron's death. (ECF Nos. 2 at 2227; 39 at 1-11). Such speculation and conjecture fall far short of demonstrating that this is a “truly extraordinary” case in which an actual innocence claim should be recognized, let alone sustained. House, 547 U.S. at 537; Moreno-Godoy v. United States, Nos. 13 Civ. 2383 (JSR) (GWG), 07 Cr. 354 (JSR), 2014 WL 1088300, at *35 (S.D.N.Y. Mar. 20, 2014) (explaining that actual innocence claim “‘requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial'”) (quoting Schlup, 513 U.S. at 324); Marcus v. United States, No. 14 Civ. 5780 (ARR), 2015 WL 3869689, at *22 (E.D.N.Y. June 22, 2015) (holding that where petitioner “offered no support for his actual innocence claim other than his own self-serving statement” he had “failed to overcome the high standard required to overturn his conviction”); DiMattina v. United States, 949 F.Supp.2d 387, 421 (E.D.N.Y. 2013) (holding that “[w]eak circumstantial evidence . . . will not suffice to demonstrate constitutional harm warranting section 2255 relief on the basis of actual innocence”).
E. Constitutionality of Section 841(b)(1)(C)
Hawkins argues that § 841(b)(1)(C) is “unconstitutionally vague” in violation of the Fifth Amendment Due Process Clause “because it does not have a mens rea requirement for the enhancement's death-results element.” (ECF No. 2 at 31). As a result, he contends that there was not a sufficient basis for his guilty plea, in violation of Rule 11(b)(3). Id.
1. Legal standard
The Fifth Amendment Due Process Clause provides that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. The Government violates the Due Process Clause if it “tak[es] away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Johnson v. United States, 576 U.S. 591, 595 (2015); see United States v. Demott, 906 F.3d 231, 237 (2d Cir. 2018) (explaining that a “statute is unconstitutionally vague if it fails to define the unlawful conduct with ‘sufficient definiteness that ordinary people can understand what conduct is prohibited,' or if its vagueness makes the law unacceptably vulnerable to ‘arbitrary enforcement'”) (quoting Kolender v. Lawson, 461 U.S. 352, 357-58 (1983)). The Due Process Clause's “prohibition of vagueness in criminal statutes ‘is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law.'” Id. (quoting Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)). “These principles apply not only to statutes defining elements of crimes, but also to statutes fixing sentences.” Id. at 596 (citing United States v. Batchelder, 442 U.S. 114, 123 (1979)).
2. Application
Hawkins' argument that § 841(b)(1)(C) is constitutionally defective because it lacks a mens rea element fails for two reasons. First, the Offense to which Hawkins pled guilty does have a mens rea requirement-as the Supreme Court explained in Burrage, that Offense “has two principal elements: (i) knowing or intentional distribution of heroin, § 841(a)(1), and (ii) death caused by (‘resulting from') the use of that drug, § 841(b)(1)(C).” 571 U.S. at 210. The mens rea requirement appears in the first element-knowing or intentional distribution of heroin (or other listed controlled substance). The Supreme Court has not required that “every element of an offense must contain a mens rea, ” but rather has directed that courts “think twice before concluding that an offense, viewed as a whole, contains no mens rea requirement.” United States v. Alvarado, 816 F.3d 242, 250 (4th Cir. 2016) (citing Staples v. United States, 511 U.S. 600, 606 (1994)).
Second, to the extent Hawkins is suggesting that § 841(b)(1)(C) is unconstitutionally vague because it does not require that Cameron's death be foreseeable to him, “every court of appeals to have considered this question” has rejected this argument. Sica, 676 Fed.Appx. at 84 (collecting cases from nine other Circuits rejecting foreseeability requirement for § 841(b)(1)(C)). In Sica, the Second Circuit did not expressly decide that question, because foreseeability was supported by the facts in the record that the defendant had previous experience with “potent” narcotics, and continued selling those narcotics “even after learning that they had caused a young woman's illness and, shortly thereafter, a young man's death.” Id. at 84-85. The record shows that the same is true here: by his own statements during his prior incarceration for a drug conviction (“don't do the crime if you can't do the time”) (Cr. ECF No. 58 at 8-9 ¶ 27), Hawkins was an experienced dealer in heroin, which he continued to possess and distribute even after he learned of Cameron's death, as evidenced by the quantity of drugs (including heroin and fentanyl) and drug paraphernalia found in Hawkins' Apartment on his arrest weeks after Cameron's death. (Id. at 8 ¶¶ 26-27). Accordingly, even if the Second Circuit were to recognize a foreseeability requirement for § 841(b)(1)(C), the facts of Hawkins' case would satisfy that requirement.
F. A Hearing Is Not Required.
Hawkins has requested that the Court hold an evidentiary hearing on the claims in his Petition. (ECF No. 2 at 2, 33). The Court has carefully and conscientiously reviewed the record in this case, and in Hawkins' Criminal Case, reviewed the law cited by the parties, and conducted its own independent research of Hawkins' claims, and has concluded that none of those claims set forth a meritorious claim for which an evidentiary hearing would be warranted. Accordingly, the Court exercises its discretion not to hold an evidentiary hearing in this case. Pham, 317 F.3d at 184; United States v. Logan, 845 F.Supp.2d 499, 519 (S.D.N.Y. 2012) (exercising discretion not to hold evidentiary hearing where criminal case record “conclusively belie[d] [petitioner's] allegations”); Ermichine, 2011 WL 1842951, at *16-17 (declining to hold hearing where petitioner “fail[ed] to provide the Court with any credible evidence that he may be able to establish a prima facie case for relief”); Lara v. United States, No. 05 Civ. 4177 (RMB), 2006 WL 3771012, at *12-13 (S.D.N.Y. Dec. 15, 2006) (declining to hold evidentiary hearing where petitioner's “‘conclusory assertions [] raised no plausible issue'”) (quoting United States v. Salerno, 868 F.2d 524, 541 (2d Cir. 1989)).
IV. CONCLUSION
For the foregoing reasons, I recommend that the Petition and Hawkins' request for an evidentiary hearing be DENIED.
I further recommend that the District Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), because Hawkins has not “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the address below.
SO ORDERED
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Woods.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Hawkins does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, he may request copies from Respondent's counsel. See Local Civ. R. 7.2.