Opinion
00 Civ. 4313 (MBM), 00 Civ. 6949 (MBM)
August 6, 2002
CLARENCE HEATLEY, (Petitioner pro se), Beaumont, TX, JOHN CUFF, (Petitioner pro se), U.S.P. Leavenworth, Leavenworth, KS, JAMES F. COMEY, ESQ., United States Attorney for the Southern District of New York, SHARON L. McCARTHY, ESQ., Assistant U.S. Attorney, New York, NY.
OPINION AND ORDER
In 1999, Clarence Heatley and John Cuff were convicted of racketeering and multiple acts in aid of racketeering, including murders, in connection with the activities of a violent gang called the Preacher Crew that engaged in murder, robbery, extortion and narcotics trafficking, among other crimes. Heatley was the leader of the gang; as disclosed in the indictment, Preacher was one of his aliases. Each was convicted on his own plea of guilty at a time when each faced charges that could have resulted in the death penalty, and both plainly entered their guilty pleas to avoid that penalty. In connection with those pleas, each signed a plea agreement in which he gave up the right to appeal or to challenge his life sentence pursuant to 28 U.S.C. § 2255, and the government agreed to desist from seeking the death penalty. Despite that agreement, both have petitioned separately, pursuant to 28 U.S.C. § 2255, to set aside the judgments of conviction entered pursuant to those pleas, and the life sentences they received. For the reasons set forth below, both petitions are denied.
I.
The eleventh superseding indictment in this case was filed on December 17, 1997, charging Heatley, Cuff and 10 codefendants in 86 counts with participating in a racketeering enterprise called the Preacher Crew — "Preacher" having been one of Heatley's aliases. Indictment ¶ 1. Both Heatley and Cuff were charged with participating in the racketeering enterprise in violation of 18 U.S.C. § 1962(c) and (d); conspiracy to commit murder, attempted murder and murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) and (5); using and carrying a firearm in violation of 18 U.S.C. § 924(c); and participating in a narcotics distribution conspiracy in violation of 21 U.S.C. § 846. In addition, Heatley was charged with participating in murders while acting as the principal administrator, organizer and leader of a continuing criminal enterprise involving narcotics, in violation of 21 U.S.C. § 841(e)(1)(A); and robbery and extortion, in violation of 18 U.S.C. § 1951. Cuff was charged with participating in murders while working in furtherance of a continuing criminal enterprise involving narcotics, in violation of 21 U.S.C. § 841(e) (1)(A); and extortion, in violation of 18 U.S.C. § 1951. On December 12, 1997 and August 11, 1998, the government filed a notice and an amendment thereof, respectively, of intent to seek the death penalty as to Heatley. Like notice and amendments were filed as to Cuff on January 8 and August 7, 1998, and March 19, 1999.
On February 5, 1999, Heatley pleaded guilty to the following counts and charges, pursuant to a plea agreement as referred to above: Count One — participation in the Preacher Crew racketeering enterprise, in violation of 18 U.S.C. § 1962(c); Count Two — conspiracy to violate anti-racketeering laws through participation in the affairs of the Preacher Crew, in violation of 18 U.S.C. § 1962(d); Counts Three, Five, Eight, Ten, Twelve, Fourteen, Fifteen, Seventeen, Twenty-Two, Twenty-Eight, Thirty-One and Thirty-Six — conspiracies to murder 13 people and attempted murder of one person, in violation of 18 U.S.C. § 1959(a)(5); Counts Four, Six, Nine, Eleven, Thirteen, Sixteen, Eighteen, Nineteen, Twenty-Three, Twenty-Five, Twenty-Nine, Thirty and Thirty-Seven — participation in 13 murders in aid of the Preacher Crew racketeering enterprise, in violation of 18 U.S.C. § 1959(a)(1); Count Seven — assault with a dangerous weapon in aid of the Preacher Crew racketeering enterprise, in violation of 18 U.S.C. § 1959(a)(3); Counts Forty through Forty-Four — robbery and extortion in violation of 18 U.S.C. § 1951; Counts Forty-Six through Fifty-Six — participation in a continuing criminal enterprise involving narcotics, in which the murders referred to above were committed, in violation of 21 U.S.C. § 848(a), (b), (c) and (e)(1)(A); Counts Sixty-Six through Seventy-Three, Seventy-five, Seventy-Six, Seventy-Eight and Eighty-One — using and carrying firearms in relation to crimes of violence, in violation of 18 U.S.C. § 924(c).
Heatley's factual admissions at his plea included that he was an organizer of an enterprise that sold at least 15 kilograms of cocaine and one and one-half kilograms of crack over the time period stated in the indictment (2/5/99 Tr. at 23-24); that in connection with that enterprise he gave specific instructions to murder 12 people that in fact resulted in the murder of 13 people (id. at 24-46), one of the victims having been an unintended but nonetheless predictable casualty (id. at 42-44); that in connection with that enterprise he participated in robberies (id. at 48-53), multiple acts of extortion both in aid of the enterprise's narcotics business and simply to raise money for the enterprise (id. at 53-60), and arson (id. at 61-62). It was agreed that these acts, taken together, established not only the existence of and Heatley's participation as a principal in a continuing criminal enterprise to sell narcotics, in violation of 21 U.S.C. § 848(a), (b), (c) and (e)(1) (A), but also the existence and Heatley's participation as a principal in a racketeering enterprise, in violation of 18 U.S.C. § 1962(c) and (d). (Id. at 14, 63)
On March 22, 1999, Cuff pleaded guilty, also pursuant to a plea agreement, as referred to above, to the following counts (and accompanying charges) to which Heatley also had pleaded guilty: Counts One, Two, Seventeen, Eighteen, Nineteen, Twenty-Two, Twenty-Three, Twenty-Four, Twenty-Five, Twenty-Eight, Thirty, Thirty-One, Forty-One, Seventy-Five, Seventy-Six, and Seventy-Eight. In addition, Cuff pleaded guilty to the following counts and charges: Counts Twenty, Twenty-Six, Thirty-Two, Thirty-Three, Thirty-Four and Thirty-Eight — conspiracy to commit murder in aid of a racketeering enterprise, in violation of 18 U.S.C. § 1959(a)(5); Counts Twenty-One, Twenty-Seven, Thirty-Five and Thirty-Nine — murder in aid of a racketeering enterprise, in violation of 18 U.S.C. § 1959(a)(1); Counts Fifty-Seven through Sixty-Five — participation in a continuing criminal enterprise involving narcotics, in which nine charged murders were committed, in violation of 21 U.S.C. § 848(a), (b), (c) and (e)(1)(A); Counts Seventy-Four, Seventy-Seven, Seventy-Nine, Eighty and Eighty-Two — using and carrying firearms in relation to crimes of violence, in violation of 18 U.S.C. § 924(c).
Counting only murders, Heatley pleaded guilty to participating in 13 murders and one attempted murder in furtherance of the activities of the Preacher Crew, Cuff to participating in 11 murders in furtherance of those activities.
As noted, each defendant pleaded guilty pursuant to a written plea agreement in the form of a letter from an Assistant U.S. Attorney to defense counsel, signed by counsel and by each defendant. Each such agreement provided that in return for the defendant's guilty plea, the government would withdraw its notice of intent to seek the death penalty. (2/5/99 Letter of Assistant U.S. Attorney Sharon L. McCarthy to Joel S. Cohen, Esq. and David Ruhnke, Esq. ("Heatley Plea Letter") at 6; 3/20/99 Letter of Assistant U.S. Attorney Sharon L. McCarthy to Irving Cohen, Esq. and Carl J. Herman, Esq. ("Cuff Plea Letter") at 5) Each agreement provided further that the defendant "will neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, a sentence of life imprisonment." (Heatley Plea Letter at 11; Cuff Plea Letter at 9) Heatley was informed at the time of sentence that he had the right to appeal at least the validity of that waiver. (6/4/99 Tr. at 14-15)
In addition, each defendant's guilty plea was accepted only after each was placed under oath and acknowledged, among other things, that he had received a copy of the indictment and reviewed it with his lawyers; that he had signed the plea agreement after consultation with counsel and understood it; that he was satisfied with the legal representation he had received; and that he was aware that even during the allocution he had the right to change his mind and proceed to trial rather than pleading guilty. (2/5/99 Tr. at 4-5, 6-7, 8, 9, 20-21 (Heatley); 3/22/99 Tr. at 2-3, 4, 6, 7, 15-17 (Cuff))
II.
Heatley challenges his plea on essentially three grounds. First, he claims he did not receive effective assistance of counsel because his lawyers failed to communicate with him or to investigate the case before he entered his plea, and forced him to plead guilty by, among other things, showing him a videotape of his children begging him to enter a guilty plea in order to avoid the death penalty. Second, he claims the plea proceeding was defective because the Court did not ensure that he understood the nature and elements of the offenses to which he pleaded guilty, and thus the plea was not knowing, intelligent and voluntary. Third, he argues that the indictment was defective (i) for failure to inform him of the nature of the charges because it did not cite specific sections of the New York Penal Law relating to murder, attempted murder, robbery and extortion, and thus impeded his ability to defend on double jeopardy grounds, and (ii) for failure to specify that the continuing criminal enterprise charges in Counts Forty-Six through Fifty-Six, which include causing the death of 12 people, are felony charges.
All of Heatley's claims are squarely foreclosed by his plea, his statements under oath at the time of his plea, and the plea agreement he signed and acknowledged at the time of his plea.
As noted, during his plea allocution, Heatley acknowledged under oath that he had read and understood the plea agreement, that he had reviewed it with his lawyers, that he had had enough of a chance to review the case with his lawyers, and that he was satisfied with their representation. He was told, and acknowledged that he understood, that even as he was seeking to enter a guilty plea, he had the right to change his mind and decide to go to trial on the charges contained in the indictment. The plea agreement provided specifically that Heatley would "neither appeal nor otherwise ligitate under Title 28, United States Code, Section 2255, a sentence of life imprisonment." (Heatley Plea Letter at 11) Heatley's declarations under oath in court "carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also United States v. Napolitano, 212 F. Supp. 743, 747 (S.D.N.Y. 1963) (Weinfeld, J.) (defendant's statements during guilty plea allocution are "solemn declarations; they are not to be lightly disregarded in favor of his present self-serving assertion").
Heatley does not dispute (i) that he signed the plea agreement, (ii) that he said he had read and understood it, (iii) that he did did not seek to appeal even though he was advised of his right at least to challenge his waiver of appeal, and (iv) that he does not claim now that he did not understand the scope of the waiver he signed. A similarly situated defendant was held to the bargain he made in Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir. 2001) (per curiam) so too should Heatley. As noted in Garcia-Santos, an agreement to plead guilty and to forego rights both to appeal and to file a petition under § 2255 "serves important interests of both parties." Id. at 509. The government avoids "both the expense and uncertainty of further litigation," and the defendant "receives important benefits as well." Id. In this case, Heatley received the "important benefit" of escaping with his life when the government, as promised, withdrew its notice of intention to seek the death penalty.
Further, as noted above, Heatley acknowledged that he had received and reviewed with counsel a copy of the indictment. That charging instrument set out in detail the scope of the enterprise and the nature of the acts committed in furtherance of it. Moreover, as noted above at pages 3-4, Heatley admitted specifically to directing multiple murders in aid of the enterprise he organized, and to participating in and directing robberies, extortion and arson in aid of that enterprise. To the extent that Heatley may be suggesting that the court did not adequately explain to him "the nature of the charge to which the plea is offered" pursuant to Fed.R.Crim. p. 11(c), any error in such an explanation must be disregarded unless it affected his "substantial rights." See Fed.R.Crim.P. 11(h). No such showing can be made in this case because Heatley's statements during his allocution that it was he who directed the commission of the crimes at issue show that he well understood the nature of the charges against him and that no such rights were affected.
Heatley's claims of alleged defects in the indictment are frivolous, and in any event are foreclosed by his plea. As the Supreme Court has recognized:
[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.
Tollett v. Henderson, 411 U.S. 258, 267 (1973). In particular, a defendant who pleads guilty "may not raise nonjurisdictional challenges either on direct appeal . . . or by collateral attack under § 2255." Hayle v. United States, 815 F.2d 879, 881 (2d Cir. 1987). Here, Heatley does not challenge the jurisdiction of the court to try or sentence him in connection with the charges at issue here. Moreover, as the government sensibly points out, Heatley was pleading guilty to federal offenses; citation of underlying state law offenses was unnecessary. Nor is it apparent why it was essential, in order to claim double jeopardy, for Heatley to know the state statutes his acts also violated.
Indeed, even if Heatley had been previously prosecuted in state court for any of the crimes that constituted racketeering acts or violations of other federal statutes, the doctrine of double jeopardy would not have been a defense to federal charges. The dual sovereignty principle permits successive prosecutions by state and federal authorities for identical conduct, in what Judge Newman, writing for our Court of Appeals, has called "an acceptable cost of federalism, tolerable under principles of both double jeopardy and due process." United States v. Aboumoussallem, 726 F.2d 906, 909 (2d Cir. 1984). That principle, formulated in United States v. Lanza, 260 U.S. 377 (1922), has an exception only for cases in which one sovereign is acting as the "tool" of the other such that an earlier prosecution is shown to be "a sham and a cover" for a later one. Bartkus v. Illinois, 359 U.S. 121, 123-24 (1959). Here, Heatley does not even hint that there was any previous prosecution, let alone that it fit the description in Bartkus that would permit an exception to the dual sovereignty doctrine.
Heatley's suggestion that he did not enter a knowing plea due to some confusion about whether such crimes as murder, robbery, extortion and arson are felonies or misdemeanors is facially frivolous, and in any event is waived by both the plea itself and the plea agreement he signed.
III.
Cuff challenges his plea on the following grounds: (i) he did not receive effective assistance of counsel because his lawyers did not investigate and disclose unspecified perjured testimony before the grand jury, and alleged failure by the grand jurors to review the indictment; (ii) the violent crimes in aid of racketeering, in violation of 18 U.S.C. § 1959, to which he pleaded guilty lacked the requisite connection to and effect on interstate commerce, as did the acts of extortion in violation of the Hobbs Act, 18 U.S.C. § 1951; (iii) the government withheld unspecified evidence favorable to Cuff in violation of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, and the prosecution committed unspecified acts of misconduct; and (iv) Cuff was subjected to selective prosecution because informants who engaged in criminal conduct were not prosecuted.
Cuff's claims are barred for a wide variety of reasons. First, they are procedurally barred because Cuff took no appeal and has not presented any reason external to himself for his failure to do so. A § 2255 petition cannot be used as a substitute for appeal, United States v. Frady, 456 U.S. 152, 165 (1982), and a petitioner who files such a petition must show both cause external to himself for his failure to appeal, see Coleman v. Thompson, 501 U.S. 722, 753 (1991), attorney ignorance or inadvertence not constituting such cause, id., and resulting prejudice — i.e., that but for the external cause the outcome would have been different. Frady, 456 U.S. at 167; Billy-Eko v. United States, 8 F.3d 111, 113-14 (2d Cir. 1993). Cuff has shown neither cause nor prejudice, and accordingly his claims are procedurally barred.
Cuff's claim of ineffective assistance of counsel is barred both because it contradicts the sworn terms of his plea, in which he stated under oath that his legal representation had been satisfactory, see pp. 5-6, supra, and because even if his lawyers failed to investigate alleged improprieties before the grand jury, Cuff's plea wipes out any such alleged prior defects, Tollett, 411 U.S. at 267; Hayle, 815 F.2d at 881. Cuff's claims of unspecified Brady violations and of selective prosecution are similarly barred, in addition to being factually insufficient.
Cuff's claims of lack of jurisdiction due to lack of impact on interstate commerce from his numerous crimes are factual and not legal claims. Cuff does not dispute that this court had jurisdiction to prosecute the crimes in question if they did have an impact on interstate commerce, or that the indictment charges that they did. To the extent that he now claims that his particular crimes did not have such an impact, that assertion is barred by his sworn plea and by the plea agreement he signed.
For the above reasons, the relief requested by Heatley and Cuff is denied, and their petitions are dismissed.