Opinion
1:22-cv-06456 (JSR) (SDA)
01-06-2023
Carlos Smith Pitterson, Plaintiff, v. United States of America, Defendant.
HONORABLE JED S. RAKOFF, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
Pending before the Court is a motion by pro se Plaintiff Carlos Smith Pitterson (“Plaintiff” or “Pitterson”), a federal prisoner currently incarcerated at F.C.I. Fort Dix, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence based upon ineffective assistance of counsel. (Pl.'s 7/28/22 Mot., ECF No. 1.) For the reasons set forth below, I respectfully recommend that Plaintiff's motion be DENIED.
BACKGROUND
I. Indictment
On October 7, 2019, a Grand Jury returned a superseding indictment, which charged that, for one month in the spring of 2019, Pitterson conspired with others to distribute one kilogram of heroin and 400 grams or more of fentanyl, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A). (See Indictment, 19-CR-00468 ECF No. 15, ¶¶ 1-3 (Count One).) The Grand Jury further charged that, on four separate occasions, Pitterson trafficked in heroin and fentanyl, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), 841(b)(1)(C) and 18 U.S.C. § 2. (See id. ¶¶ 411 (Counts Two through Five).)
II. Government's Motion In Limine
Prior to trial, the Government filed a motion in limine. In its motion, the Government argued, among other things, that, “[u]nless and until the defendant offers the requisite factual predicate for a duress defense, he should be precluded from offering evidence or making argument in support of that defense.” (Gov't 10/21/19 Mot., 19-CR-00468 ECF No. 19, at 4.) In response, Pitterson's counsel stated that she did “not plan to utilize the affirmative defense of duress.” (Pitterson In Limine Opp., 19-CR-00468 ECF No. 23, at 1.) She also stated that she “may have an additional defense of entrapment, depending upon the testimony at trial[.]” (Id.)
Citations to the docket in Pitterson's related criminal case are made using the case number (i.e., 19-CR-00468) preceding the ECF document number.
III. Trial
The evidence at trial established that, on April 25, 2019, Pitterson sold roughly 450 fentanyl pills to a confidential source working with the Drug Enforcement Administration (the “CS”). (Tr. at 14-23, 182-93.) This sale was made by an individual using the moniker “Panama,” and Smith Pitterson admitted at trial that he sometimes went by the nickname “Panama.” (Id. at 182-93, 445.) Moreover, in-court identifications confirmed that Pitterson was Panama. (Id. at 81, 157-58.)
These pills weighed approximately 48.5 grams, and Pitterson received approximately $7,000.00 in exchange for them. (PSR, 19-CR-00468 ECF No. 41, ¶ 13.)
Citations to the trial and sentencing transcripts are made using the abbreviations “Tr.” and “Sentencing Tr.” followed by the relevant page number(s) of the transcript. The trial transcript is filed on the ECF docket in the related criminal case at 19-CR-00468 ECF Nos. 30, 32, 34, 36 and 38, and the sentencing transcript is filed at 19-CR-00468 ECF No. 51.
On May 1, 2019, Pitterson sold approximately 150 fentanyl pills to the CS. (Tr. at 32-33, 87-88, 199-201, 334-40.) On May 9, 2019, he sold approximately 425 fentanyl pills to the CS. (Id. at 34, 89-90, 206-12, 340.) On May 15, 2019, Pitterson arranged to sell the CS a kilogram of either heroin or fentanyl, and was arrested later that day. (Id. at 38-39, 215-17, 343-53.)
These pills weighed approximately 16 grams, and Pitterson received approximately $2,250.00 in exchange for them. (PSR ¶ 14.)
These pills weighed approximately 45.8 grams, and Pitterson received approximately $4,600.00 in exchange for them. (PSR ¶ 16.)
Pitterson testified in his own defense. He conceded that he sold drugs to the CS but testified that he sold the drugs because a man named “Pepe” threatened to harm him if he did not do so. (Tr. at 486, 491, 516, 519.) During cross examination, Pitterson admitted that he knew the substances he sold to the CS on multiple occasions were narcotics and that he personally had stored the heroin and fentanyl recovered from his bedroom. (Id. at 582-83, 593-94.)
During trial, Pitterson's counsel reaffirmed that she was “not pursuing a duress defense.” (Tr. at 459.) Nevertheless, Pitterson repeatedly testified about the threats that were made to him. (See, e.g., id. at 461, 465-66.) In closing argument, Pitterson's counsel argued that Pitterson “did not intentionally sell drugs,” and raised an entrapment defense, arguing that Pitterson was not predisposed to commit the charged crimes, but instead was threatened by Pepe and pressured by the CS. (See id. at 630-49).
On November 1, 2019, the jury returned a verdict finding Pitterson guilty on all five counts in the Indictment. (Jury Verdict, 19-CR-00468 ECF No. 29.)
IV. Sentencing
Prior to sentencing, the parties submitted memoranda to the Court setting forth their arguments regarding the sentence that the Court should impose. In their submissions, the parties agreed that, absent safety-valve eligibility, the applicable United States Sentencing Guidelines range was 120 to 121 months' imprisonment. (See Pitterson Sent. Submission, 19-CR-00468 ECF No. 44, at 1; Gov't Sent. Submission, 19-CR-00468 ECF No. 46, at 1.)
In her sentencing submission, Pitterson's counsel argued that Pitterson was safety valve eligible. (See Pitterson Sent. Submission at 11-16.) The Government argued in its submission that Pitterson did “not qualify for safety-valve relief pursuant to 18 U.S.C. § 3553(f) or the accompanying [sentencing] reduction under U.S.S.G. § 2D1.1(b)(18), because [Pitterson] did not ‘truthfully provide[] to the Government all information and evidence the defendant has concerning the offense or offenses.'” (See Gov't Sent. Submission at 6 (quoting 18 U.S.C. § 3553(f)(5)).)
At the sentencing hearing, Judge Rakoff sentenced Pitterson to 120 months in prison. (Sentencing Tr. at 28.) Judge Rakoff found that Pitterson was not truthful about the alleged threats: “I thought [Pitterson] lied his head off mostly [and] [e]verything I have received from the papers here suggests to me that he's continuing to lie.” (Id. at 23.) Thus, Judge Rakoff declined to give Pitterson the benefit of the safety valve. (See id. at 24.)
Judge Rakoff further stated: “I didn't think it was even a close call. I thought it was clear he was lying.” (Sentencing Tr. at 28.)
V. Direct Appeal
Pitterson then appealed to the Second Circuit, challenging Judge Rakoff's jury instructions. The Second Circuit affirmed Pitterson's conviction, finding “no error in the district court's jury instructions.” See United States v. Pitterson, No. 20-2994, 2022 WL 779256, at *2 (2d Cir. Mar. 15, 2022).
VI. § 2255 Motion
On July 28, 2022, Pitterson's § 2255 motion that is now before the Court was filed. (See Pl.'s 7/28/22 Mot.) In his motion, Pitterson asserts that he received ineffective assistance of counsel. (See id. at 2-4.)
LEGAL STANDARDS
28 U.S.C. § 2255 provides, in relevant part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.28 U.S.C. § 2255(a). Relief under § 2255 is generally available “only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
The statute further provides that “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255(b). The filing of a § 2255 motion does not, by itself, obligate the district court to conduct an evidentiary proceeding. See Newfield v. United States, 565 F.2d 203, 207 (2d Cir. 1977) (filing of motion “does not entitle petitioner automatically to a hearing”). To warrant a hearing on an ineffective assistance of counsel claim, a defendant must establish that he has a “plausible claim of ineffective assistance of counsel,” but need not show that “he will necessarily succeed on the claim.” Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009) (internal citations and quotation marks omitted).
Finally, because Pitterson brought this motion pro se, the Court liberally construes his pleading and interprets it to raise the strongest arguments that it suggests. See Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (pro se litigants “are entitled to a liberal construction of their pleadings[.]”).
II. Ineffective Assistance Of Counsel
To establish a constitutional violation for ineffective assistance of counsel, Pitterson must show that (1) his counsel's performance “fell below an objective standard of reasonableness[,]” and (2) “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). “The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard.” Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001); see also United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004) (“A defendant seeking to overturn a conviction on the ground of ineffective assistance of counsel bears a heavy burden.”).
Under the first Strickland prong, there is a “strong presumption” that a lawyer's conduct “falls within the wide range of reasonable professional assistance[.]” Strickland, 466 U.S. at 689. “In considering whether counsel ‘failed to exercise the skills and diligence that a reasonably competent attorney would provide under similar circumstances,' Boria v. Keane, 99 F.3d 492, 496 (2d Cir. 1996) (emphasis omitted), the Court looks to the totality of the record and must make ‘every effort . . . to eliminate the distorting effects of hindsight.'” Guerrero v. United States, No. 07-CR-00248 (GHW), 2017 WL 1435743, at *6 (S.D.N.Y. Apr. 20, 2017) (quoting Strickland, 466 U.S. at 688-89).
Under the second Strickland prong, Pitterson must demonstrate that the ineffective assistance prejudiced the defense, which means showing “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is defined as a probability sufficient to undermine confidence in the outcome, including the overall integrity of the proceeding.” Guerrero v. United States, No. 07-CR-00248 (GHW), 2017 WL 1435743, at *6 (S.D.N.Y. Apr. 20, 2017) (citing Strickland, 466 U.S. at 694).
DISCUSSION
Pitterson asserts that his counsel rendered ineffective assistance because she “flat out refused” to assert the affirmative defense of duress. (See Pl.'s 7/28/22 Mot. at 3.) Even assuming this is true, Pitterson has not demonstrated that this decision by counsel was objectively unreasonable.
In this Circuit, a defendant seeking to prove the affirmative defense of duress must show: “(1) a threat of force directed at the time of the defendant's conduct; (2) a threat sufficient to induce a well-founded fear of impending death or serious bodily injury; and (3) a lack of a reasonable opportunity to escape harm other than by engaging in the illegal activity.” United States v. Gonzalez, 407 F.3d 118, 122 (2d Cir. 2005). “A defendant must make some showing on each element, including the element that the defendant lacked a reasonable means to escape the threatening conduct by seeking the intervention of the appropriate authorities.” Id. (internal quotation marks omitted).
“The defense of duress . . . must be narrowly construed, since ‘any rule less stringent than this would open the door to all sorts of fraud.'” United States v. Pestana, 865 F.Supp.2d 357, 361 (S.D.N.Y. 2011) (quoting The Diana, 74 U.S. (7 Wall.) 354, 360-61 (1868)), aff'd sub nom. United States v. Ortiz, 525 Fed.Appx. 41 (2d Cir. 2013). “Accordingly, the case law makes clear that the defense of duress is viable ‘only . . . if there is a real emergency leaving no time to pursue any legal alternative.'” Id. (quoting United States v. Posada-Rios, 158 F.3d 832, 874 (5th Cir. 1998)).
In the face of the Government's in limine motion seeking to preclude Pitterson from offering evidence or making argument in support of a duress defense (see Gov't 10/21/19 Mot. at 4), his counsel made the strategic decision to not utilize the affirmative defense of duress, and instead to pursue a defense of entrapment. (See Pitterson In Limine Opp., 19-CR-00468 ECF No. 23, at 1.) Pitterson's counsel making such a strategic decision does not constitute ineffective assistance. See Gordon v. Lavalley, No. 13-CV-04401 (ALC) (AJP), 2014 WL 888468, at *15 (S.D.N.Y. Mar. 6, 2014) (“The decision whether to assert an affirmative defense is a matter of trial strategy that generally will not be second-guessed by a reviewing court.” (collecting cases)), report and recommendation adopted, 2016 WL 5793400 (S.D.N.Y. Oct. 3, 2016); see also Strickland, 466 U.S. at 690 (“[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable....”).
In addition, on the record before the Court, Pitterson's counsel's decision was an objectively reasonable one. There was no threat of force at the time of the drug sales. Indeed, Pitterson arrived alone to sell narcotics to the CS on four occasions. Thus, as Judge Rakoff correctly found, Pitterson “would not have a basis for claiming” a duress defense. (See Tr. at 477.)
Even assuming that Pitterson's counsel's decision not to raise a duress defense somehow was objectively unreasonable, Pitterson has not shown that there is a reasonable probability that, if this defense had been raised, the result of the proceeding would have been different, since as Judge Rakoff observed, “the jury obviously rejected” Pitterson's testimony. (See Sentencing Tr. at 3.)
To the extent that Pitterson is claiming ineffective assistance of counsel at sentencing based upon his counsel not seeking a downward departure, pursuant to Section 5K2.12 of the United States Sentencing Guidelines (“Guidelines”), such claim is meritless. Section 5K2.12 of the Guidelines provides, in relevant part, that a sentencing court may depart downward “[i]f the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense.” U.S.S.G. § 5K2.12. A defendant bears the burden of proving the elements of a downward departure by a preponderance of the evidence. See United States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005) (applying preponderance standard when assessing downward departure on ground of diminished capacity); see also United States v. Cotto, 347 F.3d 441, 445 (2d Cir. 2003) (stating that “[t]he defendant bears the burden of proving that he or she is entitled to a downward departure” on the ground of U.S.S.G. § 5K2.12.). Here, to prove that Section 5K2.12 applied, Pitterson's counsel would have had to convince Judge Rakoff that Pitterson's trial testimony about the alleged threats was truthful, in circumstances where Judge Rakoff found that Pitterson “lied his head off mostly.” (Tr. at 23.) Thus, it plainly was a sound strategic decision not to seek a downward departure. Moreover, Pitterson could have suffered no prejudice as a result of the decision not to seek a downward departure. Given Judge Rakoff's determination that Pitterson was not safety valve eligible, Pitterson's mandatory minimum sentence was 120 months, and that was the sentence that was imposed. See United States v. Lewis, 523 Fed.Appx. 814, 820 (2d Cir. 2013) (defendant could not show prejudice from defense counsel's failure to seek downward sentencing departure where district court sentenced defendant to mandatory minimum sentence).
Because I find that Pitterson has not shown a plausible claim of ineffective assistance of counsel, there is no need for a hearing. See United States v. Nataniel, No. 15-CR-00588 (MKB), 2019 WL 653137, at *8 (E.D.N.Y. Feb. 13, 2019) (“Petitioner's conclusory allegations do not plausibly support either prong of the Strickland test . . . nor do they create a material issue of disputed fact, the resolution of which warrants a hearing.”) (citation omitted).
CONCLUSION
For the foregoing reasons, I respectfully recommend that Plaintiff's § 2255 Motion (ECF No. 1) be DENIED.
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 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 Rakoff.
THE 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).