Opinion
02 CR 1444 (SAS).
December 9, 2009
For Petitioner: Edward D. Wilford, Esq., New York, NY. Andrew Lang, # 54412-054, U.S.P. Canaan, Waymart, PA.
For Respondent: Joshua A. Goldberg, Assistant United States Attorney, Southern District of New York, New York, NY.
OPINION AND ORDER
I. INTRODUCTION
Andrew Lang led a criminal organization that dealt crack cocaine in the Bronx from 1995 to 2001. He was convicted by a jury and sentenced by this Court for murder, conspiring to distribute crack cocaine, and knowingly possessing a firearm used in a murder. Lang appealed his conviction to the Second Circuit, which affirmed. Lang now seeks collateral review of his sentence under section 2255 of Title 28 of the United States Code ("section 2255").
See United States v. Lang, 220 F. App'x 48, 52 (2d Cir. 2007) (Summary Order).
In his section 2255 motion, Lang raises the following claims: (1) ineffective assistance of counsel based on his trial counsel's alleged failures regarding the "fearful juror;" (2) denial of the Sixth Amendment right to an impartial jury; (3) ineffective assistance of counsel regarding his right to testify at trial; and (4) insufficient evidence on the drug conspiracy charge given the "dual object" nature of the conspiracy.
Lang is represented by counsel who filed a memorandum of law on his behalf See 6/20/08 Memorandum of Edward Wilford in Support of Petition for a Writ of Habeas Corpus ("Wilford Mem."). That memorandum raises the following grounds: (1) ineffective assistance of counsel with respect to the fearful juror issues; and (2) lack of an impartial jury. Lang also submitted a pro se memorandum in support of his motion, which raises, in addition: (3) ineffective assistance of counsel regarding his right to testify; and (4) insufficient evidence of drug conspiracy charge. See Movant's Memorandum of Law in Support of Movant's Section 2255 Motion to Vacate, Correct or Set Aside Movant's Sentence, undated and unsigned ("Lang Mem.") (attached as Exhibit A to the Wilford Memorandum). Both memoranda raise ineffective assistance of counsel with regard to the circumstances surrounding the fearful juror. Moreover, the Government has opposed all of the arguments raised by Lang, either through counsel or in his pro se memorandum. In the interests of justice, I will address the arguments raised in both memoranda.
The Government argues, and this Court agrees, that the second and fourth claims are procedurally barred because: (1) the claims were, or could have been, raised on direct appeal; (2) Lang has failed to show both cause and prejudice for failing to raise them previously; and (3) Lang has failed to argue, much less establish, that he is actually innocent of the crimes of which he was convicted. Nonetheless, this Court will consider the merits of these procedurally barred claims in the interest of justice. In so doing, this Court finds that all of Lang's claims are entirely without merit, both legally and factually. Therefore, Lang's section 2255 motion is denied in its entirety.
II. APPLICABLE LAW
A. Section 2255
Section 2255 allows a convicted person held in federal custody to petition the sentencing court to vacate, set aside or correct a sentence if "the court, in sentencing him or her, violated the Constitution or the laws of the United States, improperly exercised jurisdiction, or sentenced him or her beyond the maximum time authorized by law." Accordingly, a properly filed motion under section 2255 must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. Thus, collateral relief under section 2255 is 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.'"
Thai v. United States, 391 F.3d 491, 493 (2d Cir. 2005).
See 28 U.S.C. § 2255.
United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Accord United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989) ("Habeas corpus relief is generally available only to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure.").
B. Procedural Default and the Finality of Appellate Review
Section 2255 is not a substitute for direct appeal. "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised on habeas review only if the defendant can first demonstrate either 'cause' and actual 'prejudice,' or that he is 'actually innocent.'" The Supreme Court has made clear that "cause" is measured by a stringent standard of diligence. Furthermore, "a possibility of prejudice" is insufficient; there must be an "actual and substantial disadvantage, infecting [the] entire trial with error of constitutional dimensions."
See United States v. Frady, 456 U.S. 152, 165 (1982); United States v. Addonizio, 442 U.S. 178, 184-85 (1979).
Bousley v. United States, 523 U.S. 614, 622 (1998) (quoting Murray v. Carrier, 477 U.S. 478, 485, 496 (1986)). Accord Massaro v. United States, 538 U.S. 500, 504 (2003) ("Claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice."); United States v. Warren, 335 F.3d 76, 79 (2d Cir. 2003) ("If the defendant fails to raise a claim of error on direct appeal, habeas relief is generally available only upon a showing of cause and prejudice.").
See, e.g., Coleman v. Thompson, 501 U.S. 722, 753 (1991) ("cause" is "something external to the petitioner" that "cannot be fairly attributed to him" — "[a]ttorney ignorance or inadvertence is not 'cause'") (emphasis in original); Murray v. Carrier, 477 U.S. 478, 488 (1986) ("[C]ause for a procedural default on appeal ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim.").
Frady, 456 U.S. at 170 (emphasis in original).
Similarly, "a § 2255 petition cannot be used to 'relitigate questions which were raised and considered on direct appeal.'" In United States v. Sanin, the Court of Appeals made clear that re-litigation of issues previously addressed on direct appeal is permitted only "where there has been an intervening change in the law and the new law would have exonerated a defendant had it been in force before the conviction was affirmed on direct appeal."
United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001) (quoting Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992)). Accord Rosario-Dominguez v. United States, 353 F. Supp. 2d 500, 508 (S.D.N.Y. 2005).
252 F.3d at 83 (quotation marks and citation omitted).
C. Ineffective Assistance of Counsel
A petitioner seeking to attack his sentence based on ineffective assistance of counsel must: (1) show that counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms," and (2) "affirmatively prove prejudice," i.e., demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Only if both elements are satisfied can a defendant demonstrate that his counsel made errors "so serious" that "counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment," and that the defendant was deprived of a fair proceeding as a result.
Strickland v. Washington, 466 U.S. 668, 688, 693-94 (1984). Accord Hernandez v. United States, 202 F.3d 486, 488 (2d Cir. 2000) ("Under the Strickland standard, a petitioner must establish both (1) that counsel made errors so serious that defendant was deprived of reasonably competent representation and (2) that counsel's deficient performance prejudiced the defense.").
Strickland, 466 U.S. at 687.
Although a defendant must prove both unreasonable performance and actual prejudice, a failure on either showing is dispositive and, therefore, a court may address either prong first. As the Supreme Court explained in Strickland, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."
See id. at 697.
Id.
Prejudice is often addressed first where there is overwhelming evidence of guilt which the defendant cannot or does not contest. In this context, an attorney's failings with regard to some unrelated matter cannot possibly prejudice a defendant where his conviction is assured on other grounds. Thus, a court will not expend resources on an ineffective assistance claim where there is independent and overwhelming evidence to support the conviction.
See Strouse v. Leonardo, 928 F.2d 548, 556 (2d Cir. 1991) (declining to address counsel's alleged deficiencies given the overwhelming evidence of guilt at trial); United States v. Reiter, 897 F.2d 639, 645 (2d Cir. 1990) (despite "concededly questionable and unprofessional conduct" on the part of counsel, no prejudice was found because evidence of guilt was overwhelming); Mathurin v. United States, No. 01 Civ. 1374, 2007 WL 2589450, at *11 (S.D.N.Y. Sept. 5, 2007) (observing that "the ineffective assistance decisions by the Court of Appeals commonly emphasize the strength of the Government's case against the defendant").
D. Ineffective Assistance and the Right to Testify in One's Own Defense
Under the Fifth, Sixth, and Fourteenth Amendments to the Constitution, every defendant has a right to testify in his own defense and must be so informed by his lawyer. An attorney's failure to inform his client of this right, or his refusal to let his client testify, could constitute deficient performance by counsel under the first prong of the Strickland test.
See Rock v. Arkansas, 483 U.S. 44, 51-52 (1987) (stating that the right to testify in one's own behalf is grounded in the Fifth, Sixth, and Fourteenth Amendments); Rega v. United States, 263 F.3d 18, 21 (2d Cir. 2001) (noting that counsel must inform the client of his right to testify).
See Brown v. Artuz, 124 F.3d 73, 80 (2d Cir. 2001).
When faced with this kind of ineffective assistance of counsel claim — even one based solely on a defendant's allegation that his lawyer refused to let him testify — a court must treat the allegation seriously and determine whether a hearing is warranted; summary dismissal is inappropriate. But a court need not hold a full evidentiary hearing if the defendant's assertion is unsupported by the trial record and flatly contradicted by a detailed affidavit from his trial lawyer. In such circumstances, there is sufficient evidence such that a court need not engage in "the delay, the needless expenditure of judicial resources" and the other burdens of a fruitless hearing.
See Chang v. United States, 250 F.3d 79, 85 (2d Cir. 2001).
See id. at 86.
Id.
E. Right to an Impartial Jury Under the Sixth Amendment
The Sixth Amendment guarantees every criminal defendant the right to an impartial jury trial. The touchstone of a fair trial is an impartial trier of fact, i.e., a jury capable of and willing to decide the case solely on the basis of the evidence before it. The actual or implied bias or prejudice of even a single juror is enough to violate that guarantee. Therefore, district courts are afforded broad discretion, under Federal Rule of Criminal Procedure 24(c), in deciding whether to replace a juror at any time before the jury retires for deliberation. Generally, a juror may be removed for cause in two circumstances: (1) where the juror has actual bias, and (2) where juror bias is implied.
See United States v. Torres, 128 F.3d 38, 42 (2d Cir. 1997).
See United States v. Greer, 285 F.3d 158, 170 (2d Cir. 2000).
See Torres, 128 F.3d at 42-43.
See United States v. Purdy, 144 F.3d 241, 247 (2d Cir. 1998); United States v. Agramonte, 980 F.2d 847, 850 (2d Cir. 1992).
See Torres, 128 F.3d at 43.
"Actual bias is 'bias in fact' — the existence of a state of mind that leads to an inference that the person will not act with entire impartiality. A juror is found by the judge to be partial either because the juror admits partiality or the judge finds actual partiality based upon the juror's voir dire answers." "Implied bias or presumed bias is 'bias conclusively presumed as a matter of law.'" "[T]he issue for implied bias is whether an average person in the position of the juror in controversy would be prejudiced."
Id.
Id. at 45 (quoting United States v. Wood, 299 U.S. 123, 133 (1936)).
Id. Accord United States v. Haynes, 398 F.2d 980, 984 (2d Cir. 1968).
The decision of whether to excuse a juror "upon a suggestion of partiality is within the sound discretion of the trial judge. The exercise of that discretion will be upheld if there exists a 'sound basis' for the decision." This is so because the trial judge is in "'the best position to evaluate the juror's demeanor and to determine, by the juror's answers to the judge's questions[,] whether the juror could fairly and impartially hear the case[.]'" "Indeed, '[t]here are few aspects of a jury trial where [a reviewing court] would be less inclined to disturb a trial judge's exercise of discretion, absent clear abuse, than in ruling on challenges for cause in the empaneling of a jury.'"
United States v. Yonn, 702 F.2d 1341, 1346 (11th Cir. 1983). Accord Torres, 128 F.3d at 44 (stating that because of the trial judge's "special capacity . . . to evaluate actual bias on the part of prospective jurors, that judge's determination in this regard is accorded great deference, since 'an appellate court [cannot] easily second-guess the conclusions of the decisionmaker who heard and observed the witness'") (quoting Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (alteration in original)).
United States v. Garcia, 936 F.2d 648, 653 (2d Cir. 1991) (quoting United States v. Ploof, 464 F.2d 116, 118 (2d Cir. 1972)).
United States v. Nelson, 277 F.3d 164, 201-02 (2d Cir. 2002) (quoting Ploof, 464 F.2d at 118 n. 4) (alteration in original).
III. DISCUSSION
A. Ineffective Assistance of Counsel — the Fearful Juror Issues
After the jury had been empaneled and sworn, a juror (the "fearful juror") expressed his fear about serving on the jury. This necessitated a brief, post-voir dire questioning of the juror outside of Lang's presence. At the time, Lang did not object when this Court conducted the questioning in the robing room, while he remained in the Courtroom. Upon further questioning, this Court was assured that the juror's fears were abstract and generalized, and did not relate to Lang's case in particular. After the interview, defense counsel was directed to inform Lang of the substance of the juror's interview, and was given sufficient opportunity to do so before opening statements were made. The juror remained seated on the jury.
Lang alleges that his trial attorney, Norman Reimer, was ineffective with regard to the fearful juror situation by failing to: (1) object to Lang's exclusion from the interview; (2) object to the juror's continued participation in the trial; (3) adequately inform Lang of the substance of the interview; (4) request this Court to voir dire the juror concerning his ability to remain fair and impartial; and (5) request this Court to ask the juror whether he expressed his fears to other members of the jury.
See Wilford Mem. at 7, 8; Lang Mem. at 7.
See id. at 8; id. at 8.
See id. at 7; id. at 6.
See Wilford Mem. at 9.
See id. at 6.
1. Exclusion from the Post-Voir Dire Questioning Session
Lang claims that Reimer was ineffective because, after the entire jury had already been voir dired in Lang's presence, Reimer did not object when this Court further questioned the juror outside of Lang's presence. Assuming that Lang had a constitutional right to be present at the questioning, and that he did not waive this right, the Second Circuit determined that Lang's absence from the questioning was harmless error. Given this finding, Lang cannot establish that he was prejudiced by the exclusion. Without proof of prejudice, Lang's first ineffective assistance claim must be denied.
See Wilford Mem. at 7; Lang Mem. at 6-7.
See Lang, 220 F. App'x at 51. Lang has already litigated the prejudicial effect of his exclusion from the questioning session. I can neither revisit nor overrule the Second Circuit's decision.
Because Lang cannot establish that he was prejudiced by his exclusion from the questioning of the juror, he also cannot establish that he was prejudiced by any alleged failure by his trial counsel to inform him as to what transpired during the questioning — an allegation that in any case is disputed by Reimer. See 10/30/08 Declaration of Norman L. Reimer ("Reimer Decl.") ¶ 10 ("I believe that I had ample opportunity to discuss the situation with Mr. Lang; if not, I certainly would have asked the Court for more time.") (attached to 10/31/08 Memorandum of the United States Attorney in Opposition to Petitioner-Defendant Andrew Lang's Motion to Vacate, Set Aside, or Correct His Sentence, Pursuant to 28 U.S.C. § 2255 ("Gov't Mem.")). Accordingly, Lang's third ineffective assistance of counsel claim is also rejected.
2. The Juror's Continued Participation in the Trial
Lang also asserts that Reimer was ineffective in not objecting to this Court's decision to keep the fearful juror on the panel. Lang alleges that he was prejudiced because he was denied an impartial jury as a result of this alleged ineffectiveness. Lang raised the issue of jury impartiality indirectly on appeal, by arguing that this Court abused its discretion "in permitting the juror who was questioned outside of the defendant's presence to remain on the panel as the district judge 'failed to ask the juror — let alone confirm — during the voir dire the juror's ability to remain impartial.'"
See Wilford Mem. at 8 ("[T]rial counsel's failure to object to the retention of the juror who specifically expressed fear, amounted in [sic] a fundamental violation of the petitioner's Constitutional rights."); Lang Mem. at 8 (stating that Lang "would have insisted that the juror be removed if he knew the juror suffered fear from serving on the panel").
Lang, 220 F. App'x at 51 (quoting Brief for Defendant-Appellant, No. 05-6099-cr, 2006 WL 4671004 (2d Cir. Feb. 24, 2006) (Part V)). The Second Circuit held that this Court adequately ensured the fearful juror's continuing impartiality. See id. at 52 ("[I]t cannot be said that, in the circumstances presented in this case, it was clear and obvious that the district court was required to receive more explicit assurances from the juror than it did."). In light of this holding, Lang's fourth ineffective assistance of counsel claim must be dismissed for lack of prejudice.
This Court questioned the juror until it was satisfied that his abstract fears were most likely an attempt to evade jury duty. This Court then decided not to remove the juror from the jury panel. The Second Circuit found that this Court's decision to keep the juror was not plain error. Thus, a fortiori, the decision to keep the juror did not prejudicially affect Lang's substantial rights. Because Lang cannot show that he was prejudiced by this Court's decision to keep the juror, his second ineffective assistance claim fails.
See id. at 52 ("[E]ven assuming arguendo that the district court erred by allowing the fearful juror to remain on the jury, that error was not plain and, as such, does not provide a ground for vacating Lang's conviction.").
See id. ("To satisfy the plain-error standard, the defendant must demonstrate that: (1) there was error; (2) the error was plain; and (3) the error prejudicially affected his substantial rights.") (citing United States v. Olano, 507 U.S. 725, 732 (1993)).
Further, Lang has not established deficient performance on Reimer's part. This Court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," a rule that makes it extremely difficult for a defendant to successfully challenge a strategic decision by counsel. Because Lang has failed to establish either prong of the Strickland standard, his second ineffective assistance claim is denied.
Reimer affirms, to the best of his recollection, that both he and Lang in fact wanted to keep the juror on the panel, believing that his antipathy toward jury service arose out of past interactions with the Government, which boded well for Lang. See Reimer Aff. ¶ 11.
Strickland, 466 U.S. at 689, see also id. at 690-91 (discussing deference to attorneys on strategic litigation choices).
Lang's fifth ineffective assistance of counsel claim is also denied. Lang argues that his trial attorney was ineffective in not requesting this Court to ask the fearful juror whether he expressed his fears to any other member of the jury. This claim is belied by the Trial Transcript ("Tr.") which illustrates that this Court received adequate assurance from the fearful juror that he had not discussed his concerns with any of the other jurors. See Gov't Mem. at 17-18.
B. Lang Received the Benefit of an Impartial Jury
Contrary to Lang's argument that the failure to remove the fearful juror deprived him of a fair trial, the juror did not at any time express any bias — actual or implied — against Lang. On the contrary, this Court found, and defense counsel conceded, that the juror expressed, at most, generalized concern about the safety of his children because they lived in the "city everyday." This Court surmised that the juror's true intention may have been to avoid the burden of jury duty and concluded that, because the juror did not say anything to disqualify him from serving, there was no basis to excuse the juror. Defense counsel reached the same conclusions.
Tr. at 6.
See Reimer Decl. ¶ 9 ("Based on his answers, I concluded that [the juror] at most simply had generalized fears . . . and more likely simply wanted to get out of jury service. I did not believe that there was any risk that [the juror] would be predisposed against Mr. Lang.").
Lang further argues that this Court and trial counsel failed to ensure that the fearful juror could be fair and impartial. This argument, however, ignores the substantial colloquy between the juror and this Court on July 6, 2004, during jury selection. At that time, like all prospective jurors, the juror was asked numerous questions on topics including his: knowledge of the parties and the case, personal and professional experiences, contacts with law enforcement officers and other government employees, experience(s) with the federal criminal justice system, and ability to follow the Court's instructions. The juror was also asked general questions about his place of residence, his educational and employment history, and his family. The juror informed this Court that he was an attorney at a large New York law firm, that a former partner of that firm was the target of a grand jury investigation involving tax shelters, and that he occasionally traveled for business.
See Wilford Mem. at 6 ("The juror was never questioned by the District Court and trial counsel never requested that the juror be questioned concerning his ability to remain fair and impartial notwithstanding his fear. . . .").
See Tr. at 68-70, 79-81.
See id. at 69.
This Court followed up on each issue raised by the juror and specifically asked the juror if these issues "would affect [his] ability to be a fair and impartial juror." The juror explained that he could be fair and impartial and further explained that he "can follow the [Court's] instructions." The juror also stated that he had been a defendant in a civil malpractice suit. Once again, the juror assured the Court that nothing about that suit would "have an affect on [his] ability to be fair and impartial." In response to a question about whether any the jurors had been the victim of a crime, the juror explained that his office had been in Tower One of the World Trade Center. The juror responded in the negative when asked if there was anything about that event that would affect his ability to be a fair juror in Lang's case. Therefore, contrary to Lang's assertions, the juror repeatedly assured the Court, and the parties, that he could be a fair and impartial juror. This Court properly assessed the juror's concerns, assuaged his fears, and determined that he should not be excused. That determination was well within this Court's discretion and is fully supported by the record. Accordingly, Lang's claim that he was deprived of an impartial jury when the Court kept the fearful juror on the jury panel must be rejected.
Id.
Id. at 69-70.
See id. at 114.
Id.
See id. at 81.
See id. at 83.
C. Ineffective Assistance of Counsel with Regard to the Right to Testify
Lang's final allegation of ineffective assistance is that Reimer "failed to permit" Lang to testify; prevented Lang from testifying at trial by threatening to resign; or, in the alternative, failed to adequately inform Lang of his right to testify on his own behalf. Lang claims that he was forced to choose between his right to testify and Reimer's threat, implicit or explicit, that he would resign if Lang ignored his advice and testified.
Lang Mem. at 3-4.
See id. at 3 ("[T]rial counsel argued that [Lang's] testimony was not necessary. . . . Trial counsel also informed [Lang] that should he fail to follow his attorney's advice, he was always free to get another attorney.").
Lang's claim that he was coerced into giving up his right to testify is a bare assertion that is contradicted by Reimer's affidavit. In his affidavit, Reimer states unequivocally that he repeatedly informed Lang of his right to testify, counseled him on the pros and cons of testifying, explained that it was a difficult decision but that it was ultimately Lang's to make, and never threatened to withdraw if Lang testified in his own defense, stating that he "never would have said such a thing."
Reimer Decl. ¶ 16. See also id. ¶¶ 13-15.
Lang's assertion is also contradicted by the record. On July 20, 2004, because Lang vacillated about whether he would testify in his own defense, against the advice of counsel, this Court raised the issue with him directly several times. This Court ensured that Lang understood that he had the right to testify on his own behalf, that the decision to testify was his to make, and that he was free to disregard his lawyer's advice that he not testify.
See Tr. at 1854-55, 1917-18.
See id. at 1917-18.
Even assuming that Lang could prove that Reimer's conduct was deficient, he still cannot demonstrate prejudice because it is highly improbable that Lang's testimony would have changed the outcome of this trial. Lang claims that he would have testified that one cooperating witness was not actually his "right hand man" and that another witness was lying when he claimed that Lang and another drug dealer had agreed to coordinate their respective sales of crack and heroin from a single location. To find a reasonable probability that Lang's attack on these witnesses would have altered the jury's verdict, one must first assume that the jury would have credited Lang's self-serving testimony after having heard evidence of his involvement in two murders, drug dealing, prior arrests, unexplained wealth, and the use of aliases.
Lang Mem. at 3.
See Gov't Mem. at 39-40.
Even if this hurdle could be cleared, there were three other cooperating witnesses who Lang does not claim he could contradict and a substantial volume of additional credible inculpatory evidence about which Lang is silent. In the face of such overwhelming evidence of guilt, Lang's ineffective assistance claim with regard to his right to testify must be denied.
See id. at 40.
D. The Evidence of Lang's Criminal Conduct Was Sufficient to Support His Conviction
Lang's fourth claim is that the Government violated his Fifth and Sixth Amendment right not to be convicted unless a jury found him guilty beyond a reasonable doubt. In other words, Lang claims that his conviction violates the Constitution because there was an insufficient amount of evidence to convict him beyond a reasonable doubt. Lang alleges that the Government conflated two different drug conspiracies during the trial and created a situation in which the jury convicted him despite having insufficient evidence to convict beyond a reasonable doubt on either conspiracy considered in isolation.
See Sullivan v. Louisiana, 508 U.S. 275, 277 (1993) (stating that conviction by a jury is required under the Sixth Amendment and conviction beyond a reasonable doubt is required under the Fifth Amendment to the Constitution).
Lang's allegation goes to the adequacy of the jury charge and the sufficiency of the evidence against him. Lang does not argue that this Court lacked jurisdiction to impose sentence, that his sentence was excessive, or that the sentence is otherwise subject to collateral attack.
See Lang Mem. at 11.
Lang was charged with participation in a dual object conspiracy: conspiracy to sell powder cocaine ("cocaine") and crack cocaine ("crack"), two different objectives. Lang claims that the Indictment was ambiguous as to whether the objective of the conspiracy was to distribute cocaine or crack, and that "the ambiguity was not resolved throughout the trial and was not cleared up during the court's instructions [to] the jury." He believes that the two objectives of distributing cocaine and crack were so intertwined at trial, in the testimony of witnesses, the Court's instructions, and the Government's statements, that "the two conspiratorial objectives (Crack and Powder Cocaine) were presented without differentiation to the jury and . . . there is simply no way possible that the jury could have found Mr. Lang guilty of crack cocaine violations beyond a reasonable doubt."
Lang Mem. at 10.
Id. at 11.
To begin, Lang failed to raise this claim on direct appeal. Lang alleges neither cause for this omission nor any resulting prejudice. Furthermore, he does not claim actual innocence and the evidence of his guilt is overwhelming. "Once the defendant's chance to appeal has been waived or exhausted . . . we are entitled to presume he stands fairly and finally convicted, especially when, as here, he already has had a fair opportunity to present his federal claims to a federal forum." Thus, Lang's fourth claim is procedurally barred from further habeas review.
Frady, 456 U.S. at 164.
Moreover, Lang's claim that evidence related to crack and cocaine were inextricably intertwined is factually incorrect. First, the Government asked for, and received, a special verdict in which the jury was asked to make a specific finding regarding each object of the conspiracy. The jury specifically found that Lang was guilty of a conspiracy to distribute crack cocaine. Second, in his prose memorandum, Lang admits that this Court consistently referred to the objects of the conspiracy as "crack cocaine and/or cocaine" while instructing the jury, identifying both objects as being separate and independent of each other. Third, the evidence at trial included specific testimony from several cooperating witnesses that Lang's organization sold multiple grams of crack, day in and day out, at times selling twenty-four hours a day, for many years. The record overwhelmingly demonstrates that Lang is not innocent and was not prejudiced by any alleged commingling of evidence relating to crack and cocaine. Because Lang can show neither cause and prejudice, nor actual innocence, his fourth claim is procedurally barred and, in any event, without any merit. Therefore, Lang's sufficiency of the evidence claim must be dismissed.
See Tr. at 2101-02.
See id. at 2134.
Lang Mem. at 10 (quoting Trial Transcript).
See, e.g., Tr. at 136, 143, 250-51, 929-33, 1199-1200.
IV. CONCLUSION
For the foregoing reasons, Lang's motion to vacate, set aside, or correct his sentence is denied in its entirety. The final question is whether this Court should grant a Certificate of Appealability. For a Certificate of Appealability ("COA") to issue, a petitioner must make a "substantial showing of the denial of a constitutional right." A "substantial showing" does not require a petitioner to demonstrate that he would prevail on the merits, but merely that reasonable jurists could debate whether "the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Petitioner has made no such showing. Accordingly, I decline to grant a certificate of appealability.
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Accord Middleton v. Attorneys Gen. of the States of New York and Pennsylvania, 396 F.3d 207, 209 (2d Cir. 2005) (denying COA where reasonable jurists could not debate whether the district court's dismissal of the petition was correct).
The Clerk of the Court is instructed to close this motion (Docket No. 79) and this case.
SO ORDERED.