Opinion
08 Civ. 404 (JFK), 03 Cr. 455 (JFK).
October 1, 2008
MEMORANDUM OPINION ORDER
Petitioner Ellva Slaughter ("Slaughter") was convicted of one count of violating 18 U.S.C. § 922(g)(1), acquitted of another, and sentenced to 102 months' imprisonment. He brings this petition pursuant to 28 U.S.C. § 2255 on the grounds that he was denied effective assistance of counsel because his attorney: (1) did not seek to sever the two-count indictment; (2) counseled Slaughter not to testify; (3) failed to challenge the indictment as multiplicitous; and (4) opted not to challenge the sufficiency of the evidence on appeal. For the reasons set forth below, the petition is denied.
BACKGROUND
a. Arrest
On March 27, 2001, plain-clothes officers assigned to the 46th Precinct of the New York Police Department ("NYPD") observed Slaughter smoking what appeared to be a marijuana cigarette while riding as a passenger in a car in the Bronx. The officers pulled over the car. As Officer Sean Sharkey ("Sharkey") and two officers surrounded the car on foot, Sharkey observed through the window that Slaughter reached for his shoe. Specifically, Sharkey saw Slaughter crossing his right leg over his left knee and hunching over his sock and shoe area. Sharkey also saw through the window a burning marijuana cigarette that was inside the car on the center console. He asked Slaughter to step out of the car. Once Slaughter opened the car door, Sharkey smelled marijuana smoke and arrested Slaughter. The officer handcuffed Slaughter and began to frisk him, starting with his waistband. Inside Slaughter's right sneaker Sharkey felt a hard metal object. Sharkey put Slaughter on the ground, removed the sneaker from his foot and found a magazine with three .25 caliber rounds of Winchester ammunition. Another officer recovered the marijuana cigarette from the car. Sharkey continued to frisk Slaughter, who was heavily dressed with three or four long-sleeve shirts, a sweatshirt, and a coat, as well as jeans on top of jean shorts. The officers did not find any firearms on Slaughter's person or at the scene.
Following the initial search at the scene of the arrest, Slaughter was transported back to the police station for further processing, which included a strip search. The officers placed Slaughter alone in the rear of their patrol car and cuffed his hands behind him. Soon after Slaughter was removed from the patrol car at the precinct house, Sharkey returned to the patrol car to search it, as is standard procedure following an arrest. Police removed the rear seat of the patrol car and found a .25 caliber Beretta semi-automatic pistol that was fully loaded. The Beretta had one round in the chamber and eight additional rounds in the magazine. The gun was wedged under the rear seat cushion where Slaughter had been seated. The back seat had been removed and the area inspected at the beginning of the officers' tour of duty on the day of Slaughter's arrest, and Slaughter was the only arrestee who had been placed in the back seat since that inspection.
Inside the precinct house, Officer Terrence Munnelly ("Munnelly") received all the evidence, marked it, and prepared property vouchers for identification. The evidence consisted of the .25 caliber handgun, with its magazine and ammunition, and the additional magazine and its three .25 caliber rounds.
Indictment 03 CR 455 (JFK) was filed against Slaughter on April 11, 2003, in two counts. The first count of the indictment ("Count One") charged that, on or about March 27, 2001, Slaughter possessed, as a prior felon, a semi-automatic firearm that had traveled in interstate commerce, in violation of 18 U.S.C. § 922(g)(1). The second count ("Count Two") charged him with violating the same statute by possessing the magazine with the three rounds of ammunition.
b. Trial
Prior to trial, the government sought to admit evidence under Rule 404(b) of the Federal Rules of Evidence that Slaughter had previously possessed other semiautomatic pistols and ammunition. Specifically, it sought to admit evidence of his prior conviction in 2003 for possessing a loaded semi-automatic pistol as well as a separate magazine with additional ammunition. Slaughter also possessed a loaded semi-automatic pistol and a separate magazine on May 11, 1996, and this incident is the prior felony conviction referred to in both counts of indictment 03 CR 455.
The Court ruled that the Rule 404(b) evidence could be admitted for both counts, because it was relevant to prove Slaughter's preparation, planning and knowledge, and to disprove any mistake or accident, and because its relevance was not substantially outweighed by the danger of unfair prejudice. United States v. Slaughter, No. 03 Cr. 455 (JFK), 2004 WL 856323, at *2 (S.D.N.Y. Apr. 20, 2004). Following the testimony about the prior firearms convictions, the Court instructed the jury not to use the evidence "as substitute for proof that the defendant committed the crimes charged in this indictment, nor . . . as proof that the defendant has a criminal personality or bad character." (Trial Tr. 226, 235-36.)
Sometime before trial, the magazine and its three rounds apparently were lost by the NYPD's property clerk. However, Sharkey testified at trial that he had recovered those items from Slaughter's shoe. Munnelly then testified that he received the magazine and three bullets from Sharkey, described the voucher number, K832136, and testified that he marked the magazine and the bullets with his initials "TM" before sealing the evidence in an envelope. (Trial Tr. 43-45.) His testimony was corroborated by-Kevin Barry, a ballistics expert. Barry corroborated the evidence voucher number for the extra magazine and ammunition, testified that he tested the extra ammunition before it was lost, confirmed its make and model, and noted that it had Munnelly's initials carved into it. (Trial Tr. 165-70.)
In cross-examining the government's witnesses and in summation, the defense highlighted that the officers failed to find the gun on Slaughter when frisking him. The defense also questioned the officers' lack of attention to procedure, including allowing Slaughter to sit alone in the back of the police car, Sharkey's loss of his memo book from the night of Slaughter's arrest, and the loss of the extra magazine and ammunition. The defense did not call any witnesses.
On the second day of deliberations, the jury acquitted Slaughter on Count One, the gun charge, but convicted him on Count Two, the ammunition charge. He was sentenced to 102 months in prison.
c. Appeal
Slaughter timely appealed from his conviction and sentence. He challenged the Court's admission of his prior firearms and ammunition convictions under Rule 404(b); he contended that the prosecutor's rebuttal had shifted the burden of proof; and he challenged the reasonableness of his sentence.
The Court of Appeals affirmed the conviction and sentence by summary order. United States v. Slaughter, 248 Fed. Appx. 210 (2d Cir. 2007). It held that the evidence of prior firearms convictions was properly admitted "under the opportunity exception of FRE 404(b)," to show that Slaughter had access to weapons, and was not unfairly prejudicial. Id. at 212-13. The court also considered and rejected Slaughter's other claims. Id. at 213-14. The instant petition followed.
DISCUSSION
Slaughter seeks habeas relief on the grounds that his attorney provided ineffective assistance of counsel because he: (1) did not seek severance of the ammunition charge and the gun charge; (2) counseled Slaughter not to testify; (3) failed to challenge the indictment as multiplicitous; and (4) raised no challenge to the sufficiency of the evidence on appeal.
A. Applicable Legal Standards
To prevail on an ineffective assistance of counsel claim, a petitioner must satisfy the two-part inquiry set forth inStrickland v. Washington, 466 U.S. 668, 687 (1984). First, the petitioner must show that "counsel's representation fell below an objective standard of reasonableness." Id. at 688. A court of review "`must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,' bearing in mind that `there are countless ways to provide effective assistance in any given case' and that `even 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 689).
Second, 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. "[E]ven professionally unreasonable errors by defense counsel will not warrant setting aside the judgment in a criminal proceeding unless those errors were prejudicial." Urena v. United States, Nos. 06 Civ. 6050 (JFK), 04 Cr. 1336 (JFK), 2007 WL 2319136, at *3 (S.D.N.Y. 2007) (citing Strickland, 466 U.S. at 691). To establish prejudice, the defendant must show that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687.
B. Analysis
(1) Severance
Slaughter claims that his counsel was ineffective because he failed to seek a severance of the ammunition charge from the gun charge. There is no dispute that the two counts were properly joined under Rule 8 of the Federal Rules of Criminal Procedure.See Fed.R.Crim.P. 8 (allowing joinder when offenses "are of the same or similar character. . . ."). Both counts alleged that Slaughter violated the same statute by possessing the firearm and the extra magazine at the same time. Under Rule 14, the court has discretion to order separate trials or grant a severance, even though the offenses have been properly joined, if it appears that the defendant will be substantially prejudiced by the joinder. Fed.R.Crim.P. 14(a); see also United States v. Werner, 620 F.2d 922, 928 (2d Cir. 1980). Slaughter argues that, had the counts been severed, the testimony of his prior gun and ammunition possessions would not have been admissible at a separate trial on Count Two, the ammunition charge, "because it was not relevant to prove the government's actual possession of ammunition case against movant [sic]." (Pet'n at 2.) Slaughter also claims that his attorney should have requested the Court to instruct the jury to consider the Rule 404(b) evidence only for Count One. (Id. at 3.)
This argument is without merit. The Court ruled that the evidence of Slaughter's prior possessions was admissible to prove both counts and was not unfairly prejudicial, and this ruling was approved on appeal. Although Slaughter points out that the Court of Appeals' decision lacks "precedential effect" because it was not selected for publication in the Federal Reporter, (Pet'r Reply Br. at 2.), the decision certainly precludes re-litigation of this issue through a collateral attack. Because the evidence was properly admitted for both counts, Slaughter suffered no substantial prejudice from their joinder. Therefore, a motion to sever under Rule 14 would have been fruitless. Slaughter's counsel was not ineffective for failing to move for a severance.
In his reply brief, Slaughter alternatively seeks to raise a claim of retroactive misjoinder. "Retroactive misjoinder arises where joinder of multiple counts was proper initially, but later developments-such as a district court's dismissal of some counts for lack of evidence or an appellate court's reversal of less than all convictions — render the initial joinder improper."United States v. Jones, 16 F.3d 487, 493 (2d Cir. 1994). To invoke retroactive misjoinder, a defendant "must show compelling prejudice." United States v. Novod, 927 F.2d 726, 728 (2d Cir.) (internal quotation marks omitted). "Prejudicial spillover from evidence used to obtain a conviction that was subsequently reversed may constitute compelling prejudice." Id. Here, because the evidence of Slaughter's prior firearms and ammunition possessions was properly admitted for both counts, Slaughter can establish no prejudicial spillover. Therefore, this claim also fails.
(2) Advice About Testifying
Slaughter also makes a related claim that his attorney's failure to seek a severance prevented him from testifying at trial. He asserts that his counsel advised him not to take the stand because, if he did, he would no longer have grounds to appeal the Court's pre-trial 404(b) ruling. Had his attorney successfully severed the counts, Slaughter claims that he would have testified that "he did not possess the ammunition clip and was not aware that the clip was in possession of the agent." (Pet'n at 4.)
This claim fails because, as discussed above, there were no grounds for severance and a motion for it would have been denied. The decision of Slaughter's counsel not to seek severance did not deprive Slaughter of his right to testify.
Slaughter does not claim that his attorney acted unreasonably by advising him not to testify. To the extent his petition can be read liberally to raise such a claim, the Court finds it to be without merit. Had Slaughter taken the stand, his testimony denying possession of the extra firearm magazine would have been discredited by his own prior affidavit, submitted in connection with a pretrial motion to suppress the gun, acknowledging that the magazine belonged to him. In addition, taking the stand might have exposed Slaughter's character for veracity to impeachment with other prior charges and convictions that had not been admitted pursuant to Rule 404(b). Based on these facts and circumstances, his counsel's strategic decision to rely on attacking the government's witnesses, and not to subject Slaughter to the risk of impeachment on cross-examination, seems eminently reasonable. See United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992).
In an excess of caution, the Court directed Slaughter's trial attorney, Jeremy Schneider, Esq., to submit an affidavit detailing his discussions with Slaughter about the decision to testify. Schneider's affidavit confirms that the decision was based in part on Slaughter's "very serious criminal history, the filing of the pre-trial affidavits, and his lack of a coherent and credible story," and that this decision was not questioned by Slaughter. (Schneider Aff. ¶ 9.) Schneider also states that he did not tell his client that, by testifying, he would lose the ability to appeal the pre-trial Rule 404(b) ruling. (Id. ¶ 10.) The Court credits this "detailed affidavit from trial counsel credibly describing the circumstances concerning [petitioner's] failure to testify." Chang v. United States, 250 F.3d 79, 85 (2d Cir. 2001).
(3) Multiplicity
Slaughter also claims that his attorney was ineffective for failing to challenging the indictment as multiplicitous. "An indictment is multiplicitous when a single offense is alleged in more than one count." United States v. Nakashian, 820 F.2d 549, 552 (2d Cir. 1987) (internal quotation marks ommited). The Second Circuit has held that "a convicted felon who simultaneously possesses various firearms and rounds of ammunition can generally only be charged with a single violation of § 922(g)." United States v. Olmeda, 461 F.3d 271, 280 (2d Cir. 2006); see also United States v. Pelusio, 725 F.2d 161, 168 (2d Cir. 1983). "The signal danger in multiplicitous indictments is that the defendant may be given multiple sentences for the same offense; hence reversal is warranted if the defendant actually was convicted on multiplicitous counts and subjected to multiple punishments."United States v. Burns, 990 F.2d 1426, 1438 (4th Cir. 1993) (citing 1 Charles A. Wright, Federal Practice and Procedure § 145, at 524-26 (2d ed. 1982)). That danger "can be remedied at any time by merging the convictions and permitting only a single sentence." United States v. Reed, 639 F.2d 896, 905 n. 6 (2d Cir. 1981); Ball v. United States, 470 U.S. 856, 864 (1985). "The second danger [of multiplicity] is the adverse psychological effect on the jury prejudicing the defendant from the repetition of detail of a single course of conduct." Swaim, 757 F.2d at 1537.
The Court will bypass the issue of whether Slaughter's counsel was deficient for not challenging the indictment on multiplicity grounds and focus on the second prong of the Strickland test. See Strickland, 466 U.S. at 697 (stating that a court need not address the first prong if the petition more easily may be disposed of on grounds of lack of prejudice). Slaughter was convicted of only one of the two counts. "Therefore, even if those counts were multiplicitous (an issue we need not address), he was not subject to the risk of multiple punishments for a single offense, the principal danger that the multiplicity doctrine addresses." United States v. Webber, 255 F.3d 523, 527 (8th Cir. 2001); see also United States v. Burns, 990 F.2d 1426, 1439 (4th Cir. 1993); Swaim, 757 F.2d at 1537.
Nor is there any concern that the failure to charge the firearms and ammunition possessions in a single count might have influenced the verdict. Counts One and Two simply charged Slaughter with being a felon in possession of a firearm and ammunition, respectively, on the day of his arrest. The two-count indictment is not the sort of "prolix pleading [that] may have some psychological effect upon a jury by suggesting to it that defendant has committed not one but several crimes." United States v. Ketchum, 320 F.2d 3, 8 (2d Cir. 1963); see also Swaim, 757 F.2d at 1537 (where the counts charged "contain simple and direct averments. . . . There [is] no threat of generating an adverse psychological effect on the jury"); Webber, 255 F.3d at 527 (noting that the risk of prejudice will require consolidation of multiplicitous counts only in "a rare case"). The verdict shows that the jury believed that the extra magazine and ammunition was recovered from Slaughter's shoe. Consolidation of the ammunition count with the firearms count could not have changed any reasonable juror's mind on this issue or resulted in an acquittal. Therefore, Slaughter was not prejudiced by his attorney's failure to challenge the indictment as multiplicitous.
(4) Sufficiency of Evidence
Finally, Slaughter argues that his appellate counsel's failure to assert a challenge to the sufficiency of the evidence was objectively unreasonable and deprived him of a fair appeal. "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745, 751-52 (1983); see also Cunningham v. Henderson, 725 F.2d 32, 35-37 (2d Cir. 1984). "Notwithstanding Barnes, it is still possible to bring aStrickland claim based on counsel's failure to raise a particular claim, but it is difficult to demonstrate that counsel was incompetent." Smith v. Robbins, 528 U.S. 259, 288 (2000). "Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986); accord Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). A petitioner "must show that counsel failed to render professionally competent assistance in deciding which claims to raise on appeal as well as demonstrate a reasonable probability of success had those claims been presented to the appellate court. It will not suffice, for Petitioner to show merely that any nonfrivolous arguments were omitted. Appellate counsel need not advance every possible nonfrivolous argument requested by a client." Garcia v. Keane, No. 97 Civ. 1622 (JFK), 1999 WL 558144, at **2-3 (S.D.N.Y. July 30, 1999) (internal quotation marks omitted).
It was not unreasonable for Slaughter's appellate counsel to refrain from attacking the sufficiency of the evidence on appeal, because such a claim had virtually no chance of success. Officer Sharkey testified that he saw Slaughter smoking marijuana inside a car, arrested and frisked him, and found the extra magazine with its ammunition inside his shoe. Sharkey also testified to seeing Slaughter reach for the same shoe moments before the arrest. Although the magazine and ammunition were misplaced before trial, testimony by Munnelly and Barry corroborated that this evidence was received at the police station, marked and sealed, and subjected to ballistics testing. The jury reasonably could, and did, believe the testimony of these witnesses. This credibility finding almost certainly would have withstood challenge on appeal. See, e.g., United States v. Florez, 447 F.3d 145, 155-56 (2d Cir. 2006) (stating the well-established rule that the testimony of a single witness, even if uncorroborated, can suffice for conviction, and that the Court of Appeals "will not attempt to second-guess a jury's credibility determination on a sufficiency challenge").
Slaughter's appellate counsel instead chose to focus on three issues: (1) the Court's 404(b) rulings; (2) the claim that the prosecution shifted the burden during rebuttal; and (3) the reasonableness of the sentence. Although all three claims failed, none was "clearly and significantly weaker" than would have been a challenge to the sufficiency of the evidence. Mayo, 13 F.3d at 533. Therefore, Slaughter cannot show that his counsel's performance on appeal was constitutionally inadequate.
CONCLUSION
For the reasons set forth above, Slaughter's § 2255 petition is denied. No hearing is necessary because Slaughter's claims are all insufficient as a matter of law and the habeas record conclusively establishes that he is entitled to no relief. 28 U.S.C. § 2255; Chang, 250 F.3d at 85-86. Additionally, this Court will not grant a certificate of appealability because Slaughter has not made a "substantial showing of the denial of a constitutional right." Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4). Slaughter has the right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322 (2003).
SO ORDERED.