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United States v. Sykes

United States District Court, E.D. Virginia, Alexandria Division

November 23, 2016

UNITED STATES OF AMERICA,
v.
WILLIAM SYKES, a.k.a. "Black" Movant.

          MEMORANDUM OPINION

          Leonie M. Brinkema United Slates District Judge.

         Before the Court is movant William Sykes'("movant" or "Sykes") Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Motion to Vacate"), as well as a supplemental filing that appears to request a sentence reduction for a "minor role of culpability" ("Minor Role Motion"), and a letter motion requesting that six subpoenas be issued for discovery purposes ("Letter Motion"). The Motion to Vacate has been fully briefed and the Court finds that neither oral argument nor an evidentiary hearing would aid the decisional process. See Raines v. United States, 423 F.2d 526, 529 (1970) (recognizing that a "full evidentiary hearing" is not required where "'the files and records of the case conclusively show that the prisoner is entitled to no relief.'" (quoting 28 U.S.C. § 2255(b)). The government has not replied to the Minor Role Motion or the Letter Motion but the Court finds that no reply is necessary. For the reasons that follow, the Motion to Vacate will be dismissed, and the remaining motions denied.

         I. BACKGROUND

         On August, 29, 2013, a grand jury returned an indictment against Sykes and 23 other defendants, all of whom were alleged to be members of the Nine Trey Gang, a street gang associated with the United Blood Nation. On September 4, 2013, the Court appointed attorney Alan Yamamoto ("Yamamoto") to represent Sykes at trial and he also represented Sykes on appeal. The grand jury returned a superseding indictment [Dkt. 112] on September 26, 2013, alleging six counts against Sykes: conspiracy to commit racketeering in violation of 18 U.S.C. §§ 1962(d) and 1963(a) ("Count 1"); two counts of violence in aid of racketeering in violation of 18 U.S.C. § 1959(a) ("Counts 2 and 3"); use of a firearm during and in relation to a crime of violence ("Count 4"); conspiracy to distribute 280 grams or more of cocaine in violation of 21 U.S.C. §§841 and 846 ("Count 5"); and conspiracy to commit sex trafficking in violation of 18 U.S.C. § 1594(c) ("Count 9"). On February 10, 2014, the Court dismissed Counts 3 and 4 as to Sykes on the government's motion.

         Sykes, along with two co-defendants, Thaddeus Snow ("Snow") and Jameel Aleem ("Aleem"), were the only defendants who went to trial. All the other defendants entered plea agreements, most of which included obligations to cooperate. The jury trial began on February 11, 2014, and lasted ten days, ending with the jury convicting Sykes on all four remaining counts: 1, 2, 5, and 9. In convicting Sykes on Count 1, the jury indicated on a special verdict form that it found his racketeering activity to include multiple acts of distribution of controlled substances, dealing in counterfeit obligations or securities, sex trafficking, and interstate transportation for prostitution, and for Count 2 the jury specified that maiming was the underlying act of violence. [Dkt. 600].

         Before the sentencing hearing, the government filed an information under 21 U.S.C. § 851 which gave Sykes notice that he was facing an enhanced punishment because of a prior felony drug conviction in Virginia state court. [Dkt. 485]. The conviction on Count 5, in combination with the § 851 enhancement, meant that Sykes was facing a mandatory minimum of 20 years of imprisonment; however, his guideline range was 30 years to life. Pre-Sentence Report, [Dkt. 738] at 29. That guideline range included a 3-level enhancement for an aggravating role in the offense, although the probation officer concluded, and the Court agreed, that Sykes did "not qualify for a sentence enhancement under the Career Offender, Criminal Livelihood, Armed Career Criminal or Repeat and Dangerous Sex Offender sections, as defined in Chapter 4, Part B, of the Sentencing Guidelines." Id. at 44, 25. On May 9, 2014, the Court imposed a total sentence of 30 years of imprisonment, among other penalties.

         Sykes and Snow filed a joint appeal. Although Snow raised a number of challenges, Sykes raised only one, arguing that the evidence was insufficient to support his conviction for conspiracy to distribute at least 280 grams of a substance containing cocaine base (Count 5). See United States v. Snow. 595 F.App'x 223, 226 (4th Cir. 2015). Specifically, Sykes argued that the drugs were "not attributable to him." Id. The Fourth Circuit disagreed, holding that the "record includes sufficient evidence that Sykes could reasonably have foreseen that the Nine Treys trafficked in 280 grams or more of cocaine base." Id. Accordingly, it affirmed his conviction and sentence. Id. Sykes petitioned the United States Supreme Court for certiorari, which was denied on April 20, 2015. Sykes v. United States. 135 S.Ct. 1864 (2015).

         Sykes timely filed the Motion to Vacate, along with a memorandum in support ("memorandum" or "memo.") on March 2, 2016. The Motion to Vacate listed four numbered grounds for relief, which the supporting memorandum split into 15 numbered grounds. Because the memorandum's grounds are more specific, and incorporate all the arguments raised in the original Motion to Vacate, this memorandum opinion will refer to the numbering system from the memorandum unless otherwise specified. The government filed its opposition ("Gov. Opp."), which includes Yamamoto's affidavit, to which Sykes has replied.

         II. DISCUSSION

         A. Legal Background

         Section 2255 authorizes a federal prisoner to move the court to vacate a sentence "imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). If the prisoner has failed to raise a claim on direct appeal, he has procedurally defaulted that claim, barring him from raising it on collateral review unless he can show "cause excusing his... procedural default" as well as "actual prejudice resulting from the errors of which he complains." United States v. Frady. 456 U.S. 152, 165-68 (1982) (internal quotation marks omitted). With the exception of a sufficiency of the evidence challenge as to Count 5, all of movant's arguments are procedurally defaulted because he did not raise them on direct appeal. See Snow. 595 F.App'x at 226. As a result, he may not raise them now without demonstrating cause and prejudice.

         As the cause for his procedural default, movant argues his appellate counsel was constitutionally ineffective. To establish ineffective assistance of counsel, movant must show both that "counsel's performance was deficient" and that he was prejudiced by that deficient performance. Strickland v. Washington. 466 U.S. 668, 687 (1984). Deficient performance occurs when "counsel's representation [falls] below an objective standard of reasonableness" as established by "prevailing professional norms." Id., at 687-88. Because it "is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, " and because a wide range of strategies may be legitimate in a given case, there is a "strong presumption" that counsel's conduct was effective and "scrutiny of counsel's performance must be highly deferential." Id. at 689-90; see also United States v. Terry. 366 F.3d 312, 316-18 (4th Cir. 2004). In keeping with this standard, a court is to assess counsel's conduct not with the benefit of hindsight, but from the perspective of counsel at the time of the relevant action or decision. Strickland 466 U.S. at 689. Further, courts acknowledge that the range of reasonable professional assistance is wide and "[e]ven the best criminal defense attorneys would not defend a particular client in the same way." Id. Moreover, there can be no question that "counsel [is] not constitutionally ineffective" for failing to raise an argument if "it would have been futile for counsel to have done so[.]" Oken v. Corcoran, 220 F.3d 259, 269 (4th Cir. 2000).

         Similarly, appellate counsel is "not obligate[d] to assert all non-frivolous issues on appeal[.]" Fisher v. Lee. 215 F.3d 438, 457 (4th Cir. 2000). A key function of appellate counsel is "to examine the record with a view to selecting the most promising issues for review." Jones v. Barnes. 463 U.S. 745, 752 (1983). "This process of 'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray. 477 U.S. 527, 536 (1986) (quoting Jones. 463 U.S. at 751).

         To show prejudice, a movant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A showing that "the errors had some conceivable effect on the outcome of the proceeding" is not enough; a reasonable probability requires that the errors are "sufficient to undermine confidence in the outcome, " Id. at 693-94, or that the results of the proceeding were fundamentally unfair, Lockhart v. Fretwell. 506 U.S. 364, 369 (1993). Assessing prejudice "requires the court deciding the ineffectiveness claim to 'consider the totality of evidence before the judge or jury.'" Elmore v. Ozmint. 661 F.3d 783, 858 (4th Cir. 2011) (quoting Strickland. 466 U.S. at 695). "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Strickland. 466 U.S. at 700.

         Claims of ineffective assistance, like any other claims, must be pleaded with "specific facts to support a potential finding" in favor of the movant. Hunter v. United States, No. 2:05CR49, 2010 WL 6050751, at *9 (N.D. W.Va. Aug. 23, 2010). Because Sykes is pro se, the Court must construe his allegations liberally. See Erickson v. Pardus. 551 U.S. 89, 94 (2007). Nevertheless, movant must still state "more than labels and conclusions." Giarratono v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly. 550 U.S. 544, 555 (2007)) (internal quotation marks omitted).

         B. Lack ...


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