192 F. Supp. 3d 483
S.D.N.Y.2016Background
- Jose Pena was convicted by a jury of conspiracy to commit murder for hire (18 U.S.C. §1958), two substantive murder-for-hire counts (18 U.S.C. §1958), and two counts of murder by use of a firearm during a crime of violence (18 U.S.C. §924(j)); sentenced to life imprisonment concurrent on each count.
- Trial counsel (Ronald Garnett) represented Pena at trial; sentencing counsel (Elizabeth Macedonio) represented him at sentencing and on appeal. The Second Circuit affirmed on mandate in June 2016.
- Pena filed a pro se 28 U.S.C. §2255 motion claiming ineffective assistance of counsel (multiple alleged failures by trial and sentencing counsel) and raising a Johnson challenge to the §924(j) “residual clause” analogy.
- Major factual disputes centered on phone calls and testimony by cooperating witness Bernardo Sabino; Pena argued several strategic errors and omissions by counsel (severance, plea advice, failure to argue interstate-commerce element, decision to testify, cross-examination, juror dismissal, duplicative §924(j) counts, continuance/ investigator, and Apprendi-type jury finding on death).
- The district court applied Strickland’s two-pronged test, reviewed each claimed error as largely strategic or speculative, found no deficient performance or resulting prejudice, and rejected extension of Johnson to vacate his §924(j) convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to move for severance from co-defendant Hector | Trial counsel should have sought separate trials because evidence of Hector’s unrelated killing prejudiced Pena | Counsel made a reasonable strategic choice; evidence and roles were intertwined; severance unlikely to be granted | Denied — strategic decision; no prejudice shown |
| Failure to advise that conviction meant mandatory life if convicted at trial | Pena says he would have pled if told life was mandatory (no discretion) | Counsel’s sentencing predictions do not establish ineffective assistance; Pena knew exposure to life and offers speculative | Denied — no deficient performance or prejudicial effect |
| Failure to argue interstate-commerce element for §1958 (telephone use) | Counsel should have argued the call was intrastate, undermining federal jurisdiction | Strategic choice; law unsettled in Second Circuit; Pena admitted making the call | Denied — no prejudice; argument unlikely to change outcome |
| Failure to advise decision to testify was Pena’s | Pena claims counsel told him not to testify and he did not know he could override | No evidence counsel forced or prevented testimony; decision was strategic; proposed testimony speculative and unlikely to change result | Denied — no deficient performance or prejudice |
| Ineffective cross-examination of cooperating witness Sabino | Counsel failed to question Sabino about telephone use and other points | Cross-examination attacked credibility effectively; omission was strategic | Denied — strategic choice and no prejudice |
| Failure to object to dismissal of a sleeping juror | Counsel should have sought questioning rather than dismissal | Dismissal of an inattentive juror was appropriate; objections would be meritless | Denied — no ineffective assistance |
| Failure to dismiss one §924(j) count as duplicative | Counts refer to two different victims (Suarez and Carmona) not the same offense | Counts are distinct as charged | Denied — no basis for dismissal |
| Failure to seek continuance to obtain new private investigator | Counsel should have asked for delay after investigator’s arrest | Strategic decision not to pursue new investigator; no showing it would have altered outcome | Denied — strategic choice and no prejudice |
| Sentencing counsel’s failure to raise Apprendi jury-determination claim on death element | Jury must find death resulted beyond reasonable doubt for §1958 sentencing consequences | Court instructed jury correctly; jury found killings and substantial-factor causation via convictions on §924(j) counts | Denied — no error; jury already determined deaths occurred |
| Johnson challenge extending to §924(j) or sentencing-guideline residual clauses | Johnson renders residual clause void; murder-for-hire does not qualify as crime of violence | Johnson applies narrowly to ACCA and identical guideline residual clause where applicable; not applicable here; murder-for-hire is categorically a crime of violence | Denied — Johnson does not afford relief in this case |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-pronged standard for ineffective assistance of counsel)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (any fact increasing penalty beyond statutory maximum must be submitted to a jury)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause void for vagueness)
- Zafiro v. United States, 506 U.S. 534 (1993) (standards for severance; risk of prejudice required)
- United States v. Jones, 129 F.3d 718 (2d Cir. 1997) (murder-for-hire as a crime of violence for §924(c) purposes)
- United States v. Perez, 414 F.3d 302 (2d Cir. 2005) (Second Circuit treatment of interstate-commerce element questions)