15-1732
Broxmeyer v. United States

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated Term of the United States Court of Appeals for the Second Circuit, held at 
the Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, 
on the 29th day of September, two thousand sixteen.

Present:      ROBERT A. KATZMANN,
                   Chief Judge,
              RICHARD C. WESLEY,
              PETER W. HALL,
                   Circuit Judges.


TODD J. BROXMEYER,

       Petitioner-Appellant,

              -v-                                  No. 15-1732

UNITED STATES OF AMERICA,

       Respondent-Appellee.


For Petitioner-Appellant:                          LAWRENCE D. GERZOG, Law Offices of
                                                   Lawrence D. Gerzog, New York, NY.

For Respondent-Appellee:                           CARINA H. SCHOENBERGER, Assistant U.S.
                                                   Attorney (Miroslav Lovric, on the brief), for
                                                   Richard S. Hartunian, United States
                                                   Attorney for the Northern District of New
                                                   York, Syracuse, NY.



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     Appeal from the United States District Court for the Northern District of New York
(McAvoy, J.).

        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court is AFFIRMED.

        This is the third time this Court has considered an appeal from Todd Broxmeyer, who

was convicted on five counts of production of child pornography, attempted production of child

pornography, transportation of a minor with the intent to engage in criminal sexual activity, and

possession of child pornography following a jury trial in 2008. See United States v. Broxmeyer

(Broxmeyer I), 616 F.3d 120 (2d Cir. 2010) (reversing Broxmeyer’s convictions on the two

counts of production and one count of transportation); United States v. Broxmeyer (Broxmeyer

II), 699 F.3d 265 (2d Cir. 2012) (affirming Broxmeyer’s 30-year sentence on the remaining

counts), reh’g en banc denied, 708 F.3d 132 (2d. Cir. 2013), cert. denied sub nom. Broxmeyer v.

United States, 133 S. Ct. 2786 (2013). Because the facts of this case are amply described in those

two opinions, we will not recount them here.

        In this appeal, Broxmeyer challenges the district court’s denial of his motion under 28

U.S.C. § 2255 asserting ineffective of counsel in violation of the Sixth Amendment. Because

Broxmeyer has not alleged any plausible claim of ineffective assistance, either by his trial

counsel or his post-trial counsel, we AFFIRM.

    A. Standard of Review

      When reviewing a district court’s decision to deny a motion under § 2255, “[w]e review

[the] district court’s findings of fact for clear error, and its denial of a [§] 2255 petition de novo.”

Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010). But “[w]e review the district

court’s denial of a hearing under 28 U.S.C. § 2255 for abuse of discretion.” Chang v. United

States, 250 F.3d 79, 82 (2d Cir. 2001).



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    B. Ineffective Assistance of Counsel

       Section 2255 provides that a prisoner in federal custody “may move the court” to vacate a

sentence that “was imposed in violation of the Constitution.” 28 U.S.C. § 2255(a). Broxmeyer

claims that his sentence was imposed in violation of his Sixth Amendment right to the effective

assistance of counsel. To establish ineffective assistance of counsel under Strickland v.

Washington, 466 U.S. 668, 686 (1984), the defendant must prove both “that counsel’s

representation fell below an objective standard of reasonableness . . . . under prevailing

professional norms,” id. at 688, and “that the deficient performance prejudiced the defense,” i.e.,

“that counsel’s errors were so serious as to deprive the defendant of a fair trial,” id. at 687.

       To meet the high bar for proving deficiency, movant must show “that counsel made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment. . . . Judicial scrutiny of counsel’s performance must be highly

deferential.” Strickland, 466 U.S. at 687, 689. We apply a “‘strong presumption’ that counsel’s

conduct falls within the wide range of reasonable professional assistance because it is all too

easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light

of hindsight.” Bell v. Cone, 535 U.S. 685, 702 (2002) (quoting Strickland, 466 U.S. at 689).

Thus, “in case after case, we have declined to deem counsel ineffective notwithstanding a course

of action (or inaction) that seems risky, unorthodox or downright ill-advised.” Tippins v. Walker,

77 F.3d 682, 686 (2d Cir. 1996).

       Broxmeyer first argues that his trial counsel failed to mount a proper defense because he

was intoxicated before and during trial. Broxmeyer presents no plausible reason to think that his

trial counsel was intoxicated, or that his performance fell below an objective standard of

reasonableness. It is clear from the record that trial counsel actively advocated on behalf of




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Broxmeyer before and during trial, including by filing motions to suppress evidence and seeking

an order precluding use of certain evidence at trial as prejudicial to Broxmeyer. He also moved at

the end of the government’s case for judgment of acquittal on Counts 1, 2, and 4, the same

counts on which this Court later vacated Broxmeyer’s convictions.

       At trial, Broxmeyer’s defense to the first three counts against him was that his teenage

players had sent their naked pictures to him voluntarily, and that he therefore had not “willfully

coerced” a minor, a required element of the crime of production. His trial counsel emphasized

that point during his opening statement, in cross-examining witnesses, and during his

summation. Similarly, counsel contended during his opening statement and summation that,

under the relevant federal law, the purpose of transporting a minor across state lines had to be for

sex, and it was not sufficient if the sexual acts were merely incidental.

       Although counsel did not present a defense case, his cross-examinations of the

government’s witnesses were thorough. For instance, through his cross-examination of K.M. and

her father, counsel highlighted that Broxmeyer had to travel close to K.M.’s house anyway based

on his pre-existing schedule. During his cross-examination of the lead investigator on the case

and the forensic expert, counsel stressed that the police did not know the age of most of the

women in the photographs. It is also evident from the record that counsel was attentive during

trial; for example, when the prosecutor referred to a “photo of young girls or teenage person’s

breasts,” counsel objected to the use of the term teenage because “[i]t hasn’t been identified that

she is a teenager.” G.A. 58. That objection was sustained. Id.

       Broxmeyer claims that his counsel was ineffective for failing to mount a defense. But as

we have held, “[t]he decision whether to call any witnesses on behalf of the defendant, and if so

which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in




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almost every trial.” United States v. Nersesian, 824 F.2d 1294, 1321 (2d. Cir. 1987); see also

Greiner v. Wells, 417 F.3d 305, 323 (2d Cir. 2005) (“Courts applying Strickland are especially

deferential to defense attorneys’ decisions concerning which witnesses to put before the jury.”).

       Here, Broxmeyer does not name any witnesses his attorney should have called or explain

what testimony they might have offered. The closest he comes is asserting that counsel should

have cross-examined A.W. about her visits to Broxmeyer in jail after his arrest, but Broxmeyer

has not rebutted the presumption that this failure was a reasonable strategic decision. It was

apparent from A.W.’s testimony, on direct and cross-examination, that she had sex with and sent

pictures to Broxmeyer voluntarily. But the government argued that A.W.’s “voluntariness” was

emblematic of Broxmeyer’s abuse of his power over the teenagers entrusted to his care. Indeed,

the government emphasized during its summation that it was irrelevant that A.W. claimed to

have sent him her pictures of her own accord: A.W.’s “voluntariness . . . . [was] irrelevant.

Minors can’t consent to doing this stuff.” Trial Transcript at 292:15-18, United States v.

Broxmeyer, No. 3:08-cr-0021-JJM (N.D.N.Y., Sept. 17, 2008), ECF No. 56. The prosecutor

opined that “the real sad thing about this whole case is, [A.W.] doesn’t think that she was

manipulated and used. . . . And why? She’s just a kid.” Id. at 301-02. Counsel’s failure to

highlight the depth of A.W.’s affections for Broxmeyer thus may well have been a strategic

choice not to assist the government’s case against his client.

       Trial counsel’s advice to Broxmeyer not to testify likewise does not constitute ineffective

assistance. After his counsel informed the district court that he did not intend to put on a defense

case, the court asked whether counsel had “discussed with Mr. Broxmeyer that he has a right to

testify here at this Court, if he so chooses.” G.A. 168. Broxmeyer’s counsel affirmed that he had

done so. At that point, the court asked Broxmeyer directly: “do you understand you have a right




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to take the stand and testify, if you so choose?” Id. Broxmeyer replied, “Yes, sir.” Id. The court

then reaffirmed, “You wish to remain silent, which is also your right?” Id. Broxmeyer again

replied, “Yes, sir.” Id. Broxmeyer cannot claim now that he was prevented in any meaningful

way from expressing any indecision or discomfort to the court in response to the court’s inquiry,

even if he had not spoken at length with trial counsel about the prospect of testifying.

       As well, we do not find that counsel’s failure to object during summation constitutes

ineffective assistance of counsel. As we have explained, “[a]s with trial decisions to offer or

stipulate to certain evidence, decisions such as when to object and on what grounds are primarily

matters of trial strategy and tactics, and thus are virtually unchallengeable absent exceptional

grounds for doing so.” United States v. Cohen, 427 F.3d 164, 170 (2d Cir. 2005) (citations and

quotation marks omitted). The record indicates that counsel chose to address the government’s

remarks during his own summation, rather than objecting and perhaps calling attention to the

offending remarks. Counsel asserted, “Now, when the government gave you their inflammatory

comments and prejudicial opinions, that wasn’t evidence.” G.A. 171. We have held that this kind

of response is sufficient: “Defense counsel specifically responded to this remark in his own

summation and the decision whether to object to an arguably improper remark or to wait and

attack it in the defense summation was strictly a matter of tactics.” United States v. Daniels, 558

F.2d 122, 127 (2d Cir. 1977).

       Further, “absent any prejudicial error in the Government’s summation, the failure here to

raise an otherwise futile objection could not have rendered counsel ineffective.” Cohen, 427 F.3d

at 170. Broxmeyer does not point to any such prejudicial errors. Cf. United States v. Farhane,

634 F.3d 127, 167 (2d Cir. 2011).




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       Finally, we find no merit in Broxmeyer’s argument that his post-trial counsel rendered

ineffective assistance by failing to object to the factual findings in his pre-sentence report

(“PSR”) during the resentencing hearing on remand. Post-trial counsel did object to a number of

factual allegations in the PSR in a written submission to the district court. Indeed, the district

court agreed with several of these objections. Broxmeyer’s post-trial counsel also highlighted

potential mitigating factors at length during the sentencing hearing.

       Moreover, as the district court observed, Broxmeyer’s objections to the PSR were the

same as those he made before his first sentencing hearing. See Broxmeyer II, 699 F.3d at 275.

Although post-trial counsel waived the district court’s offer to “go step by step” and review the

objections to the PSR during the hearing, she did later claim that was error in Broxmeyer’s

appeal to this Court. We rejected that argument, finding that Broxmeyer had waived the issue.

See id. at 279. Nonetheless, this Court assessed whether the district court’s failure to review the

factual allegations again constituted plain error, and found no error, plain or otherwise. Id. at

279-80. Having already concluded that there was no error in the district court’s decision to forgo

reviewing the PSR during the hearing, we cannot now conclude that his counsel’s failure to

request that review constituted ineffective assistance under Strickland.

       Broxmeyer also contends that counsel should have objected to factual allegations

concerning earlier incidents first revealed in the PSR after remand, as several of Broxmeyer’s

victims apparently came forward only after the first trial. See id. at 276. The sentencing

memorandum that counsel submitted to the court did not address these new allegations.

Nonetheless, Broxmeyer cannot show prejudice under Strickland because the district court stated

during the hearing that “it would not increase his sentence based on that new information.” Id.

Broxmeyer emphasizes that the district court indicated that his “extensive history of sexually




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abusing children” factored into the sentence he received, but this Court already held in

Broxmeyer II that the district court was not referring to those earlier incidents. Id. at 288.

        As a result, Broxmeyer has not met his burden to show a plausible claim of ineffective

assistance, either by his trial or post-trial counsel.

    C. Need for an Evidentiary Hearing

        Section 2255 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). “To warrant a hearing on an ineffective assistance of

counsel claim, the defendant need establish only that he has a ‘plausible’ claim of ineffective

assistance of counsel, not that ‘he will necessarily succeed on the claim.’” Puglisi v. United

States, 586 F.3d 209, 213 (2d Cir. 2009) (quoting Armienti v. United States, 234 F.3d 820, 823

(2d Cir. 2000)). But “[i]f it plainly appears from the motion, any attached exhibits, and the record

of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the

motion.” Id. (quoting Rules Governing § 2255 Proceedings for the United States District Courts,

Rule 4(b), 281 U.S.C. foll. § 2255). The Supreme Court has confirmed that “if the record refutes

the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not

required to hold an evidentiary hearing.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

        “[A] district court need not assume the credibility of factual assertions, as it would in

civil cases, where the assertions are contradicted by the record in the underlying proceeding.”

Puglisi, 586 F.3d at 214. “[F]or this reason, we have also held that when the judge that tried the

underlying proceedings also presides over the Section 2255 motion, a less-than full-fledged

evidentiary hearing may permissibly dispose of claims where the credibility assessment would




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inevitably be adverse to the petitioner.” Id.; see also United States v. Aiello, 900 F.2d 528, 534

(2d Cir. 1990) (affirming the denial of a § 2255 without a hearing where the judge “presided over

both of Aiello’s trials” and was thus “intimately familiar with the detailed factual record”).

       Here, the district court acted well within its discretion in declining to hold an evidentiary

hearing on Broxmeyer’s claims. Although it might have been helpful if the district court had

sought affidavits from Broxmeyer’s counsel, cf. Sparman v. Edwards, 154 F.3d 51, 52 (2d Cir.

1998), none of his claims requires further evidence to determine their validity. Broxmeyer

presented no plausible reason to believe that trial counsel was actually intoxicated during trial or

that his performance fell below an objectively reasonable level. Nor did Broxmeyer point to any

specific failures or omissions on either counsel’s part that would require an evidentiary hearing

to assess. Broxmeyer claims that an evidentiary hearing is required to describe conversations he

had with trial counsel which are not part of the record, but the substance of those conversations is

irrelevant. Most importantly, with respect to Broxmeyer’s claims about his desire to testify in his

own defense, counsel affirmed that he had “discussed with Mr. Broxmeyer that he has a right to

testify here at this Court, if he so chooses,” and Broxmeyer himself confirmed that he understood

he had “a right to take the stand and testify, if [he] so cho[]se.” G.A. 168. Likewise, the alleged

inadequacies of his post-trial counsel did not require a hearing, as they were “contradicted by the

record.” Puglisi, 586 F.3d at 214. Holding an evidentiary hearing on Broxmeyer’s claims would

only be a waste of the court’s time and resources.

       We have examined the remainder of Broxmeyer’s arguments and find them to be without

merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




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