12-3818-pr
Jones 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, 40 Foley Square, in the City of New
York, on the 5th day of November, two thousand and thirteen.

PRESENT:

           JOHN M. WALKER, JR.,
           JOSÉ A. CABRANES,
           BARRINGTON D. PARKER,
                                Circuit Judges.
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KENWAYNE JONES,

                         Petitioner-Appellant,

                         -v.-                                                              No. 12-3818-pr

UNITED STATES OF AMERICA,

                     Respondent-Appellee.

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FOR PETITIONER-APPELLANT:                                                 ROBERT A. CULP, Law Office of Robert A.
                                                                          Culp, Garrison, NY.




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FOR RESPONDENT-APPELLEE:                                            JAMES P. LOONAM (Emily E. Berger, on the
                                                                    brief), Assistant United States Attorneys, for
                                                                    Loretta E. Lynch, United States Attorney,
                                                                    United States Attorney’s Office for the
                                                                    Eastern District of New York, Brooklyn, NY.

        Appeal from an August 9, 2012 order of the United States District Court for the Eastern
District of New York (David G. Trager, Judge, at trial and Frederic Block, Judge, on the habeas claim).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the August 9, 2012 order of the District Court be AFFIRMED.

        On November 7, 2008, a jury found petitioner-appellant Kenwayne Jones (“Jones”) guilty of
nine felony counts including racketeering, racketeering conspiracy, conspiracy to kidnap, kidnapping,
conspiracy to rob, attempted robbery, use of a firearm in furtherance of a crime of violence,
conspiracy to possess with intent to distribute cocaine base, and distribution and possession with
intent to distribute cocaine base. The District Court for the Eastern District of New York (David
G. Trager, Judge) sentenced Jones principally to 252 months’ imprisonment. We affirmed Jones’s
conviction and sentence on appeal. United States v. Jones, 375 F. App’x 95 (2d Cir. 2010). Jones
subsequently moved in the District Court to vacate, set aside, or correct his sentence, pursuant to 28
U.S.C. § 2255,1 and the District Court (Frederic Block, Judge)2 denied the motion. Jones v. United States,
No. 11 Civ. 3700 (FB), 2012 WL 3288749, at *3 (E.D.N.Y. Aug. 9, 2012). Jones now appeals.

                                                       BACKGROUND

         We assume familiarity with the underlying facts and procedural history of this case, and
reiterate only those details directly relevant to this appeal. Jones’s conviction arose out of his
membership in the Cash Money Brothers (“CMB”), a Brooklyn-based violent drug gang formed in
the early 1990s by, inter alia, Damion Hardy. As of 2002, Jones was regarded as Hardy’s “right-hand
man” and, in that capacity, was involved in CMB’s drug activities and related violence, including the
attempted robbery and kidnapping of a drug dealer named Ashabudeen Shakoor in July 2002. Jones
was not associated with CMB prior to 2001.


   1    In relevant part, 28 U.S.C. § 2255 provides:
       (a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be
       released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United
       States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of
       the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed
       the sentence to vacate, set aside or correct the sentence.
   2    Judge Trager died in 2011 and the case was reassigned to Judge Block.


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         On July 7, 2005, Jones was indicted along with twelve other CMB associates, some of whom
were charged with murder and were eligible for the death penalty. At his arraignment and
throughout trial, Jones was represented by Susan Kellman (“Kellman”). At the initial appearance in
August 2005, the District Court designated the case as “complex” within the meaning of the Speedy
Trial Act,3 over Kellman’s objection. Kellman again raised the delay of trial at an October
conference in connection with an attempt to sever Jones’s trial from that of the death-penalty-
eligible defendants. Ultimately, with the District Court’s endorsement, the parties reached an
agreement to sever the non-murder defendants (including Jones), and set a trial date for those
defendants in September 2006—the earliest feasible date for all parties. On September 6, 2006,
Jones was arraigned on a superseding indictment. On September 18, 2006, over a year after he first
appeared in court, Jones proceeded to trial with one codefendant, James Sessoms, who had been a
member of CMB since the early 1990s.

        After a month-long trial, a jury convicted Jones on nine felony counts, for which the District
Court sentenced Jones principally to 252 months’ imprisonment. We affirmed the conviction and
sentence in full. Jones, 375 F. App’x at 96. Jones sought habeas relief pursuant to 28 U.S.C. § 2255,
which the District Court denied. Jones, 2012 WL 3288749, at *3. Jones now appeals the judgment
of the District Court. In particular, Jones argues that his trial counsel was constitutionally
ineffective for: (1) failure to preserve his rights under the Speedy Trial Act; and (2) failure to seek an
appropriate jury charge regarding the existence of multiple conspiracies, or to argue that the
evidence showed, if anything, a different conspiracy than the one charged in the indictment. 4
Appellant’s Br. 18-19.



   3   The Speedy Trial Act provides, in relevant part:

        In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or
        indictment with the commission of an offense shall commence within seventy days from the filing date (and
        making public) of the information or indictment, or from the date the defendant has appeared before a judicial
        officer of the court in which such charge is pending, whichever date last occurs.

18 U.S.C. § 3161(c)(1). Certain periods of delay may be excluded from the calculation of time including a judge-granted
“continuance on the basis . . . that the ends of justice served by taking such action outweigh the best interest of the
public and the defendant in a speedy trial.” Id. § 1361(h)(7)(A). One justification for such a continuance is where “the
case is so unusual or so complex, due to the number of defendants, [or] the nature of the prosecution . . . that it is
unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits
established by this section.” Id. § 1361(h)(7)(B)(ii).

    4 Before the District Court, Jones argued that Kellman was ineffective for failure to (1) preserve Jones’s right to a

speedy trial; (2) object to the trial court’s lack of a multiple conspiracy jury instruction; and (3) request adjournment of
sentencing or make a Rule 35 motion. Jones also argued that the District Court erred by failing to consider the § 3553(a)
factors and by failing to explain Jones’s sentence, rendering the sentence procedurally unreasonable. The District Court
denied each of these claims, and Jones presses only the first two arguments on appeal.


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                                            DISCUSSION

         On appeal from a district court’s denial of habeas relief under 28 U.S.C. § 2255, we review
factual findings for clear error and conclusions of law de novo. Harrington v. United States, 689 F.3d
124, 129 (2d Cir. 2012). In order to prevail on an ineffective assistance of counsel claim, Jones must
demonstrate both that his counsel’s performance was objectively deficient under prevailing
professional standards and that he was actually prejudiced as a result of counsel’s errors. Id. (citing
Strickland v. Washington, 466 U.S. 668, 687-88, 692-93 (1984)). We have explained that “[a]ctions or
omissions by counsel that ‘might be considered sound trial strategy’ do not constitute ineffective
assistance.” Kieser v. New York, 56 F.3d 16, 18 (2d Cir. 1995) (quoting Strickland, 466 U.S. at 689).
Moreover, the reasonableness of counsel’s decisions is analyzed in view of the governing law and
circumstances at the time the decisions were made. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986);
Jameson v. Coughlin, 22 F.3d 427, 429 (2d Cir. 1994).

                                        A. Speedy Trial Claim

        With regard to his speedy trial claim, Jones presents no evidence that Kellman’s assistance
was deficient in any way, much less constitutionally inadequate. Kellman invoked Jones’s speedy trial
rights by objecting to the court’s decision to designate the case “complex” for speedy trial purposes.
That argument having failed, Kellman reached an agreement with the government, at the District
Court’s urging, to sever Jones’s trial and have it tried on the earliest practicable date. In other words,
the September 2006 trial date was the result of Kellman’s entirely reasonable strategy for securing
Jones a fair trial both with respect to timing (by raising his right to a speedy trial) and substance (by
severing Jones’s trial from that of the defendants charged with murder).

        Jones’s argument that Kellman should have moved to dismiss the indictment based on the
Supreme Court’s decision in Zedner v. United States, 547 U.S. 489 (2006), also fails. Zedner stands for
the proposition that a defendant may not prospectively waive his rights under the Speedy Trial Act
and forego the necessity of the District Court setting forth “‘either orally or in writing, its reasons
for finding’ . . . the need for an ends-of-justice continuance.” Id. at 500 (quoting 18 U.S.C. §
3161(h)(7)(a)). As it happens, the District Court here made such a finding—over Kellman’s
objections—based on the number of defendants, timespan of the charges, number of crimes
charged, death eligibility and discovery issues in the case. See App’x 31-34 (designating the case as
complex with the possibility of revisiting the issue). Thus, even if Kellman had had the benefit of




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Zedner throughout her representation of Jones, there is no reason to believe it would or should have
affected her strategy. 5

       Moreover, Zedner was decided just months before trial was set to commence. In view of the
complexity of the case, dismissal based on Zedner was unlikely,6 and had it been granted, the District
Court almost certainly would have done so without prejudice to the government bringing another
indictment.7 See Zedner, 547 U.S. at 509 (remanding to the district court to determine whether the
dismissal in this case should be with or without prejudice (citing 18 U.S.C. § 3162(a)(2)).

      In short, Kellman’s decision not to bring a motion to dismiss that was unlikely to succeed
and would inevitably lead to further delay was perfectly reasonable.

                                          B. Multiple Conspiracy Claim

         Jones’s second argument is that his trial counsel was constitutionally ineffective “in failing to
make the proper record and requests for a multiple conspiracies charge.” Appellant’s Br. 33. The
District Court rejected this argument on the ground that the Court of Appeals had already
considered, and rejected, the argument on direct appeal. Jones, 2012 WL 3288749, at *2 (“In
addressing a § 2255 motion, a district court cannot revisit issues already decided on direct appeal.”
(citing Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010)).

         On appeal we held that “the jury reasonably found that the government had proved the
single conspiracy alleged in the indictment beyond a reasonable doubt” and that the “district court’s
failure to give a multiple-conspiracies instruction [was not] error because only one conspiracy was




   5  Although the District Court did not specifically refer to the Speedy Trial Act in issuing his oral ruling, it is clear
from the transcript that the justification for an “ends of justice” continuance was that “the case is so unusual or so
complex, due to the number of defendants, [or] the nature of the prosecution . . . that it is unreasonable to expect
adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section.” Id.
§ 1361(h)(7)(B)(ii). Even Zedner, which was not decided at the time, does not require more at this early stage. See Zedner,
547 U.S. at 506-07 (“Although the Act is clear that the findings must be made, if only in the judge’s mind, before
granting the continuance . . . those findings must be put on the record by the time a district court rules on a defendant’s
motion to dismiss”).

    6 It is well established that a multi-defendant case involving activities over an extended period of time may justify a

continuance under the Speedy Trial Act. See , e.g., United States v. Gonzales Claudio, 806 F.2d 334, 341 (2d Cir. 1986); United
States v. Hernandez, 862 F.2d 17, 24 n.3 (2d Cir. 1988). If, after Zedner was decided, Kellman had moved to dismiss on
speedy trial grounds, the District Court—with the benefit of the teaching of Zedner—would have had no trouble
justifying the delay, which Zedner requires on the record only at the motion-to-dismiss stage. See Zedner, 547 U.S. at 506-07.
   7
      The likelihood that any dismissal would have been without prejudice also undermines any claim that Jones was
prejudiced by Kellman’s conduct.


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alleged and proved.” Jones, 375 F. App’x at 96 (internal quotation marks omitted). Jones’s claims
fare no better when reframed as an ineffective assistance of counsel argument.

        As a preliminary matter, Jones has again failed to demonstrate that Kellman’s conduct was
deficient in any way. Kellman requested a multiple conspiracies instruction and the District Court
reserved judgment until after summations. App’x 82. In her summation, Kellman did not argue
multiple conspiracies, but instead argued that the witnesses and allegations against Jones were not
credible. App’x 83-84. Ultimately, the District Court did not give the multiple conspiracies
instruction. Kellman’s decision to focus on the credibility of the testimony against Jones as an
absolute matter, rather than attempting to differentiate between time periods, was a reasonable trial
strategy. In addition, our conclusion that “only one conspiracy was alleged and proved,” Jones, 375
F. App’x at 96, forecloses any argument that Jones was actually prejudiced by Kellman’s strategy at
summations.

                                          CONCLUSION

       We have reviewed the record and Jones’s arguments on appeal and find them to be without
merit. For the reasons set forth above, we AFFIRM the August 9, 2012 judgment of the District
Court.



                                               FOR THE COURT,
                                               Catherine O’Hagan Wolfe, Clerk of Court




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