16‐2735‐cv(L) Saxon 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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 13th day of June, two thousand seventeen.

PRESENT: DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges, COLLEEN McMAHON, Chief District Judge.* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

TORRELL M. SAXON, Petitioner‐Appellant,

v. 16‐2735‐cv(L) 16‐2736‐cv(con)

UNITED STATES OF AMERICA, Respondent‐Appellee.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

* Chief Judge Colleen McMahon, of the United States District Court for the Southern District of New York, sitting by designation. FOR PETITIONER‐APPELLANT: BENJAMIN GRUENSTEIN, Cravath, Swaine & Moore LLP, New York, New York.

FOR RESPONDENT‐APPELLEE: DANIELLE RENEE SASSOON, Assistant United States Attorney (Margaret Garnett, Assistant United States Attorney, on the brief), for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Ramos, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.

Petitioner‐appellant Torrell Saxon appeals the denial of his

motion, which sought vacatur of a July 25, 2013 judgment of conviction on two

narcotics distribution charges on grounds that his lawyer was constitutionally

ineffective in negotiating his plea agreement. We assume the partiesʹ familiarity with

the underlying facts, procedural history, and issues on appeal, which we reference only

as necessary to explain our decision to affirm.

BACKGROUND

On March 25, 2012, a man in Middletown, New York called 911 to report

that Saxon had attempted to rob him and others in the manʹs home, had shot at one of

them, but had been subdued. Officers arrived at the scene, found a gun, and arrested

Saxon.

‐ 2 ‐ On April 23, 2012, Saxon was indicted on one count of illegal possession of

a firearm under

(g)(1). The indictment also sought a fifteen‐year

mandatory minimum sentence under the Armed Career Criminal Act (ʺACCAʺ),

(e), which applies to defendants who have ʺthree previous convictions . . .

for a violent felony or a serious drug offense, or both, committed on occasions different

from one another.ʺ

(e). Saxon has three New York state convictions: two

first‐degree robbery convictions from 2000 and a 1996 conviction for third‐degree

criminal sale of a controlled substance.

Saxon was appointed counsel from the Federal Defenders of New York.

During the course of the representation, Saxon relayed to counsel that his primary

concern was the ACCA enhancement: He wanted to avoid conviction on any charge

with a fifteen‐year mandatory minimum. Nonetheless, counsel never researched

whether Saxon was eligible for the ACCA enhancement. Instead, she assumed he was

eligible and advised that he make an ʺInnocence Profferʺ ʺwhere [Saxon] would tell his

side of the story to the [G]overnment without any protections.ʺ J. App. 297. She

believed the Government could be persuaded to drop the gun charge. Saxon agreed to

this strategy. He proffered to the Government that he went to the house to sell drugs,

but claimed that the inhabitants of the residence robbed him at gunpoint and that he

never possessed a gun on the night of his arrest.

‐ 3 ‐ The strategy worked. A plea agreement was entered pursuant to which

the Government dismissed the gun charge and the ACCA enhancement in exchange for

Saxonʹs guilty plea to two narcotics distribution charges. The plea agreement stipulated

to a Guidelines range of 151 to 188 months and reserved the Governmentʹs right to seek

a two‐level sentencing enhancement for firearm possession after a Fatico hearing. The

two‐level enhancement would not have actually affected Saxonʹs Guidelines range; his

status as a career offender rendered irrelevant the two‐level enhancement in

determining his sentencing range of 151 to 188 months.

Although Saxon pleaded guilty on December 21, 2012, he later tried to

withdraw the plea because of the possible two‐level enhancement. He was adamant

that he did not have a gun on the night of his arrest. Counsel advised against

withdrawing the plea because it would expose Saxon to the fifteen‐year mandatory

minimum ACCA enhancement again. On April 9, 2013, counsel informed the district

court that she had advised Saxon not to withdraw his plea, and Saxon confirmed that he

would follow her advice.

On May 30, 2013, after a Fatico hearing, the district court found by a

preponderance of the evidence that Saxon possessed and fired a gun on the night of his

arrest. Accordingly, the district court applied the two‐level enhancement for possession

of the firearm. Nonetheless, the district court sentenced Saxon to 120 monthsʹ

imprisonment, below the stipulated Guidelines range of 151 to 188 months.

‐ 4 ‐ On July 16, 2013 and January 27, 2014, Saxon filed § 2255 motions alleging

ineffective assistance of counsel. On September 3, 2015, Saxon, represented by counsel

appointed pursuant to the Criminal Justice Act, filed a brief raising the ACCA eligibility

issue.

Saxon claimed that counsel was ineffective because she incorrectly

assumed that the ACCA enhancement applied to him. The district court agreed,

concluding that because of counselʹs ʺapparent lack of research . . . and her attendant

failure to assertʺ a meritorious argument that Saxon was ineligible for the enhancement,

counselʹs representation ʺfell below an objective standard of reasonableness and thus

constituted ineffective performance.ʺ Special App. 20.

Specifically, the district court faulted counsel for failing to raise an

argument premised on a footnote in McNeill v. United States,

, 825 n.1 (2011).

McNeill held that, when a state prospectively reduces the maximum term of

imprisonment for a drug offense, a court must look to the maximum term for such

offense at the time of defendantʹs conviction in determining whether the offense is a

ʺserious drug offenseʺ under the ACCA,

(e)(2)(A)(ii). See

.

In a footnote, however, the Supreme Court noted that it was not deciding ʺwhether or

under what circumstances a federal court could consider the effect of [] state actionʺ that

ʺsubsequently lowers the maximum penalty applicable to an offense and makes that

‐ 5 ‐ reduction available to all defendants previously convicted and sentenced for that

offense.ʺ

at 825 n.1.

The district court reasoned that, because New Yorkʹs Drug Law Reform

Act of 2009 reduced the maximum term of imprisonment for third‐degree criminal sale

of a controlled substance from twenty‐five years to nine years and made that reduction

available to a subset of previously convicted defendants, whether Saxonʹs 1996 narcotics

conviction qualified as a ʺserious drug offenseʺ under the ACCA was a question left

open by the McNeill footnote. Following the rulings of two other judges in the Southern

District of New York, see United States v. Calix, No. 13 Cr 582 (RPP),

, at

*11‐15 (S.D.N.Y. May 13, 2014), and United States v. Jackson, No. 13 Cr 142 (PAC),

, at *3‐6 (S.D.N.Y. Sept. 4, 2013), the district court held that Saxonʹs 1996

narcotics conviction was not a ʺserious drug offense.ʺ1 Accordingly, the district court

concluded that ACCAʹs fifteen‐year mandatory minimum was inapplicable to Saxon

because he had only two qualifing predicate offenses (the 2000 robbery convictions)

and, thus, counselʹs failure to research Saxonʹs ACCA eligibility amounted to ineffective

assistance of counsel under the Sixth Amendment.

Nevertheless, the district court held that Saxon was not prejudiced by

counselʹs error because the Government proffered that it would have superseded to add

additional charges to raise Saxonʹs Guidelines floor if the ACCA enhancement were

1 Both of those rulings were issued after Saxon pleaded guilty and was sentenced.

‐ 6 ‐ dismissed. On that basis, the district court concluded there was no reasonable

probability that Saxon would have gone to trial or secured a different plea deal.

Therefore, it denied the § 2255 motion.

On August 4, 2016, the district court issued a Certificate of Appealability

(ʺCOAʺ) on the issue of ʺ[w]hether, under the second prong of Strickland, Petitioner was

prejudiced by his counselʹs failure to challenge the application of the ACCA to his [prior

drug] conviction.ʺ Special App. 37. Saxon timely appealed.

DISCUSSION

ʺOn appeal from a district courtʹs denial of habeas relief under

, we review factual findings for clear error and conclusions of law de novo.ʺ

Harrington v. United States,

(2d Cir. 2012). The Government is ʺentitled

to seek affirmance on any ground available in the record and to do so need not have

sought a COA, . . . nor filed a cross‐appeal.ʺ Cornell v. Kirkpatrick,

, 377 n.6

(2d Cir. 2011) (citation omitted).

The Sixth Amendment grants criminal defendants ʺthe right to the

effective assistance of counsel.ʺ Strickland v. Washington,

(1984)

(quoting McMann v. Richardson,

, 771 n. 14 (1970)). To prevail on a claim of

ineffective assistance of counsel, a defendant must show that (1) ʺcounselʹs performance

was deficientʺ and (2) ʺthe deficient performance prejudiced the defense.ʺ Id. at 687. As

to the first element, the Supreme Court recently noted that the Constitution ʺsets a high

‐ 7 ‐ barʺ for defendants claiming inadequate counsel. Buck v. Davis,

(2017). Because ʺ[a] defense lawyer navigating a criminal proceeding faces any number

of choices about how best to make a clientʹs case,ʺ

we evaluate counselʹs ʺactions in

light of the law and circumstances confronting counsel at the timeʺ of the claimed

inadequacy. Harrington,

. We apply a ʺstrong presumption that counselʹs

conduct falls within the wide range of reasonable professional assistance.ʺ Strickland,

. At its core, the ʺquestion at this step is not whether counsel ʹdeviated

from best practices or most common custom,ʹ but whether [counselʹs] ʹrepresentation

amounted to incompetence under prevailing professional norms.ʹʺ Harrington, 689 F.3d

at 129‐30 (quoting Harrington v. Richter,

(2011)).

Applying this standard, we have noted that ʺomissions [that] cannot be

explained convincingly as resulting from a sound trial strategy, but instead arose from

oversight, carelessness, ineptitude, or lazinessʺ are errors indicative of deficient

performance. Eze v. Senkowski,

(2d Cir. 2003). For example, we have

held that failing to research the relevant law and thus overlooking favorable controlling

precedent from a stateʹs highest court is deficient performance. Cornell, 665 F.3d at 379‐

80. Nonetheless, the Sixth Amendment does not require counsel to anticipate changes

in the law or make objections based on ʺdevelopments in the law that occurred after

[defendantʹs trial].ʺ McCoy v. United States,

(2d Cir. 2013) (per curiam)

(emphasis omitted); see also Tellado v. United States,

(2d Cir. 2014).

‐ 8 ‐ Here, taking counselʹs actions in light of the law and circumstances

confronting her at the time she advised Saxon to accept the plea deal, we conclude that

her representation was constitutionally adequate. See Harrington, 689 F.3d at 129‐32.

Just a year and a half before Saxonʹs plea negotiations, the Supreme Court held in

McNeill that under ACCA ʺthe ʹmaximum term of imprisonmentʹ for a defendantʹs prior

state drug offense is the maximum sentence applicable to his offense when he was

convicted of it.ʺ McNeill,

(emphasis added). McNeill abrogated our

decision in United States v. Darden,

(2d Cir. 2008), in which we held that

courts should examine state law in effect at the time of a defendantʹs federal sentencing.

See Rivera v. United States,

(2d Cir. 2013) (rejecting petitionerʹs reliance

on Darden because ʺMcNeill abrogated Dardenʺ). Therefore, as the district court noted, a

ʺstraightforward application of McNeill would . . . dictate that [Saxonʹs] conviction

constituted a ʹserious drug offenseʹ for ACCA purposes because the maximum term of

imprisonment was more than ten years in 1996,ʺ when he was convicted. Special App.

10 (emphasis added).

Saxon argues that the Sixth Amendment obliged counsel to push beyond

this ʺstraightforward applicationʺ because of the aforementioned footnote in McNeill.

But even assuming that Saxon is correct about the import of that footnote ‐‐ which is far

from clear ‐‐ we conclude that counsel was not ineffective in failing to contest Saxonʹs

ACCA eligibility on that ground because ʺan attorney is not required to forecast

‐ 9 ‐ changes or advances in the law in order to provide effective assistance.ʺ United States v.

Kimber,

(2d Cir. 2015) (emphasis added) (quoting McCoy,

) (rejecting claim of ineffective assistance of counsel premised on counselʹs failure to

argue that a criminal statute did not cover his ʺlocalʺ conduct because, at the time of

petitionerʹs guilty plea, ʺno federal appellate court, let alone the Supreme Court, had

held that [the relevant statute] did not reach conduct that might be described as ʹlocalʹʺ).

This is true even where ʺthe bedrock elements of the argumentʺ supporting petitionerʹs

position were available to counsel at the time of her alleged incompetence. Tellado,

. Moreover, here, counsel consulted with her supervisor at Federal Defenders

about the Innocence Proffer strategy, discussed with Saxon the risks of that strategy vis‐

à‐vis proceeding to trial on the charged firearm offense with the ACCA enhancement,

and, as the district court noted, negotiated ʺa fairly favorable plea based on the charges

[Saxon was] originally facing,ʺ one that ʺfrankly surprisedʺ the district judge. App. 430.

Indeed, Saxon went from facing a gun charge with a mandatory minimum sentence of

fifteen years, or 180 months, to dismissal of the gun charge and a below‐Guidelines

sentence of only 120 months on drug charges. Accordingly, contrary to the district

court, we conclude that counsel was not ineffective in failing to raise the argument

premised on the McNeill footnote.

We note, however, that by affirming the district court on this ground, we

do not mean to suggest that we agree with its conclusion, or the conclusions of other

‐ 10 ‐ district judges in the Southern District of New York, concerning the merits of Saxonʹs

ACCA eligibility argument.2 We do not reach the merits of that argument because, in

this case, counsel was not ineffective in failing to raise it.

We have reviewed Saxonʹs remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the order of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

2 Indeed, we further note that the Eleventh Circuit, in an opinion joined by one of our colleagues sitting by designation in that circuit, expressly rejected the reasoning in Jackson,

, and Calix,

. See Cortes‐Morales v. Hastings,

(11th Cir. 2016) (per curiam), cert. denied,

(U.S. May 30, 2017).

‐ 11 ‐