22-2226-pr Dervishaj 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 16th day of August, two thousand twenty-four.

Present:

RICHARD C. WESLEY, GERARD E. LYNCH, EUNICE C. LEE, Circuit Judges. _____________________________________

REDINEL DERVISHAJ,

Petitioner-Appellant,

v. 22-2226-pr

UNITED STATES OF AMERICA,

Respondent-Appellee. _____________________________________

For Petitioner-Appellant: MATTHEW MCGAVOCK ROBINSON, Robinson & Brandt, PSC, Covington, KY.

For Respondent-Appellee: DAVID I. BERMAN (Jo Ann M. Navickas, on the brief), Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY.

Appeal from an August 5, 2022 order of the United States District Court for the Eastern

District of New York (Vitaliano, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Petitioner-Appellant Redinel Dervishaj appeals from an order entered by the district court

denying his petition for habeas relief under

, based on a claim of ineffective

assistance of counsel. On April 25, 2016, after a jury trial, Dervishaj was convicted of twelve

counts: three counts of extortion conspiracy in violation of the Hobbs Act,

(a),

(b)(2); three counts of attempted Hobbs Act extortion in violation of

(a), (b)(2);

three counts of threatening or committing physical violence in furtherance of Hobbs Act extortion

in violation of

(a), (b)(2); 1 and three counts of possessing or brandishing of a

firearm in furtherance of a crime of violence, in violation of

(c)(1)(A)(i)–(ii).

Dervishaj, proceeding pro se, filed an appeal, which this Court denied on September 18,

2019. See United States v. Dervishaj,

(2d Cir. 2019) (summary order). As part

of his direct appeal, Dervishaj argued that the nine Hobbs Act charges were multiplicitous in

violation of the Fifth Amendment’s Double Jeopardy Clause.

. We held that this

multiplicity argument was forfeited because his trial counsel failed to raise the objection below.

See

(rejecting multiplicity argument under Federal Rule of Criminal Procedure 12(b)(3)

1 We will refer to this charge as “violence in furtherance” for the remainder of the order. 2 because “the basis for a motion challenging multiplicity was available when the Third Superseding

Indictment was filed in February 2016, more than a month before trial”).

Next, on January 22, 2021, Dervishaj filed a § 2255 habeas petition arguing that his trial

counsel’s failure to raise the multiplicity argument by pretrial motion constituted ineffective

assistance of counsel. First, Dervishaj argued that his various Hobbs Act charges were

multiplicitous based on several decisions from the Eastern District of New York, rendered after

his trial and sentencing, which ruled that charging Hobbs Act robbery or extortion and violence in

furtherance of that act, violated the Double Jeopardy Clause. The district court rejected

Dervishaj’s ineffective assistance claim, reasoning that “the substantive legal contention

[regarding multiplicity] underlying th[e] ineffectiveness claim had, at the time of Dervishaj’s trial

and sentencing, yet to be raised in any reported case, much less settled,” and thus, “trial counsel’s

failure to make that argument is not objectively unreasonable.” Dervishaj v. United States, Nos.

21-CV-373 and 13-CR-668 (ENV),

, at *4 (E.D.N.Y. Aug. 5, 2022).

Dervishaj also claimed that the indictment was facially multiplicitous where it charged three

separate conspiracies—one for each victim—rather than a single conspiracy, and that his trial

counsel should have moved to dismiss the multiple conspiracy charges before the trial. However,

the district court explained that the question of whether a single conspiracy or multiple

conspiracies existed was properly submitted to the jury as a question of fact. Accordingly, the

district court denied the § 2255 petition and declined to issue a certificate of appealability.

Dervishaj timely appealed.

On March 15, 2023, we granted a certificate of appealability, agreeing to consider the

3 following questions:

[W]hether Appellant received ineffective assistance of counsel when his counsel failed to move to dismiss the indictment as multiplicitous with respect to Appellant’s convictions for (1) attempted Hobbs Act extortion and threatening or committing violence in furtherance of a plan to extort, and (2) conspiracy to commit Hobbs Act extortion . . . .

Motion Order, Dervishaj v. United States, No. 22-2226, ECF No. 23. We assume the parties’

familiarity with the remaining facts and issues on appeal, to which we refer only as necessary to

explain our decision to affirm.

* * *

On “an appeal from the denial of a § 2255 motion, we review the district court’s factual

findings for clear error and its legal conclusions de novo.” Rosario v. United States,

(2d Cir. 1998). “Because the Sixth Amendment provides criminal defendants with the

right to effective assistance of counsel, inadequate representation is a basis for relief under section

2255.” Morales v. United States,

(2d Cir. 2011) (citations omitted). “Whether

the effectiveness of a defendant’s legal representation falls short of the minimum required by the

Sixth Amendment is a mixed question of law and fact, which we review de novo.”

To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate

that (1) counsel’s performance was “deficient” as measured by an “objective standard of

reasonableness,” and that (2) “any deficiencies in counsel’s performance . . . [were] prejudicial.”

Strickland v. Washington,

, 687–88, 692 (1984). “An attorney’s representation is

deficient when it falls ‘below an objective standard of reasonableness,’ as determined by reference

to ‘prevailing professional norms.’” Morales,

(quoting Strickland,

4 688). “Such performance is prejudicial when it is so poor as to ‘undermine confidence in the

outcome’ of the proceedings—that is, it gives rise to ‘a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.’”

(quoting Strickland,

).

I. Hobbs Act Charges

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be

subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V.

Under the Double Jeopardy Clause, “[a]n indictment is multiplicitous if it charges the same crime

in two counts.” United States v. Ansaldi,

(2d Cir. 2004), abrogated on other

grounds by McFadden v. United States,

(2015). Generally, “the standard for

analyzing whether offenses are the same in law is the same-elements test established in

Blockburger v. United States.” United States v. Basciano,

, 196–97 (2d Cir. 2010)

(citing Blockburger v. United States,

(1932)). The Blockburger inquiry “asks

whether ‘each offense contains an element not contained in the other,’ and provides that, if not,

‘they are the “same offence” and double jeopardy bars additional punishment and successive

prosecution.’” Basciano,

(quoting United States v. Dixon,

(1993)). “[I]f each section requires proof of at least one fact that the other does not, there are two

offenses, and it is presumed that the legislature intended to authorize prosecution and punishment

under both.” United States v. Weingarten,

(2d Cir. 2013) (alteration in

original) (quoting United States v. Khalil,

(2d Cir. 2000)).

Here, the elements of the attempted extortion charge and the violence in furtherance charge

5 pass the Blockburger test. 2 Attempted extortion requires proving Dervishaj’s intent to commit

extortion, a fact which violence in furtherance does not. See Scheidler v. Nat’l Org. for Women,

Inc.,

(2006) (noting that, for the violence in furtherance offense, a defendant need

not have intended to commit extortion or known that his acts were in furtherance of a plan to

extort). On the other hand, violence in furtherance requires proving that Dervishaj actually

threatened or committed physical violence, whereas attempted extortion does not. See United

States v. Taylor,

(2022) (explaining that the substantial step element for an

attempted Hobbs Act robbery charge, like attempted Hobbs Act extortion, “does not require the

government to prove that the defendant used, attempted to use, or even threatened to use force

against another person or his property”). Thus, Dervishaj’s defense counsel was not ineffective

for failing to raise the multiplicity issue because the two charges satisfy the Blockburger same-

elements test.

II. Multiple Conspiracies

Dervishaj also contends that the government’s indictment was multiplicitous “on [its] face”

because it “split[] a single conspiracy into separate charges.” Appellant’s Br. at 28.

2 Attempted Hobbs Act extortion contains the following three elements: (1) that the defendant “intended to commit . . . Hobbs Act extortion[;]” (2) that the defendant took a “substantial step . . . to bring about or accomplish the crime;” and (3) that interstate commerce was “delayed, obstructed, or affected in anyway or degree.” Appellant’s Br. at 23–24 (emphasis added) (quoting jury instructions). Violence in furtherance contains the following three elements: (1) that the defendant “threatened [or committed] physical violence to any person or property;” (2) “that the physical violence threatened or committed furthered a plan or purpose to commit Hobbs Act extortion[;]” and (3) that if successful, the plan or purpose would have “obstructed, delayed, or affected commerce.” Id. at 24 (emphasis added) (quoting jury instructions).

6 Specifically, Dervishaj argues that “the three charged conspiracies were precisely the same, with

the only exception [being] that the victims of the extortion were different.” Id. However,

“[w]here, as here, separate counts of a single indictment allege that the defendant participated in

more than one conspiracy in violation of the same statutory provision,” but allege different

underlying facts for each conspiracy, “the question of whether one, or more than one, conspiracy

has been proven is a question of fact for a properly instructed jury.” United States v. Jones,

(2d Cir. 2006). Accordingly, the government’s conspiracy charges were not

multiplicitous on their face, and defense counsel was not ineffective for failing to object to the

indictment’s multiple conspiracy charges.

* * *

For the reasons set forth above, we AFFIRM the district court’s judgment.

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

7