23-6647-pr
    Whitehead v. LaManna


                           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 30th day of December, two thousand twenty-four.

    PRESENT:
                JOSEPH F. BIANCO,
                STEVEN J. MENASHI,
                EUNICE C. LEE,
                      Circuit Judges.
    ______________________________________

    NORMAN WHITEHEAD,

                            Petitioner-Appellee,

                     v.                                             23-6647-pr

    JAIME LAMANNA,

                      Respondent-Appellant.
    ______________________________________

    FOR PETITIONER-APPELLEE:                       RICHARD D. WILLSTATTER, Green & Willstatter,
                                                   White Plains, New York.

    FOR RESPONDENT-APPELLANT:                      IRA M. FEINBERG, Deputy Solicitor General for
                                                   Criminal Matters (Barbara D. Underwood,
                                                   Solicitor General, Nikki Kowalski, Deputy
                                                   Solicitor General for Criminal Matters, and
                                                   Michelle Maerov, Senior Assistant Attorney
                                                   General of Counsel, on the brief), for Letitia
                                                   James, Attorney General of the State of New
                                                         York, New York, New York.

         Appeal from a judgment and order of the United States District Court for the Northern

District of New York (Lawrence E. Kahn, Judge).

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

DECREED that the judgment, entered on May 19, 2023, and the order, entered on July 7, 2023,

are REVERSED.

         Respondent-Appellant Jaime LaManna (“Respondent”) appeals from the district court’s

judgment granting Petitioner-Appellee Norman Whitehead Jr.’s (“Whitehead”) petition for a writ

of habeas corpus and from its order denying Respondent’s motion for reconsideration of that

judgment. We assume the parties’ familiarity with the underlying facts, procedural history, and

issues on appeal, to which we refer only as necessary to explain our decision.

                                            BACKGROUND

         In June 2011, a grand jury in Albany County, New York charged Whitehead with, as

relevant here, one count of conspiracy (Count 1), four counts of criminal possession of a controlled

substance (Counts 225–26 and 228–29), and one count of criminal sale of a controlled substance

(Count 227). Count 1 of the indictment alleged that Whitehead and thirty-six other individuals

conspired to possess and sell cocaine in Albany County and elsewhere in the State of New York.

Counts 225–29 alleged that Whitehead possessed and sold cocaine, on February 27, 2011, in

Schenectady County. 1 After a jury trial, Whitehead was convicted on Counts 1 and 225–29, and

those convictions were affirmed on appeal. 2 See People v. Whitehead, 

, 1143–

45 (3d Dep’t 2015), aff’d, 

 (2017).


1
  The indictment was amended mid-trial to reflect that Counts 227–29 were committed in Orange County
rather than Schenectady County.
2
    The Appellate Division reversed Whitehead’s convictions on two additional counts of criminal sale of a
                                                     2
        In 2018, Whitehead filed a petition for a writ of error coram nobis with the Appellate

Division, arguing that his trial counsel was ineffective for not filing a pre-trial motion to dismiss

Counts 225–29 for lack of venue and that his appellate counsel was ineffective for not raising this

issue on appeal. Whitehead contended that Albany County lacked venue over Counts 225–29

because those substantive narcotics offenses took place in Schenectady or Orange County and the

indictment did not allege that the conduct underlying those offenses had a “particular effect” on

Albany County under 

(2)(c). The Appellate Division denied his

request for coram nobis relief without issuing an opinion. Thereafter, Whitehead filed a petition

for a writ of habeas corpus in the federal district court, reasserting his claim of ineffective

assistance based on both his trial and appellate counsels’ failure to challenge particular effect venue

over Counts 225–29. In a May 2023 decision and order, the district court agreed and concluded

that the indictment did not plead particular effect venue, and that “there was a reasonable

probability that, but for appellate counsel’s error—in this case, the failure to argue that trial counsel

was ineffective for failing to raise the glaringly apparent argument concerning the indictment’s

defective counts—Petitioner’s outcome would have been different.” Whitehead v. LaManna, No.

18-CV-1436 (LEK/TWD), 

, at *16 (N.D.N.Y. May 19, 2023) (“Whitehead I”).

The district court thus granted Whitehead’s petition and vacated his convictions on Counts 225–

29. 

.

        In a motion for reconsideration, Respondent argued for the first time in the district court

that “[a] motion to dismiss for failure to allege particular effect venue in Albany County would

have failed because venue [for the substantive counts] was properly pleaded in this multicounty



controlled substance (Counts 244–45), which are not at issue here, because they were not supported by the
weight of the evidence. Whitehead, 130 A.D.3d at 1143–44.

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drug conspiracy indictment under a separate theory.” Joint App’x at 170. More specifically,

Respondent asserted that, “[u]nder [

(1)(b)], in cases where a

conspiracy is established in the forum county, crimes committed outside the forum county as part

of the conspiracy may be charged in the forum county.” 

 In a July 2023 decision and order,

the district court denied the motion for reconsideration. See generally Whitehead v. LaManna,

No. 18-CV-1436 (LEK/TWD), 

 (N.D.N.Y. July 7, 2023) (“Whitehead II”). In

doing so, the district court did not consider the merits of Respondent’s new venue argument, but

rather deemed that argument waived. 

. This appeal followed.

                                          DISCUSSION

       We review a district court’s grant of a petition for habeas corpus de novo, and its underlying

findings of fact for clear error. See Cardoza v. Rock, 

 (2d Cir. 2013). To

prevail on a claim for ineffective assistance of counsel, a defendant must satisfy the two-pronged

test established by the Supreme Court in Strickland v. Washington, 

 (1984). First, a

“defendant must show that counsel’s representation fell below an objective standard of

reasonableness,” as evaluated “under prevailing professional norms.” 

. Second, a

“defendant must show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”           

.    Under the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 

Stat. 1214 (1996) (codified at 

), this Court’s review of the state court’s

adjudication of Whitehead’s ineffective assistance claim is “highly deferential.”            Eze v.

Senkowski, 

 (2d Cir. 2003). Specifically, “under § 2254(d)(1), it is not enough

to convince a federal habeas court that, in its independent judgment, the state-court decision


                                                 4
applied Strickland incorrectly. Rather, [a petitioner seeking habeas relief] must show that the

[state court] applied Strickland to the facts of his case in an objectively unreasonable manner.”

Bell v. Cone, 

 (2002).

       Together, Strickland and AEDPA create a “doubly deferential standard of review that gives

both the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 

 (2013) (internal quotation marks and citation omitted). “[T]o obtain § 2254 relief, a

petitioner must show ‘that the state court’s ruling on the claim being presented in federal court was

so lacking in justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.’” Englert v. Lowerre, 

(2d Cir. 2024) (quoting Harrington v. Richter, 

 (2011)). In other words, we will

not grant a § 2254 petition “so long as ‘fairminded jurists could disagree’ on the correctness of the

state court’s decision.” Harrington, 

 (quoting Yarborough v. Alvarado, 

 (2004)). We apply that doubly deferential standard here.

         I.    Waiver

       As a threshold matter, Respondent challenges the district court’s refusal to consider

whether venue as to the substantive counts at issue was proper based on the charged conspiracy.

In particular, the district court “decline[d] to consider” that argument because Respondent had not

raised it prior to the motion for reconsideration and, thus, had waived it. Whitehead II, 

, at *3.

       We review for abuse of discretion a district court’s determination that an argument has

been waived. Brown v. City of New York, 

 (2d Cir. 2017). As the district court

noted, because of the deference we show to state courts in the context of habeas petitions, federal

courts are required to “consider[] every argument that respondent has offered and the ones the


                                                 5
Court could hypothesize” before granting habeas relief. Whitehead I, 

, at *16

(alteration adopted) (quoting Lynch v. Dolce, 

 (2d Cir. 2015)); see Lynch, 

 (explaining that, where the state court denied a coram nobis petition without opinion,

“we must still defer to its decision, and deny relief if there is any reasonable basis on which it can

be found consistent with the governing precedent”).

       Here, the district court rejected Respondent’s argument that the indictment properly alleged

particular effect jurisdiction for venue purposes and granted habeas relief because Whitehead’s

appellate counsel failed to argue that trial counsel was ineffective for failing to raise that the

indictment did not properly allege that theory of venue. Whitehead I, 

, at *16.

However, in its effort to search for any hypothetical argument that might support the Appellate

Division’s rejection of Whitehead’s venue argument and related ineffective assistance claim, as

required under Lynch, the district court apparently did not identify or consider on its own that

venue on the substantive counts was proper due to the conspiracy charge and thus Whitehead

suffered no prejudice by his appellate counsel’s failure to raise the venue issue.              In the

reconsideration motion, Respondent explained that venue on the disputed counts need not be based

on charging and proving that the alleged conduct in those counts had a particular effect on the

forum county under 

(2)(c); rather, the indictment was properly

charged and tried on a different venue theory under 

(1)(b), which

relied upon Whitehead’s commission of these substantive crimes in furtherance of the charged

drug-trafficking conspiracy that operated in Albany County. When Respondent brought that new

ground for denying the petition to the district court’s attention in the reconsideration motion, the

district court abused its discretion in declining to consider it, especially where, as discussed below,

that argument had clear merit and should have altered the conclusion reached by the district court


                                                  6
with respect to the ineffective assistance of counsel claim. See Shrader v. CSX Transp., Inc., 

 (2d Cir. 1995) (“[R]econsideration will generally be denied unless the moving party

can point to controlling decisions or data that the court overlooked—matters, in other words, that

might reasonably be expected to alter the conclusion reached by the court.”).

        II.    Venue Challenge

       Having considered separately whether venue existed on the substantive counts under 

(1)(b) based on the charged conspiracy, we conclude that Whitehead

suffered no prejudice from his appellate counsel’s failure to raise trial counsel’s alleged

ineffectiveness for failing to raise the venue issue because, even assuming arguendo that the first

prong of Strickland was met, any venue challenge on the substantive counts had no reasonable

probability of success at trial or on appeal as such venue was properly based on the charged

conspiracy. See Harrington v. United States, 

 (2d Cir. 2012) (“[A] petitioner

cannot show prejudice if the claim or objection that an attorney failed to pursue lacks merit.”).

       “Where a defendant challenges geographical jurisdiction before trial, the jurisdiction of the

county seeking to prosecute must be established before the Grand Jury, and such a challenge must

fail if the Grand Jury minutes show some evidence from which jurisdiction could be inferred.”

People v. Kellerman, 

 (3d Dep’t 1984).            “All that is required is that

jurisdiction can be fairly and reasonably inferred from all the facts and circumstances introduced

into evidence.” Steingut v. Gold, 

 (1977); see also People v. Seifert, 

 (4th Dep’t 1985) (considering multiple bases for venue and noting that “the evidence

adduced before the Grand Jury [need only] permit[] a fair and reasonable inference” of jurisdiction

under one of the theories advanced by the prosecution).




                                                 7
       Under New York law, a conspiracy “may be prosecuted in the county in which [the]

defendant entered into the conspiracy or any county in which an overt act in furtherance of the

conspiracy was committed by [the] defendant or one of the coconspirators.” People v. Ribowsky,

 (1991). An overt act need not be alleged as such in the indictment in order

to confer geographical jurisdiction over the charged conspiracy. See 

 (rejecting

defendant’s argument that “the perjury charges cannot be used to sustain jurisdiction because those

charges were not alleged as overt acts in the conspiracy indictment,” and explaining that “inasmuch

as concealment was important to the insurance scheme and helped to define its nature and scope,

defendant had sufficient notice that [the perjury charges] would be part of the conspiracy case, and

would constitute overt acts upon which jurisdiction could be predicated”); see also People v.

Giordano, 

 (1995) (holding that a co-conspirator’s phone calls from Nassau

County were “overt acts, whether pleaded as such or not,” which “established a jurisdictional

predicate for . . . [the] conspiracy to promote gambling [charge]”).

       Moreover, if a county has “geographical jurisdiction over the conspiracy”—because, for

example, “one or more of the overt acts committed in furtherance of the conspiracy occurred

[there]”—that county also has jurisdiction over “the object/component crimes of the conspiracy

. . . , regardless of [where] they took place.” People v. Velazquez, 

 (3d

Dep’t 2021); see also Faraci v. Firetog, 

 (2d Dep’t 2003) (“As Kings County

has geographical jurisdiction over the conspiracy count, it also has geographical jurisdiction over

the substantive crimes which were the object of that conspiracy, regardless of whether the elements

of those crimes were committed in Kings County.”); People v. Manfredi, 

 (2d

Dep’t 1990) (“Most of the overt acts committed by the conspirators took place [in Kings County],

with the result that Kings County had jurisdiction over the conspiracy as a whole as well as over


                                                 8
its component object crimes, including those of the defendant which were committed largely in

the Bronx.”).

       Here, any effort to seek dismissal of the indictment prior to trial on venue grounds would

have undoubtedly been rejected and, thus, no prejudice can be demonstrated by appellate counsel’s

failure to raise the venue issue on appeal, including in a claim alleging ineffective assistance of

trial counsel for failure to raise or preserve the issue. Whitehead does not dispute that Albany

County has geographical jurisdiction over the charged drug-trafficking conspiracy. Nor does he

contest that Counts 225–26, charging him with possessing cocaine in Schenectady County,

furthered an object of that conspiracy. See Appellee’s Br. at 40 (conceding that an object of the

charged conspiracy was “to redistribute [cocaine] in the Capital Region” and that “[i]ndisputably,

Schenectady is in New York’s Capital Region”). Instead, Whitehead argues that the conspiracy

could not sustain jurisdiction over Counts 225–29 because the indictment “did not allege the errant

counts were objects of the conspiracy . . . [or] were committed as part of the conspiracy.” Id. at

42 (emphasis added). However, no New York case authority supports this position. Indeed, as

noted supra, the New York Court of Appeals has held that an overt act need not be specifically

alleged in the indictment even to confer geographical jurisdiction over the entire charged

conspiracy, see Ribowsky, 

, and there is no case authority to suggest that New

York courts have imposed, or would impose, a requirement that each substantive count specifically

allege that it is an object of the charged conspiracy in order for that conspiracy to provide the basis

for jurisdiction over those substantive counts.

       Thus, if Whitehead had moved pre-trial to dismiss Counts 225–29 for lack of venue, the

trial court would have needed to find only that the grand jury was presented with “some evidence

from which jurisdiction could be inferred” with respect to the conspiracy in order to find


                                                  9
geographical jurisdiction over the disputed counts. Kellerman, 

. In fact, the

indictment specifically alleged that one of the alleged overt acts in furtherance of the charged

conspiracy was Whitehead’s February 27, 2011 purchase of 480 grams of cocaine from a co-

defendant for redistribution in the Capital Region, which was the basis of three of the five

substantive counts at issue here (Counts 227 through 229). The remaining two substantive counts

(Counts 225 and 226) charged Whitehead with possessing cocaine in Schenectady County that he

intended to sell, via co-conspirator Carl Goodson, to an Albany County resident, co-conspirator

Karashan Mansaray, who dealt drugs out of an Albany stash house. That alleged conduct was

tied to the conspiracy count, which broadly alleged that Whitehead sold cocaine to Goodson,

Mansaray, and others for resale, and had engaged in other acts that furthered the conspiracy in

Albany County. In short, because there is no dispute that Albany County had geographical

jurisdiction over the conspiracy and that the substantive counts were tied to that conspiracy, any

pre-trial motion to dismiss Counts 225–29 on venue grounds would have failed. See Faraci, 

 (rejecting pre-trial challenge to geographical jurisdiction over falsifying business

records charges because there was “no[] dispute that Kings County has jurisdiction over the

conspiracy [to falsify business records] count in the indictment based on the commission of overt

acts in that county”).

       The lack of prejudice is further supported by the fact that Whitehead’s co-defendant,

Kenneth Williams, made a pre-trial motion to dismiss the indictment on venue grounds, which was

denied. Williams was also charged with the same conspiracy, see Suppl. App’x at 3–4 (Count 1),

and four substantive counts of possessing or selling cocaine, see 

 at 99–102 (Counts 223, 227–

29). Before trial, Williams moved to dismiss Counts 223 and 227–29 for lack of venue, arguing

that none of those counts contained allegations that Williams “performed any acts in Albany


                                               10
County, which would sustain jurisdiction on Albany County.” Williams v. Collins, No. 22-cv-

1405 (N.D.N.Y. Dec. 29, 2022), ECF No. 16-8, at 123, ¶ 18. The trial court denied Williams’s

motion, concluding that, even though the substantive counts “are alleged to have occurred in either

New York or Orange counties, venue here is based on the conspiracy . . . and therefore venue is

proper in the county in which the conspiracy was entered into or any county in which an overt act

by defendant or a coconspirator occurred.” 

 at 130–31.

       Any venue challenge at trial would have been similarly unsuccessful because the jury was

properly instructed on that theory of venue and made a finding of venue, in accordance with the

instruction, that was supported by the trial evidence. “In order to sustain jurisdiction over the

conspiracy and substantive charges against defendants, the People were required to prove by a

preponderance of the evidence the commission of an overt act in [Albany] County by a member

of the conspiracy with whom defendant had agreed to engage in criminal conduct.” People v.

Sosnik, 

 (1991). Here, at Whitehead’s request, the trial court instructed the

jury that “before [they] begin [their] deliberations on whether the People have proven the

defendants’ guilt beyond a reasonable doubt of each crime charged in this indictment [they] must

first determine whether the County of Albany is the proper venue or place to prosecute those

crimes.” Whitehead v. LaManna, No. 18-cv-1436 (N.D.N.Y. Dec. 12, 2018), ECF No. 7-9, at 24.

The court further instructed the jury that:

       [A] person may be convicted in this county of an offense committed by that
       person’s own conduct or by the conduct of another with whom he was acting in
       concert when such conduct occurred within this county sufficient to establish . . . a
       conspiracy to commit such offense.

       [I]n order for you to find the defendant guilty of this [conspiracy] the People are
       required to prove from all the evidence in the case beyond a reasonable doubt
       . . . [t]hat the defendant or one of the persons with whom he agreed to engage in or
       cause the performance of such conduct committed at least one overt act in Albany
       County in furtherance of the conspiracy.

                                                11
Id. at 24, 33–34. The jury found venue was proper, and returned a verdict of guilty on all counts.

Indeed, Whitehead does not argue that there was any error in the venue instruction, nor does he

assert that the jury’s finding on venue lacked sufficient evidentiary support.

          In sum, on this record, Whitehead’s appellate counsel would not have prevailed on a claim

that trial counsel was ineffective for failing to move to dismiss Counts 225–29 for lack of

“particular effect” venue under 

(2)(c). Venue on those counts was

based on the charged conspiracy under 

(1)(b), and there was no defect

in the indictment under that venue theory, which was subsequently found to be proven by the jury

as to each count based on a proper venue instruction under New York law. Thus, because the

New York State courts did not unreasonably apply Strickland in rejecting the ineffective assistance

claim, the district court erred in granting the habeas petition and abused its discretion in denying

the reconsideration motion on the ground of waiver.

                           *                      *                      *

          We have considered Whitehead’s remaining arguments and find them to be without merit.

Accordingly, we REVERSE the judgment and order of the district court, and the case is remanded

to the district court with instructions that it enter an order denying Whitehead’s petition for habeas

corpus.

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




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