Russell v. United States

Background

Donnell Russell filed a motion under 28 U.S.C. § 2255, a procedure that allows a federal prisoner to ask the sentencing court to vacate, set aside, or correct a sentence on specified legal grounds. Russell represented himself when he filed the motion. He claimed that his trial lawyer, Michael Freedman, provided ineffective assistance of counsel.

Russell had been charged with conspiring to send a threatening communication in interstate commerce and with sending a threatening communication in interstate commerce. The charges arose from a threatening phone call to NeueHouse during a screening of “Surviving R. Kelly” on December 4, 2018. At trial, the Government presented evidence connecting Russell to the call, including phone records, caller-identification information, cell-site data, Russell’s earlier efforts to stop the screening, and a text message sent shortly before the threat call. The jury found Russell guilty of the substantive threatening-communication charge and not guilty of conspiracy. The court later sentenced him to one year in prison, to run concurrently with a twenty-month sentence imposed in a related case in the Eastern District of New York.

Russell’s Claim About His Right to Testify

Russell argued that Freedman failed to advise him of his right to testify and failed to honor his supposed decision to testify. The court rejected this claim because the trial record directly contradicted it. Before the defense case, the court asked Russell whether he had discussed testifying with Freedman, whether he understood that he had an absolute right to testify, and whether he had decided, after those discussions, that testifying was not in his interest. Russell answered affirmatively to each question.

Freedman’s affidavit also stated that he had repeatedly explained Russell’s right to testify, that the decision belonged to Russell, and that they continued discussing the issue during trial. The affidavit described a text exchange shortly before trial in which Freedman expressed the view that testifying would add little and could expose Russell to risks, and Russell responded with a thumbs-up emoji.

The court additionally held that Russell had not shown prejudice, meaning a reasonable probability that the alleged attorney error affected the outcome. The court characterized the evidence tying Russell to the threat call as overwhelming and found that Russell’s proposed testimony would have been largely a denial that did not address that evidence. The court also accepted Freedman’s explanation that testifying could have exposed Russell to cross-examination and other damaging issues, including problems involving a subpoena for documents and communications.

Claim Concerning Michael Williams

Russell also argued that Freedman should have investigated and presented more evidence that Michael Williams made the threat call. The court found that Freedman had, contrary to Russell’s assertion, presented information about Williams. During cross-examination, Freedman elicited that Williams’s phone had called NeueHouse earlier that evening, that Williams’s number ended in digits similar to Russell’s number, and that investigators had not focused on Williams as a possible suspect. Freedman also argued in summation that the evidence concerning Williams created reasonable doubt and raised the same point in a request for a judgment of acquittal.

The court found that Freedman had reasonable strategic reasons for not making Williams the centerpiece of the defense. Williams’s call occurred substantially earlier than the threat call and had different timing characteristics. The court also accepted Freedman’s concerns that further evidence about Williams’s conduct, R. Kelly, and Russell’s separate case could have introduced inflammatory material, associated Russell with Williams, or exposed other damaging evidence.

The court further held that Russell had not identified additional exculpatory evidence—that is, evidence tending to show his innocence—that further investigation would have uncovered. It therefore concluded that Russell had not shown either deficient performance or prejudice under the two-part test for ineffective assistance of counsel.

Evidentiary Hearing and Disposition

Russell requested an evidentiary hearing. The court denied that request because the trial record contradicted both grounds for relief and was sufficient to resolve the motion. The court noted that Russell had acknowledged his decision not to testify after consulting Freedman, and that the record showed Freedman had presented and argued evidence concerning Williams.

The court denied Russell’s § 2255 petition. It also stated that Russell had not made the required substantial showing that he was denied a constitutional right, so a certificate of appealability would not issue. The court certified that an appeal would not be taken in good faith and denied permission to appeal without paying filing fees. The Clerk of Court was directed to close the case.