Key v. United States

Background

In 2015, a jury convicted Roger Key of six drug-trafficking-related charges and two conspiracies to commit murder for hire. The court originally sentenced him to life imprisonment plus 30 years. After the Second Circuit vacated Key’s conviction on Count Five under the rule announced in United States v. Davis, the court resentenced him to 45 years in prison, 10 years of supervised release, and a $16.2 million forfeiture. The Second Circuit affirmed that judgment and sentence.

In June 2024, Key filed the current motion without a lawyer under 28 U.S.C. § 2255, which permits a federal prisoner to seek correction of a sentence based on a constitutional violation. He claimed that his lawyers provided ineffective assistance. Under Strickland v. Washington, he had to show both that counsel’s performance fell below reasonable professional standards and that the alleged error probably affected the result.

Key’s Claims and the Court’s Rulings

Babilonia’s testimony. Key argued that trial counsel, Gerald McMahon, falsely told the court that codefendant Aisha Babilonia would invoke her right against self-incrimination and would not testify. He also argued that counsel should have subpoenaed her. The court found that Babilonia’s lawyer had repeatedly represented that she would not testify and that McMahon accurately reported that information. Letters Babilonia wrote months and years after trial did not establish that McMahon had made a false statement. The court also found that Key did not show a reasonable probability that Babilonia’s testimony would have changed the trial. The court rejected both of these grounds.

Forfeiture. Key argued that attorney Aaron Mysliwiec failed to challenge the factual basis for the government’s forfeiture request at resentencing and failed to object to the $16.2 million calculation. The court held that this claim was procedurally barred by the mandate rule, which prevents a party from relitigating an issue already decided on direct appeal. The Second Circuit had already upheld the forfeiture amount as a reasonable estimate based on the trial testimony and other information. The court rejected this ground as procedurally barred.

Interstate-commerce element. Key argued that trial counsel should have challenged whether his use of a cell phone sufficiently established the interstate-commerce element of the murder-for-hire charges. The court found that counsel made strategic decisions about which elements to challenge, objected frequently, and advocated for Key. It held that Key had not shown that those strategic choices were objectively unreasonable and rejected this ground.

Government’s closing argument. Key argued that counsel should have objected to the government’s statements that certain evidence was cocaine or cocaine residue and claimed that the statements violated the rule against testimonial statements discussed in Crawford v. Washington. The court noted that statements by attorneys are not evidence, that Key did not identify specific improper statements, and that attorney statements are not testimonial statements under Crawford. Because Key also did not show prejudice, the court rejected this ground.

Evidentiary Hearing and Disposition

Key requested an evidentiary hearing. The court denied that request because he did not present specific facts supported by competent evidence showing disputed factual issues that could entitle him to relief.

The court denied Key’s § 2255 motion. It also ruled that no certificate of appealability would issue because Key had not made a substantial showing that a constitutional right was denied, and it certified that any appeal would not be taken in good faith.