Awulye v. United States

Background

Prince Awulye sought relief under 28 U.S.C. § 2255, a procedure allowing a person in federal custody to challenge a conviction or sentence on specified constitutional, jurisdictional, or fundamental legal grounds. He challenged his conviction and sentence for participating in two conspiracies to distribute and possess heroin with the intent to distribute it. The two conspiracies involved conduct in 2010 and 2012.

The court described evidence that Awulye transported approximately one kilogram of heroin from Ghana to New York in 2010 and delivered it to David Amoah. In 2012, Awulye picked up and delivered bags that he believed contained heroin but that actually contained sham heroin supplied by undercover federal agents. A jury convicted him on both counts. The court later sentenced him principally to 10 years in prison. The Second Circuit affirmed the conviction, and the Supreme Court denied review.

Claims and Legal Standards

Awulye, proceeding without a lawyer, raised three claims of ineffective assistance of trial counsel and one claim that the jury instructions improperly changed the indictment. To establish ineffective assistance, he had to show both that counsel’s performance fell below reasonable professional standards and that the deficient performance probably affected the result.

Failure to Relay a Plea Offer

Awulye claimed that his lawyer failed to tell him about a government plea offer. The court rejected the claim because the trial record showed that, at a July 23, 2014 pretrial conference, Awulye acknowledged in open court that the offer had been conveyed and that he chose not to accept it.

Challenges to the Sufficiency of the Evidence

Awulye argued that counsel should have fully challenged the evidence under Rule 29, which permits a defendant to seek a judgment of acquittal when the evidence is legally insufficient. The court understood his argument primarily as asserting that counsel should have made a Rule 29 motion on the 2012 conspiracy count.

The court held that counsel was not required to file a motion lacking a valid basis. It found overwhelming evidence supporting the 2012 conviction, including recordings, photographs, testimony from Amoah and Julian Byamugisha, and Awulye’s attempt to leave the country shortly before trial. The court also noted that it had previously found the evidence sufficient and that the Second Circuit had rejected the sufficiency challenge.

As to the 2010 count, the court found counsel’s Rule 29 motions reasonable and concluded that the evidence was overwhelming, including testimony from Amoah and Ebenezer Barnes and recorded calls about retrieving heroin from Ghana. The court therefore found neither unreasonable performance nor prejudice.

Failure to Object to the Government’s Closing Arguments

Awulye argued that counsel should have objected when the government vouched for the credibility of witnesses Amoah and Barnes during closing arguments. The court explained that improper vouching occurs when a lawyer improperly personally assures the jury that a witness is credible, but that prosecutors may discuss evidence supporting a witness’s testimony and respond to attacks on the witness’s credibility.

The court found that the government’s statements referred to trial evidence and responded to defense arguments portraying the government’s witnesses as dishonest or motivated to cooperate. Because the statements were permissible, counsel’s failure to object was not unreasonable. The court also found no prejudice because an objection would have been overruled and the evidence was exceptionally strong.

Claim That the Indictment Was Changed

Awulye argued that the jury instructions constructively amended the indictment. A constructive amendment occurs when the trial effectively changes the charged offense so that the defendant may be convicted on a basis not presented to the grand jury.

The court first held that Awulye had procedurally forfeited this claim by failing to raise it on direct appeal. It then addressed the claim anyway and rejected it on the merits. The court held that the indictment charged conspiracies to distribute and possess heroin with intent to distribute it, and that the trial evidence closely matched those charges. Although Awulye argued that the evidence showed importation rather than distribution, the court found that the evidence established that the heroin was transported for distribution in the United States and that the allegations and proof substantially corresponded.

Disposition

Judge Richard J. Sullivan denied the § 2255 petition. The court declined to issue a certificate of appealability because Awulye had not made a substantial showing that a constitutional right was denied. It also certified that an appeal would not be taken in good faith, meaning Awulye could not pursue an appeal without paying the required filing costs. The court directed the clerk to close the civil case and mail Awulye a copy of the order.