Marley v. United States

Background

Jason Marley, representing himself, filed a petition under 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his sentence. He had been convicted by a jury on both counts in a superseding indictment and sentenced to 13 years in prison followed by five years of supervised release. On direct appeal, the appeals court upheld the denial of his motion to suppress evidence related to cellphone tracking and rejected his claim that agents had searched his phone without a warrant.

Marley raised three main categories of claims: ineffective assistance by his former attorneys, prosecutorial misconduct, and newly discovered evidence supposedly supporting actual innocence. The Government argued that the petition was untimely and lacked merit.

Timeliness

The court held that the petition was timely. Ordinarily, Marley’s deadline would have been one year after April 14, 2020, based on the time for seeking review by the Supreme Court. But the Supreme Court extended the deadline for certain petitions during the COVID-19 pandemic from 90 days to 150 days after the lower appellate court’s decision. The court therefore calculated that Marley’s deadline was June 13, 2021. Because he filed on May 14, 2021, the court considered the petition on the merits where appropriate.

Ineffective assistance of counsel

To prove ineffective assistance, Marley had to show both that his lawyer’s performance fell below reasonable professional standards and that the alleged error probably affected the result. The court rejected Marley’s claims concerning Mark Cohen, his initial retained lawyer. Marley alleged that Cohen failed to investigate an alibi, misled him about discovery, falsely told him that the Government had withheld favorable evidence, and had a conflict of interest. The court found these allegations conclusory, lacking specific supporting facts, or unsupported by evidence of prejudice.

The court also rejected Marley’s claims concerning Bryan Konoski, his appointed trial lawyer. Marley alleged that Konoski failed to investigate potentially exculpatory evidence, failed to call a phone-company expert at the suppression hearing, failed to review certain Government witness material with him before trial, and entered into an unauthorized stipulation. The court found that Marley did not identify what evidence or expert testimony would have been produced or explain how it would have changed the outcome. It also held that the material at issue did not have to be provided before a witness testified and that trial stipulations are generally strategic decisions unless exceptional circumstances are shown.

Some of Marley’s claims concerning the alleged warrantless phone search were barred by the mandate rule, which prevents a district court from reconsidering issues that an appellate decision resolved expressly or necessarily rejected. The court held that the appeals court’s determination that the phone search had not occurred prevented Marley from recasting that issue as an ineffective-assistance claim.

Prosecutorial misconduct

Marley alleged that prosecutors failed to disclose favorable evidence and knowingly presented false testimony. Because he had not raised these claims on direct appeal, the court held that they were procedurally defaulted. Procedural default generally prevents a prisoner from raising a claim for the first time in a later collateral challenge unless he shows a legally sufficient reason for the omission and resulting harm, or establishes actual innocence. The court found that Marley had shown none of these exceptions.

The court additionally held that the alleged false-testimony claim was barred or meritless. To the extent the claim concerned Special Agent Luna’s testimony about an undercover call, the court found that the earlier appellate decision had necessarily rejected the factual basis for Marley’s allegation. Separately, Marley did not identify specific false testimony, show that any testimony was material, or establish that the Government knew it was false. His claim that the Government withheld favorable evidence also failed because he identified neither the evidence nor how disclosure would probably have changed the result.

Newly discovered evidence and actual innocence

Marley identified alleged false testimony by Special Agent Luna, supposed Government manipulation of the location where the crimes occurred, and alleged use of “parallel construction” to hide how the investigation began. The court held that the claim about Luna’s testimony was not new and was already barred by the earlier appellate ruling. It rejected the venue claim because the place where a crime occurred does not establish factual innocence, and it found independent evidence supporting venue in the Southern District of New York. The court also held that the parallel-construction allegation was procedurally defaulted and too vague and unsupported to justify an evidentiary hearing.

Disposition

The court denied the § 2255 petition. It declined to issue a certificate of appealability because Marley had not made a substantial showing that his constitutional rights were denied. It also denied permission to proceed with an appeal without paying filing fees, directed the Clerk to terminate the motion associated with the criminal case, and closed the civil case.