Grecco v. United States

Background

Anthony Grecco filed a petition under 28 U.S.C. § 2255, which allows a person in federal custody to ask the sentencing court to vacate, set aside, or correct a conviction or sentence in limited circumstances. Grecco challenged his 2016 judgment of conviction and life sentence for narcotics conspiracy, Hobbs Act robbery, and Travel Act murder. A jury found him guilty on all five counts charged in the operative indictment.

The government’s trial evidence included testimony from cooperating and immunized witnesses, cellphone records, crime-scene evidence, and evidence concerning a knife Grecco obtained on the day of the killing. Grecco testified that he did not rob or harm Ryan Ennis and presented a theory that Sean Ingram committed the murder and that Ingram and Andrea Beatty framed him. The Second Circuit later affirmed the conviction on direct appeal.

Grecco’s claims

Grecco alleged ineffective assistance of counsel, meaning that his lawyers performed unreasonably and that their performance prejudiced him. His claims concerned:

- Trial counsel’s failure to call an expert about drug use and memory, or to prevent testimony by witnesses with histories of drug use. - Trial counsel’s failure to seek suppression of Grecco’s post-arrest statements based on alleged intoxication or drug use, and an alleged agreement about cross-examination. - Trial counsel’s failure to seek a continuance after a superseding indictment. - Trial counsel’s failure to object to the positioning and movement of United States Marshals in the courtroom. - Trial counsel’s failure to object to witnesses’ testimony about their incarceration. - Grecco’s detention on state narcotics charges. - Trial counsel’s failure to call a crime-scene expert. - Trial counsel’s failure to object to photographs of Ennis’s body. - Trial counsel’s alleged failure to prepare Grecco to testify. - Appellate counsel’s failure to challenge the sufficiency of the evidence. - Trial counsel’s failure to object to the government’s opening statement. - Trial counsel’s handling of jury selection. - Trial counsel’s advice and conduct during plea negotiations.

Court’s analysis

Judge Karas concluded that counsel’s decisions were reasonable trial or appellate strategy and that Grecco failed to show prejudice. Counsel had extensively cross-examined the government’s witnesses about drug use, dishonesty, inconsistent accounts, cooperation benefits, and other credibility issues. The court found that a drug expert was unnecessary and that calling one might have conflicted with the defense theory that Ingram and Beatty were lying rather than simply misremembering events.

The court also concluded that counsel had no sufficient basis to challenge the post-arrest statements because the government did not use them in its case-in-chief. Grecco’s decision to testify allowed the government to use the statements for impeachment. The court found that his unsupported claim about a supposed agreement concerning cross-examination was insufficient.

Regarding the superseding indictment, the court found that the final indictment was filed 28 days before trial, not four days before trial, and that Grecco had already faced a possible life sentence under earlier indictments. The final indictment did not add evidence or otherwise prejudice him. The court further found nothing improper or prejudicial about the Marshals’ plainclothes courtroom presence, no supported basis for challenging testimony about witnesses’ incarceration, and no basis to use this federal proceeding to challenge counsel’s performance in a separate state case.

The court found that counsel made a reasonable choice not to call a crime-scene expert after effectively cross-examining the government’s crime-scene witness. It also found no ineffective assistance concerning the photographs because the court had already ruled on their admissibility and excluded the most graphic photograph. The record contradicted Grecco’s claim that counsel failed to prepare him to testify, and he did not show that further preparation would have changed the outcome.

The court concluded that an appeal challenging the sufficiency of the evidence would have been meritless because the trial evidence was more than sufficient for a rational jury to find guilt beyond a reasonable doubt. It also found that the government’s opening statement was proper and that Grecco identified no evidence of actual juror bias or a basis for requiring the challenged jurors to be removed.

On plea negotiations, the court found that the government never made a 20-year offer and that Grecco had not shown he would have accepted one. The government did make a written offer capping sentencing exposure at 30 years, and the court found that Grecco was informed that rejecting it could lead to a superseding Travel Act murder charge and a possible life sentence. The court held that counsel’s advice that an acquittal was possible was not objectively unreasonable.

Disposition

The court denied Grecco’s § 2255 petition. In the conclusion, it stated that the petition was dismissed with prejudice, directed the clerk to enter judgment for the United States and close the civil case, and found that appellate review was not warranted and that any appeal would not be taken in good faith. Judge Karas signed the opinion on September 27, 2023.