Mercedes v. United States

Background

Leibys Mercedes, proceeding without a lawyer, sought relief under 28 U.S.C. § 2255 from his conviction for conspiring to distribute and possess with intent to distribute 100 grams or more of heroin. A jury found him guilty in November 2018, and the court imposed a below-Guidelines sentence of 180 months’ imprisonment. The Second Circuit affirmed the conviction in a summary order.

Mercedes alleged that three attorneys—trial attorneys Chukwuemeka Nwokoro and Bruce Koffsky, and appellate attorney Lawrence Gerzog—were constitutionally ineffective. He argued that Nwokoro and Gerzog failed to challenge the timing of the superseding indictments; that Nwokoro failed to investigate or prove that no criminal act occurred in the locations Mercedes believed were relevant; that Koffsky and Nwokoro failed to object to the Government’s use of the grand jury as an investigative body; and that Gerzog failed to raise the district court’s alleged failure to resolve two motions to strike the superseding indictments.

Legal Standard

The court applied the two-part test for ineffective assistance of counsel established in Strickland v. Washington. Mercedes had to show both that his attorneys’ performance fell below reasonable professional standards and that their errors probably affected the result. A § 2255 petition may be decided without a hearing when the motion and existing court records show that the prisoner is not entitled to relief.

Court’s Analysis

Speedy Trial Act. Mercedes argued that the superseding indictments were filed more than 30 days after his arrest. The court held that there was no violation. The superseding indictments charged the same narcotics-conspiracy offenses as the original indictment, although they expanded the charged time period, so they inherited the original indictment’s 30-day clock. The court also held that Mercedes could not show prejudice because he was initially charged by indictment, not by a criminal complaint; under the applicable statute, the dismissal remedy would not have applied even if there had been a violation.

Venue and location of the conduct. The court rejected Mercedes’s argument that his attorney should have investigated whether the charged conduct occurred in the District of Columbia or on federally owned or controlled land. The narcotics statutes at issue did not limit prosecution to those locations. The court explained that at least part of the charged conduct had to occur in the district where the case was prosecuted, and found that requirement satisfied because the indictments charged conduct occurring at least in part in the Southern District of New York. The jury was instructed that it had to find that at least one act furthering the conspiracy occurred in that district. The court therefore concluded that the proposed investigation would not have provided a defense.

Grand-jury investigation. The court held that Mercedes had not identified evidence obtained through an improper use of the grand jury after the superseding indictments. It explained that a grand jury generally has an investigative role and may continue investigating, including to prepare superseding indictments, although it may not be used solely or mainly to prepare for trial under a pending indictment. The court also held that any alleged defect in the grand-jury presentation was harmless after the trial jury found Mercedes guilty. Because Mercedes identified no actionable misconduct or prejudice, counsel was not ineffective for failing to raise this issue.

Motions to strike. The court found that Mercedes’s assertion that two motions to strike remained unresolved was incorrect. It had addressed the motion concerning the first superseding indictment before trial and denied the motion concerning the second superseding indictment. The court further stated that Mercedes had not explained what prejudice resulted or identified a potentially meritorious appellate argument.

Disposition

The court concluded that Mercedes had not shown deficient performance or prejudice from his trial or appellate counsel. It dismissed the petition with prejudice, entered judgment for the United States, directed the Clerk to close the civil case, declined to issue a certificate of appealability, and certified that an appeal from the judgment on the merits would not be taken in good faith.