16

‐ 2735

‐ cv(L)

Saxon v. United States

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A

SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY

F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1.

W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST

CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION

ʺ SUMMARY ORDER ʺ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON

ANY PARTY NOT REPRESENTED BY COUNSEL

.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in

the City of New York, on the 13 th day of June, two thousand seventeen.

PRESENT: DENNY CHIN,

RAYMOND J. LOHIER, JR.,

Circuit Judges

, COLLEEN McMAHON,

Chief District Judge

. *

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

TORRELL M. SAXON,

Petitioner

‐ Appellant

,

v. 16

‐ 2735

‐ cv(L)

16

‐ 2736

‐ cv(con)

UNITED STATES OF AMERICA,

Respondent

‐ Appellee

.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

* Chief Judge Colleen McMahon, of the United States District Court for the

Southern District of New York, sitting by designation.‐ 2

‐ FOR PETITIONER

‐ APPELLANT: BENJAMIN GRUENSTEIN, Cravath, Swaine &

Moore LLP, New York, New York.

FOR RESPONDENT

‐ APPELLEE: DANIELLE RENEE SASSOON, Assistant

United States A tt orney (Margaret Garne tt

, Assistant United States A tt orney, on the brief ),

for Joon H. Kim, Acting United States A tt orney

for the Southern District of New York, New

York, New York.

Appeal from the United States District Court for the Southern District of

New York (Ramos, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the order of the district court is AFFIRMED

.

Petitioner

‐ appellant Torrell Saxon appeals the denial of his 28 U.S.C.

§ 2255 motion, which sought vacatur of a July 25, 2013 judgment of conviction on two

narcotics distribution charges on grounds that his lawyer was constitutionally

ine ff ective in negotiating his plea agreement. We assume the parties ʹ familiarity with

the underlying facts, procedural history, and issues on appeal, which we reference only

as necessary to explain our decision to a ffi rm.

BACKGROUND

On March 25, 2012, a man in Middletown, New York called 911 to report

that Saxon had a tt empted to rob him and others in the man ʹ s home, had shot at one of

them, but had been subdued. O ffi cers arrived at the scene, found a gun, and arrested

Saxon.‐ 3

‐ On April 23, 2012, Saxon was indicted on one count of illegal possession of

a fi rearm under 18 U.S.C. § 922(g)(1). The indictment also sought a fi fteen

‐ year

mandatory minimum sentence under the Armed Career Criminal Act ( ʺ ACCA ʺ ), 18

U.S.C. § 924(e), which applies to defendants who have ʺ three previous convictions

. . .

for a violent felony or a serious drug o ff ense, or both, commi tt ed on occasions di ff erent

from one another. ʺ 18 U.S.C. § 924(e). Saxon has three New York state convictions: two

fi rst

‐ degree robbery convictions from 2000 and a 1996 conviction for third

‐ degree

criminal sale of a controlled substance.

Saxon was appointed counsel from the Federal Defenders of New York.

During the course of the representation, Saxon relayed to counsel that his primary

concern was the ACCA enhancement: He wanted to avoid conviction on any charge

with a fi fteen

‐ year mandatory minimum. Nonetheless, counsel never researched

whether Saxon was eligible for the ACCA enhancement. Instead, she assumed he was

eligible and advised that he make an ʺ Innocence Pro ff er ʺ ʺ where [Saxon] would tell his

side of the story to the [G]overnment without any protections. ʺ J. App. 297. She

believed the Government could be persuaded to drop the gun charge. Saxon agreed to

this strategy. He pro ff ered to the Government that he went to the house to sell drugs,

but claimed that the inhabitants of the residence robbed him at gunpoint and that he

never possessed a gun on the night of his arrest.‐ 4

‐ The strategy worked. A plea agreement was entered pursuant to which

the Government dismissed the gun charge and the ACCA enhancement in exchange for

Saxon ʹ s guilty plea to two narcotics distribution charges. The plea agreement stipulated

to a Guidelines range of 151 to 188 months and reserved the Government ʹ s right to seek

a two

‐ level sentencing enhancement for fi rearm possession after a Fatico hearing. The

two

‐ level enhancement would not have actually a ff ected Saxon ʹ s Guidelines range; his

status as a career o ff ender rendered irrelevant the two

‐ level enhancement in

determining his sentencing range of 151 to 188 months.

Although Saxon pleaded guilty on December 21, 2012, he later tried to

withdraw the plea because of the possible two

‐ level enhancement. He was adamant

that he did not have a gun on the night of his arrest. Counsel advised against

withdrawing the plea because it would expose Saxon to the fi fteen

‐ year mandatory

minimum ACCA enhancement again. On April 9, 2013, counsel informed the district

court that she had advised Saxon not to withdraw his plea, and Saxon con fi rmed that he

would follow her advice.

On May 30, 2013, after a Fatico hearing, the district court found by a

preponderance of the evidence that Saxon possessed and fired a gun on the night of his

arrest. Accordingly, the district court applied the two

‐ level enhancement for possession

of the firearm. Nonetheless, the district court sentenced Saxon to 120 months ʹ

imprisonment, below the stipulated Guidelines range of 151 to 188 months.‐ 5

‐ On July 16, 2013 and January 27, 2014, Saxon filed § 2255 motions alleging

ineffective assistance of counsel. On September 3, 2015, Saxon, represented by counsel

appointed pursuant to the Criminal Justice Act, filed a brief raising the ACCA eligibility

issue.

Saxon claimed that counsel was ine ff ective because she incorrectly

assumed that the ACCA enhancement applied to him. The district court agreed,

concluding that because of counsel ʹ s ʺ apparent lack of research

. . . and her a tt endant

failure to assert ʺ a meritorious argument that Saxon was ineligible for the enhancement,

counsel ʹ s representation ʺ fell below an objective standard of reasonableness and thus

constituted ine ff ective performance. ʺ Special App. 20.

Speci fi cally, the district court faulted counsel for failing to raise an

argument premised on a footnote in McNeill v. United States

, 563 U.S. 816, 825 n.1 (2011).

McNeill held that, when a state prospectively reduces the maximum term of

imprisonment for a drug o ff ense, a court must look to the maximum term for such

o ff ense at the time of defendant ʹ s conviction in determining whether the o ff ense is a

ʺ serious drug o ff ense ʺ under the ACCA, 18 U.S.C. § 924(e)(2)(A)(ii). See 563 U.S. at 825.

In a footnote, however, the Supreme Court noted that it was not deciding ʺ whether or

under what circumstances a federal court could consider the e ff ect of [] state action ʺ that

ʺ subsequently lowers the maximum penalty applicable to an o ff ense and makes that‐ 6

‐ reduction available to all defendants previously convicted and sentenced for that

o ff ense. ʺ Id. at 825 n.1.

The district court reasoned that, because New York ʹ s Drug Law Reform

Act of 2009 reduced the maximum term of imprisonment for third

‐ degree criminal sale

of a controlled substance from twenty

‐ fi ve years to nine years and made that reduction

available to a subset of previously convicted defendants, whether Saxon ʹ s 1996 narcotics

conviction quali fi ed as a ʺ serious drug o ff ense ʺ under the ACCA was a question left

open by the McNeill footnote. Following the rulings of two other judges in the Southern

District of New York, see United States v. Calix

, No. 13 Cr 582 (RPP), 2014 WL 2084098, at

*11

‐ 15 (S.D.N.Y. May 13, 2014), and United States v. Jackson

, No. 13 Cr 142 (PAC), 2013

WL 4744828, at *3

‐ 6 (S.D.N.Y. Sept. 4, 2013), the district court held that Saxon ʹ s 1996

narcotics conviction was not a ʺ serious drug o ff ense. ʺ 1 Accordingly, the district court

concluded that ACCA ʹ s fi fteen

‐ year mandatory minimum was inapplicable to Saxon

because he had only two quali fi ng predicate o ff enses (the 2000 robbery convictions)

and, thus, counsel ʹ s failure to research Saxon ʹ s ACCA eligibility amounted to ine ff ective

assistance of counsel under the Sixth Amendment.

Nevertheless, the district court held that Saxon was not prejudiced by

counsel ʹ s error because the Government pro ff ered that it would have superseded to add

additional charges to raise Saxon ʹ s Guidelines fl oor if the ACCA enhancement were

1 Both of those rulings were issued after Saxon pleaded guilty and was sentenced.‐ 7

‐ dismissed. On that basis, the district court concluded there was no reasonable

probability that Saxon would have gone to trial or secured a di ff erent plea deal.

Therefore, it denied the § 2255 motion.

On August 4, 2016, the district court issued a Certi fi cate of Appealability

( ʺ COA ʺ ) on the issue of ʺ [w]hether, under the second prong of Strickland

, Petitioner was

prejudiced by his counsel ʹ s failure to challenge the application of the ACCA to his [prior

drug] conviction. ʺ Special App. 37. Saxon timely appealed.

DISCUSSION

ʺ On appeal from a district court ʹ s denial of habeas relief under 28 U.S.C.

§ 2255, we review factual fi ndings for clear error and conclusions of law de novo

. ʺ

Harrington v. United States

, 689 F.3d 124, 129 (2d Cir. 2012). The Government is ʺ entitled

to seek a ffi rmance on any ground available in the record and to do so need not have

sought a COA,

. . . nor fi led a cross

‐ appeal. ʺ Cornell v. Kirkpatrick

, 665 F.3d 369, 377 n.6

(2d Cir. 2011) (citation omi tt ed).

The Sixth Amendment grants criminal defendants ʺ the right to the

e ff ective assistance of counsel. ʺ Strickland v. Washington

, 466 U.S. 668, 686 (1984)

(quoting McMann v. Richardson

, 397 U.S. 759, 771 n. 14 (1970)). To prevail on a claim of

ine ff ective assistance of counsel, a defendant must show that (1) ʺ counsel ʹ s performance

was de fi cient ʺ and (2) ʺ the de fi cient performance prejudiced the defense. ʺ Id. at 687. As

to the fi rst element, the Supreme Court recently noted that the Constitution ʺ sets a high‐ 8

‐ bar ʺ for defendants claiming inadequate counsel. Buck v. Davis

, 137 S. Ct. 759, 775

(2017). Because ʺ [a] defense lawyer navigating a criminal proceeding faces any number

of choices about how best to make a client ʹ s case, ʺ id.

, we evaluate counsel ʹ s ʺ actions in

light of the law and circumstances confronting counsel at the time ʺ of the claimed

inadequacy. Harrington

, 689 F.3d at 129. We apply a ʺ strong presumption that counsel ʹ s

conduct falls within the wide range of reasonable professional assistance. ʺ Strickland

,

466 U.S. at 689. At its core, the ʺ question at this step is not whether counsel ʹ deviated

from best practices or most common custom, ʹ but whether [counsel ʹ s] ʹ representation

amounted to incompetence under prevailing professional norms. ʹʺ Harrington

, 689 F.3d

at 129

‐ 30 (quoting Harrington v. Richter

, 562 U.S. 86, 105 (2011)).

Applying this standard, we have noted that ʺ omissions [that] cannot be

explained convincingly as resulting from a sound trial strategy, but instead arose from

oversight, carelessness, ineptitude, or laziness ʺ are errors indicative of de fi cient

performance. Eze v. Senkowski

, 321 F.3d 110, 112 (2d Cir. 2003). For example, we have

held that failing to research the relevant law and thus overlooking favorable controlling

precedent from a state ʹ s highest court is de fi cient performance. Cornell

, 665 F.3d at 379

‐

80. Nonetheless, the Sixth Amendment does not require counsel to anticipate changes

in the law or make objections based on ʺ developments in the law that occurred after

[defendant ʹ s trial]. ʺ McCoy v. United States

, 707 F.3d 184, 187 (2d Cir. 2013) (per curiam)

(emphasis omi tt ed); see also Tellado v. United States

, 745 F.3d 48, 55 (2d Cir. 2014).‐ 9

‐ Here, taking counsel ʹ s actions in light of the law and circumstances

confronting her at the time she advised Saxon to accept the plea deal, we conclude that

her representation was constitutionally adequate. See Harrington

, 689 F.3d at 129

‐ 32.

Just a year and a half before Saxon ʹ s plea negotiations, the Supreme Court held in

McNeill that under ACCA ʺ the ʹ maximum term of imprisonment ʹ for a defendant ʹ s prior

state drug o ff ense is the maximum sentence applicable to his o ff ense when he was

convicted of it

. ʺ McNeill

, 563 U.S. at 818 (emphasis added). McNeill abrogated our

decision in United States v. Darden

, 539 F.3d 116 (2d Cir. 2008), in which we held that

courts should examine state law in e ff ect at the time of a defendant ʹ s federal sentencing.

See Rivera v. United States

, 716 F.3d 685, 690 (2d Cir. 2013) (rejecting petitioner ʹ s reliance

on Darden because ʺ McNeill abrogated Darden ʺ ). Therefore, as the district court noted, a

ʺ straightforward application of McNeill would

. . . dictate that [Saxon ʹ s] conviction

constituted a ʹ serious drug o ff ense ʹ for ACCA purposes because the maximum term of

imprisonment was more than ten years in 1996, ʺ when he was convicted. Special App.

10 (emphasis added).

Saxon argues that the Sixth Amendment obliged counsel to push beyond

this ʺ straightforward application ʺ because of the aforementioned footnote in McNeill

.

But even assuming that Saxon is correct about the import of that footnote

‐‐ which is far

from clear

‐‐ we conclude that counsel was not ine ff ective in failing to contest Saxon ʹ s

ACCA eligibility on that ground because ʺ an a tt orney is not required to forecast‐ 10

‐ changes or advances in the law in order to provide e ff ective assistance. ʺ United States v.

Kimber

, 777 F.3d 553, 563 (2d Cir. 2015) (emphasis added) (quoting McCoy

, 707 F.3d at

188) (rejecting claim of ine ff ective assistance of counsel premised on counsel ʹ s failure to

argue that a criminal statute did not cover his ʺ local ʺ conduct because, at the time of

petitioner ʹ s guilty plea, ʺ no federal appellate court, let alone the Supreme Court, had

held that [the relevant statute] did not reach conduct that might be described as ʹ local ʹʺ ).

This is true even where ʺ the bedrock elements of the argument ʺ supporting petitioner ʹ s

position were available to counsel at the time of her alleged incompetence. Tellado

, 745

F.3d at 55. Moreover, here, counsel consulted with her supervisor at Federal Defenders

about the Innocence Pro ff er strategy, discussed with Saxon the risks of that strategy vis

‐

à

‐ vis proceeding to trial on the charged fi rearm o ff ense with the ACCA enhancement,

and, as the district court noted, negotiated ʺ a fairly favorable plea based on the charges

[Saxon was] originally facing, ʺ one that ʺ frankly surprised ʺ the district judge. App. 430.

Indeed, Saxon went from facing a gun charge with a mandatory minimum sentence of

fi fteen years, or 180 months, to dismissal of the gun charge and a below

‐ Guidelines

sentence of only 120 months on drug charges. Accordingly, contrary to the district

court, we conclude that counsel was not ine ff ective in failing to raise the argument

premised on the McNeill footnote.

We note, however, that by a ffi rming the district court on this ground, we

do not mean to suggest that we agree with its conclusion, or the conclusions of other‐ 11

‐ district judges in the Southern District of New York, concerning the merits of Saxon ʹ s

ACCA eligibility argument. 2 We do not reach the merits of that argument because, in

this case, counsel was not ine ff ective in failing to raise it.

We have reviewed Saxon ʹ s remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the order of the district court.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk

2 Indeed, we further note that the Eleventh Circuit, in an opinion joined by one of

our colleagues sitting by designation in that circuit, expressly rejected the reasoning in Jackson

,

2013 WL 4744828, and Calix

, 2014 WL 2084098. See Cortes

‐ Morales v. Hastings

, 827 F.3d 1009,

1015 (11th Cir. 2016) (per curiam), cert. denied

, 2017 WL 2322942 (U.S. May 30, 2017).