1 15-1732 Broxmeyer v. United States
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER Rulings by summary order do not have preceden tial effect. Citation to a summary order filed on or after January 1, 2007, is permitted a nd is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation “summa ry order”). 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, at 40 Foley Square, in the City of New York, on the 29 th day of September, two thousand sixteen. Present: ROBERT A. KATZMANN, Chief Judge , RICHARD C. WESLEY, PETER W. HALL, Circuit Judges

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TODD J. BROXMEYER, Petitioner-Appellant , - v - No. 15-1732 UNITED STATES OF AMERICA, Respondent

- Appellee

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For Petitioner-Appellant: L AWRENCE D. G ERZOG , Law Offices of Lawrence D. Gerzog, New York, NY. For Respondent-Appellee: C ARINA H. S CHOENBERGER , Assistant U.S. Attorney (Miroslav Lovric, on the brief ), for Richard S. Hartuni an, United States Attorney for the Northern District of New York, Syracuse, NY.2 Appeal from the United States District Cour t for the Northern Di strict of New York (McAvoy, J .). ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the judgment of the district court is AFFIRMED

. This is the third time this Court has c onsidered an appeal from Todd Broxmeyer, who was convicted on five counts of production of child pornography, attempted production of child pornography, transportation of a minor with the intent to engage in criminal sexual activity, and possession of child pornography fo llowing a jury trial in 2008. See United States v. Broxmeyer ( Broxmeyer I), 616 F.3d 120 (2d Cir. 2010) (reversi ng Broxmeyer’s convictions on the two counts of production and one count of transportation); United States v. Broxmeyer ( Broxmeyer II), 699 F.3d 265 (2d Cir. 2012) (affirming Brox meyer’s 30-year sentence on the remaining counts), reh’g en banc denied , 708 F.3d 132 (2d. Cir. 2013), cert. denied sub nom. Broxmeyer v. United States , 133 S. Ct. 2786 (2013). Because the facts of this case are amply described in those two opinions, we will not recount them here. In this appeal, Broxmeyer challenges the di strict court’s denial of his motion under 28 U.S.C. § 2255 asserting ineffective of counsel in violation of the Sixth Amendment. Because Broxmeyer has not alleged any plausible claim of ineffective assistance, either by his trial counsel or his post-tria l counsel, we AFFIRM. A. Standard of Review When reviewing a district court’s decisi on to deny a motion under § 2255, “[w]e review [the] district court’s findings of fact for cl ear error, and its deni al of a [§] 2255 petition de novo .” Yick Man Mui v. United States , 614 F.3d 50, 53 (2d Cir. 2010). Bu t “[w]e review the district court’s denial of a hearing under 28 U.S. C. § 2255 for abuse of discretion.” Chang v. United
States , 250 F.3d 79, 82 (2d Cir. 2001).3 B. Ineffective Assistance of Counsel Section 2255 provides that a prisoner in federa l custody “may move the court” to vacate a sentence that “was imposed in violation of the Constitution.” 28 U.S.C. § 2255(a). Broxmeyer claims that his sentence was imposed in violatio n of his Sixth Amendment right to the effective assistance of counsel. To establish in effective assistance of counsel under Strickland v. Washington , 466 U.S. 668, 686 (1984), the defendan t must prove both “that counsel’s representation fell below an obj ective standard of reasonablen ess . . . . under prevailing professional norms,” id. at 688, and “that the deficient perfor mance prejudiced the defense,” i.e., “that counsel’s errors were so serious as to deprive the defendan t of a fair trial,” id. at 687. To meet the high bar for proving deficienc y, movant must show “that counsel made errors so serious that counsel was not functi oning as the ‘counsel’ gua ranteed the defendant by the Sixth Amendment. . . . Judicial scrutiny of counsel’s performance must be highly deferential.” Strickland , 466 U.S. at 687, 689. We apply a “‘st rong presumption’ that counsel’s conduct falls within the wide range of reasonable professional as sistance because it is all too easy to conclude that a particular act or omissi on of counsel was unreasonable in the harsh light of hindsight.” Bell v. Cone , 535 U.S. 685, 702 (2002) (quoting Strickland , 466 U.S. at 689). Thus, “in case after case, we have declined to deem counsel ine ffective notwithstanding a course of action (or inaction) th at seems risky, unorthodox or downright ill-advised.” Tippins v. Walker , 77 F.3d 682, 686 (2d Cir. 1996). Broxmeyer first argues that his trial counsel failed to mount a proper defense because he was intoxicated before and during trial. Broxmeyer presents no plausible reason to think that his trial counsel was intoxicated, or that his performance fell be low an objective standard of reasonableness. It is clear from the record th at trial counsel actively advocated on behalf of4 Broxmeyer before and during tria l, including by filing motions to suppress evidence and seeking an order precluding use of certain evidence at trial as prejudicial to Broxmeyer. He also moved at the end of the government’s case for judgment of acquittal on Counts 1, 2, and 4, the same counts on which this Court later vacated Broxmeyer’s convictions. At trial, Broxmeyer’s defense to the first three counts against him was that his teenage players had sent their naked pictures to him vol untarily, and that he therefore had not “willfully coerced” a minor, a required element of the crim e of production. His trial counsel emphasized that point during his opening statement, in cross-examining witnesses, and during his summation. Similarly, counsel contended duri ng his opening statement and summation that, under the relevant federal law, the purpose of tran sporting a minor across state lines had to be for sex, and it was not sufficient if the sexual acts were merely incidental. Although counsel did not present a defense case, his cross-examinations of the government’s witnesses were thorough. For instance, through his cross-examination of K.M. and her father, counsel highlighted th at Broxmeyer had to travel clos e to K.M.’s house anyway based on his pre-existing schedule. During his cross-examination of the lead investigator on the case and the forensic expert, counsel stressed that the police did not know the age of most of the women in the photographs. It is also evident from the record that coun sel was attentive during trial; for example, when the prosecutor referr ed to a “photo of young girls or teenage person’s breasts,” counsel objected to the use of the term teenage because “[i]t hasn ’t been identified that she is a teenager.” G.A. 58. That objection was sustained. Id

. Broxmeyer claims that his counsel was ineff ective for failing to mount a defense. But as we have held, “[t]he decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in5 almost every trial.” United States v. Nersesian , 824 F.2d 1294, 1321 (2d. Cir. 1987); see also Greiner v. Wells , 417 F.3d 305, 323 (2d Cir. 2005) (“Courts applying Strickland are especially deferential to defense attorneys’ decisions concer ning which witnesses to put before the jury.”). Here, Broxmeyer does not name any witnesses his attorney should ha ve called or explain what testimony they might have offered. The clos est he comes is asserting that counsel should have cross-examined A.W. about her visits to Broxmeyer in jail after his arrest, but Broxmeyer has not rebutted the presumption that this fail ure was a reasonable strategic decision. It was apparent from A.W.’s testimony, on direct and cro ss-examination, that she had sex with and sent pictures to Broxmeyer voluntarily. But the govern ment argued that A.W.’s “voluntariness” was emblematic of Broxmeyer’s abuse of his power ov er the teenagers entrusted to his care. Indeed, the government emphasized during its summation that it was irrelevant th at A.W. claimed to have sent him her pictures of her own accord: A.W.’s “voluntariness . . . . [was] irrelevant. Minors can’t consent to doing this st uff.” Trial Transc ript at 292:15-18, United States v. Broxmeyer , No. 3:08-cr-0021-JJM (N.D.N.Y., Sept. 17, 2008), ECF No. 56. The prosecutor opined that “the real sad thing about this whole case is, [A.W .] doesn’t thi nk that she was manipulated and used. . . . A nd why? She’s just a kid.” Id. at 301-02. Counsel’s failure to highlight the depth of A.W.’s affections for Broxmeyer thus may well have been a strategic choice not to assist the governme nt’s case against his client. Trial counsel’s advice to Brox meyer not to testify likewise do es not constitute ineffective assistance. After his counsel informed the district court that he did not in tend to put on a defense case, the court asked whet her counsel had “discussed with Mr. Broxmeyer that he has a right to testify here at this Court, if he so chooses.” G.A. 168. Broxmeyer’s counsel affirmed that he had done so. At that point, the c ourt asked Broxmeyer directly: “do you understand you have a right6 to take the stand and testify, if you so choose?” Id . Broxmeyer replied, “Yes, sir.” Id . The court then reaffirmed, “You wish to remain silent, which is also your right?” Id . Broxmeyer again replied, “Yes, sir.” Id . Broxmeyer cannot claim now that he was prevented in any meaningful way from expressing any indecision or discomfort to the court in response to the court’s inquiry, even if he had not spoken at le ngth with trial couns el about the prospectof testifying. As well, we do not find that counsel’s failu re to object during summation constitutes ineffective assistance of counsel. As we have ex plained, “[a]s with trial decisions to offer or stipulate to certain evidence, decisions such as when to object and on what grounds are primarily matters of trial strategy and tact ics, and thus are virtually unch allengeable absent exceptional grounds for doing so.” United States v. Cohen , 427 F.3d 164, 170 (2d Cir. 2005) (citations and quotation marks omitted). The record indicates th at counsel chose to address the government’s remarks during his own summation, rather than ob jecting and perhaps calling attention to the offending remarks. Counsel asserted, “Now, when the government gave you their inflammatory comments and prejudicial opinions, that wasn’t evidence.” G.A. 171. We have held that this kind of response is sufficient: “Defense counsel specif ically responded to th is remark in his own summation and the decision whether to object to an arguably improper remark or to wait and attack it in the defense summation was strictly a matter of tactics.” United States v. Daniels , 558 F.2d 122, 127 (2d Cir. 1977). Further, “absent any prejudicial error in th e Government’s summation, the failure here to raise an otherwise futile objection could not have rende red counsel ineffective.” Cohen , 427 F.3d at 170. Broxmeyer does not point to any such prejudicial errors. Cf. United States v. Farhane , 634 F.3d 127, 167 (2d Cir. 2011).7 Finally, we find no merit in Broxmeyer’s argum ent that his post-trial counsel rendered ineffective assistance by failing to object to th e factual findings in his pre-sentence report (“PSR”) during the resentencing hearing on remand. Po st-trial counsel did obj ect to a number of factual allegations in the PSR in a written submi ssion to the district cour t. Indeed, the district court agreed with several of these objections. Br oxmeyer’s post-trial c ounsel also highlighted potential mitigating factors at le ngth during the sentencing hearing. Moreover, as the district court observed, Br oxmeyer’s objections to the PSR were the same as those he made before his first sentencing hearing. See Broxmeyer II , 699 F.3d at 275. Although post-trial counsel waived th e district court’s offer to “go step by step” and review the objections to the PSR during the hearing, she di d later claim that was error in Broxmeyer’s appeal to this Court. We reje cted that argument, finding that Broxmeyer had waived the issue. See id. at 279. Nonetheless, this C ourt assessed whether th e district court’s fa ilure to review the factual allegations again constituted plain e rror, and found no error, plain or otherwise. Id. at 279-80. Having already concluded that there was no error in the dist rict court’s decision to forgo reviewing the PSR during the hear ing, we cannot now conclude that his counsel’s failure to request that review constitu ted ineffective assistance under Strickland

. Broxmeyer also contends th at counsel should have objec ted to factual allegations concerning earlier incidents firs t revealed in the PSR after re mand, as several of Broxmeyer’s victims apparently came forward only after the first trial. See id. at 276. The sentencing memorandum that counsel submitted to the co urt did not address these new allegations. Nonetheless, Broxmeyer ca nnot show prejudice under Strickland because the district court stated during the hearing that “it would not increase his sentence based on that new information.” Id

. Broxmeyer emphasizes that the district court i ndicated that his “extens ive history of sexually8 abusing children” factored into the sentence he received, but this Court already held in Broxmeyer II that the district court was not re ferring to those ea rlier incidents. Id. at 288. As a result, Broxmeyer has not met his burde n to show a plausible claim of ineffective assistance, either by his tr ial or post-trial counsel. C. Need for an Evidentiary Hearing Section 2255 provides that “[u]nless the mo tion and the files and records of the case conclusively show that the pris oner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the i ssues and make findings of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255(b). “To warrant a hearing on an ineffective assistance of counsel claim, the defendant need establish only that he has a ‘plausible ’ claim of ineffective assistance of counsel, not that ‘he wi ll necessarily succeed on the claim.’” Puglisi v. United
States , 586 F.3d 209, 213 (2d Cir. 2009) (quoting Armienti v. United States , 234 F.3d 820, 823 (2d Cir. 2000)). But “[i]f it plai nly appears from the motion, any a ttached exhibits, and the record of prior proceedings that the m oving party is not entitled to relie f, the judge must dismiss the motion.” Id. (quoting Rules Governing § 2255 Proceedings for the United States District Courts, Rule 4(b), 281 U.S.C. foll. § 2255). The Supreme C ourt has confirmed that “if the record refutes the applicant’s factual allegations or otherwise precludes habeas re lief, a district court is not required to hold an evidentiary hearing.” Schriro v. Landrigan , 550 U.S. 465, 474 (2007). “[A] district court need not assume the credib ility of factual assert ions, as it would in civil cases, where the assertions are contradicted by the record in the underlying proceeding.” Puglisi , 586 F.3d at 214. “[F]or this reason, we have also held that when the judge that tried the underlying proceedings also presides over th e Section 2255 motion, a less-than full-fledged evidentiary hearing may permissibly dispose of claims where the credibility assessment would9 inevitably be adverse to the petitioner.” Id. ; see also United States v. Aiello , 900 F.2d 528, 534 (2d Cir. 1990) (affirming the denial of a § 2255 w ithout a hearing where th e judge “presided over both of Aiello’s trials” and was thus “intimately familiar with the detailed factual record”). Here, the district court acted well within its discretion in declining to hold an evidentiary hearing on Broxmeyer’s claims. Although it might ha ve been helpful if th e district court had sought affidavits from Broxmeyer’s counsel, cf. Sparman v. Edwards , 154 F.3d 51, 52 (2d Cir. 1998), none of his claims requires further evid ence to determine their validity. Broxmeyer presented no plausible reason to believe that trial counsel was act ually intoxicated during trial or that his performance fell below an objectively re asonable level. Nor did Broxmeyer point to any specific failures or omissions on either counsel’s part that would require an evidentiary hearing to assess. Broxmeyer claims that an evidentiary h earing is required to de scribe conversations he had with trial counsel which are not part of the re cord, but the substance of those conversations is irrelevant. Most importantly, with respect to Broxmeyer’s claims about his desire to testify in his own defense, counsel affirmed that he had “discu ssed with Mr. Broxmeyer that he has a right to testify here at this Court, if he so chooses,” and Broxmeyer hims elf confirmed that he understood he had “a right to take the stand and testify, if [he] so cho[]se.” G.A. 168. Likewise, the alleged inadequacies of his post-trial c ounsel did not require a hearing, as they were “contradicted by the record.” Puglisi , 586 F.3d at 214. Holding an evidentiary hearing on Broxmeyer’s claims would only be a waste of the cour t’s time and resources. We have examined the remainder of Broxmeye r’s arguments and find them to be without merit. Accordingly, for the foregoing reasons , the judgment of the district court is AFFIRMED

. FOR THE COURT: CATHERINE O’HAGAN WOLFE, CLERK