Key v. United States

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK 
UNITED STATES OF AMERICA
                 v.                  |       12-cr-712 (SHS) 
 ROGER KEY                         |       24-cv-4956 (SHS) 
                                     |       OPINION & ORDER 
                        Defendant.   | 

SIDNEY H. STEIN, U.S. District Judge. 
   In 2015, defendant Roger Key was convicted by a jury of six charges related to drug 
trafficking and two conspiracies to commit murder for hire. (ECF No. 575.) This Court 
sentenced him to life imprisonment plus 30 years, and the U.S. Court of Appeals for the 
Second Circuit affirmed that determination. United States v. Babilonia, 854 F.3d 163 (2d 
Cir. 2017). Gerald McMahon, Esq., a skilled and experienced criminal defense attorney, 
represented Key through trial and sentencing. (ECF No. 575.) 
   In 2018, Key petitioned the Court pro se to vacate his sentence pursuant to 28 U.S.C. 
§ 2255 and Fed. R. Civ. P. 60(b) and (d). (ECF No. 640.) That motion was denied. United 
States v. Key, No. 12-CR-712-1, 2019 WL 2314693 (S.D.N.Y. May 31, 2019). The Second 
Circuit subsequently granted a certificate of appealability on two issues: (1) whether 
United States v. Davis, 588 U.S. 445 (2019), applies to cases on collateral review, and 
(2) whether this Court properly denied Key’s challenge to his 18 U.S.C. § 924(c) 
conviction on Count Five. See Order Granting Motion for Certificate of Appealability In 
Part at 1, United States v. Key, No. 19-2169 (2d Cir. Jan. 3, 2020), ECF No. 44. Conceding 
that Davis applied retroactively, the government moved to vacate the Count Five 
conviction and remand to this Court for sentencing. Motion to Vacate Judgment, to 
Remand Appeal, On Behalf of Appellee United States of America at 1, United States v. 
Key, No. 19-2169 (2d Cir. July 3, 2020), ECF No. 76. The Second Circuit granted that 
motion, vacating the conviction on Count Five and remanding for sentencing. Order at 
1, United States v. Key, No. 19-2169 (2d Cir. Nov. 4, 2020), ECF No. 95. This Court then 
resentenced Key de novo to 45 years’ imprisonment and 10 years’ supervised release 
(ECF No. 766 at 23-24), and imposed a $16.2 million forfeiture. 
    Defendant filed an appeal from that sentence and forfeiture. (ECF No. 768.) Key, 
through counsel, contended that the 45-year term of imprisonment was substantively 
unreasonable and that the Court had erred in ordering forfeiture. Brief on Behalf of 
Appellant at 30, 38, United States v. Key, No. 22-337 (2d Cir. June 28, 2022), ECF No. 30.

The Second Circuit affirmed the judgment and sentence. United States v. Key, No. 22-337, 
2023 WL 4072834 (2d Cir. June 20, 2023). 
   In June 2024, Key filed pro se the instant motion to vacate, set aside, or correct his 
sentence pursuant to 28 U.S.C. § 2255. (ECF No. 797.) He alleges that his trial counsel 
was constitutionally ineffective for (1) failing to subpoena one of Key’s codefendants— 
Aisha Babilonia—to testify at Key’s trial; (2) relying on the representations of the 
government to claim that Babilonia intended to invoke her Fifth Amendment right not 
to incriminate herself if called to testify (id. at 5-6); (3) failing to challenge the sufficiency 
of the government's evidence regarding forfeiture (id. at 8; ECF No. 821 at 1); (4) failing 
to challenge the jurisdictional element of his crimes (ECF No. 797 at 9); and (5) failing to 
object to the government's statements to the jury in closing that “certain evidence was 
either cocaine or cocaine residue.” (Id. at 10.) Because Key proceeds pro se, the Court 
construes his submissions liberally and interprets them “to raise the strongest 
arguments they suggest.” See Triestman v. Fed Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 
2006) (internal quotation marks and citations omitted); Green v. United States, 260 F.3d 
78, 83 (2d Cir. 2001). Nevertheless, a pro se litigant must “’compl[y] with relevant rules 
of procedural and substantive law.’”” Triestman, 470 F.3d at 477 (citing Traguth v. Zuck, 
710 F.2d 90, 95 (2d Cir. 1983)). 
   For the reasons that follow, the Court denies defendant’s motion. 
I.    LEGAL STANDARD 
   28 U.S.C. § 2255 directs the Court to vacate, set aside, or correct a sentence if it finds 
that there has been “such a denial or infringement of the constitutional rights of the 
prisoner as to render the judgment vulnerable to collateral attack.”! Section 2255 review 
must be “narrowly limited to preserve the finality of criminal sentences,” Graziano v. 
United States, 83 F.3d 587, 590 (2d Cir. 1996), and “the burden of proof is on the party 
seeking relief.” Galviz Zapata v. United States, 431 F.3d 395, 399 (2d Cir. 2005) (citation 
omitted). 

1 Although there are restrictions on a “second or successive” section 2255 motion, see 28 U.S.C. § 2255(h), 
and Key previously filed a section 2255 motion, this Court resentenced defendant on February 8, 2022, 
de novo. (ECF No. 765.) Therefore, this section 2255 motion is not a “second or successive” motion. See 
Magwood v. Patterson, 561 U.S. 320, 331-34 (2010) (holding that a section 2254 petition challenging an 
amended judgment is not second or successive to petition challenging original judgment); Johnson v. 
United States, 623 F.3d 41, 45-46 (2d Cir. 2010) (extending Magwood to motions pursuant to section 2255); 
see also Pedro v. United States, No. 03-CR-0346-1, 2022 WL 17418529, at *1 (S.D.N.Y. Nov. 30, 2022) (section 
2255 motion challenging an amended judgment was not second or successive.) 
                                        □ 

    All five grounds that defendant alleges for his petition allege constitutionally 
 ineffective assistance of counsel. Pursuant to Strickland v. Washington's two-prong test 
 for ineffective assistance of counsel, the petitioner must prove that (1) “counsel's 
 representation fell below an objective standard of reasonableness” and (2) “there is a 
 reasonable probability that, but for counsel's unprofessional errors, the result of the 
 proceeding would have been different.” 466 U.S. 668, 688, 694 (1984). “Judicial scrutiny 
 of counsel's performance must be highly deferential,”  at 689, and a court must indulge 
 a “strong presumption that counsel's conduct falls within the wide range of reasonable 
 professional assistance.” Cox v. Donnelly, 387 F.3d 193, 198 (2d Cir. 2004) (quoting 
 Strickland, 466 U.S. at 689). 
II.    TRIAL COUNSEL WAS NOT CONSTITUTIONALLY INEFFECTIVE FOR ADVISING THE 
    COURT THAT BABILONIA WAS UNWILLING TO TESTIFY. 
    Defendant Key’s first ground alleges that his counsel was constitutionally 
 ineffective for knowingly making a  false statement to the Court—in violation of the 
 A.B.A. Model Rule of Professional Conduct 3.3—that Key’s codefendant, Aisha 
 Babilonia, intended to assert her Fifth Amendment right and would not testify. 
 Defendant makes a  related claim in his reply submission that McMahon breached his 
 duty of loyalty to his client by relying on representations from the government that 
 Babilonia would not testify. 
     Key submits that McMahon “knew or should have known that Ms. Babilonia was 
 not going to invoke her Fifth Amendment right” and was instead going to testify. (ECF 
 No. 797 at 5.) He supports this claim with a letter from Babilonia, sent from federal 
 custody on September 18, 2014, nearly six months after the trial in this action had 
 concluded. In relevant part, the letter states, 
             In [Key’s case],  I was advised by my attorney that I will be 
             called in to give testimony and I agreed.  ... the day I was 
             supposed to go to court, the marshals never came to present 
          '   me before the Judge. □□□ 
             1,  Aisha  Monique Babilonia,  am willing  to  give  testimony 
             should I be summoned to court in the future. 
 (ECF No. 797 at 17.) Additionally, in his reply brief, defendant submits a notarized letter 
 from Babilonia dated February 1, 2025—eleven years after the trial here—which states, 
 “should I have been subpoenaed to court or ordered to court I would have exercised my 
 right to testify in the above captioned case.” (ECF No. 822.) In support of his claim that 
 McMahon misled the Court, Key cites to the trial transcript of March 27, 2014 where 
 McMahon informed the Court, outside of the presence of the jury, that although

Babilonia had originally told his investigator that “she was more than happy to come in 
and testify” (id. 1442:11-14), “she has had a change of heart,” and was now refusing to 
testify. (Id. 1452:5-8.) In fact, her lawyer had made that representation repeatedly to 
McMahon and the government. (Id. 1442:11-18, 1455:22-1456:6, 1456:18-24, 1647:14-15.) 
McMahon was not constitutionally ineffective for informing the Court what was true; 
i.e., that Babilonia was refusing to testify. Her two letters, written six months and eleven 
years after the trial concluded, do nothing to change that fact. 
   1.  Key Has Not Demonstrated That Trial Counsel Made False or Misleading 
      Representations to the Court. 
   Lacking evidentiary or factual basis, defendant's claim that McMahon “knew or 
should have known that Babilonia was not going to invoke her Fifth Amendment right” 
and falsely stated otherwise to the Court cannot support a claim of constitutionally 
ineffective counsel in this case. Because he has not put forth evidence that McMahon 
misrepresented anything to the Court, Key has failed to meet the first prong of the 
Strickland standard. 
    Nor has Key met the second prong of Strickland: he has not shown any probability 
that that putative error prejudiced the result of his trial. Key has made no showing, nor 
suggested any reason for this Court to infer, that the result of the trial would have been 
different were Babilonia to testify. Indeed, this Court said as much in 2019, writing that 
Babilonia’s “testimony did not lie at the heart of Key’s defense . . . [and it] was not 
critical to the jury’s determination,” and her “testimony does little to exculpate Key.” 
Key, 2019 WL 2314693, at *4-5. 
    2.  Key Has Not Demonstrated a Conflict of Interest with Trial Counsel. 
    Nor do the belated letters from Babilonia support Key’s claim that McMahon 
breached his duty of loyalty to his client by unduly relying on the goverment’s 
representations concerning Babilonia’s unwillingness to testify. (ECF No. 821.) Not only 
did McMahon not unduly rely on the government's representations, but everyone—the 
Court, McMahon, and the  government —relied on information from Babilonia’s 
attorney, Robert Ray, Esq. (Trial Tr. 1647:14-15.) See Key, 2019 WL 2314693, at *4. 
    An ineffective assistance of counsel claim based on a conflict of interest does not 
require defendant to demonstrate prejudice, but he must demonstrate an “actual 
conflict of interest.” United States v. Schwarz, 282 F.3d 76, 90 (2d Cir. 2002). An actual 
conflict exists where “during the course of the representation, the attorney’s and 
defendant's interests ‘diverge with respect to a material factual or legal issue or toa 
course of action.’” Winkler v. Keane, 7 F.3d 304, 307 (2d Cir.1993) (quoting Cuyler v.

  Sullivan, 446 U.S. 335, 356 n. 3 (1980) (Marshall, J., concurring in part and dissenting in 
 part)). Even if Key had demonstrated that McMahon unduly relied on the government's 
  representations — which  he has  not— Key has made no showing that such reliance 
  caused any divergence between his interests and McMahon’s. 
     Accordingly, defendant's first ground in support of his section 2255 motion is 
  rejected. 
Il].    TRIAL COUNSEL WAS NoT CONSTITUTIONALLY INEFFECTIVE FOR “FAILING TO 
     SUBPOENA MS. BABILONIA.” 
     Defendant's second ground supporting his section 2255 motion alleges that his 
  counsel was constitutionally ineffective for not calling Babilonia to testify. In support of 
  this claim, defendant cites the September 2014 and February 2025 letters from Babilonia. 
  (ECF Nos. 797 at 17, ECF No. 822.) Defendant claims that “trial counsel was ineffective 
  because he knew that the [trial] outcome would have differed” based on Babilonia’s 
  expected testimony, especially because “the jury panel was predominantly all women.” 
  (ECF No. 797 at 6.) 
     This second ground is that Babilonia’s failure to testify was due to McMahon’s 
  failure to subpoena her to testify at trial. That claim is false. As explained above, 
  Babilonia’s attorney advised the Court, the government, and Key’s counsel that she 
  would assert her Fifth Amendment right not to incriminate herself and would not 
  testify. (Trial Tr. 1647:14-15.) See Key, 2019 WL 2314693, at *4. 
     Moreover, even if the decision whether Babilonia would testify had lain with 
  McMahon, Key has not overcome the “strong presumption’ that counsel's conduct falls 
  within the wide range of reasonable professional assistance.” Broxmeyer v. United States, 
  661 F. App’x 744, 747 (2d Cir. 2016) (“Courts applying Strickland are especially 
  deferential to defense attorneys’ decisions concerning which witnesses to put before the 
  jury.” (quoting Greiner v. Wells, 417 F.3d 305, 323 (2d Cir. 2005))). Consequently, Key has 
  failed to meet the first prong of the Strickland test, that “counsel’s representation fell 
  below an objective standard of reasonableness.” 466 U.S. at 688. 
      As explained supra, Key has not demonstrated a reasonable probability that 
  Babilonia’s testimony would have altered the result of his trial. Therefore, he has failed 
  to meet the second prong of Strickland, that “there is a reasonable probability that, but 
  for counsel's unprofessional errors, the result of the proceeding would have been 
  different.” Id. at 694. Accordingly, the Court rejects defendant's second ground.

IV.    KeyY’S THIRD GROUND— THAT COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE FOR 
     FAILING TO ADEQUATELY CHALLENGE FORFEITURE AT RESENTENCING —IS 
     PROCEDURALLY BARRED. 
     Defendant's third ground supporting his section 2255 motion alleges that counsel at 
  resentencing — attorney Aaron Mysliwiec—failed to challenge the factual basis for the 
  government's forfeiture motion. (ECF No. 797 at 8.) Key submits that the Court failed to 
  hold a forfeiture hearing pursuant to Fed. R. Crim. P. 32.2, and that Mysliwiec failed to 
  object to the government's calculation of $16.2 million. (Id.) 
     The “mandate rule” bars “re-litigation of issues already decided on direct appeal,” 
  including “claims raised and resolved on direct appeal” and then raised again ina 
  habeas proceeding pursuant to section 2255. Yick Man Mui v. United States, 614 F.3d 50, 
  53 (2d Cir. 2010); see also United States v. Pitcher, 559 F.3d 120, 124 (2d Cir. 2009.) 
     The factual predicate of this claim is the same as the factual predicate of the claim 
  defendant raised on direct appeal of his sentence to the Second Circuit. See Key, 2023 
  WL 4072834, at *4. There, the Second Circuit wrote, 
              the  district  court  properly  determined  the  amount  of 
              forfeiture ... That number reflect[ed] a reasonable estimate of 
              the  drug  proceeds  based  on  testimony  at  the  trial  and 
              information discussed  in the report.  Key lodged  a general 
              objection to the facts underlying this calculation but offered 
              no reason to doubt those facts. We conclude that the district 
              court’s forfeiture order was reasonable. 
  Id. 
      Because the third ground of Key’s section 2255 claim is predicated on the same facts 
  as those he raised on his direct appeal of his sentence, this ground is procedurally 
  barred. Accordingly, the Court rejects defendant's third ground. 
V.    TRIAL COUNSEL WAS NOT CONSTITUTIONALLY INEFFECTIVE FOR FAILING TO 
     CHALLENGE THE INTERSTATE COMMERCE ELEMENT OF KEY’S CRIME. 
      Defendant raises as the fourth ground supporting his section 2255 motion that trial 
  counsel was constitutionally ineffective for failing to challenge the “interstate commerce 
  element of the murder for hire counts.” (ECF Nos. 797 at 9;  ECF No. 821 at 4-6.) The 
  murder-for-hire counts are Counts Three, Four, and Six. (ECF No. 575 at 2.) 
      Key urges in his reply brief that his attorney should have challenged the interstate 
  commerce element of his charge for two reasons. First, that his use of a cell phone was 
  too tenuously connected to the murder-for-hire scheme to satisfy the jurisdictional

  element for those crimes; and second, that including cell phone usage within the 
  meaning of the interstate commerce element of the murder-for-hire statute would 
  stretch the meaning of the statute beyond its congressionally intended ambit. (ECF No. 
  821 at 4-6.) 
     However, “[j]udicial scrutiny of counsel's performance must be highly deferential.” 
  Strickland, 466 U.S. at 689. “Counsel [is] entitled to formulate a strategy that was 
  reasonable at the time and to balance limited resources in accord with effective trial 
  tactics and strategies.” Harrington v. Richter, 562 U.S. 86, 107 (2011). “Actions or 
  omissions by counsel that might be considered sound trial strategy do not constitute 
  ineffective assistance.” United States v. Best, 219 F.3d 192, 201 (2d Cir. 2001) (internal 
  quotation marks and citations omitted). 
     The record reflects that McMahon forcefully advocated for his client and made 
  strategic decisions concerning which elements of the crime to challenge and which not 
  to. He objected frequently (see e.g., Trial Tr. 1774:3-5, 1804:25-1805:15, 1824:25-1825:5, 
  1836:1-7), and argued compellingly. (Id. 1838:10-1890:3.) Key’s challenges do nothing 
  more than ask the Court to scrutinize and reevaluate that strategy, and therefore do not 
  meet Strickland’s first prong. Key makes no argument on this ground concerning 
  Strickland’s second prong. Accordingly, the Court rejects Key’s fourth ground for his 
  section 2255 motion. 
VI.    TRIAL COUNSEL WAS NOT CONSTITUTIONALLY INEFFECTIVE FOR FAILING TO OBJECT 
     TO THE GOVERNMENT'S STATEMENTS IN CLOSING ARGUMENT TO THE JURY. 
      Defendant raises as the fifth ground supporting his section 2255 motion that trial 
  counsel was constitutionally ineffective for failing to object to the government’s “side- 
  line testimonial statements to the petit jury that certain evidence was either cocaine or 
  cocaine residue.” (ECF No. 797 at 10.) He further alleges that these statements violated 
  his Sixth Amendment rights under the Crawford v. Washington, 541 U.S. 36 (2004) 
  limitation on testimonial statements. (Id.) 
      Key does not give evidence or examples of the “side-line” statements, except that 
  they occurred “especially during closing arguments.” (ECF No. 797 at 10.) However, as 
  the Court reminded jurors during before the government’s closing, statements by 
  attorneys are not evidence, “[y]ou know that what the lawyers say is not evidence.” 
  (See, e.g., Trial Tr. 1766:7.) As cited above, McMahon objected to the government’s 
  closing argument where appropriate. Key’s bare assertion that McMahon should have 
  objected more often is unsupported by the record. He makes no showing, nor does he 
  suggest, that these failures meet either prong of Strickland. Further, attorney statements 
  are not testimonial statements under Crawford, and the failure to raise meritless

  objections does not render counsel ineffective. See United States v. Cohen, 427 F.3d 164, 
   170 (2d Cir. 2005). 
      Key presents no argument that counsel's failure to object to the statements as 
   improper generally or as testimonial in violation of Crawford prejudiced the result of his 
   trial. Accordingly, the Court rejects Key’s fifth ground for his section 2255 motion. 
VII.    THERE    NO NEED FOR AN EVIDENTIARY HEARING. 
      Key asks the Court to hold an evidentiary hearing on this motion. (ECF No. 797 
   at 7.) “To warrant a hearing, the motion must set forth specific facts supported by 
   competent evidence, raising detailed and controverted issues of fact that, if proved at a 
   hearing, would entitle him to relief.” Gonzalez v. United States, 722 F.3d 118, 131 (2d Cir. 
   2013.) Key does not allege any constitutional inadequacies to support his section 2255 
   motion which raise “controverted issues of fact” supported by any evidence at all. The 
   Court denies Key’s request for a hearing. 

      Accordingly, for the reasons set forth above, Key’s motion is hereby DENIED. 
   Because Key has not made a substantial showing of the denial of a constitutional right, a 
   certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2); Lucidore v. N.Y. State Div. 
   of Parole, 209 F.3d 107,111-13 (2d Cir. 2000). Pursuant to 28 U.S.C. § 1915(a)(3), the Court 
   certifies that any appeal from this Opinion & Order would not be taken in good faith. 
   See Coppedge v. United States, 369 U.S. 438, 445-46 (1962). 
      The Clerk of Court is directed to mail a copy of this Opinion & Order to defendant 
   as follows: Roger Key [43656-054], USP Coleman II U.S. Penitentiary, P.O. Box 1034, 
   Coleman, FL 33521. 

      Dated:   New York, New York 
               April 24, 2025 

                                       SO ORDERED: 

                                             @
                                            4                 Lis 
                                          Sidney H.  Btein, U.S.DJ.