USA v. SEALED

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,
-v- 	1:23-CR-387-5 (DNH)
1:25-CV-999 (DNH)
JOSHUA ATKINSON,
Petitioner-Defendant.
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APPEARANCES: 	OF COUNSEL:
UNITED STATES ATTORNEY 	ASHLYN MIRANDA, ESQ.
Northern District of New York 	Ass’t United States Attorney
445 Broadway
Albany, NY 12207
JOSHUA ATKINSON
Petitioner-Defendant, Pro Se
81620-510
Beckley FCI
Inmate Mail/Parcels
P.O. Box 350
Beaver, WV 25813
DAVID N. HURD
United States District Judge
DECISION & ORDER
I. INTRODUCTION
Petitioner-defendant Joshua Atkinson (“petitioner”), acting pro se, has
moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence
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based on alleged ineffective assistance of his trial counsel. Dkt. No. 220. The
United States of America (the “Government”) has opposed. Dkt. No. 264.
The motion has been fully briefed and will be considered on the basis of
the submissions without oral argument.
II. BACKGROUND
Between March 2021 and January 2023, petitioner and his co-defendants
ran a cocaine and fentanyl trafficking operation in Ulster County, New York.
Petitioner often fronted drugs to his co-defendants, who would pay him back
later. Like most drug traffickers, petitioner used threats and violence to keep
the operation running smoothly. And like most drug conspiracies, the group
eventually came to the attention of law enforcement. After an investigation
that included controlled buys using some confidential sources, federal agents
executed a search warrant at petitioner’s house that recovered a pistol.
On September 28, 2023, a federal grand jury in the Northern District of
New York indicted petitioner with a conspiracy to distribute the cocaine and
fentanyl and with distributing those drugs, too. See, e.g., Dkt. No. 21. After
his arrest, petitioner retained counsel and entered into plea negotiations with
the Government. Thereafter, petitioner pleaded guilty, pursuant to a written
plea agreement, to conspiracy to distribute the cocaine and fentanyl (Count 1)
and with distribution of those drugs (Count 6). Dkt. No. 138. As part of this
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plea agreement, petitioner agreed that he was accountable for approximately
3.2 kilograms of cocaine and 600 grams of fentanyl. See id. ¶ 6(a).
On January 27, 2025, petitioner was sentenced to a below-Guidelines term
of 156 months’ imprisonment on Counts 1 and 6, to be served concurrently, to
be followed by a five-year term of supervised release. Dkt. No. 173.
III. LEGAL STANDARD
Congress enacted § 2255 in 1948 because federal courts in certain judicial
districts were getting swamped by habeas corpus petitions. United States v.
Hayman, 342 U.S. 205, 213–14 (1952). Section 2255 was passed as a habeas-
type remedy that returned jurisdiction over challenges to the validity of a
federal conviction to the sentencing court. United States v. Addonizio, 442
U.S. 178, 185 (1979).
Under § 2255, “a prisoner in custody under sentence of a [federal] court . . .
claiming the right to be released . . . may move the court which imposed the
sentence to vacate, set aside or correct the sentence.” But § 2255 is not a
substitute for a direct appeal. United States v. Frady, 456 U.S. 152, 165
(1982). A legal or factual error that might warrant relief on direct review is
typically insufficient under § 2255. Addonizio, 442 U.S. at 184.
Instead, § 2255 strikes a balance between the value of error-correction and
the respect for finality in criminal sentences. United States v. Bokun, 73 F.3d
8, 12 (2d Cir. 1995). Thus, relief is available “only for a constitutional error, a
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lack of jurisdiction in the sentencing court, or an error of law or fact that
constitutes ‘a fundamental defect which inherently results in a complete
miscarriage of justice.’” Id. (quoting Hill v. United States, 368 U.S. 424, 428
(1962)).
Procedurally, a court presented with a 28 U.S.C. § 2255 motion must
follow the Rules Governing § 2255 Proceedings for the United States District
Courts. Under those Rules, a trial court can decide meritless claims on the
basis of the papers, with or without a response from the Government. Rule
4(b); Rule 7(a). If a claim requires factual development, the court can order
discovery or expand the paper record. Rule 6; Rule 7. Thereafter, the court is
expected to hold an evidentiary hearing “unless the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief.”
§ 2255(b). As the Second Circuit has explained:
The procedure for determining whether a hearing is
necessary is in part analogous to, but in part different
from, 	a 	summary 	judgment 	proceeding. 	The
petitioner’s motion sets forth his or her legal and
factual claims, accompanied by relevant exhibits: e.g.,
an affidavit from the petitioner or others asserting
relevant facts within their personal knowledge and/or
identifying other sources of relevant evidence. 	The
district court reviews those materials and relevant
portions 	of 	the 	record 	in 	the 	underlying 	criminal
proceeding. 	The 	court 	then 	determines 	whether,
viewing the evidentiary proffers, where credible, and
record in the light most favorable to the petition, the
petitioner, 	who 	has 	the 	burden, 	may 	be 	able 	to
establish at a hearing a prima facie case for relief. 	If
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material facts are in dispute, a hearing should usually
be held, and relevant findings of fact made.
Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009) (cleaned up).
Ultimately, however, the defendant bears the burden of proving his claim
by a preponderance of the evidence. Triana v. United States, 205 F.3d 36, 40
(2d Cir. 2000). Thus, “[a]iry generalities, conclusory assertions and hearsay
statements will not suffice because none of these would be admissible
evidence at a hearing.” United States v. Aiello, 814 F.2d 109, 113 (2d Cir.
1987). Nor is a reviewing court required to credit factual assertions that are
“contradicted by the record in the underlying proceeding.” Puglisi, 586 F.3d
at 214.
IV. DISCUSSION
Petitioner contends that he is entitled to 28 U.S.C. § 2255 relief because
his trial counsel, Attorney Kevin C. Harp, (1) “coerced him into accepting a
plea agreement,” and, at sentencing, failed to (2) present mitigating evidence
of his family circumstances, (3) challenge certain sentencing enhancements,
and/or (4) seek a downward departure based on petitioner’s “youthfulness” in
light of “the 829 Amendment.” Dkt. No. 220.1
The Sixth Amendment guarantees a criminal defendant the right to the
effective assistance of an attorney. See, e.g., Gonzalez v. United States, 722
1 The Court reordered these arguments for the sake of analytical clarity.
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F.3d 118, 130 (2d Cir. 2013). To prove constitutionally ineffective assistance,
a petitioner must show: (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.” Strickland v. Washington, 466 U.S. 668, 694 (1984).
Under the first prong of Strickland, the reviewing court applies a “strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” 466 U.S. at 689. To overcome this presumption, the
petitioner must show “that counsel’s representation was unreasonable under
prevailing professional norms and that the challenged action was not sound
strategy.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).
Under the second prong of Strickland, the petitioner must “affirmatively
prove prejudice” by showing “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” 466 U.S. at 693–94. A reasonable probability in this context is a
“probability sufficient to undermine confidence in the outcome.” Id at 694.
1. Plea Agreement & Coercion
First, petitioner argues that Attorney Harp “coerced him into accepting a
plea agreement.” Dkt. No. 220 at 3. Petitioner contends that Attorney Harp
advised him “that it was his only option” and failed to provide petitioner with
“a meaningful analysis of the plea’s consequences or alternatives.” According
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to petitioner, if he had received competent legal advice “he would have either
proceeded to trial or negotiated a more favorable plea agreement.” Id.
This argument is meritless. As a threshold matter, petitioner waived his
right to appeal or collaterally attack his conviction and any sentence of 188
months or less as part of his plea agreement. Dkt. No. 138 ¶ 7(d). As noted
supra, petitioner was sentenced to less than that: 156 months. Dkt. No. 173.
Although “[t]here is a presumption against the waiver of fundamental
rights,” United States v. Chua, 349 F. Supp. 3d 214, 218 (E.D.N.Y. 2018), the
Second Circuit has held that “[a] defendant’s knowing and voluntary waiver
of the right to appeal or collaterally attack his conviction and/or sentence is
enforceable,” Sanford v. United States, 841 F.3d 578, 580 (2d Cir. 2016).
Exceptions to this rule include circumstances “such as (1) when the waiver
was not made knowingly, voluntarily, and competently, (2) when the sentence
was imposed based on constitutionally impermissible factors, such as ethnic,
racial or other prohibited biases, (3) when the government breached the plea
agreement, or (4) when the sentencing court failed to enunciate any rationale
for the [ ] sentence.” Sanford, 841 F.3d at 580 (cleaned up).
Liberally construed in light of pro se status, petitioner’s argument is best
understood as a claim that his waiver was not made knowingly, voluntarily,
and competently. As discussed below, this claim is flatly contradicted by the
available record. Even so, out of an abundance of caution, and because the
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written waiver provision carved out petitioner’s “right to raise a claim based
on alleged ineffective assistance of counsel,” the Court will bypass the waiver
issue and assess the merits.2
Petitioner contends that Attorney Harp “coerced him” into accepting the
plea agreement by “advising him that it was his only option” and “failing to
provide meaningful analysis of the plea’s consequences or alternatives.” Dkt.
No. 220 at 3.
The Sixth Amendment right to effective assistance of counsel extends to
the plea-bargaining process. Lafler v. Cooper, 566 U.S. 156, 162 (2012). “To
provide constitutionally adequate representation during plea negotiations, a
lawyer must generally advise the client of any offer that the government
extends, outline the strengths and weaknesses of the case against him, and
provide an estimate of the defendant’s sentencing exposure at trial.” Siraj v.
United States, 999 F. Supp. 2d 367, 370 (E.D.N.Y. 2013) (cleaned up).
Importantly, though, “[t]he ultimate decision whether to plead guilty must
be made by the defendant.” Purdy v. United States, 208 F.3d 41, 45 (2d Cir.
2000)). “[A] lawyer must take care not to coerce a client into either accepting
2 As this Court and others have observed, the words “ineffective assistance” too often serve “as
the ticket of admission to section 2255 proceedings.” Porrazzo v. United States, 757 F. Supp. 3d 241,
251 (N.D.N.Y. 2024) (citation omitted) (explaining that a petitioner seeking “to assert substantive
challenges to the validity of the prosecution against him—something almost always better off done
through a direct appeal—will often frame his complaints as attorney-deficiency grievances to render
them cognizable in the § 2255 context”).
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or rejecting a plea offer.” Id. To try to account for this balancing act, courts
recognize that there is a “wide range” of reasonableness in this context. Id.
Measured against this general legal standard, petitioner has not plausibly
alleged an ineffective assistance claim on this basis. First, petitioner’s claim
is wholly conclusory. There is absolutely no indication in this record that the
Government might have offered a “more favorable plea agreement” than the
one he received.
Nor is there anything in the record, or in petitioner’s papers, tending to
suggest that he would have rejected the agreement he received and gone to
trial instead. See, e.g., Lee v. United States, 582 U.S. 357, 369 (2017) (“Courts
should not upset a plea solely because of post hoc assertions from a defendant
about how he would have pleaded but for his attorney’s deficiencies.”).
Second, and relatedly, the record of the change-of-plea hearing repudiates
petitioner’s conclusory assertions. There, the Court advised petitioner that
he was giving up his right to a trial and confirmed that petitioner understood
the purpose of the proceeding:
THE COURT: If you plead guilty, you are going to give
up those rights [that were just explained] because of
course there won’t be a trial, but I will still have the
same power to sentence you as if you had been found
guilty on Counts 1 and 6 of the indictment after a trial.
Is it your desire to give up the rights that I have just
explained to you?
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THE DEFENDANT: Yes, your Honor.
THE COURT: Do you understand that if you plead
guilty, you will be found guilty without a trial?
THE DEFENDANT: Yes, sir.
Dkt. No. 265 at 3. Next, the Court confirmed that petitioner had discussed
the case with Attorney Harp before the proceedings began:
THE COURT: I expect you have fully discussed this
case with your attorney, that you have been advised of
the nature of the charges against you, your rights, the
factual basis of your plea, and the consequences of
pleading guilty and any defense that you may have
before you came in today.
And, finally, I warn you in the strongest terms possible
that you should never ever plead guilty unless you are
guilty. Do you understand?
THE DEFENDANT: Yes, your honor.
Dkt. No. 265 at 5. After the Clerk placed petitioner under oath and the Court
confirmed that he was competent to enter a plea, the Court asked petitioner a
series of questions to confirm that he was satisfied with Attorney Harp:
THE COURT: You are represented by Attorney Kevin
Harp?
THE DEFENDANT: Yes.
THE COURT: Was he appointed by the Court or hired
by you?
THE DEFENDANT: He was hired by me and my
family.
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THE COURT: Are you satisfied with him?
THE DEFENDANT: Absolutely.
THE COURT: And did he advise you of your rights?
THE DEFENDANT: Everything, sir.
THE COURT: And did you hear and understand what
I told you a few moments ago about your rights?
THE DEFENDANT: Yes.
THE 	COURT: 	And 	you 	have 	read 	the 	indictment
which contains the charges in Counts 1 and 6?
THE DEFENDANT: Yes, sir.
THE COURT: And did you attorney explain that - -
those charges to you?
THE DEFENDANT: Yes, he did.
THE COURT: Did he answer any questions you may
have had about those charges?
THE DEFENDANT: Every question.
THE 	COURT: 	And 	did 	you 	fully 	understand 	the
nature of those two charges?
THE DEFENDANT: Everything, sir.
Dkt. No. 265 at 7–8. Afterward, the Court confirmed with petitioner that he
had carefully reviewed the plea agreement with Attorney Harp:
THE COURT: Mr. Atkinson, I understand you have
entered into a plea agreement with the United States
Government?
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THE DEFENDANT: Yes, I did.
THE COURT: Did you read the plea agreement?
THE DEFENDANT: I’ve read it, yes.
THE 	COURT: 	And 	did 	you 	review 	it 	with 	your
attorney?
THE DEFENDANT: Yes. Multiple times.
THE 	COURT: 	And 	did 	he 	answer 	any 	and 	all
questions you may have had with respect to the plea
agreement?
THE DEFENDANT: Yeah. Every question, sir.
Dkt. No. 265 at 9–10. “Sworn testimony given during a plea colloquy carries
such a strong presumption of accuracy that a district court does not, absent a
substantial reason to find otherwise, abuse its discretion in discrediting later
self-serving and contradictory testimony as to whether a plea was knowingly
and intelligently made.” United States v. Rivernider, 828 F.3d 91, (2d Cir.
2016) (cleaned up).
Petitioner’s statements—which were all made under oath—are more than
enough to defeat his conclusory assertions that he was “coerced” into taking a
plea, that Attorney Harp failed to explain the plea agreement to him, that he
entered into the plea agreement without a complete and accurate view of the
consequences, and/or that his guilty plea was not knowingly, voluntarily, and
competently made. Accordingly, petitioner is not entitled to § 2255 relief.
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2. Sentencing Issues
This conclusion about the change-of-plea hearing gives rise to a related
one: petitioner’s waiver should be enforced as to his § 2255 claims that are
unrelated to the plea bargaining and change-of-plea process. As the Second
Circuit has explained in the context of a direct appeal:
[W]e reject the notion that an appeal waiver becomes
unenforceable simply because a defendant ‘claims’ . . .
ineffective assistance of counsel. 	The appeal waiver
would be unenforceable if the record of the criminal
proceeding revealed that the claim that the waiver
was 	the 	result 	of 	ineffective 	assistance 	was
meritorious. 	But if the record on appeal shows that
the claim lacks merit, the appeal should be dismissed
because the waiver should be enforced . . . . If the rule
were otherwise, a defendant who secured the benefits
of a plea agreement by, inter alia, knowingly and
voluntarily waiving the right to appeal could escape
the fairly bargained-for appeal waiver by the simple
expedient 	of 	asserting 	an 	ineffective-assistance-of-
counsel claim that had no merit.
United States v. Monzon, 359 F.3d 110, 118–19 (2d Cir. 2004). The same set
of concerns has led our circuit to apply valid written waivers to bar habeas
claims asserted on collateral review. See, e.g. Sanford, 841 F.3d at 581.
Even on the merits, petitioner’s remaining arguments do not provide any
plausible basis for § 2255 relief. Petitioner argues that, at the sentencing in
this case, Attorney Harp: (a) failed to inform the Court that petitioner “is the
father and primary caregiver of a child with autism,” (b) failed to “challenge
the applicability” of certain Sentencing Guidelines enhancements petitioner
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received for “violent conduct,” and (c) failed to seek a downward departure
based on petitioner’s “youthfulness.” Dkt. No. 220 at 3.
As with his plea-related complaints, petitioner’s sentencing arguments are
flatly contradicted by the available record and, to the extent there might be
any room for doubt, petitioner cannot show any Strickland prejudice.
First, as the Government points out, the Pre-Sentence Investigation
Report (“PSR”) contained information about petitioner’s age, the nature of his
son’s medical condition, and the importance of petitioner’s role as a father
and a caregiver. Attorney Harp also raised these issues in his sentencing
memorandum. Dkt. No. 167 at 2 (age), 3 (son), 3–4, 6 (requesting sentence
below Guidelines range).
Simply put, there is nothing ineffective about—let alone constitutionally
ineffective—the approach that Attorney Harp took in advance of sentencing
with respect to the issues of petitioner’s relative youthfulness and his family
circumstances. That is especially so where, as here, Attorney Harp obtained
a favorable result: although the Guidelines range was 188 to 235 months, the
Court ultimately varied downward, imposing a sentence of only 156 months.
Second, as the Government points out, the sentencing enhancements for
“violent conduct” about which petitioner now complains were included in the
written plea agreement as sentencing stipulations. Dkt. No. 138 ¶ 6. Courts
routinely reject ineffective-assistance claims premised on a failure to object to
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sentencing enhancements where, as here, the enhancements were bargained
for as part of a plea agreement.3 See, e.g., Chardon v. United States, 2022
WL 2967296, at *3 (S.D.N.Y. July 26, 2022); Ceccarelli v. United States, 2021
WL 5567355, *3 (W.D.N.Y. Nov. 29, 2021). Accordingly, petitioner is not
entitled to § 2255 relief.
IV. CONCLUSION
Petitioner has failed to establish a plausible claim of ineffective assistance
of counsel. There is no need for further proceedings or an expansion of this
record.
Therefore, it is
ORDERED that
1. Petitioner-Defendant’s § 2255 motion (Dkt. No. 220) is DENIED and
DISMISSED; and
2. No Certificate of Appealability4 will be issued.
The Clerk of the Court is directed to terminate the pending motion and
close the associated civil case.
3 As the Government also points out, petitioner cannot show Strickland prejudice because, even
if Attorney Harp had objected and the Court had decided not to accept or apply the enhancements,
the Guidelines range would still be 151 to 188 months. Petitioner received a sentence within that
range (156 months).
4 “A court may issue a certificate of appealability ‘only if the applicant has made a substantial
showing of the denial of a constitutional right.’” Gray v. United States, 980 F.3d 264, 265 (2d Cir.
2020). “That standard is met when ‘reasonable jurists could debate whether (or for that matter,
agree that) the petition should have been resolved in a different manner.’” Welch v. United States,
578 U.S. 120, 127 (2016) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
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IT IS SO ORDERED.
Dated: January 13, 2026
Utica, New York.
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