USA v. Ross

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,
Plaintiff,
- against -
PERCELL ROSS,
Defendant.
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MEMORANDUM DECISION AND
ORDER
21-cr-571 (BMC)
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COGAN, District Judge.
Defendant Percell Ross pleaded guilty to possession of a firearm after a prior felony
conviction in violation of federal law. He moves to withdraw his plea of guilty under Fed. R.
Crim. P. 11(d)(2)(B), arguing that it was involuntary due to ineffective assistance of counsel.
Specifically, Ross contends that his former counsel failed to assert that officers lacked reasonable
suspicion to stop him under New York State procedural law, failed to raise an objection to a
report and recommendation finding that officers had reasonable suspicion to arrest him based on
out-of-state warrants, and incorrectly advised him that a state court promised to sentence him
concurrently with his federal court sentence. For the reasons set forth below, Ross’s motion is
denied.
BACKGROUND
In October 2021, an arrest team consisting of police officers and the Federal Bureau of
Investigation were tasked with locating and arresting Ross in connection with a homicide that
had taken place a few days before. Officers, including Det. Matthew Velasco, identified Ross
and his vehicle through video surveillance footage from before and after the homicide.
Additionally, officers wished to locate Ross because he had outstanding arrest warrants from
Connecticut and Virginia. Det. Adrian, who had knowledge of these warrants, informed Det.
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Velasco about them. Det. Velasco did not personally review the warrants or the National Crime
Information Center (“NCIC”) database report that listed the out-of-state warrants prior to Ross’s
arrest.
Officers eventually located Ross in Brooklyn, New York. Surveillance footage, which
Det. Velasco reviewed, showed the same vehicle found at the homicide, and Ross entering a
building there shortly after the homicide. Officers, including Velasco, approached Ross, calling
out “police, stop.” Rather than stopping, Ross began to run. As he ran, Ross turned around and
began shooting a firearm at the officers. After exchanging fire, Ross eventually fell to the
ground and officers placed him under arrest.
Ross was charged, and a grand jury indicted him with possession of a firearm after a prior
felony conviction in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Around the same time,
Ross was charged for the homicide in state criminal court in Westchester County, New York.
In April 2022, Ross filed a motion in federal court to suppress the firearm he used to
shoot at police officers. This Court referred the motion to Magistrate Judge Lois Bloom.
Following an evidentiary hearing, Judge Bloom entered a report and recommendation (“R&R”),
recommending that the Court deny the motion to suppress. Although former counsel argued that
the surveillance footage was insufficient to establish reasonable suspicion to arrest Ross, and that
officers could not arrest him based on out-of-state warrants, Magistrate Judge Bloom found these
arguments unconvincing.
First, Magistrate Judge Bloom found that officers had reasonable suspicion to stop Ross,
because the surveillance footage sufficiently linked him and his vehicle to the homicide. Second,
Magistrate Judge Bloom found that officers had other grounds for reasonable suspicion, because
under the collective knowledge doctrine, even though Det. Velasco did not have personal
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knowledge of the NCIC report, Det. Adrian, who informed Velasco about the warrants, did, and
because a NCIC report containing an arrest warrant can establish probable cause for an arrest,
Det. Velasco had at least reasonable suspicion to stop Ross. Finally, Magistrate Judge Bloom
found that officers had independent probable cause to arrest Ross, because when officers ordered
him to stop, he started to run and shoot at them, and whether or not the initial stop was
constitutional, Ross’s subsequent unlawful conduct – shooting at officers – gave officers
probable cause. Ross’s counsel raised several objections to the R&R, but did not specifically
object to the R&R’s finding that the out-of-state warrants gave officers reasonable suspicion.
This Court adopted the R&R in its entirety and denied the motion to suppress.
Ross then pleaded guilty in the state case. The state court promised him that it would
impose a sentence of 20 years to life. It indicated that it would sentence Ross concurrently with
his upcoming sentence in this federal case if it were to sentence him last – in other words, it
agreed to sentence him concurrently, but could not speak as to how this Court would sentence
him.
In April 2024, Ross pleaded guilty before Magistrate Judge Bloom in the instant federal
case. Magistrate Judge Bloom advised Ross that the Government had agreed not to oppose his
request for a concurrent sentence if the state court sentence was at least 240 months, but if the
state court sentenced him to less than 240 months, there would be no promise that it would
recommend a concurrent sentence. When asked if he understood this, Ross answered that he did:
THE COURT: Well, the most important thing that I need Mr. Ross to understand
is we have no control over what the state court does. . . . The language of this
agreement says that the Government will not oppose your request for imposition
of a sentence to run concurrently to the sentence imposed in the state court. But if
the sentence imposed in that case is less than 240 months, there's no promise from
this Court that it will agree to run concurrently that sentence. Do you understand
that?
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THE DEFENDANT: Yeah.
THE COURT: So the sentence that is imposed in state court has to be a minimum
of 240 months imprisonment or greater. And if it is, then the Government will
not oppose your request for imposition of a sentence to run concurrently to that
sentence. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: But if the state court imposes a consecutive sentence of
imprisonment in whole or in part, you will not have the right to withdraw your
guilty plea here. . . . Do you understand that?
THE DEFENDANT: Yes.
Magistrate Judge Bloom then asked Ross whether his written plea agreement accurately
reflected his understanding of the agreement he entered into with the Government, and Ross
answered that it did. When Magistrate Judge Bloom asked him whether outside of the plea
agreement, anyone had made any promises to him causing him to plead guilty, Ross hesitated
and spoke with his counsel. After conferring with counsel, Ross answered that no one had made
any such promise.
Magistrate Judge Bloom asked counsel to clarify on the record why Ross had hesitated.
Former counsel responded that Ross had questions about how his state court sentence would
interact with his federal sentence. Magistrate Judge Bloom then asked counsel about the details
of his state court sentence. Counsel responded that the state court had promised it would impose
a sentence of twenty years to life, but clarified that “[n]o promise was made or could be made by
the state judge as to what the federal sentence would be.”
THE COURT: So let me just ask, has Mr. Ross already pled in the state court?
[COUNSEL]: Yes, Your Honor.
THE COURT: And on what date? Because I want the record to be clear that that's
the point of difference here.
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[COUNSEL]: Just for a moment. Judge, Mr. Ross entered a guilty plea on
February 15th, 2024, in the Superior Court of the State of New York. He pled
guilty to murder, and the judge there promised him that he would impose a
sentence of twenty years to life, and that that Court would render the state
sentence concurrent to the federal sentence. No promise was made or could be
made by the state judge as to what the federal sentence would be. And the state
court sentence is an indeterminate term of twenty to life.
THE COURT: But that meets the minimum of what the plea agreement here of
240 months would be.
[COUNSEL]: Yes.
(emphasis added).
In May 2024, this Court accepted Ross’s guilty plea. In April 2025, Ross raised for the
first time his intention to withdraw his guilty plea. He terminated his attorneys and moved pro se
for reconsideration of his suppression motion and for reconsideration of his guilty plea. Ross
also moved to appoint new counsel, arguing that his attorneys had incorrectly told him that his
federal court sentence would run concurrently with his state court sentence, that officers could
not arrest him based on the out-of-state warrants, and that they had failed to object to Magistrate
Judge Bloom’s R&R on this ground.
This Court appointed new counsel. Ross again terminated this attorney and moved to
appoint new counsel, arguing that his attorney had made no effort to investigate his claims. The
Court then appointed new counsel. Current counsel filed the present motion in November 2025,
arguing that Ross’s former counsel failed to assert that officers lacked reasonable suspicion to
stop him under New York Criminal Procedure Law § 140.50(1), failed to raise an objection to a
report and recommendation finding that officers had reasonable suspicion to arrest him based on
out-of-state warrants, and incorrectly advised him that the state court promised it would sentence
him concurrently with his federal court sentence.
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DISCUSSION
I. Legal Standard
A defendant may withdraw a plea of guilty after the court accepts the plea but before it
imposes a sentence, if “the defendant can show a fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “The defendant ‘bears the burden of showing . . .
valid grounds for withdrawal.’” United States v. Albarran, 943 F.3d 106, 118 (2d Cir. 2019)
(quoting United States v. Rivernider, 828 F.3d 91, 104 (2d Cir. 2016)). “[T]he standard for
withdrawing a guilty plea is stringent because society has a strong interest in the finality of guilty
pleas, and allowing withdrawal of pleas not only undermines confidence in the integrity of our
judicial procedures, but also increases the volume of judicial work, and delays and impairs the
orderly administration of justice.” Id. (quoting United States v. Rose, 891 F.3d 82, 85 (2d Cir.
2018)). “Accordingly, a defendant's ‘reevaluation of the government's case against him’ does
not justify withdrawal of a plea.” Id. (quoting United States v. Schmidt, 373 F.3d 100, 103 (2d
Cir. 2004)).
II. Ross Has Not Shown That His Plea Was Involuntary
“In ruling on a plea withdrawal motion, courts consider whether the defendant ‘has raised
a significant question about the voluntariness of the original plea.’” Albarran, 943 F.3d at 117
(quoting Schmidt, 373 F.3d at 103). “A showing of ineffective assistance of counsel may
‘undermine the voluntary and intelligent nature of a defendant's decision to plead guilty,’ thereby
entitling the defendant to withdraw his guilty plea.” United States v. Thomas, 651 F. Supp. 3d
685, 692 (S.D.N.Y. 2023) (quoting United States v. Robinson, No. 08-cr-976, 2015 WL
8073757, at *5 (S.D.N.Y. Dec. 4, 2015)). Under Strickland v. Washington, 466 U.S. 668 (1984),
a “successful claim that counsel rendered ineffective assistance requires an affirmative showing
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that [(1)] counsel's performance fell below an objective standard of reasonableness according to
prevailing professional norms, and [(2)] it is reasonably likely that prejudice occurred – i.e., that
but for counsel's unprofessional errors, the result of the proceeding would have been different.”
United States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005) (citing Strickland, 466 U.S. at 687-96);
see also United States v. Pichardo, No. 13-cr-172, 2013 WL 6003514, at *6 (S.D.N.Y. Nov. 13,
2013) (applying Strickland’s two-part test to defendant’s claim that his plea was involuntary due
to ineffective assistance of counsel), aff'd, 595 F. App'x 19 (2d Cir. 2014); United States v.
Sterritt, 769 F. Supp. 3d 180, 199 (E.D.N.Y. 2025) (same).
First, Ross argues that former counsel never raised the argument that the arresting
officers lacked reasonable suspicion to stop him under New York Criminal Procedure Law §
140.50(1), and failed to object to the portion of Magistrate Judge Bloom’s R&R that officers
lacked any constitutional basis to arrest him based on the out-of-state warrants.
These arguments are unavailing, because as Magistrate Judge Bloom held in her R&R,
police officers clearly had reasonable suspicion and probable cause to stop and arrest him both
based on and independent of the out-of-state warrants. Therefore, former counsel was under no
obligation to raise the argument that officers lacked reasonable suspicion under state law, or
object to the R&R based on the out-of-state warrants. Moreover, former counsel was correct not
to raise the argument that officers lacked reasonable suspicion under New York Criminal
Procedure Law § 140.50(1), because whether officers had reasonable suspicion under state
procedural law is irrelevant to the Court’s determination of whether officers had reasonable
suspicion under the Fourth Amendment. See United States v. Bernacet, 724 F.3d 269, 277 (2d
Cir. 2013) (“[T]he Fourth Amendment does not incorporate state procedural criminal law.”).
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Next, Ross argues that former counsel incorrectly told him that the state court promised
his state court sentence would run concurrently with his federal court sentence. This argument is
likewise unavailing. During the plea hearing before Magistrate Judge Bloom, right after former
counsel informed the court that the state court “would render the state sentence concurrent to the
federal sentence,” former counsel clarified this remark by stating that “no promise was made or
could be made by the state judge as to what the federal sentence would be.” Former counsel
clearly communicated to Ross that the state court’s promise to sentence him concurrently was
subject to this Court’s decision on whether or not to sentence him concurrently. Moreover, prior
to this statement, Magistrate Judge Bloom informed Ross that the Government had agreed not to
oppose his request for a concurrent sentence if the state court sentence was at least 240 months,
but if the state court sentenced him to less than 240 months, there would be no promise that the
Government would recommend a concurrent sentence. When asked if he understood this, Ross
answered that he did.
In light of these facts showing that Ross understood that the state court would sentence
him concurrently subject to the federal court’s final decision and only if his state court sentence
was at least 240 months, Ross has not met the stringent burden of showing that his plea was
involuntary based on ineffective assistance of counsel.
III. Ross Has Not Shown a Fair and Just Reason For Withdrawing His Plea
Other factors a court may consider in determining whether withdrawal would be fair and
just include “(1) whether the defendant has asserted his or her legal innocence in the motion to
withdraw the guilty plea; (2) the amount of time that has elapsed between the plea and the
motion (the longer the elapsed time, the less likely withdrawal would be fair and just); and (3)
whether the government would be prejudiced by a withdrawal of the plea.” Albarran, 943 F.3d
at 117-18 (quoting Schmidt, 373 F.3d at 102-103).
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In addition to Ross’s failure to show that his plea of guilty was involuntary, these factors
weigh against granting his motion. First, Ross has not asserted a claim of legal innocence.
Second, around nineteen months have passed between his plea and this motion, and even
considering Ross’s frequent changes of counsel – all at his request – almost one year passed
between Ross’s plea and when Ross first indicated an intention to withdraw his guilty plea. See
Thomas, 651 F. Supp. 3d at 693 (“Courts in this Circuit have held that delays of periods of time
much shorter than [four months] weigh against motions to withdraw.”) (collecting cases). Third,
because Ross has not shown sufficient grounds for justifying withdrawal of his plea, the
government need not demonstrate prejudice. See United States v. Saft, 558 F.2d 1073, 1083 (2d
Cir. 1977).
Accordingly, because Ross has failed to make a showing that his plea was involuntary or
that he has a fair and just reason for withdrawing his plea, Ross’s motion for reconsideration of
his plea of guilty is denied.
CONCLUSION
For the foregoing reasons, Ross’s motion for reconsideration of his plea of guilty is
denied. His motion for reconsideration of his suppression motion is also denied as moot.
SO ORDERED.
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U.S.D.J.
Dated: Brooklyn, New York
December 27, 2025
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