Judge Lewis Kaplan
Diallo was sentenced to 420 months in prison. Seeking 28 USC §2255 sentence relief, Diallo argued that he must be resentenced in light of the Supreme Court’s decision in Alleyne v. United States because the court, not the jury, found he fired a gun in furtherance of the conspiracy charged in indictment Count Three. He also argued that counsel ineffectively failed to challenge Counts One and Two—each charging a conspiracy to distribute and possess with intent to distribute—as multiplicitous and violative of the Fifth Amendment’s double jeopardy clause. Counsel also allegedly failed to challenge purportedly improper bolstering of a cooperating witness. The court denied Diallo relief. Because Alleyne announced a rule that was both “new” and “procedural” but not “watershed” it did not apply retroactively to his §2255 motion. In rejecting Diallo’s double jeopardy based ineffectiveness claim the court observed that the two subject indictment counts asserted conspiracies that differed in time period, participants and geographic scope. Given that trial evidence supported the existence of, Diallo’s participation in, both conspiracies, counsel’s failure to object on multiplicity or double jeopardy grounds was not unreasonable.
