LAURA TAYLOR SWAIN, District Judge.
FNU LNU, a/k/a "Cruz Manuel Ramos," a/k/a "Garabato," a/k/a, "Luis," a/k/a "Crucigrama" ("FNU LNU" or "Petitioner") was tried and convicted before this Court, and his convictions were affirmed on appeal. Petitioner now moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (the "Petition"). The Petitioner asserts that each of the three court-appointed attorneys who represented him at various stages of this proceeding rendered ineffective assistance of counsel and that he is therefore entitled to relief pursuant to 28 U.S.C. § 2255. He asserts alternative arguments regarding his comprehension of the proceedings. The Court has thoroughly considered all of Petitioner's arguments, including those advanced by his counsel in a supplemental reply submission, and denies his petition for the following reasons.
Knowledge and familiarity with the facts of this case are assumed. The following is a brief summary of the facts relevant to this Memorandum Order.
Rafael Santamaria and an individual whose name was unknown but whose alias was "Garabato" were indicted on February 21, 2006, on charges of conspiring to commit a Hobbs Act robbery in July 2004. Petitioner was identified by the Government as "Garabato" and subsequent superseding indictments added Petitioner, who was named in the indictments as Cruz Manuel Ramos among other alias, and other co-defendants. On January 27, 2009, a grand jury returned Superseding Indictment S5 06-CR-172-LTS ("S5 Indictment"), charging Petitioner alone in twelve counts with (i) Hobbs Act robbery conspiracy in violation of 18 U.S.C. § 1951 (Count One); (ii) Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951 and 2 (Counts Two, Four, Six, Eight, and Ten); (iii) using, carrying, possessing, and brandishing a firearm during and in relation to, and in furtherance of, each of the five robberies, in violation of 18 U.S.C. §§ 924(c) and 2 (Counts Three, Five, Seven, Nine, and Eleven); and (iv) conspiracy to distribute, and to possess with the intent to distribute, five kilograms and more of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A) (Count Twelve). On May 19, 2009, a Grand Jury returned the final superseding indictment, Superseding Indictment S6 06-CR-172-LTS ("S6 Indictment"), in which Counts One through Twelve were substantially the same as the Counts One through Twelve of the S5 Indictment, and three charges were added: conspiracy to violate 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) by distributing and possessing with the intent to distribute, one kilogram and more of heroin in violation of 21 U.S.C. § 846 (Count Thirteen); and two counts of possession of heroin with the intent to distribute, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C), and 18 U.S.C. § 2 (Counts Fourteen and Fifteen).
On June 5, 2009, the Court granted Petitioner's motion to sever the robbery/narcotics conspiracy counts (Counts One through Twelve) from the heroin-trafficking counts (Counts Thirteen through Fifteen). As a result, there were two trials on the charges in the S6 Indictment.
At the conclusion of the first trial, the jury convicted Petitioner of the crimes charged in Counts One, Two, Three, and Twelve. At the conclusion of the second trial, the jury convicted Petitioner of the crimes charged in Counts Fourteen and Fifteen.
On January 19, 2011, the Court sentenced Petitioner principally to 348 months of imprisonment, comprising concurrent terms of 240 months' imprisonment on Counts One and Two (the robbery conspiracy and the substantive robbery charges), 288 months' imprisonment on Count Twelve (the narcotics conspiracy related to the robbery conspiracy), and 240 months' imprisonment on Counts Fourteen and Fifteen (sales of heroin), followed by a mandatory consecutive term of 60 months' imprisonment on Count Three (use and possession of a firearm during and in furtherance of robbery). The Court also imposed concurrent supervised release terms, the longest of which was 12 years, a $500,000 order of forfeiture, and a $600 mandatory assessment.
Petitioner appealed his conviction and sentence to the United States Court of Appeals for the Second Circuit. On April 17, 2012, the Second Circuit found that Petitioner's appeal was without merit and affirmed Petitioner's convictions and sentence.
The Court appointed Don Buchwald, Esq. ("Buchwald"), to represent Petitioner on January 6, 2009, replacing earlier court-appointed counsel at Petitioner's request. Buchwald represented Petitioner during the first trial and the related pretrial proceedings. The Court denied Petitioner's further request to change counsel on May 20, 2009, finding that Petitioner's reasons for the request did not warrant a change of counsel. (13-CV-3507 docket entry no. 3-2 at ECF pp. 24-25.)
After the conclusion of the first trial, the Court granted Petitioner's request to change counsel and appointed Sanford Talkin, Esq. ("Talkin), to represent Petitioner. Talkin represented Petitioner during the second trial and at sentencing for all of Petitioner's convictions on the S6 Indictment.
The Second Circuit appointed Glenn Falk, Esq. ("Falk"), to represent Petitioner for the purposes of his direct appeal.
A petitioner may prevail on a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 if he can show that his sentence: (1) was imposed in violation of the Constitution or the laws of the United States; (2) was entered by a court without jurisdiction to impose the sentence; (3) exceeded the maximum detention authorized by law; or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Collateral relief under 28 U.S.C. § 2255 is available "only for a constitutional error, a 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.'"
An individual may prevail on a habeas petition where he can show that he received ineffective assistance of counsel.
Petitioner argues that Buchwald rendered ineffective assistance of counsel for the following principal reasons. The Court analyzes each argument in turn.
First, Petitioner argues that Buchwald was ineffective because he allegedly did not inform Petitioner of the effect that the Government's filing of a prior felony information would have on the mandatory minimums. Petitioner alleges that he "was unaware that the government filed a prior felony information to seek an enhanced penalty with regard to his 1997 felony drug conviction in the State of New Jersey" and that "he was led to believe—by his attorney—that the government would and did seek only to introduce his prior conviction as character evidence at trial . . . ." (Pet. at 19.) Petitioner's allegation is rebutted by evidence to the contrary. In a letter addressed to Petitioner dated May 7, 2009, a copy of which is attached to the Petition, Buchwald wrote to Petitioner:
(Pet. Exhibit D at 2, 13-CV-3507 docket entry no. 3-1 at ECF p. 35.) The prior felony information was filed on May 19, 2009 (06-CR-172 docket entry no. 140). At a conference before the Court on May 20, 2009, Petitioner complained that Buchwald's letter had not been delivered to him promptly, but proffered a copy reflecting his written acknowledgment that he had received the letter on May 14, 2009. He also stated that counsel had visited him twice to discuss the letter before he actually received it. (Conf. Tr. May 20, 2009, 13-CV-3507 docket no. 3-2 at ECF p. 18.) With respect to his practice of both writing letters and meeting with Petitioner regarding significant case events, Buchwald added,
(
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On June 15, 2009, the Court asked Buchwald, in open court and in Petitioner's presence, whether he had discussed mandatory minimums with Petitioner (13-CV-3507 docket entry no. 3-2 at ECF p. 8.) Buchwald responded that, "We have discussed the mandatory minimums that go with each of the charges, at length, and frequently. They are also embodied in an extensive letter which we wrote to him . . . and which was translated for him." (
With regard to Petitioner's contention that Buchwald rendered ineffective assistance by failing to inform him specifically of the 127-year aggregate mandatory minimum sentence to which he could have been subject, if convicted on all counts at trial, the Court is satisfied that Petitioner cannot establish that he suffered prejudice. The record reflects that Petitioner was made aware that he faced a mandatory minimum sentence consisting of twenty-years (or 240 months) in prison, plus a five-year period of supervised release on Count Twelve alone, and that, if he went to trial on all of the counts, he could be exposed to upward of 240 months of imprisonment, since several of the other counts in the charging instrument carried mandatory minimum sentences. Indeed, Petitioner acknowledges in his affidavit in support of the Petition that, after Buchwald had explained the ten-year mandatory minimum sentence, "he would attempt to explain a different version that involved another statutory mandatory requirement for the firearm offense, which provided a consecutive seven year term of imprisonment." (13-CV-3507 docket entry no. 3 at ECF pp. 45-46;
There is also ample documentation that he was aware that his plea offer — which would have required him to plead guilty to a three-count superseding information — would have reduced his sentencing exposure to a stipulated Guidelines range of 192 to 219 months of imprisonment, with a mandatory minimum sentence of 144 months, 84 months of which would be served consecutively to any other sentence. (
The Court, accordingly, dismisses the Petition to the extent it claims that Buchwald rendered ineffective assistance of counsel with respect to advice relating to Peittioner's sentencing exposure, the effect of the prior felony information, and the Government's plea offer.
Second, Petitioner argues, without proffering specific factual allegations, that Buchwald failed to call witnesses or investigate "certain" defenses. The Petition does not identify any defenses Petitioner claims could have been raised, nor does he identify any potential defense witnesses other than himself. It is well established that an attorney's decision whether or not to call certain witnesses is considered a strategic decision,
Third, Petitioner makes the conclusory allegation that Buchwald did not conduct an adequate pretrial investigation or review adequately with him material produced by the Government pursuant to 18 U.S.C. § 3500 ("3500 material"). Prior to the first trial, Petitioner made substantially similar arguments, which the Court considered and rejected. (13-CV-3507 docket entry no. 20-22.) During a hearing on the eve of trial, in addressing Petitioner's renewed request for change of counsel, the Court stated:
(13-CV-3507 docket entry no. 3-2 at ECF p. 51.)
Furthermore, as the Government argues, Buchwald's performance during the trial and other court proceedings demonstrated his knowledge and familiarity with the 3500 material. The Government also notes that Buchwald's cross-examination of Government witnesses, which included questions regarding prior statements of witnesses that were contained in the 3500 material, could not have occurred without Buchwald's diligent review of the material. The Government further notes that the cross-examination "included topics that were clearly provided by the defendant and addressed . . . in the 3500 material," undermining Petitioner's unsworn assertion that Buchwald had not reviewed the 3500 material with Petitioner in formulating defense strategy. (Gov't Br. Opp'n Pet. 27-28.) Nor has Petitioner made a showing of prejudice arising from Buchwald's alleged failure to discuss 3500 material with Petitioner and the alleged failure to conduct an adequate pretrial investigation.
Based on the Court's extensive observation of Buchwald's performance during pretrial proceedings and during trial, as well as the representations made by Buchwald regarding his preparation and communication with his client, the Court is persuaded that Petitioner has shown neither deficient performance nor prejudice, and therefore dismisses the Petition to the extent it is premised on Buchwald's alleged ineffective assistance of counsel with respect to pretrial investigation and review and disclosure of 3500 material.
Fourth, Petitioner argues, Buchwald was ineffective in failing to move for a mistrial when he had an opportunity to do so. The decision whether to move for a mistrial is a strategic one that lies within a defense counsel's discretion.
Petitioner asserts that Talkin provided ineffective assistance by failing to "investigate, develop, present mitigating evidence" at sentencing; by failing to successfully challenge the base offense level under the United States Sentencing Guidelines as determined from the drug amount calculated by the Court, rather than by the jury; by failing to object to the application of the prior felony information to determine Petitioner's mandatory minimum; and by failing to challenge the reasonableness of the sentences imposed on Counts Fourteen and Fifteen. Each of the arguments is without merit.
Petitioner provides no legal or factual basis for these arguments. Petitioner's first suggestion — that Talkin should have raised an argument that a jury, not the Court, should have determined the appropriate drug weight when calculating the base offense level — has no basis in law. To the contrary, case law is clear that the Court — not the jury — must determine the appropriate drug weight when calculating the base offense level for advisory guideline application purposes.
Petitioner argues that Falk, who represented him on direct appeal, was ineffective because he failed to raise "obvious meritorious claims." The "obvious meritorious claims" are (1) the ineffective assistance of his trial counsel; (2) insufficient evidence to render a guilty verdict or finding on the quantity of drugs Petitioner was convicted of selling; (3) insufficient evidence of the acquitted charges that the Court used in applying the sentencing guidelines as part of his grouping; (4) the Court's decision to deny Petitioner's pretrial motions to replace counsel; (5) the cumulative effect of errors and insufficient investigation; (6) excessive sentence imposed for Counts Fourteen and Fifteen (the two counts of heroin sale); and (7) the disproportionate nature of Petitioner's sentence as compared to co-defendants. Petitioner also asserts that Falk's failure to file a petition for a writ of certiorari with the Supreme Court of the United States constituted ineffective assistance. For the following reasons, Petitioner's arguments are unavailing.
Falk's decision not to raise certain arguments that Petitioner believes were "obvious meritorious claims" is not a valid basis upon which an ineffective assistance of counsel claim may be asserted. It is well established that counsel on appeal has no constitutional duty to raise every nonfrivolous issue requested by defendant.
Moreover, Petitioner fails to make the required showing of prejudice under
Turning to Petitioner's sufficiency of evidence arguments, Petitioner identifies no facts and thus fails to meet the "very heavy burden placed on a defendant challenging the sufficiency of the evidence underlying his conviction."
Petitioner also asserts, without explanation, that his sentence was "disproportionate" as compared to those of his co-defendants in this case. That assertion, without more, is not enough to raise an issue as to the propriety of Petitioner's sentence, especially in light of the facts that each of Petitioner's four co-defendants acted as a cooperating witness and each co-defendant was convicted on fewer counts than Petitioner's six counts of conviction. Put differently, Petitioner fails to demonstrate that the differences between Petitioner's sentence and those of his co-defendants was not merely the product of differences in the defendants' circumstances, charges, and roles in the underlying criminal activity. The Court finds that Falk's decision not to raise these arguments, was, at the very least, non-prejudicial to Petitioner and, accordingly, dismisses this claim.
Petitioner also argues that Falk provided ineffective assistance of counsel by failing to file a petition for a writ of certiorari with the Supreme Court. This argument is meritless. Since Petitioner had no constitutional right to counsel to pursue an appeal with the Supreme Court, he could not be deprived of the effective assistance of counsel by his counsel's failure to file a petition for a writ of certiorari.
Petitioner also argues that the Court violated his Sixth Amendment right to counsel by denying his request to replace Buchwald with a different trial counsel for the first of his two trials. It is well settled that the constitutional right to court-appointed counsel does not guarantee a defendant counsel of his personal preference.
(13-CV-3507 docket entry no. 3-2 at ECF pp. 24-25.) The Court, as a result, rejects Petitioner's argument that his Sixth Amendment right was violated by the Court's denial of his request to change counsel and dismisses this claim.
Petitioner raises two additional arguments. First, he argues that he may not have received adequate Spanish-language translation. (Pet. at 22.) Petitioner cites no evidence to support his assertion that he received inadequate translation,
Petitioner also argues in the alternative that, even if his attorney's advice was faithfully interpreted, Petitioner had difficulty understanding the advice because his "ability to comprehend is below average" (Pet. at 23). This argument is also unavailing. Petitioner's bald assertions of his difficulties comprehending the proceedings are insufficient to raise issues of fact in light of Petitioner's failure to offer anything other than his own unsworn assertion, and in light of the Court's own extensive interactions with Petitioner during two trials, pretrial conferences, allocutions, and sentencing, during which Petitioner never exhibited difficulty comprehending the proceedings and never raised the issue of his alleged learning or comprehension difficulties even when given the opportunity to do so. For all of these reasons, Petitioner's remaining claims are dismissed.
For the foregoing reasons, the Petitioner's motion to vacate, set aside, or correct his sentence is denied. This Memorandum Opinion and Order resolves docket entry no. 263 (06-CR-172). The Clerk of Court is requested to enter judgment in favor of the Government and to close case 13-CV-3507.
Petitioner may not appeal this order unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C.S. § 2253(c)(1) (LexisNexis 2008). A certificate will be granted "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.S.§ 2253(c)(2) (LexisNexis 2008);
SO ORDERED.
