REPORT AND RECOMMENDATION

SARAH L. CAVE, Magistrate Judge.

TO THE HONORABLE JED S. RAKOFF, United States District Judge:

Before the Court are the motions by pro se petitioner Luperio Naranjo, Sr. ("Naranjo") to (1) vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (the "2255 Motion"), and (2) amend his petition (the "Motion to Amend"). For the reasons below, I respectfully recommend that both motions be denied.

BACKGROUND

Naranjo was incarcerated at the Federal Prison Center—Schuylkill in Minersville, Pennsylvania, (ECF No. 1 at 1),1 and since November 24, 2017, has been residing in Queens, New York while serving his term of supervised release. (ECF No. 21 at 2).

A. Factual Background

Naranjo's crimes arose in connection with his operation, with his son, Jover Naranjo ("Jover"), of a demolition company, Enviro and Demo Masters, Inc. ("Enviro"), which "systematically underpaid its workers—primarily undocumented immigrants—in violation of federal law." United States v. Naranjo, 645 F. App'x 50, 52 (2d Cir. 2016) (summary order). In 2009, Lettire Construction Corporation, an affordable housing developer, hired Enviro to perform demolition work on the Ciena Project located on East 100th Street in New York City. (Cr. ECF No. 30 at 6, 28). Naranjo was Enviro's supervisor on the Ciena Project. (Id. at 42). The Ciena Project was governed by the Davis-Bacon Act, 40 U.S.C. § 3142 et seq., which requires that, as a condition of receiving federal funding for a project, contractors and subcontractors pay their workers the prevailing wage as set by the Secretary of Labor. (Id. at 26). In the case of the Ciena Project, the prevailing wage was documented in an agreement between the City of New York and Hobbs Ciena Associates. (Id.). According to that agreement, demolition workers were to be paid $49 per hour, and workers who carted debris were to be paid $33 per hour. (ECF No. 11 at 3). The Naranjos paid their workers only $13 hour, and did not provide benefits or pay overtime. (See, e.g., Cr. ECF No. 30 at 42, 45-46).

To avoid detection, Naranjo and Jover filed "false payroll documents that used the names of friends and family members instead of the workers' real names." Naranjo, 645 F. App'x at 52. Naranjo instructed workers to sign into the jobsite under aliases and hide from investigators, and he and Jover forged employees' names on timesheets, fabricated checks to make it appear that they were paying the prevailing wage, and submitted falsified payroll documents that included names of people who did not work on the Ciena Project. (Cr. ECF No. 30 at 46-47; Cr. ECF No. 32 at 32; Cr. ECF No. 34 at 29-30, 69, 114). Both Naranjo and Jover instructed workers to lie to investigators about their working hours and wages and fired workers who spoke to investigators or refused to sign false documents. (Cr. ECF No. 32 at 4-5, 26; Cr. ECF No. 34 at 29-30).

B. Procedural Background

On September 10, 2013, Naranjo and Jover were charged in a six-count indictment. (ECF No. 21 at 1). Count I charged Naranjo and Jover with conspiracy to commit mail fraud, in violation of 18 U.S.C. § 1349 ("Count I"). (Id.). Count II charged Naranjo and Jover with mail fraud in violation of 18 U.S.C. §§ 1341-2 ("Count II"). (Id.). Count III charged Naranjo and Jover with conspiracy to commit witness tampering in violation of 18 U.S.C. § 1512(k). (Id.). Count IV charged Naranjo and Jover with witness tampering in violation of 18 U.S.C. § 1512(b)(1)-(2). (Id.). Count V charged Jover only with making false statements in violation of 18 U.S.C. §§ 1001-02. (Id.). Count VI charged Naranjo and Jover with aggravated identity theft in violation of 18 U.S.C. §§ 1028(A)(a)(1), 1028(A)(b), and 2. (Id.).

On November 22, 2013, Naranjo was convicted following a jury trial in this District on Counts I, II, III, IV, and VI.2 (See ECF No. 2 at 15). On April 9, 2014, Naranjo was sentenced to two years' imprisonment on Counts I-IV, two years' consecutive imprisonment on Count VI, and four years' supervised release; ordered jointly with Jover to pay $614,754.17 in restitution; and ordered to forfeit the amount of $519,997.46. (ECF No. 21 at 1-2). The Second Circuit affirmed the judgment of conviction. Naranjo, 645 F. App'x at 50. In a summary order, the Second Circuit held that the jury instructions as to 18 U.S.C. § 1028A did not constitute plain error, and rejected Naranjo's remaining arguments. Id. at 52-53.

C. The 2255 Motion

On September 15, 2016, Naranjo filed the 2255 Motion, arguing that his trial counsel was ineffective on 22 grounds:

(ECF No. 1 at 16-42).

On December 5, 2016, the Government responded to the 2255 Motion, contending that Naranjo's counsel was not ineffective, and his arguments otherwise lacked merit. (See ECF No. 11).

On June 16, 2017, Naranjo filed the Motion to Amend his 2255 Motion. (ECF Nos. 14, 15). Naranjo sought to amend his claim that his counsel was ineffective by failing to (1) obtain a minor role departure with respect to his sentence, and (2) challenge the forfeiture order competently. (ECF No. 14 at 3, 6-11). At the Court's request (ECF No. 20), the Government filed a response to the Motion to Amend, arguing that both of Naranjo's amendments would be futile. (ECF No. 21 at 2-3).

I. 2255 MOTION

A. Legal Standards

1. Section 2255

Pursuant to Section 2255, a prisoner sentenced in federal court "may move the court which imposed the sentence to vacate, set aside or correct the sentence" if the prisoner claims "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 USC § 2255(a). Relief under Section 2255 is only available "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 complete miscarriage of justice." Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (per curiam) (internal citation omitted). In addition, "[b]ecause collateral challenges are in tension with society's strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack." Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010) (internal citation omitted).

Because Naranjo is appearing pro se, the Court liberally construes his submissions and interprets them to raise the strongest arguments they suggest. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (stating that pro se papers "must be held to less stringent standards than formal pleadings drafted by lawyers"); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (collecting cases).

2. Statute of limitations

Subject to certain exceptions not applicable here, claims raised in a Section 2255 motion must be brought within one year from the date of the final conviction. 28 U.S.C. § 2255(f). For the purposes of Section 2255, "a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction," which is 90 days after the Court of Appeals' determination. Clay v. United States, 537 U.S. 522, 525-26 (2003). The Second Circuit affirmed Naranjo's conviction on April 6, 2016, rendering the decision final 90 days later, on July 5, 2016. Thus, Naranjo's time to file Section 2255 claims expired one year later, on July 5, 2017. He filed the 2255 Motion on September 15, 2016, and it is therefore timely.

3. Procedural default

Where a petitioner "has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if [he] can first demonstrate either cause and actual prejudice, or that he is actually innocent." Cox v. United States, 783 F.3d 145, 150 (2d Cir. 2015) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)); United States v. Thorn, 659 F.3d 227, 231 (2d Cir. 2011) ("In general, a defendant is barred from collaterally challenging a conviction under § 2255 on a ground that he failed to raise on direct appeal."); Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007) (stating that a Section 2255 motion is not a substitute for raising a claim on direct appeal).

"Cause" under this test must be "something external to petitioner, something that cannot fairly be attributed to him." Coleman v. Thompson, 501 U.S. 722, 753 (1991). To show "actual prejudice," a petitioner must demonstrate that the "outcome of the case would likely have been different but for the alleged constitutional violation." Ross v. Miller, No. 14 Civ. 3098 (RA) (JLC), 2016 WL 1376611, at *9 (S.D.N.Y. Apr. 7, 2016). A claim of "actual innocence" requires a petitioner to show that, in light of "new reliable evidence . . . not presented at trial," it is "more likely than not" that no reasonable juror would find him guilty beyond a reasonable doubt. Rivas v. Fischer, 687 F.3d 514, 541 (2d Cir. 2012) (internal citations omitted).

An exception to the procedural default rule exists for claims of ineffective assistance of counsel. In Massaro v. United States, the Supreme Court held that "an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." 538 U.S. 500, 504 (2003); Yick Man Mui, 614 F.3d at 54-55 (explaining that "where as here, a petitioner's collateral challenge includes claims of ineffective assistance of counsel, there is an important exception to the procedural default rule" and "Massaro allows a habeas petitioner to raise ineffective assistance of counsel claims in a Section 2255 petition even though no ineffective assistance claims were raised on direct appeal"); Tagliaferri v. United States, No. 17 Civ. 3026 (RA) (GWG), 2018 WL 3752371, at *12 (S.D.N.Y. Aug. 8, 2018) (same).

A claim is also procedurally defaulted when it was previously raised, and disposed of, on direct appeal. United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001) (per curiam) (explaining that a Section 2255 habeas motion cannot be used to "relitigate questions which were raised and considered on direct appeal") (internal citation omitted); Robinson v. United States, No. 18 Civ. 10238, 2019 WL 2525408, at *1 (S.D.N.Y. June 19, 2019) ("to the extent that a Section 2255 motion raises issues that were litigated on direct appeal, a petitioner is procedurally barred from raising them in his Section 2255 motion"). In the Habeas context, "[r]econsideration is permitted only where there has been an intervening change in the law and the new law would have exonerated [the] defendant had it been in force before the conviction was affirmed on direct appeal." Sanin, 252 F.3d at 83 (quoting Chin v. United States, 622 F.2d 1090, 1092 (2d Cir. 1980)). Repackaging a claim rejected on direct appeal as an ineffective assistance of counsel claim on a Section 2255 motion does not circumvent this procedural default bar. Id.

4. Ineffective assistance of counsel

"In order to prove ineffective assistance, [a petitioner] must show (1) `that counsel's representation fell below an objective standard of reasonableness'; and (2) `that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2008) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)); Massaro, 538 U.S. at 505 ("a defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial"); United States v. Brown, 623 F.3d 104, 112 (2d Cir. 2010) (same).

In evaluating the first prong — whether counsel's performance fell below an objective standard of reasonableness — "`[j]udicial scrutiny . . . must be highly deferential,'" and the petitioner must overcome the "`presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Bell v. Cone, 535 U.S. 685, 698 (2002) (quoting Strickland, 466 U.S. at 689); see Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (according counsel a "strong presumption" of competence). "[T]he record must demonstrate that `counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment.'" Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (quoting Strickland, 466 U.S. at 687). As set forth in Strickland, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . . In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." 466 U.S. at 690-91. "[A] habeas petitioner will be able to demonstrate that trial counsel's decisions were objectively unreasonable only if there was no tactical justification for the course taken." Lynn v. Bliden, 443 F.3d 238, 247 (2d Cir. 2006) (internal citation omitted).

To satisfy the prejudice requirement, the petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. The prejudice prong of the Strickland analysis "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). Courts in the Second Circuit generally "require[] some objective evidence other than defendant's assertions to establish prejudice." Pham, 317 F.3d at 182 (citing United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998) (per curiam)).

B. Discussion

Having reviewed Naranjo's Motion and the Government's Opposition, the Court finds that Naranjo's ineffective assistance of counsel arguments are most logically organized into eight categories: (1) failures relating to the indictment and jury instructions with respect to the charge of aggravated identity theft under 18 U.S.C. § 1082A (Grounds 1, 2, 4, 5, 9, and 15); (2) failures relating to Naranjo's sentence and order of restitution (Grounds 3, 8, 11, 12, and 13); (3) failure to move to sever his trial from his co-defendant son (Ground 6); (4) failure to discuss plea options (Ground 10); (5) failure to challenge the conspiracy to commit mail fraud and mail fraud charges (Ground 7); (6) failure to object to the prosecutor's statements during closing argument (Ground 14); (7) failure to investigate, call, and competently question witnesses (Grounds 16-21); and (8) failure to demand Brady material and subpoena documents (Grounds 18 and 22).

1. Naranjo's counsel was not constitutionally ineffective with respect to the aggravated identity theft charge

Naranjo argues that his counsel was ineffective for failing to object to the indictment and the jury instructions with respect to the aggravated identity theft charge under 18 U.S.C. § 1028A. (ECF No. 1 at 16-9, 21-22, 25-26, 33-34 (Grounds 1, 2, 4, 5, 9, and 15)). Naranjo argues that the term "another person" in the statute means "a real person victim," not "real persons who also benefited from the predicate mail fraud crime." (Id. at 16). He also accuses his counsel of failing to challenge the District Court's "Alleyne" error, and of failing "to argue the Rule of Lenity." (ECF No. 1 at 18, 22). None of these variations on the same challenge to his counsel's conduct has merit.

a. Naranjo's counsel's performance was not constitutionally defective

Starting with the language of the statute, Section 1082A defines the offense of aggravated identity theft as follows:

18 U.S.C. § 1082A(a)(1). Mail fraud is included in the felonies enumerated in subsection (c) of the statute. 18 U.S.C. § 1028A(c)(5). As the Second Circuit noted, at the time of Naranjo's conviction, in this Circuit there was "no binding precedent governing the issue of how § 1028A should be interpreted, or whether the government is required to prove that the individuals did not consent to the unlawful use of their identities." Naranjo, 645 F. App'x at 52. Rather, the majority of courts "have concluded that § 1028A unambiguously includes" the conduct in which Naranjo engaged, as shown by the evidence at trial. Id. at 52 n.2, 53.

Here, the District Court instructed the jury that to convict Naranjo of the aggravated identity theft charge, the government had to prove beyond a reasonable doubt that Naranjo: (1) "possessed the personal identification of another person"; (2) "used the information to help commit one or more of the substantive mail fraud, mail fraud conspiracy or false statement offenses"; and (3) "did so knowingly and intentionally and without lawful authority." (Cr. ECF No. 40 at 115). With respect to the second element, the District Court explained:

(Id. at 115-16). As to the third element, the District Court instructed, "a defendant acts without lawful authority either when he uses a means of identification without the consent or knowledge of the person or when he uses the identification in furtherance of a crime even with the person's consent." (Id. at 116).

As the Second Circuit has already held, the District Court "instruct[ed] the jury in a way that conforms with most circuits' interpretation of the statute." Naranjo, 645 F. App'x at 53. Therefore, that his counsel did not object to a charge that was legally correct under the majority interpretation of the statute does not fall below the objective standard of reasonableness as is required to prove that his counsel was constitutionally ineffective. See Johnson v. United States, No. 15 Civ. 3956 (RJS), 2018 WL 4625799, at *6 (S.D.N.Y. Sept. 26, 2018) ("failing to object to a legally correct jury charge does not constitute deficient performance") (internal citations omitted); see also Jones v. Barnes, 463 U.S. 745, 754 (1983) (counsel does not have a duty to advance every non-frivolous argument that can be made); Rosa v. United States, 170 F.Supp.2d 388, 407 (S.D.N.Y. 2001) (counsel's failure make a non-meritorious objection does not constitute ineffective assistance). Similarly, because the District Court instructed the jury accurately on the elements of the offense in a manner that was consistent with the majority of case law in this Circuit and elsewhere, no error occurred under Alleyne v. United States, which requires "[a]ny fact that, by law, increases the penalty for a crime is an `element' . . . be submitted to the jury and found beyond a reasonable doubt." 570 U.S. 99, 103 (2013).

Naranjo relies on decisions from two other circuits that vacated convictions under Section 1028A. See United States v. Medlock, 792 F.3d 700 (6th Cir. 2015); United States v. Miller, 734 F.3d 530 (6th Cir. 2013); United States v. Spears, 729 F.3d 753 (7th Cir. 2013) (en banc). These decisions do not compel the conclusion that his counsel was deficient for failing to argue that Section 1028A is ambiguous as applied to him or that his conduct fell outside the scope of the statute.

In Medlock, the defendants submitted Medicare reimbursement claim forms using the names of actual beneficiaries but falsely representing that those beneficiaries had been transported by stretcher (a permitted reimbursement) when those patients had actually been transported by walking, riding in the front seat, by wheelchair or other non-reimbursable means. 792 F.3d at 704. The Sixth Circuit concluded that "[t]he Medlocks did not display, barter, or refer to means of identification as such during, in relation to, or for the purpose of helping to commit the crime"; rather, they "did transport the specific beneficiaries whose names they entered on the forms" and "lied only about their own eligibility for reimbursement for the service." Id. at 706. In contrast, here the individuals whose names Naranjo listed on the fake payroll forms did not do the work he represented they were doing, and the employees whose signatures Naranjo forged on wage checks did not receive the wage amounts that he claimed they were being paid. Thus, unlike the Medlocks, Naranjo did "display . . . or refer to" the names of another person "during, in relation to, or for the purpose of helping to commit the crime." Id. at 707. The Sixth Circuit's decision in Miller is unhelpful to Naranjo for the same reason: there too, the lie was about what had been done, not who had done it, and accordingly, fell outside the statute. See Miller, 734 F.3d at 542.

In Spears, the defendant created a fake handgun permit for a client who was disqualified from obtaining a legitimate permit. 729 F.3d at 754. The fake permit contained the client's name and birthdate. Id. His conviction for aggravated identity theft under Section 1028A was affirmed on direct appeal, but on rehearing en banc, the Seventh Circuit vacated the conviction because "no one's identity ha[d] been stolen or misappropriated." Id. at 756. As another district judge in this Circuit has pointed out, "[c]entral" to the Seventh Circuit's holding "was the lack of an ascertainable victim": because the defendant's client, at whose request he procured the fake permit, "could not be considered a victim, the defendant's crime fell outside the intended scope of 18 U.S.C. § 1028A." United States v. Cwibeker, No. 02 Crim. 0632 (JS) (ARL), 2015 WL 459315, at *4 (E.D.N.Y. Feb. 2, 2015).

Here, unlike Spears, but like in Cwibeker, most of the individuals whose identities Naranjo used were not co-conspirators, but either friends and family members (who did no work on the site and were not charged in the case) or the employees themselves (whose signatures Naranjo and Jover forged on fake timesheets). (See, e.g., Cr. ECF No. 30 at 48; Cr. ECF No. 34 at 9-11; Cr. ECF No. 38 at 76). Although, in one instance, Naranjo appears to have directed an employee to sign in with the security guard using Naranjo's name (Cr. ECF No. 30 at 46-47), this instance does not undermine the finding that Naranjo misappropriated identities from individuals who were not his co-conspirators, and therefore, there were actual victims in this case. Accordingly, Naranjo's reliance on Spears to suggest that his own conviction falls outside the statute is unpersuasive. See Cwibeker, 2015 WL 459315, at *4 (noting purpose of Section 1082A is to "`provid[e] enhanced protection for individuals whose identifying information is used to facilitate . . . crimes'") (quoting Flores-Figueroa v. United States, 556 U.S. 646, 654 (2009)); see also United States v. McDonald, No. 14 Crim. 10033 (JTM), 2014 WL 4071697, at *4 (D. Kan. Aug. 18, 2014) (distinguishing Spears because "there are victims in this case").

Finally, given the legal correctness of the District Court's instructions, as noted above, and the absence of any ambiguity as to Section 1028A's application to Naranjo's conduct, his counsel was not deficient for failing to make an argument under the "Rule of Lenity," which only "applies where there exists a grievous ambiguity in a statute, such that after seizing everything from which aid can be derived, a court can make no more than a guess as to what Congress intended." United States v. Kavoukian, 315 F.3d 139, 144 (2d Cir. 2002) (quoting United States v. Cohen, 260 F.3d 68, 76 (2d Cir. 2001)).

b. Naranjo has not demonstrated prejudice

In light of the Second Circuit's holding that the jury instructions did not constitute an error "so egregious and erroneous" as to infect Naranjo's trial, he also cannot demonstrate the second prong of Strickland, i.e., "that 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 688, 694. Naranjo provides no basis to support the conclusion that, (i) had his counsel properly objected, the District Court would have revised the instruction, or (ii) even if the same instruction had been given, the Second Circuit would have examined the charge under a de novo standard of review3 and would have followed the minority, as opposed to the majority, interpretation of Section 1028A to find the instruction defective. In fact, when interpreting subsection (c)(5) to include health care fraud as a cognizable predicate felony, the Second Circuit noted that its conclusion aligned with the majority of circuits upholding convictions on that ground. See United States v. Abdur-Rahman, 708 F.3d 98, 100 n.1 (2d Cir. 2013) (per curiam). Thus, the fact that the Second Circuit deferred to the interpretation followed by most other circuits suggests that, even on de novo review, the outcome of his trial and direct appeal would not have been different. See United States v. De La Pava 268 F.3d 157, 166 (2d Cir. 2001) (finding it unlikely that, but for counsel's alleged deficiency, there was a "reasonable probability that the outcome" of defendant's proceeding would have been different).

Even assuming that his counsel's non-objection was an unprofessional error, Naranjo has not demonstrated that it "so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect." Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). Accordingly, he cannot show that his counsel's performance caused him any prejudice. See Lockhart, 506 U.S. at 372 ("Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him."); Shi Yong Wei v. United States, No. 11 Civ. 6961 (RMB), 2013 WL 980151, at *3 (S.D.N.Y. Mar. 12, 2013) (counsel's failure to object to possible wording error in jury instructions did not cause prejudice).

2. Naranjo's counsel was not constitutionally ineffective with respect to his sentence, or the orders of restitution and forfeiture

Naranjo challenges his counsel's conduct with respect to his sentence and order of restitution, arguing that his counsel failed to: (i) challenge the restitution order (Ground 3); (ii) request a Fatico hearing (Ground 8); (iii) identify the correct jurisdictional timeframe and limit the evidence accordingly (Ground 11); (iv) investigate the amount of losses (Ground 12); and (v) challenge his sentence (Ground 13). In his brief in support of his 2255 Motion, he also asks that the forfeiture amount be reduced to $41,792.17 due to his counsel's ineffective assistance. (ECF No. 2 at 65-68).

a. Naranjo's challenges to the orders of restitution and forfeiture are procedurally barred

Under Second Circuit precedent, Section 2255 may not be used to a challenge to non-custodial aspects of a criminal sentence, including orders of restitution and forfeiture. Kaminski v. United States, 339 F.3d 84, 88-89 (2d Cir. 2003); Lasher v. United States, No. 17 Civ. 5925 (NRB), 2018 WL 3979596, at *5-6 (S.D.N.Y. Aug. 20, 2018); Nigro v. United States, No. 15 Civ. 3444 (PKC) et al., 2016 WL 3211968, at *9 (S.D.N.Y. June 6, 2016). Although the Second Circuit has left open the possibility that a restitution order could be so burdensome as to amount to a restraint on liberty that would be reviewable on a Section 2255 motion, Naranjo does not contend that his order "constitutes a restraint on his liberty." See Bimpeh v. United States, No. 05 Civ. 3011 (LBS), et al., 2008 WL 4861705, at *2 (S.D.N.Y. Nov. 10, 2008). Therefore, Naranjo's challenge to his counsel's conduct with respect to the orders of restitution and forfeiture is not cognizable under Section 2255.

b. Naranjo's counsel's conduct was not constitutionally defective, and he did not suffer any prejudice

Naranjo's arguments that his counsel's representation was deficient with respect to his prison sentence and the orders of restitution and forfeiture are without merit. The record on sentencing issues included lengthy briefing by Jover, in which Naranjo joined, followed by oral argument, in which Naranjo's counsel participated and in fact suggested corrections to the restitution amount. (Cr. ECF No. 53 at 22). The District Court then entered preliminary orders of restitution and forfeiture, (id.), to which Jover made objections in which Naranjo joined. (Cr. ECF Nos. 52, 55). The District Court considered and rejected all of the defendants' arguments, including the arguments that Naranjo now repeats in his Section 2255 Motion that the employees he underpaid were not "victims" entitled to restitution and his proposed cost reductions to the forfeiture order. (Cr. ECF No. 61 at 3-4, 7-9). The District Court also considered whether to hold a hearing under United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979),4 but determined that doing so was unnecessary. (ECF No. 53 at 35).

With respect to his prison sentence, the Second Circuit found his arguments to be without merit. See Naranjo, 645 F. App'x at 53. (2d Cir. ECF No. 109). Naranjo's counsel cannot be faulted for failing to raise non-meritorious issues. Rosa, 170 F. Supp. 2d at 407 (S.D.N.Y. 2001) (rejecting ineffective assistance of counsel claim where defendant provided "no evidence that there would have been any basis for" the argument he claimed counsel should have made).

Accordingly, Naranjo's counsel's performance through the sentencing process did not fall "below an objective standard of reasonableness." Strickland, 466 U.S. at 688. He also cannot demonstrate that his counsel's performance in this regard "so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect." Kimmelman, 477 U.S. at 374.

3. Naranjo's counsel was not constitutionally ineffective for failing to move to sever

Naranjo argues that his counsel should have moved to sever his trial from Jover's because "there were issues relevant to Jover" that were not relevant to him, and, as a result, the joint trial resulted in his conviction for aggravated identity theft. (ECF No. 1 at 22-23).

To succeed on his claim that his counsel was constitutionally ineffective for failing to move to sever, Naranjo must "show both (a) that counsel's failure to move for a severance constituted professional performance that was below an objective standard of reasonableness, and (b) that if such a motion had been made, the outcome of the proceeding would likely have been different." United States v. Robinson, 28 F. App'x 50, 52 (2d Cir. 2002). His counsel's decision not to move to sever was likely a strategic one, to which this Court must ordinarily defer. See Strickland, 466 U.S. at 690-91 ("strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable"). Here, Naranjo proceeded to trial with Jover, who played a larger role in the fraudulent scheme. (See, e.g., ECF No. 53 at 31-32 (government attorney conceded that Naranjo was "less culpable than Jover Naranjo. Not much, but less.")). Although the record does not disclose his counsel's specific reason for not moving to sever, it is a reasonable inference that choosing not to seek to sever his client from a more culpable defendant in the hope of convincing the jury that Naranjo was "a relative innocent next to" Jover was a strategic decision that, although unsuccessful, did not render his counsel's performance constitutionally inadequate. Lake v. Portuondo, 14 F. App'x 126, 126 (2d Cir. 2001); see Robinson, 28 F. App'x at 53 ("we see no reason to infer that [defendant's] attorney's decision to eschew a motion for severance was not simply a matter of reasonable trial strategy").

Naranjo has not shown that, as a result of his counsel's actions, trial would likely have had a different outcome, or that the conduct undermined confidence in the fairness of the verdict. See Robinson, 28 F. App'x at 52. Any motion to sever would likely have been denied, given the unity of the facts and participants in their scheme combined with the familial connection between Naranjo and Jover such that joint trial was not only constitutionally permissible but also the preferred course in the federal courts. United States v. Attanasio, 870 F.2d 809, 815 (2d Cir. 1989); see United States v. Shareef, 190 F.3d 71, 77 (2d Cir. 1999) ("in the federal system, there is a preference for the joint trial of defendants indicted together"). Finally, Naranjo has not detailed, and the Court is not aware of, any evidence against Jover individually that prejudiced the jury's evaluation of the claims against Naranjo. See id. at 78 ("we see no basis for inferring that any of the testimony before the jury at the joint trial would not have been forthcoming at a trial of [defendant] alone").

4. Naranjo's counsel did not provide ineffective assistance with respect to a potential guilty plea

Naranjo argues that his counsel was ineffective for failing to discuss plea options with him, and for misrepresenting his potential sentencing exposure such that he was unable to make "an informed decision about whether to pursue a trial." (ECF No. 1 at 27). Naranjo had the right to effective assistance of counsel during plea negotiations. Lafler v. Cooper, 566 U.S. 156, 163 (2012). In the plea context, defense "counsel must communicate to the defendant the terms of the plea offer . . . and should usually inform the defendant of the strengths and weaknesses of the case against him, as well as the alternative sentences to which he will most likely be exposed." Purdy v. United States, 208 F.3d 41, 45 (2d Cir. 2000). Defense counsel's decision "as to how best to advise a client in order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea enjoys a wide range of reasonableness." Id. To demonstrate prejudice, "a defendant must show the outcome of the plea process would have been different with competent advice." Lafler, 566 U.S. at 163. Where the defendant has chosen to go to trial, he "must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court . . . that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed." Id. at 164.

Naranjo does not state that an offer to plead to anything less than all of the charges in the indictment ever existed, let alone that his counsel failed to communicate such an offer. The most he claims is that at some unspecified point in the proceedings he was willing to enter an "open plea," which the Court interprets to mean a plea to all of the charges in the indictment without a plea agreement with the government. (ECF No. 1 at 27). The absence of a plea offer is "fatal" to any claim that his counsel was ineffective. Barnes v. United States, No. 13 Civ. 1226 (SAS), et al., 2013 WL 3357925, at *7 (S.D.N.Y. July 2, 2013). Without any tangible plea offer, "it would be entirely speculative to consider the terms, including the length of sentence, or a theoretical plea bargain." Id. Naranjo's "self-serving, post-conviction" speculation about his intent to accept a plea offer "is insufficient by itself" to establish a reasonable probability that he would have accepted the non-existent plea offer with corresponding reductions in his sentence and orders of restitution and forfeiture. Shi Yong Wei, 2013 WL 980151, at *5. Accordingly, Naranjo is not entitled to relief on this ground.

5. Naranjo's counsel was not ineffective for failing to challenge the conspiracy to commit mail fraud and mail fraud charges

Naranjo argues that his counsel failed "to properly challenge the conspiracy to commit mail fraud and the mail fraud act charges." (ECF No. 1 at 23). In conclusory fashion, he maintains his innocence of both charges without elaborating as to what else he claims his counsel could and should have done. (Id.). Such "conclusory statement[s] cannot support relief under section 2255." Rosa, 170 F. Supp. 2d at 400. In any event, Naranjo's counsel did contest the mail fraud charges, and otherwise mounted a full-throated defense of Naranjo's innocence. (See, e.g., Cr. ECF No. 40 at 59). There is no basis to conclude that Naranjo's counsel's actions "fell below an objective standard of reasonableness," nor that he suffered any prejudice. Rosa, 170 F. Supp. 2d at 400.

6. Naranjo's counsel was not constitutionally ineffective for failing to object to the prosecutor's summation

Naranjo complains that his counsel was ineffective for failing to object when the prosecutor stated during summation that Naranjo and Jover stole money, "portray[ed] fact matters that are not in evidence, and misstate[d] the facts and laws." (ECF No. 1 at 32). Again, Naranjo does not detail which statements by the prosecutor he finds objectionable, making it virtually impossible to evaluate this claim.

In evaluating allegedly improper remarks by a prosecutor on summation, "[t]he relevant question is whether the prosecutors' comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). In evaluating a habeas claim based on prosecutorial misconduct in summation, this Court must "distinguish between `ordinary trial error of a prosecutor and that sort of egregious misconduct . . . amount[ing] to a denial of constitutional due process.'" Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) (quoting Donnelly, 416 U.S. at 647-48). Three factors are relevant to the Court's evaluation: (1) the severity of the misconduct, (2) the measures the trial court adopted to cure the misconduct, and (3) the certainty of conviction absent the improper statement. Floyd, 907 F.2d at 355; Thompson v. Cunningham, No. 08 Civ. 10458 (VB), 2013 WL 3742490, at *12 (S.D.N.Y. June 28, 2013).

The Court has reviewed the prosecution's summation and finds no evidence of misconduct. For the avoidance of any doubt, the District Court instructed the jury "that none of what the lawyers have said in their opening statements, in their closing arguments, in their objections or in their questions is evidence." (Cr. ECF No. 40 at 97). This was an "appropriate measure[] to cure any prejudice" that might have resulted from any of the prosecutor's statements. Thompson, 2013 WL 3742490, at *13. The Second Circuit's affirmance of Naranjo's conviction strongly indicates that he "would have been convicted with or without these comments." Id. Therefore, Naranjo's argument that his counsel was deficient in failing to object to unspecified and apparently harmless comments does not provide a basis for relief.

7. Naranjo's counsel was not constitutionally deficient with respect to witnesses

Naranjo argues that his counsel failed to object to and competently cross-examine prosecution witnesses, failed to present expert evidence to challenge the restitution amount, and failed to investigate, locate, and subpoena witnesses in his defense. (ECF No. 1 at 34-41 (Grounds 16-21)). The one specific witness he claims his counsel should have called is Norma Orbe, whom, he asserts, would have testified that "the Union's representatives falsely advised Naranjo's workers to claim that they worked 100% on the" Ciena project. (ECF No. 1 at 37-38).

Each of Naranjo's complaints concerning his counsel's actions or omissions concerning witnesses fall well within the realm of what "`might be considered sound trial strategy'" and "do not constitute ineffective assistance." United States v. Best, 219 F.3d at 192, 201 (2d Cir. 2000) (quoting Strickland, 466 U.S. at 689). The decision not to make an objection that lacked a legal basis, as well as his decision "whether to call specific witnesses—even ones that might offer exculpatory evidence—is ordinarily not viewed as a lapse in professional judgment." Best, 219 F.3d at 201 (quoting United States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 1997)); Harrington v. Richter, 562 U.S. 86, 111 (2011) (failure to call expert witness did not render counsel's conduct deficient under Strickland). Naranjo's conclusory assertions fail to take this case outside the standard of reasonableness. The testimony he contends Ms. Orbe would have tendered would likely have been excluded for the same reasons the District Court limited the cross-examination of Michelle Lettire: the defense "was trying to inject in front of the jury" irrelevant arguments that had "propensity to confuse the jury." (Cr. ECF No. 38 at 34). Accordingly, Naranjo's counsel's conduct as to witnesses was not constitutionally deficient, nor has he shown prejudice from that conduct. Lowe v. United States, No. 18 Civ. 898 (LGS), 2019 WL 5853436, at *3 (S.D.N.Y. Nov. 8, 2019) (failure to interview and call witnesses did not prejudice defendant)

8. Naranjo's counsel was not constitutionally defective with regard to documentary evidence

Naranjo argues that his counsel was deficient for failing to demand material to which he was entitled under Brady v. Maryland, 373 U.S. 83 (1963). (ECF No. 1 at 41 (Grounds 18 and 22)). He claims that Michelle Lettire possessed documents reflecting Lettire's "pattern and habit of causing inexperienced subcontractors to pay below prevailing wages." (Id.).

Under Brady, "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment." Brightley v. Heath, No. 11 Civ. 1761 (LGS), 2016 WL 1060326, at *5 (S.D.N.Y. Mar. 15, 2016) (quoting Brady, 373 U.S. at 87)). "Impeachment evidence that would not likely change the verdict is not material." Brightley, 2016 WL 1060326, at *5 (citing Giglio v. United States, 405 U.S. 150, 154 (1972)).

Assuming the existence of the documents to which Naranjo refers, he does not explain how a pattern of misconduct by Lettire would somehow have exonerated his own criminal liability for participating in the same misconduct such that the prosecution had an obligation to disclose it and his counsel had an obligation but failed to pursue it. United States v. Sapia, No. 02 Civ. 649 (AGS), et al., 2002 WL 620483, at *9 (S.D.N.Y. Apr. 18, 2002) (rejecting ineffective assistance of counsel claim based on alleged failure to pursue evidence that was not exculpatory). Naranjo's evidentiary arguments therefore fail to demonstrate deficiency and prejudice under Strickland. See Monserrate v. United States, No. 10 Crim. 965 (CM), et al., 2014 WL 7179628, at *7 (S.D.N.Y. Dec. 10, 2014) ("There is no indication in this case that the Government violated its discovery obligation and there was nothing infirm about counsel's pursuit of discovery or review of the same with his client."); see Sapia, 2002 WL 620483, at *9 (rejecting ineffective assistance claim where defendant failed to show prejudice from counsel's failure to purse Brady material).

II. MOTION TO AMEND

Naranjo seeks to amend two of the grounds in his 2255 Motion. (ECF No. 14). First, with respect to his claim that his counsel was ineffective in failing to challenge his sentence, Naranjo seeks to add the allegation that his counsel failed to invoke "Amendment 794" to seek a remand on appeal for consideration of a minor role reduction. (ECF No. 14 at 3). Second, with respect to his claim that his counsel was ineffective in failing to challenge the forfeiture order, Naranjo seeks to argue that, under the 2017 decision of the United States Supreme Court in Honeycutt v. United States, 137 S.Ct. 1626 (2017), he cannot be held jointly and severally liable. (ECF No. 14 at 3).

A. Applicable Law

A motion to amend a Section 2255 petition must comply with Federal Rule of Civil Procedure 15(a), which allows for an amendment as a matter of course within 21 days after service, and otherwise by leave of the court or with the opposing party's consent. See Thompson v. United States, No. 16 Civ. 3468 (AJN), 2017 WL 2666115, at *2 (S.D.N.Y. June 19, 2017); Fed. R. Civ. P. 15(a)(1)-(2).

Under Rule 15(a), a court should grant leave to amend "when justice so requires," Foman v. Davis, 371 U.S. 178, 182 (1962), but may deny leave to amend "`for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.'" Dunham v. City of New York, No. 11 Civ. 1223 (ALC) (HBP), 2014 WL 1760330, at *1 (S.D.N.Y. May 2, 2014) (quoting Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir. 2009)). An amendment is "futile" where the claims plaintiff seeks to assert would not survive a motion to dismiss under Rule 12(b)(6). Id. Procedural default can also make a proposed amendment "futile" if the petitioner has not shown cause or prejudice justifying the default. Beverly v. Walker, 899 F.Supp. 900, 907-08 (N.D.N.Y. 1995) (denying amendment as futile "because petitioner has procedurally defaulted on his claim and has not shown cause nor prejudice for the default").

B. Discussion5

1. Naranjo's proposed amendment to Ground 13 would be futile

Naranjo seeks to enhance his argument that his counsel was deficient for failing to secure a minor role reduction6 in his sentence by adding to his 2255 Motion reference to Amendment 794 to the United States Sentencing Guidelines, which became effective on November 1, 2015. (ECF No. 14 at 3, 6-9).7

Amendment 794 "clarified that a role reduction is appropriate if the defendant was `substantially less culpable than the average participant in the criminal activity,' and that the `average participant' specifically refers to the defendant's `co-participants in the case at hand.'" United States v. Kirk Tang Yuk, 885 F.3d 57, 88 n.16 (2d Cir. 2018). Although Naranjo was sentenced on April 9, 2014, he invokes the Ninth Circuit's holding in United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016) to argue that Amendment 794 should have been applied retroactively to reduce his sentence. (ECF No. 14 at 7).

To the extent that Naranjo is arguing that his counsel was deficient during the sentencing proceedings before the District Court for failing to invoke the then-non-existent clarification in Amendment 794, his proposed amendment is without merit. His counsel was not required to make meritless objections under then-existing precedent, anticipate changes in the law, or raise every potentially meritorious claim. See Jones, 463 U.S. at 754 (counsel does not have a duty to advance every non-frivolous argument that can be made); Rosa, 170 F. Supp. 2d at 407 (counsel's failure to make a non-meritorious objection does not constitute ineffective assistance).

To the extent that Naranjo is arguing that his counsel was deficient for not invoking Amendment 794 during his direct appeal, his argument fares no better. Naranjo misplaces his reliance on Quintero-Leyva, in which the Ninth Circuit held that Amendment 794 could retroactively apply on direct appeal, 823 F.3d at 523, because, in the Second Circuit, Amendment 794 "has not been given retroactive application" on direct appeal. Kirk Tang Yuk, 885 F.3d at 88 n.16 (citing U.S.S.G. § 1B1.10(d)); see also Calderon v. United States, No. 02 Crim. 1082-02 (NRB), 2016 WL 7742746, at *1 (S.D.N.Y. Dec. 28, 2016) (holding that because Amendment 794 is not listed in U.S.S.G. § 1B1.10(a)(1) it does not apply retroactively).

Finally, even if there had been a basis for Naranjo's counsel to argue that Amendment 794 applied, his proposed amendment is without merit because by any definition of the term, Naranjo did not play a "minor" role in the crimes of which he was convicted. As the District Court explained, although he was not "as totally culpable" as Jover, Naranjo's role was "significant — very significant." (ECF No. 53 at 33). At best, Naranjo was "less culpable than Jover Naranjo. Not much, but less." (Id. at 31-32). The jury found the evidence sufficient to convict him on all five of the counts with which he was charged, and Jover was convicted on only one additional count. (ECF No. 21 at 1). Numerous employees testified that Naranjo instructed them to use false names and hide from investigators, among other obstructive acts. (See supra, Section A). In these circumstances, Naranjo's participation in the crimes for which he was convicted was neither "minor" nor "minimal." Calderon, 2016 WL 7742746, at *2 (defendant who participated in 50-60% of the offenses, had a firearm, and received 20% of the receipts from the conspiracy was not entitled to a minor role reduction). Even if his counsel's failure to invoke Amendment 794 fell below a standard of objective reasonableness, Naranjo has not demonstrated that he suffered any prejudice in the sentence that was imposed, and therefore, allowing an amendment to add references to Amendment 794 would be futile.

2. Naranjo's proposed amendment to Ground 8 would be futile

The Court interprets Naranjo's second proposed amendment as seeking to amend Ground 8 of his 2255 Motion challenging the amount of the District Court's forfeiture order. (ECF No. 1 at 24-25; ECF No. 14 at 3, 9-11). In particular, Naranjo seeks to invoke the decision, issued after his conviction and appeal, in Honeycutt, in which the Supreme Court held that under 21 U.S.C. § 853, a defendant may not be held jointly and severally liable for property that his co-conspirator derived from the crime but that the defendant himself did not acquire. 137 S. Ct. at 1630.

An amendment to invoke Honeycutt, however, would be futile. Even if Naranjo could get around his inability to challenge the forfeiture order under Section 2255, (see supra, Section I.B.2), Honeycutt does not provide relief to defendants like Naranjo who are subject to forfeiture orders under 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461. (See Cr. ECF No. 73 at 1). See United States v. McIntosh, No. 11 Crim. 500 (SHS), 2017 WL 3396429, at *1, *4-6 (S.D.N.Y. Aug. 8, 2017) (holding that Honeycutt did not extend to under 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461 given "significant material differences" between those statutes and 21 U.S.C. § 853 and the Supreme Court's "meticulous avoid[ance]" of any mention of any other forfeiture statute); United States v. Bergstein, No. 16 Crim. 746 (PKC), 2018 WL 9539768, at *2 (S.D.N.Y. Sept. 20, 2018) (holding that Honeycutt did not affect forfeiture order under 18 U.S.C. § 981(a)(1)(C)). For forfeiture orders like the one to which Naranjo is subject, then, controlling Second Circuit precedent provides for joint and several liability where the defendant exercised control over the forfeitable property, even if he did not possess it. See Bergstein, 2018 WL 9539768, at *2; United States v. Viloski, 814 F.3d 104, 108 & n.2 (2d Cir. 2016); United States v. Mandell, 752 F.3d 544, 554 (2d Cir. 2014 (per curiam); United States v. Contorinis, 692 F.3d 136, 147 (2d Cir. 2012).

Because Honeycutt does not provide a basis for finding that Naranjo's counsel was constitutionally deficient to an extent that prejudiced his sentencing proceeding, this proposed amendment would be futile. See Dunham, 2014 WL 1760330, at *1.

CONCLUSION

For all of the foregoing reasons, I recommend that the 2255 Motion and the Motion to Amend be denied in their entirety.

I further recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), as Naranjo has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Clerk of Court is respectfully directed to close the Motions at ECF Nos. 14 and 15 and to mail a copy of this Report and Recommendation to the address below.

SO ORDERED.