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FOY v. UNITED STATES

November 2, 1993

Henrique Foy, Petitioner,
v.
United States of America, Respondent.


Sifton


The opinion of the court was delivered by: CHARLES P. SIFTON

SIFTON, District Judge.

 Petitioner, Henrique Foy, brings this motion pro se pursuant to the federal habeas corpus statute, 28 U.S.C. § 2255, in order to vacate, set aside, or correct his criminal convictions for possession and distribution of narcotics and firearms. Interpreting his motion papers liberally, see Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), petitioner alleges selective prosecution on religious and racial grounds, prosecutorial misconduct through the suppression of favorable evidence and violation of the Jencks Act, insufficiency of the evidence to sustain his conviction, violation of the right to confront witnesses, double jeopardy, lack of federal jurisdiction, prejudicial joinder, ineffective assistance of counsel at both the trial and appellate levels, and other violations of the First, Second, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth and Fourteenth Amendments to the Constitution. For the reasons set forth below, petitioner's motion is denied in its entirety.

 Factual Background

 The following facts are established by the trial record. In the spring of 1989, Kevin Crandle, an acquaintance of petitioner, was arrested by undercover agents from the Bureau of Alcohol, Tobacco and Firearms ("the ATF") for illegally selling them guns. After informing the agents that crack cocaine was being sold out of a Brooklyn restaurant called the "Congo" by three individuals (among them petitioner) to whom he had also been delivering firearms from out of state, Crandle agreed to cooperate with the ATF and work for the Bureau in an undercover capacity.

 After a series of taped conversations regarding Foy and his accomplices' desire to purchase more guns, Crandle delivered three firearms to the "Congo" in June of 1989. Immediately following the delivery, ATF agents executed a search warrant at the restaurant, where they discovered and seized a quantity of crack cocaine and vials. The three suspects fled out a window. Two were apprehended outside, but Foy escaped after pointing a handgun at an ATF agent. He was arrested several days later.

 Crandle testified against Foy and his co-defendants during a jury trial held in January of 1990. The jury convicted petitioner of two counts of narcotics trafficking in violation of 21 U.S.C. § 846 and § 841(b)(1)(B), three counts of firearms violations in violation of 18 U.S.C. § 924(c)(1), § 922(a)(1)(A) and § 922(a)(3), and one count of assaulting an ATF agent in violation of 18 U.S.C. § 111. One of his co-defendants was also convicted on narcotics and firearms charges, and the third was acquitted.

 Petitioner appealed his conviction on the grounds that there was insufficient evidence to convict him. The Court of Appeals affirmed the conviction in an unpublished opinion dated August 1, 1991.

 DISCUSSION

 Petitioner's arguments with respect to the sufficiency of the evidence as to the first two counts of his conviction have already been considered and rejected by the Court of Appeals and are not now subject to reconsideration on a section 2255 motion. See United States v. Jones, 918 F.2d 9, 10-11 (2d Cir. 1990). Petitioner's remaining arguments, with the exception of his claim of ineffective assistance of appellate counsel, *fn1" are also procedurally barred from collateral relief since he failed to raise these claims either at trial or on direct appeal and has not shown prejudice nor cause why they should be heard now. *fn2" See Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992). Even when reviewed substantively, however, all of petitioner's claims are meritless.

 Petitioner argues that his constitutional rights were violated due to selective prosecution on the basis of his appearance, religion, and race. In order to demonstrate selective prosecution, a defendant must show both that the prosecution "had a discriminatory effect, and that it was motivated by a discriminatory purpose." Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979); see also Wayte v. United States, 470 U.S. 598 *fn3" , 84 L. Ed. 2d 547, 105 S. Ct. 1524 (1985).

 Petitioner demonstrates no factual basis for the allegations in his complaint. Although he states repeatedly that he has been persecuted as a result of his race, appearance and Rastafarian religion, he provides no evidence that his arrest or conviction was based on any of these factors. The sole basis for his claims is the allegation that a white man would not have received the same treatment as he has, the fact that then President Bush pardoned a Pakistani drug dealer in January of this year, and the fact that the government successfully prosecuted Assistant to the Attorney General Henry Barr in February of 1991. None of these allegations in any way suffices to meet petitioner's burden of establishing a prima facie case of selective prosecution.

 Petitioner argues that his right to due process was violated when the government and his attorney conspired to suppress evidence in violation of his rights under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), which directs the prosecution to turn over to the defense requested evidence favorable to an accused where such evidence is material as to guilt, and under the Jencks Act, 18 U.S.C § 3500, which requires the government to produce previously made statements in its possession of any witnesses testifying under examination at trial. Petitioner, however, fails to identify any specific document the government failed to produce to the defendants, with the exception of the plea agreement between the government and witness Kevin Crandle. Pet. Mem. P 12M). The trial record, however, establishes that Crandle's plea agreement was in fact produced to defense counsel. Trial Tr. at 282. Accordingly, petitioner's contentions that the government failed to comply with its Brady and Jencks Act obligations are unsupported.

 Petitioner argues that the government did not prove the conspiracy alleged in Count One, since one cannot ...


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