The Supreme Court has established a two-part test for determining whether an attorney's representation constitutes ineffective assistance of counsel. "First, the defendant must show that counsel's performance was deficient." 466 U.S. at 687. "Second, the defendant must show that the deficient performance prejudiced the defense." Id.
To satisfy the first prong of the Strickland test, a defendant must show that "his attorney's performance 'fell below an objective standard of reasonableness.'" See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (quoting Strickland, 466 U.S. at 688). The Supreme Court has eschewed articulating a rigid set of standards for determining whether an attorney's conduct is reasonable, stating instead that "the proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688.
The Supreme Court has, however, explained the method that a federal court should employ in determining whether an attorney's performance was reasonable. The Court has instructed that "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 100 L. Ed. 83, 76 S. Ct. 158 (1955)). This presumption is necessary because "it is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." 466 U.S. at 689 (citation omitted). Further, to prevent a federal court from hindsighting counsel's actions, a court may not use hindsight in evaluating whether an attorney's conduct was reasonable. See Id. at 690; Mayo, 13 F.3d at 533 (citation omitted).
To satisfy the second prong of the Strickland test, a defendant must show that his attorney's deficient performance prejudiced his defense. See Strickland, 466 U.S. at 687. A defendant establishes prejudice by demonstrating that "there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" United States v. Zackson, 6 F.3d 911, 921 (2d Cir. 1993) (quoting Strickland, 466 U.S. at 694); see also Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992).
In the instant case, petitioner raises seven claims of ineffective assistance of counsel. Each of these claims is examined in turn.
First, petitioner contends that counsel was ineffective because "trial counsel failed to make a request that the defense theory of 'mere association' be read into the jury instructions." (Petitioner's Brief at 7.) Petitioner's contention is meritless for the simple reason that this Court did, in fact, charge the jury regarding the mere-association theory: "Of course, mere association with a conspirator does not make one a member of the conspiracy, nor is knowledge without participation sufficient." (Trial Transcript at 820.) Thus, petitioner has failed to demonstrate that his counsel acted unreasonably, and he has failed to demonstrate that counsel's actions prejudiced petitioner's defense.
Second, petitioner claims that counsel was ineffective because counsel should have argued that the DEA agents who testified against petitioner were lying.
Petitioner cites various inconsistencies in the DEA agents' testimony to support his contention that the agents perjured themselves. Petitioner's claim is meritless, however, because he has failed to "overcome the presumption that, under the circumstances," his attorney's decision not to argue that the agents were lying "'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 100 L. Ed. 83, 76 S. Ct. 158 (1955)). In the instant case, defense counsel argued that the DEA agents were mistaken in their perceptions and their recollections. Defense counsel's strategic decision to focus on the agents' perceptions was reasonable because the agents observed petitioner at night, from a distance, and from the inside of a car. Defense counsel's decision to challenge the agents' recollections was also reasonable because several of the DEA reports in this case fail to state that Matista carried a bag of money from the Nissan to the Toyota. (Trial Transcript at 398-402, 411, 770.) Counsel has broad discretion to determine what arguments to make in front of the jury, and counsel exercised this discretion in choosing to challenge the agents' perceptions and recollections instead of their truthfulness. Thus, petitioner has not overcome the presumption that defense counsel acted reasonably in choosing not to challenge the agents' truthfulness.
Petitioner has also failed to demonstrate that counsel's actions prejudiced petitioner's defense. To demonstrate prejudice, 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.'" Zackson, 6 F.3d at 921 (quoting Strickland, 466 U.S. at 694). In the instant case, petitioner has merely asserted that if counsel had argued that the DEA agents were lying, the jury's verdict would have been different. Petitioner's bald assertion does not demonstrate that there is any reasonable probability that the result of petitioner's trial would have been different, and thus, petitioner has failed to demonstrate prejudice.
Third, petitioner claims that he was denied effective assistance of counsel because petitioner claims that his attorney told an attorney for his wife that "he . . . knows that the Matistas are guilty." (Petitioner's Brief at 14 (emphasis removed).) Petitioner claims that his wife's attorney told petitioner's wife about this statement and that petitioner's wife told petitioner about this statement. This statement savages credulity to such an extent that it would be unseemly to consider it in any fashion. Petitioner has not even attempted to make any showing, let alone an adequate one. "In seeking collaterally to attack their convictions under section 2255, defendants bear the burden of establishing by a preponderance of the evidence that they are entitled to relief." United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978) (citing Coon v. United States, 441 F.2d 279 (5th Cir.), cert. denied, 404 U.S. 860, 30 L. Ed. 2d 103, 92 S. Ct. 160 (1971)); see also Strickland, 466 U.S. at 687 (stating that "the defendant must show that counsel's performance was deficient" and that "the defendant must show that the deficient performance prejudiced the defense") (emphasis added).
In the instant case, petitioner has not established by a preponderance of the evidence that his counsel did, in fact, state that counsel knew petitioner was guilty. Petitioner bases this claim on his own unsupported assertion, which is double-hearsay. This Court must presume that petitioner's counsel acted reasonably.
Fourth, petitioner claims that his counsel was ineffective because counsel should have objected when the Court explained to the jury that a particular jury instruction did not apply to petitioner. The Court stated:
Of course, this instruction does not apply to your consideration of the case against the defendant [sic] Jose Matista and Angela Matista.
(Trial Transcript at 822-23.) This claim is based on petitioner's misreading of the trial transcript. On page 822 of the trial transcript, this Court advised the jury that two of petitioner's co-defendants had stipulated that each of them had the knowledge and intent to purchase heroin: "The defendant [sic] Vargas and Mejia have not placed in issue whether each of them had the knowledge and intent that the government would otherwise have to prove beyond a reasonable doubt before you could find either of them guilty of conspiracy." The instruction that petitioner now challenges explained to the jury that this stipulation did not apply to petitioner and that the government retained the burden of proving beyond a reasonable doubt that petitioner had the knowledge and intent to commit conspiracy. Because petitioner never stipulated that he had the intent to commit conspiracy, his counsel obviously acted reasonably in failing to object to the instruction that petitioner now claims was an error.
Fifth, petitioner argues that counsel was ineffective because counsel failed to advise petitioner of the legal consequences of petitioner's decision to jump bail and flee the country. Petitioner asserts:
if counsel would have been apprised the defendant of the consequence if he should even think about leaving the United States for any reason then he would lose many of his rights, such as, his right to appeal and that he would also be facing a newer charge of offense, then the defendant would have taken this advise under consideration.