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MATISTA v. UNITED STATES

May 17, 1995

JOSE MATISTA, Petitioner, against UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: DAVID N. EDELSTEIN

 EDELSTEIN, District Judge:

 Petitioner Jose Matista, pro se, brings this motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. *fn1" Petitioner also moves, pursuant to 18 U.S.C. § 3582(c)(2), to modify his sentence.

 BACKGROUND

 Jose Matista ("Matista") was convicted, after a jury trial, of one count of conspiracy to possess heroin with intent to distribute, in violation of 21 U.S.C. § 846. The evidence at trial showed that in May 1988, Matista and several other persons conspired to purchase approximately twelve pounds of heroin from undercover agents of the Drug Enforcement Administration ("DEA"). The evidence further demonstrated that Matista's role in the conspiracy was to deliver approximately $ 400,000 to his co-conspirators immediately prior to the pre-arranged drug transaction.

 In December 1989, Matista and his co-defendants, including his wife, proceeded to trial. Prior to closing arguments, Matista and his wife fled the country. The jury convicted the Matistas of conspiracy to possess heroin with intent to distribute. This Court sentenced Matista to a 151-month term of imprisonment, followed by a four-year term of supervised release.

 On May 13, 1990, Matista was apprehended when he attempted to enter Puerto Rico from the Dominican Republic. Matista was charged with bail-jumping, in violation of 18 U.S.C. § 3146. He pleaded guilty to this charge, and this Court sentenced him to twelve months incarceration.

 On three occasions, Matista has sought to challenge his conspiracy conviction. First, Matista appealed to the Court of Appeals for the Second Circuit, which dismissed his appeal because he had fled the jurisdiction during trial. See United States v. Matista, 932 F.2d 1055 (2d Cir. 1991). Second, Matista brought a motion seeking a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Thereafter, Matista filed a motion seeking to withdraw his habeas corpus motion, and this Court granted Matista's motion to withdraw. Third, Matista brought the instant motion.

 In his motion, petitioner contends that his sentence was imposed in violation of the Constitution of the United States because petitioner was denied effective assistance of counsel. Moreover, petitioner contends that his sentence was illegal because, as a matter of law, the evidence at his trial was insufficient to establish that he was a member of a conspiracy.

 Petitioner also moves, pursuant to 18 U.S.C. § 3582(c)(2), to modify his sentence.

 DISCUSSION

 Petitioner's claim that he was denied effective assistance of counsel is within the scope of § 2255 because his claim alleges that his sentence violates the Constitution of the United States. See 28 U.S.C. § 2255. Petitioner's claim that there was insufficient evidence to convict petitioner of conspiracy is also within the scope of § 2255 because his claim alleges that his sentence is illegal.

 1. Ineffective Assistance of Counsel

 The Sixth Amendment to the Constitution guarantees a criminal defendant the right to counsel. As the Supreme Court has noted, "the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial." Strickland v. Washington, 466 U.S. 668, 684, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864, 104 S. Ct. 3562 (1984). The right to counsel protects a defendant's right to a fair trial because "access to counsel's skill and knowledge is necessary to accord defendants . . . 'ample opportunity to meet the case of the prosecution.'" Id. at 685 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 275-76, 87 L. Ed. 268, 63 S. Ct. 236 (1942)). Because counsel plays such a crucial role, the Supreme Court has recognized that "'the right to counsel is the right to the effective assistance of counsel.'" 466 U.S. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970)). Thus, if a defendant's counsel fails to render adequate legal assistance, defendant's Sixth Amendment rights are violated. See id. (citing Cuyler v. Sullivan, 446 U.S. 335, 344, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980)).

 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 ...


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