Petitioner's ineffective assistance of counsel claim on that
ground must fail.
B. Prosecutorial Misconduct Claims
1. Government's Closing Statement
Petitioner argues that the prosecutor's use of the phrases "I
submit" and "I suggest" during his closing argument constituted
improper vouching for the veracity of the Government's witnesses.
See Section 2255 Petition at 20. In response, the Government
contends that this argument was rejected on appeal and, moreover,
the use of these "well recognized rhetorical device[s]" did not
constitute vouching of the witnesses's credibility. Gov't
Response at 29.
In reviewing a claim of prosecutorial misconduct based on
statements made by a prosecutor, courts examine the statements in
the context of the trial to determine whether they resulted in
substantial prejudice to the defendant. See United States v.
Tutino, 883 F.2d 1125, 1136 (2d Cir. 1989), cert. denied,
493 U.S. 1081, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990). In assessing
whether or not substantial prejudice exists, courts weigh the
following factors: "the severity of the misconduct, the measures
adopted to cure it, and the certainty of conviction in the
absence of the misconduct." United States v. Melendez,
57 F.3d 238, 241 (2d Cir. 1995); see also Tutino, 883 F.2d at 1136
(internal quotations omitted).
"Although attorneys are generally barred from expressing
personal beliefs or opinions to the jury, the use of [the
expression `I think you can conclude'] . . . is permissible if it
clearly communicates nothing more than a comment on the
evidence." See United States v. Jaswal, 47 F.3d 539, 544 (2d
Cir. 1995). In the context the prosecutor used the phrases "I
submit" and "I suggest," he "was properly arguing the evidence
and was not referring to his personal beliefs or to any
additional information he might have had." Id. (prosecutor's
use of the phrase "I think you can conclude" does not constitute
misconduct); see also United States v. Stulga, 584 F.2d 142,
147 (6th Cir. 1978) ("The use of the words `I submit' are not the
equivalent of expressing a personal opinion. To paraphrase, it
would be `I submit that upon the facts as shown by the
evidence.'"). Viewing the prosecutor's closing as a whole, the
Court finds that the occasional use of rhetorical phrases such as
"I submit" and "I suggest" "is simply fair argument," United
States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981), cert.
denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982),
that does not rise to the level of prosecutorial misconduct.
Moreover, in its charge, the Court instructed the jury that the
statements and arguments made by counsel were not evidence.
2. Admission of Petitioner's Prior Convictions
Petitioner next argues that the prosecutor's reference during
his closing to Petitioner's prior conviction for robbery was
prejudicial. See Section 2255 Petition at 29-30.
As previously noted, the parties entered into a stipulation
whereby Petitioner's prior felony conviction would be disclosed
to the jury. See Gov't Response at 30. That conviction was also
admissible in light of the fact that Petitioner raised an
entrapment defense. See id. at 31. Accordingly, Petitioner's
claim of prosecutorial misconduct on this ground is without
C. Trial and Sentencing Errors
1. Applicable Sentencing Guidelines
Petitioner challenges two aspects of his sentence: (1) that he
improperly received a two level enhancement pursuant to U.S.S.G.
§ 2B3.1(b)(4)(B); and (2) that his offense level should have been
reduced by three levels pursuant to U.S.S.G. § 2X1.1(b)(2). See
Section 2255 Petition at 45. In response, the Government advances
three arguments: (1) the Sentencing Guidelines were properly
applied; (2) Petitioner was not prejudiced because neither
adjustment affected his sentence given
the determination that he was a career offender under U.S.S.G. §
4B1.1; and (3) Petitioner waived this claim attacking his
sentence by not raising it on appeal. See Gov't Response at
In Graziano v. United States, 83 F.3d 587, 590 (2d Cir.
1996), the Second Circuit addressed whether the "complete
miscarriage of justice" standard should apply to challenges to
the application of the Sentencing Guidelines raised for the first
time in a section 2255 petition:
Insofar as claims regarding a sentencing court's
error in failing to properly apply the Sentencing
Guidelines are neither constitutional nor
jurisdictional, we join several other circuits in
holding that, absent a complete miscarriage of
justice, such claims will not be considered on a
[section] 2255 motion where the defendant failed to
raise them on direct appeal. . . . This approach to
violations of the Sentencing Guidelines is consistent
with our view that the scope of review on a [section]
2255 motion should be narrowly limited in order to
preserve the finality of criminal sentences and to
effect the efficient allocation of judicial
83 F.3d at 590 (internal quotations and citations omitted).
Accordingly, because Petitioner's sentencing claim is neither
constitutional nor jurisdictional, he must establish that the
sentence imposed constituted a "complete miscarriage of justice."
Consistent with the Pre-Sentence Report, Petitioner's offense
level was increased two levels because "`it has been established
that the defendants intended to physically restrain the credit
union employees and/or customers to facilitate the commission of
the offense by tying them with duct tape.'" Gov't Response at 31
(quoting Pre-Sentence Report at ¶ 29); see also United States v.
Medina, 74 F.3d 413, 417 (2d Cir. 1996) ("At sentencing, the
defendant is responsible if an act performed in furtherance of a
conspiracy by a co-conspirator was `reasonably foreseeable,'
regardless of whether the defendant acted to promote it or
facilitate it.") (using reasonably foreseeable standard in
determining whether defendant's sentence should be enhanced under
U.S.S.G. § 2B3.1(b)(2)(C)); United States v. Burkey, 1996 WL
633512, at *1 (D.Kan. July 29, 1996) ("The [Pre-Sentence Report]
includes . . . an increase [under section 2B3.1(b)(4)(B)] because
the conspirators planned to physically restrain employees of the
bank by locking them in the safe."). Moreover, Petitioner's role
in the conspiracy effectively forecloses the application of the
three level reduction in section 2X1.1. See, e.g., United States
v. Waskom, 179 F.3d 303, 309 (5th Cir.) ("Where conspirators are
substantially prepared to complete the remaining acts they
believe necessary for their plan, they are more likely to be `on
the verge' of completing the substantive offense, and are thus
unlikely to deserve the reduction [under section 2X1.1(b)(2)]."),
cert. denied, ___ U.S. ___, 120 S.Ct. 547, 145 L.Ed.2d 424
(1999); Medina, 74 F.3d at 419 (2d Cir. 1996) (district court
did not err in denying a three-level downward departure under
section 2X1.1 where conspirators obtained a floor plan, planned
the robbery on a date the company would be holding a large amount
of cash, procured two firearms, several sets of handcuffs, and
ski masks for use during the crime, and drove to the company's
premises and parked their getaway vehicle in a nearby location);
United States v. Chapdelaine, 989 F.2d 28, 35 (1st Cir. 1993)
(district court did not commit error by declining to grant the
reduction under section 2X1.1(b) where "[t]he evidence showed
that [defendant] and the others arrived at the mall prepared and
equipped to carry out a robbery and were thwarted only by the
unexpected early departure of the Wells Fargo truck."), cert.
denied, 510 U.S. 1046, 114 S.Ct. 696, 126 L.Ed.2d 663 (1994).
Accordingly, because Petitioner's claimed sentencing errors fail
to satisfy the "complete miscarriage of justice" standard, he is
not entitled to habeas relief on that ground.
2. Constructive Amendment of the Indictment
In his Amended Motion, Petitioner argues that the Indictment
was constructively amended when the Government presented evidence
of a violation of 18 U.S.C. § 2113(d), even though the Indictment
charged a violation of 18 U.S.C. § 2113(a).*fn2 See Amended
Section 2255 Petition at 3-4. In response, the Government argues
that section 2113(d) merely provides for a sentence enhancement
rather than define a different offense and, thus, does not result
in an amendment to, or variance of, the Indictment. See Gov't
Response at 33.
Petitioner does not dispute that the government presented
evidence sufficient to support the elements of section 2113(d).
See Amended Section 2255 Petition at 4 ("[T]here is no doubt
that the government presented evidence which supported Attempted
Arm [sic] Bank Robbery. . . .") (emphasis in original).
Moreover, Petitioner was not sentenced separately under sections
2113(a) and 2113(d); rather, his sentence was enhanced based on
the existence of an aggravating factor, e.g., attempted armed
bank robbery. See, e.g., United States v. Benson, 918 F.2d 1, 3
(1st Cir. 1990) ("A bank robber is vulnerable to a sentence
enhancement under subsection 2113(d) if he uses `a dangerous
weapon or device' in attempting or committing the crime.");
United States v. Sappe, 898 F.2d 878, 881 (2d Cir. 1990)
(noting that the Supreme Court has held that "violations of
subdivisions (a), (b) and (d) of section 2113 did not constitute
separate offenses but were simply variations of a single offense
graded according to the existence and nature of aggravating
circumstances."); United States v. Spencer, 684 F.2d 220, 224
(2d Cir. 1982), cert. denied, 459 U.S. 1109, 103 S.Ct. 738, 74
L.Ed.2d 960 (1983); Grimes v. United States, 607 F.2d 6, 14 (2d
Cir. 1979); United States v. Bennett, 547 F.2d 1235, 1236 (5th
Cir.) ("[S]ubsections (a) through (e) of [section] 2113 do not
create separate offenses, but instead constitute a single offense
with each subsection providing for a different maximum sentence
depending on the severity of the crime."), reh'g denied,
550 F.2d 1285 (5th Cir.), cert. denied, 431 U.S. 943, 97 S.Ct.
2662, 53 L.Ed.2d 263 (1977); cf. United States v. Pisani,
787 F.2d 71, 74 (2d Cir. 1986) (noting that 18 U.S.C. § 924(c) was
amended in 1984 such that a "five-year consecutive sentence was
required to be imposed even if the statute defining the
underlying offense contained its own enhancing penalty for using
or carrying a weapon."). Thus, because section 2113(d) functions
as a "mandatory sentence enhancement," United States v. Medina,
32 F.3d 40, 47 (2d Cir. 1994); see also United States v.
Mohammed, 27 F.3d 815, 820 (2d Cir.), cert. denied,
513 U.S. 975, 115 S.Ct. 451, 130 L.Ed.2d 360 (1994), rather than as a
separate offense, Petitioner claim that the Indictment was
constructively amended is without merit.*fn3
D. Ineffective Assistance of Appellate Counsel
Petitioner's final claim is that his appellate counsel was
ineffective by failing to raise the issue of trial counsel's
ineffectiveness on appeal. See Section 2255 Motion at 40-42.
As previously noted, courts apply the Strickland test to
claims of ineffectiveness made against appellate counsel. See
Cuoco v. United States, 208 F.3d 27, 30-31 (2d Cir. 2000);
McKee, 167 F.3d at 106. Having determined that the alleged
errors by trial counsel did not constitute ineffective assistance
of counsel under Strickland and
its progeny, Petitioner cannot argue that appellate counsel was
ineffective for raising those issues on appeal. See Castro v.
Ward, 138 F.3d 810, 832 (10th Cir.), cert. denied,
525 U.S. 971, 119 S.Ct. 422, 142 L.Ed.2d 343 (1998) ("Because we have held
that the substance of the issues involved have no merit,
appellate counsel was not ineffective, and [defendant] suffered
no prejudice, from his appellate counsel's failure to raise
them."). Accordingly, Petitioner's claim that his appellate
counsel was ineffective cannot stand.
For the foregoing reasons, Petitioner's motion pursuant to
28 U.S.C. § 2255 is DENIED and DISMISSED.
IT IS SO ORDERED.