United States District Court, Eastern District of New York
November 5, 2001
MARC RAMIREZ, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
Petitioner Marc Ramirez (the "petitioner" or "Ramirez")
commenced this habeas corpus proceeding pursuant to
28 U.S.C. § 2255. Specifically, the petitioner moves to vacate his
conviction and sentence, or, in the alternative, "to order a new
sentencing hearing based upon newly developed case law."
Initially, the petitioner was
represented by counsel, Kevin M. Schad, Esq. of Cincinnati,
Ohio. However, some time in late 2000, Schad no longer
represented the petitioner because of financial considerations.
The petitioner is now proceeding pro se. A courtesy copy of
this decision is being sent to petitioner's former counsel.
Ramirez and many other defendants, nine of whom were on trial
with him, were charged with being members of a major drug ring
called the "Unknown Organization." This Organization operated a
retail and wholesale narcotics business in certain areas in
Brooklyn. The Unknown. Organization was led by Ricardo Melendez,
consisted of approximately 100 members and grossed over ten
million dollars a month from heroin sales, together with
additional revenue from cocaine sales. The Organization sold its
narcotics in glassine envelopes stamped with particular brand
names, such as "Unknown," "Critical," "Rated PG," and "No
The Unknown Organization purchased large quantities of pure
heroin which was cut by an expert called "Nelson the Cutter."
The heroin distributed by the Unknown Organization was highly
desirable to drug users because it was among the most potent
available in the New York area, being about 50 to 60 percent
pure. After the heroin was cut, it was transported to various
"mills" where it was diluted and placed in glassine bags by
dozens of sometimes nude and masked workers. The glassine bags
were placed in commercial egg crates and then sent to assorted
"retail establishments," known as "spots" in various Brooklyn
locations. Extensive and detailed records were kept by the
Unknown Organization with regard to each operation, with
specific amounts, names of participants and expenses involved in
each operation. The Unknown Organization enforced its operation,
warded off competition and prevented stealing by its own members
by intimidation, torture and murder.
In September 1989, an Eastern District Grand Jury returned a
superceding indictment charging 39 defendants in a 43 count
indictment. The charges included narcotics trafficking,
racketeering, and murder, kidnaping and maiming in furtherance
of racketeering activity occurring from January 1985 to October
16, 1989, as part of the Unknown Organization.
Ramirez was named in two counts, the narcotics conspiracy and
one substantive count. Count Two charged conspiracy to
distribute and possess with intent to distribute in excess of 1
kilogram of heroin and in excess of 5 kilograms of cocaine from
January 1985 to October 16, 1989 in violation of
21 U.S.C. § 846 and 841(b)(1)(A). Count Thirty charged Ramirez with the
attempt to possess with intent to distribute in excess of 1
kilogram of heroin in violation of 21 U.S.C. § 846 and
841(b)(1)(A). Both of these charges stemmed from a March 14,
1989 attempted heroin purchase in which the Government alleged
that the petitioner was involved in a sting reverse buy in which
a confidential informant named Phil Han was attempting to sell
seven kilograms of heroin to Manuel Concepcion, a co-defendant
and the head of the Unknown Organization, for the sum of
approximately 1.1 million dollars, in which transaction Ramirez
was heavily involved. The Government alleged that the
petitioner, then 18 years old, and his friend "Jimmy" had
arranged this heroin purchase.
On March 14, 1989, Manuel Concepcion, four co-conspirators and
Ramirez were arrested while Concepcion was attempting to
purchase approximately seven and one-half kilograms of heroin
from Han, an informant. The arrest was preceded by a
number of undercover meetings and telephone conversations, most
of which were tape recorded. These conversations concerned
negotiations between Ramirez and Han. During these conversations
Ramirez vouched for Concepcion and co-conspirator Roberto
Aponte. Ramirez told Aponte that he had access to more than
seven kilograms of heroin. Aponte reported this to Concepcion
who agreed to purchase the heroin. Ramirez was to receive
between $90,000 and $100,000 for his role in this narcotics
In a short time Concepcion and others assembled more than one
million dollars in cash. In subsequent conversations Ramirez
pushed Han to hurry the deal to avoid keeping "his people"
Philip Han testified as follows:
Q The conversation you had with Ramirez after the
10:56 conversation, what did you and Mr. Ramirez
A I believe that's when he was asking me what is the
delay, what is taking so long to do the deal.
Q Did Ramirez ask you anything or did you tell him
A He asked me if I had enough room for the money.
Q Enough room where?
A He said, do you have enough room for the money.
And I asked why.
Q What did he say?
A He said because the monies (sic) is in five boxes.
Q After the conversation, did you talk to Ramirez
A Yes, I did.
Q How much afterwards was the next conversation?
A I don't recall exactly.
A 20 minutes, 30 minutes, I'm not sure.
Q During that conversation, what did you say to
Ramirez and what did he say to you?
A He was again asking me what the problem was, to
hurry it up, and he said someone else wanted to talk
On March 14, 1989, the parties met to complete the deal.
Ramirez, Concepcion and Aponte transported four boxes and a bag
full of money to Han's car, and Ramirez then went with Han to
pick up what he thought were bricks of pure heroin. After taking
possession of the supposed heroin, federal agents arrested
Ramirez and the others. At the time of the arrests, the drug
traffickers were in possession of approximately $1.1 million in
cash and three weapons, including an Uzi .9 millimeter
submachine gun. While in custody, Ramirez made statements to the
police that he merely supplied the market. These statements were
introduced at the trial.
The petitioner was tried with nine codefendants beginning on
August 27, 1990 before this Court. The petitioner was
represented by Lynne F. Stewart, Esq. at trial and on appeal. At
the four-month long trial, the Government presented voluminous
testimony regarding the Unknown Organization's activities.
At the trial the petitioner testified and presented a defense
of entrapment. He testified that this March 14, 1989 attempt to
broker a heroin deal was his only
contact with dealing drugs. During his crossexamination, the
Government brought DEA Agent Timothy Lum into the courtroom and
before the jury, The Government then asked the petitioner if he
had met this person, Agent Lum, in December 1989 to discuss
brokering another heroin deal. The petitioner denied this
The trial counsel for Ramirez did not object to this
demonstration at the time of the cross examination. However,
after the petitioner concluded his testimony his counsel entered
an objection on the record to the presentment of what she
characterized as 404(b) evidence and the "parading" of Agent Lum
before the jury. On rebuttal, the Government called Agent Lum as
a witness. Agent Lum testified that while working undercover in
December 1989, he had been introduced to the petitioner at a
restaurant in order to set up a heroin sale. However, Agent Lum
testified that no deal was ever consummated.
Also during trial, the AUSA Peter R. Ginsberg read into the
record a redacted statement from co-defendant Roberto Aponte.
The AUSA referred to this statement as "redacted" in
cross-examining the petitioner, and in discussing this statement
with other witnesses and the court. Although counsel for the
petitioner asserts that during his summation, the AUSA inserted
the petitioner's name into the redacted statement, the Court did
not find this in the trial transcript.
On December 23, 1990, the jury returned a verdict of guilty on
both counts against the petitioner.
A Pre-Sentence Investigation report (PSI) was prepared on June
25, 1991. The PSI recommended that the petitioner's offense
level should be increased by four levels pursuant to § 3B1.1(a)
because the petitioner organized the offense, recruited
individuals, and directed their activities.
The petitioner was sentenced on September 13, 1991 by this
Court. The petitioner's offense level was enhanced two levels
for firearms used in the drug transaction pursuant to Guideline
2D1.1(b)(1). The guideline level was also enhanced four levels
for his participation as an organizer in a multiple participant
offense pursuant to Guideline 3B1.1(a). The Court also granted a
two level reduction for acceptance of responsibility. Counsel
for the petitioner made a motion for a downward departure based
on her own conduct in "misleading Mr. Ramirez into going to
trial on an entrapment defense" and based on her feeling that
"some other lawyer might have said, maybe you should plead
guilty," especially since he was only eighteen years old at the
time of the offense. The grounds for the application for a
downward departure apparently were that this conduct on
counsel's part, and the age of the defendant, were not taken
into consideration by the Guidelines or were "outside the
heartland." The Court stated that it perceived no category for a
downward departure based on the reasons stated by counsel, and
the application was denied. In addition, the Court denied the
Government's application for an upward departure.
The petitioner was sentenced to a term of 235 months, the
lowest possible term under the guideline range, and to five
years supervised release.
II. THE APPEAL
Represented by his trial counsel, the petitioner filed an
appeal to the Second Circuit. The petitioner raised the
1) His due process rights were violated by the Government's
overall outrageous conduct.
2) The Government's use of other crimes evidence without prior
violated his due process rights and was a continuation of
3) The Government's failure to produce confidential informant
"Jimmy" was a violation of due process and entitled Ramirez to a
missing witness jury charge.
4) The trial court incorrectly increased Ramirez's offense
level four levels based upon a clearly erroneous finding that he
was an organizer or leader of a criminal activity that involved
five or more participants.
On August 17, 1992, the petitioner's conviction and sentence
was affirmed by summary order. United States v. Maldonato,
Ramirez, Bryce and Alvarez, No. 91-1151(L), slip.op. (2d
III. PRIOR HABEAS CORPUS PROCEEDINGS
In a decision dated March 10, 1998 this Court dismissed the
petition on timeliness grounds. This decision was reversed by
the Second Circuit which remanded the case for further
consideration based on its decision in Mickens v. United
States, 148 F.3d 145 (2d Cir. 1998) (under the provision of the
Anti-Terrorism and Effective Death Penalty Act of 1996, a
petition filed within one year after the act's effective date of
April 24, 1996, is not time-barred).
At the commencement of this habeas proceeding the petitioner
was represented by Kevin Schad, Esq., a privately retained
attorney. On March 2, 2000, the petitioner moved for the
appointment of counsel and to be released on bail. He indicated
that he could no longer afford to pay his counsel Kevin Schad
and requested that Schad be appointed as his counsel and be paid
by the Government pursuant to the Criminal Justice Act of 1964
18 U.S.C. § 30006a. In a decision dated September 27, 2000, the
Court denied this motion. The Court held that the interests of
justice did not necessitate appointing counsel for the
The Court notes that the Petitioner, with the
assistance of counsel, has already filed his
petition and a reply to the Government's
opposition. As the case is fully briefed and merely
awaiting decision, there is no need to appoint
counsel at this time. Nunez v. U.S., 892 F. Supp. 528,
531-32 (S.D.N.Y. 1995). Moreover, the
Petitioner has failed to submit any evidence of the
financial means available to him to pay for private
counsel, and the extensive argument and citation in
his pro se application for bail suggest that he
is capable of presenting his claims effectively
without the assistance of an attorney. Harney v.
U.S., 962 F. Supp. 322, 325 (N.D.N.Y. 1997).
The petitioner also moved for his release on bail. In the same
September 27, 2000 decision, the Court ruled that release on
bail is reserved for "extraordinary cases involving special
circumstances or a high probability of success." United States
v. Mett, 41 F.3d 1281, 1282 (9th Cir. 1994) and the situation
in this case did not meet this difficult criteria. Further, in
another decision by this Court dated March 10, 2001, the Court
denied the petitioner's application for a certificate of
IV. THE PETITIONER'S CONTENTIONS IN THIS PROCEEDING
The petitioner requests that his conviction and sentence be
vacated, or that he be resentenced, based on the following
grounds, including a litany of problems with his counsel at the
trial and on appeal:
1) Petitioner was denied the effective assistance of counsel
on appeal by her failure to raise the issue of the improper
admission of Rule 404(b) evidence (the subsequent alleged
December 1989 aborted
heroin deal) (a violation of his Sixth Amendment rights).
2) Petitioner was denied the effective assistance of counsel
on appeal by her failing to raise "the sentencing court's
misunderstanding its authority to depart" with regard to the
petitioner's application for a downward departure (a violation
of his Sixth Amendment rights).
3) Petitioner was deprived of his Sixth Amendment right to the
effective assistance of counsel at trial in that "counsel failed
to object to the government's use of a codefendant's redacted
statement throughout trial and during closing which violated the
Confrontation Clause and the Supreme Court's ruling in Bruton
v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476
4) The petitioner is entitled to be resentenced absent the
erroneous organizer/leader four level enhancement, based upon
newly developed case law.
5) Lastly, the petitioner submits that he has demonstrated
that an evidentiary hearing should be held on the claims raised
in this proceeding.
A. Standards of Review
As stated by the Second Circuit "[b]ecause requests for habeas
corpus relief 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."
Ciak v. United States, 59 F.3d 296, 301 (2d Cir. 1995) (citing
United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584,
1593, 71 L.Ed.2d 816 (1982)). ("[A]n error that may justify
reversal on direct appeal will not necessarily support a
collateral attack on a final judgment.") (internal quotation
marks and citation omitted). As a result, prisoners seeking
habeas corpus relief pursuant to Section 2255 must show both a
violation of their constitutional rights and "substantial
prejudice" or a "fundamental miscarriage of justice." Ciak, 59
F.3d at 301.
Further, in Section 2255 proceedings, the Supreme Court has
recognized the rule of "procedural default: [that prisoners]
cannot assert claims they failed to raise at trial or on direct
appeal unless they can show `cause' for the default and
`prejudice' resulting from it." Id. at 302 (citing Wainwright
v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d
594 (1977)); see also Reed v. Farley, 512 U.S. 339, 114 S.Ct.
2291, 129 L.Ed.2d 277 (1994). The general rule is that a writ of
habeas corpus is not a substitute for an appeal. "Where the
petitioner — whether a state or federal prisoner — failed
properly to raise his claims on direct review, the writ is
available only if the petitioner establishes `cause' for the
waiver and shows `actual prejudice from the alleged . . .
violation.'" Id. at 354, 114 S.Ct. 2291 (citing Wainwright,
433 U.S. at 84, 97 S.Ct. 2497).
However, the traditional procedural default rule generally
will not apply to ineffective assistance of counsel claims where
a petitioner was represented by the same attorney at trial and
on direct appeal and where such claims depend on matters outside
the scope of the record of a direct appeal. Billy-Eko v. United
States, 8 F.3d 111, 114 (2d Cir. 1993). In Billy-Eko, the
Court added that, "ineffective assistance of counsel claims are
appropriately brought in Section 2255 petitions even if
overlooked on direct appeal because resolution of such claims
often requires consideration of matters outside the record on
direct appeal . . ." Id. (citations omitted). Thus,
ineffective assistance of counsel claims may be raised for the
first time in a
habeas petition. See United States v. Matos, 905 F.2d 30, 32
(2d Cir. 1990). Therefore, while the petitioner did not raise an
ineffective assistance counsel claim on direct appeal, the Court
is required to examine the merits of such a claim under Section
To establish an ineffective assistance of counsel claim, the
petitioner must "show that counsel's representation fell below
an objective standard of reasonableness." Strickland v.
Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d
674 (1984). Moreover, the petitioner must show that the
"deficient performance prejudiced the defense." Id. at 687,
104 S.Ct. 2052. In order to show prejudice, the petitioner must
demonstrate "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." United States v. Caputo, 808 F.2d 963, 967
(2d Cir. 1987) (quoting United States v. Cruz, 785 F.2d 399,
405 (2d Cir. 1986)). The Court's determination, however, must be
highly deferential to counsel as, "[i]t is all too tempting for
a defendant to second-guess counsel's assistance after
conviction or adverse sentence." Id. at 689, 104 S.Ct. 2052
Finally, it is well settled that "(s)ection 2255 may not be
employed to relitigate questions which were raised and
considered on direct appeal." Riascos-Prado v. United States,
66 F.3d 30, 33, 34 (2d Cir. 1995) (citing Cabrera v. United
States, 972 F.2d 23, 25 (2d Cir. 1992)). See also Schlup v.
Delo, 513 U.S. 298, 318, 319, 115 S.Ct. 851, 862-63, 130
L.Ed.2d 808 (1995) ("[A] habeas court may not ordinarily reach
the merits of successive claims . . . absent a showing of cause
and prejudice.") (citations and footnote omitted); Douglas v.
United States, 13 F.3d 43, 46 ("[A]ny claim raised . . . at
this point that was also raised in [a] previous § 2255 motion 
or on direct appeal of [the petitioner's] conviction is
precluded from consideration by this Court."); 28 U.S.C. § 2255
("The sentencing court shall not be required to entertain a
second or successive motion for similar relief on behalf of the
B. Alleged Ineffective Assistance of Counsel on Appeal —
Failure to Raise the Improper Admission of Prejudicial Rule
Stating that counsel on appeal has the duty to search for the
strongest possible arguments and "must be zealous and must
resolve all doubts and ambiguous legal questions in favor of his
or her client," McCoy v. Court of Appeals of Wisconsin,
486 U.S. 429, 438, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988), the
petitioner submits that he can demonstrate both prongs of the
Strickland test. The petitioner contends that he was denied
the effective assistance of counsel on appeal by counsel's
failure to raise the subsequent uncharged criminal act involving
the alleged abortive heroin deal in December 1989.
As stated above, the petitioner testified that the only heroin
transaction he took part in was the one charged in the
indictment. On cross-examination, the Government presented DEA
Agent Lum. The following exchange occurred:
AUSA GINSBERG: Mr. Ramirez, does this refresh
your recollection whether you negotiated a 15
pound heroin deal with a person by the name
of Ah Cong?
COURT: "This" meaning — is there a person
you're referring to, Mr. Ginsberg?
AUSA GINSBERG: DEA Special Agent Timothy Wong
(sic), [name mistranscription].
In rebuttal the Government produced Agent Lum who testified
about the attempted drug transaction negotiation with Ramirez in
December 1989. The petitioner contends that "Agent Lum's
testimony regarding a subsequent bad act was inadmissible under
the Rules of Evidence." While the petitioner's trial counsel
objected to the admission of this testimony, she did not request
a limiting instruction on the purpose of 404(b) evidence.
According to the petitioner, this error was compounded by the
Government's reference to the alleged subsequent bad act in
closing arguments. Also, counsel did not raise the issue on
Further, according to the petitioner, "counsel's failure to
raise this issue on appeal most probably would have resulted in
a different outcome on appeal . . . (and) there is a reasonable
probability that but for the admission of this testimony the
outcome of the proceeding would have been different." Therefore,
the petitioner contends that his counsel's "ineffectiveness in
failing to raise this erroneous admission of evidence fell below
an objective standard of reasonableness which prejudiced the
The Government concedes that the petitioner's ineffective
assistance claims do not require a showing of cause and
prejudice, because Ramirez had the same counsel at trial and on
appeal. Billy-Eko v, United States, 8 F.3d at 115. Also, the
Court finds that, on appeal, the petitioner's counsel did not
directly raise the 404(b) issue. Although counsel objected to
the Government's introduction of this evidence on the ground of
lack of notice, she did not argue the merits of this issue.
Therefore, the issue is ripe for consideration in this habeas
Initially, the Court notes that petitioner's trial counsel not
only objected to this evidence, she sought a mistrial. Further,
the Court properly permitted the Government, during
cross-examination, to bring Lum into the courtroom to stand
before Ramirez. The petitioner took the stand in his own defense
and testified to his alleged entrapment in the March 14, 1989
heroin deal. He also testified that the March 14, 1989 heroin
deal was his only contact with drug dealing. On
cross-examination he was questioned about this latter statement:
Q You still claim that this deal, the March 14th,
1989 deal, was the only heroin deal you've ever
Q Mr. Ramirez, have you ever been to the BBQ
Restaurant on Fifth Avenue?
A Plenty of times.
Q That's over at 10th Street and Fifth Avenue; is
A 8th Street.
Q Do you recall on one of those occasions meeting a
person who went by the name Ah Cong?
A I don't remember.
Q You don't remember that at all, Mr. Ramirez?
A I don't.
Q You're sure?
A Pretty sure.
Q Do you remember negotiating to buy 15 pounds of
heroin with this person, Ah Cong?
Q It's your testimony — are you telling us you never
met a person with the name Ah Cong?
A I don't remember ever meeting a person Ah Cong.,
Q Are you telling us that you never negotiated a
deal with a person named Ah Cong?
Tr. at 10102.
After this exchange, the prosecutor brought DEA Special Agent
Timothy Lum into the courtroom. With Lum standing before the
petitioner on the stand, the following occurred:
Q Mr. Ramirez, does this refresh your recollection
whether you negotiated a 15 pound heroin deal with a
person by the name of Ah Cong?
THE COURT: "This" meaning — is there a person
you're referring to, Mr. Ginsberg?
MR. GINSBERG: DEA Special Agent Timothy Wong
THE COURT: Who just walked into the courtroom.
Q Does this help you remember negotiating that
A I don't know him.
Q Never seen him before?
A Not that I can recall. I'm seeing a lot of agents
in this building and DEA headquarters.
Q How about the BBQ Restaurant?
A A lot of people in BBQ all the time.
Q How about sitting down with this person on
December 29, 1989, negotiating a heroin deal?
A I don't remember ever meeting him.
Q You don't remember negotiating a heroin deal
either, do you?
A No, I don't.
Q You're sure?
A Pretty sure.
Q You remember after telling him that you were going
to go through with the deal that one of your friends
told you, in fact, he was a DEA agent; do you
A I don't understand what you mean.
Q Do you remember after telling this agent who had
the name Ah Cong that you were going to go through
with the deal that one of your friends told you he
was a DEA agent?
A One of my friends told me he was a DEA agent?
Q Do you recall that?
A I never met him.
Q You don't recall calling him back, saying that you
were afraid, you were not going to go through with
A No, I don't.
Q December, 1989?
A I don't remember that.
Q You're claiming March 14th was the only heroin
deal you've ever negotiated?
MR. GINSBERG: Thank you, agent.
(Agent Wong (sic) (Lum) leaves courtroom.)
Tr. at 10103-04 (emphasis added).
Although this cross-examination was somewhat unusual and
innovative, it was not improper. Eighteen-year-old Ramirez took
the stand and, on direct, voluntarily testified that the March
14th deal was the only drug deal he had negotiated. He tried to
give the impression that he was a young neophyte; he had never
participated in drug deals previously; and he had been
entrapped. In the Court's view, it was perfectly permissible on
cross-examination, to show that he was lying and that he had
attempted to negotiate another drug deal. The rule was stated in
United States v. Garcia, 936 F.2d 648, 653-54 (2d Cir. 1991):
Central to the proper operation of the adversary
system is the notion that "when a defendant takes the
stand, the [G]overnment be permitted proper and
effective cross-examination in an attempt to elicit
the truth." United States
v. Havens, 446 US. 620, 626-27, 100 S.Ct. 1912, 64
L.Ed.2d 559 (1980). Thus, where a defendant testified
on direct examination regarding a specific fact, the
prosecution may prove on cross-examination "`that
[the defendant] lied as to that fact.'" United
States v. Garcia, 900 F.2d 571, 575 (2d Cir.)
(citation omitted) (emphasis in original), cert.
denied, 498 U.S. 862, 111 S.Ct. 169, 112 L.Ed.2d
133 (1990); see also United States v. Bufalino,
683 F.2d 639, 647 (2d Cir. 1982) cert. denied,
459 U.S. 1104, 103 S.Ct. 727, 74 L.Ed.2d 952 (1983).
It is the basic purpose of cross examination to attempt to show
that a witness had lied on the stand. True, the prosecution did
it in a most dramatic fashion; but it was nonetheless
In United States v. Beverly, 5 F.3d 633 (2d Cir. 1993), a
similar factual scenario was presented. In Beverly, a drug
conspiracy case, the Government elicited evidence as to the
defendant's prior shooting and experience with guns on
cross-examination and on rebuttal to impeach his testimony that
he had no familiarity with guns. The defendant argued that the
Government's impeachment evidence ran afoul of 404(b). The
Second Circuit disagreed:
White's invocation of rules 404(b) and 608(b) is
misplaced. The government's questioning arose in the
form of impeachment of specific falsehoods, not as an
attack on his general character for truthfulness,
Fed.R.Evid. 608(b), nor as an attempt to prove his
bad character in order to show he acted in conformity
therewith, Fed.R.Evid. 404(b).
"Central to the proper operation of the adversary
system is the notion that `when a defendant takes the
stand, the government be permitted proper and
effective cross-examination in an attempt to elicit
the truth.'" United States v. Garcia, 936 F.2d 648,
653 (2d Cir. 1991) (quoting United States. v.
Havens, .446 U.S. 620, 626-27, 100 S.Ct. 1912, 64
L.Ed.2d 559 (1980)). Once a defendant has put certain
activity in issue by offering innocent explanations
for or denying wrongdoing, the government is entitled
to rebut by showing that the defendant has lied.
United States v. Mills, 895 F.2d 897, 907 (2d
Cir.), cert. denied, 495 U.S. 951, 110 S.Ct. 2216,
109 L.Ed.2d 541 (1990). Where a defendant testifies
on direct about a specific fact, the prosecution is
entitled to prove on cross-examination that he lied
as to that fact. Garcia, 936 F.2d at 653. The same
holds true for defendant's false statements on
cross-examination. United States v. Atherton,
936 F.2d 728, 734 (2d Cir. 1991). Finally, the
government's opportunity to impeach the defendant's
credibility once he has taken the stand includes the
opportunity to use evidence that it was barred from
using on its direct case. Atherton, 936 F.2d at
On cross-examination, the government questioned White
regarding several prior incidents in which he
allegedly possessed and used firearms. Through
cross-examination and on rebuttal, the government
introduced evidence White committed two shootings in
Albany on March 28 and March 29, 1991.
Prior to the commencement of trial the district court
had ruled evidence of the shootings inadmissible on
the government's direct case. Once White testified
falsely, however, the district court allowed the
government to use evidence of the prior shootings to
impeach White's testimony because White had "got
across to the jury he had nothing to do with any
guns" and thereby "opened the door."
We agree, for the most part, that White opened the
door to this impeachment by stating on direct that:
(1) he never possessed any gun in Albany, (2) he had
no familiarity with guns other than some unfinished
training for a security job in the past. . . . Once
White testified that he had no familiarity with guns
other than some uncompleted training at a past job
security guard, the government was entitled to
impeach his testimony by establishing on
cross-examination and rebuttal that, in fact, he was
familiar with guns and had possessed and fired guns
in Albany. See Garcia, 936 F.2d at 654; United
States v. Mills, 895 F.2d 897, 907 (2d Cir.) cert.
denied, 495 U.S. 951, 110 S.Ct. 2216, 109 L.Ed.2d
541 (1990); United States v. Blake, 941 F.2d 334,
338-39 (5th Cir. 1991).
5 F.3d at 639-40.
Similarly, here, once Ramirez took the stand and testified on
direct examination that the March 14, 1989 attempt to broker a
heroin deal was his only contact with dealing drugs, the
Government had the right to impeach his testimony on
cross-examination and on rebuttal. As the Supreme Court stated,
"It is essential . . . to the proper functioning of the
adversary system that when a defendant takes the stand, the
government be permitted proper and effective cross-examination
in an attempt to elicit the truth." United States v. Havens,
446 U.S. 620, 626-27, 100 S.Ct. 1912, 1916, 64 L.Ed.2d 559
(1980); see also United States v. Payton, 159 F.3d 49, 58 (2d
Cir. 1998). When a defendant offers an innocent explanation, he
"opens the door" to questioning into the truth of his testimony,
and the Government is entitled to attack his credibility on
cross-examination. United States v. Garcia, 936 F.2d 648, 654
(2d Cir. 1991) ("Once [defendant] Dominiguez testified that he
had no idea that the white powder was cocaine, he opened the
door for the Government to impeach his testimony by establishing
on cross-examination that he was familiar with and indeed had
used cocaine as recently as the day before his arrest.")
Thus, the admission of the December 1989 drug negotiation was
not a 404(b) offer but was a permissible impeachment of the
defendant as to an alleged falsehood in his testimony. The
Government was entitled to confront Ramirez with this evidence
on cross-examination and to adduce proof about the drug
negotiation on rebuttal. That being so, it could not be
ineffective assistance for counsel not to raise this issue on
appeal. See Caputo, 808 F.2d at 967 (holding that in order to
show prejudice a petitioner must demonstrate that but for
counsel's alleged error, the result would have been different.)
Accordingly, with regard to the "Lum testimony," and the alleged
404(b) issue, the petitioner's counsel representation did not
fall below an objective standard of reasonableness, and there
was no ineffective assistance either at trial or on appeal in
C. Alleged Ineffective Assistance of Counsel on Appeal —
Failure to Argue That the Sentencing Court Misunderstood its
Authority to Downwardly Depart
The petitioner contends that counsel was ineffective on appeal
for failing to argue that the District Court misunderstood its
ability to downwardly depart at the time of his sentence. The
petitioner argues that "this failure alone is sufficient to
satisfy both prongs of the Strickland ineffective assistance
of counsel test."
The Second Circuit has repeatedly stated that a sentencing
court's failure to understand that it has the authority to
depart downward is an appealable issue. See, e.g. United States
v. Montez-Gaviria, 163 F.3d 697, 701 (2d Cir. 1998). At the
sentencing, the petitioner's counsel moved in writing and orally
at the sentencing proceeding for a downward departure. The Court
denied the application. It is important that the Court set forth
precisely what occurred at sentencing with regard to the
petitioner's application for a downward departure.
THE COURT: Is there anything else in your
communication, Miss Stewart?
MS. STEWART: No, Judge, we had asked finally
for downward departure.
THE COURT: Departure?
MS. STEWART: To some degree, I must admit this
comes out of my own sense of remorse, may have been
misleading Mr. Ramirez into going to trial on an
THE COURT: I am sure you didn't mislead
anybody, Miss Stewart. You did not mislead him, but
you gave it every shot that could be given. You
were outstanding in this trial.
MS. STEWART: Thank you, Judge.
THE COURT: I don't know what you mislead. You
mislead nobody. You gave him a defense that he
could never complain about.
MS. STEWART: Judge, I guess my sense is that
had it been otherwise, perhaps some other lawyer
might have said. maybe you should plead guilty.
Maybe this isn't entrapment. Maybe this is
enticement, not entrapment. I do see the role of
the government in this, to me, when the government
goes into the business of selling drugs, things
have turned topsy turvy. When they are selling
drugs and enticing people into buying it is not
entrapping them into buying it, it puts a different
complex on a case. It's not the same as going out
investigating, finding something going on and then
using all their wires to make it happen again or
make it happen in such a way that they can bring it
before a jury and prove it absolutely. And for
that reason I think that this is something that the
Guidelines don't properly take into consideration.
I think that they don't address at all the
situations where the government controls the amount
of drugs to a certain degree by what they offer. If
they offered a couple of ounces maybe Mr. Ramirez
would only be before you for a couple of ounces,
but by offering virtually unlimited amounts, they
controlled the amounts that are the ultimate
standard by which he is going to be sentenced. I
also don't think that we as a society really should
think about putting eighteen year olds, albeit he
has passed the age of majority as a legal matter,
but if we can think about our own — I don't want to
repeat the summation. I know you sat valiantly
through the summation — an eighteen year old wasn't
even given the right to vote until a few years ago,
and it just would seem to me that he is in a
different posture because of his age, because of
the excitement or the tintillation
(sic-titillation) of making easy money, big money,
being somebody, it's different to an eighteen year
old than it is to even a 21 year old or 25 year
old, and I think even the Guideline age should not
be a consideration, I think coupled with the fact
of the government's involvement, it should be a
consideration, and it's for those reasons together
that I would ask that you depart downward.
Sentencing Transcript pp. 20-22 (emphasis added).
In essence, the petitioner's counsel moved for a downward
departure based on her feeling that some other lawyer might have
recommended that Ramirez plead guilty; the Government's
involvement in the seven-kilogram, $1.1 million drug deal; and
his age of 18 years; all of which
reasons she claimed the Guidelines did not properly take into
In response the Government asserted that the law considers
eighteen year olds to be the age of majority and responsibility;
Ramirez "hit the streets with gusto in an attempt to put
together a 1.1 million dollar deal"; he lied under oath at the
trial; and "that lying is a proper basis for a two-point
enhancement for obstruction of justice."
The Court denied the request for a downward departure stating
that "Congress has enacted the Sentencing Guidelines with
definite categories for downward departure. I see no category
for a downward departure as a result of any of the things you
said." The Court also denied the Government's request for an
upward departure and the Government's other efforts to enhance
the sentence. Also, despite the vigorous opposition of the
Government, the Court granted to the defendant a two-point
reduction for acceptance of responsibility.
In sum, the petitioner's contention is that, at sentencing and
on appeal, the failure of counsel for the petitioner to raise
the issue that the Court did not realize it had the authority to
downwardly depart constitutes ineffective assistance of counsel.
Petitioner argues that to adequately represent a defendant,
counsel must be able to recognize how the Guidelines operate.
The petitioner further asserts that if the sentencing judge knew
that he had the authority to downwardly depart on the reasons
raised by counsel, he would have granted the motion. This latter
assertion constitutes the Strickland prejudice second prong.
As a result, the petitioner contends that his sentence should be
vacated and a new sentencing proceeding should be held, at which
time the petitioner would be afforded his Sixth Amendment right
to effective assistance of counsel.
In response, the Government argues that the Court's words at
sentencing in regard to this application for a downward
departure "do not suggest that it believed itself to be
precluded from downwardly departing." The Court disagrees. While
it did not expressly state that it had no authority to depart on
the reasons raised by counsel, it stated that there "was no
category for a downward departure." Those words were an
indication by this Court that it believed that the Guidelines
did not permit a downward departure under the circumstances
presented to the Court. It is noted that this sentence was prior
to the Supreme Court's seminal sentencing case in Koon v.
United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 2046, 135
L.Ed.2d 392 (1996), where it was stated emphatically that, "A
district court's decision to depart from the guidelines . . .
will in most cases be due substantial deference, for it embodies
the traditional exercise of discretion by a sentencing court."
However, having said that, this Court is of the view that even
if counsel should have raised this point on appeal, it would
have been to no avail. There is no authority for a sentencing
court to downwardly depart based on a defendant's age of
eighteen years. In fact, a defendant's youthful age is
ordinarily not relevant in a downward departure application.
Guideline § 5H1.1 provides as follows:
Age (including youth) is not ordinarily relevant in
determining whether a sentence should be outside the
applicable guidelines range. Age may be a reason to
impose a sentence below the applicable guideline
range when the defendant is elderly and infirm and
where a form of punishment such as home confinement
might be equally efficient as and less costly than
incarceration. Physical condition, which may be
related to age, is addressed at § 5H1.4 (Physical
Condition, Including Drug or Alcohol Dependence or
Also, a review of the authorities reveals that "youthful lack
of guidance" is not recognized in the Second Circuit as a valid
basis for downward departure. United States v. Wong,
40 F.3d 1347, 1381 (2d Cir. 1994); see also United States v. Haynes,
985 F.2d 65, 68 (2d Cir. 1993) ("We begin by noting that
youthful lack of guidance has not been adopted as the law in
Here, the sentencing court was asked to downwardly depart
because of (1) counsel's remorse in not urging the defendant to
plead guilty; (2) the renewed entrapment argument; and (3) his
youthful age of eighteen years. To this Court's knowledge, there
is no authority for a downward departure based on any of these
grounds, nor based on a combination of these factors. Therefore,
the Court properly stated that it had no authority to downwardly
depart. Moreover, even if this issue had been raised on direct
appeal and the Second Circuit had remanded the case for
resentencing, the result would have been the same. This Court
would not downwardly depart based on the reasons stated at
Thus, the petitioner has failed to show that the "deficient
performance," assuming that it was deficient, "prejudiced the
defense." Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
Accordingly, there was no ineffective assistance either at the
sentencing or on appeal based on the downward departure
D. Alleged Ineffective Assistance of Counsel at Trial —
Failure to Object to the Government's Use of a
Co-defendant's Redacted Statement During Trial and Closing
The petitioner contends that his counsel's failure to object
to the introduction of a redacted statement by a co-defendant,
Roberto Aponte, constituted ineffective assistance of counsel.
In addition, the petitioner argues that this error was
aggravated by the prosecutor's summation in which he referred to
the redacted statement. This contention is patently without
The Sixth Amendment guarantees a defendant's right to
cross-examine witnesses. Bruton v. United States,
391 U.S. 123, 126, 88 S.Ct. 1620-21, 20 L.Ed.2d 476 (1968). In
particular, Bruton held that in a joint trial, the confession
of one co-defendant — which implicates both defendants — may not
be introduced despite the court's limiting instruction that the
confession be considered only against the confessing defendant.
Id. at 128, 88 S.Ct. 1620. The Bruton rule was limited
somewhat in Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct.
1702, 95 L.Ed.2d 176 (1987), where the Supreme Court held that
the Sixth Amendment is not violated where the non-testifying
codefendant's confession is admitted with a limiting
instruction, if the confession is redacted to eliminate both the
defendant's name and any reference to his or her existence.
In the succession of cases after Bruton the rule has been
further refined. Today, the Court can admit a non-testifying
co-defendant's confession if the statement is appropriately
redacted to exclude any reference to the defendant and the
statement does not clearly implicate the defendant. Gray v.
Maryland, 523 U.S. 185, 189, 118 S.Ct. 1151, 1157, 140 L.Ed.2d
294 (1998); ("we concede that Richardson placed outside the
scope of Bruton's Rule those statements that incriminate
inferentially"); see also United States v. Smith,
198 F.3d 377, 385 (2d Cir. 1999) ("In addition, the plea allocution was
not incriminating on its face because it did not directly
implicate Smith. Therefore, we find no violation of Gray").
Here, Aponte's statement was admitted over objection by other
defense counsel. The statement was redacted to remove the names
of the co-conspirators. A copy of the redacted statement is
annexed to the opinion and designated as Appendix A. A review of
the redacted Aponte statement reveals that the Court eliminated
all references that could point to Ramirez. Not only were all
names deleted but all specific locations were removed. The Court
adheres to its statement made at the trial at the time of the
THE COURT: The statement doesn't point the
finger at anybody. It's specifically within the
exception to Bruton even as extended by Cruz. Does
not say anything about anyone in this case. There
are also sufficient number of defendants here and
sufficient number of actors in this transaction
that no one person is pointed out by this
statement. That is under Richardson against Marsh.
Moreover, even if the statement had been erroneously received
in evidence, in no way did this violation contribute to the
guilty verdict. A confrontation clause violation is subject to a
harmless error analysis. Any such error is harmless, when the
Court is able to "declare a belief that it was harmless beyond a
reasonable doubt." Chapman v. California, 386 U.S. 18, 26, 87
S.Ct. 824, 829, 17 L.Ed.2d 705 (1967); see also Harrington v.
California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d
284 (1969). Here, significantly, the defendant took the stand in
his own defense and freely admitted his participation in the
seven-kilogram heroin deal. His defense was entrapment, which
the jury rejected. The Aponte statement had nothing to do with
his convictions. There was no ineffective assistance of
petitioner's counsel with regard to the redacted Aponte
statement, as a matter of law.
E. As to Newly Developed Case Law Requiring Resentencing
Absent the Erroneous Leader Enhancement
The petitioner's sentence was enhanced four levels for being
an organizer or leader of a criminal activity that involved five
or more participants. Guideline § 3B1.1(a). He submits that he
is entitled to be resentenced based on new case law, which
demonstrates that his sentence was erroneously enhanced. The
petitioner claims that he was "merely" a "broker" which is
insufficient to hold him accountable as a leader or organizer
under the newly developed case law.
In this regard, the petitioner cites to a number of Second
Circuit cases speaking about "a chief organizer," the "highest
ranking authority," and a "greater relative responsibility"
being a leader/organizer. See United States v. DeRiggi,
72 F.3d 7 (2d Cir. 1995); United States v. Brinkworth,
68 F.3d 633, 642 (2d Cir. 1995); United States v. McGregor,
11 F.3d 1133, 1139 (2d Cir. 1993). Also, the petitioner points out that
the Eleventh Circuit found that a mere buyer/seller relationship
does not establish the role enhancement. United States v.
Maxwell, 34 F.3d 1006 (11th Cir. 1994); see also United States
v. Atkinson, 85 F.3d 376, 378 (8th Cir. 1996). The petitioner
contends that "the Petitioner at most was a broker," did not
control Aponte or any other member of the Unknown Organization,
nor did he set up the location of the transaction, and thus,
"did not qualify as a leader or organizer under § 3B1.1."
In opposition, the Government states that Ramirez
unsuccessfully raised this issue on appeal and is precluded from
raising it here. In addition, the Government
contends that there is no change in the law in this regard, and,
even if there was such a change, the petitioner could not
prevail because of the rule in Teague v. Lane, 489 U.S. 288,
307, 310, 109 S.Ct. 1060, 1073-75, 103 L.Ed.2d 334 (1989).
At the sentencing the Court found, based on the evidence at
the trial, that the Government established that Ramirez "was the
initiating factor in this deal," and that he was most
instrumental in putting this seven-kilogram, million dollar drug
deal together in two days. Further, the Court found that Ramirez
had "certain decision-making authority as to when and where and
how . . ." and that he recruited accomplices and "got all these
people together." In addition, the Court found that the
Government proved that "his degree of participation in planning
or organizing the offense was a major one."
The petitioner raised this issue on appeal, and it was
rejected. The petitioner's convictions were affirmed in a
summary order on August 17, 1992. United States v. Maldonato,
Ramirez, Bryce and Alvarez, No. 91-1151(L), slip. op. (2d
Cir.8/17/92). While a summary order has no precedential effect,
the Court is constrained to quote from the order in that it is
part of the resolution of this contention in this habeas case.
In particular, the Court of Appeals held:
We are also unpersuaded by the contention that the
district court erred in sentencing Ramirez as a
leader of the conspiracy. "[F]indings as to the
defendant's role need be established only a
preponderance of the evidence and will be overturned
only if they are clearly erroneous." United States.
v. Jacobo, 934 F.2d 411, 418 (2d Cir. 1991). The
record contained evidence that Ramirez, inter alia,
initiated a million-dollar heroin transaction, was
able to recruit several accomplices in less than a
day for the transaction, and was to receive $100,000
for his efforts, whereas another coconspirator was to
receive only $10,000. In light of he record, the
court's finding that Ramirez was a leader is not
Having raised this sentencing issue on appeal, the petitioner
is precluded from again asserting it in a habeas proceeding. As
stated in Riascos-Prado v. United States, 66 F.3d 30, 34 (2d
It is clear that "`[s]ection 2255 may not be employed
to relitigate questions which were raised and
considered on direct appeal.'" Cabrera v. United
States, 972 F.2d 23, 25 (2d Cir. 1992) (quoting
Barton v. United States, 791 F.2d 265, 267 (2d Cir.
1986) (per curiam)); . . . Douglas, 13 F.3d at 46
("[A]ny claim raised . . . at this point that was
also raised in [a] previous § 2255 motion or on
direct appeal of [the petitioners] conviction is
precluded from consideration by this Court.");
28 U.S.C. § 2255 ("The sentencing court shall not be
required to entertain a second or successive motion
for similar relief on behalf of the same
Further, on the merits, the cases cited by counsel for the
petitioner do not appear to be that kind of change in the law
that would have affected the Court's initial sentencing
determination. Moreover, this "new" case law could not serve as
a basis for resentencing the petitioner. New rules generally
should not be applied retroactively to a case on collateral
review. In Teague v. Lane, 489 U.S. 288
, 307, 109 S.Ct. 1061,
1073, 103 L.Ed.2d 334 (1989), it was decided that there were
only two exceptions to the general rule of non-retroactivity for
cases on collateral review. First if the new rule, places
"certain kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to proscribe."
Second, a new rule
should be applied retroactively if it requires the observance of
"those procedures that . . . are `implicit in the concept of
ordered liberty.'" Teague, 489 U.S. at 307, 109 S.Ct. at 1073;
see also United States v. Salerno, 964 F.2d 172
, 176-77 (2d
Cir. 1992) applying the Teague Rule "to federal prisoners
seeking relief pursuant to § 2255." In this case, the sentencing
issue here and the "new" case law, do not fall within either
prong of the Teague Rule and, thus, will not be applied
In his reply brief, the petitioner cites to Jones v. United
States, 161 F.3d 397, 403 (6th Cir. 1998) in which the court
retroactively applied a clarifying amendment to the Guidelines.
The court held that "It is unfair to punish a defendant for the
Commissioner's lack of clarity, especially when the Commissioner
acknowledges and corrects the ambiguity." The petitioner's
reliance on Jones is misplaced. Here we do not have a
clarifying amendment, but an alleged difference of opinion in
interpreting an existing unamended guideline. However, these
"new" cases, even if considered by the Court, would not require
For the reasons stated above, the petitioner's claim based on
a subsequent change in the law, as to the organizer/leader
sentencing issue, is denied.
D. As to the Petitioner's Request for an Evidentiary
In his final contention, the petitioner asserts that, due to
the nature of the claims he has raised, he is entitled to an
evidentiary hearing on these matters. Ramirez argues that there
are disputed issues of facts to be resolved or at least, "it is
not clear from the record itself that the facts alleged in [his]
habeas . . . petition would not entitle the petitioner to
relief." Also, the petitioner contends that an evidentiary
hearing is required where his claims, if taken as true, would
entitled him to relief.
Section 2255 requires the district court to hold a hearing
"unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief."
In reviewing the law as to whether to hold a hearing in a habeas
case, the Court finds that "a district court has broad
discretion to hear further evidence in habeas cases." Nieblas
v. Smith, 204 F.3d 29, 31 (2d Cir. 1999). See also Townsend v.
Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 759, 9 L.Ed.2d 770
(1963) ("In every case [the district judge] has the power,
constrained only by his sound discretion, to receive evidence
bearing upon the applicant's constitutional claim."). The rule
in this regard is stated in Hayden v. United States,
814 F.2d 888, 892 (2d Cir. 1987):
A petition for habeas corpus requires a hearing to
resolve disputed issues of fact unless the record
shows that the petitioner is not entitled to relief.
28 U.S.C. § 2255. We have consistently held that the
standard to be used in making this determination is
whether, "if the evidence should be offered at a
hearing, it would be admissible proof entitling the
petitioner to relief. Mere generalities or hearsay
statements will not normally entitle the applicant to
a hearing, since such hearsay would be inadmissible
at the hearing itself. The petitioner must set forth
specific facts which he is in a position to establish
by competent evidence." Dalli v. United States,
491 F.2d 758, 760-761 (2d Cir. 1974) (citations omitted).
Recently, in Chang v. United States, 250 F.3d 79
, 84-86 (2d
Cir. 2001), the judge who presided at the underlying trial,
decided the habeas petition without an evidentiary hearing. In
affirming, the Chang court relied on Section 2255 itself,
which expressly provides that the "Court may
entertain and determine such motion without requiring the
production of the prisoner at the hearing." 28 U.S.C. § 2255.
See Machibroda v. United States, 368 U.S. 487
, 495, n. 4, 82
S.Ct. 510, 7 L.Ed.2d 473 (1962). The Court cited with approval
the decisions of the Fourth and Tenth Circuits which made it
clear that the court has discretion to ascertain whether the
claim is substantive before granting a full evidentiary hearing.
Also, in Chang, the Court observed that "Judge Glasser, having
tried the case, was intimately familiar with the trial
proceedings and the events and circumstances surrounding them.
It was within the Court's discretion to determine that more was
not needed.". Id. at 86.
In this proceeding, the petitioner has set forth no specific
facts which raised any material issues of fact requiring a
hearing. The Court had before it a complete transcript of the
trial and the sentencing proceeding. The petitioner's voluminous
motion to vacate the sentencing with attached exhibits fully set
forth all of the prior proceedings and the contested matters.
The petitioner's memorandum of law reviewed all of the factual
issues and capably set forth the legal precedents. In addition,
the petitioner's reply memorandum carefully attempted to refute
the Government's arguments. Most importantly, however; this
Court presided, at the four-month criminal trial, and "is
intimately familiar with the trial proceedings and the events
and circumstances surrounding them." In the exercise of the
Court's discretion no evidentiary hearing is required.
For the foregoing reasons, the petition is denied in all
respects. Further, having considered the standards for a
certificate of appealability under Fed.R.App.Pro. 22(b) and
28 U.S.C. § 2253(c)(2), as set forth in Barefoot v. Estelle,
463 U.S. 880, 893 n. 4 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090 (1983)
and Lucidore v. New York State Div. Of Parole, 209 F.3d 107,
112 (2d Cir. 2000), the Court finds that the petitioner fails to
make a sufficient showing to entitle him to a certificate of
Accordingly, the petition is dismissed and the Clerk of the
Court is directed to close this case.
On November 5, 2001, this Court issued a thirty-six page
Memorandum of Decision and Order, which in all respects denied
this Section 2255 habeas corpus petition.
On November 15, 2001, the Court received a letter dated
November 10, 2001 from Marc Ramirez, the Pro Se Petitioner. In
this letter the Petitioner asserts that the Court failed to
address "the major issue raised in the lower court", the
Massiah issue. Annexed to the Petitioner's letter is a Motion
The Motion for Reconsideration states that on July 2, 1997 "a
supplemental memorandum was submitted to the District Court by
Petitioner in which an additional allegation was added alleging
a violation of the Petitioner's rights pursuant to Massiah v.
U.S. and the Sixth Amendment of the Constitution." In his
supplemental memorandum the petitioner asserted that "he was
denied his right to counsel because the respondents used
evidence obtained in violation of Massiah against Petitioner
at his trial, and without such evidence Petitioner would not
have been convicted."
The Motion for Reconsideration further states that the
Government responded to the Petitioner's supplemental
memorandum on March 22, 1999 and the Petitioner filed a reply on
April 26, 1999. Further, the Petitioner contends that the
Massiah issue was properly joined and "constitutes the
gravamen of petitioner's case." The Petitioner further asserts
that "this Court, in the November 5, 2001 decision completely
failed to address the issue." Petitioner is unable to adequately
perfect his appeal until and unless the issue is determined.
The Petitioner is correct. The Court inadvertently overlooked
the Petitioner's supplemental memorandum, and the response and
reply. Therefore, the Court will grant the Petitioner's motion
for reconsideration only to the extent that it will now decide
his claim of ineffective assistance of counsel based on the
The background of the case, the appeal from the convictions
and the prior proceedings in this matter are set forth at length
in the Court's November 5, 2001 decision and need not be
THE MASSIAH CONTENTIONS
In his Supplemental Memorandum of Law, the Petitioner asserts
that his counsel was ineffective at trial by failing to object
to "the Government's violation of Massiah v. United States,
377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) and the Sixth
Amendment right to counsel". He relates that while he was out on
bail in connection with the indictment in this case, an
undercover government agent "deliberately elicited incriminating
statements from the petitioner in the absence of counsel and
then utilized these incriminating statements as evidence against
him at his trial."
The charges in this case against the Petitioner emanate from a
major drug transaction which took place on March 14, 1989. The
Petitioner relates that on December 20, 1989, while he was out
on bail with regard to the charges in this case, DEA Agent
Timothy Lum, acting in an undercover capacity, allegedly met him
at the BBQ restaurant to discuss a heroin deal, which was not
consummated. The Petitioner further correctly states that at the
trial in this case, the Government presented DEA Agent Lum to
testify about incriminating statements the Petitioner made in
the absence of counsel regarding the December heroin
transaction. The Petitioner alleges that this meeting was set up
by the Government to circumvent his Sixth Amendment right to the
presence of counsel. He further contends that he had pled not
guilty to the charges at issue, retained counsel and made a
motion setting forth his intention to utilize an entrapment
defense at the trial. In addition, he contends that Agent Lum's
supervisor, Agent Piccininni was also the supervising agent for
the activities at issue during this trial. Also, he asserts that
Agent Lum's FOI Report of the December 20, 1989 meeting utilized
the Petitioner's original case number CI-89-0193.
In sum, the Petitioner contends that "the same case number and
same supervising agent demonstrate that the government utilized
this December 20, 1989 meeting to obtain evidence and
incriminating statements of the Petitioner to utilize at the
Petitioner's trial for which the indictment was pending in order
to contradict the Petitioner's entrapment defense." Further, the
The Petitioner contends that it is clear that the
incriminating statements which Agent Lum testified to
were deliberately elicited from the Petitioner in the
absence of counsel. Therefore, the Petitioner submits
that the government's use as evidence of these
incriminating statements deliberately elicited in the
absence of counsel while supposedly investigating
"new crimes" related to the
pending indictment violated his Sixth Amendment right
and the Supreme Court's mandate of Massiah and
The Petitioner therefore concludes that his counsel should
have objected at the trial, based on the Massiah Rule and the
failure to do so "fell below an objective standard of
reasonableness." Further, the Petitioner contends that his
counsel's ineffectiveness in failing to object prejudiced him.
He asserts that had counsel objected to the Government's use of
this evidence, the objection would have been sustained and "the
government would have been left without any evidence in which to
refute the Petitioner's strong entrapment defense" and "there
exists a reasonable probability that the result of the
proceeding would have been different". Therefore, he reasons
that "[t]his violation by the government and counsel's
ineffectiveness demands that the Petitioner's conviction and
sentence be vacated". In addition, the Petitioner contends that,
at the least, "he has provided the proof necessary for an
evidentiary hearing on this supplemental issue."
In opposition, the Government contends that the Sixth
Amendment right to counsel is offense specific. In that regard,
the Government contends that the Sixth Amendment does not
prohibit the questioning of an individual regarding other
crimes, "as to which the right has not yet attached". In sum,
the Government asserts that Lum's meeting with the Petitioner on
December 20, 1989 "had nothing to do with the pending charges
against him". Moreover, the Government contends that even if the
December 20, 1989 meeting did concern the charges at issue in
this case, "nothing improper occurred since the Sixth Amendment
does not prohibit the use of such statements for impeachment
purposes . . . or if another exception to the exclusionary rule
I. The Massiah Rule and the "New Crime" Exception
In Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12
L.Ed.2d 246 (1964) the Supreme Court held that a defendant's
Fifth and Sixth Amendment rights were violated by the use in
evidence of incriminating statements which he made to a
co-defendant, after indictment and their release on bail,
without the defendant's knowledge that his co-defendant was
cooperating with the Government. The Supreme Court approved, the
rule followed in the New York Courts that, "Any secret
interrogation, of the defendant, from and after the finding of
the indictment, without the protection afforded by the presence
of counsel, contravenes the basic dictates of fairness in the
conduct of criminal causes and the fundamental rights of persons
charged with crime." Id. at 206, 84 S.Ct. 1199. The Court then
stated the Rule now known as the Massiah Rule:
"Here we deal not with a state court conviction, but
with a federal case, where the specific guarantee of
the Sixth Amendment directly applies. . . . We hold
that the petitioner was denied the basic protections
of that guarantee when there was used against him at
his trial evidence of his own incriminating words,
which federal agents had deliberately elicited from
him after he had been indicted and in the absence of
his counsel. It is true that in the Spano case the
defendant was interrogated in a police station, while
here the damaging testimony was elicited from the
defendant without his knowledge while he was free on
bail. But as Judge Hays pointed out in his dissent in
the Court of Appeals, `if such a rule is to have any
must apply to indirect and surreptitious
interrogations as well as those conducted in the
jailhouse'. In this case, Massiah was more
seriously imposed upon * * * because he did not even
know that he was under interrogation by a government
Id. at 206, 84 S.Ct. 1199.
However, the incriminating statements in Massiah made to the
secret cooperating codefendant were related to the narcotics
activity for which the defendant was convicted. Similarly,
following Massiah, in United States v. Henry, 447 U.S. 264,
100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) in jail preceding trial,
the defendant made incriminating statements to an informant
inmate regarding the very bank robbery for which the defendant
was indicted and incarcerated. See also United States v. Rosa,
11 F.3d 315, 329 (2d Cir. 1993) (The incriminating statements
concerned the charges at issue). Twenty years later the Supreme
Court revisited the issue in Maine v. Moulton, 474 U.S. 159,
106 S.Ct. 477, 88 L.Ed.2d 481 (1985). Here again, the
incriminating statements made to a cooperating co-defendant,
without the presence of counsel, involved the very charges for
which the defendant was under indictment and subsequently tried
and convicted. Also, the issue of pending charges and "new
crimes" was discussed in Moulton:
On the other hand, to exclude evidence pertaining to
charges as to which the Sixth Amendment right to
counsel had not attached at the time the evidence was
obtained, simply because other charges were pending
at that time, would unnecessarily frustrate the
public's interest in the investigation of criminal
activities. Consequently, incriminating statements
pertaining to pending charges are inadmissible at the
trial of those charges, notwithstanding the fact
that the police were also investigating other crimes,
if, in obtaining this evidence, the State violated
the Sixth Amendment by knowingly circumventing the
accused's right to the assistance of counsel.
Id. at 180, 106 S.Ct. 477 (emphasis supplied).
The Petitioner points to Mealer v. Jones, 741 F.2d 1451 (2d
Cir. 1984) to support his position that "the Massiah
protection" extended to statements concerning the indicted
offense made in the course of investigating into a "new crime."
In Mealer, the defendant was indicted for murder in the second
degree. The "new crime" was the attempted bribery of an
eyewitness, who was cooperating with the district attorney. In
its habeas decision, the district court held that the attempt to
suborn perjury was an unrelated charge not yet under indictment
and for which Mealer's right to counsel had not yet attached.
Therefore, the district court concluded the use of those
statements in Mealer's murder trial did not violate Massiah.
However, the Court in Mealer held only that: "we conclude it
was error for the Court to admit appellant's statements to
Gaudet as they arose out of and concerned the offense for which
Mealer was under indictment." Id. at 1454. In this regard,
the Second Circuit referred to the so-called "new crime" in
Mealer as follows:
But the facts of this case demonstrate the fallacy of
automatically treating as a similar windfall to the
government any information it obtains during a "new
crimes" investigation. The "new crime" under
investigation here was Mealer's attempt to suborn
perjury at the trial on his pending indictment. That
crime was intimately related to the pending
indictment, and the government must have known that
any statements made in the course of suborning
necessarily incriminate Mealer on the murder charge
as well. Under the circumstances, we decline to
assume that merely because the government was put on
notice by appellant that he contemplated a new crime,
in. empowering its agent to investigate that new
crime the government lacked all designs to elicit
information concerning the old. Indeed, given that
the nature of the new crime proposed also put the
government on notice that any discussion between
Mealer and Gaudet would almost certainly incriminate
Mealer on the old crime as well, we view this, if
anything, as an even stronger case than Beatty for
finding a violation of defendant's Sixth Amendment
Id. at 1455.
In this Court's view, there is no clear defining answer to the
question of the Government-sponsored obtaining of statements
from an indicted defendant, without counsel, in regard to "new
crimes" and those "inextricably intertwined." The definition of
a "new crime" is, apparently, an offense not related in any way
to the indicted charges. In addition, it is clear that a "new
crime" investigation that obtains statements referring to the
indicted crimes, is precluded under the Massiah Rule. See
Beatty v. United States, 389 U.S. 45, 88 S.Ct. 234, 19 L.Ed.2d
48 (1967) rev'g, 377 F.2d 181 (5th Cir. 1967).
This rule as to new crimes that "relate" to the indicted
offense is clearly said but has been interpreted with varying
results in the courts. For example, in Grieco v. Meachum,
533 F.2d 713 (1st Cir. 1976) it was held that "Cassesso's statements
on the other hand, were primarily uttered in the commission of
another substantive offense, subornation of perjury, and were
only incidentally admissible in his trial on the pending
indictment. Because of this distinction we find that Cassesso's
Sixth Amendment right to counsel was not violated by Glavin's
conversations with him, nor by the introduction into testimony
in his trial for the murder of Deegan." United States v.
Moschiano, 695 F.2d 236 (7th Cir. 1982) cert. denied
464 U.S. 831, 104 S.Ct. 110, 78 L.Ed.2d 111 (1983) is a case involving
somewhat similar circumstances to the instant case. In
Moschiano, involving a heroin conspiracy, the Court ruled on
the admissibility of evidence of "new crimes":
"We adhere to this distinction between
post-indictment statements relating to new criminal
acts and post-indictment statements constituting
admissions of past wrongdoing. The former are
generally outside the protection of Massiah because
no person has a constitutional right to the
assistance of counsel while committing a crime. The
latter type of statements are generally not
admissible at trial on the pending indictment because
they are the kind of utterances for which the
assistance of counsel could legitimately play a
useful role. In the instant case, Moschiano's
post-indictment statements concerned a separate crime
— the attempted purchase of Preludin tablets without
a prescription — and were therefore unprotected by
the exclusionary rule of Massiah."
695 F.2d at 241-42.
However, in Moschiano, the Seventh Circuit expressed concern
that "at least in egregious cases, Massiah would prohibit the
use of evidence of post-indictment criminal activity under
circumstances in which that evidence was procured not through an
independent investigation into continuing or separate criminal
activity but instead through a confrontation with government
agents engineered for the purpose of creating evidence to use
against the defendant at the trial of the indicted offenses."
So, there is authority that
where the post-indictment evidence was not the product of an
ongoing investigation to turn up "new crimes" but was arranged
by the Government "to obtain from the defendant evidence of
specific intent to shore up the government's case," that would
be a Massiah violation. See United States v. Anderson,
523 F.2d 1192, 1195-96 (5th Cir. 1975).
Another important Supreme Court decision that is enlightening
on this subject is McNeil v. Wisconsin, 501 U.S. 171, 175, 111
S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991). In McNeil, it was
held that the Sixth Amendment right to counsel is offense
It cannot be invoked once for all future
prosecutions, for it does not attach until the
prosecution is commenced, that is, "at or after the
initiation of adversary judicial criminal proceedings
— whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment."
United States v. Gouveia, 467 U.S. 180, 188, 104
S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984) (quoting
Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct.
1877, 1882, 32 L.Ed.2d 411 (1972) (plurality
Another Second Circuit case of interest is United States v.
DeVillio, 983 F.2d 1185
, 1191 (2d Cir. 1993). In DeVillio,
five tapes that were admitted into evidence included discussions
of two burglaries, one of which was not involved in the pending
charges. It was held that there was no Massiah violation:
De Angelo and Spoto were not charged with the Bulova
burglary as a substantive crime. As such, we find
that the trial court's admission into evidence of
certain portions of the September 1, 1987
conversation concerning the Bulova burglary was
appropriate and that no Massiah violation occurred.
See McNeil v. Wisconsin, 501 U.S. 171, 174-75, 111
S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991). (Sixth
Amendment right to counsel is "offense-specific" and
"cannot be invoke once for all future prosecutions,
for it does not attach until a prosecution is
commenced"); Alexander v. State of Connecticut,
917 F.2d 747, 751 n. 1 (2d Cir.) (no Massiah violation
in admitting into evidence conversation between
friend who was visiting prisoner charged only with
arson where inmate confided he had also committed
murder and murder charges had not been filed) (citing
In this case the Petitioner contends that "Massiah will
still bar the evidence when the charges are inexplicably
intertwined", citing four cases from circuits other than the
Second Circuit. A review of these cases reveals that none is
determinative. In United States v. Melgar, 139 F.3d 1005
(4th Cir. 1998), the Court determined that the defendant's post
indictment incriminating statements should have been suppressed.
The Court held that the statements were "inextricably
intertwined" with the pending charges, and the questions to the
defendant were closely related to those which his Sixth
Amendment right has attached. However, the Court noted the
general rule that:
incriminating statements pertaining to crimes "other"
than the pending charges are admissible at trial on
those charges, without discussing the closely related
exception. However, neither case offered the Court
any reason to do otherwise because the
post-indictment interrogations in McNeil and
Moran elicited information only as to the
offenses not closely related to the charged
offense. See McNeil [v. Wisconsin], 501 U.S. [171,]
175, 111 S.Ct. 2204, [115 L.Ed.2d 158] (after charged
with robbery in West Allis, defendant was
interrogated (and later charged and convicted) of
"unrelated, uncharged" offenses — a murder, attempted
murder, and robbery in Caledonia) (internal
quotations omitted); Moran [v. Burbine], 475 U.S.
[412,] 416, 106 S.Ct. [1135,] 1138 [89 L.Ed.2d 410]
(after defendant was arrested in connection with a
burglary in Cranton he was interrogated (and then
charged) with an unrelated murder in Providence).
Moulton is the sole instance in which the, court
has been presented with a post-indictment
interrogation about two sorts of offenses in addition
to those originally charged — one closely related to
the originally charged offenses and one not.
Burglary of the auto parts was closely related to
the originally charged theft of those same parts —
both crimes occurred at the same time and place and
involved the same victim and circumstances. The
attempted murder, however, was planned at a.
different time and place, and involved a different
victim, and so was not so closely related to the
originally charged theft offenses.
Id. at 1013 (Fn. 1) (emphasis supplied).
In United States v. Doherty, 126 F.3d 769, 776 (6th Cir.
1997), a case involving "precisely the same underlying conduct
(that) formed the basis for both charges," the Court commented
that, "The question of how `inextricably intertwined' two
offenses must be so that the Sixth Amendment right to counsel
attaches simultaneously with respect to both offenses is open to
some doubt, and we leave consideration of that question to
In United States v. Laury, 49 F.3d 145, 149 (5th Cir. 1995),
the interrogation involved the charged robberies. In United
States v. Mitcheltree, 940 F.2d 1329, 1341 (10th Cir. 1991),
the statements at issue were elicited "in an effort to lead the
defendant into witness tampering" involving the pending charges.
In an important recent case, United States v. Bender,
221 F.3d 265 (1st Cir. 2000), the statements at issue concerned ways
in which the defendant could illegally influence the outcome of
his impending trial. There were two schemes discussed. The first
involved the falsification of an alibi. The second involved the
kidnaping and murder of Government witnesses who would testify
against him. The statements were held to violate the Massiah
We disagree. The statements were incriminating not
only as to future crimes (perjury, conspiracy to
kidnap and murder) but also as to the pending
charges. So long as the statements were incriminating
as to the pending charges and were deliberately
elicited by government agents, they cannot
constitutionally be admitted in the trial of those
charges. Cf. Id. at 180, 106 S.Ct. 477 (holding
that the Sixth Amendment does not permit the
introduction of directly incriminating statements
obtained during the investigation of other crimes.)
Id. at 269.
Here, the statements were solely incriminating as to the
December 1989 drug transaction; nothing ever referred to or
mentioned the pending crimes. There is no question that the
December 20, 1989 drug transaction was a "new crime." However,
upon reviewing all the authorities cited above, it is clear that
the issue before the Court is whether the statements of the
Petitioner, elicited by Agent Lum were "closely, related," or
were "inexplicably intertwined" with the crimes at issue. In
this regard, the Petitioner points out that "the investigation
report filled out by Lum used the case number for the instant
offense"; the Petitioner was never indicted with regard to the
subsequent acts; Lum is a federal agent, which is the same
prosecuting body and "they were only used to bolster the
in the instant trial". Petitioner asserts that Lum's interest
was "nothing more than an attempt to obtain incriminating
information" in violation of the Petitioner's Sixth Amendment
right to counsel. He concludes that had former counsel raised
this issue prior to trial, it would have resulted in suppression
of the evidence.
A review of the evidence and the cases reveals that there was
no Massiah violation. First, other than the fact that the same
case number was used, there is no evidence that the December 20,
1989 aborted drug transaction was a "closely related crime" or
was "inexplicably intertwined" with the March 14, 1989 criminal
conduct. The December 1989 incident was an unrelated uncharged
transaction. There is no evidence that Agent Lum attempted, in
any manner, to obtain statements from the Petitioner pertaining
to the crimes at issue.
Therefore, the Court finds that this December 1989 purported
drug transaction was not a "closely related" crime nor was it
"inexplicably intertwined" with the crimes at issue; it was a
"new crime." Accordingly, there was no Massiah violation, and
had counsel raised this issue, it would have been of no avail.
There was no ineffective assistance of counsel in the failure to
raise the Massiah issue.
II. The Lum Appearance and Testimony were Independently
Admissible as Impeachment Evidence
The Lum testimony concerning the December 20, 1989 incident
was properly admitted as impeachment evidence. At the trial, the
Petitioner took the stand in his own defense. The Petitioner
testified that he was entrapped into entering into the March 14,
1989 drug deal and that this was his only contact with drug
dealing. It was on cross-examination that Lum was brought into
the Courtroom, and then he testified in the Government's
As the Court set forth at length in the November 5, 2001
decision, the Government had the right to use the statements
adduced at the December 20, 1989 incident as impeachment
evidence with regard to a specific falsehood. See United States
v. Havens, 446 U.S. 620, 626-27, 100 S.Ct. 1912, 1916, 64
L.Ed.2d 559 (1980) ("It is essential . . . to the proper
functioning of the adversary system that when a defendant takes
the stand, the government be permitted proper and effective
crossexamination in an attempt to elicit the truth"); United
States v. Payton, 159 F.3d 49, 58 (2d Cir. 1998) ("When a
defendant offers an innocent explanation he `opens the door' to
questioning into the truth of his testimony, and the government
is entitled to attack his credibility on cross-examination");
United States v. Garcia, 936 F.2d 648, 651 (2d Cir. 1991)
("Once [defendant] Dominiguez testified that he had no idea that
the white powder was cocaine, he opened the door for the
Government to impeach his testimony by establishing on
cross-examination that he was familiar with and indeed had used
cocaine as recently as the day before his arrest."); United
States v. Beverly, 5 F.3d 633 (2d Cir. 1993) ("Where a
defendant testifies on direct about a specific fact, the
prosecution is entitled to prove on cross-examination that he
lied as to that fact. Garcia, 936 F.2d at 653. The same holds
true for defendant's false statements on cross-examination.
United States v. Atherton, 936 F.2d 728, 734 [2d Cir. 1991].
Finally, the government's opportunity to impeach the defendant's
credibility once he has taken the stand includes the opportunity
to use evidence that it was barred from using on its direct
case. Atherton, 936 F.2d at 734.")
In a somewhat similar legal mold, it is well settled that
statements taken in violation of the Miranda Rule are
impeach a defendant on the stand. This rule was clearly
enunciated in Michigan v. Harvey, 494 U.S. 344, 350-51, 110
S.Ct. 1176, 1180, 108 L.Ed.2d 293 (1990):
The prosecution must not be allowed to build its case
against a criminal defendant with evidence acquired
in contravention of constitutional guarantees and
their corresponding judicially created protections.
But use of statements so obtained for impeachment
purposes is a different matter. If a defendant
exercises his right to testify on his own behalf, he
assumes a reciprocal "obligation to speak truthfully
and accurately," Harris, supra, 401 U.S., at 225,
91 S.Ct., at 645, and we have consistently rejected
arguments that would allow a defendant to "`turn the
illegal method by which evidence in the Government's
possession was, obtained to his own advantage, and
provide himself with a shield against contradiction
of his untruths.'" Id. at 224, 91 S.Ct., at 645
(quoting Walder v. United States, 347 U.S. 62, 65,
74 S.Ct. 354, 356, 98 L.Ed. 503 (1954)). See also
[Oregon v.] Hass, supra, 420 U.S. [714,] 722, 95
S.Ct. [1215,] 1220-21, [43 L.Ed.2d 570]; United
States v. Havens, 446 U.S. 620, 626, 100 S.Ct. 1912,
1916, 64 L.Ed.2d 559 (1980).
Finally, the Court finds that no evidentiary hearing on the
Massiah issue is required. As noted in the Court's November 5,
2001 decision, when "[t]he files and records of the case
conclusively show that the Petitioner is entitled to no relief,"
there need be no hearing. 28 U.S.C. § 2255. The issues of fact
in this case were sufficiently adduced at the trial and
contained in the voluminous transcripts. This is especially
compelling in that this Court presided over the trial. See
Machibroda v. United States, 368 U.S. 487
, 495 n. 4, 82 S.Ct.
510, 7 L.Ed.2d 473 (1962); Chang v. United States,
250 F.3d 79
, 84-86 (2d Cir. 2001). This determination is especially
viable in this case, where the evidence was used only as
impeachment of the petitioner and on rebuttal — a clearly
permissible use of the evidence.
In sum, the Court finds that there was no ineffective
assistance of Petitioner's trial counsel in failing to object to
the Lum evidence based on the Massiah Rule. The Court notes,
however, that trial counsel for the Petitioner did object to the
admission of this evidence on other grounds, which objection was
properly overruled. The Government's use of this evidence in the
manner it did, to impeach the testifying petitioner did not
violate the Sixth Amendment or the Supreme Court's Massiah
Based on the foregoing, and additional reasons set forth in
the Court's November 5, 2001 decision, the petition is denied in
all respects. Further, having considered the standards for a
certificate of appealability under Fed.R.App.Pro.22(b) and
28 U.S.C. § 2253(c)(2), as set forth in Barefoot v. Estelle,
463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3395 n. 4, 77 L.Ed.2d 1090
(1983) and Lucidore v. New York State Div. Of Parole,
209 F.3d 107, 112 (2d Cir. 2000), the Court finds that the petitioner has
not made a substantial showing of a denial of a constitutional
right. Accordingly, the Court finds that the Petitioner is not
entitled to a certificate of appealability.
Accordingly, the petition is dismissed and the Clerk of the
Court is directed to close this case.