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November 5, 2001


The opinion of the court was delivered by: Spatt, District Judge.


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 Mercy."

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.

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" waiting.

Philip Han testified as follows:

Q The conversation you had with Ramirez after the 10:56 conversation, what did you and Mr. Ramirez talk about?
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 anything?

A Yes.

Q What?

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 again?

A Yes, I did.

Q How much afterwards was the next conversation?

A I don't recall exactly.

Q Approximately?

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 to me.

Tr. 5595-96.*fn*

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.

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.


Represented by his trial counsel, the petitioner filed an appeal to the Second Circuit. The petitioner raised the following issues:

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 notice violated his due process rights and was a continuation of prosecutorial misconduct.

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 Cir.8/17/92).


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 petitioner:

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 appealability.


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 (1968.)"

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 2255.

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 (emphasis added).

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 same petitioner.")

B. Alleged Ineffective Assistance of Counsel on Appeal — Failure to Raise the Improper Admission of Prejudicial Rule 404(b) Evidence

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 appeal.

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 ...

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