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.
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.
A He said, do you have enough room for the money.
And I asked why.
A He said because the monies (sic) is in five boxes.
Q After the conversation, did you talk to Ramirez
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.
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
1) His due process rights were violated by the Government's
overall outrageous conduct.
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:
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.
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 ...