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May 21, 2002


The opinion of the court was delivered by: Louis L. Stanton, U.S.D.J.


The petitioner seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2255, on nine grounds. Eight of these grounds (1-5, 7-9) lack merit, and are summarily disposed of below.

The sixth ground, challenging his 18 U.S.C. § 924(c) conviction, has merit and after a review of the evidence and the law, relief on that ground is granted.


In 1989 Mr. Camacho was convicted of participating in a narcotics conspiracy, maintaining a "stash house" for the distribution of narcotics, possession of "crack" cocaine with intent to distribute it, and aiding and abetting the carrying of a firearm during and in relation to a narcotics offense.

After his two motions for a new trial were denied, Mr. Camacho was sentenced as a career offender which, since his offenses involved over 500 grams of crack, produced a Guidelines sentencing range of 35 years to life imprisonment. The Court departed downward to 15 years on each of the narcotics counts, to be served concurrently and to be followed by the mandatory consecutive five years on the firearm count, 18 U.S.C. § 924(c).

The Court of Appeals affirmed the conviction and sentence. United States v. Irizzary, et al., 983 F.2d 1047 (2d Cir. 1992) (unpublished table decision); see also Landis Affirmation, Ex. F.

Mr. Camacho filed the present § 2255 motion for habeas relief on April 22, 1997. The government filed its opposition on November 4, 1997. The motion was initially dismissed as untimely, but reinstated without opposition on March 9, 1999. Thereafter, Mr. Camacho obtained a series of long extensions of time to reply to the government's opposition, claiming his conditions of confinement hampered him in doing so. On December 13, 2001 he asked the Court to separate and hold in abeyance all his proffered grounds for relief except the sixth, since he was about to start serving his consecutive five-year sentence on the § 924(c) count. The Court directed the government to respond, and also to address whether there was an issue under Apprendi v. United States, 120 S.Ct. 2348 (2000), which had been decided in the interim. By letter-brief on March 4, 2002 the government opposed deferral of consideration of any of the grounds, argued that Apprendi is inapplicable, and opposed Mr. Camacho's challenge to the § 924(c) count.


Provident judicial administration requires all grounds urged in support of the petition under § 2255 to be adjudicated together. Considering and ruling on them seriatim would produce a multitude of occasions for appeal, and run counter to the statutory policy disfavoring successive habeas petitions. See 28 U.S.C. § 2255 (limiting successive motions to those certified by the Court of Appeals to present newly discovered evidence, or a new and retroactive rule of constitutional law).

The grounds urged by Mr. Camacho are disposed of as follows:

First Ground

Mr. Camacho's claim that he was arrested illegally, and therefore his oral statement and beeper should have been suppressed, fails because (a) it is not cognizable on his habeas application,*fn* see Stone v. Powell, 96 S.Ct. 3037, 3052 (1976), and (b) his arrest was legal. Regardless of the arresting agents' misidentification of him as someone they had seen three days earlier, there were still lawful grounds to arrest him.

The agents had stopped the car that Mr. Camacho was driving because they recognized its passenger, Joseph Irizarry, whom they were seeking to arrest. When Irizarry left the car there was a scuffle, during which a loaded gun fell from his waistband. The agents found vials of crack in the back seat of the car in which he had been riding. They arrested not only Irizarry but also the driver of the car, Mr. Camacho. That was a lawful arrest, and it gives no grounds to suppress his statement or beeper. Both agents testified that their identification was mistaken, so the jury was aware of that fact.

Second Ground

Mr. Camacho's claims that the government withheld exculpatory evidence necessary to his defense have no merit for the following reasons:

(A) Agent Tully's mistaken identification of Camacho was sufficiently disclosed to the jury. Mr. Camacho says Tully's misidentification could not have been an honest mistake, because Tully had apprehended the wounded and dying Acevedo (for whom he was "mistaken") after a shootout three days earlier, and this impairs Tully's whole credibility, which was not adequately cross-examined.

This point, however, fails. First, the agents' testimony was limited, and their motivation would not have detracted from the government's proof, which rested primarily on Irizarry's, not the agents', testimony. Second, challenging the misidentification would have defeated the purpose of severing Mr. Camacho's trial from that of his co-defendants, Garcia and Fulgencia. The severance served to exclude all circumstances of the shootout (in which Mr. Camacho played no part), whose drama might have prejudiced his trial.

(B) The government did not discover Irizarry's marijuana use while incarcerated until after both trials, and the fact does not exculpate Mr. Camacho of narcotics trafficking.

(C) Mr. Chaparro's post-trial recantation in favor of Mr. Camacho was considered by the Court on Mr. Camacho's second motion for a new trial, and its rejection was affirmed on appeal.

Third Ground

Mr. Camacho's view that there was a "variance" between the indictment and the conspiracy proved at trial is simply wrong. The proof established, in much greater detail, the conspiracy alleged in the indictment.

Fourth Ground

Irizarry's testimony sufficed to support the verdicts on the conspiracy and narcotics counts and, despite Mr. Camacho's assertion that Irizarry's testimony was "a complete fabrication," it was evidently believed by the jury.

Fifth Ground

Mr. Camacho's complaint that he was "convicted on the basis of an unspecified general verdict" on the conspiracy count implicates two concepts, neither of which has merit.

(A) To the extent it is a claim that the jury should have rendered specific verdicts with respect to each type of narcotic that the conspiracy planned to distribute, it fails because an illegal objective is only one element of a conspiracy. In order to convict for conspiracy, the jury must find that the agreement had an unlawful objective. In this case the indictment charged that the conspiracy was to distribute heroin, cocaine and "crack." The jury was instructed that to convict, they must find an agreement on at least one of the unlawful objectives and they must be unanimous as to which objective it was. It is presumed that the jury followed that instruction, and there is no obligation to require a ...

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