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States v. Irizzary, et al., 983 F.2d 1047 (2d Cir. 1992) (unpublished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:
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
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.
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.
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
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
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 ...