The opinion of the court was delivered by: John Keenan, Senior District Judge
Before the Court are Petitioner David Podlog's ("Podlog") supplemental pro se motions to vacate his conviction and sentence, or in the alternative to correct his sentence, pursuant to 28 U.S.C. § 2255 ("§ 2255"). For the reasons outlined below, Petitioner's motions are denied.
A detailed background to this case has been presented in this Court's prior orders and in a previous opinion of the Court of Appeals for the Second Circuit. See United States v. Podlog, 35 F.3d 699 (2d Cir. 1994) (affirming Podlog's conviction and sentence). The Court will therefore discuss only those facts relevant to the present motions.
Podlog was charged in an indictment, S2 92 Cr. 374 (JFK), filed on September 24, 1992. Count One of that indictment charged Podlog and his co-defendants with conspiracy to distribute heroin and possession with intent to distribute heroin in violation of 21 U.S.C. § 846. Following a jury trial before this Court, Podlog and his co-defendants were convicted on Count One on April 27, 1993.
On January 31, 1994, Podlog moved for a new trial pursuant to Federal Rule of Criminal Procedure 33, arguing, inter alia, that a cooperating Government witness, Alexander Moysif ("Moysif"), had committed perjury during Podlog's trial. Podlog claimed that Moysif did so with the knowledge and consent of the Government. On May 6, 1994, this Court denied Podlog's claims of outrageous government conduct and ineffective assistance of counsel, but ordered a hearing to determine the issue of Moysif's alleged perjury. The evidentiary hearing was held on June 13, 1994, and on July 20, 1994, this Court found by written Opinion and Order that Moysif had not committed perjury and thus denied Podlog's remaining claim for a new trial.
Podlog's Presentence Report ("PSR") concluded that he should receive a three-level enhancement under § 3B1.1 of the United States Sentencing Guidelines (U.S.S.G.) due to his role as a manager or supervisor of criminal activity involving five or more participants. After denying Podlog's request for an evidentiary hearing on the issue of his supervisory role, this Court sentenced Podlog on October 5, 1994 to a term of 324 months' imprisonment based on an adjusted offense level of 39 and a Criminal History Category of III.
Podlog appealed his conviction and sentence to the Court of Appeals for the Second Circuit. On appeal, Podlog argued that this Court erred by denying his motion for a new trial based on Moysif's alleged perjury, by: (1) finding Podlog legally responsible for distributing 14.4 kilograms of heroin, (2) raising offense level by three points, and (3) denying him an evidentiary hearing on the issue of his role in the offense. The Second Circuit rejected Podlog's claims and affirmed his conviction and sentence. See United States v. Podlog, 35 F.3d 699 (2d Cir. 1994); see also United States v. Podlog, 60 F.3d 810 (2d Cir. 1995).
On April 22, 1997, Podlog filed a pro se motion pursuant to 28 U.S.C. § 2255 to vacate or set aside his conviction and sentence. In his petition, Podlog alleged that the Government: (1) failed to provide him with a Drug Enforcement Agency ("DEA") report in violation of Brady v. Maryland, 373 U.S. 83 (1963), (2) denied his right to due process through the suppression of a trial exhibit, and (3) knowingly relied on the perjured testimony of Government witness Moysif.
Subsequently, on November 26, 1997, Podlog filed a "Supplemental Motion Pursuant to 28 U.S.C. § 2255". Since his sentencing in 1994, Podlog has been diagnosed with heart disease and has undergone a series of procedures to stabilize his condition. The supplemental motion adds to his petition a claim that Podlog would have argued for a downward departure at sentencing due to poor health had prison authorities been more prompt and diagnosed his heart condition before the time of sentencing.
On October 27, 1998, Podlog filed a second supplemental motion to his Section 2255 petition. In this motion, Podlog again alleges various violations of his rights under Brady v. Maryland, specifically that the Government failed to disclose the existence of a cooperation agreement between the Government and Podlog's co-defendant Aron Roizis ("Roizis"). Podlog also claims that the Assistant United States Attorneys prosecuting the case suborned perjury by Moysif and lied to the Court regarding the cooperation agreement.
This Court denied each of the claims in Podlog's original Section 2255 petition finding that most of the claims were procedurally barred because they were not raised on direct appeal and that the remainder had previously been raised and rejected. This Court also dismissed Podlog's two supplemental motions ruling that they were time-barred.
Podlog appealed this Court's ruling to the Second Circuit Court of Appeals, which dismissed his appeal without prejudice, ordering him to move for a certificate of appealability to this Court. On October 3, 2000, Podlog requested a certificate of appealability on two issues: (1) whether this Court improperly dismissed his supplemental motions as time-barred, and (2) whether the Government engaged in misconduct which deprived Podlog of his constitutional rights.
This Court declined to issue a certificate of appealability, but upon an appeal by Podlog, the Second Circuit granted Podlog's certificate of appealability for the limited purpose of this Court's consideration of Podlog's supplemental motions on their merits.
A federal prisoner who fails to raise an issue on direct appeal is procedurally barred from asserting it for the first time on habeas review unless he can show "cause and actual prejudice." United States v. Frady, 456 U.S. 152, 167-68 (1982); see also United States v. Canady, 126 F.3d 352, 359-60 (2d Cir. 1997), cert. denied, 522 U.S. 1134 (1998). "Under this standard, to obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) `cause' ...