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August 4, 2003


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


The petitioner Victor Perez ("Perez") moves pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence arising from his 1991 conviction in this Court. For the reasons stated below, Perez's motion is denied.

On May 16, 1990, after a jury trial, this Court entered a judgment convicting Perez of conspiring to distribute, and possessing with intent to distribute, cocaine and cocaine base in violation of 21 U.S.C. § 846 and 841(b)(1)(c). The Court sentenced Perez to 235 months incarceration; five years supervised release; and a fifty dollar special assessment.

Perez directly appealed his conviction to the Court of Appeals for the Second Circuit ("Second Circuit"), alleging that: (1) this Court erred in admitting evidence that Perez shot a government informant, Manuel Rivas; (2) this Court erred in denying his request for a bench trial, even though the government objected; (3) this Court erred in refusing to instruct the jury on multiple conspiracies; and (4) this Court erred in denying his request for a polygraph examination.

On September 25, 1991, the Second Circuit affirmed his conviction, finding that: (1) the Court properly admitted evidence that Perez shot Manuel Rivas because it heard testimony which supported the conclusion that "the shooting was committed in furtherance of the conspiracy"; (2) the Court properly denied his request for a bench trial because the government objected, and if either side refuses to consent to a bench trial, a jury trial is the proper remedy; (3) he was not entitled to a multiple conspiracies jury instruction; and (4) this Court correctly denied his request for a polygraph examination. United States v. Perez, 946 F.2d 883 (2d Cir. 1991).

On February 23, 1998, Perez filed the instant motion, alleging that: (1) trial counsel was ineffective for failing to conduct an adequate pre-trial investigation; (2) trial counsel was ineffective for failing to challenge the amount of drugs attributable to him; (3) counsel was ineffective for failing to argue that his sentence should not have been enhanced for obstruction of justice; (4) counsel was ineffective for failing to object to the sentence enhancement for possession of a weapon; and (5) he was denied due process when the Court sentenced him according to a criminal history category which allegedly misrepresented his prior criminal history.

Perez also filed two motions to supplement his pleadings, arguing that: (1) the government impermissibly promised something of value to a witnesses in exchange for testimony; and (2) he has newly discovered evidence — a transcript and an affidavit from Yunior Capellan, the witness who identified Perez as the shooter, which states that Capellan was told to identify Perez, and that he may not have recognized Perez without assistance.

Perez also filed a motion for discovery, specifically requesting all documents relating to police officer Michael Dowd and Christopher DiLorenzo, alleging that these two officers were involved in corrupt activity and framed Perez. The government opposed the discovery motion, claiming that Officer Dowd did not participate in Perez's investigation and Officer DiLorenzo did not engage in any corrupt activity.


It is well settled that a Section 2255 motion is not a substitute for direct appeal. United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982); United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998). Accordingly, "Section 2255 claims not raised on direct review are procedurally barred unless they raise constitutional or jurisdictional claims, or result in a `complete miscarriage of justice.'" Johnson v. United States, 313 F.3d 815, 817 (2d Cir. 2002) (quoting Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996)). A petitioner seeking to raise a claim in his Section 2255 motion that he did not raise on direct appeal must show "cause and prejudice" or a "fundamental miscarriage of justice" for his failure to do so. Frady, 456 U.S. at 167, 102 S.Ct. 1584 (citing Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216(1973)); Munoz, 143 F.3d at 637.

One exception to this procedural default rule is for claims of ineffective assistance of counsel. Such claims may be brought in a Section 2255 proceeding whether or not the petitioner could have raised them on direct appeal. Massaro v. United States, ___ U.S. ___, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).

A. As to the Ineffective Assistance of Counsel Claim

In order to prevail on an ineffective assistance of counsel claim, a petitioner must establish that his counsel performed deficiently and that the deficiency caused actual prejudice to his defense. Strckland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002). Under the first prong, the court must "indulge a strong presumption that counsel's conduct falls within the range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. The petitioner may prove the deficiency prong by establishing that his attorney's conduct fell "outside the wide range of professionally competent assistance," id. at 690, 104 S.Ct. 2052, and establish prejudice by showing a "reasonable probability" exists that, but for the deficiency, "the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. "A reasonable probability is one sufficient to undermine confidence in the outcome of the trial or appeal." Dunham, 313 F.3d at 730 (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Also, the Second Circuit has instructed that a reviewing court should be "highly deferential" to counsel's performance, because "`it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.'" Pratt v. Greiner, 306 F.3d 1190, 1196 (2d Cir. 2002) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).

Although the test for ineffective assistance of counsel contains two prongs, the Supreme Court specifically noted that the federal district courts need not address both components if a petitioner fails to establish either one. Strickland, 466 U.S. at 697, 104 S.Ct. 2052. "In particular, a court need not determine whether counsel's performance was deficient before ...

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