The opinion of the court was delivered by: Shirley Kram, Senior District Judge
Ralph Rivera petitions this Court, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence for possession with intent to distribute heroin (2 counts), operation of a continuing criminal enterprise, and criminal forfeiture, in violation of 21 U.S.C. § 812, 841(a)(1), 848(a), 853(a)(1), (a)(2), and (p). The Court referred this matter to Magistrate Judge Kevin Nathaniel Fox, who issued a Report and Recommendation recommending the dismissal of the petition on several grounds. Rivera, through counsel, objects to the Magistrate's Report, and the Court will consider de novo those matters to which objections have been made. See Fed.R.Civ.Proc. 72(b). For the reasons set forth below, the Report and Recommendation of Magistrate Judge Fox is adopted and the petition is dismissed.
Magistrate Judge Fox clearly set forth the relevant background facts in the Report and the Court need not repeat them here in detail. See Report and Recommendation of Magistrate Judge Kevin [ Page 2]
Nathaniel Fox (hereiiiafter the "Report"), dated october 1, 2001, at 3-5. Rivera was convicted by a jury of conspiracy to distribute heroin, in violation of 21 U.S.C. § 846; possession with intent to distribute heroin, in violation of 21 U.S.C. $Sec; 812, 841(a)(1) (2 counts); and operation of a continuing criminal enterprise, in violation of 21 U.S.C. § 848(a). Rivera later pled guilty to a charge of criminal forfeiture, in violation of 21 U.S.C. § 853 (a)(1), (a) (2), and (p), pursuant to a plea agreement that provided his plea could be vacated if his narcotics conviction was overturned.
On October 12, 1994, Rivera was sentenced by this Court to life imprisonment. Rivera's appeal from his judgment of conviction was affirmed by the Second Circuit on April 14, 1997, with the exception of his narcotics conspiracy conviction. United States v. Rosario, 111 F.3d 293, 300-01 (2d Cir. 1997). The Second Circuit overturned the narcotics conspiracy conviction pursuant to its recent holding in Rutledge v. United States, 517 U.S. 292 (1996), in which it held that convictions for both a narcotics conspiracy and a continuing criminal enterprise could not stand, because entry of a judgment on both offenses would amount to cumulative punishment that Congress did not authorize. United States v. Rosario, 111 F.3d at 301. However, the Second Circuit rejected Rivera's due process claim regarding the trial court's decision to question a juror about alleged bias. Id. at 299-300. [ Page 3]
Rivera objects to the Magistrate Judge's findang that neither his trial counsel nor his appellate counsel were ineffective; renews his request for an evidentiary hearing with regard to his allegations of ineffective assistance of counsel; requests a modification of his sentence as a result of the Second Circuit's decision to vacate his narcotics conspiracy conviction; claims a due process violation because of the Government's seizure of his assets; and, seeks to amend his § 2255 petition to add a claim based upon Apprendi v. New Jersey, 530 U.S. 466 (2000).
A. Ineffective Assistance of Counsel — Conflict of Interest
Rivera's claim that David Richman, one of his trial attorneys, suffered a conflict of interest which resulted in the rendering of ineffective assistance must be dismissed. Magistrate Judge Fox did not consider the merits of this claim because the Court of Appeals had addressed it directly and found that the district court had properly fulfilled its investigation obligations under United States v. Stantini, 85 F.3d 9 (2d Cir. 1996). See Report at 6; see also United States v. Rosario, 111 F.3d 124 (Table), 1996 WL 868385 (2d Cir. Dec. 9, 1996). Accordingly, petitioner's first claim was litigated and dismissed on direct appeal, and is hereby dismissed. [ Page 4]
B. Ineffective Assistance of Trial Counsel — Juror Bias
Rivera also craims that Richman rendered ineffective assistance by failing to timely notify the Court of allegations of potential juror bias. The Court adopts the recommendation of Magistrate Fox's report that this claim is procedurally barred.
"Failure to raise a particular ground on direct appeal will bar consideration of that claim in a § 2255 motion unless the [petitioner] can show that there was cause for failing to raise the issue, and prejudice resulting therefrom." Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993), superceded by statute on other grounds. A petitioner is required to show cause and prejudice for not raising an ineffective assistance of counsel claim on direct appeal if "petitioner was represented by new appellate counsel on direct appeal, and . . . the claim is based solely on the record developed at trial." Abbamonte v. United States, 160 F.3d 922, 928 (2d Cir. 1998) (citing Billy-Eko v. United States, 8 F.3d 111, 115 (2d Cir. 1993)).
Rivera was represented before the Second Circuit by counsel other than his trial counsel and the trial record was sufficiently developed for him to present on direct appeal the ineffective assistance of trial counsel claim arising from the issue of juror bias. Report at 8. On direct appeal, Rivera raised the issue of juror bias, but asserted a different claim with respect to that issue; instead of ineffective ...