The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
Movant was convicted after trial of one count of conspiracy to
violate the federal narcotics laws, 21 U.S.C. § 846, and sentenced
principally to a term of imprisonment of 480 months. The conviction was
affirmed but the sentence vacated and the case remanded for resentencing.
United States v. Rivera, 201 F.3d 99 (2d Cir. 1999), cert.
denied, 531 U.S. 901 (2000). On remand, movant again was sentenced
principally to 480 months of imprisonment. The judgment was affirmed by
the Court of Appeals, and certiorari was denied by the Supreme Court on
January 13, 2003. United States v. Rivera, No. 00-1371 (2d Cir.
filed May 6, 2002), cert. denied Walden v. United States,
123 S.Ct. 940(2003).
Movant now seeks relief pursuant to 28 U.S.C. § 2255,*fn1 claiming
that his rights under the Fifth and Sixth Amendments to the U.S.
Constitution were violated in that (1) the fourth superseding indictment,
on which he was tried, "wasn't presented to a grand jury" and was not
concurred in by twelve or more grand jurors, as supposedly evidenced by
the fact that the name of the foreperson who signed the earlier
indictments was Lawrence Friedman whereas the fourth superseding
indictment bears the signature of deputy foreperson Jeanne Mozzullo, and
(2) his trial counsel was ineffective in that counsel (a) allegedly
rejected movant's wish "to use a buyer seller defense" in favor of
disputing the broad conspiracy charge in the indictment, this on the
ground that the "admittance" inherent in such a defense "will only assist
the Government in obtaining a guilty
verdict," (b) did not adequately investigate the defense, (c)
failed to object to the fourth superseding indictment, presumably on the
ground now asserted as well as on the basis of the interval between the
return of the indictment and the trial, (d) failed to seek a continuance
in light of the superseding indictment, and (e) failed to seek a bill of
Rule 4(b) of the Section 2255 Rules requires the judge to whom a
Section 2255 motion is presented to examine the motion promptly and,
"[i]f it plainly appears from the face of the motion and any annexed
exhibits and the prior proceedings in the case that the movant is not
entitled to relief," to "make an order for its summary dismissal . . ."
The Court has examined the pertinent records with respect to the first
of movant's points. The grand jury attendance sheet maintained by the
Clerk for February 24, 1998, the date on which the fourth superseding
indictment was returned, reflects the presence of seventeen grand jurors
(including the deputy foreperson). The record of grand jurors concurring,
also maintained by the Clerk, reflects that fourteen of the grand jurors
concurred in the indictment. Accordingly, the first point advance by
movant is rejected summarily as it is contradicted by the record of prior
proceedings in the case. This requires rejection also of the claim that
movant's trial counsel was ineffective insofar as he failed to object to
the fourth superseding indictment on this ground.
The United States Attorney is directed to respond to so much of the
motion as is not rejected by this order no later than thirty days after
the date hereof.