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WALDEN v. U.S.

United States District Court, S.D. New York


February 20, 2004.

JERRY WALDEN, Movant, -against- UNITED STATES OF AMERICA, Respondent

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

ORDER

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 Page 2 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 particulars.

  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.

  SO ORDERED.


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