United States District Court, E.D. New York
March 22, 2004.
FRANKLIN OCAMPO, also known as "Danny Gomez," -against- UNITED STATES OF AMERICA, Respondent
The opinion of the court was delivered by: JOHN GLEESON, District Judge
MEMORANDUM AND ORDER
Franklin Ocampo, also known as (and referred to herein as) "Danny
Gomez," moves pursuant to 28 U.S.C. § 2255 to vacate his sentence of
life in prison, imposed upon him after a jury found him guilty of,
inter alia, drug trafficking and a hostage-taking in which the
year-old victim was brutally murdered. For the reasons set forth
below, I reject all of the arguments in Gomez's motion except for two, as
to which an evidentiary hearing will be held on April 9, 2004 at 11:00
A. The Facts
On July 19, 1995, James Barona, a confidential informant, advised
Detective Billy Ralat that Barona's friends Emilio and Jerry had received
threats. Barona told Ralat that "Gandhi," "Runi" and others had
confronted Emilio and Jerry at their apartment and accused them of
stealing $350,000 in money orders from a "stash" location controlled by
"Gandhi." The woman who had been watching that location at the time of
the theft was unable to identify Emilio and Jerry as the thieves, so they
were released. However, shortly thereafter, a note was placed under
Emilio and Jerry's door, directing them to contact beeper number (971)
752-1106. Emilio, Jerry and Barona paged the beeper number. They spoke
with "Runi" and "Jose," and were informed that their associate "Papitas"
had been kidnapped and that a second individual had already been killed.
"Jose" warned that the stolen money orders must be returned if they did
not want "Papitas" killed.
After hearing Barona's account, Detective Ralat made inquiries into
recent homicides of unidentified males. He learned that five days
earlier, on July 14, 1995, on a service road adjacent to the Grand
Central Parkway in Queens, New York, the police found the dead body of
17-year-old Carlos Alberto Osorio stuffed inside in a black suitcase. An
onion had been placed in his mouth, his face had been wrapped in duct
tape, and his legs and arms had been bound. The cause of death was
strangulation, but the body bore the marks of torture: there were blunt
impact injuries on the forehead, and there was a 4-inch stab wound on one
thigh. Ralat showed a photo of Osorio to Barona, who confirmed that
Osorio was "Papitas," the kidnapped associate of Emilio
and Jerry. At Ralat's direction, Barona again paged (917) 752-1106,
which was the dead man's pager. Posing as the "sponsor" of Emilio and
Jerry, Barona engaged the kidnappers in tape-recorded conversations
relating to Osorio's torture and death and the provision of cocaine as
restitution for the stolen money orders.
In the first of two conversations recorded on the evening of July 19,
1995, Gomez identified himself as "Jose." He related how Osorio had
"snitched out" Emilio and Jerry regarding the stolen money orders. Barona
said Emilio and Jerry were not involved in the theft. Gomez told Barona
to have Emilio and Jerry consider returning the stolen money.
In the second conversation, Gomez identified himself as "Gandhi."
During this call, Gomez described how the woman overseeing the stash
location was brought to Emilio and Jerry's residence, but she could not
identify them. However, she did identify Osorio, who was seized. Gomez
said that Osorio was originally treated well, but then he was tortured.
Osorio named Emilio and Jerry as the other thieves. Gomez also said a
woman believed to be Emilio's mother was kidnapped and was being held in
The following day, July 20, 1995, other telephone calls were recorded.
In one call, Barona talked with "Gandhi" (Gomez) and "Gigo" (Jamie
Londono Garcia, referred to herein as "Londono"). Gomez claimed the
stolen money orders belonged to him, and that he would accept cocaine in
lieu of them. Londono concluded that discussion, and in another call
later that evening, Barona and Londono agreed that five kilograms of
cocaine would be delivered by Barona as a down payment on the $350,000
owed as a result of the stolen money orders.
Londono, who testified for the government pursuant to a cooperation
agreement, admitted that he was involved in the charged drug conspiracy
and testified that he had engaged in a series of kidnappings and
extortions for drug dealers in 1993 and 1994. He had met Gomez, whom
he knew only as "Gandhi," several months earlier. On July 20, 1995,
Gomez related the Osorio incident to Londono in detail. Gomez said that
$350,000 had been stolen from him, that he and "Runi" had brought the two
men and a woman overseeing the location from which the money was stolen
to Jerry and Emilio's residence, and that the woman could not identify
them as the thieves. However, Gomez told Londono, Osorio was later
identified as one of the thieves and kidnapped. After being tortured,
Gomez stated, Osorio confessed that Jerry, Emilio and "Costeno" had
committed the robbery; Osorio was then strangled to death and "Runi" was
paid $25,000 for the murder. Gomez hired Londono to kidnap Emilio and
Jerry, gave him a $4,000 advance, and exchanged beeper numbers with him.
Londono still had Gomez's beeper number in his possession when he was
arrested on July 20, 1995.
In his testimony at trial, Londono also explained portions of the
recorded telephone conversations on July 20, 1995, that corroborated
Barona's testimony. He identified "Gandhi's" voice on the tapes as the
voice of Gomez. The voice identification was buttressed by comparison of
the tapes to Gomez's voice on other taped conversations,*fn1 including
several calls from a wiretap in a separate federal investigation in
Tennessee during the period from July 14, 1995 to July 17, 1995. Londono
also identified the voice of "Runi" on some of the Tennessee tapes.
"Runi" was arrested in Memphis on July 17, 1995, with Gomez's pager
number in his possession.
The Tennessee calls corroborated Londono's account of what Gomez had
told him about the torture and killing of Osorio. In one conversation,
"Canoso" described how he gave an "ass-kicking" to someone to make him
"sing;" and that he "turned his [Osorio's] face into shit."
(Gov't Ex. 55 at 3.) In another call, Gomez described how the
kidnapped person (who the context made clear was Osorio) "spit out
Emilio, Jerry and Costeno at us." (Gov't Ex. 61 at 8.)
Gomez was arrested on August 24, 1995. In a post-arrest statement, he
admitted that one of his nicknames was "Gandhi" and that he had a friend
B. The Procedural History
Gomez was charged with conspiracy to possess with intent to distribute
five kilograms of cocaine, in violation of 21 U.S.C. § 846 (Count
One); hostage taking, which resulted in Osorio's death, in violation of
18 U.S.C. § 1203(a) (Count Two); hostage-taking of Jane Doe (a person
believed to be Emilio's mother), in violation of 18 U.S.C. § 1203(a)
(Count Three); and illegal re-entry after deportation, in violation of
8 U.S.C. § 1326(a) (Count Four). The jury convicted Gomez on all four
counts. He was sentenced to a term of life imprisonment on September 6,
Gomez was represented by new counsel for his appeal. Appellate counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967). The brief identified and discussed several potential issues for
review before concluding that there were no nonfrivolous points to be
raised on appeal. The potential issues were: (1) jury tampering (i.e., an
inadvertent entry of a nonjuror into the jury room); (2) improper
admission of hearsay; (3) insufficiency of the evidence; and (4)
incompetence of trial counsel. In pro se briefs, Gomez raised
additional claims: (5) prosecutorial misconduct in the government's
rebuttal summation; (6) improper testimony from James Barona interpreting
taped conversations; (7) outrageous government conduct in creating a
crime; (8) insufficiency of the evidence on Count Three (hostage-taking
of person believed to be Emilio's mother); (9) and jury tampering. Gomez
did not, in either of his pro se briefs, raise a
claim of ineffective assistance of trial counsel.
In light of the Anders brief, the Second Circuit granted
appellate counsel's motion to be relieved and further granted the
government's motion for summary affirmance. United States v.
Gomez. No. 96-1611 (Aug. 6, 1998) (summary order).
In a lengthy, blunderbuss-type motion that rails against both his trial
and appellate lawyers, Gomez admits almost all of what the government
proved at trial. Specifically, he states that,
he was "one of the collectors" responsible
for the safekeeping of the $350,000 in
money orders at the stash house;
Osorio, Emilio and Jerry robbed the money
orders from the stash house,
pistol-whipping two women who resided
Gomez suspected that the robbery was an
Having been given a description of the
thieves, Gomez (and two other drug dealers
from Tennessee) summoned Osorio to meet
when Osorio denied the theft, Gomez
decided to have the two beaten women
look at him;
the women identified Osorio as one of the
after that identification, Gomez and five
other men were in an apartment with Osorio,
who had already been beaten but was not yet
dead and was not free to leave.
(Memo at 4-5.)*fn2
Gomez admits all of that, and then he further admits going to the
apartment "[o]n or about July 18, 1995," where he "found Papitas
[i.e., Osorio] had been strangled." (Id. at 6.)
The only part of the government's case that Gomez does not admit in his
petition was proved overwhelmingly at trial. On tape, Gomez told Barona
that Osorio was treated well at first, but then he was tortured. He also
told Barona that, upon being tortured, Osorio gave up Emilio and Jerry,
so Emilio's mother had been kidnapped in Colombia. Also on tape, Gomez
said he would accept cocaine in lieu of the stolen money orders, and that
five kilograms would be an acceptable down payment.*fn3
Also, Londono, who Gomez admits was part of the conspiracy to retrieve
the stolen money, testified that Gomez hired him to kidnap Emilio and
Jerry. Gomez also told Londono that Osorio had been kidnapped, tortured
and killed by asphyxiation.
In short, very few cases entail evidence of guilt as strong as the
evidence of Gomez's guilt in this case. With that backdrop, I turn to his
various and belated allegations of incompetence by his lawyers.
A. The Governing Standard
The Supreme Court has established the following standard for
ineffective assistance claims:
First, the defendant must show that counsel's
performance was deficient. This requires showing
that counsel made errors so serious that counsel
was not functioning as the "counsel" guaranteed
the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both showings,
it cannot be said that the conviction . . .
resulted from a breakdown in the adversary process
that renders the result unreliable.
Strickland v. Washington. 466 U.S. 668
, 687 (1984). Thus,
to make out this type of claim, the
petitioner must demonstrate both (1) that his attorney's
performance "fell below an objective standard of reasonableness,"
id. at 688, and (2) that "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different," id. at 694. In assessing
the reasonableness of counsel's performance, "judicial scrutiny of
counsel's performance must be highly deferential," and the court must
"indulge a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy."
Strickland. 466 U.S. at 689 (internal quotation marks omitted);
Jackson v. Leonardo. 162 F.3d 81
, 85 (2d Cir. 1998); see
also Yarborough v. Gentry. 124 S.Ct. 1
, 4 (2003) (per curiam)
("[C]ounsel has wide latitude in deciding how best to represent a
client. . . .").
In assessing counsel's performance, I "must conduct an objective review
. . . measured for `reasonableness under prevailing professional norms,'
which includes a context-dependent consideration of the challenged
conduct as seen `from counsel's perspective at the time.'" Wiggins
v. Smith. 123 S.Ct. 2527, 2535 (2003) (citations omitted) (quoting
Strickland. 466 U.S. at 688-89)). The Supreme Court has
"declined to articulate specific guidelines for appropriate attorney
conduct" and has instead emphasized that "`the proper measure of attorney
performance remains simply reasonableness under prevailing professional
norms.'" Id. at 2535 (quoting Strickland. 466 U.S. at
To establish the requisite effect of counsel's performance on the
outcome of the proceeding, it is not sufficient if the petitioner shows
merely that counsel's errors had "some conceivable effect" on the
outcome. Strickland. 466 U.S. at 693. Rather, there must be "a
reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding
would have been different." Id. at 694. A "reasonable
probability" is "a probability sufficient to undermine confidence in the
outcome." Id. This determination, unlike the determination
whether counsel's performance fell below an objective standard of
reasonableness, may be made with the benefit of hindsight. See
Lockhart v. Fretwell. 506 U.S. 364, 372 (1993).
B. Gomez's Claims
Most of Gomez's arguments reveal a misapprehension of the Sixth
Amendment guarantee of effective assistance of counsel. For example, he
criticizes counsel because counsel was still working on a defense
strategy three weeks before the trial was to begin, and because some
witnesses who counsel cross-examined managed "to skate away without fully
answering" the questions. (R. Memo at 9-10.) These hindsight-aided
criticisms, and numerous others leveled by Gomez, simply do not come
close to alleging constitutional inadequacies in his representation. In
any event, I address his various categories of claims below.
1. Failure to Investigate
Gomez contends his trial counsel failed to conduct an adequate and
thorough investigation of possible defenses. He claims that such an
investigation should have included discovering "Gomez's actual
whereabouts during the time of Mr. Osorio's death," an "independent voice
analysis" of the tapes introduced at trial, and hiring an "expert . . .
to prepare a social history evaluation." (Memo at 14.) This claim is
baseless. Gomez does not specify what an investigation into his
whereabouts at the time of Osorio's death would have uncovered. Indeed,
even in his petition, he admits being present in the apartment where
Osorio was murdered. Specifically, Gomez asserts he was there with five
other men after Osorio was beaten but before he died (Memo at 5), and
again on July 18, 1995, when Osorio's dead body was present in the
apartment, (id. at 6). Apparently, Gomez claims to have been conveniently
absent at the precise moment Osorio was
murdered, but he gives no clue as to where he was, or why he did
not simply tell his attorney where he was. Finally, the government
reports that in a proffer session prior to trial, Gomez admitted he was
present when Osorio was tortured and murdered. Thus, an investigation by
counsel into his "whereabouts" would not have produced a possible
As for the "independent voice analysis," Gomez admitted upon arrest
that he was "Gandhi," the name used on the tapes, and three witnesses
identified his voice. Indeed, even on this motion, he admits that he was
the person on the telephone who turned the cocaine negotiations over to
Londono. (Memo at 6 ("Gomez had little interest in the cocaine and handed
the negotiations over to . . . Londono").) Finally, Gomez's claim that
trial counsel was ineffective for not hiring an expert to do a social
history evaluation might make sense if this had been a capital case. I
cannot conceive of how such an evaluation would have helped here, and
Gomez does not explain how it could have.
2. Inadequate Preparation for Cross-Examination
Gomez contends that trial counsel was inadequately prepared for trial
because he "had no theory of defense" and "was woefully unprepared for
effective cross-examination." (Memo at 14.) As for the first claim, Gomez
further contends that "the theory of the defense should have been clear:
Daniel Gomez is not the man called `Gandhi.'" (Id. at 15.) If
Gomez means that the defense should have been he was not a man
known as Gandhi, his claim has no merit. In light of the overwhelming
evidence at trial (including Gomez's admission)*fn4 that Gomez was
"Gandhi," it was reasonable for trial counsel to concede that his
client was called "Gandhi" and instead contend that it had to be a
different "Gandhi" who committed these crimes and was captured
on the tapes. In light of the government's evidence, a defense that Gomez
is not a man called "Gandhi" would have been unwise indeed. Trial
counsel's defense strategy that a different "Gandhi" was on the tapes was
Gomez contends further that trial counsel's failure to interview
witnesses led to ineffective cross-examinations of Barona, Londono,
Detective Ralat, Henry Roa, and Special Agent Brian Chambers. Though
counsel did not interview any of these witnesses pre-trial, it was
neither unusual nor unreasonable for him not to do so. Indeed, with the
exception of Roa, it is very unlikely that any of them would have agreed
to speak to counsel or his investigator. Moreover, Gomez fails to specify
the impeaching material that pre-trial interviews would allegedly have
In any event, the record demonstrates that defense counsel attempted to
impeach these witnesses in vigorous and thorough cross-examinations.
"Decisions whether to engage in cross-examination, and if so to what
extent and in what manner, are [ ] strategic in nature." United
States v. Nersesian. 824 F.2d 1294, 1321 (2d Cir. 1987); see
also United States v. Risen. 974 F.2d 246, 265 (2d Cir. 1992) (where
trial counsel subjected witnesses to vigorous cross-examination, "counsel
could have reasonably concluded that further cross-examination on
relatively unimportant matters would have confused or fatigued the
Barona contacted the authorities after Emilio and Jerry advised him
that Osorio had
been kidnapped and that they were being threatened. Under Detective
Ralat's supervision, Barona placed several taped telephone calls to Gomez
and his co-conspirators. During those calls, Gomez (using the names Jose
and Gandhi) stated that $350,000 in money orders had been stolen from
him, that Osorio had been kidnapped and tortured, that Osorio had
implicated Emilio and Jerry in the theft of the money orders, and that a
woman believed to be Emilio's mother was kidnapped in Colombia.
Since Barona did not identify Gomez as Gandhi, no cross-examination was
required to further the defense that Gomez was not the Gandhi on the
tapes. Nevertheless, trial counsel conducted a thorough cross-examination
of Barona, impeaching him by eliciting, for example, that he had lied
under oath during a state plea allocution and had an extensive criminal
background, including drug dealing, stash house robberies, and drug use.
Gomez contends that trial counsel did not expand on a number of
insignificant issues, such as how Barona was able to get marijuana in
jail and the source country for Barona's cocaine. Gomez does not say what
the answers to these and other unasked questions would have been, or how
they would have affected the outcome of the case. Moreover, some of these
allegedly unexplored areas had in fact been covered, such as the full
extent of Barona's drug use. (See, e.g., Tr. at 241, 502-03).
Similarly, Barona fully explained why he was cooperating for the benefit
of a third party. (See Tr. at 258, 535 (Third party had helped
Barona in jail by putting money in his commissary and had offered to pay
for an operation for Barona's son).)
Trial counsel conducted a thorough cross-examination of Londono. It
covered Londono's cooperation agreement and other motives for testifying,
his history of violence, and numerous specific crimes Londono had
committed, including kidnappings, extortions, and theft.
Gomez contends that counsel's cross-examination was inadequate because
he: (1) did not further question Londono about Pacho Herrera;*fn6 (2)
did not ask Londono if he committed a homicide; (3) exhibited signs he
was not in control of himself; and (4) had not prepared transcripts of
calls Londono made to his mother and brother from prison.
It was not unreasonable for trial counsel to stop asking questions
about Herrera after Londono said he did not know Herrera. (See
Tr. at 729.) Nor was it unreasonable for counsel not to question Londono
about an alleged homicide after the government represented at a side-bar
that the witness would deny any participation in the homicide and I
indicated that I would instruct the jury that an attorney's questions are
not evidence. (See Tr. at 717-18.) The claim that trial counsel
was not in control of himself is based entirely on a common sidebar
request that counsel keep his voice down so the jury would not hear him.
Finally, Gomez does not demonstrate that transcription of the prison
tapes would have in any way aided the cross-examination of Londono. The
tapes were played for Londono and he admitted their contents.
Roa, a car mechanic, identified Gomez as "Gandhi" and his girlfriend as
"India." Roa had sold Gomez a number of cars, and had repaired cars for
him. Gomez does not specify what additional questions should have been
asked on the cross-examination of Roa. He simply criticizes trial counsel
for failing to impeach the identification of Gomez as Gandhi. Since the
witness had extensive dealings with the defendant and knew him as Gandhi,
there was no effective way to impeach Roa on that subject.
Gomez alleges that the cross-examination of Ralat was ineffective
because he was not asked about the methodology of taking the voice
exemplar, and the exemplar was not played in court. However, hearing the
tapes might well have enabled the jury to compare for itself the voices.
This is precisely the sort of strategy that may not be second-guessed
under the guise of assessing the effectiveness of trial counsel.
e. Agent Chambers
Chambers, part of the arrest team in Tennessee, seized two pieces of
paper from the defendants in that case on July 17, 1995. Written on those
pieces of paper were the name "Gandhi" and the same pager number that
Detective Ralat and Barona used to contact the kidnappers in New York.
Gomez criticizes trial counsel's cross-examination of Chambers because
(a) at one point counsel inadvertently referred to Tennessee as Louisiana
and (b) at a side-bar, counsel mistakenly stated that the beeper number
on the two pieces of paper belonged to Osorio, not Gomez. Those types of
errors are too common and too innocuous to warrant habeas relief,
Gomez also claims that counsel should have elicited from Chambers
testimony concerning "`Runi' and his relationship to the kidnaping and
murder of Mr. Osorio." (Memo at 36.) He does not specify what admissible
(i.e., non-hearsay) testimony the Tennessee agent could have offered
about Runi's participation in the murder of Osorio in New York. In any
event, Londono had already testified that, according to Gomez, Runi
participated in the murder of Osorio. Moreover, Runi and Gomez were
linked to each other through, inter alia, the Tennessee wiretap
calls, the Barona consensual calls, the Gandhi pager number found in
Runi's possession in Tennessee, and Gomez's post-arrest statement.
3. Inadequate Consultation
Gomez contends that his defense counsel met with him only 12 times
before trial commenced. Assuming arguendo that to be true, Gomez
nonetheless fails to explain how or why further consultation would have
assisted the defense. Gomez concedes that the pretrial consultations
produced a trial strategy, i.e., to discredit Londono, and that
the pretrial conferences covered the Title III surveillance; the Barona
tapes; a plea offer from the government; the terms of Barona's and
Londono's cooperation; and jury selection. Even accepting as true Gomez's
description of trial counsel's consultations with him, the first
Strickland requirement has not been met.
4. Conduct During Voir Dire
Gomez contends that trial counsel provided ineffective assistance by
failing to challenge Juror Saez because she worked at the World Trade
Center and, in light of the 1993 bombing there, she could not be
unbiased. It was ineffective assistance not to challenge Juror Studifin,
Gomez argues, because her son was a police officer. These claims are
simply frivolous. I also note that it is apparent from the trial record
that Gomez himself was involved, according to counsel, in the peremptory
challenges. (See, e.g., Tr. at 81-82).
5. Gomez's Right to Testify
Gomez claims that he wanted to testify at trial but trial counsel
would not let him. A hearing will be held on this issue on April 9,
2004 at 11:00 a.m.
6. Performance During Trial
To the extent that this argument does not rehash Gomez's other
complaints about trial counsel, it merely second guesses minor decisions
at trial or criticizes minor, routine errors by counsel. For example,
Gomez complains that trial counsel failed to appear on the first day of
trial because he was sick. Although I issued an order to show cause
why counsel should not pay the cost of unnecessarily bringing in a jury
panel that day, no sanction was imposed, and the short lived possibility
of such a sanction was collateral to the trial and had no impact on the
outcome of the case.
Gomez criticizes trial counsel for believing I had denied, rather than
reserved judgment on, the government's motion to preclude
cross-examination of Barona regarding an incident that occurred in
Colombia. Such confusion is common, and here it had no bearing on my
final ruling on that motion, much less on the outcome of the case.
Gomez complains that trial counsel had indicated that he might want to
elicit testimony from Londono about a conversation Londono had in jail
with Gomez, during which Gomez told Londono that another attorney had
claimed he would bribe the prosecutor. Since I precluded that line of
inquiry, the jury never learned of it, and no harm was caused. Gomez
correctly contends that trial counsel did not interview Gomez's common
law wife prior to her testimony, but he fails to establish what such an
interview would have revealed or how it would have helped the defense.
Similarly, that trial counsel made objections that were overruled does
not indicate a lack of preparation. Indeed, most of the government's
objections were overruled as well, and no one can dispute the fact that
the government was extremely well prepared for trial.
7. Inadequate Summation
Gomez attacks his trial counsel's summation for several reasons.
Chief among them is the admission that Gomez was called Gandhi. As
discussed above, in light of the overwhelming evidence of that fact,
this was reasonable. In his summation, trial counsel attacked the
government for not offering more proof relating to the kidnapping of
a woman believed to be Emilio's mother. Gomez contends that this
argument reflects ineffectiveness because counsel had
not established Emilio's mother's last name. Implicit in Gomez's
argument is that knowing the last name would have enabled counsel to
prove that Emilio's mother had not been kidnapped. When Gomez raised this
same argument at sentencing, I rejected it on the ground that the
government's theory throughout the case had been that a woman
believed to be Emilio's mother (and not actually Emilio's
mother) had been kidnapped. Thus, Emilio's mother's last name was not
Gomez also claims that trial counsel spoke in "improper English" and
"gibberish." This claim is ridiculous. Trial counsel spoke just fine, and
the court reporters' mistranscriptions of the fast-spoken closing
arguments (of both counsel) do not alter that fact.
In sum, Gomez's criticisms of his attorney's summation are unfounded.
In light of the strength of the government's case, counsel had a
difficult job in summation. Nevertheless, he vigorously attacked the
credibility of government's main witnesses, Barona and Londono, and
attempted to discredit the voice identifications as well. Finally,
counsel carefully focused on the individual elements that, he argued, had
not been proven beyond a reasonable doubt. (See Tr. at
993-1017.) The summation did not fall below an objectively reasonable
standard of performance for defense counsel.
8. The Plea Offer
Gomez contends that he received ineffective assistance of counsel in
the form of poor advice with respect to an alleged plea offer of 15-20
years. According to Gomez, the offer relayed to him was conditional on
his cooperation. Also, Gomez asserts that he was told by trial counsel
that he would be sentenced to 25 years in prison if he went to trial and
was convicted. (R. Memo at 2-3.) Although neither of the prosecutors
recalls making such a plea offer, I assume for present purposes that it
was made. The prosecutors report that trial counsel would say, if called
as a witness, that he: (1) recalls a plea offer of 20 years having been
made; (2) conveyed that offer
to his client and laid out the options for him; and (3) did not
(contrary to the claim in Gomez's motion) advise Gomez that he faced only
25 years if convicted after trial.
Defense counsel "must give the client the benefit of counsel's
professional advice on [the] crucial decision of whether to plead
guilty." Purdy v. United States. 208 F.3d 41, 44 (2d Cir. 2000)
(citation and quotations omitted). In rendering this advice, "counsel
must communicate to the defendant the terms of the plea offer, and should
usually inform the defendant of the strengths and weaknesses of the case
against him, as well as the alternative sentences to which he will most
likely be exposed." Id. at 45 (citations omitted). "On the
other hand, the ultimate decision whether to plead guilty must be made by
the defendant. And a lawyer must take care not to coerce a client into
either accepting or rejecting a plea offer." Id.
Even as relayed by Gomez, trial counsel's conduct with regard to the
plea offer was largely unobjectionable on Sixth Amendment grounds.
Counsel conveyed the plea bargain to Gomez and, given counsel's
assessment of Londono as a witness, advised Gomez against accepting the
offer. Counsel did state his view that he did not like "snitches," and
did not like entering into cooperation agreements with the government. On
the other hand, counsel did not exclude the possibility. Cf
United States v. Gonzalez-Bello. 10 F. Supp.2d 232, 241-42
(E.D.N.Y. 1998) (downward departure based on, inter alia,
counsel's obstruction of defendant's effort to cooperate). Moreover,
Gomez himself says that he told his trial counsel that he "didn't want to
be a snitch," and further that he did not want to plead guilty and do
15-20 years "for something he had actually not done." (R. Memo 2-3.)
Finally, counsel advised Gomez about the strength of the government's
case. In addition to the assessment of Londono's credibility, Gomez
relates in his reply brief that counsel advised him that a guilty plea
might be the wiser course if the government called the Tennessee drug
dealers as witnesses at trial. (Id.) Thus, there was nothing
defective about any of this advice.
The only arguably ineffective aspect of trial counsel's conduct in this
regard relates to the sentence Gomez would face if convicted at trial.
According to Gomez, counsel said Gomez "would be faced with 25 years" in
that event. (Gomez Aff. ¶ 7.) Such advice, if given, was incorrect,
and given Gomez's age (28 years old at the time of conviction), it would
have been a material error.
It is not clear to me that any such error, if made, had an effect on
the outcome of the proceeding. Gomez's claim of "actual innocence" (Memo
at 93), together with his assertion that he did not want to plead guilty
because "15 to 20 years . . . is a lot of time for something I had
actually not done" (Gomez Aff. ¶ 6), suggest that he would not have
pled guilty even had he known he would face life in prison if convicted.
However, because a hearing will be held with respect to Gomez's claim
that counsel would not permit him to testify, I will hear testimony on
this issue (i.e., whether Gomez was advised that he only faced 25 years
if convicted at trial) as well.
9. The Withdrawal of the Suppression Motion
Trial counsel had initially moved to suppress Gomez's post-arrest
statement, but then withdrew that motion at a pre-trial conference. In
light of Detective Ralat's trial testimony that the statement was given
voluntarily and after Gomez was advised of his Miranda rights
and signed a written waiver of rights form, a motion to suppress the
post-arrest statement would have failed. The decision not to pursue a
meritless motion does not constitute ineffective assistance of counsel.
10. The "Jury Tampering" Issue
Osorio's brother, Diego Guerrero, who speaks only Spanish,
wandered into the jury room on the first day of trial, thinking it
was the witness room.*fn7 No one on the jury spoke Spanish, and no
conversation with the jurors occurred. Gomez contends that trial counsel
did not adequately represent him in connection with this event. In fact,
counsel ably and zealously represented Gomez on this issue. He moved for
a mistrial and requested additional questioning of the jurors even after
a voir dire made clear that the incident would not prevent the jurors
from being fair and impartial. Counsel raised the issue again in
post-trial motions. Indeed, he could scarcely have been more vigorous in
11. The Pretrial Motions
Gomez contends that trial counsel was ineffective because he failed
to file a motion to dismiss the indictment on speedy trial grounds or a
motion to recuse me. A motion to dismiss on speedy trial grounds would
have been fruitless. Virtually no time expired on the speedy trial clock.
Gomez was indicted on October 23, 1995. On November 1, 1995, he appeared
in court for the first time. The time from November 1 through December 8,
1995 was excluded (see docket entries 27 and 29 for docket no.
95-CR-750 (JG)) and on December 8 the case was designated as complex,
(see id. docket entry 32). Trial began less than six
months later. Thus, counsel's decision not to file a speedy trial motion
was a good one.
A recusal motion in this case would also have failed. Gomez claims that
I harbored actual prejudice against trial counsel or Gomez himself
because trial counsel's illness delayed the trial by a week.
Specifically, on the morning jury selection was scheduled to commence,
trial counsel left a message on my case manager's answering machine,
stating that he
was sick and would not be coming to court that day. I am confident
that a reasonably objective observer would not have questioned my
impartiality simply because I required trial counsel to substantiate the
last-minute claim of illness that required a very large panel of
prospective jurors to be sent home. Trial counsel was not ineffective for
failing to file a meritless motion.
12. The Sentencing
Gomez contends that trial counsel was ineffective at the sentencing.
None of his claims has any merit. Moreover, because Gomez faced a
mandatory sentence of life imprisonment on Count Two, see
18 U.S.C. § 1203, alleged deficiencies in representation cannot have
prejudiced him in any way.
13. Ineffective Assistance of Appellate Counsel
Although the Supreme Court formulated the Strickland test
in the context of examining a claim of ineffective assistance of trial
counsel, the same test applies to claims regarding the performance of
appellate counsel. See Mayo v. Henderson, 13 F.3d 528, 533 (2d
Cir. 1994); Claudio v. Scully. 982 F.2d 798, 803 (2d Cir.
1992). Appellate counsel need not present every nonfrivolous argument
that could be made. See Mayo, 13 F.3d at 533; see also
Evitts v. Lucey, 469 U.S. 387, 394 (1985) (emphasizing that
appellate counsel "need not advance every argument, regardless of merit,
urged by the appellant"). Moreover, reviewing courts should not employ
hindsight to second-guess an appellate attorney's strategy choices.
See Mayo, 13 F.3d at 533. A habeas petitioner, however, may
establish constitutionally inadequate performance if he shows that his
appellate counsel omitted material and obvious issues while pursuing
matters that were patently and significantly weaker. Cf. Jackson v.
Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("[R]elief may be warranted
when a decision by counsel cannot be justified as a result of some kind
of plausible trial strategy.").
Gomez claims appellate counsel was ineffective because he filed an
Anders brief without consulting with him and failed to notify
Gomez of his right to file a pro se brief. Although
appellate counsel concededly did not consult with Gomez, he did notify
him of his right to file a pro se brief.
(See Ex. 1 to Gov't Opp. Br.)
Although appellate counsel should have consulted with Gomez, his
failure to do so was not a per se violation of
Gomez's Sixth Amendment rights. Grey v. Henderson. 788 F. Supp. 683,
691 (E.D.N.Y. 1991) (citing United States ex rel. Russo v.
Attorney General of Illinois. 780 F.2d 712 (7th Cir. 1986)
("although it is `highly desirable,' it is not constitutionally required
that counsel consult with the petitioner prior to the filing of his
motion to withdraw under Anders.")). In this case, Gomez has
failed to demonstrate how the lack of consultation rendered appellate
counsel's assistance ineffective, or how it had any bearing on the
outcome of the appeal. The pro se appellate briefs
filed by Gomez shed some light on the issues Gomez would have raised with
appellate counsel had they consulted: prosecutorial misconduct in the
government's rebuttal summation; improper testimony from Barona regarding
taped conversations; outrageous government conduct in creating a crime;
insufficiency of the evidence on Count Three (hostage-taking of a person
believed to be Emilio's mother); and jury tampering. I have reviewed
those claims, and I have no doubt that appellate counsel would have
correctly concluded that they lacked merit. Thus, the failure to consult
did not prejudice Gomez.
For the foregoing reasons, all of Gomez's challenges to his conviction
are rejected, with two exceptions, as to which I reserve judgment and
will conduct an evidentiary hearing on April 9, 2004 at 11:00 a.m. Those
challenges are: (1) that trial counsel refused to permit Gomez to
testify; and (2) that trial counsel misinformed Gomez of the maximum
sentence he would face if