The opinion of the court was delivered by: JOHN GLEESON, District Judge
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
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 ...