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FELICIANO v. U.S.

United States District Court, S.D. New York


August 9, 2004.

ANTONIO FELICIANO, Petitioner
v.
U.S., Respondant.

The opinion of the court was delivered by: PETER LEISURE, District Judge

OPINION AND ORDER

Petitioner Antonio Feliciano, acting pro se, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, challenging his conviction on the ground of ineffective assistance of counsel. For the following reasons, the petition is denied.

  BACKGROUND

  On October 12, 1996, an indictment was filed against Antonio Feliciano charging him with violating the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c), conspiracy to violate RICO, 18 U.S.C. § 1962(d), committing violent crimes in aid of racketeering, 18 U.S.C. § 1959, and illegal use and carrying of a firearm, 18 U.S.C. § 924(c). The charges were in relation to Feliciano's participation in a gang known as "The Raja Crew" and its association with a Bronx gang known as "The Nasty Boys." In March of 1993 the Nasty Boys put out a contract to kill Miguel Parilla, a drug dealer to whom the gang paid rent in exchange for the use of their distribution location in the Bronx. When a member of their own gang was unsuccessful in carrying out the contract, Feliciano and former co-defendants Steven Camacho and Jaime Rodriguez, collectively known as the Raja Crew, stepped in as independent contractors to complete the job. Feliciano met to discuss the contract with Nasty Boys leader John Muyet, who directed Robert Corona to furnish Feliciano with a .380 caliber handgun. On April 13, 1993, Parilla was shot to death. Two months later, Feliciano was arrested while in possession of the .380 caliber handgun that ballistics tests identified as the murder weapon.

  After a lengthy trial, a jury convicted Feliciano of all charges on April 10, 1997, and he was sentenced to life plus 25 years in prison, to be served consecutively. Following his conviction, Feliciano retained new counsel who moved for a Judgment of Acquittal and for a New Trial pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure. Feliciano's Rule 33 motion claimed that his trial counsel was ineffective for failing to call Jaime Rodriguez and Grecia Suarez as witnesses, both of whom he claimed would offer exculpatory evidence. Both motions were denied on February 20, 1998. United States v. Muyet, 994 F. Supp. 501, 522 (S.D.N.Y. 1998). Feliciano appealed his conviction to the Second Circuit, on the grounds that there was insufficient evidence to support his guilty verdict, and that the Court's instruction to the jury on reasonable doubt impermissibly suggested that a preponderance of the evidence was the correct standard for conviction. The ineffective assistance of counsel claim raised in Feliciano's Rule 33 motion was not raised on appeal. The Second Circuit affirmed the judgment of the District Court on September 8, 2000, United States v. Muyet, 225 F.3d 647, 2000 WL 1275925 (2d Cir. 2000), and Feliciano subsequently filed this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2255.

  In his § 2255 petition, Feliciano claims that he was denied effective assistance of trial and appellate counsel in violation of the Sixth Amendment. Specifically, he argues again that his trial counsel was ineffective in failing to present as evidence the testimony of Suarez and Rodriguez. In addition, he claims that his trial counsel was ineffective in failing to introduce the medical records of his former co-defendant Rodriguez and the prison records of his former co-defendant Camacho into evidence. He further claims that his appellate counsel was ineffective for failing to raise these ineffective assistance of trial counsel claims on direct appeal. According to Feliciano, Grecia Suarez, a woman who worked in the building where the police found the body of Parilla, would have testified that she frequently saw Parilla visit that location, at times in the company of James Albizu, one of the government's cooperating witnesses against Feliciano. This, petitioner asserts, is in direct contrast to testimony given by Albizu, who stated that he lured Parilla to the building on the pretext of arranging a meeting between Parilla and a drug supplier. Albizu's testimony was relevant to Feliciano's conviction because it established that Parilla did not go to the scene of the crime of his own volition, but rather was brought there purposefully by Albizu in accordance with a pre-arranged agreement with Feliciano. Petitioner argues that Suarez's testimony would have established that there would be no need to lure Parilla to a location that he frequented of his own accord and that Albizu perjured himself. He argues, therefore, that this evidence would have been exculpatory because it would have negated the credibility of a key government witness.

  Feliciano argues that the testimony of Rodriguez was crucial to his defense because Rodriguez would have testified that when he and Feliciano were arrested, they were merely in possession of the murder weapon in order to return it to its owner Luis Quinones, a member of the Nasty Boys, and that the weapon had not been in Feliciano's possession at the time of the murder. Petitioner additionally argues that Rodriguez was privy to other information that would have further contradicted the testimony of the government's cooperating witnesses, including Albizu.

  According to petitioner, Rodriguez's medical records and Camacho's prison records also would have contradicted the testimony of several government witnesses. Although he has not produced any actual records to back up his assertions, Feliciano claims that Rodriguez's medical records would have shown that Rodriguez could not have taken part in a triple-murder as testified to by one of the government's witnesses because he was suffering from incapacitating injuries at the time. Similarly, Camacho's prison records would have shown that he could not have met with one of the government's cooperating witnesses on the date testified to by that witness because he was in prison. Petitioner argues that his trial counsel was incompetent in failing to introduce such records into evidence.

  Petitioner's final argument in his original § 2255 motion is that his appellate counsel was ineffective for failing to raise these ineffective assistance of trial counsel claims on direct appeal. In addition to his original § 2255 claims, however, Feliciano also moves for leave to amend his petition pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. In his amended petition, he raises the additional claim that his sentencing counsel was ineffective for failing to contest the Court's application of the sentencing guideline corresponding to first-degree murder in determining his sentence. Petitioner argues that the more lenient second-degree murder sentencing guideline should have been applied and that counsel's failure to challenge this misapplication constituted ineffective assistance of counsel. Petitioner concludes that a writ of habeas corpus should issue pursuant to 28 U.S.C. § 2255, and a new trial be granted. For the reasons stated below, petitioner's original and amended § 2255 petitions are denied in full. DISCUSSION

  I. Feliciano's Ineffective Assistance of Counsel Claim is not Procedurally Barred

  Petitioner's claim of ineffective assistance of counsel is not procedurally barred because it falls within the scope of the Supreme Court's rule set out in Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690 (2003), that ineffective assistance claims are more appropriately raised in a habeas corpus petition rather than on direct appeal.

  The general rule for collateral review is that a claim omitted from direct appeal may not be raised in a habeas petition without a showing of cause and prejudice. Massaro, 538 U.S. at 504 (citing United States v. Frady, 465 U.S. 152, 167-168, (1982)). The petitioner argues that this rule does not bar his ineffective assistance of counsel claim because of an exception to the cause and prejudice standard created by the Second Circuit in Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993). This exception allows ineffective assistance of counsel claims not raised on direct appeal to be brought in habeas motions provided that the petitioner was not represented by new counsel on appeal, or if the claim is based largely on matters not in the record. Id at 114. Petitioner argues that his claim falls within the scope of this exception because it arises out of matters not part of the record, and therefore could not have reasonably been brought on appeal.

  As a result of the Supreme Court's recent abrogation of Billy-Eko in Massaro, however, the Court need not address this argument. Massaro effectively replaces the Second Circuit's Billy-Eko exception with a new rule allowing all ineffective assistance of counsel claims to be raised in a § 2255 petition, regardless of whether the issue had been raised on direct appeal. Massaro, 538 U.S. at 504. The Massaro Court adopted this broad rule in order to streamline certain inefficiencies associated with the Second Circuit's previous rule. In particular, the Court noted that requiring defendants to raise ineffective assistance of counsel claims on direct appeal creates tension between trial and appellate counsel: for example, while appellate counsel often need assistance of trial counsel in order to familiarize themselves with the record, trial counsel might be reluctant to assist in this process if the purpose is to build a case against him or herself. Furthermore, the Court noted that the trial record will most likely be developed as to whether the defendant is guilty or not guilty, but most likely will not include evidence necessary for an ineffective assistance of counsel claim. Accordingly, the Massaro Court sought to relieve appellate courts from the tedious task of grappling with these problems, along with the inundation of meritless ineffective assistance claims brought on direct appeal in order to avoid a procedural bar further along in the proceedings. Id at 506. Faced with these concerns, the Court found that "[t]he better-reasoned approach is to permit ineffective assistance claims to be brought in the first instance in a timely motion in the district court under § 2255. [Thus] an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." Massaro, 538 U.S. at 504. Petitioner's sole claim on collateral review, ineffective assistance of trial and appellate counsel, is therefore not procedurally barred. II. Feliciano was not Denied Effective Assistance of Trial Counsel or Appellate Counsel

  Under the Sixth Amendment, a defendant has the right to assistance of counsel for his defense, and the right to a fair trial. The right to counsel mandated by the adversarial system that is embodied in the Sixth Amendment includes the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). Petitioner claims that he was denied the effective assistance of counsel required by the Sixth Amendment and therefore his conviction should be set aside. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established the standard for deciding ineffective assistance of counsel claims, noting that "the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id at 686. The standard delineated by the Supreme Court has two prongs. First, the defendant must demonstrate that counsel's performance was deficient, and second, the defendant must show that counsel's deficient performance prejudiced the defense.

  The first prong of the Strickland test requires that the petitioner demonstrate counsel's deficiency based on an objective standard of reasonableness in light of prevailing professional norms. Strickland, 466 U.S. at 688. Judicial scrutiny of counsel's performance must be highly deferential, and there is a strong presumption that the conduct in question falls within the ambit of reasonable trial strategy. Id at 689. The petitioner must overcome this presumption by demonstrating that counsel's conduct could not reasonably be considered as one of the "countless ways to provide effective assistance in any given case." Id at 689. The second prong requires that the petitioner show not only deficiency of counsel, but also that he was prejudiced as a result. In order to show prejudice, it is not enough that the errors had merely some effect on the outcome. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. The Strickland Court advises that when making this determination the totality of the evidence must be considered, and that a verdict only weakly supported by the record is more likely to have been permeated by counsel's errors than a verdict strongly supported by the record. Id at 695.

  A. Trial Counsel's Alleged Failure To Present Certain Evidence

  Feliciano first argues that his trial counsel's failure to call Suarez and Rodriguez as witnesses constituted ineffective assistance of counsel. Petitioner relies on Faretta v. California, 422 U.S. 818 (1975) for the proposition that the Sixth Amendment affords a defendant the right to conduct his own defense, construing this to mean that an attorney is obligated to call certain witnesses or proffer certain evidence if directed to do so by his client. Petitioner argues that an attorney's failure to comply with Faretta constitutes a violation of the Code of Professional Responsibility, and in turn ineffective assistance of counsel. However, petitioner's reliance on Faretta is misplaced. The Second Circuit has construed a defendant's Faretta right to conduct his own defense to include the right to act pro se, rather than the right to make decisions binding on counsel. Torres v. United States, 140 F.3d 392 (2d Cir. 1998) ("The Sixth Amendment guarantees that `[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.' U.S. Const. Amend. VI. There is, however, the correlative right to dispense with legal assistance and represent oneself." (citing Faretta, 422 U.S. at 818-34)). The Faretta Court makes clear that once a defendant has acquiesced to representation, counsel has the power to make decisions binding on his client:

It is true that when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to counsel the power to make binding decisions of trial strategy in many areas. This allocation can only be justified, however, by the defendant's consent, at the outset, to accept counsel as his representative.
Faretta, 422 U.S. at 820-821 (citing Henry v. Mississippi, 379 U.S. 443 (1965)). Petitioner, having consented to representation by counsel, is therefore bound by those decisions of his attorney that do not fall below the Strickland "reasonable trial strategy" threshold.

  Petitioner further asserts that, although counsel enjoys the presumption that his trial strategy is reasonable, the record reflects no reason for counsel's failure to call the two witnesses as directed by petitioner. It is well-settled, however, that counsel's decision whether or not to call a witness on behalf of the defendant is a tactical decision within the scope of reasonable trial strategy. United States v. Smith, 198 F.3d 377, 386 (2d Cir. 1999); see also United States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 1997) ("The tactical decision of whether to call specific witnesses — even ones that might offer exculpatory evidence — is ordinarily not viewed as a lapse in professional representation."). The unjustified failure of defense counsel to call a credible alibi witness, however, cannot be considered sound trial strategy. Pavel v. Hollins, 261 F.3d 210, 217-23 (2d Cir. 2001). With the exception of the proffered testimony of Rodriguez relating to Feliciano's possession of the murder weapon, the testimony of Suarez and Rodriquez, as presented by petitioner, would have at best impeached the government's cooperating witnesses testimony on collateral issues. Having vigorously and effectively attacked the credibility of these witnesses on cross-examination, little advantage would have been gained by putting Rodriguez and Suarez on the stand, even if they were to testify as Feliciano claims they would have. Accordingly, the decision by Feliciano's trial counsel not to present this testimony was within the scope of reasonable trial strategy.

  With respect to the Rodriguez proffered testimony regarding Feliciano's possession of the murder weapon, petitioner has failed to demonstrate that such testimony would be admissible or that trial counsel's tactical decision not to call Rodriguez was somehow incompetent. Just as the failure to file frivolous motions cannot constitute ineffective assistance of counsel, defense counsel has no duty to make offerings of inadmissible evidence. See United States v. Nersesian, 824 F.2d 1294, 1321-22 (2d Cir. 1987). Petitioner claims Rodriguez's testimony "would have challenged the uncontested testimony of the cooperating witnesses and cleared Feliciano of the charged crimes." (Petitioner's § 2255 Motion (October 25, 2001) at 11.) In support of these contentions, petitioner attaches to his § 2255 motion a memorandum of an interview of Jaime Rodriguez on May 8, 2001 by a private investigator, later reviewed and affirmed by Rodriguez in an affidavit included with petitioner's August 15, 2002 Reply. According to this memorandum, Rodriguez would have testified that when he and Feliciano were arrested on June 16, 1993, they were on their way to return the murder weapon to Quinones, who had given the weapon a week earlier to Feliciano. The memorandum, however, offers no basis for establishing that Rodriguez had personal knowledge of how the weapon came to be in Feliciano's possession. To the extent petitioner was more clear on this issue in his previous Rule 33 motion, it does not appear that Rodriguez's testimony would be admissible. There, petitioner argued that Rodriguez

 

. . . would have established that Mr. Feliciano told Rodriguez that Quinones had given [the murder weapon Feliciano was arrested with] to the defendant one week before Mr. Feliciano's arrest and that Quinones had asked Mr. Feliciano to sell the gun for him. Rodriguez was further prepared to testify that he advised the defendant to return the gun to Quinones, and that he could be found at the Airborne building. This was the sole reason that Mr. Feliciano was at the building on the day of his arrest.
United States v. Muyet, 994 F. Supp. 501, 523 (S.D.N.Y. 1998). As this Court pointed out in its decision denying that motion, "[t]he Government would have objected on hearsay grounds to the admission of statements made by Feliciano. Even assuming that the Court would admit the substance of the proposed testimony, it is clear that the strategic decision of [trial counsel] Ginsberg is not unprofessional error." Id. The Court maintains this position with regard to petitioner's § 2255 motion. As the government correctly notes, had petitioner wanted this evidence on the record, he should have testified to it himself in order to avoid a hearsay objection.

  Considering additionally Rodriguez's "long criminal history and association with Feliciano," it is not difficult to see why trial counsel would balk at placing such a witness before the jury. Id. Given the likely inadmissibility of the testimony in question, along with its marginal usefulness, it was therefore wholly reasonable for counsel to omit it from his defense case. Accordingly, the decision by petitioner's trial counsel not to call either Suarez or Rodriguez was part of a reasonable trial strategy and did not constitute ineffective assistance of counsel. Next, Feliciano argues that his trial counsel's failure to offer Camacho's prison records and Rodriguez's medical records into evidence sufficiently overcomes the presumption of reasonable trial strategy and therefore satisfies the first prong of the Strickland test. According to petitioner, Rodriguez's medical records would have shown that Rodriguez could not have taken part in a triple-murder as testified to by one of the government's witnesses because he was suffering from incapacitating injuries at the time. Similarly, Camacho's prison records would have shown that he could not have met with one of the government's cooperating witnesses on the date testified to by that witness because he was in prison. Petitioner argues that because the government's witnesses perjured themselves on these matters, a jury would question the credibility of the government's evidence and possibly disregard it, potentially affecting the outcome of the trial.

  "Extrinsic evidence offered for impeachment on a collateral issue is properly excluded." See, e.g., United States v. Perdy, 144 F.3d 241 2d 1998); Calderon v. Keane, 2003 U.S. Dist. LEXIS 15826 (S.D.N.Y. Sept. 8, 2003) (holding that the exclusion of extrinsic evidence by trial counsel that would impeach a witness on a collateral issue does not constitute ineffective assistance of counsel because such evidence is inadmissible). Even if the cooperating witness who testified that Rodriguez was present during a triple-murder was mistaken, this testimony did not involve Feliciano and was unrelated to the crimes with which he was charged. Similarly, even if the government's cooperating witness was mistaken about the date he first met with Camacho, this would have had little, if any, relevance to the case against Felicino. Because these alleged records could serve no other purpose than collateral impeachment and would properly have been excluded, Feliciano's trial counsel did not err in failing to offer them into evidence and his conduct did not fall below the requisite standard of reasonableness.

  Furthermore, even if the evidence were admissible, counsel has no duty to present all admissible evidence. Strickland, 466 U.S. at 690; see also Mayo v. Henderson 13 F.3d 528, 533 (2d Cir. 1994). The failure to introduce evidence relating to a collateral issue, even though it is admissible, does not overcome the aforesaid presumption relating to reasonable trial strategy. Thus, petitioner has failed to meet the deficiency of counsel standard required by the first prong of the Strickland test.

  Even though petitioner has not demonstrated any deficiency by his trial counsel, the Court will nevertheless take up the second prong of the Strickland analysis. Feliciano claims that had trial counsel presented the testimony of Suarez and Rodriguez and the medical and prison records of Rodriguez and Camacho as evidence, the defense case would have been devastating to that of the government. In contrast, the government contends that the omitted evidence would have had no effect on the outcome of the trial, and therefore its absence from the record had no prejudicial effect on the defendant as required by Strickland.

 

In evaluating the prejudice component of the Strickland test, a court must determine whether, absent counsel's deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." The outcome determination, unlike the performance determination, may be made with the benefit of hindsight.
Mayo v. Henderson, 13 F.3d at 534 (quoting Strickland, 466 U.S. at 694). The totality of the evidence must be considered when making this determination, as not all factual findings may have been affected by counsel's errors. Strickland, 466 U.S. at 696. Furthermore, a jury verdict that is strongly supported by the record is less likely to have been permeated by deficiency of counsel than one with little support. Id at 696. As the government correctly points out and this Court noted when denying petitioner's Rule 33 motion, petitioner was convicted on the overwhelming strength of the government's evidence:
Officers arrested Feliciano with the weapon used to kill Parrilla in his hand Corona identified him as the hit man and as the person to whom Corona gave the gun. Corona also identified Feliciano as one of the attackers of the Salcedos. Finally, ballistics evidence tied Feliciano's gun to both the Parilla murder and the Salcedo shootings, which Corona did not and could not have known.
Muyet, 994 F. Supp. at 523. Given that the jury verdict was so strongly supported by the record and the marginal relevance of the evidence in question, petitioner has failed to demonstrate that absent his attorney's failure to introduce this evidence at trial, the outcome would have been different. The second prong of the Strickland test requiring that prejudice be demonstrated has not been satisfied. Thus, petitioner has failed to meet either of the requirements necessary to succeed on an ineffective assistance of trial counsel claim.

  B. Appellate Counsel's Failure To Raise Ineffective Assistance Of Counsel On Direct Appeal

  Feliciano also argues that his appellate counsel's failure to raise the foregoing ineffective assistance of trial counsel claims on appeal constituted ineffective assistance of appellate counsel. The standard of reasonableness under Strickland for appellate counsel does not require that all possible claims be raised on appeal, or even that all non-frivolous claims be raised. "In attempting to demonstrate that appellate counsel's failure to raise a . . . claim constitutes deficient performance, it is not sufficient for the habeas petitioner to show merely that counsel omitted a non-frivolous argument, for counsel does not have a duty to advance every non-frivolous argument that could be made." Mayo v. Henderson, 13 F.3d at 533. In order to prevail on the first prong of the Strickland analysis, the petitioner must establish that appellate counsel omitted "significant and obvious issues while pursuing issues that were clearly and significantly weaker." Id at 533. Because petitioner's ineffective assistance claim is without merit, counsel's decision not to pursue the claim on appeal was certainly not an omission of a significant issue. Furthermore, the issues that were presented on appeal were far stronger than the ineffective assistance claim.*fn1

  Nevertheless, Feliciano further claims that under Billy-Eko, appellate counsel should err on the side of inclusion regarding ineffective assistance of counsel claims, so as to prevent the claim from being barred. Although Massaro had not yet been decided at the time of petitioner's appeal, that decision preempts any argument that the defendant was prejudiced by appellate counsel's failure to raise the issue on direct appeal. Under Massaro, counsel need not raise an ineffective assistance claim on direct appeal because such claims should ordinarily "be litigated in the first instance in the district court [in a habeas proceeding.]" 538 U.S. at 505. Given that Massaro allows all ineffective assistance claims to be raised in a § 2255 petition, there is no possibility of petitioner's claim being barred, and therefore no possibility of prejudice resulting from appellate counsel's omission of the claim on appeal. Because petitioner cannot demonstrate either deficiency of counsel or prejudice, the ineffective assistance of appellate counsel claim must fail.

  III. Feliciano's Request for Leave to Amend His Petition Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure is Granted

  The Court will now turn to Feliciano's motion for leave to amend his § 2255 petition. An amendment to a habeas corpus petition is not a successive petition, and therefore the standard for motions to amend is governed by Rule 15(a) of the Federal Rules of Civil Procedure. Littlejohn v. Artuz, 271 F.3d 360 (2d Cir. 2001). "The application of Rule 15(a) is supported by 28 U.S.C. § 2242, which states that a petition for habeas corpus `may be amended or supplemented as provided in the rules of procedure applicable to civil actions.'" Id at 363. The relevant issue, therefore, is whether petitioner has met the Rule 15(a) standard.

  In applying Rule 15(a), a district court has the discretion to grant or deny leave to amend as justice so requires, and its decision is subject to review only based on abuse of discretion. Ruffolo v. Oppenheimer, 987 F.2d 129, 131 (2d Cir. 1993). Rule 15(a) states that:

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
Fed.R.Civ.P. 15(a). "Although Rule 15 requires that leave to amend be `freely given,' district courts nonetheless retain the discretion to deny that leave in order to thwart tactics that are dilatory, unfairly prejudicial or otherwise abusive." Littlejohn, 271 F.3d at 363. As there is no evidence of such tactics in the instant case, the Court grants petitioner's motion for leave to amend his § 2255 petition pursuant to Rule 15(a) of the Federal Rules of Civil Procedure.

  IV. The Failure of Feliciano's Sentencing Counsel to Challenge the Court's Application of U.S.S.G. § 2A1.1 Did Not Constitute Ineffective Assistance of Counsel

  In his amended petition, Feliciano raises the claim that his sentencing counsel was ineffective for failing to ask the Court to apply U.S.S.G. § 2A1.2, the corresponding sentencing guideline for second-degree murder under federal law, rather than U.S.S.G. § 2A1.1, the corresponding sentencing guideline for first-degree murder. However, because petitioner was correctly sentenced under U.S.S.G. § 2A1.1, sentencing counsel did not commit any error sufficient to satisfy either the Strickland deficiency of counsel or prejudice tests, and therefore was not ineffective.

  One of the underlying crimes for which petitioner was convicted of violating the RICO statute was the murder of Parilla in violation of N.Y. Penal Law § 125.25. The New York statute denominates the crime "Murder in the Second Degree," and provides that "[a] person is guilty of murder in the second degree when . . . [w]ith intent to cause the death of another person, he causes the death of such other person or of a third person." N.Y. Penal Law § 125.25. New York State law reserves the title "Murder in the First Degree" for intentional killings with special circumstances, such as where the victim is a police officer or corrections officer. N.Y. Penal Law § 125.27.

  The commentary to the general sentencing guideline for unlawful conduct relating to racketeer influenced and corrupt organizations, U.S.S.G. § 2E1.1, expressly states that "if the underlying conduct violates state law, the offense level corresponding to the most analogous federal offense is to be used." U.S.S.G. § 2E1.1 (2002). As correctly pointed out by the government, under federal law, first-degree murder is the most analogous offense to second-degree murder under New York law. See United States v. Minicone, 960 F.2d 1099, 1110 (2d Cir. 1992) ("We hold that the district court did not err in concluding that the most analogous federal offense [to New York's second-degree murder statute] was first degree murder. . . ."); Guzman v. United States, 277 F. Supp.2d 255, 260 (S.D.N.Y. 2003) (rejecting the same argument made here by Feliciano because it "ignores the fact that the same conduct that constitutes second-degree murder under New York law also constitutes first-degree murder under federal law"). Because the New York State offense of second-degree murder is most analogous to the federal offense of first-degree murder, employing § 2A1.1, the first-degree murder guideline, to calculate petitioner's offense level was appropriate. It follows that counsel was not ineffective by failing to object to an appropriate application of the guideline. See Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) ("The failure to include a meritless argument does not fall outside the wide range of professionally competent assistance to which [a] [p]etitioner [is] entitled.") (internal quotation marks and citation omitted); United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987) ("Counsel certainly is not required to engage in the filing of futile or frivolous motions.").

  Furthermore, because Feliciano was properly sentenced pursuant to U.S.S.G. 2A1.1, there can be no prejudice under the second prong of the Strickland test. Where there has been no error, the outcome of the proceeding cannot have been affected. Petitioner has failed to demonstrate the necessary requirement under Strickland that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Strickland, 466 U.S. 668, 694, and therefore cannot succeed on an ineffective assistance of counsel claim based on the sentencing proceedings.

  CONCLUSION

  For the foregoing reasons, Antonio Feliciano's petition for a writ of Habeas Corpus pursuant to 28 U.S.C. § 2255 is denied. Furthermore, no certificate of appealability will issue. A certificate of appealability may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Supreme Court has considered this standard and concluded that "where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880 (1983)). None of Feliciano's arguments meet this standard.

  SO ORDERED.


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