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FELICIANO v. U.S.

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 ...


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