The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
Elvir Rosario-Dominguez was convicted on December 19, 2000 of
one count of conspiracy to distribute and possess with intent to
distribute one kilogram or more of heroin, in violation of
21 U.S.C. § 846 and 841(b)(1)(A). He was sentenced principally to a
prison term of 210 months. The United States Court of Appeals for
the Second Circuit affirmed the judgment of conviction on
February 19, 2002. Rosario-Dominguez, who is currently in prison
serving his sentence, has petitioned this Court pro se under
28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.
For the reasons below, the petition should be denied.
A. Pretrial Procedural History
On June 24, 1999, Rosario-Dominguez and 14 other defendants
were charged in an 18count indictment with conspiracy to traffic
in narcotics. See Indictment, undated ("Indictment")
(reproduced at A-39 to A-58 of Appendix ("Appendix") (annexed to
Declaration of Edward Chang, filed January 27, 2004 (Docket #6)
("Chang Decl."))). Rosario-Dominguez was charged only in count
one, which alleged his involvement between May 1998 and January
1999 in a conspiracy to "distribute and possess with intent to
distribute 1 kilogram and more of mixtures and substances containing a detectable amount of heroin." Id.
The late Judge Allen G. Schwartz presided over
Rosario-Dominguez's trial, which took place in February 2000.
Rosario-Dominguez and a co-defendant, Jose Urena, were tried
together. Eleven other co-defendants pled guilty, one
co-defendant died prior to the trial, and the other was a
fugitive. See Brief for the United States of America in United
States v. Arroyo (2d Cir. No. 00-1755(L)), dated November 2,
2001, at 2-3 n. *.
Eddy Sanchez, also known as "Chelo," a co-conspirator who had
previously pled guilty, testified on behalf of the Government as
a cooperating witness. (Sanchez: Tr. 404-05, 446-50).*fn1
Sanchez testified that he first met Rosario-Dominguez (also known
as "Jabao") in July 1996 at a bodega on West 135th Street between
Broadway and Amsterdam Avenue. (Sanchez: Tr. 406, 439, 450-51).
Sanchez worked at the bodega and lived nearby. (Sanchez: Tr.
439-40). He observed Rosario-Dominguez and Urena operating a
retail heroin business in that vicinity. (Sanchez: Tr. 451-52).
Specifically, Sanchez saw both Rosario-Dominguez and Urena
dividing up bundles of heroin and giving them to their workers.
(Sanchez: Tr. 452). According to Sanchez, Rosario-Dominguez and
Urena employed eight or more workers to sell heroin to street
customers. (Sanchez: Tr. 451, 455-57). Sanchez testified that
people called Rosario-Dominguez "patron" or "boss" and he
collected the money from the workers. (Sanchez: Tr. 455).
Rosario-Dominguez and Urena operated two "spots" where they sold
drugs one in a park behind a school on West 136th Street and
another in apartment buildings on West 135th Street which were open seven days a week. (Sanchez: Tr. 457-59).
Sanchez testified that in December 1996 he left his job at the
bodega and became involved in wholesale distribution of cocaine
and heroin. (Sanchez: Tr. 440-41). Around March 1998, Sanchez
received a large supply of heroin but did not have enough
customers to whom to distribute it. (Sanchez: Tr. 460-61, 481).
Sanchez approached Rosario-Dominguez, who agreed to purchase a
quantity of heroin. (Sanchez: Tr. 483-85). Thereafter, Sanchez
began periodically supplying Rosario-Dominguez with quantities of
heroin ranging from 50 to 500 grams at a time. (Sanchez: Tr.
415-16, 489, 492-94, 501, 507-08, 526-29, 536-39). He recalled
that he did so on seven or eight occasions. (See Sanchez: Tr.
In November 1998, Rosario-Dominguez and Sanchez met in a
telephone calling center on 136th Street and discussed
Rosario-Dominguez's ability to "move" approximately 500 grams of
heroin. (Sanchez: Tr. 536, 567-68). Rosario-Dominguez told
Sanchez that he was running a "drug spot" on West 137th Street
between Broadway and Riverside Drive. (Sanchez: Tr. 418, 537).
Rosario-Dominguez stated that he was capable of selling between
500 and 1000 grams of heroin "at any time of the day" at the West
137th Street spot. (Sanchez: Tr. 537-38). Rosario-Dominguez
assured Sanchez that he would have no problem selling that
quantity within one or two days. (Sanchez: Tr. 539). Sanchez
thereafter supplied Rosario-Dominguez with 500 grams of heroin
but, as it turned out, Rosario-Dominguez had some difficultly
selling it quickly. (Sanchez: Tr. 539-41).
The Government also introduced tapes of phone conversations
intercepted pursuant to a court-authorized wiretap. These tapes
included several conversations between Sanchez and
Rosario-Dominguez regarding drug transactions in November 1998.
Sanchez: Tr. 562-64, 568-70, 579-82; see also Transcript of Tape No. N1003-10, dated
November 15, 1998 (annexed at A-1371 to A-1373 of Appendix);
Transcript of Tape No. N1003-11, dated November 16, 1998 (annexed
at A-1379 to A-1380 of Appendix); Transcript of Tape No.
N1003-12, dated November 16, 1998 (annexed at A-1386 to A-1387 of
Appendix); Transcript of Tape No. N1003-13, dated November 16,
1998 (annexed at A-1388 to A-1389 of Appendix).
The parties stipulated that in November 1998, several calls
were placed from Rosario-Dominguez's home telephone (located at
West 135th Street) to Sanchez's cellular telephone. (Tr. 1011).
The indictment contained allegations that Rosario-Dominguez
discussed narcotics transactions with Sanchez over the telephone
on December 8 and 10, 1998. See Indictment ¶ 5(tt), (zz). At
trial, the Government did not introduce tapes of conversations on
these dates. Through cross-examination, Rosario-Dominguez's
defense counsel elicited testimony that these conversations in
fact might have involved another individual also known as
"Jabao." (Galbadis: Tr. 338-48; Sanchez: Tr. 814-20).
Rosario-Dominguez was arrested on April 27, 1999, after Sanchez
identified him to agents from the Drug Enforcement
Administration. (Galbadis: Tr. 262-63). Under questioning,
Rosario-Dominguez told Agent Steven Galbadis that he had never
sold drugs, that he did not know "Chelo" (Sanchez), that he had
never spoken on the phone with a person named Chelo, and that he
had never entered any heroin transactions with Chelo. (Galbadis:
Between his arrest and trial, Rosario-Dominguez encountered
Sanchez in the holding cells of the federal courthouse on two
occasions. During the first encounter, on September 24, 1999,
Rosario-Dominguez said to Sanchez, "If I can't catch you, I'm
going to catch your children." (Sanchez: Tr. 664-66). The second time, in December
1999, Rosario-Dominguez said to Sanchez, "I'm going to stick it
in you; not only that, I'm going to grab you so that someone else
can stick it in you and then I'm going to do it after them."
(Sanchez: Tr. 665-67).
Rosario-Dominguez did not present any witnesses or evidence.
C. The Jury Verdict and Sentencing
Prior to the jury charge, a discussion was held on the record
about whether it was necessary to submit a special verdict form
to the jury to allow the jury to calculate the quantity of drugs
involved in the offenses. (Tr. 1148-51). Rosario-Dominguez's
counsel waived any requirement that the jury make this
determination out of concern that it "could extend deliberations
and confuse [the jury]." (Tr. 1151).
On February 22, 2000, the jury returned a verdict finding
Rosario-Dominguez guilty of one count of conspiracy to possess
with intent to distribute and to distribute controlled
substances. (Tr. 1367-68). Represented by new counsel, on
December 19, 2000, Rosario-Dominguez was sentenced to 210 months
in prison followed by a term of five years' supervised release.
Sentencing Transcript, dated December 19, 2000 ("Sentencing Tr.")
(annexed as part of Ex. A to Chang Decl.), at 23-24. In support
of this sentence, the trial court found that the record
established that Rosario-Dominguez was a manager or a supervisor
in a conspiracy in which he distributed at least three kilograms
of heroin. Id. at 22-23.
D. Rosario-Dominguez's Direct Appeal
Rosario-Dominguez appealed his conviction and sentence to the
Court of Appeals for the Second Circuit. He first argued that
pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), which
was decided after Rosario-Dominguez's trial but before
sentencing, the trial court erred in failing to submit the issue of drug quantity to the jury. Brief
and Appendix for Defendants-Appellants, dated September 13, 2001
("Pet. App. Brief") (reproduced as Ex. A to Chang Decl.), at
12-14. Rosario-Dominguez also argued that the court failed to
obtain his knowing and voluntary consent to not submitting the
issue to the jury, that the court failed to make a specific
finding as to drug quantity beyond a reasonable doubt, and that
the evidence was insufficient to support the court's finding as
to drug quantity. Id. at 14-15, 18-26. In addition,
Rosario-Dominguez argued that his counsel was ineffective for
waiving the requirement that the jury determine drug quantity
without explaining the ramifications of such a waiver to his
client. Id. at 15-18. Rosario-Dominguez's final argument on
appeal was that the court erred in enhancing his sentence based
on his role in the offense. Id. at 26-27.
The Second Circuit issued an unpublished summary order
affirming Rosario-Dominguez's conviction and sentence. United
States v. Arroyo, 31 Fed. Appx. 9, 2002 WL 243634 (2d Cir. Feb.
19, 2002). The court held that any Apprendi-related error was
harmless because Rosario-Dominguez was not sentenced to a term of
imprisonment over the statutory maximum, which is 240 months
under 21 U.S.C. § 841(b)(1)(C). Id. at 12. The court also found
no grounds to support Rosario-Dominguez's contention that his
trial counsel was ineffective and held that the trial court did
not err in applying an enhancement for Rosario-Dominguez's role
in the offense. Id. at 13.
The Supreme Court denied certiorari on June 10, 2002. Rosario
v. United States, 536 U.S. 911 (2002).
E. The Instant Habeas Petition
The instant habeas petition is dated June 8, 2003 and was
mailed in an envelope postmarked June 9, 2003. See Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody, filed June 25, 2003 (Docket #1). Under the "prison
mailbox" rule, a petition for writ of habeas corpus is deemed
filed on the day a pro se prisoner gives it to prison
officials for mailing to the court clerk. Noble v. Kelly,
246 F.3d 93, 97-98 (2d Cir.), cert. denied, 534 U.S. 886 (2001).
Based on this rule, the motion meets the one-year limitations
period contained in 28 U.S.C. § 2255. See, e.g.,
Moreno-Castillo v. United States, 2003 WL 23109747, at *1 n. 1
(S.D.N.Y. Dec. 31, 2003) (§ 2255 motion deemed filed on the date
the envelope was postmarked).
Rosario-Dominguez has submitted a memorandum of law asserting
ten grounds for relief. See Memorandum of Law in Support of
Petitioner's Section 2255 Motion, filed July 31, 2003 (Docket
#228 in 99 Cr. 73) ("Pet. Mem."), at 1. The asserted grounds for
relief are as follows:
(1) The government violated [Fed.R. Evid.] 404(b)
and misled the Court; (2) Counsel failed to raise a
viable defense theory; (3) Counsel was ineffective
when he failed to challenge the validity of the
indictment; (4) Counsel failed to effectively
challenge the District Court's attributable drug
quantity calculation; (5) Counsel failed to
effectively challenge Eddy Sanchez['s] veracity; (6)
Counsel failed to raise a viable ground for
departure; (7) Counsel failed to disclose a plea
offer; (8) The District Court erred in its
enhancement, under [United States Sentencing
Guidelines ("U.S.S.G.")] § 3B1.1; (9) Counsel refused
to allow Petitioner to testify; and (10) Counsel
failed to investigate and present the testimony of a
readily available witness.
In support of his petition, Rosario-Dominguez submitted an
affidavit of Pablo Perron, the owner of a bodega on 135th Street
between Broadway and Amsterdam Avenue, stating in essence that
Sanchez did not work at his bodega. See Affidavit [in] Support
of Urena and Rosario's Assertion that Sanchez Has Never Worked in
My Bodega Located at 135th Street Between Broadway and Amsterdam,
dated June 23, 2003 ("Perron Aff.") (annexed as Attach. A to Pet. Mem.), ¶ 4. Rosario-Dominguez has also submitted his own
affidavit stating that Perron had been available to testify at
his trial, that Perron so told trial counsel, that trial counsel
refused to accede to Rosario-Dominguez's own request to testify,
and that trial counsel failed to inform him of a plea offer.
Affidavit of Elvir Rosario-Dominguez, dated July 25, 2003 ("Pet.
Aff.") (annexed to Pet. Mem.), ¶¶ 4-9.
II. APPLICABLE LEGAL PRINCIPLES
A. Law Governing Petitions Under 28 U.S.C. § 2255
28 U.S.C. § 2255 provides:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to
be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of
the United States, or that the court was without
jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack,
may move the court which imposed the sentence to
vacate, set aside or correct the sentence.
Relief under § 2255 is available "only for a constitutional
error, a lack of jurisdiction in the sentencing court, or an
error of law or fact that constitutes a fundamental defect ...