United States District Court, S.D. New York
August 16, 2004.
ELVIR ROSARIO-DOMINGUEZ, Petitioner,
UNITED STATES OF AMERICA, Respondent.
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.
B. Evidence at Trial
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 which
inherently results in [a] complete miscarriage of justice."
Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (per
curiam) (internal quotation marks and citation omitted).
In considering a § 2255 petition, "[u]nless the motion and the
files and records of the case conclusively show that the prisoner
is entitled to no relief, the court shall . . . grant a prompt
hearing thereon, determine the issues and make findings of fact
and conclusions of law with respect thereto." 28 U.S.C. § 2255.
However, even when a hearing may be warranted, "`the statute
itself recognizes that there are times when allegations of facts
outside the record can be fully investigated without requiring
the personal presence of the prisoner.'" Chang v. United States, 250 F.3d 79, 85 (2d Cir. 2001) (quoting Machibroda v.
United States, 368 U.S. 487, 495 (1962)); see 28 U.S.C. § 2255
("A court may entertain and determine such motion without
requiring the production of the prisoner at the hearing.").
Depending on the allegations in the petition, a "court may use
methods under [§] 2255 to expand the record without conducting a
full-blown testimonial hearing." Chang, 250 F.3d at 86 (citing
Blackledge v. Allison, 431 U.S. 63, 81-82 (1977)). Potential
methods available to a court to supplement the record include
"`letters, documentary evidence, and, in an appropriate case,
even affidavits.'" Id. (quoting Raines v. United States,
423 F.2d 526, 529-30 (4th Cir. 1970)).
It is well established that § 2255 "may not be employed to
relitigate questions which were raised and considered on direct
appeal." Barton v. United States, 791 F.2d 265, 267 (2d Cir.
1986) (per curiam); accord United States v. Sanin,
252 F.3d 79, 83 (2d Cir.) (per curiam) (citing cases), cert. denied,
534 U.S. 1008 (2001). "`Reconsideration is permitted only where
there has been an intervening change in the law and the new law
would have exonerated a defendant had it been in force before the
conviction was affirmed on direct appeal.'" Sanin, 252 F.3d at
83 (quoting Chin v. United States, 622 F.2d 1090, 1092 (2d Cir.
1980), cert. denied, 450 U.S. 923 (1981)); see also
United States v. Frady, 456 U.S. 152, 164-65 (1982) ("Once the
defendant's chance to appeal has been waived or exhausted . . .
we are entitled to presume he stands fairly and finally
convicted, especially when . . . he already has had a fair
opportunity to present his federal claims to a federal
forum. . . . [A] final judgment commands respect.").
B. Law Governing Procedural Default
If a habeas petitioner fails to assert a claim on direct
review, the claim will be considered procedurally defaulted and
thus ineligible for review in a subsequent proceeding under § 2255, unless the petitioner "can first demonstrate either
`cause' [for the default] and actual `prejudice' or that he is
`actually innocent.'" Bousley v. United States, 523 U.S. 614,
622 (1998) (citations omitted); accord Frady, 456 U.S. at
167-68; DeJesus v. United States, 161 F.3d 99, 102 (2d Cir.
1998). To satisfy the "cause" requirement, the petitioner must
show circumstances "`external to the petitioner, something that
cannot be fairly attributed to him.'" Marone v. United States,
10 F.3d 65, 67 (2d Cir. 1993) (per curiam) (quoting Coleman v.
Thompson, 501 U.S. 722, 753 (1991) (emphasis in original)).
Attorney error or ignorance does not amount to "cause" for a
procedural default unless the error rises to the level of
constitutional ineffectiveness. Coleman, 501 U.S. at 752-55;
accord United States v. Pipitone, 67 F.3d 34, 38-39 (2d Cir.
1995) (defense counsel's ignorance of existing legal authority
does not amount to "cause" for failure to appeal a sentence). The
resulting "prejudice" must create an "actual and substantial
disadvantage, infecting [the petitioner's] entire trial with
error of constitutional dimensions." Frady, 456 U.S. at 170
(emphasis in original). Finally, "[t]o establish actual
innocence, [the] petitioner must demonstrate that, in light of
all the evidence, it is more likely than not that no reasonable
juror would have convicted him." Bousley, 523 U.S. at 623
(internal quotation marks and citations omitted).
An exception to the procedural default rule exists for claims
of ineffective assistance of counsel. In Massaro v. United
States, 538 U.S. 500, 504 (2003), the Supreme Court held that
"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."
C. Law Governing Ineffective Assistance of Counsel Claims
"In order to prove ineffective assistance, [a petitioner] must
show (1) `that counsel's representation fell below an objective standard of
reasonableness'; and (2) `that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.'" Pham v. United States,
317 F.3d 178, 182 (2d Cir. 2003) (quoting Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984)); see Massaro, 538
U.S. at 505 ("[A] defendant claiming ineffective counsel must
show that counsel's actions were not supported by a reasonable
strategy and that the error was prejudicial.").
In evaluating the first prong whether counsel's performance
fell below an objective standard of reasonableness "`[j]udicial
scrutiny . . . must be highly deferential'" and the petitioner
must overcome the "`presumption that, under the circumstances,
the challenged action might be considered sound trial strategy.'"
Bell v. Cone, 535 U.S. 685, 698 (2002) (quoting Strickland,
466 U.S. at 689); see Dunham v. Travis, 313 F.3d 724, 730 (2d
Cir. 2002) (according counsel a presumption of competence).
Concerning the second prong whether there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different the Second
Circuit generally "requires some objective evidence other than
defendant's assertions to establish prejudice." Pham, 317 F.3d
at 182 (citing United States v. Gordon, 156 F.3d 376, 380-81
(2d Cir. 1998) (per curiam)).
A. Rosario-Dominguez's Claims of Trial and Sentencing Errors
Rosario-Dominguez has two claims that are not based on
ineffective assistance of counsel. Specifically, he asserts that
(1) introduction of evidence from Sanchez regarding narcotics
sales in 1996 prior to the date of the charged conspiracy
violated Fed.R.Evid. 404(b), Pet. Mem. at 2-6; see also
Petitioner's Reply to Respondent's Opposition to the Petitioner's Section 2255 Motion and Memorandum of Law in Support
Thereof, filed April 7, 2004 (Docket #9) ("Pet. Reply"), at 8-10;
and (2) the court erred in enhancing his sentence under U.S.S.G.
§ 3B1.1(b) for serving as a manager of the drug conspiracy, Pet.
Mem. at 33-36; see also Pet. Reply at 23-25.*fn2
1. The Rule 404(b) Claim
The content of Rosario-Dominguez's Rule 404(b) claim is
somewhat confusing but appears to consist of two different
strands. The first is that the Rule 404(b) evidence that is,
evidence regarding the 1996 narcotics sales should not have
been permitted at all. This strand is easily disposed of,
however, as it was not raised on appeal and is thus procedurally
defaulted. Rosario-Dominguez offers no "cause" for the failure to
raise it nor does he offer any evidence of "actual innocence."
The second strand of his argument is that the Rule 404(b)
evidence itself was suspect because it relied on testimony of
Sanchez, who allegedly lied when he asserted that he had worked
at the bodega on 135th Street. Specifically, Rosario-Dominguez
points to the recent affidavit submitted by Perron, in which
Perron states that he owned a bodega located on 135th Street
between Broadway and Amsterdam Avenue and that Sanchez did not
work there in 1996 or at any other time, Perron Aff. ¶ 4. Pet. Mem. at 3-4; Pet.
Reply at 8. Rosario-Dominguez offers this fact to contradict
Sanchez's testimony at trial that he came to know of
Rosario-Dominguez and his involvement in drug activity while
working at the bodega (see Sanchez: Tr. 439-40, 450-52,
455-57). Perron states that he informed "at least one of the
defendant's lawyers" that he was available to testify at trial.
Perron Aff. ¶ 5. He also states that he is "currently available"
to be examined under oath regarding his affidavit, although he
failed to fill in a blank line intended for his address. Id. ¶
6. In addition, Rosario-Dominguez has submitted his own affidavit
stating that "Perron contacted counsels notifying them of his
availability to testify" and that "counsel advised me he was
going to contact Mr. Perron, but he never did." Pet. Aff. ¶¶ 5-6.
The first question that arises with respect to this claim is
whether the Perron affidavit is sufficient to overcome the
procedural default that arose when the Rule 404(b) claim was not
raised on appeal. While case law permits the offering of "new
evidence" to justify what would otherwise constitute a procedural
default, the Second Circuit has made clear that "`new evidence'
in § 2255 proceedings . . . is evidence that is discovered after
the original hearing, and which could not, with due diligence of
counsel, have been discovered sooner." Giacalone v. United
States, 739 F.2d 40, 43 (2d Cir. 1984) (collecting cases);
accord Moreno-Ortiz v. United States, 983 F.2d 15, 16 (2d
Cir. 1993); Pri-har v. United States, 83 F. Supp.2d 393, 399
(S.D.N.Y. 2000), aff'd, 10 Fed. Appx. 4, 2001 WL 468121 (2d
Cir. May 1, 2001), cert. denied, 534 U.S. 935 (2001). In
addition, the evidence must be "`material, not cumulative, and
. . . probably lead to an acquittal.'" Moreno-Ortiz, 983 F.2d
at 16-17 (quoting United States v. Alessi, 638 F.2d 466, 479
(2d Cir. 1980)); see United States v. Spencer, 4 F.3d 115,
119 (2d Cir. 1993). New evidence "which merely discredits a
government witness and does not directly contradict the government's case ordinarily does not justify the grant of a new
trial." United States v. Sposato, 446 F.2d 779, 781-82 (2d Cir.
1971) (collecting cases); accord Romero v. United States,
28 F.3d 267, 269 (2d Cir. 1994) (per curiam); Harris v. United
States, 999 F. Supp. 578, 581 (S.D.N.Y. 1998).
Taking the statements made by Perron in his affidavit as true,
nothing in his affidavit indicates that Rosario-Dominguez is
entitled to habeas review of his Rule 404(b) claim.
Rosario-Dominguez's contention that the facts Perron offers are
"new," see Pet. Reply at 4-5, is belied by his own statement
that Perron was "readily available and [was] identified [to
defense counsel] prior to trial," Pet. Mem. at 39; see also
Pet. Aff. ¶ 5 (affirming that Perron informed counsel that he was
available to testify). More fundamentally, it is clear from the
face of the affidavit that the one new fact contained therein
specifically that Sanchez did not work at the bodega in 1996,
Perron Aff. ¶ 4 is insufficient to support a conclusion that
Rosario-Dominguez "probably" would be acquitted, Moreno-Ortiz,
983 F.2d at 16-17. The fact that Sanchez worked at the bodega was
entirely peripheral to the evidence at trial and even peripheral
to the Rule 404(b) evidence. Whether or not Sanchez was actually
employed by the bodega could not reasonably be seen to have
affected Sanchez's testimony that he met Rosario-Dominguez in
1996, had numerous contacts and conversations with him, and
observed him participating in numerous drug-related transactions
testimony that was partially corroborated by telephone records
indicating that Rosario-Dominguez had made telephone calls from
his home to Sanchez's cellular phone (see Tr. 1011). Rather,
Perron's affidavit constitutes a paradigmatic instance of
testimony that "merely discredits a government witness and does
not directly contradict the government's case," Sposato, 446
F.2d at 781. See, e.g., Romero, 28 F.3d at 269 (upholding
trial court's determination that proof was sufficient to sustain
conviction even assuming government witnesses could be thoroughly
impeached by the new information); United States v. Gilbert,
668 F.2d 94, 96 (2d Cir. 1981) (evidence further impeaching
credibility of a government witness whose character had already
been shown to be questionable insufficient to affect jury's
judgment), cert. denied, 456 U.S. 946 (1982).
Moreover, the trial record in this case demonstrates that
Sanchez's credibility was vigorously attacked by defense counsel
throughout the trial on far more significant grounds. (See,
e.g., Tr. 1248-57). Sanchez testified that he had entered into
a plea agreement with the Government in exchange for his
testimony (e.g., Sanchez: Tr. 404-05, 446-50); he also
testified as to his extensive criminal record and involvement in
international drug trafficking (e.g., Sanchez: Tr. 427-47).
Even Sanchez's testimony regarding drug transactions in 1996 was
admitted only for the limited purpose of showing the background
of the conspiracy and the relationship between the various
participants under Fed.R.Evid. 404(b). (See Tr. 416-18,
452-54 (trial court's limiting instructions)).
Thus, Rosario-Dominguez has not shown either "cause" for his
failure to present his Rule 404(b) claim in his direct appeal or
"prejudice." Nor has Rosario-Dominguez made any showing of actual
innocence to excuse the procedural default. Thus, his first
ground for habeas relief was procedurally defaulted and habeas
review is unavailable. Rosario-Dominguez's separate contention
that trial counsel erred in failing to call Perron as a witness
is discussed in section III.B.8 below.
2. The Section 3B1.1 Claim
Rosario-Dominguez argues that Perron's affidavit shows that the
trial court improperly enhanced his sentence for his role in the offense since that
enhancement relied on Sanchez's testimony. See Pet. Mem. at
33-36; Pet. Reply at 34. The sentencing enhancement, however, was
raised on direct appeal and decided on the merits in favor of the
Government. See Arroyo, 31 Fed. Appx. at 12-13. Thus, it may
be reconsidered only if there has been "an intervening change in
the law and the new law would have exonerated a defendant had it
been in force before the conviction was affirmed on direct
appeal," Sanin, 252 F.3d at 83. Rosario-Dominguez concedes that
he has not "identif[ied] any intervening change in the law" that
would allow this claim to be reviewed by this Court. Pet. Reply
Instead, he offers only the Perron affidavit to show that his
sentence was improperly calculated. Assuming arguendo that "new
evidence" could permissibly be considered to relitigate a
sentence that had already been challenged on direct appeal, see
Giacalone, 739 F.2d at 43 (requiring new evidence before
allowing relitigation on habeas of a claim that was previously
decided on direct appeal); but see Herrera v. Collins,
506 U.S. 390, 400-04 (1993) (newly discovered evidence of actual
innocence not basis for habeas relief for state prisoner absent independent constitutional violation), the evidence from Perron
was not "new" in that it was available to trial counsel, by
Rosario-Dominguez's own admission, see Pet. Mem. at 39; Pet.
Aff. ¶ 5. Second, and more significantly, the sentencing court's
conclusion that Rosario-Dominguez was a "manager or supervisor
. . . in an offense in which there were more than five
participants," Sentencing Tr. at 23, did not depend on whether or
not Sanchez was an employee at the bodega in 1996.
B. Rosario-Dominguez's Claims of Ineffective Assistance of
As outlined above, Rosario-Dominguez's petition raises eight
separate claims of ineffective assistance of counsel. He asserts
that he is entitled to relief because his trial counsel John
Burke, Esq. failed to present a viable defense, failed to
challenge the validity of the indictment, failed to effectively
challenge Sanchez's veracity, failed to raise a viable ground for
departure, refused to allow Rosario-Dominguez to testify, failed
to pursue plea negotiations and to disclose a plea offer, and
failed to investigate and present an available defense witness.
See Pet. Mem. at 1. He also asserts that his counsel at
sentencing Alan Seidler, Esq. failed to effectively challenge
the court's calculation of drug quantity. See id.
None of these claims were raised on direct appeal. See Pet.
App. Brief at 15-18 (arguing on appeal only that trial counsel
was ineffective in waiving a jury finding as to drug quantity);
see also Pet. Mem. at 25 (arguing that the instant claim
regarding counsel's failure to challenge the court's calculation
of drug quantity differs from the ineffective assistance claim
raised on direct appeal). Under Massaro, all of
Rosario-Dominguez's ineffective assistance of counsel claims are appropriately raised for the first time in this
petition. See 538 U.S. at 504. Each will be addressed in turn.
1. Failure to Present a Viable Defense
Rosario-Dominguez argues that Burke's performance was deficient
because he failed to present two "viable" defense theories: (1)
that there was actually no conspiracy, but rather a mere
buyer-seller relationship between him and Sanchez "at best," Pet.
Mem. at 6-11; see also Pet. Reply at 10-12; and (2) that
there were multiple independent conspiracies rather than a single
overall conspiracy as was charged in the indictment, Pet. Mem. at
11-14; see also Pet. Reply at 12-13. Rosario-Dominguez
asserts that had defense counsel pursued these lines of defense,
the court would have instructed the jury with respect to these
issues and the "jury may not have convicted" him. Pet. Mem. at
There are at least two defects in this argument. First, as
already described, there was more than sufficient evidence in
this case for a jury to conclude that Rosario-Dominguez entered
into an agreement with Sanchez to makes sales of heroin. It thus
would have been useless for defense counsel to have argued to the
jury that regardless of whether this evidence was true there
was no agreement at all with Sanchez or that there was some other
independent conspiracy that did not involve Rosario-Dominguez.
The second defect in this argument is that the mere existence of
a potential alternative defense theory is not enough to establish
ineffective assistance based on counsel's failure to present that
theory. See, e.g., United States v. Diaz, 176 F.3d 52, 113
(2d Cir.) (counsel's failure to present diminished capacity
defense did not constitute ineffective assistance), cert.
denied, 528 U.S. 875 (1999). Here, Burke chose to argue that
Rosario-Dominguez did not actually commit the crimes charged.
(See generally Tr. 1246-69). In arguing that the evidence against Rosario-Dominguez was
insufficient, Burke focused on attacking the credibility of the
Government's principal witness. (See Tr. 1248-57). Burke's
strategy was supported by some evidence that Rosario-Dominguez
may have been misidentified as the speaker in several intercepted
conversations (see Galbadis: Tr. 338-48; Sanchez: Tr. 814-20)
and the argument that, as a cooperating witness, Sanchez lacked
credibility (see Tr. 1249-54). In these circumstances, defense
counsel's decision to pursue a legal innocence defense, rather
than the less-compelling alternatives urged by Rosario-Dominguez,
is purely a matter of sound trial strategy, see Bell, 535
U.S. at 698, and cannot support a claim of constitutional
2. Failure to Challenge the Validity of the Indictment
Rosario-Dominguez argues that Burke was ineffective in failing
to move to quash the indictment against him. Pet. Mem. at 14-18;
see also Pet. Reply at 13-16. Rosario-Dominguez's
presentation of this claim is difficult to follow but appears to
be based on the fact that the only overt acts in furtherance of
the conspiracy involving Rosario-Dominguez charged in the
indictment were telephone conversations between him and Sanchez
on December 8 and 10, 1998. See Pet. Mem. at 16-18; see
also Indictment ¶ 5(tt), (zz). In support of this claim,
Rosario-Dominguez has submitted the criminal complaint in this
case. See Complaint, dated April 28, 1999 (reproduced as
Attach. B to Pet. Mem.). In the complaint, Agent Galbadis details
the contents of calls allegedly participated in by
Rosario-Dominguez on December 8, 9, and 10, 1998. See id. ¶
8. As noted above, during trial, defense counsel elicited
testimony that these conversations actually may have involved
another individual also known as "Jabao." (Galbadis: Tr. 338-48;
Sanchez: Tr. 814-20). Based on the claimed misidentification,
Rosario-Dominguez argues that he was arrested without probable cause, see Pet.
Mem. at 15-16, and, assuming that Agent Galbadis testified as to
these calls before the Grand Jury, that he was indicted based on
knowingly false testimony, see id. at 16-18; Pet. Reply at
There are at least two defects in this claim. First,
Rosario-Dominguez has provided no grounds for believing that
counsel acted ineffectively because there is no basis for
concluding that reasonable counsel would have made a motion to
dismiss the indictment. An indictment cannot be challenged on the
ground that it is not supported by adequate or competent
evidence. See, e.g., Costello v. United States,
350 U.S. 359, 363 (1956); United States v. Alfonso, 143 F.3d 772, 777
(2d Cir. 1998). The dismissal of an indictment is warranted only
in exceptional circumstances. See, e.g., United States v.
Brown, 602 F.2d 1073, 1077 (2d Cir.) ("We have approved [the]
extreme sanction [of dismissal of the indictment] only when the
pattern of [prosecutorial] misconduct is widespread or
continuous."), cert. denied, 444 U.S. 952 (1979). Generally,
extreme acts of prosecutorial misconduct must be demonstrated
before an indictment will be dismissed. See, e.g., United
States v. Williams, 504 U.S. 36, 46-47 (1992) (misconduct before
the grand jury must amount to a violation of one of those "few,
clear rules which were carefully drafted and approved by [the
Supreme Court] and by Congress to ensure the integrity of the
grand jury's functions" (internal quotation marks and citation
omitted)); United States v. Hogan, 712 F.2d 757, 761-62 (2d
Cir. 1983) (indictment dismissed where the prosecutor's "flagrant
and unconscionable" acts included presentation to the grand jury
of false testimony, extensive reliance on misleading and
speculative hearsay, and unsupported allegations of other
criminal conduct); United States v. Vetere, 663 F. Supp. 381,
386-87 (S.D.N.Y. 1987) (indictment dismissed where prosecutor
made extensive use of false and misleading evidence before the grand jury regarding defendant's alleged criminal
background); cf. United States v. Feola, 651 F. Supp. 1068,
1131 (S.D.N.Y. 1987) (noting that Hogan should be limited to
its "highly unusual facts" and should not be applied to cases
where the prosecutor's alleged misconduct fell far short of the
"flagrant and unconscionable" misconduct complained of in
Hogan), aff'd, 875 F.2d 857 (2d Cir.), cert. denied,
493 U.S. 834 (1989). Here, assuming there was a misidentification of
the speaker in the recorded telephone calls, counsel had no basis
for arguing that this error would support the extraordinary
remedy of dismissal of the indictment.
Second, the allegations regarding the telephone calls were not
even necessary to the indictment because "[i]n order to establish
a violation of 21 U.S.C. § 846 [the federal controlled substances
conspiracy statute], the Government need not prove the commission
of any overt acts in furtherance of the conspiracy." United
States v. Shabani, 513 U.S. 10, 15 (1994); accord United
States v. Knuckles, 581 F.2d 305, 311 (2d Cir.) (no variance
between indictment and trial proof where indictment charged
heroin-related overt act and evidence at trial established
cocaine-related overt act because no overt act requirement in §
846), cert. denied, 439 U.S. 986 (1978). Thus, even if there
were some defect in the charging of the overt acts themselves,
that defect would have had no bearing on the sufficiency of the
3. Failure to Effectively Challenge the Court's Calculation of
The next claim of ineffective assistance is based on Seidler's
failure to effectively challenge the court's calculation of drug
quantity. Pet. Mem. at 18-26; see also Pet. Reply at 16-17.
Rosario-Dominguez argues that the evidence as to the quantity of
drugs attributable to him for sentencing purposes did not satisfy
the specificity standard articulated in United States v.
Shonubi, 103 F.3d 1085, 1089-90 (2d Cir. 1997) (calculation of
drug quantity for sentencing purposes must be supported by "specific evidence" such as drug
records, admissions, or live testimony), and that, as a result,
an evidentiary hearing was necessary under United States v.
Fatico, 579 F.2d 707 (2d Cir. 1978), cert. denied,
444 U.S. 1073 (1980). Pet. Mem. at 18-26. He claims that Seidler was
ineffective for failing to raise these issues prior to sentencing
and on appeal. Id. at 26.
Rosario-Dominguez cannot establish ineffective assistance of
counsel on this point because the record demonstrates that at the
sentencing hearing Seidler did argue albeit unsuccessfully
that the evidence did not support any attributable drug quantity
determination above 865 grams. See Sentencing Tr. at 7, 11-12,
19-20. Counsel's performance cannot be found deficient for
failing to make arguments that he did in fact make. Moreover, on
direct appeal, Seidler raised the underlying substantive claims
that the district court applied the wrong standard of proof and
erred in its calculation. Pet. App. Brief at 18-26. Indeed, the
Second Circuit specifically noted that "the evidence presented as
to drug quantity was sufficient to support the court's findings
and sentences." Arroyo, 31 Fed. Appx. at 12.
4. Failure to Effectively Challenge Sanchez's Veracity
Listing numerous instances where Sanchez's testimony was
internally inconsistent or differed from information he had
provided to the Government in other instances, Rosario-Dominguez
asserts that Burke should have done a better job of
cross-examining Sanchez. Pet. Mem. at 26-30; see also Pet.
Reply at 17-18. He also maintains that the Government played some
role in this "fundamental breakdown of the trial process" through
its knowing use of Sanchez's "perjur[ed]" testimony. Pet. Mem. at
26-27, 29-30. Had Burke brought out all of Sanchez's "lies"
during cross-examination, Rosario-Dominguez contends that "there
is a reasonable probability that the scales may have tipped in favor
of an acquittal." Id. at 26.
The Second Circuit has repeatedly held that "[d]ecisions
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), cert.
denied, 484 U.S. 1061 (1988); accord Eze v. Senkowski,
321 F.3d 110, 127 (2d Cir. 2003) ("`The conduct of examination and
cross-examination is entrusted to the judgment of the
lawyer. . . .'" (quoting United States v. Luciano,
158 F.3d 655, 660 (2d Cir. 1998))); see also United States v. Eisen,
974 F.2d 246, 265 (2d Cir. 1992) (no ineffective assistance based
on failure to adequately impeach government witnesses where
defense counsel vigorously cross-examined witnesses and could
have reasonably concluded that further questioning on relatively
unimportant matters would confuse or fatigue the jury), cert.
denied, 507 U.S. 1029 (1993).
Burke's cross-examination of Sanchez followed a lengthy
cross-examination conducted by Urena's defense counsel. (See
Sanchez: Tr. 682-779). Burke himself elicited testimony
suggesting that (1) Sanchez had identified the wrong "Jabao"
(Sanchez: Tr. 801-05, 814-21, 866); (2) Sanchez tended to blame
his involvement with drugs and arrests for drug-related crimes on
"bad luck" rather than taking responsibility for his actions
(Sanchez: Tr. 807-11); (3) Sanchez had previously used fake
identification documents and lied to law enforcement (Sanchez:
Tr. 812-14, 821-24, 844-45); (4) Sanchez originally told Agent
Galbadis that he had sold heroin to Rosario-Dominguez four times
but testified that he had sold to him seven or eight times
(Sanchez: Tr. 824-25); (5) Sanchez had previously threatened
people with violence and may have threatened Rosario-Dominguez
(Sanchez: Tr. 826-28, 831-35); and (6) Sanchez was motivated to
cooperate with the Government and implicate others by a desire to
avoid prison time and immigration charges (Sanchez: Tr. 836-45).
In comparison with the credibility and veracity issues raised
during cross-examination, the "lies" Rosario-Dominguez complains
were ignored are relatively insignificant. See Pet. Mem. at
28-29 (pointing out that Sanchez was inconsistent with respect
to, inter alia, certain quantities involved in particular
drug transactions, the location of the bodega, and what position
he held when he apparently worked for Aero Peru). In light of
Burke's extensive attempts to impeach Sanchez, he reasonably
could have chosen as a matter of strategy to focus on major
impeachment topics rather than isolated and immaterial
inconsistencies in Sanchez's testimony. Certainly, the jury was
more likely to be affected by testimony indicating that a witness
had a motive to lie and a history of lying than by testimony
indicating that the witness gave inconsistent details in certain
instances. See Eisen, 974 F.2d at 265 (further questioning on
relatively unimportant matters could confuse or fatigue the
5. Failure to Raise a Viable Ground for Departure
Rosario-Dominguez's fifth claim of ineffective assistance is
that counsel failed to argue that Rosario-Dominguez was eligible
for a downward departure from the Sentencing Guidelines because
of his consent to immediate deportation after completing his
sentence. Pet. Mem. at 30-31; see also Pet. Reply at 19-20.
In United States v. Galvez-Falconi, 174 F.3d 255, 260 (2d
Cir. 1999), the Second Circuit held that a district court has the
authority under section 5K2.0 of the Sentencing Guidelines to
grant a downward departure where a defendant consents to
deportation following completion of the sentence and "present[s]
a colorable, nonfrivolous defense to deportation, such that the
act of consenting to deportation carries with it unusual
assistance to the administration of justice." In the absence of such a defense, no basis for a departure exists.
Id.; accord United States v. Sentamu, 212 F.3d 127, 137 (2d
Cir. 2000). In general, an alien who has been convicted of an
aggravated felony is subject to automatic deportation and thus
does not qualify for a downward departure based on consent to
deportation. Castro v. United States, 2003 WL 22909150, at *6
(S.D.N.Y. Dec. 10, 2003); accord Cardona v. United States,
2000 WL 1229886, at *3 (S.D.N.Y. Aug. 29, 2000) ("As an
aggravated felon, petitioner has no basis to contest his
deportation . . . and thus would not qualify for a downward
As a result of his conviction, Rosario-Dominguez became an
aggravated felon, see 8 U.S.C. § 1101(a)(43)(B), and thus was
subject to mandatory deportation, see id. § 1227(a)(2)(B)(i)
(any alien convicted of violating or conspiring to violate the
controlled substances statutes is deportable); id. §
1229b(a)(3), (b)(1)(C) (the Attorney General may not cancel the
removal of any deportable alien who has been convicted of an
aggravated felony). In Sentamu, the Second Circuit held that a
defendant who had been convicted of importing heroin was
ineligible for the section 5K2.0 departure because his consent to
deportation "place[d] him squarely within the heartland of cases
involving convicted aliens." 212 F.3d at 136-37.
Rosario-Dominguez has not presented any colorable, nonfrivolous
defense to deportation. In his initial papers, he presented only
his "extensive ties to the United States of America" and "real
equity" as the basis for a defense. Pet. Mem. at 31. In his reply
papers, he added that he is a legal resident of the United
States, that his wife and two children would suffer hardships
without his support, particularly in the current economy, and
that he may be subject to persecution in his home country based
on his family's membership in an unspecified "socio-political
group." Pet. Reply at 19-20. The fact that Rosario-Dominguez has
family in the United States cannot serve as a colorable defense to deportation, as such a claim would provide
"practically every prisoner awaiting deportation" with grounds
for seeking a departure. Agramonte-Rosario v. United States,
2002 WL 31545848, at *4 (S.D.N.Y. Nov. 14, 2002) (no colorable
defense based on family ties and conditions of incarceration).
"[T]hen downward departures would, inappropriately, become the
rule rather than the exception." Sentamu, 212 F.3d at 138. To
the extent Rosario-Dominguez is arguing that he would be eligible
for asylum, this claim is meritless given that the asylum
statute, 8 U.S.C. § 1158(b)(2), specifically excludes "alien[s]
having been convicted . . . of a particularly serious crime"
including any aggravated felony.
Because Rosario-Dominguez has no colorable, nonfrivolous
defense to deportation following his sentence, his consent to
deportation could not have provided the basis for a downward
departure from the Sentencing Guidelines. See Galvez-Falconi,
174 F.3d at 260. In the absence of any reasonable basis upon
which to argue that Rosario-Dominguez was eligible for a downward
departure, counsel cannot be found ineffective for failing to
make such an argument. See Lopez v. United States, 2002 WL
1471540, at *3 (E.D.N.Y. May 15, 2002) (no ineffective assistance
where petitioner had no colorable defense to deportation);
United States v. Herron, 1999 WL 509469, at *2-*3 (S.D.N.Y.
July 19, 1999) ("Because [petitioner] was not entitled to a
downward departure [based on consent to deportation], his
attorney caused him no cognizable prejudice.").
6. Refusal to Allow Rosario-Dominguez to Testify
Rosario-Dominguez claims ineffective assistance on counsel
based on counsel's alleged refusal to let him testify. Pet. Mem.
at 36-38. In support of this claim, Rosario-Dominguez affirms, "I
advised counsel that I wanted to testify on my behalf, but
counsel adamantly refused to allow me to exercise this constitutional right." Pet. Aff. ¶
7. As for the substance of the testimony he would have given,
Rosario-Dominguez offers his contentions that "Sanchez was an
admitted liar, [was an] international drug trafficker, . . . had
an extensive criminal history, . . . and had a personal interest
in the outcome of Rosario's trial." Pet. Mem. at 37-38. In
addition, Rosario-Dominguez states that he did not have a prior
criminal history and that prior to Sanchez's identification of
him, he was unknown to law enforcement. Id. at 37.
After reviewing Rosario-Dominguez's papers, this Court
requested that Burke submit a supplemental affirmation responding
to this and other claims of ineffective assistance of counsel.
See Order, filed May 6, 2004 (Docket #248 in 99 Cr. 73). Burke
did so and, with respect to this issue, he wrote:
I conferred with Rosario regarding testifying in
Court. He agreed not to testify. The defense had
brought out on cross examination that there were two
men nicknamed "Jabao" on tape. One of those men was
Rosario. Through cross examination and tapes the
defense was able to argue to the jury that the
Government had confused many of the "Jabao"
attributions on the tapes and transcripts. Rosario's
testimony would have permitted the jury to hear his
voice and infer that he was the "Jabao" discussing
narcotics on tape.
Affirmation of John Burke, Esq., filed May 18, 2004 (Docket #10)
("Burke Affirm. II"), ¶ 4. In response, Rosario-Dominguez
disputes Burke's account and maintains that "the only exchange
was counsel chastising me about wanting to testify, stating that
it was his practice to preclude defendants from testifying. He
stated that if I persisted [in insisting on testifying], he would
abandon my defense." Response to Counsel's Affirmation, dated May
20, 2004 ("Pet. Aff. II"), ¶ 2.
In Chang, the Second Circuit specifically addressed a
district court's obligation to hold a hearing on a § 2255
petition which alleged ineffective assistance based on counsel's
refusal to allow a defendant in a criminal case to testify in his own
defense. See 250 F.3d at 85-86. In that case, both the
petitioner and his trial counsel submitted affidavits. Id. at
81. The petitioner's affidavit stated that counsel had
"prohibited" him from testifying, that counsel did not inform him
that the decision whether or not to testify was his to make, and
that had he known his rights he would have testified at trial.
Id. Counsel's affidavit contradicted these assertions. Id. at
81-82. The district court credited counsel's statements and
discredited petitioner's without holding an evidentiary hearing.
Id. at 82. The Second Circuit first found that petitioner's
ineffective assistance claim was "not so clearly bereft of merit
as to be subject to dismissal on its face" and thus that summary
dismissal would have been inappropriate. Id. at 85. However,
the court went on to hold that the record as supplemented by the
affidavits was sufficient to support dismissal of the petition
without holding a full-blown testimonial hearing. Id. at 85-86.
Similarly, in this case both Rosario-Dominguez and Burke have
now submitted affidavits on the topic of their discussions
regarding whether Rosario-Dominguez would testify. Without
holding a testimonial hearing, it is clear based on the record
before this Court that Rosario-Dominguez is not entitled to
relief based on this claim. First, this situation is virtually
identical to Chang in that Rosario-Dominguez's assertions
regarding counsel's refusal to let him testify, see Pet. Aff. ¶
7; Pet. Aff. II ¶ 2, are self-serving and uncorroborated and this
Court credits counsel's detailed and credible description of what
occurred. A testimonial hearing "would add little or nothing to
the written submissions." 250 F.3d at 86.
Second, even if Rosario-Dominguez's assertions were true, his
failure to show that his testimony would have had any effect on
the outcome of the trial is fatal to a showing of prejudice under
Strickland. See Rega v. United States, 263 F.3d 18, 20-26
(2d Cir. 2001) (denial of the right to testify did not constitute ineffective assistance
because petitioner failed to show prejudice), cert. denied,
534 U.S. 1096 (2002); Brown v. Artuz, 124 F.3d 73, 80-81 (2d
Cir. 1997) (no prejudice where "the only testimony [petitioner]
claims he wanted to present would not have aided his . . .
defense"), cert. denied, 522 U.S. 1128 (1998). At most,
Rosario-Dominguez's proposed testimony would have attacked
Sanchez's credibility. See Pet. Mem. at 37-38. However, the
record indicates that this was already accomplished through
thorough cross-examination of Sanchez and Rosario-Dominguez's own
views of Sanchez's credibility would hardly have been effective
to impeach Sanchez. Furthermore, Burke's affirmation indicates
that Rosario-Dominguez's testimony actually would have undermined
the defense and thus that there was a valid reason for him not to
testify. See Burke Affirm. II ¶ 4 (permitting Rosario-Dominguez
to testify would have allowed jury to hear his voice and thus
infer that he was in fact the "Jabao" on the tapes discussing
narcotics). Thus, because Rosario-Dominguez fails to show
prejudice, this claim of ineffectiveness must fail for this
reason as well.
7. Failure to Pursue Plea Negotiations and to Disclose a Plea
Rosario-Dominguez alleges that Burke was ineffective for
failing to (1) pursue plea negotiations; and (2) disclose plea
offer(s) made by the Government. Pet. Mem. at 32-33; see also
Pet. Reply at 20-23. In support of this claim, Rosario-Dominguez
states that he was unaware of any plea offer until his appellate
counsel "intimated" that a plea carrying a sentence "between" 60
and 87 months had been offered. Pet. Aff. ¶ 9; Pet. Mem. at 33.
Rosario-Dominguez further alleges that "had counsel advised [him]
. . . about the offer, [he] would have been in a better position
to weigh in on his options." Pet. Mem. at 33. Although
Rosario-Dominguez's appellate counsel advised him that his
unawareness of the plea offer may be a ground for arguing that trial counsel was ineffective, Pet. Aff.
¶ 9, he did not raise this issue on appeal.
In response to the petition, the Government's papers included
an affirmation from Burke, who states:
I have a specific recollection of my representation
of Mr. Rosario, and of the plea offers made by the
Government to Mr. Rosario. I have a very specific
recollection of promptly informing Mr. Rosario of
each and every plea offer made by the Government. I
also have a very specific recollection that the plea
offers included stipulations by the Government not to
seek a sentencing enhancement for his managerial role
in the narcotics conspiracy. I do not remember the
specific sentencing ranges of the plea offers, but I
do recall going over the details of every offer with
I also specifically recall that Mr. Rosario
instructed me to reject each and every plea offer
made by the Government because he wanted to go to
trial on the charge.
It is my practice to make every effort to seek a
reasonable and fair plea for my clients when
appropriate or requested to do so by the client. It
is also my practice to always inform my clients of
any plea offer and to review the offer with the
client thoroughly so that the client may make a fully
informed decision as to whether to take the offer.
This is the same practice I followed with Mr.
Affirmation of John Burke, dated January 6, 2004 ("Burke
Affirm.") (annexed as Ex. B to Chang Decl.), ¶¶ 4-6. Only after
Burke submitted a second affirmation addressing other issues did
Rosario-Dominguez assert that there was no "substantiat[ion]" for
Burke's statement that he engaged in plea discussions with the
Government and that "no such discussions about any pleas occurred
between Mr. Burke and myself. I would have certainly considered
[a plea] and perhaps accepted it." Pet. Aff. II, ¶ 1.
As an initial matter, Rosario-Dominguez has offered no evidence
that Burke did not discuss potential pleas with the Government.
Rosario-Dominguez's observation that there is no
"substantiat[ion]" for the statements in Burke's affidavit
regarding plea discussions is of no moment as plea discussions
are often undertaken only orally. With respect to whether the plea offers were communicated to
Rosario-Dominguez, it is well established that "counsel must
always communicate to the defendant the terms of any plea bargain
offered by the prosecution." Cullen v. United States,
194 F.3d 401, 404 (2d Cir. 1999). Failure to do so constitutes deficient
performance. Id.; accord Pham, 317 F.3d at 182 ("A
defendant suffers a Sixth Amendment injury where his attorney
fails to convey a plea offer."). Furthermore, "`[a] defense
lawyer in a criminal case has the duty to advise his client fully
on whether a particular plea to a charge appears to be
desirable.'" Boria v. Keane, 99 F.3d 492, 496 (2d Cir. 1996)
(emphasis omitted) (quoting Model Code of Prof'l Responsibility
EC 7-7 (1992)); accord Purdy v. United States, 208 F.3d 41,
45 (2d Cir. 2000) ("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" (citations omitted)); see Von Moltke v. Gillies,
332 U.S. 708, 721 (1948) ("an accused is entitled to rely upon his
counsel . . . to offer his informed opinion as to what plea
should be entered"). Thus, the failure of counsel to provide any
advice to the client concerning the acceptance of a plea
independently constitutes deficient performance. Boria, 99 F.3d
at 496-97; accord Cullen, 194 F.3d at 404.
Once again, however, no testimonial hearing is required on this
issue. Rosario-Dominguez has submitted only conclusory and/or
self-serving affidavits on the issue of whether Burke
communicated plea offers to him. Burke, by contrast, has given a
plausible and appropriately detailed description of their
discussions. This situation is thus similar to Chang in that
the Court finds Burke's explanation of what occurred to be far
more credible. No testimonial hearing is required because it
"would add little or nothing to the written submissions." 250 F.3d at 86. Based on the failure to show
deficient performance, the claim of ineffective assistance is
Second, Rosario-Dominguez's claim fails for the separate reason
that he has not shown any prejudice resulting from the alleged
failure to disclose the plea offers. The prejudice element of the
Strickland test in the context of counsel's failure to disclose
a plea offer requires a showing that there is a "reasonable
probability" the petitioner would have accepted the plea. E.g.,
Cullen, 194 F.3d at 405. The Second Circuit "requires some
objective evidence other than defendant's assertions to establish
prejudice" although "a significant sentencing disparity in
combination with defendant's statement of his intention is
sufficient to support a prejudice finding." Pham, 317 F.3d at
182 (citing Gordon, 156 F.3d at 380-81); see also Purdy v.
Zeldes, 337 F.3d 253, 259 (2d Cir. 2003) (discussing a habeas
court's "responsibility to actually make a credibility finding in
each case, even absent objective evidence," but noting that "in
most circumstances a convicted felon's self-serving testimony is
not likely to be credible").
The Court recognizes that there is significant disparity
between the sentence Rosario-Dominguez claims was offered (60 to
87 months) and the actual sentence he received (210 months). But
the statements made by Rosario-Dominguez in his papers filed in
support of this habeas petition lead to the conclusion that he
would not have pled guilty had he known of such a plea offer. In
his original memorandum of law, Rosario-Dominguez stated only
that had he known of the plea offer he "would have been in a
better position to weigh in on his options." Pet. Mem. at 33.
Burke thereafter submitted his affirmation asserting that
Rosario-Dominguez instructed him to reject every plea "because he
wanted to go to trial on the charge." Burke Affirm. ¶ 5. In
response, Rosario-Dominguez did not controvert this statement
but instead argued, "The issue is not whether the Petitioner would have
accepted such an offer or not . . . [b]ut whether he was indeed
given a chance to make an informed decision based on Counsel's
competent advi[ce]," Pet. Reply at 22. He contended only that the
disparity between 87 months (the sentence he claims was offered)
and 210 months (the sentence imposed) is itself "compelling
enough." Id. Notably, it was only in a more recent affidavit
that Rosario-Dominguez for the first time asserted that there was
even a potential that he might have accepted the plea offer at
the time. In that affidavit, however, he states only that, had he
known of a plea offer, he "would have certainly considered [it]
and perhaps accepted it." Pet. Aff. II ¶ 1.
The Second Circuit has found prejudice in certain instances
where the petitioner has not explicitly stated that he would have
accepted a plea offer. See Mask v. McGinnis, 233 F.3d 132,
141 (2d Cir. 2000) (affidavit from petitioner stating that a plea
of ten years to life was rejected because it was unreasonable but
that a plea offer of eight to 16 years would have been reasonable
"constitutes a sufficiently affirmative statement that he would
have accepted a better plea agreement had it been offered"),
cert. denied, 534 U.S. 943 (2001); Boria, 99 F.3d at 497
(had attorney expressed his professional opinion that an
acquittal was "almost impossible" there would have been more than
a "reasonable probability" that petitioner's family would have
persuaded petitioner not to pursue the "suicidal" course of
rejecting a plea offer).*fn4 In these cases, however, the
court had some evidence upon which to base a conclusion that the
petitioner would have accepted the offered plea. In Mask, this evidence
consisted of an affirmative albeit not definite indication
from the petitioner that he would have actually accepted the
offer. See 233 F.3d at 141. In Boria, the court seems to have
relied on the huge disparity between the one to three year prison
term offered and the twenty years to life sentence imposed,
coupled with defense counsel's testimony that he offered no
advice as to the plea even though the only reason his client had
for rejecting the plea was saving himself from being embarrassed
in front of his children. See 99 F.3d at 495-98.
In contrast, Rosario-Dominguez's statements, even when
considered along with the disparity between the length of
imprisonment offered and that imposed, are not sufficient to
establish even a "reasonable probability" that he would have pled
guilty. As noted, Rosario-Dominguez made no suggestion in his
initial papers that he would have accepted the plea but stated
only that he "would have been in a better position to weigh in on
his options," Pet. Mem. at 33. Rosario-Dominguez did not
controvert counsel's statement that he insisted on going to
trial, Burke Affirm. ¶ 5. It was only in a later affidavit that
he suggested there was any potential for accepting the plea and
even in this affidavit he asserted only that he would have
"perhaps" accepted it. Pet. Aff. II ¶ 1.
Rosario-Dominguez's position is thus most similar to that of
the petitioner in United States v. Perez Gomez, 2003 WL
22119123, at *5 (D. Conn. Aug. 29, 2003), who stated only that he
would have given a plea offer "serious consideration" and argued
that he was prejudiced because he "was not able to make a
knowing, voluntary and informed decision" about the undisclosed
offer. After discussing the finding of prejudice in Mask, the
Perez Gomez court stated, "In contrast to Mask's `sufficiently
affirmative statement,' Perez Gomez['s] . . . failure to allege that he would have taken the offer in some form is fatal
to his claim." Id. at *5-*6. Similarly, Rosario-Dominguez did
not state in any form that he would have taken the alleged offer
of between 60 to 87 months, despite purportedly learning during
his direct appeal of such an offer being made and despite being
furnished with Burke's statement that Rosario-Dominguez
specifically told him to reject any plea offers because he wanted
to go to trial. In the context of Rosario-Dominguez's other
statements in this Court, his recent statement that he "perhaps"
would have taken the plea must be deemed insufficient.
Accordingly, Rosario-Dominguez's claim of ineffective
assistance of counsel must fail both because he has failed to
establish deficient performance and also because, in any event,
he has not established prejudice caused by any alleged failure to
disclose the plea offers.
8. Failure to Investigate and Present Perron as a Defense
Rosario-Dominguez's final claim of ineffective assistance of
counsel is that Burke failed to present Perron as a defense
witness at trial. Pet. Mem. at 38-39; see also Pet. Reply at
25-27. As detailed above, Rosario-Dominguez has provided an
affidavit from Perron affirming that Sanchez did not work at the
bodega on West 135th Street during 1996. See Perron Aff. ¶ 4.
Rosario-Dominguez also has submitted his own affidavit stating
that Perron informed counsel that he was available to testify and
that Burke failed to contact Perron despite an indication that he
intended to do so. Pet. Aff. ¶¶ 5-6; see also Perron Aff. ¶
Burke has offered an explanation as to why he did not call
Perron as a witness:
I conferred with Rosario regarding the "deli-ID"
issue and informed him that in large part it was not
relevant. Evidence showed that Sanchez knew Rosario
and that my client's nickname was "Jabao." The
defense argued to the jury that Sanchez had used
Rosario as an easy mark and named him to authorities
as a replacement for the other "Jabao," who was a
good friend of Sanchez. The defense did not argue to
the jury that Sanchez and Rosario were strangers. The defense argued that Sanchez knew Rosario from the
Rosario agreed in the decision not to call witnesses.
It is my recollection that I did not speak to and was
not contacted by Pablo Perron, the deli-owner.
Burke Affirm. II ¶¶ 5-6.
"The decision whether to call any witnesses on behalf of the
defendant, and if so which witnesses to call, is a tactical
decision of the sort engaged in by defense attorneys in almost
every trial." Nersesian, 824 F.2d at 1321. Thus, the "failure
to call a witness for tactical reasons of trial strategy does not
satisfy the standard for ineffective assistance of counsel."
United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002) (per
curiam) (citations omitted), cert. denied, 538 U.S. 1021
(2003); accord United States v. Best, 219 F.3d 192, 201 (2d
Cir. 2000) ("[C]ounsel's decision as to whether to call specific
witnesses even ones that might offer exculpatory evidence is
ordinarily not viewed as a lapse in professional representation."
(internal quotation marks and citations omitted)), cert.
denied, 532 U.S. 1007 (2001); Nersesian, 824 F.2d at 1321
(the decision not to call witnesses "fall[s] squarely within the
ambit of trial strategy, and, if reasonably made, will not
constitute a basis for an ineffective assistance claim").
While the choice whether or not to call a particular witness is
a strategic choice that is "virtually unchallengeable," counsel
"has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations
unnecessary." Strickland, 466 U.S. at 690-91. Thus, if Burke
knew that Perron potentially had material favorable to
Rosario-Dominguez's defense and failed to investigate what
evidence he may have been able to offer at trial, his
representation would have been deficient. In this case, however,
Rosario-Dominguez's submissions indicate that the only testimony
Perron would have offered was that he owned and operated the
bodega on West 135th Street and that Sanchez did not actually
work there during 1996 as he testified. See Perron Aff. ¶ 4. The submissions
further indicate that defense counsel was aware of Perron and his
potential testimony, see id. ¶ 5; Pet. Aff. ¶¶ 4-6 an
assertion corroborated by Burke himself, see Burke Affirm. II ¶
5. Assuming that Burke never spoke to Perron, see Pet. Aff. ¶
6; Burke Affirm. II ¶ 6, counsel had a strategic reason for
discounting the need to conduct any investigation into Perron's
testimony. As discussed above, even Perron's proffered testimony
would not have challenged Sanchez's observations that
Rosario-Dominguez engaged in drug activities in 1996. Rather, it
would have offered only an additional and relatively
insignificant basis upon which to challenge Sanchez's credibility
in a trial where his credibility was vigorously attacked on much
more significant grounds.
Thus, the record does not reflect that Burke acted unreasonably
in not interviewing Perron or calling him as a witness. Nor has
Rosario-Dominguez 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 and citation omitted). Contrary to
Rosario-Dominguez's assertions, the decision not to present
Perron was not "tantamount to not presenting a defense," Pet.
Reply at 25. Certainly, Sanchez's testimony as a whole was
central to the Government's case against Rosario-Dominguez.
However, Sanchez's testimony that he worked in the bodega was
only of marginal relevance to his overall testimony. See
United States v. Vargas, 920 F.2d 167, 170 (2d Cir. 1990)
(ineffective assistance claim based on counsel's failure to call
defense witnesses rejected where proffered testimony related only
to "collateral matters"), cert. denied, 502 U.S. 826 (1991).
The collateral significance of Sanchez's employment at the bodega
leads to the conclusion that counsel's failure to further
investigate Perron and call him as a witness was supported by a
plausible defense strategy that is, a strategy focused on
attacking Sanchez's credibility on more relevant matters. In other words,
aware of Perron's proffered testimony and aware of other more
relevant ways to attack Sanchez's credibility, counsel fulfilled
his obligation of "mak[ing] a reasonable decision that makes
particular investigations unnecessary," Strickland, 466 U.S. at
691. Because trial counsel acted reasonably, we need not consider
whether Rosario-Dominguez was prejudiced that is, whether there
is a reasonable probability that the outcome of the trial would
have been different in light of Perron's proffered testimony,
see id. at 694.
For the foregoing reasons, Rosario-Dominguez's petition to
vacate, set aside, or correct his sentence should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties have ten (10) days from
service of this Report and Recommendation to file any objections.
See also Fed.R.Civ.P. 6(a), (e). Such objections (and any
responses to objections) shall be filed with the Clerk of the
Court, with copies sent to the Hon. Jed S. Rakoff, 500 Pearl
Street, New York, New York 10007, and to the undersigned at 40
Centre Street, New York, New York 10007. Any request for an
extension of time to file objections must be directed to Judge
Rakoff. If a party fails to file timely objections, that party
will not be permitted to raise any objections to this Report and
Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140