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August 16, 2004.


The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge


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. ¶¶ 1-5.

  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. 415).

  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: Tr. 268).

  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.


  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 ...

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