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May 7, 2005.


The opinion of the court was delivered by: SHIRLEY KRAM, Senior District Judge



Johnny Alberto Tavarez ("Defendant/Petitioner") pled guilty to conspiracy to distribute and possession with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846. The facts and procedural history leading to his incarceration have been previously recited and are not in serious dispute. Petitioner now moves to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. § 2255.

  Tavarez challenges his sentence on two primary grounds. First, he asserts that the Court erroneously admitted evidence by relying on false testimony. Second, Tavarez claims he received ineffective assistance of counsel at trial and on appeal. For the reasons set forth below, Petitioner's motion is denied.


  As a pro se litigant, Petitioner's submissions will be liberally construed in his favor and read to raise the strongest arguments that they suggest. Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995); Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). However, to vacate a conviction under § 2255, a defendant still must demonstrate 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) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)). Such collateral attacks are sharply restricted because of "settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." United States v. Addonizio, 442 U.S. 178, 184 (1979).

  Accordingly, a § 2255 petitioner may not relitigate claims already raised and considered on direct appeal. See United States v. Sanin, 252 F.3d 79, 83 (2d Cir.) (per curiam), cert. denied, 534 U.S. 1008 (2001). Such successive claims are procedurally barred and cannot be revisited unless there has been "an intervening change in the law that would have exonerated the petitioner had it been in force before the conviction was affirmed on direct appeal." Chin v. United States, 622 F.2d 1090, 1092 (2d Cir. 1980), cert. denied, 450 U.S. 923 (1981).

  When a § 2255 petitioner asserts a cause of action that was not raised on direct review, the new claim will be considered procedurally defaulted and ineligible for review unless the petitioner "can first demonstrate either `cause' and actual `prejudice,' or that he is `actually innocent.'" Bousley v. United States, 523 U.S. 614, 622 (1998). Establishing `cause' "ordinarily turns on whether the prisoner can show that some objective factor external to the defense" prevented counsel from raising the claim. Coleman v. Thompson, 501 U.S. 722, 753 (1991). For example, courts have recognized `cause' when the factual or legal basis for a claim was not available or when procedural compliance was impracticable due to interference by officials. See Murray v. Carrier, 477 U.S. 478, 488 (1986). To satisfy the `prejudice' requirement, a defendant must establish that the defect "worked to his substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Rodriguez v. Mitchell, 252 F.3d 191, 203 (2d Cir. 2001). Finally, demonstrations of `actual innocence' require a showing that "in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousely, 523 U.S. at 623.

  Ineffective assistance of counsel claims, by contrast, may be raised for the first time on collateral review and need not be raised on appeal. See Massaro v. United States, 538 U.S. 500, 504 (2003). Such claims still must overcome the strong presumption in favor of competency imposed by Strickland v. Washington, 466 U.S. 668 (1984). To prevail, a petitioner must establish that counsel's errors "fell below an objective standard of reasonableness," Id. at 688, and that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. This two-prong test is also employed to evaluate post-conviction attacks on appellate representation. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994); Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990).


  A. Suppression Hearing Testimony

  Tavarez claims that New York Police Department ("NYPD") Officer Kevin Grogan ("Officer Grogan") gave false testimony during a suppression hearing that led to the erroneous admission of incriminating evidence. Officer Grogan testified that he received Tavarez's license plate number through a confidential informant and used that information to reference Tavarez's name. Defendant argues that the introduction of evidence based on Officer Grogan's false testimony left him with no choice but to plead guilty. Nevertheless, Tavarez neglected to pursue this claim on direct review, rendering it procedurally defaulted.

  Moreover, Petitioner cannot satisfy the `prejudice' requirement to overcome this procedural default. See Rodriguez, 252 F.3d at 203. Any perceived inaccuracies in Officer Grogan's testimony were insignificant and did not infect Petitioner's suppression hearing with constitutional errors. The Presentence Investigation Report ("PSR") clearly establishes that the search warrant was supported by information given by two confidential informants who provided specific information describing the trafficking activities at Tavarez's apartment. See PSR at 2-3. Officer Grogan's testimony regarding Tavarez's license plate was not central to the question of the validity of the search warrant and cannot excuse Petitioner's original procedural default.*fn1 Similarly, Defendant did not address his concerns about the availability of records from state court through direct review. Tavarez argues that stenographic transcripts of Officer Grogan's testimony in support of a search warrant were intentionally withheld from him. But the availability of these transcripts was inconsequential to the Court's decision to admit evidence seized at the apartment. In his suppression motion, Defendant challenged the NYPD's methods of ...

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