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
II. APPLICABLE LEGAL STANDARDS
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.
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 ...