The opinion of the court was delivered by: HAROLD BAER JR., District Judge
Hon. HAROLD BAER, JR., District Judge:[fn*]
On August 7, 2003, this Court sentenced petitioner Delvis
Vargas ("Vargas") to 121 months imprisonment, to be followed by a
five-year term of supervised release. On November 3, 2004 Vargas
filed this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2255. Vargas seeks to vacate his sentence on the ground
that his attorney rendered ineffective assistance of counsel. For
the following reasons, the petition is DENIED.
On March 6, 2003, a jury convicted Vargas of conspiring to
distribute and possess with intent to distribute 50 grams or more
of cocaine in violation of 21 U.S.C. § 846. (Tr. 283). At trial,
the Government established that Vargas, aided by co-defendants
Domingo Gaton ("Gaton") and Luis Morant-Cordero ("Cordero"), sold
68 grams of crack cocaine to a confidential informant ("CI")
working with the Federal Bureau of Investigation ("FBI"). Gaton
negotiated the sale with the CI during August and September 2002,
and met the CI on September 18, 2002 in front of La Caridad
Restaurant near the corner of Amsterdam Avenue and 164th Street
in Manhattan. (Tr. 27, 76). Vargas and Cordero arrived shortly
thereafter in a van, and Gaton got in the van. (Tr. 77). An officer observed Vargas and Cordero reaching into the center area
between the front seats, where officers later found a
hollowed-out loaf of bread. (Tr. 77-78, 84).
A short while later, Gaton exited the van and went inside La
Caridad with the CI. (Tr. 85). The CI had been previously given
$2,000 in pre-recorded buy money by an FBI agent and searched to
make sure that he had no drugs on him. (Tr. 31). A short while
later the CI emerged from the restaurant, and was re-searched by
an agent who found a bag of crack cocaine in his possession. (Tr.
35). Gaton left the restaurant and re-joined Vargas and Cordero,
who had been waiting inside the van. (Tr. 85-86). Vargas drove
the trio away from the restaurant. (Tr. 86). Gaton exited the van
a few blocks away. (Tr. 86). Agents then attempted to stop the
van. (Tr. 38,138). After Vargas drove through four or five
traffic lights in an attempt to elude the agents, he and Cordero
were stopped, detained and brought to the police station. (Tr.
38, 138). The van was also impounded. (Tr. 139).
During the ensuing search, agents discovered $1,000 cash in
Vargas' pocket, and $4,400 cash in the glove compartment and
under the drivers' seat of Vargas' van. (Tr. 41, 139-140). All
$2,000 of the FBI's pre-recorded buy money was recovered from the
van. (Tr. 44-45). The money was seized, and Vargas was given a
receipt. (Tr. 88-89).
Subsequently, while attempting to retrieve the money, Vargas
made three statements to the New York City Police Department
("NYPD") regarding the source of the funds. The three statements
conflicted with each other and with the statement Vargas made to
agents on September 18, 2002. On September 18, 2002, Vargas had
told the agents that all of the money in the van was his and that
he had earned it from a job at the grocery store. (Tr. 122). On
September 19, Vargas told an NYPD Internal Affairs Bureau officer
that $6,000 not $5,400 was seized, of which $5,000 belonged
to Vargas and $1,000 was a loan from a friend. (Tr. 127-128).
Vargas again stated that he had earned the money working at a grocery store,
and claimed he was going to use the money to buy a motorcycle.
(Tr. 127-128). On September 24, Vargas provided an NYPD detective
with a written statement in which he claimed that $5,500 was
seized and that all of the money was his own. (Tr. 92). Finally,
on October 2, 2002, Vargas told an officer and an FBI agent that
he wanted to pick up all $5,400 seized, that all of the money was
his, that a friend had given him $2,000 and the rest he had
earned from his job at the grocery store. (Tr. 47-48, 96-97).
Agents interviewed Cordero separately on October 2, 2002. (Tr.
97). He told them that he agreed to loan Vargas $2,000, and had
met Vargas on September 18 to give him the money. (Tr. 97-98).
When Vargas picked him up, Cordero said he immediately put the
$2,000, which he had earned from his job at a grocery store, into
the glove compartment. (Id.).
Vargas, Cordero and Gaton were arrested on October 2, 2002.
After a four-day trial that concluded on March 6, 2003, Vargas
was convicted of violating 21 U.S.C. § 846.*fn1 On August 7,
2003, I sentenced Vargas to 121 months imprisonment to be
followed by a five-year term of supervised release. The Court of
Appeals for the Second Circuit affirmed the conviction on March
In support of his petition for a writ of habeas corpus, Vargas
contends that his attorney provided ineffective assistance by:
(1) failing to present a defense at trial; (2) failing to call
various fact witnesses at trial; and (3) failing to conduct a
pre-trial investigation. Although petitioner did not raise these
issues on direct appeal, claims based on ineffective assistance
of counsel may be raised for the first time in a habeas petition
where, as here, petitioner was represented by the same attorney at trial and on the direct appeal. See Ciak v. United
States, 59 F.3d 296, 303 (2d Cir. 1995).
In order to prevail on a claim based on ineffective assistance
of counsel, Vargas must show "both (1) that his attorney's
performance 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.'" See Kieser v. New York,
56 F.3d 16, 18 (2d Cir. 1995) (quoting Strickland v. Washington,
466 U.S. 668, 687-88, 694 (1984)). The proper measure of an
attorney's performance is "reasonableness under prevailing
professional norms." Wiggins v. Smith, 539 U.S. 510, 521