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VARGAS v. U.S.

November 21, 2005.

DELVIS VARGAS, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.



The opinion of the court was delivered by: HAROLD BAER JR., District Judge

OPINION & ORDER

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.

  I. BACKGROUND

  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 25, 2004.*fn2

  II. DISCUSSION

  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 (2003). ...


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