United States District Court, S.D. New York
November 21, 2005.
DELVIS VARGAS, Petitioner,
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.
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
(2003). Prejudice is shown if, but for the deficient performance,
there is a reasonable probability that the outcome of the
proceeding would have been different. Id. at 534.
A. Counsel Did Not Fail to Present a Defense
In support of his argument for ineffective assistance of
counsel, Vargas contends that counsel "failed to present any type
of defense." (Vargas Mem. at 9). Vargas claims that defense
counsel expressed confidence that this Court would grant a motion
to dismiss after the prosecution rested or that the jury would
acquit. Id. at 9. The trial record, however, shows that counsel
did present an effective defense the "mere presence" defense
which, if believed by the jury, could have resulted in Vargas'
acquittal. (Tr. 217-234); see United States v. Santos,
425 F.3d 86 (2d Cir. 2005) (mere presence at a crime scene does not
establish intentional participation in the conspiracy). "Actions
or omissions by counsel that might be considered sound trial
strategy do not constitute ineffective assistance." Kieser v.
New York, 56 F.3d at 18 (internal quotation omitted).
Vargas also claims that counsel failed to offer into evidence a
newspaper advertisement seized from Vargas on September 18 that
listed the motorcycle Vargas allegedly intended to purchase with
the money seized from him. The government maintains that no such
item was recovered from Vargas or produced to defense counsel in
discovery. (Government's Mem. at 16). The Government also
submitted an affidavit from Vargas' defense counsel, which states
that defense counsel has "no recollection that such [an]
advertisement was found" in Vargas' possession on [September 18].
(Touger Aff. ¶ 28). Moreover, Vargas has failed to show a
reasonable probability that such evidence, even if presented at
trial, would have resulted in an acquittal.
B. Counsel Did Not Fail to Call Fact Witnesses
Vargas alleges that counsel failed to call important fact
witnesses and that counsel informed petitioner that it was not
necessary to call any witnesses because of the weakness of the
government's case. (Vargas Mem. at 15). Specifically, Vargas
contends that counsel failed to: (1) call witnesses to testify
that the money belonged to him (Vargas Mem. at 10-11); (2) call
witnesses to corroborate Vargas' alleged employment in a grocery
store (id. at 11); (3) call the CI to "to establish that [the
CI] did not know the petitioner, had no prior dealings with the
petitioner, and that the petitioner was not involved in the
transaction" (id. at 12); (4) call the "owner of the motorcycle
. . . [whom] the petitioner had spoken to on various occasions in
order to set up the purchase" (id. at 12); (5) call Vargas'
cousin, who "would have testified that he was given the $5,000 by
petitioner, to deposit into his bank account, because petitioner
did not have one himself" (id. at 12-13); and (6) call Vargas'
co-defendant Gaton to testify about the extent of Vargas'
involvement in the conspiracy (id. at 14).
As to Vargas' first contention that counsel failed to call any
witnesses to testify that the seized money belonged to Vargas,
defense counsel attests that he called no witnesses on this
subject "because there were no witnesses to call." (Touger Aff. ¶
26). Even if a witness was called to testify that all of the
money was Vargas', the testimony would have been rebutted by the
proof at trial that $2,000 of the $5,400 seized was the FBI's
pre-recorded buy money. Vargas' next contention is that counsel failed to call a
witness to corroborate his employment at a grocery store in
Washington Heights, which Vargas claims would have explained the
source of the money. Counsel, however, states that he attempted
to find the grocery store but, even after visiting the
neighborhood, "could not find one grocery store owner to testify
that he employed [Vargas]." (Touger Aff. ¶ 27). Three grocery
store owners testified for the government that Vargas did not
work for them. (Id. at 28).
Vargas also claims that counsel rendered ineffective assistance
by failing to call the CI to establish that the CI had no prior
connection with Vargas and that Vargas was not involved in the
transaction. (Vargas Mem. at 11-12). At no point during the
trial, however, did the government argue that there was any
contact or prior relationship between the CI and Vargas. (See
Tr. 204-17). Again, Vargas fails to show that the CI's testimony
would have changed the outcome.
Next, Vargas claims that counsel failed to call the owner of
the motorcycle with whom Vargas "had . . . spoken . . . on
various occasions in order to set up the purchase." (Vargas Mem.
at 12). Counsel states that "he was never told by anyone who the
owner of the motorcycle was." (Touger Aff. ¶ 30). Moreover,
Vargas has failed to demonstrate that such testimony would have
significantly aided his defense.
Vargas further claims that counsel failed to call Vargas'
cousin, who would have testified that Vargas had previously given
him $5,000 to deposit at the bank, but that he had returned the
money to Vargas on September 18 so Vargas could purchase the
motorcycle. (Vargas Mem. at 12-13). Counsel states that he could
not call Vargas' cousin because "he was not available to
testify." (Touger Aff. ¶ 31). Here too, Vargas has failed to
demonstrate how this testimony would have affected the outcome of
the trial in the face of the evidence presented by the government
regarding the seizure of $2,000 in pre-recorded buy money. Finally, Vargas claims that counsel failed to call co-defendant
Gaton to testify about the extent of Vargas' involvement in the
conspiracy. (Vargas Mem. at 14). Again, Vargas fails to
demonstrate how this witnesses' testimony would have affected the
outcome of the trial. The government made no allegation at trial
regarding a prior relationship between Vargas and Gaton; instead
it asserted that Vargas delivered the drugs to the location of
the sale. (See Tr. 77-78, 84, 204-217).
C. Counsel Did Not Fail to Conduct a Pre-Trial Investigation
Vargas alleges that counsel failed to conduct any pre-trial
investigation. (Vargas Mem. at 15). Vargas, however, has not
provided a sworn statement from any witness he claims would have
testified on his behalf. However, counsel states that he
personally visited Vargas' neighborhood to attempt to find a
witnesses to testify on Vargas' behalf. (Touger Aff. ¶ 27).
Vargas has failed to demonstrate how any additional pre-trial
investigation would have changed the outcome of the trial.
Petitioner has failed to show that counsel's performance fell
below an objectively reasonable standard, or that there is a
reasonable probability that the result of the proceedings would
have been different if not for counsel's alleged errors.
Accordingly, Vargas' petition for a writ of habeas corpus is
DENIED. The Clerk of the Court is instructed to close this matter
and any pending motions and to remove this matter from my docket.
[fn*] David S. Wenger, a fall 2005 intern in my Chambers, and
currently a third-year law student at Fordham University School
of Law, provided substantial assistance in the research and
drafting of this Opinion.
© 1992-2005 VersusLaw Inc.