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Carneglia v. United States

January 18, 2006


The opinion of the court was delivered by: Spatt, District J.


Charles Carneglia ("Carneglia" or the "petitioner") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 ("Section 2255"). The petitioner seeks to vacate the judgment of conviction and sentence imposed following trial by jury on the ground of ineffective assistance of counsel. For the reasons stated below, the petition is denied.


The petitioner is an admitted associate of the Gambino Crime Family. The Government charged the petitioner with multiple crimes stemming from his alleged involvement in the extortion of two adult entertainment businesses known as "Cherry's Video" and the "Forbidden Fruit.". Following a jury trial, the petitioner was convicted of only one charge: conspiracy to commit extortion in violation of 18 U.S.C. § 1951, for his activities relating to "Cherry's Video." The petitioner was acquitted of various other charges including extortion, attempted extortion, and loansharking conspiracy. On November 2, 2001, a judgment of conviction was entered. United States District Judge Jacob Mishler ultimately sentenced the petitioner to a term of sixty-three months in prison and three years of supervised release. The petitioner was also required to a pay a one hundred dollar special assessment.

The petitioner appealed, challenging (1) the district court's empaneling of an anonymous jury; (2) the admissibility of certain expert testimony presented at the trial; (3) the sufficiency of the evidence supporting the conviction; and (4) the sufficiency of the evidence supporting the base offense level imposed at sentencing. The petitioner also raised several due process claims regarding the admissibility of certain testimony at trial and the Government's summation. The Second Circuit Court of Appeals affirmed the petitioner's conviction and sentence. United States v. Carneglia, No. 01-1585(L), 47 Fed. Appx. 27, 2002 WL 31097569 (2d Cir. 2002).

The petitioner has had different representation at various steps of his criminal proceeding. At his preliminary hearing and arraignment the petitioner was represented by Ron Rubinstein Esq. of the firm of Rubinstein & Corozzo, P.C., and Robert Gottlieb Esq. of the Law Offices of Robert C. Gottlieb. At trial and at sentencing the petitioner was represented by Joseph Corozzo Esq. of Rubinstein & Corozzo. On appeal, the petitioner was represented by Robert Moore Esq. of the firm of Fine & Bassik. The basis of the current petition is that both his trial and appellate counsel failed to provide effective assistance, as guaranteed by the Sixth Amendment to the United States Constitution.

The petition raises four charges of ineffectiveness at the pre-trial, trial, and appeal levels: (1) his attorneys failed to investigate or prepare for trial; (2) his attorney convinced him to "unwillingly yield" to counsel's recommendation that he not testify at the trial; (3) exculpatory evidence was not shown to the jury; (4) his attorney failed to appeal the admissibility of certain tapes of recorded conversations.


A. Standard of Review

Section 2255 provides a post conviction remedy for federal prisoners similar to the historic writ of habeas corpus available to state prisoners that is now codified in Section 2255. Pursuant to Section 2255, a federal prisoner in custody "may move the court which imposed the sentence to vacate, set aside or correct the sentence" on the basis that it "was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255.

As stated by the Second Circuit, "because requests for habeas corpus relief are in tension with society's strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack." Ciak v. United States, 59 F.3d 296, 301 (2d Cir. 1995), abrogated on other grounds by Mickens v. Taylor, 535 U.S. 162 (2002); see also United States v. Frady, 456 U.S. 152, 165 (1982). As a result, prisoners seeking habeas corpus relief pursuant to Section 2255 must show both that their rights were violated, and that this violation resulted in "substantial prejudice" or a "fundamental miscarriage of justice." Ciak, 59 F.3d at 301.

B. Procedural Default

"A motion under § 2255 is not a substitute for an appeal." United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998). In Section 2255 proceedings, the Supreme Court has recognized the rule of procedural default or "exhaustion" of federal remedies. Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 129 L.Ed. 2d 277 (1994). Generally, the rule bars the presentation of a claim through a writ of habeas corpus where the petitioner failed to properly raise the claim on direct review. Id. If the claim has not been presented on direct review, the procedural bar may be waived only if the petitioner establishes (1) "cause" for the waiver and "actual prejudice" from the alleged violations; or (2) "actual innocence." Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 1611, 140 L.Ed. 2d 828 (1998); Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998); see also Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2667-68, 91 L.Ed. 2d 434 (1986); Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 2643-44, 91 L.Ed. 2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-07, 53 L.Ed. 2d 594 (1977); Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993).

However, this traditional procedural default rule generally does not apply to claims of ineffective assistance of counsel. Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed. 2d 714 (2003). In Massaro, the Supreme Court held that ineffective assistance claims are appropriately litigated in the context of a collateral challenge in the district court and not on direct appeal. Id. at 504-05, 123 S.Ct. 1690; accord United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9, 124 S.Ct. 2333, 159 L.Ed. 2d 157 (2004). This is so because the record is not developed precisely for the object of litigating the ineffective assistance claim, but instead is devoted to issues of guilt or lack of guilt. Massaro, 538 U.S. at 504-05, 123 S.Ct. ...

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