The opinion of the court was delivered by: Richard Conway Casey, United States District Judge
Jose Velez ("Petitioner"), who was convicted of possessing a firearm after having been convicted of a felony in violation of 18 U.S.C. § 922(g)(1) in August 2002, filed this motion pursuant to 28 U.S.C. § 2255, alleging that his Sixth Amendment right to confront the witnesses against him was violated by the filing of the initial criminal complaint in this case; that the jury's verdict in the trial against him was not unanimous; and that his trial and appellate counsel were, for various reasons, ineffective. Petitioner moves to vacate, set aside, or correct his sentence of 120 months' imprisonment and three years' supervised release. For the following reasons, Petitioner's motion is DENIED.
On August 23, 2001, Petitioner was charged in a criminal complaint with possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). On August 8, 2002, a jury unanimously found Petitioner guilty of that charge. Petitioner appealed the conviction without success. See United States v. Velez, 354 F.3d 190 (2d. Cir. 2004). In his § 2255 motion, filed January 14, 2005, Petitioner alleges that his Sixth Amendment right to confront the witnesses against him was somehow implicated by the filing of the initial criminal complaint against him; that the jury that convicted him did not reach a unanimous verdict; that his trial counsel was ineffective for failing to secure Petitioner's consent to proffer sessions with the Government and Speedy Trial Act waivers before trial or to the stipulation of his prior felony conviction at trial, failing to fully investigate Petitioner's case by taking advantage of discovery aids or compelling testimony by certain witnesses (thereby depriving Petitioner of potentially exculpatory testimony and evidence), failing to request an in camera hearing, failing to request a "spoliation of the evidence" jury instruction, and failing to file post-trial motions; and that his appellate counsel was ineffective for failing to raise all possible issues on direct appeal.
Collateral relief under 28 U.S.C. § 2255is available "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law and fact that constitutes a 'fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
A. Many of Petitioner's Claims are Procedurally Barred
Section 2255 cannot be used to entertain questions that could have been raised on direct appeal or to relitigate claims that actually were raised on direct appeal. See United States v. Frady, 456 U.S. 152, 165 (1982) ("[A] collateral challenge may not do service for an appeal."); Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998) ("A motion under § 2255 is not a substitute for an appeal."); Barton v. United States, 791 F. 2d 265, 267 (2d Cir. 1986) (per curiam) (holding that § 2255 "may not be employed to relitigate questions which were raised and considered on direct appeal"). Petitioner's claims regarding the criminal complaint against him and the unanimity of the jury verdict against him are procedurally barred because they could have been raised on direct appeal but were not. Petitioner's claim regarding his involvement in proffer sessions with the Government is procedurally barred because that claim has already been addressed on direct appeal.
1. Petitioner's Claims Regarding the Criminal Complaint and Jury Unanimity are Procedurally Barred Because They Could Have Been Raised on Direct Appeal But Were Not
Although Petitioner's claims regarding the Government's criminal complaint and the unanimity of the jury verdict were not raised on direct appeal, they could have been presented for consideration at that time. When a habeas petitioner fails to raise a claim on direct appeal, the claim is considered procedurally defaulted and thus ineligible for collateral review in a subsequent § 2255 proceeding unless the petitioner "can first demonstrate either 'cause' [for the procedural default] and actual 'prejudice,' or that he is 'actually innocent.'" Bousley v. United States, 523 U.S. 614, 622 (1998) (internal citations omitted); Riascos-Prado v. United States, 66 F.3d 30, 35 (2d. Cir. 1999) ("As a general rule, if a defendant fails to raise a claim on direct appeal, he is barred from advancing it in a subsequent § 2255 petition unless he can show cause for his procedural default and actual prejudice resulting from the error.").*fn1
Petitioner could have argued on appeal that his Sixth Amendment right to confront the witnesses against him was violated by the filing of the initial criminal complaint in this case, but he made no such argument on appeal. Petitioner's argument, in sum, is that the Government's criminal complaint violated his Sixth Amendment right of confrontation because it relied, in establishing probable cause for Petitioner's arrest, on an affidavit that contained statements made by Special Agent Robert Berger of the Bureau of Alcohol, Tobacco, and Firearms in violation of Crawford v. Washington, 541 U.S. 36 (2004). Petitioner has shown neither cause for his failure to so argue on appeal nor prejudice resulting therefrom such that this claim may be eligible for collateral review. The Government never sought to introduce the criminal complaint or affidavit against Petitioner at trial, nor did the Government call Special Agent Berger as a witness at trial. Crawford involved the Sixth Amendment right of confrontation at trial, and "there is no right to 'confront' witnesses upon whom police rely in obtaining probable cause." United States v. Brown, 322 F. Supp. 2d 101, 105 (D. Mass. 2004). No prejudice arises for failure to raise a claim as baseless as this, as Petitioner has simply suffered no Sixth Amendment violation. Petitioner's counsel had a full opportunity to confront all three of the eyewitnesses to Petitioner's crime-that is, the three New York City Police Department officers who saw Petitioner pull a gun from his waistband, heard the sound of metal hitting pavement, and then recovered a firearm from the ground where Petitioner had been standing-and each of those witnesses was cross-examined extensively at trial.
Likewise, Petitioner could have argued on appeal that the jury's verdict in the trial against him was not unanimous, but he made no such argument on appeal. Petitioner has shown neither cause for this failure to argue nor prejudice resulting therefrom such that this claim may be eligible for collateral review. As Petitioner is aware, on August 8, 2002, a panel of reasonable jurors, after considering all of the evidence against Petitioner, unanimously convicted him of violating 18 U.S.C. § 922(g)(1). Each juror was polled and each juror concurred in the guilty verdict. (See Aug. 8, 2002 Tr. at 224-26.) Petitioner bases his argument on an affidavit of one of the jurors, received in November 2002 (three months after the jury verdict was entered), which claimed that "important issues which may have established reasonable doubt" were not "fully discussed" by the jury ("Rosen Affidavit"). This Court addressed the Rosen Affidavit when it denied Petitioner's application for a new trial, which was based on the Rosen Affidavit. (See Dec. 16, 2002 Tr. at 2-4.) The Court notes again, as it did in December 2002, that there was no allegation contained in the Rosen Affidavit that there was any improper extraneous information or influence on the jury deliberations in Petitioner's trial. (See id.) A juror may not impeach her own verdict after the verdict is returned. Fed. R. Evid. 606(b); Tanner v. United States, 483 U.S. 107, 117, 121 (1987). Accordingly, the jury decision remains unanimous.
Finally, to the extent that Petitioner argues that he is actually innocent, Petitioner has failed to demonstrate "actual innocence" so as to overcome the procedural defaults of his criminal-complaint and jury-unanimity claims so as to make them eligible for collateral review. "To establish actual innocence, a petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley, 523 U.S. at 623. Petitioner has not demonstrated that no reasonable juror would have convicted him. A panel of reasonable jurors did just that on August 8, 2002. Petitioner has not only "recanted his claims of innocence . . . and admitted facts pertinent to . . . the charged offense . . . that he owned and possessed the firearm that the officers found on the ground near him," Velez, 354 F. 3d at 192, he has further alluded to his culpability by "apologiz[ing] for mistakes" (Gov't Br., Ex. A (quoting a February 2004 letter from Petitioner offering to cooperate with the Government)).
Because Petitioner failed to raise his Sixth Amendment confrontation and jury-unanimity claims on direct appeal and cannot demonstrate cause, prejudice, or actual innocence, he is procedurally barred from ...