The opinion of the court was delivered by: Chin, D.J.
Pro se petitioner Thomas Marmolejas*fn1 moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on the ground that he was deprived of effective assistance of counsel. For the reasons set forth below, the motion is denied.
The Reyes heroin organization was a large-scale heroin distribution operation run by Juan ("Junior") Matos Reyes out of the Dominican Republic. (Tr.*fn2 335, 363, 375). Johan ("El Profesor") Pena-Perez and an individual known as El Potro ran the New York organization under Junior's direction. (Id. at 375, 377).
In May 1998, Andres Peralta, a member of the organization, hired Jaime Gomez, Marmolejas, and Johnny Martinez to kill Pena-Perez and Nilton ("Barbita") Duran. (Id. at 383-85). Junior wanted the two men killed because they had allegedly turned against the organization by robbing one of its own apartments and taking one or two kilos of heroin, between $30,000 and $100,000 in cash, and a beeper that the organization's customers used to contact it. (Id. at 377, 380, 382-83).
On May 25, 1998, Peralta met with Junior's brother, Robinson Reyes ("Robinson"), Gomez, Marmolejas, and Martinez at 230th Street and Bailey Avenue in the Bronx. (Id. at 385, 389). Gomez, Marmolejas, Martinez, and Robinson then made their first attempt to locate Pena-Perez and Duran. (Id. at 389, 392). They drove to a building in the Bronx and waited four or five hours for Pena-Perez and Duran to emerge from the building, but they did not. (Id. at 399-401).
On May 26, 1998, the next day, the same individuals met at 230th Street and Bailey Avenue again. (Id. at 402). Marmolejas drove the group to the same location where they had waited the previous evening, and they waited for Pena-Perez and Duran again, for six hours or more. (Id. at 334, 404, 424, 428). Finally, Pena-Perez and Duran exited the building, got inside a Toyota Camry, and drove away. (Id. at 434, 435, 437). The men in the van followed, and when the Camry stopped on Walton Avenue at a red light, Gomez took out a machine gun from a secret compartment in the van. (Id. at 441-42). Gomez got out, carrying the machine gun, and fired about 15 to 20 shots at the Camry. (Id. at 441-42, 455). The Camry took off, the van followed, and the Camry then crashed into another car. (Id. at 456-57). Duran exited the Camry and ran. (Id. at 457-58). Gomez had returned to the van, but when he saw Duran run from the Camry, he took a pistol and ran after Duran. (Id. at 459).
Several plainclothes officers from the New York City Police Department were on patrol in the area, and they immediately went to Walton Avenue after hearing the gunshots. (Id. at 100-01). There, they saw Gomez run inside 1729 Walton Avenue carrying a gun and heard shots being fired inside the building. (Id. at 102, 155). The officers followed Gomez into the building. (Id. at 102). They momentarily retreated before re-entering the building, where they encountered Gomez coming down the stairs. (Id. at 102-03). When Gomez saw the officers, he dropped his weapon and fled up the stairs. (Id. at 103). The officers chased him. (Id. 104-05). While Gomez was running up the stairs, the officers found Duran bleeding on the third floor landing. (Id. at 105, 115). Duran yelled "that guy just shot me" and pointed up the stairs. (Id. at 158). The officers caught Gomez on the roof and arrested him. (Id. at 159). Pena-Perez was found dead in the Camry on Walton Avenue. (Id. at 108, 131, 160).
In the meantime, Marmolejas and Robinson drove off and discarded the weapons. (Id. at 693-94). Later that evening, Marmolejas collected $37,000 from members of the organization for the shooting of Pena-Perez. (Id. at 694-95).
Marmolejas was arrested on June 4, 1998, inside the same van that he had driven to the murder scene. (Id. at 884, 909). The van had been painted a different color and re-stocked. (Id. at 856-61, 871-79). The arresting officers found the van's secret compartment, which could only be operated from the driver's seat. (Id. at 995-96). The compartment contained a .38 caliber revolver, a 9-millimeter Smith & Wesson semi-automatic pistol, a .22 caliber semi-automatic pistol, a 9-millimeter semi-automatic pistol, numerous rounds of live ammunition, and a silencer. (Id. at 864-65, 871-73, 876).
1. Proceedings in this Court
The original indictment was filed on October 12, 1999, but was superseded by subsequent indictments filed on October 16, 2001 and November 20, 2001. The second superseding indictment contained eight counts. Count One charged the defendants with conspiracy to commit robbery and extortion, in violation of 18 U.S.C. § 1951. Count Two charged conspiracy to commit murder-for-hire and Count Three charged substantive murder-for-hire, both in violation of 18 U.S.C. § 1958. Count Four charged conspiracy to distribute and possess with intent to distribute one kilogram and more of heroin, in violation of 21 U.S.C. § 846. Count Five charged defendants with murder while engaged in a major drug conspiracy, in violation of 21 U.S.C. § 848(e)(1)(A). Count Six charged defendants with using and carrying firearms in relation to crimes of violence, in violation of 18 U.S.C. § 924(c). Count Seven charged murder in the course of a § 924(c) violation, pursuant to 18 U.S.C. § 924(j), and Count Eight, filed against Marmolejas alone, charged possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k).
Valerie Amsterdam represented Marmolejas at trial and sentencing. Marmolejas pled not guilty on November 27, 2001, and the trial of the charges against him and Jaime Gomez began on January 14, 2002. At trial, Marmolejas testified that he was completely unaware of the plan to kill Pena-Perez and Duran; he thought the men he was driving in the van were going to get a beeper back from someone. (Tr. 1224-27, 1278). On February 1, 2002, the jury found Marmolejas guilty on all eight counts. On July 25, 2002, I vacated the guilty verdict on Count Five, finding that the jury's guilty verdict on that count was inconsistent with its finding with respect to Count Four that the Government failed to prove that Marmolejas knew the conspiracy involved a kilogram or more of heroin. See United States v. Gomez, 210 F. Supp. 2d 465, 479 (S.D.N.Y. 2002).
On September 19, 2002, Marmolejas was sentenced on Counts One, Two, Three, Four, Six, Seven, and Eight to life imprisonment, followed by a consecutive ten-year term and three years' supervised release, and $700 in special assessments.
With Amsterdam as his counsel, Marmolejas filed a notice of appeal to the United States Court of Appeals for the Second Circuit on September 25, 2002. Amsterdam filed an appellate brief on Marmolejas's behalf on May 6, 2003. One year later, on May 6, 2004, oral argument was held on Marmolejas's direct appeal. Amsterdam filed a post-argument letter on behalf of Marmolejas on May 10, 2004. On October 21, 2004, the Second Circuit affirmed Marmolejas's conviction and sentence.*fn3 See ...