The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court
On October 17, 2006, petitioner Frank J. "Butchie" Bifulco filed the instant habeas corpus petition, pursuant to 28 U.S.C. § 2255, seeking to vacate, set aside, or modify his sentence. Petitioner alleges that his trial counsel, Anthony J. Lana, Esq., failed to provide effective assistance of counsel as required by the Sixth Amendment. More specifically, petitioner alleges that Mr. Lana prevented him from testifying in his own defense and failed to inform him of his right to do so. Petitioner further claims ineffective assistance by his appellate counsel, Thomas Theophilus, Esq., for his failure to file supplemental briefs regarding issues raised by the allegedly improper admission of a hearsay statement in violation of Crawford v. Washington, 541 U.S. 36 (2004). Finally, petitioner claims that Mr. Theophilus was ineffective because he failed to request a remand pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005).
For the reasons stated herein, the Court denies petitioner's § 2255 petition.
Petitioner was convicted after jury trial on April 10, 2003, of conspiracy to commit mail and wire fraud (18 U.S.C. § 371), wire fraud (18 U.S.C. § 1343), mail fraud (18 U.S.C. § 1341), and use of fire in commission of a federal felony (18 U.S.C. § 844(h)) for his role in the destruction of a vehicle in order to aid a third party in avoiding milage overage charges on her lease. On July 24, 2003, this Court sentenced the petitioner to the statutorily-mandated sentence of 120 months' incarceration on the § 844 count, and to ten months each on the remaining three counts to be served concurrently with one another, but (as required by § 844(h)) consecutively to the 120-month sentence imposed for the § 844 count.
Thus, petitioner's total sentence was 130 months.
Petitioner appealed his conviction, and on April 11, 2005, the Second Circuit Court of Appeals affirmed the judgment. 127 Fed.Appx. 548 (2d Cir.), cert. denied, 126 S.Ct. 462 (2005).
A. Effective Assistance of Trial Counsel
Petitioner claims that his trial counsel forbade him from testifying on his own behalf. If this were true, it would constitute a violation of petitioner's Sixth Amendment rights. In order to establish such a violation, however, the petitioner cannot rely solely upon "a bare, unsubstantiated, thoroughly self-serving and none-too-plausible statement that his lawyer (in violation of professional standards) forbade him to take the stand." United States v. Castillo, 14 F.3d 802 (2d Cir. 1994) (citation omitted).
Petitioner has presented no facts, documentation, or any other evidence tending to support his allegation that he "repeated[ly] request[ed] to testify on his own behalf," but that counsel "would not permit him to testify" despite petitioner 's "protestation."(Bifulco Affidavit I at 1-2). In fact, trial counsel, in a sworn affidavit, states that it is his routine habit and practice to advise a client of his right to testify, and although he does not specifically recall advising petitioner of this right, he is confident he did so in this case as well. Under Rule 406, of the Federal Rules of Evidence, evidence of habit or routine may be used to show that a person's actions in a particular occasion were in conformity with the general routine. Petitioner has offered no evidence to rebut Mr. Lana's affidavit. Unsubstantiated innuendo cannot sustain a claim of ineffective assistance of counsel.
Even if petitioner were able to demonstrated that Mr. Lana failed to inform him of his right to testify or had prevented him from testifying at trial, Strickland v. Washington requires that he also demonstrate that his testimony would have influenced the outcome of the trial. See Rega v. United States, 263 F.3d 18 (2d Cir. 2001); Nelson v. United States, 380 F. Supp.2d 100 (N.D.N.Y. 2005). Petitioner has failed to make such a showing.
Petitioner claims that he was eating dinner at a friend's house "approximately 20 to 30 minutes away" "a few hours" before going to the crime scene (Bifulco Memorandum I at 5), and that he did not have enough time to meet Mr. Albert, his partner in this crime, at the doughnut shop, buy cigarettes at a convenience store, obtain matches at a nearby bar, and still make it to the Home Depot parking lot where the vehicle was ignited. Petitioner fails to explain, however, how a half-hour drive a few hours before the crime would preclude him from the itinerary established by the United States at trial through the testimony of Angelo Albert. Mr. Albert's testimony was corroborated by video surveillance which recorded Mr. Bufulco at the Red Apple Quick Fill convenience store purchasing cigarettes. Mr. Albert testified that petitioner sought to purchase matches from the convenience store, but the store did not have any, so the petitioner had to go to a nearby bar. This was corroborated by the convenience store manager. Finally, Mr. Albert testified that ...