The opinion of the court was delivered by: Chin, D.J.
Pro se defendant Luis Valpais *fn1 has filed tow motions pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. One was filed on September 19, 2005 and docketed in Vasquez v. United States, No. 05 Civ. 4373 (DC). That motion challenges his conviction and sentence in a criminal matter before the Honorable Michael B. Mukasey, United States v. Vasquez, 96 Cr. 465 (MBM), and was reassigned to me. The other was filed on June 13, 2006 and docketed in Vasquez v. United States, No. 05 Civ. 4374 (DC), purportedly relating to an underlying criminal matter that was a separate case before me, United States v. Maisonet, No. 97 Cr. 817 (DC). In fact, however, the second motion relates only to Valpais's conviction and sentence in the matter before Judge Mukasey. Thus, the Court construes the June 13, 2006 motion as an amendment to the September 19, 2005 motion.*fn2
Following a jury trial before Judge Mukasey, Valpais was convicted on two counts of murder in aid of racketeering, one count of conspiracy to murder in aid of racketeering, and one count of use of a firearm during and in relation to a crime of violence. He was sentenced principally to life terms for each of the murders, 120 months for conspiracy to murder, and 60 months on the firearms charge, with the first three to be served concurrently.
For the reasons that follow, the motion, as amended, is denied.
On July 5, 1991, Felix Santiago, a/k/a "Felo," and his wife Cecilia Verdejo, a/k/a "Mamita," were shot to death in a car on Hunt's Point Avenue in the Bronx, New York. Santiago and Verdejo ran a heroin distribution ring in Hunt's Point and sold heroin under the brand name "USA." (Tr. 67-70).*fn3 The murders were committed in retaliation for the victims' alleged robbery of their heroin supplier, who provided the money for the murders. (Id. at 338). Jose "Tito" Sanchez, a rival drug dealer who sold heroin under the brand "Too Hot to Handle," hired Valpais to commit the murders. (Id. at 244, 318-21, 335).
At trial, several Government witnesses testified to Valpais's involvement in the murders of Santiago and Verdejo. Jose Serrano, a former drug dealer and bodyguard for Sanchez, testified that he accompanied Sanchez to negotiate payment for the murders with Valpais, whom Serrano knew as "China Man," on the same day that the murders took place. (Id. at 317-21). Another former associate of Tito Sanchez, Kelvin Lyons, witnessed Sanchez paying Valpais for the murders. (Id. at 470). Following his arrest, Valpais confessed his involvement in the crime to a fellow inmate, Ricardo Nieves, who testified that Valpais admitted that he was hired by Sanchez to murder Santiago and Verdejo. (Id. at 556).
The Government also called several eyewitnesses to the shootings. Maria Rosario, a former drug dealer who worked for the victims, was standing next to the car and speaking to Verdejo when the victims were shot. (Id. at 79). An undercover police officer also witnessed the shootings from a distance and chased Valpais, who was able to elude him. (Id. at 25-26). Additionally, immediately after the shootings, Kelvin Lyons saw Valpais running from the police, enter Lyons's apartment building, and later re-emerge wearing different clothes. (Id. at 463-67).
1. Proceedings in this Court
The indictment was filed on June 19, 1996. A superseding indictment was filed on December 19, 1996, containing five counts. Count One charged Valpais with conspiracy to commit murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(5). Counts Two and Three charged Valpais with committing the murders of Santiago and Verdejo in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1). Count Four charged use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). Count Five charged Valpais with possessing ammunition in, and affecting, interstate commerce while having a prior felony conviction, in violation of 18 U.S.C. § 922(g).
Valpais sought to introduce at trial statements made by an individual named Robert Ayala as exculpatory evidence. Ayala was arrested on July 13, 1991 -- eight days after the murders of Santiago and Verdejo -- for a minor theft offense. (Gov't Letter of 5/11/98 at 1, 2).*fn4 In an apparent attempt to avoid being charged after his arrest, Ayala provided information to the police about the murders. (Id. at 2). In a videotaped statement, Ayala admitted to soliciting a man named "Al" to kill Santiago and Verdejo on behalf of a man named "Cano," and to having witnessed "Al" commit those murders. (Id. at 1). The Bronx District Attorney's Office prosecuted Ayala for conspiracy to commit murder based primarily on the taped confession. (Id.). Before Ayala's trial, prosecutors advised the court and defense counsel that "Al," the gunman identified by Ayala, had been murdered on July 14, 1991. (Id.).
The Government supplied Valpais's attorney, Martin J. Siegel, with copies of Ayala's statement and trial transcript, as well as a notice regarding Ayala's then-location. (Id.). The Government also notified Siegel that Ayala made statements to the police after his conviction that contradicted his videotaped statement. (Id. at 1-2). Those statements consisted, in substance, of Ayala's identification of Valpais, and not "Al," as the gunman who murdered Santiago and Verdejo. (Id.).
At a pretrial conference on May 28, 1998, Judge Mukasey granted Siegel permission to depose Ayala, and in an Order dated June 4, 1998, permitted Valpais to attend the deposition. For unknown reasons Valpais elected not to proceed with the deposition, and Siegel so advised the Court on June 8, 1998. (See Order dated 6/9/98). Almost six months later, Valpais changed his mind and requested that Ayala be produced as a defense witness at trial. (Siegel Letter to Court dated 12/2/98). Siegel advised the Court that he had interviewed Ayala for four hours and informed Valpais of the "sum and substance" of that discussion, "but nevertheless" Valpais wanted Ayala to testify at trial. (Id.).
On December 3, 1998, Siegel had an ex parte conference with Judge Mukasey, without Valpais present, to discuss the Ayala issue. Based on his interview, Siegel advised the Court that Ayala would testify that it was Valpais who committed the murders. (Siegel Tr. at 4). The Court reminded Siegel that the decision to call Ayala as a witness belonged to counsel, not Valpais. (Id. at 2-3, 5-10). During the trial, which took place from January 4 through January 11, 1999, Valpais delivered a handwritten note to the Court expressing his desire to call Ayala either as a defense witness or a hostile witness, claiming that Ayala's testimony would serve to exculpate him. (Def.'s Letter, docket entry # 68).*fn5 Ultimately, Ayala was not called as a witness.
At trial, Valpais elected to forego his right to testify. He confirmed in Court that Siegel had fully apprised him of his rights to call witnesses and testify on his own behalf. (Tr. 688-89). The defense rested without calling any of its own witnesses. (Id. at 689). The jury convicted Valpais on Counts One, Two, Three, and Four. Count Five was severed for trial and dismissed after Valpais's conviction on the other counts.
On December 17, 1999, Valpais was sentenced to life imprisonment followed by a consecutive five-year term, five years' supervised release, ...