The opinion of the court was delivered by: John Gleeson, United States District Judge
Cecilio Reyes, incarcerated at the Allenwood Federal Correctional Institution, petitions this Court pro se for relief under 28 U.S.C. § 2255, arguing that his trial counsel Michael K. Schneider and his appellate counsel Richard E. Kwasnik were both ineffective, thus depriving him of his right to counsel under the Sixth Amendment. Reyes alleges that Schneider (1) failed to move to dismiss the charges against him on speedy trial grounds; (2) made improper concessions at trial due to his failure to inform Reyes of, or allow him input regarding, the defense strategy; (3) failed to inform Reyes that he had a right to testify in his own defense; (4) failed to call two individuals, Carlos Adon and Rosa P. Valdez, as defense witnesses; (5) failed to object to certain testimony by government witnesses and to the admission of a sample of imitation heroin as physical evidence; and (6) failed to object to allegedly erroneous jury instructions. Reyes further claims that Kwasnik (1) failed to consult with him regarding the issues on appeal and (2) failed to advise him that he had a right to petition the Supreme Court for a writ of certiorari following the decision of the court of appeals. The government denies many of Reyes' factual assertions and argues that the rest do not constitute ineffective assistance of counsel. The petition is denied for the reasons stated below.
Cecilio Reyes was arrested on September 29, 2004 due to a transaction with government cooperating witness Wilfredi Pino-Correa, Gov.'s Mem. 2, who had just been arrested in connection with a conspiracy to import a kilogram of highly concentrated heroin from Puerto Rico into the United States. Trial Tr. 247-60. The government's evidence established that the transaction between Pino-Correa and Reyes was a controlled delivery of imitation heroin -- pancake mix had been substituted for the heroin seized in Puerto Rico -- from Pino-Correa to Reyes. Gov.'s Mem. 3. It further established that Pino-Correa sold Reyes a sample of imitation heroin which Reyes took to be a small portion of the kilogram from Puerto Rico for Reyes to test, as a preliminary step to Reyes buying the entire kilogram. Trial Tr. 17-24. Although his trial and appellate attorneys both conceded that Reyes intended to buy the sample, Schneider Aff. 2; Gov.'s Mem. Ex. C 1, Reyes in this petition maintains that he only engaged in an innocent barter transaction in which he sought to sell his car to Pino-Correa in exchange for a motorcycle and money, Pet'r's Mem. 2.
Reyes was indicted on October 29, 2004. In light of plea negotiations, the court excluded speedy trial time from November 10, 2004 through December 17, 2004. Reyes made a motion to sever the charges against him from those against Pino-Correa on January 1, 2004, which was denied on January 14, 2005. Due to ongoing plea negotiations, the court excluded speedy trial time from January 14, 2005 through February 4, 2005. Gov.'s Mem. 4-5. On February 4, 2005, trial was scheduled from March 7, 2005 and the case was transferred to me from the previous district judge. Shortly before trial, I granted a motion to adjourn without specifying a date due to a medical emergency involving the government's attorney.
At a status conference on March 18, 2005, both parties agreed that the case was ready for trial. When Schneider was asked whether he would prefer that Reyes be tried before or after an upcoming three-to-four-week trial scheduled before me, Schneider said, "Despite the shortness of this case, it's serious for Mr. Reyes. He has no record. It's a ten-year count. So I'm happy to wait." March 18, 2005 Status Conference Tr. at 4. Accordingly, both parties consented to go after the other trial, setting Reyes' trial date as May 16, 2005. A final adjournment was granted between May 16, 2005 and May 23, 2005. After a two-day trial, Reyes was found guilty of attempted possession of heroin with intent to distribute. Reyes' conviction was affirmed on appeal. United States v. Pino-Correa, 185 F. App'x 65 (2d Cir. 2006).
Reyes makes several claims regarding his counsel's alleged deficient performance. First, Reyes claims Schneider erred in failing to move to dismiss the indictment on the ground that delay in bringing him to trial had violated Reyes' statutory right to a speedy trial.
Pet'r's Mem. 14. It is undisputed that Schneider did not make such a motion. Second, Reyes claims that Schneider never informed him of the defense strategy until Reyes heard it at trial, which Reyes claims is why Schneider inaccurately conceded that Reyes intended to buy a sample of heroin. Pet'r's Aff. 2. Schneider denies this, stating in an affirmation that he discussed trial strategy extensively before the trial and that Reyes agreed with his trial strategy, including the concession that Reyes intended to purchase a small amount of heroin. Schneider Aff. 1-2. Reyes asserts in his reply that Schneider's affirmation is untruthful. Pet'r's Reply, Sept. 14, 2007, 4-9.*fn1
Third, Reyes claims that Schneider prevented him from testifying in his own defense by never advising him that he had a right to testify. Pet'r's Aff. 3. Schneider states that he specifically recalls advising Reyes that he had a right to testify. Schneider Aff. 2. Schneider also claims that Reyes' various accounts of the events leading up to his arrest were inconsistent not only with the evidence but also with each other, and also that Mr. Reyes did not question the trial strategy at a meeting after the verdict and only later criticized it. Id. at 3. Reyes vigorously denies this. Pet'r's Reply, Sept. 14, 2007, 4-9.
Fourth, Reyes claims that Schneider erred in failing to interview two individuals who were present at the transaction, Carlos Adon and Rosa Pontiers Valdez, and then call them as witnesses. Pet'r's Mem. 12. Schneider affirms that he believed himself to be ethically barred from interviewing Adon without consent of Adon's counsel, as Adon had been arrested and charged in the case but not indicted. Since Adon's counsel denied permission to interview him, Schneider felt it would be unwise to call Adon as a witness without being able to speak to him first. Schneider Aff. 2. Schneider additionally felt that Adon's testimony would not be helpful to the defense due to Adon's own involvement in the transaction. As to Valdez, Schneider denies that Reyes ever asked him to call her as a witness, and also states that he tried to locate her but without success. Schneider Aff. 3.
Fifth, Reyes alleges that Schneider erred in failing to object to testimony regarding drugs seized from Pino-Correa's father in Puerto Rico, in failing to object to the testimony of the government's expert witness, and in failing to object to the admission of the imitation heroin sample into evidence. Pet'r's Mem. 12-13. It is undisputed that Schneider did not make such objections. Sixth, Reyes claims that Schneider was ineffective in failing to object to a jury instruction regarding the elements of possession with intent to distribute when Reyes was never proved to have possessed any drugs. Pet. 5.
Reyes claims that his appellate counsel Kwasnik was ineffective for failing to consult with him about the issues to be raised on appeal. Pet'r's Mem. 14-15; Pet'r's Aff. 17. Kwasnik denies this, claiming that he and Reyes discussed the issues he would raise on appeal on several occasions. Gov.'s Mem. Ex. C 1. Reyes also claims that Kwasnik erred in failing to advise him that he could petition the Supreme Court for a writ of certiorari. Pet'r's Mem. 15. Kwasnik acknowledges such discussions did not take place. See Gov.'s Mem. Ex. C 2 ("July 6, 2006 I sent Mr. Reyes copy [sic] of the decision of the Second Circuit and advised that I would take no further action.").
The Supreme Court has established the following standard for claims that defense counsel ...