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Pimentel v. United States

May 21, 2008

DOMINGO PIMENTEL, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: John F. Keenan, United States District Judge

MEMORANDUM OPINION & ORDER

Petitioner Domingo Pimentel ("Pimentel") moves pro se pursuant to Rule 60(b) of the Federal Rules of Civil Procedure for relief from this Court's denial of his habeas petition. For the reasons set forth below, the motion is denied.

I. PROCEDURAL HISTORY

On January 29, 1991, the Government filed a three-count indictment against Pimentel, charging him with (1) interfering with the federally protected activities of a government informant by killing him, in violation of 18 U.S.C. § 245(b)(1)(B); (2) retaliating against the same informant by killing him, in violation of 18 U.S.C. § 1513(a)(2); and (3) jumping bail, in violation of 18 U.S.C. § 3146(a). The trial commenced on July 29, 1991 and concluded on August 2, 1991. The jury returned guilty verdicts against Pimentel on all three counts. He was sentenced to life imprisonment on count one, a concurrent term of ten years' imprisonment on count two, and fifteen months' imprisonment on count three to run consecutively to the other sentences.

Pimentel filed a timely notice of appeal, and on October 23, 1992, the Second Circuit affirmed the conviction. See United States v. Pimental [sic], 979 F.2d 282 (2d Cir. 1992), cert. denied, 508 U.S. 956 (1993).

On August 15, 1996, Pimentel filed a habeas petition pursuant to 18 U.S.C. § 2255, seeking to vacate his conviction. Pimentel argued that the Government failed to disclose exculpatory evidence in violation of its obligations under Brady v. Maryland, 373 U.S. 83 (1963). The Court denied the petition in an opinion and order dated February 9, 1998 (the "Opinion and Order"), holding that there was no Brady violation because the Government did not possess the alleged exculpatory evidence at the time of trial, and that the evidence was not exculpatory. See United States v. Pimentel, Nos. 96 Civ. 5891, 91 CR. 83, 1998 WL 50142 (S.D.N.Y., Feb. 9, 1998).

On April 1, 1998, the Court rejected Pimentel's application for a certificate of appealability ("COA"). On October 26, 1999, the Second Circuit also denied Pimentel the COA, finding that he had failed to make a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).

II. FACTS

A. The Counterfeiting Case

On August 8, 1988, a Government informant named Juan Andres Guerrero-Gonzalez ("Guerrero") identified Pimentel and his common-law wife Ronna Deziel as potential sources of counterfeit currency. The next day, while under the supervision of Secret Service agents, Guerrero met with Pimentel and Deziel in the Bronx and purchased approximately $5,000 in counterfeit currency using $1,000 in Secret Service undercover funds. On August 12, 1988, again under the supervision of the Secret Service, Guerrero met again with Pimentel and Deziel in Joyce Kilmer Park in the Bronx to negotiate the sale of a large sum of counterfeit United States currency. Upon Guerrero's signal to the Secret Service agents supervising these negotiations, agents converged upon the park and arrested Pimentel and Deziel. Following these arrests, the agents recovered approximately $105,000 in counterfeit currency from the trunk of Pimentel's car, which was parked nearby.

On September 7, 1988, both Pimentel and Deziel were released on bail. The conditions of the bail permitted Pimentel and Deziel to travel between the Southern District of New York and their home in Rhode Island. On November 1, 1988, Pimentel and Deziel pleaded guilty to dealing in counterfeit obligations of the United States in violation of 18 U.S.C. § 473. Both Pimentel and Deziel were continued on bail and ordered to appear for sentencing on January 4, 1989. As Pimentel later stipulated while on trial for Guerrero's murder, he never appeared for sentencing as required by his release conditions.

B. Guerrero's Murder

The testimony at Pimentel's trial for Guerrero's murder established the following. Immediately after their arrest for currency counterfeiting in August 1988, Pimentel told Deziel that Guerrero was a "snitch" and that "he would kill him if he ever found him." After his release on bail in September 1988, Pimentel along with his brother and Deziel drove to what they believed to be Guerrero's home. Guerrero was not at home and Pimentel did not see Guerrero again until November 2, 1988-the day after Pimentel pleaded guilty to the counterfeiting charge.

On November 2, 1988, Deziel and Pimentel went to Merriam Avenue in the Bronx, in a neighborhood where Pimentel's relatives lived, and where Pimentel and Deziel often visited before their counterfeiting arrest. Deziel and Pimentel planned to travel on that day to their home in Rhode Island, but first stopped at the home of Pimentel's uncle. While Deziel used the phone to inquire about transportation back to Rhode Island, Pimentel went to 1304 Merriam Avenue, where his cousin lived. 1304 Merriam is located at the top of a hill, on the corner of 169th Street in the Bronx.

A couple of hours later, near dusk, Pimentel returned to his uncle's apartment for Deziel. The couple left Pimentel's uncle's apartment, leaving their luggage there, and returned to the second floor apartment of Pimentel's cousin at 1304 Merriam Avenue. After a short visit, Pimentel and Deziel left the apartment, taking the stairs to the lobby area of the building. As they descended the stairs, Deziel saw Guerrero speaking with Mary Fitzpatrick, a woman Deziel knew from the neighborhood. Guerrero and Fitzpatrick were approximately 10-15 feet from the stairway in the front entrance to the lobby. Deziel was not certain if Pimentel, who was to her side and a few steps behind, had seen Guerrero. Deziel and Pimentel walked away from Guerrero. As they approached the side exit, which leads to ...


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