The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Rafael Rodriguez, currently an inmate at the Federal Correctional Institution at Fort Dix, New Jersey, brings this petition for habeas corpus pursuant to 28 U.S.C. § 2255, to vacate his sentence imposed by order of this Court. On February 4, 2005, after a jury trial and verdict of guilt of conspiracy to distribute and possess with intent to distribute one kilogram and more of heroine, in violation of 21 U.S.C. § 846, 21 U.S.C. § 812, and 21 U.S.C. § 841((a)(1), and (b)(1) A)), petitioner was sentenced to a prison term of 188 months. Petitioner challenges his sentence on grounds that: (1) his trial and appellate counsel were ineffective; (2) the District Court committed reversible error by instructing the jury on a drug amount not proven at trial; (3) the Court violated the Sixth Amendment by applying a four level enhancement for a leadership role not proven by the jury, and (4) a letter written by Assistant United States Attorney Jessica A. Roth to the Honorable Denise Cote proves that he could not have been in possession of as much as one kilogram or more of heroin.
A. Facts Underlying the Conviction
This case involves importations of heroin. Angel Boscan ("Boscan"), a Venezuelan heroin supplier, supplied heroin hidden in the linings of clothing and the soles of shoes. Giancarlo Occhipinti ("Occhipinti"), a drug courier, was to transport these items from Venezuela to New York, and to deliver them to persons designated over the phone by Angel Boscan, the supplier in Venezuela. Occhipinti was discovered by federal agents en route from Venezuela to New York City, and immediately agreed to cooperate in a controlled delivery.
Occhipinti took a room at the Crown Plaza Hotel in Queens, New York on September 23, 2003, called Boscan, and was instructed to make two separate deliveries: a pair of shorts and a pair of shoes in exchange for $10,000 to petitioner; and a pair of pants and a vest to another buyer.
The next day, at approximately 4:10 p.m., petitioner called Occhipinti and asked him to come to the hotel lobby. Occhipinti met petitioner, escorted him to his room, and delivered the shorts and shoes containing the heroin in the linings and soles. Petitioner told Occhipinti that he would make payment "downstairs." As Occhipinti and petitioner were about to go downstairs, petitioner called his associate Geronimo Nunez ("Nunez"). The DEA arrested petitioner when he left the hotel room, seizing the heroin-laden clothing and shoes, his cellular telephone, beeper, and numerous pieces of paper with names, numbers, and an apparent code written on them. The DEA also arrested Nunez and seized $10,000 from his car. The heroin contained in the shorts and shoes delivered to petitioner, and the pants and vest intended to be delivered to another, weighed 1.7356 kilograms.
At trial, the Government used the cooperating testimony of three witnesses to prove that petitioner had been involved in drug trafficking before this shipment. Audin Jimenez ("Jimenez"), Vladimir Tavarez-Garcia ("Tavarez-Garcia"), and Lincoln Minaya ("Minaya") testified that petitioner was a primary source of heroin for their organization, mainly from the Dominican Republic, that occasionally, he helped them package the heroin for distribution, and that his nephew, Henry Salcedo ("Salcedo"), acted as petitioner's surrogate when petitioner was out of the country.
Salcedo then was arrested in New Jersey and heroin in his possession was seized, creating financial stress that his mother tried to allay by pressing others who owed money to Salcedo. Lincoln Minaya, who was the object of some of these efforts, testified that he called petitioner and advised him to return to New York to protect his business interests. Petitioner returned and tried to arrange for more shipments of heroin, including the one that was intercepted. Prior to meeting Occhipinti at the Queens hotel, petitioner called his associates and told them a new shipment had arrived and to be prepared to meet to cut and package the heroin.
B. The Arguments of Error and Procedural Background
Petitioner complains that testimony of drug trafficking prior to March 2003 was inadmissible. He complains also that the government failed to prove the requisite amount of heroin in the seized shipment, for he should not have been charged with the heroin lined into the pants and vest that were intended to be delivered to another buyer.
The jury delivered the verdict of guilty on February 4, 2005, finding specifically that petitioner was responsible for more than one kilogram of heroin. At sentencing, I found that petitioner was responsible for one to three kilograms of heroin, not the three to ten kilograms urged by the Government, that he was leader of a conspiracy involving at least five people, and that the Sentencing Guidelines yielded a term of custody of 188 to 235 months. I sentenced petitioner to 188 months of imprisonment finding that just punishment under the considerations presented under 18 U.S.C. § 3553(a).
Petitioner, represented by new counsel, made three arguments of error on appeal: (1) the refusal to admit an exculpatory statement by Salcedo to an investigator; (2) the failure to immunize Salcedo so that he could testify, and (3) the delivery of a falsus in uno charge. Petitioner filed a pro se supplemental brief raising four alleged errors: (1) admitting testimony by the Government's cooperating witnesses about drug trafficking activity with Rodriguez prior to March 2003, (2) thereby constructively amending the indictment; (3) adding four levels to the Sentencing Guidelines because petitioner was an organizer or leader was not found by the jury beyond a reasonable doubt, and (4) insufficient evidence proving at least one kilogram of heroin. On June 27, 2006, the Court of Appeals issued its decision denying all seven claims. United States v. Rodriguez, 186 F. App'x 141 (2d Cir. 2006). Petitioner did not file a petition for writ of certiorari to the United States Supreme Court.
Petitioner then filed a habeas corpus claim with this court pursuant to 28 U.S.C. § 2255, on September 7, 2007. In his habeas petition, petitioner claims that: (1) his trial and appellate counsel were ineffective; (2) the District Court committed reversible error by instructing the jury on a drug amount not proven at trial; (3) the Court violated the Sixth Amendment by applying a four level enhancement for a leadership role not proven by the jury, and (4) a letter written by Assistant United States Attorney ...