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Munoz v. United States

July 28, 2008

CESAR MUNOZ, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Glasser, United States District Judge

MEMORANDUM AND ORDER

TABLE OF CONTENTS

BACKGROUND ............................................................................................................................ 3

I. Money Laundering Transaction and Arrest ........................................................................ 3

A. Contact with Agent Herrera .......................................................................................... 3

B. Contact with Detective Cruz and Arrest ....................................................................... 8

II. Trial and Sentencing ......................................................................................................... 11

III. Appeal and Section 2255 Petition ..................................................................................... 14

DISCUSSION ............................................................................................................................... 15

I. Pizzi's Alleged Ineffective Assistance .............................................................................. 18

A. Ineffectiveness Prior to Trial ...................................................................................... 18

B. Ineffectiveness at Trial and at Sentencing .................................................................. 33

1. Agents' Testimony Regarding Code Words ......................................................... 33

a. Rule 701 .......................................................................................................... 35

i. The Government did not Establish That the Agents' Testimony was Rationally Based Exclusively on Their Firsthand Perception .................. 36

ii. The Testimony was not Helpful to the Jury in Determining the Facts ...... 42

iii. The Testimony was Based on Technical or Specialized Knowledge ........ 45

b. Rule 702 .......................................................................................................... 50

c. Harmless Error Analysis ................................................................................. 54

2. Radwanski's Testimony Regarding the Ion Scan Device ..................................... 58

3. Government's "Misrepresentations" in Summation and at Sentencing ................. 59

II. Alleged Defects in Appellate Proceedings ....................................................................... 64

A. Alleged Violations of Munoz's Right to Appellate Counsel ...................................... 64

1. The Court's Allegedly Defective Instruction Regarding Munoz's Right to Appointed Counsel................................................................................................ 65

a. The Obligation of Federal District Courts to Inform Defendants of the Right to Court-Appointed Appellate Counsel............................................................... 66

b. Analysis of This Court's Instruction to Munoz at Sentencing ........................ 77

c. Harmless Error Analysis ................................................................................. 80

2. Alleged Representation on Appeal by Non-Lawyer ............................................. 83

B. Palomares's Alleged Ineffective Assistance ............................................................... 85

1. The Batson Issue ................................................................................................... 88

2. Admissibility and Use of Agent Ammirati's Expert Testimony ........................... 93

a. Ammirati's Testimony and the Government's Summation ............................. 94

b. Analysis of Munoz's Ineffective Assistance Claims ....................................... 99

i. Admissibility of Agent Ammirati's Testimony ......................................... 99

ii. Government's Use of Agent Ammirati's Testimony in Summation ....... 101

3. Admission of Ion Scan Evidence ........................................................................ 108

III. Appointment of Counsel ................................................................................................. 115

IV. A Certificate of Appealability Shall Be Granted ............................................................ 116

CONCLUSION ........................................................................................................................... 117

Petitioner Cesar Munoz has moved pursuant to 28 U.S.C. § 2255 ("Section 2255") for an order vacating his conviction and sentence in the underlying criminal action, United States v. Munoz, 04-CR-473(ILG), for a new appeal, and for other relief. Mr. Munoz argues that his right to effective counsel was violated at trial and on direct appeal from his conviction, and that his right to appellate counsel was effectively denied. For the reasons stated below, Mr. Munoz's petition is dismissed in part. An evidentiary hearing shall subsequently be scheduled at which evidence in support of Mr. Munoz's remaining claims may be presented.

BACKGROUND

The following statement of the facts underlying the pending petition is drawn from the evidence introduced at trial and, where relevant, from other hearings and the parties' written submissions in the underlying criminal action.Some testimony introduced at trial that is not relevant to Mr. Munoz's arguments in the pending Section 2255 petition has been omitted from the Court's summary.

I. Money Laundering Transaction and Arrest

A. Contact with Agent Herrera

On the evening of December 26, 2002, Special Agent Miguel Herrera of the Department of Homeland Security, Immigration and Customs Enforcement, a member of the El Dorado Task Force which investigates narcotics trafficking and money laundering in the New York metropolitan area, received a call on a cellular telephone that he used in his undercover capacity from an individual later identified as the petitioner, Cesar Munoz.*fn1 Mr. Munoz did not give his name, but informed Agent Herrera that he was calling "on behalf of Jorge," and asked for "Angel," which was Agent Herrera's undercover name. (Munoz Ex. G ("Tr.") at 167.)*fn2 Agent Herrera acknowledged that he was "Angel," and the petitioner stated that he had "five hundred," which the agent took to mean $500,000 in cash, to transfer. Agent Herrera suggested that Mr. Munoz call back the next day. At approximately 9:30 A.M. on the following morning, Friday, December 27, 2002, Mr. Munoz contacted the agent for the second time, using the introduction "on behalf of Jota." (See Munoz Ex. H (transcript of recorded call introduced as Government Exhibit 2A at trial).) Agent Herrera and Mr. Munoz discussed a location for the money transfer in the area of Northern Boulevard between 70th and 90th Streets in Queens at approximately 10:30; the agent explained at trial that he preferred that neighborhood because it is "surveillance friendly." (Tr. at 197.) The petitioner was initially reluctant to agree to that location, saying several times that he did not know Queens and asking Agent Herrera if the meeting could take place on 94th Street rather than between 70th and 90th. Eventually, however, he deferred to the agent's preference.

Approximately one hour later, Mr. Munoz contacted Agent Herrera again. (See Munoz Ex. I (transcript of recorded call introduced as Government Exhibit 3A at trial).) The agent directed him to the corner of 70th Street and Northern Boulevard, and asked him to describe the automobile he was driving. The petitioner stated that he was driving a gold Jeep, and subsequently arrived at the agreed-upon location in a gold Jeep with Rhode Island license plates, which Agent Herrera later determined was registered to Mr. Munoz. When he arrived, Mr. Munoz telephoned Agent Herrera again and told him to walk across the street to where the Jeep was parked. When Agent Herrera arrived at the Jeep, expecting to complete the money transfer, the petitioner informed him that he did not have the money with him, but had been instructed to meet with the agent in person for the purpose of agreeing upon another meeting location where the transfer could be made. Agent Herrera was upset by the fact that Mr. Munoz had come to the meeting without the money and informed the petitioner that he, Agent Herrera, would have to call his bosses "down South," which he explained at trial was a reference to the narcotics trafficking organization in Colombia for which Agent Herrera supposedly worked, to let them know what had happened. (Tr. at 201-02.) The petitioner explained that he had wanted to meet in person so as to avoid discussing the details of the transaction over the phone, and proposed a future meeting in the Bronx to complete the transaction. Agent Herrera testified that he was reluctant to let Mr. Munoz dictate the location of the later meeting, but ultimately agreed to meet in the Bronx provided that the meeting took place in the vicinity of a restaurant called Jimmy's Bronx Cafe, which he testified at trial is a surveillance friendly location. Mr. Munoz wanted to schedule the subsequent meeting for 3:00, saying that he needed time to obtain the money, but Agent Herrera informed him that that was too late because the agent was leaving for Miami later in the day, and instructed Mr. Munoz to call within half an hour so that they could complete the transaction by 12:30 or 1:00. Agent Herrera also testified that Mr. Munoz proposed transferring the money at their next meeting by exchanging cars-i.e., Mr. Munoz would leave the money in his car and would leave the keys inside that vehicle for Agent Herrera, while the agent would leave the keys to his car for Mr. Munoz. Agent Herrera informed Mr. Munoz that he was not comfortable with that proposal. (Id. at 200.)

Mr. Munoz did not call back within half an hour of his meeting with Agent Herrera, but approximately one hour later, Agent Herrera received a call from an unknown male. (See Munoz Ex. J (transcript of recorded call introduced as Government Exhibit 4A at trial).) The unknown individual identified himself as calling on behalf of "La Mona," whom Agent Herrera identified at trial as a target of the money laundering investigation based in Colombia. (See Tr. at 206-07.) After having established contact with Agent Herrera, the unidentified male proposed to call the agent again in one or two hours to "decide where we can meet, brother so we can go eat lunch." (Munoz Ex. J at 2.) The agent testified at trial that "go eat lunch" was a coded reference to exchanging money, used because money launderers do not speak explicitly over the telephone in case law enforcement officers are eavesdropping on their conversations. (Tr. at 208.) Agent Herrera agreed with the plan but insisted that he did not want to be "played with again," because he had "other things to do." (Munoz Ex. J at 2.) The unidentified man said that he understood, but when Agent Herrera attempted to schedule a meeting for 12:30, the unidentified man said that that was too early because he was still far away from the agent's location and needed to "get the clothes ready and all so we can travel, brother go to work." (Munoz Ex. J at 3.) Agent Herrera testified that these statements were coded references to preparing the money for transport and exchange. (Tr. at 209.) The conversation ended with the unidentified man promising to call Agent Herrera again at 12:30 to set up a meeting at which to make the transfer.

At 12:38, the unidentified man called Agent Herrera again. (See Munoz Ex. J (transcript of recorded calls introduced as Government Exhibits 5A-7A at trial).)*fn3 He told Agent Herrera that he would have to wait longer for the transfer, and proposed meeting at 3:00 in the afternoon. Agent Herrera explained that he could not make the transfer so late, because the bank closes at 3:00 and he did not want to be stuck with "that"-- i.e., the $500,000-- over the weekend. (See Tr. at 216.) The unidentified man said that he understood, and the two agreed to wait until the following week to complete the transfer. Shortly after that conversation was completed, Agent Herrera received a call from a second unidentified man, calling from the same telephone number that the petitioner had used to call Agent Herrera earlier in the day. (See Munoz Ex. L (transcript of recorded call introduced as Government Exhibit 8A at trial).) The second unidentified man introduced himself as "Jorge" and handed the phone over to the petitioner, whom he referred to as "Tony." Mr. Munoz reiterated that he was calling "on behalf of Jota," and indicated that he was currently "up there" where he and Agent Herrera had agreed to meet-- i.e., at Jimmy's Bronx Cafe in the Bronx. (Tr. at 222.) Agent Herrera responded that he could not "stay with . . . those little papers" over the weekend, and Mr. Munoz reminded him not to talk over the phone. The agent then insisted that he could not wait until 3:00 to complete the transaction because the banks would close and he could not "keep that" for the weekend; Mr. Munoz indicated that he understood and the two agreed to postpone the transaction until the following week.

After December 27, Agent Herrera was out of the city on vacation. He took his undercover cellular phone with him, and on Sunday, December 29, received another call from the petitioner seeking to schedule a meeting at which to consummate the transaction the next day. Agent Herrera informed Mr. Munoz that he was out of town and would be unable to attend the meeting, but that his cousin might be able to meet with the petitioner. After speaking with Mr. Munoz, Agent Herrera contacted other agents of the El Dorado Task Force in New York to inquire whether they could arrange for an agent to pose as his cousin in the meeting with Mr. Munoz the following day. The agents confirmed that this could be arranged, and when Mr. Munoz later called Agent Herrera again, the agent informed Munoz that Herrera's cousin would contact him the next day to arrange a meeting.

B. Contact with Detective Cruz and Arrest

The officer designated to assume the role of Agent Herrera's "cousin" was Detective Eric Cruz of the New York City Police Department. Detective Cruz was assigned to the Department's Organized Crime Investigation Division and in that capacity worked with the El Dorado Task Force on money laundering investigations. Detective Cruz testified that on December 29, 2002, he received a call from Agent Herrera regarding the situation with the petitioner. Agent Herrera provided Detective Cruz with the petitioner's telephone number and the phrase "Jota on behalf of Angel" with which to identify himself, and explained that Detective Cruz was to meet the petitioner in the vicinity of Jimmy's Bronx Cafe on Monday, December 30, to complete the transfer of approximately $500,000 in cash. At 11:10 A.M. on December 30, the petitioner contacted Detective Cruz by telephone. (See Munoz Ex. M (transcript of recorded call introduced as Government Exhibit 14A at trial).) Detective Cruz introduced himself by the phrase that Agent Herrera had given him, and Mr. Munoz asked if he was "there yet," to which the detective replied that he was on his way. Detective Cruz then informed Mr. Munoz that he would prefer to meet at the Pathmark supermarket near Jimmy's Bronx Cafe, rather than at the previously agreed upon location. The petitioner initially resisted the change in plans, protesting that he and Agent Herrera had already agreed upon the location, but Detective Cruz assured him that the supermarket was "quieter," by which he testified he meant that the transfer was less likely to be observed by law enforcement at the supermarket, not that it was literally a quieter or less busy location. (Tr. at 347.) Detective Cruz testified that he did not want to follow the original plan by meeting the petitioner at Jimmy's Bronx Cafe because, since that location had been agreed upon on Friday of the previous week, the petitioner had had too much time to set up countersurveillance or to plan an ambush when the detective arrived, and that he preferred the supermarket because it was a busy area where El Dorado Task Force surveillance team would be difficult for any countersurveillance operatives working with Mr. Munoz to detect. (Id. at 345.) Detective Cruz then told Munoz that he would call him when he had arrived at the supermarket.

The detective and his partner, Inspector Alvarado, then traveled to the supermarket on 207th Street and 9th Avenue for their meeting with Mr. Munoz, as did a surveillance team traveling separately. At 11:40 A.M., Cruz and Alvarado arrived at the Pathmark parking lot, and Cruz called Munoz to inform him of that fact. (See Munoz Ex. N (transcript of recorded call introduced as Government Exhibit 15A at trial).) Munoz again attempted to persuade Cruz to follow the original plan and meet at Jimmy's Bronx Cafe where they could "sit down and eat," but Cruz refused, insisting that Munoz meet him at the supermarket. (Id. at 3.) Munoz ultimately relented, agreeing to travel to the supermarket. After speaking with the petitioner, Detective Cruz exited his car, carrying a concealed mini-cassette recorder, and stood near a Coca-Cola vending machine near the front entrance of the supermarket. Cruz placed two short calls to Munoz to inform him of his location, and a few moments later the petitioner arrived on foot. (See Munoz Ex. N (transcript of recorded call introduced as Government Exhibit 16A at trial).)*fn4 In a face-to-face conversation that was recorded by Detective Cruz's concealed recorder, Munoz directed Cruz's attention across the street, where another man was standing next to a white Lincoln Town Car in a gas station's parking lot. (See id. (transcript of recorded face-to-face conversation).) According to Detective Cruz's testimony at trial, Munoz informed the detective that that man had his "five," meaning $500,000, but that portion of the conversation was unintelligible in the recording. (Tr. at 370.) Mr. Munoz and the detective then parted.

Detective Cruz returned to his car and drove across the street to the gas station. Upon exiting the vehicle, he greeted the man standing beside it; the man did not respond verbally, but made eye contact with the detective and then looked across the street to a parked automobile in which the surveillance team was located. The driver then entered the Town Car and drove away, after which Detective Cruz returned to his car and departed the gas station. A moment later, the petitioner called Detective Cruz again and explained that the car that the man had indicated looked "strange," which Detective Cruz took to mean that the petitioner was concerned that the car contained law enforcement agents. (Tr. at 372.) Although Detective Cruz had lost track of the white Town Car, Mr. Munoz gave him specific directions over the telephone, including details about the detective's surroundings and precise location which indicated that, although neither Detective Cruz nor the surveillance team were aware of where Mr. Munoz was at the time, he was nearby and was able to see the detective's car. (See Munoz Ex. N.) Mr. Munoz directed Detective Cruz to park on the corner of 207th Street and 10th Avenue, at which point the white Town Car drove up behind the detective's car and stopped in the street. Detective Cruz exited his vehicle and approached the Town Car, noticing that the trunk was ajar. Opening the trunk, he found and removed a single piece of luggage, then closed the trunk, returned to his car, and drove away. Later examination revealed that the bag contained approximately $490,000 in cash, separated into bundles of approximately $2,000 wrapped in rubber bands. An ion spectrometry analysis of the bag later performed by Detective Curtis Cabell of the New York City Police Department ("NYPD") registered positive for "cocaine high," indicating that the bag was contaminated with levels of microscopic cocaine residue sufficiently high to suggest that it had been in direct contact with the drug.

A criminal complaint was filed against Mr. Munoz on April 29, 2004, an indictment was returned on May 18, 2004, and a superseding indictment charging Mr. Munoz with one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) and one count of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B) was filed on September 9, 2004. A warrant for the petitioner's arrest was issued on May 3, 2004. Mr. Munoz was not at his home when agents appeared there to execute the warrant, and his wife, Maribel Lopez, informed the agents that the petitioner was in Florida at the time. Shortly thereafter, Michael Pizzi, a Miami-based attorney who had been retained by Mr. Munoz to represent him in the criminal action, contacted the government to inform it that Mr. Munoz was aware of the charges against him and wished to self-surrender in New York. The government agreed to this arrangement, and on the morning of May 5, 2004, Mr. Munoz appeared in New York and was taken into federal custody.

II. Trial and Sentencing

Prior to trial, Mr. Pizzi attempted unsuccessfully on several occasions to obtain release on bail for Mr. Munoz, efforts which were thwarted by the government's allegations that Mrs. Lopez and other relatives had obstructed justice by removing evidence from several safe deposit boxes shortly after becoming aware of the warrant for Mr. Munoz's arrest. During the pretrial proceedings, Mr. Munoz was notified by the government pursuant to Federal Rule of Criminal Procedure 16 ("Rule 16") of its intention to call two expert witnesses at trial-- Detective Cabell of the NYPD and Paul Radwanski of Smiths Detection-- to discuss the operation and significance of the ion scan test which had been performed on the bag recovered from the Town Car, and another expert witness-- Special Agent Christopher Ammirati of the Department of Homeland Security, Immigration and Customs Enforcement-- who would testify as to the general operation of narcotics money laundering organizations. Mr. Pizzi made motions in limine to exclude those witnesses, which were denied.

Mr. Munoz's trial commenced before this Court on October 18, 2004. The government called Agent Herrera and Detective Cruz, who testified to their interactions with the petitioner on December 26-30, 2002, as described above. It also called Agent Ammirati, who testified as an expert on the basis of his experience with other money laundering investigations,*fn5 and Cabell and Radwanski. Mr. Radwanski, a chemist employed by the manufacturer of the ion scan device, explained the scientific principles underlying the operation of the device, while Detective Cabell discussed the results of that test and their evidentiary significance.*fn6 On the basis of Cabell and Radwanski's testimony, the government argued that the bag that Detective Cruz had obtained from Mr. Munoz's associate had been in direct contact with cocaine, which established the necessary element of Mr. Munoz's knowledge that the cash he transferred to Detective Cruz was derived from the sale of illegal narcotics.*fn7 Mr. Pizzi presented two principal arguments in Mr. Munoz's defense at the trial: first, that because neither drugs nor money were explicitly mentioned in any of the conversations that Munoz had with the undercover officers, the government could not establish beyond a reasonable doubt that he was aware that the bag contained cash, or that the cash discovered therein came from the sale of illegal drugs; and second, that because the majority of currency in circulation in the United States is contaminated with trace amounts of cocaine that the ion spectrometer used to scan the bag would detect, the results of the ion scan test were not a reliable indicator of whether the bag had been used in cocaine trafficking. Mr. Pizzi did not call any witnesses for the defense.

The jury found Mr. Munoz guilty on both counts on October 21, 2004. On November 3, Mr. Pizzi filed on Mr. Munoz's behalf a motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 ("Rule 29") and a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33 ("Rule 33"). The Court denied both motions in a written order issued on January 5, 2005, and scheduled Mr. Munoz's sentencing hearing for February 4, 2005. Prior to that hearing, Mr. Pizzi submitted a presentencing memorandum and a set of objections to the Sentencing Guidelines calculation contained in Mr. Munoz's Presentence Investigation Report. Mr. Pizzi's submissions argued that Mr. Munoz's offense level should not be enhanced by six levels pursuant to U.S.S.G. § 2S1.1.1(b)(1)(A) & (B)(i) on the ground that he knew that the money at issue in the case was derived from the sale of narcotics; that he should receive a three-level reduction to his offense level pursuant to U.S.S.G. § 3B1.2 for his purportedly minor role in the offense; and that applying the sentencing factors articulated by 18 U.S.C. § 3553(a), Mr. Munoz should be sentenced to a term of home confinement rather than continued incarceration. At sentencing, the Court rejected all of Mr. Pizzi's arguments. It applied the 6-level enhancement pursuant to U.S.S.G. § 2S1.1(b)(1)(A) & (B)(i) to Mr. Munoz's base offense level of 22, added two additional levels pursuant to U.S.S.G. § 2D1.1(b)(2)(B), and denied the requested 3-level reduction pursuant to U.S.S.G. § 3B1.2, resulting in an adjusted offense level of 30 and a Guidelines range of 97-121 months. The Court then sentenced Mr. Munoz to the bottom of that range, imposing a term of incarceration of 97 months.

III. Appeal and Section 2255 Petition

On February 14, 2005, Mr. Pizzi filed a timely notice of appeal of Mr. Munoz's sentence and conviction. Mr. Munoz subsequently terminated Mr. Pizzi and was represented on appeal by Lorenzo Palomares, an attorney based in Puerto Rico. However, Munoz now contends that Palomares's representation was only nominal, and that his appellate briefs were actually prepared by Dennis Deters, a paralegal based in Minnesota who then passed the briefs along to Palomares to be filed in Palomares's name, since Deters is not a licensed attorney. Munoz's appellate brief raised three issues, all of which challenged the sufficiency of the evidence as to various elements of the charged offenses and the base offense level enhancement applied at sentencing.*fn8 In an unpublished summary order issued on February 16, 2006, the Second Circuit affirmed Mr. Munoz's conviction and sentence in all respects. See United States v. Munoz, 167 Fed. App'x 850 (2d Cir. 2006). In a letter dated February 21, 2006, Mr. Deters sent Munoz a copy of the Second Circuit's order and urged him to consider filing either a petition for certiorari with the United States Supreme Court or a Section 2255 petition alleging ineffective assistance by Mr. Pizzi. (See Munoz Ex. CC.) Mr. Deters's letter also claimed that the company by which he is employed, Paralegal Research Associates, "regularly win[s]" cases before the Supreme Court and won 11 cases in that Court in the previous year. (Id. at 1.)*fn9

On May 17, 2007, Mr. Munoz filed the currently pending Section 2255 petition, in which he alleges that his constitutional rights were violated in the underlying criminal action by ineffective assistance of counsel at trial and on appeal and by the effective denial of his constitutional right to counsel on direct appeal.*fn10 It is to those arguments that the Court now turns.

DISCUSSION

The principal question facing the Court at this stage of the proceeding is whether Mr. Munoz is entitled to an evidentiary hearing or other further proceedings as to any of the claims asserted in his petition for relief. Section 2255(b) instructs that [u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. Although the district court may summarily dismiss a Section 2255 claim on the basis of the petition alone only where the files and records of the underlying criminal case conclusively demonstrate that the alleged errors asserted in the Section 2255 petition are patently "bereft of merit," United States v. Chang, 250 F.3d 79, 85 (2d Cir. 2001), the court "may employ a variety of measures in an effort to avoid the need for an evidentiary hearing." Blackledge v. Allison, 431 U.S. 63, 81 (1977). The Second Circuit has indicated that "in order to warrant an evidentiary hearing in the district court on a first § 2255 petition, the 'application must contain assertions of fact that a petitioner is in a position to establish by competent evidence. . . . Airy generalities, conclusory assertions and hearsay statements will not suffice.'" Haouari v. United States, 510 F.3d 350, 354 (2d Cir. 2007) (quoting United States v. Aiello, 814 F.2d 109, 113 (2d Cir.1987)). In Chang, the Second Circuit held that, in lieu of an evidentiary hearing at which live testimony is taken, the Court may supplement the record with affidavits from the petitioner's purportedly ineffective trial counsel (or, presumably, other persons whose testimony would be relevant), and may dismiss the petition without taking live testimony if the written submissions demonstrate that the petitioner's claims lack merit. 250 F.3d at 85 (affirming order of this Court dismissing Section 2255 petition where "[a]t the request of the court, the record was supplemented by a detailed affidavit from trial counsel credibly describing the circumstances concerning appellant's failure to testify," and concluding that "with that submission the record was sufficient to support dismissal of the petition."); see also Pham v. United States, 317 F.3d 178, 184 (2d Cir. 2003) ("Our precedent disapproves of summary dismissal of petitions where factual issues exists, but it permits a 'middle road' of deciding disputed facts on the basis of written submissions." (citing Chang, 250 F.3d at 86)).*fn11

Aside from his contention that he was deprived of the Sixth Amendment right to counsel on appeal, all of the arguments that Munoz asserts in his Section 2255 petition involve claims that he was denied effective assistance of counsel during the pretrial and trial phases of the underlying criminal action and on direct appeal from his conviction. Under the law as articulated by the United States Supreme Court and the Second Circuit, "in order to prevail on an ineffective-assistance-of-counsel claim, a defendant must show (1) that his attorney's performance fell below an objective standard of reasonableness, and (2) that as a result he suffered prejudice." United States v. Jones, 482 F.3d 60, 60 (2d Cir. 2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).*fn12

When evaluating the objective reasonableness of defense counsel's actions, the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . [and] every effort [must] be made to eliminate the distorting effects of hindsight." Strickland, 466 U.S. at 689. An informed decision to pursue a litigation strategy, even if that strategy turns out badly for the defendant or seems unwise in retrospect, does not constitute ineffective assistance of counsel so long as it is a "conscious, reasonably informed decision made by an attorney with an eye to benefitting his client." Pavel v. Hollins, 261 F.3d 210, 218 (2d Cir. 2001); see also Yushuvayev v. United States, 532 F. Supp. 2d 455, 471 (E.D.N.Y. 2008) (Glasser, J.); Miranda v. United States, No. 98-CV-1490 (ILG), 2008 WL 2561990, at *7 (E.D.N.Y. June 25, 2008) (Glasser, J.).

To demonstrate prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. The government argues that the second prong of the Strickland test was altered by the Supreme Court's decision in Lockhart v. Fretwell, 506 U.S. 364, 369 (1993), and that the dispositive inquiry for prejudice is not whether the alleged ineffective assistance was merely "outcome determinative," but whether it rendered the underlying criminal proceeding "fundamentally unfair or unreliable." As Mr. Munoz points out, the Supreme Court rejected this interpretation of Lockhart in Williams v. Taylor, 529 U.S. 362 (2000). Williams reversed the Virginia Supreme Court's holding that Lockhart "modified or in some way supplanted the rule set down in Strickland," and concluded that its holding in Lockhart "do[es] not justify a departure from a straightforward application of Strickland when the ineffectiveness of counsel [deprives] the defendant of a substantive or procedural right to which the law entitles him." Id. at 393. The standard of prejudice articulated in Strickland shall therefore control the Court's inquiry in this case.

I. Pizzi's Alleged Ineffective Assistance

A. Ineffectiveness Prior to Trial

Mr. Munoz's petition asserts that during the pretrial phase of the underlying criminal action, Mr. Pizzi's unwarranted overconfidence regarding the strength of the petitioner's case caused him to fail to adequately advise Munoz with respect to his available options and the likely consequences of the strategic decisions he faced. He alleges that Pizzi refused to consider the possibility of a guilty plea or to counsel Munoz with respect to that possibility even when asked to do so by Munoz and his relatives, and also that Pizzi refused to discuss the possible sentence that Munoz would face under the United States Sentencing Guidelines if convicted at trial. In support of the allegations set forth in his petition, Mr. Munoz submitted several sworn declarations from himself*fn13 and four other individuals: his wife Maribel Lopez,*fn14 Maribel's brother Amaury Lopez,*fn15 Amaury's fiancee Teressa Flynn,*fn16 and Marisol Vicente, a friend of Maribel and Cesar.*fn17 Munoz and his fellow declarants describe Pizzi as irrationally overconfident regarding Munoz's chances of prevailing at trial and generally non-responsive to his repeated requests for information about his case. Munoz asserts that Pizzi and an interpreter visited him at the Metropolitan Detention Center ("MDC") only once prior to his trial (see 1st Munoz Decl. & 2), and that Pizzi did not discuss the possibility of pleading guilty*fn18 and did not review the Sentencing Guidelines with Munoz during that meeting or at any other time prior to trial.*fn19 (2d Munoz Decl. && 1-2.) He also states that at some point prior to trial, Pizzi's secretary removed Pizzi's office number from Munoz's calling list at the MDC, rendering him unable to call Pizzi from the prison. (1st Munoz Decl. & 7.) Finally, Munoz alleges that when he asked Pizzi on three occasions what sort of sentence he would face if convicted, Pizzi always responded that the maximum sentence he faced was two or three years. (Id. & 3.) In his own declaration, Pizzi asserts that he did discuss the potential sentence and the possibility of pleading guilty, but that Munoz refused to accept that option, adamantly insisting on his own innocence and stating that he could not plead guilty because of his religion and because he did not want to be embarrassed in front of his children by pleading guilty. (Pizzi Decl. ¶ 2.) In reply, Munoz denies that he and Pizzi ever discussed Munoz's children or his religious beliefs, and again asserts that Pizzi never discussed the benefits of pleading guilty or reviewed the Sentencing Guidelines with him prior to trial. (2d Munoz Decl. && 2-4.)

The declarations of Maribel and Amaury Lopez, Teressa Flynn, and Marisol Vicente corroborate Munoz's assertions. Amaury Lopez and Teressa Flynn both assert that Pizzi was unshakably certain that Munoz would be acquitted at trial, guaranteeing such a result as either "99%" (A. Lopez Decl. & 7) or "98%" likely. (1st Flynn Decl. & 2.) Amaury states that he repeatedly sought to discuss the sentence that Munoz might face under the Sentencing Guidelines with Pizzi, but that Pizzi refused to do so, ...


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