On January 13, 2006, Petitioner Juan Avendano ("Petitioner") was sentenced, after a jury trial conducted before this Court, principally to 240 months imprisonment, to be followed by ten years of supervised release. The judgment was appealed and affirmed, and the mandate was issued by the United States Court of Appeals for the Second Circuit on February 16, 2007. Familiarity with the prior decisions is presumed. On January 28, 2008, Petitioner filed this petition for relief pursuant to 28 U.S.C. § 2255, requesting that the Court appoint an attorney to represent him in prosecuting this proceeding, and vacate his sentence and conviction. Petitioner asks that his conviction and resulting sentence be vacated on the basis that his trial counsel rendered ineffective assistance by: 1) failing to point out the discrepancy between the brand name of the stereo box used to carry the cocaine and the brand name mentioned in the DEA report; 2) failing to effectively cross-examine co-defendant Alex Dalmau ("Dalmau"); and 3) failing to demonstrate that the voice on the telephone recordings did not belong to Petitioner. Petitioner also argues that his appellate counsel rendered ineffective assistance by failing to raise the aforementioned issues on appeal.*fn1 In addition, Petitioner argues that his conviction should be vacated on the grounds that: 4) the Government's filing of a prior felony information and a superseding indictment with enhanced charges arose from prosecutorial vindictiveness, and that appellate counsel rendered ineffective assistance by failing to raise the issue on appeal; 5) Petitioner was the victim of entrapment; and 6) Petitioner could not have been guilty of conspiracy because the persons with whom he formed agreements were cooperating with the Government at all relevant times. He asserts that "an evidentiary hearing with a qualified attorney should be granted by this court, in which the petitioner may be able to demonstrate his complete innocence." (Pet. at 16.)
The Court has considered thoroughly the parties' submissions as well as the trial and appellate record, the familiarity of which is presumed. For the following reasons, the petition is denied in its entirety.*fn2
In order to prevail under 28 U.S.C. § 2255, a petitioner must show that 1) his sentence was imposed in violation of the Constitution or laws of the United States; 2) the court was without jurisdiction to impose the sentence; 3) the sentence was in excess of the maximum authorized by law; or 4) the sentence is otherwise subject to collateral attack. A claim that is raised in a § 2255 petition but was not presented on direct appeal is procedurally barred from consideration by the district court reviewing the § 2255 petition unless the petitioner establishes cause for failure to raise the issue on direct appeal and actual prejudice arising from the alleged violation or, in the alternative, actual innocence. See Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007). This rule, however, does not apply to ineffective assistance of counsel claims. See id.
Ineffective Assistance of Counsel Claims
Petitioner raises several claims of ineffective assistance of counsel in connection with trial counsel's trial strategies or his performance at trial, and with appellate counsel's failure to raise certain arguments on appeal. A claim of ineffective assistance of counsel under the Sixth Amendment must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668 (1984). A petitioner must show: first, that counsel's performance fell below an objectively reasonable standard of performance, and second, that the deficient performance prejudiced the outcome of the proceeding. See United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990). Regarding the first prong, the Court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Bell v. Miller, 500 F.3d 149, 156 (2d Cir. 2007). The Court must also bear in mind that "there are countless ways to provide effective assistance in any given case." Aguirre, 912 F.2d at 560 (citing Strickland, 466 U.S. at 689). With respect to the second prong, prejudice is shown if, but for the deficient performance, there was a "reasonable probability" that the outcome of the proceeding would have been different. A reasonable probability is a probability "sufficient to undermine confidence in the outcome." See Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir. 1994) (quoting Strickland, 466 U.S. at 694). A court need not address both prongs if a petitioner fails to make a sufficient showing on one. See Ordenes v. United States, No. 05 Civ. 8968(HB), 2007 WL 1766772, *10 (S.D.N.Y. June 9, 2007). The same standards apply to a claim that appellate counsel rendered ineffective assistance. See Mayo, 13 F.3d at 533. With respect to the performance prong in the appellate context, "it is not sufficient to show merely that counsel omitted a non-frivolous argument, for counsel does not have a duty to advance every non-frivolous argument that could be made." Id. (citing Jones v. Barnes, 463 U.S. 745 (1983)). A petitioner may establish constitutionally inadequate performance in the appellate context if he shows that "counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," id., where "failure to raise such issues fell outside the wide range of professionally competent assistance." Id. (citations and quotations omitted).
Petitioner faults trial counsel for failing to emphasize or argue that the brand name of the stereo box ("Pioneer") that was used to carry the cocaine and was subsequently seized by law enforcement, pictures of which were proffered by the Government at trial (see Govt. Ex. 7), did not match the brand name indicated in the DEA report ("Panasonic") (see Govt. Ex. 16).*fn3
However, the Government introduced evidence that Petitioner was observed carrying the Pioneer box in which the cocaine was found, that it had his fingerprints on it, and that it was in his lap at the time of the arrest, and there was no evidence to the contrary. As trial counsel explained in a letter, a copy of which was attached to the petition itself as Exhibit IV, trial counsel declined to argue the discrepancy issue due to the weight of the aforementioned evidence proffered by the Government, and instead chose to argue that there was insufficient evidence to establish that Petitioner knew that the box contained cocaine, an explanation that is not unreasonable. Petitioner furthermore points to nothing in the record that would suggest any plausible theory favoring the Defendant and premised on the brand name discrepancy that was so obvious that trial counsel was unconstitutionally deficient for failing to pursue it.*fn4 For these reasons, the Court finds that trial counsel's strategy was not objectively unreasonable and trial counsel did not render ineffective assistance by declining to press the brand name discrepancy issue.
Petitioner argues that trial counsel failed effectively to cross-examine Dalmau, a cooperating Government witness, with respect to Dalmau's cooperation with the Government and his attendant incentives to testify against Petitioner, Dalmau's own indictment for committing a narcotics offense, and Dalmau's previous conviction of perjury. Trial counsel, in fact, conducted a thorough cross-examination precisely addressing the points Petitioner raises, with an extensive focus on Dalmau's perjury conviction. (See Tr. at 386-410.) Therefore, Petitioner's argument is rejected to the extent Petitioner claims that counsel failed to conduct a cross-examination addressing those points. Trial counsel also devoted ample attention in his closing argument to reasons why the jury should not have believed Dalmau, referring extensively to Dalmau's past and his incentives to cooperate. (Tr. at 786-97.) The mere fact that the jury did not ultimately find in favor of Petitioner does not indicate that counsel's actions fell outside of the wide range of professionally reasonable assistance. See Dean v. Superintendent, No. 90-CV-937H, 1995 WL 818660, *5 (W.D.N.Y. May 18, 1995) ("The fact that the jury did not find the cross-examination to be effective does not warrant a claim of ineffective assistance of counsel."). Trial counsel's cross-examination was entirely appropriate given the Government's reliance on Dalmau's testimony, it adequately addressed Dalmau's credibility, and nothing from the Court's own observation of the cross-examination suggests that its execution was not objectively reasonable. Trial counsel's cross-examination of Dalmau was within the wide range of reasonable professional conduct in both substance and performance, and it did not deprive Petitioner of the effective assistance of counsel.
Petitioner complains that trial counsel failed successfully to demonstrate to the jury that the telephone recordings with Dalmau did not involve Petitioner, and notes, arguing that counsel failed to highlight discrepancies between the telephone number listed in the records of the calls in question and Petitioner's actual home telephone number at the time. Trial counsel did in fact strenuously argue that the voice on the recorded call was not Petitioner's, including by specifically pointing out the discrepancy between the telephone number listed and Petitioner's actual home telephone number at the time of the call. (Tr. 798-804.) Petitioner cannot raise a viable ineffective assistance claim simply because the jury chose not to view the evidence in the manner in which trial counsel advocated. Trial counsel competently proffered evidence highlighting the discrepancy, this line of defense was entirely reasonable given the Government's reliance on the telephone transcripts, and there is nothing in the record or in the Court's observation to suggest that counsel's performance was not reasonable. Therefore, trial counsel did not render ineffective assistance in connection with the telephone number discrepancy issue.
Petitioner's related arguments that appellate counsel was ineffective for failing to press the aforementioned issues are similarly unfounded. Appellate counsel focused primarily on Petitioner's competency to stand trial and the Court's denial of Petitioner's motion to suppress his proffer statements. These issues were heavily litigated over the course of several pre-trial conferences and evidentiary hearings, and the rulings on these issues had a significant or dispositive impact on the subsequent trial. Moreover, the matters that Petitioner contends should have been pursued on appeal relate to trial strategies, which are "virtually unchallengeable" in an ineffective assistance claim, Strickland, 466 U.S. at 691, and Petitioner's claims also appear to rest essentially upon frustration with the jury's factual determinations. He proffers nothing that would suggest that trial counsel's performance was anything less than adequate. For all these reasons, appellate counsel's failure to raise the issues Petitioner identifies did not fall outside the range of professionally competent assistance and, accordingly, Petitioner's argument that appellate counsel was ineffective for failing to raise the aforementioned issues on appeal is rejected.
Petitioner argues that he was deprived of due process of law because the Government's conduct in filing a prior felony information and a superseding indictment after Petitioner refused to sign a proposed plea agreement was "vindictive per se." Because Petitioner's prosecutorial vindictiveness claim was not raised on direct appeal, it is procedurally barred from collateral review unless Petitioner can establish cause and prejudice or actual innocence. Petitioner also argues that he was deprived of the effective assistance of appellate counsel when appellate counsel failed to raise this issue on direct appeal. The Court construes Petitioner's claim of ineffective assistance of appellate counsel as Petitioner's attempt to establish cause for the procedural default of his prosecutorial vindictiveness claim, as well as an independent claim of ineffective assistance. See Sapia v. United States, 433 F.3d 212, 217-18 (2d Cir. 2005) (ineffective assistance establishes cause for failing to raise issue on direct appeal).
"To punish a person because he has done what the law plainly allows him to do is a due process violation 'of the most basic sort.'" United States v. Goodwin, 457 U.S. 368, 372 (1982) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)). "A vindictive motive for a prosecution will be found where there is direct evidence of actual vindictiveness, or a rebuttable presumption of a vindictive motive may arise under certain circumstances." United States v. Koh, 199 F.3d 632, 639 (2d Cir. 1999). The Supreme Court has established clearly, however, that no rebuttable presumption arises from the Government's pre-trial decision to modify the charges against a defendant after the defendant refuses a plea offer. See Goodwin, 457 U.S. at 380-82. Therefore, the challenged actions were not "per se" vindictive, ...