The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
Petitioner Ethon James filed a motion under Fed. R. Civ. P. 60(b) to set aside the denial of his habeas petition on two grounds. First, he claims that the denial "violates" the Supreme Court's decision in United States v. Massaro, 538 U.S. 500 (2003). Second, he argues that the government violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose the fact that two witnesses who testified against him were released less than a year after his trial. Based on the releases of these witnesses,he accuses the government of putting on testimony regarding their potential sentences that it knew or had reason to know was materially false. Petitioner also contends that the government committed a fraud upon the court by giving false closing arguments regarding the same matter. For the reasons set forth below, the motion is denied.
Petitioner was employed as a Lead Customer Service Agent for Delta Airlines at John F. Kennedy Airport. In late 1995 or early 1996, he joined a conspiracy to smuggle marijuana and cocaine into the United States by diverting suitcases containing these controlled substances from arriving international flights, where it would have to pass through U.S. Customs checkpoints, to the domestic baggage claim area. This way, the suitcases of drugs would avoid detection by U.S. Customs. Couriers would then retrieve the suitcases from the domestic baggage claim area and distribute the drugs to dealers in the area. Petitioner participated in this conspiracy until about November 1996.
Petitioner was arrested on April 20, 1997. On August 8, 1997, a jury convicted Petitioner of conspiring to distribute cocaine and marijuana and conspiring to import cocaine and marijuana. During his trial, two other conspirators, Lloyd and Christine Wilson, provided testimony linking Petitioner to the charged conspiracies. Prior to their testimonies, the Wilsons had pled guilty and entered into proffer and cooperation agreements with the government. During his direct examination, the government asked the following questions and Lloyd Wilson gave the following testimony about his plea and cooperation with the government:
Q: What is the maximum penalty you could receive for the crime you pled to?
Q: What is the minimum amount of time you face under that agreement and to the crime you pled guilty to?
Q: In [your cooperation agreement with the government], did the government promise what sentence you were going to get?
Q: What is your understanding [of] what the Judge could do if the government writes a [5K1.1] letter telling the Judge you cooperated?
A: Well, to my understanding, it would be in the Judge's discretion with the sentence, along with the guideline I would receive....
Q: Who will sentence you?
Q: Has anyone promised you what sentence the Judge will impose?
A: No, they haven't. (Tr. 184-85.) Christine Wilson testified that the maximum punishment she could receive for the crimes to which she pled guilty was a four-year prison sentence. (Tr. 487.) She also testified that she did not know what sentence she would receive and Judge Mishler would be the one to sentence her. (Id.) The Wilsons were released from prison less than a year after they testified.
On November 12, 1997, Petitioner was sentenced to a prison term of 235 months. The Second Circuit affirmed his conviction on October 30, 1998. On November 18, 1999, acting pro se, Petitioner filed a habeas petition pursuant to 18 U.S.C. § 2255 arguing that he was denied effective assistance of counsel because:
(1) counsel failed to object when the government "stated to the jury 28 times that there was 'no dispute' over specific evidence"; (2) counsel failed to specifically recommend a two level downward adjustment for his minor role in the offense; (3) counsel did not move for a downward departure under Sentencing Guidelines Section 5K2.2, arguing outrageous government conduct; (4) counsel did not move for a downward departure under Sentencing Guidelines Section 5K2.0 "due to egregious disparity" between James' sentence and the sentences of his coconspirators; and (5) although he is ...