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Florez v. United States

July 23, 2009


The opinion of the court was delivered by: Sifton, Senior Judge.


Petitioner Jose Dorance Florez was convicted in 2005 before the undersigned of conspiracy to import one kilogram or more of heroin into the United States in violation of 21 U.S.C. §§ 963, 960(a)(1), 960(b)(1)(A), and of conspiracy to possess with intent to distribute one kilogram or more of heroin in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A)(i).*fn1 On May 12, 2005, petitioner was sentenced to two concurrent incarceratory terms of 210 months, which he is presently serving, as well as two concurrent five-year terms of supervised release, and a special assessment of $200. Petitioner now moves pro se to vacate, set aside, or correct his conviction pursuant to 28 U.S.C. § 2255, raising the following claims: (1) that he is actually innocent of the offenses; (2) that the government knowingly presented perjured testimony at trial; (3) that the government suppressed evidence in violation of its obligations under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972); and (4) that he received ineffective assistance of counsel in violation of the Sixth Amendment to the Constitution of the United States. For the reasons set forth below, petitioner's application is denied.


The following facts are drawn from the record of petitioner's criminal case and the parties' submissions in connection with this petition.

Petitioner's conviction originates in interrelated conspiracies to import heroin from Colombia into the United States for distribution. Throughout the duration of the conspiracies, petitioner was employed intermittently by Koppers Chocolate Factory in lower Manhattan, New York, owned and operated by Jeff Alexander. Transcript of May 12, 2004 Hearing ("Hr'g.") at 10, 20. Petitioner initiated these criminal conspiracies by proposing to his brother, Jose Maria "Chepe" Florez ("Chepe"), that they invest money Chepe received in 1997 from a settlement of a personal injury case in a heroin importation and distribution enterprise. Trial Transcript ("Tr.") at 390.

In approximately February 1997, petitioner and Chepe recruited Pedro Villagomez, Chepe's brother-in-law, as a heroin smuggler. Tr. 539. In late February 1997, after having been supplied with tickets by Chepe,*fn2 Villagomez flew with petitioner from New York to Pereira, Colombia. Villagomez and petitioner traveled on the same flight and sat together; in Pereira, they stayed together at petitioner's girlfriend's home. Tr. 550. In Pereira, petitioner provided Villagomez with several aerosol cans (which originally contained hair spray, shaving cream, or deodorant) and a bottle of cologne, each filled with heroin, for transport back to New York. Tr. 551.

Petitioner then instructed Villagomez how to smuggle the drugs into the United States. Tr. 551. Larger aerosol cans were emptied and a smaller, traveler's-size vial was attached to the outlet so that the can would function properly if tested. The remainder of the cans were filled with heroin (and, often for the trip to South America, with money) and the bottom reattached so as to appear as originally sealed. Petitioner matched the weight of the heroin-filled cans to the weight listed on the cans' original packaging to avoid suspicion in case of inspection, and ensured that each can contained less than a kilogram of heroin in order to avoid stiffer penalties if detected. Tr. 159, 163, 339-40, 552.

On March 2, 1997, Villagomez arrived at JFK International Airport in Queens, New York, with heroin, passed through customs, and delivered the cans to Chepe. Villagomez received payment from Chepe soon thereafter. Tr. 547-54.

Villagomez repeated this trip in March or April 2007, but this time avoided flying directly between the United States and Colombia (as a "high profile country") by traveling to Colombia via Ecuador. Tr. 563. Villagomez flew first to Quito, Ecuador, then traveled by bus from Quito to Pereira, Colombia, where he again met with petitioner. On this trip, Villagomez visited petitioner's finca on the outskirts of Pereira. Tr. 570. As before, petitioner supplied Villagomez with four heroin-filled cans, and provided instructions regarding the return trip to New York. Tr. 565-66. En route from Colombia to Ecuador, the bus was stopped and inspected at a military checkpoint; Villagomez was removed from the bus, but the cans successfully passed testing. Tr. 566-67. Villagomez continued on to Quito, from where he again flew into JFK, went through customs, delivered the heroin to Chepe, and, some days later, received approximately $10,000 for his services. Tr. 568-70.

In April 2007, Villagomez proposed forming his own smuggling cell in Ecuador as part of the ongoing heroin importation scheme. Petitioner and Chepe agreed. Tr. 573. Villagomez enlisted his cousin, Serge Zavala, who then recruited Mauricio Funes, Michael Garcia, and David Blakis as couriers. Villagomez traveled ahead of the couriers to Ecuador, organized the couriers there, and then continued on to Colombia to make arrangements with petitioner to obtain heroin. After meeting with petitioner, Villagomez returned to Ecuador, where, pursuant to petitioner's instructions, he retrieved luggage containing concealed heroin. Villagomez then arranged for both Funes and Garcia to travel back to New York. Tr. 574-79.

While Villagomez established his operation in Ecuador, Chepe recruited Miguel Pavez, who was at the time dating petitioner's 16-year-old niece, Tr. 294, 315, 336-37, to import heroin into New York from Colombia using the model successfully employed with Villagomez. Tr. 294-95. Chepe supplied Pavez with travel arrangements and expenses and instructed him to deliver $10,000 in cash to petitioner, who would then supply Pavez with concealed heroin for the return trip to New York. Tr. 320-21. On approximately May 14, 1997, Pavez few to Pereira, Colombia, met with petitioner, and exchanged the cash for several aerosol cans containing heroin. Tr. 338-40. Pavez flew from Colombia to Chile, and then from Chile to New York, where he delivered the cans to Chepe. Within a few weeks, Chepe paid Pavez approximately $10,000. Tr. 340-42.

Pavez subsequently offered his friend Rodrigo Deschamps a part in the heroin smuggling scheme. Deschamps agreed. Tr. 144-45. Some weeks later, in June 1997, Pavez called Deschamps and instructed him to meet at Chepe's apartment in Queens, New York. Tr. 145-46. Chepe supplied Pavez and Deschamps with airline tickets to Quito, Ecuador, as well as numerous empty aerosol cans to bring to Colombia, and again entrusted Pavez with $10,000 for petitioner. Tr. 147-49, 345-46. Pavez and Deschamps flew to Quito and took a bus to Pereira, Colombia, where they were met by an associate of petitioner named La Chusca, who drove Pavez and Deschamps to a meeting with petitioner. Tr. 149-53. During their stay in Colombia, Pavez and Deschamps stayed with members of the Florez family and visited petitioner's ranch. Tr. 54-155, 350.

Over the course of his time in Pereira, Deschamps overheard two conversations between La Chusca and petitioner related to the narcotics-smuggling conspiracy. During the first conversation petitioner arranged to take the empty cans from La Chusca to be packed with heroin. In a later conversation, petitioner informed La Chusca that the completed cans were ready for transport. Tr. 193-95, 155-62. Pavez and Deschamps were thereafter supplied with eight heroin-filled cans. Tr. 349.

During their return bus trip to Quito, Pavez was inspected by local authorities without incident. On approximately June 11, 1997, Deschamps and Pavez flew into JFK from Quito, successfully passed through customs, and delivered the heroin-filled cans to Chepe, who later paid them a total of $20,000. Tr. 163-66, 351-54.

In July 1997, Chepe directed Pavez to establish a smuggling cell in Santiago, Chile, Tr. 356-58, mirroring Villagomez's activity in Ecuador. Pavez traveled to Chile, and there recruited two friends named Rojas and Soto to transport the heroin from Colombia to Chile. Tr. 357-59, 431. At the same time, Chepe sent between $10,000 and $20,000 in cash and numerous aerosol cans with Deschamps to Chile, where Pavez retrieved them. After the new couriers brought the cans filled with heroin back from Colombia to Chile, Pavez and Deschamps returned with of eight cans to New York through JFK, passed through customs, and delivered the cans to Chepe. Tr. 170-77, 360-61. After spending that night at Chepe's apartment, located in the same building as petitioner's apartment, Deschamps overheard petitioner and Chepe discussing the heroin importation scheme and praising Deschamps' services as a courier. Tr. 177-78. Some days later, Chepe paid Deschamps approximately $7,000. Tr. 179.

Later in July 1997, Pavez returned to Chile with two new acquaintances-turned-couriers, Leonardo Toledo and Alfredo Schubert. Tr. 363-65. In Chile, they met with Pavez's brother and a Florez family friend, who supplied them with eight heroin-filled aerosol cans. Tr. 365-67. On August 3, 1997, Toledo successfully brought four cans from Chile to New York. On August 5, 1997, Schubert, accompanied by four heroin-filled cans, was arrested at JFK trying to clear customs. Pavez's mother, Sylvia Fuentes, attempting to pick up Schubert at her son's request, was also arrested at the airport. Tr. 369-71, 503. Thereafter, Pavez returned from Chile to New York. Tr. 372.

By this time, Villagomez had mobilized his Ecuador-based smuggling cell. On approximately August 6, 1997, Funes entered New York undetected; Zavala confirmed Funes' success to Villagomez, retrieved the luggage, and delivered it to Chepe. Tr. 579-80. On approximately August 8, 1997, Garcia was arrested entering the United States at JFK. Garcia agreed to participate with law enforcement in a controlled delivery of the heroin-filled luggage, leading to the arrests of Funes and Zavala. Tr. 582-583, 41-48, 51-53.

Later in August 1997, Pavez returned to Chile, and from there to Pereira, with $10,000 from Chepe. There, in response to the string of courier arrests in early August 1997, La Chusca arranged for two kilograms of heroin to be packaged in footwear and a Nintendo machine rather than aerosol cans. Pavez transported the heroin-filled footwear and game console to New York and delivered them to Chepe for approximately $30,000. Tr. 373-78.

After the arrests of Garcia, Funes, and Zavala in New York, Villagomez returned to New York to discuss the viability of the importation scheme with Chepe, who advised him to leave the United States. Villagomez flew to Montreal, Canada, then to Caracas, Venezuela, and finally to Colombia, where, at some time between September and October 1997, he again met petitioner in Pereira. Tr. 584-85. Villagomez lodged with petitioner's family, and at some point reviewed with petitioner the legal complications related to the collapsing importation scheme. Tr. 585-86. In October 1997, petitioner again arranged for Villagomez to transport heroin into the United States, this time by stitching it into packed articles of clothing rather than packing it into aerosol cans. Tr. 586. Villagomez traveled to Guayaquil, Ecuador, and from there flew to Houston, Texas, where he was arrested on November 1, 1997. Tr. 586-87, 591.

In late November 1997, Deschamps agreed to a final heroin run. Tr. 183. Promised $13,000 by Chepe, who again arranged his travel plans, Deschamps flew to Santiago, Chile, and from there to Pereira, Colombia. Tr. 183-84. As before, Deschamps met with La Chusca, who provided him with sneakers packed with heroin. Tr. 184-88. Deschamps returned from Colombia via Chile to New York, eventually delivering the heroin to Chepe's apartment. Tr. 188-90. There, Chepe and Pavez extracted the heroin from the sneakers, repackaged it in Ziploc bags, and conveyed it to an unnamed party. Tr. 381-84.

Ultimately, Pavez was arrested in Miami, Florida, and Chepe in New York, on June 10, 1998. Hr'g. 7-9, Tr. 445-47. Deschamps was arrested later in the summer of 1998. Tr. 124. On December 21, 1998, Chepe pled guilty to one count of conspiracy to import heroin into the United States, in violation of 21 U.S.C. § 963. On July 28, 1999, he was convicted on his guilty plea, benefitted from a departure below the Sentencing Guideline range, and was sentenced to the statutory minimum of 120 months' imprisonment followed by a five-year term of supervised release. Florez v. U.S., No. CV-00-5073 (DGT), 2007 WL 162764, (E.D.N.Y. Jan. 18, 2007). Chepe was released from custody on February 23, 2007.*fn3

After his brother's arrest, petitioner fled to avoid prosecution, and between June 1998 and April 2001, petitioner remained in Colombia. Hr'g. 10-15, 43-46, 98-99. By April 2001, petitioner returned to New York, and endeavored to evade detection by law enforcement officials between April 2001 and May 2003 by using the address and banking information of an acquaintance, Girleza Silva, to renew his drivers licence, deposit a check for $13,000, and subsequently withdraw cash.

Hr'g. 57-59, 98-102, 104-10. Concurrently, law enforcement officials continued their investigation of petitioner by questioning witnesses to the heroin conspiracy, surveilling petitioner's addresses, known whereabouts, and associates, and employing the NCIC and TECS tracking databases.*fn4 Tr. 43-44, 50-54, 57-59. Petitioner was eventually arrested re-entering the United States in Miami in January 2004.

Petitioner was indicted on January 30, 2004. I subsequently denied petitioner's motion to dismiss on statute of limitations grounds, concluding that "[petitioner] fled shortly after his brother's arrest and thereafter concealed himself for a number of years for the sole purpose of avoiding prosecution." Transcript of Pretrial Proceedings on June 23, 2004 ("P. Tr.") at 19. As such, the government met its burden in establishing petitioner's intentional fugitive status, thus tolling the applicable five-year statute of limitations. P. Tr. at 19.

At trial, in July 2004, the government presented three cooperating witnesses, Deschamps, Pavez, and Villagomez, whose testimony was substantially consistent regarding the importation scheme and petitioner's role in it. The government also offered documentary evidence that corroborated the testimony.*fn5 Petitioner attacked the credibility of the cooperating witnesses and argued that the government failed to present sufficient evidence to establish petitioner's guilt beyond a reasonable doubt.

At the conclusion of the jury trial, on July 7, 2004, the jury returned a verdict of guilty as to the two narcotics-related conspiracy counts, conspiracy to import one kilogram or more of heroin and conspiracy to possess with intent to distribute that same quantity of heroin. On February 23, 2005, I denied petitioner's motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. On May 12, 2005, petitioner was sentenced to two concurrent incarceratory terms of 210 months, as well as two concurrent five-year terms of supervised release, and a special assessment of $200.

Petitioner appealed his conviction and sentence to the United States Court of Appeals for the Second Circuit on the grounds that "(1) the charges against him [were] time-barred, (2) the record evidence [was] legally insufficient to support his conviction, and (3) his incarceratory sentence [was] (a) based on impermissible judicial factfinding as to drug quantity and (b) unreasonably disproportionate to the ten-year prison term imposed on his brother for participation in the same conspiracies." U.S. v. Florez, 447 F.3d 145, 148 (2d Cir. 2006). On May 3, 2006, the Second Circuit denied the appeal, concluding that the statute of limitations was properly tolled as a result of petitioner's intentional flight from justice. Id. at 150-54. The Court further found that "three accomplice witnesses provid[ing] mutually corroborative direct evidence of the existence of the charged conspiracies and [petitioner's] membership in them" was sufficient to support petitioner's conviction. Id. at 155-56. Finally, the Court concluded that this Court made a proper determination as to the drug quantity and imposed a reasonable sentence, despite the sentencing disparity between petitioner and his brother. Id. at 158.

The Supreme Court of the United States denied certiorari on November 13, 2006. Florez v. U.S., 549 U.S. 1040 (2006). Petitioner filed the instant motion on November 26, 2007.


In this petition to vacate, set aside, or correct petitioner's conviction pursuant to 28 U.S.C. § 2255*fn6 , petitioner claims (1) actual innocence as to the convicting offenses; (2) that the government knowingly presented perjured testimony at trial; (3) that the government suppressed evidence in violation of its obligations under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972); and (4) that petitioner received ineffective assistance of council in violation of the Sixth Amendment to the Constitution of the United States.

I. Standard for § 2255 Motion

In bringing a motion under § 2255, petitioner must demonstrate either a constitutional or jurisdictional error, or a "fundamental defect which inherently results in a complete miscarriage of justice." Hill v. U.S., 368 U.S. 424, 428 (1962); see also McCleskly v. Zant, 499 U.S. 467, 496 (1991). Additionally, in 1996, Congress amended 28 U.S.C. § 2255 to include a one-year statute of limitations period that runs from, at the earliest, the date on which the judgment of conviction becomes final.

Generally, a § 2255 proceeding may not be used to re-litigate questions that were raised and considered on direct appeal, with limited exceptions, such as when there has been an intervening change in the law. Davis v. U.S., 417 U.S. 333, 342 (1974). Moreover, movants are procedurally barred from bringing claims which could have been, but were not, raised on direct appeal unless they can show both cause for the failure to raise the claim at the proper time and actual prejudice resulting from the errors raised. U.S. v. Frady, 456 U.S. 152, 168 (1982); see also Bousley v. U.S., 523 U.S. 614, 621-22 (1998); Massaro v. U.S., 538 U.S. 500, 504 (2003) ("The general rule [is] that claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice."). Absent these restrictions, Section 2255(b) requires an evidentiary hearing where the facts alleged, if not conclusively disproved by the record, and if true, would entitle the movant to collateral relief. Armienti v. U.S., 234 F.3d 820, 823 (2d Cir. 2000); see also Ciak v. U.S., 59 F.3d 296, 306-307 (2d Cir. 1995) (holding that a hearing should be granted where "[p]petitioner alleged facts, which, if found to be true, would have entitled him to habeas relief"); Fontaine v. U.S., 411 U.S. 213, 215 (1973) (holding that where the record does not "conclusively show that under no circumstances could the petitioner establish facts warranting relief under § 2255" a hearing must be afforded.).*fn7

II. Timeliness of Petition

Petitions under § 2255 must be brought, at the latest, one year from the date at which the judgment of conviction becomes final. Within the context of collateral review, "finality attaches when [the Supreme Court] affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." Clay v. U.S., 537 U.S. 522, 527 (2003). The Second Circuit has extended the "prison mailbox rule" to petitions for writs of habeas corpus, including § 2255 motions, such that "a prisoner appearing pro se satisfies the time limit for filing a notice of appeal if he delivers the notice to prison officials within the time specified." Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001), cert. denied, 534 U.S. 886 (2001) (citing Houston v. Lack, 487 U.S. 266 (1988)).

In this case, since the Supreme Court denied certiorari on November 13, 2006, Florez v. U.S., 549 U.S. 1040 (2006), the one-year limitation on post-conviction relief under ยง 2255 began on that date. Petitioner filed the instant motion on November 26, 2007, 13 days beyond the expiration of the statute of limitations. Nevertheless, since there is no evidence that petitioner, appearing pro se, did not deliver the petition to prison authorities for mailing at the ...

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