The opinion of the court was delivered by: Hon. Harold Baer, Jr., United States District Judge*fn1
Pro Se petitioner Jose Erbo ("Erbo" or "Petitioner") moves pursuant to 28 U.S.C. § 2255 to vacate his conviction and sentence to six consecutive terms of life imprisonment followed by a consecutive 45-year sentence and, in the alternative, for a new trial. Petitioner asserts three bases for relief: (1) ineffective assistance of counsel; (2) trial counsel's failure to argue at sentencing that the United States could not sentence him to a term exceeding 30 years based on the conditions of his extradition; and (3) newly discovered evidence that, in Petitioner's view, mandates that his case be reopened. For the reasons that follow, Petitioner's motion is DENIED.
On February 4, 1999, the Government charged Petitioner in a seventeen-count indictment, which included charges of racketeering, murder, and conspiracy to commit murder in aid of racketeering. In September 1999, Petitioner was convicted on weapons charges in the Dominican Republic and sentenced to two-years' imprisonment. Upon his completion of that sentence in April 2001, the Dominican Republic surrendered Petitioner to the United States pursuant to an extradition request. Petitioner subsequently pled not guilty, and trial commenced on May 9, 2002.
At trial the Government proved that between 1991 and 1997, Erbo headed a violent gang known as "Tito's Crew." U.S. v. Erbo, No. 97 CR. 1105, 2006 WL 2165739, at *1, (S.D.N.Y. July 31, 2006). Under Erbo's leadership, Tito's Crew sold cocaine and crack, performed both contract murders "for hire," and non-contractual murders in furtherance of its narcotics trafficking activities.*fn2 Id. (citing Tr. 198-99.) and developed a signature style of assassination: members of Tito's Crew rode motorcycles and wielded automatic weapons to carry out executions. Tr. 198-99, 296-97. The Government called approximately 20 witnesses to testify at Petitioners trial, including Miguel Feliz ("Feliz"), a former member of Tito's Crew who testified that he participated in murders with Petitioner, Tr. 199-200, including murders pursuant to contracts from an individual known to him as "Leo," who himself worked for a man known as "the Colombian." Tr. 277-78. Feliz testified that he had never met the Colombian, and did not know his true identity, but that he later learned that the Colombian supplied drugs to Tito's Crew. Tr. 277. Feliz testified that he participated in about 14 or 15 murders with Erbo, and that on one occasion he shot the victim himself. Tr. 200, 205.
At trial, the Government also called two other cooperating witnesses, including Santiago Diaz, who supplied cocaine to Tito's Crew and who participated in several murders with Erbo. The Government's case also included testimony from law enforcement agents who participated in the investigation, eyewitnesses to some of the murders, crime scene evidence and the testimony of a ballistics expert who determined that the same two firearms were used in many of the crimes committed by Tito's Crew.
On May 23, 2002, the jury found Petitioner guilty of racketeering, in violation of 18 U.S.C. § 1962(c), conspiring to violate racketeering laws, in violation of 18 U.S.C. § 1962(d), conspiring to commit and committing murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a), using and carrying firearms in connection with the murders and conspiracies to commit murder, in violation of 18 U.S.C. § 924(c), and conspiring to distribute and possess with the intent to distribute cocaine and crack, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. On October 17, 2002, I sentenced Petitioner to six consecutive terms of life imprisonment to be followed by a consecutive 45-year sentence. On July 31, 2006, I denied Petitioner's motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, as his arguments on the basis of newly discovered evidence and alleged violations of Brady*fn3 and Giglio*fn4 were unavailing.
Petitioner appealed his conviction to the United States Court of Appeals for the Second Circuit where he unsuccessfully argued that: (1) this Court violated his Sixth Amendment right to confrontation by admitting into evidence the plea allocutions of several of his co-conspirators and the autopsy reports of his victims; (2) the terms of his extradition from the Dominican Republic to the United States limit his sentence to thirty years' imprisonment; (3) the jury instruction concerning accomplice testimony was insufficient; (4) this Court erred by permitting the Government to question Miguel Feliz about uncharged homicides and then limiting Petitioner's cross-examination of Feliz; and (5) his sentence should be recalculated in light of the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). U.S. v. Feliz, 201 Fed.Appx. 814, 815-16 (2d Cir. 2006). The Supreme Court denied Petitioner's Writ of Certiorari on February 26, 2007. Erbo v. U.S., 127 S.Ct. 1323 (2007).
Under 28 U.S.C. § 2255 ("§ 2255") relief is provided on the ground that a prisoner is in custody in violation of the Constitution or laws or treaties of the United States.*fn5 See Davis v. United States, 94 S.Ct. 2298, 2304 (1974). To prevail on a § 2255 claim, petitioner must show either 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; or (3) the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. See Woodard v. United States, No. 04 CIV 9695,2005 U.S. Dist. LEXIS 26802, at *6 (S.D.N.Y. Nov. 8, 2005) (citing Johnson v. United States, 313 F.3d 815, 817 (2d Cir. 2002)); 28 U.S.C. § 2255.The statute further provides that if any of the grounds enumerated above are present, "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id.
A. Ineffective Assistance of Counsel
Petitioner seeks an order vacating his conviction on the grounds that he did not receive effective assistance of counsel as guaranteed by the Sixth Amendment. "The benchmark for judging any claim of ineffective [assistance of counsel is]... whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 687 (1984); accord Wiggins v. Smith, 539 U.S. 510 (2003). Thus, to prevail on an ineffective assistance of counsel claim, the defendant must show that: (1) his counsel's representation fell below an objective standard of reasonableness; and (2) he was prejudiced by his counsel's deficient representation. Strickland, 466 U.S. at 687. The proper measure of an attorney's performance is "[r]easonableness under prevailing professional norms." Wiggins v. Smith, 539 U.S. 510, 521 (2003). Prejudice is shown if, but for the deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different. Id. at 534. A reasonable probability is a probability "sufficient to undermine confidence in the outcome." Id. Thus, an error by Petitioner's counsel, even if deemed professionally unreasonable, does not warrant setting aside the judgment if the error had no effect on the judgment. Strickland, 466 U.S. at 691. "In applying this standard, a reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004)
Petitioner alleges that Ramon Rodriguez, Thelma Deleon, Lilly Castillo and Ramon Martinez are witnesses who may have been involved in three of the seven murders for which he was convicted and should have been called by his counsel at trial.*fn6 Petitioner also maintains that his trial counsel should have interviewed Dionis Castillo and Daisy Guzman. In his traverse, Petitioner argues that his trial counsel's failure to request a continuance of the trial meant that counsel had only seven weeks to prepare for trial and provided ineffective assistance because, inter alia, counsel did not interview the family members of the victims or the eyewitnesses. Petitioner assumes that the testimony of the witnesses who were not called would have disproved his involvement in certain of the murders and thus, had the witnesses been called, the outcome of the trial would ...