The opinion of the court was delivered by: I. Leo Glasser United States Senior District Judge
GLASSER, United States Senior District Judge
Petitioner Frantz Bouloute (the "petitioner"), a prisoner in federal custody, moves to amend his May 25, 2007 motion to vacate, correct or set aside his sentence pursuant to 28 U.S.C. § 2255 (the "Initial Petition"). On November 28, 2008, the petitioner filed a "Motion to Amend Original 2255 Petition to Add New Claim" (the "2008 Petition") to include his claim that the government violated his due process rights when it failed to disclose evidence that impeached the credibility of co-conspirator Robert Douyon who testified extensively for the government at the petitioner's trial.
This Court denied the Initial Petition as without merit. Bouloute v. United States, No. 07 Civ. 2201 (ILG), 2008 WL 163693 (E.D.N.Y. Jan. 15, 2008). The Court now finds that the impeachment evidence described in the 2008 Petition is not prejudicial, and therefore, the claim in the 2008 Petition is denied.
In early 2003, the petitioner participated in a scheme to import cocaine from South America to the United States with three other individuals: an informant known as "Footso," Robert Douyon, and Frantz Bruno.*fn1 Footso, who had been arrested in early 2003, was cooperating with the Drug Enforcement Agency ("DEA"). He was known to the petitioner as someone that could smuggle drugs through New York area airports. Douyon was a long time friend of the petitioner. Bruno was an associate of Douyon who could obtain drugs from South America for importation to the United States. The four co-conspirators met in Miami on May 8, 2003, and agreed on a plan to import cocaine into the United States through New York area airports. Law enforcement photographed and audio-taped that meeting with the assistance of Footso.
In July 2003, law enforcement removed a suitcase that contained 30.19 kilograms of cocaine from a flight arriving at Newark International Airport that had originated in Venezuela. While attempting to obtain the suitcase from an agent posing as a baggage handler, the petitioner was arrested. The petitioner was indicted for conspiracy to import cocaine pursuant to 21 U.S.C. § 963, importation of cocaine pursuant to 21 U.S.C. § 952(a) and attempted possession with intent to distribute cocaine pursuant to 21 U.S.C. § 846.
According to the government, agents from the New York office of the Drug Enforcement Agency ("DEA-NY") were also prepared to arrest co-conspirator Douyon in July, but were asked to delay any arrest by the Miami bureau of U.S. Immigration and Customs Enforcement ("ICE- FL"), as it was conducting a wiretap investigation of Douyon's brother-in-law and had been intercepting conversations between the two. After several months, ICE-FL advised DEA-NY that it was not going to arrest Douyon, and DEA-NY arrested him in October 2003. Shortly thereafter, Douyon agreed to cooperate with law enforcement and pleaded guilty to conspiring to import over five kilograms of cocaine into the United States from March 2003 through July 2003. At the petitioner's January 2005 trial, Douyon testified about the conspiracy and was cross-examined about his role in it and his cooperation agreement with prosecutors. A jury found the petitioner guilty on all three counts on January 27, 2005.
In the Initial Petition, the petitioner contended that the Court erred at sentencing by attributing to him the entire amount of cocaine that was seized and that his attorney's failure to object to the Court's calculation of the sentencing guidelines offense level constituted ineffective assistance of counsel. The Court denied the Initial Petition on the merits on January 15, 2008, and the petitioner appealed that decision to the Second Circuit.
Douyon was sentenced in the Eastern District of New York on November 29, 2007, for his role in the drug conspiracy with the petitioner. At the sentencing of Douyon, the petitioner's attorney learned for the first time that Douyon was charged in 2006 by federal prosecutors in the Southern District of Florida with narcotics trafficking activities in a sealed indictment and pleaded guilty to those charges in March 2007. (2008 Petition 2; Government Sentencing Letter dated November 20, 2007.)
On November 25, 2008, the petitioner moved the Second Circuit to hold in abeyance his appeal of this Court's order denying the Initial Petition so that it could be amended. The 2008 Petition was served on November 28, 2008, and the petitioner's motion to hold the appeal in abeyance was granted on December 12, 2008. The 2008 Petition claims that the government failed to disclose that Douyon was being investigated for other narcotics offenses in Florida and evidence showing Douyon's involvement in those offenses.
I. Amendment of the Petition
A threshold question for the Court is whether it has jurisdiction to consider the 2008 Petition. Although the government does not contest this Court's jurisdiction, the failure of jurisdiction is nonwaiveable and may be addressed sua sponte at any time. See ...