The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Petitioner, Levin Matthews, filed a timely motion pursuant to U.S.C. § 2255 seeking to set aside his conviction and sentence. With the Court's permission, Petitioner filed a supplemental motion. Petitioner requested that the Court treat the supplemental papers as a "one time all inclusive § 2255 application." Accordingly, the Court will look only to the arguments asserted in Petitioner's supplemental motion. In his supplemental motion, Petitioner asserts the following grounds for relief: (1) that he received ineffective assistance of counsel; (2) that there is insufficient evidence to support a RICO conviction; (3) that there is insufficient evidence to support a conviction on a single conspiracy; (4) that the inclusion of the criminal street gang enhancement prejudiced the jury thereby denying him a fair trial; and (5) that he received ineffective assistance of appellate counsel.
Petitioner was convicted of conspiring to distribute and possession with intent to distribute 50 grams or more of cocaine base and an unspecified amount of cocaine and marijuana; murder while engaging in a drug trafficking offense; conspiring to violate the Racketeer Influenced and Corrupt Organizations Act (RICO); two counts of murder in aid of racketeering activity; distributing cocaine base; using and carrying firearms during and in relation to a drug trafficking crime; possessing firearms in furtherance of a drug trafficking crime; and illegally possessing firearms as a convicted felon. Petitioner is serving a term of life imprisonment. On appeal, the Second Circuit Court of Appeals affirmed the conviction, but held that Petitioner's sentence was improperly enhanced by the street gang enhancement. United States v. Matthews, 261 Fed.Appx. 343, 2008 WL 227966 (2d Cir. 2008). On remand, this Court deleted mention of the street gang enhancement and concluded that re-sentencing was unwarranted because "under the current advisory guidelines system, the Court would not have reached a non-trivially different sentence from that imposed as to counts 1, 2, 3, 6, 13, 14, and/or 15 as they apply to the Defendants." See Docket No. 844. On June 1, 2009, Petitioner filed this § 2255 motion. The Government opposes the motion.
Under U.S.C. § 2255, a prisoner may move the court which imposed his sentence to vacate, set aside, or correct the sentence only if he asserts "a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a 'fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). "In this collateral attack upon his conviction, petitioner bears the burden of establishing by a preponderance of the evidence that he is entitled to relief." U.S. v. Gallo-Lopez, 931 F. Supp. 146, 148 (N.D.N.Y. 1996); Parsons v. United States, 919 F. Supp. 86, 88-89 (N.D.N.Y. 1996). "If, upon the Court's review of the record, moving papers, and any attached exhibits and affidavits, 'it plainly appears ... that the movant is not entitled to relief', the Court may summarily dismiss petitioner's motion." Id. (citing Rule 4(b) of the Rules Governing Proceedings in the United States District Courts Under Section 2255 of Title 28, United States Code).
"Where a petitioner does not bring a claim on direct appeal, he is barred from raising the claim in a subsequent § 2255 proceeding unless he can establish both cause for the procedural default and actual prejudice resulting therefrom." Billy-Eko v. United States, 8 F.3d 111, 113-14 (2d Cir. 1993)(overruled on other grounds Massaro v. United States, 538 U.S. 500, 509 (2003))(citing United States v. Frady, 456 U.S. 152, 167-68 (1982)). "One way for a § 2255 petitioner to satisfy both the cause and prejudice requirements is to prove that he received ineffective assistance of counsel." Gallo-Lopez, 931 F. Supp. at 148; Murray v. Carrier, 477 U.S. (1986).
Finally, a § 2255 petition cannot be used "to relitigate questions which were raised and considered on direct appeal." United States v. Sanin, 252 F.3d 79,83 (2d Cir. 2001) (quoting Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992)); see also United States v. Natelli, 553 F.2d 5, 7 (2d Cir. 1977)("once a matter has been decided adversely to a petitioner on direct appeal it cannot be relitigated in a collateral attack . . . .").
A. Ineffective Assistance of Counsel
Petitioner claims that defense counsel provided ineffective assistance of counsel in failing to adequately challenge, exclude and/or preserve for appeal: (1) defense's objection to F.B.I. Agent James Lyons' testimony as violating the Confrontation Clause; (2) the street gang evidence presented; (3) the inclusion of the Enhanced Penalty Allegation in the indictment; and (4) the insufficient evidence to support a single conspiracy presented at trial.
To demonstrate ineffective assistance of counsel, Petitioner must show both (1) his counsel's performance was objectively unreasonable, and (2) that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668 (1984). A reviewing court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the Petitioner must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound [legal] strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91 (1995)). To determine whether an attorney's conduct was deficient the "court must ... determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. at 690. The prejudice inquiry requires asking "whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. Id. at 695.
Petitioner first alleges that defense counsel provided ineffective assistance in failing to properly object to and preserve for appeal FBI Agent Lyons' testimony of the statements made to him by government informants. Petitioner alleges that his counsel failed to make clear his objection based on the Confrontation Clause and, as a result, Petitioner's Sixth Amendment right to be confronted with the witnesses against him was violated.
The Sixth Amendment's Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The Supreme Court, in Crawford v. Washington, interpreted the Confrontation Clause to apply only to "'witnesses' against the accused-in other words, those who 'bear testimony.'" 541 U.S. 36, 51 (2004). The Supreme Court held that out-of-court statements by witnesses that are testimonial are barred under the Confrontation Clause unless the witnesses are unavailable and defendant had prior opportunity to cross-examine the witnesses, regardless of whether such statements are deemed reliable by the court. Crawford, 541 U.S. at 53. In this case, the statements made by FBI Agent Lyons during his testimony were non-testimonial in nature and involved background information gleaned from informants that formed the basis of Agent ...