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Toro v. United States

February 9, 2010


The opinion of the court was delivered by: Denise Cote, District Judge


Pro se prisoner Mario Toro ("Toro") petitions for a writ of habeas corpus to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on the ground that his attorneys provided ineffective assistance of counsel to him at various stages of his prosecution. For the following reasons, the petition is denied.


Toro was arrested on drug charges on August 21, 2001. Toro provided some initial assistance to the Government, but after two proffer sessions was advised that the Government would not enter into a cooperation agreement with him. Toro fled to Canada and then to Colombia, from which he was extradited. Toro was arraigned on February 6, 2003.

On March 7, 2003, Toro entered a plea of guilty to Count One of the Indictment, which charged him with participating in a conspiracy to distribute drugs. He was advised that he faced a ten-year mandatory minimum term of imprisonment. The Government's Pimentel letter calculated his sentencing guidelines range as 292 to 365 months' imprisonment, and Toro was specifically advised of that fact during the plea allocution. The Court explained the safety valve provision of the law to Toro as well. At the allocution, Toro asserted that he was satisfied with his attorney.

The Presentence Report ("PSR") calculated Toro's guidelines range as 235 to 293 months' imprisonment. Defense counsel objected that the PSR contained several errors. He argued, inter alia, that Toro should receive adjustments for his extraordinary acceptance of responsibility and his minor role in the offense. He also argued that the drug quantity should be calculated as ten kilograms, rather than sixty kilograms, and that a downward departure was warranted based on aberrant behavior. Toro also submitted his own letter in support of a reduced sentence.

A Fatico hearing was held on August 28, November 3, and November 5, 2003. Toro and his mother testified on his behalf. The Government called witnesses as well. The Court made findings at the conclusion of the hearing, including finding that Toro had committed perjury during the Fatico hearing. The Court also ruled that there was no basis for a minor role adjustment, and that Toro was not entitled to any credit for acceptance of responsibility in light of his flight, his lies to the Government during his proffer sessions, and his perjury during the Fatico hearing. It rejected any departure based on aberrant conduct.

In advance of sentencing, defense counsel and the Government made extensive submissions. At the March 5, 2004 sentencing, the Court imposed a sentence that consisted principally of 168 months' imprisonment. In doing so, the Court rejected the Government's position that Toro should be held accountable for the 50 kilograms of cocaine that he discussed in February 2001, and that he should receive a role enhancement. The Court imposed separate obstruction of justice enhancements of two levels for absconding while on bail and one level for perjury during the Fatico hearing.

Toro appealed. On March 2, 2005, the Court of Appeals summarily affirmed the Court's guidelines calculations, but remanded the case to determine whether resentencing was required pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). The Court of Appeals declined to reach Toro's ineffective assistance of counsel claim.

After this Court rejected Toro's request to be resentenced, Toro appealed again. On March 3, 2006, Toro's attorney moved to be relieved as counsel and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). The Government moved for summary affirmance. On June 26, 2006, the Court of Appeals granted defense counsel's motion to withdraw, but denied the Government's motion for summary affirmance. The Court of Appeals directed that new counsel be appointed to represent Toro during his second appeal and ordered additional briefing. On February 29, 2008, the Court of Appeals affirmed the judgment. It again declined, however, to consider Toro's ineffective assistance of counsel claim.

On February 24, 2009, Toro filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. The Government filed a response on November 13, 2009. Toro filed a reply to the Government's submission on January 6, 2009.


Toro contends that his attorneys provided ineffective assistance of counsel in connection with his plea, sentence, the Crosby proceedings on remand, and during his second appeal. The Supreme Court has defined a two-part test for evaluating ineffective-assistance claims. See Strickland v. Washington, 466 U.S. 668, 687 (1984); accord Palacios v. Burge, 589 F.3d 556, 561 (2d Cir. 2009). First, "the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Strickland, 466 U.S. at 687. Second, "the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. While a petitioner must prove both incompetence and prejudice, "there is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697.

The Strickland standard is a high bar for Toro. A constitutional claim does not arise unless a lawyer's error is so egregious as to amount to a failure to provide even minimal professional representation. See, e.g., Lynn v. Bliden, 443 F.3d 238, 247 (2d Cir. 2006); Lindstadt v. Keane, 239 F.3d 191, 198-199 (2d Cir. 2001). The burden of proving prejudice is equally stringent in that petitioner must show a "reasonable probability" that, ...

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