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Ramos v. United States

May 10, 2010

MARIO RAMOS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



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

OPINION & ORDER

Pro se petitioner Mario Ramos ("Ramos") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2255, attacking his narcotics conspiracy conviction following a jury trial held in March 2006 before the Honorable Shirley Wohl Kram, District Judge. Ramos contends that his conviction was flawed because he was denied effective assistance of counsel during pretrial, trial, and sentencing proceedings. For the following reasons, the petition is denied in its entirety.

BACKGROUND

On September 24, 1998, Ramos and fifteen co-defendants were indicted on the single charge that they conspired to distribute and possess with intent to distribute five kilograms and more of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A)(ii), and 846 (the "indictment"). Arrest warrants were issued for Ramos's arrest on September 14 and October 1, 1998. All but four of the defendants charged in the indictment pleaded guilty in 1999 and 2000 and were sentenced. Two of the co-defendants remain fugitives, and a third jumped bail and remains at large. Ramos was not arrested until about March 2, 2004, more than five years after the warrants for his arrest were issued. On June 9, 2004, pursuant to a plea agreement negotiated between the Government and Ramos's then-defense counsel ("prior counsel"), Ramos pleaded guilty to the sole count contained in the 1998 indictment.

The week following his guilty plea, on June 18, Ramos wrote a letter to Judge Kram expressing dissatisfaction with prior counsel, alleging that prior counsel "pressured [Ramos] from the very beginning into accepting a plead [sic] bargain agreement which [Ramos] was always against." Ramos also stated that he had not been given an opportunity to review the 3500 material prior to entering his guilty plea, a request he had made of prior counsel. Ramos's letter asked that he be permitted to withdraw his plea of guilty so that he could "defend [him]self by having a fair trial."

A conference was held on July 7, 2004 to address the concerns raised by Ramos in his letter. Ramos explained that he wished to be appointed a new attorney, and the court then relieved prior counsel. Ramos's new attorney, Richard B. Lind ("counsel" or "defense counsel"), was appointed later that day. Throughout the summer and fall of 2004, counsel engaged in further plea negotiations with the Government that resulted in multiple adjournments of scheduled status conferences. With counsel's assistance, on December 27, 2004, Ramos formally moved to withdraw his plea of guilty. That motion was granted by Opinion and Order of January 20, 2005. United States v. Ramos, No. 98 Cr. 1038 (SWK), 2005 WL 120230 (S.D.N.Y. Jan. 20, 2005) (the "January 20 Order"). Thereafter, plea negotiations continued throughout the following twelve months on an occasional basis, and the originally scheduled trial date of July 2005 was adjourned multiple times.

On February 6, 2006, Ramos moved to dismiss the indictment on the ground that the five-and-a-half-year delay between his indictment and arrest violated the Speedy Trial Act, 18 U.S.C. § 3161 et seq., and his Sixth Amendment right to a speedy trial (the "February 6 motion"). Following a hearing on February 17, 2006 at which both Ramos and the Government presented witness testimony and other evidence, Judge Kram denied the February 6 motion by Opinion and Order of February 28, 2006. United States v. Ramos, 420 F. Supp. 2d 241 (S.D.N.Y. 2006) (the "February 28 Opinion").

On February 17, the United States Attorney filed a prior felony offender information pursuant to 21 U.S.C. § 851(a). The prior felony was a May 1991 conviction in New York state court for attempted criminal sale of a controlled substance in the third degree, a Class C felony, for which Ramos was sentenced to time served and a five-year term of probation. The filing of the prior felony information had the effect of enhancing the mandatory minimum sentence, if Ramos were convicted, from 10 years to 20 years as provided by 21 U.S.C. § 841(b)(1)(A).

Following other pretrial motion practice, jury selection began on February 28, 2006, and trial began on March 1. The Government's evidence -- which included transcripts of wiretapped telephone calls, photographs of seized cocaine, and testimony from three co-conspirators and several FBI special agents -- showed that Ramos was connected to a cocaine trafficking organization (the "Duverge organization") operated by two brothers, Rafael and Francisco Duverge. Between 1992 and 1998, Ramos regularly ordered and received shipments of five to ten kilograms of cocaine from the Duverges for re-sale to his own customers, and also occasionally served as a lookout for the Duverges' drug transactions. The defendant called one witness, a Department of Motor Vehicles investigator, who testified that Ramos's New York driver's license was renewed in January 2003 and that the renewal application did not contain any false information. The jury returned a verdict of guilty on the sole count of the indictment on March 8, 2006. On June 14, 2006, Judge Kram sentenced Ramos to the mandatory minimum term of imprisonment of 20 years, a term of supervised release of 10 years, and a $100 special assessment.

Ramos filed a timely appeal in which he argued that the court erred by denying his pretrial motion to dismiss. Ramos contended that the court had improperly relied on certain statements made by Ramos to Pretrial Services concerning his whereabouts between 1998 and 2004. The Court of Appeals affirmed the conviction by summary order on February 11, 2008. On June 9, 2008, the Supreme Court denied a petition for a writ of certiorari. On April 7, 2009, Ramos filed this timely § 2255 petition.

DISCUSSION

Under 28 U.S.C. § 2255, "a federal prisoner may move the sentencing court to vacate, set aside, or correct the sentence on the ground that such sentence was illegally imposed." Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009). Ramos asserts that defense counsel provided ineffective assistance to him in connection with pretrial, trial, and sentencing proceedings. Ramos identifies eight grounds of ineffective assistance in his § 2255 petition and supporting papers.*fn1

The Supreme Court has established a two-part test for evaluating claims of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); accord Puglisi, 586 F.3d at 215. "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." Id. While the defendant must prove both deficient performance and prejudice, "there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697.

Under Strickland, "[a] criminal defendant has a high burden to overcome to prove the deficiency of his counsel." Lynn v. Bliden, 443 F.3d 238, 247 (2d Cir. 2006). With respect to the first prong, the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," as "[t]here are countless ways to provide effective assistance in any given case." Strickland, 466 U.S. at 689. Moreover, "[a]ctions and/or omissions taken by counsel for strategic purposes generally do not constitute ineffective assistance of counsel." Gibbons v. Savage, 555 F.3d 112, 122 (2d Cir. 2009). The performance inquiry examines the reasonableness of counsel's performance "from counsel's perspective at the time" and "considering all the circumstances." Strickland, 466 U.S. at 688, 689.

The petitioner's burden with respect to prejudice is similarly stringent. Ramos must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694; accord Puglisi, 586 F.3d at 215. In applying this standard, "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.; accord Wilson v. Mazzuca, 570 F.3d 490, 506-07 (2d Cir. 2009). "[T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged." Strickland, 466 U.S. at 696.

When briefing on a ยง 2255 petition reveals contested issues of material fact, an evidentiary hearing is held. "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the ...


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