The opinion of the court was delivered by: Wood, U.S.D.J.
In 2004, Petitioner Frank Smith Castillo ("Petitioner") was convicted of one count of conspiring to commit armed bank robbery, in violation of 18 U.S.C. § 371; three counts of armed robbery in violation of 18 U.S.C. § 2113(a) and (d); and three counts of using and carrying a firearm, which was brandished and equipped with a silencer, in furtherance of an armed robbery, in violation of 18 U.S.C. § 924(c). Petitioner, acting pro se, files the instant petition for habeas corpus pursuant to 28 U.S.C. § 2255 ("Section 2255"), asking the Court to vacate, set aside, or correct his sentence on the grounds that: (1) the District Court erred in failing to explain to Petitioner his right to present a case; (2) the District Court erred in instructing the jury; (3) the Government failed to disclose materials covered by Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and the Jencks Act, 18 U.S.C. § 3500; (4) there was insufficient evidence to support the jury's guilty verdict; and (5) Petitioner's trial counsel provided ineffective assistance.
For the reasons set forth below, the Court DENIES Petitioner's habeas corpus petition.
A. Trial and Crimes of Conviction
Petitioner was charged in a fifteen-count superseding indictment with one count of conspiracy to commit armed bank robbery, in violation of 18 U.S.C. § 371; seven counts of armed robbery, in violation of 18 U.S.C. § 2113(a) and (d); and seven counts of using and carrying a firearm, which was brandished and equipped with a silencer, in furtherance of an armed robbery, in violation of 18 U.S.C. § 924(c). The indictment alleged that these crimes took place between February and June 2003.
Petitioner's trial was held between October 25, 2004 and November 8, 2004. The government called eighteen witnesses at trial: fifteen bank employees or customers, two alleged accomplices of Petitioner, and the police investigator who had conducted the photo array for a bank employee witness who identified Petitioner as the robber. The Government also presented surveillance photographs and the audio from a phone call recorded at one of the banks during one of the robberies.
The Government and the defense entered into several stipulations of undisputed facts, including, inter alia, the layout of the banks and the fact that the banks were FDIC-insured.
Following trial, the jury found Petitioner guilty of conspiracy to commit armed bank robbery, guilty on three counts of armed robbery, and guilty on three counts of using and carrying a firearm in furtherance of an armed robbery. The jury was unable to reach a verdict on the remaining counts. The Government subsequently agreed to dismiss the counts on which the jury could not reach a verdict.*fn1
B. Petitioner's Post-Conviction Appeal
Petitioner appealed his conviction to the Second Circuit on three grounds: (1) that the District Court erred in its application of Federal Rule of Evidence 404(b) by allowing the Government to introduce evidence of a prior crime without restricting the scope or limiting the use of that evidence; (2) that his trial counsel rendered ineffective assistance by failing to request a limiting instruction regarding the prior crime evidence; and (3) that this Court erred in imposing restitution as part of the sentence. On April 20, 2006, the Second Circuit affirmed Petitioner's conviction, rejecting the first and third claims, and declining to resolve the second. United States v. Castillo, 186 Fed. App'x. 25 (2d Cir. 2006).
On March 20, 2007, Petitioner filed the instant petition for habeas corpus, pursuant to Section 2255. Petitioner raises four grounds for habeas relief based on alleged error on the part of the Government and trial court. Specifically, Petitioner argues: (1) the District Court erred by failing to specifically advise the Defendant that he had the right to present a case; (2) the District Court erred in instructing the jury; (3) the Government failed to turn over potentially exculpatory material and witnesses' prior statements, as required by Brady, Giglio and the Jencks Act, 18 U.S.C. § 3500; and (4) there was insufficient evidence to support the jury's verdict (collectively, "Grounds (1) -- (4)"). Petitioner did not raise these claims on direct appeal.
The remainder of Petitioner's arguments concern Petitioner's fifth claim ("Ground 5") that he received ineffective assistance of counsel at trial. Specifically, Petitioner claims that he received ineffective assistance of counsel because his trial counsel (a) entered into certain trial stipulations; (b) failed to investigate and use discovery material provided by the government; (c) failed to obtain certain discovery material from the Government; (d) made various strategic errors, including to failing to present a defense case; (e) failed to file a motion to sever the charged offenses; and (f) failed to object to the court's jury instructions (collectively, "Ineffective Assistance Claims").
On June 26, 2007, Petitioner filed a "Motion of Formal Request for Appointment of Counsel, Pursuant to 18 U.S.C. § 3006A and 28 U.S.C. § 1915(d)."
In his Reply Brief, dated June 26, 2007, Petitioner argues for the first time that language barriers rendered him unable to understand the criminal proceedings against him or to receive effective assistance from his English-speaking counsel.
For the reasons set forth below, the Court DENIES the petition for habeas corpus relief pursuant to Section 2255 and DENIES Petitioner's Motion for Appointment of Counsel.
A. An Evidentiary Hearing Is Not Warranted
Section 2255 requires that a court hold an evidentiary hearing on a petitioner's claim, unless the motions and records in the case establish that the petitioner is not entitled to relief. "It is within a district court's discretion to determine whether an evidentiary hearing is warranted." Bennett v. United States, No. 03 Civ. 1852, 07 Cr. 639, 2004 WL 2711064, at *3 (S.D.N.Y. Nov. 23, 2004). While a court should not summarily dismiss a case unless it is clearly bereft of merit, an evidentiary hearing is not needed in every case. Id.; see also Chang v. United States, 250 F.3d 79, 85-86 (2d Cir. 2001). To obtain a hearing, "a petitioner 'must demonstrate a colorable claim,' and the court must evaluate whether a hearing would 'offer any reasonable chance of altering its view of the facts.'" Bennett, 2004 WL 2711064, at *3 (quoting Chang, 250 F.3d at 84, 86).
An evidentiary hearing is not warranted for the instant petition. As discussed below, the briefs and supporting record make clear that no factual disputes exist that would warrant a hearing, and that the petition is without merit.
B. Alleged Language Barrier
As an initial matter, the Court addresses Petitioner's contention, raised for the first time in his Reply Brief in support of his Section 2255 Motion, that language barriers rendered him incompetent to stand trial and made it impossible for him to receive effective assistance of either trial or appellate counsel. Petitioner claims that because he is of Cuban descent and speaks Spanish as a first language, "there is no way that either [trial or appellate] counsel could have discussed or consulted with him in [E]nglish." Pet'r Reply at 4. Petitioner further argues that his trial counsel should have moved for a competency hearing to address this language barrier and that his appellate counsel should have moved for an interpreter to help assist Petitioner in his defense on his appeal. Id.
The Second Circuit has held that non-English speaking defendants have a constitutional right to a court-appointed interpreter throughout the course of a criminal trial. See United States ex rel. Negron v. State of New York, 434 F.2d 386, 389-91 (2d Cir. 1970). "When a defendant is clearly able to communicate in a given language, however, he cannot sustain claims protesting that his trial was unfair because of a language barrier." Elize v. United States, No. 02 Civ. 1350, 2008 WL 4425286, *7 (E.D.N.Y. Sept. 30, 2008) (citing Negron, 434 F.2d at 391). Further, this Court has held that in order to preserve a claim of inadequate interpretive assistance, a Defendant must raise the issue with the trial court if the issue was not "manifestly obvious." Sosa v. Mohawk Corr. Fac., No. 07 Civ. 5916, 2008 WL 534764, at *6-7 (S.D.N.Y. Feb. 25, 2008); see also United States v. Vargas, 871 F. Supp. 623, 625 (S.D.N.Y. 1994).
Because the issue of a language barrier between Petitioner and his counsel was never raised by either his counsel or Petitioner at any point before or during the trial proceedings, before or during his appeal, or even in Petitioner's initial Section 2255 motion, Petitioner has waived this argument. See, e.g., United States v. Yousef, 327 F.3d 56, 115-16 (2d Cir. 2003) (declining to consider argument raised for the first time in appellant's reply brief). Petitioner contends that his language disability was "obvious, not just a possibility," noting that the Government requested that an interpreter be present while witnesses for the Government testified. Pet'r Reply at 8. This argument is, however, directly contradicted by the record, which demonstrates that Petitioner did possess an understanding of English sufficient to comprehend the proceedings. At Petitioner's arraignment on the superseding indictment, which occurred immediately prior to the start of trial, the Court addressed the language issue, and expressly offered the services of an interpreter to the extent such services were necessary to aid in any aspect of Petitioner's defense. Petitioner communicated to the court (in English) that he understood what was being said and did not require an interpreter:
THE COURT: Mr. Castillo, are you prepared to waive a reading of the superseding indictment and enter a plea of not guilty as to all the counts at this time?
THE DEFENDANT: (In English) Yes, your Honor. . . .
MR. UDELL [Assistant U.S. Attorney]: . . . [Y]our Honor, just before we begin, with respect to the interpreter, for the record, we have an interpreter on stand-by, but I'm not certain whether the defendant would like to avail himself of her services.
THE COURT [to the interpreter]: Ms. Weisz, would you please speak with the defendant and ascertain whether you understand each other, and then you ...