The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
Pending before the Court is a motion by petitioner Duong-Cam Tran to vacate his sentence pursuant to 28 U.S.C. § 2255. Petitioner raised several issues in his motion, including insufficiency of the evidence against him, ineffective assistance of trial and appellate counsel, and improper jury selection that did not represent a fair cross-section of the community. Respondent opposed the motion because, in general, petitioner litigated some of his arguments on direct appeal and failed to substantiate the others beyond conclusory assertions. For the reasons below, the Court will deny the motion.
This case concerned allegations that petitioner attempted to smuggle methamphetamine into the United States from Canada. On April 8, 2004, respondent filed a three-count indictment, the first two counts of which ultimately went to trial. In the first count, respondent accused petitioner of importing 500 grams or more of a mixture and substance containing methamphetamine, in violation of 21 U.S.C. §§ 952(a), 960(a)(1) and 960(b)(1)(H). In the second count, respondent accused petitioner of possession with intent to distribute of the same quantity of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). The Court presided over a jury trial in September 2004. On October 1, 2004, the jury convicted petitioner on both counts of the redacted indictment. On September 15, 2005, the Court sentenced petitioner to concurrent terms of imprisonment of 235 months on each count, plus five years of supervised release.
Petitioner subsequently appealed his conviction to the United States Court of Appeals for the Second Circuit. Petitioner raised three sets of issues on his direct appeal. First, petitioner challenged jury instructions concerning sole occupancy of a vehicle and nervousness as probative of knowledge. Second, petitioner challenged the sufficiency of the evidence regarding his knowledge of the presence of drugs in his vehicle and regarding respondent's method of calculating the amount of drugs in question. Third, petitioner challenged his sentence as unreasonable in light of his biographical background and his lack of a prior criminal history. In a published decision dated March 10, 2008, the Second Circuit rejected all of petitioner's arguments and affirmed the conviction and sentence. See generally U.S. v. Tran, 519 F.3d 98 (2d Cir. 2008).
On March 23, 2009, petitioner filed the pending motion. Petitioner made four arguments in his initial motion papers. First, petitioner again challenged the sufficiency of the evidence of his knowledge of the presence of drugs in his vehicle. Second, petitioner claimed that he received ineffective assistance of counsel during his appeal because his appellate counsel misstated a jury instruction that the Court gave at trial and subsequently challenged a jury instruction that the Court never gave. Third, petitioner claimed that he received ineffective assistance of counsel during proceedings before this Court because his trial counsel failed to provide him with any information about plea discussions that may have occurred before trial. Fourth, petitioner again challenged the sufficiency of the evidence concerning the amount of drugs in question. In an amendment to his motion filed on October 19, 2009 and approved on May 13, 2010, petitioner made the additional argument that his grand jury, jury pool, and petit jury had no Chinese jurors and thus did not represent a fair cross-section of the community. Respondent opposed every argument in petitioner's motion, asserting that petitioner failed to substantiate his claims of ineffective assistance of counsel and of jury selection violations. Respondent asserted further that petitioner cannot relitigate the sufficiency of the evidence against him because the Second Circuit resolved the evidentiary issues on direct appeal.
A. Relitigation of Appealed Issues
"The law of the case ordinarily forecloses relitigation of issues expressly or impliedly decided by the appellate court. Applying this general principle, we have held that section 2255 may not be employed to relitigate questions which were raised and considered on direct appeal. Nevertheless, application of the doctrine remains a matter of discretion, not jurisdiction. We may find it appropriate to reconsider an earlier decision when we are confronted with an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." U.S. v. Becker, 502 F.3d 122, 127 (2d Cir. 2007) (internal quotation marks and citations omitted). Here, the Second Circuit already ruled on petitioner's argument about his knowledge of the contents of his vehicle. Petitioner has tried to use the pending motion to add a twist to this argument by raising the issue of a language barrier, but he could have raised that issue on appeal. See U.S. v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995) ("A party who fails to raise an issue on direct appeal and subsequently endeavors to litigate the issue via a § 2255 petition must show that there was cause for failing to raise the issue, and prejudice resulting therefrom.") (internal quotation marks and citations omitted). The Second Circuit also ruled on petitioner's argument concerning sampling and the amount of drugs in question. Petitioner has not made any of the showings required under Becker to warrant revisiting these arguments. The Court thus denies these aspects of petitioner's motion.
B. Ineffective Assistance of Counsel
"A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland v. Washington, 466 U.S. 668, 690 (1984). "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Here, petitioner has made two arguments for a finding of ineffective assistance of counsel, one against his appellate counsel and one against his trial counsel. The Court will assess each of these arguments separately.
1. Misrepresentations by Appellate Counsel
Petitioner's ineffective-assistance argument against his appellate counsel is somewhat indirect. Petitioner has not identified in his motion any specific error by his appellate counsel that would meet the Strickland requirement of a reasonable probability of a different outcome. Instead, petitioner has focused on the admonishment that the Second Circuit gave his appellate counsel for two material misrepresentations in the appellate brief. The Second Circuit admonished appellate counsel for misrepresenting the jury instructions given at trial and for misrepresenting the characteristics of the pills seized from petitioner at the border. Petitioner has used these admonishments to conclude, without explanation, that he must have received inadequate representation during his appeal and that he cannot "undo the harm" that was done. Petitioner, in effect, has argued that the entirety of his appellate representation must have been ineffective if appellate counsel erred on a matter as simple as accurate representation of the ...