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Frias v. United States

September 13, 2010

OCTAVIO FRIAS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: John F. Keenan, United States District Judge

Opinion and Order

Before the Court is Petitioner Octavio Frias' ("Petitioner" or "Frias") pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons that follow, the motion is denied.

I. BACKGROUND

In a Superseding Indictment dated January 2, 2003, Frias was charged with committing murder while engaged in a conspiracy to distribute and possess with intent to distribute more than one kilogram of heroin and more than five kilograms of cocaine, in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. Frias' jury trial commenced before the Honorable Allen G. Schwartz on March 4, 2003. The Government's evidence at trial established the following facts. Mario Lobo ("Lobo") and Roberto Martinez-Martinez, also known as "Papito," operated a large-scale narcotics and gambling operation based out of El Baturro, a restaurant and club located in Manhattan. Frias was the manager of the restaurant and maintained a close relationship with Papito. Frias assisted Papito and Lobo in their illegal gambling operation as well as in the distribution of multi-kilogram quantities of heroin and cocaine. Eventually, the profitability of Lobo and Papito's illegal business was threatened by Lobo's gambling losses, and Papito decided to have Lobo killed.

Most logistical tasks for the planning of Lobo's murder fell to Frias. In the 1980s, Frias had worked with a man named Miguel Feliz ("Feliz") in the Dominican National Police. Based on this relationship, Frias recommended and coordinated the hiring of a crew of contract killers, led by Feliz, from a violent crack cocaine organization known as "Las Blue." On the morning of September 21, 1991, Frias directed the hitmen to El Baturro. While two gunmen, "Santos" and Freddy Caraballo ("Caraballo"), and Feliz waited inside the restaurant, Frias hugged Lobo to mark him as their target. The hitmen then approached Lobo from behind, and Santos delivered one fatal shot to the head.

Soon after, however, another person claimed responsibility for Lobo's murder in an apparent attempt to collect the bounty from the killing. A dispute arose between Las Blue and another crew with no relation to Frias as to who in fact shot Lobo; this dispute formed the basis of Frias' defense -- i.e., that he was not involved because a third party with no relation to him committed the murder. In order to prove Frias' participation in the murder, the Government introduced the testimony of Feliz, who had pleaded guilty to Lobo's murder, to establish that Frias recruited Las Blue to kill Lobo and that they in fact completed the task. The Government also put into evidence, among other things, Papito's plea allocution in which he acknowledged hiring an unspecified person to murder Lobo and a latent fingerprint matching Frias' which was lifted from a chair in El Baturro where one of the two shooters had sat.

Frias' trial concluded on March 12, 2003. After approximately one and a half hours of deliberation, the jury returned a guilty verdict on the single-count Indictment.*fn1

On July 1, 2004, the Court sentenced Frias to a term of life imprisonment. By Summary Order dated September 28, 2005, the Court of Appeals for the Second Circuit affirmed the judgment of conviction against Frias. However, the Court remanded the case for the limited purpose of resentencing in light of United States v. Booker, 543 U.S. 220 (2005). United States v. Frias, No. 04-4106-cr, slip op. at 3 (2d Cir. Sept. 28, 2005). Following a hearing on January 4, 2006, the Court again sentenced Frias to life imprisonment. By Opinion and Order dated March 31, 2008, the Second Circuit affirmed the reimposed sentence. United States v. Frias, 521 F.3d 229, 236 (2d Cir. 2008). On October 6, 2008, the United States Supreme Court denied Frias' petition for a writ of certiorari.

On or about February 11, 2009, Frias filed this motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Frias claims that he was denied effective assistance of counsel because his attorney: (1) failed to conduct a thorough investigation in connection with his case; (2) failed to call or subpoena Papito and other potential witnesses at trial; (3) did not properly address or object to the admission of fingerprint evidence; and (4) did not effectively object to the admission of Papito's plea allocution. Frias also contends he is entitled to a new trial on the basis of "newly discovered" statements by Papito and Caraballo.

II. DISCUSSION

A. Ineffective Assistance of Counsel

In order to prevail on a claim of ineffective assistance of counsel, a petitioner must satisfy both elements of the two part inquiry set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, the petitioner must show that "counsel's representation fell below an objective standard of reasonableness" under "prevailing professional norms." Id. at 688. In reviewing such a claim, the court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, bearing in mind that there are countless ways to provide effective assistance in any given case and that even the best criminal defense attorneys would not defend a particular client in the same way.

United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (internal quotations omitted).

Secondly, the petitioner must show prejudice flowing from counsel's defective performance. Strickland, 466 U.S. at 693. That is, the petitioner must demonstrate that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "[E]ven professionally unreasonable errors by defense counsel will not ...


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