The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:
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On May 14, 2010, Ruben Canini ("Canini") filed a 28 U.S.C. § 2255 petition to vacate his sentence, claiming ineffective assistance of counsel.
On June 15, 2006, a jury found Canini guilty on all three counts of an indictment charging him, under Count One, with conspiracy to distribute one kilogram of heroin and, under Counts Two and Three, with distributing and possessing with intent to distribute heroin on September 29, 2003 and October 2, 2003, respectively. After trial, Canini moved for a judgment of acquittal, pursuant to Fed. R. Crim. P. 29(c), and for a new trial, pursuant to Fed. R. Crim. P. Rule 33. The Court denied Canini's motions and sentenced him to 240 months' incarceration. Canini appealed and, on January 22, 2009, the Second Circuit affirmed Canini's conviction.
Canini's petition to vacate his sentence or his claim that defense counsel provided constitutionally ineffective assistance is DENIED.
On May 11, 2004, Canini was indicted for conspiring to distribute heroin, in violation of Title 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A) and 846. (See May 11, 2004 Indictment.) In 2005, Canini was tried on this count before Judge Barbara Jones, but the jury did not reach a verdict. (See Sept. 19, 2005 Declaration of Mistrial.) After trial, Canini's counsel was relieved and Robert Krakow ("defense counsel"), a CJA attorney, was appointed. (Jan. 3, 2006 Order.) On February 16, 2006, the Government filed a superseding indictment against Canini adding two counts of distributing, and possessing with the intent to distribute, unspecified quantities of heroin on September 29, 2003 and October 2, 2003, in violation of Title 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C). (See Feb. 16, 2006 Indictment.)
On June 12, 2006, a trial commenced on the charges raised in the superseding indictment. During the trial, the Government called as witnesses two members of the Vyse Avenue drug conspiracy who testified pursuant to cooperation agreements and three police officers who were involved in the investigation of the case. The two members of the conspiracy, Virella and Benitez, had not testified at the first trial. Canini's defense was not that he did not sell heroin, but rather the heroin he sold was not part of the Vyse Avenue conspiracy alleged in the indictment. Defense counsel called only one witness, Michael Green ("Green"), who testified that Canini sold an alternative brand of heroin called "50 Cent," and that he did not believe Canini sold drugs for Virella's Vyse Avenue drug organization. (See June 15, 2006 Tr. 380-88.) The trial record reflects that the defense counsel contemplated calling Alberto Rosario, Anthony Miranda, Angel Ortiz, and Edwin Suavez as witnesses, but decided against calling these individuals due to the likelihood that they would assert their Fifth Amendment privilege or otherwise would not provide helpful testimony. (See id. 366-372.) Defense counsel also attempted to call Carlos Colon to testify, but provided the Court with insufficient notice to secure his presence. (See id. 309.) Finally, defense counsel contemplated calling George Gortija to testify, though it is unclear why Mr. Gortija was not ultimately called.
The jury deliberated for less than two hours before it returned a guilty verdict on all three counts. (See id. 485, 493-96.)
B. Post-Trial Motions and Appeal
On July 26, 2006, this Court held a conference on defense counsel's motion to be relieved as counsel of record. (See July 26, 2006 Tr. 3) During this conference, this Court noted that it believed that defense counsel "did a competent job of representing Mr. Canini -- more than competent, as a matter of fact." (Id. 5; see also id. 7.) This Court denied defense counsel's motion to be relieved because current defense counsel was in the best position to handle post trial motions. The Court agreed, however, to appoint new counsel for sentencing. (See id. 7-8.)
On or about August 24, 2006, Canini, through defense counsel, moved for a judgment of acquittal, pursuant to Fed. R. Crim. P. 29(c), and for a new trial, pursuant to Fed. R. Crim. P. 33, with respect to Counts One and Three. There was no challenged to Count Two of the indictment. On October 23, 2006, defense counsel was relieved and Dawn M. Cardi, a CJA attorney, was appointed as counsel. (Oct. 23, 2006 Order.) Mrs. Cardi was given the opportunity to file any supplemental materials in support of the post-trial motions.
This Court found that there was sufficient evidence for a rational jury to convict Canini on Counts One and Three and therefore denied Canini's motion in all respects. (See Dec. 6, 2006 Order.)
On July 17, 2007, this Court sentenced Canini to 240 months' imprisonment on all three counts, to run concurrently, which was well below Canini's guidelines range of 292-365 months' imprisonment. (July 20, 2007 Criminal Judgment; Feb. 28, 2007 Presentence Investigation Report ("PSR") 25.)
On July 27, 2007, Canini appealed his conviction. On January 22, 2009, the Second Circuit affirmed his conviction and this Court's rulings. United States v. Canini, 307 F. App'x 557, 2009 WL 141863 (2d Cir. Jan. 22, 2009). Canini ...