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Victor Martinez v. United States of America

March 30, 2012


The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.


On September 11, 2010, Petitioner Victor Martinez ("Martinez" or "Petitioner"), pro se, submitted a petition of habeas corpus seeking to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Martinez also submitted a motion for discovery pursuant to Federal Rule of Criminal Procedure ("Fed. R. Crim. P.") 6, seeking a transcript of the grand jury proceedings in his case. For the following reasons, Martinez's motions are denied.


On July 17, 2006, Martinez was indicted on one count of conspiracy to distribute heroin in violation of 21 U.S.C. §§ 812, 846, 841(a)(1), and 841(b)(1)(A). On October 11, 2006, attorney Samuel Braverman ("Braverman") entered an appearance on behalf of Martinez. (ECF No. 75.)*fn1 On October 23, 2006, Martinez submitted a motion to suppress physical evidence obtained from a search of his apartment, and for production of Brady material in the Government's possession. (ECF No. 89.) On December 18, 2006, the Court orally denied Martinez's motion to suppress the evidence, concluding that the search was conducted after Martinez signed the consent form. (Tr. of Dec. 18, 2006 Evidentiary Hr'g at 105-06.) On August 22, 2007, the Government filed a superseding indictment (the "Indictment") in the case, again charging Martinez with one count of conspiracy to distribute heroin, and specifically alleging that Martinez supplied heroin to co-conspirators in the area surrounding Longwood Avenue and Fox Street in the Bronx, and that he concealed $7,500 in a refrigerator located in an apartment on Beck Street in the Bronx. (ECF No. 196.)

Martinez's trial began on September 4, 2007. On September 11, 2007, the jury returned a guilty verdict against Martinez on the single count in the Indictment. Following the verdict, Martinez moved to set aside the jury verdict pursuant to Fed. R. Crim. P. 29, or in the alternative, for a new trial pursuant to Fed. R. Crim. P. 33, arguing that the verdict was an unreasonable conclusion in light of the evidence presented, specifically "the credibility of the witnesses, their inconsistencies exposed upon cross-examination, and the failure by the Government to introduce physical evidence which tended to corroborate the claims of the cooperating witnesses." (ECF No. 210 at 1.) On September 28, 2007, the Court denied the motion, concluding that there was adequate evidence for the jury to convict Martinez. (ECF No. 217.) On March 4, 2008, Martinez was sentenced to 262 months of imprisonment, to be followed by a five-year term of supervised release, and a mandatory $100 special assessment. (ECF No. 264.) In calculating Martinez's sentence, the Court determined that a four-point leadership enhancement applied pursuant to § 3B1.1(a) of the Sentencing Guidelines, because Martinez was the leader or organizer of criminal activity involving five or more participants. (Tr. of Mar. 4, 2008 Sentencing Hr'g at 28.) The Court also determined that the conspiracy involved between three and ten kilograms of heroin. (See id. at 13, 32.)

On March 11, 2008, Martinez appealed the Court's final judgment, arguing that he was deprived of a fair trial based on comments made by the Court during his attorney's summation, and that he was improperly sentenced. On March 3, 2009, the Second Circuit affirmed this Court's decision in a summary order. See United States v. Tito, 313 Fed. App'x 402 (2d Cir. Mar. 3, 2009). On June 2, 2009, Martinez's motion for a re-hearing en banc was denied. On November 2, 2009, the Supreme Court denied his petition for a writ of certiorari. See Martinez v. United States, 130 S. Ct. 528 (2009). Braverman represented Martinez during all stages of the case, from pre-trial proceedings through direct appeal.

On September 11, 2010, Martinez, pro se, submitted a petition for habeas corpus relief pursuant to 28 U.S.C. § 2255. Therein, Martinez alleges that: (1) the evidence seized from his apartment was unlawfully obtained and should have been suppressed; (2) his indictment was fraudulent because it was not based on sufficient evidence to show probable cause; (3) his conviction was based on insufficient evidence; (4) the four-point leadership sentencing enhancement was erroneously applied; and (5) his defense counsel was ineffective for failing to raise these and certain other issues, resulting in a violation of his rights under the Fifth and Sixth Amendments. Martinez requests that the Court grant his petition, permit an evidentiary hearing on the claims, and vacate his sentence and conviction. (Pet'r's Mot. to Vacate ("Pet'r Mot.") at 12.) Martinez also submitted a motion for discovery pursuant to Fed. R. Crim. P. 6, seeking "a copy of the grand jury testimony of any and all government witnesses who went before the grand jury which indicted him; that provided testimony about him" in order to prove defects in the Indictment. (Pet'r's Mot. for Disc. Pursuant to Fed. R. Crim. P. 6 ("Pet'r Disc. Mot.") at 2.) On June 21, 2011, the Government filed an opposition to Martinez's motions, requesting that the Court deny Martinez's petition of habeas corpus and motion for additional discovery. (Gov't's Mem. in Resp. to Pet'r's Mot. for Habeas Corpus Relief ("Gov't's Mem.").) On August 22, 2011, Martinez submitted a reply to the Government's brief. (Pet'r's Mem. Responding to Resp't's Mem. ("Pet'r Reply").)


At trial, the Government presented the testimony of four of Martinez's co-conspirators, as well as two law enforcement agents who participated in the investigation. The co-conspirators testified about the operations of the heroin distribution network and their personal interactions with Martinez. Specifically, they testified that from in or about 2001 to July 2006, Martinez, a/k/a "Butchie" or "Butch," was the leader of a narcotics distribution network. The network distributed heroin in the vicinity of Longwood Avenue and 156th Street, between Fox and Kelly Streets, in the Bronx, New York (the "Longwood vicinity"). Martinez controlled and supplied heroin to the individuals that worked in this network, determined where and when the workers could sell and what percentage of the sale each individual could take, and received a portion of the proceeds from all heroin sales.

A. The Testimony of Henry Tilo

The first co-conspirator to testify was Henry Tilo a/k/a "Dog" ("Tilo"). Tilo testified that he grew up with Martinez in the Longwood area of the South Bronx. (47.) In 2000, Martinez approached Tilo and asked him if he wanted to sell heroin. (58.) Tilo agreed, and began selling on Longwood Avenue, in between Fox and Beck Street. (61.) Initially, Tilo would receive the heroin from Martinez's friends "Sunday" and "Little Mike." (58.) He would receive between 10 and 30 "bundles"*fn3 of heroin at a time. (60.) Each glassine bag of heroin would be marked with a stamp to indicate its brand. (61.) The heroin that Tilo received was marked with the "Suzuki" brand. (61.) After selling the heroin, Tilo would keep 15% of the proceeds for himself, and give the rest of the money to "Sunday" and "Little Mike." (64.) After six months or a year, Tilo began receiving heroin directly from Martinez. (66.) He would receive between 50 and 60 bundles at a time, which would take him about two days to sell. (66.) He would keep 15% of the proceeds, and give the remaining 85% to Martinez. (72.) This continued until April of 2001, when Tilo was involved in a shooting. (72.) Tilo went to jail as a result of the shooting, and was incarcerated for several months. (73.)

When he returned to the neighborhood, Tilo found out that other people working for Martinez were now making 25% off of each bundle that they sold. (88.) Tilo approached Martinez and asked him about this, and Martinez told Tilo that he too would get 25% when he started working again. (89.) Tilo began selling again under this new arrangement, obtaining heroin from Martinez approximately every two days. (89.) At that time, the heroin Tilo would receive bore stamps that read "Suzuki" and "24/7." (89.) Martinez told Tilo where he could and could not sell heroin in the neighborhood. (95.) One location that was off limits was the area in front of Martinez's brother's pizza shop on Longwood Avenue, just east of Fox Street. (95.)

As sales began to increase, Martinez told Tilo that he would not be giving him heroin directly anymore, and instead, Tilo would receive it from Christian Balseca a/k/a "Spell" ("Balseca"). (97.) At this point Tilo was selling approximately 100 bundles of heroin every two days. (98.) Thereafter, Tilo received heroin from Balseca for six months to a year, and then began receiving heroin directly from Martinez again. (99.) Tilo had a number of people working for him on the street who would actually make the hand-to-hand heroin sales, including Frankie Gonzalez a/k/a "Frankie" ("Gonzalez"), Javier Coralieng a/k/a "Tego" ("Coralieng"), and Elizabeth Cintron a/k/a "Liz" ("Cintron"). (98-99, 185-187.) These individuals were known as "pitchers."*fn4 Alvin Sanchez a/k/a "Papo Swing" ("Sanchez"), also worked for Tilo, but was allowed to receive heroin directly from Martinez as well. (102.) Hector Matos a/k/a "Cuso" a/k/a "Green Eyes" ("Matos"), received heroin from Tilo and Sanchez and passed it down to the pitchers, but would also pitch himself. (103.) Gonzalez, Coralieng, and Cintron worked directly for Sanchez and Tilo, but everyone ultimately worked for Martinez. (104.) Salvador Otero a/k/a Fat Papo ("Otero"), also received heroin directly from Martinez to sell. (94.)

Generally, Tilo would receive the heroin directly from Martinez. Tilo would then pass this heroin on to Sanchez, who would distribute it to the pitchers on the street to sell. (108.) After the heroin was sold, each of the pitchers would take a certain percentage. Tilo would then take a percentage for himself, and give the remainder of the money back to Martinez, who he referred to as "the boss." (113.) Tilo continued to sell heroin for Martinez until approximately February 2005. (116.)

B. The Testimony of Detective Clarence Fredericks

Detective Clarence Fredericks ("Fredericks") of the New York Police Department (the "NYPD") testified next at trial. Fredericks testified that he had worked for the NYPD for 16 years, and had been a detective since 1999. (178.) He testified that he was assigned to the Bronx narcotics major case unit, and that in July 2004 he began an investigation of Martinez for heroin distribution. (178-79.) The investigation focused on the area of the South Bronx in the vicinity of Longwood Avenue, specifically Longwood Avenue between Beck Street and Fox Street, as well as Beck Street between 156th Street and Longwood Avenue, and Fox Street between 156th Street and Longwood Avenue. (181.) The investigation lasted for almost two years, until May 2006, during which time undercover officers made over 60 different purchases resulting in a total of approximately 300 bundles of heroin. (180-81.) A portion of the heroin purchased by the undercovers bore the "Suzuki" stamp. (184.)

Fredericks personally conducted surveillance, video surveillance, undercover buys, and background checks of individuals who had been arrested in Martinez's neighborhood. (179.) Video surveillance was taken by Fredericks from inside his vehicle, using a handheld camera. (189.) Approximately ten such videos were taken, all of which were admitted into evidence at trial. (190.) One video shows Coralieng, Tilo, Sanchez, and others together in the vicinity of Longwood Avenue on September 13, 2004. (207-09.) In another, taken on September 29, 2004, Coralieng is seen making a hand-to-hand heroin sale. (206.) Another video taken that day shows a group of people waiting in a "cheese line"*fn5 to purchase drugs. (217.) Fredericks also testified that when the police arrested Martinez on July 18, 2006, they found $7,500 in cash inside a refrigerator in the room Martinez was found in. (246.)

C. The Testimony of Christian Balseca

Balseca was the second co-conspirator to testify at trial. He testified that he started selling heroin for Martinez on Fox Street in late 2002, and continued selling until July 2003. (268.) Balseca was working as a livery cab driver, and initially, Martinez would call him for rides. (278.) Eventually, Balseca had a conversation with Martinez about selling heroin, and the two came to an agreement whereby Balseca would receive heroin from Martinez, and distribute it to a number of pitchers who would make the hand-to-hand sales. Balseca would allow the pitchers to keep 15% of the proceeds from the sales, keep 10% for himself, and give the remaining 75% back to Martinez. (280-81.) Martinez subsequently gave Balseca 30 bundles of heroin bearing the stamp "24/7," which Balseca handed off to a pitcher named "Psycho." (282-83, 285.) Once all of the heroin had been sold, Balseca took his percentage, paid "Psycho," and gave the rest of the money to Martinez. (283-84.) After this transaction, Martinez continued to supply Balseca with heroin, giving him between 50 and 70 bundles at a time. (285.) Balseca would pass the heroin off to a pitcher named "Crazy" and another pitcher named "Fat Bastard" to sell on the street. (286.) Balseca was introduced to these people by Tilo, who was also working for Martinez at the time. (288-89.) Tilo would also receive heroin from Martinez, and used pitchers, including Matos, to ...

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