The opinion of the court was delivered by: David G. Larimer United States District Judge
Defendant Albert Donald ("Donald") was convicted after a jury trial of narcotics trafficking offenses and a firearms offense. He was sentenced by this Court principally to an aggregate term of 240 months imprisonment.
Donald appealed from the judgment and on March 28, 2011, the United States Court of Appeals for the Second Circuit affirmed the conviction in a summary order. Thereafter, Donald filed the pending motion (Dkt. #129), pro se, pursuant to 28 U.S.C. § 2255 to vacate the Judgment of Conviction.
After the original motion was filed, Donald filed two motions (Dkts. #137, #140) to amend the original motion. The Court granted leave (Dkt. #139) and the Government filed a Response (Dkt. #132) to the original motion, as well as a second Response (Dkt. #145), to Donald's subsequent filings (Dkt. #144). The motion to vacate, as amended, is in all respects denied.*fn1
DONALD'S ORIGINAL MOTION Donald's original motion alleges that he received ineffective assistance of counsel in several respects and he also now claims that he is entitled to relief because he is actually innocent of the crimes charged.
Donald has a heavy burden of establishing ineffective assistance of counsel. The test for such claims was established in Strickland v. Washington, 466 U.S. 668 (1984) by the United States Supreme Court. There are two aspects to the test, both a performance test and a prejudice test. To obtain relief, Donald must establish that his lawyer's performance was deficient when measured against an objective standard and, additionally, that there was a "reasonable probability" that but for counsel's errors, the result of the proceeding would have been different. Donald has failed to establish either requirement.
As the Government points out in its Responses, there is a strong presumption that defense counsel's performance fell within the range of reasonable professional assistance and that matters of trial strategy or the like do not constitute deficient performance.
Donald raises a spate of matters he believes demonstrates counsel's ineffective assistance. Most require little comment.
Although Donald addresses these claims in terms of ineffective assistance of counsel, they are little more than a reargument of claims that Donald made on direct appeal, which were rejected by the Second Circuit. In some instances, Donald attacks his trial counsel's performance because counsel failed to prevail at the trial relating to certain matters. Counsel is not a magician, however. Counsel, in fact, vigorously argued for certain things at trial, but this Court rejected his arguments and ruled against Donald. Such activity can hardly be classified as ineffective assistance of counsel.
For example, Donald argues that counsel was ineffective for failing to obtain a missing witness instruction relative to a Government informant. The request for such an instruction was made by counsel but the Court ruled that it was not appropriate in this case, and the Second Circuit affirmed that decision.
Donald also suggests that counsel was ineffective for failing to successfully attack the credibility of one of the Government's principal witnesses, Floretta Alston. The record, however, demonstrates that counsel, during cross examination, repeatedly challenged Alston. The Government in its Response (Dkt. #132 at p. 9-10) provides a lengthy list of what Donald's trial counsel did concerning the witness Alston. The witness was vigorously challenged by counsel. Simply because the jury apparently accepted her testimony (which was corroborated by other evidence) does not demonstrate ineffective assistance of counsel.
Donald also claims, under the guise of an ineffective-assistance claim, that his prior conviction involving narcotics should not have been considered by the Court under the United States Sentencing Guidelines. This Court ruled that the conviction was properly considered and the Second Circuit affirmed that decision. There is, therefore, no basis to claim that counsel was ineffective for failing to prevail on that argument.
In its Response (Dkt. #132), the Government lists the numerous things that defense counsel did in the course of the trial to conduct a defense. The record supports all those assertions and demonstrates that Donald's trial counsel was a vigorous proponent for Donald on the issues raised during trial and provided an objectively reasonable level of performance on Donald's behalf.
Several other matters raised by Donald now simply are erroneous statements of the law and, therefore, fail to show ineffective assistance of counsel. For example, Donald suggests that trial counsel should have relied on Fed R. Evid. 806 when dealing with the missing informant, Gregory Jasper. But, as the Government points out in its Response (Dkt. #132, p. 14-15), that Rule has no applicability whatsoever since Jasper did not testify. Therefore, the only avenue open for Donald's ...