The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1
Antonio Scott ("Petitioner"), proceeding pro se, brings this petition to vacate, set aside, or correct his federal criminal sentence pursuant to 28 U.S.C. § 2255. Petitioner alleges two grounds for relief. He argues that: (1) trial counsel failed to object to improper comments by the prosecutor, which Petitioner argues expressed personal beliefs of the prosecutor about his guilt, vouched for two witnesses, and inflamed the passions of the jurors; and (2) trial counsel failed to object to an allegedly flawed jury instruction on the interstate commerce element of the Hobbs Act. For the reasons set forth below, this petition is DENIED.
In September 2008, Petitioner and his co-defendant were charged with conspiracy to commit a Hobbs Act robbery in violation of 18 U.S.C. § 1951(b)(1) ("Count 1"); (2) attempted Hobbs Act robbery in violation of 18 U.S.C. § 1951(b)(1) ("Count 2"); (3) attempted possession with the intent to distribute marijuana in violation of 18 U.S.C. § 2 and 21 U.S.C. § 846 ("Count 3"); and (4) using or carrying a firearm, during and in relation to, a crime of violence or narcotics trafficking crime under 18 U.S.C. § 2 and 18 U.S.C. § 924(c)(1)(A)(ii)--(iii) ("Count 4"). Although Petitioner was also charged with being a felon in possession of a firearm, the government dismissed that count prior to trial, which commenced on October 14, 2008. This trial ended on October 21, 2008, when a jury found Petitioner and his co-defendant guilty as to all four counts. On January 30, 2009, Petitioner was sentenced to 207 months in federal prison, to be followed by three years of supervised released, and a mandatory $400 special assessment.
In November 2008, Petitioner filed a motion for judgment of acquittal and moved for a new trial. In part, these motions argued that the jury instruction on the interstate commerce element of the Hobbs Act was flawed because it failed to explain that the prosecution had to show an impact on interstate commerce. On January 7, 2009, this Court entered an order rejecting that argument. The Court of Appeals affirmed Petitioner's conviction. United States v. White, 372 F. App'x 115, 116 (2d Cir. 2010).
II. GENERAL STANDARD OF REVIEW
The requested relief is "generally available under § 2255 only for a constitutional error . . . or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Cuoco v. United States,208 F.3d 27, 30 (2d Cir. 2000). Where a habeas Petitioner is a pro selitigant, the Court shall "'read his supporting papers liberally, and will interpret them to raise the strongest arguments that they suggest.'" Rodriguez v. United States, No. 10 CIV. 5259 (KTD), 2011 WL 4406339, at *2 (S.D.N.Y. Sept. 22, 2011) (quoting Burgos v. Hopkins,14 F.3d 787, 790 (2d Cir. 1994)).
Most habeas claims are procedurally barred if they are not pursued on direct appeal. See Mui v. United States, 614 F.3d 50, 55 (2d Cir. 2010). However, ineffective assistance of counsel claims may be raised in a § 2255 petition even though they were not raised on direct appeal. Id. (citing Massaro v. United States, 538 U.S. 500, 508--09 (2003)). Petitioner's claims are not therefore barred merely because they were not pursued on direct appeal. Nevertheless, ineffective assistance of counsel claims cannot be used to relitigate claims that are themselves procedurally barred or were disposed of on the merits. See, e.g., Azzara v. United States,No. 02 CR 1446, 2011 WL 5025010, at *6 (S.D.N.Y. Oct. 20, 2011) (stating that the defendant could not "repackage" procedurally barred claims pursued on direct appeal as ineffective assistance of counsel claims).
A.Applicable Standard for Ineffective Assistance of Counsel and Prosecutorial Misconduct Claims
Although it is not clear whether Petitioner brings separate ineffective assistance of counsel claims and prosecutorial misconduct claims, both types of claims will be considered.
In order to prevail on a claim of ineffective assistance of counsel, Petitioner must (1) illustrate that his counsel's conduct fell below the "objective standard of reasonableness," and (2) "affirmatively prove prejudice." Rodriguez v. United States, No. 10 CIV. 5259 (KTD), 2011 WL 4406339, at *2 (S.D.N.Y. Sept. 22, 2011) (quoting Strickland v. Washington, 466 U.S. 668, 693--94 (1984)). "[A] Court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Strickland, 466 U.S.at 689. Prejudice is established if Petitioner demonstrates 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. The question is not whether the attorney in question adhered to the best practices or customs. Harrington v. Richter, 131 S. Ct. 770, 778 (2011). Rather, the relevant query is whether the "attorney's representation amounted to incompetence under the prevailing professional norms." Id. (internal quotation marks omitted).
In the context of an alleged failure to object to prosecutorial misconduct, "if there is no merit to the underlying charge of prosecutorial misconduct, an attorney is not ineffective for his or her failure to object on such grounds." Bilzerian v. United States, Nos. 95 Civ. 1215(RJW), 88 Cr. 962(RJW), 1996 WL 524340, at *7 (S.D.N.Y. Sept. 13, 1996) (quoting Grant v. Scully, No. 90 Civ. 4429, 1993 WL 88207, at *5 (S.D.N.Y. Mar. 19, 1993)). In order "[for] a federal habeas Court to find a due process violation" based on prosecutorial misconduct "Petitioner must show that, in the context of the entire trial, that conduct had such a prejudicial effect that Petitioner was denied a fundamentally fair trial." Mucci v. Quinlan, No. 83 Civ. 7263, 1986 WL 6776, at *6 (S.D.N.Y. June 10, 1986) (citing, inter alia, Donnelly v. DeChristoforo, 416 U.S. 637, 642--43 (1974)). In determining whether there was substantial prejudice courts must consider (1) the severity of the misconduct, (2) measures taken to cure the misconduct, and (3) the certainty of conviction absent the misconduct. Id.; see also United States v. Banki, No. 10-3381-CR, 2012 WL 539962, at *18 (2d Cir. Feb. 21, 2012, revised Feb. 21, 2012, and Feb. 22, 2012). Finally, courts are even less likely to find that there was prosecutorial misconduct due to statements made during rebuttal summations, as they are usually improvised. United States v. Arias-Javier, 392 F. App'x 896, 899 (2d Cir. 2010).
B.The Prosecutor's Purported Expression of Personal Knowledge of the Defendant's Guilt and ...