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Creary v. United States

September 5, 2012

PAUL CREARY, PETITIONER,
v.
UNITED STATES OF AMERICA RESPONDENT.



The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.

OPINION AND ORDER

I. INTRODUCTION

On August 30, 2011, Paul Creary ("petitioner" or "Creary") filed this pro se motion to vacate, set aside or correct his sentence pursuant to section 2255 of Title 28 o the United States Code ("section 2255"). Creary challenges his March 24, 2009 sentence on the ground that he was denied effective assistance of counsel. In particular, Creary asserts that his defense counsel was ineffective for: (1) failing to properly and adequately investigate petitioner's case; (2) failing to obtain and present alibi evidence; (3) failing to request that the Court impose a sentence based on the drug that carried a lesser sentence in situation[s] as this involving the conviction and general verdict for multiple drugs"; (4) failing to present independent evidence in support of his birth record; (5) failing to the jury selection pool; (6) failing to advise the petitioner of the consequences of deportation; and (7) failing to seek a remedy for an Article 36 violation to the Vienna Convention on Consular Relations.*fn1 For the following reasons, the Petition is denied.

II. BACKGROUND

A. The Offense Conduct

On September 9, 2004, Creary was indicted on the following three counts: (1) conspiracy to distribute and possess with intent to distribute powder cocaine and cocaine base ("crack"), in violation of 21 U.S.C. §§ 846, 812, 841(a)(1), 841(b)(1)(C), and 841(b)(1)(A); (2) possession of cocaine with intent to distribute on March 31, 2004, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C), and 18 U.S.C. § 2; and (3) possession of fifty grams or more of crack with intent to distribute on April 28, 2004, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A) and 18 U.S.C. § 2.*fn2

B. The Government's Case at Trial

The evidence at Creary's trial included testimony by federal agents who were investigating Creary for producing and distributing fraudulent documents.*fn3 The investigation included four months of court-authorized wiretaps of his cellular phone and videotape surveillance of one of two transactions.*fn4

During the investigation, Senior Special Agent Ricky Miller showed a Government confidential informant ("CI"), Orville Walsh, a picture of Creary with no identifying notations.*fn5 Walsh identified Creary and explained that he knew him from years before in both the Bronx and Philadelphia.*fn6 Walsh agreed to help with the investigation, arranged a meeting with Creary and further agreed to wear a body wire and record his phone calls with Creary.*fn7 During these meetings with Walsh, Creary agreed to help Walsh secure drugs in addition to fraudulent documents.*fn8

The two meetings between Walsh and Creary took place in a McDonald's parking lot in the Bronx.*fn9 Special Agent Kenneth Straut of Immigration and Customs Enforcement, conducted surveillance of these meetings: he testified to seeing a gray BMW sedan registered to Creary at the March 31, 2004 meeting and a gray Mercedes SUV driven by Creary at the April 28, 2004 meeting.*fn10

During the first exchange, Creary sold Walsh five thousand dollars worth of powder cocaine.*fn11 One month later, Creary again met with Walsh to sell him eight thousand dollars worth of crack cocaine.*fn12 During both transactions, Creary contacted his supplier, Otis Wright, to get the drugs and determine the price and quantity of the sales.*fn13

C. The Defense Case

At trial, Creary testified in his own defense but counsel called no other witnesses. Creary testified that he was born in Alabama on June 18, 1975.*fn14 He admitted to being in the business of creating fraudulent identification documents.*fn15

Creary did not dispute that he was present at both drug deals, confirming the dates, locations, prices and approximate quantities of drugs he obtained from his supplier.*fn16 However, he also testified that he believed the meetings with Walsh were mainly to supply fake documents and that he did not want to be involved with drugs.*fn17 Creary stated that he was entrapped into the drug portion of the ...


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