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Victor Lorenzana v. United States of America

September 27, 2012

VICTOR LORENZANA, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: John F. Keenan, United States District Judge:

OPINION & ORDER

Before the Court is Petitioner Victor Lorenzana's ("Lorenzana") pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("Section 2255"). For the following reasons, Lorenzana's motion is denied.

I. BACKGROUND

A. The Indictment, Trial, and Verdict

In a twelve-count indictment filed on May 24, 2005, Lorenzana and a co-defendant were charged with various crimes relating to a series of armed robberies. Lorenzana was charged with ten of the twelve counts in the indictment. Count One charged him with participating in a conspiracy from at least in or about 1995 through in or about 2001 to commit armed robberies and attempted armed robberies of persons engaged in narcotics trafficking and/or commercial activities that affected interstate commerce, in violation of 18 U.S.C. § 1952. Counts Two, Three, and Five each charged Lorenzana as a principal or aider and abettor in Hobbs Act robberies, in violation of 18 U.S.C. §§ 1951 and 2. Counts Six, Seven, and Nine each charged him with using, carrying and brandishing a firearm during and in retaliation to particular robberies, in violation of 18 U.S.C. §§ 924(c)(i)(A)(ii) and

2. Count Ten charged Lorenzana with participating in a conspiracy from at least in or about 1995 through in or about late 2001 to distribute and possess with intent to distribute five kilograms and more of cocaine and one kilogram and more of heroin, in violation of 21 U.S.C. §§ 846, 812, 841(a)(1), and 841(b)(1)(A). Counts Eleven and Twelve each charged Lorenzana with money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2.

Lorenzana's trial began on June 1, 2005. Of the Government's twenty-three witnesses, five were longtime associates of Lorenzana who testified that they participated in several robberies with him. Additional witnesses included victims of Lorenzana's robberies, law enforcement officials who responded to robberies and collected crime scene evidence, a detective in the New York Police Department who took part in court-ordered searches of accomplices' residences and vehicles, and an Alcohol, Tobacco, Firearms and Explosives Special Agent who conducted surveillance of Lorenzana and interrogated him upon his arrest.

The Government also introduced a bevy of physical evidence, including seized firearms and ammunition (six guns were found at one of Lorenzana's prior residences), tools used during the robberies, such as radios, walkie-talkies, scanners, cable ties, handcuffs, a bulletproof vest, crowbars, as well as crime scene photographs.

On June 29, 2005, the jury convicted Lorenzana on all counts, with the exception of the second money laundering count (Count Twelve).

B. Post Trial Motions

After the jury verdict, Lorenzana made a Rule 29 motion for a judgment of acquittal and moved for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. First, he claimed that he was deprived of his right to be present at all material stages of the trial because the Court conducted interviews of a juror outside of his presence (although his attorney was present). Second, he claimed that his trial counsel was ineffective for failing to advise him of what had transpired during those interviews. Lorenzana also challenged the Court's jury instructions regarding the interstate commerce element of the Hobbs Act and, further argued that the Government failed to prove that element beyond a reasonable doubt. Finally, Lorenzana argued that his Sixth Amendment rights were violated because the stabbing victim from the Crystal House robbery was not called as a witness by the Government. On January 3, 2007, this Court denied Lorenzana's motion in its entirety. U.S. v. Lorenzano, 03 Cr. 1256, 2007 WL 29231 (S.D.N.Y. Jan. 3, 2007).

C. Sentencing

On January 16, 2007, Lorenzana was sentenced to a total of 87 years' imprisonment, five years' supervised release, and a $900 special assessment.

D. Direct Appeals

On appeal before the Second Circuit, Lorenzana raised the same issues detailed in Part I.B, above. By Summary Order dated June 2, 2010, the Second Circuit affirmed the judgment of conviction against Lorenzana. Although the Second Circuit found that the jury instructions regarding the interstate commerce element of the Hobbs Act robbery charges were improper, it concluded that the error was harmless. The Second Circuit reasoned that the Hobbs Act requires "'a very slight effect on interstate commerce,'" and the Government's evidence that "the victims of one of the robberies sold drugs in Connecticut, New Jersey, and Maryland, and that Lorenzana and his crew used the proceeds of the drug robberies to travel out of state" was sufficient to establish such an effect. In addition, the Second Circuit pointed out that "the targeted drug dealers trafficked in cocaine and heroin, drugs that cannot be produced in New York." Id. (citations omitted). Subsequently, the Second Circuit denied Lorenzana's petition for a rehearing en banc, and the Supreme Court denied Lorenzana's petition for writ of certiorari. Lorenzana v. United States, 131 S. Ct. 837 (2010).

Lorenzana's pro se memorandum accompanying his Section 2255 petition ("Pet'r Mot.") cites eleven "Grounds" to set aside his sentence. The Government has filed a memorandum in opposition to Lorenzana's Section 2255 motion along with various exhibits ("Gov. Ex."), and in response, Lorenzana has submitted a reply memorandum ("Pet'r Reply"). In a later-filed ...


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