UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
November 5, 2012
ANGEL CORDERO, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.
OPINION AND ORDER
Pro se petitioner Angel Cordero moved to vacate, set aside or correct his sentence pursuant to Title 28, United States Code, section 2255.*fn1 In that motion, Cordero alleged ineffective assistance of counsel on the part of both his trial and appellate counsel. On November 8, 2010, Cordero's habeas motion was denied.*fn2 Following that denial, Cordero filed a pro se motion for reconsideration, which was also denied.*fn3 Thereafter, Cordero appealed the denial of his motion for reconsideration to the Second Circuit, which dismissed his appeal after denying his request for a certificate of appealability.*fn4
Cordero now seeks Rule 60(b) relief from the Nov. 8 Order, citing the disclosure of disciplinary proceedings against his former appellate counsel, Paul E. Warburgh.*fn5 Specifically, Cordero seeks relief pursuant to Rule 60(b)(2) (newly discovered evidence), Rule 60(b)(3) (fraud), and Rule 60(b)(6) (any other basis justifying relief). Cordero wants to bring the following six "new" trial claims: (1) insufficiency of the evidence of the section 924(c) (firearm) count; (2) a conflict with his trial counsel regarding his right to testify and the production of defense witnesses; (3) admissibility of trial evidence regarding "an un-related contract murder"; (4) jury misconduct; (5) newly discovered evidence regarding certain Government witnesses; and (6) a statutory issue relating to the section 924(c) count.*fn6 For the following reasons, Cordero's motion is DENIED.
A. The Offense Conduct
On November 14, 2002, the S4 Superseding Indictment (the "Indictment") was filed against Cordero and four co-defendants. The Indictment charged Cordero with following counts: (1) narcotics conspiracy in violation of Title 21, United States Code, Section 846 (Count One); (2) counseling, commanding, inducing, procuring, and causing the intentional killing of Earl Edwards while engaged in a narcotics conspiracy in violation of Title 21, United States Code, Section 848(e)(1)(A) (Count Two); (3) distribution and possession with intent to distribute a controlled substance in violation of Title 21, United States Code, Section 812, 841(a)(1), and 841(b)(1)(C) (Counts Three through Eleven); and (4) possession of a firearm in furtherance of a narcotics conspiracy in violation of Title 18, United States Code, Section 924(c) ("section 924(c)") (Count Seventeen).
Cordero pled not guilty to the Indictment and went to trial with four co-defendants. Cordero was represented at trial by Daniel Noble. The trial concluded on July 17, 2003, and Cordero was convicted on all counts in the Indictment in which he was charged. On July 29, 2004, Cordero was sentenced to an aggregate term of forty years of imprisonment.
B. Cordero's Direct Appeal
On August 6, 2004, Cordero filed a timely notice of appeal along with three co-defendants. Cordero challenged, inter alia, the sufficiency of the evidence to support his conviction for the section 924(c) gun charge set forth in Count Seventeen. The Second Circuit found Cordero's arguments to be without merit.*fn7
Specifically, the Second Circuit concluded that "the record contains sufficient evidence for a rational factfinder to find Cordero and Sanchez guilty of their offenses of conviction."*fn8 In support of this conclusion, the Second Circuit stated:
The record establishes that Cordero: offered to insure payment of $5000 to Sanchez if Sanchez murdered [a] member of the rival gang; directed a member of the Hughes Boys to retrieve a .45 caliber semi-automatic pistol, which was given to Delvi and picked up by Sanchez after Sanchez was offered money to commit murder; and joined in the armed excursions to locate and kill members of the rival gang.*fn9
After considering and rejecting all of Cordero's appellate arguments, the Second Circuit affirmed his conviction.*fn10
C. Cordero's Section 2255 Motion
Following the affirmance of his conviction, Cordero filed a pro se section 2255 motion, seeking to vacate and set aside his conviction on the ground that he was denied the effective assistance of counsel by both trial and appellate counsel. I addressed each of Cordero's claims of ineffectiveness and found them to be without merit; Cordero did not show that his counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms" and was unable to prove prejudice -- that there was "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."*fn11 In his section 2255 motion, Cordero raised the following arguments:
! trial counsel failed to raise Double Jeopardy at sentencing based on the imposition of separate and consecutive sentences for violations of Title 21, sections 846 and 848(e) (Counts One and Two), and failed to advise this Court that the sentences on all (except Count Seventeen) could run concurrently. This argument was rejected because the "Double Jeopardy Clause [only] prohibits a defendant from being punished more than once for the same offense." In Cordero's case, sections 846 and 848(e) "define separate offenses as each requires proof of a fact which the other does not." Regarding the consecutive sentencing, counsel was "not expected to advise the Court on law which the Court already fully comprehends. Thus, Cordero's Double Jeopardy and failure to advise claims [were] dismissed."*fn12
! in his appellate brief, Warburgh incorrectly referenced the wrong type of gun with respect to the section 924(c) charge. In Count Seventeen, the Indictment charged Cordero with possession of a .45 caliber semi-automatic and a Tec-9 semi-automatic assault weapon in furtherance of a drug conspiracy. On appeal, Warburgh's brief referenced a 9 millimeter handgun and a .38 caliber revolver. The Court, however, held that the misstatement did not prejudice Cordero given that he could not "show that but for appellate counsel's failure to state the correct guns in his brief, 'the result of the proceeding would have been different.' Accordingly, Cordero's ineffective assistance of counsel claim regarding the types of guns referenced in his appellate brief [was] dismissed."*fn13
! both trial and appellate counsel failed to argue that there was
insufficient evidence to convict Cordero on Count Seventeen for using
or carrying a Tec-9 or a .45 caliber on the date charged in the
Indictment and that appellate counsel failed to argue that Cordero had
not "actively employed" those firearms. The insufficiency issue was
raised on appeal and "the Second Circuit directly addressed Cordero's
claim that the evidence did not support his conviction for the offense
charged in Count Seventeen and concluded that the record did in fact
contain sufficient evidence to support this conviction."*fn14
With regard to the "actively employed" argument, the Second
Circuit held that "the evidence was sufficient to prove that Cordero
possessed a firearm in furtherance of the narcotics conspiracy.
Therefore, counsel's refusal to raise the arguments suggested by
Cordero did not constitute ineffective assistance."*fn15
! trial counsel failed to object to the constitutionality of the Indictment in that the conspiracy charge was not presented to the grand jury and the Indictment did not meet the requirements of Rule 7(c)(1) of the Federal Rules of Criminal Procedure. Cordero's first argument was rejected because "[i]t is well settled that alleged errors in grand jury proceedings are not cognizable on federal habeas corpus review because [p]petitioner was convicted by a jury after a trial."*fn16 As for Rule 7(c)(1), "[t]he signed Indictment clearly and thoroughly explicates the charges against Cordero and his co-defendants, albeit in a concise manner. Thus, Rule 7(c)(1) has clearly been satisfied."*fn17
! trial and appellate counsel failed to move to dismiss for violations of the Speedy Trial Act where the Court granted several "ends of justice" continuances without making specific findings on the record justifying those continuances. The Court held that the decision by trial and appellate counsel not to assert a Speedy Trial violation "does not render their assistance constitutionally ineffective."*fn18
! trial counsel failed to object to the Government's alleged failure to provide section 3500 material for a cooperating witness (Roberto Benitez) prior to calling that witness to the stand. This ground was rejected "because the United States is not required to provide 3500 material until after the Government witness has testified."*fn19 Furthermore, "[c]counsel for Cordero used items from Benitez's 3500 material to cross-examine Benitez, as shown by the trial record, thus proving that his 3500 material was in fact timely received by defense counsel and used effectively in Cordero's defense."*fn20
On November 29, 2010, Cordero filed a motion for reconsideration pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. On December 28, 2010, this Court denied Cordero's reconsideration motion. On February 23, 2011, Cordero appealed the denial of his motion for reconsideration to the Second Circuit. In a Mandate dated November 7, 2011, the Second Circuit dismissed the appeal after denying Cordero's motion for a certificate of appealability.
D. Cordero's Allegations of Ineffective Assistance of Appellate Counsel On March 22, 2011, Warburgh was publicly reprimanded by the Second Circuit for misconduct discussed in the Committee on Admissions and Grievances (the "Committee") and he was granted leave to resign from the bar.*fn21
The Committee, in turn, documented various disciplinary issues relating to Warburgh including failure to comply with scheduling orders, to respond to Court inquiries, and/or to communicate with his clients.*fn22 These failures related to four specific cases, of which Cordero's case was one. With respect to Warburgh's representation of Cordero, the Committee Report stated:
On January 10, 2007, the Court dismissed this appeal based on the belief that Mr. Warburgh had failed to file a brief even after the Clerk's Office has called him twice regarding the default. According to the Court's records, it is possible that the brief actually was filed and the dismissal was in error. Regardless, there is no evidence that Mr. Warburgh made any efforts to have the appeal reinstated.*fn23
On June 13, 2007, the Court reinstated the appeal. According to the docket, Warburgh subsequently continued to represent Cordero on appeal. Cordero's criminal judgment was affirmed on April 15, 2008.
E. The Instant Motion
Cordero filed the instant Rule 60(b) motion on March 23, 2012. The gravamen of this motion is based on the Second Circuit's findings concerning Warburgh's conduct during Cordero's appeal. Cordero argues that the Warburgh Decision constitutes newly discovered evidence that his appellate counsel engaged in misconduct and was negligent. Cordero's motion seeks to re-open his section 2255 proceedings in order to assert six new trial claims unrelated to the appeal of his conviction
II. LEGAL STANDARDS
A. Rule 60(b) in General
The relief available under Rule 60(b) is equitable in nature.*fn24 "The rule 'strikes a balance between serving the ends of justice and preserving the finality of judgments.' However, because the grant of a Rule 60(b) motion affords the movant 'extraordinary judicial relief, it is invoked only upon a showing of exceptional circumstances.'"*fn25 "Accordingly, a party seeking relief under this rule must show 'highly convincing' evidence in support of [her] motion, good cause for [her] 'failure to act sooner,' and that the non-moving party would not suffer undue hardship."*fn26 A Rule 60(b) motion is "addressed to the sound discretion of the district court."*fn27
Section 2255 provides habeas relief for prisoners who seek to have
their sentences vacated, set aside or corrected.*fn28
Given the availability of this
relief, a Rule 60(b) motion is not the appropriate vehicle for lodging
new attacks against an underlying criminal conviction.*fn29
Furthermore, Rule 60(b) "may not be used to challenge a
movant's underlying conviction or sentence after that movant's habeas
petition attacking the same conviction or sentence on the same basis
has been denied."*fn30 Instead, a Rule 60(b) motion
that "seeks to revisit the federal court's denial on the merits of a
claim for relief should be treated as a successive habeas
petition."*fn31 A Rule 60(b) motion that attacks "the
integrity of the previous habeas proceeding rather than the underlying
criminal conviction," however, is not a second or successive habeas
B. Rule 60(b)(2)
Rule 60(b)(2) provides relief from a final judgment where there is "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)[.]" A motion for a new trial may be granted if the moving party can demonstrate that "(1) the newly discovered evidence was of facts that existed at the time of trial or other dispositive proceeding, (2) the movant must have been justifiably ignorant of them despite due diligence, (3) the evidence must be admissible and of such importance that it probably would have changed the outcome, and (4) the evidence must not be merely cumulative or impeaching."*fn33
Furthermore, "a new trial may be ordered to prevent a grave miscarriage of justice even though the 'newly discovered evidence' supporting that order would have been available to the moving party at trial had that party exercised proper diligence."*fn34 This exception, however, has been restricted to cases in which the evidence is "practically conclusive."*fn35 Finally, motions made pursuant to Rule 60(b)(2) must be made no more than one year after the entry of judgment.*fn36
C. Rule 60(b)(3)
Rule 60(b)(3) provides for relief from judgment where there is "fraud, . . . misrepresentation or misconduct by an opposing party[.]" "To prevail on a Rule 60(b)(3) motion, a movant must show that the conduct complained of prevented the moving party from fully and fairly presenting his case."*fn37 "[A] Rule 60(b)(3) motion cannot be granted absent clear and convincing evidence of material misrepresentations and cannot serve as an attempt to relitigate the merits."*fn38 Although Rule 60(b)(3) provides courts with authority to "enable them to vacate judgments whenever such action is appropriate to accomplish justice," such authority "should only be applied in extraordinary circumstances."*fn39 As with Rule 60(b)(2), there is a one year statute of limitations for claims brought under Rule 60(b)(3).*fn40
D. Rule 60(b)(6)
Rule 60(b)(6) provides that relief may be granted for "any other reason that justifies relief."
Despite the broad wording of subsection (6), it is properly invoked only for extraordinary circumstances or where the judgment may work an extreme and undue hardship. The Second Circuit has consistently indicated a reluctance to accept the proposition that when counsel's conduct shows gross negligence relief to a client may be afforded under Rule 60(b)(6).
Nonetheless, although exceedingly rare, it is not impossible for a lawyer's failures to constitute "extraordinary circumstances." To qualify for relief under Rule 60(b)(6), the attorney's failures must be so egregious and profound that they amount to the abandonment of the client's case altogether, either through physical disappearance or constructive disappearance.*fn41
Thus, "an attack on the integrity of a previous habeas proceeding using subsection (6) of Rule 60(b) is viable only in 'extraordinary circumstances,' and . . . such circumstances will be particularly rare where the relief sought is predicated on the alleged failures of counsel in a prior habeas petition."*fn42
In reality, Cordero's Rule 60(b) motion is a second or successive section 2255 motion because: (1) nothing in the Warburgh Decision provided any information that he did not already have during the pendency of his habeas proceeding; and (2) he seeks to challenge the validity of his underlying conviction, not the integrity of the prior section 2255 proceeding. However, in his reply papers, Cordero specifically states that his Rule 60(b) motion is not a second or successive motion and that it would be "a colossal waste of judicial resources" to compel him to raise his new arguments before the Second Circuit.*fn43 Accordingly, the instant motion will be treated exclusively as a Rule 60(b) motion and not a second or successive motion.
A. The Warburgh Decision Does Not Contain Any Information Not Previously Known to Cordero at the Time He Filed His Habeas Motion As stated in his brief, Cordero seeks to reopen his habeas proceeding in order to raise the following claims: (1) sufficiency of the evidence of the section 924(c) count; (2) a conflict between Cordero and his trial counsel regarding the production of defense witnesses and Cordero's right to testify; (3) admissibility of evidence at trial involving "an un-related contract murder"; (iv) purported jury misconduct; (v) newly discovered evidence regarding certain Government witnesses; and (6) a statutory issue relating to section 924(c).*fn44 Cordero's attempt to frame his application as an attack on the integrity of the previous habeas proceedings by relying on the Warburgh Decision is misplaced.
There is nothing in the Warburgh Decision that was not already known to Cordero at the time that he filed his original section 2255 motion. The only relevant information contained in the Warburgh Decision is that Warburgh "appeared to have made no effort to have [Cordero's] appeal reinstated after its improper dismissal."*fn45 The Committee's Report further explains that the dismissal appeared to be in error and that the Clerk's Office ultimately reinstated the appeal and Warburgh "subsequently continued to participate in this matter."*fn46
Cordero argues that because of the Warburgh Decision, he now knows that Warburgh was engaged in "misconduct" and withheld "documents, access to witnesses, production of the complete transcript, and other information."*fn47 But nothing in the Warburgh Decision makes any such findings. To the contrary, in his affidavit in support of his motion, Cordero acknowledges that he had access to the very transcripts he needed to file his habeas motion: "I was able to compose a Title 28 U.S.C. § 2255 petition with various bits and pieces of the transcripts co-defendants were willing to forward to me."*fn48
Thus, there is nothing in the Warburgh Decision, and nothing relating to the disciplinary actions taken against Warburgh, that justifies re-opening the habeas proceedings to permit Cordero to raise six new trial claims. Indeed, all of these claims could have been raised in his original section 2255 motion. In any event, as the Warburgh Decision makes clear, any allegations of misconduct with respect to Warburgh's representation of Cordero related to an apparent error as to whether an appellate brief was filed on Cordero's behalf. As the record makes abundantly clear, an appellate brief was filed and considered by the Second Circuit when that court affirmed Cordero's conviction. Accordingly, Cordero cannot use the Warburgh Decision as a pretext to reopen his section 2255 proceedings because nothing therein is relevant to the integrity of the prior habeas proceedings.
B. Cordero's Motion Is Beyond the Scope of Rule 60(b)
Because Cordero's motion plainly seeks to attack the validity of his underlying conviction, it must be denied as beyond the scope of Rule 60(b). "[A] Rule 60(b) motion that attacks the underlying conviction presents a district court with two procedural options: (i) the court may treat the Rule 60(b) motion as 'a second or successive' habeas petition, in which case it should be transferred to [the Second Circuit] for possible certification, or (ii) the court may simply deny the portion of the motion attacking the underlying conviction 'as beyond the scope of Rule 60(b).'"*fn49 Cordero has expressly informed the Court that he does not want the instant motion to be treated as a second or successive petition. Thus, the only option is to deny Cordero's Rule 60(b) motion in its entirety given that the entirety of the motion seeks to attack his underlying criminal conviction, not the integrity of the previous habeas proceeding.*fn50
C. Cordero's Motion Fails to Meet the Substantive Requirements of Rule 60(b) in Any Event 1. Cordero Cannot Establish New Evidence Under Rule 60(b)(2)
Rule 60(b)(2) allows relief from judgment on the basis of "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)." Cordero argues that "a showing of attorney misconduct" is newly discovered evidence.*fn51 Cordero is wrong for several reasons. First, it is abundantly clear that there is nothing "newly discovered" with respect to Cordero's interactions with his appellate counsel. The correspondence appended to his motion and referenced in the Warburgh Decision indicates that Cordero complained about Warburgh years before the filing of his habeas petition. Second, even assuming that the Warburgh Decision provided Cordero with "new" information, none of that information related to his trial. Cordero was not represented at trial by Warburgh whose representation was limited to Cordero's appeal. Although Cordero argues that Warburgh "surreptitiously sabotaged due process" at the time of direct appeal and on through the habeas proceeding,*fn52 he fails to explain what, exactly, in the Warburgh Decision suggests that the appellate brief submitted on his behalf was in some way deficient. Nor does Cordero explain how Warburgh's conduct affected the integrity of his habeas proceeding. Because there is no newly discovered evidence here, Cordero's motion under Rule 60(b)(2) must be denied.
2. Cordero Cannot Demonstrate Fraud to Prevail Under Rule 60(b)(3)
Rule 60(b)(3) allows relief from judgment on the basis of "fraud . . . misrepresentation, or misconduct by an opposing party." Here, Cordero has failed to assert any misconduct on the part of the opposing party. Rather, any alleged fraud is limited to his own attorney's conduct which, even if true, cannot meet the standard of Rule 60(b)(3). Because there is no fraud by an opposing party, Cordero's Rule 60(b)(3) must be denied.
3. Cordero Cannot Demonstrate "Exceptional Circumstances" to Prevail Under Rule 60(b)(6)
Rule 60(b)(6) allows for relief from judgment for "any other reason
justifying relief from the operation of the judgment." It is well
established that "an attack on the integrity of a previous habeas
proceeding using subsection (6) of Rule 60(b) is viable only in
'extraordinary circumstances.'"*fn53 Even where the
relief sought is predicated on the alleged failures of counsel in a
prior habeas proceeding,
extraordinary circumstances will be "particularly rare."*fn54
For circumstances to be "extraordinary" for purposes of Rule
60(b)(6)," a lawyer's failures must be so egregious and profound that
they amount to the abandonment of the client's case altogether, either
through physical disappearance or constructive
To meet this standard, there must be more than ineffective assistance of counsel under Strickland.*fn56 Cordero simply cannot meet this high standard because his appellate lawyer neither physically nor constructively disappeared. In fact, the record is clear that Warburgh filed an appellate brief on Cordero's behalf and participated in the appeals process. Because Cordero has failed to show "exceptional circumstances," his Rule 60(b)(6) must be denied.
For the foregoing reasons, Cordero's motion for relief from judgment pursuant to Rule 60(b) is denied. The Clerk of the Court is directed to close this motion (Docket Entry # 18).