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Cordero v. United States

November 5, 2012

ANGEL CORDERO, 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

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.

I. BACKGROUND

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 ...

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