OPINION AND ORDER
GABRIEL W. GORENSTEIN, District Judge.
Caonabo Vargas was convicted by a federal jury of conspiracy to commit Hobbs Act robberies in violation of 18 U.S.C. § 1951, and conspiracy to distribute cocaine, heroin, and marijuana in violation of 21 U.S.C. § 846. On January 11, 2008, he was sentenced to a prison term of 151 months. On December 17, 2008, the United States Court of Appeals for the Second Circuit affirmed the judgment of conviction. Vargas, who remains incarcerated, petitioned this Court pro se pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The parties consented to disposition of the petition by a United States Magistrate Judge. In a previous opinion, Vargas v. United States , 819 F.Supp.2d 366 (S.D.N.Y. 2011) ("Vargas I"), this Court rejected several claims raised by Vargas in his petition and ordered an evidentiary hearing limited to the issue of whether Vargas received effective assistance of counsel as to advice he was given with respect to any plea offers made by the Government. The evidentiary hearing took place on August 7, 2012, and was followed by post-hearing briefing.
For the reasons stated below and in Vargas I, Vargas's petition for habeas corpus is denied.
A. Proceedings in the Criminal Case
In December 2005, Vargas and others were charged in a three-count indictment, alleging conspiracy to commit robbery; robbery; and using, carrying or brandishing a firearm (or aiding and abetting the same) in relation to the robbery charges. See Sealed Indictment, filed Dec. 27, 2005 (Docket # 1 in 05 Cr. 1327) (unsealed on January 19, 2006). At his arraignment, Vargas was represented by a retained attorney, Telesforo Del Valle. See Docket Entry, dated Jan. 19, 2006 (in 05 Cr. 1327). James Michael Roth filed a notice of appearance on behalf of Vargas on March 28, 2006. See Notice of Attorney Appearance, filed Mar. 28, 2006 (Docket # 23 in 05 Cr. 1327). On June 6, 2006, a notice of substitution of counsel was filed, stating that both Martin Schmukler and Del Valle were representing Vargas. See Notice of Substitution, filed June 6, 2006 (Docket # 36). The same day, Schmukler filed a notice of appearance on Vargas's behalf. See Notice of Appearance, filed June 6, 2006 (Docket # 37).
The case was assigned to the Honorable Victor Marrero, who in December 2006 set a trial date of January 22, 2007. See Order, dated Dec. 1, 2006 (Docket # 51 in 05 Cr. 1327). On January 8, 2007, the Government filed a superseding indictment against Vargas, adding a charge of conspiracy to distribute and possess with intent to distribute controlled substances. See Indictment, filed Jan. 8, 2007 (Docket # 54 in 05 Cr. 1327). Judge Marrero presided over Vargas's trial, which took place in March and April 2007. See Trial Transcripts, filed Apr. 27, 2007 (Docket ## 91-93 in 05 Cr. 1327) ("Trial Tr."). Over the course of the 18-day trial, the Government offered testimony from four cooperating witnesses, Jose Stepan, Ramon Solis, Maximo Guillen, and Socrates Vizcaino; testimony from a confidential informant, Ingrid Negron; translations of recorded conversations between Negron and Vargas; and physical evidence.
The evidence showed that from at least 1997, Vargas operated a real estate office in the Bronx. (See Stepan: Trial Tr. 759; Solis: Trial Tr. 822-23). From this office, Vargas rented apartments to individuals whom he knew to be involved in robberies and drug dealing. (See Stepan: Trial Tr. 763, 806, 808; Solis: Trial Tr. 822, 827). As a result of this work, Vargas was privy to the personal information and addresses of various drug dealers and robbers. (See, e.g., Stepan: Trial Tr. 767). Generally, robbers and drug dealers refrain from disclosing this information because disclosure of this kind of information may result in the dealer or robber being robbed himself. (See, e.g., Stepan: Trial Tr. 800-01, 808). Vargas used this information to act as a "santero" for a group of men who made their living robbing drug dealers. (Stepan: Trial Tr. 748, 759-61, 793). As a "santero, " Vargas would provide these men with the addresses of the drug dealers, the place where the drugs were located in the house, and the location of the house. (See Stepan: Trial Tr. 748, 800-01). In addition, the "santero" would verify that drugs or money were within the house. (See Stepan: Trial Tr. 749). In exchange for this information, Vargas received a "good part" of the proceeds of any robbery. (Id.)
Vargas provided Stepan and his partner "Rubio" with the address and the "specific information of an apartment" in the Bronx where some people who were bringing drugs into the United States were residing. (Stepan: Trial Tr. 761). Vargas took Stepan and Rubio to the apartment and told them where the drugs were "so [they] could steal them." (Id.) Specifically, Vargas told Stepan that the drugs were located in a "trap, ... a secret compartment that drug dealers use to stash their drugs so the police cannot find [them]." (Stepan: Trial Tr. 763-64). After receiving this information, Stepan, Rubio, and others committed the robbery, and found approximately one thousand pounds of marijuana in the location that Vargas had described. (Stepan: Trial Tr. 765). The marijuana was distributed amongst the "participa[nts] in the robbery" and a portion was given to Vargas. (Stepan: Trial Tr. 766).
Vargas also provided Stepan with information about a potential robbery in New Jersey involving 300 kilograms of drugs. (See Stepan: Trial Tr. 771). Vargas told Stepan "that he knew some Mexicans" who had left a van containing 300 kilos of drugs illegally parked in New Jersey. (Id.) The sheriff had towed and taken away the van and drugs were still located within the van, hidden under fruit and produce. (See id.) Upon hearing this information, two members of Stepan's crew went to New Jersey to "check... out" the location of the potential robbery. (Id.) After learning that the van was parked in a location where there were cameras, Stepan decided not to commit the robbery. (See Stepan: Trial Tr. 772-73).
Solis also utilized Vargas's services as a santero. (See Solis: Trial Tr. 827-28, 903-04, 907-08). In 1999, Solis met with Vargas to discuss a potential "job" on Gun Hill Road in the Bronx. (Solis: Trial Tr. 903). Vargas took Solis and others to the Gun Hill Road house and told them that the persons residing there were stashing "a load" of cocaine. (Solis: Trial Tr. 903-04). After learning that Vargas had never actually seen the drugs, Solis and his crew decided not to commit the robbery. (Solis: Trial Tr. 904). Vargas and Solis discussed two additional potential robberies. Sometime in 2000 or 2001, Solis met with Vargas and his "woman" Evelyn at Vargas's office in the Bronx. (Solis: Trial Tr. 906). The three discussed a potential "jewelry job, " which Solis rejected because "[he did not] steal jewelry." (Solis: Trial Tr. 906-07). In the summer of 2001, Solis discussed another potential job "in the area... [of] 180th [Street]." (Solis: Trial Tr. 907). Vargas told Solis that he "had rented [an apartment] to some Mexicans who came from Mexico with a load [of cocaine]" and that he "had the trap built where the [Mexicans] were going to put the drugs." (Solis: Trial Tr. 907-08). Vargas took Solis to the house, showed him the key to the building, and told Solis that he would contact him after he had spoken to the Mexicans. (Solis: Trial Tr. 909). Solis never discussed the job with Vargas again and Solis did not commit the robbery. (Solis: Trial Tr. 909-10).
In addition to conspiring to commit robberies, Vargas also conspired with others to distribute drugs, including those that were stolen in robberies. (Stepan: Trial Tr. 766-67, 770-71, 773-74). Stepan testified that he had provided Vargas marijuana as payment for his services as a santero (Stepan: Trial Tr. 766-67) and he had given Vargas 20 kilograms of cocaine to distribute for a drug dealer named "El Fuerte" (see Stepan: Trial Tr. 773). Additionally, Vargas boasted about his sales of both heroin and cocaine during a phone conversation with Negron, which Negron had recorded unbeknownst to Vargas. Portions of a translated version of the transcript of this conversation were read to the jury. (Trial Tr. 1188). During the conversation, Negron asked Vargas whether he could obtain heroin for Negron's boyfriend to sell. See Memorandum of Law in Opposition to Vargas's Motion to Vacate, Set Aside, or Correct Sentence, filed Mar. 25, 2011 (Docket # 21), at 6. Vargas replied "[d]on't worry, I'm gonna help you guys. You guys are gonna make some real good big bucks, both of you are...." Id. at 6.
Evidence was also presented regarding other services that Vargas provided to various robbers and drug dealers. For a fee, Vargas would put the apartments he rented to robbers "under a specific name" and would take care of setting up the electricity, gas, and telephone under the same name. (Stepan: Trial Tr. 762-63; see Solis: Trial Tr. 822-27). In addition, Vargas procured false identification documents for Solis (see Solis: Trial Tr. 837, 923-27) and helped to secure bail for a robber named Chi Chi, in exchange for a million dollars (see Stepan: Trial Tr. 775-76).
Vargas testified on his own behalf at trial. He stated that he was the owner of Gleason Realty, a small real estate business located in the Bronx, and in that capacity he would rent and sell real estate. (C. Vargas: Trial Tr. 1402-05). Vargas testified on cross-examination that he was not a licensed real estate broker or agent (see C. Vargas: Trial Tr. 1485) and that his business mainly consisted of "interviewing [persons] who were seeking apartments" (C. Vargas: Trial Tr. 1491), and then "provid[ing] the information to landlords about potential renters and buyers" (C. Vargas: Trial Tr. 1492). Vargas testified that he did not verify the information provided to him in these interviews. (See C. Vargas: Trial Tr. 1492-94).
Vargas denied the allegations of the superseding indictment (see C. Vargas: Trial Tr. 1378-89, 1481) and claimed to have had only legitimate, non-criminal contacts with the cooperating witnesses (C. Vargas: Trial Tr. 1437-38, 1444). Vargas admitted that he had met Stepan and Solis, but testified that he had not assisted either of them in committing any robberies. (See C. Vargas: Trial Tr. 1437-38, 1447-48, 1481). Instead, Vargas said he met the two at Gleason Realty when he assisted each in locating apartments. Vargas testified that he had met Stepan only once, when he and his girlfriend came to Gleason Realty looking for an apartment to rent (C. Vargas: Trial Tr. 1437-38), and that he had met Solis and had rented him two apartments (see C. Vargas: Trial Tr. 1444-48). Vargas also discussed his relationship with Negron. Vargas explained that he had met Negron when she came to his office "to apply for an apartment." (C. Vargas: Trial Tr. 1470). He stated that the two had had a romantic and physical relationship. (C. Vargas: Trial Tr. 1473-76). With respect to the tape recording of their phone conversation, Vargas admitted that it was his voice on the tape recording (C. Vargas: Trial Tr. 1476-77), but stated that the statements he made regarding illegal activity and drugs were made only to "impress" Negron, who was trying to get Vargas to buy drugs, (C. Vargas: Trial Tr. 1478, 1482). Vargas maintained that he had never procured, bought, or stored drugs. (C. Vargas: Trial Tr. 1481).
Vargas testified that he had not assisted in any robberies. (C. Vargas: Trial Tr. 1481). On cross-examination, Vargas was asked about the robbery of a group of Mexican drug dealers who were living in a small house rented by Gleason Realty - a robbery that Vargas had offered to Solis. (See C. Vargas: Trial Tr. 1498). Vargas initially testified that he was not aware of the robbery. (C. Vargas: Trial Tr. 1498). After further examination, however, Vargas admitted not only that he knew about the robbery, but also that he had taken the group of Mexicans to the hospital because they had sustained injuries during the robbery. (C. Vargas: Trial Tr. 1499-1501).
The defense called two other witnesses - one of whom was Vargas's cousin - who testified regarding Vargas's character and that certain tenants were not robbed. (O. Vargas: Trial Tr. 1429-32; Delgadillo: Trial Tr. 1416, 1421).
On April 13, 2007, the jury returned a verdict finding Vargas guilty of conspiracy to commit robbery and guilty of conspiracy to distribute and possess with the intent to distribute cocaine, heroin, and marijuana. (Trial Tr. 1873-75). In addition, the jury concluded that "it was known or reasonably foreseeable to [Vargas] that the [drug] conspiracy would involve the distribution, or possession with intent to distribute" heroin, five or more kilograms of cocaine, and 1, 000 or more kilograms of marijuana. (Trial Tr. 1875-76). The jury acquitted Vargas of the substantive robbery count and the firearm count. (Trial Tr. 1874-75).
Vargas was sentenced on January 11, 2008. See Transcript of Proceedings Before the Honorable Victor Marrero, dated Jan. 11, 2008 (Docket # 240 in 05 Cr. 1327) ("S. Tr."). At the sentencing, Schmukler argued for a sentence lower than the 235 months requested by the Government, arguing, "Indeed, before this case began trial, as recently as a month before trial, the government was offering the defendant a plea that would have resulted in not more than 5 years' confinement." (Schmukler: S. Tr. 9-10). Vargas then spoke on his own behalf, stating, "I never committed any crime and I am not a bad person." (Vargas: S. Tr. 11). Judge Marrero found that the applicable guidelines range was 151 to 188 months and sentenced Vargas to 151 months' imprisonment and five years of supervised release. (S. Tr. 12-13). The judgment of conviction was entered on January 18, 2008. See Judgment in a Criminal Case, filed Jan 18, 2008 (Docket # 131 in 05 Cr. 1327).
Vargas appealed his conviction on January 31, 2008, see Notice of Appeal, filed Jan. 31, 2008 (Docket # 134 in 05 Cr. 1327), arguing that the district court erred in instructing the jury to presume an effect on interstate commerce if the jury found that the object of the Hobbs Act robbery was illegal drugs or the proceeds of a sale thereof, and that the district court erred in admitting the transcript of recorded conversations between Vargas and the confidential informant. See United States v. Vargas, 306 F.Appx. 623, 624-25 (2d Cir. 2008). On December 17, 2008, the Second Circuit affirmed Vargas's conviction, holding that while the district court erred in instructing the jury that it could presume an effect on interstate commerce, the effect of this error was "uncertain[, ]... indeterminate or only speculative." Id. at 625 (alteration added) (internal quotation marks and citation omitted). The Second Circuit found no error in the district court's admission of recorded conversations between Vargas and the confidential informant. Id.
B. Habeas Petition
On March 18, 2010, the Pro Se Office received Vargas's petition, which is dated March 15, 2010. See Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, dated Mar. 15, 2010 (Docket # 1) ("Pet. Mot."). In that petition, Vargas argued that Schmukler had been ineffective for the following reasons: (1) counsel failed to convey a government plea offer and misadvised him about his sentencing exposure, the risks of going to trial, and the burden of proof required for a conspiracy conviction; (2) counsel failed to investigate eyewitnesses, failed to interview eyewitnesses, and failed to present exculpatory eyewitness testimony; (3) counsel conducted ineffective cross-examinations of two witnesses and failed to use readily available information to rebut the Government's evidence; (4) counsel failed to adequately prepare Vargas to testify at trial; (5) counsel allowed Vargas to receive a sentence greater than the sentence authorized by the jury's verdict; (6) counsel failed to appeal his sentence, the trial court's application of the sentencing guidelines, and the violation of petitioner's constitutional rights; (7) counsel failed to exclude evidence related to two witnesses; and (8) counsel's cumulative errors constituted ineffective assistance of counsel. Id. at 3-19. Vargas also complained that the "trial court denied [him] a fair sentencing proceeding, in violation of the Due Process Clause of the Fifth Amendment and the jury-trial guarantee of the Sixth Amendment, by calculating and imposing petitioner's sentence in the absence of findings beyond a reasonable doubt." Id. at 16. Vargas later added a claim of ineffective assistance of counsel based on counsel's failure to object to and appeal the trial court's decision to lock the courtroom during the jury charge. See Caonabo Vargas Memorandum of Law and Supplement to Interact an Additional Issue to his § 2255 Motion, dated July 18, 2010 (annexed to Petitioner[']s Motion for Leave of Court to Supplement and Interact an Additional Issue, filed July 21, 2010 (Docket # 221 in 05 Cr. 1327)), at 1-5.
Both sides filed multiple submissions relating to the petition. On October 20, 2011, this Court rejected a majority of Vargas's claims in his habeas petition in Vargas I. 819 F.Supp.2d at 385. We granted an evidentiary hearing, however, with respect to Vargas's claim that Schmukler was ineffective based on his failure to convey the Government's plea offer and failure to provide a full understanding of the risks of going to trial. Id. at 379. We specifically noted unexplained inconsistencies in various affidavits that had been filed, including contradictions in two affidavits filed by Schmukler. Id. at 378-79. Vargas was appointed counsel for the purposes of the hearing. See Order, filed Oct. 20, 2011 (Docket # 28).
On August 7, 2012, this Court held the evidentiary hearing. See Transcript of Proceedings Before the Honorable Gabriel W. Gorenstein, dated Aug. 7, 2012 (Docket # 40) ("Hr."). The petitioner called Vargas and Del Valle as witnesses and the Government called Schmukler. Before describing the testimony at the hearing, we discuss the written submissions to the Court relating to plea offers.
1. Submissions Regarding Plea Offers
In his petition, Vargas asserted that Schmukler failed to convey an alleged five-year plea offer from the Government. Pet. Mot. at 4. In response to the petition, Schmukler submitted an affidavit dated December 15, 2010, in which he stated that Vargas "was well aware of an existing plea proposal, " and that it was "his decision not to accept a plea offer choosing instead to go to trial." See Affirmation of Martin Schmukler, dated Dec. 15, 2010 (annexed as Ex. A to Memorandum of Law in Opposition to Vargas's Motion to Vacate, Set Aside, or Correct Sentence, filed Mar. 25, 2011 (Docket # 21)) ("First Schmukler Aff."), ¶ 6. Schmukler asserted that Vargas's statements in his petition that he was never informed by counsel of a five-year plea offer were untrue. Id . ¶ 8. Schmukler made reference in his affidavit to a plea offer of "60 months" and stated that he had "strongly advise[d Vargas] to accept the offer but Vargas ignored and rejected this to his own detriment, " and that the plea offer was communicated to Vargas by both Schmukler and by Del Valle. Id.
In a responsive affidavit, Vargas stated that he had asked Schmukler to try to "plead [him] out for a five year sentence, " and told Schmukler he would accept such a deal if the government agreed. See Declaration of Caonabo Vargas, II, dated Mar. 8, 2011 (annexed as Ex.
1 to Response to Government's Memorandum of Law in Opposition to 2255 Motion, filed Mar. 14, 2011 (Docket # 18) ("3/14/11 Response")) ("Second Vargas Aff."), ¶ 6. He informed his mother of this conversation. Id . ¶ 8; see also Affidavit of Lourdes Cortes Roman, dated Feb. 11, 2011 (annexed as Ex. 3 to 3/14/11 Response), ¶ 4. In December 2006, Schmukler told him that the Government had rejected the offer of a five-year sentence. Second Vargas Aff. ¶ 9. Schmukler advised him to go forward with trial, and in reliance on this advice, Vargas maintained his innocence and contested the charges at trial. Id . ¶¶ 10-11. Vargas stated that Schmukler had not advised him of the risks of going to trial and that had he fully understood them - and had he known the government was willing to agree to a plea bargain of not more than five years - he would have accepted that offer and pled guilty. Id . ¶¶ 12-38. He stated that Schmukler's affidavit stating that a plea offer was communicated to him by Schmukler and Del Valle was untrue, and that neither Schmukler nor Del Valle ever told him of a five-year offer. Id . ¶¶ 37, 39-40.
Telesforo Del Valle submitted a declaration on March 2, 2011. See Declaration of Telesforo Del Valle, dated Mar. 2, 2011 (annexed as Ex. 2 to Reply to Government's Memorandum of Law in Opposition to Vargas's March 14, 2011 Reply Brief in Support of His § 2255 Motion, filed May 23, 2011 (Docket # 25)) ("May 2011 Reply"). In it, he stated that - contrary to the statement in Schmukler's affidavit - he was "not involved in any plea bargain discussions that may have occurred between Schmukler, Vargas, and the U.S. Attorney's Office" and ...