BRYANT ISMAIL RODRIGUEZ, Petitioner.
UNITED STATES OF AMERICA, Respondent.
Bryant Ismail Rodriguez, No. 56635-054, Waymart, PA, Petitioner.
Kenneth Alan Paul, Esq., New York, NY, Paul Joseph McAllister, Esq., New York, NY, Former At Petitioner.
Sarah Y. Lai, Esq., U.S. Attorney's Office, SDNY, New York, NY, Attorney for Respondent.
MEMORANDUM AND ORDER
NAOMI REICE BUCHWALD, District Judge.
On January 26, 2010, petitioner Bryant Ismail Rodriguez ("petitioner" or "Rodriguez"), after a six-day jury trial, was convicted of mail fraud in violation of 18 U.S.C. §§ 1341 and 1342 and wire fraud in violation of 18 U.S.C. §§ 1343 and 1342. He was sentenced to 108 months' imprisonment, to be followed by three years of supervised release. Presently before the Court is petitioner's motion, brought pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. Rodriquez asserts numerous claims of ineffective assistance of counsel based on counsel's allegedly deficient performance before, during, and after trial. For the reasons set forth below, we find that a hearing is not necessary to resolve petitioner's motion, and the motion is denied.
Rodriquez's conviction stems from a Ponzi scheme he orchestrated and conducted from approximately early 2007 through December 2008. Gov't's Mem. of Law in Opp'n to Pet'r's Pet. for Writ of Habeas Corpus 1 [hereinafter Gov't's Opp'n]. Rodriquez claimed to manage a consumer electronics distribution company, called Communications and Electronics, Inc. ("C&E"), which supplied major electronics retail chains, such as Circuit City, with merchandise at a substantial profit. Id . Rodriguez, however, had no business dealings with electronics retail chains, other than as an ordinary customer, and C&E was nothing but a shell company used by Rodriguez to steal money from unsuspecting victims. Presentence Investigation Report ¶¶ 17-18 [hereinafter PSR]; see also Gov't's Opp'n 2.
To find investors for his fraudulent scheme, Rodriguez preyed on the low-income congregations of three churches in Manhattan and the Bronx, including the El Camino Church in Washington Heights, of which he was a member. Gov't's Opp'n 1-2; Gov't Sent'g Mem. 1. Rodriguez pitched C&E as a unique investment opportunity exclusive to church members and promised "interest" payments of at least 30 percent a month on "investments." Gov't's Opp'n 1-2; PSR ¶ 10. Rodriguez began by procuring investments from pastors and respected church members. PSR ¶ 11. By making interest payments to these original investors, Rodriguez encouraged additional investment from them as well as from other unsuspecting members of the church and their families and friends. Id . Further, Rodriguez sought to deceive his investors into believing that C&E was legitimate by purchasing electronics from retail chains and distributing them to church members for free or at a substantial discount. Gov't's Opp'n 2. As C&E gained investors, Rodriguez found ways to delay interest payments, such as by providing bonuses and increased payouts to investors who switched from monthly to quarterly payments. PSR ¶ 15. By late 2007 or early 2008, Rodriguez completely stopped providing interest payments to investors. Id . By mid- to late-2008, Rodriguez stopped attending church and returning investors' telephone calls. Id . ¶ 16.
After church members began to complain, the U.S. Attorney's Office initiated an investigation into Rodriguez's activities, which led to his arrest on December 23, 2008. PSR ¶¶ 17, 19. All told, Rodriguez collected over $2 million from over 200 victims, drawn from a mostly low-income and immigrant population. Id . ¶ 20. Although, as noted above, the initial investors received some "interest" payments, many of these victims never had their initial contribution returned. Id . Moreover, the victims who provided Rodriguez with funds later in the scheme lost their entire investment, often with devastating financial consequences. Id . ¶¶ 20-28.
On January 22, 2009, a grand jury returned a one-count indictment against Rodriguez, charging him with mail fraud in violation of 18 U.S.C. §§ 1341 and 1342. On October 8, 2009, the Government sent Rodriguez's counsel, Paul J. McAllister, a letter pursuant to United States v. Pimentel , 932 F.2d 1029 (2d Cir. 1991), calculating a Guidelines range of 92 to 115 months' imprisonment. Letter from AUSA Sarah Y. Lai to Paul J. McAllister 3 (Oct. 8, 2009), Ex. A, Gov't's Opp'n [hereinafter Pimentel Letter]. On November 5, 2009, the Government sent Mr. McAllister a letter indicating that, if Rodriguez did not enter a guilty plea by November 25, 2009, the Government would oppose a one-level reduction in offense level for timely acceptance of responsibility. Letter from AUSA Sarah Y. Lai to Paul J. McAllister (Nov. 5, 2009), Ex. B, Gov't's Opp'n. Further, the Government suggested that Rodriguez be brought in for a reverse proffer the week of November 9. Id . Although a reverse proffer took place, it did not lead to a guilty plea or other resolution of the charges. Gov't's Opp'n 3. Following the filing of a one-count superseding indictment on December 8, 2009, again charging Rodriguez with mail fraud in violation of 18 U.S.C. §§ 1341 and 1342, the grand jury returned a two-count superseding indictment on December 22, 2009, charging Rodriguez with both mail fraud in violation of 18 U.S.C. §§ 1341 and 1342 and wire fraud in violation of 18 U.S.C. §§ 1343 and 1342.
Rodriguez's trial commenced on January 19, 2010. At trial, the government presented evidence including statements from Rodriguez's victims; fraudulent investment documents and e-emails authored by Rodriguez; a recorded investors' meeting in which Rodriguez misrepresented his background and the investment opportunity; and testimony by retail chain representatives that contradicted Rodriguez's claims. See Gov't's Opp'n 3-4. In response, the defense argued that Rodriguez had collected investments in good faith, that he had repaid "90 percent" of his investors, and that the former pastor of El Camino Church, Miguel Amadis, had stolen the money Rodriguez had collected from investors. Id. at 4-5. On January 26, 2010, the jury found Rodriguez guilty of both counts charged in the Second Superseding Indictment.
The sentencing was held on September 23, 2010. Per Rodriguez's request for new counsel, Kenneth Paul, Esq., had been appointed after the trial to replace Mr. McAllister. At sentencing, the Court added a two-level enhancement for obstruction of justice to Rodriguez's offense level, raising his offense level from 31 to 33. With Rodriguez's prior criminal history placing him in criminal history category III, the applicable Guidelines range was 168 to 210 months' imprisonment. Taking into account the Guidelines range as well as the sentencing factors established by 18. U.S.C. § 3553, this Court sentenced Rodriguez to a term of 108 months' imprisonment, to be followed by three years' supervised release.
A. Legal Standard
Rodriguez's claims of ineffective assistance of counsel are analyzed under the two-pronged standard of Strickland v. Washington , 466 U.S. 668 (1984). Under Strickland, "[a] defendant claiming ineffective assistance must (1) demonstrate that his counsel's performance fell below an objective standard of reasonableness' in light of prevailing professional norms, ' and (2) affirmatively prove prejudice' arising from counsel's allegedly deficient representation." United States v. Cohen , 427 F.3d 164, 167 (2d Cir. 2005) (citation omitted) (quoting Strickland , 466 U.S. at 688, 693). "[T]he burden rests on the accused to demonstrate a constitutional violation." United States v. Cronic , 466 U.S. 648, 658 (1984).
To satisfy Strickland's "performance" prong, "the record must demonstrate that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" Wilson v. Mazzuca , 570 F.3d 490, 502 (2d Cir. 2009) (quoting Strickland , 466 U.S. at 687). The Supreme Court has instructed that "[j]udicial scrutiny of counsel's performance must be highly deferential, " Strickland , 466 U.S. at 689, and "the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances, " id. at 688. Furthermore, to the extent an attorney's strategic decisions and trial tactics are reasonably informed under the circumstances, the petitioner cannot, with the benefit of hindsight, second-guess these decisions posttrial to present a colorable claim of ineffective assistance of counsel. Id. at 690-91.
To establish prejudice, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is a probability "sufficient to undermine confidence in the outcome." Id .; see also Lindstadt v. Keane , 239 F.3d 191, 204 (2d Cir. 2001). Additionally, the Strickland Court instructed:
[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.
Strickland , 466 U.S. at 697.
In the context of a collateral attack pursuant to 28 U.S.C. § 2255 based on ineffective assistance of counsel, the language of the statute "requires the district court to hold a hearing [u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" Chang v. United States , 250 F.3d 79, 85 (2d Cir. 2001) (alteration in original) (quoting 28 U.S.C. § 2255(b)). Nonetheless, "[t]he language of the statute does not strip the district courts of all discretion to exercise their common sense." Id . (quoting Machibroda v. United States , 368 U.S. 487, 495 (1962)) (internal quotation marks omitted); see also Pham v. United States , 317 F.3d 178, 184 (2d Cir. 2003) (permitting "a middle road' of deciding disputed facts on the basis of written submissions" and leaving it "within the district court's discretion to determine whether a hearing is warranted" (quoting Chang , 250 F.3d at 86)). Ultimately, the district court must "determine whether, viewing the ...