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Rosario v. United States

United States District Court, Second Circuit

November 6, 2013

LUIS ROSARIO, Petitioner,



The Court has reviewed petitioner Luis Rosario's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on the grounds of ineffective assistance of counsel. (Motion, 13 Civ. 7473, ECF No. 1.)

Rosario alleges, in substance, that his trial counsel was ineffective because he advised Rosario to elect for a bench trial, he failed to properly challenge the credibility of a cooperating witness, he failed to subpoena witnesses or to introduce favorable evidence, and he failed to introduce "mitigating factors" favorable to Rosario or to allow him to testify in his own defense. ( Id. at 4-5.)

For the reasons set forth below, Rosario's motion is DENIED.


On January 31, 2011, Rosario and his two co-defendants were charged in an indictment with one count of conspiracy to distribute, and to possess with intent to distribute, a controlled substance-five hundred grams or more of cocaine-in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846. (11 Cr. 91, ECF No. 11.) On October 18, 2011, Rosario and his co-defendants were charged in a superseding indictment with one count of conspiracy to distribute, and to possess with intent to distribute, five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. (11 Cr. 91, ECF No. 45.) On October 31, 2011 and November 1, 2011, the Court conducted a two-day bench trial, after which it found Rosario guilty of the count charged in the superseding indictment.

Rosario's trial counsel[1] was appointed on May 20, 2011. (11 Cr. 91, ECF Nos. 23-24.) Following his appointment, on August 19, 2011, Rosario's trial counsel filed a motion to suppress two sources of evidence (physical evidence seized at Rosario's residence and statements Rosario made to law enforcement), for additional discovery, and to preclude cross-examination of Rosario concerning any prior "bad acts" should he choose to testify. (11 Cr. 91, ECF Nos. 30-31.) Rosario's trial counsel hired an independent Spanish interpreter to review a significant percentage of the translations of wiretap transcripts offered by the government (Trial Tr. at 13:17-24, 11 Cr. 91, ECF No. 63); his counsel also submitted proposed jury instructions and voir dire in advance of trial. (11 Cr. 91, ECF Nos. 50-51, 53-54.)

Prior to the first day of trial, Rosario and his trial counsel signed a waiver of trial by jury form, which states that Rosario has been advised by counsel of his constitutional right to a trial by jury and that he voluntarily waives that right. (11 Cr. 91, ECF No. 59.) At the beginning of trial, the Court engaged in a lengthy discussion with Rosario in order to confirm that his waiver was knowing and voluntary. (Trial Tr. at 3:18-9:3.) The Court confirmed on the record that Rosario had signed the waiver of trial by jury form, and that by signing it he had waived his right to trial by jury and the Court would thus be trying his case. (Id. at 10:2-14.) The Court confirmed that, before signing the form, the form had been translated for Rosario and Rosario had an opportunity to discuss it with his counsel. ( Id. at 10:15-22.) The Court then re-confirmed that Rosario understood he was waiving his right to a trial by jury. ( Id. at 10:23-11:2.)

During the two-day bench trial, Rosario's trial counsel actively objected during the direct examinations of the government witnesses. He moved to strike certain pieces of testimony offered by the government, and the Court granted several of those requests. He also conducted voir dire of three of the government witnesses-Special Agent Patrick Woods, Detective Joseph Maldonado, and codefendant Cesar Soto during their direct examinations, and engaged in substantial cross-examination of each government witness (including Soto).

On February 3, 2012, after initially expressing a desire to engage in a socalled "safety valve[2] proffer" with the government in hopes of being sentenced without regard to the ten-year mandatory minimum for his crime, Rosario confirmed on the record that he had discussed the elements of safety valve eligibility with his counsel and that he wished to proceed to sentencing on that day. (Sentencing Tr. at 6:13-15:24, ECF No. 77.) Accordingly, taking into account the factors set forth in 18 U.S.C. § 3553(a), the Court sentenced Rosario to ten years' imprisonment (the mandatory minimum), five years' supervised release, and a $100 special assessment. (11 Cr. 91, ECF No. 69; Sentencing Tr. at 15:24-20:22.)


The Court is required to promptly examine a motion under 28 U.S.C. § 2255, and "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." Rules Governing Section 2255 Proceedings for the United States District Courts, Rule 4(b) (emphasis added); see 28 U.S.C. § 2255(b) ("Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney...."). To determine whether summary dismissal is appropriate for a petition brought by a defendant that was convicted at trial, courts review the trial transcripts as well as other relevant testimony and colloquy. See Ruotolo v. United States, No. 94 Civ 5962, 1998 WL 29828, at*1 (2d Cir. Jan. 27, 1998).

Rosario's motion for relief under § 2255 on the basis of ineffective assistance of counsel will be granted only if he can show that (1) his counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) he was prejudiced by his counsel's deficient performance. See Strickland v. Washington , 466 U.S. 668, 687-96 (1984). This is a difficult showing to make, as courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, ' bearing in mind that [t]here are countless ways to provide effective assistance in any given case' and that [e]ven the best criminal defense attorneys would not defend a particular client in the same way." United States v. Aguirre , 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland , 466 U.S. at 689). The required showing is more difficult in cases such as this, where a petitioner makes statements in open court expressing and understanding of and waiving certain rights; courts afford "a strong presumption of verity" to such statements. See Blackledge v. Allison , 431 U.S. 63, 73-74 (1977). Even where counsel's performance has been constitutionally deficient, the petitioner must also show that, but for the deficient performance, there is a reasonable probability that the result would have been different. United States v. Torres , 129 F.3d 710, 716 (2d Cir. 1997).

Applying these standards to the instant motion, Rosario's claims of ineffective of counsel fail as a matter of law because he has failed to show either that his trial counsel's performance was deficient or that he suffered prejudice. Based on the record of prior ...

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