United States District Court, E.D. New York
MEMORANDUM AND ORDER
DORA L. IRIZARRY, District Judge.
Pro se  petitioner Edwin Perez ("Perez" or "Petitioner") filed a motion challenging his sentence pursuant to 28 U.S.C. § 2255. ( See generally Mot. to Vacate, Docket Entry No. 1.) Petitioner contends that he received ineffective assistance of counsel during his plea negotiations, sentencing, and appeal. Additionally, Petitioner claims that the sentencing judge lacked jurisdiction to impose the sentence because the government failed to serve the defense with the prior felony information. Petitioner requests that the court "vacate the judgment and the sentence and resentence petitioner without the Sec. 851 enhancement." (Mot. to Vacate at 14.) For the reasons set forth below, the petition is denied in its entirety.
Petitioner was charged with one count of conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base, one kilogram or more of heroin, five kilograms or more of cocaine and an unspecified quantity of ecstasy in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. In advance of trial, on August 21, 2003, the government filed and served a prior felony information citing Perez's 2001 New Jersey state conviction for conspiracy to distribute a controlled substance. (Gov't Mem. in Opp., Ex. B at 7 n.2, Dkt. Entry No. 6.)
Perez's trial began on September 9, 2003. During motions in limine and prior to opening statements, the court held that the government was required to discuss at sidebar the introduction of evidence related to certain of Petitioner's prior bad acts before introducing such evidence during the trial. (Gov't Mem. in Opp., Ex. C at 3.) During trial, while the government was conducting a re-direct examination of a New York City police detective, the following exchange occurred:
Q How did you identify the defendant Edwin Perez in terms of where he lived?
A We intercepted a wiretap conversation between Edwin Perez and Jose Diaz, I don't recall the exact date, but he told Jose that he's on parole in New Jersey, he has to get home -
( Id. at 133.) Defense counsel interrupted the witness' answer to object and sought a mistrial at sidebar. ( Id. ) The court sustained counsel's objection, issued a curative instruction to the jury, but denied the motion for mistrial. ( Id. at 136, 139.) The court also indicated that it would issue a further limiting instruction if requested. ( Id. at 139-40.) The following day, the court inquired whether Petitioner wanted a limiting instruction. ( Id. at 167.) Based on Petitioner's response, the court issued an instruction covering issues that had been raised during the previous testimony including, the following:
It bears on what we call his credibility. That is the very limited purpose for which that evidence of what we call other misconduct, other than the charges in the case, that is the very limited purpose for which [evidence of a witness' prior bad act] is put before you and you are not to speculate from that evidence or any other evidence that is presented to you during the course of the trial that the defendants themselves have engaged in any misconduct other than the conduct of which they are accused.
There is a general reason for that, even if people do get into other difficulties with the law, that is other than the accusation that they face here, we don't treat them any differently because of that. They are entitled to the same presumption of innocence that everybody is. Whether they engaged in some other acts which bear on their character or not. They are still entitled to the presumption of innocence.
I do not know whether there is - because I just don't know what the proof is going to be in this case - I do not know whether there will be any evidence of misconduct by these defendants other than what they are accused of. If there is evidence of that sort, I will permit it to be put before you only for the limited purposes concerning which I will instruct you at the time.
There is no such evidence before you now and you are not to speculate either of the defendants have engaged in any misconduct other than the misconduct of which they are accused here and obviously it's going to be up to you to determine whether the prosecution has proved beyond a reasonable doubt that they have engaged in the crimes of which they are accused after the government has presented its proof.
( Id. at 168-69.) Also, during the final jury charge, the Court provided the following instruction, among others, to the jury:
Now, during the course of the trial there's been evidence of acts which you may regard as acts of misconduct by a defendant different from the crime charged in the indictment. To talk about the most trivial of that sort of misconduct, bad language, possession of counterfeit money, use of drugs. All of those subjects came up in the course of the trial.
The defendants are not charged with bad conduct of that sort and you may not use evidence of that sort to draw inferences concerning a defendant's character as a basis for concluding that a person of such character is likely to have committed the crimes charged. There are at least two reasons for that; one, each defendant, including a defendant of whose character we might in some way disapprove, is entitled to the presumption of innocence and is presumed innocent of the charge in the indictment unless and until his guilt is established beyond a reasonable doubt. A second reason is that you shouldn't base your verdict simply on what's likely the consequence of a defendant's character. What is required is not what is likely but what is so beyond a reasonable doubt.
If you were, just to give sort of a silly example, if you were to find that the only misconduct in which a defendant is engaged is using bad language or another criminal act other than the one charged in the indictment, then you must find the defendant not ...