United States District Court, S.D. New York
OPINION & ORDER
SIDNEY H. STEIN, District Judge.
Pursuant to 28 U.S.C. § 2255, petitioner Billyhens Nunez-Polanco moves to vacate his convictions for (1) conspiracy to distribute and possess with intent to distribute heroin and (2) possession with intent to distribute heroin, on the grounds that his trial counsel was ineffective. Nunez-Polanco's petition for relief is denied because he has not demonstrated that his attorney's performance fell below an objective standard of reasonableness and that he suffered prejudice as a result.
The history of the case is as follows. Nunez-Polanco was arrested after a police officer observed, through a peephole in the exterior door, Nunez-Polanco and three other men packaging heroin inside a Yonkers apartment. (Trial Tr. 34, 36, 42-45, 57.) The Court appointed Ronald Garnett, Esq. to represent Nunez-Polanco. At his 2012 trial, Nunez-Polanco took the stand and testified under oath that although he had accompanied a friend to the apartment, he had not participated in the packaging and in fact had not even seen any drugs in the apartment. ( Id. 595-600.) The jury, apparently not crediting Nunez-Polanco's testimony, returned a verdict of guilty.
Subsequent to being convicted and remanded to incarceration pending sentence, Nunez-Polanco participated in a so-called "safety valve" proffer session with the government pursuant to 18 U.S.C. § 3553(f). (Am. Pet. Under 28 U.S.C. § 2255 at 7.) During that meeting, he told the government that he had in fact gone to the apartment with the intention of packaging drugs, but that no work remained for him by the time he arrived. (Hr'g Tr. 35.) At sentencing, Garnett informed the Court that the defense and the prosecution agreed that Nunez-Polanco was not eligible for safety valve relief. (Sentencing Tr. 2, Oct. 16, 2012.) This Court then sentenced him principally to the mandatory minimum sentence of 60 months incarceration. ( Id. at 20.) Nunez-Polanco did not appeal from that sentence.
In his first pro se section 2255 petition, filed May 13, 2013, Nunez-Polanco alleged that Garnett was ineffective in three respects, as follows: (1) Garnett had neglected to file a notice of appeal after Nunez-Polanco had directed him to do so; (2) Garnett should have made a pretrial request that the jury visit the Yonkers apartment and inspect the peephole to determine for themselves what could be seen through it; and (3) Garnett had failed to effectively cross-examine the government's three cooperating witnesses at trial. ( See Mot. Under 28 U.S.C. § 2255 at 5-6.) Nunez-Polanco subsequently obtained representation and filed an amended petition, which alleged two additional grounds for relief: (1) Garnett had failed to convey two plea offers to Nunez-Polanco and to counsel him adequately regarding those offers; and (2) Garnett had failed to counsel and represent Nunez-Polanco adequately during the sentencing phase of the representation. ( See Am. Pet. 1.)
The Court held a two-day factual hearing on February 14 and 19, 2014, during which both Nunez-Polanco and Garnett testified and each was subject to vigorous cross-examination. At the hearing, again under oath, Nunez-Polanco admitted that he had indeed told Garnett that he had not packaged heroin in the apartment and that he had not seen drugs there; that he had testified falsely at his trial; and that he had provided false information to the government at the safety valve proffer. (Hr'g Tr. 5, 7, 12-14, 35, 53-55.)
A. Legal Standard
28 U.S.C. § 2255 directs the Court to vacate, set aside, or correct a sentence if it finds that there has been "such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." Pursuant to Strickland v. Washington's two-prong test for ineffective assistance of counsel, a habeas petitioner must prove that (1) "counsel's representation fell below an objective standard of reasonableness" and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689. The Court must indulge a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Cox v. Donnelly, 387 F.3d 193, 198 (2d Cir. 2004) (quoting Strickland, 466 U.S. at 689). Based on the evidence adduced at the hearing, the Court concludes that there is no merit to any of the five bases for relief that Nunez-Polanco has identified.
B. Counsel Did Not Act Unreasonably by Not Filing a Notice of Appeal
Petitioner alleges first that Garnett failed to file a notice of appeal after he instructed him to do so. At the hearing, Nunez-Polanco testified that "I told him I wanted to appeal, and he asked me whether I was sure, and I said that I was." (Hr'g Tr. 38.) If this were true, the Court would be required to find Garnett's representation constitutionally ineffective. See Anders v. California, 386 U.S. 738, 744 (1967); Campusano v. United States, 442 F.3d 770, 771-72 (2d Cir. 2006).
The Court, however, credits Garnett's testimony that Nunez-Polanco told him that "he did not wish to appeal." (Hr'g Tr. 133.) As corroborated by his billing records and handwritten meeting notes, Garnett testified that he visited Nunez-Polanco after his sentencing to discuss his appeal rights and possible grounds for appeal, and that his client had decided not to appeal. (Hr'g Tr. 133-34; Gov't Ex. 20.) He testified that at no time did Nunez-Polanco "communicate to [me] a desire to file a notice of appeal." (Hr'g Tr. 140.) Garnett also stated that Nunez-Polanco's family members never informed him that they wanted him to file an appeal. ( Id. at 140-41.) The only evidence Nunez-Polanco can point to is his own testimony. In light of petitioner's history of admittedly making false statements in judicial proceedings and his demeanor on the stand, the Court credits Garnett's testimony, as supported by his notes and billing records, that Nunez-Polanco never directed him to file an appeal.
C. Counsel's Decision Not to Request a Site Visit Prior to Trial Was Neither Objectively ...