United States District Court, S.D. New York
OPINION & ORDER
ROBERT P. PATTERSON, Jr., District Judge.
On May 16, 2014, Hector Dominguez-Gabriel ("Petitioner" or "Dominguez-Gabriel"), pro se, filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his conviction and twenty-year prison sentence for conspiring to commit money laundering and to import and distribute narcotics. (Mot. To Vacate, Set Aside or Correct Sentence Pursuant to 28. U.S.C. [§] 2255 (the "Petition" or "Pet."), 09-CR-157, ECF No. 125, 14-CV-3775, ECF No. 1.) In his motion, Dominguez-Gabriel contends that he received ineffective assistance of counsel at trial; that he was denied a fair trial because certain evidence was admitted without being properly authenticated and in violation of the Confrontation Clause; that there was insufficient evidence to support his conviction; that his sentence was unreasonable; and that the Government committed prosecutorial misconduct at trial. ( Id. at 21-28; 29-37; 38-46; 47-49; 51-56.) For the reasons stated below, Dominguez-Gabriel's Petition is DENIED.
I. FACTUAL BACKGROUND
A. Criminal Proceedings
On February 19, 2009, the Government filed an Indictment charging Dominguez-Gabriel with two drug conspiracies, one to distribute cocaine in the United States ("Count Two") and another to import cocaine into the United States ("Count Three"), and conspiracy to commit money laundering ("Count One"). (See Sealed Indictment, 09-CR-157, ECF No. 2.) A Superseding Indictment was filed on January 12, 2010. (Superseding Indictment ("Indictment"), ECF No. 31.) Count One charged Dominguez and co-defendant Manuel Alexander Araujo ("Araujo") with conspiracy to launder money, in violation of 18 U.S.C. § 1956(a)(1)(B) and (a)(2)(B). Count Two charged Dominguez and Araujo with conspiracy to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. Count Three charged Dominguez and Araujo with conspiracy to import five kilograms or more of cocaine into the United States, in violation of 21 U.S.C. §§ 812, 846, 959(a), 960(a)(3), and 960(b)(1)(A).
Trial began on December 6, 2010 before this Court. The Government set out to prove that Dominguez was "at the center of a large international drug conspiracy." (Trial Tr. ("Tr.") at 1226, ECF No. 64-65.) At trial, the Government relied primarily upon the testimony of Araujo, who began cooperating with the Government after his arrest on February 20, 2007. See United States v. Dominguez-Gabriel, No. 09-CV-157 (RPP), 2011 WL 1545105, at *1 (S.D.N.Y. Apr. 25, 2011). Araujo testified that his first drug deal with Dominguez-Gabriel was in approximately 2001, and provided detailed testimony of Dominguez-Gabriel's participation in money laundering and drug conspiracies. Id. at *1-6. Araujo's testimony was corroborated with transcripts of ten recorded calls between Araujo and Dominguez-Gabriel, ranging from December 2006 to February 21, 2007, in which Araujo and Dominguez-Gabriel discussed the purchase and sale of narcotics and their methods for laundering narcotics proceeds. Id. at * 1-2. The Government also presented testimony from David Marin, a second cooperating witness who was involved in the cocaine importation and distribution conspiracies, see id. at *6-7, and DEA Intelligence Research Specialist Eileen Moynahan, who testified about post-arrest statements made by Dominguez-Gabriel. Id. at *7-8.
The Government also presented testimony from Special Agent Gregory Tanella, who testified about the investigation of Dominguez-Gabriel and Araujo. Agent Tanella testified that he believed the investigation into Dominguez-Gabriel was initiated because of information provided by Miguel Duarte, a confidential informant, in October 2006. (Tr. at 239.) Duarte never appeared at trial, and Dominguez attempted to request he appear only near the end of the Government's case-in-chief. (Tr. 1014-16, 1196-97.) The Government argued against the inclusion of a missing witness charge in the jury instructions as to Duarte, arguing that the Defendant "gave no notice to the Government that he wished to call Mr. Duarte... [and] had the Government been given any notice, it would have endeavored to make Mr. Duarte available, " and further, that the Defense did not show that Duarte would have given material testimony. See Dominguez-Gabriel, 2011 WL 1545105, at *13 n.6 (emphasis in original). However, at the request of the Defense, the Court included a missing witness charge in the jury instructions over the Government objection. Id. at * 13.
On December 14, 2010, a jury found Dominguez-Gabriel guilty as to all counts of the Indictment. The Court sentenced Dominguez-Gabriel to concurrent terms of imprisonment of twenty years on Count One, 120 months on Count Two, and 120 months on Count Three. On February 18, 2011, Dominguez-Gabriel filed a motion for a new trial and for a judgment of acquittal (Mot. for New Trial and J. of Acquittal, ECF No. 72), which this Court denied in an Opinion and Order on April 25, 2011. Dominguez-Gabriel, 2011 WL 1545105, at * 1.
B. The Appeal
Dominguez-Gabriel, proceeding both through counsel and pro se, appealed his conviction on multiple grounds. United States v. Dominguez-Gabriel, 511 F.Appx. 17 (2d Cir. 2013). In his appeal, Dominguez-Gabriel argued, among other things, that the district court erred in failing to give a multiple conspiracies charge; that hearsay statements by non-testifying government informant Miguel Duarte were erroneously admitted, in violation of the Sixth Amendment's Confrontation Clause; and that the Government's alleged failure to produce Duarte at trial violated his right to compulsory process. Id. at 19-21. On February 4, 2013, the Second Circuit, in a summary order, rejected each of Dominguez-Gabriel's claims, and affirmed Dominguez-Gabriel's sentence of imprisonment. Id . The Supreme Court denied Dominguez-Gabriel's petition for a writ of certiorari on May 20, 2013. Dominguez-Gabriel v. United States , 133 S.Ct. 2402 (2013).
C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence
On May 16, 2014, Dominguez-Gabriel timely filed the instant§ 2255 motion, proceeding pro se. (Pet.) The Government filed a letter in opposition to Dominguez-Gabriel's petition on May 28, 2014. (Letter Response in Opp'n by U.S.A. ("Opp'n Letter"), 09-CR-157, ECF No. 126.) On July 1, 2013, Dominguez-Gabriel submitted a reply in response to the Government's Letter. (Reply to Gov't Letter ("Pet'r's Reply"), 14-CV-3775, ECF No. 2.)
I. LEGAL STANDARD
A. The Law Governing Petitions Under 28 U.S.C. § 2255
28 U.S.C. § 2255 provides, in relevant part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside, or correct the sentence.
Relief is available under § 2255 "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice." U.S. v. Bokun , 73 F.3d 8, 12 (2d Cir. 1995) (internal quotation and citation omitted). Because Dominguez-Gabriel is preceding pro se, the Court is obligated to construe his § 2255 motion liberally in his favor. See, e.g., Green v. United States , 260 F.3d 78, 83 (2d Cir. 2001) ("We see no reason why the general rule [affording liberal construction of pro se pleadings] should not apply to pro se motions filed pursuant to section 2255.").
In applications for collateral relief under § 2255, "two separate rules regarding claim preclusion based on prior adjudication apply." Yick Man Mui v. United States , 614 F.3d 50, 53 (2d Cir. 2010. The first is the "mandate rule, " which bars re-litigation of issues that were resolved, either explicitly or implicitly, on direct appeal. Id .; see also Burrell v. United States , 467 F.3d 160, 165 (2d Cir. 2006) ("[T]he trial court is barred from reconsidering or modifying ...