United States District Court, Eastern District of New York
OPINION AND ORDER
NINA GERSHON United States District Judge
Petitioner Richard Lugo ("Lugo"), pro se, moves to vacate his conviction and sentence under 28 U.S.C. § 2255. On July 26, 2005, following a jury trial, petitioner was convicted of murder in aid of racketeering, conspiracy to commit murder in aid of racketeering, and use of a firearm in furtherance of a crime of violence. He was sentenced to a life term of imprisonment, and his conviction was affirmed by summary order in United States v. Lugo, 251 Fed.App'x 695 (2d Cir. 2007), cert, denied, 553 U.S. 1047 (2008).
In support of his habeas petition, Lugo asserts that counsel provided constitutionally ineffective assistance at various stages of his criminal proceedings. In particular, he claims that his trial and appellate counsel were ineffective in (a) failing to challenge his indictment, prosecution, and conviction on aiding and abetting and co-conspirator theories of liability after the acquittal of Daniel Lugo on the same charges; (b) failing to assert his speedy trial rights; (c) failing to move to suppress a custodial statement elicited in violation of his Sixth Amendment right to counsel; (d) failing to move to dismiss the indictment on the ground that he was never arraigned on the second superseding indictment; (e) failing to file a motion alleging prosecutorial misconduct; (f) failing to challenge the sufficiency of the evidence; (g) failing to investigate his case; (h) failing to move for a new trial on the ground of newly discovered evidence; (i) failing to challenge his conviction based on a comment by the court at sentencing; (j) the existence of "conflict of interest" between him and his trial counsel; and (k) failing to advise him regarding the government's plea offer and his maximum sentencing exposure. He also claims that his appellate counsel generally provided constitutionally ineffective assistance on appeal. Finally, he claims that his conviction and sentence for possessing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c), should be vacated in light of Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013).
For the reasons stated below, the court finds that petitioner has not demonstrated any basis for habeas relief and therefore denies the petition in its entirety.
A. The Indictments
On August 15, 2001, a grand jury returned an indictment charging Darryl Tyler, Michael McMillan, Kenneth Watson, Dwayne Hunter, Tonya Foster, Daniel Lugo, and Richard Lugo with various crimes, including racketeering, racketeering conspiracy, murder in aid of racketeering, conspiracy to commit murder in aid of racketeering, narcotics conspiracy, and firearms offenses. All of the defendants were arrested in October 2001 with the exception of Richard Lugo, who remained a fugitive until January 2003. Hunter and Foster agreed to plead guilty to the charges against them.
On June 7, 2002, a grand jury returned a superseding indictment against Tyler, McMillan, Watson, Daniel Lugo, and Richard Lugo. This indictment charged Richard and Daniel Lugo with conspiracy to commit murder in aid of racketeering, murder in aid of racketeering, and the use and possession of a firearm in furtherance of a crime of violence.
Richard Lugo was apprehended in January 2003 for using a false driver's license. On November 17, 2003, a grand jury returned a second superseding indictment charging him with conspiracy to commit murder in aid of racketeering, murder in aid of racketeering, and the use and possession of a firearm in furtherance of the aforementioned offenses.
B. The Trial of Daniel Lugo, Tyler, McMillan, and Watson
Daniel Lugo, Tyler, McMillan, and Watson were tried before the Hon. Jack B. Weinstein, district judge, in July 2002. The jury found Daniel Lugo guilty of conspiracy to commit murder in aid of racketeering, but he was acquitted of the murder and firearms charges. He was sentenced to the statutorily authorized maximum sentence of ten years' imprisonment. Tyler, McMillan, and Watson also were acquitted of murder, but Tyler and Watson were convicted of conspiracy to commit murder in aid of racketeering, and all three defendants were convicted of racketeering, racketeering conspiracy, and narcotics conspiracy. Tyler, McMillan, and Watson each were sentenced to a life term of imprisonment.
C. The Trial of Richard Lugo
Richard Lugo's trial commenced before the undersigned district judge in December 2003. The facts established at trial show:
Beginning in the early 1980s, Tyler (also known as "D-Nice") ran the "D-Nice Enterprise, " which distributed large quantities of powder and crack cocaine in New York City. The D-Nice Enterprise later expanded its narcotics business to Baltimore, Maryland. In 1996, Tyler learned that several members of the Enterprise's operations in Baltimore—including Barry Hall ("Little Jus") and Lanny Dillard—had been selling cocaine for their own profit. Tyler ordered them to stop. On a visit to Baltimore shortly thereafter, Tyler was shot in an apparent assassination attempt.
The D-Nice Enterprise declared war on the now-rival "Little Jus crew." They sought to avenge the attempt on Tyler's life by killing Little Jus, Lanny Dillard, and other members of the rival crew. The ensuing turf war led to several violent confrontations. As a result, Tyler hired gunmen McMillan and Watson to provide security for the Enterprise's operations. In 1998, when Tyler and Erwin Stokes, one of his trusted lieutenants, encountered Dillard, Tyler accused Dillard of attempting to kill him and his brother, Eric Steel ("Tweety"). Less than a month later, on November 16, 1998, Tweety was shot and killed by two unknown assailants.
Believing the Little Jus crew to be responsible, the D-Nice Enterprise hired brothers Richard and Daniel Lugo (the "Lugo brothers") to seek out and kill members of the rival drug operation. On several occasions, Tyler gave Richard Lugo money as a down payment for their services. Eventually, the D-Nice Enterprise learned that members of the Little Jus crew were likely to attend at a party in Manhattan on December 26, 1998. They advised the Lugo brothers. On the night of the party, Tyler, Stokes, and other members of the D-Nice Enterprise met the Lugo brothers at a nearby pool hall. Tyler instructed Hunter, an associate, to search the party for the Little Jus crew, and Hunter called to confirm that Dillard was in attendance. In the early morning hours of December 27, 1998, Dillard was shot and killed as he left the party with his wife and family.
Shortly after Dillard's murder, Tyler, Stokes, and other D-Nice Enterprise members met Daniel Lugo at Junior's Restaurant in Brooklyn and gave him an envelope containing cash. A few days later, Tyler gave the balance of a $30, 000 payment to Richard Lugo at another meeting near Junior's. At Tyler's direction, Stokes then delivered two guns to Richard Lugo at Lugo's apartment. Lugo told Stokes that he could kill other members of the Little Jus crew for an additional $60, 000. Stokes later delivered a few ounces of heroin to Lugo. During that meeting, Lugo questioned Stokes about the whereabouts of other members of the Little Jus crew. After Lugo complained to Tyler about the quality of the heroin, Stokes returned to collect the drugs. At this encounter, Lugo sought Stokes's approval to kill another member of the Little Jus crew, but Stokes informed him that only Tyler could give him permission to carry out the hit.
The government's witnesses included four former members and associates of the D-Nice Enterprise who testified pursuant to cooperation agreements. Erwin Stokes, Robert McCall (a drug dealer), and Yakkov Lefkowitz (a drug courier) testified about the Enterprise's narcotics business and the conspiracy to murder members of the Little Jus crew, including the murder of Lanny Dillard. Hunter, the fourth cooperating witness, testified about the plans that led to Dillard's murder. The jury also heard from several eyewitnesses to the events surrounding the shooting, including the victim's wife, and from law enforcement officers who had investigated various aspects of the D-Nice Enterprise's activities.
In addition, Rolando Lorenzo, a convicted prisoner who met Richard Lugo at the Metropolitan Detention Center, testified about several conversations he had with Lugo shortly after Lugo was apprehended. Talking through the air vents, Lugo sought Lorenzo's advice about his case, which he said involved a contract killing. After Lorenzo warned Lugo that "the walls got ears, " Lugo sent Lorenzo a letter inside a magazine. The letter, which was introduced at trial, referred to a meeting between Lugo and an "informant" regarding an offer to "rock someone off the piece" in exchange for "10 cent and a car." The letter then asked Lorenzo, "[c]an they use that against a fella?" Because Lorenzo could not read, Lugo had to explain to him that an individual had asked him to "rock, " i.e., kill, someone in exchange for $10, 000 and a car. Lugo believed that this individual now was cooperating with the government and wanted to know whether this conversation could be used against him at trial.
The government also introduced a tape-recorded conversation between Richard Lugo and his brother Robert Lugo discussing the letter. During the conversation, Robert informed Richard that the government was seeking a handwriting sample to compare to the letter. Richard agreed with his brother that this posed a serious problem. At trial, a handwriting expert, Peter Tytell, testified that he had obtained handwriting exemplars from Lugo on two occasions to compare to the letter that Lugo had sent to Lorenzo. On the first occasion, Lugo wrote unusually slowly and refused to continue after writing three pages. Tytell testified that the handwriting exemplars he was able to obtain were not in "large measure" Lugo's natural handwriting, but that he nonetheless was able to conclude that there was very strong evidence that Lugo wrote the letter discussing the contract killing.
On January 12, 2004, after a four-week trial, the jury found Lugo guilty of all counts. He was sentenced principally to a life term of imprisonment on the murder charge, a concurrent ten year term on the conspiracy charge, and a consecutive ten year term on the firearms charge.
Lugo appealed his conviction to the Second Circuit, He was initially represented on appeal by Marilyn Reader, Esq., who filed a brief on his behalf. The brief argued that the evidence at trial was insufficient to support his conviction for murder in aid of racketeering and that the court erred in admitting a custodial statement he made to a law enforcement officer. Ms. Reader was then replaced by Uzmah Saghir, who, after missing several court deadlines, ultimately filed a supplemental brief on Lugo's behalf. This supplemental brief argued that venue was improper with respect to the murder in aid of racketeering charge and that Lugo's trial counsel was ineffective for failure to raise a venue challenge. Lugo also submitted a pro se brief, arguing that the court erred in instructing the jury. The Second Circuit considered all of the arguments raised in these briefs and found them to be without merit. Lugo, 251 Fed.App'x 695. The Supreme Court denied Lugo's petition for a writ of certiorari on May 12, 2008. Lugo, 553 U.S. 1047(2008).
E. Habeas Petition
On February 17, 2009, Lugo filed a habeas petition seeking to vacate his conviction and sentence under 18 U.S.C. § 2255. In the petition and subsequent memorandum of law, he claimed that trial counsel was ineffective for waiving his speedy trial rights without consultation and for failing to move to dismiss the indictment on speedy trial grounds, move to suppress his post-arrest statements, argue that petitioner was never arraigned on the superseding indictment, investigate his case and subpoena witnesses on his behalf, argue that there was insufficient evidence to support his conviction for murder in aid of racketeering, challenge his conviction and sentence based on the court's statement that he was found "not to have discharged a weapon, " and pursue a Rule 33 motion for a new trial on the ground of newly discovered evidence. He also claimed that appellate counsel was ineffective for failing to raise several of these arguments on appeal, and for failing to preserve his challenge to erroneous jury instructions.
On May 28, 2009, petitioner filed a supplemental memorandum of law in support of his habeas petition. He alleged that the government committed prosecutorial misconduct by eliciting false testimony and that his right to the effective assistance of counsel was violated because a conflict of interest existed between him and his trial counsel. The government filed a response to the arguments raised in petitioner's original habeas petition and his supplemental memorandum of law on September 25, 2009, and Lugo submitted a reply brief dated October 23, 2009.
On October 29, 2009, petitioner sought to file an addendum to his petition, "clarifying" his arguments regarding prosecutorial misconduct. The government responded to these additional arguments on December 7, 2009, and petitioner submitted a reply brief. On February 25, 2010, petitioner sought to file a further addendum with respect to his prosecutorial misconduct claim. Then, on June 14, 2011, petitioner requested that the court expand the record to include a letter from the State of New York Grievance Committee for the Second, Eleventh and Thirteenth Judicial Districts concerning the disbarment of one of his appellate attorneys, Uzmah Saghir, and the corresponding opinion and order of disbarment issued by the Appellate Division. The court granted these requests.
On August 14, 2012, petitioner submitted a further affirmation in support of his habeas petition, arguing for the first time that trial counsel was ineffective for not properly advising him regarding the government's plea offer of ten years and misinforming him of the maximum sentencing exposure he faced. Lugo filed another affirmation in support of his petition on May 21, 2013, expanding on his arguments regarding the ineffectiveness of appellate counsel. Petitioner filed yet another affirmation in support of his habeas petition on September 12, 2013, arguing that under Alleyne, 133 S.Ct. 2151, the court's determination at sentencing of facts enhancing the mandatory minimum sentence on the firearms charge from five years to ten years violated his Sixth Amendment right to trial by jury. The government responded to the arguments raised in petitioner's supplemental briefs on August 11, 2014.
In response to the government's request that Ms. Sternheim respond to petitioner's allegations of ineffectiveness of trial counsel, Ms. Sternheim submitted a detailed declaration responding to Lugo's allegations that she did not adequately advise him in the plea bargaining process, failed to file a suppression motion on his behalf, and erroneously informed him that the murder charge would be dismissed at trial. Petitioner submitted a reply declaration on September 2, 2014, and replied to the government's opposition brief on October 6, 2014.
I. Standard of Review
A prisoner held in federal custody may "move the court which imposed the sentence to vacate, set aside, or correct the sentence" on the basis that the sentence was "imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). However, "[b]ecause collateral challenges are in tension with society's strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for a defendant to upset a conviction" through a habeas challenge than by direct appeal. Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010) (internal quotation marks omitted).
In ruling on a section 2555 motion, the district court must hold a hearing "[u]nless the motion and the files and records of the case conclusively show that the petitioner is entitled to no relief." 28 U.S.C. § 2255(b). To be entitled to a hearing with respect to claims of ineffective assistance of counsel, petitioner "need establish only that he has a 'plausible' claim of ineffective assistance of counsel, not that he will necessarily succeed on the claim." Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009) (internal quotation marks omitted).
Although the court must "view the evidentiary proffers, where credible, and the record in the light most favorable to the petitioner, " the court "need not assume the credibility of factual assertions . .. where the assertions are contradicted by the record in the underlying proceeding." Id. at 214. Moreover, "when the judge that tried the underlying proceedings also presides over the Section 2255 motion, a less-than full-fledged evidentiary hearing may permissibly dispose of claims where the credibility assessment would inevitably be adverse to the petitioner." Id. In particular, where petitioner offers only generic or unsubstantiated assertions of ineffective assistance of counsel, the court "may properly rely on his or her knowledge of the record and may permissibly forgo a full hearing and instead request letters, documentary evidence, and affidavits to aid in its resolution of the claim." Id. at 215. If these submissions show "that the particular petitioner had no chance of overcoming counsel's detailed explanation, " a full-fledged evidentiary hearing is not required. Id.
Finally, because petitioner is appearing pro se, the court construes his habeas petition liberally and interprets it to raise the strongest arguments that it suggests. See Erickson v. Pardus, 551 U.S. 89, 84 (2007); ...