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Amato v. United States

United States District Court, E.D. New York

April 6, 2017



          NICHOLAS G. GARAUFIS, United States District Judge.

         Before the court is Petitioner Baldassare "Baldo" Amato's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 (the "Petition"). (Pet. (Dkt. I).)[1] Petitioner asserts nine claims, but his principal argument is that he received ineffective assistance of counsel at trial and on direct appeal. For the reasons stated below, the Petition is DISMISSED.

         I. BACKGROUND

         The sections that follow review Petitioner's criminal charges, trial, and direct appeal. The court assumes the parties' familiarity with the extensive underlying proceedings, and summarizes the record only to the extent necessary for the court's habeas review.

         A. The Criminal Charges

         In January 2004, the United States of America (the "Government") filed a Superseding Indictment against Petitioner and 27 other individuals, alleging several crimes in connection with the activities of the Bonanno crime family, also known as La Cosa Nostra. (See generally Superseding Indictment (Trial Dkt. 4).) The Bonanno family was accused of "generating] money... through various criminal activities, including drug trafficking, extortion, illegal gambling, loansharking and robbery. The members and associates of the Bonanno family also furthered the enterprise's criminal activities by threatening economic injury and ... physical violence, including murder." (Id. ¶ 9.)

         Petitioner was charged with four counts: one count of racketeering conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d) (see Id. ¶¶ 13-15); and three counts related to illegal gambling enterprises, in violation of 18 U.S.C. §§ 371 and 1955 (see id ¶¶ 114-17). The RICO count was based on four predicate acts: the murder of Sebastiano DiFalco and conspiracy thereof (the "DiFalco Murder"); the murder of Robert Perrino and conspiracy thereof (the "Perrino Murder"); illegal gambling activities; and conspiracy to commit robbery. (Id. ¶¶ 63, 71, 81-86, 100.)

         Petitioner's case was consolidated with seven other codefendants' and styled as "Urso I." (See Feb. 2, 2006, Order (Trial Dkt. 600).) The only Urso I defendants who proceeded to trial were Petitioner, Anthony Basile, and Steven LoCurto. These two codefendants faced charges of racketeering conspiracy based on predicate acts of murder, drug distribution, and (for Basile only) loansharking. (See Revised Indictment for Urso I Defs. (Trial Dkt. 672-1).)

         B. Trial Counsel's Conflict of Interest

         Petitioner was initially represented by counsel appointed under the Criminal Justice Act. (See Feb. 13, 2004, Min. Entry (Trial Dkt.).) This representation included the arraignment, where Petitioner pled "not guilty" to all counts (see Feb. 17, 2004, Min. Entry (Trial Dkt. 67)), and continued through early discovery and pre-trial motion practice. Petitioner privately retained Diarmuid White in January 2006. (Not. of Att'y Appearance (Trial Dkt. 577).) White represented Petitioner thereafter through pre-trial procedures, trial, sentencing, and appeal.

         1. White's First Letter

         When White filed his notice of appearance, he also filed a letter notifying the court of a potential conflict of interest based on his prior representation of Joseph Massino, a former Bonanno family "boss." (Jan. 9, 2006, Ltr. re Curcio Hr'g ("1st White Ltr.") (Trial Dkt. 578); Superseding Indictment ¶ 8 ("At various times, Joseph Massino was the boss of the Bonanno family.").) In separate criminal proceedings before this court, Massino had already received concurrent life sentences for crimes related to the Bonanno family. (See J. (Dkt. 901), United States v. Massino, No. 02-CR-307-27 (NGG) ("Massino I"); see also United States v. Massino, No. 03-CR-929-1 (NGG) ("Massino II").) He subsequently became a Government cooperator.

         White explained that he was one of multiple unaffiliated attorneys who supported Massino's primary defense counsel in the early phases of trial preparation. (1st White Ltr. at 2; see generally Massino I.) White's engagement lasted approximately eight months. (Id.) "Massino discharged White prior to [any pre-trial] motions being filed on his behalf." (1st White Ltr. at 3.) White stated that he could "recall no material information or confidences and secrets conferred upon [him] by Massino." (Id.)

         Nonetheless, as a precautionary measure, White stated his intention to engage co-counsel, who would cross-examine Massino if he were to "testify against Amato, " an eventuality that was "by no means certain." (Id. at 1.) "Under these circumstances, " White argued that there was "no 'serious potential conflict'" that would require his disqualification, "and likely no potential conflict at all." (Id. at 3 (quoting the standard for disqualification established in United States v. Schwarz, 283 F.3d 76 (2d Cir. 2002)).) White concluded that "any potential conflict of interest is clearly waivable, " and stated that "defendant Amato is prepared to make any appropriate waivers at a Curcio hearing." (Id. at 2 (internal quotation marks omitted).) See also United States v. Velez. 354 F.3d 190, 198 (2d Cir. 2004) (The purpose of a Curcio hearing is "to determine whether the defendant knowingly and intelligently waives his right to conflict-free representation." fating United States v. Curcio, 680 F.2d 881, 888-90 (2d Cir. 1982))).

         2. The January 2006 Status Conference

         The parties discussed White's letter at a status conference on January 23, 2006 (the "January 2006 Status Conference"). The Government explained that Massino was a "potential witness, " and that Massino's current counsel had not yet indicated whether Massino would consent to "waive any attorney-client privilege or duty of loyalty, or any duty remaining from Mr. White's representation." (Jan. 2006 Status Conf. Tr. (Dkt. 33-1) at 38:14-19.) The Government stated its position that, if "[Massino] does not waive that issue, that Mr. White should be disqualified from the case."[2] (Id. at 38:22-24.) White responded that Massino's "waiver is not required in any respect, " and noted that he was not "requesting] a waiver with respect to the attorney-client privilege." (Id. at 39:10-13.) White restated his intention that co-counsel would conduct any necessary cross-examination of Massino, and reaffirmed his position that "[t]his is eminently a waivable conflict." (Id. at 39:8-10.)

         3. White's Second Letter

         On February 16, 2006, White sent a letter notifying the court that, "confronted with the reality of a trial" that could last up to three months, Petitioner was "unable to marshal the resources to retain two lawyers." (Feb. 16, 2006, Ltr. re Curcio Waiver ("2d White Ltr.") (Trial Dkt. 609) at 1.) Consequently, White intended "to try the case without co-counsel and, " if necessary, to cross-examine Massino himself. (Id.) White acknowledged that he "would not seek to cross-examine Massino based on any privileged communication, unless [Massino] waived the privilege." (Id. at 1-2.) White maintained that "[t]his modified position ... [did] not render any potential conflict of interest unwaivable, " and reiterated that "Defendant Amato [was] prepared to make all appropriate Curcio waivers." (Id.)

         4. Subsequent Developments

         The court did not hold a Curcio hearing for Petitioner, nor did either party notify the court of any waivers from Massino regarding White's representation. (See Gov't Mem. in Opp'n to Pet. ("Gov't Opp'n") (Dkt. 24) at 25; Pet'r's July 4, 2013, Ltr. (Dkt. 33) at 5.) Before the trial began, the Government stated that it did not intend to call Massino as a witness. (May 22, 2006, Gov't Mot. in Lim. (Trial Dkt. 713) at 6.) None of the Ursol defendants called Massino as a defense witness.

         C. Evidence Adduced at Trial Regarding the DiFalco and Perrino Murders

         Petitioner was a "made" member and longtime "soldier" in the Bonanno family. (See, e.g.. Trial Tr.[3] 296:1-2, 335:16-336:6 (testimony of Salvatore Vitale); Tr. 2091:22-2092:3 (testimony of Frank Lino); Tr. 2539:6-10 (testimony of Frank Ambrosino).) His RICO charge included four predicate acts related to the Bonanno criminal enterprise, but Petitioner's habeas claims focus almost exclusively on the predicate acts of murder and conspiracy to murder as to Sebastiano DiFalco and Robert Perrino. The following sections summarize the portions of the trial record that relate to Petitioner's habeas claims. Undisputed background facts are provided without citations to the record.

         1. The DiFalco Murder

         Samuel "Sammy" DiFalco owned and operated a restaurant (the "Giannini restaurant") that was frequented by members of the Bonanno family. Various Bonanno members testified that DiFalco was, in fact, Petitioner's associate and that Petitioner had a financial stake in the restaurant (See Tr. 382:18-383:6 (Vitale); Tr. 1068:5-13 (Anthony Tabbita); Tr. 1832:19-1833:21 (Lino).) DiFalco went missing on February 27, 1992. The police discovered his body three weeks later in the trunk of his daughter's car, which had been reported stolen. DiFalco had been shot twice in the back of the head.

         Petitioner was implicated in the murder by two cooperating witnesses, Salvatore "Sal" Vitale, a former "underboss" of the Bonanno family, and Anthony Tabbita, a former Bonanno "associate." The Government bolstered its case by arguing that Petitioner acted suspiciously in the days and weeks after DiFalco's disappearance. White sought to preclude or limit Vitale's testimony. When those efforts failed, White argued that the Government's case amounted to nothing more than circumstantial evidence. (Tr. 3622:25-3623:4 (White summation).) White attacked the credibility and character of key witnesses, posited that certain witnesses had fabricated their accounts in order to cover up their own criminal activity or secure better plea deals from the Government, and offered innocent alternative explanations for Petitioner's allegedly suspicious conduct.

         a. Government Witness Sal Vitale

         Vitale was a Bonanno underboss, meaning that he outranked Petitioner in the Bonanno family. Vitale testified that, during a conversation with Massino at an unspecified time in the 1990s, Massino "said that Baldo killed Sam because he thought Sam was robbing from the [Giannini] restaurant." (Tr. 389:11-20.) Vitale's anticipated testimony on this point was the subject of pre-trial motions and a contemporaneous objection during trial. White also sought to undermine Vitale's credibility. The court reviews these legal maneuverings in detail because of their importance for Petitioner's habeas claims.

         i. Pre-Trial Motions Concerning Vitale's Testimony

         Before trial, White sought to preclude Vitale's anticipated testimony regarding the conversation with Massino on the grounds that (1) Massino's statement constituted "idle chatter" that did not qualify for the RICO co-conspirator hearsay exception under Federal Rule of Evidence 801(d)(2)(E); (2) admission of Vitale's statement would violate the Confrontation Clause unless the Government could establish that "Massino had [a] sufficient non-hearsay basis for his professed knowledge of the DiFalco murder"; and (3) the testimony should be excluded as unduly prejudicial under Rule 403. (See May 18, 2006, Amato Mot. in Lim. (Trial Dkt. 690).) The court denied White's motion as to Rule 403, finding Massino's statement to be "probative of [Petitioner's involvement in] the racketeering conspiracy" and "not substantially outweighed by unfair prejudice." (May 26, 2006, Mem. & Order (Trial Dkt. 731) at 15.) As to White's other arguments, the court "den[ied the] motion as premature until the direct examination of Salvatore Vitale." (Id.)

         Meanwhile, the Government sought to preclude all codefendants from referencing certain handwritten notes made by Massino on FBI "FD-302" reports, the FBI's report format for summarizing interviews. (See May 22, 2006, Gov't Mot. in Lim. at 4.) The Government had disclosed "various FBI-302 reports" to Massino when he was preparing for his own criminal trials (before he was convicted and agreed to become a Government cooperator). (Id.) Vitale's 302 recounted Massino's remark that Petitioner had DiFalco killed because of a monetary dispute concerning the restaurant. (See Vitale 302 Report (Dkt. 29-12).) "During [Massino's] trial preparation, Massino made handwritten notes on Vitale's 302 in which he denied that the conversation ever took place" (the "302 Notes"). (Gov't Opp'n at 26; see also Vitale 302 Report.)

         At Petitioner's trial, the Government sought to "preclude defense reference to the substance" of the 302 Notes on hearsay grounds, and argued further that "there can be no good faith basis for believing that any government witness in this trial would have their recollection refreshed by reviewing Massino's notes." (May 22, 2006, Gov't Mot. in Lim. at 4.) White responded that he "[did] not intend to refer to [the 302 Notes] if Massino does not testify." (May 25, 2006, Amato Resp. to Mot. in Lim. (Trial Dkt. 725) at 1.) The court found "that Joseph Massino's handwritten notes on F.B.I. 302 reports constitute [] out of court statements" offered to prove the truth of the matter asserted and "are therefore precluded by Rules 801 and 802" of the Federal Rules of Evidence. (May 26, 2006, Mem. & Order at 3.)

         White subsequently revised his position in response to the Government's proffered basis for Massino's knowledge, namely "that Massino spoke to Amato and Amato told him" about the DiFalco murder. (May 27, 2006, Amato Mot. for Reconsid. (Trial Dkt. 734).) White advised the court that, should Massino's statement to Vitale be deemed "admissible as a statement of a coconspirator in furtherance of the conspiracy, " the 302 Notes "would be admissible under [Federal Rule of Evidence] 806 to attack the credibility of the declarant, Massino." Qd. (citing Fed. R Evid. 806 (When a co-conspirator statement "has been admitted in evidence, the declarant's credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness.").)

         Finally, White made a request under Brady v. Maryland, 373 U.S. 83 (1963), for the Government to produce "any information, whether reduced to writing or not, reflecting any inconsistency between what Salvatore Vitale has stated Joseph Massino told him about the Sebastiano DiFalco homicide and what Massino has stated about that homicide or his conversation with Vitale concerning it." (May 26, 2006, Amato Brady Mot. (Trial Dkt. 729).) It does not appear that any such information was produced.

         ii. White's Objection to Vitale's Testimony

         At trial, the Government asked Vitale to describe the conversation he'd had with Massino regarding the circumstances of DiFalco's death. (Tr. 384:1-385:5.) White objected and requested a sidebar, arguing that the Government had failed to establish a non-hearsay basis for Massino's knowledge. (Tr. 385:6-386:7.) White also "ask[ed] for an evidentiary hearing with Joe Massino." (Tr. 386:17-18.) For "something as important as this, " White argued, the court could not "just accept a proffer" as to the basis for Massino's knowledge, and should bring him "in here to testify to that at a hearing." (Tr. 386:17-23.)

         The Government responded that (1) the testimony could properly be introduced on the grounds that Massino, Vitale, and Petitioner were all co-conspirators in the Bonanno racketeering conspiracy; (2) the Government was not "required to elicit from the witness the basis for Mr. Massino's knowledge"; (3) the Government had "already proffered the basis" for Massino's knowledge, namely that he had spoken to Petitioner; and (4) "it is obvious" that the information would have to have come from within the Bonanno family because "no one outside the crime family [would] tell them" about one Bonanno member killing another. (Tr. 386:8-16, 387:7-20; see also May 26, 2006, Gov't Resp. to Mot. in Lim. (Trial Dkt. 728) at 9-10 (previewing these arguments during motions in limine).)

         The court overruled White's objection and denied the request for a hearing. (Tr. 388:11-12.) After Vitale testified, White renewed his objection with arguments under the Confrontation Clause and the Due Process Clause, arguing that, because Massino was "available to the government to call" as a witness, it was "unfair to introduce his statements without calling him." (Tr. 473:6-11.) The court rejected White's renewed objection in a written opinion. (June 8, 2006, Mem. & Order (Trial Dkt. 770).)

         iii. White's Defense Strategy Regarding Vitale's Testimony

         During White's summation, he warned the jury "to be cautious about" statements allegedly made by "people who didn't testify." (Tr. 3626:24-25.) He reminded the jury that Vitale had no personal knowledge of Petitioner's involvement in the DiFalco murder; rather, Vitale was relying on Massino's word, and Vitale himself had admitted that Massino was a "calculating" person who lied even to members of the Bonanno family. (Tr. 3623:21-3626:25; see also Tr. 403:18-405:18, 409:9-18 (Vitale cross-examination).)

         White also spent considerable time attacking Vitale's credibility. White emphasized repeatedly that Vitale had admitted to participating in eleven murders. (See, e.g., Tr. 3696:9-14, 3698:20, 3703:1-6, 3704:23-24, 3705:3-5 (White summation).) White also characterized Vitale as a "maestro" of deceit, a "fraud, " a man who "minimized his role in everything" and "has no problem" implicating members of the Bonanno family in order to divert suspicion from his own activities or to negotiate a better deal with the Government. (Tr. 3694:15-3695:24, 3703:19; see also Tr. 3696:4-3704:22.)

         b. Government Witness Anthony Tabbita

         Tabbita was "on record" with Petitioner in the early 1990s (Tr. 1059:13-17), meaning that Tabbita was not yet a "made" Bonanno member, and so he participated in Bonanno activities under Petitioner's supervision. Prior to Petitioner's trial, Tabbita had already implicated Petitioner in the DiFalco murder while testifying in two other criminal trials. At Petitioner's trial, the Government presented Tabbita with that prior testimony, but Tabbita stated that he did not remember giving it. (Tr. 1479-82.) He did, however, testify to the following account. Tabbita was asked by one of Petitioner's known associates to assist with a plot to kill DiFalco. (Tr. 1077:19-23, 1080:14-22.) Tabbita understood this request to be coming indirectly from Petitioner himself. (Tr. 1071:10-14, 1080:18-22.) Tabbita participated in two failed murder attempts against DiFalco (Tr. 1082-86), but was then arrested and convicted on state charges in 1992. DiFalco was killed while Tabbita was incarcerated. (Tr. 1087:1-12.)

         When asked why Petitioner "wanted [DiFalco] dead, " Tabbita said he "believed it was over money." (Tr. 1087:21-23.) Tabbita testified that he did not know anyone named Salvatore Vitale. (Tr. 1088:8-14.) The Government's summation emphasized that Tabbita and Vitale had offered similar accounts of Petitioner's role in and motive for the DiFalco murder, even though the two witnesses did not know each other and had never discussed these details. (Tr. 3502:21-3503:5.)

         As with Vitale, White went to great lengths to undermine Tabbita's creditability, describing him as a "psychopath" who had pled guilty to multiple murders. (Tr. 3618:7-12, 3635:24, 3645:5-11 (White summation).) "[O]f all the witnesses in this trial, " White argued that Tabbita was "by far the most untrustworthy." (Tr. 3636:5-6.) White also attacked the substance of Tabbita's testimony, arguing that the Government prodded him with leading questions and overstated the significance of his vague or uncertain answers. (See Tr. 3637:4-3643:23, 3648:20-3652:21.) Finally, White suggested that Tabbita had a personal motive to murder DiFalco, and that he was framing Petitioner in an attempt to cover his own tracks. (See Tr. 3648:8-16, 3654:17-3655:21.)

         c. Petitioner's Suspicious Conduct Following DiFalco's Disappearance

         As indirect evidence of Petitioner's guilt, the Government elicited testimony regarding Petitioner's conduct in the weeks following DiFalco's disappearance. The Government highlighted four types of allegedly suspicious conduct, all of which White challenged.

         i. The Interview with Nina DiFalco

         First, Petitioner allegedly attempted to glean information about the police investigation into DiFalco's disappearance. Shortly after DiFalco was reported missing, Detective John Jacobsen set up a meeting with DiFalco's wife, Nina DiFalco, at her home. (Tr. 1615:22-1616:3 (Jacobsen testimony).) Petitioner was at the DiFalco residence when Detective Jacobsen arrived, and Petitioner sat nearby, "looking in [their] direction, " while the detective spoke with Nina DiFalco. (Tr. 1617:5-18.) Detective Jacobsen then questioned Petitioner, who identified himself as the manager of the Giannini restaurant. (Tr. 1617:19-1618:1.) In the Government's summation, they argued that Petitioner lingered during the interview with Nina DiFalco because he "want[ed] to know what the police [were] asking" and "what the police knew" about DiFalco's disappearance. (Tr. 3535:10-12.)

         White countered that Petitioner's presence was easily explained by his long friendship with the DiFalco family. (See Tr. 3631:20-3632:21 (White summation) (summarizing testimony as to the friendly relationship between Petitioner and Sammy DiFalco).) In an effort to comfort Nina DiFalco, Petitioner would call every day to see if she had any family members with her, and he would bring food over to the house. (Tr. 3668:1-10.)

         ii. The "False Alibi" Theory

         Second, the Government accused Petitioner of attempting to "create a false alibi." (Tr. 3546:10-13 (Gov't summation).) Petitioner claimed in two separate police interviews that he was present at the Giannini restaurant on the night DiFalco disappeared. (Tr. 1619:21-1620:1 (Det. Jacobsen police report); Tr. 1941:17-21 (Det. Vormittag police report).) At trial, however, Giannini employee Giovanni Annunziati testified that he saw DiFalco at the restaurant on the day in question, but that he did not remember seeing Petitioner. (Tr. 1666:2-3, 1666:25-1667:1.)

         White offered two responses. First, he noted that Annunziati could simply be mistaken about who was or was not at the restaurant on a particular day 14 years earlier. (Tr. 3670:22-3671:7.) White further argued that, as a matter of common sense, Petitioner would not have "lie[d] to a detective who can very easily verify it or find out it's not true, " especially "a couple of days after the event when it was fresh in everybody's mind." (Tr. 3671:8-16.)

         iii. Petitioner's Remarks to Frank Fiordolino

         Third, the Government emphasized the testimony of cooperating witness Francesco "Frank" Fiordolino, who described an interaction he had with Petitioner on March 19, 1992, the day after DiFalco's body was found. Fiordolino was walking on the street when Petitioner called out from his car and asked Fiordolino whether "any of the [Italian expletives] passed by about that [Italian expletive], " which Fiordolino understood as an inquiry about whether the police had been asking around about DiFalco. (Tr. 1835:25-1838:19.) This conversation, the Government argued, "contradicts" the defense's theory that Petitioner "would never be involved in a [] conspiracy with the murder of DiFalco" because the two men were close friends. (Tr. 3548:5-9 (Gov't summation).) Petitioner "wouldn't refer to Sammy DiFalco, a man who had been missing for weeks and just the night before had been found stuffed in the back of a car, he wouldn't call that man a piece of shit unless he was glad he was dead." (Tr. 3553:16-20.)

         As with the other witnesses, White impeached Fiordolino's credibility by enumerating his prior criminal offenses. (See Tr. 3627:1-10 (White summation).) More pointedly, White accused Fiordolino of fabricating the conversation with Petitioner in order to have something to "offer to the [G]overnment in trying to get his own cooperation agreement." (Tr. 3662:17-19; see generally Tr. 3660-64.) After highlighting comments from other witnesses about the friendly relationship between Petitioner and DiFalco, White argued that Fiordolino's testimony was "an untruth" and "a slander." (Tr. 3632:24.)

         iv. Petitioner's Remarks Regarding Cathy Ventimiglia

         Finally, the Government posited that Petitioner attempted to divert suspicion away from himself and toward a woman named Cathy Ventimiglia, with whom DiFalco had been carrying on an extramarital affair. (Tr. 3546:1-9 (Gov't summation).) Several witnesses testified about conversations following DiFalco's disappearance in which Petitioner commented that DiFalco had plans to meet Ventimiglia on the night he disappeared, or that DiFalco might be missing because he'd run off somewhere with her. (Tr. 1590:18-25 (Nina DiFalco); Tr. 1667:11-25 (Annunziati); Tr. 1646:20-1647:13 (Michael D'Avanzio, a Giannini employee); Tr. 1941:21-1948:20 (Det. Vormittag).)

         White characterized these conversations as earnest inquiries by Petitioner, who was trying to help Nina DiFalco by pursuing potential leads as to DiFalco's whereabouts. (Tr. 3667:10-22 (White summation).)

         2. The Perrino Murder

         Robert "Bobby" Perrino, a Bonanno associate, was the superintendent of deliveries at the New York Post. The New York State Police began investigating Perrino's ties to organized crime in early 1992. By Vitale's admission, Perrino was killed in May of that year because Vitale and another Bonanno leader, Anthony Spero, feared that Perrino might become a Government cooperator. (Tr. 313:18-315:5 (Vitale testimony).) Vitale and Spero asked Bonanno member Frank Lino to take on much of the planning, but they made sure that the conspiracy was compartmentalized, with each team isolated from the others and information shared on a "need to know" basis: Lino found a location for the murder, a club owned by Petitioner's codefendant Basile; Michael "Mickey Bats" Cardello was enlisted to transport Perrino to the chosen location; there, Perrino was to be murdered by a shooter selected by Vitale; afterward, teams assembled by Lino were responsible for cleaning up the murder scene and disposing of the body. (Tr. 326:8-14 (Vitale testimony); Tr. 2171:8-12, 2180:22-24 (Lino testimony).) Lino was never told the identity of the shooter, nor did he learn that Perrino was the intended victim until late in the planning process. (Tr. 2183:24-2184:12, 2291:12-2294:1 (Lino testimony).)

         The Government accused Petitioner of shooting Perrino, relying on testimony from Vitale and Frank Ambrosino, another cooperating witness.[4] White attempted to impeach both witnesses, calling particular attention to possible ulterior motives for falsely implicating Petitioner in the murder.

         a. Government Witness Sal Vitale

         Vitale testified that he and Petitioner met with a Canadian Bonanno affiliate known as "George from Canada" to discuss the possibility of using a Canadian shooter for the Perrino murder. (Tr. 316:7-318:4.) George cautioned, however, "that it was hard to get men across the border from Canada" at that time. (Tr. 320:25-321:2.) George told Vitale that he'd already asked Petitioner about performing the anticipated murder, and Petitioner added, "You bring the guy, and don't worry about it. I'll take care of it. I'll killcim." (Tr. 321:3-7.) The only people who knew that Petitioner was the intended shooter were the three participants at that meeting- George, Vitale, and Petitioner himself-and, later, two other people that Vitale told-Spero, with whom Vitale reached the decision to order the murder (Tr. 321:21-322:12); and Cardello, who was tasked with bringing Perrino to Basile's club, where Petitioner would be waiting (Tr. 326:8-14). George from Canada died before Petitioner's trial. Neither Spero nor Cardello was called to testify.

         White focused on impeaching Vitale's credibility and character, as discussed above in Section I.C. l.a.iii. White also elicited testimony to support his theory that Vitale himself killed Perrino and was now implicating Petitioner only in order to "conceal his own involvement." (Tr. 3715:7-8 (White summation).) White argued that Vitale had a personal interest in silencing Perrino because both Vitale and his son were directly involved in Perrino's criminal activities at the New York Post. (Tr. 3704:23-3705:2, 3706:3-16, 3709:10-3715:8.) Vitale carefully "insulated the identity of the shooter from everybody else, " White argued, and the only other people who knew about Petitioner's alleged involvement were not called to testify. (Tr. 3713:15-20.) White told the jury that they could properly "infer from the government's failure to call" a given witness that the witness "would not have supported Sal Vitale's testimony." (Tr. 3707:3-7; see also Tr. 3713:15-20.)

         b. Government Witness Frank Ambrosino

         Ambrosino testified that he was asked to help "get rid of a body" by arriving at the murder location with tokens for the Verrazano Bridge, thereby facilitating a speedy journey across the Bridge for the body disposal team as they traveled to the designated burial site. (Tr. 2537:1-10.) On the night of the murder, Ambrosino was waiting in a parked car with the tokens, as instructed, when he saw Petitioner "standing outside of Anthony Basile's club, " near the entrance. (Tr. 2540:5-13; see also Tr. 2538:23-2539:10.) Ambrosino knew that Petitioner wasn't part of Lino's cleanup or disposal crews (Tr. 2543:18-19), so Ambrosino ducked out of sight to protect his own identity as a participant in the murder (Tr. 2540:19-20). When he sat back up again a few minutes later, Petitioner was no longer there. (Tr. 2541:5-7.)

         Shortly thereafter, Ambrosino observed members of Lino's cleanup and disposal teams entering Basile's club. (Tr. 2541:10-2542:2.) After another few minutes, Lino's brother, Robert, came out of the club and approached Ambrosino's car. (Tr. 2542:23-25, 2543:8-9.) Ambrosino said that he'd seen Petitioner outside the club, and Robert replied, "[L]et's just keep that between you and me." (Tr. 2543:2-4.) An hour later, the disposal team emerged from the club carrying Perrino's body, which was concealed in a rolled-up rug, and drove the body away in the waiting car. (Tr. 2544:24-2545:13.)

         White challenged Ambrosino's testimony in three ways. He first argued that Ambrosino's testimony was "manufactured" in order to increase his bargaining power as a Government cooperator, and that the jury should therefore "reject his testimony out of hand." (Tr. 3693:4-5 (White summation).) White reviewed the history of Ambrosino's proffers and concluded that Ambrosino was a "glowing example of how somebody can falsely implicate somebody in a murder by keeping his ears open, reading what's out there, and going back and giving the Government information based on what he's already learned about the case." (Tr. 3694:7-11: see generally Tr. 3686-94.) In the alternative, White suggested the possibility of simple mistake, noting that Ambrosino claims to have "look[ed] out of his car for just a fleeting moment and recognize[d] Baldo Amato" before "duck[ing] down in the car." (Tr. 3685:19-22.) Finally, as with the other cooperating witnesses, White emphasized Ambrosino's criminal activities, reminding the jury that he had participated in two murders. (Tr. 3686:1-4.)

         D. The Verdict and Sentencing

         On July 12, 2006, after a six-week trial, the jury found all defendants guilty on all counts, including a finding that the Government had proven Petitioner guilty of all four predicate acts under the RICO count (Jury Verdict (Trial Dkt. 914).) On October 27, 2006, the court sentenced Petitioner to life imprisonment, lifetime supervision, and a $250, 000 fine. (J. (Trial Dkt. 941).)

         E. Direct Appeal

         Petitioner appealed his conviction with White's continued assistance as appellate counsel. (Not. of Appeal (Trial Dkt. 943).) The Second Circuit affirmed the conviction on January 12, 2009, rejecting Petitioner's challenges to (1) the court's instructions regarding the anonymous and partially sequestered jury; (2) an alleged Bradv/Giglio violation concerning a sealed submission from the Government during the trial; (3) the court's jury charge with respect to the RICO statute of limitations; (4) the court's corrective instruction regarding an inaccurate statement during the Government's rebuttal summation; and (5) "various [other] evidentiary rulings." United States v. Amato, 306 F.App'x 630, 634-35 (2d Cir. 2009) (summary order).[5]

         II. HABEAS PETITIONS UNDER 28 U.S.C § 2255

         A federal prisoner may file a petition in the sentencing court "to vacate, set aside, or correct" a conviction or sentence that was imposed "in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). A federal habeas petitioner bears the burden of proof by a preponderance of the evidence. See Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000).

         This section reviews two procedural bars that preclude certain federal habeas claims, as well as the legal standard governing ...

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