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Lopez v. United States

United States District Court, S.D. New York

April 20, 2017

AMAURY LOPEZ, JR. and FABIO MOREL, Petitioners,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION & ORDER

          HONORABLE PAUL A. CROTTY UNITED STATES DISTRICT JUDGE

         Petitioner Amaury Lopez, Jr. ("Lopez, Jr.") and pro se petitioner Fabio Morel ("Morel") (together, "Petitioners") were convicted by a jury after an eight-day trial of a conspiracy to distribute cocaine, and possession with intent to distribute cocaine. Their convictions and sentences were affirmed on appeal. United States v. Lopez, 572 Fed.App'x 1 (2d Cir. 2014). Petitioners now move, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct the convictions and sentences based on the Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013); Lopez, Jr. additionally argues that his trial counsel was constitutionally ineffective for numerous reasons.

         The Court DENIES the motions. Alleyne does not apply retroactively on collateral review, and Morel's petition is otherwise untimely. Lopez, Jr.'s ineffective assistance of counsel claim is meritless, and the Court also DENIES as futile his subsequent motion seeking leave to amend his § 2255 motion.

         BACKGROUND

         The Government charged Lopez, Jr. and Morel with one count each of conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846 (Count One); and with one count each of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841 (Counts Two and Three). ECF 14.[1]

         Ivan Fisher ("Fisher") initially represented Morel after his arrest in April 2010. See ECF 9 at 2. Fisher also represented Lopez, Jr. after his arrest in October 2010. See Id. at 3-4. When a superseding indictment in September 2010 joined Morel and Lopez, Jr. as co-defendants, the Government sought to have Fisher disqualified as counsel for Lopez, Jr. based on potential conflicts of interest, including: (1) his previous representation of Morel; (2) his status as a potential fact witness, regarding his possession of a hotel surveillance videotape of events leading to Morel's arrest; and (3) his status as the subject of a federal criminal tax investigation brought by the United States Attorney's Office for the Southern District of New York. See ECF 9; Jan. 19, 2011 Tr. On January 19, 2011, the Court held a Curcio hearing at which Lopez, Jr., represented by conflict-free counsel, confirmed his awareness and understanding of, and waived any objection to, these potential conflicts. See Jan. 19, 2011 Tr. Fisher represented Lopez, Jr. throughout pre-trial proceedings and at trial; Morel was represented by separate counsel. See id.

         Approximately two weeks before trial, the Government moved in limine to introduce recordings, made in 2009, of co-defendant Amaury Lopez, Sr. ("Lopez, Sr.")[2] telling a co-conspirator and confidential witness, "AM, " that Lopez, Jr. directed the murder of a man whom he believed had stolen $500, 000 from Lopez, Jr.'s organization. See Sept. 6, 2011 Tr. at 5-6. After argument, the Court granted the Government's motion to admit the recordings as direct evidence of the conspiracy and Lopez, Jr.'s leadership role. See Id. at 44.

         The Government also moved to admit evidence of an uncharged murder, in 2004, of "an individual who was suspected of stealing money, narcotics proceeds, from one of the coconspirators, who will be a cooperating witness in this trial." Id. at 6. The Government asserted that the cooperating witness' testimony would show that the individual was "also suspected of plotting to steal monies from Lopez, Jr., " and that Petitioners "concocted a plan orchestrated by Lopez, Jr. to have this person killed ... to perpetuate th[e] conspiracy." Id. at 6-7. Fisher stated he had been aware of the uncharged murder "for some time, " but was surprised at the alleged connection to Lopez, Jr. Id. at 20-22. He argued that the uncharged murder evidence was prejudicial, and that the disclosure of the related 3500 material was untimely. See Id. at 20-25, 32-38. The Court instructed the Government to produce the 3500 material that evening, and scheduled a conference on September 9, 2011. See Id. at 44.

         At the subsequent conference, Fisher initially indicated he was not seeking an adjournment; but that he might request one, if the Government could not provide him certain information about the uncharged murder; he later confirmed that the Government had provided such information, and that he was satisfied and did not request an adjournment. See Sept. 9, 2011 Tr. at 3, 13. Counsel for both Morel and Lopez, Sr. requested an adjournment, which the Court denied. See Id. at 6-7, 13.

         On the morning of the first day of trial (September 12, 2011), the Government disclosed that it had commenced a witness intimidation investigation of Lopez, Jr. See Gov't Mem. at 18-21. The Government had recorded statements Lopez, Jr. made to a cooperating witness, another inmate at the Metropolitan Correction Center ("MCC") (the "MCC Recordings"). See Id. The Government explained that its "Trial Team" had not reviewed, and did not intend to introduce, the MCC Recordings; and that further, the "Trial Team" had been walled off from the investigation to preclude prejudice arising from access to any privileged information in the MCC Recordings. See Id. at 19. On September 14, 2011, Fisher moved to dismiss the indictment on the grounds that the investigation violated Lopez, Jr.'s Sixth Amendment right to counsel and right to a fair trial, causing irreparable prejudice; he also requested an evidentiary hearing. See Id. at 20. After briefing and oral argument, the Court decided not to hold a hearing; and denied the motion, "concluding that Lopez Jr. had failed to present a valid claim of prejudice arising from the Trial Team's access to that information." Id.

         During the eight-day trial, the Government presented thirteen witnesses, including several law enforcement witnesses and two cooperating defendants; seized narcotics; narcotics proceeds; guns; documents; and audio recordings. The jury found Petitioners guilty; and specifically found that the conspiracy charged against Petitioners in Count One involved 5 kilograms or more of mixtures and substances containing cocaine; and that the distribution of, or possession with intent to distribute, charged against Lopez, Jr. (Count Two) and Morel (Count Three) involved 500 grams or more of mixtures and substances containing cocaine. See Trial Tr. at 1286-88.

         The Court sentenced Morel to concurrent terms of 300 months' imprisonment on June 6, 2012, and sentenced Lopez, Jr. to concurrent terms of life imprisonment on July 19, 2012. ECF Minute Entry 06/06/2012; ECF Minute Entry 07/19/2012.

         Petitioners appealed the judgments of conviction and sentences, and several of this Court's decisions; the Second Circuit issued its Mandate, dated October 23, 2014, affirming the convictions. ECF 167 at 1. It found no error in the introduction of the uncharged murder evidence, nor in the admission of recorded conversations between Petitioners and a confidential source. Id. at 3. There was no error in the Court's decision not to hold an evidentiary hearing to examine any potential prejudice stemming from the "Government's purported access to aspects of Lopez, Jr.'s trial strategy, " allegedly contained in the MCC Recordings. Id. The Second Circuit affirmed this Court's determination that such an argument presented "neither a coherent nor a cognizable argument establishing that he potentially suffered prejudice at trial." Id. at 3-4. Finally, the Second Circuit rejected Lopez, Jr's argument that the disclosure of the uncharged murder 3500 material was untimely and denied him a fair trial: "Lopez, Jr.'s trial counsel [i.e. Fisher] both disclaimed a request for an adjournment and stated that he was satisfied with the material the government provided prior to trial." Id. at 4.

         Petitioners now move based on Alleyne v. United States, 133 S.Ct. 2151 (2013). Lopez, Jr. additionally claims he was denied his Sixth Amendment right to the effective assistance of counsel because Fisher: (1) failed to request a trial continuance after the Government's MCC Recordings disclosure; (2) failed to request a trial continuance after the Government disclosed its intent to introduce the uncharged murder evidence; (3) represented Lopez, Jr. despite an undisclosed conflict of interest that was neither knowingly nor intelligently waived; (4) failed to object to the jury's access to transcripts of recorded conversations and to request a cautionary instruction; (5) failed to properly investigate and call "AM" as a witness; (6) failed to raise a Confrontation Clause objection to the Government's introduction of recorded conversations between "AM" and Lopez, Sr. regarding Lopez, Jr.'s role in a murder; and (7) conveyed an unreasonable prognosis of chance of success at trial and failed to advise Lopez, Jr. of his sentencing exposure.

         DISCUSSION

         I. Legal Standards

         A. Timeliness of § 2255 Habeas Petitions "

         Section 2255 petitions are subject to a one-year limitations period, which in most cases runs from 'the date on which the judgment of conviction becomes final.'" Anderson v. United States, 612 Fed.App'x 45, 46 (2d Cir. 2015) (quoting 28 U.S.C. § 2255(f)(1)). An otherwise-untimely petition is proper if filed within one year of "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(3).

         B. Ineffective Assistance of Counsel

         To state a claim of ineffective assistance of counsel, a defendant-petitioner must show two things: (1) counsel's representation was deficient and "fell below an objective standard of reasonableness" according to "prevailing professional norms"; 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).

         The first requirement "indulge[s] a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. "There are countless ways to provide effective assistance in any given case, " and "[e]ven the best criminal defense attorneys would not defend a particular client in the same way." Id. Thus, counsel's reasonable trial strategy decisions do not amount to ineffective assistance. See United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992), cert, denied, 507 U.S. 998 (1993); see also United States v. Green, 1996 WL 665719, at *4 (2d Cir. Nov. 14, 1996) ("Ineffective assistance of counsel is not established simply by showing that a strategic decision, viewed in hindsight, was unwise.").

         To meet the second requirement, a petitioner must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. The showing "requires some objective evidence other than defendant's assertions to establish prejudice." Pham v. United States, 317 F.3dl78, 182 (2d Cir. 2003).

         Failure to demonstrate either requirement is fatal to a petitioner's claim. See Strickland, 466 U.S. at 697. Courts may dispose of unmeritorious claims solely on the grounds that the petitioner was not prejudiced, regardless of whether the counsel's conduct was sufficiently unprofessional. See id.

         C. ยง 2255 ...


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