United States District Court, S.D. New York
AMAURY LOPEZ, JR. and FABIO MOREL, Petitioners,
UNITED STATES OF AMERICA, Respondent.
OPINION & ORDER
HONORABLE PAUL A. CROTTY UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
two weeks before trial, the Government moved in
limine to introduce recordings, made in 2009, of
co-defendant Amaury Lopez, Sr. ("Lopez,
Sr.") 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.
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.
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
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."
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.
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.
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.
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.
Timeliness of § 2255 Habeas Petitions "
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).
Ineffective Assistance of Counsel
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).
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.").
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.
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.
§ 2255 ...