United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
GREGORY H. WOODS United States District Judge.
August 13, 2009, after a seven-day trial in federal court, a
jury found Miguel Guerrero guilty of conspiracy to distribute
and possess with the intent to distribute at least five
kilograms of cocaine. He was sentenced to 240 months
imprisonment with a five-year term of supervised release-a
sentence substantially below the Sentencing Guidelines range.
In 2013, the Second Circuit affirmed his conviction. Mr.
Guerrero, currently incarcerated at FCI Allenwood Low and
proceeding pro se, now seeks to collaterally
challenge his conviction and sentence pursuant to 28 U.S.C.
§ 2255 on numerous grounds, including ineffective
assistance of counsel at various stages of the proceedings,
alleged error by the district court, and the alleged
invalidity of his conviction. For the reasons set forth
below, Mr. Guerrero's motion is DENIED without a hearing
Guerrero was arrested on the basis of a complaint filed on
February 7, 2007. Dkt. No. 1. On March 30, 2017, an indictment
was filed, charging Mr. Guerrero with one count of conspiracy
to distribute and possess with intent to distribute at least
five kilograms of cocaine, in violation of 21 U.S.C. §
846. Dkt. No. 7. On April 11, 2007, a superseding indictment
was filed, charging Mr. Guerrero and three co-conspirators
(Reuben Alvarez, Alfred Glover, and Douglas Bond) with
conspiracy to distribute and possess with intent to
distribute at least five kilograms of cocaine and at least
fifty grams of cocaine base, i.e., crack. Dkt. No.
10. On May 18, 2007, a second superseding indictment was
filed, adding a fifth co-conspirator (Marcus Glover). Dkt.
No. 27. Finally, on August 15, 2007, a third superseding
indictment was filed (the “Indictment”), adding a
sixth co-conspirator (Victor Tavarez). Dkt. No. 31.
November 19, 2008, Mr. Guerrero's trial counsel
(“Trial Counsel”) filed a motion to suppress
certain physical evidence and voice identification testimony.
Dkt. No. 77. The motion sought the suppression on Fourth
Amendment grounds of a variety of evidence that had been
seized from Mr. Guerrero's vehicle, his person, and his
home. Dkt. No. 82. The motion also sought the suppression of
testimony concerning the identification of Mr. Guerrero's
voice, arguing that any such testimony would be the result of
an “unnecessarily suggestive voice show-up.”
Id. at 4. Trial counsel subsequently expanded the
scope of the motion to also include the voluntariness of
written consent that Mr. Guerrero had given to the search and
downloading of his cell phones. Dkt. No. 100. After a
hearing, Judge Richard J. Holwell denied Mr. Guerrero's
suppression motion. Dkt. No. 117.
seven-day trial held from August 5, 2009 to August 13, 2009,
the jury returned a verdict, finding Mr. Guerrero guilty on
the sole count of the Indictment. On November 17, 2009, Mr.
Guerrero filed a pro se letter requesting a new
trial; the letter was formally adopted by counsel appointed
to represent him during post-conviction proceedings
(“Sentencing Counsel”). Dkt. No. 135. Judge
Holwell denied the motion by order dated February 18, 2010.
Dkt. No. 140.
United States Probation Office prepared a Pre-Sentence
Investigation Report (“PSR”) concerning Mr.
Guerrero and filed the final version of the PSR on January
22, 2010. The PSR calculated Mr. Guerrero's Sentencing
Guidelines range as 360 months to life imprisonment, with a
mandatory minimum of 120 months' imprisonment. PSR at 18.
The PSR recommended a sentence of 360 months'
imprisonment to be followed by a five-year term of supervised
release. Id. The addendum to the PSR noted that
neither the Government nor defense counsel had any
objections. PSR at 17.
series of adjournments due in part to Sentencing
Counsel's requests for the appointment of an expert
neurologist, Mr. Guerrero's Sentencing Counsel filed a
sentencing memorandum on January 30, 2012. Dkt. No. 153. The
memorandum, which included numerous exhibits, argued for a
downward departure or variance from the applicable Guidelines
range, primarily on the ground that Mr. Guerrero suffered
from an “extraordinary physical impairment.”
Id. The Government's sentencing memorandum
argued for a sentence within the Guidelines range,
highlighting, in particular, that Mr. Guerrero had been
proven at trial to be responsible for distributing more than
2, 000 kilograms of cocaine, and that he had engaged in this
conduct over a period of several years. Dkt. No. 154.
Guerrero's sentencing was held on February 6, 2012. At
sentencing, Mr. Guerrero's Sentencing Counsel objected to
one factual statement contained in the PSR (that Mr. Guerrero
had been arrested in 2000 in possession of a handgun), but
both Sentencing Counsel and the Government otherwise assented
to the facts contained in the PSR. Sentencing Tr. at 3. Judge
Holwell adopted the factual recitations contained in the PSR
and noted that the PSR “correctly calculates the
Sentencing Guideline range as 360 months in prison to life,
based on a total offense level of 42 and a criminal history
category of I. There is, in addition, a mandatory minimum
sentence of 120 months in prison.” Id.
22:14-19. However, Judge Holwell imposed a below- Guidelines
sentence of 240 months' imprisonment to be followed by a
five-year term of supervised release. Dkt. No. 157;
Sentencing Tr. 23:10-17; 24:15. Although Judge Holwell denied
Sentencing Counsel's request for a downward departure on
medical grounds, he took Mr. Guerrero's medical condition
into account in imposing a below-Guidelines sentence.
Sentencing Tr. 22:24-25, 25:23-26:4. Judge Holwell also
considered that Mr. Guerrero had had no previous serious
offenses or history of violence, that he had strong family
support, and that he was likely to be deported after serving
his sentence. Id. 26:5-22.
Guerrero filed a notice of appeal on March 23, 2012. Dkt. No.
158. On July 24, 2012, the Second Circuit appointed new
counsel (“Appellate Counsel”) to represent Mr.
Guerrero on his appeal. Appeal Dkt. No. 22. Appellate Counsel
raised two issues on appeal: (1) that Mr. Guerrero was denied
his statutory and constitutional rights to a speedy trial,
and (2) that the District Court abused its discretion in
admitting evidence that (a) Mr. Guerrero had been shot in
2006 while transporting cocaine from Atlanta to New York and
(b) he had been arrested in 2002 while driving a car with
crystal methamphetamine in a hidden compartment. Appeal Dkt.
No. 35. On October 21, 2013, the Second Circuit entered a
summary order affirming Mr. Guerrero's conviction.
United States v. Guerrero, 541 F. App'x 80 (2d
Cir. 2013). Mr. Guerrero did not petition the United States
Supreme Court for a writ of certiorari.
September 9, 2015, after having been granted two extensions
by then-Chief Judge Loretta A. Preska, Mr. Guerrero filed
this motion pursuant to 28 U.S.C. § 2255. Dkt. No. 183;
Civ. Dkt. No. 1 (“Mot.”). As ordered by the Court, the
Government filed a memorandum in opposition to Mr.
Guerrero's motion on January 6, 2016. Dkt. No. 195. Mr.
Guerrero filed a reply on January 28, 2016. Civ.
Dkt. No. 10. 
II. LEGAL STANDARD
Standard for Relief Pursuant to 28 U.S.C. §
Mr. Guerrero's right to collateral relief is governed by
Section 2255, which provides:
A prisoner in custody under sentence of a court established
by an 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 authored by law, or is
otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255(a). Relief under § 2255 is
generally available “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.'” Cuoco v. United States, 208
F.3d 27, 29 (2d Cir. 2000) (quoting Hill v. United
States, 368 U.S. 424, 428 (1962)). Although § 2255,
by its terms, provides grounds for attacking “the
sentence, ” the term “sentence” has been
interpreted as a generic term encompassing all of the
proceedings leading up to the sentence, including the
conviction. See United States v. Payne, 644 F.3d
1111, 1113 n.2 (10th Cir. 2011); Thomas v. United
States, 368 F.2d 941, 945-46 (5th Cir. 1966); Kyle
v. United States, 297 F.2d 507, 511 n.1 (2d Cir. 1961)
(“Section 2255 is not limited to cases where the
sentence was imposed ‘in violation of the Constitution
or laws of the United States' but includes the more
general phrase ‘or is otherwise subject to collateral
attack, ' the boundaries of which have not been defined,
save, of course, that ‘mere error' is not
requests for habeas corpus relief 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 by
collateral, as opposed to direct, attack.” Ciak v.
United States, 59 F.3d 296, 301 (2d Cir. 1995),
abrogated on other grounds by Mickens v. Taylor, 535
U.S. 162 (2002). “[A]n error that may justify reversal
on direct appeal will not necessarily support a collateral
attack on a final judgment.” United States v.
Frady, 456 U.S. 152, 165 (1982). Even constitutional
errors will not be redressed through a § 2255 petition
unless they have had a “substantial and injurious
effect” that results in “actual prejudice”
to the petitioner. Brecht v. Abrahamson, 507 U.S.
619, 623, 637 (1993) (citations omitted); Underwood v.
United States, 166 F.3d 84, 87 (2d Cir. 1999) (applying
Brecht's harmless-error standard to § 2255
2255 “may not be used as a substitute for direct
appeal.” Marone v. United States, 10 F.3d 65,
67 (2d Cir. 1993) (citing Frady, 456 U.S. at 165).
Thus, “[i]n general, a claim may not be presented in a
habeas petition where the petitioner failed to properly raise
the claim on direct review.” Zhang v. United
States, 506 F.3d 162, 166 (2d Cir. 2007) (citation
omitted). That rule does not generally apply, however, to
claims of ineffective assistance of counsel. See Mui v.
United States, 614 F.3d 50, 54 (2d Cir. 2010)
(“[A] petitioner may bring an ineffective assistance of
counsel claim [in a § 2255 motion] whether or not the
petitioner could have raised the claim on direct
appeal.” (citing Massaro v. United States, 538
U.S. 500, 509 (2003))). If a claim other than one for
ineffective of assistance of counsel has not been presented
on direct review, “the procedural default bar may be
overcome only where the petitioner establishes either (1)
‘cause' for the failure to bring a direct appeal
and ‘actual prejudice' from the alleged violations;
or (2) ‘actual innocence.'” Zhang,
506 F.3d at 166 (citing Bousley v. United States,
523 U.S. 614, 622 (1998)). “To satisfy the
‘cause' requirement, the petitioner must show
circumstances external to the petitioner, something that
cannot be fairly attributed to him.” Id.
(internal quotation marks and citation omitted).
“[A]ttorney ignorance or inadvertence is not
‘cause' because the attorney is the
petitioner's agent when acting, or failing to act, in
furtherance of the litigation, and the petitioner must
‘bear the risk of attorney error.'”
Marone, 10 F.3d at 67 (quoting Murray v.
Carrier, 477 U.S. 478, 488 (1986)). Attorney error can
be “cause” only if it constitutes ineffective
assistance of counsel in violation of the Sixth Amendment.
Coleman v. Thompson, 501 U.S. 722, 753-54 (1991).
he is proceeding pro se, the Court must liberally
construe Mr. Guerrero's submissions and interpret them
“to raise the strongest arguments that they
suggest.” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis in
original); see also, e.g., Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (“A document filed
pro se is to be liberally construed.”)
(internal quotation marks and citation omitted);
Petrucelli v. United States, Nos. 14-cv-9310,
02-cr-99, 2015 WL 5439356, at *2 (S.D.N.Y. Sept. 15, 2015)
(applying the liberal Erickson standard for pro
se parties in the context of a § 2255 motion).
However, although afforded liberal treatment, a pro
se litigant is not exempt “from compliance with
relevant rules of procedural and substantive law.”
Triestman, 470 F.3d at 477 (citing Traguth v.
Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
When an Evidentiary Hearing is Required
to Rule 8(a) of the Rules Governing Section 2255 Proceedings
for the United States District Courts, if a § 2255
motion is not dismissed on preliminary review, “the
judge must review the answer, any transcripts and records of
prior proceedings, and any materials submitted under Rule 7
to determine whether an evidentiary hearing is
warranted.” Section 2255(b) requires a district court
to hold an evidentiary hearing on a petitioner's claims
“[u]nless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255(b); see also McLean
v. United States, Nos. 12-cv-1954, 12-cv-7362,
12-cv-7559, 08-cr-789 (RJS), 2016 WL 3910664, at *8 (S.D.N.Y.
July 31, 2016) (“[A] hearing is not required
‘where the allegations are insufficient in law,
undisputed, immaterial, vague, palpably false or patently
frivolous.'” (quoting United States v.
Malcolm, 432 F.2d 809, 812 (2d Cir. 1970))).
warrant a hearing, the motion must set forth specific facts
supported by competent evidence, raising detailed and
controverted issues of fact that, if proved at a hearing,
would entitle [the petitioner] to relief.” Gonzalez
v. United States, 722 F.3d 118, 131 (2d Cir. 2013)
(citations omitted). “Airy generalities, conclusory
assertions and hearsay statements will not suffice . . .
.” Haouari v. United States, 510 F.3d 350, 354
(2d Cir. 2007) (quoting United States v. Aiello, 814
F.2d 109, 113 (2d Cir. 1987)). Nor will allegations that are
“vague, conclusory, or palpably incredible.”
Gonzalez, 722 F.3d at 130. As the Second Circuit has
The procedure for determining whether a hearing is necessary
is in part analogous to . . . a summary judgment proceeding.
The petitioner's motion sets forth his or her legal and
factual claims, accompanied by relevant exhibits: e.g., an
affidavit from the petitioner or others asserting relevant
facts within their personal knowledge and/or identifying
other sources of relevant evidence. The district court
reviews those materials and relevant portions of the record
in the underlying criminal proceeding. The Court then
determines whether, viewing the evidentiary proffers, where
credible, and record in the light most favorable to the
petitioner, the petitioner, who has the burden, may be able
to establish at a hearing a prima facie case for
relief. If material facts are in dispute, a hearing should
usually be held, and relevant findings of fact made.
Puglisi v. United States, 586 F.3d 209, 213 (2d Cir.
2009) (internal citations omitted). However, “a
district court need not assume the credibility of factual
assertions, as it would in civil case, where the assertions
are contradicted by the record in the underlying
proceeding.” Id. at 214.
warrant a hearing on an ineffective assistance of counsel
claim, “the defendant need establish only that he has a
‘plausible' claim of ineffective assistance of
counsel, not that ‘he will necessarily succeed on the
claim.'” Id. at 213 (quoting Armienti
v. United States, 234 F.3d 820, 823 (2d Cir. 2000)).
noted, the Court is obligated to construe Mr. Guerrero's
§ 2255 motion liberally. Having done so, the Court
construes his motion to claim that (1) counsel at the trial,
sentencing, and appellate levels were constitutionally
ineffective; (2) Judge Holwell erred in allowing certain
evidence to be admitted at trial; (3) the Government engaged
in prosecutorial misconduct by presenting knowingly false
testimony at trial; and (4) Mr. Guerrero's conviction is
“void” because the Government did not prove all
of the requisite elements of the offense of which he was
Ineffective Assistance of Counsel
defendant in criminal proceedings has a right under the Sixth
Amendment to effective assistance from his attorney at all
critical stages in the proceedings . . . .”
Gonzalez , 722 F.3d at 130. To establish a claim of
ineffective assistance of counsel, a petitioner must show
that (1) “counsel's representation fell below an
objective standard of reasonableness” 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
Strickland standard is rigorous, and the great
majority of habeas petitions that allege constitutionally
ineffective counsel founder on that standard.”
Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir.
2001); see also United States v. Gaskin, 364 F.3d
438, 468 (2d Cir. 2004) (“A defendant seeking to
overturn a conviction on the ground of ineffective assistance
of counsel bears a heavy burden.”).
the first prong of Strickland, courts apply a
“strong presumption that counsel's conduct falls
within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689;
see also Id. (“Judicial scrutiny of
counsel's performance must be highly
deferential.”). The petitioner has the burden of
overcoming this presumption by proving “that
counsel's representation was unreasonable under
prevailing professional norms and that the challenged action
was not sound strategy.” Kimmelman v.
Morrison, 477 U.S. 365, 381 (1986); Strickland,
466 U.S. at 689 (“[T]he defendant must overcome the
presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.”
(internal quotation marks and citation omitted)). In
considering whether counsel “failed to exercise the
skills and diligence that a reasonably competent attorney
would provide under similar circumstances, ” Boria
v. Keane, 99 F.3d 492, 496 (2d Cir. 1996) (emphasis
omitted), the Court looks to the totality of the record and
must make “every effort . . . to eliminate the
distorting effects of hindsight, ” Strickland,
466 U.S. at 688-89.
the second prong, the petitioner must demonstrate that the
ineffective assistance prejudiced the defense, which means
showing “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. at
694. “A reasonable probability” is defined as
“a probability sufficient to undermine confidence in
the outcome, ” id., including “the
overall integrity of ...