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Guerrero v. United States

United States District Court, S.D. New York

April 20, 2017



          GREGORY H. WOODS United States District Judge.

         On 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

         I. BACKGROUND

         Mr. Guerrero was arrested on the basis of a complaint filed on February 7, 2007. Dkt. No. 1.[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.

         On 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.[2]

         After a 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.[3] 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.

         The 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.

         After a 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.

         Mr. 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.

         Mr. 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.

         On 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.”).[4] 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. [5]


         A. Standard for Relief Pursuant to 28 U.S.C. § 2255

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 the sentence.

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 enough.”).

         “Because 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 petition).

         Section 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).

         Because 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)).

         B. When an Evidentiary Hearing is Required

         Pursuant 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))).

         “To 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 explained:

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.

         To 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)).


         As 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 convicted.

         A. Ineffective Assistance of Counsel

         “A 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.”).

         Under 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.

         Under 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 ...

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