United States District Court, S.D. New York
OPINION & ORDER
A. Engelmayer United States District Judge.
February 20, 2014, a jury convicted petitioner Kelvin
Martinez of (1) conspiring, from at least 2010 to and
including on or about May 15, 2013, to distribute, and
possess with intent to distribute, five kilograms and more of
mixtures and substances containing a detectable amount of
cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A)
and 846; and (2) on May 15, 2013, possessing with intent to
distribute 500 grams and more of mixtures and substances
containing a detectable amount of cocaine, 21 U.S.C.
§§ 812, 841(a)(1), and 841(b)(1)(B). On July 24,
2014, the Court sentenced Martinez principally to the
mandatory minimum sentence of 120 months' imprisonment
required by the conspiracy count.
has now filed a petition for relief pursuant to 18 U.S.C.
§ 2255, making a variety of arguments sounding in
ineffective assistance of counsel. See Strickland v.
Washington, 466 U.S. 668, 687-89 (1984) (requiring
defendant claiming ineffective assistance to show both that
counsel's performance fell beyond an objective standard
of reasonableness and that "there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different"). This decision resolves-and
Court assumes familiarity with the facts and procedural
history of this case, which are substantially as summarized
in the Government's memorandum of law opposing
Martinez's petition. Dkt. 75. The Court reviews the facts
here only as necessary to respond to Martinez's discrete
Martinez's first argument is that his counsel failed to
inform him of a pretrial plea offer that the Government
purportedly extended to him through his counsel.
Petitioner's Brief ("Pet Br.") at 2. This
argument fails because there is no competent evidence that
any such offer was ever made.
Government's counsel, Assistant United States Attorney
Damian Williams, denies ever making any offer to accept a
plea to a count carrying a five-year mandatory minimum
sentence. Dkt. 75-9 ("Williams Decl."), ¶ 7.
AUSA Williams explains why: The initial indictment charged
Martinez with possession with intent to distribute 500 grams
and more of cocaine based on Martinez's having been
apprehended and with the Drug Enforcement Administration
having found, during a search, cocaine in this quantity in
Martinez's luxury car. But the Government thereafter
continued to investigate. This included debriefing Pedro
Brito, a distant relative of Martinez's who chronicled
additional narcotics trafficking by Martinez, including
kilogram-quantity cocaine transactions. Id.¶S.
Based on this evidence, the Government formed an intent to
supersede the Indictment. On January 13, 2014, it did so,
obtaining a superseding indictment adding the conspiracy
count that carried a 10-year mandatory minimum. Id.
affidavits that Martinez's two successive lawyers have
submitted, while chronicling various pretrial and trial
events, do not claim, either, that such any plea offer was
ever made to Martinez, let alone one in which the Government
would have agreed to forgo pursuing a charge carrying a
10-year mandatory minimum. The first lawyer, John Rieck, Jr.,
represented Martinez before trial, including at a hearing at
which Martinez sought, unsuccessfully, to suppress the
cocaine found in Martinez's automobile and at which
Martinez asserted his actual innocence. Rieck represents
that, before the return of the superseding indictment that
added the conspiracy count, he had informed Martinez that he
was then facing a mandatory minimum sentence of five years.
Dkt. 84 at 16-17 ("Rieck Decl."), ¶ 8. That
statement, when made, was accurate. The Government had not
yet superseded the indictment based on Brito's
information. Rieck, however, does not claim that the
Government ever extended any plea offer to Martinez.
second lawyer, Glen Garber, took over the representation
several weeks before trial, after the superseding indictment.
He attests that he promptly asked the Government to extend a
plea offer carrying a five-year mandatory minimum sentence.
However, Garber states, the Government was "unwilling to
do so"; Garber understood that, after the superseding
indictment, "the window of opportunity to obtain a plea
offer to the lesser 21 U.S.C. § 841(b)(1)(B) [count] was
foreclosed." Dkt. 84 at 11-13 ("Garber
Decl."), ¶ 5; see also Williams Decl.
¶ 8 (attesting that on or about January 29, 2014, Garber
asked whether Martinez could plead guilty to a single count
carrying a five-year mandatory minimum sentence, and Williams
is, therefore, no factual basis for Martinez's claim of
ineffective assistance of counsel. He cannot claim
ineffective assistance of counsel based on the failure to
convey to him a plea offer that did not exist. See Diallo
v. United States, 2014 WL 4460364, at *4 (S.D.N.Y. Sept.
10, 2014); Ortega v. United States, 2012 WL 2478277
(S.D.N.Y. June 27, 2012).
Martinez's second claim of ineffective assistance fails
for related reasons. He asserts that Reick failed to counsel
him on the relative benefits of pleading guilty to an offense
carrying a five-year offense versus going to trial (and
exposing himself to the risk of a mandatory 10-year
sentence). This claim fails because there is no competent
evidence that a plea offer was ever made to him that would
have enabled Martinez to avoided exposure to a charge
carrying a 10-year mandatory minimum sentence. Martinez
relatedly claims that Reick never informed him of the 10-year
maximum sentence that would apply if convicted on the
conspiracy count. But even assuming arguendo the
truth of this factual claim-and that Garber, too, failed to
notify Martinez of the sentencing consequences of a
conviction, a claim that Martinez does not make- it would not
afford Martinez relief under Strickland, because
there would be no prejudice to Martinez from this lapse: The
alternative course that Martinez posits-pleading solely to a
count carrying a five-year mandatory minimum sentence-was not
available to him.
Martinez next faults Garber for failing to press claims at
trial or on appeal as to drug weight. That claim is
frivolous. Brito's testimony recounted multiple instances
in which he and Martinez had participated in multi-kilogram
cocaine transactions. That testimony easily supplied a
sufficient basis for the jury's finding that Martinez had
participated in a conspiracy involving at least five
kilograms of cocaine. While Garber vigorously sought at trial
to impeach Brito on that point, the jury was entitled to
credit Brito's testimony. There was no legal basis at
sentencing or on appeal to ask the Court to set aside the
Finally, Martinez faults Garber for not calling a defense
chemist at trial. That claim is meritless, for the reasons
stated by the Government in its memorandum of law. The
purpose of such testimony, as envisioned by Martinez, would
not have been to challenge the evidence of the cocaine
recovered from Martinez's car. Rather, it would have been
to adduce background facts about other controlled substances
that were referenced in Martinez's text messages with
Brito. As the Government recounts, the Court gave Garber
substantial latitude on cross-examination of the
Government's chemist to probe these points, and Garber
largely established them by that means. That Garber did not
call an independent defense expert on this point was not an
act of substandard lawyering, nor one that caused any
prejudice to Martinez. On the contrary, viewing Garber's
performance in totality, the Court's judgment was that
Garber was both energetic and effective in Martinez's
defense. This case is a far cry from one in which
counsel's performance was ineffective, For these reasons,
the Court denies Martinez's petition pursuant to §
2255, and dismisses that petition. The Clerk of Court is
respectfully directed to terminate the motions pending at No.
16 Civ. 6135, Dkt. 6, and No. 13 Cr. 699, Dkts. 73 and 87,
and to close this case.
Court declines to issue a certificate of appealability.
Martinez has not made a substantial showing of a denial of a
federal right, and appellate review is therefore not
warranted. Love v. McCray,413 F.3d 192, 195 (2d
Cir. 2005); 28 U.S.C. § 2253. The Court certifies,
pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from
this Order would not be taken in good faith, and therefore in