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Rodriguez v. United States

United States District Court, S.D. New York

December 13, 2017

JAIME RODRIGUEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. STEVEN CAMACHO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND OPINION ON PETITIONS FOR HABEAS CORPUS

          CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.

         Jaime Rodriguez and Steven Camacho (collectively "Petitioners") are currently in federal custody following their conviction on criminal charges in this Court. They have filed timely petitions for habeas corpus relief pursuant to 28 U.S.C. § 2255. Respondent United States of America opposes the petitions. This opinion resolves them.

         I. BACKGROUND

         In May 1994, a grand jury in this District returned a 73-count indictment, 94 Cr. 313, charging 17 individuals, including Petitioners, with, among other crimes, participating in a racketeering enterprise called "C&C, " in violation of 18 U.S.C. §§ 1961 and 1962(c). As the complex multi-defendant case went forward, the ranks of defendants were thinned by individual guilty pleas and cooperation agreements. The indictment was superseded repeatedly.

         As described in the indictment, in the early 1990s C&C was a violent organization that sold its own brand of heroin in a several-block-square section of the Bronx, New York City, and also extorted "rent" from other drug dealers wishing to sell heroin in C&C's territory. C&C employed a security force which patrolled the affected neighborhood, protected the organization's affiliated heroin dealers, and enforced the rules set by C&C's leaders and namesakes: George Calderon and Angel Padilla, a/k/a "Cuson." The present Petitioners, Steven Camacho and Jaime Rodriguez, were at the pertinent times young men residing in New York City, engaged in the drug-trafficking business, who obtained Calderon's permission to sell heroin in C&C's controlled territory, in exchange for a down payment and weekly rent payments.

         In the spring of 1992, Calderon and Padilla had a falling out, which led to the murder of Calderon, arranged by Padilla. C&C continued its organizational activities in the Bronx, during a time of understandable unrest. In September 1992, Padilla was arrested by the NYPD and detained. While in prison, Padilla continued to receive payments from C&C. The day-to-day operations of the organization were directed by others. As noted, the grand jury's eventual indictment included Rodriguez and Camacho among the 17 C&C-involved defendants.

         Ultimately the Court severed the government's case against Camacho and Rodriguez for trial on specified counts. 939 F.Supp. 203 (S.D.N.Y. 1996). While the initial indictment charged Padilla and 16 other defendants with a broad range of criminal activities during the course of the C&C organization's existence, the government's superseding indictment against Camacho and Rodriguez focused upon events occurring on a Bronx street during the night of January 2, 1993. The indictment charged five counts against each Petitioner: conspiring to murder Hector Ocasio, a/k/a "Neno"; murdering Ocasio; murdering Gilberto Garcia, a/k/a "Tablon"; attempting to murder Luis Garcia (each of these four counts allegedly in aid of a violent drug-trafficking criminal enterprise called "C&C"); and using and carrying firearms during and in relation to the crimes charged in the first four counts. The first four counts alleged violations of 18 U.S.C. § 1959. The fifth count alleged violations of 18 U.S.C. §924(c). The government's theory, which it undertook to prove at trial, was that Ocasio, in charge of collecting C&C rent revenues and paying the C&C security force, had fallen out of favor with other C&C employees, and Camacho and Rodriguez participated in Ocasio's murder (and the concurrent shootings of others) in exchange for payment by C&C and in hopes of improving their own standing in the organization.

         Trial commenced on June 3, 1996. On June 26, the jury returned a verdict convicting each Petitioner on each of these counts.[1] The jury indicated in its verdict form that it convicted the Petitioners on the specific charges of committing these crimes of violence to further and in aid of the C&C criminal enterprise.

         This Court denied Petitioners' post-trial motions to set aside the verdict, to enter a judgment of acquittal, or to obtain a new trial. 1998 WL 472844 (S.D.N.Y. Aug. 10, 1998). Prior to sentencing, Petitioners filed a second motion for a new trial, contending principally that a government trial witness, Gregory Cherry, had made out-of-court statements exculpatory of Petitioners. Petitioners sought judicial immunity for Cherry, which the government had denied, so that Cherry could provide that testimony. The Court denied that motion. 1999 WL 1084229 (S.D.N.Y. Dec. 1, 1999). The Court sentenced Rodriguez on April 11, 2000, and sentenced Camacho on June 19, 2000. Each Petitioner was sentenced to an aggregate term of life plus five years' imprisonment. In accordance with the governing sentencing law at that time, the Court regarded the United States Sentencing Guidelines as mandatory. Each Petitioner filed a timely notice of appeal.

         While Petitioners' appeals were pending, they moved in this Court for a new trial under Fed. R. Crim. P. 33 on the basis of newly discovered evidence, which focused again upon statements ascribed to Cherry. After an evidentiary hearing, this Court granted that motion. 188 F.Supp.2d 429 (S.D.N.Y. 2002). The government moved for reconsideration, in light of further evidence calling into question the basis for the Court's earlier holding. Upon reconsideration, this Court vacated its earlier grant of a new trial. 353 F.Supp.2d 524 (S.D.N.Y. 2005). Petitioners added an appeal of that ruling to their appeal from their underlying convictions.

         The Second Circuit ruled on those appeals in a summary order reported at 187 Fed.Appx. 30 (2d Cir. June 12, 2006), the first of its two decisions in the case ("Camacho I"). Camacho I affirmed the judgments as to the convictions of Petitioners, affirmed this Court's ultimate order denying Petitioners' motion for a new trial, and remanded the case to this Court "pursuant to United States v. Crosby, 397 F.3d [103, ] 119 [(2d Cir. 2005)], for the limited purpose of affording the district court an opportunity to consider whether to resentence the defendants." 187 Fed.Appx. at 36. In that regard, the Second Circuit said that "the parties agree that a Crosby remand is warranted because the district court considered the United States Sentencing Guidelines to be mandatory. Thus, we remand for a decision whether to resentence." Id. at 35 (citing Crosby, 397 F.3d at 119). The remand was required because subsequent Supreme Court cases established that the Guidelines were advisory, not mandatory.

         On remand, Petitioners renewed their initial motion for a new trial, relying on additional newly obtained evidence. I denied that motion, 586 F.Supp.2d 208 (S.D.N.Y. 2008), and subsequently resentenced Petitioners pursuant to the Crosby remand. This Court sentenced each Petitioner to a 30-year aggregate term of imprisonment, to be followed by five years' supervised release. Petitioners appealed again to the Second Circuit, both from the denial of their renewed Rule 33 motion for a new trial and from the sentences imposed. In a summary order reported at 511 Fed.Appx. 8');">511 Fed.Appx. 8 (2d Cir. 2013) ("Camacho II"), the court of appeals held that "the district court did not abuse its discretion in denying defendants' motion for reconsideration" of their new trial request, id. at 11, and upheld the sentences imposed by this Court. Camacho and Rodriguez are currently serving those sentences.

         Petitioners filed writs of certiorari with respect to the Second Circuit's decision in Camacho II. The Supreme Court denied the writs on June 10, 2013. 133 S.Ct. 2815 (2013). Petitioners filed the present separate petitions on June 6, 2014. Those filings were timely under the governing law. The petition on behalf of Jaime Rodriguez bears docket number 14 Civ. 4628. The petition on behalf of Steven Camacho bears docket number 14 Civ. 4846. The petitions seek habeas corpus relief pursuant to 28 U.S.C. § 2255. The briefs and exhibits in support of the petitions are filed jointly, on behalf of both petitioners. The government opposes both petitions in a single brief.[2]

         II. THE HABEAS PETITIONS

         A. Summary of Asserted Grounds for Habeas Relief

         Petitioners invoke the provisions of 28 U.S.C. § 2255. The statute provides in pertinent part that a prisoner in federal custody "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 . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). In the case at bar, the Petitioners contend that their convictions are flawed by the government's violations of two Amendments to the Constitution: the Fifth and the Sixth.

         The Petitioners' 146-page Main Brief asserts these three grounds for habeas relief:

"GROUND ONE: The Government's Pattern of Prosecutorial Misconduct Violated Petitioners' Fifth Amendment Due Process Rights." Main Brief for Petitioners ("M.B.") at 12. As this caption indicates, the first ground for habeas relief is rooted in the Due Process Clause of the Fifth Amendment.
"GROUND TWO: Ineffective Assistance of Trial Counsel." Id. at 76.
"GROUND THREE: Ineffective Assistance of Appellate Counsel." Id. at 132. The latter two grounds for habeas relief are rooted in the "Assistance of Counsel" Clause of the Sixth Amendment.

         The briefs for Petitioners contain numerous criticisms of what prosecutors did, and defense counsel failed to do, during the successive stages of the case: trial, post-trial motions, and direct appeal. Instances of perceived misconduct on the part of prosecutors are collected in Ground One of the petitions. The perceived failures in representation, by defense trial counsel and then by defense appellate counsel, are collected in Grounds Two and Three respectively. The incidents complained of overlap to a considerable degree. Thus, Petitioners condemn particular conduct on the part of a prosecutor, as violating of their due process rights; and they also condemn defense attorneys' failure to prevent or object to the same prosecutorial conduct, as violating their right to the effective assistance of counsel.

         B. Bars to, and Limitations Upon, These Grounds for Habeas Relief

         Petitioners Camacho and Rodriguez, whose two appeals were previously rejected by the Second Circuit, use this § 2255 petition as the vehicle for a collateral attack upon their convictions.

         "Because collateral challenges 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." Yick Man Mui v. United States, 614 F.3d 50, 53 (2010) (citations and internal quotation marks omitted). The Second Circuit continued in Yick Man Mui:

In the case of a collateral challenge based on constitutional claims, two separate rules regarding claim preclusion based on a prior adjudication apply. First, the so-called mandate rule bars re-litigation of issues already decided on direct appeal. The mandate rule prevents relitigation in the district court not only of matters expressly decided by the appellate court, but also precludes re-litigation of issues impliedly resolved by the appellate court's mandate. . . .
A second rule that applies in the Section 2255 context prevents claims that could have been brought on direct appeal from being raised on collateral review absent cause and prejudice.

614 F.3d at 53-54.

         That second preclusive rule has come to be known as the "procedural default" rule. As the Second Circuit noted in Yick Man Mui: "However, where as here, a petitioner's collateral challenge includes claims of ineffective assistance of counsel, there is an important exception to the procedural default rule, " the exception being that "a petitioner may bring an ineffective assistance of counsel claim whether or not the petitioner could have raised the claim on direct appeal." Id. at 54 (citing Massaro v. United States, 538 U.S. 500, 509 (2003)).

         In addition, an ineffective assistance of counsel claim has a limiting effect upon the operation of the mandate rule. The Second Circuit also held in Yick Man Mui

that a defendant who raises on direct appeal ineffective assistance claims based on the strategies, actions, or inactions of counsel that can be, and are, adjudicated on the merits on the trial record, is precluded from raising new or repetitive claims based on the same strategies, actions, or inactions in a Section 2255 proceeding. However, such a defendant is not precluded from raising new ineffective assistance claims based on different strategies, actions, or inactions of counsel in a subsequent Section 2255 proceeding.

614 F.3d at 51. That limited preclusive effect does not apply in the cases at bar, since Camacho and Rodriguez did not assert ineffective assistance claims on direct appeal.

         Under this holding in Yick Man Mui, the mandate rule may not preclude Petitioners' claims of ineffective assistance claims made for the first time in this habeas proceeding. However, consideration must be given to Second Circuit cases decided after Yick Man Mui, which suggest that a claim presented in different terms and rejected on direct appeal may not thereafter be renamed or repackaged as an ineffective assistance claim and asserted in a habeas petition. These cases are discussed in Part IV.B., infra.

         C. Structure of the Habeas Petitions

         Ground One of the petitions asserts that "the Government's pattern of prosecutorial misconduct violated Petitioners' Fifth Amendment due process rights." M.B. at 12. In support of that generally worded accusation, the Petitioners' Main Brief lists numerous ways in which the prosecutors are said to have behaved improperly. These criticisms are divided among several phases of the case, as it wound its way through the district court and in the court of appeals. The complaints in the Main Brief relate to:

* The superseding of the indictment.
* The government's introduction at trial of background evidence.
* The government's introduction at trial of evidence relating to firearms.
* A Brady violation, with respect to information about a cooperating witness.
* Improper closing arguments by the prosecutors.
* After conviction, the prosecutors' conduct relating to defendants' new trial motion.
* Improper statements and arguments in the government's appellate brief.
* Improper statements in the government's appellate argument.

         Some of these categories of discontent are further broken down into specific allegations of prosecutorial misconduct.

         Ground One for habeas relief, thus structured, is followed by Ground Two, which asserts ineffective assistance of trial counsel. Camacho and Rodriguez were represented by separate counsel. Both attorneys are charged with having provided assistance that was constitutionally ineffective. The same charge is made in Ground Three, with respect to the attorneys who represented Petitioners in the Second Circuit.

         For the most part, Petitioners' criticisms of their attorneys mirror the criticisms they make against the prosecutors. In Petitioners' view, the prosecutors are to blame for their misconduct, and defense counsel are to blame for nor preventing or making timely objection to that misconduct. For example, this mirroring effect is reflected in the index to Petitioners' Main Brief: Ground One (prosecutorial misconduct) charges that "the government vouched for its witnesses using its integrity, " ¶ IV.E.6, and Ground Two (ineffective assistance of trial counsel) charges that "counsel failed to object to the government's vouching for its witnesses by using the integrity of the government, " ¶ V.D.6.

         III. EVALUATION OF THE PETITIONS

         If these habeas petitions were confined to Camacho's and Rodriguez's claims of prosecutorial misconduct, then those claims would be subject to possible preclusion by the mandate rule or the procedural default rule. However, many of the habeas claims are also cast as ineffective assistance claims. Since Petitioners raise their ineffective assistance claims for the first time in these proceedings, the preclusive rules may not apply to them.

         In those circumstances, the better course for the Court to follow is to first consider whether Petitioners have demonstrated on this record viable claims for the ineffective assistance of counsel, under the cases determinative of that question. If Petitioners have done so, they will be entitled to habeas relief. If no viable claim for ineffective assistance of counsel is present in these cases, the Court must then consider Petitioners' due process claims in the light of the mandate rule and the procedural default rule.

         IV. PETITIONERS' INEFFECTIVE ASSISTANCE CLAIMS

         A. Standard of Review

         Camacho and Rodriguez contend that the Constitution requires their convictions to be set aside because their respective attorneys' assistance at the trial and on appeal was ineffective. The constitutional basis for this contention is found in the "Assistance of Counsel" Clause of the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.

         In the seminal case of Strickland v. Washington, 466 U.S. 668, 686 (1984), the Supreme Court "recognized that the right to counsel is the right to effective assistance of counsel." (citation and internal quotation marks omitted). Strickland held that the purpose of the constitutional requirement of effective assistance was "to ensure a fair trial." Id.

         Subsequently the Court, in Evitts v. Lucey, 469 U.S. 387 (1985), having held that due process guaranteed a criminal appellant the right to counsel, posed the additional question of "whether the appellate-level right to counsel also comprehends the right to effective assistance of counsel." Id. at 392, and answered in the affirmative: "A first appeal as of right therefore is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney." Id. at 396 (footnote omitted). The Court reasoned in Evitts that the promise "that a criminal defendant has a right to counsel on appeal" would be "a futile gesture unless it comprehended the right to the effective assistance of counsel." Id. at 397.

         Within the trial context, prior to the decision in Strickland the Court, with the exception of a conflict of interest, had "never directly and fully addressed a claim of 'actual ineffectiveness' of counsel's assistance in a case going to trial." Strickland, 466 U.S. at 683. The opinion in Strickland v. Washington undertook to define that concept. The Court began with this principle:

The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

Id. at 686. That principle is implemented under Strickland in this manner:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687. A defendant bears the burden of satisfying both components. "Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense, " 466 U.S. at 693, a component requiring the defendant to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Id. at 700.

         The same requirements and limitations apply to a claim of ineffective assistance on the part of appellate counsel. "Although the Strickland test was formulated in the context of evaluating a claim of ineffective assistance of trial counsel, the same test is used with respect to appellate counsel." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (citations omitted). See also Smith v. Robbins, 528 U.S. 259, 289 (2000): "Robbins must satisfy both prongs of the Strickland test in order to prevail on his claim of ineffective assistance of appellate counsel."

         "In evaluating the prejudice component of the Strickland test, a court must determine whether, absent counsel's deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different." Mayo, 13 F.3d at 534. In the appellate context, "counsel has no duty to raise every non-frivolous issue that could be raised. Nevertheless, appellate counsel's performance must meet prevailing professional norms." Lynch v. Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (citations omitted). "To establish prejudice in the appellate context, a petitioner must show that, had his claim been raised on appeal, there is a reasonable probability that it would have succeeded before the state's highest court." Id. (citation omitted). The deficiency of an appellate attorney's performance must be of a magnitude sufficient to achieve the constitutional dimension required of a viable claim for ineffective assistance. See Smith v. Murray, 477 U.S. 527, 535 (1986): "Nor can it seriously be maintained that the decision not to press the claim on appeal was an error of such magnitude that it rendered counsel's performance constitutionally deficient under the test of Strickland v. Washington."

         Given these demanding requirements, one reads without surprise the Court's acknowledgment in Padilla v. Kentucky, 559 U.S. 356, 371 (2010) that "[s]urmounting Strickland''s high bar is never an easy task." The Court must determine whether these Petitioners' claims of ineffective assistance of counsel clear that high bar.

         B. Petitioners' Claims of Ineffective Assistance and the Mandate Rule

         The Second Circuit has filed two opinions in these cases, referred to herein as Camacho I and Camacho II. Each opinion rejected claims by Petitioners that their convictions should be vacated. To the extent that Petitioners' claims are based on allegedly ineffective assistance of counsel, the procedural default rule does not preclude the claims. The situation with respect to the mandate rule is more complicated. The Second Circuit's decisions in Camacho I and Camacho II lead to the threshold question of whether the mandate rule precludes Petitioners' ineffective assistance claims, in whole or in part.

         "The 'mandate rule' has existed since the earliest days of the judiciary." In re Coudert Brothers LLP, 809 F.3d 94, 98 (2d Cir. 2015) (citation and internal quotation marks omitted). The rule "bars re-litigation of issues already decided on direct appeal." Yick Man Mui, 614 F.3d at 53. The rule is broadly construed and applied; Judge Winter's opinion in Yick Man Mui continues:

The mandate rule prevents re-litigation in the district court not only of matters expressly decided by the appellate court, but also precludes re-litigation of issues impliedly resolved by the appellate court's mandate. To determine whether an issue may be reconsidered on remand, a district court should look to both the specific dictates of the remand order as well as the broader spirit of the mandate.

Id. (citations and internal quotation marks omitted).

         In Coudert Brothers the Second Circuit cited, quoted and applied Yick Man Mui when it reversed a bankruptcy court for basing its ruling on remand on a ground other than that specified in the court of appeals' order for remand. "Far from giving full effect to our mandate in Coudert I, " Judge Chin wrote with some asperity, "the bankruptcy court here essentially gave it no legal effect." 809 F.3d at 99. The Second Circuit condemned the bankruptcy court's violation of the mandate rule:

By that rule, a lower court must follow the mandate issued by an appellate court.
In following a mandate, the lower court must carry out its duty to give the mandate full effect. The lower court cannot vary it, or examine it for any other purpose than execution; or give any other or further relief; or review it, even for apparent error, upon any matter decided on appeal; or intermeddle with it, further than to settle so much as has been remanded.

Id. at 98 (citations and internal quotation marks omitted). Turning to the case before it, the Second Circuit said in Coudert: "Our mandate impliedly decides at least enough issues to allow it to be effective, even if not all issues are made explicit, " and quoted Yick Man Mui, 614 F.3d at 53: "factual predicates of . . . claims, while not explicitly raised on direct appeal, were nonetheless impliedly rejected by the appellate court mandate." Id. at 101-102 (some citations omitted).

         The Second Circuit's opinion in United States v. Malki, 718 F.3d 178 (2d Cir. 2013), bears a closer resemblance to the case at bar. Malki is also a criminal case. Malki was convicted on a guilty plea, rather than after trial as were Camacho and Rodriguez. Malki appealed from his sentence. The Second Circuit held that the district court had misapplied the Sentencing Guidelines in one particular respect, and remanded the case for resentencing (as the court of appeals did in this case, its Camacho I opinion). A different district judge, in his resentencing of Malki, interpreted the Second Circuit's remand as one for resentencing de novo, and included unrelated Guidelines calculations which differed from those adopted by the initial district judge. On renewed appeal, the Second Circuit held that the district judge on resentencing violated the mandate rule:

When we overturn a sentence without vacating one or more underlying convictions and remand for resentencing, the "default rule" is that the remand is for limited, and not de novo, resentencing. When our remand is limited, the mandate rule generally forecloses re-litigation of issues previously waived by the parties or decided by the appellate court. Similarly, it "also precludes re-litigation of issues impliedly resolved by the appellate court's mandate." Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir.2010).

718 F.3d at 182 (some citations omitted). The Malki opinion resonates in the case at bar because the Second Circuit's descriptive phrase in Malki - "when we overturn a sentence without vacating one or more underlying convictions and remand for resentencing" - mirrors what transpired in the case of Camacho and Rodriguez.

         Jones v. United States, 543 Fed.Appx. 67 (2d Cir. 2013), resembles the case at bar even more closely. A jury convicted Jones on nine felony counts involving crimes of violence stemming from his membership in "a Brooklyn-based violent drug gang, " of the sort comparable to the C&C Bronx-based gang in which Camacho and Rodriguez participated. The Second Circuit summarized the procedural history in Jones:

The District Court for the Eastern District of New York sentenced Jones principally to 252 months' imprisonment. We affirmed Jones's conviction and sentence on appeal. Jones subsequently moved in the District Court to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255, and the District Court denied the motion. Jones now appeals.

543 Fed.Appx. at 68 (citations and notations of District Judges' names omitted). Jones contended in his habeas petition that his trial counsel was constitutionally ineffective for "failure to seek an appropriate jury charge regarding the existence of multiple conspiracies, or to argue that the evidence showed, if anything, a different conspiracy than the one charged in the indictment." Id. at 69. The Second Circuit rejected this claim, in language so instructive in the instant case that I quote it at length:

Jones's second argument is that his trial counsel was constitutionally ineffective "in failing to make the proper record and requests for a multiple conspiracies charge." The District Court rejected this argument on the ground that the Court of Appeals had already considered, and rejected, the argument on direct appeal. Jones, 2012 WL 3288749, at *2. "In addressing a § 2255 motion, a district court cannot revisit issues already decided on direct appeal." (citing Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010)).
On appeal we held that "the jury reasonably found that the government had proved the single conspiracy alleged in the indictment beyond a reasonable doubt" and that the "district court's failure to give a multiple-conspiracies instruction [was not] error because only one conspiracy was alleged and proved." Jones, 375 Fed.Appx. at 96 (internal quotation marks omitted). Jones's claims fare no better when reframed as an ineffective assistance of counsel argument.

543 Fed.Appx. at 71 (citation omitted and emphasis added).

         See also Flaquer v. United States, 518 Fed.Appx. 35, 36 (2d Cir. 2013): "Because we have already held [on direct appeal] that the imposition of the role enhancement was proper based on the facts considered at sentencing, we have impliedly considered and rejected Flaquer's ineffective assistance claim" (citing Yick Man Mui), "and the district court properly concluded [on a § 2255 habeas petition] that Flaquer's claim was barred." This is an application of the mandate rule, although the Second Circuit did not use the phrase in its summary order.

         Jones and Flaquer both involved, as does the case at bar, a criminal conviction followed by an unsuccessful direct appeal and subsequent § 2255 habeas petition, where ineffective assistance of counsel was one of the asserted grounds for habeas relief. The mandate rule has an effect upon an ineffective assistance claim in a habeas context. The Second Circuit gave that question prominent attention in Yick Man Mui, to which I return.

         The defendant in Yick Man Mui was convicted by a jury of committing violent crimes in aid of racketeering. Prior to sentencing, defendant, represented by new counsel, moved for a new trial on the ground that trial counsel had provided unconstitutionally ineffective assistance with respect to certain specific instances during the trial of what counsel had done or failed to do. The district court denied that motion, holding that defendant had failed to show either that counsel's performance fell below objectively reasonable standards or that defendant had a reasonable probability of a different result but for counsel's errors. Defendant failed, in short, to satisfy the familiar requirements of Strickland v. Washington, 466 U.S. 668 (1984). The district court then sentenced defendant to a life term. On direct appeal, defendant again raised ineffective assistance claims, predicated on the same errors of counsel asserted in his motion for a new trial, and making two additional ones. The Second Circuit affirmed defendant's conviction in a summary order that rejected on the merits defendant's several claims of ineffective assistance of trial counsel.

         Thereafter, defendant filed a § 2255 habeas proceeding, claiming various instances of ineffective assistance of trial counsel.[3] The Second Circuit said of those claims:

In his Section 2255 motion, appellant again raised trial counsel's concession in the opening statement, counsel's failure to present an agreed upon defense, and counsel's failure to file certain pre-trial motions. All of these claims were disposed of on direct appeal. However, appellant also raised a host of other allegations of ineffective assistance not raised on direct appeal.

614 F.3d at 52.

         The district court denied defendant's habeas motion. As summarized by the Second Circuit, the district court ruled that

appellant was procedurally barred from raising ineffective trial counsel claims that he had raised on direct appeal. As for the ineffective assistance claims raised for the first time in the Section 2255 motion, the court concluded that these claims were also barred because appellant did not show cause for not raising the claims on direct appeal or any prejudice resulting therefrom, and that appellant could not show "factual innocence" that would otherwise create an exception to the procedural default rule.

614 F.3d at 52.

         As appears from this summary, the habeas district court in Yick Man Mui held that all ineffective assistance claims, whenever asserted, were barred by the procedural default rule. On appeal from the district court's denial of habeas relief, the Second Circuit reversed in part, for the reason that in Massaro v. United States, 538 U.S. 500 (2003), the Supreme Court, abrogating the Second Circuit's then existing procedural default rule stated in Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993), held that "a petitioner may bring an ineffective assistance of counsel claim whether or not the petitioner could have raised the claim on direct appeal." Yick Man Mui, 614 F.3d at 54 (citing Massaro, 538 U.S. at 509).

         However, Judge Winter's opinion in Yick Man Mui noted pointedly:

Although Massaro rejected our procedural default rule under Billy-Eko, it did not disturb our application of the mandate rule to ineffective assistance claims brought in a Section 2255 proceeding. Even after Massaro, therefore, a Section 2255 petitioner may not "relitigate questions which were raised and considered on direct appeal, " United States v. Becker, 502 F.3d 122, 127 (2d Cir.2007), including questions as to the adequacy of counsel. See Fuller v. United States, 398 F.3d 644, 649-50 (7th Cir.2005). Accordingly, the district court did not err in dismissing those claims that had been raised and decided on direct appeal.

614 F.3d at 55. One should recall that, according to an earlier paragraph in the same opinion, the just-quoted phrase "decided on direct appeal" includes "matters expressly decided" by the Second Circuit's opinion and "issues impliedly resolved" by the Second Circuit's mandate. Id. at 53.

         Yick Man Mui presented the Second Circuit with a complex situation because, as Judge Winter noted:

Unlike the petitioner in Massaro, appellant has raised claims of ineffective assistance at various stages of litigation: first in his motion for a new trial, then on direct appeal, and now in the instant Section 2255 proceeding. While some of the claims raised in his Section 2255 petition mirror those raised in his motion for a new trial and on direct appeal, others do not.

Id. at 54-55.

         Those circumstances led the Second Circuit in Yick Man Mui to reflect upon limitations in Massaro's instructions on the application of preclusive rules in the habeas context:

Of course, Massaro allows a habeas petitioner to raise ineffective assistance claims in a Section 2255 petition even though no ineffective assistance claims were raised on direct appeal. However, Massaro does not answer the question whether a Section 2255 petitioner, having already raised one or more ineffective assistance claims on direct appeal that were disposed of on the merits, may raise additional ineffective assistance claims in a habeas proceeding. . . . [The Court] declined to rule on the preclusive effect of ineffective assistance claims decided on direct appeal as to new such claims raised in subsequent collateral proceedings.

Id. at 55.

         In Yick Man Mui the Second Circuit undertook to fill in that gap. The court of appeals rejected the government's argument that "a defendant must choose between bringing all ineffective assistance claims on direct appeal or holding them all for a Section 2255 proceeding, " a contention the government based on a Seventh Circuit holding that "all of a petitioner's claims of ineffective counsel were a 'single round for relief no matter how many failings the lawyer may have displayed.'" 614 F.3d at 55 (citing and quoting Peoples v. United States, 403 F.3d 844, 848 (7th Cir. 2005)). The Second Circuit's Yick Man Mui decision rejects "a single-proceeding rule" for ineffective counsel claims in the habeas context, and fashions an alternative, as explained in this reasoning:

We recognize that, where a defendant alleges varying factual predicates to support identical legal claims relating to a particular event, all claims constitute a single "ground" for relief for purposes of applying the mandate rule in collateral proceedings. . . .
With regard to ineffective assistance claims, it makes sense to require all legal or factual arguments to be made in the case of a particular strategy, action, or inaction of a lawyer alleged to constitute ineffective assistance. However, little is served by a rule that causes an adjudication of a single ineffective assistance claim to preclude a later resort to the Sixth Amendment involving a different strategy, action, or inaction of counsel.

614 F.3d at 55-56 (emphasis added). The Second Circuit rule that emerged from this reasoning is stated at the conclusion of the Yick Man Mui opinion:

[T]he only barrier to raising ineffective assistance claims in a Section 2255 proceeding after raising such claims on direct appeal is the mandate rule, i.e., strategies, actions, or inactions of counsel that gave rise to an ineffective assistance claim adjudicated on the merits on direct appeal may not be the basis for another ineffective assistance claim in a Section 2255 proceeding.

Id. at 57. That particular complication does not exist in the cases at bar because neither Camacho nor Rodriguez raised ineffective assistance claims on their direct appeals. They assert ineffective assistance claims for the first time in these § 2255 petitions.

         One may distill from the cited cases principles which govern ineffective assistance claims in the Second Circuit where, as in the case at bar, the ineffective assistance claim was not made on direct appeal, but is asserted for the first time in a habeas petition. Those principles are:

         The procedural default rule does not operate to preclude an ineffective assistance claim asserted for the first time as a ground for habeas relief. A habeas petitioner may bring an ineffective assistance of counsel claim whether or not he could have raised the claim on direct appeal and omitted to do so. That is the Supreme Court's teaching in Massaro.

         Depending upon the circumstances of the case, the mandate rule may preclude an ineffective assistance claim asserted for the first time in a post-appeal habeas petition. The mandate rule is not confined to foreclosing re-litigation of underlying issues explicitly or implicitly decided on appeal. It also bars re-litigation of an ineffective assistance claim whose factual predicates were impliedly rejected by the appellate court mandate, even if the assistance claim asserted on habeas had not been expressed in those terms on direct appeal. That is the holding in Jones, 543 Fed.Appx. at 71, where the Second Circuit, having rejected on direct appeal a challenge to the trial court's multiple conspiracies charge, said dismissively in the subsequent habeas proceeding that "Jones's claims fare no better when reframed as an ineffective assistance of counsel argument." This principle applies to Camacho and Rodriguez, who asserted a number of claims on direct appeal, but did not characterize any of them as an ineffective assistance claim.

         In Yick Man Mui the Second Circuit teaches further that where an ineffective assistance claim is asserted on direct appeal and rejected by the court of appeals on the merits, the mandate rule bars any subsequent habeas claim of ineffective assistance arising out of the same strategy, action or inaction of an attorney alleged to constitute ineffective assistance. In contrast, the mandate rule does not preclude "a later resort to the Sixth Amendment involving a different strategy, action, or inaction of counsel." 614 F.3d at 55. That particular principle does not apply to Camacho and Rodriguez, who did not assert ineffective assistance claims on direct appeal. I must, however, consider whether the Second Circuit's rejection of a due process claim impliedly rejects a "reframed" ineffective assistance claim based upon the same facts and circumstances.

         C. Application of the Mandate Rule to These Petitions

         Given the instructions of these precedents, a proper application of the mandate rule to the cases at bar requires this Court to analyze carefully what the Second Circuit held on direct appeal in Camacho I and Camacho II, and then analyze the ineffective assistance and due process claims Camacho and Rodriguez assert in their habeas petitions.

         1. The Second Circuit's First Decision on Appeal: Camacho I

         In Camacho I, 187 Fed.Appx. 30 (summary order), the Second Circuit affirmed the convictions of Camacho and Rodriguez, and remanded the case for possible resentencing under United States v. Crosby, 397 F.3d 103');">397 F.3d 103, 119 (2d Cir. 2005). In this Ruling, I am concerned only with the affirmance of the convictions. The court of appeals divided that part of its opinion into numbered sections. I will replicate those numbers.

         First: The Second Circuit held that this Court did not abuse its discretion in admitting at trial evidence "from the so-called 'Black Rain' trial, " evidence that was relevant under Federal Rule of Evidence 401 "because its existence made more probable the material fact that defendants had an affiliation with the C&C enterprise beginning with their dealing of drugs in C &C territory, " and whose admission passed muster under Rule 403 as not "unduly prejudicial." 187 Fed.Appx. at 33.

         Second: The Second Circuit rejected the contentions of Camacho and Rodriguez that their convictions must be reversed "because the district court violated their Sixth Amendment rights in limiting cross-examination of Douglas Welch." Id. Welch was an important government witness at trial who was driving the Petitioners about on the night the crimes of conviction were committed. In an opinion denying Petitioners' post-trial motions, I concluded that their trial counsel were allowed enough cross-examination so that "the jury possessed sufficient facts to make a discriminating appraisal of the particular witness's [Welch's] credibility." 1998 WL 472844 at *6 (S.D.N.Y. Aug. 10, 1988). The Second Circuit affirmed on that point, holding that "[a]ny error in limiting examination into some of Welch's specific acts of criminal conduct and malfeasance was harmless because substantial cross-examination was allowed, another witness (Albizu) corroborated Welch's account of the material events, and Welch's testimony, including that about his past crimes and nefarious activities, provided plentiful information for the jury to appraise his trustworthiness." 187 Fed.Appx. at 33.

         Third: Under this number, the Second Circuit discussed three due process contentions Petitioners made on direct appeal, each of which the court of appeals rejected: (a) prosecutorial misconduct; (b)improper closing arguments; and (c) improper prosecutorial vouching for witnesses.

         (a). Defendants' prosecutorial misconduct contention focused on the trial testimony of Albizu, a key government witness. The Second Circuit, affirming this Court, held that defendants (the present Petitioners) "have not shown that Albizu committed perjury in testifying that the carjacking was on a night before the murders and that Cherry was absent on the night of the murders because they have not shown that Albizu deliberately testified falsely." Id. "Differences in recollection alone do not add up to perjury, " the court of appeals reasoned, and thus "defendants' due process claims premised on the allegedly perjured testimony fail." Id. Additionally, the Second Circuit noted: "[t]he defendants' contention that the government relied on 'irreconcilable theories' also fails. There is no conflict in believing that both Padilla and Albizu were motivating forces behind the murders. A new trial is not warranted on these bases." Id.

         (b). Defendants' closing arguments contention focused upon several aspects of the prosecutors' summations, all of which the Second Circuit rejected as a basis for appeal:

* The court of appeals held that "the prosecution fairly used the term 'lie' to comment upon the testimony of defense witnesses whose credibility was central to the defense."
* The court of appeals observed that the defendants had not even attempted to show "that any misrepresentation in recounting Nancy Melendez's testimony was deliberate, as is required to show prosecutorial impropriety"; indeed, "defendants cite not even a single case anywhere in their four-page argument on this point to establish that the prosecution's remarks were improper."
* The court of appeals also said: "As for the use of the 'Black Rain' evidence in summation, including display of the guns, we find no impropriety justifying reversal, " where the prosecutors simply reiterated "the district court's proper instruction that the evidence should be used only as background evidence, " and displayed the seized guns "to rebut defense counsel's closing argument that defendant Rodriguez had no place in the web of violence." Id. at 33-34.

         (c). Defendants' prosecutorial vouching contention focused on the prosecutors' references during summation to three important government witnesses: Crespo, Albizu, and Welch. The Second Circuit held that "the alleged incidents of prosecutorial vouching for witnesses do not warrant reversal." Id. at 34. The court of appeals reasoned that the government's cooperation and non-prosecution agreements with these witnesses "were part of the record here and were properly cited in summation, " and even if the prosecutor acted improperly in commenting during summation that the government "did not coach its witnesses, " "we hold that it did not result in substantial prejudice to the defendants, much less show the flagrant abuse necessary to secure reversal where, as here, the defendants did not object to the prosecutor's summation at trial." Id. (citation and internal quotation marks omitted).

         Fourth: The Second Circuit rejected the claims of Camacho and Rodriguez that "due process required the district court to grant immunity to Gregory Cherry." 187 Fed.Appx. at 34. The court of appeals reasoned that the case did not present "an exceptional circumstance in which the government has engaged in discriminatory use of immunity to gain a tactical advantage or, through its own overreaching, has forced the witness to invoke the fifth amendment." Id. (citation and internal quotation marks omitted). Moreover, "the purported prosecutorial wrongdoing argued by the defendants does not satisfy this requirement because it does not bear on Cherry's testimony or his anticipated invocation of the Fifth Amendment privilege." Id. The Second Circuit summed up the point by concluding that the government's decision to withhold immunity from Cherry "was not the result of a discriminatory use of immunity by the government, nor of any other prosecutorial overreaching, but rather seems to be solely the result of Cherry's own willingness to change his story." Id. (citations, internal quotation marks, brackets and ellipsis omitted).

         Fifth: The Second Circuit rejected the claim of Camacho and Rodriguez that "the evidence at trial was insufficient to prove the charged crimes." Id. at 34-35. Defendants did not contend on appeal "that Welch's and Albizu's testimony standing alone is insufficient to sustain the verdict"; rather, they argued that "no rational jury could have believed these prosecution witnesses over the defense witnesses." Id. at 35. The Second Circuit gave that argument short shrift: "Because a rational jury could believe the prosecution witnesses and not the defense witnesses, we honor the jury's resolution of the weight of the evidence." Id.

         The sixth aspect of the Second Circuit's opinion in Camacho I recited the parties' agreement to a remand for possible resentencing under Crosby.

         In the seventh and last section of Camacho I, the Second Circuit affirmed this Court's denial on rehearing of Camacho's and Rodriguez's motion for a new trial, a motion that depended upon statements by Gregory Cherry. The Second Circuit held that "the district court did not err in finding that the defendants failed to meet their burden of showing that 'corroborating circumstances clearly indicate the trustworthiness of [Cherry's] statement, ' Fed.R.Evid. 804(b)(3), as required to render Cherry's hearsay statement admissible and win their new-trial motion." Id. The court of appeals reviewed the relevant events, and concluded: "The district court exercised its discretion in weighing the circumstances, and we find no abuse of discretion in its finding that corroborating circumstances did not clearly indicate the trustworthiness of Cherry's statement." Id. at 36.

         In that regard, the Second Circuit said: "The district judge's findings, including its statement that Melendez was confined to a special housing unit 'at the pertinent time, ' are supported by the record." Id. That is a reference to Jose Melendez, a federal inmate who was incarcerated with Cherry, and informed prosecutors that Cherry had told him his statements, exculpatory of Camacho and Rodriguez and the basis for my initial opinion granting them a new trial, had been fabricated by Cherry to confound the government.

         Melendez 's testimony to that effect, as a witness for the government at the evidentiary hearing on the government's reconsideration motion, resulted in reconsideration being granted by this Court and a new trial denied: "Unless Melendez's testimony is rejected as unworthy of belief, the indications in the expanded record point to the untrustworthiness of those declarations [by Cherry], rather than to their trustworthiness." 353 F.Supp.2d at 537. Petitioners' contention at this rehearing was that Melendez had read the Court's earlier opinion in their favor and made up his own statement to curry favor with the government: "[t]he defendants' theory of the case assumes that Melendez read, marked, learned and inwardly digested the Court's opinion in Camacho II [granting a new trial], which inspired him to fabricate the statements by Cherry that Melendez recounted to the government." Id. at 534. Melendez testified that, to the contrary, "he had never read any of the Court's opinions in the case, " an averment supported to some degree by the fact, noted in the initial opinion, that all inmates had access to the prison library "in one way or another, but inmates confined in a special housing unit, as Melendez was at the pertinent time, in lockdown 23 hours a day, would have to use a contained 'satellite' library in the unit and request that particular volumes be brought to them." Id.

         I resolved this particular issue as follows:

What all this comes down to is that while Melendez was in the MCC he could have read the opinion in Camacho II, there is no evidence that he did so, his access to the law library was limited, he was busily pursuing his own agenda in Judge McKenna's case, and he denied having read any of the opinions in this case. I am not persuaded by defendants' speculation to the contrary.

Id. at 535. That is the aspect of the case that the Second Circuit specifically approved in Camacho I, on its way to affirming the convictions of Camacho and Rodriguez and the denial of their new trial motion.

         2. The Second Circuit's Second Decision on Appeal: Camacho II

         The Second Circuit filed its opinion in Camacho I on June 12, 2006. During the remand to this Court, Camacho and Rodriguez renewed their motion for a new trial, this time relying upon the newly discovered evidence of "yet another federal inmate (Morales) in order to cast doubt upon the evidence given by a different federal inmate (Melendez)." 586 F.Supp.2d 208, 217 (S.D.N.Y. 2008).[4] I denied that motion for a new trial and sentenced Petitioners on the underlying convictions. They appealed from the denial of the renewed new trial motion and from the judgments imposing their sentences.

         The Second Circuit affirmed on both questions in Camacho II, 511 Fed.Appx. 8');">511 Fed.Appx. 8. On the new trial issue, the court of appeals said that "the defense motion touches on only one part of the court's reasoning for vacating its earlier grant of a new trial. The district court found that the defendants had failed to show that Melendez had lied in the earlier proceeding and that the scenario presented by the defense was 'not persuasive.'" 511 Fed.Appx. at 10 (citation omitted). The Second Circuit concluded that "the district court did not abuse its discretion in denying defendants' motion for reconsideration." Id. at 11.

         D. The Mandate Rule and Petitioners' Habeas Claims of Ineffective Assistance

         This sub-part of the Discussion focuses upon the effect of the mandate rule on the claims Camacho and Rodriguez assert in their habeas petitions which are based on the allegedly ineffective assistance of counsel.

         That question does not arise with respect to the procedural default rule. As noted supra, the procedural default rule does not bar a habeas petitioner from claiming that he or she was prejudiced by the ineffective assistance of counsel during the prior proceeding which resulted in a conviction. To recapitulate: It frequently occurs that the same acts or omissions at trial give rise to both a due process claim and an ineffective assistance claim. While the procedural default rule may bar the due process claim from being a ground for habeas relief, the ineffective assistance of counsel claim does not share that vulnerability.

         "The procedural-default rule, " the Supreme Court said in Massaro, "is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments. We conclude that requiring a criminal defendant to bring ineffective-assistance-of-counsel claims on direct appeal does not promote these objectives. . . . We hold that an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." 500 U.S. at 504. Turning to the ineffective assistance of counsel claims made by Camacho and Rodriguez in the cases at bar, they are separately discussed in their Main Brief at pages 76 -131 (trial counsel) and pages 132-145 (appellate counsel). Petitioners contend that their separate trial counsel, either together or is some instances cases individually, provided ineffective assistance on a number of different occasions. They also charge their appellate counsel with instances of deficient performance. I will refer to those occasions in the order in which they appear in Petitioners' Main Brief ("M.B."). This Part of the Ruling considers whether Petitioners' ineffective assistance claims are barred by the mandate rule; and, to the extent they are not barred, whether the ineffective assistance claims have merit.

         1. Dismissal of the Indictment

         Petitioners assert that their counsel provided ineffective assistance by failing to seek dismissal of the indictment against them, on the ground that the government's conduct of the case violated the Speedy Trial Act, 18 U.S.C. §§ 3161-3174. M.B. at 75-78. The mandate rule does not preclude this claim, because Petitioners did not assert it on either of the two direct appeals, and the Second Circuit did not consider it in either opinion: Camacho I or Camacho II. The question therefore becomes whether this ineffective assistance claim, not precluded by the rule, is in itself meritorious.

         Petitioners Camacho and Rodriguez were among the 17 individuals charged in the original indictment, filed on May 25, 1994. A first superseding indictment, S1 94 Cr. 313, was filed on September 30, 1994 [Doc. 97]. During its supervision of this unwieldy case, the Court had made on the record several prospective exclusions of time from calculations under the Speedy Trial Act. A number of defendants pleaded guilty. Two defendants, Angel Padilla and Ivan Rodriguez, went to trial in March 1995 and were convicted on multiple accounts on May 16, 1995. Those convictions were upheld on appeal. 203 F.3d 156 (2d Cir. 2000). Camacho and Rodriguez remained in the case. They had not pleaded, and were awaiting trial.

         There had been additional superseding indictments in the case. The twelfth superseding indictment, S12 94 Cr. 313, was filed on February 12, 1996. That indictment charged Camacho, Rodriguez, and one Antonio Feliciano with several crimes of violence. The charges in S12 against Camacho and Rodriguez related to the C&C organization and were the same as in the earlier indictments. Feliciano was a new defendant, playing no part in the C&C activities; together with Camacho and Rodriguez, he was charged with participating in the activities of a different group, the Nasty Boys, and the murder of one Miguel Parilla.

         At a hearing on March 14, 1996, counsel for all three defendants stated their intention to move for severances. I directed the government to furnish further information by affidavit, 1996 WL 137318 (S.D.N.Y. March 26, 1996), and in an opinion dated May 10, 1996, reported at 939 F.Supp. 203, I granted the motion to sever Feliciano from the case, struck from indictment S12 against Camacho and Rodriguez the counts concerning the Nasty Boys and the murder of Parilla, and left "Rodriguez and Camacho to stand trial on charges related to C&C, the original provenance of the case, " with trial ordered to begin on June 3, 1996. 939 F.Supp at 211. In a supplemental opinion dated September 10, 1996, I said that "I did not make a finding of bad faith" on the part of the government with respect to the substance or timing of the S12 superseding indictment. The trial of Camacho and Rodriguez began on June 3, 1996. The jury convicted them. Their direct appeals were rejected.

         Petitioners did not contend, before this trial court or the Second Circuit, that beginning their trial on June 3, 1996 violated the Speedy Trial Act. That contention is asserted for the first time in this habeas proceeding. Petitioners' argument is that at one point, trial on the indictment was scheduled to begin on March 11, 1996; the motions for severance were made and succeeded; and the trial of Camacho and Rodriguez began on June 3, 1996. Petitioners' Main Brief at 77-78 refers to "a delay of 83 days, from the March 11, 1996 trial date up until the actual trial date of June 3, 1996, " and argues: "This 83 day delay alone, which should be in addition to the days already counted toward the speedy trial act calculation, was in violation of the 70 day limit of petitioners' statutory speedy trial rights and required dismissal of all charges." M.B. at 77-78.

         Petitioners base that argument upon the provision in the Speedy Trial Act that "the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, " 18 U.S.C. § 3161(c)(1). Certain specific events result in mandatory exclusions from the 70-day period, § 3161(h)(1)-(6). In addition, the trial judge may grant continuances during which time is excluded "if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." § 3161(h)(7)(A). The sanctions section of the Act, § 3162(a)(2), provides that "[i]f a defendant is not brought to trial within the time limit required by section 3161(c) as extended by section 3161(h), the information or indictment shall be dismissed on motion of the defendant." In the event of such a well-founded motion, the trial judge has the discretion to dismiss the indictment with or without prejudice. § 3162(a)(2) goes on to provide that "[i]n determining whether to dismiss the case with or without prejudice, the court shall consider, among others, " certain specified factors. If the trial judge dismisses the indictment without prejudice, the government can indict the defendant again on the underlying charges and the Speedy Act clock is reset and begins to tick again. If the dismissal is with prejudice, the defendant goes free of the charges.

         The facts and circumstances of the evolution of the superseding indictment under which Camacho and Rodriguez were tried, and the timing of that trial, do not give rise to a viable claim for ineffective assistance of counsel. Petitioners fault their attorneys for failing to move for the dismissal of the indictment on the basis of a Speedy Trial Act violation. That ineffective assistance claim fails to satisfy both Strickland prongs.

         As for the first prong, deficient performance of counsel, it is not clear from the petition that Petitioners have accurately calculated a more-than-70 day delay ascribable to the government before trial began on June 3, 1996. A delay of that magnitude in commencing the trial is necessary to constitute a violation of § 3161(c)(1). Under § 3162, the defendant "has the burden of proof of supporting" a motion for sanctions under the Act, and the government has the burden of going forward with evidence "in connection with any exclusion of time." In the case at bar, Petitioners begin their Speedy Trial Act calculation by starting the 70-day clock on March 11, 1996, which they say was a previously scheduled trial date, and counting the time until trial began on June 3, 1996, more than 70 days later, which Petitioners regard as an ipso facto violation of the statute. It is not at all clear that this period of time should count without extension or exclusion; and if, on a full consideration of the circumstances, no trial delay in excess of 70 countable days is demonstrated, defense counsel would have had no factual basis for moving to dismiss the indictment, and their omitting to do so cannot be regarded as a deficient performance.

         I do not pursue this issue further because Petitioners clearly fail to satisfy the second Strickland prong, that of prejudice. Even if defense counsel's failure to make a Speedy Trial Act motion to dismiss the indictment should be condemned as an omission "outside the wide range of professionally competent assistance" (the first Strickland prong, 466 U.S. at 690), Petitioners have the additional burden of showing "that the decision reached would reasonably likely have been different absent the errors" (second Strickland prong, 466 U.S. at 696). In the context of this case, Petitioners' presently professed Speedy Trial Act objective was the trial court's dismissal of the indictment against them with prejudice. The second Strickland prong poses this question: If defense counsel had made such a motion, and persuaded the trial judge that a trial date of June 3, 1996 violated the Speedy Trial Act and the indictment should be dismissed, would that dismissal have been with or without prejudice to the government?

         I need not speculate on the answer, because I was the trial judge. I can state without fear of contradiction that if a Speedy Trial Act motion had been made before Petitioners' trial began, and I had concluded that a statutory 70-day requirement had been violated and the indictment must be dismissed, the court would have dismissed the indictment without prejudice. The Act, in § 3162(a)(2), instructs trial judges:

In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.

         Had the question arisen and been presented to this Court, those factors would have militated in favor of a dismissal of the indictment without prejudice to the government charging Camacho and Rodriguez again for the same crimes. The offenses were of maximum severity: multiple murders. The facts and circumstances leading to June 3, 1996 as the Petitioners' trial date had to do with the complexities of a multi-defendant, multi-count initial indictment, subsequent pleas, superseding indictments, and motions by various defendants for a severance (including by Camacho and Rodriguez, a motion which succeeded). A reprosecution, had the original indictment been dismissed on Speedy Trial Act grounds, would not have taxed adversely the administration of the statute or the more generally worded "administration of justice." In these circumstances, a dismissal by the trial court of the indictment with prejudice would have been a manifest abuse of discretion. I would have refrained from doing so.

         It follows from all this that Petitioners' claim of ineffective assistance of counsel, based upon a failure to move to dismiss the indictment under the Speedy Trial Act, fails because Petitioners have not shown that counsel's performance in that regard was constitutionally deficient, or that counsel's performance, even if deficient, caused the sort of prejudice to Petitioners necessary to state a Sixth Amendment claim. In Strickland, 466 U.S. at 700, the Court said: "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Here there is a double failure." The same double failure is presented by this case, insofar as Petitioners' ineffectiveness claim focuses upon defense counsel's failing to seek dismissal of the indictment for violation of the Speedy Trial Act.

         2. Government's Trial Theories

         Petitioners assert that trial counsel provided ineffective assistance by "failing to seek admission at trial of the government's theory of the charged crimes at the Padilla trial." M.B. at 79-82.

         The mandate rule bars this claim of ineffective assistance. These cases have to do with the murderous, narcotics-related activities of the C&C gang. Angel Padilla was the leader of C&C. Camacho and Rodriguez were members. Padilla, Camacho and Rodriguez were among the 17 individuals charged in a 73-count indictment charging 17 individuals with participating in the C&C racketeering enterprise. Camacho and Rodriguez were severed for a separate trial. Padilla and one other defendant were tried first and convicted. Camacho and Rodriguez were then tried together and convicted. Petitioners' theory on the present ineffective assistance claim is that at the trial of Padilla, the government offered proof and argued to the jury that Padilla "had Ocasio killed" by issuing an order to that effect to gang members, but at the trial of Petitioners the government offered the testimony of Albizu "that he orchestrated the murders himself." M.B. at 80. Petitioners contend in this habeas proceeding that defense trial counsel "were aware of, or should have been aware of, the inconsistent theories and failed to request to admit the evidence of the government's former motivation theory." Id. at 81. Petitioners say that "any government argument that the theories were reconcilable because evidence at both trials showed that C&C members knew Padilla was angry with Ocasio, and thus was the impetus behind the murders, falls flat." Id. at 81.

         The difficulty for Petitioners lies in the fact that their "irreconcilable theories" contention was advanced on direct appeal and the Second Circuit rejected it in Camacho I. The court of appeals said, in the context of asserted prosecutorial misconduct: "The defendants' contention that the government relied on 'irreconcilable theories' also fails. There is no conflict in believing ...


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