United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, United States District Judge.
the court is Petitioner Stephen LoCurto's petition for a
writ of habeas corpus brought pursuant to 28 U.S.C. §
2255 (the "Petition"). (Mot. to Vacate, Set Aside
or Correct Sentence ("Pet.") (Dkt. 1); Am. Mot. to
Vacate, Set Aside or Correct Sentence ("Am. Pet.")
(Dkt. 62).) Petitioner asserts four legal claims-Grounds One
through Four (defined below)- and requests an evidentiary
hearing with respect to each claim. (See Pet'r
Suppl. Mem. of Law in Supp. of Pet. ("Pet'r Suppl.
Mem.") (Dkt. 21); Pet'r Mem. in Supp. of Am. Pet.
("Pet'r Am. Pet. Mem.") (Dkt. 112).) In its
Memorandum and Order dated August 11, 2016, the court (1)
ordered an evidentiary hearing on Ground One of the Petition;
and (2) denied Ground Two in its entirety. (See Aug. 11,
2016, Mem. & Order (Dkt. 87) at 7, 19.) For the reasons
set forth below, Grounds Three and Four are DISMISSED.
court assumes familiarity with the underlying facts of
Petitioner's criminal case. See United States v.
Rizzuto, No. 03-CR-1382 (NGG); United States v.
Amato, 306 Fed.Appx. 630');">306 Fed.Appx. 630 (2d Cir. 2009) (summary order),
cert, denied, 558 U.S. 940 (2009).
October 4, 2010, Petitioner filed his initial prose
petition for relief pursuant to 28 U.S.C. § 2255,
alleging (1) ineffective assistance of trial counsel with
respect to plea negotiations ("Ground One"); (2)
ineffective assistance of appellate counsel ("Ground
Two"); and (3) that the Government suppressed
impeachment evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963), and Gielio v. United
States, 405 U.S. 150 (1972) ("Ground
Three"). (See Pet.; Pet'r Mem. of Law in Supp.
of Pet. ("Pefr Mem.") (Dkt. 2).)
April 17, 2012, Magistrate Judge James
Orenstein appointed Alan M. Nelson as habeas counsel
pursuant to the Criminal Justice Act
("CJA"). (Apr. 17, 2012, Order (Dkt. 11).)
Petitioner filed a supplemental memorandum of law in support
of the Petition. (Pet'r Suppl. Mem.) The Government
opposed the Petition. (Gov't Mem. of Law in Opp'n to
Pet. ("Gov't Opp'n") (Dkt. 28).) Petitioner
filed a reply memorandum of law in further support of his
Petition. (Pet'r Reply Mem. in Supp. of Pet.
("Pet'r Reply") (Dkt. 30).)
August 5, 2014, nearly four years after Petitioner filed his
initial petition, Petitioner simultaneously moved to amend
his Petition and filed an amended petition, which
supplemented his argument as to Ground Three and added a
fourth claim, alleging that trial counsel falsely advised him
that additional funds for expert witness services were
unavailable under the CJA and, thus, that trial counsel was
ineffective ("Ground Four"). (See Mot. to
Amend Pet. (Dkt. 60); Am. Pet.; Pet'r Mem. of Law in
Supp. of Mot. to Amend Pet. (Dkt. 63).) The Government did
not object to the filing of an amended petition but reserved
the right to argue that Petitioner's claims are untimely.
(See Feb. 22, 2016, Letter from Gov't (Dkt. 75).)
court set a briefing schedule for the Amended Petition.
(See Oct. 24, 2016, Order (Dkt. 104).) On December
9, 2016, Petitioner filed a supplemental memorandum of law in
support of the Amended Petition. (Pet'r Am. Pet. Mem.)
The Government submitted its opposition brief on January 20,
2017. (Gov't Opp'n to Am. Pet. ("Gov't Am.
Pet. Opp'n") (Dkt. 119).) The Amended Petition has
been fully briefed since February 3, 2017, when Petitioner
submitted his reply memorandum of law in further support of
the Amended Petition. (Pet'r Reply Mem. of Law in Supp.
of Am. Pet. ("Pet'r Am. Pet. Reply") (Dkt.
federal prisoner may file a petition in the sentencing court
"to vacate, set aside, or correct" a conviction or
sentence that was imposed "in violation of the
Constitution or laws of the United States." 28 U.S.C.
§ 2255(a). A federal habeas petitioner bears the burden
of proof by a preponderance of the evidence. See Triana
v. United States, 205 F.3d 36, 40 (2d Cir. 2000). In
this section, the court describes (1) two procedural bars
that preclude certain federal habeas claims, and (2) the
legal standard governing requests for evidentiary hearings.
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 (2d Cir. 2010) (quoting 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)).
"the so-called mandate rule bars re-litigation of issues
already decided on direct appeal, " including both
"matters expressly decided by the appellate court"
and "issues impliedly resolved by the appellate
court's mandate." Id. (citations omitted);
see also id. at 53-54 (explaining that the mandate
rule applies in habeas proceedings under Section 2255).
courts apply a "general rule that claims not raised on
direct appeal may not be raised on collateral review unless
the petitioner shows cause and prejudice." Massaro
v. United States, 538 U.S. 500, 504 (2003) (emphasis
added); see also Yick Man Mui, 614 F.3d at 54. This
bar does not apply to claims of ineffective assistance of
counsel, however. "[T]he Supreme Court has explained
that 'in most cases[, ] a motion brought under §
2255 is preferable to direct appeal for deciding claims of
ineffective assistance.'" United States v.
Rosa, 666 Fed.Appx. 42, 44 (2d Cir. 2016) (summary
order) (quoting Massaro, 538 U.S. at 504).
are directed to hold evidentiary hearings in proceedings
under Section 2255 "[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).
"A [petitioner] seeking a hearing on an ineffective
assistance of counsel claim 'need establish only that he
has a plausible claim of ineffective assistance of counsel,
not that he will necessarily succeed on the claim.'"
Ravsor v. United States, 647 F.3d 491, 494
(2d Cir. 2011) (quoting Puelisi v. United States,
586 F.3d 209, 213 (2d Cir. 2009)). This determination is
"analogous" to summary judgment proceedings:
"If material facts are in dispute, a hearing should
usually be held, and relevant findings of facts made."
Id. (quoting Puglisi, 586 F.3d at 213). The Second
Circuit has held that in "cases involving claims that
'can be, and [are] often made in any case, ' the
judge may properly rely on his or her knowledge of the record
and may permissibly forgo a full hearing and instead request
letters, documentary evidence, and affidavits to aid in its
resolution of the claim." Id. at 215. The trial
judge is also in a position, based on the knowledge gained in
the underlying criminal proceeding and in the role as trier
of fact in the habeas proceeding, to determine that the
petitioner had no chance of overcoming counsel's
Ground Three of the Petition, Petitioner argues that the
Government suppressed impeachment information about witness
Frank Lino in violation of Brady v. Maryland, 373
U.S. 83 (1963), Gielio v. United States, 405 U.S.
150 (1972), and Napue v. Illinois,360 U.S. 264
(1959). (Am. Pet. ¶ 7.) Petitioner specifically asserts
that the Government failed to disclose information concerning
Lino's involvement in the murder of Wilfred "Willie
Boy" Johnson ("Wilfred Johnson") and heroin
dealing, and argues that there is a reasonable probability
that had this information been disclosed to the defense, the
outcome of Petitioner's trial would have been different.
(Am. Pet. ¶ 43.) He further argues that Lino testified
falsely by failing to disclose his involvement in the murder
of Wilfred Johnson and ...