Batista v. United States

          OPINION & ORDER

          DORA L. IRIZARRY, CHIEF UNITED STATES DISTRICT JUDGE

         Petitioner Luis M. Batista (“Petitioner”) filed this Petition^[1] for a writ of habeas corpus, challenging his sentence pursuant to 28 U.S.C. § 2255 (“Section 2255”). See generally, Dkt. Entry No. 1-2 (“Petition”). On October 26, 2009, after a jury trial, Petitioner, a former detective with the New York City Police Department (“NYPD”), was found guilty of: (1) conspiracy to distribute and possess with intent to distribute fifty grams or more of cocaine base, five kilograms or more of cocaine, and MDMA (also known as ecstasy) in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(iii), 841(b)(1)(A)(ii)(II), 841(b)(1)(C); (2) conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349; (3) bank fraud in violation of 18 U.S.C. § 1344; and (4) obstruction of justice in violation of 18 U.S.C. § 1512(c)(2). See Docket 06-CR-265, Entry Nos. 91, 315. On June 10, 2010, this Court sentenced Petitioner to 180 months' imprisonment for each count, and five and three year terms of supervised release, all to run concurrently. Id. at Dkt. Entry No. 362.

         Petitioner challenges his sentence on the ground that he received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution in connection with his narcotics conspiracy conviction. See generally, Petition. The government filed an opposition to the Petition, See Government's Opposition to Petition (“Gov't Opp'n”), Dkt. Entry No. 19, and Petitioner filed a reply in further support of the Petition, See Petitioner's Reply (“Reply”), Dkt. Entry No. 36. For the reasons set forth below, the Petition is denied.

         BACKGROUND

         Familiarity with the facts and procedural history of this case is presumed.^[2] Briefly stated, and as relevant to the disposition of the Petition, Virgil Hiciano operated a large narcotics organization in the Bushwick neighborhood of Brooklyn, New York. Hiciano used several apartments, including one at 1127 Decatur Street, for storing and packaging drugs. Petitioner developed a close, friendly relationship with Hiciano, warned Hiciano about police activity, provided Hiciano with confidential law enforcement information, and utilized law enforcement databases to conduct various warrant and address searches at Hiciano's request. Hiciano maintained that Petitioner was aware of his drug dealing, including that the Decatur Street apartment was used as a stash house. Petitioner vehemently denies this. Petitioner does not raise challenges as to his conviction for bank fraud charges and obstruction of justice. Petitioner was arrested on January 31, 2008.

         The relevant facts are as follows: Upon his arrest, Petitioner hired James Moschella (“Moschella”). Declaration of Luis M. Batista (“Batista Decl.”) at ¶ 3. Moschella recommended that Petitioner also retain Anthony Ricco (“Ricco”), who had experience defending high profile NYPD cases. See Id. Moschella and Ricco represented Petitioner at trial. Two potential conflicts of interest arose regarding one of the government's witnesses, Lieutenant Robert Rios (“Rios”): First, Moschella had previously represented Rios (Petition at 3), and second, since Moschella had conversations with Rios prior to trial, he was a potential witness for the defense (Id.).

         During trial preparation, Petitioner informed his counsel that, during an NYPD meeting in May 2006, he told Rios that he knew Hiciano and he “was prepared to assist Rios in his investigation of Hiciano.” Batista Decl. at ¶ 4. Petitioner's counsel subsequently included Petitioner's account of this conversation in its trial brief. Petition at 3. Moschella attempted to verify this conversation, which he could not do, and the government argued that Rios disputed Petitioner's account of their conversation. Id.; See also Declaration of James Moschella (“Moschella Decl.”), Dkt. Entry No. 17, at ¶ 6; Batista Decl. at ¶ 6. Therefore, Moschella was a potential rebuttal witness to Rios' testimony.

         The Court was aware of the potential conflicts of interest, and, on August 27, 2009, held a Curcio hearing to advise Petitioner of his right to conflict-free counsel. See Batista Decl. at ¶ 9. Petitioner had conflict-free counsel at the hearing by way of Ricco's representation. At the hearing, the Court explained that “this [was] a situation where [Petitioner] can waive th[e] conflict, ” but also warned Petitioner that he “may also be waiving the right to have [his] attorney become a witness in the case.” See Ex. A to Petition, Aug. 27, 2009 Hr'g Tr. (“Curcio Tr.”) at 7:6-8. Petitioner told the Court, “I spoke to both my counsel, Mr. Ricco, Mr. Moschella; and they explained to me thoroughly. I do have a good understanding, and I wish to waive that conflict.” Id. at 8:7-9. The Court then engaged in a lengthy colloquy with the parties regarding Moschella's potential rebuttal testimony. See generally, Curcio Tr. Having discussed that Moschella would not be available as a rebuttal witness, the Court then asked, “is all this satisfactory to you, Mr. Batista, ” to which he responded, “yes.” Id. at 26:3-18. Petitioner claims that, during a recess in the hearing, which the transcript indicates was briefly held at the very end of the hearing, he told his counsel he did not want to forgo Moschella's testimony and did not want to waive the conflict, but his counsel “insist[ed] . . . that Moschella continue as co-counsel rather than testify for [Petitioner].” Petition at 4-5; Curcio Tr. at 29:6-10. Neither Petitioner nor his counsel made any further statements on the record at the hearing. The Court accepted Petitioner's waiver. See generally, Curcio Tr.; Minute Entry dated Aug. 27, 2009.

         Prior to trial, the government extended a plea offer that dismissed all counts if Petitioner pled guilty to obstruction of justice. Petition at 20. The parties dispute when the government made the offer: the government claims it made the offer “near the end of August, ” expiring at midnight on August 27, 2009 (Gov't Opp'n at 8 n.3), and Petitioner claims Ricco told him of the offer “after the first day of jury selection” (Petition at 20). The first day of jury selection was September 14, 2009. See Dkt. Entry No. 242. Nonetheless, Petitioner's counsel communicated the offer to Petitioner, and Petitioner's counsel discussed the offer with him. Batista Decl. at ¶¶ 88-92. Petitioner declined the offer and proceeded to trial. Petition at 21.

         During his trial testimony, Petitioner admitted, under oath, that his description to counsel of his conversation with Rios was inaccurate, effectively confessing to perjury. Id. at 7. A key piece of evidence for the government was Petitioner's computer searches, which showed warrant information for Hiciano's Decatur Street apartment. See Id. at 9. To introduce and explain this evidence, the government called Sergeant George Tom (“Sergeant Tom”), a computer specialist, to testify about various NYPD databases. Id. at 10-11. Ricco cross-examined Sergeant Tom about the information available in the databases and what the search results showed. See Id. at 12; Ex. B to Petition (“Trial Tr.”) at 1974:3-1990:15. In addition, a Federal Bureau of Investigation (“FBI”) report that detailed statements made by Hiciano about the Decatur Street address was not introduced as evidence or used during cross-examination of Hiciano. Petition at 9; Ex. E to Petition (“FBI report”).

         A jury convicted Petitioner of all charges, and, on June 10, 2010 this Court sentenced him to 180 months' imprisonment. Petitioner appealed his conviction, alleging, inter alia, that: (1) the evidence was insufficient to sustain the conviction for conspiracy to possess and distribute ecstasy; (2) a sleeping juror deprived him of due process; (3) the trial court erred in its translation of a Spanish phrase; and (4) the government's summation was improper. Batista, 684 F.3d at 339. The Second Circuit affirmed, Id. at 340, and the Supreme Court denied certiorari. Batista v. United States, 568 U.S. 1196 (2013).

         On or about January 27, 2014, Petitioner filed the instant Petition, alleging ineffective assistance of counsel. See generally, Petition. The Petition recasts several arguments made before the Second Circuit as ineffective assistance claims, including that Petitioner's counsel failed to: (1) challenge the legal sufficiency of the ecstasy charge; (2) seek the removal of the sleeping juror; (3) challenge the Court's ruling on the Spanish translation; and (4) object to the government's summation. Id. at 14-20. The Petition also asserts for the first time that Petitioner's counsel was ineffective in: (5) failing to call co-counsel as a witness at trial; (6) advising Petitioner “falsely” to admit to perjury; (7) failing to admit the FBI report; (8) performing a “perfunctory” and ineffectual cross-examination of Sergeant Tom; and (9) advising Petitioner to reject a plea offer. Id. at 2-14, 20-21. Finally, Petitioner contends that his conviction was so tainted with incompetent counsel that it must be vacated. Id. at 21-25. Petitioner's trial counsel submitted declarations refuting each of Petitioner's claims. See generally, Moschella Decl.; Declaration of Anthony L. Ricco (“Ricco Decl.”), Dkt Entry No. 12.

         DISCUSSION

         I. Legal Standard

         A. Section 2255

         Under Section 2255, a sentencing court may vacate, set aside or correct a conviction or sentence imposed in violation of the Constitution or laws of the United States. 28 U.S.C. § 2255. Relief generally is “available only for a constitutional error, defect of jurisdiction, or an error of law constituting a fundamental defect which inherently results in a complete miscarriage of justice.” Scala v. United States, 2010 WL 3780320, at *1 (E.D.N.Y. Sept. 21, 2010) (citations and internal quotation marks omitted).

         B. Issues Previously Raised on Appeal

         It is well settled that a Section 2255 motion may not relitigate issues previously raised on direct appeal. See, e.g., Cantor v. United States, 205 F.3d 1321, *1 (2d Cir. 2000) (summary order) (citing United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997)) (“[I]t is well-established that issues decided on direct appeal may not be relitigated in the context of a petition under § 2255.”), cert. denied, 530 U.S. 1245 (2000); Simmons v. United States, 2014 WL 4628700, at *2 (E.D.N.Y. Sept. 15, 2014) (“[H]aving rejected his objection [to the court's application of the sentencing enhancement], he cannot reargue it in his § 2255 petition.”). An exception to this rule exists for intervening changes in the law. See Scala, 2010 WL 3780320, at *1 (citing Chin v. United States, 622 F.2d 1090, 1092 (2d Cir. 1980)). This exception is not applicable here.

         Courts reviewing Section 2255 claims will consider arguments not raised on direct appeal if the petitioner can demonstrate “cause” for failing to raise the claims and “actual prejudice, ” or that the petitioner is “actually innocent.” See Bousley v. United States, 523 U.S. 614, 622-23 (1998) (citations and internal quotation marks omitted). However, ineffective assistance of counsel claims “may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal.” See Massaro v. United States, 538 U.S. 500, 504 (2003). Nonetheless, a petitioner cannot simply recast previously made arguments as ineffective assistance claims. See Cakoni v. United States, 2015 WL 1726448, at *10 (S.D.N.Y. Apr. 15, 2015) (citing Yick Man Mui v. United States, 614 F.3d 50, 55 (2d Cir. 2010)) (“The Second Circuit has already rejected these arguments . . . and they cannot be recast as ineffective assistance arguments and relitigated via a § 2255 petition in the absence of an intervening change in the law.”); Brown v. United States, 1996 WL 479248, at *4 (S.D.N.Y. Aug. 23, 1996) (“[Petitioner's] attempt to recast his substantive arguments regarding sentencing errors in terms of ineffective assistance of counsel is unavailing.”).

         C. Ineffective Assistance of Counsel

         To succeed on a claim of ineffective assistance of counsel, a petitioner must show that (1) “his attorney's performance ‘fell below an objective standard of reasonableness, ' in light of ‘prevailing professional norms, '” and (2) “‘affirmatively prove prejudice' arising from counsel's allegedly deficient representation.” United States v. Caracappa, 614 F.3d 30, 46 (2d Cir. 2010) (citing Strickland v. Washington, 466 U.S. 668, 688, 693 (1984); United States v. Cohen, 427 F.3d 164, 167 (2d Cir. 2005)). Courts reviewing ineffective assistance claims “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 446 U.S. at 689 (citation and internal quotation marks omitted). Courts must “be watchful to eliminate the distorting effects of hindsight.” Brown v. Greene, 577 F.3d 107, 110 (2d Cir. 2009) (citation and internal quotation marks omitted).

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