United States District Court, E.D. New York
LUIS M. BATISTA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.
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).
II.
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