Opinion
06 Civ. 13743 (SAS).
January 21, 2008
Petitioner (pro se): John T. Chase, New York, New York.
Respondent (pro se): Kristin F. Chase, Huntington, New York.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Petitioner John T. Chase appeals an order of the bankruptcy court arising from the confluence of his bankruptcy and matrimonial proceedings. For the reasons stated below, the decision of the bankruptcy court is affirmed.
II. BACKGROUND
This section reviews only those facts that are directly relevant to the instant appeal. A more complete summary of the parties' litigation history can be found in the report and recommendation of Magistrate Judge Andrew J. Peck, prepared in the course of a civil rights claim brought by petitioner against respondent, her mother, a family court judge involved in the parties' matrimonial dispute, and several others. See Report and Recommendation, Chase v. Czajka, No. 04 Civ. 8228, 2005 WL 668535, at *1-3 (S.D.N.Y. Mar. 23, 2005). That action was dismissed. See Chase v. Czajka, No. 05 Civ. 0779, 2007 WL 680741 (N.D.N.Y. Feb. 28, 2007); Report and Recommendation, Chase v. Czajka, No. 04 Civ. 8228, at 5 (S.D.N.Y. May 12, 2005).
The parties were married on April 8, 2000. On July 1, 2003, respondent sued in state court for divorce and spousal maintenance. Petitioner counter-sued for divorce. On July 21, 2004, the court ordered petitioner to pay child support, to provide health insurance for the child, and to "bring the mortgage current and make monthly payments until further order." The court stated that this order was "a reasonable accommodation between the reasonable needs of [respondent] and the financial ability of [petitioner] and [was] determined with due regard to the pre-separation standard of living." Two months later, respondent initiated contempt proceedings in the New York Supreme Court for petitioner's failure to comply with the court's order.
See Appellant's Brief ("Pet. Mem.") at 5.
Amended Decision and Order, Chase v. Chase, No. 8471-04, at 5 (Sup.Ct. Columbia Co. July 21, 2004).
Id.
On October 12, 2005, petitioner filed a bankruptcy petition under chapter 7 of title 11 of the United States Code in the United States Bankruptcy Court for the Southern District of New York. On May 19, 2006, respondent again moved in New York Supreme Court to hold petitioner in contempt for his failure to comply with the state court order. Petitioner argued that his bankruptcy petition automatically stayed his obligation to pay the mortgage.
See In re John T. Chase, No. 05-45706 (Bankr. S.D.N.Y. Oct. 31, 2006).
See id.
Petitioner then moved in the bankruptcy court to hold respondent in contempt for her violation of the automatic stay. On June 21, 2006, the bankruptcy court held that respondent's conduct did not violate the stay because respondent was attempting to collect non-dischargeable debts from non-estate assets of the debtor. However, shortly thereafter, the court sua sponte announced its intention to reconsider its order and hold an evidentiary hearing.
See 6/21/06 Minutes of Proceedings, In re John T. Chase.
On October 17, 2006, the bankruptcy court ruled that there was no need for an evidentiary hearing because there were no grounds for reconsideration, and collateral estoppel and res judicata prevented the court from rehearing the motion. The court further observed that it had found the state court's order requiring payment of the mortgage to be non-dischargeable because the payments were in the nature of support and maintenance. Petitioner moved for reconsideration and the court denied that motion on October 31, 2006.
See 10/17/06 Minutes of Proceedings, In re John T. Chase.
See id.
See 10/31/06 Order Denying Debtor's Motion for Reconsideration, In re John T. Chase.
Petitioner now appeals the bankruptcy court's order denying reconsideration. Petitioner essentially asks for review of the bankruptcy court's holding that the automatic stay does not apply to the state court's domestic support order, and argues that the state court erred in holding petitioner in contempt for disobeying the mortgage payment provisions of the 2004 Order.
See Pet. Mem. at 1.
III. APPLICABLE LAW
1. Final Order
A. Appeals of Bankruptcy Court Orders
The district courts are vested with appellate jurisdiction over bankruptcy court rulings. Final orders of the bankruptcy court may be appealed to the district court as of right. An order is final if "[n]othing in the order . . . indicates any anticipation that the decision will be reconsidered."
See 28 U.S.C. § 158(a).
See id. § 158(a)(1).
In re Palm Coast, Matanza Shores Ltd. P'Ship, 101 F.3d 253, 256 (2d Cir. 1996).
2. Standard of Review
A district court functions as an appellate court in reviewing judgments rendered by bankruptcy courts. Findings of fact are reviewed for clear error. A finding of fact is clearly erroneous if the court is "'left with the definite and firm conviction that a mistake has been committed.'" A bankruptcy court's conclusions of law, by contrast, are reviewed de novo.
See In re Sanshoe Worldwide Corp., 993 F.2d 300, 305 (2d Cir. 1993) ("[Appellant] relies on several cases for the reasonable proposition that the district court acts as an appellate court in reviewing a bankruptcy court's judgments.").
See Fed.R.Bankr.P. 8013 ("Findings of fact . . . shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses."); see also In re Cody, Inc., 338 F.3d 89, 94 (2d Cir. 2003).
In re Manville Forest Prods. Corp., 896 F.2d 1384, 1388 (2d Cir. 1990) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
See In re Cody, 338 F.3d at 94; In re 139-141 Owners Corp., 313 B.R. 364, 367 (S.D.N.Y. 2004).
B. Collection of Domestic Support Obligations During Bankruptcy
Section 362 of title 11 of the United States Code provides that the filing of a bankruptcy petition acts as an automatic stay of "the commencement or continuation . . . of a judicial, administrative, or other action or proceeding against the debtor. . . . " However, there is no automatic stay "of the collection of a domestic support obligation from property that is not property of the estate. . . ."
11 U.S.C. § 362(a)(1). See also In re Shepard, 97 F. 187, 187 (S.D.N.Y. 1899) ("[A] discharge in bankruptcy would not release the obligation to pay alimony, and, therefore, the stay, under section 11, should be denied.").
Id. § 362(b)(2)(B).
Whether an award made in the context of a matrimonial dispute is a domestic support obligation is a question of federal law. "Whether a payment is in the nature of alimony, maintenance, or support is a question of fact. . . ." Therefore, the finding that a debt is a domestic support obligation is "a factual determination of the bankruptcy court, and as such is subject to reversal only if clearly erroneous." In determining the intent of the parties, "[a]ll evidence, direct or circumstantial, [that] tends to illuminate the parties' subjective intent" is relevant.
See H.R. Rep. No. 95-595, 95th Cong., 1st Sess. 364 (1977) ("What constitutes alimony, maintenance, or support, will be determined under the bankruptcy laws, not state law.").
Carlin-Blume v. Carlin, 314 B.R. 286, 291 (S.D.N.Y. 2004) (citation omitted).
Falk Siemer v. Maddigan (In re Maddigan), 312 F.3d 589, 595 (2d Cir. 2002).
In re Brody, 3 F.3d at 38 (citations omitted).
IV. DISCUSSION
A. State Court Order
Despite repeated warnings that this Court would not embroil itself in the parties' matrimonial dispute, petitioner has submitted a brief that largely addresses the propriety of the state court decisions. Not to be outdone, respondent has failed to submit a memorandum of law, but instead has submitted more than one hundred pages of material that directly addresses the couple's matrimonial dispute. The parties are fundamentally mistaken about the nature of the current proceeding. This is an appeal of a decision by the bankruptcy court, and, as the parties were repeatedly informed, the Court will reach only the narrow question of whether the bankruptcy court's decision was correct.
See Pet. Mem. at 9-16, 19-22 (arguing that the state court was mistaken when it ordered petitioner to pay the mortgage, that respondent's state court application for contempt of court was legally deficient, that the state court order was not sufficiently "clear and explicit to permit a contempt finding," that the state court's subsequent order that the parties sell the house abrogated the contempt order, that the state court lacked jurisdiction to enforce the contempt order, and that the contempt judgment was legally insufficient).
Despite weeks of extensions of the due date, respondent failed to submit a responsive memorandum of law. As a result, petitioner was not permitted to file a reply brief.
Even were these issues properly presented, this Court could not consider them. Of the federal courts, only the Supreme Court has jurisdiction to "to reverse or modify a state-court judgment." Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005) (internal citations omitted). Accord Rooker v. Fidelity Trust, 263 U.S. 413, 416 (1923); Forsdick v. Turgeon, 812 F.2d 801, 803-04 (2d Cir. 1987) ("An inquiry of the sort urged by the husband would put federal courts in the position of modifying the matrimonial decrees of state courts, thus interfering with the delicate state systems for dealing with the dissolution of marriages and the difficult and complex results that flow therefrom. State-crafted family law mechanisms should not be disturbed by federal court intervention unless there is an unmistakable mandate from congress to do so in order to achieve a valid federal objective.") (citation omitted).
B. Bankruptcy Court Hearings
Petitioner argues that the bankruptcy court erred in holding without a hearing that respondent's attempts to collect on the New York Supreme Court's orders did not violate the automatic stay that was triggered by his bankruptcy proceeding. Because nothing in the bankruptcy court's order indicated any possibility that the order was subject to further review, the order is final for purposes of appellate review.
Pet. Mem. at 10, 16-17.
The bankruptcy court's findings that the state court order is in the nature of a support payment and that respondent is not seeking to collect from the debtor's estate are not clearly erroneous. The court took proper notice of the circumstances surrounding the award, including that the state court considered child support payments and payments made by respondent for household maintenance, utilities, and nursery school in making its award. The bankruptcy court also properly determined that while the state court observed that it was not awarding temporary maintenance, it nonetheless required the payments in question "in the context of education and shelter" of the child. In its award of mortgage payments, the state court also observed that petitioner "has not been asked to pay all the carrying charges on the marital residence as well as child support. He is not, in effect, paying for the child's shelter twice. [Respondent] remains liable for the utilities and household maintenance, and has been assessed with a portion of the child support." The decision further explained that the award was a "reasonable accommodation" between petitioner's financial ability and respondent's needs, measured "with due regard to the pre-separation standard of living." Combined with the evidence already discussed, these statements strongly indicate that the award was in the nature of support, not distribution of marital property.
See 10/17/06 Minutes, at 3.
Id.
Amended Decision and Order, Chase v. Chase, No. 8471-04, at 5 (Sup.Ct. Columbia Co. July 21, 2004).
Id.
The bankruptcy court also noted that respondent had not sought payment from the estate. There is no evidence whatsoever to suggest that this is incorrect.
See id. at 4.
After an independent review of the evidence, I am not "'left with the definite and firm conviction that a mistake has been committed.'" The bankruptcy court properly applied the law governing domestic support to the underlying facts. The Court has considered petitioner's other arguments and finds them to be without merit.
In re Manville Forest Prods., 896 F.2d at 1388 (quoting United States Gypsum Co., 333 U.S. at 395).
V. CONCLUSION
The order of the bankruptcy court is affirmed. The Clerk of the Court is directed to close this case. The parties are strongly cautioned not to move for reconsideration of this Order unless they have a good-faith basis to do so.
SO ORDERED:
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ALEX RESTREPO, OPINION AND ORDER Petitioner, — against — 05 Civ. 2680 (SAS) UNITED STATES OF AMERICA 99 Cr. 1113 (SAS) Respondent.
Alex Restrepo moves to vacate, set aside, or correct his sentence pursuant to section 2255 of title 28 of the United States Code ("section 2255"). Restrepo, a Colombian citizen, challenges his sentence on the ground that he was denied his due process right to a fair trial when the Government failed to turn over discovery relevant to his extradition. Restrepo also claims that he was denied his right to counsel when: (1) defense counsel failed to adequately investigate his extradition; (2) defense counsel failed to move to suppress statements he made to United States officials in Bogota on the ground that Colombian counsel was not present; (3) defense counsel was absent from a pre-trial conference; (4) defense counsel failed to argue to the jury that there was no physical evidence that Restrepo had been present at the Pagani murder; and (5) defense counsel failed to move for an acquittal based on the theory of dual incrimination. For the reasons set forth below, Restrepo's motion is denied.I. BACKGROUND
A. The Offense Conduct
Restrepo participated in a racketeering organization that engaged in robbery, murder, and narcotics trafficking in New York, New Jersey, and elsewhere. The organization, whose members included Restrepo and numerous other individuals, had a modus operandi for many of its robberies. After targeting a potential victim, members of the organization used several cars, communicating by radio, and followed the victim in his or her car. After members of the crew forcibly stopped the victim's car, some of the robbers exited their cars with masks covering their faces and guns drawn. They forcibly took jewelry, money, and other property from the victim, firing shots if they encountered resistance, and then fled. Specifically, following a jury trial, Restrepo was convicted of the following: robbery at gunpoint of jewelers at the Hilton Hotel; robbery at gunpoint of a Bravo Supermarket employee; robbery at gunpoint of people at an apartment in Jackson Heights; robbery of drug dealers and a subsequent sale of narcotics; robbery at gunpoint of employees of the American Sirloin Meat Poultry Company ("ASMPC"); and felony murder of Donald Pagani, a retired New York City Police Detective. Following the murder of Pagani, which occurred during the ASMPC robbery, Restrepo fled to Colombia.
See Government's Memorandum of Law in Opposition to Petitioner's Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence ("Gov't Mem.") at 4.
See Presentence Investigation Report ("PSR") at 32.
B. Procedural History
On September 3, 1999, the Government filed a complaint against Restrepo and several others. Restrepo was indicted on October 26, 1999. On November 26, 1999, the United States, through a diplomatic note to Colombia, requested the provisional arrest and detention of Restrepo for the purpose of extradition. Colombia's Attorney General authorized the arrest on November 30, 1999, and Restrepo was arrested the following day by the Colombian authorities. Superseding Indictment S1 99 CR. 1113 (SAS) was filed on December 28, 1999, containing fourteen counts. That same day, the United States formally requested Restrepo's extradition.
See 11/26/99 Diplomatic Note No. 1263, Ex. 2 to Reply Memorandum of Law in Support of Defendant's Motion Under 28 U.S.C. Sec. 2255 ("Pet. Reply Mem.").
See 1/28/00 Diplomatic Note No. 067.
On August 29, 2000, the Colombian Supreme Court of Justice approved the extradition of Restrepo from Colombia to the United States on Counts One, Two, Twelve, and Thirteen of the Superseding Indictment. Count One charged Restrepo with conducting the affairs of an enterprise through a pattern of racketeering activity, including narcotics distribution, armed robbery, attempted murder, and murder, in violation of section 1962(c) of title 18 of the United States Code. Count Two charged Restrepo with conspiracy to conduct the affairs of an enterprise through a pattern of racketeering activity in violation of section 1962(d) of title 18 of the United States Code. Count Twelve charged Restrepo with murder in violation of section 1959(a)(1) and (2) of title 18 of the United States Code. Finally, Count Thirteen charged Restrepo with felony murder in violation of section 1959(a)(1) and (2) of title 18 of the United States Code.
See Superseding Indictment.
Following the ruling by the Supreme Court of Justice, the Colombian Ministry of Justice and Law issued Resolution No. 44, granting the extradition of Restrepo for Counts One, Two, Twelve, and Thirteen. However, Resolution No. 44 also provided that Restrepo would not be extradited unless the United States guaranteed that, in the event the death penalty was imposed, it would be commuted. The United States responded in Diplomatic Note 1060, assuring "the Government of Colombia that the death penalty will not be sought or imposed in this case." On October 11, the Colombian government also requested an assurance that Restrepo would "not be subjected to a sentence of life imprisonment." The United States responded to this request in Diplomatic Note No. 1206, assuring Colombia that
See 9/13/00 Republic of Colombia Ministry of Justice and Law Resolution No. 44, Ex. 2 to Pet. Mem. Restrepo appealed the decision, but Resolution No. 44 was upheld by 9/30/00 Resolution No. 59.
See Resolution Number 44, art. 3.
9/25/00 Diplomatic Note No. 1060, Ex. 4 to Pet. Reply Mem.
10/11/00 The Republic of Colombia Ministry of Foreign Affairs Diplomatic Note OJ.E. 29006, Ex. 2 to Pet. Mem.
should Mr. Restrepo be convicted of the offenses for which extradition has been granted, the United States executive authority, with the agreement of the attorney for the accused, will not seek a penalty of life imprisonment at the sentencing proceedings in this case. The Government of the United States also assures the Government of Colombia that, should the competent United States judicial authority nevertheless impose a sentence of life imprisonment against Mr. Restrepo, the United States executive authority will take appropriate action to formally request that the court commute such sentence to a term of years.
10/23/00 Diplomatic Note No. 1206.
Restrepo was transferred to the United States on October 27, 2000.
The trial against Restrepo commenced on February 19, 2002 and ended on March 25, 2002. He was convicted on all four counts for which he was extradited and tried. The Government proved Restrepo's guilt through voluminous evidence, including the testimony of more than seventy-five witnesses and more than four hundred items of physical evidence.
See Gov't Mem. at 4.
At the sentencing proceedings, the Government, in accordance with Diplomatic Note 1206, requested that Restrepo be sentenced to a term of years and not a term of life. I denied the Government's request and sentenced Restrepo to a term of life imprisonment. I noted that Diplomatic Note 1206 constituted a contract between the United States executive branch and Colombia, and that it did not bind the judicial branch. Pursuant to the agreement with Colombia, the Government then requested that I commute the sentence, which I declined to do.
See Transcript of Sentencing ("Sent. Tr.") at 11.
See id. at 36-37.
See id. at 12.
See id. at 38-39.
Restrepo appealed the judgment and sentence. Gregory G. Smith, who represented Restrepo during the trial, continued to represent Restrepo on appeal. Restrepo raised two arguments. First, he claimed that his life sentence violated the terms of Diplomatic Note No. 1206. Second, Restrepo argued that the Court improperly admitted evidence of uncharged crimes during the trial. The Court of Appeals for the Second Circuit rejected these arguments and affirmed the conviction and sentence. The Second Circuit held that Diplomatic Note No. 1206 did not obligate this Court to sentence Restrepo to a term of years:
See United States v. Baez, 349 F.3d 90 (2d Cir. 2003).
The note expressly contemplated the possibility that a sentencing court might impose a term of life imprisonment and assured Colombia that, if that occurred, the executive authority of the United States would seek to have the sentence commuted to a term of years.
Id. at 92-93. Although the Second Circuit held that the district court was not bound by the diplomatic note to sentence Restrepo to a term of years, it cautioned:
In sentencing a defendant extradited to this country in accordance with a diplomatic agreement between the Executive branch and the extraditing nation, a district court delicately must balance its discretionary sentencing decision with the principles of international comity in which the rule of speciality sounds. Courts should accord deferential consideration to the limitations imposed by an extraditing nation in an effort to protect United States citizens in prosecutions abroad. Moreover, in evaluating the exact limitations set by the extraditing nation, courts should not elevate legalistic formalism over substance. To do otherwise would strip comity of its meaning.Id. at 93 (citations omitted).
Restrepo, proceeding pro se, filed a section 2255 motion on March 9, 2005. On April 13, 2005, I granted Restrepo's motion for the appointment of counsel. Thereafter, appointed counsel filed a section 2255 motion on Restrepo's behalf on July 28, 2006.
II. APPLICABLE LAW
A. Section 2255
Section 2255 allows a convicted person held in federal custody to petition the sentencing court to vacate, set aside, or correct a sentence. A properly filed motion under section 2255 must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. Accordingly, collateral relief under section 2255 is available "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes 'a fundamental defect which inherently results in a complete miscarriage of justice.'" B. Brady Evidence
See 28 U.S.C. § 2255.
Cuoco v. United States, 208 F.3d 27, 29 (2d Cir. 2000) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
Under the Brady doctrine, state and federal prosecutors must disclose material evidence favorable to the defendant, whether or not requested. Failure to disclose such evidence is a violation of due process "irrespective of the good faith or bad faith of the prosecution." The Brady rule does not require a prosecutor to "deliver his entire file to defense counsel," but only to produce information that is material to the defendant's guilt or punishment. Material evidence includes exculpatory as well as impeaching evidence. "[E]vidence is material and constitutional error results from its suppression by the government 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" The test for "reasonable probability" is not "whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence."
See United States v. Bagley, 473 U.S. 667, 675 (1985).
Brady v. Maryland, 373 U.S. 83, 87 (1963).
See Kyles v. Whitley, 514 U.S. 419, 437 (1995); Bagley, 473 U.S. at 675.
See Bagley, 473 U.S. at 676.
Kyles, 514 U.S. at 433-34 (quoting Bagley, 473 U.S. at 682).
Id. at 434.
C. Ineffective Assistance of Counsel
The right to effective assistance of counsel applies to those stages of criminal prosecution that are deemed "critical stages." If a defendant's counsel is "either totally absent, or prevented from assisting the accused during a critical stage of the proceeding," the defendant's rights are violated even absent a showing of prejudice.
See United States v. Davis, 239 F.3d 283, 285-86 (2d Cir. 2001) ("[I]t is well settled that a defendant's Sixth Amendment right to counsel attaches 'at all critical stages in the proceedings after the initiation of formal charges.'") (quoting United States v. Gordon, 156 F.3d 376, 379 (2d Cir. 1998)) (internal quotation marks omitted).
United States v. Cronic, 466 U.S. 648, 659 n. 25 (1984).
A critical stage is a stage that holds "significant consequences for the accused." Thus, a defendant whose attorney is not permitted to provide a summation has been denied counsel at a critical stage, as has a defendant who is not permitted to consult with his attorney during an overnight recess in the midst of trial.
Bell v. Cone, 535 U.S. 685, 696 (2002) (citations omitted).
See Herring v. New York, 422 U.S. 853, 865 (1975).
Geders v. United States, 425 U.S. 80, 91 (1976).
A petitioner seeking to attack his sentence based on ineffective assistance of counsel must: (1) show that counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms," and (2) "affirmatively prove prejudice," namely, demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 688, 693-94 (1984).
In analyzing a claim that counsel's performance fell short of constitutional standards, "it is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument." Instead, the court "must 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . . .'" As explained by the Supreme Court,
Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001).
Id. (quoting Strickland, 466 U.S. at 689).
strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.
Strickland, 466 U.S. at 690-91.
Moreover, "[i]n assessing the attorney's performance, a reviewing court must judge his conduct on the basis of the facts of the particular case, 'viewed as of the time of counsel's conduct,' and may not use hindsight to second-guess his strategy choices." Thus, a petitioner cannot prevail on a claim of ineffective assistance merely because he disagrees with his counsel's strategy.
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (quoting Strickland, 466 U.S. at 690). Accord Bell, 535 U.S. at 698 (noting that to demonstrate ineffective assistance of counsel at trial, "a defendant must overcome the 'presumption that, under the circumstances, the challenged action might be considered sound trial strategy'") (quoting Strickland, 466 U.S., at 689).
See Jones v. Barnes, 463 U.S. 745, 751-52 (1983) (explaining that an indigent appellant does not have a constitutional right to compel appointed counsel to press every nonfrivolous point on appeal, thus recognizing "the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review"); Mayo, 13 F.3d at 533 ("[I]t is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made.").
A habeas petitioner "may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." However, "[t]he failure to include a meritless argument does not fall outside the wide range of professionally competent assistance to which [a] [p]etitioner [i]s entitled." Finally, even if an attorney's performance were objectively unreasonable, a petitioner must still prove prejudice. That is, the petitioner must show "'a reasonable probability' that, but for the deficiency, 'the result of the proceeding would have been different.'"
Clarkv. Stinson, 214 F.3d 315, 322 (2d Cir. 2000).
Aparicio, 269 F.3d at 99 (quotation marks and citations omitted).
Id. at 95 (quoting Strickland, 466 U.S. at 694).
III. DISCUSSION
A. Alleged Brady Violation
Restrepo contends that his sentence must be vacated because the Government failed to turn over evidence showing that his extradition was conditioned on the promise that he would not be subject to life imprisonment without parole or to an equivalent term in years. Restrepo is wrong. The fact that Colombia had made such a demand was not hidden from Restrepo prior to trial, at trial, or at his sentencing. In Diplomatic Note 1206, the United States clearly stated that Colombia requested, "as a condition for the extradition of Alex Restrepo, an assurance that Mr. Restrepo will not be subject to life imprisonment in the United States." This request, and the United States' response in Diplomatic Note 1206, were extensively litigated during Restrepo's sentencing proceedings and on appeal. This Court and the Second Circuit have already determined that the United States did not assure Colombia that Restrepo would not receive a life sentence, and none of Restrepo's current claims cast any doubt on those findings. Restrepo is foreclosed by the Second Circuit's decision from rearguing this issue as "[a] § 2255 motion may not relitigate issues that were raised and considered on direct appeal."
See Pet. Mem. at 42.
See, e.g., 5/7/02 Letter from (former) Assistant United States Attorney Vernon Broderick to the Court, at 1-2 (stating that the Colombian Government had "requested an assurance that Restrepo would not be subject to a life sentence" and also stating that the Government provided defense counsel with Diplomatic Note No. 1206 both during discovery and then again during the trial).
10/23/00 Diplomatic Note No. 1206.
United States v. Perez, 129 F3d 255, 260 (2d Cir. 1997) (citing Riascos-Prado v. United States, 66 F.3d 30, 33 (2d Cir. 1995)).
However, Restrepo argues that Diplomatic Note 1206 does not reflect the full agreement between Colombia and the United States. As on appeal, the Government agrees that because Restrepo was not extradited pursuant to an extradition treaty between Colombia and the United States, the request for extradition, diplomatic correspondence, the opinion of the Colombian Supreme Court, and resolutions passed by the Colombian executive branch provide the complete terms of the extradition. Restrepo claims that the Government withheld relevant diplomatic documents and that "later disclosed documentation shows that [Restrepo] not being subject to life imprisonment was a pre-condition of extradition."
See Pet. Mem. at 48.
See Gov't Mem. at 24 n. 16.
Pet. Mem. at 48.
Restrepo mentions several documents that he claims were improperly withheld. He asserts that United States' Diplomatic Note No. 1060 dated September 25, 2000, in which the United States assured Colombia that "the death penalty will not be sought or imposed," was not provided until August 11, 2006. However, the Note only concerns the death penalty, and does not alter the understanding between the parties regarding a life sentence. Moreover, Diplomatic Note 1060 was referenced and described in Diplomatic Note 1206 and therefore known to Restrepo ahead of his sentencing. Thus, any failure to disclose Note 1060 fails the materiality test of Brady.
Ex. 4 to Pet. Reply Mem.
Pet. Reply Mem. at 7. However, the Government claims that Diplomatic Note 1060 was available to the Second Circuit on appeal. See Gov't Mem. at 30-31.
Restrepo also states that Colombia's Diplomatic Note OJ.E. 29006 dated October, 11, 2000 was not produced by the United States until April 28, 2003. In this Note, Colombia requested that the United States include "[a] formal agreement that [Restrepo] shall not be subjected to a sentence of life imprisonment." This Note was available to the Second Circuit on appeal. Moreover, the fact that Colombia had requested that Restrepo not be subjected to a life sentence had been known to Restrepo before his trial. OJ.E. 29006 is referenced and described in Diplomatic Note 1206, which was the United States' response to OJ.E. 29006. Because the essential content of the Note was already known to the parties, Restrepo cannot satisfy the materiality standard of Brady. Likewise, Colombia's Diplomatic Note OJ.E 30263 dated October 23, 2000, which was produced to Restrepo simultaneously with OJ.E. 20006, is not material under Brady. In this Note, Colombia forwarded Resolution No. 59 and reiterated its request in OJ.E 29006. Nothing in OJ.E. 30263 affects the agreement between the United States and Colombia regarding a life sentence.
Ex. 2 to Pet. Mem.
See Pet. Mem. at 11.
Ex. 4 to Pet. Mem.
Restrepo also claims that Diplomatic Note 067 dated January 28, 2000, in which the United States formally requested Restrepo's extradition, was never produced. However, Restrepo's Colombia law expert, Pedro Pablo Camargo, discussed this Note in his sentencing memorandum dated October 4, 2002, which demonstrates that it was available to the defendant before sentencing. Restrepo also asserts that Diplomatic Note No. 1263 dated November 26, 1999 was not produced until August 2006. In this Note, the United States requested "the provisional arrest and detention for extradition purposes of Alex Restrepo." Petitioner notes that the United States cited both Colombian and international law in the Note. However, this language is identical to that of Diplomatic Note 067, which was available to Restrepo before sentencing. Because the relevant language is identical, any failure to produce Diplomatic Note 1263 is not material under Brady.
See Pet. Mem. at 5.
See 10/4/02 Dr. Pedro Pablo Camargo, Sentencing Memorandum ("Camargo Sent. Mem.") at 1 (noting that Diplomatic Note 067 invoked Colombian law).
Ex. 2 to Pet. Reply Mem.
See Pet. Reply Mem. at 5.
See id.
Petitioner also cites diplomatic correspondence from Colombia to the United States in 2005 and 2006 regarding Restrepo. See Pet. Reply Mem. at 3-5. Since this correspondence occurred well after Restrepo's trial and sentencing, the Government has committed no Brady violation by not producing these documents. In fact, it is not clear whether the Government even had these documents in its possession as Restrepo obtained them directly from Colombia's Consul General in Chicago. Petitioner asserts that these documents support his interpretation of the extradition agreement. However, they do not provide any new factual information about the extradition agreement. As stated previously, the interpretation of the extradition agreement was thoroughly litigated during the sentencing proceedings and on appeal and cannot be relitigated here.
Restrepo fails to identify any documents or other evidence showing that the terms of the extradition agreement were any different from what was known to this Court at sentencing and to the Second Circuit on appeal. Restrepo does not identify any express or implied statement in any diplomatic correspondence that either guaranteed that a life sentence would not be imposed or required this Court to sentence him to a term of years. The documents Restrepo claims were withheld fall far short of satisfying the materiality requirement necessary to establish a Brady violation. They only confirm what was already evident in the previous proceedings: Colombia requested "an assurance that Mr. Restrepo will not be subject to life imprisonment," and the United States responded to that request in Diplomatic Note 1206. Colombia did not request additional guarantees from the United States after receiving Diplomatic Note 1206 and before extraditing Restrepo a few days later. Accordingly, Restrepo has failed to show that he was denied his due process right to a fair trial because the Government failed to turn over discovery relevant to his extradition.
Diplomatic Note 1206.
See Gov't Mem. at 32.
B. Ineffective Assistance of Counsel
Restrepo claims that he was denied his right to counsel on five different grounds: (1) defense counsel failed to adequately investigate Restrepo's extradition; (2) defense counsel failed to move to suppress Restrepo's statements to United States officials in Bogota on the ground that Colombian counsel was not present; (3) defense counsel was absent from a pre-trial conference held on September 25, 2001; (4) defense counsel failed to argue to the jury that there was no physical evidence that Restrepo had been present at the Pagani murder; and (5) defense counsel failed to move for an acquittal based on the theory of dual incrimination.
1. Failure to Investigate Extradition
Restrepo contends that his trial counsel failed to adequately investigate the extradition, causing him to be sentenced to life imprisonment without parole in violation of the agreed upon terms of his extradition. As discussed above, the Second Circuit has already affirmed this Court's interpretation of the extradition agreement and no new facts have been alleged in the instant motion to alter this interpretation. Accordingly, Restrepo was not sentenced in violation of the extradition agreement, and he therefore cannot show any prejudice from his attorneys' alleged failure to investigate his extradition.
See Pet. Mem. at 50.
Moreover, Restrepo's attorneys extensively investigated the extradition and had access to all relevant facts and documents concerning the extradition prior to sentencing. I also granted Restrepo's request for the appointment of a Colombian law expert of his own choosing to assist him at sentencing and to investigate "how American Law and Colombian law interact under the extradition treaty between the countries." Colombian Law Expert Pedro Camargo submitted a sentencing memorandum to the Court and also presented arguments during the sentencing, discussing how Colombian law, American law, and international law affected the extradition agreement and the sentence. Camargo did not limit his arguments to Diplomatic Note 1206. He also noted that United States invoked Colombian law in the formal request for extradition in Diplomatic Note 067, arguing that Restrepo therefore should be sentenced according to Colombian law. Consequently, Restrepo has failed to establish that counsel performed ineffectively with regard to investigating the extradition.
5/20/02 Letter from Gregory Smith (defendant's counsel).
See Sent. Tr. at 20-24.
See Camargo Sent. Mem.
2. Restrepo's Statements to United States Officials in Bogota
Restrepo asserts that he was denied his Sixth Amendment right to counsel when his trial counsel failed to challenge the admission of his statements to United States officials in Bogota on the ground that he was not informed of his right to counsel as provided by Colombian law. He concedes that he was told that he had a right to an attorney, but argues that (1) had he been informed that that right arose from Colombian law as well as American law, there is a reasonable probability that he would have been acquitted of the Pagani murder, presumably because he would not have made the statements; and (2) his trial attorney erred by failing to object to the introduction of the statements he made in Bogota on this ground.
See Pet. Mem. at 55 (observing that the officers read Restrepo his rights off of a " Miranda card").
As a threshold matter, there is no evidence that Restrepo would have acted differently had he known that his right to counsel was provided by Colombian law as well as American law. The officers properly advised Restrepo that he had a right to counsel and he knowingly and voluntarily waived that right. Further, even without Restrepo's statement, in light of the strength of the government's evidence, there is no indication that the verdict would have been different. In the absence of a showing of a reasonable probability that the disclosure would have affected the outcome of the trial, Restrepo's habeas petition cannot be granted on this ground.
There is apparently some question as to whether Restrepo's trial attorney raised the issue when he moved to suppress the statements on the ground that Restrepo was not informed of his Miranda rights. Defendant concedes that his trial counsel provided the Court with the relevant Colombian statute as part of this motion. See id. In light of Restrepo's failure to demonstrate a reasonable possibility of prejudice, I need not reach this issue.
3. Pre-Trial Conference Held on September 25, 2001
a. Structural Issues
Restrepo argues that his trial counsel's absence from the pre-trial conference held on September 25, 2001 resulted in a denial of his right to counsel. Attorney Alex Eisemann, who represented a co-defendant, agreed to "stand in" for Restrepo's attorney. At the September 25th conference, the parties discussed discovery and the motion schedule and the Court set a provisional trial date. Assuming, arguendo, that a scheduling and status conference is "critical," because Restrepo was represented by Eisemann, there was no actual or constructive denial of counsel. Therefore, there was no structural violation of Restrepo's Sixth Amendment rights that would require automatic reversal of either the conviction or the sentence.
See 9/25/01 Transcript ("9/25 Tr.") at 2.
b. Inadequate Representation
Restrepo further argues that Eisemann's representation was so deficient as to rise to the level of a constitutional violation. First, Restrepo argues that Eisemann failed to correct the government's assertion that all discovery had been produced, and as a result of this error, Restrepo was prejudiced because he did not receive documents relating to his extradition in time to make certain pretrial motions. But Restrepo has not met his burden of demonstrating a reasonable probability that the outcome of the trial or sentencing would have been different had Eisemann not failed to correct this assertion. Accordingly, this error does not rise to the level required to grant Restrepo's petition.
See Pet. Mem. at 59.
Restrepo adds that Eisemann "only added to the confusion by repeatedly and incorrectly telling this Court that Smith had filed motions." Id. In fact, the Court stated that it had received motions and believed that they were on behalf of Restrepo, at which point Eisemann added that "My client says Mr. Smith did file motions, and I remember in our meeting he mentioned he was going to or had filed them." 9/25 Tr. at 4. In fact, Smith did not file the motions in question until two weeks later. Regardless, there is no indication that this led to any sort of prejudice, let alone a reasonable possibility of an effect on the outcome.
Restrepo next contends that Eisemann's agreement to a trial date prejudiced him because his attorney was not prepared to proceed to trial on that date. This argument has no merit. The trial date set at the conference was almost five months in the future. Restrepo has not argued that Smith was not promptly informed of the trial date. If the date had been problematic, Smith had almost half a year to object. In the absence of further evidence, Smith's failure to complain about the trial date conclusively demonstrates that Restrepo was not prejudiced by the decision to set the trial date in the absence of his counsel.
See Pet. Mem. at 60.
See 9/25 Tr. at 7 (setting provisional trial date of February 19, 2002).
4. Lack of Physical Evidence That Restrepo Had Been Present at the Pagani Murder
Restrepo contends that he was denied effective assistance of counsel because his trial counsel failed to elicit from witnesses or argue to the jury that there was no physical evidence that Restrepo had been present at the Pagani murder. Restrepo further asserts that the jury may have had the false impression that his fingerprints were found at the crime scene. The record indicates that the parties and the Court were concerned that the jury might have formed this impression, and in response to a question sent by the jury during deliberations, the jury was given detailed information on where Restrepo's fingerprint was discovered. Restrepo argues that his trial counsel failed to argue this point specifically, but there is no reason to believe that such argument would have been effective. In the absence of a reasonable probability of prejudice, Restrepo's Sixth Amendment right to counsel was not violated. 5. Failure to Move for Acquittal Based on a Theory of Dual Incrimination
See Pet. Mem. at 60.
See id. at 61.
See Trial Transcript ("Trial Tr.") at 2672.
Again, there is serious question as to whether Restrepo's trial attorney erred by failing to argue this point to the jury. His attorney did argue at summation that the only evidence against his client was testimonial. See Trial Tr. at 2512. Not dwelling on the fingerprint may have been a strategic decision — a reasonable attorney could judge the risk of focusing the jury's attention on the fingerprint to outweigh the benefit of planting a seed of doubt as to the fingerprint's probative value. Reasonable strategic decisions by trial counsel cannot rise to the level of constitutional error. "A court 'may not use hindsight to second-guess' counsel's tactical choices." McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999) (quoting Mayo, 13 F.3d at 533). Because I find that there has been no showing of prejudice, I need not reach this issue.
Restrepo argues that he received ineffective assistance because counsel failed to move for acquittal based on the doctrines of dual incrimination and specialty. Specifically, Restrepo contends that there was insufficient evidence to convict him because: (1) the Government did not prove a pattern of activity relating to drug trafficking with regard to Counts One and Two; and (2) no nexus to drug trafficking had been established for Counts Twelve and Thirteen.
See Pet. Mem. at 62.
"The rule of specialty, which is derived from principles of international comity, 'generally requires a country seeking extradition to adhere to any limitations placed on prosecution by the surrendering country.'" Under Colombian law, the principle of dual incrimination requires that for an extradition to be granted "the act on which [the] extradition is based must be considered an offense in Colombia, and must be punishable by a term of incarceration of not less than four (4) years."
United States v. Cuevas, 496 F.3d 256, 262 (2d Cir. 2007).
8/29/00 Colombia Supreme Court of Justice Opinion ("Colombia Opinion") at 27, attached to Appendix to Petitioner's Brief on Appeal, at 139-177.
The Colombian Supreme Court of Justice held that Counts One, Two, Twelve, and Thirteen of the Superseding Indictment satisfied Colombia's dual incrimination requirement. Specifically, it explained that Counts One and Two of the Superseding Indictment "have a counterpart in the rules of conduct codified in Item 2, Article 186 of the Penal Code, that is, agreement to commit crime related to drug trafficking." It also concluded that Counts Twelve and Thirteen "correspond in the Colombian legislation to aggravated homicide." There is no evidence to suggest that the Colombian government or courts misunderstood the extradition request or imposed a requirement that the Government prove multiple acts of narcotics trafficking for Counts One and Two. The United States accurately informed Colombia of the elements of each charge for which extradition was granted. The Government also correctly conveyed that the Superseding Indictment only contained one racketeering act that made specific reference to drug activity. Furthermore, there is no evidence to suggest that Colombia required a nexus to drug trafficking be established for Counts Twelve and Thirteen. The Colombia Supreme Court of Justice's determination that Counts Twelve and Thirteen correspond to "aggravated homicide" contradicts such an assertion.
Id. at 33.
Id. at 36.
See 1/28/00 Diplomatic Note 067.
In its opinion, the Colombia Supreme Court of Justice cited the Superseding Indictment in full. See Colombia Opinion at 4-18.
Furthermore, the Government clearly established at trial that the racketeering organization robbed narcotics dealers and then distributed the stolen drugs. Thus, the Government proved that the enterprise as defined in the Superseding Indictment engaged in drug trafficking activity. Restrepo was convicted of the crimes for which he was extradited. Consequently, Restrepo's contention that counsel was ineffective for not moving for acquittal based on the doctrine of dual incrimination is without merit.
IV. CONCLUSION
For the foregoing reasons, Restrepo's section 2255 motion is denied and his case is dismissed. The remaining question is whether to grant a certificate of appealability. For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." A substantial showing does not require a petitioner to demonstrate that he would prevail on the merits, but merely that "reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Petitioner has made no such showing in this case. Accordingly, I decline to issue a certificate of appealability. The Clerk of the Court is directed to close this case.
Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks and citation omitted)).
SO ORDERED:
For Petitioner: Susan M. Damplo, Esq., Ardsley, New York.
Nancy Lee Ennis, Esq., Quijano Ennis, P.C., New York, New York.
For Respondent: Helen Cantwell, Ronnie Abrams, Assistant United States Attorneys, New York, New York.