Summary
stating that "the Second Circuit has not opined" as to whether the statute of limitations for a section 2255 petition begins to run after a petitioner's time to seek certiorari has elapsed
Summary of this case from DeFoe v. U.S.Opinion
99 Civ. 11809 (SHS)
May 4, 2000
OPINION ORDER
On April 2, 1998, petitioner Alfred White was convicted following a jury trial of the murder of a U.S. Postal Service employee, in violation of 18 U.S.C. § 1111, 1114, and 2; robberies of mail, money, or property of the United States, in violation of 18 U.S.C. § 2114 and 2; and conspiracy to commit those offenses, in violation of 18 U.S.C. § 1117 and 371. He was sentenced principally to imprisonment for life plus twenty-five years, and was ordered to pay $81,000 restitution. On November 16, 1998, the U.S. Court of Appeals for the Second Circuit affirmed the judgment of conviction. See United States v. White, No. 98-1140, 165 F.3d 16, 1998 WL 801856, at *1 (2d Cir. Nov. 13, 1998) (summary order).
White now attacks his sentence and requests a new trial by a pro se petition pursuant to 28 U.S.C. § 2255. He also moves to amend his petition; that motion is hereby granted. However, for the reasons set forth below, the amended petition is denied.
DISCUSSION
I. Statute of limitations As an initial matter, this Court must determine whether White's petition is barred by the one-year statute of limitations applicable to section 2255. Although the circuit courts are divided as to whether the one-year period begins to run before the deadline for filing a petition for certiorari, see United States v. Thomas, 203 F.3d 350, 352-55 (5th Cir. 2000) (collecting cases) — and the Second Circuit has not opined on this point — they agree that the period does not begin to run at least until the mandate issues from the circuit court after a direct appeal has been decided, see United States v. Polanco, No. M-120, 1999 WL 328352, at *4 (S.D.N.Y. May 21, 1999). Because the Second Circuit issued its mandate in White's appeal on December 10, 1998, and his section 2255 petition was received by the Pro Se Office on December 6, 1999, the petition is timely.
II. Ineffective assistance of trial counsel
White contends on the merits of his petition that his trial counsel was constitutionally ineffective for several reasons. The standard required to prevail on a claim of ineffective assistance of counsel is quite high. Specifically, a petitioner must establish two elements: "(1) that counsel's performance 'fell below an objective standard of reasonableness,' and (2) that there is a 'reasonable probability' that, but for the deficiency, the outcome of the proceeding would have been different." McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984)).
At the outset, it bears noting that "absent a showing of cause for the procedural default and actual prejudice, a defendant may not raise an ineffective assistance claim for the first time on collateral attack if the defendant had new counsel on direct appeal and the claim is based solely on the record developed at trial." Amiel v. United States, No. 98-2135, ___ F.3d ___, 2000 WL 378880, at *2 (2d Cir. Apr. 13, 2000) (citing Billy-Eko v. United States, 8 F.3d 111, 115-16 (2d Cir. 1993)). Because White was represented by different counsel at trial and on direct appeal, and because White alleges neither cause nor prejudice, this general rule suffices to dispose of White's claim of ineffective assistance of trial counsel. In addition, none of the asserted bases of ineffectiveness of trial counsel, taken either separately or together, meet the test set forth by the U.S. Supreme Court in Strickland.
First, White contends that his counsel was ineffective for making a general motion for a judgment of acquittal at the end of the government's case, without presenting facts or arguments to substantiate the motion specifically with respect to Count Ten, which charged White with the use of a firearm during a robbery. The law is clear, however, that a general request is adequate. See United States v. Gjurashaj, 706 F.2d 395, 399 (2d Cir. 1983). Moreover, such a motion must be decided on the basis of the sufficiency of the government's evidence, and the jury was entitled to credit the testimony of the government's witness, Fernando Alvarez, in support of its theory that White was an aider and abettor. See United States v. Romero, No. 91 Cr. 586, 1993 WL 458677, at *120-13 (S.D.N Y Nov. 22, 1993) (quoting United States v. Taylor, 464 F.2d 240, 243 (2d Cir. 1974)).
Second, White argues that counsel was ineffective for failing to cross-examine as vigorously as possible. He maintains that his counsel should have objected to testimony from a government witness, George Gallego, that White had "pumped" the murder victim in advance for information as to his truck schedule and route, on the grounds that the dead man was unavailable for cross-examination. However, Gallego testified that White himself had told Gallego that he had pumped the victim for information; therefore, the testimony was admissible as an admission and as testimony of a coconspirator. See Tr. at 741; Fed.R.Evid. 801(d)(2)(A), 801(d)(2)(E). Thus, the inability to cross-examine the victim was irrelevant to the admissibility of this testimony.
Third, White similarly maintains that counsel should have cross-examined a government witness, U.S. Postal Inspector Edwin Cuebas, who prepared certain phone records, in order to highlight that the records only indicated the phones or beepers on which the calls had been made and did not necessarily indicate who had made or received the calls at those numbers. However, the jury was certainly entitled to infer that the owners of the phones or beepers had in fact been the persons who made or received the calls.
Fourth, White contends that counsel was ineffective for not moving to strike certain evidence of his credit card fraud. However, the Second Circuit affirmed the admission of this evidence pursuant to Fed.R.Evid. 404(b), on the grounds that it provided background on the development of the illegal relationship among the coconspirators. See White, 1998 WL 801856, at *1. To the extent that White specifically challenges the admission of evidence of fraud committed after the conspiracy had begun, this evidence was admissible to show that the earlier relationship of trust had not ended prior to the start of the conspiracy.
Fifth, White asserts that his trial counsel should have brought to the jury's attention the fact that the government had already filed a motion pursuant to Fed.R.Crim.P. 35(b) for a reduction of George Gallego's sentence. The fact of the matter is that there was testimony that Gallego hoped to reap the benefits of a Rule 35(b) motion for a reduction in his sentence due to substantial assistance and that his testimony in White's trial was part of that assistance. See, e.g., Tr. at 655-57. White appears to argue that the fact that the motion had already been filed prior to White's trial should have been specifically enquired into. However, that filing was made simply to satisfy the one-year statute of limitations of Rule 35, see Petition, Ex. C (Rule 35 motion), in light of the fact that the White trial would extend more than one year after Gallego's earlier sentencing. Accordingly, there was no prejudice with respect to this point. See Paradise v. CCI Warden, 136 F.3d 331, 338 (2d Cir.) ("[P]rosecutors are obligated to correct any misconceptions . . . where a government witness . . . substantially misrepresents the nature of the bargain. A new trial, however, is only 'required if "the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury.'"") (quoting Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972)), cert. denied, 525 U.S. 836, 119 S.Ct. 94, 142 L. Ed.2d 74 (1998).
Sixth, White argues that counsel was ineffective for failing to impeach Gallego with respect to his prior criminal record. However, his counsel's cross-examination of Gallego dealt extensively with his prior criminal activity as well as with his cooperation agreement with the prosecution.See Tr. at 650-57, 828-948, 956-64; United States v. O'Neil, 118 F.3d 65, 73 (2d Cir. 1997) (no prejudice where attorney sufficiently illuminated any potential bias or motivation for testifying), cert. denied sub nom. Saia v. United States, 522 U.S. 1064, 118 S.Ct. 728, 139 L. Ed.2d 666 (1998).
Seventh, White asserts that counsel should have requested a special instruction to the jury on how to evaluate accomplice testimony. However, this point was raised on White's direct appeal, where the Second Circuit held that "we see no prejudice to the defendant" from the lack of such a special instruction, in light of this Court's general instructions on witness testimony. See White, 1998 WL 801856, at *2.
Eighth, White argues that trial counsel was ineffective for failing to challenge the introduction into evidence of an allegedly "manufactured" phone message that Gallego left on White's answering machine. See Tr. at 1427-28. Even if the government had some role in prompting Gallego to leave the message, it was offered not for the truth of its contents but solely for the fact that it was left, insofar as that fact permitted the jury to infer White's state of mind based on his reaction to the message. Thus, White's trial counsel was not objectively unreasonable in failing to object to this evidence.
Ninth, White maintains that trial counsel should have investigated the date on which the locks were changed at the Bronx depot at 1525 Basset Avenue, since this investigation would have revealed purported inconsistencies between the testimony given by Gallego, see Tr. at 765-66, the testimony of other witnesses, and affidavits produced by White subsequent to the trial in support of his section 2255 petitionsee Petition, Ex. E-G. With respect to the other witnesses, however, the cited inconsistencies simply raise questions of credibility that were properly left for the jury to resolve. Similarly, the affidavits are vague in their assertions as to when the lock was changed and thus provide no basis for concluding that testimony to that effect would have produced a different outcome. Therefore, even if counsel's investigation was less than objectively reasonable — and there is no evidence that it was — there is no "reasonable possibility" that the jury's verdict would have been different.
In sum, the conduct of White's trial counsel was professional and more than adequate throughout the trial, any alleged deficiencies were incapable of prejudicing White, and White's claim of ineffective assistance must be rejected.
III. Perjured testimony
White also contends that his right to a fair trial was violated when the government introduced perjured testimony from Gallego as to the date of the lock change at the Bronx depot and the exchange of keys to the lock between White and Gallego. White grounds his contention in what he asserts, once again, are inconsistencies between the testimony given by Gallego, the testimony of other witnesses, and the affidavits accompanying the petition. For the reasons discussed above, however, resolution of these inconsistencies was a matter of credibility well within the ken of the jury and they simply provide no basis for concluding that Gallego's testimony was perjured.
Even assuming for the sake of argument that Gallego did commit perjury, these inconsistencies fail to demonstrate that the government knew or should have known of the alleged perjury, and the independent evidence of White's guilt was substantial. Therefore, his contention must be rejected. See United States v. Moreno, 181 F.3d 206, 213 (2d Cir.) ("[I]f the government 'was unaware of the perjury at the time of trial, a new trial is warranted only if the testimony was material and the court [is left] with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted.'") (quoting United States v. Wong, 78 F.3d 73, 82 (2d Cir. 1996)) (alteration in original),cert. denied, 120 S.Ct. 427, 145 L. Ed.2d 334 (1999).
IV. Newly discovered evidence
White further contends that newly discovered evidence warrants a new trial, insofar as the affidavits submitted with his petition allegedly contradict the testimony of Gallego. A trial court should grant a new trial only "if the defendant makes a showing that the evidence is in fact 'new,' i.e., it could not have been discovered, exercising due diligence, before or during trial, and that the evidence is so material and non-cumulative that its admission 'would probably lead to an acquittal.'" United States v. Siddiqi, 959 F.2d 1167, 1173 (2d Cir. 1992) (quoting United States v. Alessi, 638 F.2d 466, 479 (2d Cir. 1980)). However, White gives no explanation why this evidence could not have been discovered before or during trial, and for the reasons set forth above, this Court is unable to say that its introduction at trial would "probably lead to an acquittal."
V. Testimony as to Rule 35(b) motion
White also argues that the government introduced false and misleading testimony that Gallego might receive a reduction of sentence were the government to file a Rule 35(b) motion in return for his cooperation as a witness. However, this is merely a rephrasing of White's similar point raised in the context of his claim of ineffective assistance of counsel, and it must be rejected for the same reasons.
VI. Testimony as to length of sentence
Along similar lines, White maintains that the government introduced false and misleading testimony that Gallego could receive an additional consecutive sentence of thirty years for crimes for which he had not yet been sentenced in the event he did not fully cooperate with the government. See. Tr. at 1466. However, White fails to explain in any detail why this testimony was misleading or why any such error resulted in prejudice. See Maddox v. Lord, 818 F.2d 1058, 1061 (2d Cir. 1987);United States v. Romano, 516 F.2d 768, 770 (2d Cir. 1975). In any event, the existence of Gallego's plea agreement, his hopes for a § 5K1.1 letter from the government for a reduced sentence, and his further hopes for a favorable ruling on the Rule 35(b) motion for a reduced sentence, were all enquired into at length by the government and by trial counsel. Accordingly, White's claim must be rejected.
VII. Vouching for witness credibility
Next, White argues that the prosecution impermissibly vouched for the credibility of its witness when it repeatedly pointed out that Gallego's credibility was bolstered by the fact that he could receive a reduced sentence only if he cooperated fully with the government. See Tr. at 955, 1466. However, the prosecutor's remarks were in response to defense counsel's understandable attacks on the credibility of the expected prosecution witnesses in his opening statement. See Tr. at 42 ("The prosecution will ask you to draw certain inferences based upon the testimony of these liars."). Therefore, Gallego's testimony and the prosecutor's remarks were proper. See United States v. Gaind, 31 F.3d 73, 78 (2d Cir. 1994) ("If the opening sufficiently implicates the credibility of a government witness, we have held that testimonial evidence of bolstering aspects of a cooperation agreement may be introduced for rehabilitative purposes during direct examination.") (citing United States v. Smith, 778 F.2d 925, 928 (2d Cir. 1985)).
VIII. Right to testify
White also contends in the memorandum of law that accompanies his petition that his constitutional right to testify was violated when trial counsel prevented him from taking the stand. In particular, White asserts that he had told his counsel that he wanted to testify at trial, and that counsel indicated he would let White know when and if he would be allowed to testify, but that counsel then rested the defense case without calling White to the stand and later informed him that it was too late to testify. However, the affidavit White has submitted fails to substantiate his allegations that trial counsel's performance was deficient. See Petition, Ex. A; United States v. Castillo, 14 F.3d 802, 805 (2d Cir. 1994) ("'[T]he defendant must produce something more than a bare, unsubstantiated, thoroughly self-serving, and none too plausible statement that his lawyer (in violation of professional standards) forbade him to take the stand.'") (quoting Underwood v. Clark, 939 F.2d 473, 476 (7th Cir. 1991)).
Moreover, the Second Circuit has clarified that "any claim by the defendant that defense counsel . . . fail[ed] to inform the defendant of the right to testify or . . . over[rode] the defendant's desire to testify . . . must satisfy the two-prong test established in Strickland v. Washington for assessing whether counsel has rendered constitutionally ineffective assistance." Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997) (citing United States v. Teague, 953 F.2d 1525, 1534 (11th Cir. 1992)) (other citations omitted), cert. denied, 522 U.S. 1128, 118 S.Ct. 1077, 140 L.Ed.2d 135 (1998).
In this context, White maintains in his memorandum of law that, had he been permitted to testify, he would have denied that he was involved with the murder-robbery, denied that he
supplied Gallego with keys to the Bronx depot, and denied that he planned to attend a meeting at the depot following the crime. See Mem. of Law in Support of Petition, at 46-47. However, these bare denials would merely have set White's word against the substantial competing evidence adduced at trial, and are therefore highly unlikely to have produced a different outcome. White also maintains that he would have explained that his phone contacts with Gallego were made for an innocent purpose, but he fails to state the nature of that purpose, and in any event there is no reasonable possibility that, but for White's inability to explain that purpose, the outcome of the proceeding would have been different. Therefore, this claim must be rejected as well.
IX. Sufficiency of the evidence
White argues that there was insufficient evidence for the jury to convict him of Count Ten, which charged him with use of a firearm during the commission of a robbery. Here, White bases his challenge on the testimony of a government witness, Fernando Alvarez, that Alvarez "did not know" whether another alleged coconspirator would use a gun to rob the post office. Tr. at 298. However, as White concedes, Alvarez also testified that he expected that the coconspirator would use guns in committing the robbery. See Tr. at 242-43. Therefore, the jury was entitled to find some way of reconciling these statements, for example, by drawing the inference that Alvarez expected that the coconspirator would use a gun but did not know for certain that a gun would actually be used.
White further asserts that mere knowledge is insufficient to convict on a charge of carrying a firearm pursuant to an aiding and abetting theory. See United States v. Giraldo, 80 F.3d 667, 676-77 (2d Cir. 1996), cited with approval, Muscarello v. United States, 524 U.S. 125, 131-32, 118 S.Ct. 1911, 1916, 141 L.Ed.2d 111 (1998). Here, however, there was substantial testimony from Gallego on the basis of which the jury could infer that White had directly facilitated or encouraged the carrying of a firearm. See Tr. at 686, 693, 706, 723, 741-42, 744-45, 764-65. Assessing the evidence in the light most favorable to the government, as this Court is obligated to do see Moreno, 181 F.3d at 211, White has failed to establish that the evidence was insufficient to sustain his conviction.
X. Cumulative effect of errors
White further maintains that the cumulative effect of the errors asserted above deprived him of a fair trial. Because all of White's earlier points have been rejected, this point must be rejected as well. Counsel for both the prosecution and the defense were able and professional in their conduct throughout White's trial, which was a fair trial by any accepted standard.
XI. Ineffective assistance of appellate counsel
Finally, White contends that his appellate counsel was ineffective for failing to raise a number of the objections raised in the present petition. However, none of the objections raised by White has substantial merit, and the U.S. Supreme Court has recognized the "importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 3313, 77 L. Ed.2d 987 (1983). Therefore, the decision not to raise these issues on direct appeal was not objectively unreasonable. See McKee, 167 F.3d at 106 (Strickland standard).
CONCLUSION
For the reasons set forth above, White's petition pursuant to 28 U.S.C. § 2255 is hereby denied. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253 (as amended by the AEDPA); Lucidore v. New York State Div. of Parole, No. 99-2492, ___ F.3d ___, 2000 WL 351087, at *4-5 (2d Cir. Apr. 6, 2000);Soto v. United States, 185 F.3d 48, 51-53 (2d Cir. 1999); United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997), cert. denied, 525 U.S. 953, 119 S.Ct. 384, 142 L. Ed.2d 318 (1998); see also Rodriguez v. Scully, 905 F.2d 24, 24 (2d Cir. 1990) (per curiam) (pre-AEDPA standard).
SO ORDERED.