Opinion
No. 03 Civ. 4247 (PKL).
December 23, 2004
John Muyet, Pro Se, United States Penitentiary, Leavenworth, Kansas, for Petitioner.
DAVID N. KELLY, ESQ., United States Attorney, David S. Leibowitz, Esq., Assistant United States Attorney, Southern District of New York, New York, New York, Attorney for the United States.
OPINION AND ORDER
Petitioner submits this pro se application pursuant to 28 U.S.C. § 2255 for relief from his April 10, 1997 conviction on twenty-one counts of felony violations arising from his participation in the "Nasty Boys" drug ring's campaign of terror and murder. Petitioner was convicted following a six month trial, where he was represented by Mitchell Golub, Esq., involving over seventy government witnesses and seven hundred government exhibits. Petitioner was found guilty of: (1) two counts of violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c), (d); (2) twelve counts of committing violent crimes in aid of racketeering in violation of 18 U.S.C. § 1959, involving five conspiracies to commit murder, two attempted murders, and five murders; (3) conspiring to distribute and possession with intent to distribute heroin and crack cocaine violating 21 U.S.C. § 846, and; (4) six counts of illegal gun possession under 18 U.S.C. § 924(c). This Court sentenced petitioner on August 25, 1998 to life (eight concurrent life sentences) plus one hundred thirty years in prison and five years of supervised release. Represented by new counsel, Carlos Jenkins, Esq., petitioner filed a direct appeal to the United States Appellate Court for the Second Circuit. In addition to Mr. Jenkins' brief, petitioner filed two pro se supplemental briefs to support his arguments on appeal. By summary order, the Second Circuit affirmed petitioner's conviction, rejecting each of the issues raised on appeal. United States v. Muyet, 225 F.3d 647 (2d Cir. 2000), fully reported at, 2000 U.S. App. LEXIS 22881 (2d Cir. Sept. 8, 2000). The Supreme Court of the United States denied petitioner's petition for a writ of certiorari on May 20, 2002. Muyet v. United States, 535 U.S. 1086 (2002). Petitioner timely filed the instant petition for a writ of habeas corpus on May 16, 2003, to which the Court now turns.
For a further detailed statement of the facts, see Government's Letter Brief in Opposition to Petitioner Muyet's Motion Pursuant to § 2255 ("Gov't Br.") at 1-10.
DISCUSSION
Petitioner asserts six main arguments justifying his prayed for relief: (1) his conviction is void for lack of evidentiary support; (2) he was denied his Sixth Amendment right to effective assistance of counsel both at trial and on appeal; (3) admission of perjured testimony deprived him of his right to due process under the Fifth and Fourteenth Amendments; (4) his sentence was improperly enhanced by facts not alleged in the indictment or found during the jury trial; (5) the trial was so poisoned by government prejudice that it was impossible for petitioner to receive a fair trial; and, (6) the reading of co-defendants' plea allocutions in open court deprived him of a fair trial. (Petitioner John Muyet's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence of a Person in Federal Custody ("Pet.").) Petitioner asserts he can prove these allegations at an evidentiary hearing. (Petitioner John Muyet's Memorandum in Support of Pet. ("Pet'r Mem.") at 1b, 3b.)Under the relevant sections of 28 U.S.C. § 2255, a prisoner in custody pursuant to a federal court sentence claiming that his sentence is improper under the United States Constitution or laws, or "otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255 (2004). Section 2255 was created to relieve federal prisoners from unlawful detention predicated on a "constitutional error, or an error of law constituting `a fundamental defect which inherently results in a complete miscarriage of justice.'" Vicioso v. United States, No. 97 Civ. 1139, 1997 U.S. Dist. LEXIS 14772, *6 (S.D.N.Y. Sept. 25, 1997) (Sotomayor, D.J.) (quoting Hardy v. United States, 878 F.2d 94, 97 (2d Cir. 1989)). If the prisoner's allegations are not frivolous, the court is to grant a prompt hearing on the issues. Id. However, where the allegations lack merit, the evidence of guilt is overwhelming, and the reviewing court has intimate knowledge of the facts, an evidentiary hearing is unnecessary. See United States v. Aiello, 900 F.2d 528, 534 (2d Cir. 1990) ("Aiello II"). In order to justify a hearing on the merits of petitioner's claims, "the application [for relief under § 2255] must contain assertions of fact that a petitioner is in a position to establish by competent evidence. . . . Airy generalities, conclusory assertions and hearsay statements will not suffice because none of these would be admissible evidence at a hearing."United States v. Aiello, 814 F.3d 109, 113-14 (2d Cir. 1987) ("Aiello I"). The Second Circuit reviews a district court's denial of a hearing for abuse of discretion. Chang v. United States, 250 F.3d 79, 82 (2d Cir. 2001).
Because of judicial deference to final judgment, collateral attacks such as the instant habeas petition are strictly construed. United States v. Addonizio, 442 U.S. 178, 184 (1979) (It is "settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment."). Petitioner may not use § 2255 to relitigate claims considered and rejected on direct appeal. Vicioso, 1997 U.S. Dist. LEXIS 14772, at *11 (citing Schlup v. Delo, 513 U.S. 298 (1995); Sanders v. United States, 373 U.S. 1 (1963);Hooper v. United States, 112 F.3d 83, 87 (2d Cir. 1997);Riascos-Prado v. United States, 66 F.3d 30, 33-34 (2d Cir. 1995); Underwood v. United States, 15 F.3d 16, 18 (2d Cir. 1993); Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993);Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992);United States v. Muhammad, 824 F.2d 214, 219 (2d Cir. 1987),cert. denied, 484 U.S. 1013 (1988); Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986) (per curiam); Giacalone v. United States, 739 F.2d 40, 42 (2d Cir. 1984); United States v. Natelli, 553 F.2d 5, 7 (2d Cir. 1977) (per curiam), cert. denied, 434 U.S. 819 (1977);Castellana v. United States, 378 F.2d 231, 233 (2d Cir. 1967)). Petitioner is also procedurally barred from asserting new claims in his § 2255 petition that were not raised at trial or on direct appeal.
These procedural bars may only be overcome where petitioner demonstrates "cause and prejudice or that failure to review such claims would result in a fundamental miscarriage of justice," or where petitioner alleges ineffective assistance of counsel.Ayala v. United States, No. 02 Civ. 0298, 2003 U.S. Dist. LEXIS 13724, *20-21 (S.D.N.Y. July 9, 2003) (citations and quotation omitted); see Massaro v. United States, 538 U.S. 500, 503-04 (2003); United States v. Perez, 129 F.3d 255, 260-61 (2d Cir. 1997); Underwood, 15 F.3d at 18. Cause is shown where petitioner demonstrates that, "(1) the factual or legal basis for a claim was not reasonably available to counsel, (2) some interference by [government] officials made compliance [with the procedural rule] impracticable, or (3) the procedural default is the result of ineffective assistance of counsel." Ayala, 2003 U.S. Dist. LEXIS 13724, at *21-22 (quotation marks omitted) (quoting Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994));Underwood, 15 F.3d at 18 ("Section 2255 may not be employed to relitigate questions which were raised and considered on direct appeal" unless the issue was not raised due to ineffective assistance of counsel or "an intervening change in the law has taken place."); see Bousley v. United States, 523 U.S. 614, 622 (1998). Prejudice exists where petitioner demonstrates that "the alleged constitutional error worked to Petitioner's `actual and substantial disadvantage.'" Ayala, 2003 U.S. Dist. LEXIS 13724, at *22 (citing United States v. Frady, 456 U.S. 152, 170 (1982)) (emphasis in original). The fundamental miscarriage of justice exception requires a showing of actual innocence. Id. Actual innocence is demonstrated when, "`in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.' This means `factual innocence, not mere legal insufficiency.'" Rosario, 164 F.3d at 733 (quoting Bousley, 523 U.S. at 623). Procedural defaults can be overcome only in narrowly defined circumstances. Ciak v. United States, 59 F.3d 296, 302 (2d Cir. 1995). If petitioner's claims are not procedurally barred, petitioner must prove his allegations by a preponderance of the evidence. Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000).
The Court of Appeals for the Second Circuit reviews a district court's denial of a § 2255 petition de novo. Coleman v. United States, 329 F.3d 77, 81 (2d Cir. 2003). However, a court's denial of a petitioner's claim that he would have accepted a plea agreement absent ineffective assistance of counsel is reviewed for clear error as it is a factual determination of the district court. See, e.g., Purdy v. United States, 208 F.3d 41, 49 (2d Cir. 2000); Cullen v. United States, 194 F.3d 401, 403 (2d Cir. 1999); Newfield v. United States, 565 F.2d 203, 207-08 (2d Cir. 1977). With this framework of analysis and mindful of petitioner's pro se status, the Court addresses petitioner's specific claims in turn below. See Haines v. Kerner, 404 U.S. 519, 521 (1972) (holding a pro se complainant to a less stringent standard that that of a lawyer); LaBounty v. Adler, 933 F.2d 121, 122 (2d Cir. 1991) (same).
A. Petitioner's Conviction Was Based on Sufficient Evidence
Petitioner asserts that the jury's determination of guilt and the Court's subsequent sentence should be set aside as void because the evidence did not support the jury's finding that Muyet was an active member of the Nasty Boys gang. (Pet. at 7a.) Instead, petitioner asserts the evidence proved only that he had a casual association with members of the Nasty Boys. (Id.) The Court finds at the outset that this claim is procedurally barred and cannot benefit from any exception to that bar. Muyet raised this claim on appeal to the Second Circuit and it was considered and summarily rejected. Muyet, 2000 U.S. App. LEXIS 22881, *14; Appellant John Muyet's Supplemental Brief on Appeal to the Second Circuit ("Pet'r Supplemental Br.") at 30-43. Petitioner's supplemental brief on appeal used almost identical language and completely identical arguments which were rejected by the Second Circuit. (Pet'r Supplemental Br. at 36-39.) The Court does not see, and petitioner does not allege, cause and prejudice, actual innocence, or an intervening change in the law justifying excusal from the procedural bar.
Petitioner's ineffective assistance of counsel claims will be dealt with collectively, infra Part B.
Moreover, were the Court to reach the merits of petitioner's claim, petitioner does not meet the "very heavy burden" justifying relief under § 2255. See United States v. Marji, 158 F.3d 60, 63 (2d Cir. 1998), cert. denied, 525 U.S. 1048 (1998). In reviewing petitioner's claim, the Court must view the evidence presented at trial "in the light most favorable to the government, drawing all inferences and resolving all issues of credibility in the government's favor." Glasser v. United States, 315 U.S. 60, 80 (1942); United States v. Payton, 159 F.3d 49, 56 (2d Cir. 1998). Petitioner must overcome the barrier that the jury's verdict must be left undisturbed if "any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Sureff, 15 F.3d 225, 228 (2d Cir. 1994). Further, the Court must review the evidence as a whole, not in a piecemeal fashion. United States v. Pitre, 960 F.2d 1112, 1120-21 (2d Cir. 1992). The verdict can stand on purely circumstantial evidence or the testimony of one uncorroborated witness, "so long as that [evidence or witness's] testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt." United States v. Gordon, 987 F.2d 902, 906 (2d Cir. 1993). A lack of corroboration of testimony is a matter of weight of the evidence for the jury to decide, not a reason for the court to vacate the jury's verdict. See United States v. Matthews, 20 F.3d 538, 548 (2d Cir. 1994). Thus, a high bar is set, which petitioner fails to meet, as discussed below.
Petitioner initially asserts the tenuous argument that he could not have been a member in the Nasty Boys because his name and phone number did not appear in other members' personal address books, he was not on funeral registries, nor in pictures of social events attended by members of the Nasty Boys. (Pet. at 8a.) Petitioner has alleged that these facts would have affected the outcome of his trial because the jurors asked for prosecution exhibits of pictures from social gatherings and funeral registry books. (Pet'r Supplemental Br. at 38.) However, the Court finds this non sequiter completely unpersuasive. After reviewing this social-connection evidence, the jury did not take the opportunity to acquit petitioner based on his absence from such. Therefore, the jury must have convicted him based on the hours of eyewitness testimony demonstrating he was an active member of the Nasty Boys criminal enterprise, as the government painstakingly laid out during the six month trial. Clearly the funeral ledgers, address books, and photos were not a factor in Muyet's conviction. Therefore, his argument is inapposite as presented here — this alleged insufficiency of evidence would not have affected the outcome of Muyet's jury trial.
As noted by the government in its letter brief response to petitioner's § 2255 motion and recalled by the Court, the proof at trial against Muyet was "overwhelming." (Gov't Br. at 15.) Muyet was linked through accomplice testimony as an active participant in five murders and conspiracies to commit murder, and two attempted murders. (Gov't Br. at 15 (citing Trial Transcript ("Tr.") 238, 520-44, 1010-17, 1040-41, 1129, 1697-99, 1720-22, 2931-37, 3639-42, 3648-51, 3762-83, 3805-09, 3813-31, 3860-67, 4352-54, 4459-61, 4503, 4523-33, 4558-68, 4616-25, 4690-4713, 4745-51, 4755-62, 4781-97, 4801-07, 4868-92, 4904-19, 4956-81, 4995-96, 5794-5802, 5812-13, 5914, 5917-18, 5966-68, 6093-94, 6126, 6280-82, 6686-94, 6802-09, 6854-55, 6893-98, 7020-30, 7447, 7471-75 Gov't Exs. 901-16, 965A, 1132, 1136-38, 1302, 1306, 1317A, 1317B, 1323).) The Court finds the jury was justified on the evidence presented in its verdict against Muyet. Rational triers of fact could very well have found that the government proved each and every element of the crimes alleged against Muyet, drawing from the evidence presented during the protracted six month trial from over seventy government witnesses and seven-hundred government exhibits. The Court holds the utmost faith in the jury's verdict.
The government's brief regarding the trial transcripts is consistent with this Court's trial notes.
B. Muyet Was Not Denied Effective Assistance of Counsel at Trial or on Appeal
Muyet argues that both his trial and appellate counsel were ineffective for failing to object to the delay between Muyet's indictment and trial. (Pet. at 9a-10a.) Muyet's trial was delayed while the government searched for one Eric Lnu, a.k.a. "Toxic," who was never found. (Pet. at 9a; Gov't Br. at 16.) Muyet alleges prejudice from this delay because the government used this time to shore up its case by securing cooperating witnesses. (Pet. at 9a-10a.) Muyet further claims that his trial counsel was ineffective by failing to impeach government witnesses Robert Corona and Luis Quinones. (Pet. at 9a.) Finally, Muyet claims his trial counsel failed to fully inform him of the consequences of rejecting the government's plea offer. (Pet. at 11a.)
Muyet's claims are not procedurally barred because the Supreme Court has exempted claims of ineffective assistance of counsel from the procedural bar to relief under a § 2255 petition.Massaro, 538 U.S. at 503-04. Claims of ineffective assistance of counsel are governed by the Supreme Court's test set out inStrickland v. Washington, 466 U.S. 668 (1984). Petitioner must show that his attorneys were "not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment," and made errors "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."Id. at 687. The reviewing court must assess an attorney's actions in the context of all the surrounding circumstances to determine if those actions were reasonable "under prevailing professional norms." Id. at 688. The reviewing court is to be "highly deferential" to the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Recently in Florida v. Nixon, the Supreme Court unanimously held that defense counsel's actions did not create a presumption of prejudice where counsel readily admitted his death penalty client's guilt and presented virtually no defense, allocating all his resources to the penalty phase of the trial. No. 03-931, 2004 U.S. LEXIS 8270, *13-19 (Dec. 13, 2004). There, the Court stated that, while defense counsel has an obligation to consult with his client on "important decisions," counsel need not obtain explicit consent for every tactical maneuver. Id. at *24 (quoting Strickland, 466 U.S. at 688, and Taylor v. Illinois, 484 U.S. 400, 417-18 (1988)). Failure to adequately inform a defendant about a plea agreement has been found to constitute ineffective assistance of counsel. See Pham v. United States, 317 F.3d 178, 183 (2d Cir. 2003); Cullen, 194 F.3d at 404; United States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998).
A presumption that ineffective assistance of counsel prejudiced defendant's trial exists where counsel completely neglects to act as an advocate for his client. United States v. Chronic, 466 U.S. 648 (1984). This is an exception to theStrickland standard and is only applicable where "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing." Nixon, 2004 U.S. LEXIS 8270, at *29-30 (quoting Chronic, 466 U.S. at 658). This is a narrow exception and is inapplicable in the instant matter as counsel put forth a decidedly adversarial defense at trial. See id. at *30.
If the reviewing court decides counsel's performance was not reasonable "under prevailing professional norms," Strickland, 466 U.S. at 688, the court must next determine whether counsel's conduct prejudiced defendant's trial right: "[D]efendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Thus, the Strickland test creates a heavy burden for defendant. United States v. Diaz, 176 F.3d 52, 112 (2d Cir. 1999). Claims of ineffective assistance must be specifically alleged and supported by the facts. See e.g., United States v. Holmes, 44 F.3d 1150, 1158 (2d Cir. 1995); United States v. Simmons, 923 F.2d 934, 956 (2d Cir. 1991).
Petitioner wholly fails to meet his burden under Strickland in this case. Petitioner's initial claim, that the failure of both trial and defense counsel to raise the delay of petitioner's trial violated his right to effective assistance is markedly inaccurate. In his own brief, Muyet stated that his trial counsel had raised the issue twice prior to trial. (Pet'r Supplemental Br. at 7.) Trial counsel's arguments were rejected by this Court on both occasions. (Id.) Muyet's appellate counsel also devoted a substantial amount of his brief to the speedy trial issue, but the claim was rejected. Muyet, 2000 U.S. App. LEXIS 22881, at *13-14; Brief of Appellant John Muyet Submitted by Carlos Jenkins, Esq. ("Appellant Br.") at 7-11. This Court therefore finds that Muyet could not have been deprived of his Sixth Amendment right where trial counsel pursued the issue on two occasions and appellate counsel fully briefed the claim.
The second claim that trial counsel was ineffective for failure to impeach government witnesses Corona and Quinones also fails. Petitioner would have preferred that trial counsel attack the witnesses as perjurers despite the absence of any evidence on the record to that end. It is, of course, reasonable that trial counsel's strategy would not include frivolous accusations regarding credible witnesses, therefore a claim of ineffective assistance cannot lie. United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) (finding that failure to raise a meritless argument does not constitute insufficient representation).
The third claim that trial counsel failed to fully explain the consequences of rejecting a plea agreement cannot bear relief as it is unsupported by objective evidence that Muyet would have taken the plea offer had he been adequately advised. Muyet alleges that counsel informed Muyet only that if Muyet rejected the plea offer, he would be exposed to "a lot more than (20) years." (Pet. at 11a.) Assuming Muyet's assertion of counsel's advice is true, the Court declines to engage in the academic exercise of determining whether counsel's statement adequately explained the consequences of rejecting a plea under prevailing professional norms, as petitioner's allegations fails to meet two threshold requirements. See Purdy v. United States, 208 F.3d 41, 44-45 (2d Cir. 2000); Virgin Islands v. Forte, 865 F.2d 59, 62 (2d Cir. 1989) ("[T]he court must accept the truth of movant's factual allegations" when exercising its discretion to deny an evidentiary hearing.). First, petitioner must show a reasonable probability that, if the consequences had been adequately explained, he would have accepted the plea. Purdy, 208 F.3d at 49. Second, this must be shown through objective evidence, not petitioner's "self-serving, post-conviction testimony." Gordon, 156 F.3d at 380-81. Nowhere does petitioner assert he would have accepted the plea offer had he been made fully aware of the consequences. (Pet. at 11a.) This failure to allege is a fatal flaw barring relief. Aeid v. Bennett, 296 F.3d 58, 64 (2d Cir. 2002) (finding that petitioner's failure to allege "that correct advice from defense counsel would have altered the defendant's decision" to reject the plea offer barred habeas relief underStrickland and Hill v. Lockhart, 474 U.S. 52 (1985)). Though petitioner may have implied that he would have accepted the plea, that implication is plainly insufficient to warrant relief under Aeid. Moreover, the implication is not supported by any objective evidence, (Id.) and a search of the record and the Court's trial notes revealed no evidence that Muyet would have admitted guilt as he maintained his innocence throughout the trial. Such an unsupported claim of ineffective assistance does not warrant a hearing, as petitioner fails to present "detailed and controverted issues of fact."Newfield, 565 F.2d at 207.
Thus, Muyet's petition is readily distinguishable from the Second Circuit's holding in Pham, 317 F.3d at 182-83, where the court found the district court had abused its discretion in denying petitioner an evidentiary hearing where petitioner asserted he would have accepted a plea had he been adequately advised and the disparity between the plea offered and the ultimate sentence was "significant." Id. at 182. Here, while the sentencing disparity is clearly significant, Muyet does not allege, and the Court finds nothing on the record evidencing, that he would have accepted the plea had he been fully and adequately informed by counsel. See id. ("[A] significant sentencing disparity in combination with defendant's statement of his intention is sufficient to support a prejudice finding," despite an absence of objective corroborating evidence.);Gordon, 156 F.3d at 381 ("[S]uch a [sentencing] disparity provides sufficient objective evidence — when combined with a petitioner's statement concerning his intentions — to support a finding of prejudice under Strickland.").
C. Muyet's Claim that Perjured Testimony Deprived him of his Fifth and Fourteenth Amendment Rights to Due Process is Wholly Unsupported by the Record
Petitioner asserts that defendant Corona perjured himself when testifying that petitioner was present for the attempted murder of Miguel Parrilla and that Corona testified to other murders that never occurred. (Pet. at 12a.) Petitioner presents no evidence or reason to believe Corona was lying regarding these incidences. Credibility is determined by the jury at the time of trial and absent new evidence contradicting that assessment, the jury's determination should be left undisturbed. The Court relies on the jury's conscientious discharge of its duties which also parallel the Court's own observations at trial. Therefore, the Court finds no reason to doubt Corona's testimony. Moreover, petitioner alleges no cognizable prejudice from this alleged perjury in light of the overwhelming evidence supporting the jury's verdict.
D. Petitioner's Alleged Apprendi Violation is Procedurally Barred and Moot
Petitioner claims he was prejudiced because allegations that he used a silencer in the course of a murder and the exact amount of drugs he distributed were not contained in the indictment, nor did the jury deliberate regarding the exact amount of drugs. (Pet. at 11a.) This, petitioner argues, violated his Sixth amendment right under Apprendi v. New Jersey, 530 U.S. 466 (2000). (Pet. at 11a.) Petitioner's omission of this point on direct appeal is not excused because, though Apprendi was decided after petitioner filed his appeal, it was filed before his conviction was affirmed, and thus does not constituting intervening case law under Kaufman v. United States, 394 U.S. 217, 230 (1969). "Reconsideration is permitted only where there has been an intervening change in the law and the new law would have exonerated a defendant had it been in force before the conviction was affirmed on direct appeal."United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001) (quotingChin v. United States, 622 F.2d 1090, 1092 (2d Cir. 1980)). Petitioner was represented by counsel on appeal who made no effort to supplement his brief to raise the possible Apprendi issue during the two months between when the Apprendi decision was handed down and when the Second Circuit filed its decision.See Grimes v. United States, No. 01 Civ. 6271, 2003 U.S. Dist. LEXIS 2686, *7-9 (W.D.N.Y. 2003) (finding petitioner'sApprendi claim was procedurally barred where "[t]here [was] no indication that Petitioner, who on his direct appeal was represented by the office of the Federal Public Defender, attempted to supplement his brief to raise the argument upon which he now relies" where Apprendi was decided two months prior to the Second Circuit's affirmation of petitioner's conviction) (citing Fed.R.App.P. 28(j); Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992)). Further, no actual prejudice is present which would result in a "complete miscarriage of justice." See Hill v. United States, 368 U.S. 424, 428 (1962) (denying habeas relief absent a "fundamental defect which inherently results in a complete miscarriage of justice. . . . [The petition] does not present `exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'"). This is evidenced by movant's own words: "Movant believes that both issues can be raised in an Apprendi argument, but knows that it is futile, because if successful his resentence would be seven (7) life sentences plus (100) years [as opposed to eight life sentences plus one hundred thirty years]." (Pet. at 11a.) Therefore, the Court finds no grounds for relief on this issue under § 2255.
E. Government Conduct Did Not Deprive Muyet of a Fair Trial
Petitioner claims the government knowingly suborned perjured testimony from its witnesses. First, the Court notes that this claim is procedurally barred as petitioner raised the issue on direct appeal and it was rejected by the Second Circuit. Muyet, 2000 U.S. App. LEXIS 22881, at *14; Pet'r Supplemental Br. at 15-16, 44-50. There is no intervening law that would remove the bar nor actual innocence alleged. Further, as stated above, after a thorough review, the Court finds no reason to doubt the veracity of the government witnesses' testimony. See also United States v. Jose Muyet, 994 F. Supp. 550, 559 (S.D.N.Y. 1998) (Leisure, J.). Therefore, petitioner fails the first prong of the Second Circuit's three part test for challenging a conviction based on a government proffer of false testimony: "(1) there was false testimony, (2) the Government knew or should have known that the testimony was false, and (3) there was `any reasonable likelihood that the false testimony could have affected the judgment of the jury.'" United States v. Helmsley, 985 F.2d 1202, 1205-06 (2d Cir. 1993). Further, this claim must be based on "evidence not available by reasonable diligence at trial." Id. at 1206. Petitioner does not even make a cursory attempt to meet this burden. (See Pet. at 14a.)
The murders that petitioner alleges were unrelated and therefore prejudiced his trial (Pet. at 14a), were, in fact, related to the government's proof of a RICO enterprise as evidencing a pattern of illegal activity. (Gov't Br. at 21-22.) Therefore, the testimony regarding these murders caused defendant no constitutional harm. 18 U.S.C. § 1962(c); see United States v. DiNome, 954 F.2d 839, 843 (2d Cir. 1992) (allowing proof of criminal acts even where no defendant directly participated to prove RICO charges against each defendant); Gov't Br. at 21-22.
Petitioner's argument that the government falsely referred to "blue-tipped bullets" in its closing statement when a ballistics report allegedly proves that no such blue-tipped bullets existed is procedurally barred and meritless. This issue was raised and rejected on direct appeal and petitioner claims no intervening change in the law. Muyet, 2000 U.S. App. LEXIS 22881, at *14; Pet'r Supplemental Br. at 31-32; Pet. at 14a-15a. Further, as the government explained, the bullets at issue were, in fact, blue-tipped, though a report did fail to specify the color. (Gov't Br. at 23 (citing Tr. 6794-94, 8105).) Also, petitioner has failed to show the substantial prejudice required to overturn a conviction based on false allegations in a closing argument.United States v. Rosa, 17 F.3d 1531, 1549 (2d Cir. 1994);United States v. Locasicio, 6 F.3d 924, 945 (2d Cir. 1993) (stating that the prosecutorial misconduct alleged by petitioner "must be so severe and significant as to result in the denial of [his] right to a fair trial" to warrant relief); United States v. Rodriguez, 968 F.2d 130, 142 (2d Cir. 1992). The blue-tipped bullets were an insignificant piece of an extremely large puzzle assembled by the jury, ultimately depicting Muyet's guilt beyond a reasonable doubt.
Finally, petitioner's "spy in the defense camp" theory was rejected by this Court during trial when raised by one of Muyet's co-defendants and Muyet raised the issue on appeal where it was rejected. Muyet, 2000 U.S. App. LEXIS 22881, at *14; Pet'r Supplemental Br. at 26; see Pet. at 16a. The claim is thus procedurally barred. On the merits, however, petitioner only refers to this allegation and does not present any evidence or assertions that one acting on behalf of the government "deliberately elicited" statements criminally implicating petitioner. See Massiah v. United States, 377 U.S. 201, 206 (1964); Pet. at 16a. Therefore, the Court refuses to find grounds for relief based on this unsubstantiated and previously rejected theory of a government spy in the defense camp.
F. Alleged Crawford Violation
Petitioner asserts that the admission of two co-defendants' guilty pleas in open court and the prosecution's use of those pleas during summation unconstitutionally prejudiced Muyet's trial. (Pet. at 15a.) The Court interprets this as an alleged violation of petitioner's right to confrontation under the Sixth Amendment as established in Crawford v. Washington. 541 U.S. 36 (2004) (finding the Sixth Amendment bars admission of out-of-court testimonial statements from non-testifying declarants against a criminal defendant unless the declarant is unavailable and defendant had a prior opportunity to subject declarant to cross examination). The government concedes that the admission of redacted portions of co-defendants Julio Matias and William Delvalle's plea allocutions constituted error, but claimsCrawford should not be applied retroactively to petitioner's collateral attack on his conviction. (Gov't Br. at 26.) Further, the government contends the error was harmless because the evidence against petitioner was overwhelming, not including the allocutions, and the Court gave the jury a limiting instruction. (Gov't Br. at 26.)
The retroactive application of newly minted constitutional rights is governed by the Supreme Court's ruling in Teague v. Lane, 489 U.S. 288 (1989). In Teague, the Court held that new constitutional rules of criminal procedure are not to be retroactively applied to a defendant's collateral attack on his sentence. See id. at 310. The Supreme Court has created two exceptions: (1) where the new rule bars attachment of criminal liability to a type of conduct or class of defendants; and (2) "new watershed rules of criminal procedure that are necessary to the fundamental fairness of the criminal proceeding." Bilzerian v. United States, 127 F.3d 237, 241 (2d Cir. 1997) (quoting Sawyer v. Smith, 497 U.S. 227, 241-42 (1990)). The first exception is clearly irrelevant here. The second exception has been interpreted extremely narrowly. See Tyler v. Cain, 533 U.S. 656, 666-67 (2001). In the fifteen years since Teague, the Supreme Court has considered the issue eleven times and has never deemed a new rule to be a watershed allowing retroactive application to cases that became final prior to the creation of the new rule. See O'Dell v. Netherland, 521 U.S. 151, 167 (1997); Lambrix v. Singletary, 520 U.S. 518, 539-40 (1997);Gray v. Netherland, 518 U.S. 152, 170 (1996); Goeke v. Branch, 514 U.S. 115 (1995) (per curiam); Caspari v. Bohlen, 510 U.S. 383, 396 (1994); Gilmore v. Taylor, 508 U.S. 333, 345-46 (1993); Graham v. Collins, 506 U.S. 461, 478 (1993);Sawyer, 497 U.S. at 241-45; Saffle v. Parks, 494 U.S. 484, 495 (1990); Butler v. McKellar, 494 U.S. 407, 416 (1990);Teague, 489 U.S. at 314-15; see also Gov't Br. at 28 n. 5 (citing each case and explaining the holdings). Muyet's sentence became final for retroactive application purposes when the Second Circuit affirmed his conviction on September 8, 2000, whileCrawford was decided on March 8, 2003.
The Second Circuit has not decided whether Crawford should apply retroactively to collateral attacks. However, the Second Circuit has applied Crawford to cases on direct appeal from the trial court. In United States v. McClain, 377 F.3d 219 (2d Cir. 2004) (Sotomayor, J.), the court found the trial court's admission of a co-conspirator's plea allocutions constituted error but found it was harmless because the government showed "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Id. at 222 (quotingUnited States v. Casamento, 887 F.2d 1141, 1179 (2d Cir. 1989)). The government met this burden because there was "ample evidence" of defendants' guilt and "the jury was instructed that it could consider the plea allocutions only as evidence that the conspiracy existed." Id. at 223. Here, too, there was ample evidence of Muyet's guilt. Further, the Court gave a limiting instruction to the jury, though not identical to the instruction in McClain, wherein this Court told the jury they were not to infer Muyet's guilt from the plea allocutions of Matias and Delvalle specifically, and they were to consider each defendant's guilt separately in their deliberations. (Gov't Br. at 25 (citing Tr. 5691-92).) The Court therefore finds that, given the Teague progeny of cases, Crawford is inapplicable to petitioner because it did not create a watershed rule to be applied retroactively on collateral attack. However, even ifCrawford were applicable to the case at hand, the Court finds that admission of the plea allocution did not constitute reversible error given the overwhelming evidence of Muyet's guilt presented over the six month trial and this Court's limiting instruction.
CONCLUSION
For the reasons set forth above, petitioner's motion to vacate, set aside or correct his sentence pursuant to 18 U.S.C. § 2255 is hereby DENIED.
SO ORDERED.