Opinion
Nos. 01 Civ. 6230 (JFK), 96 Cr. 126 (JFK).
August 26, 2004
David Rosario, Pro Se, United States Penitentiary, Lompoc, California, for Respondent.
David N. Kelley, United States Attorney Southern District of New York, Brian R. Michael, Assistant United States Attorney, for the Government.
ORDER
Before the Court is the Petitioner David Rosario's ("Rosario") motion pursuant to 28 U.S.C. § 2255 ("§ 2255"). Rosario seeks: (1) to vacate his sentence; (2) to be resentenced; (3) a new trial; and (4) more discovery.
Background
On December 18, 1996 a grand jury returned an indictment against David Rosario and 19 co-defendants on 116 counts, which was subsequently unsealed on January 21, 1997. The other defendants who were before the Court pleaded guilty and therefore Rosario was tried alone.
At the completion of the trial, a redacted version of the indictment was submitted to the jury to assist it with its deliberations. The redacted version included only the crimes and predicate acts on which Rosario was tried, and excluded the charges against his co-defendants. The operative five counts and four racketeering acts were renumbered consecutively. On January 15, 1998, after two weeks of trial Rosario was found guilty on all five counts.
Count One charged Rosario with participating in the conduct of the affairs of a racketeering enterprise — the Valasquez Organization — in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962 (c). Count One detailed four racketeering acts committed by Rosario, involving murder, attempted murder and conspiracy to commit murder. Count Two charged Rosario with conspiring to conduct and participate in the affairs of the racketeering enterprise described in Count One, in violation of 18 U.S.C. § 1962(d). Counts Three and Four charged Rosario with conspiracy to murder and murder respectively, in connection with the murder of Juan Tavares — in violation of the Violent crimes in Aid of Racketeering ("VICAR") statute, specifically 18 U.S.C. §§ 1959(a)(5), and 1959(a)(1) and (2). Count Five charged Rosario with using and carrying a firearm during and in relation to the murder of Juan Tavares, in violation of 18 U.S.C. §§ 924(c) and (2).
By letter dated April 20, 1998, Rosario moved pursuant to Rule 29 to set aside the jury's guilty verdict and for entry of a judgment of acquittal. In the alternative, he moved pursuant to Rule 33 for a new trial based on alleged errors in evidentiary rulings by the Court during trial and elated to the legal charge given to the jury. On June 12, 1998, this Court denied Rosario's motions, and sentenced Rosario to life imprisonment and a consecutive term of five years' imprisonment, to be followed by a five-year term of supervised release, and a mandatory $250 special assessment.
Rosario filed a Notice of Appeal in June 1998. On appeal, Rosario argued that: (1) there was insufficient evidence to support his convictions; (2) the jury made inconsistent findings; (3) the Government "bribed" the cooperators, in violation of 18 U.S.C. 201(c)(2); (4) the district court improperly admitted the guilty plea allocutions of co-defendants Ismael Delgado and Juan Rosario; (5) the district court improperly admitted documents obtained from an unlawful search; (6) the district court should not have retroactively applied Salinas v. United States, 522 U.S. 52 (1997); and (7) the district court erred by giving a charge under Pinkerton v. United States, 328 U.S. 640 (1946). In a Summary order dated February 22, 1999, the Court of Appeals rejected each of Rosario's contentions, and affirmed the judgment.
Rosario filed a § 2255 motion on July 11, 2001.Discussion
In Rosario's petition, he requests that this Court vacate his sentence or, alternatively, that he either be resentenced or granted a new trial on the following grounds: (1) the indictment was deficient in that it did not contain the elements for murder under New York State law and did not contain the penalty being sought (Pet. at 3); (2) the Government "failed to proffer, prove and obtain a beyond a reasonable doubt verdict as to the specific penalty sought" (Pet. at 3); (3) this Court usurped the jury's fact finding function (Pet. at 4); and (4) his attorney was ineffective because she failed to raise these issues on appeal (Pet. at 4). Rosario bases the first three claims upon the Supreme Court's decision in Apprendi v. New Jersey, 503 U.S. 466 (2000). Additionally, Rosario has filed a motion for discovery and requests that the court compel his former attorney to turn over the case file to him.
I. Petitioner's Motion is Untimely
This is the first § 2255 motion that petitioner has filed. The motion is governed by the time restrictions set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA provides:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the late[r] of [either] — (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2255; See Antiterrorism and Effective Death Penalty Act of 1966, Pub.L. No. 104-132, § 105, 110 Stat. 1214, 1220, codified at 28 U.S.C. § 2255.
For AEDPA purposes, "a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction."Clay v. United States, 537 U.S. 522, 525-26 (2003); see Coleman v. United States, 329 F.3d 77, 81 (2d Cir. 2003). The time for filing a petition for certiorari expires 90 days after entry of the Court of Appeals's judgment. Clay, 537 U.S. at 525-26, see Sup. Ct. R. 13(1).
The Second Circuit affirmed Rosario's conviction on February 22, 1999. It became final on May 23, 1999, after Rosario did not file a petition for certiorari with the Supreme Court within the ninety-day period following the conviction. Rosario filed the instant petition on June 13, 2001, approximately one year and 21 days after the one year statute of limitations imposed by AEDPA ended. Thus Rosario's claim is untimely.
Petitioner does not claim that government action caused an impediment that prevented him from making a § 2255 motion or that new facts were discovered pertaining to his case. See 28 U.S.C. § 2255. Rather, Rosario bases his claim on the provision within § 2255 stating that a petition is timely if it is filed within one year of "the date on which the right asserted [in the petition] was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Id. This provision does not apply to the present case, however, because, as discussed infra, Apprendi does not apply retroactively to cases on collateral review. Therefore, Rosario's petition is not saved from being time-barred under AEDPA. II. Petitioner's Reliance on Apprendi is misplaced
Petitioner seeks to have his sentence vacated based on the Supreme Court's decision in the Apprendi case. Rosario argues that (1) the indictment was deficient, Pet. at 3; (2) the Government "failed to proffer, prove and obtain a beyond a reasonable doubt verdict as to the specific penalty sought," Pet. at 3; and (3) this court usurped the jury's fact finding function. Pet. at 4. Each of these arguments stem form Rosario's reading of Apprendi.
Contrary to petitioner's assertions, Apprendi does not apply retroactively to his case. The Second Circuit has joined several other circuits in holding that "Apprendi is a new rule that does not apply retroactively to initial section 2255 motions for habeas relief." Coleman, 329 F.3d at 82. Rosario was convicted in 1998; Apprendi was not decided until 2000. Rosario's first, second and third claims, which directly allege that his sentence was unconstitutionally imposed in light of Apprendi, are, therefore, denied. III. Petitioner's Claims Fail on the Merits
Even if Rosario's remaining claims could stand independent ofApprendi and were not untimely, they would still fail on the merits.
A collateral attack on a final judgment brought pursuant to 28 U.S.C. § 2255 is generally available "only for a constitutional error, a lack of jurisdiction in a sentencing court, or an error of law or fact that constitutes a `fundamental defect which inherently results in a complete miscarriage of justice.'"United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quotingHill v. United States, 368 U.S. 424, 428 (1962). "[T]he scope of review on a § 2255 motion should be `narrowly limited' in order to preserve the finality of criminal sentences and to effect the efficient allocation of judicial resources." Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (citations omitted).
"[A] § 2255 motion may not relitigate issues that were raised and considered on direct appeal." United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997). Similarly, "[a] motion under § 2255 is not a substitute for an appeal." United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998); see United States v. Frady, 456 U.S. 152, 164 (1982) ("[A] collateral challenge may not do service for an appeal"). The Second Circuit has held that "failure to raise a claim on direct appeal is itself a default of normal appellate procedure, which a defendant can overcome only by showing cause and prejudice."Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992). The "interests of finality, accuracy, integrity of prior proceedings, and judicial economy" justify a district court's denial of a § 2255 motion for the petitioner's failure to raise "the underlying constitutional claim on direct appeal following his conviction."Carmona v. United States Bureau of Prisons, 243 F.3d 629, 633 (2d Cir. 2001).
A. The Sufficiency of the Murder Charge in the Indictment
Assuming arguendo that Rosario had based his claim on something other than Apprendi, and that this claim, like all of his claims, was not time-barred, this claim would still fail. Rosario argues that the indictment was defective because it did not contain the penalty being sought and failed to state the elements of the state law crime of murder. First, Rosario has raised an issue that he failed to raise on direct appeal. As such, he is procedurally barred from doing so in this motion. See Campino, 968 F.2d at 190 (2d Cir. 1992). Second, "It has been uniformly held by this court that the sufficiency of an indictment cannot be reviewed in habeas corpus proceedings." Knewel v. Egan, 268 U.S. 442, 446 (1925); see United States v. Cotton, 122 S.Ct. 1781, 1783 (2002) (holding that failure to allege that the indictment was defective at trial waives a right to challenge the indictment at a latter stage in the proceedings); c.f. Parrado v. United States, 207 F. Supp. 230, 235 (2002) (holding that petitioner's "failure to allege the Information was defective at the time of his trial waives any right that he had to challenge the Information" in post-trial proceedings). Thus, separate and apart from the deficiencies of basing the claim on Apprendi, the claim must be denied as an impermissible collateral appeal that was not raised directly.
B. Insufficient Evidence to Support Convictions
Likewise, Rosario's claim that the evidence offered against him was insufficient to support his conviction also fails. Petitioner's argument that the Government "failed to proffer, prove and obtain a beyond a reasonable doubt verdict as to the specific penalty sought" is identical in essence to petitioner's earlier claim, which was brought on direct appeal, that there was insufficient evidence to support his convictions. "[A] § 2255 motion may not relitigate issues that were raised and considered on direct appeal." United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997). Therefore, Rosario's § 2255 claim that there was insufficiency of evidence to support his "beyond a reasonable doubt verdict" is procedurally barred.
C. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, a petitioner must (1) show that counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms," and (2) "affirmatively prove prejudice" by establishing that there is a "reasonable probability" that, but for counsel's error, the outcome would have been different.Strickland v. Washington, 466 U.S. 668, 687-88, 693-694, (1984). "In assessing the first element, the court `must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) (quoting Strickland, 466 U.S. at 689).
A petitioner can prove ineffective assistance of counsel by proving that counsel failed to pursue "significant and obvious issues." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). However, "failure to make a meritless argument does not rise to the level of ineffective assistance, and strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Kirsh, 54 F.3d at 1071 (citations omitted); see Jones v. Barnes, 463 U.S. 745, 752-754 (1983) (failure by appellate counsel to raise every claim suggested by their clients does not constitute ineffective assistance).
Even if petitioner fails to pass the "cause and prejudice" test, however, he can still gain relief by demonstrating that "a fundamental miscarriage of justice would result from a failure to entertain the claim" by demonstrating that because of a constitutional violation, despite the fact that he is actually innocent, he has been convicted and incarcerated. McClesky v. Zant, 499 U.S. 467, 495 (1991).
Rosario contends that his trial counsel rendered ineffective assistance when she failed to: (1) "contest the prosecution's deficient indictment," Pet. at 25; (2) "contest the prosecution's failure to obtain a beyond a reasonable doubt finding of first degree murder under New York State law," Pet. at 26; and (3) "contest the district court's factual findings, at sentencing, that Rosario committed a first degree murder under Guideline Section 2A1.1 instead of a second degree murder under Guide[line] Section 2.A1.3." Pet. at 26. Because these claims are meritless, counsel's failure to raise these claims does not constitute ineffective assistance of counsel.
Rosario first contends that his trial counsel rendered ineffective assistance when she failed to "contest the prosecution's deficient indictment." Pet. at 25. Petitioner argues that the indictment was defective because it did not contain the penalty being sought and failed to state the elements of the state law crime of murder. Petitioner's claim is without merit as there is no requirement that an indictment contain the penalty being sought. The indictment is a written statement of the essential facts constituting the offense charged". See Fed.R.Crim.P. 3. Additionally, "an indictment is not deficient simply because it fails to recite the precise language of the statute." Mendez v. United States, No. 94CR. 466 (JFK), 2002 WL 1402321, at *9 (S.D.N.Y. June 28, 2002) (quoting United States v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995)).
Petitioner's indictment stated, "David Rosario . . . together with others known and unknown, unlawfully, intentionally and knowingly murdered and aided and abetted the murder of [the victim], in violation of New York State law." Gov. Exh. A at 5. Rosario's indictment attributed to him the elements of second degree murder as under New York Penal Law. New York Penal § 125.25. (1998) ("A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such a person or a third person"). Rosario appears to be confused or mistaken in his claim that he was sentenced as if he was convicted of first degree murder. New York Penal § 125.27 (1998). For the purpose of establishing Rosario's base offense level, the court used the most analogous federal offense to a second degree murder conviction under New York Penal Law, which was first degree murder under federal law. In United States v. Minicone, 960 F.2d 1099, 1109 (2d Cir. 1992), the Second Circuit ruled that the most analogous federal offense to second degree murder under New York Penal Law was first degree murder under 18 U.S.C. § 1111. Thus, Rosario's assertion that he was convicted of New York's first degree murder is factually wrong. His claim that he was convicted of and sentenced pursuant to a crime not set forth in his indictment is, therefore, incorrect. As such, Rosario's indictment was not defective, and his trial counsel's failure to claim that it was is not evidence of ineffective assistance of counsel.
Rosario's second claim, that his counsel failed to "contest the prosecution's failure to obtain a beyond a reasonable doubt finding of first degree murder under New York State law," is similarly without merit. Pet. at 26. Again, Rosario is mistaken in his belief that he was tried and convicted for first degree murder. It would be impossible for counsel to "contest the prosecution's failure to obtain a beyond a reasonable doubt finding of first degree murder" when the defendant she was representing was not charged with first degree murder. Again, counsel's failure to raise a meritless claim is not ineffective assistance of counsel.
Rosario's third claim that his counsel failed to "contest the district court's factual findings, at sentencing, that Rosario committed a first degree murder under Guideline Section 2A1.1 instead of a second degree murder under Guide[line] Section 2.A1.3" is without merit. Pet. at 26. As the petitioner was properly found guilty of New York Penal Law § 125.25 second degree murder, the Court did not make any factual findings. The Court simply sentenced Rosario within the guideline range of the federal murder charge most analogous to that of New York's second degree murder. As already mentioned, Rosario with regard to what he was charged with and convicted of and therefore his claims are incompatible with his case and conviction. Raising this claim would have been pointless
IV. Petitioner's Motion for Discovery
Rule 6 (a) of the Rules Governing § 2255 Proceedings provides that "[a] party may invoke the processes of discovery . . . if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." 28 U.S.C. § 2255. Generally, courts have held that "production need not be ordered in a § 2255 proceeding when the allegations of a prisoner do not establish a ` prima facie case for relief.'" United States v. Franzese, 525 F.2d 27, 32 n. 8 (2d Cir. 1875) (quoting Harris v. Nelson, 394 U.S. 286, 290 (1969)). Rosario has not shown good cause for the requested discovery nor a prima facie case for relief as all of his claims are time barred and would fail on their merits. Because Rosario has failed to establish a prima facie case for relief under § 2255, his motion for discovery is denied.
V. Petitioner's Motion for His Case File
Petitioner's motion to compel his attorney, Lynne Stewart, to turn over the case file to him is granted.
VI. Conclusion
For the reasons set forth above, Rosario's motion pursuant to 28 U.S.C. § 2255 to vacate, be resentenced or granted a new trial is denied. Rosario's motion for discovery is denied. Rosario's motion to compel his attorney to produce his case file is granted. This case is closed and the Court directs the clerk of the court to remove it case from the Court's active docket.
SO ORDERED.