Opinion
No. 00 Cv. 7287, 94 Cr. 219
March 15, 2001
OPINION AND ORDER
Petitioner Oscar Polo ("Petitioner") filed a petition pro se for post-conviction relief pursuant to 28 U.S.C. § 2255 and requested a hearing on the petition. For the following reasons, the petition is denied.
BACKGROUND
On March 23, 1995, Petitioner was convicted after a trial by jury upon a charge of conspiring to distribute and possessing with intent to distribute heroin, in violation of Title 21, United States Code, Section 846. On October 15, 1996, Petitioner was sentenced to seventy-eight months of imprisonment, to be followed by five years of supervised release.
21 U.S.C. § 846 provides that "Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy."
A. Petitioner's Post-Trial Motions and Direct Appeal
Following his conviction, Petitioner filed numerous post-trial motions. On October 16, 1995, Petitioner moved for a new trial pursuant to Federal Rule of Criminal Procedure ("Fed.R.Crim.P.") 33, alleging ineffective assistance of counsel in violation of the due process guaranteed by the Sixth Amendment to the United States Constitution. See United States v. Polo, No. 94 Cr. 219 (RPP), 1995 WL 733652 (S.D.N.Y. Dec. 12, 1995). Although the motion was filed untimely, the Court nevertheless considered it on the merits. Id. at *1. In that appeal, Petitioner claimed that his trial counsel did not meet the objective standard of reasonableness required by Strickland v. Washington, 466 U.S. 668 (1984), in that his trial counsel failed (1) to present evidence of Polo's numerous activities as the broker for the sale of jewelry, including loose diamonds, as favors to the customer and the jeweler; (2) to present evidence of a knee injury suffered by Polo immediately prior to the alleged delivery of heroin that prevented him from walking without crutches; (3) to elicit evidence of his good character and reputation, and (4) to object to voluminous and detailed trial testimony concerning the activities of the drug organization over the span of many years despite the fact Polo was only alleged to have participated in April 1989. Id. After consideration of each of Petitioner's grounds for his claim, by Opinion dated December 12, 1995, Petitioner's motion was denied for failure to establish ineffective assistance of counsel under the Sixth Amendment. Id. at *3.
On May 30, 1996, Petitioner moved for reconsideration of the December 12, 1995, Opinion and Order. In an Opinion dated July 2, 1996, the motion was denied. See United States v. Polo, No. 94 Cr. 219 (RPP), 1996 WL 374158 (S.D.N.Y. July 2, 1996). In the Opinion, the Court stated that, "[t]he motion for reconsideration is denied for the reasons stated in its earlier opinion," and that trial counsel Garcia's "close identification with the defendant and his family evidently caused him to devalue the quality of his services in his letter to the Court dated March 13, 1996."Id. at *1.
On April 13, 1998, Petitioner filed a second motion for a new trial pursuant to Fed.R.Crim.P. 33 on the ground of newly discovered evidence. In an Opinion dated September 30, 1998, this Court denied the motion, noting that the new evidence was "a letter dated February 27, 1997 from the Disciplinary Board of the Supreme Court of Pennsylvania stating that one of Polo's trial attorneys was placed on inactive status on December 28, 1995 for failure to comply with continuing legal education requirements, and was suspended from the practice of law in Pennsylvania for a period of one year and one day beginning on July 26, 1996." See United States v. Polo, No. 94 Cr. 219 (RPP), 1998 WL 691221 at *1 (S.D.N.Y. Sept. 30, 1998).
Petitioner then filed an appeal from his conviction based on three grounds, one of which was ineffective assistance of counsel. See United States v. Martinez, 189 F.3d 462, 1999 WL 710110 (2d Cir. Sept. 2, 1999) (unpublished opinion). The Second Circuit denied Petitioner's appeal, stating that "appellant argues that he was denied effective assistance of counsel at trial in violation of the Sixth Amendment. We reject this claim for substantially the reasons stated by the district court in its three written opinions." Id. at *2.
B. Petitioner's Present Motion
On September 27, 2000, Petitioner filed a petition pro se for post-conviction relief pursuant to 28 U.S.C. § 2255 and requested a hearing on his petition. Petitioner again claims ineffective assistance of counsel based upon the following grounds: (1) his counsel Garcia was inexperienced and ineffective, in support of which Petitioner refers the Court to the letter from Garcia dated March 13, 1996; (2) newly discovered evidence that his counsel Edwards was placed on inactive status by the Disciplinary Board of the Supreme Court of the State of Pennsylvania on December 28, 1995, and that Edwards was later suspended from the practice of law on July 26, 1996; (3) that Edwards was not admitted to practice in the Southern District of New York and was not sufficiently familiar with Petitioner's case to represent him effectively; (4) counsel's failure to cross-examine witnesses or to produce witnesses who were willing to testify for Petitioner at trial; (5) counsel's failure to investigate and research the evidence against Petitioner; and (6) counsel's failure to present evidence at trial regarding Petitioner's knee injury at the time of the offense charged. (See Petition for Post-Conviction Relief, dated Sept. 20, 2000 ("Petition"), at 4-6.)
On October 3, 2000, the Court ordered the United States Attorney for the Southern District of New York to file an answer or other pleading to the petition, along with relevant trial and post-conviction records and transcripts, no later than October 31, 2000, and provided for service of the Petition. On October 26, 2000, and November 8, 2000, the Government requested, and the Court granted, extensions to file its response due to delay in retrieving the case file for Petitioner's direct appeal from the Second Circuit. By letter dated November 27, 2000, the Government opposed Petitioner's motion, arguing that Petitioner's claims have been addressed by this Court during multiple post-trial motions, and that Petitioner also raised this claim in his direct appeal, and that accordingly, Petitioner's claim was procedurally barred. (See Government's Letter dated Nov. 27, 2000 ("Gov. Letter"), at 5-7.)
On November 27, 2000, Petitioner submitted a declaration in support of his motion. On January 19, 2001, Petitioner submitted a memorandum of law in further support of his motion.
DISCUSSION
Title 28, United States Code, Section 2255 provides in pertinent part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. . . . An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.28 U.S.C. § 2255. "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) (holding that petitioner had already argued on appeal that the district court should have granted his motion to withdraw his guilty plea, and therefore declining to address the merits of the claim). "[T]he fact that a petitioner offers a new factual premise in support of a claim already litigated does not mean the petitioner is offering a new legal contention." Young v. United States, No. 98 Civ. 7069 (JGK), 1999 WL 820563 at *2 (S.D.N.Y. Oct. 13, 1999). "[T]here may be any of a number of different factual contentions that a prisoner might make that would nevertheless invoke but a single legal `ground.'" Williams v. United States, 731 F.2d 138, 141 (2d Cir. 1984). Here, as in Petitioner's prior motions, Petitioner claims ineffective assistance of counsel in violation of the Sixth Amendment. Petitioner's contentions have all been previously considered and addressed by prior opinions of this Court. Additionally, Petitioner's claim of ineffective assistance of counsel was raised and considered in his direct appeal to the Second Circuit Court of Appeals. (See Gov. Letter, Ex. A at 15-21 (Brief and Appendix for Defendant-Appellant)); see also United States v. Martinez, 1999 WL 710110 at *2.
First, Petitioner claims ineffective assistance of counsel because his counsel Garcia was inexperienced and ineffective, in support of which Petitioner refers the Court to a letter from Garcia dated March 13, 1996. (Petition at 3, Petitioner's Ex. A.) However, this letter formed the basis for Petitioner's motion for reconsideration, which was rejected in the July 2, 1996, Opinion. See United States v. Polo, 1996 WL 374158 at *1.
Second, Petitioner relies on what he claims is newly discovered evidence in the form of a letter dated February 27, 1997, from the Disciplinary Board of the Supreme Court of the State of Pennsylvania stating that Petitioner's counsel Edwards was placed on inactive status by on December 28, 1995, and that Edwards was later suspended from the practice of law on July 26, 1996. (Petition at 4, Petitioner's Ex. B.) However, this letter from the Disciplinary Board of the Supreme Court of the State of Pennsylvania was the newly discovered evidence upon which Petitioner's second Rule 33 motion was based. See United States v. Polo, 1998 WL 691221 at *1. This ground was considered and rejected in the Court's September 30, 1998, Opinion. Id. Therefore, the February 27, 1997, letter is not newly discovered evidence.
Third, Petitioner claims that Edwards was not admitted to practice in the Southern District of New York and was not sufficiently familiar with Petitioner's case to represent him effectively. However, Edwards was admitted pro hac vice to the Southern District of New York on March 16, 1995. (See Gov. Letter, Ex. A (Criminal Docket for Case #94 Cr. 219), at 10.) Petitioner's claim that Edwards was not sufficiently familiar with his case was addressed in the July 2, 1996, Opinion. See United States v. Polo, 1996 WL 374158 at *1.
Petitioner's remaining claims have all been addressed by the prior opinions of the Court as follows: (1) Petitioner's claim that his counsel failed to cross-examine witnesses or to produce witnesses who were willing to testify for Petitioner at trial was addressed in the 1995, 1996 and 1998 Opinions (see United States v. Polo, 1995 WL 733652 at *2,United States v. Polo, 1996 WL., 374158 at *1, United States v. Polo, 1998 WL 691221 at *2); (2) Petitioner's general claim that his counsel failed to investigate and research the evidence against Petitioner was addressed in the 1996 Opinion (see United States v. Polo, 1996 WL 374158 at *1); and (3) Petitioner's claim that his counsel failed to present evidence at trial regarding Petitioner's knee injury at the time of the offense charged was addressed in the 1995 Opinion (see United States v. Polo, 1995 WL 733652 at *2).
Petitioner also makes reference to, but does not make a claim for relief based upon, the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). The Supreme Court held in Apprendi that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."Apprendi v. New Jersey, 120 S.Ct. at 2362-63. As noted above, Petitioner was convicted of violation of 21 U.S.C. § 846, for conspiring to distribute and possessing with intent to distribute heroin. Pursuant to 28 U.S.C. § 841(b)(1)(C), the prescribed statutory maximum sentence for a violation involving heroin is twenty years of imprisonment. Petitioner was sentenced to seventy-eight months of imprisonment, which is less than the prescribed statutory maximum of twenty years of imprisonment for the offense of which Petitioner was convicted. See United States v. Polo, Judgment, dated Oct. 21, 1996, at 6. Since Petitioner was not sentenced to more than the prescribed statutory maximum, Apprendi is not relevant to Petitioner's case.
28 U.S.C. § 841(b)(1)(C) provides in pertinent part: "In the case of a controlled substance in schedule I or II . . . except as provided in subparagraphs (A), (B), and (D), such person shall be sentenced to a term of imprisonment of not more than 20 years."
Since Petitioner seeks in this petition pursuant to 28 U.S.C. § 2255 to relitigate the same issue of ineffective assistance of counsel that Petitioner has previously raised and which was addressed in the three prior opinions of this Court, and which Petitioner also raised upon direct appeal to the Second Circuit, Petitioner's claim is procedurally barred.See United States v. Perez, 129 F.3d at 260.
CONCLUSION
For the foregoing reasons, the petition is hereby denied.