Opinion
05 Civ. 1853 (DLC).
October 10, 2006
Marshall A. Mintz Mintz Oppenheim LLP New York, NY, For the Petitioner.
Joshua Klein Assistant United States Attorney New York, NY, For the Respondent.
OPINION ORDER
On December 9, 2004, Oscar Monzon ("Monzon") filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, asserting that the four attorneys who he had retained and who represented him at various points in his prosecution each failed to provide him with effective assistance of counsel. For the following reasons, the petition is denied in part. Decision is reserved on two issues.
As discussed infra, the petition was dated December 9, 2004. It was received by the Pro Se Office December 17.
Background
Monzon was indicted on April 20, 2000, in two counts with conspiring to distribute crack cocaine and cocaine, and to extort narcotics traffickers, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 1951, respectively. A third count charged the substantive crime of extortion, also in violation of 18 U.S.C. § 1951. On the eve of trial, the Government filed a prior felony offender information. The Honorable Robert J. Ward presided over the trial, which ran from October 30 to November 3, 2000.The Government's evidence at trial included testimony from two accomplices, Pedro Quezada ("Quezada") and Adria Rodriguez ("Rodriguez"), who are husband and wife, wiretap tapes, and documents. The evidence established that beginning in 1989, Monzon had controlled a drug spot at 13th Street and First Avenue in Manhattan, selling among other things, a brand of crack cocaine named Rambo. In 1995, Monzon allowed Jose Luis, a cousin of Quezada, to sell cocaine and crack that Monzon supplied in return for paying weekly rent. Quezada worked as a lookout at the spot during this period. In early 1996, Jose Luis stole a half-kilogram of cocaine from Monzon and then fled to the Dominican Republic. Monzon threatened to hurt Luis's father in an effort to retrieve the cocaine. Because Monzon had also protected his spot by physically attacking a worker from a rival drug organization, and carried a gun when at the spot, Monzon had a reputation for violence. In 1996, Monzon allowed Fernando Correa and Quezada to run to spot so long as Quezada paid Monzon $2,000 per week as rent. Quezada continued to sell drugs supplied by Monzon, including Rambo-branded crack, from the spot.
After Monzon moved to Florida later in 1996, Quezada made his rent payments to Monzon's sister Mercedes Monzon. In July 1997, Monzon was arrested in Miami on narcotics charges and incarcerated. Thereafter his wife Judith Monzon, who was an active participant in his drug business, traveled to New York to collect the rent and deliver messages from Monzon, including demands for continued rent payments. Quezada and Rodriguez fell behind in their rent payments, and Monzon sent his brother and nephew to collect the rent payments. After the nephew threatened Quezada with a bat, Quezada and Rodriguez agreed to continue their payments. Rodriguez called Judith Monzon to make the arrangements for the payments.
The defense called Elena Perez, a neighbor of Judith Monzon's in Florida, to suggest that Judith Monzon went out with a man during Monzon's incarceration in Florida. Monzon was convicted on all counts, and sentenced by Judge Ward on November 28, 2001, principally to life imprisonment on the narcotics count and concurrent terms of twenty years' imprisonment on the two extortion counts.
On appeal, Monzon challenged the sufficiency of the evidence, the charge to the jury and special verdict form. He also argued that his trial counsel's performance was ineffective, and that Judge Ward should have departed downward on the ground of extraordinary family circumstances. In a summary order of June 25, 2003, the Court of Appeals affirmed the conviction. As for the ineffective assistance claims, which concerned his counsel's (a) stipulation to the existence of a narcotics conspiracy to avoid the introduction into evidence of six plea allocutions and (b) cross-examination of Rodriguez, the Court of Appeals found that the decision to stipulate was "well within the wide range of reasonable professional assistance" and that Monzon had not been prejudiced because the "alternative evidence" of the existence of the conspiracy was "overwhelming"; and that the cross-examination had been vigorous. United States v. Rodriguez, 68 Fed. Appx. 237, 243 (2d Cir. June 25, 2003). Monzon's petition for a writ of certiorari was denied on December 15, 2003.
The Pro Se Office of this district received a pro se petition from Monzon, which was dated December 9, on December 17, 2004. The petition was filed on February 4, 2005. The Government opposed the petition in a submission of June 16. Monzon filed a voluminous reply in August.
On September 23, 2005, petitioner's counsel filed an appearance, and Monzon's pro se reply was stricken to allow counsel to respond to the issues on behalf of Monzon. On January 23, 2006, counsel for Monzon submitted the reply brief in support of Monzon's petition. While the petition had raised a host of issues, counsel's reply focused on four ineffective assistance claims and an attack on the sentence as violating United States v. Booker, 543 U.S. 220 (2005), and Apprendi v. New Jersey, 530 U.S. 466 (2000). The ineffective assistance claims are trial counsel's 1) failure to conduct a reasonable investigation, 2) stipulation to the existence of a conspiracy, and 3) failure to pursue plea negotiations; and appellate counsel's decision regarding the issues to pursue on appeal.
In July 2006, Monzon asked to proceed pro se. His request was not served on the Government and was returned to him to permit him to make service. This Opinion considers the pro se petition and the reply filed by Monzon's attorney.
Discussion
Before discussing Monzon's claims, it is necessary to address the Government's contention that the petition is time-barred. The petition was received in this district two days after the one year AEDPA filing deadline. Because of the prison mail box rule, however, the petition is presumed mailed when "a prisoner delivers it to prison authorities for forwarding to the district court." Fernandez v. Artuz, 402 F.3d 111, 113 (2d Cir. 2005) (citing Houston v. Lack, 487 U.S. 266, 270 (1988)). The petition is therefore timely.
Many of the claims presented by Monzon in his petition can be quickly denied. To the extent that Monzon's petition raises issues that were litigated on direct appeal, they must be dismissed. United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001). Similarly, issues that could have been raised on appeal but were not are procedurally barred unless Monzon can demonstrate either cause for failing to raise the issue and prejudice resulting therefrom, or actual innocence. DiSimone v. Phillips, 461 F.3d 181, 190-91 (2d Cir. 2006) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)).
Several issues raised in this petition were raised on appeal, and are therefore barred. They include Monzon's claims that (1) his trial counsel rendered ineffective assistance of counsel by stipulating to the existence of a drug conspiracy and (2) by inadequate cross-examination of Adria Rodriguez, (3) there was insufficient evidence to establish the reasonable fear of physical or economic harm necessary to prove extortion, (4) no rational jury could have found him guilty of a narcotics conspiracy because no drugs were introduced at trial, (5) the trial court erred in its instructions regarding the objects of the narcotics conspiracy and the law concerning overt acts, (6) the verdict form was deficient in inquiring as to the quantity of crack but not cocaine, and (7) the district court mistakenly thought that he would be eligible for parole, but for which error it might have looked more favorably on his application for downward departure. See Rodriguez, 68 Fed. Appx. at 240-43.
As noted, through the reply memorandum submitted by Monzon's counsel, Monzon emphasizes four claims of ineffective assistance by Monzon's trial and appellate attorneys. Claims of ineffective assistance of counsel may be brought in a collateral proceeding. Massaro v. United States, 538 U.S. 500, 504 (2003). "[I]n order to prevail on an ineffective-assistance-of-counsel claim, a defendant must show (1) that his attorney's performance fell below an objective standard of reasonableness, and (2) that as a result he suffered prejudice." United States v. Jones, 455 F.3d 134, 151 (2d Cir. 2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Monzon's attorney recognizes that the claim that Monzon's trial counsel was ineffective when he stipulated to the existence of a drug conspiracy is foreclosed because it was raised and rejected on Monzon's direct appeal.
The performance inquiry examines the reasonableness of trial counsel's actions under "all the circumstances," Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) (citing Strickland, 466 U.S. at 688), and from the perspective of trial counsel at the time, id. (citing Rompilla v. Beard, 545 U.S. 374, 389 (2005); Strickland, 466 U.S. at 689). Counsel is "strongly presumed" to have exercised reasonable judgment in all significant decisions. Id. (citing Strickland, 466 U.S. at 690). Every effort should be made "to eliminate the distorting effects of hindsight" from the evaluation of performance undertaken pursuant to a habeas petition. Id. (citingRompilla, 545 U.S. at 389).
Prejudice forms the second half of an ineffective assistance claim. The defendant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Lynn v. Bliden, 443 F.3d 238, 247 (2d Cir. 2006) (citing Strickland, 466 U.S. at 688, 694). The habeas petitioner bears the burden of establishing both deficient performance and prejudice. See Greiner, 417 F.3d at 319.
1. Failure to Interview and Subpoena Witnesses for Trial
Monzon asserts that during his trial he repeatedly asked his trial counsel to interview Fernando Correa ("Correa") and David Quianes ("Quianes"), and after trial asked him to interview Luis Febres ("Febres"). He asserts that the two accomplice witnesses testified that Correa was Monzon's nephew and someone who acted as an enforcer for him. He also represents that these trial witnesses accused Monzon of kidnaping Febres, and asserted that Quianes was "involved" in "altercations at Monzon's request."
An examination of this trial testimony is hampered by counsel's failure to include transcript citations.
Correa and Quianes have submitted affidavits in support of Monzon's petition. Correa admits confronting Quezada in a dispute over the drug spot but denies that the dispute was connected to Monzon. In his November 25, 2003 affidavit, Correa, who resides in the Dominican Republic, asserts that in 1995 he was Quezada's partner at the drug spot. After Correa was arrested in 1995, Quezada did not comply with their partnership agreement and replaced Correa with a different partner. As a result, when he got out of jail, Correa confronted Quezada. Correa asserts, however, that he is not related to Monzon or Monzon's wife and was not acting on instructions from Monzon or Monzon's relatives when he confronted Quezada. In a September 20, 2003 affidavit, Quianes, who is incarcerated in a federal prison, asserts that he knew Monzon but never had any dispute or altercation with any member or leader of a drug organization "in union or without" Monzon.
Monzon also asked his attorney to subpoena employees from the DeSoto Correctional facility in Florida, where he was incarcerated from 1998 to 1999, in order to establish that they were monitoring his communications at that time and had no evidence that he was engaged in a narcotics conspiracy while under their custody. Monzon asserts that the failure to subpoena these witnesses also constitutes ineffective assistance of counsel.
Defense counsel has a duty to investigate, which "requires counsel to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."Greiner, 417 F.3d at 320-21 (citing Strickland, 466 U.S. at 691). "It does not, however, compel defense counsel to investigate comprehensively every lead or possible defense."Id. at 321. Where there is "reason to believe investigations would be fruitless or even harmful," the failure to conduct the investigation may not be challenged as unreasonable. Id. (citing Strickland, 466 U.S. at 691).
A failure to investigate claim may in fact be more properly characterized as a claim that a particular witness should have been called to testify at trial. Id. at 322. "The decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial." United States v. Smith, 198 F.3d 377, 386 (2d Cir. 1999) (citation omitted). The reasonableness of such a tactical decision is judged "in terms of the adequacy of the investigations supporting it." Gersten v. Senkowski, 426 F.3d 588, 609 (2d Cir. 2005) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003)). "Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and even strategic choices made after less than complete investigation do not amount to ineffective assistance — so long as the known facts made it reasonable to believe that further investigation was unnecessary." Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (citing Strickland, 466 U.S. at 690-91). On the other hand, an attorney's failure "to make conscious, reasonably informed decisions for the benefit of the criminal defendant may at times be sufficient to overcome the presumption of effectiveness." Greiner, 417 F.3d at 325.
Because these issues were not clearly presented until the submission of petitioner's reply brief, the Government has not had an opportunity to respond. As a result, a scheduling order issued with today's decision will allow for further briefing and if appropriate a hearing on this claim.
2. Failure to Accept Plea Offer
Monzon next asserts that his trial counsel failed to follow his instruction to accept a plea offer. The Government contends that this cannot amount to ineffective assistance of counsel since Monzon never indicated a desire to enter a plea, but instead instructed his attorney to continue to negotiate for a minimal role adjustment.
Monzon asserts that the Government had offered a plea agreement with a guidelines stipulation of an offense level of 29 and a criminal history category of IV, with a range of 121 to 151 months' imprisonment. Monzon's attorney is alleged to have informed Monzon that he would seek a role adjustment, without informing Monzon that there was a ten year mandatory minimum term of imprisonment, making negotiations over a role adjustment pointless. Monzon also asserts that he informed his attorney "to accept the offer immediately." After some months, a new AUSA was assigned, a superceding indictment was filed, and the plea offer was withdrawn. At that point, the Government offered Monzon a new agreement with a guidelines range of 235 to 293 months. Trial counsel informed Monzon that if he were convicted at trial, his maximum sentence would be 30 years. Based on that analysis, Monzon concluded that he had "nothing to lose" and proceeded to trial.
"Defense counsel have a constitutional duty to give their clients professional advice on the crucial decision of whether to accept a plea offer from the government," and "must always communicate to the defendant the terms of any plea bargain offered by the prosecution." Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003) (citation omitted). "[A] significant sentencing disparity in combination with defendant's statement of his intention [to accept the plea offer] is sufficient to support a prejudice finding." Id. Where a defendant "instructed his counsel to pursue a course of action that defendant now complains of, there was no abridgement . . . of defendant's Sixth Amendment right to effective assistance of counsel." United States v. Wellington, 417 F.3d 284, 289 (2d Cir. 2005) (citing Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)).
The remedy for ineffective assistance based on a failure to accept a plea offer may in some cases be "the resentencing, if any, to the terms [petitioner] would have received had he been given proper legal advice." United States v. Carmichael, 216 F.3d 224, 227 (2d Cir. 2000). On the other hand, a hearing may establish that the defendant would not have accepted the proffered plea even if recommended by his attorney. Id. A hearing will be held to resolve the factual disputes regarding Monzon's decision to proceed to trial rather than enter a plea of guilty.
3. Assertion of an Ineffective Assistance Claim on Appeal
In his reply brief, Monzon's counsel asserts that appellate counsel erred in raising an ineffective assistance claim on direct appeal since it foreclosed Monzon from asserting the claim in this petition, which is a better forum for such a claim. On appeal, Monzon attacked his trial counsel's decision to stipulate to the existence of a conspiracy, and his cross-examination of a witness. Monzon argues that ineffective assistance claims are to be evaluated in the aggregate, and therefore should be asserted together in a habeas petition. Monzon did not raise this issue in his petition, and it is therefore barred as untimely.
4. Failure to Raise the Apprendi Violation on Appeal
Monzon contends that his appellate counsel provided ineffective assistance when he failed to argue that his sentence violatedApprendi, despite the fact that he had properly preserved such an objection at his sentence and despite Monzon's specific request to his appellate counsel that the issue be included in the appeal. Because of this failure, Monzon must now show cause and prejudice to raise the issue through this collateral attack.
Although petitioner suggests that appellate counsel's failure to raise the issue constitutes such cause, "[a]ttorney ignorance or inadvertence is not `cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must `bear the risk of attorney error.'" Marone v. United States, 10 F.3d 65, 67 (2d Cir. 1993) (citing Coleman v. Thompson, 501 U.S. 722, 753-54 (1991)). Attorney failure constitutes "cause" when it rises to the level of ineffective assistance — a constitutional violation.Restrepo v. Kelly, 178 F.3d 634, 640 (2d Cir. 1999) (citingColeman, 501 U.S. at 752-53). The two-prong test underStrickland for ineffective assistance "applies to the evaluation of appellate counsel as well as trial counsel."Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 197 (2d Cir. 2002). The "process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Sellan v. Kuhlman, 261 F.3d 303, 317 (2d Cir. 2001) (citation omitted). In this case, appellate counsel's failure to raise the Apprendi issue does not constitute ineffective assistance of counsel.
5. Violation of Apprendi and Booker
Finally, Monzon contends that the sentence violates the principles set forth in Apprendi and Booker. Booker does not apply retroactively to cases on collateral review. Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005). Petitioner's conviction was final on December 15, 2003, when the Supreme Court denied his petition for a writ of certiorari. The date is significantly before Booker was decided, and thus the holding of Booker does not apply retroactively to this collateral review.
Conclusion
The claims in Monzon's habeas petition are denied with the following two exceptions. Decision is reserved on Monzon's claims that his trial counsel was ineffective because he did not tell the Government that Monzon was willing to accept a plea offer and did not interview and subpoena certain witnesses. A scheduling order shall govern further proceedings on these two issues.
SO ORDERED.