Opinion
03 Civ. 592 (SAS)
October 20, 2003
Marisa Tinkler Mendez, Esq., Florida, for Petitioner
Jonathan Halpern, New York, New York, for the Government
OPINION AND ORDER
Jose Hernandez moves to vacate, set aside or correct his judgment of conviction and sentence pursuant to section 2255 of Title 28 of the United States Code ("section 2255"). In support of his motion, Hernandez raises the following grounds: ineffective assistance of counsel at trial; ineffective assistance of counsel on appeal; and newly discovered evidence. For the following reasons, the motion is denied.
I. FACTS
A. Procedural Background
In September, 1999, Hernandez and seven co-defendants were indicted on various counts of Medicare fraud, submission of false healthcare claims to Medicare, conspiracy to commit Medicare fraud, and the receipt of kickback payments in return for the referral of services covered by Medicare. Hernandez and three co-defendants went to trial on June 20, 2000. On August, 2000, the trial ended when the jury convicted Hernandez on Count One. Hernandez was acquitted on the remaining counts in which he was charged.2 On December 14, 2000, this Court sentenced Hernandez to a term of 18 months imprisonment. Hernandez and his co-defendants each appealed the verdict. On January 25, 2001, the Second Circuit affirmed their convictions. See United States v. Nachamie, 98 CR 1238, 2002 WL 108341, at *10 (2d Cir. Jan. 25, 2001).
The Indictment was subsequently superseded, see S3 98 CR 1238 (SAS), and it was only in the Third Superseding Indictment that the illegal kickback scheme, discussed below, was added as an objective of the overall conspiracy to defraud Medicare. Hernandez suggests that this was somehow inappropriate gist-en the relatively brief period between the filing of the S3 Indictment and his trial. This Court, however, has already rejected that precise argument. See United States v. Nachamie, 101 F. Supp.2d 134, 156 (S.D.N.Y. 2000) (finding that Government acted in good faith in adding the kickback charge to the Third Superseding Indictment).
Specifically, Hernandez was found not guilty of Counts 2-23 of Superseding Indictment S3 98 CR 1238 (SAS), and Counts*24-26 were dismissed on the Government's motion.
B. The Trial Evidence
At trial, the Government offered substantial evidence that Hernandez participated in multiple facets of the scheme to defraud Medicare created by co-defendant Alan Barton Nachamie. As recognized by the Second Circuit, the trial evidence demonstrated that a conspiracy existed to solicit and receive kickback payments, that payments were made, and that Hernandez was a knowing participant in that conspiracy. See id., 2002 WL 108341, at *3. However, due in substantial part to the advocacy of his attorney, Valeria Amsterdam, Hernandez was found guilty of only one object of the overall conspiracy — the receipt of kickback payments for referring Medicare patients to a laboratory located in Florida. As a result, his criminal exposure was significantly reduced.
The owner of Key Biscayne Laboratory, Edgar Damos — Estaco, was a central witness with respect to the kickback scheme. Estaco described how he entered into an illegal kickback arrangement with Nachamie. In exchange for each referral Nachamie sent to his laboratory for expensive and medically unnecessary urine tests, he paid Nachamie an $80 referral fee. Hernandez was the Medicare biller for both Nachamie and Estaco. Estaco's testimony was corroborated by audiotapes, documentary evidence, and the testimony of other cooperating witnesses.
Estaco's testimony regarding the kickback arrangement was corroborated in several ways. First, there were recorded conversations involving Nachamie, Edwin Tunick and a cooperating witness, Yoon Park, in which Nachamie and Tunick confirmed that they had an $80 arrangement with "Edgar" at Key Biscayne. See Government Exhibit ("GX") 15 and 16. Estaco's testimony was also corroborated by physical evidence — the Key Biscayne, laboratory requisition forms (GX 10186-10467) and the checks (GX 6067, 7018, 7020, 7022, 7033, 15045). Estaco's testimony regarding the first Newark meeting involving himself, Hernandez, Nachamie and others was corroborated by Federal Bureau of Investigation ("FBI") surveillance photographs. Estaco, who was not yet cooperating with the Government, was unaware of the FBI's surveillance. (GX 6374). Finally, Estaco's testimony regarding the two meetings in Newark was independently corroborated at trial by two cooperating witnesses: Imran Aziz Shaikh, see Trial Transcript ("Tr.") at 1154-57, and Andrew Messana, see id. at 2118-23.
Specifically, Estaco testified that before Hernandez introduced him to Nachamie, he and Hernandez discussed Estaco's willingness to pay $80 for each urine sample referred to Key Biscayne Laboratory for the purpose of billing Medicare for an expensive drug interaction study. See Tr. at 1660. Shortly thereafter, Hernandez introduced Estaco to various individuals in Florida to obtain referrals in exchange for illegal kickback payments. See id. at 1660-61. Estaco made these illegal payments in cash and by checks made out to Hernandez and to individuals designated by Hernandez. See id. at 1701-03, 1818, 1821, 1859-60.
Nachamie was one of the individuals Hernandez introduced to Estaco. See id. at 1662. At their first meeting in Ft. Lauderdale, Estaco initially spoke alone with Nachamie regarding the kickback arrangement, but they did not reach an agreement. See id. at 1664. After the meeting, Estaco met with Hernandez who told him not to worry, that Hernandez would make sure they (Estaco and Nachamie) did business together. See id. at 16, 65.
When Estaco arrived at the meeting, Nachamie was meeting with several medical doctors. Nachamie pulled Estaco aside to speak about the kickback payments. See Tr. at 1662, 1664.
In finalizing the kickback scheme, Hernandez, Estaco, Nachamie, and Tunick met a second time in Miami. See id. at 1662-65. There, Tunick remarked that he thought Estaco's proposal to pay them $80 per referral was too low. See id. at 1666, 1911. To alleviate mutual suspicion that one of them was cooperating with the Government, Estaco, Hernandez, and Nachamie each partially undressed to demonstrate that they were not wearing a "wire." See id. at 1664-67. After determining that they were in fact not wired, the participants continued to discuss the kickback arrangement. See id. at 1667. Eventually, Estaco agreed to pay Nachamie $80 per referral. See id. at 2124. After this agreement was reached, Estaco and Hernandez met twice with Nachamie and others in Newark, New Jersey to discuss logistics.
Estaco did not begin cooperating with the FBI in Florida until the summer of 1998. See id. at 1784. The United States Attorney's Office became aware that Estaco was independently seeking to cooperate with the Government (in Florida) in November 1999. See Nachamie, 101 F. Supp.2d at 156. Estaco reported Hernandez's role in introducing him to Nachamie to the FBI in August, 1998. This was well before Hernandez's connection to the Nachamie scheme became public knowledge in September, 1999, when Hernandez was first indicted.
Following these meetings, co-defendant Lydia Martinez sent urine samples to Key Biscayne Laboratory. Numerous samples were sent to Key Biscayne as part of Nachamie's scheme. See id. at 1677-78. In return, Estaco wrote checks made payable to: Nachamie's company, Interstate Medical Management, see id. at 1690; Lydia Martinez/Concerned Citizens, see id. at 1695, 2769; and Hernandez's company, Dade Medical Management, Inc. ("Dade Medical") see id. at 1701. The exchange of samples for kickback payments stopped when Estaco's laboratory was closed by the Government. See id. at 1681.
II. LEGAL STANDARDS
A. Section 2255 Standard
Section 2255 allows a convicted person being held in federal custody to petition the sentencing court to vacate, set aside or correct a sentence. A properly filed motion under section 2255 must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255. Accordingly, collateral relief under section 2255 is available "'only for a constitutional error, a lack of jurisdiction in the 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) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)); accord United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989).
B. Ineffective Assistance of Counsel
Counsel's performance is to be judged under the test announced in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective assistance of counsel a defendant must: (1) overcome a "strong presumption" that his attorney's conduct was reasonable and show that the representation fell below "an objective standard of reasonableness" under "prevailing professional norms;" and (2) "affirmatively prove prejudice," that is, show that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 687-88, 693-94. The burden is on Hernandez to establish both elements. See id. at 687.
In determining the reasonableness of an attorney's conduct, the Second Circuit repeatedly has recognized that trial counsel is afforded a wide range of discretion in trial strategy and tactics. See, e.g., United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998). A court must "'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,' bearing in mind that '[t]here are countless ways to provide effective assistance in any given case' and that '[e]ven the best criminal defense attorneys would not defend a particular client in the same way.'" United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 689). "Actions or omissions by counsel that 'might be considered sound trial strategy' do not constitute ineffective assistance." Mason v. Scully, 16 F.3d 38, 42 (2d Cir. 1994) (quoting Strickland, 466 U.S. at 689) (internal quotation marks and citation omitted)). Indeed, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 690. The benchmark is whether counsel's conduct "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." United States v. DiTommaso, 817 F.2d 203, 215 (1987).
Moreover, the mere fact that counsel's defense proved unsuccessful does not prove prejudice. See Strickland, 466 U.S. at 689. Thus, a defendant cannot prevail on a claim of ineffective assistance merely because he believes after the fact that his counsel's strategy was inadequate. See id. Rather, prejudice exists only when "'counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (quoting Strickland, 466 U.S. at 687). This Court must assess "whether, absent counsel's deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different," meaning "a probability sufficient to undermine confidence in the outcome." Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir. 1994). If there is such overwhelming evidence of the defendant's guilt that he was surely not prejudiced, then the Court need not even address the deficient performance prong of the test. See Strouse v. Leonardo, 928 F.2d 548, 556 (2d Cir. 1991).'
C. Newly Discovered Evidence
With respect to a claim of "newly discovered evidence/' the Second Circuit has repeatedly stated: "'[A] district court must exercise "great caution" in determining whether to grant a retrial on the ground of newly discovered evidence, and may grant the motion only in the most extraordinary circumstances.'" United States v. Zagari, 111 F.3d 307, 322 (2d Cir. 1997) (quoting United States v. Spencer, 4 F.3d 115, 118 (2d Cir. 1993) (emphasis in original, internal quotation marks and citations omitted)); accord, Romero v. United States, 28 F.3d 267, 268 (2d Cir. 1994); United States v. Imran, 964 F.2d 1313, 1318 (2d Cir. 1992). III. DISCUSSION
A. Ineffective Assistance of Counsel at Trial
Hernandez claims that his attorney, Valerie Amsterdam, was ill-prepared with regard to the kickback allegations and Hernandez's role in that specific objective. According to Hernandez, Amsterdam's alleged ineffectiveness is evidenced by her failure to: adequately cross-examine certain witnesses; object to irrelevant and prejudicial evidence; and adequately investigate the case against her client.
1. Cross — Examination of Witnesses
a. Estaco
Hernandez first attacks Amsterdam's cross-examination of Estaco. Hernandez claims that Estaco "said that only he and Nachamie spoke privately about $80 payments." See Jose Hernandez's Motion and Memorandum Brief to Vacate, Set Aside or Correct his Conviction and Sentence Pursuant to 28 U.S.C. § 2255 ("Petition") at 19. Hernandez fails to acknowledge that Estaco also testified that shortly after the first meeting, Hernandez told Estaco not to worry, that he (Hernandez) would make sure they did business together. See Tr. at 1665. Hernandez also overlooks the fact that he participated in three other meetings in which the kickback scheme was discussed.
Next, Hernandez claims that Estaco testified that Hernandez was present at only one of the final meetings. See Petition at 20. In reality, Estaco testified that Hernandez was present at all of the meetings where kickback payments were discussed. Indeed, at the second meeting, which was held in Miami, the amount of the kickback payment was discussed both before and after Hernandez and other participants disrobed to demonstrate that they were not Government informants. Specifically, Estaco testified that at the Miami meeting, "the subject of the meeting was to discuss, again, payments, Sow much I was willing to pay of [sic] the patients. . . . At that meeting we talked about, initially, about $80 again. At that meeting Ed Tunick said that figure was kind of low." Tr. at 1665-66. After Hernandez, Nachamie, and Estaco disrobed to prove they were not "wearing a wire," the topic of the conversation returned to the amount of the kickback payments. Estaco testified "after that [the disrobing] we discuss[ed] the payments. My figure for them was kind of low." Id. at 1667.
Hernandez's presence at the Newark meetings was confirmed by FBI surveillance photographs, see GX 6374, and by two cooperating witnesses, Shaikh and Messana. See Tr. at 1154-57, 2120-22.
In a footnote, Hernandez seeks to rely on Lydia Martinez's testimony to demonstrate that she and Hernandez had not heard the substance of the meeting. See Petition at 20 n. 31. However, this Court determined at Martinez's sentencing that she had knowingly perjured herself at trial. Hernandez also claims that "[o]ne critical error made by Hernandez' counsel was failing to join in the defense motion and application for severance and/or mistrial" based on the testimony of co-defendant Lydia Martinez. See Petition at 13. In light of Martinez's self-serving testimony, it is difficult to appreciate how Amsterdam's strategy of distancing her client from Martinez constitutes ineffective assistance of counsel.
This claim is incorrect. It was Amsterdam, not the other defense counsel, that first moved for a mistrial based on Martinez's testimony; thereafter, Hernandez's co-defendants, joined in her motion. See Tr. at 3298.
Thus, Hernandez's suggestion that he "was not privy to the discussions between Estaco and Nachamie specifically about any kickback monies to be paid for referrals" and that Amsterdam failed to "impress this important point on the jury," Petition at 19, is based on a misreading of the trial transcript. As this Court previously found, there was "more than enough evidence" for a jury to find that "Hernandez introduced Damos-Estaco to Nachamie in order to set up a kickback scheme, attended several meetings where both the kickback fee and the logistical arrangements were discussed, and received money from Damos-Estaco for his role in this scheme." United States v. Nachamie, 2000 WL 1677860, at *2 (S.D.N.Y. Nov. 8, 2000).
Next, Hernandez challenges the fact that Amsterdam "did not ask the witness any significant questions about the two checks" made payable to Hernandez's company, Dade Medical. Petition at 21. This claim is also incorrect. Amsterdam attempted to demonstrate that the checks were provided in return for legitimate work and legitimate expenses. Amsterdam cross — examined Estaco at length about these checks. See Tr. at 1852-58, 1918-20. Specifically, Amsterdam pointed out the fact that the check amounts were not in multiples of $80 even though Estaco testified that he had paid Hernandez $80 for each referral. See id. at 1856. Amsterdam elicited the fact that one of the checks was for reimbursement for travel expenses. See id. at 1856. Finally, she left the inference that Hernandez had performed legitimate work for Estaco to justify the second check. See, id. at 1856-58. This was a sound trial strategy and in no way supports Hernandez's claim of ineffective assistance of counsel.
Next, Hernandez claims that Amsterdam failed to question Estaco about the "absurdity" of paying both Nachamie and Hernandez $80 for each referral. There is no inherent absurdity to paying both the individual who brokered the kickback payments (Hernandez) and the individual making the referrals (Nachamie). Medicare paid Key Biscayne approximately $500 per patient. See id. at 1660. Paying $160 for a referral that generates $500 is hardly absurd. In any event, choosing not to pursue this particular line of questioning is precisely the type of tactical decision that cannot constitute ineffective assistance of counsel.
b. Bardo
Hernandez also claims that Amsterdam made a "critical error" in questioning another Government witness, Manuel Bardo, with regard to the dollar amount of the kickback payments. See Petition at 22. This criticism reflects the failure to understand Amsterdam's legal strategy. One of Amsterdam's strategies was to characterize Estaco's payments to Hernandez as lawfully-earned commissions. She implied that Estaco was ready to give anybody $80 for referrals and that what he did with his own money was his business and not a crime. See Tr. at 3462-65. Therefore, consistent with this defense, it made sense for
Amsterdam to ask Bardo on cross-examination whether Estaco offered to pay him $80 per referral. See id. at 2020. Given that this fact was not in dispute — Estaco had pled guilty to making these types of offers — Amsterdam's questioning of Bardo strategically focused on the payment as a transaction between Estaco and Bardo. Amsterdam did not suggest that her client was part of this arrangement, but rather that this was the arrangement that Estaco offered to everyone.
Hernandez also notes that Bardo testified that he was going to send Estaco blood samples, even though Estaco's business involved testing urine samples. See Petition at 22. This is an insignificant detail in light of the fact that Bardo, unlike Nachamie, never consummated the kickback arrangement.
Hernandez also argues that Amsterdam was somehow ineffective by implying that Bardo's testimony was colored by the fact that Hernandez had a personal relationship with his wife. See Petition at 23. While there was no evidence to substantiate this inference, which was viewed by the Government as improper, see Tr. at 3452-53, it did not make Amsterdam's representation ineffective. To the contrary, it demonstrated the lengths to which she would go to discredit a Government witness. Amsterdam's efforts at suggesting bias hardly establish ineffective assistance of counsel. In fact, the verdict bears out the benefits of Amsterdam's strategy; the bulk of Bardo's testimony related to the Nachamie copycat Medicare fraud scheme proposed by Hernandez. Hernandez was acquitted of this Medicare fraud and thus avoided far stiffer penalties under the Sentencing Guidelines. In any event, Amsterdam's attempt to establish Bardo's bias constitutes trial strategy, not ineffective assistance of counsel.
c. Messana
Next, Hernandez attacks Amsterdam's cross-examination of Messana regarding a Newark meeting. Amsterdam's cross-examination was careful and succinct, and she established that Messana's conversation with Nachamie regarding the kickback payments to Estaco's laboratory never took place in front of Hernandez. See id. at 2279. In light of the success of this cross-examination, it clearly would have been a questionable strategy to continue the cross-examination to explore where participants sat during the meeting or whether the amount of the kickback payments was $60 or $80. Such issues would have been immaterial and further questioning of Messana may well have resulted in that proverbial "one question too many." To refrain from excessive questioning was especially apt in this instance, as Amsterdam was already the fourth defense lawyer to question Messana.
2. Failure to Object to Certain Evidence
Hernandez also complains that Amsterdam failed to object to the admissibility of two audiotapes of conversations between a cooperating witness and Nachamie and Tunick. See Petition at 24. It is plain, however, that these audiotapes were admissible at defendants' trial, first as party admissions of Nachamie and Tunick, and second, against Martinez and Hernandez, as co — conspirator statements in furtherance of the conspiracy'. The tapes establish Nachamie's and Tunick's efforts to enlist the cooperating witness in the overall conspiracy. Thus, Amsterdam's failure to object to admission of these tapes was reasonable.
3. Failure to Join in Motion for Mistrial
Hernandez also claims that Amsterdam failed to join in co-defendants' motions for a mistrial based on Martinez's "very inflammatory and prejudicial testimony." See Petition at 26. This claim is also incorrect. As discussed above, it was Amsterdam, not co-defense counsel, who moved for a mistrial based on Martinez's testimony. See Tr. at 3298. Furthermore, after that motion was denied, Amsterdam competently preserved the issue for appeal. See id. at 3300. The fact that she decided not to pursue it was reasonable given the failed attempt by Nachamie's counsel to raise this claim on appeal. See Nachamie, 2002 WL 108341, at *5-6.
Hernandez argues that Martinez's testimony "was very damaging testimony, and should have been objected to by Hernandez' counsel." See Petition at 26. However, the fact that a particular witness's testimony is damaging is not a basis for its exclusion; there must be a legal basis to object to its *admissibility. Hernandez has failed to offer any such basis.
4. Rule 404(b) Evidence
Next, Hernandez complains about Amsterdam's failure to seek a mistrial based on the initial admission of Rule 404(b) evidence, which the Court subsequently determined was, in part, inadmissible. See Petition at 26. With respect to this evidence, Amsterdam again demonstrated her competent representation of Hernandez. She objected to the admission of certain Rule 404(b) evidence, and ultimately persuaded this Court to disallow a portion of it. See Tr. at 1704-10. Having succeeded in excluding this evidence, Amsterdam's representation was not ineffective because she chose not to move for a mistrial, which would have been denied in any event.
Given that the jury was given a curative instruction, see Tr. at 1719, and that it did not even see the exhibits in question, it is plain that a mistrial would not have been granted.
5. Failure to Investigate
Hernandez attacks Amsterdam's alleged failure to investigate the allegations lodged against him. See Petition at 27. The sole basis for this claim is that Amsterdam purportedly failed to investigate whether Sandra Soto was employed by Hernandez at Dade Medical. Investigation of this sort was not necessary for a number of reasons. First, Estaco described Soto as an employee whom he placed on his payroll at Hernandez's request, and there was no testimony that she was an employee at Dade Medical. Second, Soto played a relatively minor role in this case, having once introduced Estaco to Hernandez. She played no role in the four meetings involving Estaco, Hernandez, Nachamie, Martinez, Aziz, and Messana. Third, Soto's employment was no mystery to Hernandez. From Hernandez's perspective, the less said at trial about Soto and their connection, the better.
B. Ineffective Assistance of Counsel on Appeal
Next, Hernandez claims that Amsterdam provided ineffective assistance on appeal because she did not challenge the admission at trial of certain testimony regarding a "prior relationship" between Estaco and Hernandez. See Petition at 29. This evidence was struck before the exhibits were shown to the jury and the jury was given an additional curative instruction directing them to disregard such evidence. This removed any appealable issue on this subject.
Hernandez states that the jury "saw the damaging and irrelevant copies of checks just prior to a weekend recess." Petition at 29. This statement is inaccurate. See Tr. at 1710.
Hernandez further argues that Amsterdam should have sought a rehearing after the Second Circuit dismissed the appeal. See Petition at 30-31. Here, a rehearing would have been fruitless. The issue on appeal — whether the evidence viewed in the light most favorable to the Government supported the jury's guilty verdict against Hernandez — was clearly not one the defense could have won. As this Court held in denying Hernandez's post-trial motion for a new trial, there was plainly sufficient evidence to support the jury's verdict.
Next, Hernandez claims that Amsterdam failed to create a good appellate record because, unlike Nachamie's attorney, she did not move for a mistrial or severance in connection with Martinez's testimony. See Petition at 31-32. As stated above, this claim is meritless as it was Amsterdam who first moved for a mistrial based on Martinez's testimony. See Tr. at 3298. Furthermore, after her motion was denied, Amsterdam carefully preserved the issue for appeal. See Tr. at 3300.
C. Discovery of New Evidence
Finally, Hernandez argues that the fact that Sandra Soto was not an employee of Dade Medical constitutes "new evidence." See Petition at 33. Soto's employment is plainly not "newly discovered evidence." In order to obtain a new trial on the ground of newly discovered evidence, a defendant must show both that the evidence is in fact "new," that is, it could not have been discovered through the exercise of 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. See Zagari, 111 F.3d at 322; Spencer, 4 F.3d at 118-19.
Hernandez's alleged "new evidence" does not meet any of these requirements. As the owner of Dade Medical, Hernandez knew whether or not Soto was an employee of his at the time of trial. Second, Soto's role was minor and far removed from the principal criminal conduct at issue in Hernandez's trial. Third, any testimony regarding her employment would probably not lead to an acquittal. Hernandez was convicted based on: (1) Estaco's testimony of the four meetings (none involving Soto); (2) checks written to Nachamie's company; (3) testimony from cooperating witnesses; (4) surveillance photographs; and (5) tape-recorded conversations in which Nachamie and Tunick described payments to a cooperating witness. Accordingly, the fact that Soto was not employed by Dade Medical does not constitute newly discovered evidence, nor does it reflect any ineffectiveness on his counsel's part for failing to adequately investigate his case prior to trial.
IV. CONCLUSION
For the foregoing reasons, Hernandez's section 2255 motion is denied. Finally, because Hernandez has failed to make a substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. See Miranda v. Bennett, 322 F.3d 171, 177 (2d Cir. 2003) ("When we are ruling on an application for a certificate of appealability, we must determine whether the habeas petitioner has made a substantial showing of the denial of a constitutional right.") (citing 28 U.S.C. § 2253). The Clerk of the Court is directed to close this case.
SO ORDERED.