Rodriguez v. USA, No. 1:2009cv03842 - Document 3 (S.D.N.Y. 2010)

Court Description: OPINION & ORDER as to Angel Rodriguez re: MOTION to Vacate under 28 U.S.C. 2255. For the reasons set fort on this Opinion, IT IS HEREBY ORDERED that: (1) Petitioner's motion pursuant to 28 U.S.C. § 2255 is denied and the petition is dismi ssed; (2) As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(1)(B); Richardson v. Greene, 497 F.3d 212, 217 (2d Cir. 2007); and (3) Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that any appeal from this Opinion and Order would not be taken in good faith. SO ORDERED. (Signed by Judge Sidney H. Stein on 12/22/2010) (ab)
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Rodriguez v. USA Doc. 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------------J( UNITED STATES OF AMERICA, -against- ,.j\. .. " ...- ...... 05 Cr. 238 (SHS) OPINION & ORDER ANGEL RODRIGUEZ, Defendant. -------------------------------------------------------------------J( SIDNEY H. STEIN, U.S. District Judge. Angel Rodriguez files this pro se application pursuant to 28 U.S.C. § 2255 to vacate or set aside his sentence. I. BACKGROUND On March 23, 2006, a jury convicted Rodriguez on all three counts ofthe indictment with which he was charged, namely: (1) conspiring to distribute or possess with intent to distribute five kilograms or more of miJ(tures or substances containing cocaine and 100 grams or more ofmiJ(tures or substances containing heroin; (2) distributing or possessing with intent to distribute five kilograms or more of miJ(tures or substances containing cocaine; and (3) distributing or possessing with intent to distribute 100 grams or more of miJ(tures or substances containing heroin. Following his conviction, petitioner moved pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure for a judgment of acquittal or, alternatively, a new trial. This Court denied both motions in an Opinion and Order dated July 6,2006, finding that the evidence was sufficient to support the jury's verdict and the interests ofjustice did not require a new trial. United States v. Rodriguez, 05 Crim. 238, 2006 u.s. Dist. LEXIS 46617 (S.D.N.Y. July 6,2006). On May 10, 2007, this Court sentenced Rodriguez principally to 63 months in prison. Rodriguez appealed those determinations and 1 Dockets.Justia.com the Second Circuit affinned. United States v. Rodriguez, 294 Fed. Appx. 657, 2008 US. App. LEXIS 20960 (2d Cir. 2008). In this petition, Rodriguez claims that (l) his counsel was ineffective, (2) evidence used to convict him was obtained pursuant to an unlawful arrest and in violation of his privilege against self-incrimination, and (3) he was prosecuted maliciously. For the reasons set forth below, the petition is denied. II. DISCUSSION A. Ineffectiveness of Counsel To establish a claim of ineffective assistance of counsel, Rodriguez must show both that: (1) his counsel's perfonnance was objectively unreasonable under professional standards prevailing at the time, and (2) this deficient perfonnance resulted in prejudice to his case. See Strickland v. Washington, 466 US. 668, 687 (1984); Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009). Under the first prong, petitioner must establish that his "counsel made errors so serious that counsel was not functioning as the' counsel' guaranteed ... by the Sixth Amendment." Strickland, 466 US. at 687. There is a "strong presumption" that the conduct of Rodriguez's counsel fell within the broad spectrum of reasonable professional assistance. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (citing Strickland, 466 US. at 688-89). To satisfy the second prong, petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 US. at 694. Rodriguez contends that his counsel was ineffective because (1) he failed to move to dismiss the conspiracy and distribution charges against Rodriguez in the indictment, (2) he did not allow Rodriguez to take a lie detector test, and (3) he did not subpoena the confidential infonnant to testify at trial. None of these assertions establish an ineffective assistance of counsel claim under the Strickland test and the facts of this action. 2 I. Failure to Move to Dismiss the Conspiracy and Distribution Charges Rodriguez argues that his counsel was ineffective because he should have moved to dismiss the conspiracy and distribution counts in the indictment given the lack of evidence to support these charges. However, the trial record included ample evidence to support the conspiracy and distribution charges. Indeed, the jury found Rodriguez guilty of conspiracy as well as the substantive offenses of distribution or possession with intent to distribute cocaine and heroin. Telephone records showing numerous calls between Rodriguez's phone and the phone number where the confidential informant (who was posing as a narcotics purchaser) had contacted Jose (the seller of the narcotics) as well as recorded conversations between Rodriguez and the confidential informant provided a sufficient basis for the jury's finding that Rodriguez was part of a conspiracy to distribute narcotics. That Rodriguez delivered a box containing 5,500 grams of cocaine and 812.4 grams of heroin to the confidential informant supported the jury's finding that Rodriguez was guilty of the substantive offense of distribution. Therefore, Rodriguez's counsel's decision not to move to dismiss the conspiracy and distribution charges was not objectively unreasonable. See United States v. Kirsh, 54 F.3d 1062, 1071 (2d CiT. 1995) (counsel's failure to file a meritless motion cannot be ineffective assistance). 2. Refusal to Allow Petitioner to Take a Lie Detector Test Rodriguez alleges that his counsel was ineffective because he refused to allow Rodriguez to take a lie detector test that would have proven Rodriguez'S innocence. As an initial matter, the results of a lie detector test, even if favorable to Rodriguez, would almost certainly have been inadmissible at trial. See United States v. Ruggiero, 100 F.3d 284, 292 (2d CiT. 1996); United States v. Kwong, 69 F.3d 663,668 (2d Cir. 1995). Moreover, even if Rodriguez could have used favorable results from a lie detector test as leverage during negotiations with the government, Rodriguez'S counsel made the tactical decision that 3 Rodriguez should not take the test and there is no evidence that this decision was incorrect. See United States v. Smith, 198 F.3d 377, 386 (2d Cir. 1999) (reasonable strategic calls do not support ineffective assistance claim). 3. Failure to Subpoena Confidential Informant to Testify Rodriguez asserts that his counsel was ineffective because, in defiance of Rodriguez's request, he did not subpoena the confidential infonnant to testify at trial. Rodriguez claims that the confidential infonnant would have testified that he did not know Rodriguez and that such testimony would have proven Rodriguez's innocence. It is well-settled, however, that "trial counsel is entitled to broad discretion in choosing a witness list," Frias v. United States, 01 Crim. 307,2010 U.S. Dist. LEXIS 94856, at *9 (S.D.N.Y. Sept. 13,2010), and "counsel's decision as to 'whether to call specific witnesses evidence - even ones that might offer exculpatory is ordinarily not viewed as a lapse in professional representation.'" United States v. Best, 219 F.3d 192,201 (2d Cir. 2000) (quoting United States v. Schmidt, 105 F.3d 82,90 (2d Cir. 1997), cert. denied, 522 U.S. 846 (1997)). This is true primarily because "[t]he decision not to call a particular witness is typically a question of trial strategy." Bierenbaum v. Graham, 607 F.3d 36,55 (2d Cir. 2010) (citations omitted). In this case, Rodriguez's counsel met with the confidential infonnant and then made the strategic decision not to call him as a witness. (Trial Tr. at 232:5-14.) Accordingly, Rodriguez's ineffective assistance of counsel claim is without merit. B. Use of Evidence Obtained Pursuant to Allegedly Unlawful Arrest Rodriguez claims that his arrest was unlawful because the government knew that Rodriguez was not the person from whom the confidential infonnant made arrangements to buy drugs. The Court construes this as an argument that the government should have prosecuted Jose, who sold the narcotics to the confidential infonnant, rather than Rodriguez, who merely delivered the narcotics. Even assuming that Jose had a more central role in the 4 conspiracy than Rodriguez, this does not mean that Rodriguez was not also a conspirator. Indeed, the jury found Rodriguez guilty of conspiracy. Rodriguez's claim that the government should have prosecuted Jose instead of him, and therefore his arrest was unfounded and the narcotics should not have been admitted into evidence, is without merit. C. Violation of Privilege Against Self-incrimination Rodriguez alleges that, upon his arrest, government agents goaded him into answering questions in violation of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966). However, the circumstances surrounding Rodriguez's arrest and his Miranda waiver were thoroughly explored at trial. The trial record, including the testimony of Edward Corcoran (Trial Tr. 111-14) and Philip Klemick (id. at 137-39)-members ofa Drug Enforcement Administration task force-and Rodriguez himself (id. at 200, 206), demonstrates that before Rodriguez was questioned he was advised ofhis Miranda rights, which he voluntarily and knowingly agreed to waive. See Moran v. Burbine. 475 U.S. 412, 421 (1986). Thus, there is no factual basis whatsoever to believe that Rodriguez's constitutional rights were violated. D. Malicious Prosecution Finally, Rodriguez contends that his conviction was the result of a malicious and racially-motivated prosecution and that he is actually innocent. However, he provides no factual basis for this conclusory assertion nor is there any evidence to support it in the record. Furthermore, none of the elements required to sustain a malicious prosecution claimnamely, a lack of probable cause for commencing the criminal proceeding against Rodriguez, malice as a motivation for the government's actions, and the termination of the proceeding in Rodriguez's favor-have here been satisfied. See Manganiello v. City a/N.Y., 612 F.3d 149, 161 (2d Cir. 2010). Rodriguez's malicious prosecution claim thus provides no basis for relief. 5 III. CONCLUSION Accordingly, IT IS HEREBY ORDERED that: 1. Petitioner's motion pursuant to 28 U.S.c. § 2255 is denied and the petition is dismissed; 2. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.c. § 2253(c)(1 )(B); Richardson v. Greene, 497 F.3d 212, 217 (2d Cir. 2007); and 3. Pursuant to 28 U.S.c. § 1915(a)(3), the Court certifies that any appeal from this Opinion and Order would not be taken in good faith. Dated: New York, New York December 22, 2010 SOORDERE 6