Oscar Caesar v. USA, No. 1:2010cv00402 - Document 10 (S.D.N.Y. 2011)
Court Description: OPINION: Petitioner Oscar Caesar ("Caesar" or the "Petitioner") has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. Section 2255 to vacate or set aside his sentence, which has been opposed by respondent the United Sta tes (the "Respondent" or the "Government"). Based on the conclusions set forth below, the petition is denied....[See Opinion]... Conclusion: For the reasons set forth above, the petition for a writ of habeas corpus is denied. Beca use Petitioner has failed to make "a substantial showing of a denial of a constitutional right," 28 U.S.C. Section 2253(c)(2), a certificate of appealability shall not issue. See, e.g., Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-113 (2d Cir. 2000). It is so ordered. (Signed by Judge Robert W. Sweet on 10/6/2011) [*** Also docketed in related Criminal Case, 04-cr-424(RWS), See doc.#348. ***](bw)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------ -----------------X OSCAR CAESAR, Petitioner, 10 Civ. 402 OPINION against- UNITED STATES OF AMERICA, Respondent. -- -- --- --- X A P PEA RAN C E S: Pro Se OSCAR CAESAR, 56329-054 U.S.P. Canaan P.O. Box 300 Waymart, PA 18472 At PREET BHARARA United States Attorney Southern District of New York One St. Andrew's Plaza New York, NY 10007 By: Russell Capone, Esq. Sweet, D.J. titioner n ioner Oscar Caesar ("Caesar n or the " Pet ) has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 to vacate or set aside his sentence, which has been opposed by respondent the United States (the "Respondent" or the "Government") . Based on the conclusions set forth below 1 the petition is denied. Prior Proceedings Caesar was tried on a one count indictment 1 returned by a federal grand jury in the Southern District of New York on May 6 2005 1 1 2004. A jury tri Caesar was commenced on May 9, convicted of one distribute and possess with intent and more of heroin, and 841 (b) (1) (A) . of the sole ll conspiracy to distribute one §§ 812, to kilogram 841{a) (1) On the special verdict form convicting Caesar in the indictment 1 the j answered "one to the question "what quantity of heroin was reasonably foreseeable to On January 10, of in violation of 21 U.S.C. Count kilogram or more count 2005. On May 13, 2007, [Caesar] to be involved?1I (Tr. 589.) the Court sentenced Caesar to 120 months 1 1 imprisonment to be followed by five years of supervised release and imposed a speci $100 Second Circuit assessment. On June 2008 I the I The Supreme Court firmed Caesar1s conviction. denied certiorari on November 171 2008. 19 l This petition followed. Discussion Caesar challenges his conviction on three grounds: that he received ineffective assistance of counsel; (2) (1) that the evidence did not establish that Caesar knew or reasonably could have foreseen that the object distribute one kilogram and more Court did not property instruct the of conspiracy of heroin; the and jury as (3) was to that the to the burden of proof on drug quantity.l I. Caesar's Petition is Timely As Caesar1s a threshold petition is matter untimely. l the Government A petition argues seeking that collateral relief pursuant to Section 2255 must be filed within one year "the date on which the judgment of conviction becomes final. U.S.C. § 2255. Where a petitioner is convicted l 28 loses on direct I In his reply brief, Caesar abandons a fourth ground: that testimony of one of the government witnesses, Emenson Peters, was credible. (Pet. Reply Br. 3.) 2 1I the not appeal, and then files a petition for certiorari to the United States Supreme Court, when the Supreme the judgment of conviction becomes final Court denies certiorari. is system. deemed filed Noble v. Kel Here, when delivered into ,246 F.3d 93, 97 (2d C Caesar appealed his v. United For pro se prisoners, a States, 260 F.3d 78, 84 (2d Cir. 2001). motion Green the prison mail . 2001). conviction to the United States Court of Appeals for the Second Circuit, which denied his Caesar then petitioned the united States appeal in June 2008. Supreme Court November 17, day. for 2008, a writ of rendering certiorari, his which was conviction final deni as of on that The one year period accordingly ran on November 17, 2009. The Government contends that although it is unclear when Caesar delivered his petition into the prison mail system, must have 2009-when his happened at some point signature on the dated-and December 10, 2009, in between November Section 2255 ti tion from 27, is when the petition was received by the Clerk of Court. Petitioner argues that on November 7, prior to the deadline, he sent 3 a letter to 2009, the ten days Court with a handwritten Section 2255 petition because he was then housed at Unit, where he did not F.C.I. cumberland in the Special Hous have the necessary forms. (Pet'r Reply Br. 1-2, Petitioner 5.) additionally asserts that he at tempted to contact his attorney on multiple including letters, occasions leaving over him phone several messages weeks and prior writing to him that, several expressly requesting that his attorney file a Section 2255 motion -- none of which Petitioner's counsel until November 5, 2009, when he refused to file a Section 2255 petition on Caesar's behalf. indicate it in was responded to (Pet. fact The Court's records 5 - 6. ) in receipt of Petitioner's communications and referred them to the Pro See Office of the Clerk of the Court, which turn sent printed Section 2255 petition from and Petitioner a court ated documents with a letter dated November 23, 2009 and postmarked November 24, 2009. Caesar noted this correspondence form Section 2255 petition signed on November 27, 2009 (Pet. 6). The "does in the not Anti-Terrorism set forth \ an and fective inflexible rule Death Penalty requiring dismissal whenever' its 'clock has run.'N Holland v. Florida, -130 S.Ct. U.S. 198, 2549, 205 2560, (2006». (quoting Day v. (2010) The Supreme 4 Court Act U.S. McDonough, concluded, as 547 the Second Circuit and all other Courts of Appeals to consider the question had before it, that AEDPA's one-year period to file a wri t of habeas corpus acts as a statute of than a enabl ing jurisdictional bar, thus limitations rather courts toll that period. See id.i Smith v. McGinnis, (2d denied, Cir.), tolling, cert. however, 531 Smith, 208 Johnson, 177 F.3d 390,391-92 awarded "'only upon F.3d at 208 F.3d 13, (2000). 17 (5th Cir. consideration 17 Equitable of (quoting 1999)), all v. United States, circumstances. '" 960, 840 equitably is appropriate only in '" rare and exceptional circumstance[sl, '" (2d Cir. 2003) U.S. to Turner and should be the facts 338 F.3d 145, (quoting ~~~~~~~~~~~~==~~~~, 965 (2d Cir. 1981)) v. Equitable tolling should and 150 644 F.2d evaluated on a \\'case-by-case basis'" with the "necessary" "'flexibility'" inherent in equitable procedures "'to meet new situations demand equitable intervention. '" Dillon, 642 F.3d [that] at 362 (quoting Holland, 130 S.Ct. at 2563) A petitioner bears the burden of affirmatively showing that equitable Walker, 255 tolling F.3d 65, is 75 petitioner must demonstrate rights diligently, and (2) warranted. (2d r. that ( 1) See Hizbullahankhamon v. 2001) . he has Specifically, a been pursuing his that some extraordinary circumstance 5 stood in his S.Ct. way and prevented timely 2560 62; at Smith, 208 Holland, filing. at F.3d 17; 130 also see Hizbullahankhamon, 255 F.3d at 75. The Second Circuit has set high a bar to 'extraordinary' warrant not entitled to equitable tolling Dillon tolling." r. 2011) equitable sufficiently circumstances deem to Conway, 642 F.3d 358, 363 (2d is "[aJ s a general matter v. Of note, a petitioner simply because he is incarcerated and faced the routine restrictions of prison life. See Corrigan v. Barbery, 371 F.Supp.2d 325, 330 (W.D.N.Y. 2005); Lindo v. Lefever r 193 F.Supp.2d 659, 663 (E.D.N.Y. 2002). ordinary attorney errors such as an attorney1s mis the filing deadl do not warrant tolling, 2001) i Geraci extraordinary v. Senkowski, errors such as 211 an F.3d attorney petition in spite of being specifi ient and not communicating Baldayaque, 338 F.3d at 363-64. 6 9 Holland, 1 (2d failing 130 135 (2d Cir. Cir. 2000), to file a ly directed to do so by his with 152-53; 6, culation of see S.Ct. at 2564; Smaldone v. Senkowski, 273 F.3d 133 While the client suffice. see also Dillon, 642 See F.3d at As to diligence ~is standard it is not 'extreme diligence l reasonable (emphasis in the degree l diligence." original) i see or 'exceptional diligence l 338 Baldayaque, also this required to satis 130 Holland, F.3d S.Ct. l 153 at (~the at diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence. (internal citations 11 and quotation marks omitted)). Here I like the petitioner everything that more reasonabl e than Baldayaque, form been expected of ends to 338 F.3d at roughly 10 have 152. filed was because could have Petitioner1s of attorney and attorney's have a failure in Baldayaque s While days respond to the one attempts repeated timely Section 2255 after timely petition to the and went himll petition to filed himi on ~did Caesar I year to filed. petition period l contact behalf i his his his Petitioner's timely communications to the Court swiftly thereafter; the Clerk of the Court I S letter November 24; just three Caesar's and Section 2255 form not being posted and Petitioner's signing of the Section 2255 days later petition is on not November time 27 I this barred. 2 Court finds Indeed, in until form that the 2 In this regard the Court is additionally mindful that while the Pro Be Office of the Clerk of the Court had no mechanism to accept and file a letter petition in November of 2009, such communications are today routinely accepted for filing. 7 because alternat timeliness issue Caesar's letter the Court might to the have been Court raised "empowered, the and in . required" to treat his prior communication some instances . as a substantive Section 2255 motion for purposes of timeliness under ADEPA. II. A. Green, 260 F.3d at 83. Petitioner's Ineffective Assistance of Counsel Claim The Standard for Ineffective Assistance of Counsel The Sixth Amendment provides that a criminal defendant "shall enjoy the right for his defense. to have the Assistance of Counsel U. S. 11 "right to counsel Const. Amend. VI. The Sixth Amendment is the right to the effective assistance counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) The Supreme Court has established a two-part test for evaluating claims of inef U.S. 39, 668, 43 687 ive (1984) (2d Cir. stance. _S_t_r_i_c_k_l_a__d _ ___ ____~~~, 466 _n __v . W_a accord Morales v. United States, i 2011). "First, the counsel's performance was deficient. counsel made errors so as the Strickland, that the 'counsel' 466 U. S. deficient ous t guaranteed at 687. defendant 8 show that This requires showing that counsel was not functioning by "Second, performance must 635 F.3d the Sixth Amendment." the defendant prejudic the must show defense." Id. While the defendant must prove both deficient performance and "there prejudice, is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697. Under Strickland's presumption that objectively reasonable. Ortega, 528 counsel's at circumstances." In and/or 466 477 must of be this omissions regard, taken at by an ("[J]udici a strong attorney Roe 688-89j highly is v. is Flores- scrutiny deferential [[) of (citing The performance inquiry examines time" Stri~kland, there rendered (2000) counsel's the prong, U.S. 466 U.S. at 689) reasonableness perspective assistance 470, performance Strickland, the U.S. the first performance and "from "considering counsel's all the 466 U.S. at 688, 689. it by is well-settled counsel for that "[a]ctions strategic purposes generally do not constitute ineffective assistance of counsel. Gibbons v. 555 F.3d \\ [S] trategic choices made after and relevant facts to 112, 122 thorough plausible (2d eir. investigation options are II 2009) . law virtually unchallengeable" and even strategic choices made after less than 9 complete investigation do not necessarily amount to ineffective assistance so I long as the known facts made it reasonable to believe that further investigation was unnecessary. Id. at 690 91. "to advance Moreover, every an attorney is nonfri volous Artuz, argument 269 F.3d 78, also Jones v. second guess appointed 95 Barnes, suggested by a a cl that (2d Cir. 463 U.S. reasonable counsel under no obligation could 2001) 745, to raise made. If Aparic v. (citations omitted); 754 professional duty be (1983) ("For judges to judgments every see and impose 'colorable' on claim would disserve the very goal of vigorous and effective advocacy that underlies Anders. If) . second showing of prejudice. 612 F.3d 118, 122 Strickland 466 (2d Cir. U.S. prong at 2010). 694; requires errors, that, affirmative Gueits v. -- ......~~--~~~~~~~~~ The petitioner's burden with respect to prejudice is similarly stringent, "reasonable probability an but for as he must show a counsel's unprofessional the result of the proceeding would have been different. 1f Strickland, 466 U.S. 614 F.3d 30, for finding a 46 at 694i (2d Cir. accord United States v. 2010). "[T]here is generally no basis Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the finding of guilt.1f Unit States v. Cronic, 10 reliability 466 U.S. 648, 659 n.26 (1984). In applying this /I Strickland, Mazzuca, 570 F.3d 490, 466 U. S. at 694; 507 (2d Cir. 2009). of inquiry must be on the fundamental t is being challenged./I whose "[a] reasonable ficient to undermine confidence probability is a probability in the outcome. standard, accord Wilson v. "[T]he ultimate focus rness of the proceeding Strickland, 466 U.S. at 696. B. Petitioner's Ineffective Assistance of Counsel Claims Fail On Caesar's Section 2255 petition form, he argues that he is entitled to habeas reI counsel at trial or on not because of any error by his appeal, given up on [him] and has left (Pet. 5.) but because his counsel "has [him] to file this motion alone./I That is, Caesar submits that he has been deprived of his counsel's assistance filing the instant petition. While argument is relevant as to the equitable tolling of AEDPA's one time period, this argument fails on the merits because Caesar is not entitled to the assistance this petition. Cir. 2004) in filing See Harris v. United States, 367 F.3d 74, 77 While the Second Circuit has recognized a ffect pet counsel assistance of counsel (2d aim for in connection with a habeas ion where a petitioner seeks relief from the proscription on second or successive petitions after his prosecute a habeas petitioner's 11 case, "lawyer agreed to abandoned it, and consequently deprived the petitioner of heard at all,1f id., that is not any opportunity to be Petitioner's the case here. ineffective assistance of counsel claim on this ground therefore fails. In Petitioner's reply brief, however, he that (1) counsel failed to object or a These number of additional ineffective assistance claims. include raises file a motion regarding that ft[sltreet sales drugs are 'not' pure heroin" but instead Reply '''cut' Br. 10) down to 10% i (2) 5% counsel of it's failed (sic) to strength" protect him (Pet'r from Court's determining the drug amounts "'outside' the jurylf (3) the (id.) i counsel failed to explain to the jury that they alone are the triers of fact who can determine the drug amounts (id.) counsel did not explain to the jury that the drug amount stated in the indictment did not "defend against the judge indictment drug amounts'" (Pet'r i (4) they could disregard id. i and (5) counsel ' constructively amending the Reply Br. 11). The Court considers these arguments, though only presented in reply, under the lenient pleadings. F.3d 471 standards See for the liberal e . . , Triestman v. (2d Cir. 2006) i construction of pro se Fed. Bureau of Prisons, 470 Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). 12 With regard to Caesar's first argument, an attorney is under no obligation "to advance every nonfrivolous argument that could be made. II Aparicio, 269 F. 3d at see also Jones/ 463 U.S. at 754. 96 (citations omitted) i Here/ the statutes under which Petitioner was convicted define the violation as distributing or possessing with intent to distribute "1 kilogram or more of a mixture or substance containing a detectable amount of heroin. 28 U.S.C. see 841 (b) (1) (A) (i) i § also November I, II 2010 Supplement to the United States Sentencing Commission Guidelines Manual Note ("Unless (A) to the otherwise Drug Quantity Table specified, the weight found of a at § 2Dl.l controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance. There II is no note as to heroin.). Counsel's strategic decision to forgo argument on the quantity of pure heroin in street drugs is accordingly certainly not objectively unreasonable as to satisfy Strickland/s first prong. 466 U.S. at 688-89. Caesar's third and fourth ineffective assistance of counsel claims go to his attorney's representation regarding the sufficiency of the evidence for 13 the jury to conclude that Peti tioner foresaw s that co-conspirators were distribut and possessing with intent to distribute one kilogram and more of heroin as well the weight raised 33 1, def tively strategic decisions deficient under regarding those underlying issues Second the rcui t , States June 19, 2008). Caesar's raised charge of jury Uni ted Ci r . foreclose has to Court. (2d 333 Petit appeal that Appx . Both drugs. on direct rej ected by Court's as no on Strickland's assistance why were highly Fed. 314 While this might not reason issues and both were Delarosa, ineffective additional these v. were his claims, counsel's unconstitutionally ferential standard, 466 U.S. at 688-89, and this Court can see none. With contentions Court's regards that s determining against "de ctment to counsel the failed drug drug amounts'" to amounts judge the "a Petitioner's protect settled that 3553 (a) Br. by limiting considerat jury or admitted by applicable 3553 (a) (4), the Guidelines based on the judge and him would range, facts 14 as it violate found facts inst of requi by or amending to defendant, the jury" 10 11), also final from '" outside' 'constructively (Pet' r sentencing second is the well section found by conside by subsection court." Uni States v. Crosby, 397 F.3d 103, 115 (2d Cir. 2005).3 Given the circuit precedent and statutory mandate, counsel's decision to forgo is Petitioner's as Additionally, contentions arguably as suggested with to the implicated argument the previous weight in the were 466 U.S. at 688 89. s appellate brief ., Delarosa, et under Moreover, (Brief unreasonable. Pet quantity sentencing ioner's evidence, determination, 314 Fed. Appx. at 333. to find that counsel's actions reasonable but drug Delarosa, the Court decl anything arguments, the Court's were rejected by the Circuit. Accordingly, of not Strickland's first prong. as Petitioner's counsel noted in for Defendants -Appellants, U. S . 06-5674-cr(L) , at 16 ("Pet'r Appeal Br. arriving at the offense 1 II ) ) , v. in for Caesar, the Court rejected the Government's claim that seventeen kilograms of heroin could be attributed Guidel to Petitioner, and departed range of 151 to 188 months downward from imprisonment to sentence Caesar to 120 months-the mandatory minimum. Petitioner no by explanation for how he was the prejudiced his fers counsel's failure to object to the Court's finding, and it does not appear that Petitioner was in fact prejudiced, as Strickland requires. 466 U.S. at 694. J Indeed, the Circuit has since clarified that a "district court may use money attributable to drug transactions to determine the quantity of drugs relevant to sentencing" and that no higher standard than preponderance of the evidence is necessary to infer drug quantity from cash proceeds. States v. Jones, 531 F.3d 163, 175 76 (2d Cir. 2008). 15 Finally actions cannot be said C~onici result here. III. even when considered cumulatively I to undermine the I counsell s reliability of the 466 U.S. at 659 n.26. Petitioner's Remaining Claims Caesarls remaining claims go to the sufficiency of the evidence and jury charge regarding the drug quantity element of his Each conviction. appeal to Circuit. the Second of these Circuit arguments and I each was was made on rej ected direct by the Caesar cannot seek to relitigate these claims pursuant to Section 2255. (2d Cir. 2009) United States v. Pitcher l (citing United States v. 559 Sanin l F.3d 252 120 1 125 F.3d 79 1 83 (2d Cir. 2001)). Specifically there was I with respect insufficient proof at to trial Caesarl s argument that that he reasonably could have foreseen the conspiracy involved one kilogram and more of heroin l this argument was made it. (See Pet/r Appeal 333 ("We conclude I Br. that the to the contrary charged the Circuit 27-33); than sufficient for a rational doubt to Delarosa l I and rej ected by 314 Fed. Appx. at that the evidence was more jury to find beyond a reasonable conspiracy 16 existed l that Caesar joined that and conspiracy, reasonably foreseen either that that the conspiracy knew or could involved one have kilogram and more of heroin.")). Likewise, on direct appeal, as here, Petitioner argued that this Court failed to instruct the jury that it needed to find the drug quantity beyond a reasonable doubt. That argument was rejected as Br. 19-27.) Fed. Appx. at 333 1. {"We reject the defendants' jury would have thought ll argument trial firmly organization that that it was the tcher, 559 F.3d at 125. established dealt Caesar heroin; massive quantities of heroin, and 314 These arguments will therefore These claims further fail on the merits. at Delarosa, it need only find drug quantity by a preponderance of the evidence ).4 not be heard again. (Pet' r Appeal that well reasonably was that to member of organization in excess eable a The evidence an dealt one kilogram; Caesar that the organization dealt such quantities of heroin. s 4 Though Caesar has abandoned this claim in his reply, Petitioner also argued on direct appeal that government witness Emerson Peters should not be credited (Pet'r Appeal Br. at 29 32), but the Circuit held that "[tlhe jury was entitled to credit Peters's testimony." Delarosa, 314 Fed. Appx. at 333. 5 Caesar's abandoned challenge to the jury having credited Peters' testimony is likewise not borne out by the transcript and even if Peters' 17 At trial, Government the organization known as the established that "Daly Avenue Organization" an dominated the heroin trade along a three-block strip of Daly Avenue in the Bronx between East 179th Street and Bronx Park South. 44.) 42 The Organization sold heroin both in bags, which contained a "grain" of heroin, 62, (Tr. 384 85.) and in "bundles" made up of ten bags. The Organization worked in three daily shifts and had a steady stream of customers. on trial (Tr. (Tr. 151, 353, 275-79.) testimony before the Court, Based the Organization sold an average of twenty-five bundles of heroin a day, which amounts to approximately half a kilogram per month, although the actual amount could vary from month to month. Both Emenson Peters and two law enforcement officers testified as to Caesar's role in the Organization. Peters testified that Caesar first began selling heroin on Daly Avenue in 2003 (Tr. 143.) and that because he grew up with the leader of the Organization, Caesar started working as a "manager." 142 43, 153.) addition, York City Peters testified at length about Caesar. (Tr. In an undercover officer, Detective Luis Vega of the New Police Department, testified that he purchased $90 testimony was marked by inconsistencies, it would be entitled to deference. 312 F.3d 58, 64 (2d Cir. 2002). 18 worth of Another heroin from Caesar on December 3, that law enforcement officer testifi turn in Manhattan. that stop, during Caesar (Tr. 319.) on November 4, was a passenger 2003, she stopped a vehicle in which making an il 2003. (Tr. 410-11.) jumped out of She test if the vehicle after being asked by the officer to return to the vehicle, to put on his coat. (Tr. 411.) The ficer testified that she observed a white object fall from Caesar's coat as he put it on, and the object turned out to be packets of heroin. As the Court of Appeals found, than suffi Delarosa, 314 If (Tr. 411 12.) this "evidence was more . Appx. at 333. With respect to the Court's jury charge regarding drug quantity, as the Second Circuit noted, the jury was repeatedly told that the government must prove the defendant's It beyond a jury reasonable doubt. Id. The Court "beyond a reasonable doubt appl s whenever I say [is] 'the also told the that the burden of proof which government must prove' or 'must establish' or 'if you find,' any of those phrases, you must read in beyond a reasonable doubt.1f told that "on [the] issue (Tr. 564.) Further, [of venue]-and only on government need not prove this venue, 19 as it is jury was s issue-the led, beyond a reasonable doubt, but it must preponderance of the evi (Tr. /I 562.) it by a mere Taken together, the it had to find drug quantity beyond Court charged the jury a reasonable doubt. establish arosa, 314 Fed. Appx. at 333. See Conclusion For the reasons set forth above, the ition for a Because Petitioner has failed to make "a substantial writ of habeas corpus is denied. showing of a denial of a constitutional 2253 (c) (2), a certificate of appealability e.g., Lucidore v. New York State Div. 111-113 (2d /I U.S.C. 1 not issue. Parole, r. 2000). It is so ordered. New York, NY October (-;. , 2011 ROBERT W. SWEET U.S.D.J. 20 28 § See, 209 F.3d 107,
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