Case Information
*0 FILED CLERK U.S. DISTRICT COURT EASTERN DISTRICT OF NEW YORK LONG ISLAND OFFICE
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
7/11/2025 11:14 am N [2] 12-CR-00317 (JFB) ANGEL VASQUEZ,
Petitioner, VERSUS UNITED STATES OF AMERICA Respondent. MEMORANDUM AND ORDER July 11, 2025
6.) For the reasons set forth below, the JOSEPH F. BIANCO, Circuit Judge (sitting by petition is denied. designation): I. BACKGROUND Angel Vasquez ("Vasquez" or "petitioner"), proceeding pro se, petitions A. Factual Background this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, seeking to
The following facts are adduced from the vacate his conviction and sentence. (Petition, instant petition and underlying record. ECF No. 123 ("Pet.").) On August 14, 2015, petitioner entered a guilty plea to two counts
On August 14, 2015, petitioner entered a of a superseding indictment and, on guilty plea to two counts of a superseding November 17, 2016, this Court sentenced indictment, charging him with conspiracy to petitioner to nineteen years' imprisonment. commit murder in aid of racketeering (Count (ECF Nos. 105, 120.) Three) and attempted murder in aid of racketeering (Count Eight), both in violation
In the instant pet1t10n, Vasquez of 18 U.S.C. § 1959(a)(5). (Plea Transcript, challenges his conviction, claiming that he is ECF No. 141, Ex. 4 ("Plea Tr.").) actually innocent of the charges that were the subject of his conviction and that his
During the plea proceeding, the Court constitutional rights were violated because of confirmed that petitioner was competent to ineffective assistance of counsel. (Pet., at 2- proceed with the plea (Id. at 3-4.) Petitioner Prior to proceeding with a factual allocution, the Court also confirmed that no one had stated that he discussed any available made any threats or promises to petitioner to defenses with his defense counsel and that he was satisfied with counsel's representation. influence his choice to plead guilty. (Id. at (Id. at 4-5.) The Court then explained the 17.) constitutional rights petitioner was forfeiting by choosing to plead guilty. (Id. at 5-8.) Petitioner then admitted that he had been
a member of the MS-13 gang since 2006, and explained the particular acts that made him The Court also summarized the two charges petitioner was pleading guilty to, guilty of Counts Three and Eight: stating: "(C]ount [T]hree charges you with conspiracy to murder Luis Castro. In 2009 several fellow MS-13 Specifically it charges that . . . in or about members told me they wanted to kill October of 2009 that you, together with other Luis Castro on [February 4] because they believed he was a member of a members of the MS-13 gang, conspired rival gang called 18th Street. Later knowingly and intentionally to murder Mr. that night me and Castro and other Castro in violation of New York Penal Law for the purpose of maintaining and increasing MS-13 members got into a car in your position in the MS-13 gang. Count Nassau County and began driving by [E]ight charges that on or about December another MS-13 member. The car 23, 2010, that you, again together with others, traveled to a dark road in Huntington at which time the car stopped. knowingly, intentionally attempted to murder someone then identified as John Doe No. 2 in violation of New York Penal Law, again for The group then got out of the car and the purpose of maintaining, increasing your I realized that Castro was going to be position in the MS-13 street gang." (Id. at 8- killed. The other members of the group began to stab Castro. I was 9.) Petitioner confirmed that he ~derstood the maximum penalties that resulted from his handed a knife by other members and guilty plea, including that each charge carried at one point forward then I also a maximum term often years' imprisonment stabbed Castro . . . . Other members and that each term could run consecutively to then fled and I learned later that the other and result in a twenty-year term of Castro died. imprisonment. (Id. at 9-11.)
On December 23, 2010, I was The Court then confirmed that petitioner hanging out at the El Pacifico bar in had entered into a plea agreement with the Hempstead. At one point I was government and that petitioner understood involved with MS-13 members in a the contents of the agreement. (Id. at 14-16.) dispute with other individuals. The Court specifically noted that the plea agreement included an appellate waiver, in I then observed [the] group leave the which petitioner agreed that, if the Court bar being followed by my fellow MS- sentenced him to 240 months' imprisonment, 13 members. Once they were the combined statutory maximum term of outside, I saw an altercation start imprisonment, or less, he was giving up his between the other group and my right to appeal or collaterally attack his fellow MS-13 members, gang (Id. at 15-16.) conviction and sentence. members, so I quickly ran outside to advisory Guidelines range of 240 months'
support my fellow members at which imprisonment because the applicable range time I participated in a fight against
was limited by the combined statutory the other group during which I punched and kicked John Doe No. 2. maximum. (Sentencing Transcript, ECF No. Some of the other MS-13 members 137, Ex. 7 ("Sent. Tr."), at 7, 8, 31.) After stabbed two of the people in the other hearing from both sides, the Court sentenced group including John Doe 2. petitioner to a total term of 228 months'
imprisonment, consisting of 120 months on Count Three to run consecutively to 108 I engaged in all of [these] acts to months on Count Eight. (Id. at 38.) maintain my position in the MS-13. I knew what I was doing was wrong and against the law. B. Procedural History
(Id. at 18-19.) Petitioner did not directly appeal his conviction or sentence, but instead filed the The Court then asked petitioner a series of instant petition. In his petition, petitioner questions to elicit more details regarding the claims that he is entitled to relief under two crimes and explained the elements that Section 2255 because he is actually innocent the government would have to prove beyond of the crimes to which he pied guilty and a reasonable doubt if petitioner were to because of alleged ineffective assistance of choose to proceed to trial. (Id. at 19-25.) The counsel with respect to his guilty plea (Pet., government then summarized the evidence at 2-6.) Further, petitioner contends that he that would have been presented at trial. (Id. is entitled to an evidentiary hearing. (Id. at at25-28.) 4.) The government filed a response, arguing
that petitioner's appellate waiver and guilty At the conclusion of the proceeding, plea bar his collateral attack to his conviction petitioner again acknowledged that he was and sentence, and that his claims are without guilty of both charges and that he was merit. (Government's Letter Brief m entering his plea voluntarily and of his own Opposition, ECF No. 137 ("Opp. Br."). (Id. at 28-29.) Based on the free will. allocution, the Court found that petitioner's After receiving the submissions, the guilty plea was entered knowingly and Court issued an order directing petitioner's voluntarily, and adjudged him guilty of former defense counsel, John S. Wallenstein Counts Three and Eight of the superseding and Kevin J. Keating, to submit affidavits indictment. (Id. at 29.) responding to the claims in the instant
petition as related to their representation. Petitioner was sentenced on November (ECF No. 131.) Both Mr. Wallenstein and 17, 2016. The Court determined that, under Mr. Keating submitted affidavits under seal the United States Sentencing Guidelines, in response to that order. (Wallenstein Deel., petitioner's total offense level was 41, with a ECF No. 133 ("Wallenstein Deel."); Keating Criminal History Category IV, resulting in an Affirmation, ECFNo. 132 ("KeatingAff.").) [1]
U.S.C.foll. § 2255. The Second Circuit has II. made clear that "[t]o warrant a hearing on an
STANDARD
OF REVIEW ineffective assistance of counsel claim, the defendant need establish only that he has a Pursuant to 28 U.S.C. § 2255, a prisoner 'plausible' claim of ineffective assistance of sentenced in federal court may "move the counsel, not that 'he will necessarily succeed court which imposed the sentence to vacate, set aside or correct the sentence" when the on the claim.'" Puglisi v. United States, 586 petitioner claims "that the sentence was F.3d 209, 213 (2d Cir. 2009) (quoting imposed in violation of the Constitution or Armienti v. United States, 234 F.3d 820, 823 laws of the United States, or that the court (2d Cir. 2000)). The Second Circuit has provided guidance on how a district court was without jurisdiction to impose such should determine when an evidentiary sentence, or that the sentence was in excess hearing is necessary. See id. at 213-15. In of the maximum authorized by law, or is otherwise subject to collateral attack." particular, the Court noted that, given the 28 U.S.C. § 2255(a). If petitioner raises a absence of pre-motion discovery in a § 2255 claim in a § 2255 motion has not been case, "a petitioner may need only to identify available sources of relevant evidence rather previously raised on direct appeal, generally, than obtain it as in civil cases or seek a the claim is procedurally barred unless the discovery order from the court .... " Id at petitioner can show cause and prejudice or actual innocence. See Massaro v. United 213-14. States, 538 U.S. 500, 504 (2003); Rosario v. United States, 164 F.3d 729, 732 (2d Cir. Further, "the district court may use 1998). However, this bar does not apply to methods under Section 2255 to expand the claims of ineffective assistance of counsel; record without conducting a full-blown the Supreme Court has stated that "in most testimonial hearing." Chang v. United States, cases a motion brought under § 2255 is 250 F.3d 79, 86 (2d Cir. 2001). Thus, there preferable to direct appeal for deciding claims are scenarios where the district court can ofineffective assistance." Massaro, 538 U.S. exercise its "discretion to choose a middle at 504. road that avoid[ s] the delay, the needless
expenditure of judicial resources, the burden With respect to the issue of an evidentiary on trial counsel and the government, and hearing, Section 2255 states that "[u]nless the perhaps the encouragement of other prisoners motion and the files and records of the case to make similar baseless claims that would conclusively show that the prisoner is entitled have resulted from a full testimonial hearing" and may determine that a full hearing "would to no relief, the court shall ... grant a prompt hearing thereon, determine the issues and add little or nothing to the written make findings of fact and conclusions of law submissions." Id with respect thereto." 28 U.S.C. § 2255(b). In the instant case, applying the above Rule 4(b) of the Rules Governing Section referenced standard, the Court concludes that 2255 Proceedings provides that "[i]f it plainly no evidentiary hearing is warranted because appears from the motion, any attached petitioner's motion, the underlying record, exhibits, and the record of prior proceedings and the now expanded record that includes that the moving party is not entitled to relief, sworn statements from defense counsel, the judge must dismiss the motion . . . . " conclusively demonstrate that he is entitled to Rules Governing§ 2255 Proceedings for the no relief under Section 2255. The sworn United States District Courts, Rule 4(b ), 28 statements are sufficiently detailed, and petitioner has identified no additional at *2-3 (E.D.N.Y. May 18, 2006). However, documents outside the record that could aid to the extent petitioner is raising ineffective the Court in making its determination. Thus, assistance of counsel claims, these "survive[] an evidentiary hearing on petitioner's claims the guilty plea or the appeal waiver only is unwarranted. where the claim concerns the advice the
defendant received from counsel." Parisi v. United States, 529 F.3d 134, 138 (2d Cir. III. DISCUSSION 2008) (alteration adopted) (internal quotation Petitioner argues that he is entitled to marks and citation omitted). relief under Section 2255 because he is actually innocent of the crimes to which he In the instant case, petitioner entered into pled guilty and that his attorneys provided a plea agreement, which included an ineffective assistance of counsel. agreement not to file an appeal or otherwise
challenge his conviction or sentence by As is set forth below, the Court finds that petition pursuant to Section 2255, in the event petitioner's claims are without merit. that the sentence was 240 months or below. Petitioner failed to establish that he is actually (ECF No. 141, Ex. 5, at 5.) Thereafter, the innocent of the crimes he pleaded guilty to Court imposed a term ofimprisonment of 228 and failed to demonstrate that counsel's months, a term within the scope of the waiver. performance fell below an objective standard Further, the record of the guilty plea of reasonableness, or that there is a demonstrates that petitioner executed the reasonable probability that but for counsel's waiver intelligently and voluntarily. As alleged errors the result of the proceedings noted above, during the plea proceeding, the would have been different. Accordingly, the Court reviewed the waiver's provisions with Court denies the petition in its entirety. petitioner, confirming that he understood the
contents of the waiver and that he was freely A. Collateral Attack Waiver proceeding with the waiver. (Plea Tr., at 15- 16.) The Court finds the waiver enforceable, as the record reflects a knowing and As an initial matter, the government argues that petitioner's guilty plea and voluntary waiver of petitioner's right to accompanying waiver of his right to appeal or collaterally attack his sentence. collaterally attack his conviction or sentence prevents the Court from considering Accordingly, with the exception of his petitioner's claims. (Opp. Br., at 12-14.) claims for ineffective assistance of counsel
(which are unaffected by the waiver), any Generally, "a defendant's knowing and other challenges to his conviction and voluntary waiver of his right to appeal a sentence are precluded by the plea agreement. sentence within an agreed upon guideline range is enforceable." United States v. B. Effect of Guilty Plea Djelevic, 161 F.3d 104, 106 (2d Cir. 1998) (per curiam). Such a waiver of the right to Even apart from petitioner's waiver of his appeal can include petitions for relief under right to file a petition pursuant to Section Section 2255. See, e.g., Garcia-Santos v. 2255, the underlying record reflects that the United States, 273 F.3d 506, 508 (2d Cir. guilty plea itself was knowing and voluntary, 2001) (per curiam), Lisnoff v. United States, thus providing an additional ground for No. 05-cv-1209 (NGG), 2006 WL 1367413, foreclosing any challenges to his conviction (again other than ineffective assistance of made by counsel 'afford an all to[o] easy counsel claims) based upon events prior to his avenue for the invalidating of conviction[s] guilty plea. on pleas of guilty."' Hernandez v. United
States, 839 F. Supp. 140, 143 (E.D.N.Y. Nov. 8, 1993) (quoting United States v. Horton, A knowing and voluntary guilty plea precludes a habeas petitioner from 334 F.2d 153, 154 (2d Cir. 1964)). Further, challenging the legality of events occurring "[a] criminal defendant's self-inculpatory prior to the entry of his guilty plea. See statements made under oath at [a] plea Whitehead v. Senkowski, 943 F.2d 230, 233 allocution . . . are generally treated as conclusive in the face of the defendant's later (2d Cir. 1991) ("Generally a knowing and attempt to contradict them .... " Adames v. voluntary guilty plea precludes federal habeas United States, 171 F.3d 728, 732 (2d Cir. corpus review of claims relating to constitutional rights at issue prior to the entry 1999). of the plea."); accord Whitehurst v. Senkowski, 485 F. Supp. 2d 105, 117-18 The Court has reviewed the underlying (N.D.N.Y. 2007); Crispino v. Allard, 378 F. record and finds the guilty plea was made Supp. 2d 393,414 (S.D.N.Y. 2005); see also voluntarily and intelligently. Prior to Lynch v. Connell, No. 06-CV-0027, 2009 WL accepting his plea, the Court confirmed that 789428, at *3 (W.D.N.Y. Mar. 20, 2009) petitioner was competent and that he (collecting cases). "[A] plea is deemed understood the rights he was forfeiting by 'intelligent' if the accused had the advice of pleading guilty, explained the maximum counsel and understood the consequences of sentences he faced and the elements of both his plea, even if only in a fairly rudimentary the crimes, proceeded with a detailed factual way; it is deemed 'voluntary' if it is not the allocution, and ensured that petitioner's product of actual or threatened physical harm, decision to plead was not a result of any mental coercion overbearing the defendant's inducement. (Plea Tr. at 3-29.) will, or the defendant's sheer inability to weigh his options rationally." Miller v. Thus, as petitioner entered a valid guilty Angliker, 848F.2d1312, 1320 (2d Cir. 1988). plea, his subsequent claims that refer to events As such, a "plea of guilty entered by one fully prior to the plea ( other than ineffective aware of the direct consequences of the plea assistance of counsel claims) are foreclosed. is voluntary in a constitutional sense unless induced by threats, misrepresentation, or C. Ineffective Assistance of Counsel perhaps by promises that are by their nature improper .... " Bousley v. United States, 523 The Court first discusses the applicable U.S. 614, 619 (1998) (alterations adopted) legal standard then proceeds to review each (internal quotation marks and citations ground for ineffective assistance of counsel omitted). When considering the validity of a set forth in the petition, finding each to be guilty plea, courts look to the sworn without merit. statements made during a plea allocution, noting that "[ s ]olemn declarations in open 1. Legal Standard court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977).
Under the standard articulated in Clearly, "[c]laims by petitioners that their Strickland v. Washington, 466 U.S. 668 pleas were involuntarily made due to the (1984), a petitioner is required to demonstrate erroneous advice or unrealized promises two elements in order to prevail on a claim of ineffective assistance of counsel: (1) Strickland, 466 U.S. at 690). "However, "counsel's representation fell below an 'strategic choices made after less than objective standard of reasonableness" and (2) complete investigation are reasonable precisely to the extent that reasonable "there is a reasonable probability that, but for counsel's unprofessional errors, the result of professional judgments support the the proceeding would have been different." limitations on investigation.'" Id ( quoting Id. at 688, 694. Strickland, 466 U.S. at 690--91).
The first prong requires petitioner to show The second prong focuses on prejudice to that counsel's performance was deficient. To a petitioner. A petitioner is required to show demonstrate a deficient performance, "a that there is "a reasonable probability that, but d~fendant must show that counsel's for counsel's unprofessional errors, the result of the proceeding would have been different." representation 'fell below an objective Strickland, 466 U.S. at 694. "Reasonable standard of reasonableness' determined according to 'prevailing professional probability" means that the errors were of a norms.'" Murden v. Artuz, 497 F.3d 178, 198 magnitude such that they ''undermine (2d Cir. 2007) (quoting Strickland, 466 U.S. confidence in the outcome." Id. "'[T]he question to be asked in assessing the at 688, 694). However, "[c]onstitutionally effective counsel embraces a 'wide range of prejudice from counsel's errors ... is whether professionally competent assistance,' and there is a reasonable probability that, absent 'counsel is strongly presumed to have the errors, the factfinder would have had a rendered adequate assistance and made all reasonable doubt respecting guilt."' Henry v. significant decisions in the exercise of Poole, 409 F.3d 48, 63-64 (2d Cir. 2005) reasonable professional judgment."' Greiner (quoting Strickland, 466 U.S. at 695). "'An v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) error by counsel, even if professionally (quoting Strickland, 466 U.S. at 690). The unreasonable, does not warrant setting aside performance inquiry examines the the judgment of a criminal proceeding if the reasonableness of counsel• s actions under all error had no effect on the judgment."' circumstances, keeping in mind that a "'fair Lindstadt v. Keane, 239 F.3d 191, 204 (2d assessment of attorney performance requires Cir. 2001) (quoting Strickland, 466 U.S. at that every effort be made to eliminate the 691). Additionally, "[u]nlike the distorting effects of hindsight."' Id. ( quoting determination of trial counsel's performance Rompilla v. Beard, 545 U.S. 374, 408 under the first prong of Strickland, the (2005)). In assessing performance, a court determination of prejudice may be made with "must apply a 'heavy measure of deference to the benefit of hindsight." Hemstreet, v. counsel's judgments."' Id. (quoting Greiner, 491 F.3d 84, 91 (2d Cir. 2007) Strickland, 466 U.S. at 691). "A lawyer's (internal quotation marks and citation decision not to pursue a defense does not omitted). constitute deficient performance, if, as is typically the case, the lawyer has a reasonable "In the context of a guilty plea, justification for the decision," Deluca v. Strickland's prejudice prong requires a Lord, 77 F.3d 578, 588 n.3 (2d Cir. 1996), defendant to demonstrate a reasonable and '"strategic choices made after thorough probability that, 'but for counsel's errors, he investigation of law and facts relevant to would not have pleaded guilty and would plausible options are virtually have insisted on going to trial."' Munson v. unchallengeable."' Id. at 588 (quoting Rock, 507 F. App'x. 53, 56 (2d Cir. 2013) (summary order) (quoting Hill v. Lockhart, ("A self-serving post-conviction statement 474 U.S. 52, 59 (1985)). The party alleging does not, standing alone, establish ineffective assistance of counsel bears the prejudice."). burden of establishing both deficient performance and prejudice. United States v. b. No Expert Witness Birkin, 366 F.3d 95, 100 (2d Cir. 2004). Regarding Juveniles
2. Analysis Petitioner claims that defense counsel was constitutionally ineffective "for not obtaining a. Failure to Challenge [an] expert witness to testify concerning Sufficiency of the Evidence juvenile conviction[ s] in conjunction with their lack of mature insight or maturity [as Petitioner claims that he received juveniles are] not able to [discern] adapt or ineffective assistance of counsel because his [ correlate the] realistic consequences of their defense counsel failed to challenge the actions." (Pet., at 2.) That claim is flatly sufficiency of the evidence. (Pet., at 2.) The contradicted by the record. In particular, government responded that "[t]his assertion when the government moved to transfer is conclusory and does not give any specific petitioner's juvenile case to adult status, mention to exactly what non-challenged defense counsel consulted with Dr. Naftali evidence prejudiced the [petitioner]." (Opp. Berrill, a forensic psychologist. (Wallenstein Br., at 16.) Deel., at 3.) Dr. Berrill examined petitioner,
wrote a detailed report explaining why he The Court notes that "[ c ]onclusory should continue to be treated as a juvenile, allegations of counsel's deficient and testified as a defense witness at the performance will not sustain a § 2255 hearing on the motion to transfer petitioner to adult status. (Id.) The Court ultimately petition." Reese v. U.S., No. CV-04-4338 (DOT), 2006 WL 2711610, at *3 (E.D.N.Y. granted the government's motion and defense Sept. 21, 2006). Here, petitioner asserts in a counsel appealed that decision to the Second conclusory fashion that defense counsel Circuit, which affirmed this Court's decision. failed to attack the evidence in this case, but Therefore, although defense counsel's efforts his claim is unsubstantiated, and petitioner were unsuccessful, petitioner has failed to show any deficient performance with respect fails to point to what evidence defense counsel failed to challenge. Indeed, his claim to the expert witness, or more generally in is contradicted by the sworn statements of connection with the government's motion to defense counsel, which describe in detail the transfer him to adult status. efforts made to investigate and challenge the government's case. (Wallenstein Deel., at 2- c. Failure to Investigate 3; Keating Aff., at 2-3.) In sum, petitioner's conclusory allegation regarding defense Petitioner contends that he received counsel's failure to challenge the sufficiency ineffective as~istance of counsel because of the evidence does not demonstrate defense counsel failed to adequately deficient performance and, in any event, investigate the case and did not follow up petitioner is unable to demonstrate the with witnesses that petitioner wished to be requisite prejudice. See Hernandez v. Larkin, called to testify on his behalf. (Pet., at 3.) No. 12-cv-8090 (AJN) (SN), 2013 WL 4453316, at *12 (S.D.N.Y. Aug. 19, 2013)
Generally, while investigating a case, (citations omitted). "[d]efense counsel has a 'duty to make reasonable investigations or to make a First, petitioner's conclusory claim that reasonable decision that makes particular investigations unnecessary."' Rosario v. defense counsel failed to investigate the case Ercole, 601 F.3d 118, 130 (2d Cir. 2010) is contradicted by each defense counsel's (quoting Wiggins v. Smith, 539 U.S. 510,521 sworn statements in which they discuss the investigative steps to review all the evidence (2003)). "In the context of an ineffectiveness related to his case. (See Wallenstein Deel., at claim, 'a particular decision not to investigate 3-4; Keating Aff., at 3.) For example, Mr. must be directly assessed for reasonableness in all the circumstances, applying a heavy Wallenstein spoke to petitioner and his measure of deference to counsel's family in an attempt to gather more judgments."' Weingarten v. United States, information to assist in his defense, but those 700 F. App'x 43, 45 (2d Cir. 2017) (summary efforts were not helpful. (Wallenstein Deel., order) (quoting Strickland, 466 U.S. at 691). at 4.) Mr. Wallenstein also hired an investigator who was similarly unsuccessful Counsel's duty to make reasonable investigations does not "compel defense in his ability to locate any additional counsel to investigate comprehensively every information that might help in petitioner's (Wallenstein Deel., at 4.) Mr. lead or possible defense, or to scour the globe defense. on the off-chance something will turn up." Keating undertook similar efforts to defend Greiner, 417 F.3d at 321 (internal quotation petitioner by reviewing extensive discovery marks and citations omitted). "[S]trategic in this case to enable him to investigate the choices made after thorough investigation of matter fully. (Keating Aff., at 3.) Petitioner law and facts relevant to plausible options are does not explain what additional virtually unchallengeable; and strategic investigation that he wished defense counsel choices made after less than complete had undertaken and, thus, failed to investigation are reasonable precisely to the demonstrate deficient performance. In any extent that reasonable professional judgments event, petitioner also failed to articulate how support the limitations on investigation." the additional investigation would have altered the case, or his decision-making with Strickland, 466 U.S. at 690-91.
respect to the guilty plea in any way and, "Where the alleged misconduct by therefore, failed to demonstrate prejudice. In counsel is failure to investigate or discover short, his claim for failure to investigate does potentially exculpatory evidence, the not provide a basis for relief in this case under decision not to investigate must have been a Section 2255. decision not supported by reasonable professional judgment." Baran v. United d. Not Utilizing Extreme States, 160 F. Supp. 3d 591, 596 (S.D.N.Y. Disturbance Defense 2016) (internal quotation marks and citations omitted). Therefore, "[p ]ost-hoc complaints Petitioner asserts that he received about the strategy or tactics employed by trial ineffective assistance of counsel when his counsel, or complaints that trial counsel did defense counsel did "not utiliz[e] [the] not conduct a sufficiently vigorous pretrial extreme disturbance defense" due to the fact investigation, are typically found to be that he was a juvenile surrounded by gang insufficient to satisfy Strickland." Agyekum violence in his youth. (Pet., at 3.) v. United States, 0I-CIV-5808 (RWS), 2002 WL 1000950, at *5 (S.D.N.Y. May 16, 2002)
"Generally, the decision whether to *10 Case 2:12-cr-00317-JFB Document 148 Filed 07/11/25 Page 10 of 14 PageID #: 1072 e. Failure to Protect from a pursue a particular defense is a tactical choice Harsh Sentence and to Argue which does not rise to level of a constitutional violation." Jones v. Hollins, 884 F. Supp. Lack of Mens Rea 758, 765(W.D.N.Y.1995),a.ff'd,89F.3d826 (2d Cir. 1995). "Counsel is not required to Petitioner contends that he received present every nonfrivolous defense, but ineffective assistance of counsel because he instead, should 'winnow out weaker was not protected by his defense counsel from a harsh sentence. (Pet., at 3.) The Court arguments' and select witnesses and evidence that reflect counsel's strategy." Osorio v. disagrees. Conway, 496 F. Supp. 2d 285, 304 (S.D.N.Y. 2007) (quoting Jones v. Barnes, 463 U.S. Through defense counsel's efforts, a plea 745, 746 (1983)). Therefore, a "lawyer's agreement with a maximum sentence of 240 decision not to pursue a defense does not months was reached, even though, in the constitute deficient performance if, as is absence of the agreement, the defendant faced typically the case, the lawyer has a reasonable a potential mandatory life sentence if justification for the decision." DeLuca, 77 convicted on all counts. In addition, defense F.3d at 588 n.3. counsel filed a detailed sentencing submission
on petitioner's behalf and successfully The Court concludes that petitioner's obtained a below-Guidelines sentence of 228 characterization of the emotional disturbance months' imprisonment. In sum, there is no defense is flawed. Pursuant to New York merit to petitioner's claim that defense counsel State law, the extreme emotional disturbance was deficient either in the plea negotiations or defense is a partial affirmative defense raised in the sentencing phase of the case. when one is "under the influence of extreme emotional disturbance for which there was a Petitioner also argues that "no Mens Rea reasonable explanation or excuse, the [was] proven beyond a reasonable doubt for reasonableness of which is to be determined guilt of the murder being done by the from the viewpoint of a person in the petitioner." (Pet., at 3.) However, as the defendant's situation under the circumstances government notes, petitioner's sworn as the defendant believed them to be." N. Y. allocution contradicts this argument. Penal Law§ 125.25(1)(a)(i). Petitioner does Specifically, during petitioner's guilty plea, not explain how the extreme emotional he stated that he stabbed Mr. Castro, and that disturbance defense is applicable to the state he committed his criminal acts knowingly crimes that formed the basis of the federal and intentionally. (Plea Tr., at 18, 22.) charges to which he pied guilty. Moreover, there is no evidence in the record that would As noted above, "[ s ]olemn declarations in support such a defense in this case. Indeed, open court carry a strong presumption of both defense counsel stated that they did not verity." Blackledge, 431 U.S. at 74. believe there were any defenses that were Accordingly, the Court rejects petitioner's viable. (Wallenstein Deel., at 4; Keating Aff., belated assertion that the evidence failed to at 4.) In short, petitioner has failed to establish mens rea, as it is contradicted by demonstrate how that defense would have petitioner's plea allocution where he directly prevailed in this case and, thus, cannot admitted to his knowing, intentional, and demonstrate deficient performance or unlawful conduct. prejudice as it relates to this claim.
f. Failure to· Suppress the *11 Case 2:12-cr-00317-JFB Document 148 Filed 07/11/25 Page 11 of 14 PageID #: 1073 and citations omitted). Government's Evidence The sworn statements from both defense Petitioner argues that defense counsel was counsel demonstrate thorough investigations ineffective for failing to "suppress the prosecution[']s evidence and uncorroborated that included the initial filing of a suppression testimony from informant turned government motion by Mr. Wallenstein. Mr. Keating witness." (See Pet., at 3.) The government withdrew the motion only after obtaining a favorable plea agreement for the petitioner. responds:
Mr. Keating stated that he was "unaware of any viable motions that were available which First off, there was no trial so no could have addressed this assertion made by cooperating witnesses testified. Vasquez [ regarding the testimony of an However, even had the matter informant]" and "thoroughly reviewed all the proceeded to trial the testimony of all cooperating witnesses would have facts and circumstances of this case." been corroborated as per the (Keating Aff., at 4.) Accordingly, the Court extensive evidentiary proffer discerns no deficient performance in the withdrawal of the suppression motion or the provided by the government at the failure to make other motions, especially in time of the defendant's guilty plea light of the favorable plea deal negotiated by .... Additionally, Mr. Wallenstein did make a suppression motion but defense counsel. the motion was withdrawn by Mr. Keating after consulting with the g. No Filing a Sears Motion defendant, once Mr. Keating had the opportunity to test the strength of the Petitioner asserts that defense counsel government's case and after he was ineffective by failing to file a Sears secured what the defense believed motion. (Pet., at 3.) was a favorable plea disposition.
It is well-settled that "[a]n attorney's (Opp. Br., at 19.) [fJailure to make a meritless argument does not constitute ineffective assistance." United "In order to show ineffective assistance States v. Noble, 363 F. App'x 771, 773 (2d for the failure to make a suppression motion, Cir. 2010) (summary order) (quoting United the underlying motion must be shown to be States v. Arena, 180 F.3d 380, 386 (2d Cir. meritorious, and there must be a reasonable 1999)). probability that the verdict would have been different if the evidence had been Petitioner claims that a Sears motion was suppressed." United States v. Matos, 905 required because there can be "[ n ]o indictable F.2d 30, 32 (2d Cir. 1990). Significantly, conspiracy between [a] government agent "failure to make a suppression motion is not and [a petitioner] .... " (Pet., at 3); see Sears per se ineffective representation, where trial v. United States, 343 F.2d 139 (5th Cir. counsel fails to make a motion to suppress 1965). However, as the government correctly because he neglected to make reasonable notes, only one of petitioner's convictions is investigations or to make a reasonable a conspiracy charge and, with respect to that decision that makes particular investigations charge, petitioner allocuted to agreeing to unnecessary, then ineffective representation commit that murder with a number of other is shown." Id. at 33 (internal quotation marks MS-13 members. (Plea Tr., at 18.) *12 Case 2:12-cr-00317-JFB Document 148 Filed 07/11/25 Page 12 of 14 PageID #:
1074 Moreover, the government represents to the informed every step of the way about Court that "at no time prior to the murder of the discovery, what it revealed, what Castro were any of the defendant's co it didn't, and we discussed the conspirators working as an informant for the evidence when he decided to reject government." (Opp. Br., at 20.) the Government's plea offer and
stand trial. At the time I was relieved, In sum, petitioner has failed to articulate we were awaiting litigation of how a Sears motion would have had any motions and preparing for trial. merit and, therefore, defense counsel's When the Government's plea offer performance was not deficient in failing to was viable and he was considering file such a motion. what the best course would be, I
discussed with him the pros and cons h. Withholding Material Facts of accepting or rejecting a plea, and and Exerting Pressure to what he could expect if there were a Induce the Guilty Plea trial . . . . Together, we reviewed
documents and photographs, forensic reports, and narrative reports made Petitioner contends that defense counsel by law enforcement agents, and was constitutionally ineffective by talked about what they might mean to "misrepresent[ing] [] material facts[,] a jury. We q.iscussed in detail the withholding information and exerting sentencing options in the context of pressure on [a] juvenile defendant to induce [his] guilty plea" and that he would not have the then-viable plea offer. pied guilty otherwise. (Pet., at 4.)
Wallenstein Deel., at 5-6. Mr. Keating As a threshold matter, "[s]elf-serving similarly stated that he "did not misrepresent any material facts to Vasquez in an effort to conclusory allegations ... are insufficient to exert pressure or induce him to enter a guilty establish ineffective assistance of counsel." plea in this matter." (Keating Aff., at 5.) In Blumenberg v. United States, No. 05 Civ. 9416 (JGK), 2009 WL 3459185, at *3 addition, in his plea proceeding, petitioner (S.D.N.Y. Oct. 27, 2009) (citing United stated under oath that no one had induced States v. Torres, 129 F.3d 710, 715-17 (2d him, or forced him, to plead guilty. (Plea Tr., at 17.) Cir. 1997)); see also Hernandez, 2013 WL 4453316, at *12 ("A self-serving post In short, petitioner's unsubstantiated, conviction statement does not, standing alone, establish prejudice."). Moreover, the conclusory claim-which is contradicted by sworn statements by defense counsel refute his own sworn statement at the guilty plea and that conclusory allegation. For example, Mr. defense counsels' sworn statements---does Wallenstein stated: not provide a basis for relief under Section
2255. I have never, in more than 40 years of practice, engaged in that kind of i. Not Utilizing Video conduct. Aside from the lack of Statement Constituted a specificity, which makes this Brady Violation allegation unanswerable, I can emphatically state that nothing of this Petitioner argues that defense counsel's sort ever occurred. Vasquez was failure to utilize petitioner's videotaped
*13 Case 2:12-cr-00317-JFB Document 148 Filed 07/11/25 Page 13 of 14 PageID #: 1075 defense counsel were ineffective in their statement amounted to a Brady violation. representation of him as it relates to these (Pet., at 4-5.)
issues, including with respect to legal advice they provided regarding his guilty plea. Nor Generally, the "suppression by the prosecution of evidence favorable to an does petitioner articulate how any deficient accused upon request violates due process performance in these respects would have altered his decision to plead guilty. Thus, where the evidence is material either to guilt these ineffective assistance claims are or to punishment, irrespective of the good without merit. faith or bad faith of the prosecution." Brady v. Maryland, 313 U.S. 83, 87 (1963).
Moreover, to the extent that petitioner further argues that defense counsel were Petitioner has not explained how the constitutionally ineffective for making "to[ o] video statement in this matter was exculpatory, nor how the video was many cumulative errors that prejudiced suppressed since it was possessed by defense (petitioner's] opportunity at a fair result in his counsel. Indeed, at sentencing, defense trial and court proceedings" (Pet., at 2.), the counsel referenced his review of the Court similarly finds that vague claim to be videotape. (Sent. Tr., at 9-10.) In his without merit. affirmation, Mr. Keating confirmed that he "conducted a detailed review of the nine hour D. Actual Innocence videotape of Vasquez's interview." (Keating Aff., at 5.) Therefore, petitioner has failed to Petitioner also argues that he is entitled to demonstrate that there was any Brady relief because he "is actually and factually violation or that his counsel's performance innocent of the crimes he has been accused of was deficient in failing to utilize that video in committing." (Pet., at 5.) As a threshold an effective manner. matter, because there has been no procedural
default in connection with the Section 2255 Ineffective motion, petitioner need not demonstrate J. Additional Assistance of Counsel actual innocence to have his arguments Claims reviewed by this Court. Cf United States v.
Pena, 58 F.4th 613, 621 (2d Cir. 2023) Petitioner lists additional claims, ( explaining that, a "defendant can raise new exclusively by reference without providing arguments in a§ 2255 motion if the defendant establishes (1) cause for the procedural background support for any of these claims. default and ensuing prejudice or (2) actual The additional claims include that petitioner innocence" (internal quotation marks and was not allowed to notify a lawyer or his citation omitted)). In any event, his actual parents at the time of his arrest, that defense counsel failed to file fact-finding motions, innocence claim has no merit. and that there is a separation of powers issue because his indictment failed to list the As emphasized supra, "[a] criminal essential elements of the Racketeer defendant's self-inculpatory statements made Influenced and Corrupt Organizations Act under oath at his plea allocution . . . are ("RICO") statute. (Pet., at 4-5.) generally treated as conclusive in the face of
the defendant's later attempt to contradict them .... " Adames, 171 F.3d at 732 (internal The Court again finds that these conclusory claims failed to establish that quotation marks and citations omitted). Here, *14 Case 2:12-cr-00317-JFB Document 148 Filed 07/11/25 Page 14 of 14 PageID #:
1076 petitioner provided a detailed factual SO ORDERED. allocution during the plea proceeding that
- established his guilt and he has not offered /s/ Joseph F. Bianco any evidentiary support for his assertion that he is innocent of the crimes to which he pied HF. BIANCO guilty. Therefore, there is no basis for any nited States Circuit Judge claim of actual innocence. (sitting by designation)
Ill. Dated: July 11, 2025 CONCLUSION Central Islip, New York For the foregoing reasons, this Court finds that petitioner has demonstrated no basis for * * * relief under Section 2255. Accordingly, this petition for a writ of habeas corpus is denied Petitioner is proceeding pro se, in its entirety. Although the Court has Lewisburg, U.S. Penitentiary, P.O. Box 1000, referenced certain arguments and facts in this Lewisburg, PA, 17837. Respondent is Memorandum and Order from the sealed represented by Assistant United State papers submitted by the parties (as is Attorney John Durham, United States necessary to explain to the public the grounds Attorney's Office for the Eastern District of for the motion and the court's reasoning), New York, 610 Federal Plaz.a, Central Islip, such as the Wallenstein Declaration and NY 11722. Keating Affirmation, these underlying submissions by the parties will remain under seal.
Because petitioner has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue. See 28 U.S.C. § 2253(c)(2). The Clerk of the Court shall mail a copy of this Memorandum and Order to petitioner.
Petitioner has filed a separate motion to reduce his sentence under 18 U.S.C. § 3582(c). That pending motion will be decided in due course.
NOTES
[1] Mr. Wallenstein represented petitioner from including the guilty plea proceeding. (Keating Aft'., at approximately April 2012 through August 7, 2014, 1-2.) when Mr. Keating was substituted as counsel. (Wallenstein Deel., at 1-2.) Mr. Keating then represented petitioner through petitioner's sentencing, 3