Guerra v. United States, 17-CV-4432 (NGG)
| Decision Date | 10 April 2019 |
| Docket Number | 17-CV-4432 (NGG),10-CR-147 (NGG) |
| Parties | FRANCIS A. GUERRA, Petitioner, v. UNITED STATES OF AMERICA, Respondent. UNITED STATES OF AMERICA, v. FRANCIS A. GUERRA, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Francis A. Guerra ("Petitioner") brings this pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2255 (the "Petition"). (See Pet. (Dkt. 870).) For the reasons stated below, Guerra's Petition is DENIED.
The court assumes familiarity with the underlying facts of the proceedings. Thus, the court will only address information relevant to the instant petition.
On February 9, 2012, Petitioner and eight co-defendants were charged with multiple crimes based on their membership in, and association with, the Colombo organized crime family of La Cosa Nostra. (Superseding Indictment ("Indictment") (Dkt. 376).)1 Petitioner was allegedly an associate of the Colombo family. (Id. at 6-7.)
Petitioner's trial commenced on June 4, 2012. (See June 4, 2012 Min. Entry.)2 On July 11, 2012, the jury reached a verdict, finding Petitioner guilty of (i) conspiracy to distribute and possess with intent to distribute prescription drugs in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C); (ii) distribution of prescription drugs in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and (iii) four counts of wire fraud in violation of 18 U.S.C. § 1343. (See Am. J. (Dkt. 724) at 1-2.) Petitioner was found not guilty as to Count 1 (Racketeering Conspiracy), Count 20 (Extortion Conspiracy), and Count 21 (Extortion). (Id.)
The Probation Department produced a Pre-Sentence Investigation Report ("PSR") which found that the total weight of the drugs involved in Counts 22 and 23 was 159.43 grams. (PSR ¶21.) Accordingly, the Department found that the Guidelines offense level was 32 and the Guidelines range was 135 to 168 months' imprisonment because Petitioner was in Criminal History Category II. (Id. ¶¶ 50-63, 110.) On October 19, 2012, Guerra objected to the Department's finding regarding the drug quantity. (See Letter of Obj. to Sentencing Mem. (Dkt. 638) (Ex. C) at 1-2.) After the Government stated that the Probation Department's drug quantity finding was correct, the district court ordered a Fatico hearing to determine the drug amount. (See May 22, 2013 Min. Entry.)
On June 11, 2013, Judge Townes conducted a Fatico hearing to determine the drug quantity, offense level, and imprisonment range. (Tr. of Criminal Cause for Fatico Hr'g ("Tr. Fatico Hr'g") (Dkt. 664-2) at 1.) The Government offered into evidence trial testimony of cooperating witness Anthony Russo. (Id. at 98.) Russo testified at trial that, in 2010, he along with Ambrose Fabbro, and Petitioner participated in a scheme to obtain and re-sell Oxycontin. (Id. at 98-105.) Petitioner's role in the scheme, according to the testimony, was to obtain prescriptions for the drug due to his previous injuries stemming from a motorcycle accident. (Id. at 100.)
On July 24, 2013, the district court made its findings of fact. (July 24, 2013 Tr. of Criminal Cause for Sentencing (Dkt. 893-1).) The court made findings as to the amount and strength of pills as prescribed to Petitioner on each date reflected in the documentary evidence. (Id. at 3-6.) The court also found that Russo had testified credibly about the prescription drug scheme and Petitioner's role in the scheme. (Id. at 6-7.) Ultimately, the court found that the Government satisfied its burden of proving by a preponderance of evidence that Petitioner was responsible for all the pills prescribed to him, except for the pills he had ingested himself. (Id. at12-13.) Furthermore, the court found, after reviewing the parties' submissions, that it could consider uncharged and acquitted conduct at sentencing. (Id. at 15-25.)
The district court sentenced Petitioner on September 23, 2013. (Sept. 23, 2013 Min. Entry (Dkt. 711).) The court found that, pursuant to the Sentencing Guidelines, the total offense level was 32, the defendant was in Criminal History Category II, and the Guidelines range of imprisonment was 135 to 168 months. (See id; see also Sept. 23, 2013 Tr. of Criminal Cause for Sentencing ("Sept. Tr.") (Dkt. 893-2) at 2.) The court also found by a preponderance of the evidence that Petitioner participated in certain acquitted crimes, including the murder of Michael Devine, the murder of Joseph Scopo, and the assault of Gene Lombardo. (Id. at 19-23.) The court explained that these acquitted crimes were relevant sentencing considerations regarding Petitioner's danger to the public and the likelihood of recidivism. (Id. at 25-26.)
The court also considered Petitioner's physical conditions, and, after consulting with the Bureau of Prisons ("BOP"), found that the BOP could manage his unique medical conditions. (Id. at 26-27.) Ultimately, the court sentenced Petitioner to a 168-month term of imprisonment and a three-year term of supervised release. (Id. at 26-27.) The court imposed restitution in the amount of $2,175.31. (Id. at 27.)
Petitioner filed a notice of appeal to the district court's final judgment on March 21, 2014. (See Notice of Appeal (Dkt. 726).) Petitioner argued on appeal, inter alia, that his sentence was unreasonable because it was based in part on acquitted conduct. See United States v. Guerra, 647 Fed. App'x 38, 39 (2d Cir. 2016). On April 26, 2016, the Second Circuit issued an order affirming the district court judgment in its entirety. Id.
On June 1, 2015, Petitioner filed a motion to reduce his sentence based on amendments to the Sentencing Guidelines pertaining to drug offenses. (Mot. to Reduce Sentence (Dkt. 813) at 1.) On September 11, 2015, the Government filed a response acknowledging that the amendments reduced the applicable Guidelines range from 135-168 months to 108-135 months, but opposing a reduction based on the defendant's criminal history. (Resp. in Opp. to Mot. to Reduce Sentence (Dkt. 821) at 6.) On November 17, 2015, the district court granted the motion and reduced Petitioner's term of imprisonment from 168 months to 135 months. (See Nov. 17, 2015 Order, at 1.)
Petitioner timely filed the instant Petition on July 25, 2017, primarily asserting that he received ineffective assistance of counsel at trial, sentencing, and on appeal. (See Pet. at 1.)
Petitioner asserts that he received ineffective assistance of counsel at trial because of his trial counsel's failure to petition the court for Criminal Justice Act ("CJA") funds for the "retention of private investigator, experts, [and] summary witness to support [his] . . . defense" (id. at 11) and because of his trial counsel's "fail[ure] to investigate, prepare and mount a defense to counts 22-27 of the indictment" (id. at 16). Petitioner claims that he received ineffective assistance of counsel at sentencing because "[c]ounsel failed to investigate and present evidence . . . that the B[OP] does not provide the therapy needed . . . for pre-existing conditions." (Id. at 20.) Petitioner further argues that his counsel inadequately litigated the issue of drug-quantity, failed to assert his innocence, and failed to call Fabbro to testify at the sentencing. (Id. at 20, 22.) Petitioner claims that he received ineffective assistance of counsel on appeal by asserting that his appellate counsel inadequately argued the substantive reasonableness of his sentence and failed to challenge the district court's reliance on acquitted conduct. (Id. at 24-27.) Petitionerfurther claims that the district court violated his constitutional rights by (1) communicating ex parte with the BOP and (2) considering Petitioner's statement to pre-trial services. (Id. at 28, 31.) Finally, Petitioner asserts, with no specificity, that he (1) "remains incarcerated in violations [sic] of his Eighth Amendment protections," and (2) "is actually innocent of all counts of conviction."3 (Id. at 33.)
On October 1, 2018, the Government filed an opposition brief in response to Guerra's Petition. On January 21, 2019, Petitioner filed his reply. (See Pet'r Reply ("Reply") (Dkt. 896).).
Section 2255, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), permits a prisoner who was sentenced in federal court to "move the court which imposed the sentence to vacate, set aside, or correct the sentence" when he claims "the right to be released upon the ground that the sentence was imposed," among other reasons, "in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). "Because requests for habeas corpus relief are in tension with society's strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult to upset a conviction by collateral, as opposed to direct, attack." Ciak v. United States, 59 F.3d 296, 301 (2d Cir. 1995) (citing United States v. Frady, 456 U.S. 152, 165 (1982)). Therefore, a habeas petitioner must show "both a violation of [his] Constitutional rights and 'substantial prejudice' or a 'fundamentalmiscarriage of justice.'" Ciafarano v. United States, 585 F. Supp. 2d 360, 368 (E.D.N.Y. 2008) (quoting Ciak, 59 F.3d at 301).
Furthermore, in the case of a collateral challenge, two separate rules may preclude claims from being relitigated. Yick Man Mui, 614 F.3d at 53. The first of these is the mandate rule, which "bars re-litigation of issues already decided on direct appeal." Id. (citing Burrell v. United States, 467 F.3d 160, 165 (2d Cir. 2006); United States v. Minicone, 994 F.2d 86, 89 (2d Cir. 1993)). The mandate rule precludes...
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