Guzman v. U.S., 02 Civ. 8459(SAS).

• Decision Date: 16 June 2003
• Docket Number: No. 02 Civ. 8459(SAS).,02 Civ. 8459(SAS).
• Citation: 277 F.Supp.2d 255
• Parties: Miguel A. GUZMAN, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of New York

277 F.Supp.2d 255

Miguel A. GUZMAN, Petitioner, v. UNITED STATES of America, Respondent.

No. 02 Civ. 8459(SAS).

United States District Court, S.D. New York.

June 16, 2003.

COPYRIGHT MATERIAL OMITTED

Ruth M. Liebesman, New York, New York, for Petitioner.

Robin L. Baker, Assistant United States Attorney, New York, New York, for Respondent.

OPINION AND ORDER

SCHEINDLIN, District Judge.

Miguel A. Guzman was the leader of a gang known as "Power Rules" which distributed heroin, cocaine and crack cocaine in the Bronx. In June of 1998, following a three-month jury trial, Guzman was found guilty of racketeering, murder, narcotics conspiracy, firearms and other charges. Guzman was sentenced to six concurrent terms of life imprisonment on the racketeering count (Count 1), the racketeering conspiracy count (Count 2), the murder-in-aid-of-racketeering count (Count 4), and the three drug conspiracy counts (Counts 29, 30 and 31), plus 145 consecutive years of imprisonment on the firearms charges. Guzman now brings this petition pursuant to section 2255 of Title 28 of the United States Code seeking to vacate his life sentences and have this Court re-sentence him on those six counts.

In his petition, Guzman claims both underlying constitutional violations and ineffective assistance of counsel in connection with those violations. Specifically, Guzman asserts that: (1) his sentencing counsel was ineffective for failing to object to this Court's reliance on an allegedly incorrect section of the United States Guidelines in imposing life sentences on the racketeering and racketeering conspiracy charges; (2) his rights under the Ex Post Facto clause were violated by this Court's imposition of a statutorily-mandated life sentence on the murder-in-aid-of-racketeering charge, his sentencing counsel was ineffective in allowing such a sentence to be imposed, and his appellate counsel was ineffective for failing to raise the issue on appeal; and (3) his rights under the Due Process Clause were violated in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and his appellate counsel was ineffective for failing to raise that issue on appeal. For the following reasons, Guzman's petition is denied in part and granted in part.

I. BACKGROUND

Indictment S8 97 CR 786(SAS) was filed on March 2, 1998, in fifty-two counts,¹ charging Guzman and twelve co-defendants with various crimes arising from their involvement with a racketeering enterprise known as "Power Rules." Count One charged Guzman with racketeering in violation of 18 U.S.C. § 1962(c) ("RICO"). With respect to Count One, Guzman was charged with participating in twenty predicate racketeering acts. Count Two charged Guzman with conspiracy to violate the racketeering laws in violation of 18 U.S.C. § 1962(d) ("RICO Conspiracy"). Counts Three through Twenty-Three charged Guzman with conspiracy to murder, murder, attempted murder in aid of racketeering in violation of 18 U.S.C. §§ 1959(a)(1) and (5). Count Four charged Guzman with the murder of Neil Cintron in violation of 18 U.S.C. §§ 1959(a)(1) and (2). Count Twenty-Nine charged Guzman with a conspiracy to distribute more than one kilogram of heroin in violation of 21 U.S.C. § 846. Counts Thirty and Thirty-One charged Guzman with conspiracy to distribute more than five kilograms of powder cocaine and more than fifty grams of crack cocaine, respectively, also in violation of 21 U.S.C. § 846. The jury did not, however, determine any drug quantities with regard to these offenses.

Trial commenced on March 19, 1998, and ended on June 12, 1998, when the jury found Guzman guilty of a majority of the charges. At sentencing, Guzman was represented by Jeremy Gutman, who replaced Labe M. Richman, Guzman's trial attorney. On May 11, 1999, this Court sentenced Guzman to life imprisonment plus 145 consecutive years, lifetime supervised release and a mandatory $2,050 special assessment. Specifically, Guzman was sentenced to life imprisonment on Counts One and Two, Count Four and Counts Twenty-Nine through Thirty-One; twenty years imprisonment on Counts Six, Seven, Thirteen, Seventeen, Eighteen, Twenty-One, and Twenty-Five through Twenty-Seven; ten years imprisonment on Counts Three, Five, Ten, Twelve, Sixteen and Twenty; and three years imprisonment on Count Twenty-Four. All of these terms were imposed to run concurrently. To run consecutively were the 145 years imposed on the section 924(c) convictions.²

Guzman appealed his convictions to the Second Circuit where he was represented by a third attorney, Theodore S. Green. On appeal, Guzman argued that: (1) this Court erred in discharging one of the jurors for cause; (2) post-arrest statements of two of his co-defendants were improperly redacted and admitted; (3) the murder of Alberto Garcia was not related to the enterprise; (4) he was denied his confrontation rights when a witness asserted his Fifth Amendment privilege against self-incrimination in response to certain questions elicited upon cross-examination; and (5) this Court abused its discretion in rejecting his pro se post-trial motion. On March 23, 2001, the Second Circuit rejected these arguments and affirmed Guzman's convictions in an unpublished decision. See United States v. Guzman, No. 99-1262(L), 7 Fed.Appx. 45, 2001 WL 290508 (2d Cir. Mar.23, 2001). Guzman filed a pro se petition for a writ of certiorari which was denied by the United States Supreme Court on October 1, 2001. See Guzman v. United States, 534 U.S. 867, 122 S.Ct. 154, 151 L.Ed.2d 104 (2001).

II. LEGAL STANDARDS

A. Standard for Habeas Relief

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, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)); accord United States v. DeLuca, 889 F.2d 503, 506 (3d Cir.1989).

B. Right to Effective Assistance of Counsel

The Sixth Amendment guarantees a fair trial and competent counsel in all criminal prosecutions. See U.S. Const. Amend. VI. The Sixth Amendment "stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not still be done." Gideon v. Wainwright, 372 U.S. 335, 343, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

To prove that counsel was constitutionally ineffective, a petitioner must satisfy the two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A petitioner must first show that his counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms." See id. at 688, 104 S.Ct. 2052. The second prong requires a petitioner to "affirmatively prove prejudice," i.e., to demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. A reasonable probability is a probability sufficient to undermine confidence in the outcome. See id. Judicial scrutiny of an attorney's performance is highly deferential as there is a strong presumption that "counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052.

III. DISCUSSION

A. The Use of the First Degree Murder Guideline to Calculate the Base Offense Level on the Racketeering Counts Was Appropriate

In convicting Guzman of RICO and RICO conspiracy (Counts One and Two), the jury found that he committed, or aided and abetted the commission of, four murders "in violation of New York State law." Indictment ¶¶ 7(b), 8(b), 9(d), 10(b). In calculating Guzman's base offense level, this Court applied United States Sentencing Guideline ("U.S.S.G.") § 2A1.1, entitled "First Degree Murder." See PSR ¶¶ 125, 139, 146, 153. No party objected. Under New York State law, these murders were denominated as "Murder in the Second Degree." See New York Penal Law § 125.25.³ Guzman now argues that his sentencing counsel was ineffective for not asking the Court to apply U.S.S.G. § 2A1.2, entitled "Second Degree Murder," which would have resulted in a lower base offense level.

Guzman is correct that New York law would categorize the four murders as "Murder in the Second Degree." But Guzman ignores the fact that the same conduct that constitutes second-degree murder under New York law also constitutes first-degree murder under federal law. Under the Guidelines for racketeering offenses, "[i]f the underlying conduct violates state law, the offense level corresponding to the most analogous federal offense is to be used." U.S.S.G. § 2E1.1, Application Note 2. Under federal law, any "willful, deliberate, malicious and premeditated killing ... is murder in the first degree." 18 U.S.C. § 1111(a). Thus, first-degree murder in violation of section 1111 is the federal offense most analogous to the murders for which Guzman was convicted and U.S.S.G. § 2A1.1 was the correct Guideline for determining Guzman's base offense level on Counts One and Two. See United States v. Minicone, 960 F.2d 1099, 1110 (2d Cir.1992) ("Although New York law would have categorized the murder of Marrone only as second degree murder, the task of the district court was to find...