Lugo v. United States

• Decision Date: 12 December 2014
• Docket Number: 09-cv-00696-NG
• Parties: Richard LUGO, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of New York

Richard LUGO, Petitioner,
v.
UNITED STATES of America, Respondent.

09-cv-00696-NG

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

December 12, 2014

OPINION AND ORDER

GERSHON, United States District Judge:

Petitioner Richard Lugo ("Lugo"), pro se, moves to vacate his conviction and sentence under 28 U.S.C. § 2255. On July 26, 2005, following a jury trial, petitioner was convicted of murder in aid of racketeering, conspiracy to commit murder in aid of racketeering, and use of a firearm in furtherance of a crime of violence. He was sentenced to a life term of imprisonment, and his conviction was affirmed by summary order in United States v. Lugo, 251 Fed. App'x 695 (2d Cir. 2007), cert, denied, 553 U.S. 1047 (2008).

In support of his habeas petition, Lugo asserts that counsel provided constitutionally ineffective assistance at various stages of his criminal proceedings. In particular, he claims that his trial and appellate counsel were ineffective in (a) failing to challenge his indictment, prosecution, and conviction on aiding and abetting and co-conspirator theories of liability after the acquittal of Daniel Lugo on the same charges; (b) failing to assert his speedy trial rights; (c) failing to move to suppress a custodial statement elicited in violation of his Sixth Amendment right to counsel; (d) failing to move to dismiss the indictment on the ground that he was never arraigned on the second superseding indictment; (e) failing to file a motion alleging prosecutorial

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misconduct; (f) failing to challenge the sufficiency of the evidence; (g) failing to investigate his case; (h) failing to move for a new trial on the ground of newly discovered evidence; (i) failing to challenge his conviction based on a comment by the court at sentencing; (j) the existence of "conflict of interest" between him and his trial counsel; and (k) failing to advise him regarding the government's plea offer and his maximum sentencing exposure. He also claims that his appellate counsel generally provided constitutionally ineffective assistance on appeal. Finally, he claims that his conviction and sentence for possessing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c), should be vacated in light of Alleyne v. United States, --- U.S. ----, 133 S. Ct. 2151 (2013).

For the reasons stated below, the court finds that petitioner has not demonstrated any basis for habeas relief and therefore denies the petition in its entirety.

BACKGROUND

A. The Indictments

On August 15, 2001, a grand jury returned an indictment charging Darryl Tyler, Michael McMillan, Kenneth Watson, Dwayne Hunter, Tonya Foster, Daniel Lugo, and Richard Lugo with various crimes, including racketeering, racketeering conspiracy, murder in aid of racketeering, conspiracy to commit murder in aid of racketeering, narcotics conspiracy, and firearms offenses. All of the defendants were arrested in October 2001 with the exception of Richard Lugo, who remained a fugitive until January 2003. Hunter and Foster agreed to plead guilty to the charges against them.

On June 7, 2002, a grand jury returned a superseding indictment against Tyler, McMillan, Watson, Daniel Lugo, and Richard Lugo. This indictment charged Richard and Daniel Lugo with conspiracy to commit murder in aid of racketeering, murder in aid of racketeering, and the use and possession of a firearm in furtherance of a crime of violence.

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Richard Lugo was apprehended in January 2003 for using a false driver's license. On November 17, 2003, a grand jury returned a second superseding indictment charging him with conspiracy to commit murder in aid of racketeering, murder in aid of racketeering, and the use and possession of a firearm in furtherance of the aforementioned offenses.

B. The Trial of Daniel Lugo, Tyler, McMillan, and Watson

Daniel Lugo, Tyler, McMillan, and Watson were tried before the Hon. Jack B. Weinstein, district judge, in July 2002. The jury found Daniel Lugo guilty of conspiracy to commit murder in aid of racketeering, but he was acquitted of the murder and firearms charges. He was sentenced to the statutorily authorized maximum sentence of ten years' imprisonment. Tyler, McMillan, and Watson also were acquitted of murder, but Tyler and Watson were convicted of conspiracy to commit murder in aid of racketeering, and all three defendants were convicted of racketeering, racketeering conspiracy, and narcotics conspiracy. Tyler, McMillan, and Watson each were sentenced to a life term of imprisonment.

C. The Trial of Richard Lugo

Richard Lugo's trial commenced before the undersigned district judge in December 2003.¹ The facts established at trial show:

Beginning in the early 1980s, Tyler (also known as "D-Nice") ran the "D-Nice Enterprise," which distributed large quantities of powder and crack cocaine in New York City. The D-Nice Enterprise later expanded its narcotics business to Baltimore, Maryland. In 1996, Tyler learned that several members of the Enterprise's operations in Baltimore—including Barry Hall ("Little Jus") and Lanny Dillard—had been selling cocaine for their own profit. Tyler

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ordered them to stop. On a visit to Baltimore shortly thereafter, Tyler was shot in an apparent assassination attempt.

The D-Nice Enterprise declared war on the now-rival "Little Jus crew." They sought to avenge the attempt on Tyler's life by killing Little Jus, Lanny Dillard, and other members of the rival crew. The ensuing turf war led to several violent confrontations. As a result, Tyler hired gunmen McMillan and Watson to provide security for the Enterprise's operations. In 1998, when Tyler and Erwin Stokes, one of his trusted lieutenants, encountered Dillard, Tyler accused Dillard of attempting to kill him and his brother, Eric Steel ("Tweety"). Less than a month later, on November 16, 1998, Tweety was shot and killed by two unknown assailants.

Believing the Little Jus crew to be responsible, the D-Nice Enterprise hired brothers Richard and Daniel Lugo (the "Lugo brothers") to seek out and kill members of the rival drug operation. On several occasions, Tyler gave Richard Lugo money as a down payment for their services. Eventually, the D-Nice Enterprise learned that members of the Little Jus crew were likely to attend at a party in Manhattan on December 26, 1998. They advised the Lugo brothers. On the night of the party, Tyler, Stokes, and other members of the D-Nice Enterprise met the Lugo brothers at a nearby pool hall. Tyler instructed Hunter, an associate, to search the party for the Little Jus crew, and Hunter called to confirm that Dillard was in attendance. In the early morning hours of December 27, 1998, Dillard was shot and killed as he left the party with his wife and family.

Shortly after Dillard's murder, Tyler, Stokes, and other D-Nice Enterprise members met Daniel Lugo at Junior's Restaurant in Brooklyn and gave him an envelope containing cash. A few days later, Tyler gave the balance of a $30,000 payment to Richard Lugo at another meeting near Junior's. At Tyler's direction, Stokes then delivered two guns to Richard Lugo at Lugo's

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apartment. Lugo told Stokes that he could kill other members of the Little Jus crew for an additional $60,000. Stokes later delivered a few ounces of heroin to Lugo. During that meeting, Lugo questioned Stokes about the whereabouts of other members of the Little Jus crew. After Lugo complained to Tyler about the quality of the heroin, Stokes returned to collect the drugs. At this encounter, Lugo sought Stokes's approval to kill another member of the Little Jus crew, but Stokes informed him that only Tyler could give him permission to carry out the hit.

The government's witnesses included four former members and associates of the D-Nice Enterprise who testified pursuant to cooperation agreements. Erwin Stokes, Robert McCall (a drug dealer), and Yakkov Lefkowitz (a drug courier) testified about the Enterprise's narcotics business and the conspiracy to murder members of the Little Jus crew, including the murder of Lanny Dillard. Hunter, the fourth cooperating witness, testified about the plans that led to Dillard's murder. The jury also heard from several eyewitnesses to the events surrounding the shooting, including the victim's wife, and from law enforcement officers who had investigated various aspects of the D-Nice Enterprise's activities.

In addition, Rolando Lorenzo, a convicted prisoner who met Richard Lugo at the Metropolitan Detention Center, testified about several conversations he had with Lugo shortly after Lugo was apprehended. Talking through the air vents, Lugo sought Lorenzo's advice about his case, which he said involved a contract killing. After Lorenzo warned Lugo that "the walls got ears," Lugo sent Lorenzo a letter inside a magazine. The letter, which was introduced at trial, referred to a meeting between Lugo and an "informant" regarding an offer to "rock someone off the piece" in exchange for "10 cent and a car." The letter then asked Lorenzo, "[c]an they use that against a fella?" Because Lorenzo could not read, Lugo had to explain to him that an individual had asked him to "rock," i.e., kill, someone in exchange for $10,000 and a car. Lugo

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believed that this individual now was cooperating with the government and wanted to know whether this conversation could be used against him at trial.

The government also introduced a tape-recorded conversation between Richard Lugo and his brother Robert Lugo discussing the letter. During the conversation, Robert informed Richard that the government was seeking a handwriting sample to compare to the letter. Richard agreed with his brother that this posed a serious problem. At trial, a handwriting expert, Peter Tytell, testified that he had obtained handwriting exemplars from Lugo on two occasions to compare to the letter that Lugo had sent to Lorenzo. On the first occasion, Lugo wrote unusually slowly and refused to continue after writing three...