Oppedisano v. United States, 13-CV-0161(JS)
| Decision Date | 12 August 2013 |
| Docket Number | 13-CV-0161(JS) |
| Parties | ROCCO OPPEDISANO, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
APPEARANCES
For Petitioner: Jeffrey C. Hoffman, Esq.
Susan C. Wolfe, Esq.
Hoffman Pollok LLP
For Respondent: Sean C. Flynn, Esq.
United States Attorney's Office
Eastern District of New York
Rocco Oppedisano ("Petitioner") petitions this Court to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. For the following reasons, Petitioner's application is DENIED.
In 2008, Petitioner was investigated in connection with suspected insurance fraud involving a yacht. (Pet. at 14-15.)1 Consequently, Postal Inspector Carl Vaccariello signed a search warrant application for the search of several addresses,including an apartment at 1 Bay Club Drive, Apartment 11F, Bayside, New York ("the Bay Club Apartment"). (Pet. at 14.) Although all of Petitioner's mail was sent to his parents' house at 7-32 Crescent Road, Whitestone, New York, which was also subject to the search warrant, "repeated surveillance . . . reveal[ed] that [Petitioner], in fact, reside[d] at [the Bay Club Apartment]." Further, Mr. Vaccariello stated that, according to his experience, individuals involved in financial and insurance fraud "frequently maintain [evidence] in their possession . . . for substantial periods of time." (4/6/09 Search Warrant at 13.) Thus, Magistrate Judge Michael L. Orenstein found that there was probable cause to search the listed addresses, including the Bay Club Apartment, and approved the application. (4/6/09 Search Warrant.)
Upon execution of the search warrant at the Bay Club Apartment on April 7, 2009, officers discovered white powder and ammunition in a credenza. (Pet. at 16.) The initial search warrant related only to the insurance fraud investigation, however. Thus, the Government sought, and obtained, a second search warrant authorizing it to seize the ammunition and powder. (Pet. at 16.) While executing the second warrant on April 7, 2009, police seized eighty-three .22 caliber bulletsand a white powder that tested positive for cocaine. (Tr. at 255; Pet. at 16.)
Before trial, Petitioner's counsel moved to controvert the second warrant, but not the first. (Pet. at 16.) The Court then held a trial on one count of Felon-In-Possession (pertaining to the ammunition) and one count for Possession of Cocaine. (Pet. at 17.) As part of that case, counsel stipulated to the prior felony element of the felon-in-possession count. (12/6/10 Stipulation, Ex. C of Docket Entry 7-1.) Additionally, during his opening statement, counsel mentioned that Petitioner was the subject of an insurance fraud investigation, setting the stage for the defense that the Government, frustrated by a lengthy, and thus far unsuccessful investigation into Petitioner's suspected involvement in an insurance fraud scheme, intentionally placed the ammunition and cocaine in the Bay Club Apartment. (Pet. at 17-18.) Petitioner now argues that these actions constituted ineffective assistance of counsel and infected his trial. (Pet. at 16-18.)
Petitioner maintains that his trial counsel was ineffective in violation of the Sixth Amendment, entitling him to relief pursuant to 28 U.S.C. § 2255. The Court will first discuss the applicable standard of review before addressing the merits of Petitioner's claims.
Section 2255 provides that "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. § 2255(b). "A defendant seeking a hearing on an ineffective assistance of counsel claim 'need establish only that he has a plausible claim of ineffective assistance of counsel, not that he will necessarily succeed on the claim.'" Raysor v. United States, 647 F.3d 491, 494 (2d Cir. 2011) (quoting Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009)).
"The procedure for determining whether a hearing is necessary is in part analogous to . . . a summary judgment proceeding." Puglisi, 586 F.3d at 213. Further, "[i]f material facts are in dispute, a hearing should usually be held, and relevant findings of facts made." Id. at 213. "Whether there is a genuine issue of material fact depends upon the sufficiency of th[e] factual allegations" in the Petition, and "[a]iry generalities, conclusory assertions and hearsay statements will not suffice because none of these would be admissible evidence at a hearing." United States v. Aiello, 814 F.2d 109, 113-14 (2d Cir. 1986). Instead, "[t]he petitioner must set forth specific facts which he is in a position to establish bycompetent evidence." LoCascio v. United States, 395 F.3d 51, 57 (2d Cir. 2005) (alteration in original) (internal quotation marks and citation omitted).
"It is within the district court's discretion to determine whether a hearing is warranted." Pham v. United States, 317 F.3d 178, 184 (2d Cir. 2003). Further, the Second Circuit has held that if the judge who presided over the underlying criminal proceeding also presides over the Section 2255 motion, which is the case here, "a full-blown evidentiary hearing may not be necessary." Raysor, 647 F.3d at 494. Although the Circuit generally "disapproves of summary dismissal of petitions where factual issues exist," if the paper record contains sufficient material to support the district court's denial of the petition, it may do so on the basis of written submissions alone. Pham, 317 F.3d at 184; see also Chang v. United States, 250 F.3d 79, 86 (2d Cir. 2001).
To sustain a claim based on ineffective assistance of counsel, Petitioner must demonstrate that (1) counsel provided deficient performance and that (2) there was prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish deficient performance, Petitioner must overcome the "strong presumptionthat counsel's conduct falls within the wide range of reasonable professional assistance" and show that "counsel's representation fell below an objective standard of reasonableness." Id. at 688-89. To show prejudice, Petitioner must demonstrate Id. at 694. Petitioner must satisfy both prongs of the Strickland test to be entitled to relief. Further, the test "is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard." Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001).
The Court will not question "sound trial strategy." Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83 (1955)). Further, "[j]udicial scrutiny of counsel's performance must be highly deferential," and "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. Otherwise, "[t]he availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation wouldencourage the proliferation of ineffectiveness challenges." Id. at 690.
The Petition asserts three claims for ineffective assistance of counsel: (1) trial counsel's failure to move to suppress or controvert the first search warrant; (2) trial counsel's failure to sever or bifurcate the trial; and (3) trial counsel's injection of prejudicial matters. (Pet. at 14, 16-17.) The Court will address each claim separately. Further, while Petitioner must prove both objective unreasonableness and prejudice, "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Calderon v. Perez, No. 10-CV-2562, 2011 WL 293709, at *34 (S.D.N.Y. Jan. 28, 2011) (internal quotation marks and citation omitted) (alteration in original), adopted by 2011 WL 1405029 (S.D.N.Y. Apr. 5, 2011).
Petitioner argues that counsel violated his Sixth Amendment right to effective assistance of counsel by failing to controvert the first search warrant, which, he claims, clearly lacked probable cause. (Pet. at 15-16.) The Court disagrees.
In the context of ineffective assistance of counsel claims for failure to controvert a warrant or suppress evidence, "Strickland requires that a [petitioner] show that: (1) acompetent attorney would have made the motion; (2) the suppression motion would have been successful; and (3) the outcome of the proceeding would have been different absent the excludable evidence." Watson v. Crowley, No. 07-CV-1111, 2011 WL 4639814, at *4 (internal quotation marks and citation omitted), adopted by 2011 WL 4639812 (S.D.N.Y. Oct. 6, 2011). The Second Circuit affords great deference to counsel in these analyses, as the Circuit is "reluctant to require defense counsel routinely to file boilerplate motions merely to vindicate their professional competence without regard for the grounds supporting such motions." United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987). Thus, "[i]t is sufficient that counsel exercised professional discretion in deciding whether there [were] sufficient grounds to file a motion." Id. (internal quotation marks and citation omitted).
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