SODANO v. UNITED STATES OF AMERICA

Filing 23

OPINION filed. Signed by Judge Peter G. Sheridan on 10/16/2017. (km)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JAMES SODANO,
Civil Action No. 14-7630 (PGS)
Petitioner,
v.

:

OPINION

UNITED STATES OF AMERICAN,
Respondent.
SHERIDAN, District Judge
This matter comes before the Court on a Motion to Vacate, Set Aside. or Correct Sentence
pursuant to 28 U.S.C.

§ 2255 (“Motion”) by Petitioner James Sodano, challenging a sentence

imposed by this Court in United States v. Sodano, No. I 2-cr-784, ECF No. 54 (D.N.J. entered Oct.
24, 2013) (“Crim. Dkt.”), for armed robbery and related crimes. Respondent has filed an answer,
ECF No. 6, and Petitioner filed a reply, ECF No. 9. For the reasons stated below, the Court denies
the Motion.
I.

BACKGROUND

For the purposes of this Opinion, the Court recites a summary of the facts of the case as
presented by the parties in their closing statements during the criminal trial. (See Crim. Dkt., ECF
No. 59.) To the extent the parties offered conflicting facts, the discrepancies are noted.
On the morning of May 19, 2011, money courier Steve Forlenza (“Forlenza”) was making
a delivery of $400,000 in cash from C & F Check Cashing (“C&F”) to El Escorial Bar (“Bar”).
When he arrived at the Bar, he was ambushed by Theodore Lada (“Lada”), and a shootout ensued.
Apparently surprised by the fact that Forlenza had a gun, Lada fled the scene without obtaining

the money. A moment later, however, Forlenza was shot in the back by an unidentified individual,
who took the money. He then shot Forlenza two more times, execution style, while Forlenza laid
face down on the ground, before fleeing in a car.
Minutes later, police was alerted to a car crash that occurred four blocks away from the
scene of the robbery. When they investigated, they found Petitioner slumped over the steering
wheel, wearing camouflaged gear and a bullet-proof vest, bleeding out from a serious gunshot
wound in his leg. Police also found several loaded guns, a revolver on his person with spent
rounds, and most damningly, a bloodied money bag with $400,000 in cash with receipts indicating
it was from C&F.
At Petitioner’s trial, Lada testified that he and Petitioner conspired to rob Forlenza that day,
and that Petitioner was the mastermind behind the conspiracy.

Forlenza, who miraculously

survived the ordeal, positively identified Lada as the man with whom he engaged in the initial
shootout, but testified that he did not see the second individual’s face. He did, however, testify
that he fired off one shot, and he believed that it hit the individual behind him in the lower part of
the body. Prosecution also produced several eyewitnesses who testified as to what they saw, with
some positively identifying Petitioner as the man who fled the scene in a car.
Petitioner, however, presented an entirely different version of the story. He testified that
there were three individuals at the robbery that day: Lada, himself, and a third individual named
Paul Pace (“Pace”). He further testified that Pace was a loan shark, and he owed Pace a large sum
of money. Fearing that he may be killed by Pace over the debt, Petitioner agreed to participate in
the robbery under duress. According to Petitioner, that morning, both he and Pace exited the car,
and Pace fired the initial shot at Forlenza. He then ordered Petitioner to grab the money bag, and
when Petitioner refused, he shot Petitioner in the leg, which caused Petitioner to comply. Pace

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then ordered Petitioner to get into the car, and both fled the scene in the car. Although unclear
from the transcript, the Court presumes that according to Petitioner’s story, Pace was the individual
who fired the two additional shots at Forlenza before they fled the scene. Petitioner further testified
that before the car crash, Pace ordered Petitioner to let him out, and told Petitioner to “wipe down”
the car, before Petitioner allegedly wrestled both the gun and the money away from Pace. Beyond
a police report recounting one conflicting eyewitness account—from an unidentified individual
whom the police interviewed at the scene—stating that two individuals fled the scene in the car,
Petitioner produced no evidence, other than his own testimony, to support his three-person robbery
theory. Petitioner was found guilty on all counts by the jury.
II.

STANDARD OF REVIEW

A prisoner in federal custody under sentence of a federal court “may move the court which
imposed the sentence to vacate, set aside or correct the sentence” upon three grounds: (1) “that the
sentence was imposed in violation of the Constitution or laws of the United States;” (2) “that the
court was without jurisdiction to impose such sentence;” or (3) “that the sentence was in excess of
the maximum authorized by law.” 28 U.S.C.

§ 2255(a).

A criminal defendant bears the burden of establishing his entitlement to
United States v. Davies, 394 F.3d 182, 189 (3d Cir. 2005). Moreover, as a

§ 2255 relief. See

§ 2255 motion to vacate

is a collateral attack on a sentence, a criminal defendant “must clear a significantly higher hurdle
than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982) (citation
omitted).
In considering a motion to vacate a defendant’s sentence, “the court must accept the truth
of the movant’s factual allegations unless they are clearly frivolous on the basis of the existing
record.” United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (citation omitted). “It is the

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policy of the courts to give a liberal construction to pro se habeas petitions.” Rainey v. Varner,
603 F.3d 189, 198 (3d Cir. 2010).

The Court may dismiss the motion without holding an

evidentiary hearing if the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief. See 28 U.S.C.

§ 2255(b); Liii v. United State, No. 11-4646, 2013

WL 4538293, at *9 (D.N.J. Aug. 26, 2013) (citing Booth, 432 F.3d at 545-46).
III.

DISCUSSION

The Motion raises nine claims, all of them asserting ineffective assistance of counsel.
Specifically, Petitioner contends that counsel provided ineffective assistance when: (1) counsel
failed to object to the use of shackles visible to the jury to restrain Petitioner during trial; (2)
counsel erroneously stipulated to “the shootings,” ECF No. 1 at 6; (3) counsel failed to note at trial
that there was no struggle between Petitioner and Forlenza for the money bag; (4) counsel failed
to obtain a gun expert for trial; (5) counsel failed to adequately challenge the inconsistencies and
the inaccuracies of eyewitness testimonies; (6) counsel failed to call as witness the doctor who
operated on Petitioner’s gunshot wound to the knee; (7) counsel failed to adequately challenge
Forlenza’s testimony;’ (8) counsel failed to file a reply brief on direct appeal; and (9) counsel failed
to object to Lada’s testimony on the ground that “common law” bars the testimony of an infamous
person. The Court rejects these claims.
A. Ineffective Assistance of Counsel Standard

The Sixth Amendment guarantees the accused the “right

.

.

.

to have the Assistance of

Counsel for his defense.” U.S. Const. amend. VI. The right to counsel is the right to the effective
assistance of counsel, and counsel can deprive a defendant of the right by failing to render adequate
legal assistance. See Strickland v. Washington, 466 U.S. 668, 686 (1984). A claim that counsel’s

The Court construes Grounds Seven and Nine of the Motion as raising the same claim.
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assistance was so defective as to require reversal of a conviction has two components, both of
which must be satisfied. Id. at 687. First, the defendant must “show that counsel’s representation
fell below an objective standard of reasonableness.” Id. at 687-88.

To meet this prong, a

“convicted defendant making a claim of ineffective assistance must identify the acts or omissions
of counsel that are alleged not to have been the result of reasonable professional judgment” Id. at
690. The court must then determine whether, in light of all the circumstances at the time, the
identified errors fell “below an objective standard of reasonableness.” Hinton v. Alabama, 134 S.
Ct. 1081, 1083 (2014) (citation omitted). To satisfy the prejudice prong, “a defendant need not
show that counsel’s deficient conduct more likely than not altered the outcome in the case.”
Strickland, 466 U.S. at 693.2 To establish prejudice, the defendant must show that “there is a
reasonable probability that the result of the [case] would have been different absent the deficient
act or omission.” Hinton, 134 S. Ct. at 1083.
B. Shackles

Petitioner asserts that counsel was ineffective for not objecting to the use of shackles during
trial. The Court rejects this claim. Counsel was not ineffective for not objecting because there
was nothing to object—although shackles were used during trial, they were not visible to the jury
and therefore did not violate the Constitution.
The Supreme Court has held that the use of shackles visible to the jury during a criminal
trial, without justification found by the Court, violates a defendant’s due process rights. See Deck
v. Missouri, 544 U.S. 622, 629 (2005) (“The law has long forbidden routine use of visible shackles
during the guilt phase[.]”) (emphasis added). In that regard, the Third Circuit has held that the use

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The reasonable probability standard is less demanding than the preponderance of the evidence
standard. See Nix v. Whiteside, 475 U.S. 157, 175 (1986); Baker v. Barbo, 177 F.3d 149, 154 (3d
Cir. 1999).
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of shackles does not violate the Constitution, even absent just cause, if care was taken to ensure
that the shackles were never visible to the jury. See United States v. Tagliamonte, 340 F. App’x
73, 80 n.6 (3d Cir. 2009) (rejecting a defendant’s contention that the “use of [shackling] is itself
something of an affront to the very dignity and decorum of judicial proceedings that the judge is
seeking to uphold[,]” finding there was no constitutional violation when shackling was not visible
to the jury).

1-lere, Respondent asserts that while Petitioner was shackled during his trial, at no time did
the jury have an opportunity to observe Petitioner in shackles, because the defense table where
Petitioner sat was covered by drapes and therefore obscured the shackles, and Petitioner was
always transferred to and from that table outside the presence of the jury. Petitioner, in his reply,
does not dispute this assertion, but instead argues, without citing any authority, that “[ajithough
Courts can take measures to obscure shackles—and should do so even in the rare circumstances
that justify shackling—obscured shackles are no less an indignity than visible ones. Moreover,
relief may still be appropriate even despite efforts to hide restraints from the Jury.” ECF No. 9 at
6. This, of course, is the same argument that was rejected by Tagliamonte.
Trial transcripts filly support Respondent’s assertion. During one sidebar, the Court and
the parties discussed the possibility of Petitioner testifying at trial, and the need for him to display
his leg injury to the jury, which would then reveal his shackles.

it was clear that both the

prosecution and the defense counsel were fully cognizant of the constitutional ramifications of
shackling and its visual effects to the jury, and went to great lengths to discuss various ways to
accommodate the defense while avoid displaying the shackles to the jury. See Crim. Dkt., ECF
No. 39 at 589:14-592:20. Ultimately, defense counsel elected to use photographs of the injury,
and avoided the shackling problem altogether. Id. at 775:21-776:10. This entire discussion would

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be wholly unnecessary if the shackles were already on full display to the jury during trial. Defense
counsel did not object to the use of shackles itself because he understood the law, that only visible
shackles pose constitutional issues. As such, the Court finds that counsel was not ineffective on
this ground, and relief is denied.
C. Other Claims

The rest of Petitioner’s claims essentially challenges counsel’s alleged deficiencies in
presenting the three-person robbery theory. Putting aside the fact that the record supports the
conclusion that counsel rigorously argued and presented the theory, even assuming all of the
alleged deficiencies were true, Petitioner was not prejudiced because overwhelming evidence
supported his guilt. See Saranchak v. Beard, 616 F.3d 292, 311 (3d Cir. 2010) (holding that
overwhelming evidence against petitioner precludes a finding of prejudice in an ineffective
assistance of counsel claim).
As the Third Circuit highlighted on direct appeal, the most damning evidence in this case
was “quite tellingly, a blood-stained bag of money” that was found in the getaway vehicle with
Petitioner. United States v. Sodano, 592 F. App’x 114, 115 (3d Cir. 2014). Indeed, three pieces
of the most damning evidence sunk Petitioner’s theory: (1) Lada’s testimony that this was a twoperson robbery; (2) Forlenza’s testimony that he was involved in a shootout with Lada who
escaped, and he shot the man behind him who he did not see; and (3) Petitioner was discovered in
possession of the money with a gunshot wound in his leg four blocks away from the scene. Even
without any other evidence, the only conclusion the jury could have drawn was that it was
Petitioner who shot Forlenza, took the money, and escaped in the car, because there was no one
else involved.

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As stated above, Petitioner presented no affirmative evidence to substantiate his theory
other than his own testimony, and a police report regarding some unnamed witness who stated that
he may have seen two people escape in the car. While it is true that the prosecution never truly
disproved the theory, that was not the prosecution’s burden—the prosecution only had to prove,
beyond a reasonable doubt, that Petitioner committed the crime. The Court admits that the threeperson robbery theory was a clever attempt at creating reasonable doubt, but nevertheless, the jury
must have found it not believable because it convicted Petitioner. Now on habeas, Petitioner’s
ineffective assistance of counsel claims are attempting to highlight that same reasonable doubt,
but that is no longer the standard. It is now Petitioner ‘s burden to show that he is entitled to relief,
and on an ineffective assistance of counsel claim, it is his burden to show not only deficient
performance by counsel, but also prejudice arising from such deficient performance; that is, the
outcome of the trial would have been different.
However, none of the alleged ineffective assistance attacked the validity of the most
damning evidence recited above, with the exception of Petitioner’s contention that “common law”
prohibited Lada’s testimony because he was “infamous.” Such doctrine, of course, does not exist,
nor does Petitioner cite to any authority attesting to its existence. Petitioner simply presents no
additional evidence to substantiate his three-person robbery theory, which the jury already rejected
based in the available evidence. Indeed, Petitioner would have the jury at trial, and now the Court
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For example, Petitioner alleges that counsel could have obtained a gun expert or solicited the
testimony of his surgeon, but he provides no evidence to show that the expert or the surgeon would
have actually provided any testimony favorable to him. See Perez v. United States, No. 14-6682,
2017 WL 2304230, at *3 (D.N.J. May 25, 2017) (finding a petitioner’s claim that counsel could
have obtained expert testimony was insufficient to state an ineffective assistance of counsel claim,
when the petitioner presented no evidence, such as an actual expert report, to show that the expert
would have substantiated his claim of actual innocence).
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on habeas, believe that Pace would ask a man who was bleeding profusely from a gunshot wound
to “wipe down” the car—the absurdity of that story is self-evident.
To conclude, even if the Court accepts Petitioner’s contention that counsel could have done
more, Petitioner has not shown there is a reasonable probability that the outcome of the trial would
have been different. All of the evidence he relies on were already presented to the jury, and the
jury rejected his theory of the case, so there is no occasion for the Court to question the jury’s
verdict. As such, the Court finds Petitioner has failed to show that he suffered any prejudice from
the alleged ineffective assistance of counsel, and relief on these grounds is denied.
IV.

CERTIFICATE OF APPEALABILITY

Lastly, the Court denies a certificate of appealability (“COA”). Pursuant to 28 U.S.C.

§

2253(c), unless a circuit justice or judge issues a certificate of appealability, an appeal may not be
taken from a final order in a proceeding under 28 U.S.C.

§ 2255. A certificate of appealability may

issue “only if the applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C.

§ 2253(c)(2). “A Petitioner satisfies this standard by demonstrating that jurist of reason

could disagree with the district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller
El v. Cockrell, 537 U.S. 322, 327 (2003). Here, Petitioner has failed to make a substantial showing
of the denial of a constitutional right. Thus no certificate of appealability shall issue. See Fed. R.
App. P. 22(b)(1); 3d Cir. L.A.R. 22.2.

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V.

CONCLUSION

For the reasons set forth above, Petitionefs Motion is DENIED and the Court denies a
certificate of appealability.

(,

Peter G. Sheridan
United States District Judge

Date:

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/‘

(// .