Spataro v. United States of America
ORDER re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Michael Spataro. The petition is denied. SEE ATTACHED. Ordered by Judge Sterling Johnson, Jr on 2/19/2013. (Figeroux, Davina)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- against -
10 CV 2668 (SJ)
MEMORANDUM AND ORDER
UNITED STATES OF AMERICA,
A P P E A R A N C E S:
MICHAEL H. SOROKA, ESQ.
300 Old Country Road
Mineola, NY 11501
Attorney for Petitioner
CHARLES J. HYNES, ESQ.
Kings County District Attorney
350 Jay Street
Brooklyn, New York 11201-2908
Leonard Joblove, Esq.
Shalom J. Twersky, Esq.
Assistant District Attorneys
Attorneys for Respondent
JOHNSON, Senior District Judge:
Petitioner Michael Spataro (“Petitioner”) has petitioned this Court for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2255 (“§ 2255”), requesting that the Court vacate, set aside, or
correct the conviction and sentence imposed under criminal docket number 04-cr-911 (SJ). For
the reasons stated below, the petition for habeas corpus is denied.
I. Prior Proceedings
Petitioner and several co-defendants were originally indicted on October 13, 2004, in a
sealed indictment charging various criminal conspiracies related to organized crime. On January
30, 2006, petitioner went to trial with co-defendant Carmine DeRoss on a superceding
indictment filed December 15, 2005.1 Petitioner was alleged to have participated in a conspiracy
to murder Joseph Campanella, by serving as a messenger between other conspirators and by
driving the shooter to the location of the attempted murder. Petitioner was represented at trial by
attorney Thomas R. Ashley (hereinafter “Ashley” or “Counsel”). The case was prosecuted by
Assistant United States Attorneys Thomas Joseph Siegal (“Siegel”) and Deborah Sue Mayer.
The evidence at trial consisted of witness testimony, telephone records, audio recordings,
and photographs. It showed that, on July 16, 2001, Joseph Campanella, an alleged soldier in the
Colombo crime family, was shot by Vincent DeMartino from a car driven by Giovanni Floridia.2
Floridia testified that petitioner acted as a messenger between DeMartino and Floridia and other
members of the Colombo family. (Tr. at 476.) Floridia testified that he called DeMartino the
morning of July 16, 2001 (Tr. at 480-83), and that DeMartino arrived about 30-45 minutes later
and told him that he had been driven there by Spataro (Tr. at 483-85).
The original indictment also charged Alphonse Persico and Jackie DeRoss. On September 9, 2005, the Court
granted petitioner’s motion to sever his trial from that of Persico and Jackie DeRoss, who were facing death-eligible
counts on other charges. Persico and Jackie DeRoss were ultimately acquitted of involvement in the Campanella
shooting, but convicted on other charges. (Pet. at 2.)
Floridia and DeMartino were convicted of the attempted murder in 2004. After his conviction, Floridia entered
into a cooperation agreement with the government in which he agreed to testify against Petitioner, Persico, and both
Jackie and Carmine DeRoss. See Pet. at 2.
Two FBI Special Agents testified. One of them, James DeStefano testified to telephone
records showing calls made between payphones near the scene of the shooting and phones
registered or attributed to petitioner and other conspirators, including multiple calls made on the
day of the shooting. (Tr. at 747-752-54, 756.) In particular, witnesses highlighted a 9:32 a.m.
call made from a payphone on Shore Parkway to DeMartino’s cell phone. (Tr. at 482-83, 776771.) DeStefano admitted on cross-examination that he had no evidence indicating direct
telephone contact between Floridia and Petitioner or DeMartino and Petitioner on the morning of
July 16. (Tr. at 771-772.) DeStefano did testify to a series of telephone calls made to
Petitioner’s mobile phone in the afternoon of July 16, 2001 at 2:31, 2:36, 2:39, 2:46 and 2:50.
(Tr. at 756-757.) Each call was one unit long, which the witness acknowledged could be any
duration up to 60 seconds. (Tr. at 775.) Ashley questioned him closely about whether the
telephone records indicated the actual duration of the calls or whether they were even answered.
DeStefano acknowledged that he had no information about the duration of the calls or whether
they had connected to voice mail or a person. (Tr. at 773-78.)
Special Agent Gary Pontecorvo testified that he had driven himself from the location of
the payphone to Spataro’s auto body shop in approximately 16 minutes. (Tr. at 967-69.)
Michael Rosen, defense counsel for petitioner’s co-defendant, DeMartino, called
witnesses Joseph Forlizzi and Marshall Gergenti, who testified about plumbing supplies and
work that they did at Narrows Auto Body shop during the week of the shooting. (Tr. at 865880.) In summation, Rosen suggested that this work was the reason for the multiple telephone
calls between Spataro and DeMartino in the days before the shooting. (Tr. at 1062.)
Petitioner presented an alibi defense, based entirely on the testimony of Lisa Ida, a
customer at the Narrows Auto Body shop, which was run by Petitioner. Prior to trial, Petitioner
submitted alibi notices for witness Ida. The first notice, submitted on December 29, 2005,
indicated that witness Ida would state that she was with Spataro at Narrows Body shop between
10:15 and 11:30 a.m. (See Dec. 29, 2005 Letter from Thomas Ashley to Thomas Seigel, No. 04cr-911, ECF Entry #125.) A second letter, dated January 14, 2006, revised the time
approximation to 9:30 to 10:30 a.m. (See Jan. 14, 2006 Letter from Thomas Ashley to Thomas
Seigel, No. 04-cr-911, ECF Entry #134). At trial, Ida initially testified that she arrived at
approximately 9:45 a.m. and left at approximately 11 a.m. (Tr. at 846, 851.) She also identified
an “authorization to repair” form from Narrows Auto Body shop that she had signed, according
to the document, on July 16, 2001 at 10:30 a.m. (Tr. at 850, 863.) She stated that she was in
petitioner’s presence for about an hour, discussing what would happen to her car. (Tr. at 852.)
On cross-examination, Ida stated that she left her home at approximately 9:20 a.m. and
estimated that it took her about 25-30 minutes to drive, find parking, and walk to the shop. (Tr.
at 855-56.) Then, the prosecutor confronted her with her home telephone records, which
indicated that she called the Narrows Auto Body shop from her home at 8:45 a.m. and again at
9:51 a.m. (Tr. at 861.) Ashley made a contemporaneous objection to the introduction of these
records and the government’s failure to provide them in advance. (Tr. at 858.) The government
asserted that, under Rule 16, it was not required to produce evidence that it intended to use on
the defendant’s case, but was only required to produce documents it intended to use in its case in
chief. (Id.) The Court denied the Defense application to preclude the use of the telephone
records. (Id.) Subsequently, Ida revised her arrival time estimate to approximately 10:30 a.m.,
the time that was listed on the authorization form. (Tr. at 863.)
The Defense also attacked Floridia’s credibility through extensive cross-examination
about his past criminal history, his possible motives to lie, and multiple specific lies made to
Colombo family members and the police. (Tr. at 518-24, 547-50). Ashley attempted to call a
witness, Wilson Afanador, who had testified for the government in the prior trial against Floridia
and DeMartino. Afanador had previously testified about his observations of Floridia’s vehicle
on July 16, 2001, and Counsel stated that Afanador’s testimony would contradict some of the
factual statements in Floridia’s trial testimony. (Tr. at 611-19, 895-96.) Afanador appeared at
court on Friday, February 3, 2006, the date indicated on his subpoena, but the trial had been
adjourned until Monday. When Afanador appeared, Siegel, the prosecuting attorney, stated on
the record: “Unless and until the Court directs otherwise or unless and until he gets a subpoena
for a different date he doesn't have to come back.” (Feb. 3, 2006 Tr. at 4.) When Siegel asked
the Court, “he doesn't have to come back then?” the Court concurred. (Id.) When Ashely, who
was not in court on the Friday when Afanador appeared, learned about Afanador’s appearance
and that he had been excused from further appearance, he noted his objections to the Court,
particularly the role played by Siegel in suggesting that Afanador need not come back. (Tr. at
612, 618.) Counsel later attempted to serve Afanador with another subpoena to appear, but told
the Court that Afanador had thrown the subpoena on the ground. (Tr. at 821.) Another
subpoena was served on February 7, 2006, but Afanador did not appear. (Tr. at 892, 957.)
Counsel asked the Court to declare him an unavailable witness and to allow the introduction of
his sworn testimony from the previous trial. (Tr. at 619-620, 910, 914.) The Court agreed to
permit the introduction of his prior testimony, so long as both defendants agreed to waive their
right to confront the witness. Each defendant waived his right to confront the witness, and the
testimony was admitted in the form of a transcript that was admitted into evidence and available
to the jury. (Tr. at 959, 967.)
In summation, the government attacked petitioner’s alibi defense. Siegel used Ida’s
revised testimony that she met with petitioner at 10:30 to suggest that petitioner had already
dropped off DeMartino as part of the murder conspiracy and had returned to the shop. (Tr. at
1003.) In his summation, petitioner’s Counsel attempted to rehabilitate Ida’s alibi evidence and
argued that Floridia’s testimony lacked credibility. (Tr. at 1073-1120.) He also highlighted the
telephone records and noted that each of the phone calls made to Petitioner was less than one
minute long. He suggested that the frequency of the calls suggested that the attempts to connect
had been unsuccessful. (Tr. at 1077, 1090.)
The Defense and the Prosecution each argued that the admitted transcript of Afanador’s
prior testimony supported their version of events. Ashley argued that the government had
changed the theory of the case between trials. (Tr. at 1107.) He claimed that Afanador’s prior
testimony challenged Floridia’s trial testimony regarding when and where he and DeMartino
began watching Campanella on July 16, 2001. (Tr. at 1104-09.) In his summation, Siegel
argued that Afanador’s prior testimony corroborated Floridia’s account in the important aspects
and dismissed the discrepancy in times as an estimate. (Tr. at 1121-23.)
The jury convicted petitioner of Conspiracy to Commit Murder in Aid of Racketeering
and additional weapons charges.3 Petitioner filed motions for acquittal and for a new trial
pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure, which the Court denied
on July 10, 2006. United States v. Spataro, No. 04-cr-911 (SJ), 2006 WL 2010788; ECF Entry #
196 and 244.) The Court sentenced him to two terms, of 120 months and 168 months, to run
concurrently, and another term of 170 months to run consecutively to the other terms. (Judgment
entered July 17, 2006, No. 04-cr-911, ECF Entry # 247.)
The jury was unable to reach a verdict on DeRoss. He later pled guilty pursuant to a plea agreement on an
Petitioner appealed his conviction and sentence to the Court of Appeals for the Second
Circuit, challenging the sufficiency of the evidence and alleging trial court error, prosecutorial
misconduct, and the ineffective assistance of counsel. He also challenged his sentence as
unreasonable. The Court of Appeals affirmed the conviction, but remanded for resentencing.
United States v. Persico, 293 Fed. Appx. 24, 2008 WL 4187967 (2d Cir. 2008) (denying the
ineffective assistance of counsel claim without prejudice to its being raised in collateral
proceedings, citing Massaro v. United States, 538 U.S. 500, 504–05, 123 S. Ct. 1690, 155 L. Ed.
2d 714 (2003)). The Court of Appeals denied a petition for rehearing on February 20, 2009.
(Pet./Aff. ¶ 4.) Petitioner filed a petition for a writ of certiorari to the United States Supreme
Court, which was denied on June 22, 2009. Spataro v. United States, 129 S. Ct. 2845, 174 L. Ed.
2d 565 (2009). This Court resentenced petitioner on October 15, 2009, to 120 months on the
third count, to run consecutively to the 168- and 120-month concurrent sentences previously
imposed on Counts 1 and 2, for a total sentence of 288 months. (Pet./Aff. (ECF Entry # 1) ¶ 7.)
Petitioner appealed the new sentence, and the Court of Appeals affirmed by Mandate issued
August 8, 2011.
Petitioner also filed a motion for new trial pursuant to Rule 33(b)(1) on February 14,
2009, which this Court denied on August 20, 2009. (No. 04-cr-911, ECF Entry # 845).
II. Request for Collateral Relief
In the instant petition for post-conviction relief, petitioner argues that his Trial Counsel
made numerous errors that amounted to ineffective assistance of counsel. Specifically, he asserts
that Ashley failed to adequately investigate and present a viable alibi defense, failed to
effectively challenge the government’s primary witness, and failed to retain a reliable expert
witness regarding certain telephone records.
In support of his Petition, petitioner attaches affidavits and declarations from Lizzette
Barretto (Aff. dated Aug. 30, 2009, Exhibit attached to Pet. in No. 10-CV-2668, ECF Entry # 1,
pp. 99-100), Counsel Thomas Ashley (Aff. dated May 17, 2010, Exhibit attached to Pet. in No.
10-CV-2668, ECF Entry # 1, pp. 120-27), and Lisa Ida (Declaration, undated, Exhibit attached to
Pet. in No. 10-CV-2668, ECF Entry # 1, p. 129). In her affidavit, Lizzette Barretto, an employee
of the auto body shop, stated that she could have testified that petitioner was present in the shop
when she sent a fax transmission at 9:33 a.m. (Barretto Decl. ¶ 6.) Ida’s Declaration states that
on July 16, 2001, at 9:51 a.m. she called the auto body shop, “asked for Mr. Spataro, and spoke
with a man who said he was Mr. Spataro.” (Ida Decl. ¶ 3.)
In his Affidavit, Ashley explained that he personally did not interview witness Ida until
the day she testified, and that her initial interview was conducted by one of his associates.
(Ashley Aff. ¶ 7.) The affidavit explains that Counsel did not ask Ida, while she was on the
witness stand, to whom she spoke during the 9:51 a.m. call, because he did not know the answer.
(Id. ¶ 9.) Ashley affirmed that he did issue subpoenas for insurance company records related to
July 16, 2001, but that he did not take any further action when documents were not produced
prior to trial. (Id. ¶ 12.)
Ashley also acknowledged that he did not personally investigate the crime scene or the
area where Petitioner was alleged to have dropped off DeMartino. (Id. ¶ 13.) Counsel stated
that his efforts to impeach Floridia’s testimony did not include questions about Floridia’s
domestic violence charges, because the Court precluded certain lines of testimony as being
unduly prejudicial. (Id. ¶ 15.) He also did not investigate the details of a debt Floridia claimed
at trial. (Id. ¶¶ 20-21.) Ashley acknowledged that he was unable to secure the presence and live
testimony of witness Wilson Afanador, whose testimony may have contradicted Floridia’s
account. (Id. ¶¶ 22-23.)
Ashley’s Affidavit also described his efforts to challenge the government’s telephone
evidence. He stated that he initially sought to introduce Ben Levitan as an expert witness on
telephone records. However, the government objected to the expert’s credentials and proposed
testimony and asked for a Daubert hearing. Counsel stated that he withdrew the proposed
witness and failed to secure the testimony of another telephone expert. (Id. ¶¶ 25-31). If called,
an expert could have testified that the records did not indicate whether the multiple calls were
connected. (Id. ¶¶ 25.)
I. Procedural Issues and Standard of Review
To qualify for relief under 28 U.S.C. § 2255, a petitioner must show that his “sentence
was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255.
“[A] collateral attack on a final judgment in a federal criminal case is generally available under §
2255 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.” Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000) (internal
quotations and citations marks omitted). To meet this standard, the constitutional error must
have had a “substantial and injurious effect” on the verdict. Brecht v. Abrahamson, 507 U.S.
619, 62 (1993) (applying this standard of review to habeas petitions from state prisoners);
Underwood v. United States, 166 F.3d 84, 87 (2d Cir. 1999) (Brecht standard applies to § 2255
Habeas petitions are governed by strict procedural rules. Most claims must first be
exhausted by raising them on direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982);
Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007). “Where a defendant has procedurally
defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if
the defendant can first demonstrate either cause and actual prejudice, or that he is actually
innocent.” Bousley v. United States, 523 U.S. 614, 622 (1998) (citation omitted). However, the
procedural default rule does not apply to claims of ineffective assistance of counsel, which “may
be brought in a collateral proceeding under § 2255 whether or not the petitioner could have
raised the claim on direct appeal.” Massaro v. United States, 538 U.S. 500, 504 (2003).
A petition for habeas corpus relief must also be timely. The Antiterrorism and Effective
Death Penalty Act established a one-year statute of limitations for filing a petition. In most
cases, the limitations period runs from “the date on which the judgment of conviction becomes
final.” 28 U.S.C. § 2255(f)(1). A conviction becomes “final” when the Supreme Court “affirms
a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when
the time for filing a certiorari petition expires.” Clay v. United States, 537 U.S. 522, 527 (2003).
In this case, petitioner’s conviction became final on June 22, 2009, when the Supreme Court
denied certiorari. He filed the instant petition on June 11, 2010, just within the limitations
II. Ineffective Assistance of Counsel
The Sixth Amendment guarantees a defendant’s right to counsel, including the right to
effective counsel. In Strickland v. Washington, the Supreme Court established a two-part test to
determine whether counsel’s assistance was ineffective. First, a petitioner must show that
counsel’s performance “fell below an objective standard of reasonableness” under “prevailing
professional norms.” 466 U.S. 668, 687-88 (1984). Second, the deficient performance must be
shown to be prejudicial. Id., at 691-92. This second prong requires the petitioner to establish
that a reasonable probability exists that, “but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id., at 694. The prejudicial effect of counsel’s
ineffective performance may depend on the strength of the evidence against the defendant:
Counsel’s inadequate representation may not be grounds for habeas relief where the conviction
is supported by overwhelming evidence of guilt, whereas “a verdict or conclusion only weakly
supported by the record is more likely to have been affected by errors than one with
overwhelming record support.” Lindstadt v. Keane, 239 F.3d 191, 204 (2d Cir. 2001) (internal
citations and quotation marks omitted).
A petitioner must prove both Strickland prongs, and a failure of either will defeat the
claim. “[T]here 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. In
particular, a court need not determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it
is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.” Strickland, 466 U.S. at 697.
In considering the reasonableness of counsel’s performance, the court must consider the
facts of the particular case, viewed as of the time of counsel’s conduct, and considered within the
wide range of professionally competent assistance. Id. at 690. The court “should recognize that
counsel is strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Id. Just because a chosen
strategy was not successful does not make the strategic choice unreasonable or give cause for the
court to second-guess the attorney’s judgment. Trapnell v. United States, 725 F.2d 149, 155 (2d
Cir. 1983). However, the Second Circuit has noted that “if certain omissions cannot be
explained convincingly as resulting from a sound trial strategy, but instead arose from oversight,
carelessness, ineptitude, or laziness, we would find the quality of representation sufficiently
deficient to grant the writ.” Eze v. Senkowski, 321 F.3d 110, 112-113 (2d Cir. 2003).
This standard applies to counsel’s duty to investigate. “[C]ounsel has a duty to make
reasonable investigations or to make a reasonable decision that makes particular investigations
unnecessary.” Strickland, 466 U.S. at 691. A decision to investigate certain paths and not others
or not to investigate a possible direction “must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s judgments.” Id. The duty to
investigate “does not, however, compel defense counsel to investigate comprehensively every
lead or possible defense, or to scour the globe on the off-chance something will turn up.”
Greiner v. Wells, 417 F.3d 305, 321 (2d Cir. 2005) (internal quotation marks and citations
Likewise, courts must tread carefully in considering trial counsels’ decisions to call
particular witnesses. “The decision not to call a particular witness is typically a question of trial
strategy that [reviewing] courts are ill-suited to second-guess.” United States v. Luciano, 158
F.3d 655, 660 (2d Cir. 1998) (per curiam). The failure to call an expert witness could constitute
ineffective assistance of counsel where the expert testimony “would rebut the only evidence
linking a defendant to the crime, or where the evidence of a defendant's guilt is thin and relies
heavily on expert testimony.” Hodges v. Bezio, No. 09–CV–3402 (ENV), 2012 WL 607659, at
*10 (E.D.N.Y. Feb. 24, 2012), citing Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir. 2005).
B. Alibi Defense
Petitioner argues that Ashley was ineffective because of his failure to present a complete
and convincing alibi for the relevant time period. Petitioner retrospectively argues that Counsel
should have more thoroughly investigated his alibi witness, Lisa Ida, by searching her phone
records and personally interviewing her. Petitioner also suggests that Ashley should have called
an additional witness, Lizette Barretto and sought out other evidence of his presence in the auto
body shop during the relevant time period.
Witness Ida testified at trial that she saw petitioner at Narrows Auto Body shop around
the time that petitioner was alleged to be talking and meeting with co-conspirators. However,
her initial testimony that she was with petitioner from approximately 9:45-11 a.m. was
impeached on cross-examination, after confrontation with her telephone records showing a call
from her home to the shop at 9:51 a.m. Her revised testimony that she was with petitioner
beginning at approximately 10:30 a.m. left petitioner with no alibi for the period between 10 a.m.
and 10:30 a.m.
Although Ashley did not himself interview Ida prior to her trial testimony, his associate
did. The Court finds that it was reasonable for Counsel to rely on his associate to conduct pretrial witness interviews. Although Ashley was surprised when the government produced Ida’s
telephone records and she revised her time estimates, it was not unreasonable to rely on her
memory of the relevant events and time period.
Petitioner now suggests that Ashley might have mitigated this hole in his alibi, by
questioning Ida about the 9:51 a.m. telephone call to the auto body shop while she was on the
stand. Petitioner speculates that, if asked, Ida could have testified that she spoke to somebody
whom she believed to be Spataro. However, even if Ida had so testified, that evidence would not
have been conclusive either that Spataro was in the shop at 9:51 a.m. or that he could not have
left after the phone call, dropped DeMartino at the rendevous spot, and returned in time to meet
her at 10:30 a.m. Although the admission of Ida’s telephone records and subsequent revision in
her testimony undermined petitioner’s alibi, Ashley’s initial reliance on her memory and the
statements she made to his associate was not unreasonable at the time. Had Ashley narrowed
down her testimony to the correct time frame in advance of trial, he might have avoided the
surprise. But it is difficult to speculate what he could have done to fix this gap in the alibi. Once
the time-frame was revised, Ashley attempted to mitigate the damage by focusing the jury’s
attention on the time period that was covered. Petitioner now argues that “[i]f properly handled,
Ida would have provided a viable alibi.” (Pet.’s Reply Mem. at 11.) Given the documentary
evidence of the 9:51 a.m. phone call and the 10:30 a.m. time listed on the shop form, it is not
clear how her testimony could have provided the alibi petitioner needed.
Petitioner also argues that Ashley should have called Lizzette Barretto as an additional
alibi witness. In her affidavit, Barretto stated that she could have testified that petitioner was
likely present when she sent a fax transmission at 9:33 a.m. This proposed testimony, even if
persuasive, would not have contradicted Floridia’s testimony that Spataro dropped DeMartino
within 30-45 minutes of the 9:32 a.m. payphone call between DeMartino and Floridia. At best, it
would have left an approximate one-hour time period between 9:33 a.m. and 10:30 a.m.
unaccounted for. The Court concludes that Ashley’s decision not to call this witness may have
been a sound strategic choice.
Petitioner also claims that he asked Ashley to seek out insurance adjusters and other
individuals who may have been in the shop on the day of the shooting, in the hope that they
would have photographs or other records placing petitioner in the shop at certain times.
(Pet./Aff. ¶ 15.) The Court finds that Counsel’s decision not to aggressively pursue such
speculative sources was not unreasonable. Strickland does not require trial counsel to
investigate every possible lead. At the time, Ida’s proposed testimony may have appeared to
provide the most complete and most credible alibi defense available. Accordingly, it may well
have been a reasonable strategic decision to focus on the expected testimony of witness Lisa Ida.
The Court cannot find that Counsel’s performance “fell below an objective standard of
reasonableness” as it relates to the presentation of an alibi defense. Moreover, petitioner has not
shown how any one of these alleged omissions would have been likely to establish a better alibi
defense and thereby influence the outcome of the trial.
C. Investigation of the Crime Scene
Petitioner now argues that Trial Counsel was ineffective because he failed to investigate
the locations where the criminal conspiracy was alleged to have occurred. He insists that had
Ashley understood the layout of the area, he could have argued that it was unnecessary for
petitioner or anyone else to drop off DeMartino to meet Floridia a few blocks from where
DeMartino’s car was parked. (Pet./Aff. ¶ 25.) Petitioner does not argue that the layout made it
impossible for him to have been involved; just that it would have permitted Ashley to argue that
it would be unlikely.
The Court finds this argument to be unpersuasive. As previously noted, Counsel is not
required to investigate every possible theory or defense. In this case, petitioner can demonstrate
no prejudice in Ashley’s failure to investigate the proximity of the drop-off point and the
location of DeMartino’s car or to present this theory to the jury. Government witnesses testified
that Spataro dropped off DeMartino to rendezvous with Floridia. Floridia testified that Spataro
frequently used different cars, often belonging to clients of the auto body shop, in order to avoid
law enforcement notice. (Tr. at 485.) Petitioner’s assertion that the locations were four blocks
distant from each other does not challenge the credibility of Floridia’s statements. The Court
finds that Counsel’s failure to pursue this potential line of investigation is not objectively
unreasonable and did not cause any prejudice to petitioner’s defense.
D. Impeachment of Cooperating Witness Floridia
Petitioner further argues that Trial Counsel was ineffective because he failed to
effectively impeach Floridia’s credibility by challenging certain factual assertions. Petitioner
suggests that Ashley could have challenged Floridia’s claim that “only ‘sanctioned’ mob hits
were permissible” by presenting an expert about “unsanctioned” mob hits. (Pet./Aff. ¶ 30.) He
notes that such an expert was called at the related trial of Persico and DeRoss, and that the expert
testified that unsanctioned mob hits do occur. (Id.) Petitioner also argues that Ashley should
have investigated additional factual details in order to challenge Floridia’s testimony about the
reasons for his return to New York City, the location of a pay phone, and the disposal of the
weapon used in the murder attempt. (Id. ¶¶ 31-34.)
As noted above, defense counsel has a duty to investigate, but cannot be expected to
investigate every possible detail. The Record at trial shows that Ashley investigated other
aspects of Floridia’s testimony and consistently sought to cast doubt on Floridia’s veracity. He
vigorously cross-examined this witness about his past criminal history, his possible incentives to
lie, and multiple specific lies made to Colombo family members and the police. (Tr. at 518-24,
547-48). Ashley also attempted to impeach Floridia’s version of events by introducing
Afanador’s testimony from the earlier trial, which apparently highlighted minor discrepancies in
Floridia’s testimony, including whether the license plate was covered and the length of time
during which Floridia was stalking Campanella on the day of the shooting. (Tr. at 615-19.) Any
additional impeachment evidence would have been cumulative.
Moreover, none of the specific impeachment evidence that petitioner complains was
omitted from his defense was likely to have been compelling. The jury didn’t need “an expert on
the mafia” to cast doubt on Floridia’s claim that sanctioned mob hits occurred. It is also unlikely
that the jury would have been swayed by testimony that a scuba diver was unable to locate a
weapon that Floridia claimed had been thrown into Caesar’s Bay. Accordingly, the Court finds
that Counsel’s decision not to investigate and present this possible impeachment evidence was
unlikely to have had an impact on the outcome of the trial.
E. Failure to Call Approved Telephone Expert
Petitioner also asserts that Ashley was ineffective for failing to call a reputable telephone
expert. Petitioner states that the government presented telephone records showing numerous
phone calls from other alleged conspirators to petitioner’s mobile phone as evidence of
petitioner’s messenger role in the murder conspiracy. Petitioner asserts that a telephone expert
would have testified that the records indicating numerous one-minute calls to his mobile phone
could be showing unanswered calls, not completed calls. He also suggests that an expert could
have attempted to establish the location of the cellular phone at the time of those calls.
Ashley initially secured the services of an expert, Ben Levitan, whom he expected to
challenge the length and frequency of the calls made to petitioner’s cell phone. (Ashley Aff. ¶
25.) However, when the government challenged Levitan’s credentials and proposed testimony
prior to trial, Ashley withdrew the proposed expert and did not replace him. (Id. ¶¶ 27, 29.)
Petitioner now argues that Ashley should have more thoroughly investigated Levitan’s
credentials in advance and should have retained an unimpeachable witness to replace Levitan.
Petitioner has not demonstrated any prejudice arising from this omission. In summation,
Ashley argued that the evidence of multiple phone calls, all made during a short period and each
less than one minute, was likely an indication that the calls were not answered. It doesn’t require
an expert to make this common-sense argument. Moreover, Counsel reminded the jury that the
content of the telephone calls was unknown, and suggested that they should not construe the
calls as evidence of a conspiracy.4 Petitioner now argues that an expert could have testified to
the location of the mobile phone while the calls were made. However, he has not explained how
an expert could have determined that information from the limited records introduced by the
government or suggested that additional information was available. Moreover, it is unclear how
such testimony would have supported the Defense. Petitioner’s alibi defense argued that he was
at the auto body shop before and during the shooting. The location of petitioner or his mobile
phone at 2:31, 2:36, 2:39, 2:46 and 2:50 in the afternoon have little bearing on the government’s
argument or petitioner’s defense. As petitioner cannot show prejudice resulting from Counsel’s
failure to call a telephone expert, this omission cannot serve as the basis for an ineffective
assistance of counsel claim.
Counsel for co-defendant DeMartino presented evidence suggesting cooperation between DeMartino and Spataro
on a plumbing project at Narrows Auto Body Shop, and argued that the multiple telephone calls could be related to
For the foregoing reasons, the petition for habeas corpus is denied. The Clerk of Court is
directed to close the case. Because petitioner has not made a substantial showing of the denial of
any constitutional right, no certificate of appealability shall issue. 28 U.S.C. § 2253(c)(2). The
Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good
faith and therefore in forma pauperis status is denied for purpose of an appeal. See Coppedge v.
United States, 369 U.S. 438, 444-45 (1962).
Sterling Johnson, Jr., U.S.D.J.
Dated: February 19, 2013
Brooklyn, New York
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