Rodriguez v. United States of America

Filing 89

MEMORANDUM & ORDER. For the reasons detailed in the attached Memorandum & Order, Mr. Rodriguez's petition for a writ of habeas corpus is DENIED in its entirety. Mr. Rodriguez's claims of ineffective assistance of counsel are not supported by the record and are meritless. Further, Mr. Rodriguez's motions to amend his petition are DENIED due to their futility; his motion for disqualification is DENIED; and his motions for discovery and disclosure are DENIED. A certificate of appe alability shall not issue because Mr. Rodriguez has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The clerk is respectfully directed to enter judgment in favor of respondent, close this case, an d send a copy of this Memorandum and Order and the judgment to the petitioner at his last known address, listed on the docket as Luis Rodriguez, # 55186-053, United States Penitentiary Big Sandy, P.O. Box 2068, Inez, KY 41224, and note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 12/31/2020. (Bose, Rhick)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
Luis Rodriguez,
Petitioner,
MEMORANDUM & ORDER
v.
14-CV-6134(KAM)
UNITED STATES OF AMERICA,
Respondent.
----------------------------------X
KIYO A. MATSUMOTO, United States District Judge
On August 2, 2010, petitioner Luis Rodriguez (“Mr.
Rodriguez” or “petitioner”) was sentenced by Judge David Trager
to life imprisonment pursuant to a judgment of conviction
imposed on November 14, 2006 in the United States District Court
for the Eastern District of New York.

(Judgment, at 1, 05-cr-

00153, ECF No. 221; Jury Verdict, at 1, 05-cr-00153, ECF No.
93.)

Presently before the court are Mr. Rodriguez’s petition to

vacate his sentence pursuant to 28 U.S.C. § 2255 (“Section
2255”), his two motions to amend his petition, his motion for
disqualification, his motion for disclosure, and his motion for
discovery.

For the reasons set forth below, Mr. Rodriguez’s

petition is without merit, and his motions are also without
merit.

Accordingly, his petition is DENIED, and his remaining

motions are DISMISSED.

1

Background
In September 2000, Mr. Rodriguez, cooperating witness
Carlos Medina (“CW Medina”), German Polanco, Manuel Santos and
Alex Core participated in a double homicide.1

United States v.

Santos, 2010 WL 2985913, at *1 (E.D.N.Y. July 27, 2010).

Mr.

Polanco believed two men, “Ronnie” and “El Renco,” stole
$316,000 of cocaine-sale proceeds from him, and directed CW
Medina to hire a hitman to kill the duo.

(Id.)

Mr. Rodriguez

volunteered to supervise the shooting on behalf of Mr. Polanco
and acted as Mr. Polanco’s go-between in organizing the
shooting.

(Id.)

Mr. Rodriguez supplied CW Medina with an

address Mr. Rodriguez believed to be “Ronnie’s” and “El Renco’s”
to execute the murder.

(Luis Rodriguez Affidavit in Support of

His Motion to Vacate, Exhibit 2-C, Grand Jury Transcript (“Grand
Jury Tr.”), at 33-34, ECF No. 1-4.)2
Mr. Medina hired two other men, Manuel Santos and Alex
Core, for the shooting and, on September 26, 2000, the three

1

On January 4, 2001, four months after the double homicide, Mr.
Rodriguez was arrested in connection with a separate and unrelated heroin
case. Carlos Medina, who also participated in the double-homicide, was
arrested on the same heroin charges a month earlier in December 2000. Medina
was a cooperator in the separate heroin case and later pled guilty to his
role in the two homicides that are the subject of Mr. Rodriguez’s current
petition. Mr. Rodriguez went to trial on the heroin case and was convicted by
a jury in the Eastern District of New York on July 24, 2001. Mr. Medina did
not testify in Mr. Rodriguez’s heroin trial. On December 16, 2004, the Second
Circuit reversed Rodriguez’s conviction on the grounds of insufficient
evidence. (United States v. Rodriguez, 392 F.3d 539 (2d Cir. 2004).)
2
Citations to the parties’ briefs and to the record refer to ECF and PDF
pagination.

2

drove to “Ronnie’s” residence in Queens to wait for “Ronnie” and
“El Renco.”

Santos, 2010 WL 2985913, at *1.

Two other

individuals, Wilber Garces and his fourteen-year-old stepson
Edgardo Bryan, left the house, walked over to the parking lot,
and entered their car.

(Id. at *2.)

As Mr. Garces and his

stepson pulled out of the parking lot, Mr. Santos blocked their
car with his SUV and Messrs. Santos and Core jumped out of the
SUV and fired several rounds into the car.

(Id.)

Rather than

“Ronnie” and “El Renco,” the three had mistakenly killed Mr.
Garces and his fourteen year-old step-son.

(Id.)

Mr. Medina

later called Messrs. Polanco and Rodriguez to confirm the
killings.

(Gov. Sentencing Letter at 2-3, 05-CR-00153, ECF No.

212-2.)
In December 2000, Mr. Medina was arrested for
possession of two kilograms of cocaine as a result of an
investigation conducted by the New York Police Department
(“NYPD”) and the Drug Enforcement Agency (“DEA”). During the
arrest, documents related to Mr. Rodriguez were found in Mr.
Medina’s vehicle.

(Grand Jury Tr. at 32.)

Mr. Medina agreed to

cooperate with the government and provided information about Mr.
Rodriguez and the other participants in the homicide conspiracy.
(Id. at 32-34.)

The government analyzed several phone calls

made by Mr. Medina from a pay phone to Mr. Rodriguez’s phone on
the day of the murders, including a call made approximately

3

fifteen minutes after the murders at 8:30 pm.

(Id. at 38-39.)

During one of their conversations, Mr. Rodriguez informed Mr.
Medina that he had confirmed the killings himself by driving by
the crime scene and seeing police cars.

(Gov. Sentencing Letter

at 2-3, 05-cr-00153, ECF No. 212-2.)
I.

Arrest, Indictment, and Pre-Trial Proceedings
On January 26, 2005, DEA Special Agent Bryan Iula

(“Special Agent Iula”) submitted a complaint and affidavit in
support of an arrest warrant, that Magistrate Judge Roanne Mann
authorized the same day.

(See generally Complaint and Affidavit

in Support of Arrest Warrant, Docket No. 05-cr-00153, ECF No. 1;
Arrest Warrant, Docket No. 05-cr-00153, ECF No. 2.)

On February

15, 2005, Magistrate Judge Cheryl L. Pollak appointed David
Gordon, Esq. (“Mr. Gordon”) as Mr. Rodriguez’s first defense
attorney.

(Appointment of Attorney David Gordon, at 1, 05-cr-

00153, ECF No. 3.)

During Mr. Rodriguez’s detention hearing

before Magistrate Judge Pollak, Mr. Rodriguez argued for the
first time that the Assistant United States Attorney and the
court did not have the jurisdiction to bring charges against him
because there was “no jurisdiction that was [] even brought
forward to say that this is cocaine, violating interstate
commerce . . . [a]s the Court is aware, okay, sixty percent of

4

the cocaine in New York is probably created here.”3

(February

15, 2005 Detention Hearing, “Detention Hearing”, at 4, 05-cr00153, ECF No. 253.)
Magistrate Judge Pollak denied Mr. Rodriguez’s attempt
to have the complaint dismissed, stating that the government had
information “involving the homicides which is corroborated by
independent evidence.

We’ve got videotapes and phone calls, and

(2) a statement by a witness who although you tell me he’s not
credible . . . I can’t throw out the complaint because on its
face, there’s probable cause.”

(Id. at 16.)

Additionally,

Magistrate Judge Pollak found that the Second Circuit’s decision
to reverse Mr. Rodriguez’s conviction for a separate and
unrelated drug conspiracy, also involving Mr. Medina, did not
have an impact on the instant complaint because the government
represented that the witness in the current case was not
involved in Mr. Rodriguez’s previous trial.4

(Id. at 11, 16.)

Mr. Rodriguez made this statement on his own behalf after being
informed by Magistrate Judge Pollak that his statement would be entered into
the record. After Mr. Rodriguez continued to insist that he make a
statement, Mr. Gordon acquiesced. (February 15, 2005 Detention Hearing,
“Detention Hearing”, at 3-4, 05-cr-00153, ECF No. 253.)
4
The Second Circuit reversed the district court’s earlier conviction of
Mr. Rodriguez on possession with intent to distribute heroin and conspiracy
to distribute heroin, finding that there was insufficient evidence to support
both an aiding and abetting theory and a constructive possession theory of
liability. See United States v. Rodriguez, 392 F.3d 539, 545-49 (2d Cir.
2004). However, the circuit’s holding had no bearing on the witness
statement at issue in Mr. Rodriguez’s February 15, 2005 detention hearing, as
that witness did not testify in Mr. Rodriguez’s drug conspiracy trial.
(Detention Hearing at 14.)
3

5

On February 25, 2005, the grand jury returned an
indictment against Mr. Rodriguez on six counts: one count of
conspiracy to distribute and possession with intent to
distribute five kilograms or more of a substance containing
cocaine, in violation of 21 U.S.C. Section 841(a)(1); two counts
of engaging in a “continuing criminal enterprise” for “knowingly
and intentionally kill[ing], counsel[ing], command[ing],
induce[ing], procur[ing] and caus[ing] the intentional killing
of another person” for the murders of Wilber Garces and Edgardo
Bryan, in violation of 21 U.S.C. Section 848(e)(1)(A), 18 U.S.C.
Sections 2 and 3551 et seq.; one count of knowingly and
intentionally possessing a firearm in furtherance of a drug
trafficking crime and knowingly and intentionally using and
carrying a firearm during and in relation to such a drug
trafficking crime, in violation of 18 U.S.C. Sections
924(c)(1)(A)(iii), 2 and 3551 et seq.; and two counts of
knowingly and intentionally causing the death of a person
through the use of a firearm as defined in 18 U.S.C. Section
1111(a) in that petitioner, with malice aforethought, unlawfully
killed Wilber Garces and Edgardo Bryan, in violation of 18
U.S.C., Sections 924(j)(1), 2 and 3551 et seq.

(See generally

Indictment, 05-cr-00153, ECF No. 6.)
On March 4, 2005, Mr. Rodriguez pleaded not guilty on
all counts before Judge David Trager.

6

(March 4, 2005

Arraignment, at 1, 05-cr-00153, ECF No. 8.)

On May 18, 2005,

Mr. Rodriguez, in the presence of his counsel, Mr. Gordon, and
learned counsel, Richard Levitt, Esq. (“Mr. Levitt”), made a
motion alleging that the court did not have jurisdiction and
stated that he wished to represent himself.

(May 18, 2005

Status Conference, at 4-11, 05-cr-00153, ECF No. 9.)

Judge

Trager denied Mr. Rodriguez’s motion and scheduled another
conference on June 20, 2005, to allow Mr. Rodriguez more time to
decide if he wished to represent himself.

(Id. at 6,11.)

At the conference on June 20, 2005, Mr. Rodriguez
reiterated his desire to represent himself and Judge Trager
relieved Mr. Gordon as counsel.

(David Gordon Affidavit,

“Gordon Aff.”, at 5, ECF No. 7.)

Before the next conference, on

July 18, 2005, Judge Trager appointed Bobbi Sternheim, Esq.
(“Ms. Sternheim”) to represent Mr. Rodriguez.

During the July

18, 2005 status conference, Mr. Rodriguez indicated that he did
not wish to have Ms. Sternheim represent him at trial, but would
consider the court’s recommendation that Mr. Rodriguez allow Ms.
Sternheim to represent him for purposes of death penalty
consideration and motions.

(July 18, 2005 Status Conference, at

2-10, 05-cr-00153, ECF No. 66.)

During an August 31, 2005

status conference, Mr. Rodriguez waived his right to counsel and
stand-by counsel.

(August 31, 2005 Status Conference, at 1, 05-

7

cr-00153, ECF No. 16.)

Judge Trager relieved Ms. Sternheim and

Mr. Rodriguez proceeded pro se.

(Id.)

On November 2, 2005, Judge Trager appointed JaneAnne
Murray, Esq. (“Ms. Murray”) to act as standby counsel on behalf
of Mr. Rodriguez.

(Notice of Appearance for JaneAnne Murray

filed November 2, 2005, at 1, 05-cr-00153, ECF No. 29.)

On the

application of Mr. Rodriguez, Judge Trager appointed Joseph P.
Dwyer (“Mr. Dwyer”) of Investigative Resource Group to act as
Mr. Rodriguez’s defense investigator under the sole direction
and supervision of Ms. Murray.

(Appointment of Defense

Investigator Dwyer dated November 16, 2005, at 1, 05-cr-00153,
ECF No. 33.)

After Mr. Dwyer refused to continue his services

due to disagreements with Ms. Murray regarding how his
investigative time was being spent, Judge Trager appointed James
Scully (“Mr. Scully”) on November 14, 2006, to act as Mr.
Rodriguez’s defense investigator, again under the sole direction
and supervision of Ms. Murray. (Appointment of Defense
Investigator Scully dated November 14, 2006, at 1, 05-cr-00153
ECF No. 92.)
II.

Relevant Conviction and Post-Trial Proceedings
A. Changes in Appointed Counsel
The trial against Mr. Rodriguez commenced on or about

October 30, 2006.
¶ 3, ECF No. 6.)

(JaneAnne Murray Declaration, “Murray Decl.”,
Judge Trager appointed Ms. Murray as trial

8

counsel for Mr. Rodriguez mid-trial, during CW Medina’s crossexamination.

(Id.)

On November 14, 2006, Mr. Rodriguez was

convicted on all six counts by the jury.
cr-00153, ECF No. 93.)

(See Jury Verdict, 05-

On December 6, 2006, Judge Trager denied

Mr. Rodriguez’s request for reassignment of counsel.

(See Order

Denying Reassignment of Counsel, 05-cr-00153, ECF No. 93.)
On September 19, 2007, Judge Trager relieved Ms.
Murray as counsel and appointed Harry Batchelder, Esq. (“Mr.
Batchelder”) as stand-by counsel.

(September 19, 2007 Status

Conference, 05-cr-00153, at 1, ECF No. 113.)

On March 24, 2009,

Mr. Batchelder submitted a sentencing memorandum on behalf of
Mr. Rodriguez, asserting that the court should not “stack” the
sentences on counts five and six of Mr. Rodriguez’s sentence,
noting that “it must not escape notice that Mr. Rodriguez is
forty-seven years old, with a heart condition, thus any sentence
of twenty-five years or more will carry the real possibility
that Mr. Rodriguez will die in jail.”

(Sentencing Memorandum on

Behalf of Luis Rodriguez, at 2, 05-cr-00153, ECF No. 158.)
B. Government Trial Team Discloses Operation Pier
Pressure
In two letters dated May 28, 2009 and March 30, 2010,
the government trial team disclosed additional information to
Mr. Rodriguez that it learned of after his trial.

(Brief and

Appendix for Government-Appellant at 21-26, available at 2012 WL

9

1653030, United States v. Rodriguez, 503 F. App’x 72 (Nov. 21,
2012).)

The government trial team in Mr. Rodriguez’s case

became aware of information related to an Immigration and
Customs Enforcement (“ICE”) investigation into an unrelated
investigation, named “Operation Pier Pressure,” involving one of
the prosecutors who initially worked on the Rodriguez case.
(Id. at 21.)

The government trial team learned that Jose

Guerrero and Eduardo Jaramillo Aguilar, two cooperating
defendants in the Pier Pressure investigation, had provided ICE
agents with information about the murder of an individual known
as “Tula,” who DEA agents investigating the homicides later
determined to be Mr. Garces.

(Id.)

The government trial team

disclosed two additional pieces of information to Mr. Rodriguez:
first, the existence of statements and interviews of five
individuals involved with Operation Pier Pressure; and second,
the intention of Mr. Polanco’s counsel to call an associate,
Tomas Rojas Bermudes, who ultimately was not called by the
defense as his purported knowledge about the murders at issue
was based on hearsay and lies.

(Id.)

C. Petitioner’s Post-Verdict Motions Challenging Trial
and Sentencing
On June 10, 2009, Mr. Rodriguez filed a pro se motion
for a new trial pursuant to newly discovered evidence and to
Rule 33 of the Federal Rules of Criminal Procedure.

10

(Motion for

New Trial, ¶ 1, 05-cr-00153, ECF No. 166.)

In support of his

motion, Mr. Rodriguez alleged multiple Brady/Giglio violations,
including “unconstitutional misconduct, destruction of evidence
and side deals with cooperating witnesses without informing the
defense or defendant of the agreement.”

5

(Id.)

In his

supporting memorandum, Mr. Rodriguez alleged two distinct Brady
violations: “(1) that the government improperly bolstered CWMedinas[’] trial testimony and solicited testimony it [k]new was
false and (2) that the Government and CW-Medina had an
undisclosed side deal regarding CW-Medina[’]s testimony.” (Id.
at 11.)
On June 9, 2010, Judge Trager ordered Mr. Rodriguez to
file any post-verdict motions by July 1, 2010.

(Order Dated

June 9, 2010, at 1, 05-cr-00153, ECF No. 199.)

On June 24,

2010, Mr. Rodriguez, pro se, filed a motion to vacate his
conviction pursuant to Rules 11 and 60(B) of the Federal Rules
of Civil Procedure, and Rule 33 of the Federal Rules of Criminal
Procedure.

(Motion to Vacate Pursuant to Rule 33 filed June 24,

2010, at 1, 05-cr-00153, ECF No. 202.)

Mr. Rodriguez made

Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, including
Giglio v. United States, 405 U.S. 150 (1972), allow for defendants to
challenge their sentence on appeal if the government suppressed evidence that
would undermine the confidence in the verdict. See United States v. Coppa,
267 F.3d 132, 140 (2d Cir. 2001) (quoting Kyles v. Whitley, 514 U.S. 419, 435
(1995)) (“Thus, a Brady violation occurs only where the government suppresses
evidence that ‘could reasonably [have been] taken to put the whole case in
such a different light as to undermine confidence in the verdict.’”)
5

11

several allegations in his motion, including another challenge
to the jurisdiction of the court on his case alleging that “the
prosecution lead [sic] the witness [Agent Iula] in the false
direction the prosecution needed to fabricate the non-existing
jurisdiction over the crime of murder, by linking the murders to
the drug activities of ‘CW 1’ Carlos Medina and Mr. German
Polanco and others.”

(Id. at 22.)(second alteration in

original)
In July 2010, Mr. Rodriguez submitted another pro se
motion objecting to his sentence.

(Defendant’s Objection to

Sentence Memorandum filed July 30, 2010, 05-cr-00153, ECF No.
218.)

Mr. Rodriguez objected to his sentence on five grounds,

framed by Mr. Rodriguez as the following questions: “[a] Did the
Federal Government used [sic] perjury by way of perjured
testimony by DEA Special Agent Brian Iula to the Grand Jury to
attain the appearance of subject matter jurisdiction?;...[b] Did
the Federal Government Lack Federal Legislative, Territorial, or
Admiralty Jurisdiction in over the Locus Quo?;...[c] Are the
Federal Government Charging instruments Fatally Defective in
this Cause?;...[d] Did the Federal Government Fail to Establish
Federal Interstate Commerce Nexus to this Cause?;...[e] Are
Title’s [sic] 18 and 21 United States Code Unconstitutional and
if so do said Codes apply to Defendant?”

12

(Id. at 2.)

On July 26, 2010, the government submitted its
response to petitioner’s pro se sentencing letters and the March
24, 2009 sentencing memorandum submitted by petitioner’s standby counsel.

(Government Sentencing Memorandum, at 1, 05-cr-

00153, ECF No. 212.)

In its response, the government noted that

Judge Trager had rejected similar claims of an alleged Brady
violation and perjury in United States v. Polanco, 510 F. App’x
10 (2d Cir. 2013), and United States v. Santos.

(Id. at 4.)

The government also included its earlier sentencing letter,
dated July 11, 2007, that addressed Mr. Rodriguez’s arguments,
including his challenges to the credibility of witnesses and
allegations of perjury by Special Agent Iula.

(See generally

July 25, 2010 Sentencing Memorandum, 05-cr-00153, ECF No. 2122.)
On July 29, 2010, Judge Trager held a sentencing
hearing and sentenced Mr. Rodriguez to a term of life
imprisonment.

(Judgment, at 3, 05-cr-00153, ECF No. 221.)

On

the same day, Judge Trager denied Mr. Rodriguez’s Rule 33
motions for a new trial filed in June 2009 and June 2010, see
05-cr-00153, ECF Nos. 165, 166, 202, Mr. Rodriguez’s motion to
continue, see 05-cr-00153, ECF No. 210, and Mr. Rodriguez’s
motion requesting a hearing, see 05-cr-00153, ECF No. 218.
(Order on Motion for New Trial, at 1, 05-cr-00153, ECF No. 219.)
On August 2, 2010, judgment was entered against Mr. Rodriguez;

13

he filed his notice of appeal on the same day.

(05-cr-00153,

ECF Nos. 221, 224.)
D. Petitioner’s Appeal
In his appeal, Mr. Rodriguez raised four grounds for
reversal: “(1) the government violated its disclosure
obligations under Brady v. Maryland, 373 U.S. 83 (1963); (2)
there was insufficient evidence to support his convictions; (3)
the district court erred in allowing him to represent himself;
(4) the district court erred in denying petitioner’s motion to
have a witness psychiatrically evaluated; and (5) a cooperating
witness perjured himself.”

Rodriguez, 503 F. App’x at 74.

The

Second Circuit affirmed the judgment of conviction in all
respects and denied petitioner’s appeal.

Id. at 76.

On May 28,

2013, Rodriguez filed a petition for a writ of certiorari, which
was denied by the United States Supreme Court on October 7,
2013.

Rodriguez v. United States, 571 U.S. 942 (Oct. 7, 2013).

III. Petitioner’s Instant Pro Se Motion for Habeas Relief
On October 20, 2014, petitioner filed a pro se motion
for habeas corpus relief pursuant to 28 U.S.C. § 2255. The
court, reading petitioner’s motion with a lenient eye as
required, construes the petition to include seven claims of
ineffective assistance of counsel.

(Motion to Vacate Judgment

under 28 U.S.C. Section 2255 filed October 20, 2014 (“Pet.”), at
4-18, ECF No. 1.)

On October 28, 2014, the court ordered the

14

counsels Mr. Rodriguez referenced in his petition, Mr. Gordon
and Ms. Murray, to respond to petitioner’s allegation of
ineffective assistance of counsel.
ECF No. 2.)

(Order to Show Cause, ¶ 1,

The court further ordered the government to respond

to Mr. Rodriguez’s petition within sixty days of receipt of the
affidavits from Mr. Gordon and Ms. Murray.

(Id. ¶ 22.)

On December 9, 2014, Ms. Murray filed a declaration
responding to Mr. Rodriguez’s allegations of ineffective
assistance of counsel.

(See Murray Decl.)

On December 15,

2014, Mr. Gordon filed a declaration responding to Mr.
Rodriguez’s allegations of ineffective assistance of counsel.
(See Gordon Aff.)

On February 10, 2015, Mr. Rodriguez filed a

motion to disqualify five Assistant United States Attorneys
(“AUSAs”) and/or the office for the United States Attorney’s
Office for the Eastern District of New York, alleging a conflict
of interest.

(See generally Motion to Disqualify U.S.

Attorney’s Office for the Eastern District of New York, filed
February 10, 2015 (“Disqualify Mot.”), ECF No. 8.)

On February

17, 2015, Mr. Rodriguez filed a motion for leave to amend his
petition, including a declaration and a memorandum in support.
(See generally Motion for Leave to Amend Filed February 17, 2015
(“Amend. Mot.”), ECF No. 9.)
The court directed the government to submit a written
response indicating whether it opposed Mr. Rodriguez’s motions

15

to disqualify and amend.

(Dkt. Order dated February 25, 2015.)

On February 25, 2015, Mr. Rodriguez filed motions for disclosure
of grand jury transcripts and court logs of the testimony that
returned an indictment on February 25, 2005, and for assignment
of counsel.

(Motion for Disclosure and Assignment of Counsel

(“Disclosure Mot.”), at 5, ECF No. 10.)

On March 16, 2015, Mr.

Rodriguez filed an additional motion for discovery and
assignment of counsel.6

(Motion for Discovery filed March 16,

2015 (“Discovery Mot.”), at 1-2, ECF No. 13.)

On June 23, 2015,

the government filed its memorandum in opposition to Mr.
Rodriguez’s habeas petition, motion for leave to amend the
petition, motion to disqualify the AUSAs, and motion for
discovery.

(See generally Government Memorandum in Opposition

(“Opp.”), ECF No. 31.)

On October 1, 2015, Mr. Rodriguez filed

his reply in response to the government’s opposition.

(See

generally Petitioner’s Reply to Government’s Opposition filed
October 1, 2015 (“Reply”), ECF No. 37.)

On November 6, 2015,

Mr. Rodriguez made a motion to stay the case, see ECF No. 43,
that this court denied.

(Dkt. Order dated November 17, 2015.)

Mr. Rodriguez also filed several briefs in support of a motion to
compel Mr. Gordon and Ms. Murray to answer interrogatories. (See ECF Nos.
21, 22, 23, 24, 25, 26, 27, 28.) Because petitioner’s claim is without
merit, and because Mr. Gordon and Ms. Murray have already provided affidavits
describing their representations, petitioner’s motions to compel Mr. Gordon
and Ms. Murray to answer interrogatories, see ECF Nos. 22, 26, are denied.
6

16

In a letter filed February 2, 2016, Mr. Rodriguez
requested that this court “liberally interpret his pleadings and
claims, and asks the Court to view these claims as an ‘actual
innocen[ce]’ claim, because the Government attorneys violated
the Indictment clause . . . .”

(Petitioner’s Letter filed

February 2, 2015, at 1, ECF No. 48.)

On April 10, 2018, Mr.

Rodriguez filed a second motion to amend his petition.

(See

Second Motion to Amend filed April 10, 2018 (“Second Amend.
Mot.”), ECF No. 64.)
government to respond.

On April 27, 2018, this court directed the
(Dkt. Order, dated April 27, 2018.)

government filed its response on June 28, 2018.

The

(See Government

Memorandum in Opposition to Petitioner’s Second Motion to Amend
filed June 28, 2018 (“Second Opp.”), ECF No. 69.)

On August 8,

2018, Mr. Rodriguez filed his reply to the government’s second
opposition memorandum.

(See Mr. Rodriguez’s Reply to

Government’s Opposition filed August 8, 2018 (“Second Reply”),
ECF No. 73.)
Standard of Review
“A prisoner in custody under sentence of a [federal
court] claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or
laws of the United States, or that the court was without
jurisdiction to impose such sentence, . . . or is otherwise
subject to collateral attack, may move the court which imposed

17

the sentence to vacate, set aside or correct the sentence.”
U.S.C. § 2255(a).

28

The court “shall vacate and set the judgment

aside” if the Court finds that “the judgment was rendered
without jurisdiction, or that the sentence imposed was not
authorized by law or otherwise open to collateral attack, or
that there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the judgment
vulnerable to collateral attack.”

(Id. § 2255(b).)

To respect

the finality of criminal convictions, “a collateral attack on a
final judgment in a federal criminal case is generally available
under Section 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.’”

United States v. Bokun,

73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368
U.S. 424, 428 (1962)).
“A Section 2255 petition may not be used as a
substitute for a direct appeal.”

Marone v. United States, 10

F.3d 65, 67 (2d Cir. 1993) (citing United States v. Frady, 456
U.S. 152, 165 (1982)).

A claim “may not be presented in a

habeas petition where the petitioner failed to properly raise
the claim on direct review.”

Zhang v. United States, 506 F.3d

162, 166 (2d Cir. 2007) (citing Reed v. Farley, 512 U.S. 339,
354 (1994)).

Therefore, a petitioner’s claims not raised on

18

direct review, “with the exception of his ineffective assistance
of counsel claims, are ‘procedurally forfeited . . . unless he
can show (1) cause for failing to raise the issue, and prejudice
resulting therefrom; or (2) actual innocence.’”

Mora v. United

States, 2010 WL 2607209, at *2 (June 29, 2010) (quoting Sapia v.
United States, 433 F.3d 212, 217 (2d Cir. 2005)).

“Actual

innocence means factual innocence, not mere legal
insufficiency.”

Bousley v. United States, 523 U.S. 614, 624

(1998) (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)).
“To establish actual innocence, petitioner must demonstrate
that, ‘in light of all the evidence,’ ‘it is more likely than
not that no reasonable juror would have convicted him.’”

(Id.

at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)).)
“[A] petitioner may bring an ineffective assistance of
counsel claim whether or not the petitioner could have raised
the claim on direct appeal.”

Yick Man Mui v. United States, 614

F.3d 50, 54 (2d Cir. 2010) (citing Massaro v. United States, 538
U.S. 500, 509 (2003)).

However, in the Second Circuit, “a

Section 2255 petitioner may not ‘relitigate questions which were
raised and considered on direct appeal,’ including questions as
to the adequacy of counsel.”

(Id. at 55 (quoting United States

v. Becker, 502 F.3d 122, 127 (2d Cir. 2007)).)

Therefore,

courts in the Second Circuit have applied the so-named “mandate
rule” to bar claims of ineffective assistance in a Section 2255

19

proceeding “when the factual predicates of those claims, while
not explicitly raised on direct appeal, were nonetheless
impliedly rejected by the appellate court mandate.”

(Id. at 53

(citing United States v. Pitcher, 559 F.3d 120, 124 (2d Cir.
2009)).)
In considering the instant petition, the court “must
review a pro se [Section 2255] petition for collateral relief
‘with a lenient eye, allowing borderline cases to proceed.’”
Fleming v. United States, 146 F.3d 88, 91 (2d Cir. 1998)
(quoting Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir.
1983)).

As the “court is mindful that a pro se pleading is held

to less stringent standards than more formal pleadings drafted
by attorneys,” the court interprets Mr. Rodriguez’s pleadings as
raising the strongest arguments they suggest.

See Martin v.

United States, 834 F. Supp. 2d 115, 118 n.1 (E.D.N.Y. 2011).
Discussion
I.

Motions to Amend
On February 17, 2015, Mr. Rodriguez filed his first

motion to amend his petition.

(Amend. Mot. at 1.)

2018, petitioner filed his second motion to amend.
Amend. Mot. at 1.)

On April 10,
(Second

Because Mr. Rodriguez’s claims in his

motions to amend are either procedurally barred or futile as

20

described below, petitioner’s motions to amend are respectfully
denied.
A. Legal Standard
Petitions filed under Section 2255 are subject to a
one-year statute of limitations, running from “the date on which
the judgment of conviction becomes final.”
§ 2255(f)(1).
7, 2013.

28 U.S.C.

Mr. Rodriguez’s judgment became final on October

See Rodriguez v. United States, 571 U.S. 942 (2013).

As discussed below, Mr. Rodriguez’s petition is considered
timely due to the prisoner mailbox rule and is within the
limitations period.

However, Mr. Rodriguez’s first and second

motions to amend were filed four months and more than four
years, respectively, after the statute of limitations period
expired.

“If claims asserted after the one-year period could be

revived simply because they relate to the same trial,
conviction, or sentence as a timely filed claim,” the
“limitation period would have slim significance.”
Felix, 545 U.S. 644, 662 (2005).

Mayle v.

In order for the claims in Mr.

Rodriguez’s motions to amend to be considered timely, each
claim, respectively, must relate back to his original petition.
See Fed. R. Civ. P. 15(c); see also Martin v. United States, 834
F.Supp.2d 115, 123 (E.D.N.Y. 2011); Delutro v. United States,
2014 WL 4639198, at *5 (E.D.N.Y. Sept. 16, 2014).

21

Therefore, the court examines whether each claim
“arose out of the conduct, transaction, or occurrence set out—or
attempted to be set out—in the original pleading.”

Fed. R. Civ.

P. 15(c)(1)(B); see also Mayle, 545 U.S. at 647 (“[R]elation
back will be in order so long as the original and amended
petitions state claims that are tied to a common core of
operative facts”).
In Mayle, “the Supreme Court limited claims in an
amended petition to those that arose from the same core facts
alleged in the original petition, not those related generally to
petitioner’s trial, conviction, or sentence.”

Gibson v. Artus,

407 F. App’x. 517, 519 (2d Cir. 2010) (summary order).

Mr.

Rodriguez’s claims must relate back to the core operative facts
of his claims for ineffective assistance of counsel as outlined
within his original petition.

Summarily stating that these

claims relate to ineffective assistance of counsel will not
suffice.

See Soler v. United States, 2010 WL 5173858, at *4

(S.D.N.Y. Dec. 20, 2010) (“[E]ven an ineffective assistance of
counsel claim, when alleging a different ground for ineffective
assistance, does not relate back to an earlier ineffective
assistance claim.”); see also Desrosiers v. Phillips, 2008 WL
4469594, at *7 n.5 (E.D.N.Y. Oct. 3, 2008) (“[I]t is now fairly
well-established that ineffective assistance of counsel claims
in the habeas context do not relate back to one another merely

22

because they both involve counsel's allegedly deficient
performance”); Veal v. United States, 2007 WL 3146925, at *6
(S.D.N.Y. Oct. 9, 2007) (“There is a clearer line of demarcation
here, where we are asked to relate an attorney’s conduct at
trial and the level and quality of his pre-trial communications
with his client.”); Gonzalez v. United States, 2018 WL 5023941,
at *6 (S.D.N.Y. Oct. 17, 2018); Hiers v. Bradt, 2014 WL 6804252,
at *6 (E.D.N.Y. Dec. 3, 2014).
The court also reviews Mr. Rodriguez’s claims in his
motions to amend to determine if such amendments would be
futile.

See Thristino v. United States, 379 F. Supp. 2d 510,

514 (S.D.N.Y. July 25, 2005) (quoting Jones v. N.Y. State Div.
Military & Naval Affairs, 166 F.3d 45, 50 (2d Cir. 1999))
(“However ‘a district court may properly deny leave when
amendment would be futile.’”).

While “leave to amend generally

should be freely granted, it may be denied where there is good
reason to do so, such as undue delay, bad faith, dilatory
tactics, undue prejudice to the party to be served with the
proposed pleading, or futility.”

Edwards v. Fischer, 2002 WL

31833237, at *1 (S.D.N.Y. Dec. 16, 2002) (citing Forman v.
Davis, 371 U.S. 178, 182 (1962)).

A proposed amendment is

futile “if the proposed claim could not withstand a motion to
dismiss for failure to state a claim upon which relief may be

23

granted.”

(Id. (quoting Lucente v. Int’l Bus. Machs. Corp., 310

F.3d 243, 258 (2d Cir. 2002)).)
B. First Motion to Amend
Mr. Rodriguez asserts three proposed claims in his
first motion to amend: (i) AUSA Noah Perlman and AUSA Max
Minzner intentionally excluded from the Cooperation Agreement
with cooperating witness Carlos Medina “the material fact that
as part of the Cooperation Agreement . . . the Government will
not seek the death penalty against ‘CW’ Carlos Medina-Torres in
relation to the charges against him” and therefore Mr. Rodriguez
was not able to cross-examine Medina regarding this portion of
the cooperation agreement; (ii) AUSA Licha Nyiendo and AUSA
Robert Capers intentionally did not provide Mr. Rodriguez “nor
the defense for the petitioner Rodriguez, case[] 05-CR153(DGT)[,] with copy of notes, documents or voice notification
that ‘CW’ Carlos Medina-Torres had prior to the alleged
conspiracy of 2000, (The Polanco Conspiracy) that ‘CW’ Medina
had provided testimony in a State of New York trial in the
shooting of a New York Police Officer [, People v. Aparicio, 84
N.Y. 2d 1009 (N.Y. 1994)] and that his testimony had been
incredible and/or just completely false;” and (iii) Ms. Murray
“had a conflict of interest, and did not disqualify herself or
notify the Court of the conflict or make any attempt at
correcting [the] issue of the conflict, after she was re-

24

assigned as full counsel, and no longer standby counsel.”
(Amend. Mot. at 2.)
1. Excluded Material Fact from the Cooperation
Agreement with Cooperating Witness Medina
First, Mr. Rodriguez asserts that the government
intentionally excluded from CW Medina’s Cooperation Agreement
that “the material fact that as part of the Cooperation
Agreement . . . the Government will not seek the death penalty
against ‘CW’ Carlos Medina-Torres in relation to the charges
against him” and therefore Mr. Rodriguez was not able to crossexamine Medina regarding this portion of the cooperation
agreement.

(Amend. Mot. at 2.)

The “mandate rule bars re-

litigation of issues already decided on direct appeal.” Yick Man
Mui, 614 F.3d at 53.

“[W]hen the factual predicates of those

claims, while not explicitly raised on direct appeal, were
nonetheless impliedly rejected by the appellate court mandate,”
the district court must find the claim futile.
(citing Pitcher, 559 F.3d at 124).)

(Id. at 53

On direct appeal, Mr.

Rodriguez’s appellate counsel argued the falsity of Mr. Medina’s
testimony that he was facing a mandatory life sentence.

(Brief

and Appendix for Appellant Luis Rodriguez, at *61, 2012 WL
5903001, Rodriguez, 503 F. App’x 72 (Nov. 21, 2012).)

The

Second Circuit ruled that Mr. Rodriguez’s perjury claim against
Mr. Medina “fails” because petitioner has “offered no evidence

25

that Medina did not believe his plea was valid or that he faced
a maximum sentence of life imprisonment – especially as Medina’s
plea agreement states that his maximum possible sentence was
life imprisonment.”

Rodriguez, 503 F. App’x at *76 n.1.

Mr.

Rodriguez likely would have been aware at trial that Mr. Medina
pled guilty to a sentence of life imprisonment for a crime that
had the possibility of a death sentence, based on Mr. Medina’s
testimony.

In addition, the Second Circuit dismissed Mr.

Rodriguez’s challenges of perjury and credibility against Mr.
Medina.

As a result, the court finds that petitioner’s claim at

minimum was impliedly raised on direct appeal.

Therefore,

petitioner’s claim of exclusion of a material fact from CW
Medina’s cooperation agreement is rendered futile by the mandate
rule.

Amendment of the petition to include this claim is

respectfully denied.
2. Failure to Provide Documents Related to CW Medina’s
Testimony in Different State Trial
Second, Mr. Rodriguez seeks to supplement his “pattern
of prosecutorial misconduct” claims with an allegation that
AUSAs Nyiendo and Capers “intentionally” failed to provide
testimony that CW Medina purportedly gave in an unrelated state
court trial, People v. Aparicio, 208 A.D. 2d 638, aff’d, 84 N.Y.
2d 1009 (N.Y. 1994), involving the shooting of a police officer
and the robbery of CW Medina. (Amend. Mot. at 2.)

26

The government asserts that Mr. Rodriguez’s second
claim in his motion to amend does not relate back because it
involves whether Mr. Rodriguez “was entitled to a copy of Mr.
Medina’s purported testimony [in] a prior, unrelated state court
trial” to use during cross-examination.

(Opp. at 35.)

Were the

court to construe petitioner’s claim as one for prosecutorial
misconduct, rather than as a claim of ineffective assistance of
counsel, there is no possibility that petitioner’s amended claim
could relate back to his original petition.
650.

Mayle, 545 U.S. at

Even as this court liberally construes petitioner’s pro se

motion to amend as a claim for ineffective assistance of
counsel, the court cannot find that this claim arises out of the
same core of operative facts.

See Soler, 2010 WL 5173858, at *4

(S.D.N.Y. Dec. 20, 2010) (“[E]ven an ineffective assistance of
counsel claim, when alleging a different ground for ineffective
assistance, does not relate back to an earlier ineffective
assistance claim.”).
In any event, Mr. Rodriguez fails to demonstrate how
testimony from an unrelated case would “establish ‘a reasonable
probability that, had [it] been disclosed to the defense, the
result of the proceeding would have been different.’”

United

States v. Santos, 486 F. App’x 133, 136 (2d Cir. 2012) (quoting
United States v. Bagley, 473 U.S. 667, 682 (1985)).

Mr.

Rodriguez incorrectly states that the New York trial court ruled

27

in Aparicio that Mr. Medina’s testimony was “incredible and/or
just completely false,” Amend. Mot. at 2, when in fact the jury
was unable to reach a verdict on “the attempted robbery of Mr.
Medina and the assault of the police officer,” but convicted Mr.
Aparicio on other counts.

See Aparicio v. Artuz, 2000 WL

713744, at *1 (E.D.N.Y. May 25, 2000).7

Because Mr. Rodriguez’s

proposed amended claim is futile under any construction, it is
respectfully denied.
3. Ineffective Assistance of Counsel for Conflict of
Interest
Mr. Rodriguez’s third claim is essentially the same as
Ground Five of his petition discussed below.
Five.)

(See infra, Ground

Mr. Rodriguez reiterates his claim that Ms. Murray

prevented the first investigator, Mr. Dwyer, from working on Mr.
Rodriguez’s case and refusing to sign Mr. Dwyer’s work vouchers.
(Declaration in Support of Motion to Amend, at 2, ECF No. 9-1.)
Further, in support of this claim, Petitioner summarily asserts
that Ms. Murray had a “conflict of interest in relation to the
preparation of the defense” because she “stated in open Court
that she had an issue with the investigator Dwyer interviewing

The facts of Aparicio v. Artuz are recited in the district court ruling
in Mr. Aparicio’s habeas corpus petition in the Eastern District of New York.
(See Aparicio v. Artuz, 2000 WL 713744, at *1 (E.D.N.Y. May 25, 2000).) Mr.
Aparicio’s habeas petition was initially granted in part and denied in part,
but this ruling was later overturned by the Second Circuit, denying Mr.
Aparicio’s petition entirely. (See Aparicio v. Artuz, 269 F.3d 78, 100 (2d
Cir. 2001).)
7

28

Mr. Polanco and that she was afraid she was going to lose her
license to practice law if investigator Dwyer contacted” Mr.
Polanco.

(Id.)

The court addresses Mr. Rodriguez’s claim for

ineffective assistance with regard to Ms. Murray’s alleged
interference, including these assertions in petitioner’s second
motion to amend, in its discussion of Ground Five of his
petition.

(See infra, Ground Five.)

For the reasons discussed

below, Mr. Rodriguez’s allegations do not show that Ms. Murray’s
intrusions were “substantial or frequent enough” to have
seriously undermined Mr. Rodriguez’s defense and, therefore,
this proposed amended claim is denied.

See McKaskle v. Wiggins,

465 U.S. 168, 187 (1984).
Because none of the claims in his first motion to
amend have merit for the reasons discussed in this section,
supra, petitioner’s first motion to amend is denied.
C. Second Motion to Amend
Mr. Rodriguez asserts four claims in his second motion
to amend, alleging that: (i) in a previous case, United States
v. Rodriguez, 392 F.3d 539 (2004), AUSA Klugman asked the court
to impose a more severe punishment against Mr. Rodriguez due to
Mr. Rodriguez’s purported civil claim against AUSA Klugman; (ii)
in the present case, the arrest warrant affidavit contained
false statements and petitioner allegedly was not brought before
a judge in a timely manner;

(iii) the government violated the

29

mandate rule by using some of the underlying facts of the
previous conviction overturned by the Second Circuit to obtain
an indictment before the grand jury; and (iv) under the
reasoning of Nelson v. Colorado, 137 S. Ct. 1249 (2017), the
grand jury indictment was improperly obtained because the
government was not allowed to utilize any of the facts related
to the previous acquitted conduct.8
1.

(Second Amend. Mot. at 2-4.)

AUSA Request for More Severe Punishment

Petitioner’s claim that AUSA Klugman sought out a more
severe sentence in his separate, overturned drug conviction is
time-barred, as it does not relate back to any of the core
operative facts underlying his ineffective assistance of counsel
claims raised in this petition.

Petitioner’s claim of

prosecutorial misconduct regarding the previously overturned
conviction arises from a different case, “separate in both time
and type,” from the ineffective assistance of counsel claims
that are related to the present case.

Moreover, because the

one-year statutory period has passed, see 28 U.S.C.
§ 2255(f)(1), this claim regarding the petitioner’s previous,

Mr. Rodriguez does not construe these claims as ineffective assistance
of counsel claims, but rather asserts them as additional claims which, so
construed, would be procedurally barred. (See generally Second Amend. Mot.)
However, as Mr. Rodriguez proceeds pro se, this court construes these claims
for the strongest arguments that they may raise and construes them as
ineffective assistance claims.
8

30

overturned conviction is time-barred and denied.

Veal, 2007 WL

3146925, at *5 (S.D.N.Y. Oct. 9, 2007) (collecting cases).
2.

False Statements in Arrest Warrant Affidavit and
Failure to Appear Before a Judge in a Timely
Manner

First, Mr. Rodriguez provides no new facts to
distinguish his claim, also raised in his original petition,
alleging that Special Agent Iula submitted false statements in
connection with petitioner’s arrest warrant affidavit.
generally Pet.)

(See

The court finds that petitioner presents no new

facts to support the merits of this claim and thus denies
petitioner’s motion to amend on this ground.
Second, as Mr. Rodriguez’s assertion that he was not
brought before a judge in a timely manner does allege new facts
that may be the basis for a distinct claim, the court addresses
this prong of petitioner’s claim on its merits.
Mot. at 2.)

(Second Amend.

Petitioner argues that he was not “taken before any

judicial officer within the 48-hour rule, he was taken over
eight days later [sic], after the Mandate [of the Second
Circuit] was issued” and that the government had filed an
Affidavit and Complaint in support an arrest warrant “[e]leven
(11) days prior to the [Second Circuit’s] Mandate.”9

(Memorandum

Mr. Rodriguez’s reply to the government’s opposition to his second
motion to amend provides no further clarity. (See generally Second Reply.)
Mr. Rodriguez only repeats his conclusory arguments and refers to general
discussions of prosecutorial misconduct. (Id.)
9

31

in Support of Second Motion to Amend, at 2, ECF No. 64-1.)
However, petitioner appears to misunderstand the forty-eighthour rule for warrantless arrests as applying to the instant
case.

Petitioner appears to be referencing County of Riverside

v. McLaughlin, 500 U.S. 44 (1991).

In McLaughlin, the Supreme

Court found that the government has the burden to demonstrate
the existence of an extraordinary circumstance for a delay
beyond a forty-eight hour period for a probable cause
determination following a warrantless arrest.

500 U.S. at 57;

see also Powell v. Nevada, 511 U.S. 79, 83-84 (1994).

In the

instant case, a warrant was issued for petitioner’s arrest.
(Arrest Warrant, Docket No. 05-cr-00153, ECF No. 2.)

Therefore,

petitioner’s claim does not fall within the ambit of the fortyeight-hour rule for warrantless arrests and this claim is futile
and is thus respectfully denied.
3.

Violation of the Mandate Rule

Mr. Rodriguez’s third proposed claim in his motion to
amend asserts that the government “re-litigated the issue
resolved by the Court of Appeals for the Second Circuit in U.S.
v. Rodriguez, 392 F.3d 539 (2d Cir. 2004), with regards to a
heroin conspiracy that the Court overturn[ed] . . . and entered
a judgment of direct acquittal . . . .” in alleged violation of
the mandate rule.

(Second Amend. Mot. at 3.)

Mr. Rodriguez

misunderstands and misapplies the mandate rule.

32

The mandate

rule in the context of a Section 2255 proceeding bars a
petitioner, not the government, from “‘relitigat[ing] questions
which were raised and considered on direct appeal,’ including
questions as to the adequacy of counsel.”

(Yick Man Mui, 614

F.3d at 55 (quoting United States v. Becker, 502 F.3d 122, 127
(2d Cir. 2007)).)

“In the context of Section 2255 proceedings

involving claims of ineffective assistance of counsel [the
Second Circuit has] applied the mandate rule to bar claims
raised and resolved on direct appeal.”

(Id. at 53.)

The court

understands petitioner’s conclusory argument here to be that the
government should have been barred from using overlapping facts
from petitioner’s separate heroin case in the instant case.

The

mandate rule, however, restricts petitioner from bringing the
same or related claim decided on appeal from the instant action,
and has no bearing on petitioner’s argument that the government
should be barred from relying upon facts previously considered
on direct appeal in a previous, separate conviction for heroin
conspiracy, that was overturned for insufficiency by the Second
Circuit.

(See Rodriguez, 392 F.3d at 545-49 (finding that there

was not sufficient evidence under an “aiding and abetting
theory” or a “constructive possession theory” to support Mr.
Rodriguez’s conviction for conspiracy with intent to distribute
heroin).)

As Mr. Rodriguez’s claim misapplies the mandate rule

and has no merit, no prejudice could arise from counsel’s

33

failure to raise it and thus the claim is futile, and amendment
on this ground is respectfully denied.
4.

Nelson v. Colorado Requires Overturning the
Indictment

Finally, petitioner asserts that the Supreme Court’s
decision in Nelson v. Colorado, 137 S. Ct. 1249 (2017), “compels
the conclusion that [United States v. Watts, 519 U.S. 148
(1997)] has been effectively overruled” and “[ac]quitted conduct
cannot be used to penalize (or increase a penalty) because an
acquittal, by any means, restores the ‘presumption of
innocence.’”

(Second Amend. Mot. at 4.)

In Nelson, the Supreme

Court held that Colorado statutes requiring defendants whose
convictions had been reversed or vacated to prove their
innocence by clear and convincing evidence to obtain the refund
of costs, fees, and restitution paid pursuant to the invalid
conviction violated due process. (137 S. Ct. at 1255-58.)
Nelson reaffirmed a long-standing rule that the
defendants’ “presumption of [] innocence was restored” in
relation to the crimes they were previously convicted of, and
subsequently acquitted of.

(Id. at 1255.)

Mr. Rodriguez’s

presumption of innocence was restored with regard to the heroin
conspiracy, but this presumption does not preclude his
prosecution and conviction for cocaine conspiracy and conspiracy
to murder “Ronnie” and “El Renco,” who were mistakenly believed

34

to be the actual murder victims, Mr. Garces and his fourteenyear-old stepson Edgardo Bryan.

Mr. Rodriguez seeks to

significantly expand Nelson’s restoration of the presumption of
innocence, and would preclude the government from mentioning any
underlying facts relevant to the prosecution of a different
offense, that may also have been relevant in the acquitted
case.10

There is no legal basis supporting Mr. Rodriguez’s

claim.

(Second Opp. at 3.)

Therefore, Mr. Rodriguez’s fourth

claim is futile and is respectfully denied.
Because none of the claims in his second motion to
amend have merit for the reasons discussed in this section
supra, petitioner’s second motion to amend is also denied.
II.

Preliminary Considerations for Section 2255 Habeas Petition
The court next considers the merits of Mr. Rodriguez’s

habeas petition by first addressing two threshold issues: (1)
whether Mr. Rodriguez’s petition was timely filed; and (2)
whether the court may decide the petition on the submitted

Mr. Rodriguez is also incorrect in his contention that Nelson v.
Colorado overturned United States v. Watts, 519 U.S. 148 (1997). The Supreme
Court in Watts held that sentencing courts may consider a defendants’
acquitted conduct, so long as this conduct was proven by preponderance of the
evidence. 519 U.S. at 157. Watts is not relevant to petitioner’s claim as
his acquitted conduct is not at issue here. Rather, Mr. Rodriguez seeks to
argue that his indictment giving rise to the instant petition was improper,
despite being convicted of offenses wholly different from his acquitted
conduct. For the reasons discussed above, this claim is meritless.
10

35

records before the court, or whether an evidentiary hearing is
necessary.
A. Timeliness of Section 2255 Motion
A motion pursuant to 28 U.S.C. § 2255 must be filed
within one year from the date on which the judgment of
conviction becomes final.

28 U.S.C. § 2255(f)(1).

The Second

Circuit has ruled that the one-year statute of limitations for a
habeas petition runs from the Supreme Court’s denial of a writ
of certiorari under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”).
F.3d 856, 857 (2d Cir. 2015).

See Rosa v. United States, 785
“Where a prisoner proceeds pro

se, the filing date is governed by the ‘prisoner mailbox rule,’
which provides that the effective filing date is the day upon
which the prisoner delivers the petition to prison officials for
mailing.”

Mingo v. United States, 360 F. Supp. 2d 591, 593

(S.D.N.Y. 2005) (citing Noble v. Kelly, 246 F.3d 93, 97 (2d Cir.
2007)); see also Houston v. Lack, 487 U.S. 266, 276 (1988)
(defining the prisoner mailbox rule).
In the present case, Mr. Rodriguez’s judgment of
conviction became final on October 7, 2013, when the Supreme
Court denied his writ of certiorari.
States, 571 U.S. 942 (2013).

Rodriguez v. United

Though his petition was filed with

the court on October 20, 2014, Mr. Rodriguez signed his petition
on October 1, 2014, see Pet. at 12, within the one-year statute

36

of limitations.

“[I]n the absence of contrary evidence,

district courts in [the Second] circuit have tended to assume
that prisoners’ papers were given to prison officials on the
date of their signing.”

Hardy v. Conway, 162 F. App’x. 61, 62

(2d Cir. 2006) (collecting cases).

Therefore, in line with the

“prisoner mailbox rule,” the court deems Mr. Rodriguez’s
petition timely.
B. Evidentiary Hearing
The court must also decide whether the claims in Mr.
Rodriguez’s petition can be addressed on the record before the
court, or whether Mr. Rodriguez’s request for an evidentiary
hearing should be granted.

“In ruling on a motion under Section

2255, the district court is required to hold a hearing ‘[u]nless
the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief.’”

Gonzalez v.

United States, 722 F.3d 118, 130 (2d Cir. 2013) (quoting 28
U.S.C. § 2255).

“[T]he filing of a motion pursuant to Section

2255 does not automatically entitle the movant to a hearing.”
(Id.)

No hearing is necessary “where the allegations are

‘vague, conclusory, or palpably incredible.’”

(Id. (quoting

Machibroda v. United States, 368 U.S. 487, 495 (1962)).)

A

hearing is necessary only where the petition “set[s] forth
specific facts supported by competent evidence, raising detailed

37

and controverted issues of fact that, if proved at a hearing,
would entitle [the petitioner] to relief.”

(Id.)

Even if a hearing is warranted, it is “within the
district court’s discretion to determine the scope and nature of
a hearing.”

Raysor v. United States, 647 F.3d 491, 494 (2d Cir.

2011) (citing Chang v. United States, 250 F.3d 79, 85–86 (2d
Cir. 2001)).

A court need not hold a full testimonial hearing

where “the testimony of [the petitioner] and his trial counsel
would add little or nothing to the written submissions.”

Chang,

250 F.3d at 86; see also Florez v. United States, 2007 WL
162764, at *4 (E.D.N.Y. Jan. 18, 2007) (“A review of the papers
submitted by the parties, including a detailed affidavit from
[petitioner’s counsel], are sufficient to decide this issue; a
full testimonial hearing is unnecessary”).

In the Second

Circuit, courts frequently “consider the ‘trial record, letters,
documents, exhibits, affidavits and written interrogatories’ and
may adopt a ‘middle road’ approach, declining to hold a hearing
and ‘deciding disputed facts on the basis of written
submissions.’”

Rosario v. United States, 2019 WL 5260784, at *3

(S.D.N.Y. Oct. 17, 2019) (quoting Pham v. United States, 317
F.3d 178, 184 (2d Cir. 2003)); see also Wang v. United States,
458 F. App’x. 44, 45 (2d Cir. 2012) (summary order) (“[T]he
District Court did conduct an evidentiary hearing, albeit one

38

limited to the sworn, written submissions of [petitioner], his
former counsel, and the interpreters.”).
In the present case, the court directed Mr. Gordon and
Ms. Murray to respond to Mr. Rodriguez’s allegations of
ineffective assistance of counsel.
ECF No. 2.)

(Order to Show Cause, ¶ 1,

Mr. Gordon filed a detailed eight-page affidavit

contradicting Mr. Rodriguez’s claims that Mr. Gordon failed to:
object to Magistrate Judge Pollak’s rejection of petitioner’s
jurisdictional argument; make a jurisdictional argument as a
defense after the filing of the indictment; and investigate
prosecutorial misconduct.

(See generally Gordon Aff.)

Ms.

Murray filed a detailed five-page declaration contradicting Mr.
Rodriguez’s claim of interference with his right to selfrepresentation, the alleged failure to call German Polanco at
Trial, and the alleged failure to investigate prosecutorial
misconduct.

(See generally Murray Decl.)

Based on the extensive record before it, including the
affidavits of petitioner’s counsel, the court finds the “middle
road” approach is sufficient to decide the petition, and that an
evidentiary hearing would add “little to nothing” to the court’s
adjudication of Mr. Rodriguez’s petition.

Accordingly, the

court will decide Mr. Rodriguez’s petition on the record before
it and declines to order an evidentiary hearing.

39

III. Petitioner’s Grounds for Section 2255 Habeas Relief
Mr. Rodriguez moves for habeas relief pursuant to
Section 2255 on the grounds that ineffective assistance of
counsel was rendered to him for: (1) counsel’s alleged failure
to object to the court’s determination of jurisdiction during
the pre-indictment process; (2) counsel’s alleged failure to
raise prosecutorial misconduct impaired the independence of the
grand jury requiring dismissal of the indictment; (3) counsel’s
alleged failure to raise the issue of erroneous grand jury
instructions, which would require dismissal of the indictment;
(4) counsel’s alleged failure to raise due process
considerations prohibiting the government from obtaining an
indictment based on known perjured testimony and failure to
assert that the Government improperly “inflamed” the Grand Jury
in violation of the Sixth Amendment; (5) the alleged violation
of Mr. Rodriguez’s Sixth Amendment right to self-representation;
(6) counsel’s alleged failure to raise that the third prong of
21 U.S.C. § 848(e)(1)(A) unduly infringes on the police power
reserved to the State of New York as applied to Mr. Rodriguez’s
case; and (7) counsel’s failure to raise the alleged pattern of
prosecutorial misconduct within the Eastern District of New York

40

and failure to investigate for the defense in preparation for
trial or dismissal of indictment.11

(Pet. at 4-18.)

For the reasons described below, the court finds that
petitioner’s claims are without merit.
A.

Legal Standard
In reviewing an ineffective assistance of counsel

claim, the court must apply the “highly demanding” standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984).
Kimmelman v. Morrison, 477 U.S. 365, 382 (1986).

See

Under

Strickland, a petitioner must show (1) that defense counsel’s
representation fell below an objective standard of
reasonableness (the “performance prong”); and (2) “that there is

In a letter filed February 2, 2016, Mr. Rodriguez wrote to the court
requesting that the court “view these claims [in his habeas petition] as an
‘actual innocen[ce]’ claim, because the Government attorneys violated the
Indictment clause, which requires that an Indictment contain some factual
particularity to ensure that the prosecution will not ‘fill in’ elements of
its case with ‘facts other’ than those considered by the Grand Jury.”
(Rodriguez Letter Filed February 2, 2016, at 1, ECF No. 48.) Mr. Rodriguez
noted on his original petition forms that he wished that his claims be
considered as claims for ineffective assistance of counsel. (Pet. at 4-18.)
Interpreting petitioner’s claims as “actual innocence” claims would not
benefit petitioner. “Actual innocence means factual innocence, not mere
legal insufficiency.” Bousley, 523 U.S. at 615. “To establish actual
innocence, petitioner must demonstrate that, ‘in light of all the evidence,’
‘it is more likely than not that no reasonable juror would have convicted
him.’” (Id. at 623 (quoting Schlup, 513 U.S. at 327-28).) Mr. Rodriguez
appealed his conviction on the grounds that the government failed to disclose
informants’ statements leading to a purported Brady violation with respect to
his conviction for murder conspiracy, and that the evidence was insufficient
to support his conviction as part of a cocaine conspiracy. Rodriguez, 503 F.
App’x at 74-76. On direct appeal, however, the Second Circuit found no Brady
violation, affirmed that there was sufficient evidence to find Mr. Rodriguez
guilty of the cocaine conspiracy, and rejected Mr. Rodriguez’s perjury claims
against Mr. Medina. (Id. at 74-76, n.1.) Were the court to interpret Mr.
Rodriguez’s claims as actual innocence claims, they would fail, as petitioner
is unable to meet the standard, Bousley, 523 U.S. at 615, and the actual
innocence claim is based on a legal misunderstanding. Instead, the court
construes petitioner’s claims as ineffective assistance of counsel claims.
11

41

a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different”
(the “prejudice prong”).

Pham, 317 F.3d at 182 (citing

Strickland, 466 U.S. at 688, 694).

The district court need only

consider the second prong “for where ‘it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient
prejudice [than on the ground of objectively unreasonable
performance] . . . that course should be followed.”

Parker v.

Ercole, 666 F.3d 830, 834 (2d Cir. 2012) (quoting Strickland,
466 U.S. at 697).
“The performance component of the Strickland test asks
whether a ‘counsel's representation fell below an objective
standard of reasonableness.’”

Kovacs v. United States, 744 F.3d

44, 50 (2d Cir. 2014) (quoting Strickland, 466 U.S. at 688).

A

court must “indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance.”

Strickland, 466 U.S. at 689.

The court reviews

counsel’s actions, keeping in mind that “[c]onstitutionally
effective counsel embraces a ‘wide range of professionally
competent assistance,’ and ‘counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.’”

Greiner

v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) (quoting Strickland,
466 U.S. at 690).

42

The prejudice component of Strickland asks whether
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.”

Gueits v. Kitzpatrick, 612 F.3d 118, 122 (2d

Cir. 2010) (quoting Strickland, 466 U.S. at 694).

“A reasonable

probability is a probability sufficient to undermine confidence
in the outcome.”

Strickland, 466 U.S. at 694.

Merely showing

that counsel’s errors had “some conceivable effect” on the
outcome is not enough to satisfy the prejudice prong, but “a
defendant need not show that counsel’s deficient conduct more
likely than not altered the outcome in the case.”

Id. at 693.

Further, a finding of prejudice requires some objective evidence
other than the petitioner’s assertions.

Pham, 317 F.3d at 182

(citing United States v. Gordon, 156 F.3d 376, 380 (2d Cir.
1998).
B. Ground One: Failure to Object to Court’s Determination of
Jurisdiction
Mr. Rodriguez asserts an ineffective assistance of
counsel claim on the basis that his attorney, Mr. Gordon, did
not object to the court’s determination of standing even though
“[Special Agent] Bryan Iula failed to demonstrate or prove
Standing (Injury in Fact, Causation and Redressability; Personal
and Particular to Himself) in the initial filing of the
Complaint, Complaint in support of an Arrest Warrant and the

43

Indictment.”

(Memorandum in Support of Section 2255 Petition

(“Pet. Mem.”), at 11-12, ECF No. 1-3.)

For the following

reasons, petitioner’s claim is without merit.
Mr. Rodriguez challenged pro se the government’s
standing on at least five occasions and on all occasions his
challenge was denied.

“It is well accepted that a defendant who

exercises his right to appear pro se is not permitted to
complain later about the quality of his own defense or raise an
ineffective assistance of counsel claim.”

United States v.

Abdur-Rahman, 512 F. App’x 1, 4 (2d Cir. 2013)(citing McKaskle,
465 U.S. at 177 n.8).

First, during his February 15, 2005

detention hearing, Mr. Rodriguez objected to the court’s
jurisdiction with Mr. Gordon present and stated “I just met Mr.
Gordon.

I could speak for myself . . . Secondly, okay, there’s

no jurisdiction . . . .”

(Detention Hearing at 3-4.)

It

appears from this court’s review of the May 18, 2005 status
conference that Mr. Rodriguez had filed a motion dated March 17,
2005 to represent himself, asserting that the court lacked
jurisdiction, which he reiterated during the status conference.
(May 18, 2005 Status Conference, at 4-11, 05-cr-00153, ECF No.
9.)

Next, this same jurisdictional challenge was again asserted

by Mr. Rodriguez in a motion in June 2005, a Rule 33 motion in
July 2010, and a sentencing motion in July 2010.

Finally,

according to Mr. Gordon, when counsel went to speak with Mr.

44

Rodriguez immediately prior to the June 20, 2005 conference,
petitioner refused to speak to counsel and indicated that
petitioner sought to represent himself, and Mr. Gordon was
subsequently relieved as counsel on June 20, 2005.
at 5.)

(Gordon Aff.

As Mr. Rodriguez repeatedly sought to make this

jurisdictional challenge pro se, he fails to meet his burden
under the performance prong of the Strickland test.
Further, Mr. Rodriguez’s objection to the court’s
jurisdiction is meritless, as found by Judges Pollak and Trager,
and thus no prejudice results from counsel’s alleged failure to
raise this claim.

Mr. Rodriguez appears to assert two

challenges to the court’s jurisdiction: (1) that Special Agent
Iula did not suffer a personal injury and therefore lacked
“standing” to bring the criminal complaint; and (2) that it is
not clear that the cocaine at issue was involved in interstate
commerce.

Petitioner’s argument fails on both prongs.

First,

Mr. Rodriguez was convicted of violating 21 U.S.C. §
848(e)(1)(A), a federal statute.

This court has original

jurisdiction for all offenses against the laws of the United
States that occur in the Eastern District of New York.
Const. art. III, § 2; 18 U.S.C. § 3231.

See U.S.

Next, the Second

Circuit “has repeatedly held that Congress reasonably concluded
that narcotics trafficking has a substantial effect on
interstate or foreign commerce.”

45

United States v. Feliciano,

223 F.3d 102, 118 (2d Cir. 2000); see also Gonzales v. Raich,
545 U.S. 1, 17-18 (2005)).

As no prejudice could have resulted

from Mr. Gordon’s alleged failure to raise a standing or
jurisdictional claim, it is denied.
C. Ground Two: Failure to Raise Prosecutorial Misconduct
that Impaired the Independence of the Grand Jury
Mr. Rodriguez next asserts an ineffective assistance
of counsel claim on the basis of his counsel’s purported failure
to raise the government’s “war on drugs policy,” the grand
jury’s alleged reliance on “double and triple hearsay,” and the
allegedly shortened length of grand jury deliberations.
Mem. at 17, 22, 23.)

(Pet.

For the following reasons, petitioner’s

second claim is without merit.
Mr. Rodriguez’s assertions are speculative and
conclusory, offered without specific allegations or citations to
the record, and broadly cite to Special Agent Iula’s grand jury
testimony. (See generally Grand Jury. Tr.)

“‘[S]peculation and

surmise’ as to what occurred before the grand jury is not
sufficient to overcome the presumption of regularity accorded to
grand jury proceedings.”

United States v. Sullivan, 2004 WL

253316, at *6 (S.D.N.Y. Feb. 10, 2004) (quoting United States v.
Gibson, 175 F. Supp. 2d 532, 534 (S.D.N.Y. 2001).

In addition,

a finding of prejudice under Strickland requires some objective
evidence other than petitioner’s assertions.

46

Pham, 317 F.3d at

182 (citing Gordon, 156 F.3d at 380).
broad record are insufficient.

Conclusory citations to a

However, had petitioner provided

support for his claims, they would still fail for the following
reasons.
First, Mr. Rodriguez’s claim alleging prosecutorial
reliance on “double and triple hearsay material testimony,” Pet.
Mem. at 17, fails because an “indictment valid on its face
cannot be challenged on the ground that the grand jury acted on
the basis of inadequate evidence.”

Martinez v. United States,

2012 WL 1071239, at *9 (S.D.N.Y. Mar. 30, 2012) (collecting
cases).

“Even where all the evidence before the grand jury is

‘in the nature of hearsay, the Fifth Amendment requires nothing
more than an indictment, valid on its face, returned by a
legally constituted and unbiased grand jury.”

(Id. (quoting

Costello v. United States, 350 U.S. 359, 363 (1956)); United
States v. Perez, 575 F.3d 164, 166 (2d Cir. 2009) (“The
Defendants, however, had no basis to challenge the sufficiency
of the indictment before trial because it met the basic pleading
requirements and was valid on its face.”).)

An indictment is

valid on its face when it meets the pleading requirements of
Federal Rule of Criminal Procedure 7 that requires only “a
plain, concise, and definite written statement of the essential

47

facts constituting the offense charged.”

Fed. R. Crim. P.

7(c)(1).
Second, Mr. Rodriguez asserts that the government’s
conduct at trial deprived him of “Jencks material he would
otherwise be entitled to, more in capital offenses eligible
actions like the one against Movant-Mr. Rodriguez.”
at 22.)

(Pet. Mem.

While unclear, the court reads “Jencks material” to

refer to Jencks Act material, requiring the government to
produce statements by government witnesses. 18 U.S.C. § 3500(b).
The Jencks Act requires the government to “produce statements by
government witnesses only after the witness has testified at
trial.”

United States v. Zuckerman, 88 F. Supp.2d 9, 16

(E.D.N.Y. 2000) (citing United States v. McKay, 70 F. Supp. 2d
208, 213 (E.D.N.Y. 1999); see also 18 U.S.C. § 3500(a) (“In any
criminal prosecution brought by the United States, no statement
or report in the possession of the United States which was made
by a Government witness or prospective Government witness . . .
shall be subject of subpoena, discovery, or inspection until
said witness has testified on direct examination in the trial of
the case.”) Here, petitioner does not specify what testimony
should have been provided to him and, despite having some
portion of Special Agent Iula’s grand jury transcript, see Grand
Jury Tr., nevertheless speculates as to what may have been
provided to the grand jury and may have been kept from him.

48

Therefore, petitioner could not have been prejudiced by his
attorney’s alleged failure to raise this issue.
Petitioner’s claim regarding time allotted for grand
jury deliberations is based only on his conclusory assertions
that “common sense” and the “experience of [Special Agents]
Brian Fleming and Bryan Iula in investigating what transpired
demonstrate that this takes a considerable amount of time in a
complex case of this magnitude,” and that there “is no
possibility that the Government was able to marshal this
evidence, present it to the grand jury for its independent
evaluation, and obtain a carefully considered indictment in the
time allotted.”12

(Id. at 23.)

Mr. Rodriguez’s allegations

fail, as they are either too vague or unsupported by the record,
as required to show either prosecutorial misconduct or either
prong of the Strickland test.

See Hicks v. Ercole, 2015 WL

12

In support of this argument, Mr. Rodriguez cites to several cases,
United States v. Jacobson, 691 F.2d 110, 115 (2d Cir. 1982), United States v.
Samango, 607 F.2d 877, 882-83 (9th Cir. 1979), United States v. Breslin, 619
F. Supp. 438, 443, 445 (E.D. Pa. 1996), and United States v. Carcaise, 442 F.
Supp. 1209, 1213 (M.D. Fla. 1978), for the proposition that two months was
insufficient investigatory time. (Pet. Mem. at 17.)
However, as Mr. Rodriguez appears to admit, these cases are
distinguishable: in the first case, the government informed the grand jury
that “the statute of limitations would run in three days,” Jacobson, 691 F.2d
at 115; the record in the second case showed that “several jurors were not
familiar with the contents of those [grand jury] transcripts,” Samango, 607
F.2d at 881; in the third case, among other things, there was a reference to
a television documentary that was highly prejudicial, improper
characterization of evidence, and constant reference to the statute of
limitations, Breslin, 619 F. Supp. at 443-46; in the fourth, there was a
failure to read the deposition testimony of a witness in its entirety to the
grand jury or to provide the grand jury with a thorough summary by a sworn
competent witness, Carcaise, 442 F. Supp. at 412.

49

1266800, at *23 (S.D.N.Y. Mar. 18, 2015) (“The failure of a
lawyer to invoke meritless objections cannot constitute
constitutionally deficient performance.”)

As no prejudice can

arise from counsel failing to raise a meritless claim, Mr.
Rodriguez’s claim is denied.
D. Ground Three: Failure to Raise the Erroneous Jury
Instructions
Mr. Rodriguez next claims counsel was ineffective in
failing to challenge the grand jury instructions.
29, 35.)

(Pet. Mem. at

Petitioner’s claims rest on speculation and surmise as

to the actual grand jury instruction, as he admitted that his
“memorandum of law assumes that the model grand jury
instructions recommended by the administrative office of the
United States Court were used.”

(Pet. Mot. at 29.)

His claims

are therefore unavailing to overcome the “presumption of
regularity” accorded to grand jury proceedings.
WL 1071239, at *9.

Martinez, 2012

“Courts have consistently upheld as

constitutional the Model [Federal Grand Jury] Charge,
instructions to indict if probable cause is found, and
instructions to not consider the wisdom of criminal laws enacted
by Congress.”

United States v. Faltine, 2014 WL 4370811, at* 7

(E.D.N.Y. Sept. 2, 2014) (collecting cases).

50

As no prejudice

can arise from failing to raise a meritless claim, Mr.
Rodriguez’s claim is denied.
E. Ground Four: Failure to Raise Due Process Considerations
Next, Mr. Rodriguez asserts that Mr. Gordon rendered
ineffective assistance of counsel because he failed to “take any
action or confirm any of the facts claimed by Movant/Defendant
Mr. Rodriguez” alleging due process violations rendered by the
prosecution’s intentional provision of “false and misleading”
statements in the complaint and affidavit of Special Agent Iula,
and material testimony the prosecution knew to be “false,”
“misleading,” and “in part fabricated.”

(Pet. Mot. at 38-42,

49.) For the following reasons, this claim fails.
A habeas petitioner seeking to raise a claim that a
government witness committed perjury before a grand jury must
show that “an individual under oath made a false statement, ‘as
to a material fact . . . which the individual did not believe to
be true.’”

Stinson v. United States, 2015 WL 539457, at *3 (D.

Conn. Feb. 6, 2015) (quoting United States v. Stone, 429 F. 2d
138, 140 (2d Cir. 1970)) (brackets omitted).

A “jury’s

subsequent guilty verdict means not only that there was probable
cause to believe that the defendants were guilty as charged, but
also that they are in fact guilty as charged beyond a reasonable
doubt.”

United States v. Mechanik, 475 U.S. 66, 106 (1986).

Thus, “any error in the grand jury proceeding connected with the

51

charging decision [is] harmless beyond a reasonable doubt,” and
appellate counsel’s alleged failure to raise this claim cannot
be said to have prejudiced the petitioner.

(Id. at 70.)

Further, “the clearly established Supreme Court
precedent relevant to [a] habeas petition [alleging the use of
perjured testimony] is that the conviction must be set aside if
(1) the prosecution actually knew of...false testimony, and (2)
there is any reasonable likelihood that the false testimony
could have affected the judgment of the jury.

Drake v.

Portuondo, 553 F.3d 230, 241 (2d Cir. 2009) (discussing United
States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392 (1976), holding
modified by United States v. Bagley, 473 U.S. 667, 105 S. Ct.
3375, 87 L. Ed. 2d 481 (1985).

As the court has already found

that Mr. Rodriguez’s has presented no new facts supporting his
argument that Special Agent Iula’s testimony was false and the
government knew it to be so, see supra Second Motion to Amend,
petitioner’s argument fails the first prong and is without
merit.
Further, Mr. Rodriguez’s assertions are conclusory and
do not present facts demonstrating that the government elicited
false testimony before the grand jury in his case.

Petitioner

repeatedly asserts that the prosecution intentionally elicited
testimony they knew to be false and misleading hearsay from the
witness.

(Pet. Mot. at 38-49.)

Petitioner’s assertions that,

52

“this testimony is totally false and AUSA Max Minzner (AUSAEDNY) and Complainant Bryan Iula knew that the telephone calls
were not made to the phone of Movant/Defendant Mr. Rodriguez,”
and, “Complainant Bryan Iula fabricated in part the testimony
and was aware that the testimony was double and triple hearsay
that would coerce and mislead the Grand Jury,” fail to
demonstrate that the testimony was false or that the prosecutor
knowingly introduced perjured testimony.

(Id. at 48-49.)

The only factual predicate petitioner points to is a
fact outside of his case.

Petitioner appends a letter drafted

by AUSA Carrie Capwell, on behalf of the United States
Attorney’s Office for the Eastern District of New York, to a Mr.
Schatz, regarding an unrelated case, United States v. Santos,
Criminal Docket No. 01-537 (DGT).

AUSA Capwell’s letter relays

that witness Mark Fritsche, “a video editor from N-Vision who
testified at the Santos trial,” stated that his testimony at the
Santos trial had not been truthful and “that his testimony was
given to him by former AUSA Max Minzner in preparation for his
testimony" in the Santos trial.

(United States Attorney Office

of the Eastern District of New York Letter Regarding United
States v. Manuel Santos dated May 8, 2007 (“USAO Letter”), at
52, Exhibit 3-A, ECF No. 1-4.)

AUSA Minzner’s conduct in Santos

is not before this court and, without more, the USAO Letter
alone cannot support an inference that AUSA Minzner repeated his

53

alleged conduct in Santos in petitioner’s case.

The court

therefore finds that Mr. Rodriguez has failed to demonstrate how
the USAO Letter in Santos establishes prosecutorial misconduct
in petitioner’s case, and has proffered no evidence that Special
Agent Iula committed perjury before the grand jury.13,14
Further, Mr. Gordon states in his affidavit that
“[d]uring this brief period [that Mr. Gordon represented Mr.

In United States v. Santos, the Second Circuit affirmed the district
court’s finding that Mark Fritsche testified credibly at the Rule 33 motion
hearing and “offered an ‘appropriate’ explanation for his testimony at
trial,” because “[g]iven [Fritsche’s] testimony concerning his company’s
creation of the videos and the fact that the expert never testified that he
personally created the videos . . . there is no basis to question the
district court’s finding.” 486 F. App’x 133, 134 (2d Cir. 2012) (summary
order).
14
Mr. Rodriguez adds that Special Agent Iula incorrectly stated that
petitioner “had been arrested for the charge[] of attempt[ing] to
distribute...cocaine, then [Iula] corrects [himself] and states that [Mr.
Rodriguez was arrested on a charge of]...conspiracy to distribute two
kilograms [of] heroin.” (Pet. Mem. at 42.) Mr. Rodriguez asserts that this
testimony “elicit[ed] by prosecutor Max Minzner is an intentional attempt to
depict Movant-Rodriguez as a bad person rather than to support additional
charges.” (Id.) In reviewing the appended selection of Special Agent Iula’s
grand jury testimony it is clear that Mr. Rodriguez has misread the
transcript, as Special Agent Iula is referring to cooperating witness Carlos
Medina:
13

Q. Did you participate in the arrest of Carlos Medina in December of
2000?
A. Yes, I did.
Q. What was Carlos Medina arrested for?
A. Possession of two kilograms of cocaine - - conspiracy to distribute
two kilograms of heroin, I’m sorry.
(Grand Jury Tr. at 30-31.) Mr. Rodriguez also points the court to Special
Agent Iula’s complaint and affidavit in support of his arrest warrant and
states that the court should review “paragraphs 6 and 7 regarding phone
records ‘not’ belonging to Movant-Mr. Rodriguez.” (Pet. Mem. at 42.) In
reviewing these paragraphs, it is not clear what Mr. Rodriguez relies on to
support his arguments. The affidavit is highly specific and provides that
“[r]ecords for that pay telephone [a few blocks away from the murder that was
used by the Cooperating Witness] show two calls to the number for ‘El Negro’
at 8:36 p.m. and a call to RODRIGUEZ’s cellular telephone at 8:37 p.m. that
night.” (Complaint and Affidavit in Support of Arrest Warrant dated January
26, 2005, at 23, ECF No. 1-4.)

54

Rodriguez] I had not seen the grand jury testimony and therefore
had no knowledge of any purported pattern of prosecutorial
misconduct,” and, “I have no recollection of [petitioner’s]
asking me to obtain an investigator to investigate any claim of
prosecutorial misconduct in the grand jury.”
7.)

(Gordon Aff. at

Mr. Gordon’s affidavit refutes petitioner’s assertions.

In

any event, standing on their own, petitioner’s conclusory
assertions cannot support a finding of deficient performance,
and most importantly, cannot support a finding that prejudice
could arise.

As a result, petitioner’s argument is meritless.

See United States v. Noble, 363 F. App’x 771, 773 (2d Cir. 2010)
(quoting United States v. Arena, 180 F.3d 380, 396 (2d Cir.
1999) (“An attorney’s ‘[f]ailure to make a meritless argument
does not amount to ineffective assistance.’”) For the reasons
stated above, the court denies the claim that counsel was
ineffective for failing to raise a due process violation.
F. Ground Five: Violation of Sixth Amendment Right to SelfRepresentation
Mr. Rodriguez’s fifth claim asserts that his standby
counsel and eventual principal counsel, Ms. Murray, violated his
right to self-representation as she “proceeded to interfere with
the communications between [the] investigator [Mr. Dwyer]
assigned by the Court,” stopped Mr. Dwyer “from interviewing
other potential witness[es] including German Polanco” and

55

“Carlos Medina’s room-mate” Mr. Aguilar, requested approval for
additional funds to hire another investigator without Mr.
Rodriguez’s approval, and did not provide Mr. Rodriguez the USAO
Letter related to the Santos trial.

(Pet. Mem. at 50-53.)

Mr.

Rodriguez asserts that Ms. Murray put “her personal interest and
finances before that of her client’s,” which was an “intentional
act of sabotage” to his defense.

(Id. at 54.)

For the

following reasons, petitioner’s claim is denied because it is
without merit.
“Although not expressly stated in the Sixth Amendment,
a clearly established corollary to the right to counsel is the
right to dispense with [a] lawyer’s help, and to represent
oneself.”

Dallio v. Spitzer, 343 F.3d 553, 560 (2d Cir. 2003)

(internal citations and quotations omitted); see also Faretta v.
California, 422 U.S. 806, 819 (1975) (“Although not stated in
the amendment in so many words, the right to self-representation
-to make one’s own defense personally-is thus necessarily
implied by the structure of the Amendment.”).

The core of this

Faretta right is that “the pro se defendant is entitled to
preserve actual control over the case he chooses to present to
the jury.”

McKaskle, 465 U.S. at 178.

The Faretta right is

eroded “[i]f standby counsel's participation over defendant's
objection effectively allows counsel to make or substantially
interfere with any significant tactical decisions, or to control

56

questioning of witnesses, or to speak instead of defendant on
any matter of importance.”

(Id.)

“Stand-by counsel’s

participation is limited in two ways: (1) the defendant has the
right to preserve actual control over the content of the case
presented to the jury, and so standby counsel is not allowed to
‘make or substantially interfere with any significant tactical
decisions, or to control the questioning of witnesses, or to
speak instead of defendant on any matter of importance’; and (2)
standby counsel’s participation must not be allowed to destroy
the jury’s perception that the pro se defendant is representing
herself.”

Clark v. Perez, 510 F.3d 382, 395 (2d Cir. 2008)

(quoting McKaskle, 465 U.S. at 178-79) (emphasis in original).
However, the pro se defendant’s control over his
defense is not without limit.

In McKaskle, the Supreme Court

decided that intrusions of standby counsel, where counsel “made
motions, dictated proposed strategies into the record,
registered objections to the prosecution's testimony, urged the
summoning of additional witnesses, and suggested questions that
the defendant should have asked of witnesses,” were “simply not
substantial or frequent enough to have seriously undermined [the
defendant’s] appearance before the jury in the status of one
representing himself.”

McKaskle, 465 U.S. at 180, 187.

Mr.

Rodriguez’s claims speak to the first set of limitations
identified by the Second Circuit that the “defendant has the

57

right to preserve actual control over the content of the case.”
Clark, 510 F.3d at 395.

However, Mr. Rodriguez fails to

demonstrate how Ms. Murray’s decisions were “substantial or
frequent enough” to have seriously undermined his appearance of
self-representation before the jury.
Further, Ms. Murray did not improperly interfere with
Mr. Dwyer’s investigation.

Judge Trager appointed Mr. Dwyer as

a defense investigator under the sole direction and supervision
of Ms. Murray.

(Appointment of Defense Investigator Dwyer dated

November 16, 2005, at 1, 05-cr-00153, ECF No. 33.)

In her

declaration, Ms. Murray states:
Some months after his appointment, Mr. Dwyer sent me a
voucher for my signature. I refused to sign it. My
recollection is that the voucher represented the
entirety of investigative hours assigned to the case,
and of the 100 hours, most had been spent on travel
time to and from the MDC, travel time to and from
witness interviews (several of which were
unsuccessful), study of case documents, briefing of
other investigators employed by Mr. Dwyer, and
meetings with the client. I recall that less than a
third of hours had been spent actually investigating
the case. I was not comfortable signing this voucher
given the ratio of investigative time to
travel/preparation time. Accordingly, I directed Mr.
Dwyer to submit this voucher directly to Judge Trager.
I believe that Mr. Dwyer did so, and Judge Trager
signed the voucher and Mr. Dwyer was paid in full.
(Murray Decl. ¶ 6.)

Ms. Murray states that Mr. Rodriguez was

fully aware of her concerns regarding the investigative hours
and Judge Trager granted Mr. Rodriguez’s subsequent request,

58

Order Dated May 3, 2006, 05-cr-00153, ECF No. 62, to allot “an
additional 50 hours of investigation time to Mr. Dwyer’s firm”
under the supervision of Ms. Murray.

(Id. ¶ 7.)

Mr. Dwyer

refused this offer and submitted a letter, appended to Mr.
Rodriguez’s petition, which explains that he would not be able
to continue working on petitioner’s case because “Miss Murray
has made it abundantly clear she does not want to work with us.”
(Dwyer Letter dated June 5, 2006, at 76-77, ECF No. 1-4.)

Ms.

Murray also states that after she was appointed trial counsel
mid-trial, “Mr. Dwyer agreed to work again on the defense case .
. . [and that] Mr. Dwyer did additional investigation relating
to Mr. Rodriguez’s employment at the time of the murders, and
this investigation produced a witness I called on the defense
case.”

(Murray Decl. ¶ 8.)
Judge Trager granted Ms. Murray supervisory authority

over Mr. Dwyer’s investigation, and after the dispute with Mr.
Dwyer, Ms. Murray offered to enlist a new investigator for Mr.
Rodriguez, Murray Decl. ¶ 7, and retained an additional
investigator to ensure any further relevant investigation was
completed.

(Appointment of Defense Investigator Scully dated

November 14, 2006, at 1, 05-cr-00153 ECF No. 92.)

Ms. Murray

also rehired Mr. Dwyer and called a witness found in his
investigation at trial.

Mr. Rodriguez’s self-serving assertions

simply do not account for why he allowed Ms. Murray to represent

59

him at trial when he was aware of the letter by Mr. Dwyer and of
the multiple orders appointing defense investigators by Judge
Trager.
Mr. Rodriguez’s insistence that German Polanco be
called at trial, and that calling Mr. Aguilar would have been
beneficial to Mr. Medina’s cross-examination, are similarly
unsupported.

First, Mr. Rodriguez requested that Mr. Polanco be

produced at trial, but Judge Trager refused and “pronounced this
strategy ‘suicidal.’”

(Murray Decl. ¶ 11.)

Mr. Rodriguez does

not explain how Mr. Polanco’s testimony, who was found guilty of
engaging in the murder conspiracy, would have exonerated Mr.
Rodriguez, particularly when the phone record evidence tied Mr.
Polanco to the murders and to Mr. Rodriguez.15
Second, Mr. Rodriguez contends that Carlos Medina
“enlisted ... (Mr. [A]guillar)” who was Mr. Medina’s “room-mate
at the Metropolitan Detention Center in Brooklyn . . . to commit
another murder and a drug robbery, ... after ‘CW’ Medina made
[an] agreement with the government to stop committing crimes,”
and that Mr. Aguillar’s testimony at this point would have been
useful in cross-examining Carlos Medina.

(Pet. Mem. at 51.)

While unclear, it appears that petitioner asserts that Ms.
Murray did not permit Mr. Dwyer to investigate and did not

15

See United States v. Polanco, 510 F. App’x 10 (2d Cir. 2013).

60

permit Mr. Rodriguez to call Mr. Aguilar as a witness.

However,

there is no evidence to suggest that Ms. Murray directed Mr.
Dwyer’s investigation beyond instructing Mr. Dwyer to limit noninvestigatory time.

Beyond its lack of support, Mr. Rodriguez’s

contention fails to explain how Mr. Aguilar, who was eventually
convicted of homicide and narcotics trafficking, would have
provided testimony to undermine Mr. Medina’s statements that
were supported by significant evidence.16
Most importantly, Mr. Rodriguez’s claim of
interference fails because he allowed Ms. Murray to act as his
trial counsel.

“Even when [a defendant] insists that he is not

waiving his Faretta rights, a pro se defendant’s solicitation of
or acquiescence in certain types of participation by counsel
substantially undermines later protestations that counsel
interfered unacceptably.”

Mckaskle, 465 U.S. at 182.

Mr.

Rodriguez’s claims of interference are fanciful and unsupported
by the record, fail to discuss Ms. Murray’s efforts to provide
further investigation, and do not take into account his
acquiescence to her representation at trial.

Therefore, this

claim is respectfully denied.

16

See United States v. Aguilar, 585 F.3d 652 (2d Cir. 2009).

61

G. Ground Six: Failure to Challenge Third Prong of 21 U.S.C.
Section 848(e)(1)(A)
Mr. Rodriguez’s sixth claim alleges that counsel
failed to challenge the constitutionality of the third prong of
21 U.S.C. § 848(e)(1)(A).

(Pet. Mem. at 56.)

Petitioner

alleges the third prong is in contravention of the states’ core
police powers to prosecute “violent crime-and murder in
particular.”

(Id.)

Specifically, Mr. Rodriguez argues that the

court’s broad and ambiguous reading of the “engaging in”
language “poses federalism concerns by raising the prospect of
virtually unrestricted federal murder liability for drug
offenders, especially those engaged in drug conspiracies.”
at 57-58.)

(Id.

Consequently, Mr. Rodriguez argues that the law

should be changed to require the demonstration of a defendant’s
primary purpose in committing the crime, beyond a “substantive
connection.”

(Id. at 59.)

For the following reasons,

petitioner’s claim is meritless.
The “third prong” of 21 U.S.C. § 848(e)(1)(A) states
in relevant part as follows:
any person engaging in or working in furtherance of a
continuing criminal enterprise, or any person engaging in
an offense punishable under section 841(b)(1)(A) of this
title or section 960(b)(1) of this title who intentionally
kills or counsels, commands, induces, procures, or causes
the intentional killing of an individual and such killing
results, shall be sentenced to any term of imprisonment,
which shall not be less than 20 years, and which may be up
to life imprisonment, or may be sentenced to death.

62

21 U.S.C. § 848(e)(1)(A).17

In support of his assertions, Mr.

Rodriguez cites, inter alia, to United States v. Morrison, 529
U.S. 598, 618 (2000).

(Id. at 56.)

In Morrison, the Supreme

Court relied in part on Chief Justice Marshall’s majority
opinion in Cohens v. Virginia, to find the Violence Against
Women Act of 1994 (VAWA) unconstitutional because Congress could
not regulate “noneconomic, violent criminal conduct based solely
on that conduct’s aggregate effect on interstate commerce.”

529

U.S. at 617-18.
However, as Mr. Rodriguez admits, Pet. Mem. at 58-59,
the Second Circuit in United States v. Aguilar held that the
“‘substantive connection’ requirement implied in the ‘engaging
in’ element of § 848(e)(1)(A) can be satisfied not only by proof
that at least one of the purposes of the killing was related to
an ongoing drug conspiracy, as we held in United States v.
Desinor, 525 F.3d 193, 202 (2d Cir. 2008), but also by proof
that the defendant used his position in or control over such a
conspiracy to facilitate the murder.”

United States v. Aguilar,

585 F.3d 652, 653 (2d Cir. 2009); see also United States v.
Walker, 142 F.3d 103, 111 (2d Cir. 1998) (citing United States

The government directs the court’s attention to United States v. Hager,
721 F.3d 167, 208 (4th Cir. 2013), and states that Mr. Rodriguez’s claim
“appears to track a dissent filed by Judge Wynn in the Fourth Circuit.”
(Opp. at 30 n.17.) The majority in Hager rejected the petitioner’s void for
vagueness arguments against 21 U.S.C. Section 848(e)(1)(A) citing, inter
alia, Aguilar, 585 F.3d at 658. (Hager, 721 F.3d at 183.)
17

63

v. Genao, 79 F.3d 1333, 1337 (2d Cir. 1996)) (rejecting Section
848(e)(1)(A)’s post-Lopez constitutional challenge because there
was a “reasonable finding by Congress” that local narcotics
activity substantially affects interstate commerce).
Mr. Rodriguez’s constitutional challenge has been
previously rejected by the Second Circuit and is meritless.

As

such, no prejudice could result from counsel’s alleged failure
to raise this argument, and the petitioner’s ineffective
assistance of counsel claim is denied.

See Parker, 666 F.3d at

834 (“for where ‘it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice [than on the
ground of objectively unreasonable performance] . . . that
course should be followed.”).
H. Ground Seven: Failure to Raise Pattern of Prosecutorial
Misconduct
Mr. Rodriguez’s final ineffective assistance claim
alleges that both Mr. Gordon and Ms. Murray “totally
disregarded” the pattern of prosecutorial misconduct in the
federal grand jury and trial in the Eastern District of New York
and other districts.

(Pet. Mem. at 61.)

This claim generalizes

his previous claims, reiterates the same arguments while citing
to articles regarding alleged prosecutorial and DEA misconduct
in other districts, and asserts that “these cases and many, many
more that have not been publish[ed] on public media . . .

64

clearly show the symptomatic problem with prosecutorial
misconduct and pattern that can not be denied by any attorney in
the Federal level.”

(Pet. Mem. at 69.)

For the same reasons

that these claims were denied in the above discussion, see supra
Ground Four, Mr. Rodriguez’s final claim is denied.
Mr. Rodriguez again asserts unsubstantiated
allegations that lack support, such as: “[i]t must be noted
that, although [the complainant and affidavit by the DEA Agent]
contained factual material that was false and the prosecutors .
. . knew that the statements were false, they move forward
without regard for blatant critical perjury . . . ,” and “if the
grand jury transcripts are closely review [sic], you will be
able to clearly see that [the prosecutor] ask’s [sic] double and
triple hearsay questions, and false and in part fabricated
testimony that he is aware is false . . . .”

(Id. at 65.)

Petitioner baldly asserts that the prosecutors knowingly
introduced perjured testimony to the grand jury, but fails to
specify how the testimony was inaccurate or improper.
Additionally, both Mr. Gordon and Ms. Murray state
that they were not aware of any prosecutorial misconduct that
they should have challenged.
14.)

(Gordon Aff. at 7; Murray Decl. ¶

As discussed supra, Mr. Rodriguez’s claim of prosecutorial

misconduct has no merit.

Further, if Mr. Rodriguez seeks to

assert that Mr. Gordon and Ms. Murray should have challenged or

65

investigated misconduct based on general media reports of
prosecutorial misconduct in unrelated cases, this argument also
fails.18
While defense counsel has a “duty to make a reasonable
investigation,” or reasonably determine that such an
investigation is unnecessary, no such duty was breached here.
See Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting
Strickland, 466 U.S. at 690); see also Vasquez v. United States,
1997 WL 148812, at *1-2 (S.D.N.Y. Mar. 28, 1997) (“Petitioner’s
allegations with regard to alleged counsel errors in pre-trial
preparation and investigation and trial advocacy are vague,
conclusory, and unsupported by citation to the record, any
affidavit, or any other source, and, accordingly, the vague and
unsubstantiated nature of the claims defeated petitioner’s claim
of ineffective assistance of counsel”) (brackets, internal
quotation marks, and ellipses omitted).

As Mr. Rodriguez fails

to show either deficient performance or prejudice from Mr.

Mr. Rodriguez appends several articles regarding misconduct in other
states, by the DEA, FBI, or by county prosecutors. (See Exhibit 5-B, at 8497, 05-cr-00153, ECF No. 1-4). Even assuming that these articles could be
relevant to his habeas petition, these articles do not speak to any of the
parties involved or even the United States Attorney’s Office for the Eastern
District of New York.
18

66

Gordon and Ms. Murray not raising this claim, his claim is
denied.
IV.

Motions for Disqualification, Disclosure, and Discovery
The court next considers Mr. Rodriguez’s (1) motion

for disqualification of five AUSAs and/or the United States
Attorney’s Office for the Eastern District of New York; and (2)
motions for disclosure and discovery of grand jury transcripts,
court logs, tape recordings of phone calls, polygraph results,
complaints against Special Agent Iula, and complaints against
two AUSAs.

For the following reasons, these motions are without

merit and are respectfully denied.
A. Motion for Disqualification
Mr. Rodriguez moves to disqualify the U.S. Attorney’s
Office for the Eastern District of New York and, specifically,
AUSAs Carrie N. Capwell, Robert Lloyd Capers, Scott Klugman,
Michele Adelman, and Licha M. Nyiendo.

(Disqualify Mot. at 2.)

Petitioner seeks to disqualify the U.S. Attorney’s Office to
“avoid an appearance or occurrence of impropriety” as he
“asserts particular bad faith and unethical conduct,” and to
depose the individual AUSAs at an evidentiary hearing in support
of an allegation of prosecutorial misconduct against former AUSA
Max Justin Minzner.

(Id. at 3-6.)

Petitioner’s claim alleging prosecutorial misconduct
fails for two reasons.

First, this court has already held that

67

petitioner’s ineffective assistance of counsel claims based on
prosecutorial misconduct are conclusory, unsupported by the
record, and without merit, and may be dismissed on this ground
alone.

(See supra, Ground Seven.)

Second, petitioner’s claims

are also unsupported by the law.
Petitioner’s motion to disqualify the U.S. Attorney’s
Office for the Eastern District of New York is without merit.
“An entire U.S. Attorney’s Office should only be disqualified,
if ever, when special circumstances demonstrate the interest of
justice could only be advanced by this drastic remedy.”

United

States v. Basciano, 763 F. Supp. 2d 303, 314 (E.D.N.Y. 2011).
“‘Every circuit that has considered the disqualification of an
entire United States Attorney’s office has reversed the
disqualification.’”

(Id. at 313 (quoting United States v.

Bolden, 353 F.3d 870, 879 (10th Cir. 2003).)

As petitioner

presents no facts that support his contention that, without
disqualification there will be impropriety, the court denies his
motion to disqualify the U.S. Attorney’s Office for the Eastern
District to oppose his Section 2255 petition.

See United States

v. Callahan, 2020 WL 108542, at *11 (E.D.N.Y. Jan. 9, 2020)
(denying disqualification of the United States Attorney’s Office
for the Eastern District of New York to oppose petitioner’s
Section 2255 petition).

68

Next, petitioner’s motion to disqualify the five AUSAs
is also without merit.

In his pro se motion, petitioner makes

several conclusory allegations suggesting that the personal
knowledge of these five prosecutors will be valuable for his
claims alleging the prosecutorial misconduct of AUSA Max
Minzner.

This court has already ruled that a “full-blown”

testimonial hearing is not necessary, that the submitted record
is sufficient to consider the merits of Mr. Rodriguez’s
ineffective assistance claim with regard to any alleged
prosecutorial misconduct by AUSA Minzner, and that petitioner
has alleged no new facts to support his collateral attack.

(See

supra, Ground Four.)
B. Motion for Disclosure and Discovery
On February 25, 2015, Mr. Rodriguez filed a motion for
disclosure of the grand jury transcripts and court logs pursuant
to 28 U.S.C. § 2250 and 28 U.S.C. § 753(f), alleging that the
documents will be needed to make a “complete and informed”
defense to support his assertion of prosecutorial misconduct.
(Disclosure Mot. at 2-4.)

On March 10, 2015, Mr. Rodriguez

filed a motion for discovery for a myriad of items including,
inter alia, grand jury transcripts, court logs of the grand
jury, tape recordings, any complaints against AUSA Max Justin
Minzner, any complaints against AUSA Robert Capers, complaints

69

against Special Agent Iula, and any polygraph results of
cooperating witness Carlos Medina.

(Discovery Mot. at 12-16.)

“A habeas petitioner, unlike the usual civil litigant
in federal court, is not entitled to discovery as a matter of
ordinary course.”

Bracy v. Gramley, 520 U.S. 899, 904 (1997).

To grant the discovery motion, Mr. Rodriguez must “first
demonstrate ‘good cause’ to request the materials by making
‘specific allegations . . . showing reason to believe that . . .
he may, if the facts are fully developed, be able to demonstrate
that he is . . . entitled to relief.’”

Locurto v. United

States, 2016 WL 7031556, at *1 (E.D.N.Y. Dec. 1, 2016) (brackets
omitted) (quoting Bracy, 520 U.S. at 908-09); see also Lewal v.
United States, F.3d 919, 1998 WL 425877 at *2 (2d Cir. 1998)
(“Rule 6(a) of the Rules Governing Section 2255 Proceedings . .
. provides that a § 2255 petitioner is entitled to undertake
discovery only when ‘the judge in the exercise of his [or her]
discretion and for good cause shown grants leave to do so, but
not otherwise.’”).
The petitioner “bears a heavy burden in establishing a
right to discovery.”

Renis v. Thomas, 2003 WL 22358799, at *2

(S.D.N.Y. Oct. 16, 2003) (citing Bracy, 520 U.S. at 904).

In

order to show “good cause,” a petitioner must present “specific
allegations” that give the court “reason to believe that the
petitioner may, if the facts are fully developed, be able to

70

demonstrate that he is . . . entitled to relief.”

Bracy, 520

U.S. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300
(1969)); see also Naranjo v. United States, 2019 WL 4879297, at
*1 (S.D.N.Y. Oct. 3, 2019).
Petitioner’s records request concerns the
prosecutorial misconduct claim the court has already deemed
meritless.

(See supra, e.g., Ground Four.)

“Rule 6 does not

license a petitioner to engage in a ‘fishing expedition’ by
seeking documents ‘merely to determine whether the requested
items contain any grounds that might support his petition, and
not because the documents actually advance his claims of
error.’”

Ruine v. Walsh, 2005 WL 1668855, at *6 (S.D.N.Y. July

14, 2005) (quoting Charles v. Artuz, 21 F. Supp. 2d 168, 169
(E.D.N.Y. 1998)).

The court may deny a request for discovery

“where the petitioner provides no specific evidence that the
requested discovery would support his habeas corpus petition.”
Hirschfeld v. Comm’r of the Div. of Parole, 215 F.R.D. 464, 465
(S.D.N.Y. 2003) (citing Gonzalez v. Bennett, 2001 WL 1537553, at
*4 (S.D.N.Y. Nov. 30, 2001)); see also Pizzuti v. United States,
2017 WL 1180911, at *6 (S.D.N.Y. Mar. 29, 2017) (“Generalized
statements regarding the possibility of the existence of
discoverable material will not be sufficient to establish the
requisite ‘good cause.’”); United States v. Vaughan, 2010 WL
3025648, at *3 (S.D.N.Y. July 27, 2010) (quoting United States

71

v. Wilson, 565 F. Supp. 1416, 1436 (S.D.N.Y. 1983)).)
(“‘Speculation and surmise as to what occurred before the grand
jury is not a substitute for fact.’”)
As petitioner’s requests are without merit, and
further discovery could not bolster the ineffective assistance
claims raised in his petition, the court finds that Mr.
Rodriguez has not met his “heavy burden” to show good cause with
his conclusory statements in both his motions for disclosure and
discovery.

Therefore, petitioner’s motions are respectfully

denied.
CONCLUSION
For the foregoing reasons, Mr. Rodriguez’s petition
for a writ of habeas corpus is DENIED in its entirety.

Mr.

Rodriguez’s claims of ineffective assistance of counsel are not
supported by the record and are meritless.

Further, Mr.

Rodriguez’s motions to amend his petition are DENIED due to
their futility; his motion for disqualification is DENIED; and
his motions for discovery and disclosure are DENIED.

A

certificate of appealability shall not issue because Mr.
Rodriguez has not made a substantial showing of the denial of a
constitutional right.

28 U.S.C. § 2253(c)(2).

The clerk is respectfully directed to enter judgment
in favor of respondent, close this case, and send a copy of this

72

Memorandum and Order and the judgment to the petitioner at his
last known address and note service on the docket.
SO ORDERED.
Dated:

December 31, 2020
Brooklyn, New York
/s/
Hon. Kiyo A. Matsumoto
United States District Judge

73