Oppedisano v. United States of America
Filing
10
MEMORANDUM & ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255). Petitioner's application for a writ of habeas corpus is DENIED. The Court does not issue a Certificate of Appealability and this case is CLOSED. Ordered by Judge Joanna Seybert on 8/12/2013. (C/ECF) (Nohs, Bonnie)
Oppedisano v. United States of America
Doc. 10
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
ROCCO OPPEDISANO,
Petitioner,
MEMORANDUM & ORDER
13-CV-0161(JS)
-againstUNITED STATES OF AMERICA,
Respondent.
---------------------------------------X
APPEARANCES
For Petitioner:
Jeffrey C. Hoffman, Esq.
Susan C. Wolfe, Esq.
Hoffman Pollok LLP
260 Madison Avenue, 22nd Floor
New York, NY 10016
For Respondent:
Sean C. Flynn, Esq.
United States Attorney’s Office
Eastern District of New York
610 Federal Plaza
Central Islip, NY 11722
SEYBERT, District Judge:
Rocco Oppedisano (“Petitioner”) petitions this Court
to
vacate
his
28 U.S.C. § 2255.
conviction
For
the
and
sentence
following
reasons,
pursuant
to
Petitioner’s
application is DENIED.
BACKGROUND
In
2008,
Petitioner
was
investigated
with suspected insurance fraud involving a yacht.
15.)1
in
connection
(Pet. at 14-
Consequently, Postal Inspector Carl Vaccariello signed a
search warrant application for the search of several addresses,
1
Page numbers are taken from the Electronic Case Filing system.
1
Dockets.Justia.com
including
an
apartment
at
1
Bay
Club
Drive,
Bayside, New York (“the Bay Club Apartment”).
Apartment
11F,
(Pet. at 14.)
Although all of Petitioner’s mail was sent to his parents’ house
at 7-32 Crescent Road, Whitestone, New York, which was also
subject to the search warrant, “repeated surveillance . . .
reveal[ed] that [Petitioner], in fact, reside[d] at [the Bay
Club Apartment].”
7-1, at 12.)
(4/6/09 Search Warrant, Ex. A of Docket Entry
Further, Mr. Vaccariello stated that, according to
his experience, individuals involved in financial and insurance
fraud “frequently maintain [evidence] in their possession . . .
for substantial periods of time.”
(4/6/09 Search Warrant at
13.)
Thus, Magistrate Judge Michael L. Orenstein found that
there
was
probable
cause
to
search
the
listed
addresses,
including the Bay Club Apartment, and approved the application.
(4/6/09 Search Warrant.)
Upon execution of the search warrant at the Bay Club
Apartment on April 7, 2009, officers discovered white powder and
ammunition in a credenza.
warrant
related
however.
search
powder.
only
to
(Pet. at 16.)
the
insurance
The initial search
fraud
investigation,
Thus, the Government sought, and obtained, a second
warrant
authorizing
(Pet. at 16.)
it
to
seize
the
ammunition
and
While executing the second warrant on
April 7, 2009, police seized eighty-three .22 caliber bullets
2
and a white powder that tested positive for cocaine.
(Tr. at
255; Pet. at 16.)
Before trial, Petitioner’s counsel moved to controvert
the second warrant, but not the first.
then
held
a
trial
on
one
(Pet. at 16.)
count
of
The Court
Felon-In-Possession
(pertaining to the ammunition) and one count for Possession of
Cocaine.
(Pet.
stipulated
to
the
possession count.
7-1.)
at
17.)
As
prior
part
felony
of
that
element
of
case,
the
counsel
felon-in-
(12/6/10 Stipulation, Ex. C of Docket Entry
Additionally,
during
his
opening
statement,
counsel
mentioned that Petitioner was the subject of an insurance fraud
investigation,
setting
the
stage
for
the
defense
that
the
Government, frustrated by a lengthy, and thus far unsuccessful
investigation
into
Petitioner’s
suspected
involvement
in
an
insurance fraud scheme, intentionally placed the ammunition and
cocaine in the Bay Club Apartment.
(Pet. at 17-18.)
Petitioner
now argues that these actions constituted ineffective assistance
of counsel and infected his trial.
(Pet. at 16-18.)
DISCUSSION
Petitioner
maintains
that
his
trial
counsel
was
ineffective in violation of the Sixth Amendment, entitling him
to relief pursuant to 28 U.S.C. § 2255.
The Court will first
discuss the applicable standard of review before addressing the
merits of Petitioner’s claims.
3
I.
Standard of Review
Section 2255 provides that “[u]nless the motion and
the files and records of the case conclusively show that the
prisoner is entitled to no relief, the court shall . . . grant a
prompt hearing thereon, determine the issues and make findings
of fact and conclusions of law with respect thereto.”
§ 2255(b).
28 U.S.C.
“A defendant seeking a hearing on an ineffective
assistance of counsel claim ‘need establish only that he has a
plausible claim of ineffective assistance of counsel, not that
he will necessarily succeed on the claim.’”
Raysor v. United
States, 647 F.3d 491, 494 (2d Cir. 2011) (quoting Puglisi v.
United States, 586 F.3d 209, 213 (2d Cir. 2009)).
“The procedure for determining whether a hearing is
necessary
is
proceeding.”
in
part
analogous
to . . . a
Puglisi, 586 F.3d at 213.
summary
judgment
Further, “[i]f material
facts are in dispute, a hearing should usually be held, and
relevant findings of facts made.”
Id. at 213.
“Whether there
is a genuine issue of material fact depends upon the sufficiency
of
th[e]
factual
allegations”
in
the
Petition,
and
“[a]iry
generalities, conclusory assertions and hearsay statements will
not suffice because none of these would be admissible evidence
at a hearing.”
(2d
Cir.
specific
1986).
facts
United States v. Aiello, 814 F.2d 109, 113-14
Instead,
which
he
is
“[t]he
petitioner
in
position
4
a
must
to
set
forth
establish
by
competent evidence.”
(2d
Cir.
2005)
LoCascio v. United States, 395 F.3d 51, 57
(alteration
in
original)
(internal
quotation
marks and citation omitted).
“It
determine
is
whether
within
a
the
hearing
district
is
court’s
warranted.”
States, 317 F.3d 178, 184 (2d Cir. 2003).
Circuit
has
held
that
if
the
judge
discretion
Pham
v.
to
United
Further, the Second
who
presided
over
the
underlying criminal proceeding also presides over the Section
2255 motion, which is the case here, “a full-blown evidentiary
hearing
may
not
be
necessary.”
Raysor,
647
F.3d
at
494.
Although the Circuit generally “disapproves of summary dismissal
of petitions where factual issues exist,” if the paper record
contains
sufficient
material
to
support
the
district
court’s
denial of the petition, it may do so on the basis of written
submissions alone.
Pham, 317 F.3d at 184; see also Chang v.
United States, 250 F.3d 79, 86 (2d Cir. 2001).
II.
Petitioner’s Claims for Ineffective Assistance of Counsel
A.
Legal Standard
To sustain a claim based on ineffective assistance of
counsel, Petitioner must demonstrate that (1) counsel provided
deficient performance and that (2) there was prejudice as a
result.
2052,
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
80
L.
Ed.
2d
674
(1984).
To
establish
deficient
performance, Petitioner must overcome the “strong presumption
5
that counsel’s conduct falls within the wide range of reasonable
professional assistance” and show that “counsel’s representation
fell below an objective standard of reasonableness.”
688-89.
To
show
prejudice,
Petitioner
must
Id. at
demonstrate
“a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
A
reasonable
probability
is
a
probability
undermine confidence in the outcome.”
sufficient
Id. at 694.
to
Petitioner
must satisfy both prongs of the Strickland test to be entitled
to
relief.
majority
of
Further,
habeas
the
test
rigorous,
that
petitions
“is
allege
and
the
great
constitutionally
ineffective counsel founder on that standard.”
Lindstadt v.
Keane, 239 F.3d 191, 199 (2d Cir. 2001).
The Court will not question “sound trial strategy.”
Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350
U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83 (1955)).
“[j]udicial
scrutiny
of
counsel’s
performance
must
Further,
be
highly
deferential,” and “[a] fair assessment of attorney performance
requires that every effort be made to eliminate the distorting
effects
of
hindsight,
to
reconstruct
the
circumstances
of
counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.”
availability
of
intrusive
post-trial
Id.
Otherwise, “[t]he
inquiry
into
attorney
performance or of detailed guidelines for its evaluation would
6
encourage the proliferation of ineffectiveness challenges.”
Id.
at 690.
The
Petition
asserts
three
claims
for
ineffective
assistance of counsel: (1) trial counsel’s failure to move to
suppress
or
controvert
the
first
search
warrant;
(2)
trial
counsel’s failure to sever or bifurcate the trial; and (3) trial
counsel’s injection of prejudicial matters.
17.)
(Pet. at 14, 16-
The Court will address each claim separately.
Further,
while Petitioner must prove both objective unreasonableness and
prejudice,
“there
is
no
reason
for
a
court
deciding
an
ineffective assistance claim . . . to address both components of
the inquiry if the defendant makes an insufficient showing on
one.”
Calderon v. Perez, No. 10-CV-2562, 2011 WL 293709, at *34
(S.D.N.Y. Jan. 28, 2011) (internal quotation marks and citation
omitted) (alteration in original), adopted by 2011 WL 1405029
(S.D.N.Y. Apr. 5, 2011).
B.
Controverting the Warrant
Petitioner
argues
that
counsel
violated
his
Sixth
Amendment right to effective assistance of counsel by failing to
controvert the first search warrant, which, he claims, clearly
lacked probable cause.
(Pet. at 15-16.)
The Court disagrees.
In the context of ineffective assistance of counsel
claims for failure to controvert a warrant or suppress evidence,
“Strickland
requires
that
a
[petitioner]
7
show
that:
(1)
a
competent
attorney
suppression
would
motion
have
would
have
made
been
the
motion;
successful;
and
(2)
the
(3)
the
outcome of the proceeding would have been different absent the
excludable evidence.”
Watson v. Crowley, No. 07-CV-1111, 2011
WL 4639814, at *4 (S.D.N.Y. May 10, 2011) (internal quotation
marks
and
citation
(S.D.N.Y.
Oct.
deference
to
“reluctant
2011).
counsel
to
boilerplate
6,
omitted),
motions
The
in
require
adopted
Second
by
Circuit
these
analyses,
defense
counsel
merely
regard
to
for
vindicate
the
2011
as
WL
affords
the
grounds
great
Circuit
routinely
their
4639812
to
is
file
professional
competence
without
supporting
such
motions.”
United States v. DiTommaso, 817 F.2d 201, 215 (2d
Cir. 1987).
Thus, “[i]t is sufficient that counsel exercised
professional
discretion
in
deciding
sufficient grounds to file a motion.”
whether
there
[were]
Id. (internal quotation
marks and citation omitted).
Additionally, with respect to the prejudice prong of
Strickland,
the
Court
uses
a
“totality-of-the-circumstances
analysis.”
Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct.
2317, 2332, 76 L. Ed. 2d 527 (1983).
Thus,
[t]he task of the issuing magistrate is
simply to make a practical, common-sense
decision
whether,
given
all
the
circumstances set forth in the affidavit
before him, including the “veracity” and
“basis of knowledge” of persons supplying
hearsay
information,
there
is
a
fair
8
probability that contraband or evidence of a
crime will be found in a particular place.
And the duty of a reviewing court is simply
to
ensure
that
the
magistrate
had
a
“substantial basis for . . . conclud[ing]”
that probable cause existed.
Id. at 238-239 (alteration in original) (quoting Jones v. United
States, 362 U.S. 257, 271, 80 S. Ct. 725, 4 L. Ed. 2d 697
(1960), overruled on other grounds by United States v. Salvucci,
448
U.S.
(1980));
2007).
83,
85,
accord
The
100
S.
Walczyk
Court,
Ct.
v.
2547,
Rio,
therefore,
496
2549,
65
F.3d
“must
L.
139,
Ed.
156
accord
2d
(2d
619
Cir.
considerable
deference to the probable cause determination of the issuing
magistrate,” and “a showing of probable cause cannot be negated
simply by demonstrating that an inference of innocence might
also have been drawn from the facts alleged.”
at
157.
Further,
“in
close
Walczyk, 496 F.3d
cases . . . doubts
resolved in favor of upholding the warrant.”
should
be
United States v.
Defreitas, 701 F. Supp. 2d 297, 302 (E.D.N.Y. 2010) (internal
quotation marks and citation omitted).
Here, counsel for Petitioner moved to controvert the
second warrant, which allowed for the ammunition and cocaine’s
seizure.
Petitioner argues that counsel was ineffective because
he moved to controvert the second warrant rather than the first,
which allowed the ammunition to be discovered.
9
(Pet. at 16.)
Further, counsel failed to move to suppress the evidence of the
seized cocaine.
(Pet. at 16).
However, counsel not only “vigorously contested” the
second warrant, but made several other applications, such as to
dismiss the indictment, a request for additional discovery, and
a motion for a bill of particulars.
United States v. Snype, No.
07-CV-9490, 2009 WL 2611930, at *5 (S.D.N.Y. Aug. 24, 2009)
(holding that counsel was not objectively unreasonable because
he “vigorously contested” a search).
Petitioner’s
standards
as
a
“Monday
While this may not meet
morning
quarterback[],”
United States v. McGriff, 678 F. Supp. 1010, 1014 (E.D.N.Y.
1988),
it
is
clear
that
counsel
“exercised
professional
discretion in deciding whether there [were] sufficient grounds
to file [that] motion.”
quotation
marks
and
DiTommaso, 817 F.2d at 215 (internal
citation
omitted);
contra
Kimmelman
v.
Morrison, 477 U.S. 365, 385, 106 S. Ct. 2574, 91 L. Ed. 2d 205
(1986)
(holding
that
counsel’s
assistance
was
ineffective
because his failures, such as failing to file a suppression
motion
in
time,
were
“not
due
to
strategic
considerations,
but because . . . he was unaware of the search” and “unapprised”
of certain aspects of the case).
Furthermore, the weakness of such an argument, and the
existence of probable cause, highlights the reasonableness of
counsel’s strategic decision not to raise it.
10
The Government
sought evidence related to the purchase, storage, and insurance
of the yacht.
specifically
evidence,
Warrant
(4/6/09 Search Warrant at 2-4.)
listed
four
including
at
2.)
the
After
locations
Bay
Club
to
be
searched
Apartment.
significant
The warrant
for
(4/6/09
surveillance
that
Search
confirming
Petitioner’s occupancy over the course of approximately three
months, the Government identified the apartment as Petitioner’s
primary residence, and thus included it in the search warrant
application.
Magistrate
(4/6/09 Search Warrant at 12-13; Pet. at 15.)
Judge
Orenstein
appropriately
relied
upon
the
affidavit, in which a seasoned investigator, Postal Inspector
Carl
Vaccariello,
affirmed
that
based
on
his
experience,
documentary evidence relating to insurance fraud is “frequently
maintain[ed] in [individuals’] possession . . . for substantial
periods of time.”
(4/6/09 Search Warrant at 13.)
Thus, it is “common-sense” for the Court to conclude
that “there [was] a fair probability” that an individual would
keep documents in the apartment he or she has resided in for the
past several months.
Gates, 462 U.S. at 238; accord United
States v. Falso, 544 F.3d 110, 117 (2d Cir. 2008) (stating that
a
probable
approach).
cause
determination
requires
a
common
sense
Therefore, even if counsel had moved to controvert
the warrant, there was significant probable cause and it does
not seem that counsel would have been successful.
11
Accordingly,
there was no prejudice and Petitioner’s claim for ineffective
assistance of counsel based on failure to controvert the first
warrant is DENIED.
C.
Severance or Bifurcation
Petitioner’s
second
ground
for
his
claim
of
ineffective assistance of counsel is that counsel failed to move
for
bifurcation
indictment
to
sever
charging
ammunition
and
him
the
two
with
possession
counts
being
of
a
of
the
superseding
felon-in-possession
cocaine,
and
that
of
counsel
prejudicially erred in stipulating to Petitioner’s status as a
prior felon.
(Pet. at 17.)
Again, the Court disagrees.
Decisions to stipulate or to move for severance or
bifurcation
are,
like
other
strategic
decisions,
given
great
deference.
See DiTommaso, 817 F.2d at 215 (“Counsel rationally
could have determined that his client’s best interests would be
served
by
evidence
against
emphasizing
presented
.
[petitioner]
the
.
.
contrast
and
that
himself.”);
see
between
the
quantum
which
directly
also
Camacho
of
reflected
v.
United
States, No. 98-CV-7057, 1999 WL 600523, at *6 (S.D.N.Y. Aug. 10,
1999) (holding that petitioner was not prejudiced by counsel’s
failure to seek a severance because the prior felony conviction
was introduced through stipulation).
Here, counsel made the strategic decision to stipulate
to a prior felony, thus allowing the jury to learn of only one
12
felony
in
an
almost
clinical
manner
rather
than
receiving
potential evidence of Petitioner’s additional prior felonies.
Thus, there was nothing prejudicial or deficient in counsel’s
performance in this regard.
See Camacho, 1999 WL 600523, at *6
(“A jury’s knowledge of a prior felony conviction is not unduly
prejudicial
where
the
prior
conviction
is
introduced
by
stipulation.”); accord Collier v. United States, 92 F. Supp. 2d
99, 105 (N.D.N.Y. 2000) (“A prior conviction is not prejudicial
where
the
prior
conviction
is
an
element
of
the
crime
or
otherwise independently admissible.”).
In addition, counsel’s choice not to sever was also a
strategic decision that was not prejudicial.
The cocaine and
ammunition were found in the same location at the same time,
likely making a motion for severance futile.
Moreover,
the
jury
acquitted
Petitioner
(Tr. at 262.)
of
the
cocaine
possession charge, showing that counsel’s strategy may have paid
off.
See Verduzco v. Uribe, No. 09-CV-5894, 2013 WL 530593, at
*22 (N.D. Cal. Feb. 11, 2013) (“Petitioner’s theory about the
inflammatory effect of this evidence is weakened by the fact
that the jury did not convict him of possession for sale, but of
the lesser offense of simple possession.”).
Accordingly,
Petitioner’s
claim
for
ineffective
assistance of counsel based on counsel’s failure to move for
severance or bifurcation is DENIED.
13
D.
Injecting Prejudicial Matters
Finally, Petitioner’s third ground is that counsel’s
opening
statement
discussing
that
Petitioner
had
been
under
investigation for insurance fraud, prejudiced the jury.
at 17.)
(Pet.
The Court disagrees.
“[I]t [is] a reasonable trial strategy” to “open[] the
door” to issues which need to come out at trial in order to be
“forthright” with the jury.
Bierenbaum v. Graham, 607 F.3d 36,
52 (2d Cir. 2010) (holding that counsel’s assistance was not
ineffective when he conceded the date that a victim died because
it was consistent with his legal theory and was an attempt to be
forthright with the jury).
Conversely, if the decision to open
a
tactical
door
“reflect[s]
no
objectively unreasonable.
Here,
considerations,”
it
is
considerations”
by
Lindstadt, 239 F.2d at 203.
counsel
used
“tactical
admitting that Petitioner was under investigation for insurance
fraud.
The cocaine and ammunition were found by police inside
Petitioner’s apartment.
(Pet. at 16.)
Thus, counsel conceded
that Petitioner was being investigated for insurance fraud to
provide
a
in
Petitioner’s
to
develop
his
defense that the Government intentionally planted evidence.
See
apartment,
context
to
be
for
why
upfront
with
Bierenbaum, 607 F.3d at 52.
was
not
objectively
the
police
the
jury,
were
and
Thus, because counsel’s decision
unreasonable,
14
Petitioner’s
claim
for
ineffective
assistance
of
counsel
based
on
ground
three,
injecting prejudicial matters, is DENIED.
CONCLUSION
For
the
foregoing
reasons,
for a writ of habeas corpus is DENIED.
Petitioner’s
application
Because there can be no
debate among reasonable jurists that Petitioner was entitled to
habeas
relief,
Appealability.
the
Court
does
not
issue
a
Certificate
of
28 U.S.C. § 2253(c); Middleton v. Att’ys Gen.,
396 F.3d 207, 209 (2d Cir. 2005).
The Clerk of the Court is directed to mark this matter
CLOSED.
SO ORDERED.
Dated:
August
12 , 2013
Central Islip, New York
15
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
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