Oppedisano v. United States of America
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
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
-againstUNITED STATES OF AMERICA,
Jeffrey C. Hoffman, Esq.
Susan C. Wolfe, Esq.
Hoffman Pollok LLP
260 Madison Avenue, 22nd Floor
New York, NY 10016
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
28 U.S.C. § 2255.
application is DENIED.
with suspected insurance fraud involving a yacht.
(Pet. at 14-
Consequently, Postal Inspector Carl Vaccariello signed a
search warrant application for the search of several addresses,
Page numbers are taken from the Electronic Case Filing system.
Bayside, New York (“the Bay Club Apartment”).
(Pet. at 14.)
Although all of Petitioner’s mail was sent to his parents’ house
at 7-32 Crescent Road, Whitestone, New York, which was also
subject to the search warrant, “repeated surveillance . . .
reveal[ed] that [Petitioner], in fact, reside[d] at [the Bay
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
Thus, Magistrate Judge Michael L. Orenstein found that
including the Bay Club Apartment, and approved the application.
(4/6/09 Search Warrant.)
Upon execution of the search warrant at the Bay Club
Apartment on April 7, 2009, officers discovered white powder and
ammunition in a credenza.
(Pet. at 16.)
The initial search
Thus, the Government sought, and obtained, a second
(Pet. at 16.)
While executing the second warrant on
April 7, 2009, police seized eighty-three .22 caliber bullets
and a white powder that tested positive for cocaine.
255; Pet. at 16.)
Before trial, Petitioner’s counsel moved to controvert
the second warrant, but not the first.
(Pet. at 16.)
(pertaining to the ammunition) and one count for Possession of
(12/6/10 Stipulation, Ex. C of Docket Entry
mentioned that Petitioner was the subject of an insurance fraud
Government, frustrated by a lengthy, and thus far unsuccessful
insurance fraud scheme, intentionally placed the ammunition and
cocaine in the Bay Club Apartment.
(Pet. at 17-18.)
now argues that these actions constituted ineffective assistance
of counsel and infected his trial.
(Pet. at 16-18.)
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.
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.”
“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
to . . . a
Puglisi, 586 F.3d at 213.
Further, “[i]f material
facts are in dispute, a hearing should usually be held, and
relevant findings of facts made.”
Id. at 213.
is a genuine issue of material fact depends upon the sufficiency
generalities, conclusory assertions and hearsay statements will
not suffice because none of these would be admissible evidence
at a hearing.”
United States v. Aiello, 814 F.2d 109, 113-14
LoCascio v. United States, 395 F.3d 51, 57
marks and citation omitted).
States, 317 F.3d 178, 184 (2d Cir. 2003).
Further, the Second
underlying criminal proceeding also presides over the Section
2255 motion, which is the case here, “a full-blown evidentiary
Although the Circuit generally “disapproves of summary dismissal
of petitions where factual issues exist,” if the paper record
denial of the petition, it may do so on the basis of written
Pham, 317 F.3d at 184; see also Chang v.
United States, 250 F.3d 79, 86 (2d Cir. 2001).
Petitioner’s Claims for Ineffective Assistance of Counsel
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
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
performance, Petitioner must overcome the “strong presumption
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.”
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
undermine confidence in the outcome.”
Id. at 694.
must satisfy both prongs of the Strickland test to be entitled
ineffective counsel founder on that standard.”
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)).
deferential,” and “[a] fair assessment of attorney performance
requires that every effort be made to eliminate the distorting
counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.”
performance or of detailed guidelines for its evaluation would
encourage the proliferation of ineffectiveness challenges.”
assistance of counsel: (1) trial counsel’s failure to move to
counsel’s failure to sever or bifurcate the trial; and (3) trial
counsel’s injection of prejudicial matters.
(Pet. at 14, 16-
The Court will address each claim separately.
while Petitioner must prove both objective unreasonableness and
ineffective assistance claim . . . to address both components of
the inquiry if the defendant makes an insufficient showing on
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).
Controverting the Warrant
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,
outcome of the proceeding would have been different absent the
Watson v. Crowley, No. 07-CV-1111, 2011
WL 4639814, at *4 (S.D.N.Y. May 10, 2011) (internal quotation
United States v. DiTommaso, 817 F.2d 201, 215 (2d
Thus, “[i]t is sufficient that counsel exercised
sufficient grounds to file a motion.”
Id. (internal quotation
marks and citation omitted).
Additionally, with respect to the prejudice prong of
Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct.
2317, 2332, 76 L. Ed. 2d 527 (1983).
[t]he task of the issuing magistrate is
simply to make a practical, common-sense
circumstances set forth in the affidavit
before him, including the “veracity” and
“basis of knowledge” of persons supplying
probability that contraband or evidence of a
crime will be found in a particular place.
And the duty of a reviewing court is simply
“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,
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.”
Walczyk, 496 F.3d
cases . . . doubts
resolved in favor of upholding the warrant.”
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
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.
(Pet. at 16.)
Further, counsel failed to move to suppress the evidence of the
(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).
While this may not meet
United States v. McGriff, 678 F. Supp. 1010, 1014 (E.D.N.Y.
discretion in deciding whether there [were] sufficient grounds
to file [that] motion.”
DiTommaso, 817 F.2d at 215 (internal
Morrison, 477 U.S. 365, 385, 106 S. Ct. 2574, 91 L. Ed. 2d 205
because his failures, such as failing to file a suppression
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.
sought evidence related to the purchase, storage, and insurance
of the yacht.
(4/6/09 Search Warrant at 2-4.)
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
(4/6/09 Search Warrant at 12-13; Pet. at 15.)
affidavit, in which a seasoned investigator, Postal Inspector
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
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.
there was no prejudice and Petitioner’s claim for ineffective
assistance of counsel based on failure to controvert the first
warrant is DENIED.
Severance or Bifurcation
ineffective assistance of counsel is that counsel failed to move
prejudicially erred in stipulating to Petitioner’s status as a
(Pet. at 17.)
Again, the Court disagrees.
Decisions to stipulate or to move for severance or
See DiTommaso, 817 F.2d at 215 (“Counsel rationally
could have determined that his client’s best interests would be
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
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
stipulation.”); accord Collier v. United States, 92 F. Supp. 2d
99, 105 (N.D.N.Y. 2000) (“A prior conviction is not prejudicial
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.
(Tr. at 262.)
possession charge, showing that counsel’s strategy may have paid
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.”).
assistance of counsel based on counsel’s failure to move for
severance or bifurcation is DENIED.
Injecting Prejudicial Matters
Finally, Petitioner’s third ground is that counsel’s
investigation for insurance fraud, prejudiced the jury.
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
Lindstadt, 239 F.2d at 203.
admitting that Petitioner was under investigation for insurance
The cocaine and ammunition were found by police inside
(Pet. at 16.)
Thus, counsel conceded
that Petitioner was being investigated for insurance fraud to
defense that the Government intentionally planted evidence.
Bierenbaum, 607 F.3d at 52.
Thus, because counsel’s decision
injecting prejudicial matters, is DENIED.
for a writ of habeas corpus is DENIED.
Because there can be no
debate among reasonable jurists that Petitioner was entitled to
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
12 , 2013
Central Islip, New York
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
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