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.