Restrepo v. USA

Filing 37

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATIONS: Having conducted a de novo review, the Court agrees with Judge Lindsay's conclusion that the grounds raised do not warrant § 2255 relief. Accordingly, the § 2255 petition is denied. So Ordered by Judge Denis R. Hurley on 6/28/2022. (Ortiz, Grisel)

Case 2:15-cv-01804-DRH-ARL Document 37 Filed 06/28/22 Page 1 of 12 PageID #: 1013

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CARLOS ARTURO PATINO RESTEPO,

FILED 
CLERK 

1:32 pm, Jun  28,2022
U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Petitioner,
-againstUNITED STATES OF AMERICA,

MEMORANDUM & ORDER
15-CV-1804
02-CR-1188

Respondent.
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APPEARANCES:
For Petitioner:
Carlos Patino, Pro Se1
64782-053
FCI Schuylkill
P.O. Box 759
Minersville, PA.
For the Government:
Breon Peace
United States Attorney
Eastern District of New York
100 Federal Plaza
Central Islip, New York 11722
By: Charles N. Rose, AUSA
HURLEY, Senior District Judge:
Presently before the Court is the Report and Recommendation of Magistrate
Judge Lindsay, dated October 27, 2021 (the "R&R") recommending that the
application of petitioner, Carlos Arturo Patino Restrepo ("Patino" or "defendant"),

The Court notes that until March 14, 2022 (viz. long after the R&R was issued and
until less than two months before objections to the R&R were filed) defendant was
represented by Marc A. Fernich, Esq.
1

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for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 be denied. After five
extensions of time in which to do so, Patino filed objections to the R&R, proceeding
pro se. The matter is ripe for disposition. For the reasons set forth below, the Court
rejects Patino's objections and adopts the R&R. Accordingly, the application for a
writ of habeas corpus pursuant to 28 U.S.C. § 2255 is denied.
I.

Standard of Review
Federal Rule of Civil Procedure 72(b) provides that when a magistrate judge

issues a report and recommendation on a matter “dispositive of a claim or defense of
a party,” the district court judge shall make a de novo determination of any portion
of the magistrate judge’s disposition to which specific written objection has been
made. Fed. R. Civ. P. 72(b). Unobjected to portions of a report and recommendation
are reviewed for clear error.
II.

Background and Issues Raised in the Petition
The background of this matter and the trial testimony is thoroughly set forth

in the R&R, familiarity with which is presumed. It suffices to say that on April 5,
2011, defendant, a Colombian citizen, was found guilty after trial before the
Honorable Leonard D. Wexler of conspiracy to possess with intent to distribute
cocaine, conspiracy to import cocaine into the United States, and international
cocaine distribution conspiracy.2 On April 25, 2012 Judge Wexler sentenced

Defendant was initially tried on Superseding Indictment S-9 before the Honorable
Raymond J. Dearie. That court declared a mistrial after the jury reported it was
deadlocked. Following the mistrial, the grand jury returned Superseding Indictment
S-13 against Patino; the second trial before Judge Wexler was on S-13.

2

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defendant to concurrent terms of 40 years imprisonment for each of the three
conspiracies. On November 27, 2013, the Second Circuit affirmed defendant's
conviction.
There are four grounds asserted in the 2255 petition. They are as follows: (1)
newly discovered evidence demonstrates perjury by at least two key government
witnesses; (2) the government withheld materially favorable statements made by
two codefendants to which Patino lacked access; (3) trial counsel was ineffective in
failing to call Jose Ernesto Vasquez Aguirre as a witness to impeach the testimony
of Lino Orozco, a key government witness whose testimony linked Patino to the
Eastern District of New York; and (4) appellate counsel was ineffective in failing to
argue that the government's evidence and summation and the Court's jury charge
unconstitutionally broadened the indictment in violation of the 5th Amendment
Grand Jury Clause. Judge Lindsay recommended that the petition for habeas
corpus relief be denied.
III.

Defendant's Objections
A.

Ground No. 1 - Newly Discovered Evidence
Demonstrates Perjury By Two Witnesses

The first basis for relief asserted by Patino is that newly discovered evidence
demonstrates perjury by two key government witnesses. Specifically, he claims that
Juan Carlos Sierra Ramirez ("Sierra") and Luis Fernando Castano Alzate
("Castano") committed perjury at trial in denying their own membership in the
paramilitary Autodefensas Unidas de Colombia ("AUC") group and the drug
collection Envigado office, respectively. He relies on the finding of the Colombian
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"Justice and Peace" program which was set up as a framework to demobilize rightwing paramilitaries and left-wing guerilla groups in Columbia; it was not set up as
a law enforcement body. He claims that the Justice and Peace program found that
Sierra was not a "true member" of the paramilitary AUC as he trafficked narcotics
primarily for his own personal gain rather than to advance paramilitary efforts.
Further, as to Castano, he claims that the Justice and Peace program's findings
indicate Castano committed perjury in claiming he was not a member of the
Envigado drug collection office.
With respect to Judge Lindsay's rejection of these claims, Patino argues that
there is evidence in the record that the government knew or should have known
that Sierra testified falsely at trial to the extent he claimed to be a member of the
AUC, although conceding that Sierra implied during his testimony that he was not
a member of the AUC. (Pet.'s Obj. at 5-6). Further, because his first trial ended in a
mistrial, it is not improbable that had this evidence been brought to light, the jury
would have acquitted him. Neither of these arguments provide a basis for relief.
First, having reviewed the matter de novo, the Court rejects the purported
discovery of "new evidence" as supporting habeas relief. First, the purported
findings are not competent evidence as the Justice and Peace program is not a law
enforcement program.3 Second, assuming the findings (as well as the translation)
are accurate, they do not conflict with the trial testimony of Sierra and Castano.

The court also notes that the Spanish to English translation is poor at best, with
incomplete sentences and apparent mistakes, as well as unintelligible portions.

3

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Sierra testified that he "worked for the AUC," and that he was in the
"financial department" rather that the military or political departments of the AUC
(TT4 at 926-929; 1077.) Moreover, on cross examination he was asked about the
Justice and Peace program and testified that he was rejected from the program
because the Colombian government said he was not a member of the AUC, he was
just a narcotics trafficker. (TT 1076-77.)
Castano testified that he used the services of Envigado, which collected drug
trafficking debt on behalf of individual traffickers, knowing that it would sometime
torture and kill people to collect the debt. He also testified that Patino had paid to
rescue one of the individuals who had been kidnapped. Castano was cross-examined
extensively about Envigado. (TT 754-63,807-09.) The referenced testimony is not
contrary to the findings (assuming the translation is accurate) relied on by Patino.5
In sum, there was clearly no perjury at trial and the trial testimony of these
two witnesses was either identical or worse for the witnesses than the exhibits
relied on by Patino. In addition, Patino was aware of and cross examined the
witnesses as to the items he now raises and therefore they provide no basis for
relief. See United States v. Abbinanti, 338 F.3d 331, 332 (2d Cir. 1964 (discrepancies
were known to defendant at trial and there was a full opportunity to explore them).
Defendant's claim that newly discovered evidence warrants relief is rejected.

TT refers to the trial transcript
The Court also notes that from what was proffered by Patino, it does not appear
that there was any evidence presented regarding the Envigado office other than the
conclusions of the prosecutor.
4
5

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B.

Ground No. 2 – the Brady Claim

Brady v. Maryland, 373 U.S. 83, 87-88 (1963) requires the government to
disclose evidence to a defendant when the evidence is material to guilt or
punishment. To establish a Brady violation, a defendant must demonstrate: (1) the
evidence at issue is favorable to him because it is either exculpatory or impeaching;
(2) the Government suppressed that evidence; and (3) the defendant was thereby
prejudiced. See Strickler v. Greene, 527 U.S. 263, 281–82 (1999). A habeas claim
alleging a Brady violation should be denied on the merits where a petitioner is
unable to demonstrate the exculpatory nature of the evidence at issue. See Jones v.
Conway, 442 F. Supp. 2d 113, 128 (S.D.N.Y. 2006). Additionally, “[u]ndisclosed
evidence is material only if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been
different.” United States v. Payne, 63 F.3d 1200, 1209 (2d Cir. 1995) (quoting United
States v. Bagley, 473 U.S. 667, 682 (1985)).
Patino's Brady claim is based on two signed, unsworn statements from two
co-defendants, Rios and Rendon, who were members of the Norte Valle Carte
("NVC") and entered into cooperation agreements but did not testify at either of
Patino's trials. As characterized by Patino, these statements indicate that Patino
was not a member of the NVC and that neither individual had ever been involved in
any cocaine shipments with Patino, information which was allegedly passed on to
the government.

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First, as noted by Magistrate Lindsay, these statements were prepared in
Colombia and were not signed under penalty of perjury. Such unsworn testimony is
insufficient to contradict sworn trial testimony. Cf. Haouari v. United States, 510
F.3d 350, 354 (2d Cir. 2007) (A “general, unsworn recantation . . . is insufficient to
contradict sworn trial testimony.”) Second, the statements do not undermine the
confidence in the outcome of the trial given the substantial evidence presented by
the government and the fact that, when read carefully, the statements do not
contradict the testimony at trial of the other witnesses. As Judge Lindsay aptly
noted:
Notably, none of the drug shipments discussed at trial involved either
Rendon or Flores and neither was mentioned in the testimony of any witness.
Moreover, the fact that Rendon and Flores now claim that Paitino was not a
member of the NVC and had never taken part in drug shipments "with them"
is immaterial. Indeed, a careful read of Rendon's and Florez's statements
suggest only that Patino was not part of a subset of the NVC under another
NVC boss, Hernando Gomez Bustamante, alias Rasguno.
In comparison, the government presented evidence at trial that Patino
was a boss in his own right and controlled a different area of the North
Valley. In fact, numerous witnesses testified at trial about Patino's role in the
NVC. For example, Villanueva testified that he worked for Rasguno and
there were hundreds of people who he conspired with Rasguno, including
Patino. Villanueva explained that the Bustamante/Rasguno organization
operated in and controlled the city of Cartago while Patino controlled the
town of Viterbo on behalf of the NVC. Sierra similarly testified that after the
AUC expanded into the North Valley, Sierra learned that Patino controlled
Viterbo and Rasguno controlled El Zarzal and Cartago with another boss. As
such Rendon's and Florez's statement that Patino was not part of the NVC
controlled by Rasguno is simply a red herring.
Equally immaterial is the fact that Rendon and Florez allegedly
advised the government that they themselves had never taken part in drug
shipments with Patino. No one at trial testified that Patino engage in drug
shipments involving Rendon and Florez. And, Rendon's and Florez's
statements concerning their personal lack of involvement with Patino does
nothing to impeach the trial testimony given by numerous witnesses
concerning their own drug deals with Patino. Accordingly, . . . there is no
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reasonable possibility that these witnesses' statements could have led to a
different result . . . .
(R&R at 21-22.)
In other words, Patino has failed to establish both that the evidence is
exculpatory and that it is material. Accordingly, the Brady claim provides no basis
for relief.
C.

Ground No. 3 - Ineffective Assistance of Trial Counsel:
Failure to Call Vasquez as a Witness

Claims of ineffective assistance of counsel are governed by Strickland v.
Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court held that to
prevail on an ineffective assistance of counsel claim, a petitioner must establish (1)
that his counsel performed deficiently, and (2) that the deficiency caused actual
prejudice. Id. at 687. See also Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002).
Under the first prong, “we ask whether counsel's performance was so deficient that,
in light of all the circumstances, the identified acts or omissions were outside the
range of professionally competent assistance.” Gonzalez v. United States, 722 F.3d
118, 130 (2d Cir. 2013) (internal quotation marks omitted); accord Harrington v.
Richter, 562 U.S. 86, 105 (2011) (“[t]he question is whether an attorney's
representation amounted to incompetence under prevailing professional norms, not
whether it deviated from best practices or most common custom.”) (internal
quotation marks omitted). A court must “indulge a strong presumption that
counsel’s conduct falls within the range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. To satisfy the prejudice prong, a petitioner must show

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that but for the attorney’s deficient performance, there is a reasonable probability
that the result would have been different. Id. at 694. More is required than a mere
showing “that the errors had some conceivable effect on the outcome of the
proceeding,” as “not every error that conceivably could have influenced the outcome
undermines the reliability of the result of the proceeding.” Id. at 693. “A
reasonable probability is one sufficient to undermine confidence in the outcome of
the trial or appeal.” Dunham, 313 F.3d at 730.
The Second Circuit has instructed that a reviewing court should be “highly
deferential” to counsel’s performance, because “‘[i]t is all too easy for a court,
examining counsel’s defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable.’” Pratt v. Greiner, 306 F.3d
1190, 1196 (2d Cir. 2002) (quoting Strickland, 466 U.S. at 689).
Although the test for ineffective assistance of counsel contains two prongs,
the Supreme Court specifically in Strickland noted that the federal district courts
need not address both components if a petitioner fails to establish either one. The
relevant excerpt from that decision reads:
Although we have discussed the performance component
of an ineffectiveness claim prior to the prejudice component, there is no
reason for a court deciding an ineffective assistance claim to approach
the inquiry in the same order or even to address both components of
the inquiry if the defendant makes an insufficient showing on one. In
particular, a court need not determine whether counsel’s performance
was deficient before examining the prejudice suffered by the defendant
as a result of the alleged deficiencies. The object of an ineffectiveness
claim is not to grade counsel’s performance. If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.

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466 U.S. at 697.
The two Strickland requirements are conjunctively stated, meaning that the
failure to establish either is fatal.
Patino asserts that his trial counsel was ineffective because he failed to call
Vasquez to rebut the testimony given by Orozco about her husband's distribution of
Patino's drugs in America and to attack the credibility of Castano who corroborated
Orozco's testimony. Patino bases this claim on a Colombian declaration purportedly
made by Vasquez two months after Patino's sentence in an area of the North Valley
controlled by Patino. A fair transalation of the statement is "During my stay on
Long Island, I performed tourist activities and did work relating to construction
unions with known Colombian residents sporadically."
This argument fails for a number reasons, any one of which is sufficient for
denying it as a basis for relief. First, Patino has made no showing that Vasquez had
been located prior to trial or that he was available for his trial attorney to call as a
witness. Second, his trial attorney has averred that to the best of his recollection
Patino did not discuss Vasquez as a possible witness prior to or during the trial and
that he was dependent on Patino's Colombian attorneys to locate possible witnesses
in Colombia. Third, while Patino claims that from the statement the Court should
conclude that Vasquez would have testified that he never sold drugs for Patino, in
fact, no such inference can be made. Finaly, given the absence of an affirmative
denial by Vasquez vis a vis selling drugs for Patino, the proffered testimony is
unlikely to have affected the outcome of the proceeding.

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D.

Ground No. 4 - Ineffective Assistance of Trial and
Appellate Counsel: constructive Amendment

The last ground raised by Patino is that both trial and appellate counsel
rendered ineffective assistance by failing to raise that Counts 1 – 3 of the
indictment were "unconstitutionally broadened by the evidence at trial, the
government's summation and the court's jury instructions.” In addressing this
ground, Judge Lindsay first noted that the memorandum submitted by Patino's
counsel in support of the 2255 petition was confined to the first three grounds
although the memorandum stated that Patino intended to pursue the fourth ground
pro se. Inasmuch as a criminal defendant has no right to represent himself as cocounsel with his own attorney and neither Patino nor his counsel offered any
compelling reason to justify Patino's appearance as co-counsel, she recommended
denial of this ground as a basis for relief.
In objecting to this recommendation, Patino concedes that he was
represented by counsel but maintains that because of the "seriousness" of this
claim, it is an abuse of discretion not to consider it.
Like Judge Lindsay, this Court concludes that given the absence of any
compelling reason to allow Patino to act as co-counsel, this claim need not be
considered.6 Moreover, it lacks merit.

That long after the filing of the R&R and four requests for an extension of time to
file objections by Patino's counsel, Patino requested that his counsel be relieved,
sought an additional extension and then filed his objections "pro se" does not change
this result. Indeed, the Court finds it curious that one of the reasons counsel
requested the extensions was the need to engage a Spanish interpreter as his office
no longer employed one, yet Patino's "pro se" submission is in perfect English.
6

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Patino' argument focuses on the introductory language of the indictment
referencing the NVC and ignores the operative charging language of the indictment
that he "together with others, did knowingly conspire . . . ." (superseding
Indictment (S-13) (emphasis added). As the indictment charges that Patino
conspired "with others," there is no variance in proof by the introduction of evidence
of drug dealings with persons other than members of the NVC.
In addition, "[w[hen the indictment contains a conspiracy charge, uncharged
acts may be admissible as direct evidence of the conspiracy itself." United States v.
Washington, 347 F. App'x 704, 705-06 (2d Cir. 2009) (quoting United States v. Thai,
29 F.3d 785, 812 (2d Cir. 1994). Indeed, "[i]t is clear the government may offer proof
of other acts not included within the indictment as long as they are within the scope
of the conspiracy. Thai, 29 F.3d at 812. As there is no merit to Patino's argument,
the failure to raise it cannot constitute ineffective assistance of counsel.
CONCLUSION
Having conducted a de novo review, the Court agrees with Judge Lindsay's
conclusion that the grounds raised do not warrant § 2255 relief. Accordingly, the §
2255 petition is denied.
SO ORDERED.
Dated: Central Islip, New York
June 28, 2022

s/ Denis R. Hurley
Denis R. Hurley
United States District Judge

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