Beras v. United States of America
OPINION AND ORDER: For the foregoing reasons, the Petition is denied. The Clerk of the Court is directed to close all outstanding motions in the criminal case (99 Cr. 075, Doc. Nos. 111, 112, 118, 119, 124, 132, 134, 140, 142, and 143) as well as in the civil case (05 Civ. 2678, Doc. Nos. 2, 3, 10, 11, 13, 17, and 25). The Clerk of the Court is further directed to close case number 05 Civ. 2678. The only issue that remains is whether to grant a Certificate of Appealability (COA). For a COA to is sue, a petitioner must make a substantial showing of the denial of a constitutional right. A substantial 228 showing does not require a petitioner to demonstrate that he would prevail on the merits, but merely that reasonable jurists could debate whe ther... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Beras has not made this showing. Accordingly, I decline to issue a COA. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 3/20/2013) (rsh); [*** NOTE: Also docketed in related Criminal Case 99-cr-75(BSJ), see Doc.#150. ***] Modified on 3/20/2013 (bw).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPINION AND ORDER
05 Civ. 2678 (SAS)
99 CR 75 (BSJ)
UNITED STATES OF AMERICA
BACKGROUND ........................... ................... 2
A. The Offense Conduct..................................... 2
B. The Jury Verdict and Sentencing........................... 4
C. Direct Appeal and Post-Verdict Motions..................... 5
E. Beras's Petition Under Section 2255........................ 15
F. Beras's Supplemental Motions............................. 17
Motions Filed in the Civil Docket..................... 17
Motions Filed in the Criminal Docket.................. 19
The Grounds Alleged in the Supplemental Motions...... 21
Category One: Motions that Relate Back to the
b. Category Two: Motions that Do Not Relate Back to
the Petition.................................. 24
Category Three: Motions Not Cognizable on Section
2255 Collateral Review......................... 32
III. LEGAL STANDARD......................................... 33
A. Section 2255 ........................... ................ . 33
B. Ineffective Assistance of Counsel. .......................... 34
Amendments to Habeas Petitions. . . . . . . . . . . . . . . . . . . . . . . . . . 36
Claim Preclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
DISCUSSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Precluded Claims.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Ineffective Assistance of Counsel Claims Barred by the
Mandate Rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Other Precluded Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Claims Barred by the Mandate Rule . . . . . . . . . . . . . 43
Claims Precluded Because They Could Have Been
Brought on Direct Review. . . . . . . . . . . . . . . . . . . . . . 45
The Remaining Grounds for Relief Are Without Merit. . . . . . . . 48
The Government’s Summation Statements Did Not Include
Improper Bolstering, and Therefore Did Not Amount to
Prosecutorial Misconduct.. . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Counsel’s Failure to Object on the Basis of the Federal
Anti-Gratuity Statute Does Not Constitute Ineffective
Assistance of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Trial Counsel’s Alleged Failure to Properly Advise Beras to
Plead Guilty Does Not Constitute Ineffective Assistance of
Counsel.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
The Remaining Grounds for Relief Fail Because they
Amount To Second-Guessing Counsel’s Reasonable Trial
Strategy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Petitioner Roberto Beras, proceeding pro se, petitions this Court under
28 U.S.C. § 2255 (“Section 2255”) for a writ of habeas corpus.1 Also before the
Court are a number of supplemental motions (the “Supplemental Motions”) that
Beras has filed in both the civil docket and the criminal docket.
On December 4, 2000, after a four-week trial in this District, a jury
returned a verdict finding Beras guilty of a number of crimes related to an
international money laundering conspiracy. The next day, the jury returned a
verdict ordering that Beras forfeit ten million dollars in proceeds of this money
laundering. On November 21, 2001, the Southern District of New York (Judge
Shirley Wohl Kram) sentenced Beras to concurrent terms of imprisonment of 292
months and three years of supervised release. Beras’s sentence and conviction
were subsequently affirmed by the Second Circuit, and the Supreme Court denied a
writ of certiorari.2
The numerous grounds for relief that Beras alleges in the Petition and
See Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (the “Petition”), submitted to prison
officials for mailing February 17, 2005.
See United States v. Dinero Express, Inc., 57 Fed. App’x 456, 459 (2d
Cir. 2002); United States v. Dinero Express, Inc., 313 F.3d 803, 804 (2d Cir.
2002), cert. denied, Beras v. United States, 540 U.S. 1184 (2004), reh’g denied,
541 U.S. 1057 (2004).
Supplemental Motions are set forth below. For the following reasons, the Petition
The Offense Conduct3
Superseding Indictment S3 99 Cr. 075 (the “Indictment”), containing
eighty-two counts, was filed on April 18, 2000. Count One charged Beras and
co-defendants Dinero Express, Inc. and Luis Francisco Soriano with conspiracy to
launder money, in violation of 18 U.S.C. § 1956(h). Count Two charged Beras,
Dinero Express, Soriano, and co-defendant Maria Mendoza with conspiracy to
structure transactions and avoid currency reporting requirements, in violation of 18
USC § 371. Counts Three through Thirty-Five charged Beras and Dinero Express
with engaging in money laundering in violation of 18 U.S.C. §§ 1956(a)(2)(B).
Counts Thirty-Six through Forty-One charged Beras and Dinero Express, and
County Forty-Two charged Beras, Dinero Express, and Soriano, with engaging in
money laundering, in violation of 18 U.S.C. § 1956(a)(3). Counts Forty-Three
through Seventy-Five charged Beras, Dinero Express, and Mendoza with
structuring financial transactions in violation of 31 U.S.C. § 5324(a)(3) and 18
The facts underlying this case have been laid out at length in a number
of Second Circuit opinions. See, e.g., Dinero Express, Inc., 57 Fed. App’x 456.
Familiarity with the facts and the record of these prior proceedings is presumed.
U.S.C. § 2. Finally, Counts Seventy-Six through Eighty-One charged Beras and
Dinero Express, and Count Eighty-Two charged Beras, Dinero Express, and
Soriano, with causing a financial institution to fail to file a currency transaction
report, in violation of 31 U.S.C. § 5324(a)(1) and 18 U.S.C. § 2.
Trial on the Indictment commenced on November 8, 2000 before
Judge Shirley Wohl Kram. The evidence at trial demonstrated that from 1994 to
1996, as vice-president and co-owner of Dinero Express, a licensed money
remitter, Beras supervised an extensive money laundering conspiracy which used
Dinero Express and its employees to launder tens of millions of dollars in narcotics
proceeds from the United States to foreign countries, primarily the Dominican
In exchange for commissions that generally totaled five percent of
each transaction, Beras and his co-conspirators accepted from area drug traffickers
cash deposits known to be the proceeds of illegal narcotics sales, and then arranged
for the transfer of those deposits from Dinero Express’s headquarters in Manhattan
to the trafficker’s international associates. Beras was involved in nearly every
facet of the laundering operation, including recruiting drug-trafficker clients,
receiving the cash deliveries, arranging for the deposit of the cash into Dinero
Express’s bank accounts, overseeing the transmission of the funds to the
Dominican Republic, and ultimately arranging for the payment of the international
traffickers. Beras’s sole defense at trial was that he had no knowledge of Dinero
Express’s money laundering, and that the Government’s cooperating witnesses had
lied about his knowledge of and involvement with the scheme in order to receive
leniency from the Government.
The Jury Verdict and Sentencing
On December 4, 2000, the jury found Beras and Dinero Express guilty
of all eighty-two counts in the Indictment. The next day, the jury deliberated on
the forfeiture allegations, and returned a verdict ordering that Beras forfeit ten
million dollars in proceeds of the laundering.
At trial, Beras was represented by Charles A. Ross.4 On February 21,
2001, Beras retained new counsel, David Zapp.5 Zapp, on behalf of Beras, filed a
post-trial motion requesting a Fatico hearing in which the Government would be
required to produce its confidential informant to testify. Consistent with her prior
holdings, Judge Kram denied this motion.6 Beras did not file any other post-trial
motions prior to sentencing.
See Petition at 6.
See 11/20/01 Memo Endorsement, 99 Cr. 75 Doc. No. 63.
Subsequently, on November 21, 2001, Beras was sentenced to 292
months’ imprisonment, three years’ supervised release, and a $4,100 mandatory
special assessment, as well as an order of forfeiture in the amount of ten million
Direct Appeal and Post-Verdict Motions
On direct appeal, Beras, represented by Zapp, challenged his
convictions and sentence on numerous grounds, including that: (1) the Government
denied him due process by waiting five years to bring the prosecution;7 (2) he was
entitled to severance from his co-defendants based on the opening statements of
one of his co-defendant’s counsel;8 (3) the trial court’s evidentiary rulings violated
his constitutional right to present a defense;9 (4) the charges against him were
multiplicitious in violation of the Double Jeopardy Clause;10 (5) his Guidelines
sentence was incorrectly calculated because the trial judge found relevant conduct
that had not been placed before the jury;11 and (6) the transfers at the heart of his
See Dinero Express, Inc., 57 Fed. App’x at 458.
Id. at 459.
See id. at 460.
See id. at 461.
See id. at 462.
scheme did not constitute money laundering.12 Beras also raised several ineffective
assistance of trial counsel claims through two “supplemental pro se briefs.”
Because these claims were not record based, and therefore more suitable for
collateral review than direct review, the Second Circuit did not address them.13
In two opinions, issued on December 19 and 20, 2002, the Second
Circuit affirmed Beras’s conviction and sentence.14 The Circuit rejected Beras’s
pre-indictment delay argument because the Government delayed Beras’s
prosecution in order to investigate his conduct, not for an improper purpose.15
Beras’s severance argument was rejected because he could not identify a specific
trial right that was infringed by his co-defendants’ defenses, and because the
District Court issued a curative instruction.16 The Second Circuit also rejected
Beras’s argument that his convictions for money laundering and structuring
financial transactions were multiplicitious, because each allegedly multiplicitious
See Dinero Express, Inc., 313 F.3d at 804-05.
See Dinero Express, Inc., 57 Fed. App’x at 462.
See id. (addressing all of Beras’s arguments except his argument that
the transfers were not money laundering); Dinero Express, Inc., 313 F.3d at 803
(separately addressing Beras’s money laundering argument).
See Dinero Express, Inc., 57 Fed. App’x at 459.
See id. at 460.
charge required proof of an element that the other did not.17
Beras also challenged three evidentiary rulings of the District Court
that: (1) prohibited him from eliciting testimony concerning the credibility of a
Government informant after tapes of the informant had been admitted into
evidence; (2) admitted into evidence testimony by an FBI agent on the money
remitting business in general, the operations of legal and illegal money remitters,
and the connections between drug trafficking and money laundering; and (3)
admitting falsified remittance forms into evidence under the business records
exception. The Second Circuit affirmed these rulings on the respective grounds
that: (1) Beras’s inability to elicit credibility testimony did not violate the
Confrontation Clause, because the tapes were admitted into evidence to give
context to recordings of Beras, not for the truth of the matters asserted; (2) the FBI
agent’s testimony was not used to improperly bolster the Government’s case with
respect to a fact at issue at trial; and (3) the falsified remittances were properly
admitted, because they were used to show the sham nature of the transactions, not
to prove the truth of the matters asserted.18
Beras challenged the District Court’s sentencing enhancements on two
See id. at 461 (citing Blockburger v. United States, 284 U.S. 299
See id. at 460-61.
grounds: first, that the District Court found allegedly disputed facts related to
sentencing by a preponderance of the evidence; and second, that the Court found
that the object of Beras’s money laundering conspiracy was to promote narcotics
trafficking, in violation of 18 U.S.C. § 1956(a)(3)(A). The Second Circuit
affirmed Beras’s sentence, holding that disputed facts pertinent to sentencing may
be found by a preponderance of the evidence, and that the District Court was
entitled under the Sentencing Guidelines and the evidence presented to find that the
object of the conspiracy at issue was narcotics trafficking.19
Finally, the Second Circuit wrote a separate opinion addressing
Beras’s contention that no single step in the fraudulent remittance scheme
constituted a “transfer . . . [of] a monetary instrument or funds from a place in the
United States to or through a place outside the United States” under the
international money laundering statute, because no step involved money being
wired directly to the Dominican Republic.20 The scheme had four steps:
First, drug traffickers delivered their cash to Dinero’s New York
headquarters for gradual deposit into the company’s bank
accounts in the United States.
Second, Dinero remittance invoices were generated for fictitious
transactions to the Dominican Republic; the invoices used false
See id. at 462.
18 U.S.C. § 1956(a)(2).
identities and addresses and were made out in amounts small
enough to avoid currency reporting requirements.
Third, arrangements were made for a Dominican “peso supplier”
to advance local currency – in the same amount as the original
deposit delivered to Dinero’s New York headquarters, minus
commission – to Dinero’s Dominican office, which in turn
forwarded the cash to the drug traffickers’ Dominican personnel
under the pretense of fulfilling the fictitious remittances generated
in New York.
Fourth, the process culminated with Dinero’s repayment of the
peso supplier through a wire transfer of funds from Dinero’s New
York operating account to the peso supplier’s bank accounts in the
The Second Circuit first noted that, under its precedents, “a multi-step
plan to transfer money from one location to another should be viewed as a single
‘transfer’ under § 1956(a)(2) . . . .”22 Applying this test, the court then held that,
because money is fungible, the substance of the four-step process was to “transfer”
money from the United States to the Dominican Republic.23 The court therefore
affirmed Beras’s conviction under the money laundering statute.
Dinero Express, Inc., 313 F.3d at 805.
Id. at 806.
See id. at 807 (“[W]e hold that a course of conduct that begins with a
sum of money located in one country and ends with a related sum of money
located in another may constitute a ‘transfer’ for purposes of § 1956(a)(2). This is
true whether or not the particular transactional vehicle for effecting the ‘transfer’ is
comprised of a single step or a series, and whether or not the funds move directly
between an account in the United States and one abroad.”).
On March 28, 2003, Beras submitted a pro se “Petition for Rehearing
and Suggestion for Rehearing En Banc” in which he raised additional attacks on
his conviction, including that: (1) statements by co-defendant Mendoza and
cooperating witness Hendrix Tavares, among others, should have been introduced
at trial to prove his innocence; (2) the trial court should have instructed the jury on
whether the term “proceeds” in the money laundering statute meant net or gross
income; and (3) certain statements made in the Government’s summation, whereby
the Government allegedly improperly vouched for certain witnesses through
statements like “‘the [G]overnment submits to you that Mr. Tavare[s] was being
completely truthful[,]’” constituted prosecutorial misconduct.24 Beras also restated
many of the arguments raised in his direct appeal.25
On July 2, 2003, while his motion for a rehearing was still pending,
Beras moved the District Court to dismiss the Indictment on the grounds that: (1)
Congress acted outside of the scope of its enumerated powers when it promulgated
18 U.S.C. § 1956; and (2) “[t]he federal Government and  [the District Court]
lack territorial jurisdiction over this case because the federal [G]overnment does
United States v. Dinero Express, Inc. et al., No. 01-1634, 2003 WL
23924817 (2d Cir. App. Petition Mar. 28, 2003) (quoting Trial Transcript (“Tr.”) at
not have control over the geographical location where the crime took place and
because the federal [G]overnment may not investigate Dinero Express, Inc.
because Dinero Express, Inc. was regulated by the New York State Banking
Commission, a State agency.”26 The District Court denied the motion, holding that
Congress acted within the scope of the commerce power in promulgating the
money laundering statute, and that it was irrelevant that the United States did not
have exclusive control over the areas where Beras’s crimes took place.27 The
Second Circuit then denied Beras’s motion for a rehearing.
On February 23, 2004, the Supreme Court denied Beras’s petition for
a writ of certiorari on his direct appeal.28 His conviction therefore became final on
that day,29 giving him until February 23, 2005 to file a petition, i.e. deliver it to
prisoner authorities.30 The Certificate of Service attached to the Petition states that
United States v. Beras, No. 99 Cr. 75, 2004 WL 203041, at *1
(S.D.N.Y. Feb. 2, 2004).
See id. at *2.
See Beras, 540 U.S. 1184, reh’g denied, 541 U.S. 1057.
See Clay v. United States, 537 U.S. 522, 527 (2003) (“Finality
attaches when this Court affirms a conviction on the merits on direct review or
denies a petition for a writ of certiorari, or when the time for filing a certiorari
See Houston v. Lack, 487 U.S. 266, 276 (1988) (stating the prison
mailbox rule); 28 U.S.C. § 2255(f)(1).
it was mailed on February 17, 2005, and the sworn Notice of Motion, also attached
to the Petition, is also dated February 17, 2005. Therefore, the Petition was timely
Because the timeliness of Beras’s Supplemental Motions is at issue in
this case, it is worth noting the Government’s position on a predicate issue, the
timeliness of the Petition. In its opposition, the Government erroneously states
that: (1) “Beras’s conviction become [sic] final on August 16, 2004, 90 days after
the Supreme Court denied certiorari[;]” and (2) “[t]he Petition was filed on March
9, 2005 . . . .”32 Both points are wrong: the ninety-day rule applies when the
defendant does not seek a writ of certiorari, and pro se habeas petitions are deemed
filed when tendered to prison officials.
On December 1, 2003, Beras moved the District Court for a new trial
under Rule 33 of the Federal Rules of Criminal Procedure, and on December 5,
2003, Beras separately moved the District Court to dismiss the Indictment under
Federal Rule of Criminal Procedure 12(b). The District Court denied both
See Moshier v. United States, 402 F.3d 116, 117 (2d Cir. 2005)
(applying the prison mailbox rule to a Section 2255 motion, and determining the
date of filing under this rule with reference to, among other things, the certificate
of service attached to the petition).
The Government’s Memorandum of Law in Opposition to Roberto
Beras’s Motion to Vacate or Set Aside Convictions and Sentence Pursuant to 28
U.S.C. § 2255 (“Gov. Mem.”) at 28 (citation omitted).
motions, and both of these decisions were affirmed by the Second Circuit.33
Beras’s motion to dismiss the Indictment under Rule 12(b) was based
on a selective prosecution defense. The Second Circuit held that the District Court
committed a clear legal error by excusing Beras’s waiver of this defense, given that
it had unjustifiably been raised post-verdict, but that this error was harmless
because the District Court was correct to deny the defense on the merits.34
Beras’s motion for a new trial was based on: (1) certain allegedly
newly-discovered exculpatory statements by co-defendant Mendoza, unindicted
co-conspirator Rafael Liriano, and prosecution witness Gustavo Felipe, and (2)
inconsistencies between cooperating witness Tavares’s trial testimony and plea
allocution. Beras also argued that he was entitled to re-sentencing under Apprendi
v. New Jersey35 and United States v. Booker.36 The Second Circuit affirmed the
See United States v. Beras, 131 Fed. App’x 313 (2d Cir. 2005)
(affirming denial of Rule 12(b) motion); United States v. Beras, 152 Fed. App’x 50
(2d Cir. 2005) (affirming denial of Rule 33 motion).
See Beras, 131 Fed. App’x at 313 (“As the district court correctly
found, Beras failed to present evidence sufficient to demonstrate that: (1) others,
similarly situated to him and his company, Dinero Express, Inc., had not been
prosecuted for money laundering; or (2) the Government’s decision to prosecute
him was based on an impermissible consideration such as race.”).
530 U.S. 466 (2000).
543 U.S. 220 (2005).
District Court’s denial of Beras’s motion for a new trial because: (1) the statements
of Mendoza and Liriano had been disclosed to the defense prior to trial under 18
U.S.C. § 3500; (2) Beras’s unsupported description of the statements of Felipe was
insufficient to overcome the Government’s credible declaration that it had no
knowledge of exculpatory statements from Felipe, and in any event Beras had
offered no reasons why he was unable to discover Felipe’s statement prior to trial;
and (3) even if Tavares’s trial testimony and plea allocution were inconsistent,
these inconsistencies were immaterial, and certainly did not amount to perjury.37
The Second Circuit further held that Beras was not entitled to re-sentencing under
Booker, because it is not retroactive and Beras’s conviction was final before it
Beras’s Petition Under Section 2255
Beras asserts six grounds in support of his Petition. First, he claims
that his Sixth Amendment right to the effective assistance of counsel was violated
when his lawyer failed to: (1) investigate and prepare adequately for trial; (2)
produce certain expert witnesses; (3) allege selective prosecution; (4) move for
severance based on a conflict of interest between Beras and his co-defendants, as
See Beras, 152 Fed. App’x at 51.
See id. at 52 (citing Guzman v. United States, 404 F.3d 139, 141 (2d
well as Beras’s defense counsel and those of his co-defendants; (5) object to or
contest statements made by the confidential informant that were allegedly
inconsistent with statements made in an unrelated case, and statements by a
cooperating witness in relation to that witnesses’s plea allocution; (6) properly
advise Beras to plead guilty; (7) object, on the basis of the federal anti-gratuity
statute,39 to the Government’s use of recorded conversations and testimony of a
cooperating witness; (8) permit Beras to testify on his own behalf, as well as call
various expert witnesses to testify; (9) object to prosecutorial misconduct related to
statements made during the Government’s summation; (10) introduce certain
exculpatory evidence in his possession; and (11) argue for suppression of wiretap
evidence that was not properly sealed.40
Second, Beras alleges that his Sixth Amendment right to a jury trial
was violated because Judge Kram impermissibly found several enhancements to
Beras’s base offense level under the Sentencing Guidelines by a preponderance of
the evidence.41 Third, he alleges that his Confrontation Clause rights were violated
because a confidential informant did not testify at trial despite the introduction of
18 U.S.C. § 201(c)(2).
See Memorandum of Law in Support of Petition (“Pet. Mem”) at 535; 62-69; 89-102.
See id. at 36-43.
tape recordings involving Beras and the informant, as well as due to the
introduction of statements made by a cooperating witness through the testimony of
a law enforcement officer.42 Fourth, he argues that limiting instructions by the trial
judge did not cure prejudice caused by certain statements made by the Government
and counsel for his co-defendants in their opening and summations.43 Fifth, Beras
challenges his convictions and sentence on the basis that the trial judge did not
allow him to present a defense because she sustained various objections by the
Government to defense counsel’s questioning of a cooperating witness.44 And
sixth, Beras argues that his right to a fair trial was violated when his attorney
shared certain information with defense counsel for Beras’s co-defendants.45
Beras’s Supplemental Motions
In addition to his hundred and four page Petition, Beras has caused
seventeen supplemental motions to be filed in both the civil and criminal docket.
By an Order dated February 21, 2007, the Court directed the Clerk of Court to
“accept no further supplements or amendments to Beras’s 2255 petition.”46 This
See id. at 43-56.
See id. at 56-61.
See id. at 69-75.
See id. at 102-103.
Order, 99 Cr. 75, Doc. No. 133, at 2.
Order has been honored in the breach: five Supplemental Motions were filed after
it issued. By an Order dated September 19, 2012, this Court directed the
Government to respond to the Petition and Supplemental Motions.47 In the same
Order, the Court granted four motions in the Civil Docket, 05 Civ. 2678, which
requested additional briefing.48
A partial list of Beras’s Supplemental Motions follows. The dates
given reflect the prison mailbox rule, not the date of filing by the Clerk of Court.
Motions Filed in the Civil Docket
7/8/06 Supplemental Pleadings Under Federal Rules of Civil
Procedure Rule 15(c) (“Supplemental Motion One”).49
8/9/06 Motion for Inclusion of Additional Cases
(“Supplemental Motion Two”).50
9/28/09 Petitioner’s Motion for Inclusion of Additional Case
and Request for Immediate Release (“Supplemental Motion
See Order, 05 Civ. 2678, Doc. No. 23.
See id., Doc. No. 23 at 3 (“In the civil case, petitioner has also filed
the following Motions for the Inclusion of Additional Cases: Document # 3, 10, 13
and 17. These motions, which consist of supplemental briefing which may or may
not be relevant, are granted in full.”).
Id., Doc. No. 2.
Id., Doc. No. 3.
8/15/11 Motion For an Order Under Federal Rule of Civil
Procedure 15(a), and in light of Bullcoming v. New Mexico,
2011 U.S. Lexis 4790 (“Supplemental Motion Four”).52
6/13/08 Declaration in Support of Motion for Inclusion of
Additional Cases (“Supplement Motion Five”).53
4/23/12 Declaration in Support of Motion for Inclusion of
Additional Case (“Supplemental Motion Six”).54
11/26/12 Motion to Amend Petitioner’s Initial Motion Under 28
U.S.C. § 2255 and in Light of United States v. Gupta, 2d Cir.
No. 09-4738-cr (“Supplemental Motion Seven”).55
Motions Filed in the Criminal Docket
6/10/05 Supplemental Pleadings Based on Rules of Civil
Procedure Rule 15(a) (“Supplemental Motion Eight”).56
Id., Doc. No. 10.
Id., Doc. No. 11.
Id., Doc. No. 13
Id., Doc. No. 17.
Id., Doc. No. 25.
99 Cr. 75, Doc. No. 111.
6/7/05 Supplemental Pleadings Based on Rule of Civil
Procedure Rule 15(a) (“Supplemental Motion Nine”).57
12/28/05 Petitioner’s Motion Under Rules of Civil Procedure
Rule l5(a) Supplementing His Habeas Corpus Petition Under
Title 28 U.S.C. § 2255 (“Supplemental Motion Ten”).58
2/5/06 Motion to Dismiss Counts 3 Through 35 of the
Indictment (“Supplemental Motion Eleven”).59
7/13/06 Petitioner’s Corrected Supplemental Pleadings
(“Supplemental Motion Twelve”).60
1/18/07 Motion Pursuant to Federal Rules of Civil Procedure,
Rule 15(a) and in Light of the Recent Supreme Court’s
Authority in Zedner v. United States (“Supplemental Motion
2/8/07 Motion for Inclusion of Additional Case (“Supplemental
Id., Doc. No. 112.
Id., Doc. No. 118.
Id., Doc. No. 119.
Id., Doc. No. 124.
Id., Doc. No. 132
5/6/08 Motion to Hold Case in Abeyance Pending Supreme
Court Decision in United States v. Santos (“Supplemental
8/15/11 Motion For an Order Under Federal Rule of Civil
Procedure 15(a), and in light of Bullcoming v. New Mexico,
2011 U.S. Lexis 4790 (“Supplemental Motion Sixteen”).64
2/20/12 Motion Under Federal Rules of Civil Procedure, Rule
60(b) and in Light of Bond v. United States (“Supplemental
The Grounds Alleged in the Supplemental Motions
None of the Supplemental Motions were filed on or by February 23,
2005, and none of them relate back to the Petition under Federal Rules of Civil
Procedure 15(c)(1)(a). And none of them set out “any transaction, occurrence, or
event that happened after the date of” the Petition, meaning that they are not
Id., Doc. No. 134
Id., Doc. No. 140.
Id., Doc. No. 142.
Id., Doc. No. 143. This motion is identical to Supplemental Motion
properly supplemental pleadings.66 Therefore, to the extent that the Supplemental
Motions seek to add claims not raised in the Petition, those claims must arise “out
of the conduct, transaction, or occurrence set out – or attempted to be set out – in
Beras’s Supplemental Motions can therefore be divided into three
categories. The first category consists of motions that either offer additional
briefing on issues raised in the Petition, or raise claims that relate back to the
Petition. The second category consists of motions that do not relate back to the
Petition. The third category consists of motions that cannot properly be raised in a
Section 2255 petition.
Category One: Motions that Relate Back to the
Supplemental Motions Two, Six, Eight, Ten, Twelve, and Fourteen
comprise category one. Supplemental Motion Two urges the Court to consider
five cases that relate to various claims raised in the Petition.68 Supplemental
Fed. R. Civ. P. 15(d).
Fed. R. Civ. P. 15(c)(1)(B). The relation back doctrine, as applied to
petitions under Section 2255, is more fully described below.
See Supplemental Motion Two at 1 (“Petitioner . . . moves this Court
for permission to include additional cases, specifically . . . United States v. Crosby,
397 F.3d 103 (2d Cir. 2005); United States v. Gonzales, 420 F.3d 111 (2d Cir.
2005); United States v. Cordova-Murgas, 422 F.3d 65 (2d Cir. 2005); and
Motion Eight offers additional briefing on whether the trial judge impermissibly
found enhancements to Beras’s base offense level under the Sentencing Guidelines
by a preponderance of the evidence.69 It argues that Apprendi v. New Jersey70 and
its progeny are watershed rules of procedure that are retroactive on collateral
review under Teague v. Lane.71 Similarly, Supplemental Motion Ten restates the
argument that Beras made on direct appeal that, under Booker, the trial judge erred
by finding certain sentencing enhancements rather than submitting them to the
jury.72 And in the same vein, Supplemental Motion Fourteen urges the Court to
consider Cunningham v. California,73 a Supreme Court case extending the holding
United States v. Johnson, 430 F.3d 383 (6th Cir. 2005); and Holmes v. South
Carolina, [547 U.S. 319] ( 2006)”).
See Supplemental Motion Eight at 14.
530 U.S. 466 (2000).
489 U.S. 288 (1989). See Supplemental Motion Eight at 6. Cf.
Coleman v. United States, 329 F.3d 77, 90 (2d Cir. 2003) (“[W]e conclude that
Apprendi does not apply retroactively to initial section 2255 motions for habeas
See Supplemental Motion Ten at 9 (“In light of the district court’s
clear use of facts not found by the jury to increase Beras’s sentence by a substantial
amount (nearly ten times), Mr. Beras’s sentence should be vacated and Mr. Beras
 resentenced in a manner consistent with United States v. Booker”).
549 U.S. 270 (2007).
Through Supplemental Motions Six and Twelve, Beras argues that he
received ineffective assistance from both his trial counsel and counsel for his codefendants. Supplemental Motion Twelve raises the following grounds: (1) cocounsel made certain statements during their opening and closing arguments that
prejudiced Beras;74 (2) trial counsel did not call certain witnesses (e.g. codefendant Mendoza) because of his alleged conflicts of interest arising from the
joint defense agreement;75 (3) Beras was unable to accept a guilty plea because
Mendoza refused to accept it;76 (4) counsel violated their fiduciary duty to Beras by
accepting the joint defense agreement;77 and (5) trial counsel’s concession, on the
record, that the case against Beras was “overwhelming” proves that he had a
conflict of interest.78 And Supplemental Motion Six argues that trial counsel was
deficient for failing to advise Beras to accept a guilty plea in light of the Supreme
Court’s decision in Lafler v. Cooper.79
See Supplemental Motion Twelve at 2; 10-12.
See id. at 10.
See id. at 12.
Id. at 10.
132 S.Ct. 1376 (2012) (holding that defendant was prejudiced by
counsel’s deficient performance in failing to advise him to accept plea offer).
Category Two: Motions that Do Not Relate Back to
Category two, consisting of motions that raise claims that do not relate
back to the Petition, is comprised of Supplemental Motions Three, Four, Five,
Seven, Nine, Eleven, Thirteen, Fifteen, Sixteen, and Seventeen. Because none of
these untimely motions relate back to the Petition, they will not be considered here.
However, it is helpful to summarize their content in order to explain my conclusion
that they do not relate back to the Petition.
Through Supplemental Motion Four, Beras argues that his trial
counsel was ineffective because he did not object that a forensic handwriting
report’s admission, through the testimony of a forensic analyst who did not author
the report, violated Beras’s rights under the Confrontation Clause of the Sixth
Amendment.80 Beras argues that this motion relates back to the Petition because
the Petition alleges that: (1) trial counsel was ineffective in that he did not consult
with Beras about an independent handwriting analyst that Beras had hired; and (2)
trial counsel was ineffective in that he did not object to the admission of the
See Supplemental Motion Four at 3 (“Mr. Beras asserts here that the
Forensic Laboratory Reports’s admission through the testimony of Ms. Storer did
violate his Confrontation Clause, and his lawyer was ineffective for his failure to
raise an objection.”).
statements of certain other non-testifying witnesses.81 This argument is
unpersuasive. The nucleus of facts underpinning Supplemental Motion Four is
distinct from trial counsel’s consultation with Beras, or his decision not to object to
the other witnesses. Therefore, the motion does not relate back. As a
consequence, neither does Supplemental Motion Sixteen, which is identical to
Supplemental Motion Four, but filed in the criminal docket.
Through Supplemental Motion Nine, Beras argues that under United
States v. Scialabba82 – a Seventh Circuit Case – the trial judge’s charge that
“proceeds,” as used in 18 U.S.C. § 1956, referred to the gross, rather than net,
income from illegal activity was erroneous.83 Supplemental Motion Fifteen makes
the same argument, and moves for a stay pending resolution of the Supreme Court
cases United States v. Santos84 and Cuellar v. United States.85 (The motion for a
See Reply to Government’s Brief in Opposition to Petitioner’s Motion
Pursuant to 28 U.S.C. § 2255 (“Reply Mem.”) at 39 (citing Pet. Mem. at 15, 4661).
282 F.3d 475 (7th Cir. 2002).
See Supplemental Motion Six at 10 (“Consequently, in order for Beras
to be guilty of money laundering under the Scialabba Court’s interpretation of
‘proceeds,’ the money used by Beras in the alleged money laundering scheme must
have derived from the net proceeds of the illegal drug trafficking.”).
553 U.S. 507 (2008).
553 U.S. 550 (2008).
stay is moot, as both cases were resolved prior to this Opinion.) Likewise,
Supplemental Motions Three and Five make the same argument: i.e., that under
Cuellar and Santos, Beras’s sentence must be vacated.86
Cuellar holds that the concealment element of the money laundering
statute is satisfied only when the purpose, not merely the effect, of transporting
funds is to disguise “the nature, the location, the source, the ownership, or the
control of the proceeds of specified unlawful activity.”87 Santos was a fractured
decision in which a plurality of four Justices, applying the rule of lenity, held that
“proceeds” under 18 U.S.C. § 1956 referred to net income, not gross receipts.88 In
a concurring opinion, Justice Stevens reasoned that “proceeds” must be limited to
net income only when there is a “merger problem” – i.e., when the money
laundering count duplicates another count charged against the defendant – and
when there is no legislative history suggesting that the money laundering statute
Beras also discussed United States v. Ness, 565 F.3d 73 (2d Cir.
2009), a Second Circuit case issued in the wake of Cuellar and Santos. In Ness,
the Second Circuit reversed defendant’s conviction because he did not transport
money for the purpose of concealing it, and because a financial institution, as
defined by 18 U.S.C. § 1957, was not involved in the alleged transfer of money.
18 U.S.C. § 1956(a)(2)(B)(1). See Cuellar, 553 U.S. at 568.
See Santos, 553 U.S. at 513-14.
should apply.89 Justice Stevens’s concern was that a contrary rule would elevate a
number of garden-variety criminal offenses into the more-serious crime of money
laundering, in contravention of the Sixth Amendment.90 Applying the rule adopted
in Marks v. United States,91 the Second Circuit has held that Justice Stevens’s
concurring opinion controls.92
Beras’s argument under Cuellar and Santos is that his conviction
under 18 U.S.C. § 1956(a)(2) should be vacated because the trial judge “failed to
determine and instruct the jury on whether ‘proceeds’ refer to gross income or net
income from the charged offense[.]”93 This argument does not relate back to any
of the grounds alleged in the Petition. It is also likely without merit. Assuming
See id. (Stevens, J., concurring in the judgment) at 524-28.
See id. at 527 (“Allowing the Government to treat the mere payment
of the expense of operating an illegal gambling business as a separate offense is in
practical effect tantamount to double jeopardy, which is particularly unfair in this
case because the penalties for money laundering are substantially more severe than
those for the underlying offense of operating a gambling business.”).
430 U.S. 188, 193 (1977) (“When a fragmented Court decides a case
and no single rationale explaining the result enjoys the assent of five Justices, the
holding of the Court may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds.”).
See United States v. Gushlak, No. 11 Cr. 1957, 2012 WL 3854854, at
*1 (2d Cir. Sept. 6, 2012) (“We have held that Justice Stevens’s concurrence
controls”) (citing United States v. Quinones, 635 F.3d 590, 599 (2d Cir. 2011)).
Reply Mem. at 6.
that Santos applies retroactively on collateral review,94 Beras still has the burden of
showing that the grounds charged in the Indictment present a merger problem. It is
unlikely that he can make this showing, given that the Second Circuit has already
held, during the course of Beras’s direct appeal, that Beras’s convictions for money
laundering and structuring funds are not multiplicitous.95
In Supplemental Motion Eleven, Beras seeks dismissal of Counts 3-35
of the Indictment on the basis that the trial judge constructively amended the
Indictment by instructing the jury that the phrase “the proceeds of some form of
unlawful activity” in the money laundering statute included “proceeds from
narcotics trafficking.”96 Beras argues that this Motion relates back to the Petition
because “this issue is related to Supplemental Motion [Nine], which was filed
within [the Antiterrorism and Effective Death Penalty Act of 1996 (the
“AEDPA”)]’s one-year statute of limitations, and where Beras questions the
See United States v. Thorn, 659 F.3d 227, 234 (2d Cir. 2011)
(assuming without deciding that Santos applies retroactively on collateral review).
Cf. Wooten v. Cauley, 677 F.3d 303, 309 (6th Cir. 2012) (“[W]e agree with the
Fourth, Fifth, and Eleventh Circuits in holding that Santos is retroactive.”)
See Dinero Express, Inc., 57 Fed. App’x at 461.
Supplemental Motion Eleven at 2.
improper instruction given to the jury on the term ‘proceeds’ . . . .”97 This
argument is unpersuasive because Supplemental Motion Nine was not filed within
one year of the date when Beras’s conviction became final.
Supplemental Motion Thirteen appears to allege that the Indictment
should have been dismissed based on pre-indictment delay by the Government, and
that trial counsel was ineffective for not moving for this dismissal.98 Beras does
not argue that this claim was alleged in the Petition;99 in fact, the Petition states that
trial counsel did move to dismiss the Indictment based on its delay.100 Therefore,
this motion does not relate back to the Petition.
Supplemental Motion Seventeen, styled as a motion under Federal
Rule of Civil Procedure 60(b), seeks reconsideration of the District Court’s
rejection of Beras’s argument that it lacked territorial jurisdiction. This motion
does not fit into any of the categories identified in Rule 60(b) justifying relief from
final judgment, and so I construe it as another motion to amend the Petition. And
Reply Mem. at 40.
See Supplemental Motion Thirteen at 1; 10.
See Reply Mem. at 41 (arguing only that the claim is not procedurally
barred, not that it relates back to the Petition).
See Pet. Mem. at 93 (“On December 12, 1999, counsel for Mr. Beras
moved for the dismissal of the indictment on the ground the [G]overnment had
improperly delayed Mr. Beras [sic] indictment”).
because this proposed amendment is untimely and does not relate back to the
Petition, it will not be considered.
Finally, Beras argues through Supplemental Motion Seven that under
United States v. Gupta,101 his Sixth Amendment right to a public trial and the
public’s First Amendment right of access to criminal trials were violated, on the
grounds that: (1) Judge Kram heard certain aspects of the trial – e.g., Beras’s notguilty plea, a portion of his bail proceedings, and hearings related to the voir dire
process and juror notes – in her robing room, rather than in open court; (2) on one
occasion, Beras’s defense counsel asked that Beras’s wife and young children be
removed from the Court because the children were too young, and might disrupt
the proceedings; and (3) on another occasion, Judge Kram asked that two
spectators leave the court, because it was overcrowded.102 Supplemental Motion
Seven also argues that Beras received constitutionally ineffective assistance of
counsel because his trial lawyer “failed to object when the Court erred by taking a
plea and conducting trial and bail proceedings in the robing room rather than in
open court[.]”103 It is worth noting that Gupta was merely an application of
699 F.3d 682 (2d Cir. 2012).
See Reply Mem. at 8-9.
Supplemental Motion Seven at 1.
precedents that existed at the time when Beras’s conviction became final, meaning
that he is not barred by Teague from presenting his court closure argument on
However, because this ground for relief does not relate back to the
Petition, the claim is time-barred. I note, though, that Supplemental Motion Seven
appears to have significantly more merit than any other ground alleged in the
Petition or Supplemental Motions.104
Category Three: Motions Not Cognizable on Section 2255
Supplemental Motion One falls into the third category. It is styled as
a “Supplemental Pleading to [Beras’s] Petition Under 28 U.S.C. § 2255[,]” but it
appears to be a motion seeking reconsideration of the District Court’s dismissal of
Compare United States v. Alcantara, 396 F.3d 189, 201 (2d Cir. 2005)
(vacating plea because plea proceedings were held in judge’s robing room without
findings on the record of necessity, in violation of public’s First Amendment right
of access to judicial proceedings and the defendant’s Sixth Amendment right to a
public trial), with United States v. Gomez, – F.3d –, No. 10 Cr. 1095, 2013 WL
149893, at *4-5 (2d Cir. Jan. 15, 2013) (holding that exclusion of defendant’s
family from voir dire proceedings did not provide a basis for reversing conviction,
because lack of findings on exclusion was invited by defendant, and exclusion did
not “affect the fairness, integrity, or public reputation of judicial proceedings.”).
Cf. Morales v. United States, 635 F.3d 39, 45 (2d Cir. 2011) (reviewing denial of
petition under Section 2255, and holding that trial counsel’s failure to object to
court closure was not unreasonable).
Beras’s motion for a new trial under Rule 33.105 Alternatively, Supplemental
Motion One may be a motion seeking leave to appeal the denial of Beras’s Rule 33
Motion.106 In either case, this is not a motion cognizable under Section 2255,
which must relate to a petitioner’s attack on his sentence.107 And this Court is
without jurisdiction to entertain on the merits either a Rule 33 motion, or a motion
for reconsideration, because both motions are untimely.108 Moreover, even if
Supplemental Motion One were properly a motion under Section 2255, it would be
time-barred, because it was filed late and does not relate back to the Petition.
See Supplemental Motion One at 9 (“The Petitioner prays that this
Honorable Court dismiss the Indictment or grant a new trial because the district
court denied to Petitioner the basic fairness that requires a number of procedural
safeguards for the citizen.”).
See id. (“Defendant wants to be able to appeal that decision [denying
his Rule 33 Motion], which is a right that the Court should give to Defendant.”).
See 28 U.S.C. § 2255(a). See also United States v. Gonzalez, 291 Fed.
App’x 392, 394 (2d Cir. 2008) (construing motion styled as Section 2255 motion
as Rule 33 motion because it did not hew to the categories established by Section
See United States v. Lussier, 219 F.3d 217, 220 (2d Cir. 2000) (stating
that “[T]he time limits of Rule 33 are jurisdictional.”) (citation omitted); Cyrus v.
City of New York, 450 Fed. App’x 24, 25 (2d Cir. 2011) (“An untimely motion for
reconsideration is treated as a Rule 60(b) motion [for relief from a judgment or
order]. It is well settled that [a]n appeal from an order denying a Rule 60(b)
motion brings up for review only the denial of the motion and not the merits of the
underlying judgment for errors that could have been asserted on direct appeal.”)
(quotation marks and citations omitted) (alterations in original)).
Moreover, even if it were timely and cognizable on habeas review, because it was
already considered and rejected by the Second Circuit in the course of Beras’s
direct appeal, it would be barred by the mandate rule. Supplemental Motion One is
therefore dismissed for lack of jurisdiction.
Section 2255 permits a convicted person held in federal custody to
petition the sentencing court to vacate, set aside, or correct a sentence. Collateral
relief is available under Section 2255 only if: (1) the sentence was imposed in
violation of the Constitution or laws of the United States; (2) the sentencing court
was without jurisdiction to impose a sentence; (3) the sentence was in excess of the
maximum authorized by law; or (4) the sentence is otherwise subject to collateral
Ineffective Assistance of Counsel
A petitioner seeking to attack his sentence based on ineffective
assistance of counsel must: (1) show that counsel’s performance fell below “an
See 28 U.S.C. § 2255. See also Cuoco v. United States, 208 F.3d 27,
29 (2d Cir. 2000) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)) (stating
that collateral relief under Section 2255 is permitted “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.’”).
objective standard of reasonableness” under “prevailing professional norms,” and
(2) “affirmatively prove prejudice,” namely, demonstrate that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”110
When analyzing a claim that counsel’s performance did not meet
constitutional standards, “judicial scrutiny of counsel’s performance must be
highly deferential.”111 The court “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.”112 “In
assessing the attorney’s performance, a reviewing court must judge his conduct on
the basis of the facts of the particular case, ‘viewed as of the time of counsel’s
conduct,’ and may not use hindsight to second-guess his strategy choices.”113
Constitutionally inadequate performance may be established if a
habeas petitioner “shows that counsel omitted significant and obvious issues while
pursuing issues that were clearly and significantly weaker.”114 Nonetheless, “[t]he
Strickland v. Washington, 466 U.S. 668, 693–94 (1984).
Id. at 689.
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (quoting
Stickland, 466 U.S. at 690).
Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000).
failure to include a meritless argument does not fall outside the wide range of
professionally competent assistance to which [a] [p]etitioner [i]s entitled.”115
And even if an attorney’s performance was objectively unreasonable,
a petitioner must still prove that, as a result, he was prejudiced.116 To do so,
“defendant must show that there is 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 sufficient to undermine confidence in the
outcome.”117 In assessing prejudice, courts review the record to determine the
impact of the alleged ineffectiveness within the context of the entire trial.118 In
other words, the “question is whether there is a reasonable probability that, absent
the errors, the fact finder would have had a reasonable doubt respecting guilt.”119
As explained by the Supreme Court, the order of analysis of the two
Strickland prongs is at the discretion of the court:
Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) (quotation marks
and citations omitted).
See Stickland, 466 U.S. at 687.
Id. at 694.
See Berghuis v. Thompkins, 130 S. Ct. 2250, 2264 (2010) (“In
assessing prejudice, courts ‘must consider the totality of the evidence before the
judge or jury.’”) (quoting Strickland, 466 U.S. at 695).
Strickland, 466 U.S. at 694.
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
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.
Courts should strive to ensure that ineffectiveness claims not
become so burdensome to defense counsel that the entire criminal
justice system suffers as a result.120
Amendments to Habeas Petitions
In Mayle v. Felix,121 the United States Supreme Court addressed the
intersection of Federal Rule of Civil Procedure 15 (“Rule 15”) and the one-year
limitation period imposed on federal habeas petitioners by the AEDPA. In Mayle,
the question presented was whether an amended habeas petition, filed after the
AEDPA’s one-year limitation period and targeting the defendant’s pretrial
Id. at 697, 693 (“Even if a defendant shows that particular errors of
counsel were unreasonable, . . . the defendant must show that they actually had an
adverse effect on the defense. . . [and] there is no reason . . . to address both
components of the inquiry if the defendant makes an insufficient showing on
one.”). Accord Farrington v. Senkowski, 214 F.3d 237, 242 (2d Cir. 2000) (stating
that courts need not resolve the Strickland performance prong if the prejudice
prong is more readily resolved).
545 U.S. 644 (2005).
statements, related back to the date of the defendant’s original timely filed habeas
petition, which targeted videotaped witness testimony.122 The Supreme Court
answered this question in the negative, holding that an amended habeas petition
“does not relate back (and thereby escape AEDPA’s one-year time limit) when it
asserts a new ground for relief supported by facts that differ in both time and type
from those the original pleading set forth.”123 The Supreme Court explained as
This case turns on the meaning of Federal Rule of Civil Procedure
15(c)(2)’s relation-back provision in the context of federal habeas
proceedings and AEDPA’s one-year statute of limitations. Rule
15(c)(2) . . . provides that pleading amendments relate back to the
date of the original pleading when the claim asserted in the
amended plea “arose out of the conduct, transaction, or occurrence
set forth or attempted to be set forth in the original pleading.” The
key words are “conduct, transaction, or occurrence.” The Ninth
Circuit . . . defines those words to allow relation back of a claim
first asserted in an amended petition, so long as the new claim
stems from the habeas petitioner’s trial, conviction, or sentence.
Under that comprehensive definition, virtually any new claim
introduced in an amended petition will relate back, for federal
habeas claims, by their very nature, challenge the constitutionality
of a conviction or sentence, and commonly attack proceedings
See id. at 649.
Id. at 656-67. Rule 15(c)(1)(B) was Rule 15(c)(2) prior to the
December 1, 2007 Amendment to the Federal Rules of Civil Procedure. Rule
15(c)(1)(B) states: “An amendment to a pleading relates back to the date of the
Rejecting the approach taken by the Ninth Circuit, the Court stated that “[s]o long
as the original and amended petitions state claims that are tied to a common core of
operative facts, relation back will be in order.”125 The relation back doctrine
described in Mayle has been applied repeatedly by courts in this Circuit.126 Finally,
it is worth nothing that a claim may be time-barred even if it would not be barred
by the claim preclusion doctrines discussed below.127
Two separate rules of claim preclusion apply to applications for
original pleading when . . . (B) the amendment asserts a claim or defense that arose
out of the conduct, transaction, or occurrence set out . . . in the original pleading[.]”
This language is nearly identical to that of former Rule 15(c)(2). Thus, the two
citations are interchangeable.
Mayle, 545 U.S. at 664.
See, e.g., Gibson v. Artus, 407 Fed. App’x 517, 519 (2d Cir. 2010)
(“In Mayle v. Felix, 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.”); Hoffenberg v.
United States, 333 Fed. App’x 625 (2d Cir. 2009); Martin v. United States, No.
08–CV–452, 2011 WL 5507423, at *5 (E.D.N.Y. Nov. 9, 2011); Ermichine v.
United States, No. 06 Civ. 10208, 2011 WL 1842951, at *11 (S.D.N.Y. May 12,
2011); Freeman v. United States, No. 09 Civ. 4087, 2010 WL 4026067, at *2
(S.D.N.Y. Oct. 14, 2010).
See Veal v. United States, 334 Fed. App’x 402 (2d Cir. 2009)
(affirming district court’s holding that amendment to section 2255 petition alleging
ineffective assistance of counsel was time barred).
collateral relief under Section 2255.128 The first of these rules is termed the
“mandate rule.” It bars re-litigation of issues that were resolved, either explicitly
or impliedly, on direct appeal.129 The second of these rules bars petitioners from
bringing claims that could have been brought on direct appeal, unless the petitioner
can show cause and prejudice.130
In Massaro v. United States, the Supreme Court held that “failure to
raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the
claim from being brought in a later, appropriate proceeding under § 2255.”131
Subsequently, in Yick Man Mui v. United States, the Second Circuit extended
Massaro to allow habeas petitioners to bring Strickland claims that could have
been brought on direct appeal even if they had previously brought separate
Strickland claims – i.e. claims with distinct factual predicates – on direct appeal.132
After Yick Man Mui, “the only barrier to raising ineffective assistance claims in a
Section 2255 proceeding after raising such claims on direct appeal is the mandate
rule, i.e., strategies, actions, or inactions of counsel that gave rise to an ineffective
See Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010).
See id. at 53-54 (citations omitted).
See id. at 54 (citations omitted).
538 U.S. 500, 509 (2003).
See Yick Man Mui, 614 F.3d at 56-57.
assistance claim adjudicated on the merits on direct appeal may not be the basis for
another ineffective assistance claim in a Section 2255 proceeding.”133
Many of the grounds for relief alleged in the Petition are precluded
because they either could have been brought, or were brought and rejected, on
direct appeal. I will first address Beras’s precluded claims, and then consider the
remaining claims on the merits.
Ineffective Assistance of Counsel Claims Barred by the
The holding in Yick Man Mui does not expressly answer the question
of whether the mandate rule bars a petitioner from bringing an ineffective
assistance of counsel claim on collateral review, when the petition brought a claim
alleging the same underlying facts during direct review, which was rejected on the
merits, but that did not allege ineffective assistance of counsel. Yick Man Mui cites
with approval Riascos-Prado v. United States,134 which holds that a habeas
Id. at 57. It is an open question whether the mandate rule would allow
reconsideration of a Strickland claim alleging that the cumulative effect of multiple
attorney errors affected the verdict, when such claim was rejected on direct appeal
for lack of prejudice to the defendant. See id. at 57 n.3.
66 F.3d 30 (2d Cir. 1995). Accord Yick Man Mui, 614 F.3d at 53.
petitioner is barred from presenting an ineffective assistance counsel claim on
collateral review that is “simply a slightly altered rearticulation of a claim that was
rejected on  direct appeal.”135 This result makes logical sense: a claim that was
raised and rejected on the merits is meritless, and an attorney’s “‘[f]ailure to make
a meritless argument does not amount to ineffective assistance.’”136 Therefore,
purporting to consider the merits of repackaged claims that were rejected on the
merits during direct review would be a waste of scarce judicial resources.
The following grounds for Beras’s present ineffective assistance of
counsel claim present slightly altered rearticulations of claims that were rejected on
the merits during Beras’s direct appeal, and are therefore barred by the mandate
rule. First, Beras’s argument that counsel’s failure to allege selective prosecution
constitutes grounds for relief was considered and rejected on the merits by the
Second Circuit.137 Beras argues that this claim is not barred, because he has
received “new evidence” that the United States Government “focused on the
Dominican Republic as a country to which the proceeds of illegal narcotics
trafficking were sent through money laundering, and that the Government also
Riascos-Prado, 66 F.3d at 34.
United States v. Noble, 363 Fed. App’x 771, 773 (2d Cir. 2010)
(quoting United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999)).
See Beras, 131 Fed. App’x 313.
focused in their investigation on Colombia as a drug source country.”138 Besides
being discoverable earlier, this evidence does not show that “(1) others, similarly
situated to [Beras] and his company, Dinero Express, Inc., had not been prosecuted
for money laundering; or (2) the Government’s decision to prosecute him was
based on an impermissible consideration such as race.”139 The claim is therefore
barred by the mandate rule.
Second, Beras’s argument that counsel’s failure to move for severance
is also barred by the mandate rule, because the Second Circuit rejected it on the
merits.140 Beras’s contention that he should be allowed to relitigate the issue
because the Second Circuit did not consider certain of his non-record-based
ineffective assistance claims on direct appeal is unavailing.141
And third, Beras argues that his trial counsel was constitutionally
defective for failing to introduce at trial purported exculpatory statements by Maria
Mendoza, one of his co-defendants, and Hendrix Tavares, a cooperating witness;
and that counsel should have objected to statements made by Tavares at the trial as
Reply Mem. at 13.
Beras, 131 Fed. App’x at 314.
See Dinero Express, Inc., 57 Fed. App’x at 459-60.
See Reply Mem. at 14.
inconsistent with his plea allocution.142 These grounds for relief were considered
and rejected by the Second Circuit during Beras’s direct appeal, and are therefore
barred by the mandate rule.143
Other Precluded Claims
Claims Barred by the Mandate Rule
The following three claims alleged in the Petition are precluded
because they were brought and rejected during the course of Beras’s direct appeal.
First, Beras’s claim that his Sixth Amendment right to a jury trial was violated
because the trial court impermissibly found several enhancements to his base
offense level under the Sentencing Guidelines by a preponderance of the evidence,
in violation of Apprendi and its progeny.144
Second, Beras’s claim that his Confrontation Clause rights were
See Pet. Mem. at 25-27.
See Beras, 152 Fed. App’x at 51.
See id. at 52 (“Beras asserts that he is entitled to a new sentencing in
light of the Supreme Court’s decision in United States v. Booker . . . . This
argument is foreclosed by our decision in Guzman v. United States, holding that
‘Booker is not retroactive, i.e., it does not apply to cases . . . where the defendant’s
conviction was final as of January 12, 2005, the date that Booker was issued[.]’”)
(quoting 404 F.3d 139, 141 (2d Cir. 2005) (citations omitted)). See also Dinero
Express, Inc., 57 Fed. App’x at 462. (“We have carefully reviewed the record and
conclude that the District Court’s 17–level enhancement was not clearly
violated because a confidential informant did not testify despite the introduction of
tape recordings of conversations involving Beras and the informant, as well as the
introduction of statements made by a cooperating witness through a law
enforcement agent’s testimony.145 The Second Circuit addressed a very slight
variation on this argument during direct review, and held that because “the tape
recordings of the informant’s statements were admitted solely to place Beras’ own
recorded statements in context and not for the truth of the matters asserted, the
informant’s credibility was simply irrelevant.”146 Beras argues that the Court
should nonetheless reconsider this argument, and retroactively apply Crawford v.
Washington to his case.147 This argument is unavailing: Crawford is not retroactive
on collateral review,148 and, in any event, it does not help Beras, because the
recordings were not introduced to prove the truth of the matters asserted.149
And third, Beras’s claim that the limiting instructions given by the
See Pet. Mem. at 44-56.
Dinero Express, Inc., 57 Fed. App’x at 460.
541 U.S. 36 (2004). See Reply Mem. at 22.
See Whorton v. Bockting, 549 U.S. 406, 421 (2007) (“In sum, we hold
that Crawford announced a ‘new rule’ of criminal procedure and that this rule does
not fall within the Teague exception for watershed rules.”).
See Crawford, 541 U.S. at 59 n.9 (“The [Confrontation] Clause 
does not bar the use of testimonial statements for purposes other than establishing
the truth of the matter asserted.”).
trial judge did not cure the prejudice caused by certain statements made by the
Government and counsel for his co-defendants during the openings and
summations was likewise considered and rejected by the Second Circuit during
direct review.150 Beras argues that this claim is not barred, because “[t]he instant
argument is not based on a mistrial motion, it is based on what the Framers of this
Country called [the] Confrontation Clause.”151 Because the scope of the mandate
rule is not defined by the motion that brought an issue before the court, but rather
on the issue actually (or implicitly) decided, this argument fails.
Claims Precluded Because They Could Have Been
Brought on Direct Review
The following two claims, which were not asserted prior to the
Petition, are precluded because they could have been brought on direct appeal, and
Beras has not demonstrated cause and prejudice sufficient to excuse his procedural
default. First, Beras challenges his conviction on the basis that defense counsel
was not permitted to examine a law enforcement witness regarding a cooperating
Dinero Express, Inc., 57 Fed. App’x at 460-61 (“In any event, the
District Court cured any risk of prejudice by instructing the jury of the
[G]overnment’s burden of proving each defendant’s guilt beyond a reasonable
doubt, and reminding the fact-finders of their duty to evaluate the evidence against
each defendant independently.”).
Reply Mem. at 23.
witness’s criminal history.152 Specifically, Beras’s strategy at trial was to pin the
money laundering conspiracy on the cooperating witness, which Beras’s counsel
attempted to do by eliciting testimony about the witness’s prior criminal history
from a testifying law enforcement witness.153 The trial judge sustained the
Government’s objections to this line of questioning,154 and Beras argues that he
was “thus denied the right of effective cross-examination . . . .”155
Beras argues that cause exists for his default of this claim, on the basis
that his appellate counsel’s failure to raise it on direct review constituted
ineffective of counsel, providing cause for the default.156 Because Beras raises this
explanation for his default for the first time in his reply brief, it is waived.157
See Pet. Mem. at 69-74.
See id. at 72-73.
See id. at 72.
Id. at 74.
See Reply Mem. at 25 (“Beras’s claim was not exhausted in the court
of appeals because his appellant counsel was ineffective. . . . Beras has a
Constitutional right to counsel on direct appeal . . . and his trial lawyer and
appellate counsel failed to raise this issue, either in the district court or the
appellate court.”) (citations omitted).
See, e.g., Broder v. Cablevision Sys. Corp., 418 F.3d 187, 202 (2d Cir.
2005) (arguments first raised in reply brief not properly before court). Moreover,
to the extent that Beras now raises an ineffective assistance of appellate counsel
claim, this claim does not relate back to a transaction, event, or occurrence alleged
in the Petition. Accordingly, it is time-barred.
Moreover, on the merits, ineffective assistance of counsel does not provide cause
for Beras’s default. Beras sat through the entire trial, and had ample opportunities
to make this record-based claim during his direct appeal. He cannot point to an
objective factor, external to him, that prevented his appellate counsel from raising
this argument on direct appeal.158 Nor can Beras show prejudice. “Failure to raise
meritless objections is not ineffective lawyering; it is the very opposite.”159 The
objections to trial counsel’s questions were properly sustained, as he was
attempting to elicit hearsay testimony from the law enforcement witness about
another witnesses’s past criminal conduct.160 Therefore, the claim is barred.
Second, Beras claims that his right to a fair trial was violated when
certain information was shared by his attorney with defense counsel for
co-defendants, causing his co-defendants to present a defense “antagonistic” to
Beras’s interests.161 Specifically, Beras’s argument appears to be that counsel for
Cf. Marone v. United States, 10 F.3d 65, 67 (2d Cir. 1993).
Harrington v. United States, 689 F.3d 124, 130 (2d Cir. 2012)
(quotation marks and citation omitted).
See United States v. Jones, Nos. 96-1438, 96-1451, 1997 WL 722938,
at *6-7 (2d Cir. Nov. 19, 1997) (in analogous circumstances, holding that “the
district court did not abuse its discretion in precluding certain Rule 404(b) and
Rule 806 evidence proffered by Krantz, and the preclusion of that evidence did not
constitute a violation of Krantz’s right to present a defense”).
See Pet. Mem. at 102-03.
his co-defendants knew that he claimed to be innocent of the charged offenses, but
nonetheless “told the jury, point blank, that [he] [was] guilty of the charges[,]”
based on information that his trial counsel allegedly shared with them.162 Beras did
not attempt to excuse the default of this claim until arguing that it was caused by
ineffective assistance of counsel in his reply brief. As with the claim discussed
above, this untimely excuse is therefore waived, and, to the extent it rests on
ineffective assistance of appellate counsel, it is also time-barred. Moreover, the
Second Circuit held during Beras’s direct appeal that his co-defendants’ defenses
did not prejudice him,163 meaning that counsel was not ineffective for failing to
object or raise this argument on appeal. Accordingly, this claim, too, is barred.
The Remaining Grounds for Relief Are Without Merit
Beras’s remaining claim is for ineffective assistance of counsel, on the
grounds that his lawyer failed to: (1) investigate and prepare adequately for trial;
(2) properly advise Beras to plead guilty; (3) object, on the basis of the federal
anti-gratuity statute, to the Government’s use of recorded conversations and
testimony of a cooperating witness; (4) permit Beras to testify on his own behalf,
as well as call various expert witnesses to testify; (5) object to allegedly bolstering
Reply Mem. at 27.
See Dinero Express, Inc., 57 Fed. App’x at 459-60.
statements made during the Government’s summation; and (6) argue for
suppression of wiretap evidence that was not properly sealed. I conclude that all of
these grounds for relief are meritless.
The Government’s Summation Statements Did Not Include
Improper Bolstering, and Therefore Did Not Amount to
This ground for Beras’s ineffective assistance claim reiterates the
argument that Beras made in his pro se petition for a rehearing, namely that certain
statements in the Government’s summation, such as “the [G]overnment submits to
you that Mr. Tavare[s] was being completely truthful[,]”164 constituted improper
vouching.165 Specifically, in the Petition, “Beras claims that his counsel was
ineffective for failing to object to the prosecutor[’s] improper remarks.”166
Prosecutorial statements “in which the prosecutor submit[s] certain
credibility conclusions for jury consideration  do not qualify as vouching.”167
Therefore, there is no need to consider whether Beras’s counsel’s performance was
defective — this ground for relief fails because Beras was manifestly not
Tr. at 1605.
See Reply Mem. at 16 (citations omitted).
Id. at 17.
United States v. Newton, 369 F.3d 659, 681 (2d Cir. 2004).
Counsel’s Failure to Object on the Basis of the Federal
Anti-Gratuity Statute Does Not Constitute Ineffective
Assistance of Counsel
Beras argues that his trial counsel was constitutionally ineffective for
failing to object to Tavares’s testimony and to the Government’s use of
conversations recorded with the consent of a confidential informant.169
Specifically, Beras alleges that his counsel should have argued that the
Government violated the federal anti-gratuity statute, because these witnesses
received pecuniary benefits and/or offers of leniency from the Government for
The federal anti-gratuity statute states in part that: “[w]hoever …
otherwise than as provided by law for the proper discharge of official duty . . .
directly or indirectly, gives, offers or promises anything of value to any person, for
or because of the testimony under oath or affirmation given or to be given by such
person as a witness upon a trial” is guilty of a crime.171 The Second Circuit has
See Farrington, 214 F.3d at 242.
See Pet. Mem. at 62-67.
See Reply Mem. at 28.
18 U.S.C. § 201(c)(2).
unambiguously held that “18 U.S.C. § 201(c)(2) does not apply to the United
States or to any Assistant United States Attorney acting within his or her official
capacity[,]”172 for example by conferring a benefit upon a witness in exchange for
her cooperation. Contrary to the argument advanced in Beras’s reply brief,173 this
rule applies regardless of whether the benefit is pecuniary or an offer of
leniency.174 Beras was therefore not prejudiced by counsel’s failure to make this
argument, and this grounds for relief must be rejected.
Trial Counsel’s Alleged Failure to Properly Advise Beras to
Plead Guilty Does Not Constitute Ineffective Assistance of
Beras also claims that he received ineffective assistance due to trial
counsel’s failure to “properly advise” him to plead guilty.175 To be accurate, Beras
does not contend that his trial counsel advised him not to plead guilty.176 Instead,
United States v. Stephenson, 183 F.3d 110, 118 (2d Cir. 1999).
See Reply Mem. at 28.
See United States v. Cirineo, 31 Fed. App’x 760, 761 (2d Cir. 2002)
(rejecting defendant’s argument “that the district court erred in failing to suppress
the testimony of informants who were paid and promised leniency in exchange for
their testimony, in violation of the federal anti-gratuity statute, 18 U.S.C. §
201(c)(2)[,]” on the grounds that the anti-gratuity statute “‘does not apply to the
United States or to any Assistant United States Attorney acting within his or her
official capacity’”) (quoting Stephenson, 183 F.3d at 118)).
Pet. Mem. at 30.
See id. at 30-32.
Beras argues that he received ineffective assistance because “counsel failed to
solidify a plea of guilty [which] Petitioner offered to accept[;]” i.e., secure a plea
deal on terms that were amenable to Beras.177
According to the Petition, at some point prior to trial, the Government
offered the defendants a global plea deal of five years’ imprisonment, but this offer
was rescinded when Beras’s co-defendants refused to accept it.178 The Petition
further alleges that after the global plea offer was rescinded, Beras informed his
counsel that he was willing to plead to ten years, and claims that, because counsel
was unable to secure such a plea from the Government, he was forced to stand
trial.179 However, in Supplemental Motion Twelve, Beras alleges that the ten-year
plea was offered by the Government, and that it was rescinded because his codefendant would not take it.180
Id. at 31.
See id. at 31 (“Petitioner, in the office of trial counsel present with
attorney for  Tavare[s] presented a term of ten years imprisonment on a plea of
guilty. This in exchange to avoid Mr. Tavare[s]’s trial testimony. . . . [C]ounsel
failed to solidify a plea of guilty  [which] Petitioner offered to accept, thus
compelling Petitioner to trial by jury on all counts of the [I]ndictment.”).
See Supplemental Motion Twelve at 10 (“Another defense avenue not
open to Petitioner was to accept a plea agreement of Six (6) months of
incarceration; seven (7) years or ten (10) years incarceration, proposed by the
Government, due to his co-defendant Maria Mendoza refusing to pled guilty, thus
The Petition also alleges that, at some point — presumably before the
global plea offer — Beras chose not to accept a plea offer for six to twenty-four
months imprisonment, because his counsel advised him that Government intended
to produce a tape-recorded conversation in which Beras allegedly referred to
cocaine, and Beras was certain that he was not the speaker.181 However, the
Petition also refers to six to twenty-four months of imprisonment as the estimation
of Beras’s sentence that Beras’s trial counsel gave at an interview shortly after
being retained.182 Due to this fact, and its disparity with the global plea offer, I do
not credit Beras’s unsupported allegation that he received a six to twenty four
month plea offer.
In sum, Beras’s argument is that his counsel was constitutionally
ineffective because he did not succeed in convincing Beras to plead guilty, or in
[rejecting] the government’s collective plea offer.”).
See Pet. Mem. at 8 (“In considering a plea of guilty, counsel’s
advisement failed to properly apprise thereof. Upon prosecution offering less than
five years imprisonment due to Petitioner’s alleged presence and statement
referring to ‘cocaine’ during recorded discussion. Notifying counsel that the voice
was not Petitioner’s, not further discussion for a plea of guilty incurred. This plea
offer being from 6-24 months imprisonment.”). Cf. Reply Mem. at 29 (“Defense
counsel communicated Beras of several pleas offered by the [G]overnment, (6 to
24 months of imprisonment. . . .”).
See Pet. Mem. at 30 (“Trial counsel initially advised Petitioner that a
term of imprisonment thereof 6 to 24 months would plausibly be imposed. This
occurring on an interview with counsel upon being retained.”).
securing a guilty plea on Beras’s terms.183 In the context of pleas, Strickland’s
performance prong “requires a defendant to show that counsel’s representation fell
below an objective standard of reasonableness,” while its prejudice prong requires
that the defendant “show the outcome of the plea process would have been
different with competent advice[,]”184 i.e., that “but for the ineffective advice of
counsel there is a reasonable probability that the plea offer would have been
presented to the court[,] . . . that the court would have accepted its terms, and that
the conviction or sentence, or both, under the offer’s terms would have been less
severe than under the judgment and sentence that in fact were imposed.”185 Beras
cannot show that his trial counsel’s performance was unreasonable, and in any
event, he did not suffer any prejudice stemming from counsel’s performance.
As to the performance prong, the evidence shows that Beras’s counsel
diligently kept Beras apprised of the Government’s case, and attempted to get him
to accept a plea, but that Beras refused. This conclusion is informed by the record
See Reply Mem. at 29 (“Instead of informing Beras on the merits of
the case, counsel advised Beras that he should have pled guilty based on the
[G]overnment’s erroneous believe that Beras has stated the word ‘cocaine’ during
a recorded conversation, and that Beras had to convince his codefendants to plea
Lafler, 132 S.Ct. at 1384 (citations and quotations omitted).
Id. at 1385.
of the professional malpractice action that Beras brought in this District against his
trial counsel (the “Malpractice Action”).186 Notably, Beras attached several
documents from the docket sheet of the Malpractice Action to Supplemental
Motion Twelve. I hereby take judicial notice of the docket sheet and record of the
Malpractice Action, to which Beras was a party.187
In the Malpractice Action Beras alleged, among other things, that
counsel was defective for failing to explore the “‘avenue’” of a plea agreement.188
The Malpractice Action was dismissed when the motion for summary judgment of
Beras’s trial counsel in the current case was granted by the late Judge Charles L.
Brieant, Jr., who adopted the Report and Recommendation of Magistrate Judge
Lisa M. Smith. Subsequently, “Beras appealed the dismissal of his complaint, and
on June 20, 2006, [the Second Circuit] dismissed his appeal because it ‘lack[ed] an
See Beras v. Ross, No. 03 Civ. 9026, initiated on November 14, 2003.
See Fed. R. Evid. 201, 1005. See also Shuttlesworth v. City of
Birmingham, Alabama, 394 U.S. 147, 157 (1969) (stating “we may properly take
judicial notice of the record in that [prior] litigation between the same parties who
are now before us”); Anderson v. Rochester-Genesee Reg’l Transp. Auth., 337 F.3d
201, 205 n.4 (2d Cir. 2003) (taking judicial notice of district court opinion)
(collecting cases) (citations omitted).
2/3/05 Report and Recommendation Regarding Ross’s Motion for
Summary Judgment (“Report and Recommendation”), No. 03 Civ. 9026, Docket
No. 43, at 2 (quoting Complaint ¶ 18).
arguable basis in fact or law.’”189
The order dismissing the Malpractice Action was predicated on the
rule that, under New York law, “‘a plaintiff must allege his innocence or a
colorable claim of innocence of the underlying offense’” in order to state a
malpractice claim arising out of legal representation in a criminal case.190
Therefore, the Second Circuit’s mandate in affirming the dismissal of the
Malpractice Action does not extinguish the duplicative claims that Beras asserts in
the Petition.191 Nevertheless, the record developed in the Malpractice Action is
highly probative with respect to Beras’s instant claim.
Regarding Beras’s allegation that counsel did not explore the avenue
of a plea agreement, the Report and Recommendation states that:
Beras v. Carvlin, 313 Fed. App’x 353, 354 (2d Cir. 2008) (quoting
June 20, 2006 Second Circuit Summary Order Dismissing Appeal of the
Malpractice Action). In Beras v. Carvlin, Beras claimed that his co-defendants’
counsel committed malpractice. It was dismissed by the district court on the
grounds of res judicata, and this disposition was affirmed by the Second Circuit.
See id. at 355.
Report and Recommendation at 12 (quoting Carmel v. Lunney, 70
N.Y.2d 169, 173 (1987)).
Cf. Purdy v. Zeldes, 337 F.3d 253, 256 (2d Cir. 2003) (holding that
criminal defendant who lost on the merits a Strickland claim brought under Section
2255, and alleging deficient performance of counsel in connection with the plea
bargaining process, was collaterally estopped from subsequently bringing a
malpractice claim alleging the same facts).
Defendant [Beras’s trial counsel] met with Plaintiff a number of
times in an effort to convince him to plead guilty to the charges in
the Indictment. Defendant also arranged for Attorney William
Randolph, corporate counsel for Dinero Express, and Attorney
Steven Brounstein, the attorney representing Tavares, to meet with
Plaintiff to relay the enormity of the evidence against him, and the
extreme likelihood that proceeding to trial would result in his
conviction. However, convinced of his innocence, Plaintiff
declined to agree to a plea offer and decided to take his chances at
This summary of the facts is supported by a deposition that Beras
gave in connection with the Malpractice Action, in which Beras testified that he
was not interested in taking a plea because he was convinced he would be
acquitted.193 It is also supported by the affidavit of Robert C. Gottlieb, counsel for
Beras’s co-defendant Maria Mendoza, which states that Beras’s trial counsel “kept
his client apprised of the strength of the Government’s case against him and of
potential plea arrangements throughout the course of the Criminal Action. The
claim against [Beras’s trial counsel] herein of . . . failure to apprise Mr. Beras of
possible opportunities to take a guilty plea and avoid the sentence he now faces
[is], to my knowledge, entirely unfounded.”194
Report and Recommendation at 6 (citations omitted).
See id. (citing Deposition of Roberto Beras (“Beras Dep.”) at 255).
8/19/04 Affidavit of Robert C. Gottlieb (“Gottleib Aff.”) ¶ 13, Ex. 7 to
Supplemental Motion Twelve.
Finally, the Report and Recommendation’s statement of facts
regarding counsel’s performance is supported by the affidavit and billing records
submitted by Beras’s trial counsel. Through this affidavit, Beras’s counsel states
that: “I met with Beras on myriad occasions to attempt to impress upon him the
magnitude of the government’s evidence against him, and emphasize my belief that
he should plead guilty[.]”195 This statement is substantiated by counsel’s billing
records, which document numerous attempts to convince Beras to plead guilty.196
These attempts met with no success, likely because Beras harbored a highly
10/19/04 Affidavit of Charles A. Ross, Esq., No. 03 Civ. 9026,
Docket No. 29, ¶ 24.
See, e.g., 6/29/01 Time Reports at 2 (“Recommended plea to client
who said if govt. offered 3 months he would not take it. Gave copy of guidelines,
went over handwriting, informants and tapes.”); id. at 9 (“Met with client; advised
him that after trial his guideline is 360-life. Told him he had no chance of winning
the case. Review devastating evidence linking him [to money laundering] . . .
proof. Review proposed plea agreement. Gave client a copy of the plea agreement.
Advised him unequivocally to accept it.”); id. at 10 (“Met with Beras; again
advised him to take plea; he refuses to consider a sentence at 108 or 121 months.”);
id. at 14 (“Office meeting with client . . . wished to go forward with preparation for
hearing and trial despite my request that he reconsider and think about a plea.”); id.
at 17 (“Meeting with Beras; advised him all over again that he had no chance to
win the case; that the tape was coming into evidence; that Aschkenasy’s mistake
with the scotch tape totally damaged his credibility; that the company has no
defense and that he should in no uncertain terms plead guilty. Beras said if they
offered him 18 months he might consider it otherwise he was going to trial.”).
unrealistic view of the probability of his prevailing at trial.197
In sum, counsel diligently attempted to convince Beras to plead guilty,
but failed. The instant Strickland claim therefore hangs on a very thin reed. Beras
alleges that, on one occasion, counsel misstated the evidence in attempting to
convince Beras to plead guilty, and argues that counsel should have gone about
convincing Beras to plead guilty in a different fashion.198 However, as just
discussed, the record of the Malpractice Action reveals that counsel made
numerous attempts to convince Beras to plead guilty. Therefore, even if Beras is
correct that counsel misstated the evidence during one of those attempts, this
allegation does not support the instant Strickland claim.
See Gottlieb Aff. ¶ 12 (“During the trial, which I participated in as
counsel for Ms. Mendoza, I recall the testimony and evidence presented against
Mr. Beras was substantial. Among other things, there were tapes of him discussing
the money laundering at issue with others, which made clear that drug money was
involved, there were ledgers regarding the money laundering in his handwriting,
and there was testimony from the Dinero Express bookkeeper explaining how the
money was laundered. In spite of all this evidence and testimony at trial presented
against him, however, Mr. Beras gave me the impression that he was almost
delusional about how the trial was going—often expressing pleasure at how things
were proceeding on days where it was clear that he was being directly implicated
in criminal activity.”).
See Reply Mem. at 29 (“By misleading Beras as to the word cocaine
being mentioned by him on the recorded conversation, and by placing Beras in the
difficult situation of convincing his codefedants to plea guilty, and coercing Beras
to do so, defense counsel’s advise [sic] fell outside the realm of professional
Beras does not allege the facts that normally accompany a meritorious
Strickland claim relating to plea negotiations. He does not allege that counsel
failed to apprise him of the strength of the Government’s case or communicate plea
offers made by the Government. Nor does he allege that counsel gave him
incorrect legal advice. Moreover, even if counsel miscalculated the Government’s
willingness to accept a plea, “miscalculations regarding the Government’s
willingness to negotiate a more favorable deal or restore its initial plea offer
represent, at best, strategic errors that are ‘virtually unchallengeable[.]’”199
The “ultimate decision whether to plead guilty must be made by the
defendant,” and therefore “a lawyer must take care not to coerce a client into either
accepting or rejecting a plea offer.”200 It follows that counsel’s failure to persuade
Beras to plead guilty cannot, without more, constitute unreasonable performance
under Strickland. The choice of whether to plead guilty was Beras’s to make. The
fact that he now regrets the choice that he made does not mean that his counsel
Lake v. United States, 465 Fed. App’x 33, 35 (2d Cir. 2012) (quoting
Strickland, 466 U.S. at 690) (affirming denial of petition under Section 2255
without an evidentiary hearing, and holding that, despite the fact that defendant
relied to his detriment on counsel’s erroneous advice to reject Government plea
offer, counsel’s professional lapse did not amount to ineffective assistance of
counsel, because it did not involve, e.g., a deficient investigation, a legal error, or a
complete failure to render advice).
Purdy v. United States, 208 F.3d 41, 45 (2d Cir. 2000).
Furthermore, Beras likely would not have accepted any plea that was
actually offered (or likely to be offered), and so he was not prejudiced by his
counsel’s performance. Prior to the global plea offer, “despite [his counsel’s] very
direct and unequivocal representations to Mr. Beras of the strengths of the
Government’s case against him, and the wisdom of pleading guilty to the charges
in return for a reduced sentence, Mr. Beras refused to consider taking a plea.”201
After the global plea offer, “[t]he possibility of Mr. Beras pleading guilty . . .
became moot[,]” because this plea was contingent on “[co-defendant] Mendoza
pleading guilty — something she never even considered.” 202
In short, because of Beras’s belief that he would be acquitted, he
would not have taken any plea likely to be available to him. It therefore cannot be
said that “but for the ineffective advice of counsel there is a reasonable probability
that [a] plea offer would have been presented to the court[.]”203 Accordingly, Beras
was not prejudiced by his counsel’s performance.
I am cognizant of the harsh disparity between the global plea offer and
Gottlieb Aff. ¶ 11.
Lafler, 132 S.Ct. at 1385.
the sentence that Beras eventually received.204 Other than pleading to the
Indictment, Beras had no plea offer to accept or reject other than the global plea;
and because Mendoza would not have considered the global plea, Beras effectively
received no plea offer at all.205 In these circumstances, it is not surprising that
Beras thinks that his counsel could have done more to secure a favorable plea.
Even in view of the disparity between the global plea and Beras’s
sentence, I cannot find ineffective assistance of counsel on these facts. Beras
consistently rebuffed his trial counsel’s suggestions that he plead guilty, even on
terms far more favorable than a plea to the Indictment.206 This negates any
prejudice arising out of the disparity between Beras’s sentence and the sentence
that he would have gotten had he pleaded to the Indictment. Moreover, Federal
Rule of Criminal Procedure 11 does not obligate the Government to make any plea
Cf. Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003) (holding
that, as to the prejudice prong of Strickland in the plea context, “a significant
sentencing disparity in combination with defendant’s statement of his intention [to
plead guilty] is sufficient to support a prejudice finding.”).
I note that offering a group of co-defendants the choice of accepting a
global plea or pleading to the indictment is somewhat unfair as it forces a
defendant to depend upon his co-defendants. However, given Beras’s adamant
refusal to plead guilty on any terms likely to be available to him, the propriety of
this practice is not at issue in this case.
See Report and Recommendation at 6 (“[C]onvinced of his innocence,
Plaintiff declined to agree to a plea offer and decided to take his chances at trial.)
(citing Beras Dep. at 255).
offer at all. Thus, counsel’s failure to secure a plea offer, standing alone, cannot
constitute ineffective assistance of counsel.207
One final contention bears note. In his reply brief, Beras argues for
the first time that counsel was ineffective because he did not apprise Beras of his
right to plead to the Indictment, but instead “coerc[ed] [him] to convince his
codefendants to plea[d] guilty.”208 As an initial matter, Beras waived this argument
by raising it for the first time in his reply brief.209 And even if it were properly
before the Court, it would not justify granting habeas relief. It stretches credulity
to believe that Beras’s experienced trial counsel, in all of his attempts to persuade
Beras to plead guilty, neglected to mention that Beras could plead to the
Indictment. And even if counsel made this improbable lapse, no prejudice arose
from it. As laid out above, substantial evidence shows that Beras would not
consider a relatively lenient plea; a fortiori, he also would not have pled to the
Cf. Missouri v. Frye, 132 S.Ct. 1399, 1410 (2012) (“[A] defendant has
no right to be offered a plea, nor a federal right that the judge accept it.”) (citations
Reply Mem. at 30 (“Defense Counsel should have offered Beras the
opportunity to plea[d] guilty pursuant to a straight or open plea, instead of coercing
Beras to convince his codefendants to plea[d] guilty.”).
See Broder v. Cablevision Systs. Corp., 418 F.3d 187, 202 (2d Cir.
2005) (arguments first raised in reply brief not properly before court). See also
Melo v. United States, 825 F. Supp. 2d 457, 464 (S.D.N.Y. 2011) (same).
In the end, the heart of this matter is that Beras’s trial counsel kept
him apprised of the strength of the Government’s case and repeatedly attempted to
persuade him to plead guilty, but Beras chose to ignore this advice. These
circumstances do not give rise to a Strickland claim. As the Second Circuit has
stated, “[t]he Sixth Amendment  requires that counsel be effective, not that
counsel be heeded.”210 In light of the foregoing, counsel’s plea-negotiation
performance was not professionally unreasonable, and Beras was not prejudiced
The Remaining Grounds for Relief Fail Because they
Amount To Second-Guessing Counsel’s Reasonable Trial
Beras’s remaining claims relate to his trial counsel’s strategic
decisions regarding how to investigate and present Beras’s case at trial.
Specifically, Beras argues that he received ineffective assistance because trial
counsel failed to: (1) investigate and prepare adequately for trial;211 (2) interview
witnesses such as a handwriting analyst and a certified public accountant;212 (3)
Brown v. Doe, 2 F.3d 1236, 1245 (2d Cir. 1993).
See Pet. Mem. at 14-15.
See id. at 15-16.
introduce expert witnesses at trial, including “New York Banking Commission
Officers and Auditors; Internal Revenue Service Personell [sic] and auditors;
Accountants for Dinero Express (Internal and External); President and Corporate
Attorney for Dinero Express; Private Investigator Donald Dwyer . . . Audio Tape
Analyst; Interpreter; Certified Public Accounts; [and] Handwriting Expert”;213 (4)
argue for the suppression of allegedly tampered-with wiretap evidence;214 and (5)
permit Beras to testify on his own behalf.215
Because “it 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,”216 the Strickland inquiry is “highly deferential.”217 “In
evaluating whether counsel’s performance was deficient, ‘[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
Id. at 16.
See id. at 95.
See id. at 75.
Strickland, 466 U.S. at 689.
In particular, “‘[t]he decision not to call a particular witness is
typically a question of trial strategy that [reviewing] courts are ill-suited to
second-guess.”219 Further, although defense attorneys have a “duty to make
reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary[,]”220 “‘when a defendant has given counsel reason to
believe that pursuing certain investigations would be fruitless or even harmful,
counsel’s failure to pursue those investigations may not later be challenged as
In light of this standard of review, I conclude that trial counsel’s
strategic decisions were not unreasonable under Strickland. During the trial, Beras
labored under the misconception that the Government’s case against him was
weak.222 Beras’s current challenges to his trial counsel’s strategy stem from the
United States v. Dawes, No. 11 Cr. 1617, 2012 WL 3832456, at *3
(2d Cir. Sept. 5, 2012) (quoting Harrington v. Richter, 131 S.Ct. 770, 778 (2011)
(further quotation marks and citations omitted)).
Greiner v. Wells, 417 F.3d 305, 323 (2d Cir. 2005) (quoting United
States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998) (per curiam)).
Strickland, 466 U.S. at 691.
Ryan v. Rivera, 21 Fed. App’x. 33, 35 (2d Cir. 2001) (quoting
Strickland, 466 U.S. at 691).
See Gottlieb Aff. ¶ 12.
same misconception. He insists that “the case primarily rested on the testimony of
cooperating witness Hendrix Tavare[s][,]” and that “defense counsel was
ineffective for his failure to investigate all witnesses who may have information
concerning Beras[’s] innocence.”223
Beras fails to appreciate that the strength of the Government’s case
was overwhelming. The Government presented, among other things, tape
recordings of Beras discussing laundering drug money; ledgers regarding the
money laundering bearing his handwriting; a wire-transfer form authorizing the
illicit transfer of funds signed by Beras; evidence that Beras had received large,
illicit payments from Dinero Express; and testimony regarding how the moneytransfer scheme worked.224
Beras’s trial counsel struggled valiantly to refute this evidence by
arguing that Beras’s co-conspirator, Liriano, was the mastermind behind the
scheme, and that cooperating witness Tavares had perjured himself to secure
leniency.225 This attempt ultimately failed, but it hardly “amounted to
Reply Mem. at 32.
See Tr. (Beras’s Closing Argument) at 1662-1720.
incompetence under prevailing professional norms[.]”226 And it is improbable that
the result would have been any different had Beras’s counsel adopted the tactics
suggested in the Petition, for example calling as a witness the “United States
Treasure [sic] Department” to explain “why Dinero Express was issued [a] license
 [despite] being targeted for money laundering[,]” or calling “Fidelifact[,]
[w]ho conducted background investigation of Dinero Express and its
Employees[,]” to testify as to “whether [they] discovered any violations for money
laundering or other unethical practices.”227
The overwhelming strength of the Government’s case also indicates
that Beras was not prejudiced by counsel’s failure to adopt his post-hoc tactical
suggestions. Therefore, I conclude that Beras’s trial counsel’s strategy does not
constitute ineffective assistance of counsel. Accordingly, the Petition must be
For the foregoing reasons, the Petition is denied. The Clerk of the
Court is directed to close all outstanding motions in the criminal case (99 Cr. 075,
Doc. Nos. 111, 112, 118, 119, 124, 132, 134, 140, 142, and 143) as well as in the
Harrington, 131 S.Ct. at 778.
Reply Mem. at 31.
civil case (05 Civ. 2678, Doc. Nos. 2, 3, 10, 11, 13, 17, and 25). The Clerk of the
Court is further directed to close case number 05 Civ. 2678.
The only issue that remains is whether to grant a Certificate of
Appealability (“COA”). For a COA to issue, a petitioner must make a “substantial
showing of the denial of a constitutional right.”228 A “substantial showing” does
not require a petitioner to demonstrate that he would prevail on the merits, but
merely that “reasonable jurists could debate whether . . . the petition should have
been resolved in a different manner or that the issues presented were ‘adequate to
deserve encouragement to proceed further.’”229 Beras has not made this showing.
Accordingly, I decline to issue a COA.
28 U.S.C. § 2253(c)(2).
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 and n.4 (1983) (quotation marks and citations omitted)).
Accord Middleton v. Attorneys Gen. of the States of New York and Pennsylvania,
396 F.3d 207, 209 (2d Cir. 2005) (denying COA where reasonable jurists could not
debate whether the district court’s dismissal of the petition was correct).
New York, New York
- Appearances Petitioner (Pro Se):
Register # 45865-054
Elkton Federal Correctional Institution
P.O. Box 10
Lisbon, OH 44432
Tatiana R. Martins
Assistant United States Attorney
One St. Andrew’s Plaza
New York, NY 10007
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