Hasarafally v. USA
Filing
8
OPINION AND ORDER: Hasarafallys Petition and Motion for Sentence Reduction are denied on the merits. Hasarafallys Motion to Amend in denied as untimely. The Clerk of the Court is directed to close the outstanding motions in the criminal case (Docket Entries # 39 and 41 in case number 05 CR 401 (MBM)) as well as in the civil case (Docket Entry # 1 in case number 10 Civ. 3457 (SAS)). The Clerk of the Court is further directed to close case number 10 Civ. 3457 (SAS). The remaining issue 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. A substantial showing does not require a petitioner to demonstrate that he would prevail on the m erits, 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." Petitioner has made no such showing. Accordingly, this Court declines to issue a CGA with regard to the Petition, the Motion for Sentence Adjustment, and the Motion to Amend. (Signed by Judge Shira A. Scheindlin on 12/10/2012) (ft)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------ -)(
AMEER HASARAFALL Y,
OPINION AND ORDER
Petitioner,
10 Civ. 3457 (SAS)
- against
S1 05 CR 401 (MBM)
UNITED STATES OF AMERICA
Respondent.
------------------------------------------------------ -)(
SHIRA A. SCHEINDLIN, U.S.D.J.:
Petitioner Ameer Hasarafally, proceeding pro se, petitions this Court
for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255 ("section 2255"), to
vacate, set aside, or correct his sentence. I On April 19, 2006, Hasarafally was
convicted of conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846,
following a three-day jury trial. On September 6, 2006, Hasarafally was sentenced
to ninety-six (96) months imprisonment, to be followed by five years supervised
release.
Hasarafally asserts two grounds in support of his original Petition.
First, he claims that his Sixth Amendment right to the effective assistance of
See Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (the "Petition"), submitted March 18,
2010.
1
counsel was violated when his lawyer failed to: (1) object to certain hearsay
statements made by a non-testifying co-conspirator that were admitted into
evidence; and (2) call that co-conspirator as a witness at trial. Second, he claims
that his Fifth Amendment right to due process was violated when the sentencing
judge, former Chief Judge Michael B. Mukasey, stated at the sentencing that
Hasarafally is subject to removal upon completion of his term of imprisonment.2
In addition, Hasarafally has filed a Motion for Sentence Adjustment3 in which he
seeks a six month reduction in sentence on the ground that as a deportable alien,
his sentence will be served under circumstances more severe than those facing a
similarly situated United States citizen/defendant.4 Finally, Hasarafally filed a
2
This statement was subsequently memorialized in the Judgment and
Commitment (“J&C”). See J&C at 2 of 5 (“The defendant is a citizen of Surinam,
and is subject to deportation upon completion of the term of imprisonment.”).
According to Hasarafally, he is a United States citizen, not an alien subject to
deportation for having committed a felony.
3
See Docket Entry # 39 in case number S1 05 CR 401(MBM).
4
See Motion for Sentence Adjustment at 1(stating that because of his
status as a deportable alien, Hasarafally is ineligible to: participate in the
residential drug abuse program; and receive a timely halfway house release). This
apparent admission of alienage contradicts the due process arguments raised in
Hasarafally’s Petition, in which he argues that the Government lacks the power to
deport him because he is not an alien. See Memorandum of Law in Support of
Movant’s Motion to Vacate, Set Aside or Correct His Sentence Pursuant to Title 28
U.S.C. Section 2255 (“Pet. Mem.”) at 10-11. Thus, the arguments raised in the
Petition are better understood as a challenge to deportation itself rather than Judge
Mukasey’s identification of petitioner as an alien.
2
motion to amend his Petition to assert a third ineffective assistance of counsel
claim based on his attorney’s alleged failure to properly advise him of the benefits
of pleading guilty.5 For the following reasons, the Petition is denied on the merits
as is the Motion for Sentence Adjustment. The Motion to Amend is denied as
untimely.
I.
BACKGROUND
A.
Overview of the Government’s Case-in-Chief
Hasarafally and co-defendant Danny Ranchurejee were kilogram-level
cocaine dealers who had a short-lived relationship with another cocaine trafficker
who became a cooperating witness (the “CW”) for the Government. In February
2005, Ranchurejee, with the assistance of Hasarafally, purchased approximately
two kilograms of cocaine from the CW. At the time, the CW had not yet been
arrested and was not cooperating with the Government. About a month later, in
early April 2005, the CW was apprehended and immediately agreed to cooperate
with the Drug Enforcement Administration (“DEA”). Acting at the DEA’s
direction, the CW made recorded telephone calls in which he arranged to purchase
three kilograms of cocaine from Ranchurejee. On April 5, 2005, the date set for
the exchange, Hasarafally met Ranchurejee at a predetermined location. After
5
See Motion to Amend § 2255 Pursuant to Fed. R. Civ. P. 15(a)(2)
(“Motion to Amend”) (Docket Entry # 41 in case number S1 05 CR 401(MBM)).
3
remaining under surveillance for some time, the two men were arrested. Inside
Hasarafally’s car, agents found a knapsack containing a scale and nearly three
kilograms of cocaine. Telephone records and one of Ranchurejee’s recorded
conversations with the CW confirmed Hasarafally’s involvement in the drug deal.
1.
The February 2005 Deal
The CW testified pursuant to a cooperation agreement in the
Government’s case-in-chief against Hasarafally. The CW stated that he became
involved in cocaine trafficking in late 2004, when he learned that his girlfriend was
receiving shipments of cocaine from her family in Guyana.6 The CW obtained
Ranchurejee’s name and telephone number from connections he had in Guyana.7
In late February 2005, the CW arranged to sell two kilograms of cocaine to
Ranchurejee.8 A couple of days after the sale, Ranchurejee called the CW and
complained that one of the kilograms was eighty grams short.9 Although he
disagreed with the alleged inaccuracy in weight, the CW agreed to make up the
6
See Trial Transcript (“Tr.”) at 89-91.
7
See id. at 107.
8
See id. at 116-117.
9
See id. at 118.
4
shortage.10 Ranchurejee told the CW that he would send someone to pick it up.11
Shortly thereafter, the CW met Hasarafally who was seated in a brown Honda
Accord when he arrived.12 When the CW reiterated that quantity shortages were
unusual for him, Hasarafally replied that he had to take it up with Ranchurejee.13
The CW then gave a bag containing one hundred grams of cocaine to Hasarafally.14
All of this transpired before the CW was arrested and started cooperating with the
Government.
2.
The April 5, 2005 Deal
On March 31, 2005, the CW was arrested after attempting to sell
nineteen kilograms of cocaine to an undercover agent.15 After his arrest, the CW
immediately began cooperating with the Government. As part of his cooperation,
the CW arranged drug deals by making recorded calls to numbers stored in his cell
phone.16 One of those telephone contacts was Ranchurejee. In a series of calls
10
See id. at 119.
11
See id.
12
See id.
13
See id. at 123.
14
See id.
15
See id. at 23-24.
16
See id. at 25, 100.
5
from April 3 to April 5, 2005, the CW arranged to purchase several kilograms of
cocaine from Ranchurejee.17 In those calls, Ranchurejee discussed the quantity,
price, date, and place for the transaction. Ranchurejee originally intended to
supply four kilograms of cocaine as early as April 4, 2005,18 but he later told the
CW that he only had three kilograms to sell.19 Ranchurejee and the CW then
agreed to meet on April 5, 2005, at a location in Queens.20 Ranchurejee did not
mention Hasarafally by name in any of those conversations.
DEA Special Agents Michael Murphy and Ramon Perez established
advance surveillance in the area of the meeting.21 At the expected time of the
meeting, Agent Murphy saw a brown Honda Accord arrive.22 Approximately ten
minutes later, Agent Murphy saw a Lincoln Navigator arrive and park in front of
the Honda.23 Ranchurejee emerged from the Navigator, approached the driver’s
side of the Honda, spoke briefly with the driver for a minute, then walked off
17
See id. at 27, 107-109.
18
See id. at 111.
19
See id. at 111-112.
20
See id. at 115.
21
See id. at 28, 52-53.
22
See id. at 54.
23
See id. at 54-55.
6
empty-handed.24
Not long after walking away, Ranchurejee went back to the Honda
and entered the front passenger side, empty-handed.25 The Honda pulled out and
drove for about a block before it was stopped by law enforcement.26 Hasarafally
was in the driver’s seat.27 Agent Murphy looked inside the Honda and saw a
knapsack on top of the back seat.28 A search of the knapsack revealed what was
later determined to be approximately three kilograms of cocaine and a digital scale
commonly used to weigh drugs.29 At trial, Agent Murphy testified as follows:
Q.
At that point, did you yourself know what was in the
knapsack?
A.
No, I did not.
Q.
Did you come to open the knapsack?
A.
After I asked Mr. Hasarafally, I walked towards
Ranchurejee, and I was going to ask him if it was his
knapsack, and before I took two steps he yelled out,
24
See id. at 55-56.
25
See id. at 56.
26
See id. at 58.
27
See id. at 58-59.
28
See id. at 59.
29
See id. at 64-67.
7
“It belongs to him,” and pointed at Hasarafally.30
Defense counsel immediately objected. At sidebar, when Judge Mukasey asked
counsel what remedy he sought, counsel asked the Court to “instruct the jury that
they are not to consider the statement by Ranchurejee for any purpose and to strike
it.”31 The Court complied by providing the following instruction:
THE COURT: Ladies and gentlemen, the statement that
this witness attributed to Mr. Ranchurejee is not to be
considered for any purpose at all in deciding this case. It’s
stricken. I told you earlier on that there might be testimony
that was stricken. This is that kind of testimony. So you
are not to consider it in deciding the facts of the case.32
The arresting agents also recovered cell phones from Hasarafally and
Ranchurejee.33 Telephone records for those phones reflect that 145 calls were
made between Hasarafally and Ranchurejee in the ten days leading up to the April
5, 2005 transaction.34 The records also show that several additional calls were
placed between Ranchurejee and Hasarafally in the late morning and afternoon of
April 5, 2005.
30
Id. at 61.
31
Id. at 62.
32
Id. at 64.
33
See id. at 67-68.
34
See id. at 195.
8
B.
The Jury’s Verdict
On April 19, 2006, the jury returned a guilty verdict. By special
verdict, the jury found that the offense conduct involved at least 500 grams but less
than five kilograms of cocaine.35 At Hasarafally’s request, the court asked the jury
to report whether “your verdict was based on the events of April 5 or whether it
was based on the earlier events.”36 The jury responded that “the amount of
narcotics relates to the events of April 5, 2005.”37
C.
The Sentencing Proceedings
Prior to sentencing, the United States Probation Office prepared a
Presentence Investigation Report (“PSR”). The Probation Office determined that
Hasarafally was responsible for approximately five kilograms of cocaine, yielding
a base offense level of 32.38 Because Hasarafally fell into Criminal History
Category I, the resulting sentencing range was 121 to 151 months imprisonment.39
Of relevance to the instant Petition, the PSR noted that Hasarafally is a citizen of
35
See id. at 371.
36
Id.
37
Id.
38
See PSR ¶ 17.
39
See id. ¶¶ 17, 26, 31.
9
Surinam and provided his U.S. alien registration number.40 Hasarafally did not
object to this information prior to or at sentencing.
On August 29, 2006, Hasarafally appeared before Judge Mukasey for
sentencing. Contrary to the Probation Office’s recommendation, the court found
that the defendant was responsible for more than 3.5 kilograms but less than five
kilograms of cocaine, corresponding to base offense level 30. The court then
added a two-level enhancement for obstruction of justice because Hasarafally gave
extensive, false testimony at trial. Judge Mukasey then departed downward to
level 29 because Hasarafally’s participation in the conspiracy was relatively brief
and he did not control the quantity of drugs involved. Judge Mukasey ultimately
sentenced Hasarafally to 96 months incarceration, the middle of the applicable
United States Sentencing Guidelines range.41
At sentencing, Judge Mukasey made the following statement in
connection with the imposition of supervised release:
He is not a U.S. citizen and, therefore, I would think it is
likely he will be deported following service of his sentence.
The cost of supervision is moot. In the event that
[deportation] should not happen, he will pay the cost of
supervision at such time as it comes, as his income exceeds
40
See id. at 1.
41
Hasarafally does not challenge the Court’s Guidelines calculations in
the instant Petition.
10
$3,000 after taxes, and then to the extent of ten percent.42
In the “Supervised Release” section of Hasarafally’s J&C, Judge Mukasey noted:
The defendant is a citizen of Surinam and is subject to
deportation upon completion of the term of imprisonment.
In the instance that the defendant is not deported, he shall
pay the cost of supervision when his income exceeds
$3,000 per month after taxes, and then to the extent of
10%.43
II.
LEGAL STANDARDS
A.
Section 2255
Section 2255 permits a convicted person held in federal custody to
petition the sentencing court to vacate, set aside, or correct a sentence. A properly
filed motion under Section 2255 must allege that: (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
attack.44 Accordingly, 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
42
Transcript of Sentencing on August 29, 2006 (“Sent. Tr.”) at 12.
43
J&C at 3 of 5.
44
See 28 U.S.C. § 2255.
11
miscarriage of justice.’”45
B.
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
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.”46
When analyzing a claim that counsel’s performance did not meet
constitutional standards, “judicial scrutiny of counsel’s performance must be
highly deferential.”47 The court “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.”48 “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
45
Cuoco v. United States, 208 F.3d 27, 29 (2d Cir. 2000) (quoting Hill
v. United States, 368 U.S. 424, 428 (1962)).
46
Strickland v. Washington, 466 U.S. 668, 693–94 (1984).
47
Id. at 689.
48
Id.
12
conduct,’ and may not use hindsight to second-guess his strategy choices.”49
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.”50 Nonetheless, “[t]he 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.”51 Finally, even if an
attorney’s performance was objectively unreasonable and unprofessional, a
petitioner must still prove prejudice.52 As explained by the Supreme Court, the
order of analysis of the two Strickland prongs is at the discretion of the court:
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
49
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (quoting
Stickland, 466 U.S. at 690).
50
Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000).
51
Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) (quotation marks
and citations omitted).
52
See Stickland, 466 U.S. at 687.
13
to grade counsel’s performance. If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course
should be followed. 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.53
C.
The Crawford Standard
In Crawford v. Washington,54 the Supreme Court held that the Sixth
Amendment prohibits the admission of out-of-court testimonial statements by a
witness unless the declarant is available for cross-examination.55 Surveying Sixth
Amendment jurisprudence, the Court concluded that where “testimonial”
statements are involved, the previous approach of “[a]dmitting statements deemed
reliable by a judge is fundamentally at odds with the right of confrontation.”56
53
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).
54
541 U.S. 36 (2004).
55
See id. at 68 ( “Where testimonial evidence is at issue, however, the
Sixth Amendment demands what the common law required: unavailability and a
prior opportunity for cross-examination.”).
56
Id. at 61.
14
The Court held that where the Government offers “testimonial”
statements, the Confrontation Clause of the Sixth Amendment “demands what the
common law required: unavailability and a prior opportunity for
cross-examination,”57 regardless of how reliable the statement may be.58 Crawford
emphasized that although the “ultimate goal” of the Confrontation Clause was
clearly “to ensure reliability of evidence,” the Clause did not confer a substantive
guarantee of reliability.59 Rather, the Confrontation Clause provides for a
procedural guarantee by commanding “not that evidence be reliable, but that
reliability be assessed in a particular manner: by testing in the crucible of
cross-examination.”60
Accordingly, “where testimonial statements are at issue, the only
indicium of reliability sufficient to satisfy constitutional demands is the one the
Constitution actually prescribes: confrontation.”61 However, the Crawford Court
57
Id. at 68.
58
See id. at 62 (“Dispensing with confrontation because testimony is
obviously reliable is akin to dispensing with jury trial because a defendant is
obviously guilty. This is not what the Sixth Amendment prescribes.”).
59
Id. at 61.
60
Id.
61
Id. at 68-69.
15
carefully limited its holding to “testimonial” statements.62 And even “testimonial”
statements may be admitted without violating the Confrontation Clause if they are
offered “for purposes other than establishing the truth of the matter asserted.”63
Shortly after Crawford was decided, the Second Circuit confronted
the question of whether statements made by a declarant to a confidential informant,
whose true identity was unknown to the declarant, constituted “testimony” for
purposes of the Confrontation Clause.64 At the trial in United States v. Saget, the
Government offered testimony against the defendant (Saget) consisting of
statements made by a separately indicted co-conspirator (Beckham) to a
confidential informant (“CI”), despite the fact that Beckham was unavailable to
62
See id. at 68 (“Where nontestimonial hearsay is at issue, it is wholly
consistent with the Framers’ design to afford the States flexibility in their
development of hearsay law . . . as would an approach that exempted such
statements from Confrontation Clause scrutiny altogether.”).
63
Id. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)).
Accord United States v. Goldstein, 442 F.3d 777, 785 (2d Cir. 2006) (same);
United States v. Stewart, 433 F.3d 273, 291 (2d Cir. 2006) (same).
64
See United States v. Saget, 377 F.3d 223, 228 (2d Cir. 2004) (“[A coconspirator’s statements were elicited by an agent of law enforcement officials, but
without his knowledge, and not in the context of the structured environment of
formal interrogation. The question, therefore, is whether [the co-conspirator]
served as a ‘witness’ who bears testimony within the meaning of the Clause,
despite the fact that he was unaware that his statements were being elicited by law
enforcement and would potentially be used in a trial [or future judicial
proceeding].”).
16
testify at trial.65 Although the Supreme Court did not exhaustively define what it
meant by “testimonial” statements in Crawford, “it provided examples of those
statements at the core of the definition, including prior testimony at a preliminary
hearing, previous trial, or grand jury proceeding, as well as responses made during
police interrogations.”66 “Thus, the types of statements cited by the Supreme Court
as testimonial share certain characteristics: all involve a declarant’s knowing
responses to structured questioning in an investigative environment or a courtroom
setting where the declarant would reasonably expect that his or her responses might
be used in future judicial proceedings.”67
The Second Circuit observed that “Crawford at least suggests that the
determinative factor in determining whether a [statement is testimonial] is the
declarant’s awareness or expectation that his or her statements may later be used at
a trial.”68 The Saget court concluded “that a declarant’s statements to a
confidential informant, whose true status is unknown to the declarant, do not
constitute testimony within the meaning of Crawford.”69 Accordingly, the
65
See id. at 224.
66
Id. at 228.
67
Id.
68
Id.
69
Id. at 229
17
statements made by Beckham (the declarant) to the CI were not testimonial
because the declarant had no knowledge he was talking to a Government agent, but
rather thought he was having a “casual conversation with a friend and potential
co-conspirator.”70 Because Beckham’s statements to the CI were not testimonial,
Crawford did not bar their admission against Saget.71
Violations of the Confrontation Clause, even “if preserved for
appellate review, are subject to harmless error review, . . . and Crawford does not
suggest otherwise.”72 In reviewing Confrontation Clause violations for harmless
error, courts should evaluate a “host of factors,” including “the importance of the
witness’ testimony in the prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the government’s
case.”73 No one factor is dispositive, but “‘[t]he strength of the prosecution’s case
70
Id.
71
See id. at 229-30.
72
United States v. McClain, 377 F.3d 219, 222 (2d Cir. 2004). Accord
United States v. Reifler, 446 F.3d 65, 87 (2d Cir. 2006); United States v. Tropeano,
252 F.3d 653, 659 (2d Cir. 2001).
73
Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986).
18
is probably the single most critical factor.’”74
D.
Amendments to Habeas Petitions
In Mayle v. Felix,75 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 Antiterrorism and
Effective Death Penalty Act of 1996 (the “AEDPA”). In Mayle, the question
presented was whether an amended habeas petition, filed after the AEDPA’s oneyear limitation period and targeting the defendant’s pretrial statements, related
back to the date of the defendant’s original timely filed habeas petition, which
targeted videotaped witness testimony.76 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.”77 The Supreme Court explained as follows:
74
Reifler, 446 F.3d at 87 (quoting Latine v. Mann, 25 F.3d 1162,
1167-68 (2d Cir. 1994)).
75
545 U.S. 644 (2005).
76
See id. at 649.
77
Id.
19
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 anterior thereto.78
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.”79 The relation back doctrine
78
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
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.
79
Mayle, 545 U.S. at 664.
20
described in Mayle has been applied repeatedly by courts in this Circuit.80
III.
DISCUSSION
A.
Hasarafally’s Counsel Was Not Constitutionally Ineffective with
Regard to Ranchurejee
1.
Ranchurejee’s Admitted Out-of-Court Statements
Hasarafally complains that his counsel should have objected to the
introduction of Ranchurejee’s out-of-court statements. Ranchurejee’s out-of-court
statements consisted of: (1) his statements to the CW regarding the February 2005
two-kilogram cocaine transaction, which occurred before the CW started to
cooperate; (2) his recorded conversations with the CW about the April 2005
three-kilogram deal, which occurred while the CW, unbeknownst to Ranchurejee,
was cooperating; and (3) his statement to Agent Murphy that the knapsack holding
the cocaine belonged to Hasarafally.
Ranchurejee’s first statements regarding the two-kilogram deal were
made in furtherance of the charged conspiracy. Hence, they were admissible as
80
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); 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); Martin v. United States, No. 08–CV–452, 2011 WL 5507423, at *5
(E.D.N.Y. Nov. 9, 2011).
21
co-conspirator statements pursuant to Federal Rule of Evidence 801(d)(2)(E). The
admission of those statements did not run afoul of Crawford because they were not
testimonial; there was nothing in the record to suggest that Ranchurejee had any
reason to think those statements would be used in a judicial proceeding.
Similarly, because Ranchurejee’s recorded conversations with the CW
regarding the three-kilogram deal were also non-testimonial, their admission did
not violate Crawford. It is obvious from the substance of the recorded
conversations, and Ranchurejee’s delivery of the three kilograms of cocaine, that
Ranchurejee did not know he had been speaking with a CI. That is the decisive
factor. In the absence of a finding that the challenged statements are testimonial
under Crawford, the Confrontation Clause does not preclude the admission of such
testimony.81 In short, because there was no valid basis for objecting to the
admission of Ranchurejee’s out-of-court statements, Hasarafally’s counsel cannot
be constitutionally defective for failing to do so.
Counsel did object to Ranchurejee’s statement to Agent Murphy that
the knapsack holding the cocaine belonged to Hasarafally. Counsel asked the
Court to strike that portion of Agent Murphy’s testimony and the Court promptly
81
See Davis v. Washington, 547 U.S. 813, 825 (2006) (citing Bourjaily
v. United States, 483 U.S. 171, 181-84 (1987), with approval as involving “clearly
nontestimonial” statements); Crawford, 541 U.S. at 58; Saget, 377 F.3d at 229.
22
did so.82 Juries are presumed to follow the Court’s instructions.83 In light of
counsel’s immediate objection to Ranchurejee’s statement at the time of arrest,
which resulted in a prompt curative instruction from the District Court, counsel
cannot be found to have acted below any objective standard of reasonableness.
2.
Counsel’s Failure to Call Ranchurejee as a Witness
Hasarafally also claims that his counsel was constitutionally
ineffective because counsel had the opportunity to have Ranchurejee present at
trial, but failed to call him as a witness.84 The Court interprets this argument to
mean that counsel should have compelled Ranchurejee to testify as a witness on
Hasarafally’s behalf. This argument is flawed. As an initial matter, although
Ranchurejee had pleaded guilty by the time of Hasarafally’s trial, Ranchurejee was
not sentenced until four months after that trial. Thus, there was a strong likelihood
that Ranchurejee would have invoked his right against self-incrimination and
82
See Tr. at 62-64.
83
See Zafiro v. United States, 506 U.S. 534, 540-41 (1993) (“‘[J]uries
are presumed to follow their instructions.’”) (quoting Richardson v. Marsh, 481
U.S. 200, 211 (1987)). Accord United States v. Snype, 441 F.3d 119, 129-30 (2d
Cir. 2006) (recognizing the strong presumption that jurors follow limiting
instructions).
84
See Pet. Mem. at 7.
23
refused to testify.85
Even if Ranchurejee were amenable to testifying, however, counsel
cannot be deemed ineffective for not calling upon him to do so. “‘The decision not
to call a particular witness is typically a question of trial strategy.’”86 The decision
not to call Ranchurejee was well “within the range of acceptable strategic and
tactical alternatives.”87 Ranchurejee had already incriminated Hasarafally by
telling Agent Murphy at the time of his arrest that the cocaine-filled knapsack
belonged to Hasarafally. Counsel had succeeded in having that statement stricken
from the record. To then call Ranchurejee as a witness would have created a grave
risk that Ranchurejee would repeat the same accusation and/or provide other
devastating testimony against Hasarafally. Considering those circumstances, far
from being ineffective, counsel made a sound strategic choice in not having
Ranchurejee testify.
85
See, e.g., United States v. Jackson, 335 F.3d 170, 177 n.1 (2d Cir.
2003) (“It is well established that a witness may invoke his Fifth Amendment right,
and is therefore unavailable for purposes of Rule 804(b), during the time lapse
between his plea and sentencing.”).
86
Bierenbaum v. Graham, 607 F.3d 36, 55 (2d Cir. 2010) (quoting
Greiner v. Wells, 417 F.3d 305, 323 (2d Cir. 2005)).
87
United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998).
24
3.
No Prejudice
Even if counsel were ineffective, Hasarafally’s Petition must still be
denied because he cannot show prejudice, i.e., that the outcome of the trial would
have been different but for counsel’s alleged shortcomings. Any objection to
Ranchurejee’s statements to the CW about the February 2005 two-kilogram deal or
Ranchurejee’s recorded statements to the CW about the April 2005 three-kilogram
sale would have been fruitless. Thus, even if counsel had objected, his objections
would have been overruled.
Significantly, there was sufficient evidence apart from Ranchurejee’s
statements to convict Hasarafally. Agents Perez and Murphy both testified that
Ranchurejee had not been carrying anything that even approximated the size of the
cocaine-carrying knapsack that was eventually recovered from the car that
Hasarafally drove.88 Thus, the cocaine had to have been in the car already when
Hasarafally arrived. A reasonable jury could have inferred Hasarafally’s guilt from
his presence in the Honda when the transaction was about to occur and the phone
records showing more than one hundred calls between him and Ranchurejee in the
days preceding the sale. On this record, it cannot be said that the exclusion of
Ranchurejee’s challenged statements – in which Hasarafally’s name was never
88
See Tr. at 42, 55-56.
25
mentioned – would have resulted in a not guilty verdict.89
Similarly, counsel’s decision not to call Ranchurejee as a defense
witness did not prejudice Hasarafally. Because Ranchurejee had not yet been
sentenced, he most likely would have invoked his Fifth Amendment right against
self-incrimination. Indeed, the fact that Ranchurejee did not testify for the
Government, and thereby potentially qualify for a reduced sentence, was a strong
indicator that he would have invoked his Fifth Amendment right. More
importantly, Ranchurejee’s testimony would likely have been more damaging than
helpful to Hasarafally. Thus, counsel’s failure to call Ranchurejee as a witness did
not prejudice Hasarafally. Accordingly, both of Hasarafally’s original ineffective
assistance of counsel claims are without merit and must be dismissed.
B.
Hasarafally’s Due Process Rights Were Not Violated
Hasarafally claims that the District Court violated his Due Process
rights by declaring at sentencing that he is likely to be deported after he completes
his term of imprisonment.90 Hasarafally contends that he has consequently been
placed in “an INS holding institution in Big Spring, Texas,”91 and “seeks to
89
See Glenn v. Bartlett, 98 F.3d 721, 729 (2d Cir. 1996) (harmless error
where there was other “weighty” evidence).
90
See Pl. Mem. at 8-12.
91
Id. at 11.
26
challenge his removal from the United States.”92 Hasarafally’s due process claim
is both factually inaccurate and legally without merit.
1.
Hasarafally’s Factual Assertions Are Wrong
Contrary to Hasarafally’s assertion, a review of the Immigration and
Customs Enforcement (“ICE”) records indicates that he is, in fact, an alien.
Hasarafally is a permanent resident alien of the United States and a citizen of
Surinam. Hasarafally claims that he “passed the American Citizenship Exam in
2006” and “has lived in the United States since the age of fourteen.”93 Assuming
those contentions to be true, it does not follow that Hasarafally thereby became a
United States citizen. For example, Hasarafally does not claim that: an
Immigration and Citizenship Services officer has determined that his citizenship
application should be granted; that he took the oath of renunciation and allegiance;
or that he received a certificate of naturalization. Because Hasarafally is an alien
convicted of a felony drug offense, Judge Mukasey properly informed him, and the
J&C correctly stated, that he is subject to deportation.94
92
Id. at 12.
93
Id. at 11.
94
See 8 U.S.C. § 1101(a)(43)(B) (defining “aggravated felony” to
include “illicit trafficking in a controlled substance”); 8 U.S.C. § 1227(a)(2)(A)(iii)
(“Any alien who is convicted of an aggravated felony at any time after admission is
deportable.”); 8 U.S.C. § 1227(a)(2)(B) (“Any alien who at any time after
27
To the extent Hasarafally believes that Judge Mukasey’s comment at
sentencing, or the notation in the J&C, constitutes an order of deportation, he is
mistaken. Neither constitutes an order of deportation. Judge Mukasey was simply
advising Hasarafally that as an aggravated felon, he is deportable. In fact, it is
questionable whether the District Court had jurisdiction to order Hasarafally’s
removal as part of his criminal sentence absent a specific pre-sentence request from
the United States Attorney. No such request was made in advance of sentencing
in this case.
Hasarafally’s assertion that he has been placed in an “INS holding
institution” is also inaccurate.95 He has been designated to the Big Spring
Correctional Center (“Big Spring”) in Texas, which is a private facility under
contract to the Bureau of Prisons (“BOP”). Although Big Spring houses many
inmates who are deportable aliens, it is not an ICE holding center. Thus, an
inmate’s designation to the Big Spring facility does not amount to a determination
that the inmate will be deported/removed from the United States.
admission has been convicted of a violation of (or a conspiracy or attempt to
violate) any law . . . relating to a controlled substance . . . is deportable.”); 8 U.S.C.
§ 1228(c) (“An alien convicted of an aggravated felony shall be conclusively
presumed to be deportable from the United States.”).
95
Pl. Mem. at 11.
28
2.
Hasarafally’s Due Process Claim is Not Ripe
To the extent that Hasarafally claims that he will be deported without
due process, that claim is unripe. It is, of course, well established that “‘the Fifth
Amendment entitles aliens to due process of law in deportation proceedings.’”96
In this case, however, Hasarafally’s due process claim must be dismissed as not yet
ripe. Although ICE has lodged a detainer against him, no order of deportation or
removal has been issued to date. According to ICE, Hasarafally qualifies for the
Institutional Hearing Program (“IHP”) for deportable aliens. The IHP is a program
created to ensure that aliens convicted of aggravated felonies are expeditiously
removed after completing their term of imprisonment, with the goal of avoiding an
additional period of detention at an ICE facility pending deportation/removal
proceedings.97 Those proceedings “shall be conducted in conformity with section
1229a of [Title 8.]”98 Section 1229a, in turn, specifies how removal proceedings
shall be conducted and accords the alien notice, an opportunity to be heard by an
96
Demore v. Kim, 538 U.S. 510, 523 (2003) (quoting Reno v. Flores,
507 U.S. 292 (1993)).
97
See generally 8 U.S.C. § 1228 (entitled “Expedited removal of aliens
convicted of committing aggravated felonies”).
98
8 U.S.C. § 1228(a)(1).
29
immigration judge, the right to counsel, and the right to an administrative appeal.99
Thus, Hasarafally will have an opportunity to explain why he should not be
deported and offer any proof of U.S. citizenship he may have. Hasarafally will
have a ripe due process claim only if he is ordered to be deported/removed in
contravention of these procedures. At this juncture, however, his due process
claim is premature and must be denied.
C.
Hasarafally’s Motion for Sentence Adjustment Is Without Merit
Hasarafally claims that he is ineligible to participate in the BOP’s
residential drug abuse treatment program because of his status as a deportable
alien.100 He also claims that, as a result of such status, he is ineligible to serve his
sentence in a minimum security facility, nor can he serve the last ten percent of his
sentence in a halfway house.101 Hasarafally thus argues that he is entitled to a sixmonth reduction in sentence pursuant to Restrepo v. United States.102
99
See generally 8 U.S.C. § 1229a (entitled “Removal proceedings”).
100
See Motion for Sentence Adjustment at 1.
101
See id. at 2.
102
802 F. Supp. 781 (E.D.N.Y. 1992). In Restrepo, the district court
granted the defendant a downward departure based on his status as an alien. The
court noted that “the defendant faces an extraordinarily severe penalty in addition
to incarceration for a longer period of time and under far more difficult
circumstances than those generally faced by a United States citizen who committed
the same offense. A sentence at the low end of the applicable guideline range does
30
The downward departure granted by the district court in Restrepo was
vacated by the Second Circuit on appeal.103 The Second Circuit did not state
categorically that a defendant’s alien status could never be considered in deciding
whether to downwardly depart. Rather, the court found that a downward departure
was inappropriate because the defendant failed to cite any consequences of
alienage not faced by every other alien subject to deportation.
[W]e decline to rule that pertinent collateral consequences
of a defendant’s alienage could not serve as a valid basis
for departure if those consequences were extraordinary in
nature or degree. Resolution of that question, however, is
unnecessary to this appeal, for we conclude that none of the
bases relied on by the district court, i.e., (1) the
unavailability of preferred conditions of confinement, (2)
the possibility of an additional period of detention pending
deportation following the completion of sentence, and (3)
the effect of deportation as banishment from the United
States and separation from family, justified the departure.104
This holding has been reaffirmed in United States v. Duque, where the court stated:
The collateral effects of deportability – e.g., (1) the
unavailability of preferred conditions of confinement, [and]
(2) the possibility of an additional period of detention
pending deportation following the completion of sentence
not adequately take account of this additional penalty. Accordingly, some
downward departure is necessary in order to impose a sentence that is not
unreasonably harsh under all the circumstances of the case.” Id. at 793.
103
See United States v. Restrepo, 992 F.2d 640 (2d Cir. 1993).
104
Id. at 644.
31
– generally do not justify a departure from the Guidelines
range.
While it is true that pertinent collateral
consequences of a defendant’s alienage might serve as a
valid basis for departure if those consequences were
extraordinary in nature or degree[,] the collateral effects at
issue here are run of the mill.105
Thus, the collateral consequences of alien status may justify a downward departure
at sentencing if those consequences are extraordinary in nature or degree. A
similar analysis is employed in post-Booker cases.
We have recently stated that a non-Guidelines sentence that
rests primarily upon factors that are not unique or personal
to a particular defendant, but instead reflects attributes
common to all defendants should therefore be viewed as
inherently suspect. We believe that a non-Guidelines
sentence that purportedly rests on the judge’s prediction
that a defendant will be deported, a factor applicable to a
wide class of criminal defendants, should be treated in the
same way. The district judge’s oral statement of reasons
(and his subsequent written statement of reasons as well)
gives no indication that anything but the bare fact of
deportation was considered. It may be that a sentencing
judge can consider deportation when he or she identifies,
with some particularity, why a specific defendant is certain
to be deported and why deportation, in light of that
defendant’s individual circumstances, will serve to protect
the public. Because deportation may not be viewed as
additional punishment and the district court noted only the
bare fact of deportation in its statement of reasons, the
district court erred as a matter of law in factoring into
Wills’s sentence his likely deportation after serving his
105
256 Fed. App’x 436, 437-38 (2d Cir. 2007) (quotation marks and
citations omitted).
32
prison term.106
Thus, where the consequences of alienage are of the type faced by every other alien
defendant, downward departure would be inappropriate, as would a non-Guidelines
sentence. And if a downward departure/non-Guidelines sentence is not warranted,
certainly a motion for a reduction in sentence is likewise inappropriate.107
Accordingly, Hasarafally’s Motion for Sentence Adjustment is denied.
D.
Hasarafally’s Motion to Amend Is Untimely
In his Motion to Amend, which was filed on March 26, 2012, more
than two years after he submitted the instant Petition, Hasarafally argues that
“before the onset of trial counsel never informed him of the strengths and
weakness[es] of the case against him, as well as the alternative sentences to which
he would most likely be exposed [].”108 Hasarafally thus argues that he received
constitutionally ineffective assistance of counsel “because of counsel’s failure to
adequately advise him of the comparative sentence exposure between standing trial
106
United States v. Wills, 476 F.3d 103, 109 (2d Cir. 2007) (quotation
marks and citation omitted).
107
See United States v. Rodriguez-Palomares, No. 05–CR–1965, 2008
WL 4691843, at *3 (S.D. Ca. Oct. 3, 2012) (denying a motion for a reduction of
the sentence because a downward departure based on deportable alien status was
unavailable under section 2255).
108
Motion to Amend at 1 (emphasis deleted).
33
and accepting a plea offer.”109 Hasarafally further asserts “that had counsel
informed [him] of said benefits he would have opted to plead guilty instead of
proceeding to trial, wherein he would have ultimately received the acceptance of
responsibility points and subsequently a less harsh sentence.”110
While the Motion to Amend cannot be considered a second or
successive petition,111 whether the claim made therein relates back to the filing of
the original Petition will depend on whether the amended claim and the claims
made in the original Petition are tied to a common core of operative facts. Here,
the claim in the Motion to Amend is that Hasarafally received ineffective
assistance of counsel in connection with the pre-trial proceedings, namely, plea
negotiations. Hasarafally’s original ineffective assistance claims faulted his
109
Id.
110
Id. at 2. See also 3/20/12 Affidavit of Ameer Hasarafally, attached to
the Motion to Amend.
111
“Courts have recognized that, if an initial habeas petition is still
pending, a motion to amend – whether related or unrelated to the original claim –
should not be viewed as a successive petition.” Duran v. United States, Nos. 94
CR. 300, 00 Civ.407, 2002 WL 867864, at *6 (S.D.N.Y. May 3, 2002) (citing
Johnson v. United States, 196 F.3d 802, 805 (7th Cir. 1999) (holding that, while an
initial section 2255 motion is pending, a district court must consider the
amendments under the Federal Rules of Civil and Criminal Procedure without
regard to sections 2244(b) and 2255); Newton v. Coombe, No. 95 Civ. 9437, 2001
WL 799846, at *8 (S.D.N.Y. July 13, 2001) (‘Since [the initial habeas] petition has
not yet been decided, the motion to amend is not literally a second petition, and so
need not navigate the shoals of § 2244(b).’).
34
attorney for conduct which occurred at trial. Thus, even though the amended claim
and the original claims are both for ineffective assistance of counsel, they do not
arise from the same nucleus of operative facts. Accordingly, the ineffective
assistance claim made in the Motion to Amend asserts a new ground for relief,
does not relate back to the original Petition, and must be dismissed as untimely.
IV.
CONCLUSION
For the foregoing reasons, Hasarafally’s Petition and Motion for
Sentence Reduction are denied on the merits. Hasarafally’s Motion to Amend in
denied as untimely. The Clerk of the Court is directed to close the outstanding
motions in the criminal case (Docket Entries # 39 and 41 in case number 05 CR
401 (MBM)) as well as in the civil case (Docket Entry # 1 in case number 10 Civ.
3457 (SAS)). The Clerk of the Court is further directed to close case number 10
Civ. 3457 (SAS).
The remaining issue 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.”112 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
112
28 U.S.C. § 2253(c)(2).
35
in a different manner or that the issues presented were 'adequate to deserve
encouragement to proceed further.",113 Petitioner has made no such showing.
Accordingly, this Court declines to issue a CGA with regard to the Petition, the
Motion for Sentence Adjustment, and the Motion to Amend.
New York, New York
December 10, 2012
Dated:
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. ofthe States ofNew York and Pennsylvania,
396 F.3d 207, 209 (2d Cir. 2005) (denying CGA where reasonable jurists could not
debate whether the district court's dismissal of the petition was correct).
113
36
- Appearances Petitioner (Pro Se):
Ameer Hasarafally
# 53098-054
FCI Big Spring
Interstate Unit
1801 W-I-20
Big Spring, TX 79720
For Respondent:
Saray Y. Lai
Assistant United States Attorney
One St. Andrew’s Plaza
New York, NY 10007
(212) 637-1944
37
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