Lorenzana v. USA

Filing 6

OPINION AND ORDER: For the foregoing reasons, Petitioner's motion to vacate, set aside or correct his sentence pursuant to Section 2255 is denied. The court certifies, pursuant to 28 U.S.C. § 1951(a)(3), that any appeal from this Order woul d not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Furthermore, as the Petitioner makes no substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. (Signed by Judge John F. Keenan on 9/27/2012) (jfe)

Case 1:09-md-02013-PAC Document 57

Filed 09/30/10 Page 1 of 45
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: Sept. 27, 2012

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES DISTRICT COURT
VICTOR LORENZANA,
:
SOUTHERN DISTRICT OF NEW YORK
:
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Petitioner,
:
In re FANNIE MAE 2008 SECURITIES
:
08 Civ. 7831 (PAC)
:
No. 11 Civ. 6153 (JFK)
LITIGATION
:
09 MD 2013 (PAC)
-against:
OPINION & ORDER
:
:
:
OPINION & ORDER
UNITED STATES OF AMERICA,
:
-----------------------------------------------------------x
:
Respondent.
:
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APPEARANCES
HONORABLE PAUL A. CROTTY, United States District Judge:
Petitioner Victor Lorenzana, Pro Se
1

For Respondent United States BACKGROUND
of America
Preet Bharara
The early years this decade saw a boom in District of New York
United StatesofAttorney, Southern home financing which was fueled, among
Of Counsel: Shane T. Stansbury
other things, by low interest rates and lax credit conditions. New lending instruments, such as
JOHN F. KEENAN, United States District Judge:
subprime mortgages (high credit risk loans) and Alt-A mortgages (low-documentation loans)
Before the Court is Petitioner Victor Lorenzana’s
kept the boom going. Borrowers played a role too; they took on unmanageable risks on the
(“Lorenzana”) pro se motion to vacate, set aside, or correct
assumption that the market would continue to rise and that refinancing options would always be
his sentence pursuant to 28 U.S.C. § 2255 (“Section 2255”).
available in the future. Lending discipline was lacking in the system. Mortgage originators did
For the following reasons, Lorenzana’s motion is denied.
not hold these high-risk mortgage loans. Rather than carry the rising risk on their books, the
I. BACKGROUND
originators sold their loans into the secondary mortgage market, often as securitized packages
A. The Indictment, Trial, and Verdict
known as mortgage-backed securities (“MBSs”). MBS markets grew almost exponentially.
In a twelve-count indictment filed on May 24, 2005,
But then the housing bubble burst. In 2006, the demand for housing dropped abruptly
Lorenzana and a co-defendant were charged with various crimes
and home prices began to fall. In light of the changing housing market, banks modified their
relating to a series of armed robberies. Lorenzana was
lending practices and became unwilling to refinance home mortgages without refinancing.
charged with ten of the twelve counts in the indictment.
Count One charged him with participating in a conspiracy from
1

Unless otherwise indicated, all references cited as “(¶ _)” or to the “Complaint” are to the Amended Complaint,
dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.

at least in or about 1995 through in or about 2001 to commit

1

1

armed robberies and attempted armed robberies of persons
engaged in narcotics trafficking and/or commercial activities
that affected interstate commerce, in violation of 18 U.S.C.
§ 1952.

Counts Two, Three, and Five each charged Lorenzana

as a principal or aider and abettor in Hobbs Act robberies,
in violation of 18 U.S.C. §§ 1951 and 2.

Counts Six, Seven,

and Nine each charged him with using, carrying and
brandishing a firearm during and in retaliation to particular
robberies, in violation of 18 U.S.C. §§ 924(c)(i)(A)(ii) and
2.

Count Ten charged Lorenzana with participating in a

conspiracy from at least in or about 1995 through in or about
late 2001 to distribute and possess with intent to distribute
five kilograms and more of cocaine and one kilogram and more
of heroin, in violation of 21 U.S.C. §§ 846, 812, 841(a)(1),
and 841(b)(1)(A).

Counts Eleven and Twelve each charged

Lorenzana with money laundering, in violation of 18 U.S.C.
§§ 1956(a)(1)(B)(i) and 2.
Lorenzana’s trial began on June 1, 2005.

Of the

Government’s twenty-three witnesses, five were longtime
associates of Lorenzana who testified that they participated
in several robberies with him.

Additional witnesses included

victims of Lorenzana’s robberies, law enforcement officials
who responded to robberies and collected crime scene
evidence, a detective in the New York Police Department who

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took part in court-ordered searches of accomplices’
residences and vehicles, and an Alcohol, Tobacco, Firearms
and Explosives Special Agent who conducted surveillance of
Lorenzana and interrogated him upon his arrest.
The Government also introduced a bevy of physical
evidence, including seized firearms and ammunition (six guns
were found at one of Lorenzana’s prior residences), tools
used during the robberies, such as radios, walkie-talkies,
scanners, cable ties, handcuffs, a bulletproof vest,
crowbars, as well as crime scene photographs.
On June 29, 2005, the jury convicted Lorenzana on all
counts, with the exception of the second money laundering
count (Count Twelve).
B.

Post Trial Motions

After the jury verdict, Lorenzana made a Rule 29 motion
for a judgment of acquittal and moved for a new trial
pursuant to Rule 33 of the Federal Rules of Criminal
Procedure.

First, he claimed that he was deprived of his

right to be present at all material stages of the trial
because the Court conducted interviews of a juror outside of
his presence (although his attorney was present).

Second, he

claimed that his trial counsel was ineffective for failing to
advise him of what had transpired during those interviews.
Lorenzana also challenged the Court’s jury instructions

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regarding the interstate commerce element of the Hobbs Act
and, further argued that the Government failed to prove that
element beyond a reasonable doubt.

Finally, Lorenzana argued

that his Sixth Amendment rights were violated because the
stabbing victim from the Crystal House robbery was not called
as a witness by the Government.

On January 3, 2007, this

Court denied Lorenzana’s motion in its entirety. U.S. v.
Lorenzano, 03 Cr. 1256, 2007 WL 29231 (S.D.N.Y. Jan. 3,
2007).
C.

Sentencing

On January 16, 2007, Lorenzana was sentenced to a total
of 87 years’ imprisonment, five years’ supervised release,
and a $900 special assessment.
D.

Direct Appeals

On appeal before the Second Circuit, Lorenzana raised
the same issues detailed in Part I.B, above.

By Summary

Order dated June 2, 2010, the Second Circuit affirmed the
judgment of conviction against Lorenzana.

Although the

Second Circuit found that the jury instructions regarding the
interstate commerce element of the Hobbs Act robbery charges
were improper, it concluded that the error was harmless.

The

Second Circuit reasoned that the Hobbs Act requires “‘a very
slight effect on interstate commerce,’” and the Government’s
evidence that “the victims of one of the robberies sold drugs

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in Connecticut, New Jersey, and Maryland, and that Lorenzana
and his crew used the proceeds of the drug robberies to
travel out of state” was sufficient to establish such an
effect.

In addition, the Second Circuit pointed out that

“the targeted drug dealers trafficked in cocaine and heroin,
drugs that cannot be produced in New York.” Id. (citations
omitted).

Subsequently, the Second Circuit denied

Lorenzana’s petition for a rehearing en banc, and the Supreme
Court denied Lorenzana’s petition for writ of certiorari.
Lorenzana v. United States, 131 S. Ct. 837 (2010).
Lorenzana’s pro se memorandum accompanying his Section
2255 petition (“Pet’r Mot.”) cites eleven “Grounds” to set
aside his sentence.

The Government has filed a memorandum in

opposition to Lorenzana’s Section 2255 motion along with
various exhibits (“Gov. Ex.”), and in response, Lorenzana has
submitted a reply memorandum (“Pet’r Reply”).

In a later-

filed submission, Lorenzana seeks to add a twelfth ground to
his Section 2255 petition (“Pet’r Add. Mot.”).
II. Section 2255 Standard of Review
Section 2255 allows a prisoner held in federal custody
to collaterally challenge his federal conviction or sentence.
28 U.S.C. § 2255(a).

To obtain relief under this provision,

a petitioner must establish “a constitutional error, a lack
of jurisdiction in the sentencing court, or an error of law

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or fact that constitutes a ‘fundamental defect which
inherently results in a complete miscarriage of justice.’”
United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting
Hill v. United States, 368 U.S. 424, 428 (1962)).

As

Lorenzana is proceeding pro se, his submissions will be
“liberally construed in his favor,” Simmons v. Abruzzo, 49
F.3d 83, 87 (2d Cir. 1995) (citing Haines v. Kerner, 404 U.S.
519, 520 (1972)), and will be read “to raise the strongest
arguments that they suggest.” Green v. United States, 260
F.3d 78, 83 (2d Cir. 2001) (citing Graham v. Henderson, 89
F.3d 75, 79 (2d Cir. 1996)).
Two theories of claim preclusion can operate to bar a
Section 2255 collateral challenge. Yick Man Mui v. United
States, 614 F.3d 50, 53 (2d Cir. 2010).

First, under the

“mandate rule,” petitioners may not re-litigate issues that
were “expressly and impliedly” decided on direct appeal. Id.
Second, any claims “that could have been brought on direct
appeal [may not be] raised on collateral review absent cause
and prejudice,” id. at 54, or “actual innocence.” Zhang v.
United States, 506 F.3d 162, 166 (2d Cir. 2007).
Importantly, ineffective assistance of counsel claims are not
subject to these claim preclusion limitations. Massaro v.
United States, 538 U.S. 500, 509 (2003) (“We do hold that the
failure to raise an ineffective-assistance-of-counsel claim

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on direct appeal does not bar the claim from being brought in
a later, appropriate proceeding under § 2255.”).
III. DISCUSSION
In his reply memorandum, Lorenzana withdraws his first,
seventh, and eighth grounds for relief because they were
addressed by the Second Circuit on direct appeal. (Pet’r
Reply at 1).

The Court will therefore focus its analysis on

the remaining issues.
A. Ineffective Assistance of Counsel Claims
Grounds Two, Four, Five, Nine, Ten, Eleven, and Twelve
all raise various claims of ineffective assistance of counsel
against Lorenzana’s trial counsel and appellate counsel.

To

obtain relief for ineffective assistance of counsel, a
petitioner must satisfy a two-part inquiry set forth in
Strickland v. Washington, 466 U.S. 668 (1984). See also
United States v. Lin Guang, 511 F.3d 110, 120 (2d Cir. 2007).
The petitioner must first show that his “counsel’s
representation fell below an objective level of
reasonableness.” Strickland, 466 U.S. at 688.

For this part

of the analysis, “‘a court must indulge a strong presumption
that a counsel’s conduct falls within the wide range of
reasonable professional assistance.’” Bierenbaum v. Graham,
607 F.3d 36, 51 (2d Cir. 2010) (quoting Strickland, 466 U.S.
at 689)).

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Next, the petitioner must “show that the deficient
performance prejudiced the defense.” Strickland, 466 U.S. at
687.

That is, the petitioner must demonstrate that there is

“a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694; see also Harrington v.
Richter, 131 S. Ct. 770, 791-92 (2011) (“In assessing
prejudice . . . Strickland asks whether it is ‘reasonably
likely’ the result would have been different.”).
Although the Strickland test was established to evaluate
ineffective assistance of trial counsel, it is also
applicable to appellate counsel. Mayo v. Henderson, 13 F.3d
528, 533 (2d Cir. 1994).

Appellate courts have admonished,

however, that Strickland does not require an appellate
counsel to assert every possible argument on appeal.

“In

attempting to demonstrate that appellate counsel’s failure to
raise a claim constitutes deficient performance, it is not
sufficient for the habeas petitioner to show merely that
counsel omitted a nonfrivolous argument, for counsel does not
have a duty to advance every nonfrivolous argument that could
be made.” Id.

Moreover, “[o]n appeal, attorneys are not

required to raise every colorable claim . . . but are
entitled to exercise their professional judgment to focus on
one or two key issues while winnowing out weaker arguments.”

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Benn v. Stinson, 917 F. Supp. 202, 206 (S.D.N.Y. 1995).

A

petitioner can demonstrate ineffective assistance by showing
that appellate counsel “omitted significant and obvious
issues while pursuing issues that were clearly and
significantly weaker.” Mayo, F.3d at 533.
1. Ground Two
Lorenzana first argues that his appellate counsel was
ineffective for raising an ineffective assistance of trial
counsel claim on direct appeal, despite “conventional wisdom”
that the issue should have been reserved for this habeas
petition. (Pet’r Mot. at 12-15).

According to Lorenzana,

“appellate counsel should have known that pursuant to Massaro
v. United States, 538 U.S. 500 (2003), a federal prisoner is
generally required . . . [to] defer raising claims of
ineffective assistance of counsel on direct appeal because
the claims require development of the facts not in the trial
record.” (Pet’r Mot. at 13).
Lorenzana is mistaken that Massaro requires ineffective
assistance claims to be reserved for Section 2255 motions.
Massaro, 538 U.S. at 508 (“We do not hold that ineffectiveassistance claims must be reserved for collateral review.”).
As the Second Circuit has noted, where ineffective assistance
claims are raised on direct appeal, the Court of Appeals “may
do one of three things:

(1) decline to hear the claim,

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permitting the appellant to raise the issue as part of a
subsequent 28 U.S.C. § 2255 petition; (2) remand the claim to
the district court for necessary fact-finding; or (3) decide
the claim on the record before [the appellate court].” United
States v. Price, 443 F. App’x 576, 578 (2d Cir. 2011)
(internal citations omitted); see United States v. Arakelian,
218 F. App’x 76, 79 (2d Cir. 2007).
Here, appellate counsel’s decision to pursue an
ineffective assistance claim on direct appeal was prudent, as
evidenced by the fact that the Second Circuit elected to
address the claim. See United States v. Lorenzana, 07-0256,
2010 WL 2202813 (2d Cir. June 2, 2010).

Accordingly, the

Second Circuit necessarily made the determination that the
factual record pertaining to Lorenzana’s ineffective
assistance claim was sufficiently developed.

As Lorenzana

does not point to any new facts pertaining to his claim of
ineffective assistance, compare (Pet’r Mot. 12-15) and (Pet’r
Resp. 12-14) with (Gov. Ex. D at 34-39), he cannot establish
that his appellate counsel was unreasonable to assert the
claim on direct appeal.
2.

Ground Four

Lorenzana next alleges that his trial and appellate
counsel were ineffective because both had an excessive
caseload, (Pet’r Mtn. 19-20), yet does not offer any facts to

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support this claim.

Instead, Lorenzana makes the conclusory

allegation that his attorneys were court-appointed, and
therefore must have been overburdened.

Conclusory

allegations are insufficient to sustain habeas corpus relief
based on Strickland. See United States v. Aiello, 814 F.2d
109, 113–14 (2d Cir. 1987) (finding that claims resting on
“airy generalities” and “conclusory assertions” are
inadequate to sustain a claim under Section 2255); see also
Matura v. United States, 875 F. Supp. 235, 237–38 (S.D.N.Y.
1995) (finding that petitioner’s conclusory assertions of
ineffective assistance, without any allegations of fact to
support the assertions, failed “to establish that his
counsel’s performance was deficient [and] . . . fail[ed] to
overcome the presumption [under Strickland] that counsel
acted reasonably.”).
3. Ground Five
Lorenzana also argues that his trial counsel was
ineffective for failing to “adequately investigate
Lorenzana’s mental competency and ability to adequately
participate in the trial proceedings.” (Pet’r Mtn. 21).
Lorenzana further contends that his counsel at sentencing was
ineffective for failing “to seek a downward departure at
sentencing [for diminished capacity] pursuant to U.S.S.G.
§ 5k2.13.” (Pet’r Mtn. 21-22).

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Other than Lorenzana’s conclusory statements, there is
nothing in the record sufficient to overcome the substantial
evidence of Lorenzana’s competency. See United States v.
Romano, 516 F.2d 768, 771 (2d Cir. 1975); see also Newfield
v. United States, 565 F.2d 203, 207 (2d Cir. 1977) (“[W]here
no evidentiary facts are alleged to support a bald allegation
of mental incompetence, a hearing may not be required.”).
Lorenzana has provided no evidence that he lacked the ability
to consult with his attorney or did not understand the nature
of the proceedings against him.

Moreover, nothing in the

record, including the presentence report and accompanying
medical evaluation of Lorenzana, raises any questions as to
Lorenzana’s competency.

As a result, his claim that his

trial and sentencing counsel did not address his mental
capacity is meritless. See Chavez v. United States, 764 F.
Supp. 2d 638, 643 (S.D.N.Y. 2011).
4. Grounds Nine, Ten, and Eleven
Next, Lorenzana states that his appellate counsel was
ineffective for failing to raise a due process claim with
respect to the interstate commerce element of the Hobbs Act.
According to Lorenzana, his due process rights were violated
because he did not have adequate notice that the element
could be met by the Government’s reference to the Controlled

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Substances Act (CSA), which provides that all drug dealing
affects interstate commerce. (Pet’r Mot. at 32-37).
Although Lorenzana’s appellate counsel did not address
the purported due process violation based upon the interstate
commerce element of the Hobbs Act, appellate counsel did
challenge the appropriateness of this Court’s jury
instructions on that issue. (Gov. Ex. E at 4-7).
Specifically, appellate counsel argued that the instructions
violated United States v. Parkes, 497 F.3d 330 (2d Cir.
2007), because they removed the interstate commerce element
from the jury’s consideration. (Gov. Ex. E at 4-7).

This

strategy proved sensible, as the Second Circuit agreed that
the jury instructions were erroneous. Lorenzana, 2010 WL
2202813 at *2.

The Second Circuit also found that the

Government met its burden as to the interstate commerce
element, independent of any reference to the CSA.
Accordingly, it would have been fruitless to argue that
establishing interstate commerce by reference to the CSA
violated due process.
Lorenzana’s tenth ground for relief is that his
appellate counsel was ineffective for failing to argue that
Lorenzana’s convictions and sentences for multiple
substantive Hobbs Act violations, conspiracy to commit Hobbs
Act robberies, and 18 U.S.C. § 924(c) constituted double

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jeopardy. (Pet’r Mot. at 38-50).

Here again, Lorenzana fails

to demonstrate any significant omissions by his attorney.
The Constitution’s Double Jeopardy Clause does not bar
charging and sentencing a defendant as to both substantive,
and conspiracy counts of the Hobbs Act. See Iannelli v.
United States, 420 U.S. 770, 777 (1975) (“[T]he law has
considered conspiracy and the completed substantive offense
to be separate crimes.”).

Similarly, the Double Jeopardy

Clause does not prohibit convictions for multiple violations
under 18 U.S.C. § 924(c), when such violations are based on
“different predicate crimes.” United States v. Marcano, 062949, 2008 WL 3992382, at **2 (2d Cir. Aug. 22, 2008) (citing
United States v. Bernier, 954 F.2d 818, 819-20 (2d Cir.
1992)).

In light of longstanding precedent that substantive

and conspiracy Hobbs Act charges are distinct for double
jeopardy purposes, Lorenzana’s appellate counsel
appropriately excluded this argument on appeal.
Lorenzana’s eleventh ground for relief is that his
appellate counsel was ineffective for failing to argue that
the Government committed prosecutorial misconduct.

Lorenzana

argues that the Government presented perjured testimony to
the Grand Jury concerning the victim in the Crystal House
robbery. (Pet’r Mot. at 51-57).

Because Lorenzana has not

provided any facts to support his accusation, this

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speculative claim does not warrant scrutiny under Strickland.
See, e.g., Matura v. United States, 875 F. Supp. 235, 237–38
(S.D.N.Y. 1995).
5. Ground Twelve
Lorenzana added a twelfth ground for relief on January
3, 2012, after the one-year statute of limitations for
Section 2255 claims expired.

In this additional claim,

Lorenzana argues that his trial counsel was ineffective for
failing to “explain to him the pros and cons of pleading
guilty as opposed to going to trial” and the ramifications
for sentencing. (Pet’r Add. Mot. at 1).

Other than his own

account, Lorenzana does not offer any facts to show that his
trial counsel did not explain the benefits of taking the
Government’s plea offer, or that the charges against
Lorenzana carried mandatory consecutive sentences under 18
U.S.C. § 924(c).

Without such evidence, “it must be assumed”

that Lorenzana’s trial counsel “accurately advised
[Lorenzana] of the sentence he faced.” Colotti v. Untied
States, 11 Civ. 1402, 2011 WL 6778475, at *23 (S.D.N.Y. Dec.
21, 2011).

Therefore, this unsupported claim is insufficient

to warrant relief.
B. Remaining Grounds:

Three and Six

In his last two grounds, Lorenzana argues that this
Court “lacked subject matter jurisdiction” to adjudicate the

15

charges against him because the interstate commerce element
of the Hobbs Act was not properly established by the
Government. (Pet’r Mot. at 16-18, 23-26).

As explained

below, this argument confuses a district court’s subject
matter jurisdiction with the interstate commerce element of a
Hobbs Act robbery.
A district court’s jurisdictional authority to
adjudicate criminal cases is not contingent on the individual
criminal statute under which a defendant is charged and
convicted; rather, jurisdiction is derived from 18 U.S.C.
§ 3231, which provides that “district courts of the United
States shall have original jurisdiction, exclusive of the
courts of the States, of all offenses against the laws of the
United States.” 18 U.S.C. § 28(a); see also United States v.
Hargove, 293 F. App’x 95, 96 (2d Cir. 2008) (“Defendant’s
challenge to the District Court’s jurisdiction is without
merit because the District Court had jurisdiction . . .
pursuant to 18 U.S.C. § 3231.”).

Accordingly, an indictment

charging a defendant with crimes in violation of the laws of
the United States is sufficient for a district court to
acquire subject matter jurisdiction. United States v. Si Lu
Tian, 339 F.3d 143, 147 (2d Cir. 2003) (“Subject matter
jurisdiction was proper in the district court because [the

16

defendant] was charged with offenses against the laws of the
United States.”).
The interstate commerce element of the Hobbs Act is a
separate consideration from the subject matter jurisdiction
of a district court. See Hugi v. United States, 164 F.3d 378,
380-81 (7th Cir. 1999).

As the Seventh Circuit observed:

[T]he nexus with interstate commerce which courts
frequently call the jurisdictional element, is simply one
of the essential elements of [the offense]. Although
courts frequently call it the jurisdictional element of
the statute, it is jurisdictional only in the shorthand
sense that without that nexus, there can be no federal
crime . . . . It is not jurisdictional in the sense that
it affects a court’s subject matter jurisdiction, i.e., a
court’s constitutional or statutory power to adjudicate a
case, here authorized by 18 U.S.C. § 3231.’
Id. (internal citations and quotations omitted).
Here, this Court acquired subject matter jurisdiction
under 18 U.S.C. § 3231 because Lorenzana was indicted on
various offenses against the laws of the United States.

As a

result, Lorenzana’s assertion that the Government did not
establish the interstate commerce element of the Hobbs Act at
trial has nothing to do with whether this Court had subject
matter jurisdiction.

Rather, this assertion bears on the

interstate commerce element of the Hobbs Act, which was
explicitly addressed by the Second Circuit, so Lorenzana is
procedurally barred from raising this argument. See
Lorenzana, 2010 WL 2202813 at *1.

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IV. CONCLUSION

For the foregoing reasons, Petitioner's motion to
vacate, set aside or correct his sentence pursuant to Section

2255 is denied.
The court certifies, pursuant to 28 U.S.C.

§

1951(a) (3),

that any appeal from this Order would not be taken in good
th, and therefore in forma pauperis status is denied for
the purpose of an appeal. See Coppedge v. United States, 369
U.S. 438, 444 45 (1962).
Furthermore, as the Petitioner makes no substantial
showing of a denial of a constitutional right, a certificate
of appealability will not issue. See 28 U.S.C.

§

2253.

SO ORDERED.

Dated:

New York, New York
September ~, 2012

1-

~r~
John
Keenan
F.

United States District Judge

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