Diallo v. United States of America
MEMORANDUM OPINION AND ORDER: For the reasons discussed above, we deny Diallo's motion, pursuant to Section 2255 to vacate, set aside or correct the sentence against him. CERTIFICATE OF APPEALABILITY: Although Diallo did not request a Certifi cate of Appealability ("COA") in his petition, we sua sponte consider it. Muyet v. United States, No. 01 Civ. 9371, 2005 WL 427594, at *1 (S.D.N.Y. Feb. 22, 2005) (explaining that district courts can sua sponte deny a COA). A substantial showing of a denial of a constitutional right is required under 28 U.S.C. § 2253 for a COA. Miller-el v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 1039 (2003); see also Lozada v. United States, 107 F.3d 1011, 1017 (2d Cir. 1997), abrogat ed on other grounds by U.S. v. Perez, 129 F.3d 255, 25960 (2d Cir. 1997). Diallo has not made the required substantial showing through his petition or through his response brief. Therefore, we deny Diallo's COA. It is so ordered. (Signed by Judge Marvin E. Aspen on 9/10/2014) (ja)
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
S2 09 Cr. 858
12 Civ. 3310
Hon. Marvin E. Aspen
MEMORANDUM OPINION AND ORDER
Before us is a pro se motion, pursuant to 28 U.S.C. § 2255, “to vacate, set aside, or
correct the sentence” rendered against Amadou Diallo on September 30, 2010. 28 U.S.C.
§ 2255(a). (Pet. at 1, 4.) Diallo is serving a sentence of 120 months imprisonment for his
conviction on two counts in violation of 18 U.S.C. § 1951: one count of conspiring to commit
Hobbs Act robberies and one count of committing a Hobbs Act robbery. U.S. v. Diallo, 461
F. App’x 27, 29 (2d Cir. 2012). The sentence also included forfeiture of $18,000. Id. Diallo
now argues that his conviction should be set aside because he was denied his Sixth Amendment
right to effective assistance of counsel at several points throughout the proceedings against him.
(Pet. at 2–4.) Diallo’s motion is denied for the reasons discussed below.
In 2007, Diallo was a member of a robbery crew that targeted traffickers of untaxed
cigarettes and other counterfeit goods into the New York City area. (Reply at 3.) Diallo’s role in
the crew was to target and lure potential victims to designated meeting areas. (Id.) Diallo then
would direct his co-conspirators, who posed as police officers, to approach and remove the
victims from their vehicles. (Id. at 4.) On at least one occasion, Diallo drove another co-
conspirator to a victim’s vehicle, and Diallo took possession of such stolen merchandise by
keeping it in a storage facility located in Bronx, New York. (Id.)
At trial, the government presented evidence of four separate robberies. (Id.) Three
robberies took place in 2007 and were part of the charged conspiracy that took place
approximately between October 31, 2007 and December 4, 2007. (Id.) A fourth robbery took
place in February 2008 that was admissible “other act” evidence of the conspiracy. (Id.) The
government introduced evidence that included sixteen witnesses’ testimony, two of which were
Diallo’s co-conspirators, Ofacio Falcon and Carlos Jordan. Falcon and Jordan testified pursuant
to their cooperation agreements with the government. (Id.) Additionally, the government
presented over 80 items of physical evidence, photographs, and documents in its case against
In April 2010, a jury convicted Diallo of one count of conspiracy to commit Hobbs Act
robberies and one count of committing a Hobbs Act robbery involving untaxed cigarettes,
pursuant to Section 1981. (Pet. at 4; Reply at 3.) He was acquitted of a separate substantive
count of a robbery involving counterfeit goods. (Reply at 3.) We sentenced Diallo to 120
months imprisonment on September 30, 2010. (Pet. at 4.) We also ordered a forfeiture of
$18,000. Diallo, 461 F. App’x at 29. The Second Circuit Court of Appeals affirmed Diallo’s
conviction on February 8, 2012. Id. at 32. Diallo filed the present Section 2255 petition on
April 26, 2012. (Pet. at 1.)
Diallo alleges that his trial counsel, Annemarie Hassett, was ineffective because she:
(1) did not pursue a plea bargain on his behalf after he requested that she do so; (2) misadvised
him of his sentence exposure upon conviction after trial; (3) misadvised him of the strength of
the government’s case; and (4) did not object to various pieces of prejudicial evidence used
against him at trial. (Pet. at 2–3.) Because Hassett did not pursue a plea deal on his behalf and
because the government never offered one to him, Diallo alleges that he “did not have a choice
but to proceed to trial.” (Resp. at 7–8.) Diallo also asserts, however, that he was “not interested
in proceeding to trial.” (Id. at 12.) Diallo alternatively argues that because Hassett misadvised
him of his sentence exposure and the strength of the government’s case, he made the
“unintelligent” decision to ultimately go to trial. (Pet. at 12.) Lastly, he alleges that Hassett was
ineffective because she failed to make various evidentiary objections. (Id. at 3.)
Preliminarily, we consider whether Diallo is entitled to an evidentiary hearing under
Section 2255. Diallo argues that he was denied effective assistance of counsel and that he can
prove the merits of his claims by way of an evidentiary hearing before us. (Pet. at 20–21.) The
government, however, disputes the necessity of a hearing for a determination on the merits.
(Resp. at 34–36.)
Section 2255 calls for an evidentiary hearing to determine the merits of such claims
“[u]nless the motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b). Therefore, the filing of a Section 2255 petition does
not automatically entitle a petitioner to an evidentiary hearing. Petrucelli v. United States, No.
05 Civ. 9582, 2009 WL 4858081, at *13 n.1 (S.D.N.Y. Dec. 15, 2009) (citing Newfield v. United
States, 565 F.2d 203, 207 (2d Cir. 1977)).
To warrant an evidentiary hearing, a petitioner needs to “establish only that he has a
‘plausible’ claim of ineffective assistance of counsel, not that ‘he will necessarily succeed on the
claim.’” Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009) (quoting Armienti v. United
States (Armienti I), 234 F.3d 820, 823 (2d Cir. 2000)). “‘Objective evidence’” must accompany
a petitioner’s claims. See Ortega v. U.S. (Ortega I), 09 Civ. 608, 2012 WL 2478277, at *8
(S.D.N.Y June 27, 2012) (citing Puglisi, 586 F.3d at 216); see also U.S. v. Gordon, 156 F.3d
376, 381 (2d Cir. 1998) (adopting the “objective evidence rule” for the determination that “a
petitioner would have accepted a plea offer”); Boakye v. United States, 09 Civ. 8217, 2010 WL
1645055, at *6 (S.D.N.Y. Apr. 22, 2010); Petrucelli, 2009 WL 4858081, at *13 n.1. The
procedure used in determining whether an evidentiary hearing is warranted is analogous to
summary judgment procedure. Puglisi, 586 F.3d at 213. We must review the record in a light
most favorable to Diallo when considering whether his claims, if taken as true, would establish a
claim for relief. Id. If through this procedure there is a prima facie claim for relief, then we may
allow an evidentiary hearing. Id. If a dispute as to material facts remains, a hearing should be
conducted to make relevant findings. Id.; see also U.S. v. Aiello, 814 F.2d. 109, 113 (2d Cir.
1987) (explaining that an evidentiary hearing is appropriate when the petitioner’s motion
includes “assertions of fact that [the] petitioner is in a position to establish by competent
evidence”). Petitioner need only “identify available sources of relevant evidence.” Puglisi,
586 F.3d at 213–14. In addition, we “need not assume the credibility of factual
assertions . . . where the assertions are contradicted by the record in the underlying proceeding.”
Id. at 214.
Diallo’s allegations are not supported by objective evidence aside from his own “‘selfserving assertions.’” See Melo, 852 F. Supp. 2d at 463 (citing Crisci v. United States,
108 F. App’x 25, 27–28 (2d Cir. 2004)). His allegations, along with Hassett’s declaration,
amount to a he said/she said situation between client and counsel that we find would not be
better illuminated by a full evidentiary hearing. See Chang, 250 F.3d 79, 86 (2d Cir. 2001)
(explaining that the court can reasonably find that “testimony . . . would add little or nothing to
the written submissions”). While demeanor evidence would not be available to us for a
credibility determination through this approach, we find that, given the record and submissions
before us, we would not be swayed otherwise by a finding of credibility in Diallo’s favor. Id.
Additionally, because Diallo fails to supply evidence aside from his bare assertions in support of
his claims, any credibility findings in his favor would be unpersuasive. Because we are familiar
with the present case, it is within our discretion to determine that the written record before us is
enough to determine the merits, as we do in detail below, without a full evidentiary hearing. See
STANDARD OF REVIEW
We turn then to the merits of Diallo’s petition. Petitioner is a pro se litigant. (Pet. at 1–
2.) Accordingly, we “must construe [Diallo’s] submissions ‘liberally and interpret them to raise
the strongest arguments that they suggest.’” Melo v. United States, 825 F. Supp. 2d 457, 462
(S.D.N.Y. 2011) (citing McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)).
Diallo argues that he received ineffective assistance of counsel at several points
throughout the proceedings against him. (Pet. at 2–3.) “In order to prove ineffective assistance,
[petitioner] must show (1) ‘that counsel’s representation fell below an objective standard of
reasonableness;’ and (2) ‘that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’” Pham v. United
States, 317 F.3d 178, 182 (2d Cir. 2003) (quoting Strickland v. Washington, 466 U.S. 668, 688,
694, 104 S. Ct 2052, 2068 (1984)); see also Lafler v. Cooper,
, 132 S. Ct. 1376,
1384 (2012) (“Defendants have a Sixth Amendment right to counsel, a right that extends to the
plea-bargaining process.”); Missouri v. Frye,
, 132 S. Ct. 1399, 1410 (2012)
(“[W]here a defendant pleads guilty to less favorable terms and claims that ineffective assistance
of counsel caused him to miss out on a more favorable earlier plea offer,” the Strickland inquiry
“requires looking not at whether the defendant would have proceeded to trial” without the
ineffective assistance “but whether he would have accepted the offer to plead pursuant to the
terms earlier proposed.”); Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370 (1985) (applying
the Strickland two-prong test to guilty plea challenges alleging ineffective assistance of counsel).
A “reasonable probability is a probability sufficient to undermine confidence in the outcome” of
the proceedings. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
Because a petitioner must meet both prongs of the Strickland test, it does not matter
which prong is analyzed first. 466 U.S. at 697, 104 S. Ct. at 2069. Thus, we need not
necessarily consider both parts of the Strickland test if the claim fails at least one. Id. The
Strickland standard is “‘highly demanding’ and ‘rigorous.’” Bennett v. United States, 663 F.3d
71, 85 (2d Cir. 2011) (internal citations omitted). Additionally, we “must indulge a strong
presumption that counsel’s conduct falls within a wide range of reasonable professional
assistance; that is, . . . the challenged action ‘might be considered sound trial strategy.’”
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (citing Michel v. Louisiana, 350 U.S. 91, 101,
76 S. Ct. 158, 164 (1955)).
Diallo makes two separate arguments regarding Hassett’s ineffectiveness concerning a
possible plea deal with the government. First, Diallo alleges that he was forced to go to trial
because Hassett failed to pursue a plea deal. (Resp. at 7–8.) Second, Diallo alleges that because
Hassett failed to properly advise him of his potential sentence exposure and the strength of the
government’s case, he made the “unintelligent” decision to go to trial. (Pet. at 12.) In addition,
Diallo argues that because Hassett failed to make various evidentiary objections, he received
ineffective assistance of counsel at trial. (Pet. at 3.) We address each of these arguments in turn
on their merits.
Whether Trial Counsel Was Ineffective for Failing to Pursue a Plea Bargain
Diallo alleges that Hassett was ineffective because she did not pursue a plea deal on his
behalf despite his request for her to do so. (Pet. at 3.) According to Diallo, Hassett’s failure to
pursue a deal was unreasonable. (Id. at 16.) He also alleges that he was prejudiced to receive
more time in prison than he would have received had he instead entered an “early guilty plea.”
(Id.) Hassett denies telling Diallo that she would pursue a plea deal on his behalf. (Hassett Decl.
¶ 5.) Rather, Hassett states that because of Diallo’s “consistent representations” of his innocence
to her, she did not tell Diallo that she would “contact the government to negotiate a plea on his
behalf.” (Id.) At no time during the proceedings did the government make a plea offer to Diallo.
(Nawaday Decl. ¶ 3.)
“A defendant suffers a Sixth Amendment injury where his attorney fails to convey a plea
offer.” Pham, 317 F.3d at 182; see also Ortega I, 2012 WL 2478277, at *12 (explaining that in
proceedings where no plea is being offered, “it is not even clear under case law that [trial
counsel] had any obligation to inform [the defendant] . . . of the benefits of a ‘straight up plea’
versus the risks of going to trial.”)
Because no deal was ever offered, there is no objective evidence to assess the extent of
any alleged prejudice towards Diallo. See Ortega I, 2012 WL 2478277, at *8 (citing Puglisi,
586 F.3d at 216); see Boakye, 2010 WL 1645055, at *6; Petrucelli, 2009 WL 4858081, at *13
n.1. Diallo cites to cases dealing with instances where trial counsel was alleged to be ineffective
in regards to plea deals actually offered to their clients. See, e.g., Frye,
132 S. Ct. at 1408 (“[A]s a general rule, defense counsel has the duty to communicate formal
offers from the prosecution to accept a plea on terms and conditions that may be favorable to the
, 132 S. Ct. at 1387 (“If a plea bargain has been offered, a
defendant has the right to effective assistance of counsel in considering whether to accept it.”);
Boria v. Keane, 99 F.3d 492, 497–98 (2d Cir. 1996) (discussing how trial counsel “never gave
his client any advice or suggestion as to how to deal with the People’s offered plea bargain”);
McClain v. United States, No. 12 Civ. 2205, 2013 WL 1163562, at *4 & n.4 (D.N.J. Mar. 19,
2013) (“While a defense counsel is obligated to convey a plea offer and discuss with his client
the consequences of accepting such offer or declining it, these obligations attach only to the
offers actually made.”)
Because no deal was ever offered to Diallo, such cases regarding the failure to convey a
plea deal or the failure to properly advise a client in regards to an offered deal are not applicable.
Even though Diallo maintains that he asked Hassett to pursue a deal on his behalf, he does not
offer any objective evidence, which in this case would be in the form of a plea deal actually
offered, to measure the extent to which he was prejudiced by her alleged ineffectiveness, if at all.
Therefore, his initial plea negotiations argument fails the Strickland “prejudice” prong of the
necessary two-prong test. Strickland, 466 U.S at 687, 104 S. Ct. at 2064.
While it is not necessary for us to do so, we also consider Diallo’s argument under the
“reasonableness” prong of the Strickland standard. 466 U.S. at 687–88, 697; 104 S. Ct. at 2064,
2069. “Even when a defendant specifically requests his counsel to pursue a plea, simply failing
to do so is not ineffective assistance by counsel.” Castranovo v. United States, No. 97 Civ.
3781, 2000 WL 222859, at *4 (S.D.N.Y. Feb. 10, 2000); see also Brown v. Doe, 2 F.3d 1236,
1246 (2d Cir. 1993) (explaining that counsel’s decision not to initiate plea bargaining on behalf
of a client may be considered reasonable strategy). Counsel is under no absolute duty to pursue a
plea deal on behalf of a client. U.S. v. Morel, No. 09 Civ. 8922, 2010 WL 2900318, at *4
(S.D.N.Y. July 22, 2010); see Armienti v. United States (Armienti II), 313 F.3d 807, 814–15
(2d Cir. 2002); see also U.S. v. Wells, 394 F.3d 725, 735 (9th Cir. 2005); U.S. v. Boone, 62 F.3d
323, 327 (10th Cir. 1995); Dillon v. Duckworth, 751 F.2d 895, 901 (7th Cir. 1985); Beans v.
Black, 757 F.2d 933, 936 (8th Cir. 1985). Where a defendant refuses to plead guilty, counsel
cannot be expected to pursue plea negotiations with the government. See Armienti II, 313 F.3d
at 814–15 (citing U.S. v. Yost, No. 98 CR 974, 2001 WL 536937, at *7 (S.D.N.Y. May 21,
2001)). For instance, “[i]nsistence on innocence, although not dispositive, weighs against
finding that [a petitioner] would have accepted a plea deal.” Melo, 825 F. Supp. 2d at 463 (citing
Cullen v. United States, 194 F.3d 401, 407 (2d Cir. 1999)). Typically, we will not review such
strategic decisions by an attorney. Morel, 2010 WL 2900318, at *4 (citing Castranovo, 2000
WL 222859, at *4). Finally, attorneys are not expected “to do that which is futile.” Welch v.
United States, 370 F. App’x 739, 743 (7th Cir. 2010) (citing Armienti II, 313 F.2d at 814–15).
Hassett advised Diallo that a cooperation agreement with the government could yield him
a sentence of 21–27 months or less. (Pet. at 10.) Diallo, however, admits to rejecting the
possibility of a cooperation agreement outright. (Id. at 11.) Diallo’s outright rejection of the
prospect of a cooperation agreement contradicts his insistence that he would have accepted any
plea deal in order to avoid trial.
Diallo maintained his innocence throughout the proceedings. (Hassett Decl. ¶ 5; Diallo
Ltr. Br. at 3, filed Feb. 16, 2010.) Diallo’s insistence on innocence during the proceedings
“undermines [his] bare assertion that he would have accepted a plea agreement if properly
advised.” See Zandi v. United States, 460 F. App’x 51, 53 (2d Cir. 2012) (citing Cullen,
194 F.3d at 407). Additionally, the pursuit of a plea deal on Diallo’s behalf likely would not
have made strategic sense given his insistence on innocence. Hassett’s alleged failure to pursue
the deal despite Diallo’s professed innocence throughout the proceedings is therefore not
unreasonable and does not meet the Strickland standard.
Finally, Diallo alleges that his counsel should have interpreted his proffered “Defendant’s
Statement of The Offense” to be an assertion of enough guilt to move her to pursue a plea deal
for him. (Resp. at 6 & Resp. Attach. 1, “Defendant’s Statement.”) Diallo alleges that he “sat
with [Hassett] and [gave her the] statement about his involvement in the crime.” (Resp. at 6.)
We do not, however, have any indication where this undated statement came from, when it was
allegedly shown to Hassett, or how it was used by her, if at all. Moreover, Diallo denied any
at 3.) We give more weight to Diallo’s pre-trial letter brief to the court professing his innocence
involvement in the crimes charged in his motions in limine brief to the court. (Diallo Ltr. Br.
than his alleged statement of guilt that is undated. (Id.)
Because Diallo cannot provide us with objective evidence in the form of an actual plea
deal offer, we are unable to determine whether he was prejudiced for Strickland purposes. As
previously discussed, Diallo’s first argument fails the Strickland two-prong test based on the
prejudice requirement alone. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
Whether Trial Counsel Misadvised Petitioner as to His Sentence Exposure
and the Strength of the Case against Him
Diallo alleges in his second argument that Hassett was ineffective because she
misadvised him of his sentencing exposure upon a conviction at trial and of the strength of the
government’s case. (Pet. at 17–19.) Diallo alleges that Hassett’s advice regarding both points
was unreasonable and unprofessional. (Id.) Based on her unreasonable advice, Diallo states that
he made the “unintelligent” decision to go to trial, resulting in prejudice. (Diallo Aff. ¶¶ 6–8.)
Preliminarily, we perceive that Diallo’s second argument is inconsistent with his first.
Diallo first alleged that he had no choice but to proceed to trial given that there was no plea deal
offered. (Resp. Attach. 2, Ltr. to J. Aspen at 2.) In his second argument, however, Diallo alleges
that he decided to proceed to trial based on Hassett’s advice regarding his exposure and the
strength of the case against him. (Pet. at 16–19.)
Where there is a “great disparity” between the “actual maximum sentencing exposure”
and the exposure advice given by trial counsel, there is “sufficient objective evidence to establish
a reasonable probability that the outcome of the proceedings would differ.” Gordon, 156 F.3d at
381. Such disparity in combination with a petitioner’s statement is “sufficient objective
evidence . . . to support a finding of prejudice under Strickland.” Id; see also Zandi,
460 F. App’x at 52 (citing Raysor v. United States, 647 F.3d 491, 495 (2d Cir. 2011)).
Diallo asserts that “he would have definitely accepted a timely guilty plea if not for trial
counsel’s misrepresentation during the plea stages.” (Resp. at 5.) Because there was no formal
plea deal ever offered by the government, Diallo’s claim of prejudice—based on Hassett’s
sentence exposure advice—fails. See Lafler,
, 132 S. Ct. at 1387 (“If no plea
offer is made, or a plea deal is accepted by the defendant but rejected by the judge, the issue
raised here [prejudice resulting from ineffective assistance of counsel] simply does not arise.”);
, 132 S. Ct. at 1409–10 (discussing applicable prejudice under Strickland
where an offered plea has lapsed or been rejected due to counsel’s ineffectiveness).
We also briefly consider the reasonableness of Hassett’s advice regarding Diallo’s
sentencing exposure both before trial and before sentencing. Two years’ difference in sentence
exposure is not a gross disparity under applicable case law. See Gordon, 156 F.3d at 377–78,
380 (discussing trial counsel’s advice of a 120-month max sentence exposure after trial was
“grossly underestimat[ed]” when compared to the actual sentence of 210 months); U.S. v. Day,
969 F.2d 39, 40–43 (3d Cir. 1992) (discussing trial counsel’s “substandard advice” of an elevenyear sentence after trial when petitioner actually faced a twenty-two-year sentence, or greater,
post trial despite a five-year sentence plea bargain offer.) Additionally, advice regarding a
possible sentence after trial is not a guarantee. “Because [an exposure] assessment requires the
attorney to give [her] client advice on matters that are contingent and, to some degree, subject to
chance, an inaccurate prediction as to the sentence a defendant is likely to receive after trial
should only rarely be susceptible to an ineffective assistance claim.” Colotti v. United States,
No. 11 Civ. 1402, 2012 WL 1122972, at *14 (S.D.N.Y. Apr. 4, 2012) (citing U.S. v. Sweeney,
878 F.2d 68, 70 (2d Cir. 1989)).
The difference between Diallo’s actual sentence upon conviction (120 months) and the
sentence that Hassett allegedly advised him was a “reasonable possibility” (78–96 months) is
two years. (Resp. at 10; Resp. Attach. 3, Handwritten Notes.) Diallo also alleges that Hassett
told him prior to trial that an “early plea” could earn him 57 to 71 months in prison. (Diallo Aff.
¶ 9.) Diallo states in his petition that “the difference of pleading guilty for [a] 57–71 month
sentence, to 78–97 months sentence following [a] trial conviction” was “only 21–26 months,” so
he “decided to take the chance of going to trial . . . .” (Pet. at 12.) Diallo alleges that he would
have “benefited from a substantial reduction of sentence” had he pled guilty early on instead of
going to trial. (Id. at 17.) Hassett denies Diallo’s allegations and states that she informed him of
the twenty-year statutory maximum for each of the counts he faced. (Hassett Decl. ¶ 6.)
Diallo provided the court with evidence of Hassett’s handwritten notes to him regarding
the alleged advice concerning a “reasonable possibility” of exposure post-trial, which confirms
what Diallo alleged. (Resp. Attach. 3, Handwritten Notes.) Even if we look at the allegations in
the light most favorable to Diallo, the difference between the sentence that Hassett allegedly
advised him was a “reasonable possibility” (78–96 months), and the sentence Diallo ultimately
received (120 months), is not grossly different so as to render such advice unreasonable. Hassett
also states that she adjusted Diallo’s sentence exposure as the case progressed. (Hassett Decl.
¶ 7.) Thus, Hassett’s alleged advice regarding Diallo’s sentence exposure both before trial and
before sentencing was not unreasonable under the Strickland standard.
Strength of the Case
Diallo also alleges that Hassett advised him that the government’s case against him was
“weak.” (Diallo Aff. ¶ 6.) Hassett denies Diallo’s allegation in her declaration and instead
alleges that she advised him that the case against him was “strong.” (Hassett Decl. ¶ 9.) Diallo
does not provide any evidence or authority beyond his plain assertions to corroborate his
allegation. (Pet. at 18–19.)
Defendants make the “ultimate decision” on whether to plead one way or another, and
trial counsel must be cautious not to “coerce a client” into the acceptance or rejection of an
offered deal. Ortega v. United States (Ortega II), No. 09 Civ. 608, 2014 WL 185785, at *16
(S.D.N.Y. Jan. 17, 2014) (quoting Purdy v. United States, 208 F.3d 41, 45 (2d Cir. 2000)). A
defendant has “the constitutional right to insist on going to trial rather than pleading guilty, even
if the strength of the prosecution’s evidence may make that insistence seem irrational.”
Gonzalez v. United States, 722 F.3d 118, 132–33 (2d Cir. 2013).
On its face, the case against Diallo was indeed strong since there were three coconspirators preparing to testify against him at trial. Diallo, 461 F. App’x at 31. (Hassett Decl.
¶ 9.) Given the lack of evidence to the contrary in his petition and Diallo’s failure to argue his
position in response to the government’s brief, we find that Hassett’s advice regarding the
strength of the government’s case against Diallo was not unreasonable under Strickland.
Since we find that Hassett’s advice regarding both his sentencing exposure and the
strength of the government’s case was not unreasonable, we cannot deem Diallo’s decision to go
to trial as a product of ineffective assistance of counsel. As we previously stated, the lack of
objective evidence makes a finding of prejudice based on Diallo’s second argument also
untenable. Diallo’s second argument thus fails the Strickland test.
Whether Trial Counsel Failed To Make Necessary Evidentiary Objections
Finally, Diallo alleges that Hassett’s assistance was ineffective because she failed to
make various evidentiary objections, pursuant to Federal Rule of Evidence 403, both in motions
in limine and during trial. Diallo alleges that Hassett failed to object to: (1) admitted “other act”
evidence; (2) flight evidence; (3) the use of Diallo’s alias, “Money;” (4) prior consistent
statements from testifying witnesses; and (5) attribution to Diallo of unauthenticated statements
by government witnesses. (Pet. Attach. I, Evid. Objs., at 48–50.)
Diallo argues that his trial counsel should have objected to the testimony of “prior
consistent statements” from Carlos Jordan, a cooperating witness, who testified as to “planned
statements to the prosecutors when he met them for the first time under the criminal cloud that
raised a motive to fabricate.” (Pet. Attach. I, Evid. Objs., at 49; Reply at 27.) Diallo also argues
that Hassett should have objected to Falcon’s testimony of unauthenticated statements attributed
to Diallo. (Pet. Attach. I, Evid. Objs., at 48–49.)
The government addressed these evidentiary issues in its opposition, and Diallo’s failure
to defend these objections in his reply brief amounts to a concession. (Reply at 1–15.)
Consistent with the Second Circuit’s instruction that ineffectiveness claims be resolved in the
district court, however, we briefly discuss Diallo’s arguments concerning Hassett’s alleged
failure to object to evidence. Diallo, 461 F. App’x at 31 (citing U.S. v. Salameh, 152 F.3d 88,
161 (2d Cir. 1998)). 1 Diallo’s arguments do not hold water.
Regarding the pretrial motions in limine, trial counsel briefed and argued against the
admissibility of the “other act” evidence under Rule 403. (Diallo Ltr. Br. at 1–2.) With respect
to the “flight” evidence, the Second Circuit noted that Diallo’s trial counsel did in fact object to
the flight evidence admitted at trial, contrary to Diallo’s claims. Diallo, 461 F. App’x 27 at 30.
Additionally, the Second Circuit did not find the admittance of Diallo’s alleged alias,
“Money,” to be error. Id. We find that Hassett’s alleged failure to object to the alias was not
unreasonable or prejudicial under Strickland. Diallo fails to dispute the government’s argument
that at least one of the testifying witnesses only knew of Diallo by the alias “Money.” (Resp. at
1–15.) It was not unreasonable for Hassett to refrain from objecting to the use of the alias
because the alias’ admission was proper for identification purposes. See, e.g., U.S. v. Burton,
525 F.2d 17, 19 (2d Cir. 1975) (explaining that because “defendant’s nickname was relevant to
the government’s case [for identification purposes] . . . reference to the defendant by his
nickname during the presentation of the government’s case, while certainly not to be
encouraged, was not prejudicial . . . .”); U.S. v. Parker, No. 88 Cr. 379, 1989 WL 38135, at *6
(S.D.N.Y. Mar. 7, 1989) (“It is well-established that aliases and nicknames, even if prejudicial,
are proper in an indictment where they are relevant to the government’s case.”) (citing U.S. v.
Miller, 381 F.2d 529, 536 (2d Cir. 1967)).
The Second Circuit previously expressed its preference that Diallo’s ineffectiveness claims ‘“be
litigated in the first instance in the district court, the forum best suited to developing the facts
necessary to determining the adequacy of representation during an entire trial.’” Diallo,
461 F. App’x at 31 (quoting Massaro v. United States, 538 U.S. 500, 504, 123 S. Ct. 1690, 1692
We turn next to Diallo’s complaint about the introduction of prior consistent statements
by Jordan and/or Falcon and improper questions about their cooperation agreements. The
government points out that because Diallo raised the issue of Jordan’s and Falcon’s credibility,
including in Hassett’s opening statement, questions about their motives and agreements were
permissible. Importantly, Diallo does not dispute that Hassett opened the door, in her opening
statements, to this challenged line of questioning on direct examination. Under the
circumstances, we presume that it was proper for the government to examine Jordan and/or
Falcon on direct regarding prior consistent statements. U.S. v. Certified Envtl. Servs., 753 F.3d
72, 86 (2d Cir. 2014) (explaining that “‘[i]f the opening sufficiently implicates the credibility of
a government witness . . . testimonial evidence of bolstering aspects of a cooperation agreement
may be introduced for rehabilitative purposes during direct examination’”) (quoting U.S. v.
Cosentino, 844 F.2d 30, 33 (2d Cir. 1988)); see also U.S. v. Borello, 766 F.2d 46, 56–57
(2d Cir. 1985) (discussing Second Circuit case law, including the presently applicable exception
to the general rule prohibiting direct examination of a cooperator’s agreement); U.S. v. Smith,
778 F.2d 925, 928–29 (2d Cir. 1985) (“[The] exception . . . allows a prosecutor to elicit
testimony on the truth-telling portions of a cooperation agreement on direct examination if the
witness’s credibility has been attacked by defense counsel in opening argument.”) By the same
token, it was not unreasonable for Hassett to let the questioning continue without raising an
Finally, Diallo does not identify any specific statements in an alleged co-conspirator’s
testimony that he claims were misattributed to him. We are therefore unable to review said
statements. In sum, Hassett’s failure to object to various pieces of admitted evidence was thus
not unreasonable for Strickland purposes.
For the reasons discussed above, we deny Diallo’s motion, pursuant to Section 2255 to
vacate, set aside or correct the sentence against him.
CERTIFICATE OF APPEALABILITY
Although Diallo did not request a Certificate of Appealability (“COA”) in his petition, we
sua sponte consider it. Muyet v. United States, No. 01 Civ. 9371, 2005 WL 427594, at *1
(S.D.N.Y. Feb. 22, 2005) (explaining that district courts can sua sponte deny a COA). A
substantial showing of a denial of a constitutional right is required under 28 U.S.C. § 2253 for a
COA. Miller-el v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 1039 (2003); see also Lozada v.
United States, 107 F.3d 1011, 1017 (2d Cir. 1997), abrogated on other grounds by U.S. v. Perez,
129 F.3d 255, 259–60 (2d Cir. 1997). Diallo has not made the required substantial showing
through his petition or through his response brief. Therefore, we deny Diallo’s COA. It is so
Marvin E. Aspen
United States District Judge
September 10, 2014
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