Lopez v. United States of America

Filing 8

OPINION & ORDER re: 7 MOTION to Amend/Correct 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Amaury Lopez, Jr. For all of the foregoing reasons, the Court DENIES Petitioners' § 2255 motions, and DENIES Lopez Jr.&# 039;s subsequent motions to amend. As Petitioners have not "made a substantial showing of the denial of a constitutional right," a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2). The Clerk of Court is directed to terminate all pending motions and close this case. SO ORDERED. (Signed by Judge Paul A. Crotty on 4/20/2017) Copies Mailed By Chambers. (anc)

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#: _ _ _ _ __
4/20/2017
DATE FILED: _ _ __

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------------)(
AMAURY LOPEZ, JR. and FABIO MOREL,
Petitioners,
-against-

16 Civ. 3342 (PAC)
10 Cr. 798 (PAC)

UNITED STATES OF AMERICA,

OPINION & ORDER

Respondent.

------------------------------------------------------------)(
HONORABLE PAUL A. CROTTY, United States District Judge:
Petitioner Amaury Lopez, Jr. ("Lopez, Jr.") and p ro se petitioner Fabio Morel ("Morel")
(together, "Petitioners") were convicted by a jury after an eight-day trial of a conspiracy to
distribute cocaine, and possession with intent to distribute cocaine. Their convictions and
sentences were affirmed on appeal. United States v. Lopez, 572 Fed. App'x 1 (2d Cir. 2014).
Petitioners now move, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct the
convictions and sentences based on the Supreme Court' s decision in Alleyne v. United States,
133 S. Ct. 2151 (2013); Lopez, Jr. additionally argues that his trial counsel was constitutionally
ineffective for numerous reasons.
The Court DENIES the motions. Alleyne does not apply retroactively on collateral
review, and Morel ' s petition is otherwise untimely. Lopez, Jr. ' s ineffective assistance of counsel
claim is meritless, and the Court also DENIES as futile his subsequent motion seeking leave to
amend his § 2255 motion.

1

BACKGROUND
The Government charged Lopez, Jr. and Morel with one count each of conspiracy to
distribute cocaine, in violation of 21 U.S.C. § 846 (Count One); and with one count each of
possession with intent to distribute cocaine, in violation of21 U.S.C. § 841 (Counts Two and
Three). ECF 14. 1
Ivan Fisher ("Fisher") initially represented Morel after his arrest in April 2010. See ECF
9 at 2. Fisher also represented Lopez, Jr. after his arrest in October 2010. See id. at 3-4. When
a superseding indictment in September 2010 joined Morel and Lopez, Jr. as co-defendants, the
Government sought to have Fisher disqualified as counsel for Lopez, Jr. based on potential
conflicts of interest, including: (1) his previous representation of Morel; (2) his status as a
potential fact witness, regarding his possession of a hotel surveillance videotape of events
leading to Morel's arrest; and (3) his status as the subject of a federal criminal tax investigation
brought by the United States Attorney' s Office for the Southern District of New York. See ECF
9; Jan. 19, 2011 Tr. On January 19, 2011 , the Court held a Curcio hearing at which Lopez, Jr.,
represented by conflict-free counsel, confirmed his awareness and understanding of, and waived
any objection to, these potential conflicts. See Jan. 19, 2011 Tr. Fisher represented Lopez, Jr.
throughout pre-trial proceedings and at trial; Morel was represented by separate counsel. See id.
Approximately two weeks before trial, the Government moved in limine to introduce
recordings, made in 2009, of co-defendant Arnaury Lopez, Sr. ("Lopez, Sr.") 2 telling a coconspirator and confidential witness, "AM," that Lopez, Jr. directed the murder of a man whom
1

All ECF citations in this Opinion & Order refer to the corresponding criminal docket, 10-CR-0798.

2

Lopez, Sr. died in prison after being convicted and during the pendency of his appeal. See ECF 163. His appeal
was withdrawn; and the Second Circuit remanded to the District Court with instructions to dismiss Lopez, Sr. 's
indictment. ECF 164.

2

he believed had stolen $500,000 from Lopez, Jr. ' s organization. See Sept. 6, 2011 Tr. at 5-6.
After argument, the Court granted the Government' s motion to admit the recordings as direct
evidence of the conspiracy and Lopez, Jr. ' s leadership role. See id. at 44.
The Government also moved to admit evidence of an uncharged murder, in 2004, of "an
individual who was suspected of stealing money, narcotics proceeds, from one of the
coconspirators, who will be a cooperating witness in this trial." Id. at 6. The Government
asserted that the cooperating witness ' testimony would show that the individual was "also
suspected of plotting to steal monies from Lopez, Jr. ," and that Petitioners "concocted a plan
orchestrated by Lopez, Jr. to have this person killed ... to perpetuate th[e) conspiracy." Id. at 67. Fisher stated he had been aware of the uncharged murder "for some time," but was surprised
at the alleged connection to Lopez, Jr. Id. at 20- 22. He argued that the uncharged murder
evidence was prejudicial, and that the disclosure of the related 3500 material was untimely. See
id. at 20-25, 32- 38 . The Court instructed the Government to produce the 3500 material that

evening, and scheduled a conference on September 9, 2011. See id. at 44.
At the subsequent conference, Fisher initially indicated he was not seeking an
adjournment; but that he might request one, ifthe Government could not provide him certain
information about the uncharged murder; he later confirmed that the Government had provided
such information, and that he was satisfied and did not request an adjournment. See Sept. 9,
2011 Tr. at 3, 13. Counsel for both Morel and Lopez, Sr. requested an adjournment, which the
Court denied. See id. at 6-7, 13.
On the morning of the first day of trial (September 12, 2011), the Government disclosed
that it had commenced a witness intimidation investigation of Lopez, Jr. See Gov 't Mem. at 1821 . The Government had recorded statements Lopez, Jr. made to a cooperating witness, another

3

inmate at the Metropolitan Correction Center ("MCC") (the "MCC Recordings"). See id. The
Government explained that its "Trial Team" had not reviewed, and did not intend to introduce,
the MCC Recordings; and that further, the "Trial Team" had been walled off from the
investigation to preclude prejudice arising from access to any privileged information in the MCC
Recordings. See id. at 19. On September 14, 2011 , Fisher moved to dismiss the indictment on
the grounds that the investigation violated Lopez, Jr. ' s Sixth Amendment right to counsel and
right to a fair trial, causing irreparable prejudice; he also requested an evidentiary hearing. See
id. at 20. After briefing and oral argument, the Court decided not to hold a hearing; and denied
the motion, "concluding that Lopez Jr. had failed to present a valid claim of prejudice arising
from the Trial Team' s access to that information." Id.
During the eight-day trial, the Government presented thirteen witnesses, including several
law enforcement witnesses and two cooperating defendants; seized narcotics; narcotics proceeds;
guns; documents; and audio recordings. The jury found Petitioners guilty; and specifically found
that the conspiracy charged against Petitioners in Count One involved 5 kilograms or more of
mixtures and substances containing cocaine; and that the distribution of, or possession with
intent to distribute, charged against Lopez, Jr. (Count Two) and Morel (Count Three) involved
500 grams or more of mixtures and substances containing cocaine. See Trial Tr. at 1286- 88.
The Court sentenced Morel to concurrent terms of 300 months ' imprisonment on June 6,
2012, and sentenced Lopez, Jr. to concurrent terms oflife imprisonment on July 19, 2012. ECF
Minute Entry 06/06/2012; ECF Minute Entry 07/19/2012.
Petitioners appealed the judgments of conviction and sentences, and several of this
Court' s decisions; the Second Circuit issued its Mandate, dated October 23 , 2014, affirming the
convictions. ECF 167 at 1. It found no error in the introduction of the uncharged murder
4

evidence, nor in the admission of recorded conversations between Petitioners and a confidential
source. Id. at 3. There was no error in the Court' s decision not to hold an evidentiary hearing to
examine any potential prejudice stemming from the "Government's purported access to aspects
of Lopez, Jr. ' s trial strategy," allegedly contained in the MCC Recordings. Id. The Second
Circuit affirmed this Court' s determination that such an argument presented "neither a coherent
nor a cognizable argument establishing that he potentially suffered prejudice at trial." Id. at 3-4.
Finally, the Second Circuit rejected Lopez, Jr's argument that the disclosure of the uncharged
murder 3500 material was untimely and denied him a fair trial: "Lopez, Jr. ' s trial counsel [i.e.
Fisher] both disclaimed a request for an adjournment and stated that he was satisfied with the
material the government provided prior to trial." Id. at 4.
Petitioners now move based on Alleyne v. United States, 133 S. Ct. 2151 (2013). Lopez,
Jr. additionally claims he was denied his Sixth Amendment right to the effective assistance of
counsel because Fisher: (1) failed to request a trial continuance after the Government's MCC
Recordings disclosure; (2) failed to request a trial continuance after the Government disclosed its
intent to introduce the uncharged murder evidence; (3) represented Lopez, Jr. despite an
undisclosed conflict of interest that was neither knowingly nor intelligently waived; (4) failed to
object to the jury' s access to transcripts ofrecorded conversations and to request a cautionary
instruction; (5) failed to properly investigate and call "AM" as a witness; (6) failed to raise a
Confrontation Clause objection to the Government' s introduction ofrecorded conversations
between "AM" and Lopez, Sr. regarding Lopez, Jr. ' s role in a murder; and (7) conveyed an
unreasonable prognosis of chance of success at trial and failed to advise Lopez, Jr. of his
sentencing exposure.

5

DISCUSSION
I.

Legal Standards
A. Timeliness of § 2255 Habeas Petitions
"Section 2255 petitions are subject to a one-year limitations period, which in most cases

runs from 'the date on which the judgment of conviction becomes final."' Anderson v. United

States, 612 Fed. App'x 45, 46 (2d Cir. 2015) (quoting 28 U.S.C. § 2255(f)(l)). An otherwiseuntimely petition is proper if filed within one year of "the date on which the right asserted was
initially recognized by the Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. §
2255(f)(3).

B. Ineffective Assistance of Counsel
To state a claim of ineffective assistance of counsel, a defendant-petitioner must show
two things: (1) counsel's representation was deficient and "fell below an objective standard of
reasonableness" according to "prevailing professional norms"; and (2) "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
The first requirement "indulge[ s] a strong presumption that counsel's conduct falls within
the wide range ofreasonable professional assistance." Id. at 689. "There are countless ways to
provide effective assistance in any given case," and "[ e]ven the best criminal defense attorneys
would not defend a particular client in the same way." Id. Thus, counsel's reasonable trial
strategy decisions do not amount to ineffective assistance. See United States v. Eisen, 974 F.2d
246, 265 (2d Cir. 1992), cert. denied, 507 U.S. 998 (1993); see also United States v. Green, 1996

6

WL 665719, at *4 (2d Cir. Nov. 14, 1996) ("Ineffective assistance of counsel is not established
simply by showing that a strategic decision, viewed in hindsight, was unwise.").
To meet the second requirement, a petitioner must show "that counsel' s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466
U.S. at 687. "It is not enough for the defendant to show that the errors had some conceivable
effect on the outcome of the proceeding." Id. at 693 . The showing "requires some objective
evidence other than defendant' s assertions to establish prejudice." Pham v. United States, 317
F.3d 178, 182 (2d Cir. 2003).
Failure to demonstrate either requirement is fatal to a petitioner' s claim. See Strickland,
466 U.S . at 697. Courts may dispose of unmeritorious claims solely on the grounds that the
petitioner was not prejudiced, regardless of whether the counsel' s conduct was sufficiently
unprofessional. See id.
C. § 2255 Evidentiary Hearings

"A defendant seeking a hearing on an ineffective assistance of counsel claim ' need
establish only that he has a "plausible" claim. "' Raysor v. United States, 647 F.3d 491 , 494 (2d
Cir. 2011) (quoting Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009)). But where "it
plainly appears from the motion, any attached exhibits, and the record of prior proceedings that
the moving party is not entitled to relief, the judge must dismiss the motion." Puglisi, 586 F.3d
at 213 (quoting Rules Governing§ 2255 Proceedings for the United States District Courts, Rule
4(b)). Moreover, courts need not presume the credibility of factual assertions "contradicted by
the record in the underlying proceeding." Id. at 214. " [A]llegations of facts outside the record
can be fully investigated without requiring the personal presence of the prisoner," and it is within
the court' s discretion to determine whether a hearing is required. Chang v. United States, 250
7

F.3d 79, 85-86 (2d Cir. 2001) (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)).
Further, "when the judge who tried the underlying proceedings also presides over a§ 2255
motion, a full-blown evidentiary hearing may not be necessary." Raysor, 647 F.3d at 494.

II.

Analysis
A. Petitioners' Alleyne Contentions
Alleyne held that " any fact that increases the mandatory minimum [sentence] is an

' element' that must be submitted to the jury." 133 S. Ct. at 2155. Petitioners argue that Alleyne
applies retroactively in the§ 2255(£)(1) and (f)(3) contexts.
But while "[this] argument is not technically foreclosed by precedent: ... neither the
Supreme Court nor the Second Circuit has expressly barred district courts from applying Alleyne
retroactively for purposes of§ 2255(£)(3) ... every court to consider the issue has concluded
[that] the case for Alleyne' s retroactivity is unpersuasive." 3 Gil v. United States, No. 14-CV1336 (KMW), 2015 WL 4617235, at *3 (S.D.N.Y. Aug. 3, 2015); see id. at *3-4 (collecting
cases analogizing Alleyne to Apprendi v. New Jersey, 530 U.S. 466 (2000), which the Second
Circuit's held in Coleman v. United States, 329 F.3d 77, 82 (2d Cir. 2003) does not apply
retroactively on collateral review for purposes of§ 2255(£)(3), to conclude that Alleyne "was
essentially an extension of Apprendi" and "is not sufficiently transformative to merit retroactive
application").
Moreover, even if such a claim were permitted, it would be meritless. 4 Petitioners
contend that Alleyne' s requirement was violated because the jury did not "find that it was

3

The Second Circuit has rejected Alleyne' s retroactivity in the § 2255(h) context of second or successive habeas
petitions. See United States v. Redd, 735 F.3d 88, 89 (2d Cir. 2013).
4

Morel 's petition also fails because it is untimely. His petition is dated May 12, 2016, almost two years after the
Second Circuit affirmed his conviction and sentence on July 2, 2014. See§ 2255(f)(l). The non-retroactivity of

8

reasonably foreseeable to [Petitioners] that the offense would involve 5 kilograms or more of
mixtures and substances containing cocaine" and thus "did not determine beyond a reasonable
doubt the specific quantities attributable to [Petitioners.]." Morel Br. at 5; see Lopez, Jr. Br. at
16. The jury specifically found that "the conspiracy . .. involve[ d] 5 or more kilograms of
mixtures of substances containing cocaine." Trial Tr. at 1287. That finding is sufficient to
support the mandatory minimum sentence to which Petitioners were subject, and complies with

Alleyne. See 21 U.S.C. § 841(b)(l)(A); United States v. Jimenez, 586 Fed. App'x 50, 56 (2d Cir.
2014) (rejecting alleged Alleyne violation where jury did not determine what quantity of drugs
defendant conspired to possess) ("Alleyne does not require that a jury find drug quantities relied
on by the court in selecting a sentence within the statutory bounds, as the Sixth Amendment does
not apply to 'factfinding used to guide judicial discretion in selecting a punishment within limits
fixed by law."' (quoting 21 U.S.C. § 841(b)(l)(A))). Petitioners cannot rely on this argument to
support their§ 2255 motions.
B. Lopez, Jr.'s Ineffective Assistance of Counsel Claims

As an initial matter, Lopez, Jr.'s claims are procedurally barred. "Failure to adequately
present an argument in the initial proceedings (including direct appeal) is classified as procedural
default." Bloomer v. United States, 162 F.3d 187, 191 (2d Cir. 1998). Such default can be
excused only where the petitioner demonstrates "(1) that some objective factor external to the

Alleyne precludes Morel ' s timeliness argument under § 2255(f)(3). Equitable tolling is unavailable, as Morel has
not shown "that extraordinary circumstances prevented him from filing his petition on time [and that he] acted with
reasonable diligence throughout the period he seeks to toll." Rivera v. United States, 448 Fed. App ' x 145, 146 (2d
Cir. 2011) (internal quotations omitted). Though a petitioner's actual innocence may overcome the habeas statute of
limitations, the exception "applies to a severely confined category: cases in which new evidence shows it is more
likely than not that no reasonable juror would have convicted the petitioner." McQuiggin v. Perkins, 133 S. Ct.
1924, 1933 (2013) (internal quotations and citations omitted). Morel cites no new evidence to support his assertion
of actual innocence, and he cannot meet this standard. See Morel Br. at 4- 6.

9

defense impeded counsel's efforts to raise the claim at an earlier proceeding, and (2) actual
prejudice resulting from the errors of which he complains." Id. (internal quotations and citations
omitted). Courts generally do not apply this rule to § 2255 petitioners alleging ineffective
assistance of counsel, however, "since many defendants are represented by the same attorney at
trial and on direct appeal [and] it would be unrealistic to expect that attorney to identify and
attempt to persuade an appellate court that he/she had committed errors of a constitutional
magnitude entitling the client to a new trial." Id. at 191-92. But where, as here, the petitioner
was represented by new counsel on direct appeal, "and the ineffective assistance claim is based
solely on the record developed at trial," failure to raise the claim on direct appeal "will subject
him to the cause-and-prejudice test, if the claim is raised subsequently in a habeas petition." Id.
at 192.
All but one of the grounds on which Lopez, Jr. brings this § 2255 petition are based
entirely on the record developed at trial. 5 Lopez, Jr. was represented by new counsel on appeal.
He has not shown any objective factors that impeded appellate counsel from raising these issues
on direct appeal; nor has he demonstrated any prejudice, as explained in detail in the following
analysis. Indeed, consideration of three grounds is barred by the record in this case: the Second
Circuit already considered and rejected Lopez, Jr. 's challenges related to the MCC Recordings
(Claim 1); the uncharged murder evidence (Claim 2); and the Confrontation Clause challenge to
covert recordings (Claim 6).

5

Lopez, Jr. does not specify when he learned that Fisher had been amidst disciplinary proceedings during trial, the
topic of the " undisclosed conflict of interest" Claim 3 below. The Second Circuit decision finding no abuse of
discretion in the Committee on Grievances for the United States District Court for the Southern District of New
York's decision to strike Fisher's name from the roll of attorneys admitted to practice in its court, and describing the
procedural and factual history of the underlying proceedings, is dated July 22, 2014. See Fisher v. Committee on
Grievances, 759 F.3d 200 (2d Cir. 2014). Even assuming this was unknown at the time of Lopez, Jr. 's appeal and
could not have been raised, it does not constitute ineffective assistance of counsel for the reasons described below.

10

Notwithstanding the Court' s determination that Lopez, Jr. ' s claims are either barred or
waived, the Court will consider each of the seven grounds on which Lopez, Jr. now claims
ineffective assistance of counsel. The Court determines that Lopez, Jr. fails to show that Fisher' s
representation fell below objective standards ofreasonableness or prejudiced the outcome of his
criminal proceeding. His § 2255 motion therefore must be denied.

1. Failure to Request Trial Continuance in Light of Government's
Disclosure of the MCC Recordings
Lopez, Jr. contends that after the Government disclosed the existence of the MCC
Recordings, Fisher should have requested a continuance to "thoroughly investigate," "properly
litigate the possibility of any prejudicial impropriety[,] ... examine the possible disqualification
of the prosecution team, and to re-evaluate proceeding to trial." Lopez, Jr. Br. at 5. He alleges
that Fisher "had no time to digest, comprehend and evaluate whether or not [Lopez, Jr' s] Sixth
Amendment right to counsel was violated," Lopez, Jr. Reply at 5, by the MCC Recordings, in
which he contends he discussed "his posture regarding plea negotiations, trial strategy
discussions he had with counsel and a preview of the proposed cross-examination by trial
counsel of a key cooperating witness." Lopez, Jr. Br. at 4.
But Fisher' s decision not to request a continuance was a strategic one entitled to a strong
presumption of effectiveness, and Lopez, Jr. provides no evidence, other than his own
conclusory assertions, to suggest that the decision was unreasonable. See Strickland, 466 U.S . at
689; Eisen, 974 F.2d at 265.
Besides, this issue has already been decided; and is not appropriate for review again
under§ 2255. The failure to request a continuance did not inhibit Lopez, Jr. from raising and
litigating - unsuccessfully - the underlying issue twice. This Court already considered and
11

rejected Lopez Jr.'s argument that any prejudice resulted from the MCC Recordings when it
denied his motion to dismiss the Indictment on this ground. See Gov't Mem. at 20. The
argument was raised on appeal and was rejected by the Second Circuit. See ECF 167 at 2-3
(affirming this Court's determinations that "no evidentiary hearing was necessary" and that
"Lopez, Jr. has advanced neither a coherent nor a cognizable argument establishing that he
potentially suffered prejudice at trial"). Obviously Lopez, Jr.' s appellate counsel had time to
review and further examine the issue, and Lopez, Jr. presents no new facts showing that actual
prejudice resulted and/or that a continuance would have created a "reasonable probability" that
the "result of the proceeding would have been different." Strickland, 466 U.S. at 694.
The Court rejects Lopez, Jr's claim that he was denied effective assistance of counsel due
to Fisher's failure to request a continuance after the MCC Recordings disclosure.

2. Failure to Request Continuance Upon Government's Disclosure of Intent
to Introduce the Uncharged Murder Evidence
Lopez, Jr. insists that Fisher should also have requested a continuance after the
Government disclosed its intent to introduce the uncharged murder evidence. See Lopez, Jr. Br.
at 5-8 . As proof that such evidence "clearly confused" and "had a substantial influence on the
jury," Lopez, Jr. cites the facts that his co-defendants' counsel requested a continuance, and that
the jury sent out notes during deliberation "inquiring about the murder testimony in a drug
conspiracy." Id. at 7-8 .
This argument is unsupported. Lopez, Jr. relies solely on his conclusory assessment that
a continuance was necessary for counsel to "comprehensively digest and explore the murder
allegations and thoroughly investigate and find witnesses to rebut" the cooperating witness'
testimony. Id. at 8. His co-defendants' motions seeking a continuance - which this Court denied
12

- constituted one of "countless ways to provide effective assistance." Strickland, 466 U.S. at
689. Fisher had a number of days to review the 3500 material, and after doing so, stated he was
satisfied and disclaimed a request for an adjournment. See Sept. 9, 2011 Tr. at 3, 13 . The
decision was a strategic, objectively reasonable one, and Lopez, Jr. ' s disagreement with such
cannot satisfy the first Strickland prong. See Stickland, 466 U.S. at 689; Eisen, 974 F.2d at 265.
Moreover, such failure did not cause any prejudice. Indeed, this Court' s denial of codefendants' continuance requests at the same juncture undermines Lopez, Jr. ' s claim. See United
States v. Thornhill, 34 F. Supp. 3d 334, 369 n.4 (S.D.N.Y. 2014) (counsel ' s failure to request a

continuance failed prejudice requirement because, among other reasons, "there is no reason to
believe that the Court would have granted the requested continuance"). Further, the issue has
already been decided by the Second Circuit. The Second Circuit held that no error existed in
admitting the evidence at trial, ending the inquiry. See ECF 167 at 3. Besides, Lopez, Jr. ' s
allegation that the jury notes demonstrate prejudice is conclusory and insufficient. See Pham,
317 F.3d at 182.
The Court rejects Lopez, Jr' s claim that Fisher' s failure to seek a continuance based on
disclosure of the uncharged murder evidence amounted to ineffective assistance of counsel.

3. Conflict of Interest Based on Ongoing Disciplinary Investigation
An ineffectiveness claim can be grounded on one of three types of conflicts: p er se,
actual, or potential. See United States v. Williams, 372 F.3d 96, 102 (2d Cir. 2004). The Second
Circuit generally finds p er se conflicts "only where trial counsel is not authorized to practice law
and where trial counsel is implicated in the same or closely related criminal conduct for which
the defendant is on trial." Id. at 103 (internal citations and quotations omitted). Actual conflicts
exist "when the interests of the defendant and his counsel diverge with respect to a material
13

factual or legal issue or to a course of action." Martinez v. Kirkpatrick, 486 Fed. App'x 158, 160
(2d Cir. 2012) (internal citations and quotations omitted). Potential conflicts "arise if the
interests of the defendant may place the attorney under inconsistent duties at some time in the
future. To violate the Sixth Amendment, an actual conflict must adversely affect the attorney's
performance, while a potential conflict must result in prejudice to the defendant." Id. (internal
citations and quotations omitted). 6 If a petitioner establishes an actual conflict, he must then
show a resultant "lapse in representation ... by demonstrating 'that some plausible alternative
defense strategy or tactic might have been pursued, and that the alternative defense was
inherently in conflict with or not undertaken due to the attorney's other loyalties or interests."'
Williams, 372 F.3d. at 106 (quoting United States v. Levy, 25 F.3d 146, 157 (2d Cir. 1994)).

Lopez, Jr. contends that although this Court's Curcio hearing addressed three potential
conflicts of interest, it did not examine Fisher' s concurrent disciplinary proceedings in the
Southern District of New York, which were unknown to Lopez, Jr. at the time. See Lopez, Jr.
Br. at 8-9. He alleges that Fisher's "personal interest in combatting the disciplinary allegations .
. . coupled with the other issues raised by the Government," created a conflict "by virtue of
[Fisher's] preoccupation with the several investigations." Id. at 9.
Fisher's disciplinary proceedings do not constitute a per se conflict. See Williams, 372
F.3d at 102. Lopez, Jr. does not express how his interests diverged from Fisher's regarding a
"material factual or legal issue or to a course of action," Martinez, 486 Fed. App' x at 160, nor
does he articulate any "plausible alternative defense strategy or tactic" that Fisher failed to
6

Although an actual conflict may exist where counsel is "being criminally investigated by the same United States
Attorney's office that was prosecuting [the defendant] ," Armienti v. United States, 234 F. 3d 820, 824 (2d Cir.
2000), the Court extensively inquired into Lopez, Jr. 's awareness and understanding of the U.S . Attorney 's Office
for the Southern District of New York' s criminal tax investigation of Fisher during its Curcio hearing, and which
Lopez, Jr. knowingly waived his objection to related conflicts. See Jan. 19, 2011 Tr.

14

pursue. Levy, 25 F.3d at 157. He instead relies on his subjective beliefthat Fisher was
preoccupied or too busy with the disciplinary proceedings to provide effective assistance,
without articulating any specific resultant prejudice. Such conclusory statements cannot
establish an actual or potential conflict. See Williams, 372 F.3d. at 106. This is especially so
where Lopez, Jr. was asked probing questions about Fisher' s ongoing criminal investigation by
the U.S . Attorney' s Office, a far more serious matter than a disciplinary action.
The Court rejects Lopez, Jr.'s claim that any conflict existed by virtue of Fisher' s
concurrent disciplinary proceedings, and rejects the ineffectiveness claim on this ground.
4. Failure to Object to Jury's Access to Recorded Phone Call Transcripts
and to Request Cautionary Instruction
Lopez, Jr. claims that Fisher was ineffective for failing to object to the provision of
English-language transcripts of Spanish-language recordings of conversations between "AM"
and Lopez, Sr., introduced at trial and requested by the jury during deliberation, and to request a
cautionary instruction. See Lopez, Jr. Br. at 9-11.
But "for purposes of effective assistance, not every possible motion need be filed, but
rather, only those having a solid foundation." United States v. Neresian, 824 F.2d 1294, 1322
(2d Cir. 1987). Any objection by Fisher would likely have been futile, since "[t]ranscripts of
tape-recorded conversations may be given to a jury in a criminal trial for the purpose of aiding
the jury in following along if certain precautions are taken to ensure accuracy," and " [w]here the
recorded conversation is conducted in a foreign language, an English language transcript may be
submitted to permit the jury to understand and evaluate the evidence." United States v. BenShimon, 249 F.3d 98, 101 (2d Cir. 2001) (citations omitted); see also United States v. Marin, 513
F.2d 974, 977 (2d Cir. 1975) (permitting Spanish-to-English transcripts recorded conversations
15

into jury room) . Lopez, Jr. has not showed that Fisher' s failure to object or request a cautionary
instruction constituted unreasonable professional conduct; nor has he even asserted that the
transcripts were inaccurate or erroneous. See United States v. Montilla , 85 Fed. App ' x 227, 230
(denying ineffectiveness claim based on counsel's stipulation to admission of wiretap
conversation transcripts where petitioner did not show any prejudicial errors).
Further, the Court concludes that the "evidence at trial regarding [Lopez, Jr' s) guilt was
overwhelming and that a limiting instruction . . . would not have altered the outcome of this
case." Baran v. United States, 160 F. Supp. 3d 591 , 602 (S.D.N.Y. 2016) (denying
ineffectiveness claim even if counsel's decision not to seek limiting jury instruction was
erroneous).
The Court thus rejects Lopez, Jr. ' s claim that Fisher was ineffective by failing to object to
the provision of transcripts and to request a cautionary instruction.

5. Failure to Properly Investigate and Call "AM" as Witness
Lopez, Jr. claims that Fisher was ineffective in failing to call "AM" at trial. He argues
that Fisher' s multiple requests made at trial for the Government to produce "AM", which this
Court rejected as untimely, shows Fisher "was acutely aware of the import of ["AM"] and the
need to secure him as a witness." Lopez, Jr. Br. at 12; see Trial Tr. at 951.
Even taking as true Lopez, Jr. 's contentions that Fisher' s failure to call "AM" constituted
sufficiently deficient representation, his claim fails to satisfy Strickland' s second requirement.

See Strickland, 466 U.S. at 697. Lopez, Jr. contends that "AM" "would have been able to
explain much of the dialogue in the conversations and its context" and "provide factual
information that would have contradicted the evidence" introduced at trial. Lopez, Jr. Br. at 12.
But " [a] defendant' s conclusory allegations about the testimony of uncalled witnesses are
16

insufficient to demonstrate prejudice." Green, 1996 WL 665719, at *3 (denying ineffectiveness
claim where petitioner did not "describe in detail the testimony [uncalled witnesses] might have
given, or substantiate the claim that they would in fact testify as proffered"). Lopez, Jr. fails to
present any objective evidence establishing prejudice, see Pham, 317 F .3d at 182, and the Court
rejects his claim that Fisher was ineffective in failing to call "AM" as a witness.

6. Failure to Raise Confrontation Clause Objection to Introduction of Calls
Between "AM" and Co-Defendant Lopez, Sr. Regarding a Murder
Lopez, Jr. asserts that Fisher was ineffective for failing to raise a Confrontation Clause
objection to the admission ofrecorded calls between "AM" and Lopez, Sr. regarding Lopez, Jr. ' s
involvement in a murder of another co-conspirator. Lopez, Jr. Br. at 12- 13.
But "there can be no separate Confrontation Clause challenge to the admission of a coconspirator' s out-of-court statement . . . made in the course and in furtherance of the
conspiracy." Bourjaily v. United States, 483 U.S. 171 , 183 (1987). Any such objection would
have been meritless. See Strickland, 466 U.S. at 689; Neresian, 824 F.2d at 1322. Indeed, the
Second Circuit rejected Petitioners' same challenge raised on appeal since "neither statements of
the accused, nor of a confidential source, on a surreptitious recording qualify as ' testimonial'
statements for the purposes of the Confrontation Clause." ECF 167 at 3. Moreover, this Court
rejected co-defendants' oppositions to the introduction of such evidence; and deemed the
evidence admissible as proof of the conspiracy and Lopez, Jr. ' s leadership position. See Sept. 6,
2011 Tr. at 5, 44. Nor does Lopez, Jr. articulate any "objective evidence other than [his]
assertions to establish prejudice." Pham, 317 F.3d at 182. The Court denies Lopez, Jr. ' s claim
that Fisher was ineffective in failing to object to the admission of these recorded calls.

17

7. Conveyance of Unreasonable Prognosis of Chance of Success at Trial and
Inadequate or Lack of Advice of Potential Sentencing Exposure
Lopez, Jr. launches a barrage of assertions within this category. See Lopez, Jr. Br. at 13-

15; Lopez, Jr. Reply at 14-18. In sum, he claims that Fisher consistently "expressed an
unreasonably positive prognosis about his chances of winning at trial," 7 Lopez, Jr. Br. at 14;
"continued to push for a trial," 8 Lopez, Jr. Reply at 15- 16; inaccurately conveyed, misinformed,
or completely failed to advise Lopez, Jr. of his applicable sentencing guidelines or potential
sentencing exposure, Lopez, Jr. Br. at 15, Lopez, Jr. Reply at 16-17; and "failed to pursue any
non-trial disposition" and or engage in any "meaningful discussions regarding a plea resolution"
with Lopez, Jr. Lopez, Jr. Reply at 16.
Lopez, Jr. contends that Fisher' s advice and repeated assurances of success "led to the
rejection of and non-pursuit of any non-trial disposition." Lopez, Jr. Br. at 13. Lopez, Jr. claims
that if only he had "been correctly advised" of his sentencing exposure or of the benefits of
7

Lopez, Jr. claims Fisher was "well-aware of the . . . mountain of threatening evidence against Mr. Lopez" and cites
four "extraordinary events" that, in his mind, should have led Fisher to provide a different, less positive, outlook.
Lopez, Jr. Br. at 13- 14. These include: (1) the Government' s statement of intent to file a 21 U.S.C. § 851 notice
seeking an enhanced penalty if a plea agreement were not reached, which it did on August 11 , 2011 ; (2) the
Government' s rejection of Fisher's request for dismissal or a more favorable plea offer; (3) the Government' s
motion in limine to admit the uncharged murder evidence; and (4) the MCC Recordings disclosure. See id.
8

Lopez, Jr. urges that "there was an element of a financial conflict afoot that may have" affected Fisher' s advice,
Lopez, Jr. Reply at 16, as demonstrated by the fact that Fisher "repeatedly requested additional legal fees ." Lopez,
Jr. Ex. A iJ 13 . This apparently refers to a letter agreement sent by Fisher to Lopez, Jr., which Lopez, Jr. signed,
apprising him of the "potential importance and value" of "certain tape recordings that a cooperator against you in
this current prosecution claims to have made secretly during his conversations with agents working with him in the
case," and estimating fees of$25,000 to purchase the tapes. See Lopez, Jr. Ex. E. Fisher, however, "stress[es]
clearly that I may not be able to purchase the tapes ... [a]nd, ifl succeed ... it may well be that my anticipations of
the Government reaction are wrong. In other words, these additional fees may not be necessary." Id. But, as
another case involving Fisher held, "even assuming [Fisher' s] behavior [in requesting money from defendantpetitioner to purchase documents] was unethical, the conduct does not relate to the constitutionality of [his]
representation." United States v. Noorzai, 953 F. Supp. 2d 499 , 513 (S .D.N.Y. 2013) (denying § 2255 petition as it
" is not the appropriate mechanism to raise [a fee dispute] claim, as such allegations do not call into question the
constitutionality or legality of [defendant-petitioner] ' s sentence").

18

pleading guilty, "there was a reasonable probability that he would not have proceeded to trial and
would have entered a guilty plea." Lopez, Jr. Br. at 15. His subsequent affidavit bolsters this
assertion: " [h]ad I been adequately represented, I would not have proceeded to trial." Lopez, Jr.
Aff. if 12.
First, Lopez, Jr. ' s allegations that Fisher did not pursue a non-trial disposition are
contradicted by bis own papers describing Fisher' s August 25, 2011 meeting with the
Government, wherein Fisher "requested dismissal of the pending charges or a favorable plea
offer," which the Government rejected. Lopez Br. at 14 (quoting Gov ' t Supp. Appeal Br. at 56) .
Second, Lopez, Jr. ' s suggestion that he would have accepted a plea deal but for Fisher' s
advice and "continued[] push[ es] for a trial," Lopez, Jr. Reply at 15, is contradicted by the
Government's submission that no plea offer was ever made. Gov. Mem. at 34-35. Moreover,
plea deals are left to the discretion of prosecutors, not attorneys, and Lopez, Jr. was not entitled
to receive a plea bargain. See United States v. Fernandez-Di/one, 668 F. Supp. 245, 249
(S.D.N.Y. 1987); Lafler v. Cooper, 566 U.S . 156, 168 (2012).
Finally, to the extent Lopez, Jr. alleges that, but for Fisher' s overly optimistic advice, he
would have pled guilty independent of any deal, such claim also fails, even assuming such
advice was sufficiently deficient. To show Strickland prejudice, a petitioner must demonstrate
"a reasonable probability that but for counsel' s deficient performance, he would have pled guilty
instead of going to trial." Raysor, 647 F.3d at 495. The Second Circuit generally "requires some
objective evidence other than defendant's assertions" that he would have pled guilty, such as a
"significant sentencing disparity" between that presented in a rejected plea offer and that
imposed in an actual sentence after a trial conviction. Pham, 317 F .3d at 182-83; see also
19

Puglisi, 586 F.3d at 217. Lopez, Jr. provides no objective evidence either that he would have
pled guilty or that Fisher did not advise him of his sentencing exposure. He instead relies on his
own unsubstantiated allegations and sworn statements from himself, his sister, and a friend. See
Lopez, Jr. Ex. A; Ex. C; Ex. D. "[I]n most circumstances a convicted felon ' s self-serving
testimony is not likely to be credible." Purdy v. Zeldas, 337 F.3d 253, 259 (2d Cir. 2003).
Moreover, Lopez, Jr. ' s allegations are rebutted by his failure, at any time until now, to ever
suggest or express a desire to plead guilty, or assert that Fisher misled him regarding his
sentencing exposure or urged him to proceed to trial. Nor does Lopez, Jr. articulate what his
sentencing exposure would have been had he pled guilty, further failing to "produce[] or
identifly] evidence sufficient to show, or permit an inference of, a significant [sentencing]
disparity." Puglisi, 586 F.3d at 217. Indeed, Lopez, Jr. ' s statements at his sentencing further
undermine his contentions: "I decided to go to trial knowing that I'm exposed to face my natural
life in prison .. . I maintain my innocence of what the government charged me with." Lopez, Jr.
Sentencing Tr. 24:23- 25:1. His present assertions are contradicted by the record and not entitled
to any presumption of validity. See Puglisi, 586 F.3d at 214.
Lopez, Jr. ' s self-serving allegations are not credible, and the Court rejects his suggestion
that, but for Fisher' s purportedly inadequate representation, "the result of the proceeding would
have been different." Strickland, 466 U.S . at 694.

*

*

*

In sum, Lopez, Jr. has failed to establish that Fisher' s performance was deficient, let
alone so deficient as to fall below objective standards ofreasonableness, or that, but for Fisher' s
ineffective assistance, the result of his proceeding would have been different. Strickland, 466
U.S. at 688, 694. Consequently, his petition is denied without a hearing, since none is necessary.
20

Additionally, Lopez, Jr. ' s motions for leave to amend and supplement his pleadings
pursuant to Fed. R. Civ. P. 15 are denied as moot and/or futile. ECF 195; ECF 197. He seeks to
add additional facts that would show, he argues, that had Fisher requested a continuance, he
would have discovered that the Government improperly learned of Lopez, Jr. ' s involvement in
the uncharged murder through the MCC Recordings. See ECF 197 at 3-4. But this argument is
flatly contradicted by the relevant cooperating witness ' testimony at trial that he disclosed this
information to the Government' s "Trial Team" in the summer of 2011 , months before the MCC
Recordings. See Trial Tr. at 453 . Moreover, as explained in detail above, the "Trial Team" did
not have improper access the MCC Recordings, and both this Court and the Second Circuit .
determined that no prejudice to Lopez, Jr. resulted therefrom.

21

CONCLUSION
For all of the foregoing reasons, the Court DENIES Petitioners' § 2255 motions, and
DENIES Lopez Jr. ' s subsequent motions to amend. As Petitioners have not "made a substantial
showing of the denial of a constitutional right," a certificate of appealability will not issue. 28
U.S .C. § 2253(c)(2). The Clerk of Court is directed to terminate all pending motions and close
this case.
Dated: New York, New York
April 20, 2017

SO ORDERED

pfc~1b4f

United States District Judge
Copies mailed to:
Fabio Morel, Reg. No. 14558-057
FCI Danbury
Federal Correctional Institution
Route 37
Danbury, CT 06811
Amaury Lopez Jr.
c/o Edward John Rymsza Esq.
Miele & Rymsza Esq.
36 West Fourth Street
Williamsport, PA 17701

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