Nelson v. United States

Filing 6

OPINION AND ORDER: Nelson's habeas petition of February 17, 2021 is denied. Because he has not made a substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c); M atthews v. United States, 682 F.3d 180, 185 (2d Cir. 2012); Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriquez v. Scully, 905 F.2d 24, 24 (2d Cir. 1990) (per curiam). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Opinion would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court is directed to close the case. (Signed by Judge Denise L. Cote on 9/8/2021) (vfr)

Case 1:21-cv-01502-DLC Document 6 Filed 09/08/21 Page 1 of 11

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------ORANE NELSON,
Petitioner,
-vUNITED STATES OF AMERICA,
Respondent.
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21cv1502
13cr242
(DLC)
OPINION AND
ORDER

APPEARANCES:
For the petitioner:
Marshall A. Mintz
Mintz & Oppenheim LLP
260 Madison Avenue, 18th Floor
New York, NY 10016
For the respondent:
Jessica Feinstein
Jared Lenow
United States Attorney’s Office, S.D.N.Y.
One St. Andrew’s Plaza
New York, NY 10007
DENISE COTE, District Judge:
On February 17, 2021, Orane Nelson (“Nelson”) filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2255.

Nelson, who was convicted at trial of murdering Jason

Rivera (“Jason”) and his sister Jessica Rivera (“Jessica”),
contends that he was denied effective assistance of counsel

Case 1:21-cv-01502-DLC Document 6 Filed 09/08/21 Page 2 of 11

during the trial. 1

For the following reasons, Nelson’s petition

is denied.
Background
The trial evidence established the following.

From 2011

through 2013, Nelson sold crack cocaine in the Bronx.

One of

Nelson’s drug suppliers was Jonathan Sambula (“Sambula”), who
operated a drug business with his brother Jason and trial
witness Guillermo Ortiz (“Ortiz”).

Sambula’s drug ledger, which

he kept on his cellphone, listed both Nelson’s street nickname
“Amaze” and the amount of money that Nelson owed Sambula.
After Sambula’s arrest on January 8, 2013, Jason, with help
from Ortiz, attempted to collect money owed to Sambula.
time, Nelson owed Sambula $1,820.

At that

After speaking with Nelson by

telephone, Jason told Ortiz that Nelson was not willing to pay
the money he owed Sambula.
On January 15, Ortiz was selling drugs on a street corner,
while Jason was in a car parked around the corner.

Ortiz saw

Nelson walk toward him from the direction of the parked car.
When he passed Ortiz, Nelson stated that “n***ers think n***ers
is pussy.”

Ortiz then walked around the corner to speak with

Jason, who was in the car with his girlfriend, Jasmin Guzman

Nelson also asserted in his petition, but has since abandoned
any claim, that he should be resentenced under the First Step
Act of 2018.
1

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(“Guzman”).

Jason told Ortiz that he had threatened to shoot

Nelson if he did not pay his debt.

The two then went looking

for Nelson but could not find him.
That night, Jason spoke with Nelson by telephone.

The two

arranged for Jason to pick up the money Nelson owed Sambula.
Unbeknownst to Jason, however, Nelson planned to murder him.
Jennifer, a student, joined Jason on the trip so that she could
buy snacks from the store.

As Jason and Jennifer left the

house, Jason told his aunt, Sandy Rivera (“Sandy”), that he was
going to collect money from “Amaze.”

Sandy, who died in 2014,

was unavailable at trial but had related this conversation to a
trial witness shortly after the murders.

The last call Jason

made on his cellphone was to Nelson.
Jason and Jennifer picked up Nelson and one other man
around midnight and drove to Perry Ave in the Bronx.
his accomplice sat in the back seat of the vehicle.

Nelson and
Nelson shot

Jason and Jennifer in the back of the head, killing them both.
The vehicle then crashed.

Nelson and his accomplice fled the

scene in opposite directions.
Eleven different cameras on the street and in the
surrounding area captured the moment of the shooting and the two
men fleeing the murder scene.

At trial, Sambula identified one

of the fleeing men, who had a beard and was wearing a vest, as
Nelson.

The footage also showed that Nelson’s accomplice fled
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the rear passenger side of the car as muzzle flashes from the
shooting continued inside the car, confirming that Nelson,
rather than his accomplice, was the shooter.
Cell site and call records for Nelson and Jason’s phones
provided additional evidence that Nelson committed the murders.
The records revealed that their cellphones traveled to the same
area just fifteen minutes before the murders and that Nelson’s
cellphone left the scene of the crime after the murders,
following the route of the bearded man captured by the camera
footage.
At Jason’s funeral several days after the murders, Ortiz
received a call from a man who identified himself as “A.”

The

caller said that Ortiz “was the one who was supposed to be in
the car.”

In the weeks and months following the murders, Nelson

conducted numerous internet searches related to the murders,
including a search for “double homicide bronx perry ave.”
Nelson was charged in a four-count superseding indictment
with conspiring to distribute 280 grams and more of cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and
846; using and carrying firearms during and in relation to that
conspiracy, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i); and
with murdering Jennifer and Jason through the use of a firearm,
in violation of 18 U.S.C. §§ 924(j)(1) and 2.

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Nelson’s trial began on February 21, 2017.

Nelson was

represented by assigned counsel Lee Ginsburg and Nadjia Limani
(collectively, “Defense Counsel”).

On March 3, the jury

returned a guilty verdict on all counts.

On June 28, this Court

sentenced Nelson to a 65-year term of imprisonment.
On June 30, 2017, Nelson, represented by new counsel,
appealed his conviction.

Nelson’s appeal advanced five main

arguments:
(1) the Government’s pretrial production of
impeachment material for cooperating witness Ortiz was
untimely, and therefore was effectively suppressed;
(2) prosecutors engaged in misconduct during trial;
(3) hearsay statements made by Sandy, a deceased aunt
of both victims, should not have been received into
evidence; (4) evidence of a threatening telephone call
that Nelson placed to Ortiz after the murders, and a
call that preceded the murders, were not properly
authenticated; and (5) evidence of Jason’s violent
past was improper character evidence.
United States v. Nelson, 756 F. App’x 87, 88 (2d Cir. 2019)
(“Second Circuit Decision”), cert. denied, 140 S. Ct. 1135
(2020).

On March 6, 2019, the Court of Appeals affirmed

Nelson’s conviction.

On February 24, 2020, the Supreme Court

denied his petition for a writ of certiorari.
On February 17, 2021, Nelson timely filed this petition for
a writ of habeas corpus.

The petition became fully submitted on

June 24.

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Discussion
Nelson contends that Defense Counsel provided ineffective
assistance at trial.

To prevail on a claim of ineffective

assistance of counsel, a petitioner must satisfy the wellestablished standard of Strickland v. Washington, 466 U.S. 668
(1984).

That standard requires a petitioner to make two

showings:
First, he must demonstrate that his counsel’s
representation “fell below an objective standard of
reasonableness.” Second, he must establish that he
suffered prejudice -- in this context, meaning that
“there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the
proceeding would have been different.”
Fulton v. Graham, 802 F.3d 257, 265 (2d Cir. 2015) (quoting
Strickland, 466 U.S. at 688, 694).
The Strickland Court clarified, however, that
[t]he object of an ineffectiveness claim is not to
grade counsel’s performance. If it is easier to
dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will
often be so, that course should be followed.
Strickland, 466 U.S. at 697.
Under the first prong of the Strickland test, “[a]ctions
and/or omissions taken by counsel for strategic purposes
generally do not constitute ineffective assistance of counsel.”
United States v. Melhuish, 6 F.4th 380, 393 (2d Cir.
2021)(citation omitted).

“An attorney’s strategic choices made

after thorough investigation of law and facts relevant to
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plausible options are virtually unchallengeable.”

United States

v. Delva, 858 F.3d 135, 157 (2d Cir. 2017)(quoting Strickland,
466 U.S. at 690).

Defense counsel is “strongly presumed to have

exercised reasonable judgment in all significant decisions.”
Murden v. Artuz, 497 F.3d 178, 198 (2d Cir. 2007)(quoting
Strickland, 466 U.S. at 690).
The “reasonable probability” that the prejudice prong of
the Strickland test requires is defined as “a probability
sufficient to undermine confidence in the outcome.”

United

States v. Melhuish, 6 F.4th 380, 393 (2d Cir. 2021)(citation
omitted).

In making this determination, “[a] court must

consider the totality of the evidence before the judge or jury.”
Murden, 497 F.3d at 198 (quoting Strickland, 466 U.S. at 695).
Nelson asserts that Defense Counsel provided ineffective
assistance at trial in three ways.

He asserts that Defense

Counsel failed to cross-examine Ortiz about his prior
inconsistent statements, failed to object to the introduction of
Ortiz’s testimony about Nelson’s threatening call to him, and
failed to object to the introduction of evidence of Jason’s
prior violent acts.

Given the strong direct and circumstantial

evidence of Nelson’s guilt that was entirely independent of this
evidence, Nelson has failed to show that he was prejudiced by
any of these alleged deficiencies in Defense Counsel’s
performance.

Thus, this petition may be denied solely on the
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ground that Nelson has failed to establish any reasonable
probability that, but for these alleged errors by Defense
Counsel, he would not have been found guilty.

Indeed, Nelson

fails to engage with the existence of powerful independent
evidence of his guilt.

In any event, for the reasons set forth

below, Nelson has not shown that Defense Counsel’s performance
fell below an objective standard of reasonableness, whether
these instances are examined independently or together.
1. Jason’s Threat to Nelson
Nelson first argues that Defense Counsel failed to impeach
Ortiz with his statement to the police in an interview on
January 18, 2013, shortly after the murders.

In that statement,

Ortiz did not describe a threat Jason made to Nelson on the day
of the murders.

Ortiz described that threat, however, in his

statement made to the police following his own arrest in July of
2013, and again at trial. 2
The decision not to pursue this particular line of cross
examination does not show that Defense Counsel was ineffective
at trial.

Defense Counsel vigorously cross-examined Ortiz using

other lines of attack.

Moreover, it was reasonable for Defense

The petition’s suggestion that Defense Counsel had not reviewed
the 3500 material is rejected. The record is clear that Defense
Counsel did review the material. Indeed, the Second Circuit
observed that “defense counsel’s comments during trial made
clear that he had reviewed the Section 3500 material.” Second
Circuit Decision, 756 F. App’x at 88.
2

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Counsel to decline to confront Ortiz with his January statements
to the police.

There were other aspects of the January

interview that would have done damage to Nelson’s defense.

For

example, in the January interview, when asked who would have
wanted Jason dead, Ortiz explained that the day before Jason’s
murder Jason was pursuing a debt that Nelson owed Sambula.
In a related argument, Nelson contends that Defense Counsel
failed to take advantage of the fact that a statement by Jason’s
girlfriend Guzman to investigators also contradicted Ortiz’s
trial testimony about the threat Jason made to Nelson on the day
of the murders.

The apparent inconsistencies between Guzman and

Ortiz included whether she was in the car with Jason, whether
she recalled a confrontation between Jason and Nelson, and
whether she saw Ortiz on January 15, 2013.

To take advantage of

the divergence in the statements made by Guzman and Ortiz,
Nelson would have had to call Guzman as a defense witness at
trial.

That decision would not have been without risks.

Guzman’s trial testimony may have revealed that she had a poor
recollection of that day’s events or that she had been less than
forthcoming when interviewed by law enforcement officers, among
other possibilities.

It was also reasonable for Defense Counsel

to decide not to expose the jury to what would have been
Guzman’s emotionally charged testimony about the murder of her
boyfriend.
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2. Nelson’s Telephone Call to Ortiz
Nelson next argues that Defense Counsel was ineffective for
failing to object to Ortiz’s testimony about a call he received
while he was at Jason’s wake. 3

The caller said that Ortiz was

supposed to be the one in the car.

Ortiz explained that he did

not recognize the voice of the caller but that the caller said
that “This is A,” meaning Amaze. 4

Nelson contends the testimony

was both irrelevant and prejudicial.

He adds that Defense

Counsel should have asked for a limiting instruction.
Nelson has not shown any ground for an objection by his
counsel nor explained what limiting instruction Defense Counsel
should have sought.

The content and context of the call

supported a finding that Nelson was the caller.

As such, the

call was properly admitted as an admission and was relevant to
the issues before the jury.

Nelson has failed to show any

deficiency in this regard by Defense Counsel.
3. Jason’s History of Violence
Finally, Nelson argues that Defense Counsel should have
objected to testimony from Sambula and Ortiz that Jason had

While Nelson makes a similar argument about a second call, he
emphasizes the call Ortiz received at the wake.
3

In response to the defendant’s claim on appeal that the call
was not properly authenticated, the Court of Appeals observed
that there was no plain error regarding authentication. Second
Circuit Decision, 756 F. App’x at 90.
4

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acted violently or aggressively on prior occasions and that they
considered him aggressive.

Defense Counsel’s decision not to

object to the introduction of evidence of Jason’s violent
character and prior bad acts was reasonable.

Defense Counsel

chose instead to use that evidence to assist the defense.

That

decision was a strategic choice properly left to the judgment of
counsel.
Conclusion
Nelson’s habeas petition of February 17, 2021 is denied.
Because he has not made a substantial showing of a denial of a
constitutional right, a certificate of appealability will not
issue.

See 28 U.S.C. § 2253(c); Matthews v. United States, 682

F.3d 180, 185 (2d Cir. 2012); Tankleff v. Senkowski, 135 F.3d
235, 241 (2d Cir. 1998); Rodriquez v. Scully, 905 F.2d 24, 24
(2d Cir. 1990) (per curiam).

The Court certifies, pursuant to

28 U.S.C. § 1915(a)(3), that any appeal from this Opinion would
not be taken in good faith.
438, 445 (1962).

Coppedge v. United States, 369 U.S.

The Clerk of Court is directed to close the

case.
Dated:

New York, New York
September 8, 2021
_________________________
DENISE COTE
United States District Judge

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