Alvarez v. United States, 08-CR-1192 (KMK)

LUCAS ALVAREZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 08-CR-1192 (KMK)

No. 14-CV-2491 (KMK)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 29, 2019

OPINION & ORDER

Appearances:

Lucas Alvarez

Middletown, NY

Pro Se Petitioner

Benjamin R. Allee, Esq.

U.S. Attorney's Office, Southern District of New York

White Plains, NY

Counsel for Respondent

KENNETH M. KARAS, District Judge:

In July 2009, Lucas Alvarez ("Alvarez" or "Petitioner") pleaded guilty to two narcotics and firearms charges and was sentenced, in January 2010, to 151 months' imprisonment. In April 2015, the Court reduced Alvarez's sentence to 121 months' imprisonment, pursuant to 18 U.S.C. § 3582(c). Alvarez has filed a Petition, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. (Pet. (Dkt. No. 101).)¹ For the reasons stated herein, the Petition is denied.

I. Factual History

On December 3, 2008, a grand jury returned Indictment S3 08-CR-1192 (the"Indictment"), charging Petitioner and nine co-defendants with conspiring to distribute, and possessing with intent to distribute, heroin and cocaine from November 2007 to December 3, 2008 in and around Middletown, New York in 2008, in violation of 21 U.S.C. § 846. (Dkt. No. 1.) In particular, the Indictment alleged that Petitioner and his co-conspirators sold bundles of heroin, daily, to dozens of customers in various parking lots of retail stores and elsewhere on Middletown's streets. (Presentence Investigation Report ("PSR") ¶¶ 13-14 (Oct. 9, 2009).) The organization, which was led by Petitioner's brother, Gilbert Alvarez, maintained a dispatch phone to organize their heroin sales. (Id.) Customers would call the dispatch phone to arrange for a purchase of heroin. (Id. ¶ 14.) The dispatcher would provide the buyer a location, for example, the Walmart parking lot, to meet the runner. (Id.) On a good day, the so-called "Alvarez Organization" would gross up to $3,000. (Id.)

The investigation revealed that, in addition to assisting in the heroin distribution operation, Petitioner would assist in the cutting and distribution of cocaine in the Middletown area. (Id. ¶¶ 16, 18.) Indeed, Petitioner helped maintain the Alvarez Organization's "stash house." (Id. ¶ 15.C.) The investigation also revealed that Petitioner possessed two guns during and in relation to the narcotics conspiracy, one of which (an Intratec 9-millimeter submachine gun and 19 rounds of 9-millimeter ammunition) was found in Petitioner's possession when he was arrested and his residence was searched. (Id. ¶ 16.)

The investigation included wiretaps issued by this Court, including wiretaps of the dispatch phone and Petitioner's phone, which he used to distribute narcotics as part of the conspiracy. (See Letter of Benjamin Allee, Esq. to the Court ("Allee Sentencing Letter") (Nov. 30, 2009), at 3-4.) Law enforcement intercepted numerous calls involving Petitioner and others in the conspiracy. (Id.) For example, between October 16 and November 24, 2008, Petitionerwas intercepted several times speaking with co-conspirators, including his brother, about the receipt and delivery of drug orders from customers. (Id.)

On July 21, 2009, pursuant to a plea agreement (the "Plea Agreement"), Petitioner pleaded guilty to a two-count superseding information charging him with conspiring to distribute 5 kilograms and more of cocaine and 5 kilograms and more of heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846, and with possessing a firearm and ammunition (the Intratec 9 discussed above) after having previously been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). (Id. at 1-2.) Also, pursuant to the Plea Agreement, Petitioner agreed, among other things, that his sentencing range was 151-188 months' imprisonment, with a mandatory minimum of 120 months' imprisonment. (Id. at 2; PSR ¶¶ 90, 92.)

At sentencing, the Court adopted the calculation agreed to by the Parties and calculated by the Probation Department and imposed a sentence of 151 months' imprisonment. (Judgment (Jan. 11, 2010), at 2 (Dkt. No. 67).)

Petitioner subsequently filed the instant § 2255 Petition. (Dkt. No. 101.)

On April 8, 2015, the Court reduced Petitioner's sentence to 121 months' imprisonment, pursuant to 18 U.S.C. § 3582(c). (Dkt. No. 110.) Petitioner did not appeal his conviction or sentence and is currently serving his sentence.

II. Discussion

A. Standard of Review

1. § 2255 Petitions

A prisoner in federal custody may move to vacate, set aside, or correct his sentence only "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that thesentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a).² "Because collateral challenges are in tension with society's strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack." Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010) (citation and quotation marks omitted). To prevail on a collateral attack of a final judgment under § 2255, a petitioner must demonstrate either the existence of a "constitutional error . . . or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)); accord Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000); Rodriguez v. United States, No. 11-CV-2957, 2013 WL 6171618, at *3 (S.D.N.Y. Nov. 25, 2013), aff'd, 679 F. App'x 41 (2d Cir. 2017).

In ruling on a § 2255 petition, the district court is required to hold a hearing "[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). Moreover, a hearing is not required where the petitioner's allegations are "vague, conclusory, or palpably incredible." Gonzalez v. United States, 722 F.3d 118, 130-31 (2d Cir. 2013) (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). To justify a hearing, the petition "must set forth specific facts supported by competent evidence,raising detailed and controverted issues of fact that, if proved at a hearing, would entitle [the petitioner] to relief." Id. at 131. Finally, because Petitioner is appearing pro se, the Court construes the Petition and his other submissions liberally and interprets them to raise the strongest arguments that they suggest. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001).

2. Ineffective Assistance of Counsel

Claims of ineffective assistance of counsel are evaluated under the framework set forth in Strickland v. Washington, 466 U.S. 668 (1984). "First, the [petitioner] must show that counsel's performance was deficient." Strickland, 466 U.S. at 687. "Second, the [petitioner] must show that the deficient performance prejudiced the defense." Id.

A petitioner will not meet the first prong based solely on disagreements with counsel's strategy or advice. Indeed, there is a "strong presumption" that counsel's conduct fell within the vast spectrum of reasonable assistance, and it is the petitioner's burden to demonstrate "that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (citation omitted); see also Tanveer v. United States, No. 06-CR-1135, 2019 WL 430262, at *4 (S.D.N.Y. Feb. 4, 2019) (same). Thus, to satisfy this prong, a petitioner must demonstrate that counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Strickland, 466 U.S. at 687. In assessing counsel's conduct, the "court must judge his conduct on the basis of the facts of the particular case, 'viewed as of the time of counsel's conduct,' and may not use hindsight to second-guess his strategy choices." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (quoting Strickland, 466 U.S. at 690).

To satisfy the second prong, Petitioner must establish that "there is a reasonableprobability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see also McNaught v. United States, 646 F. Supp. 2d 372, 378 (S.D.N.Y. 2009) (same). Measuring this probability depends on the context of the alleged error. Where the challenge is to a guilty plea on the basis of ineffective assistance of counsel, the petitioner "can show prejudice by demonstrating a 'reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Lee v. United States, 137 S. Ct. 1958, 1965 (2017) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)); see also Chhabra v. United States, 720 F.3d 395, 408 (2d Cir. 2013). "Where the [petitioner's] specific claim is that counsel has misled him as to the possible sentence which might result from a plea of guilty, the prejudice issue is whether the defendant was aware of actual sentencing possibilities, and if not, whether accurate information would have made any difference in his decision to enter a plea." Chhabra, 720 F.3d at 408 (citation and quotation marks omitted). In the sentencing context, a petitioner must demonstrate that, but for counsel's ineffective assistance, a different sentence was probable. See United States v. Workman, 110 F.3d 915, 920 (2d Cir. 1997).

B. Analysis

In his Petition, Petitioner asserts two grounds for vacatur of his conviction. First, he argues that his trial counsel was...