Blanco v. United States

1

VIRGINIA BLANCO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Nos. 16-CR-408-3 (CS), 18-CV-8216 (CS)

United States District Court, S.D. New York

August 25, 2023

ORDER

CATHY SEIBEL, U.S.D.J.

Before the Court is Defendant Virginia Blanco's petition under 28 U.S.C. § 2255 and supporting submissions, (ECF Nos 194, 200, 202, 209-210, 212-213), and the Government's responses thereto, (ECF Nos. 206, 214).^[1] She seeks vacatur of her convictions and sentences for conspiracy to commit bank robbery, bank robbery, and discharge of a firearm during and in furtherance of a crime of violence. Familiarity with the trial, the Petition, prior proceedings in the case, the general legal standards governing § 2255 petitions, and the special solicitude due to pro se litigants is presumed. Petitioner argues chiefly that her trial lawyer provided ineffective assistance of counsel, that Government witnesses perjured themselves, and that prejudicial evidence was admitted at her trial.

I. Issues Cognizable Under' 2255

A. Timeliness and Relation Back

A federal prisoner seeking relief under' 2255 generally must file the motion within one year from the latest of four benchmark dates: (1) when the judgment of conviction becomes final; (2) when a government-created impediment to making such a motion is removed; (3) when the right asserted is initially recognized by the Supreme Court, if it has been made retroactively available to cases on collateral review; or (4) when the facts supporting the claim(s) could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2255(f). “Where a defendant does not seek Supreme Court review, a conviction becomes final when the time to seek such review expires, 90 days from the order affirming the conviction.” Gonzalez v. United States, 792 F.3d 232, 234 (2d Cir. 2015).^[2]

If a Petitioner seeks to amend or supplement a timely petition after the limitations period has run, Rule 15 of the Federal Rules of Civil Procedure applies. Under that Rule, amendments are deemed to relate back to the original pleading if the claim asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading. Fed.R.Civ.P. 15(c)(1). In the habeas context, a later claim will relate back only if it and the original claim are “tied to a common core of operative facts.” Mayle v. Felix, 545 U.S. 644, 664 (2005). That test is not met if the amendment is “supported by facts that differ in both time and type from those the original pleading set forth.” Id. at 650. It does not matter that the new claim arises out of the same trial or the same events, or is of the same general type as the original claims. See Soler v. United States, No. 05-CR-165, 2010 WL 5173858, at *4 (S.D.N.Y. Dec. 20, 2010); Reiter v. United States, 371 F.Supp.2d 417, 423 (S.D.N.Y. 2005), denying petition 897 F.2d 639 (2d Cir. 1990).^[3] Untimely claims are barred where the original complaint did not give fair notice of the new claim, see Palmer v. Phillips, No. 04-CV-1414, 2005 WL 1574655, at *2 (S.D.N.Y. July 6, 2005), and the new claim is “separate and distinct” from the original claim, Veal v. United States, No. 97-CR-544, 2007 WL 3146925, at *6 (S.D.N.Y. Oct. 9, 2007), aff'd, 334 F. App=x 402 (2d Cir. 2009). “Proposed amendments must satisfy the Mayle standard even where both the original claims and the new claims are for ineffective assistance of counsel.” Ozsusamlar v. United States, No. 02-CR-763, 2013 WL 4623648, at *4 (S.D.N.Y. Aug. 29, 2013), denying petition 278 Fed.Appx. 75 (2d Cir. 2008); see Veal, 2007 WL 3146925, at *6 (claim that attorney was ineffective in different way than originally alleged did not relate back); see Celaj v. United States, 516 F.Supp.3d 351, 362 (S.D.N.Y. 2021) (same) (collecting cases).

B. Procedural Default/Mandate Rule

“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 (2010). Where a claim could have been raised on direct appeal but was not, that claim is precluded from consideration under' 2255 unless the petitioner can show both cause for the failure to raise the claim and actual prejudice as a result. United States v. Warren, 335 F.3d 76, 79 (2d Cir. 2003). There is an exception to the requirement of cause and prejudice, however, for claims of ineffective assistance of counsel. Fountain v. United States, 357 F.3d 250, 254 (2d Cir. 2004). “[A] petitioner may bring an ineffective assistance of counsel claim whether or not the petitioner could have raised the claim on direct appeal.” Yick Man Mui, 614 F.3d at 54.

But claims, including ineffective assistance claims, may be barred where they have been raised on direct appeal. “[T]he so-called mandate rule bars re-litigation of issues already decided on direct appeal,” and “not only of matters expressly decided by the appellate court, but also . . . of issues impliedly resolved by the appellate court's mandate.” Id. at 53. Thus,

a defendant who raises on direct appeal ineffective assistance claims based on the strategies, actions, or inactions of counsel that can be, and are, adjudicated on the merits on the trial record, is precluded from raising new or repetitive claims based on the same strategies, actions, or inactions in a Section 2255 proceeding. However, such a defendant is not precluded from raising new ineffective assistance claims based on different strategies, actions, or inactions of counsel in a subsequent Section 2255 proceeding.

Id. at 51. Further,

[t]he mandate rule is not confined to foreclosing re-litigation of underlying issues explicitly or implicitly decided on appeal. It also bars re-litigation of an ineffective assistance claim whose factual predicates were impliedly rejected by the appellate court mandate, even if the assistance claim asserted on habeas had not been expressed in those terms on direct appeal.

Rodriguez v. United States, No. 14-CV-4628, 2017 WL 6404900, at *11 (S.D.N.Y. Dec. 13, 2017), aff'd, 767 Fed.Appx. 160 (2d Cir. 2019).

III. Discussion

A. Issues Properly Considered

This Court entered judgment on May 31, 2019, (ECF No. 161), and the Second Circuit affirmed that judgment on June 5, 2020, (ECF No. 183). Petitioner asserts no government-created impediment, newly retroactive Supreme Court decision or inability to discover facts,^[4] so her petition was due by September 7, 2021.^[5] Her Petition filed on June 7, 2021, (ECF No. 194), was thus timely. That Petition raised the following claims:

1. Trial counsel was ineffective because:

a. he was unprepared and lacked sufficient knowledge of the case;

b. his questions bolstered the testimony of cooperating witness Jeffrey Martinez;

c. he was unable to adequately discuss the case with Petitioner because he was unfamiliar with the discovery;

d. he lacked a strategy and failed to impeach witnesses whose testimony showed inconsistencies;

e. he failed to interview potential witnesses, including bank employees; and f. his cross-examinations were flawed because he did not know anything beyond what the Government had asked.

2. Cooperating witness Giovanny Marte perjured himself in that:

a. he testified that Petitioner said not to bother seizing money from the teller drawers, when his 18 U.S.C. § 3500 material said that that was his idea;

b. he testified that he paid cash for a post-robbery trip to Aruba with Petitioner, when other evidence showed the trip had been booked on line; c. he did not accurately describe his criminal history; and d. his testimony and proffers conflicted.

3. She was prejudiced by:

a. Marte repeatedly testifying that other criminals were people with whom he and Petitioner had grown up; and

b. admission of testimony regarding her assisting Marte with drugs and guns before the bank robbery.

4. The Government allowed Marte to cover up his extensive criminal history by lying about his prior arrests and convictions.

At the same time that she filed the Petition, Petitioner asked for an extension until October 1, 2021 to supplement it. (ECF No. 195.) After hearing from the Government, (ECF No. 197), the Court ruled as follows:

As explained by the Government, [Petitioner] may [supplement her' 2255 Petition] any time up to 9/7/21, which is when her one-year limitations period runs. If she wants to supplement it on or before 10/1/21 but after 9/7/21, any issues raised in a post-9/7/21 supplement must relate back to the issues raised on or before 9/7/21. Because relation-back is a complex issue (for example, additional claims of ineffective assistance may not relate back to earlier ones), I strongly recommend that Ms. Blanco say whatever she wants to say on or before 9/7/21. That gives her plenty of time.

(ECF No. 198.) Despite this warning, Petitioner did not file anything further until October 4, 2021. (ECF No. 200.)

The following issues raised in the supplemental submission^[6]relate back to the timely claims:

a. Trial counsel's failure to interview or call witnesses;

b. Marte's alleged perjury about the teller drawers, Aruba and his criminal history; and c. alleged prejudice from Marte's testimony regarding criminals with whom he and Petitioner had grown up.

The following issues arguably relate back, and giving Petitioner special solicitude, I will assume they do:

6. Trial counsel was ineffective because:

a. he failed to call co-conspirator Andres Cruz to testify; and

b. he failed to utilize a recording made by a confidential informant of Martinez.

7. Marte testified falsely in that:

a. Marte's and

...