United States v. Ramirez

UNITED STATES OF AMERICA, v. CHRISTOPHER RAMIREZ, Defendant.

CHRISTOPHER RAMIREZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Nos. 13-cr-135 (RJS), 16-cv-5980 (RJS)

United States District Court, S.D. New York

July 11, 2022

OPINION & ORDER

RICHARD J. SULLIVAN, CIRCUIT JUDGE

Petitioner Christopher Ramirez, who is incarcerated and proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2255 to vacate his conviction and sentence for (1) participating in a narcotics distribution conspiracy and (2) using a firearm during and in relation to that conspiracy. (Doc. No. 99 at 7; Doc. No. 102 at 15.)^[1] In addition, Ramirez seeks leave to file a second supplemental petition^[2] that requests, in the alternative, a resentencing in light of the Second Circuit's decision in United States v. Townsend 897 F.3d 66 (2d Cir. 2018). (Doc. No. 107 at 6 8.) Finally, in a separate motion (“Ramirez Mot.”), Ramirez seeks to reduce his sentence pursuant to section 404(b) of the First Step Act of 2018, Pub. L. No 115-391, 132 Stat. 5194, 5222.^[3] For the reasons set forth below, Ramirez's petition for habeas corpus, his motion for leave to file a second supplemental petition, and his motion to reduce his sentence under the First Step Act are DENIED.

I. Background

From approximately mid-2008 to April 2009, Ramirez was a member of a drug crew, led by Alfonso Vellon, that sold crack cocaine and marijuana on 174th Street in the Bronx. (PSR ¶¶ 10, 12.) During the six months or so that Ramirez participated in the drug conspiracy, he was responsible for the distribution of approximately 2.6 kilograms of crack cocaine, as well as five kilograms of marijuana. (Id. ¶ 15.) In addition to selling drugs, Ramirez served as an “enforcer” for the crew, ensuring that no one outside of the crew sold drugs within the crew's territory. (Id. ¶ 11.)

On April 18, 2009, Jason Ozuna, a rival drug dealer who had been selling drugs on 174th Street before Vellon and his crew arrived, confronted Ramirez and Vellon about selling crack cocaine in what Ozuna claimed was his territory. (Id. ¶ 13.) Ramirez and Ozuna started to fight, but were soon separated. (Id.) After the fight, someone yelled “everyone bring your biggest guns.” (Id.) Later that day, Ramirez returned to the scene of the fight with a .45 caliber semiautomatic handgun, and Ozuna came with a 12-gauge shotgun. (Id. ¶ 14.) When the two men saw each other, they fired their weapons. (Id.) Ramirez's shot struck Ozuna in the back of the head, leaving him partially paralyzed. (Id.)

On August 9, 2013, a grand jury returned an indictment charging Ramirez with (1) conspiracy to distribute (and possess with intent to distribute) 280 grams or more of crack cocaine and an unspecified amount of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(D); and (2) the use and carrying of a firearm during and in relation to that drug-trafficking conspiracy in violation of 18 U.S.C. § 924(c)(1)(A) and (c)(1)(A)(iii) and 18 U.S.C. § 2. (Doc. No. 15 ¶¶ 2-4.) On September 9, 2013, the government filed a prior felony information pursuant to 21 U.S.C. § 851 based on Ramirez's October 4, 2007 conviction in New York state court for criminal possession of a narcotic drug; as a result of the prior felony, under the law as it then existed, Ramirez faced a mandatory sentence of twenty years on the conspiracy count, see 21 U.S.C. § 841(b), and a mandatory consecutive sentence of ten years on the firearms count, see 18 U.S.C. § 924(c)(1)(A)(iii). Trial commenced on October 1, 2013. (Minute Entry for Proceedings Held Oct. 1, 2013.) The government's case-in-chief included testimony from two cooperating witnesses - Vellon, the leader of the alleged drug conspiracy, and Ozuna, the rival drug dealer allegedly shot by Ramirez. (See, e.g., Tr. at 268:13-269:23, 66:8-66:18.) The government also presented DNA evidence linking Ramirez to the gun recovered at the crime scene. (Id. at 438:15-438:18.) At the close of the government's case-in-chief, Ramirez moved for a judgment of acquittal pursuant to Rule 29(a) of the Federal Rules of Criminal Procedure, and the Court orally denied the motion on the record. (Id. at 495:5-495:18.) On October 7, 2013, the jury returned guilty verdicts on both counts. (Id. at 708:17-20, 708:25-709:2.) In response to two special interrogatories, the jury also found that the drug conspiracy involved 280 grams or more of crack cocaine and that Ramirez discharged a firearm or aided and abetted the discharge of a firearm in or about April 2009. (Id. at 708:21-24, 709:3-6.)

On December 9, 2013, Ramirez renewed his Rule 29 motion for acquittal on the ground that the evidence presented by the government was insufficient to sustain his conviction. (Doc. Nos. 44, 45.) In the alternative, Ramirez sought a new trial pursuant to Rule 33, also based primarily on the insufficiency of the evidence. (Doc. No. 45 at 5-6.)

On January 7, 2014, in connection with the sentencing of cooperating witness Vellon, the Court learned that Vellon's Pre-Sentence Investigation Report (“PSR”) predated Vellon's testimony at Ramirez's trial. (Doc. No. 67 at 3.) Accordingly, the Court directed the government to address whether it was in possession of Vellon's PSR at the time of trial and whether it improperly withheld portions of the PSR from the defense. (Doc. No. 54.) After the government acknowledged that certain portions of the PSR should have been disclosed pursuant to both the Jencks Act, 18 U.S.C. § 3500, and Giglio v. United States, 405 U.S. 150 (1972), Ramirez contended that this failure to disclose exculpatory evidence warranted a new trial. (Doc. No. 67 at 3.)

At the outset of Ramirez's sentencing hearing on May 27, 2014, the Court orally denied Ramirez's renewed motion for a judgment of acquittal and his motion for a new trial. (Doc. No. 64 at 5-7.) This oral ruling was followed by a June 9, 2014 written opinion explaining the Court's reasoning - initially filed under seal. (Doc. No. 67.) In short, the Court concluded that (1) sufficient evidence supported Ramirez's conviction on both charged counts; and (2) although the government conceded that it should have disclosed portions of Vellon's PSR pursuant to the Jencks Act and Giglio, that failure to disclose did not prejudice Ramirez within the meaning of Giglio, and - for essentially the same reasons - the Jencks Act violation amounted to harmless error. (Id. at 18.)

The Court sentenced Ramirez on May 27, 2014, principally to thirty years' imprisonment, to be followed by a ten-year term of supervised release. (Doc No. 64 at 28.) That thirty-year sentence reflected the mandatory minimum sentence required by law: twenty years for the narcotics distribution conspiracy and ten years for using (and discharging) a firearm in furtherance of that conspiracy, to run consecutive to the sentence imposed on the narcotics count as required by the statute. (PSR ¶¶ 2-3); see 21 U.S.C. § 841(b)(1)(A)-(b)(1)(A)(iii); 18 U.S.C. § 924(c)(1)(A)(iii)-(c)(2).

Ramirez appealed his conviction. (Doc. No. 61.) After filing his notice of appeal, Ramirez requested a change of counsel before the Second Circuit, and he was appointed new appellate counsel pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A. See United States v. Ramirez, No. 14-1992, ECF No. 16 (2d Cir. July 30, 2014). On appeal, Ramirez primarily argued that he was entitled to a new trial because of the government's failure to disclose portions of Vellon's PSR before Ramirez's trial. See id., ECF No. 45 at 21-23. On October 7, 2015, the Second Circuit affirmed Ramirez's judgment of conviction, concluding that any failure of the government to disclose impeachment material did not prejudice Ramirez within the meaning of Giglio and Brady v. Maryland, 373 U.S. 83 (1963). See United States v. Ramirez, 628 Fed.Appx. 15, 17-18 (2d Cir. 2015).

Ramirez, proceeding pro se, subsequently petitioned the Court to vacate, set aside, or correct his thirty-year mandatory minimum sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 99.) Ramirez later sought leave to file a supplemental petition “due to the vague and conclusory nature of the allegations contained in [his original section 2255 petition].” (Doc. No. 102 at 1.) The Court granted Ramirez's request (Doc. No. 108), whereupon Ramirez filed his first supplemental petition. Taken together, Ramirez's petition and first supplemental petition allege three categories of claims. First, Ramirez asserts various theories of ineffective assistance by his trial and appellate counsel, which are discussed in greater detail below. (Doc. No. 102 at 1-15; Doc. No. 99 at 7-9.) Second, Ramirez reiterates his claim (raised on direct appeal) that the government withheld exculpatory or impeaching evidence in violation of Brady and Giglio, and that he was “greatly prejudiced by this Brady violation.” (Doc. No. 99 at 9.) And third, Ramirez argues that the statutory language of 18 U.S.C. § 924(c) is unconstitutionally vague, requiring that his firearm conviction be vacated. (Id. (citing Johnson v. United States, 576 U.S. 591 (2015)).)

On November 2, 2016, the government filed its response, opposing each claim in Ramirez's petition and first supplemental petition. (16-cv-5980, Doc. No. 8.) On May 8, 2017, Ramirez submitted a letter requesting that the Court hold this matter in abeyance because he had not yet received the government's response, and requesting leave to file a reply after receiving the government's response. (Doc No. 105 at 2.) On May 15, 2017, the Court granted Ramirez's request and held this matter in abeyance (Doc. No. 106), but the Court never received a reply from Ramirez.

On August 12, 2019, Ramirez then filed a pro se motion seeking leave to file a second supplemental petition....