United States District Court, D. Connecticut
MEMORANDUM OF DECISION DENYING MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 [DKT.
Vanessa L. Bryant, United States District Judge.
Ramon Gomez (“Petitioner” or “Mr.
Gomez”), seeks to have his conviction and sentence
vacated pursuant to 28 U.S.C. § 2255. He claims fives
grounds of ineffective assistance of counsel. Each of Mr.
Gomez's grounds is devoid of merit and the Court
accordingly denies his motion.
November 9, 2011, a grand jury indicted Mr. Gomez for
conspiracy to distribute and to possess with intent to
distribute one kilogram or more of heroin in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846.
United States v. Gomez, 11-cr-00174-VLB-9
(hereinafter “Gomez”), [Dkt. 59
(Indictment) at 2]. Mr. Gomez and two of his co-defendants,
Antovany Acosta and David Castellano-Nunez, proceeded to
trial beginning on June 2, 2013. See Gomez, [Dkt.
754 (Trial Minute Entry)]. On June 11, 2013, the Government
closed its case-in-chief and each of the three defendants
moved for judgment of acquittal, which the Court denied.
See Gomez, [Dkt. 770 (Trial Minute Entry)].
13, 2013, with the trial concluded, the jury convicted Gomez,
Acosta, and Castellano-Nunez of the narcotics conspiracy
charge set forth in the Indictment. See Gomez, [Dkt.
778 (Gomez Verdict Form)]. Within 14 days of the verdict,
Acosta and Castellano-Nunez filed renewed motions for
judgment of acquittal, or in the alternative, for a new
trial, arguing that the evidence presented was insufficient
to prove their guilt beyond a reasonable doubt. Gomez did not
file a renewed motion for judgment of acquittal at that time.
See Gomez, [Dkt. 793 (Castellano-Nunez Acquittal
Mot.); Dkt. 795 (Acosta Acquittal Mot.)]. On November 8,
2013, this Court denied the renewed motions for judgment of
acquittal. See Gomez, [Dkt. 880 (Order)].
the withdrawal of Gomez's trial counsel in March 2014,
newly appointed counsel moved for leave to file a motion for
judgment of acquittal or a new trial despite having missed
the deadline to do so. See Gomez, [Dkt. 920 (Mot.
for Leave to File)]. The Court denied the motion without
prejudice to refiling, determining that the defendant had not
alleged sufficient facts for the Court to find that the
failure to file the motion was the result of excusable
neglect. Gomez, [Dkt. 922 (Order)].
30, 2014, this Court sentenced Mr. Gomez to the statutory
mandatory minimum sentence of 120 months in prison and a
suspended fine of $50, 000, which was contingent upon illegal
re-entry by Mr. Gomez into the United States following his
deportation. See Gomez, [Dkt. 943 (Hr'g Minute
Entry); Dkt. 942 (Judgment)]. The Court entered the judgment
against Mr. Gomez on July 31, 2014. See Gomez, [Dkt.
Gomez appealed the judgment on August, 7, 2014. See
Gomez, [Dkt. 945 (Notice of Appeal)]. Specifically, Mr.
Gomez argued (1) that reversible error was committed when the
lower court permitted the Government translator to offer a
lay opinion as to Mr. Gomez's voice identification which
failed to satisfy Federal Rule of Evidence 701; (2) that the
rule against hearsay and the confrontation clause were
violated by the admission of post-arrest statements made by
Mr. Gomez's co-defendants; and (3) that the fine should
be vacated. United States v. Gomez, 14-2823
(hereinafter “Gomez Appeal”), [Dkt. 76
(Brief of Appellant) at 20, 29, 35].
March 3, 2016, the Second Circuit issued a summary order
affirming the judgment of the district court, except that the
fine imposed was stricken. See United States v.
Pinzon-Gallardo, et al., 639 Fed.Appx. 701 (2d Cir. Feb.
11, 2016). Among other things, the Second Circuit concluded
that “the Spanish-language interpreter's testimony
was within the bounds of admissible lay opinion on voice
identification.” Id. at 705. Next, the court
concluded that any error in admitting statements by Mr.
Gomez's co-defendants was harmless because “[t]his
was not, after all, ‘a close case that hinged directly
on the jury's credibility determinations.'”
Id. (quoting United States v. Gaines, 457
F.3d 238, 244 (2d Cir. 2006). Finally, the court concluded
that Mr. Gomez was not able to pay the fine imposed, and thus
struck the fine from his judgment. Id. 706.
March 3, 2017, Mr. Gomez timely filed the instant § 2255
motion. See [Dkt. 1]. Mr. Gomez raises five grounds
of ineffective assistance of counsel based on counsel's
failure (1) to move for judgment of acquittal following the
conclusion of the trial; (2) to advise Mr. Gomez of his right
to testify at trial; (3) to object to the drug quantity
attributed to Mr. Gomez; (4) to argue that Mr. Gomez was
actually innocent of the drug conspiracy; and (5) to call an
expert to rebut the Government interpreter who identified Mr.
Gomez's voice. See Id. Mr. Gomez's arguments
for grounds 1 through 4 hinge on the fact that he was
allegedly in the Dominican Republic visiting family from
October 2011 through October 2012-he suggests that counsel
should have argued that he was actually innocent, and that
there was insufficient evidence to convict him or to find the
alleged drug quantity because he was out of the country
during that time. He further suggests that, had he known of
his right to choose to testify at trial, he would have told
the jury that he was out of the country from October 2011
through October 2012 and that he therefore could not have
been a part of the alleged conspiracy.
response, the Government points out that the predicate acts
that formed the basis for liability occurred between May 2011
and September 2011 such that Mr. Gomez's alleged absence
from the country from October 2011 through October 2012 is
inconsequential. The Government further lays out the
substantial evidence presented at trial which the jury could
have relied on in finding Mr. Gomez guilty. For each ground,
the Government argues that counsel was not ineffective and
also that, even if counsel were ineffective, no prejudice
resulted, as required by Strickland v. Washington,
466 U.S. 668 (1984).
2255 enables a prisoner in federal custody to petition a
federal court to vacate, set aside, or correct the sentence.
28 U.S.C. § 2255(a). Section 2255 imposes a one year
period of limitation, which runs from the latest of
“(1) the date on which the judgment of conviction
becomes final; (2) the date on which the impediment to making
a motion created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action; (3) 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; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through exercise
of due diligence.” Id. at § 2255(f).
under § 2255 is generally available “only for a
constitutional error, a lack of jurisdiction in the
sentencing court, or an error of law or fact that constitutes
a fundamental defect which inherently results in complete
miscarriage of justice.” Graziano v. United
States, 83 F.3d 587, 590 (2d Cir. 1996) (internal
quotation marks and citation omitted). Section 2255 provides
that a district court should grant a hearing “[u]nless
the motion ...