Gomez v. United States

          MEMORANDUM OF DECISION DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 [DKT. 1]

          Hon. Vanessa L. Bryant, United States District Judge.

         Petitioner, 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.

         Background

         On 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)].

         On June 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)].

         Following 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)].

         On July 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. 942].

         Mr. 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].

         On 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.

         On 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.

         In 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).

         Discussion

         Section 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).

         Relief 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 ...