The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District
This matter comes before the Court on a motion filed by
Petitioner Rhomny Abreu ("Petitioner") pursuant to
28 U.S.C. § 2255 seeking to vacate, set aside, or correct his sentence as a
result of alleged ineffective assistance of counsel. BACKGROUND
On September 5, 2001, Petitioner Rohmny Abreu, using the name
Daniel Crespo, entered a plea of guilty before the undersigned to
distribution and possession with intent to distribute more than
50 grams of cocaine base in violation of Title 21, United States
Code, Section 841(a)(1), and Title 18, United States Code,
Section 2. Petitioner signed a plea agreement in the name "Daniel
Crespo" and agreed to testify against his coconspirators.
In preparation for the trial against his coconspirator, the
government learned that the person known to them as "Daniel
Crespo" was really Daniel Crespo's brother-in-law, Rohmny Abreu.
Petitioner used the identity of his brother-in-law with the
government, the Court and the United States Probation Office.
Petitioner's brother-in-law had no criminal history.
The presentence investigation report indicates that when Abreu
was asked about the alias, he stated that "`he had to cover up'
his identity [due to] the `situation' he was in and that he
thought the government knew his real name." PSI 5/15/02 ¶ 36.
Despite Petitioner's explanation, the United States Probation
Office concluded that an upward adjustment for obstruction of
justice was appropriate. See id. at ¶ 37. At sentencing, this
Court held that an upward adjustment for obstruction of justice
was appropriate for Petitioner's use of a false identity, and sentenced him to 144 months imprisonment.
Petitioner alleges in his present motion that his attorney,
James Galdieri, Esq. ("Galdieri" or "Defense Counsel"), was
ineffective by refusing to argue self defense in opposition to
the obstruction of justice enhancement.
The Sixth Amendment guarantees the accused in all criminal
prosecutions "the Assistance of Counsel for his defense."
U.S. Const. amend. VI. The "benchmark for judging any claim of
ineffectiveness must be whether counsel's conduct so undermined
the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result."
Strickland v. Washington, 466 U.S. 668, 684 (1984).
Petitioner's claim that defense counsel's assistance was so
defective as to require a reversal of his conviction must satisfy
two requirements. See Strickland, 466 U.S. at 687. First,
Petitioner must show that counsel's performance was deficient.
The term deficient means that the errors made by counsel were so
serious that he or she was not functioning as the "counsel"
guaranteed by the Sixth Amendment. Second, Petitioner must show
that the deficient performance prejudiced his defense, that is
that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different. Judicial scrutiny of counsel's performance is highly
deferential and counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment. Id. at 689-90.
This Court, in deciding an ineffective assistance of counsel
claim must judge the reasonableness of counsel's challenged
conduct on the facts of the particular case viewed at the time of
counsel's conduct and decide whether, in light of all the
circumstances, the challenged conduct is outside the wide range
of professionally competent assistance. Id. at 690.
In this case, Petitioner argues that he requested his defense
counsel, "to present evidence to support his assertion that the
government was aware of his real name from the very beginning,
and show proof that he was in imminent danger from retribution."
P Br. at Attach. A. Petitioner states that he, "continually told
his defense counsel that he was not trying to mislead the
government, and only used the alias to protect his life and that
of his family." Id. at Attach B. Petitioner goes further,
stating that, "defense counsel failed to raise this point during
sentencing, and this resulted in defendant receiving a
significantly longer sentence." Id.
Upon examination of the trial transcript in its entirety, it
becomes clear that defense counsel did in fact adequately
litigate Petitioner's claims. Defendant's counsel argued that while Petitioner used a false name, he nonetheless cooperated
with the government and offered to testify against his
coconspirators. Mr. Galdieri stated,
[A]t the time of the entry of the plea of guilty to
the indictment, he did enter a plea of guilty to the
name of Daniel Crespo, and all things flowing from
that plea of guilty were not compromised in any way
even if there was a subsequent alias for that
Tr. at 4. Mr. Galdieri informed this Court that Petitioner was
fearful for his safety and the safety of his family. Furthermore,
he informed this Court that Petitioner was beaten. Mr. Galdieri
At the time of his entry of a plea and during his
debriefing he had, on a number of occasions, has told
the investigating officers that he was fearful of
physical bodily harm either to him or his family. He
had been beaten by one of his other defendants in the
other indictment quite severely prior to the time
that he entered his guilty plea to this indictment.
Id. at 5.
Following Mr. Galdieri's presentation to this Court regarding
Petitioner's fears, this Court acknowledged Petitioner's
proffered reason for using an alias, but rejected that excuse.
This Court felt that an upward adjustment was appropriate and
the thought that somehow or other he was avoiding the
possibility of threats or danger to himself or family
I must say falls on very [deaf] ears here. He took on
the identity of his own brother-in-law and under those circumstances,
which he did, ran the possibility of exposure of his
brother-in-law and/or other family members quite
extensively. It's not as though he chose a fictitious
name or true alias. It seems to me he understood that
identity of a real person in order [that] the
existence of that person could be verified.
Id. at 12.
This Court holds that counsel's trial performance was not so
deficient as to deprive Petitioner of the counsel guaranteed to
him by the Constitution. Moreover this Court finds that counsel's
actions were reasonable when viewed within the context of this
litigation. Finally, no further entreaties by defense counsel on
the "self defense" argument would have made any difference in ...