The opinion of the court was delivered by: William J. Martini Judge
MARTIN LUTHER KING JR. FEDERAL BLDG. & U.S. COURT HOUSE 50 WALNUT STREET, P.O. BOX 419 NEWARK, NJ 07101-0419 (973) 645-6340
Julio Felix brings the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner Felix attacks his sentence, arguing that he was denied his Sixth Amendment right to effective assistance of counsel at trial. After consideration of Felix's motion, as well as the files and records of his case, this Court concludes that Felix is not entitled to relief. As such, no hearing is required. 28 U.S.C. § 2255(b). Thus, the Government's motion to dismiss is GRANTED, and Felix's petition is DISMISSED WITH PREJUDICE.
On July 20, 2004, a federal grand jury returned a superseding indictment against Julio Felix, charging him with: (1) conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846; (2) possession with intent to distribute cocaine, under 21 U.S.C. §§ 841(a), (b)(1)(B)(ii); and, (3) two counts of using a telephone to facilitate the commission of a conspiracy to distribute cocaine, in violation of 21 U.S.C. § 843(b). Petitioner Felix entered a plea of not guilty.
In anticipation of trial, Felix filed several pretrial motions, which included a motion to suppress items recovered during a search of his apartment. The items seized were a pager, a cell phone, a bill, some paper and a scale.*fn1 The crux of Felix's suppression argument, as presented by his counsel in this motion and during oral argument, was that his oral consent to the search was not given voluntarily. (9/15/04 Tr. 18: 18-21) ("And our position is that Mr. Felix ... reasonably believed that he had no choice but to agree because of the action and statement the agents."). Felix submitted no affidavits or documentation in the record to substantiate this position. Thus, after oral argument, the Court reserved on the motion to allow Felix to submit a declaration or other affirmation setting forth the threshold showing required for a suppression hearing. (9/15/04 Tr. 22: 8-18).
Following oral argument on his pretrial motions, Petitioner Felix wrote to the Court requesting new counsel. On September 24, 2004, Felix received a new attorney and a trial date of November 16, 2004. When the date of trial arrived, the Court granted Petitioner's request for an additional day to prepare his case.
On the morning of Petitioner's rescheduled trial, November 17, 2004, the Court again heard Petitioner Felix's suppression motion. Through counsel, Felix presented a different theory for suppression, specifically that he never gave the agents consent to search his apartment. Petitioner Felix submitted no declaration or affidavit to substantiate this theory. Accordingly, the Court denied Petitioner's suppression motion but stated that defense counsel could cross-examine the agent who searched Felix's apartment on the consent issue.
In addition, before trial began, the Court addressed a separate issue raised by the Government concerning one of its witnesses. The Government informed the Court of a November 5, 2004 letter sent to defense counsel concerning one of the Government's cooperating witnesses, Hugo Agudelo. As disclosed in this letter, Agudelo experienced an amnesiac episode in 1994, which lasted for three months following a car accident. The Government represented to the Court that it had inquired further of Mr. Agudelo and was unaware of any recurrence of amnesia in the intervening ten years. Following this disclosure, the Court ruled that defense counsel could raise Agudelo's past amnesia during cross-examination. (11/17/04 Tr. 76: 2-8).
At the heart of the Government's case-in-chief during trial were a series of tape-recorded conversations between Hugo Agudelo and a Hispanic male alleged to be Petitioner Felix. Hugo Agudelo, an admitted cocaine and heroin dealer, testified that he was involved with the conspiracy charged in the Superseding Indictment. Specifically, Agudelo's testimony was used by the Government to explain the methods of the conspiracy and the significance of the conversations discussed on the tapes. For example, Agudelo identified Felix's voice in those recorded conversations in which Felix did not identify himself, see, e.g.,11/18/04 Tr. 16:25-17:3, and explained the meaning of certain coded statements.*fn2 Agudelo also testified that Peititoner Felix's apartment was used as a drug stash house.(11/18/04 Tr. 31:1-32:8).
Agudelo was not the Government's only witness. In addition to Agudelo, the Government presented the testimony of Special Agent James Alleva, who testified that Drug Enforcement Administration ("DEA") agents:
identified a phone number over our wiretap ... [and] did a check on that phone number. It came back to 201-583-9446, Julio Felix ... We then went to that location, we saw his name, physically saw his name on the door buzzer system. We had numerous phone conversations between Mr. Agudelo and Julio Felix on our wiretap to that phone number. We had surveillance on the 12th and the 14th, which saw Mr. Agudelo at that ...