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Durante v. United States

United States District Court, D. New Jersey

January 13, 2020



          STANLEY R. CHESLER, U.S.D.J.


         This matter has been opened to the Court by Petitioner's filing of a motion pursuant to vacate, correct, or set aside sentence pursuant to 28 U.S.C. § 2255 (“Motion”). For the reasons explained in this Opinion, the Court conduct a hearing on Ground Four of the Motion and reserve judgment on that claim pending the outcome of the hearing. The Court will otherwise deny the Motion for the reasons stated in this Opinion and deny a certificate of appealability.


         Petitioner was a physician with a practice in New Jersey. A federal sting operation revealed that he had been illegally selling prescriptions for oxycodone to two drug-distribution networks: one run by codefendant Andre Domando, and one by codefendant Dennis Abato. Both Domando and Abato ultimately cooperated with the Government.

         In December 2011, Durante was charged by Superseding Indictment with conspiracy to distribute oxycodone and distribution of oxycodone. Durante moved to suppress evidence and to obtain certain information prior to trial. This Court held an evidentiary hearing limited to the search of a safe found in Durante's basement and Durante's post-arrest statements and ultimately denied all of Durante's motions.

         In May 2013, after a multi-week trial held before this Court, a jury convicted Petitioner of one count of conspiracy to distribute oxycodone and fifteen counts of distribution of oxycodone. From the recordings played at trial, a jury could find that Petitioner knew Domando was reselling the prescriptions for a large profit. Petitioner was also captured on tape accepting $300 from Domando in exchange for prescriptions, as well as $100 for an extra prescription he sold to an undercover agent. Neither Domando nor Abato testified at trial; however, Abato's son testified that he delivered envelopes of cash to Durante in exchange for extra prescriptions. Evidence was also presented showing that Petitioner attempted to cover his tracks through false medical records.

         On December 17, 2013, Petitioner was sentenced by this Court to 136 months of imprisonment on Count One and 136 months of imprisonment on Counts Three through Seventeen to run concurrently. See Crim. Dkt. No. 454, Judgment of Conviction. Petitioner then filed a direct appeal challenging several rulings made by this Court before and during trial, all of which the Third Circuit rejected. See United States v. Durante, 612 Fed.Appx. 129, 130 (2015), cert. denied, 136 S.Ct. 537 (2015). In a separate opinion, the Third Circuit also affirmed the District Court's denial of Petitioner's motion for a new trial under Federal Rule of Criminal Procedure 33 based on allegations that the Government violated its obligations under Brady v. Maryland. See United States v. Durante, 689 Fed.Appx. 692, 693 (2017).[2]

         Petitioner's § 2255 Motion is dated November 16, 2016, and was docketed on December 1, 2016. ECF No. 1. In his § 2255 Motion, Petitioner raises 10 grounds for relief. Grounds Three, Four, Five, Six, Seven, Eight, and Ten assert that his attorney, Ms. Fleming, provided ineffective assistance of counsel during pre-trial proceedings, at trial, during sentencing, and on direct appeal. In Grounds One, Two, and Nine, Petitioner contests his sentence, claiming that: (1) it is unfairly disproportionate to that of this co-defendants; (2) he was entitled to a 2-point reduction in the calculation of his Sentencing Guidelines; (3) he should receive credit from the Bureau of Prisons (“BOP”) for time served on home confinement; and (4) the forfeiture portion of his sentence was excessive. The government answered the Motion on January 22, 2018. ECF No. 20. and Petitioner submitted his reply on August 13, 2018, ECF No. 28, and a supplemental brief on January 25, 2019. ECF No. 29. The matter is fully briefed and ready for disposition.


         Title 28, United States Code, Section 2255 permits a court to vacate, correct, or set aside a sentence

upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. . . .

28 U.S.C. § 2255.

         A criminal defendant bears the burden of establishing his entitlement to § 2255 relief. See United States v. Davies, 394 F.3d 182, 189 (3d Cir. 2005). Moreover, as a § 2255 motion to vacate is a collateral attack on a sentence, a criminal defendant “must clear a significantly higher 2014) (citing United States v. Frady, 456 U.S. 152, 166 (1982)). In considering a motion to vacate a defendant's sentence, “the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record.” United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (internal quotation marks and citation omitted). “It is the policy of the courts to give a liberal construction to pro se habeas petitions.” Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010).

         The Court may dismiss the motion without holding an evidentiary hearing where the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. See 28 U.S.C. § 2255(b); Liu v. United States, No. 11-4646, 2013 WL 4538293, at *9 (D.N.J. Aug. 26, 2013) (citing Booth, 432 F.3d at 545-46). Nevertheless, the Third Circuit has “repeatedly emphasized that ‘bald assertions and conclusory allegations do not afford a sufficient ground for an evidentiary hearing' on a habeas petition.” Palmer v. Hendricks, 592 F.3d 386, 395 (3d Cir. 2010) (citations omitted).

         There are additional important limitations on motions brought pursuant to § 2255. Notably, § 2255 “generally ‘may not be employed to relitigate questions which were raised and considered on direct appeal.'” United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1993) (citation omitted). Nor is § 2255 relief a substitute for a direct appeal. See United States v. Frady, 456 U.S. 152, 165 (1982); see also Bousley v. United States, 523 U.S. 614, 621-22 (1998). Accordingly, a defendant whose § 2255 motion raises a claim he failed to raise on appeal must show both “cause” for that failure and “actual prejudice” resulting from the claimed error. Frady, 456 U.S. at 167-68; see United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993). Section 2255 claims are also limited to issues pertaining to a petitioner's custodial status and cannot be invoked to challenge non-custodial aspects of their sentences. See United States v. Ross, 801 F.3d 374, 380 (3d Cir. 2015) (“monetary component of a sentence” does not satisfy the “in custody” requirement of federal habeas statutes).

         IV. ANALYSIS

         a. Ineffective Assistance of Counsel Claims (Grounds Three, Four, Five, Six, Seven, Eight, and Ten)

         Before a petitioner can establish that he was denied his Sixth Amendment right to the effective assistance of counsel, he must make a two-part showing: (1) that his counsel's performance was so deficient that the attorney was not functioning as the professional counsel guaranteed by the Sixth Amendment; and (2) that he was prejudiced by his attorney's deficiencies, i.e., that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984).

         Under Strickland, counsel “is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. Thus, to prove deficiency, the petitioner must show that counsel's performance “fell below an objective standard of reasonableness under prevailing professional norms.” Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999). Courts evaluate the reasonableness of counsel's performance “from counsel's perspective at the time of the alleged error and in light of all the circumstances.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). Ultimately, it is the petitioner who bears the burden of demonstrating that counsel's representation was deficient. Id.

         Even where a petitioner is able to show that counsel's representation was deficient, he must still affirmatively demonstrate that counsel's deficient performance prejudiced the petitioner's defense. Strickland, 466 U.S. at 692-93. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693.

         1. Ineffective Assistance during Plea Negotiations (Ground Four)

         Petitioner asserts that his attorney was ineffective during plea negotiations. He asserts that his counsel met privately with government regarding the possibility of negotiating a guilty plea to a financial crime, but it was not accomplished, and Petitioner believes that the government made a plea offer during this meeting that was not communicated to him by counsel. After this meeting, Petitioner believed he had no choice but to go to trial. Petitioner further states that counsel never discussed the pros and cons of pleading guilty versus going to trial, including the financial implications of his sentence.[3] ECF No. 1, at 15-16. In his reply, Petitioner elaborates that counsel underestimated his maximum sentencing exposure, which prevented him from ...

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