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United States v. Wallace

United States District Court, D. Rhode Island

January 24, 2017

UNITED STATES OF AMERICA
v.
TIMI WALLACE, Petitioner.

          MEMORANDUM AND ORDER

          William E. Smith Chief United States District Judge.

         Before the Court is Petitioner Timi Wallace's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (“Motion”).[1] (ECF No. 258.) For the reasons that follow, the Motion is DENIED in its entirety.

         I. Background and Travel[2]

         On October 18, 2000, Petitioner and his brother Nickoyan Wallace were indicted on charges relating to the September 25, 2000 armed robbery of a firearms store, D & B Guns, in Providence, Rhode Island. On October 15, 2004, following a jury trial, Petitioner was convicted on charges of robbery (Count I), conspiracy to commit armed robbery (Count II), theft of firearms from a federally licensed firearms dealer (Count III), and brandishing a firearm during and in relation to a crime of violence (Count IV). He was sentenced on January 21, 2005, to 300 months' imprisonment.

         In his first appeal, Petitioner challenged both his conviction and his sentence. With respect to his conviction, Petitioner raised four errors by the prosecution and the Court. As to his sentence, Petitioner argued that this Court erred in its calculation of the applicable guidelines range under the United States Sentencing Guidelines (“Guidelines”), its application of the Guidelines' factors to justify an upward departure from the Guidelines range, [3] and the overall reasonableness of his sentence. Petitioner's conviction was affirmed, but the First Circuit remanded to this Court for resentencing to correct errors in the application of the Guidelines' factors for an upward departure from the applicable Guidelines range.

         On May 25, 2007, Petitioner was resentenced to a 294 month term of imprisonment. Petitioner appealed again, raising a number of challenges to the sentence imposed by this Court on remand. The First Circuit affirmed the sentence.

         Petitioner filed the instant Motion on July 6, 2011.

         II. Overview

         Petitioner raises fifteen grounds for relief including claims related to due process, ineffective assistance of counsel, prosecutorial misconduct, jurisdiction, and sentencing. As many of his claims overlap, they will be grouped accordingly.

         With the exception of Ground Fifteen, Petitioner states that “[n]one of the claims presented in the foregoing [Motion] ha[ve] [been] so presented before any federal court, and that was a result of counsel's failure to so raise the issues.” (Mot. 11, ECF No. 258.) With the exception of Ground Fifteen, this Court primarily addresses the claims for the limited purpose of determining whether Petitioner's counsel was ineffective.

         III. Discussion

         A. Law

         1. Section 2255

         Generally, the grounds justifying relief under 28 U.S.C. § 2255(a) are limited. A court may grant relief when it finds either that a conviction and/or sentence was entered without proper jurisdiction, a constitutional error, or a fundamental error of law. United States v. Addonizio, 442 U.S. 178, 185 (1979). “[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” Id. (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Moreover, § 2255 is not a substitute for direct appeal. Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994) (citing Addonizio, 442 U.S. at 184-85).

         2. Strickland

         “The Sixth Amendment guarantees defendants the right to effective assistance of counsel.” Lema v. United States, 987 F.2d 48, 51 (1st Cir. 1993) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). However, “[t]he Constitution does not guarantee a defendant a letter-perfect defense or a successful defense; rather, the performance standard is that of reasonably effective assistance under the circumstances then obtaining.” United States v. Natanel, 938 F.2d 302, 309-10 (1st Cir. 1991).

         A defendant who claims that he was deprived of his Sixth Amendment right to effective assistance of counsel must demonstrate: (1) “that counsel's performance fell below an objective standard of reasonableness;” and (2) “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 687-88, 694; see also United States v. Manon, 608 F.3d 126, 131 (1st Cir. 2010). In assessing the adequacy of counsel's performance, a defendant “‘must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment, ' and the court then determines whether, in the particular context, the identified conduct or inaction was ‘outside the wide range of professionally competent assistance.'” Manon, 608 F.3d at 131 (quoting Strickland, 466 U.S. at 690). With respect to the prejudice requirement, a “reasonable probability is one sufficient to undermine confidence in the outcome. . . . In making the prejudice assessment, [the court] focuses on the fundamental fairness of the proceeding.” Id. (internal quotations omitted). “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, 466 U.S. at 686.

         Strickland instructs that “[j]udicial scrutiny of counsel's performance must be highly deferential.” Id. at 689. The court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Moreover, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691. Finally, “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689.

         B. Claims of Error

         1. Grounds One and Two

         Petitioner alleges in Ground One that his Fifth and Sixth Amendment rights to due process were violated because the indictment failed “to charge the offense of ‘aiding and abetting' as an offense [or] material element of the crime[s] charged in counts I, III, and IV of the indictment. . . .” (Mot. 5, ECF No. 258.) Relatedly, Petitioner claims in Ground Two that the Court “impermissibly amended the indictment by reciting the statute to the jury after they gave notice that the indictment did not charge it; and for instructing them on said uncharged offense.” (Id. at 6.) In both claims of error, Petitioner asserts that counsel was “ineffective for failing to raise the[se] issue[s]” at trial and on appeal. (Id. at 5, 6.)

         Counts I, III, and IV of the indictment and superceding indictment all alleged violations of 18 U.S.C. § 2, which provides that:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

         Petitioner argues, however, that “[r]eference to 18 U.S.C. § 2 is not enough, ” and that the indictment was fatally flawed because it failed to “mention the words ‘aiding and abetting' (18 U.S.C. § 2(a)) or ‘willful' (18 U.S.C. § 2(b)), etc.” (Aff. of Mem. in Supp. of Habeas Corpus per § 2255 (“Mem.”) 6, ECF No. 258-2.)

         To support his argument, Petitioner cites In re Winship, among other cases, for the general rule that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” 397 U.S. 358, 364 (1970). (Mem. 3, ECF No. 258-2.) However, the First Circuit has held that “[a]n aider and abettor charge is implicit in all indictments for substantive offenses, so it need not be specifically pleaded for an aiding and abetting conviction to be returned.” United States v. Footman, 215 F.3d 145, 153-54 (1st Cir. 2000) (quoting United States v. Sabatino, 943 F.2d 94, 99-100 (1st Cir. 1991)); see also United States v. Keene, 341 F.3d 78, 84 (1st Cir. 2003) (“[A] charge of aiding and abetting is implicit in indictments for substantive offenses.”) (citing Footman, 215 F.3d at 153-54). Therefore, Petitioner's claim that the indictment was defective is rejected.

         In addition, Petitioner's statement that he only became aware that he was also being charged with “aiding and abetting” when the jury asked about the charge is specious. Both the original and superceding indictments alleged a violation of 18 U.S.C. § 2. In its opening remarks, this Court noted that Petitioner was charged with aiding and abetting. (Trial Tr., Vol. 111.)[4] The Government also referred to aiding and abetting during its closing argument. (Trial Tr., Vol. 3 116.) Finally, in its instructions to the jury, the Court included an instruction on the elements of aiding and abetting. (Id. at 179.)

         Turning to Ground Two, the Court's response to the jury's question about the aiding and abetting statute[5] was also proper. The Court repeated the question for the record, explained where aiding and abetting appeared in the superceding indictment, reread its instructions to the jury on aiding and abetting, and provided some explanation. (Trial Tr., Vol. 4 2-6.) Neither the Government nor the defendant objected to the Court's response. (Id. at 6.)

         The First Circuit has already addressed-and rejected-the arguments Petitioner makes to this Court. See Footman, 215 F.3d at 154 (“When aiding and abetting is involved . . . the ‘counsels, commands, induces, or procures' and ‘cause' language from § 2 is properly part of the jury's instruction.”). Moreover, because the indictment was not defective or impermissibly amended, there was nothing to which counsel could have reasonably objected or appealed. Vieux v. Pepe, 184 F.3d 59, 64 (1st Cir. 1999) (“[C]ounsel's performance was not deficient if he declined to pursue a futile tactic.”). Further, Petitioner would not have been prejudiced by any error because he was not sentenced separately for aiding and abetting. (Resentencing Tr. 66-68.) Accordingly, the Court finds that Grounds One and Two do not entitle Petitioner to the relief sought.

         2. Grounds Three and Four

         In Ground Three, Petitioner alleges a violation of his due process right to confront a witness against him. (Mot. 8, ECF No. 258; Mem. 9, ECF No. 258-2.) Specifically, Petitioner challenges: (1) the Government's use of certain Southwest Airlines flight reservation records without making the Southwest Airlines employee who had produced the records pursuant to a subpoena available; and (2) the use of a Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) Special Agent's testimony regarding the records as “constituting (impermissible) confrontation via ‘proxy'” (Mem. 9, ECF No. 258-2.)[6] Relatedly, Petitioner alleges in Ground Four that counsel was ineffective “for failing to make the necessary investigations into [his] alibi whereabouts in Tucson, AZ, in order to produce evidence at trial to affirmatively rebut the Government's position/use of the flight reservation records.” (Mot. 9, ECF No. 258.)

         The Sixth Amendment to the United States Constitution provides, in relevant part, that: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .” The Supreme Court has held that “[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Crawford v. Washington, 541 U.S. 36, 68-69 (2004). Testimonial statements of witnesses absent from trial have been admitted only when the declarant was unavailable to testify and the defendant had a prior opportunity to cross-examine that declarant. Id. at 59, 68.

         Crawford established a distinction however, between testimonial and non-testimonial statements. Id. at 56. In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the Supreme Court further addressed the distinction between testimonial and nontestimonial statements: “Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because- having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial-they are not testimonial.” Id. at 324.

         Here, there is no indication that the Southwest Airlines records were created for use against Petitioner at trial. Rather, they were created in the normal course of the airline's business (Mot. Ex. C, Edwards Aff. ¶ 3, ECF No. 258-7), and were certified as such (Trial Tr., Vol. 3 25-26). These records are nontestimonial, therefore, there was no need for the Southwest Airlines employee to appear to testify at Petitioner's trial. Petitioner's Sixth Amendment right to confront witnesses against him was not violated.

         Moreover, because the records are nontestimonial, there was similarly no need for the ATF Special Agent (Troiano) to testify as a “proxy” for the airline employee. Rather, Special Agent Troiano simply testified that, as part of his investigation of Petitioner's proferred alibi, he obtained a certified copy of business records from Southwest Airlines pursuant to subpoenas issued to all major airlines flying between the Providence and Boston areas and the Tucson and Phoenix areas. (Trial Tr., Vol. 3 20-21, 25-27.)

         Based on the foregoing analysis, trial counsel cannot be faulted for not challenging the admission of the records based on the Sixth Amendment's confrontation clause.[7] See Dure v. United States, 127 F.Supp.2d 276, 280 (D.R.I. 2001) (“Counsel cannot be deemed ineffective for failing to pursue futile arguments.”) (citing Vieux, 184 F.3d at 64). Nor can appellate counsel be faulted for failing to raise the issue on appeal. See id.

         Petitioner's allegations regarding counsel's failure to investigate Petitioner's alibi will be discussed more completely infra. With respect to the part of Ground Four that claims ineffective assistance of counsel for failing “to produce evidence at trial to affirmatively rebut the Government's position/use of the flight reservation records” (Mot. 9, ECF No. 258), Petitioner states that:

It is indisputable that the flight reservation records and the government's use of them, without full context, and unrebutted, were highly prejudicial as they portended to show, on their face, along with much extrapolation by the prosecutor . . . that [he] was in Rhode Island; made the reservation; and intended on returning . . . in time for the robbery. It can be adduced from the subsequent conviction that they contributed substantially to the verdict . . . as they remained not properly rebutted, and [his] alibi unsubstantiated, one need not question the crippling effect they had on his credibility/defense.

(Mem. 13-14, ECF No. 258-2 (ellipses in original).)

         Petitioner's argument fails for multiple reasons. First, the Government never stated that the flight was taken. On the contrary, it elicited testimony from Special Agent Troiano that the flight was booked, but not taken. (Trial Tr., Vol. 3 27.) Further, during cross-examination, defense counsel elicited definite testimony that the witness could not identify the individual who actually made the reservation. (Id. at 31-32.)

         The Government did use the flight records to undercut Petitioner's alibi that he was in Arizona at the time of the robbery. (Trial Tr., Vol. 3 108.) In its closing argument, the Government posited that, while the flight was never taken, the booking of the flight indicated that Petitioner was in or near Rhode Island when the reservation was made; that Petitioner never intended to relocate to Arizona permanently; and that Petitioner had intended to return to Rhode Island sometime in September. (Trial Tr., Vol. 3 108.) Defense counsel countered by pointing out the lack of information regarding the reservation:

Then there's this talk about booking a flight from Providence to Arizona and then back. I submit to you, ladies and gentlemen, you don't know who booked that flight. You don't know why it was booked. We don't know if there was a reason for it. We don't know if somebody else did it. It was done. We don't have any information. All we know is there's a record of somebody booking a flight under those names with Southwest Airlines. Nobody ever took the plane.

(Id. at 143.)

         Second, Petitioner testified that it was “possible” that he made the reservation in question, (Trial Tr., Vol. 2 119, ) a fact noted by the First Circuit. United States v. Wallace, 461 F.3d 15, 28 (1st Cir. 2006) (Wallace I). After initially denying on cross-examination that he booked any flights under his alias, Devon Lewis, during that period (Trial Tr., Vol. 2 118), on redirect he was asked to clarify his response regarding the flight reservation:

Q. Let me ask you this. You never took a plane from Arizona to anywhere else?
A. No.
Q. Did you -- I'm sorry.
A. Are you dealing with a specific time?
Q. Well, within the time from July, beginning of July 2000 to October of 2000.
A. No. I never took a flight.
Q. Did you ever make a reservation to take a flight?
A. I'm not -- I mean, it's a long time. It's possible, you know.

(Id. at 119.)

         Third, as the First Circuit observed, there was a “crushing weight” of evidence to support the jury's verdict. Wallace I, 461 F.3d at 26. It is difficult to imagine that the flight records alone had a “crippling effect” on Petitioner's credibility or defense. The fact that the jury disbelieved Petitioner's alibi was based on all of the evidence presented, not just the flight records.

         Petitioner has not overcome the presumption that, under the circumstances, his defense counsel's decision to focus on the lack of hard evidence linking Petitioner to the reservation and the fact that no one took the flight “might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (quoting Michel, 350 U.S. at 101). Moreover, even assuming that counsel erred in his choice of strategy, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691; see also Natanel, 938 F.2d at 310 (“That counsel's selection of a stratagem may, in retrospect, have proved unsuccessful, or even unwise, is not the issue.”). As noted above, the jury's verdict was based on all of the evidence, not only the Southwest Airlines records. The Court, therefore, rejects Petitioner's contention that trial counsel was ineffective by choosing not to present alibi evidence to counter the Government's use of the flight records.

         3. Grounds Five and Eight

         Grounds Five and Eight allege that the Government violated Petitioner's right to due process by the use of false testimony and evidence to convict him.[8] (Addendum to Mot. 1, ECF 258-1.) In Ground Five, Petitioner claims that “the Government used false testimony to convict [him] in violation of the Laws and the Constitution of the United States.” (Mem. 14, ECF No. 258-2.) Similarly, in Ground Eight Petitioner claims that the Government used “wrongful means” and “false pretenses and presentations, ” namely “the procurement/use of partial, edited, corrupted and fabricated evidence . . ., ” in violation of his due process rights. (Id. at 20.)

         The “false testimony” to which Petitioner refers in Ground Five is that of Audrey Giglio, specifically her testimony that Petitioner “was the man who dropped off his vehicle at East Coast Auto (in East Providence, RI) on September 14, 2000, to be shipped to Tucson, Arizona.” (Id. at 14.) Petitioner argues that “[t]his was an impossibility as [he] was in Arizona from the time of making the ‘shipping reservation' on 9/11/2000, to the day the vehicle was dropped off on 9/14/2000, and beyond.” (Id. at 14-15.) Petitioner claims that the Government knew, or should have known, that Giglio's testimony was false based on evidence in its possession. (Id. at 15.) The Government responds that there is no factual basis to support this claim. (Opp'n to Mot. 16, ECF No. 265.)

         “[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Napue v. Illinois, 360 U.S. 264, 269 (1959) (internal citations omitted); see also United States v. Vega, 813 F.3d 386, 391 (1st Cir. 2016) (“Napue prohibits prosecutors from knowingly presenting false evidence, including false testimony, to the jury. This prohibition applies even if the government does not solicit the false testimony and merely fails to correct it.”) (internal citations omitted).

         Giglio testified that she had a good memory of what the individual who dropped off the Land Rover for shipment to Arizona looked like; “instantly recognized” Petitioner from a photograph shown to her by a law enforcement officer on October 19, 2000; recognized the same photo shown to her at trial; and had no doubt that the person in the photo was the man who came to East Coast Auto on September 14, 2000.[9] (Trial Tr., Vol. 3 63- 64.) Petitioner argues that hotel records illustrate the “impossibility” that he could have been that person. (Mem. 14-15, ECF No. 258-2.) Petitioner also contends that Giglio's testimony is “further debunked” by call detail records and the “fact” that his brother, Ojomo Wallace, was the one who dropped off the vehicle on September 14, 2000. (Id. at 15.) Petitioner overlooks, however, that much of the evidence on which he relies was presented at trial.

         The hotel records were produced by the general manager of the Crossland Economy Studios in Tucson, one of the motels at which Petitioner stayed. (Trial Tr., Vol. 3 36, 38-39.) In addition, an employee who worked at the Motel 6 in Tucson (another motel where Petitioner testified he stayed), testified about a records search she performed at the request of an unnamed ATF agent a week prior to Petitioner's trial. (Id. at 51-55.) The Motel 6 call records and cell phone records were obtained as a result of a Government subpoena. (Trial Tr., Vol. 1 206, 207; Mot. Ex. D 2-8, ECF No. 258-8.) Special Agent Troiano testified regarding the cell phone records. (Trial Tr., Vol. 1 207-09, 211-12; Trial Tr., Vol. 2 14-15.) Petitioner's trial counsel cross-examined all three witnesses regarding the records (Trial Tr., Vol. 2 5-6, 20-22; Trial Tr., Vol. 3 44-45, 46-47, 54-57), and also referred to the records in his closing argument (Trial Tr., Vol. 3 125-28, 141-146).

         Petitioner, however, argues that:

[T]he call detail records for [his] mobile phone . . . shows calls being made to Giglio at East Coast Auto . . . and vice versa. But most noteworthy is the phone call from Giglio to [him] on September 14, 2000, reminding him that the vehicle had to be dropped off and shipping paid for before close at five o'clock, that day. Question: how could she call him in Arizona and expect him to be in Rhode Island before 5 p.m. that same day? Impossible! Likewise the call detail records for East Coast Auto's business phone will reflect the same.

(Mem. 15, ECF No. 258-2.) Defense counsel posed a similar question with respect to the hotel records in his closing argument:

How did Timi Wallace check out of a hotel or motel on September 13th in Arizona and get back to Rhode Island to send his car back to Arizona. Does that make any sense? No evidence of that. The 13th he checks out of a hotel. The 14th is the day it was getting sent here.

(Trial Tr., Vol. 3 141.)

         At trial, Petitioner testified that he could not recall who shipped the Land Rover to Arizona. (Trial Tr., Vol. 2 73-74.)[10] In his Motion, however, Petitioner now claims that the “who” was Ojomo and Petitioner included an affidavit from Ojomo to that effect. (Mem. 15, ECF No. 258-2; Mot. Ex. E, ECF No. 258-9.) Ojomo avers that:

In or about October of 2004, I was informed that during Timi's trial the issue of whether it was him who dropped off the [Land Rover] had come up, and that he told his attorney that it was in fact one of his family members who dropped his [Land Rover] off at the shipping company on September 14, 2000; that his attorney would be contacting the family to confirm Timi's claim.

(Ojomo Aff. ¶ 4, Mot. Ex. E, ECF No. 258-9.) Although Ojomo stated that “[n]one of our family members were contacted by Timi's attorney for confirmation of the issue o[r] as a possible defense witness” (id.), Petitioner provides no explanation as to why it took almost seven years from the time of his trial for Ojomo to come forward with this information which, presumably, would have supported Petitioner's alibi defense. Ojomo's affidavit is too little too late. There is simply no evidence in the record, other than this belated affidavit, to support the contention that it was Ojomo, not Petitioner, who delivered the Land Rover to East Coast Auto for delivery to Arizona.[11]

         The Government observes that Petitioner “asserts that [Giglio's] testimony was false since it conflicted with his story - that he was in Arizona at the time.” (Opp'n to Mot. 16, ECF No. 265.) Petitioner again overlooks the fact that the jury rejected his alibi that he was in Arizona at the time of the robbery and, in fact, found that he had committed perjury. (Trial Tr., Vol. IV 23.) Petitioner seems to be attempting to re-litigate his alibi, which is not the purpose of a § 2255 motion. See Chandler v. United States, CR No. 06-107-01-M, 2011 WL 6097378, at *3 (D.R.I. Dec. 6, 2011) (citing United States v. Frady, 456 U.S. 152, 165 (1982)); see also Knight, 37 F.3d at 772.

         The Government further states that its “position on the truthfulness of Giglio's testimony has not changed since it presented her as a witness at trial.” (Opp'n to Mot. 16, ECF No. 265.) Petitioner has presented no evidence that the Government solicited false testimony. Moreover, because the Government did not and does not believe that Giglio's testimony was false, there was no need to correct her testimony when it was presented. See Napue, 360 U.S. at 269.

         In Ground Eight, the “false pretenses” asserted are attributed to Special Agent Troiano. (Mem. 20-25, ECF No. 258-2.) The “partial, edited, corrupted and fabricated evidence” refers to the hotel records from the Crosslands Economy Studios presented by the hotel's general manager. (Id. at 20-23; Mot. Ex. G, ECF No. 258-11.)

         Both men were called as rebuttal witnesses in response to Petitioner's alibi defense. (Mem. 20, ECF No. 258-2.) Petitioner implies, but provides no evidentiary support for, a sinister motive on the part of these witnesses:

In response to [Petitioner's] affirmation that he was not in Rhode Island, on the day of the robbery of D&B Guns, but in fact, was in Tucson, Arizona, agent Troiano went to Tucson, AZ, to, as he testified, substantiate that alibi. Troiano solicited the cooperation of . . . a manager at the ‘CrossLand Economy Studios #979, ' one of the hotels [Petitioner] stayed in while in Tucson; and that he testified, to his belief and recollection, was the hotel he was staying in during the month of September 2000. What transpired (between Troiano and [the manager]) at that hotel, and later presented at trial marked the precipitation of what resulted in the deprivation of [Petitioner's] liberty in contravention of constitutional/lawful due process.

(Id.) Petitioner alleges that the hotel records are “partial, edited, and ultimately corrupted by Troiano and [the hotel manager].” (Id. at 21.) According to Petitioner, the hotel manager's “testimony admits fabrication and tampering of the guest folio records, ” apparently based on the hotel manager's testimony regarding the manner of retrieving the “Guest Folio” and the lack of uniformity of the pages. (Id. at 22-23). Finally, Petitioner claims that Special Agent Troiano, “through his pretensions at trial, deceived the court and jury; and through his acts/omissions (has) poisoned the water of Justice, and caused the wrongful conviction of an innocent man.”[12] (Id. at 25.)

         While it may be true that the records “don't constitute the complete ‘Guest Folio'” and that the hotel manager's testimony regarding how he retrieved the information was inconsistent, there is no evidence that the Guest Folio was edited, corrupted, or alter[ed] in any way. (Id. at 21-22). Nor is there any evidence whatsoever of any collusion between the hotel manager and Special Agent Troiano.

         As part of his Memorandum in support of his Motion, Petitioner swore, under penalty of perjury, that:

1. Following my arrest in the Bronx, New York, in July 2004, ATF Agent Ed Troiano asked me certain questions about my appearance, and made an astonishing revelation and proposition to me regarding the instant case. Troiano asked me when did I cut my dreadlocks, before or after leaving Arizona; and how did I know to elude him in Tucson and Miami.
2. Troiano told me he had been investigating and pursuing me since I was in Tucson, Arizona, and then admitted to me that he knows I didn't commit the robbery; that he knows I wasn't there at the store on September 25, 2000, or in Rhode Island. Troinao then made a proposition stating: “I'll make you a deal. Tell me what you know about the pending charge in Massachusetts.[13] If I can't get you on that I'll get you on this, and believe me, I will make these charges stick, and you'll never see your kids grow.
. . .

(Id. at 24.) Other than Petitioner's sworn statement, there is absolutely no evidence in the record to support Special Agent Troiano's purported admission or proposition. See United States v. McGill, 11 F.3d 223, 226 (1st Cir. 1993) (noting that a “§ 2255 motion may be denied without a hearing as to those allegations which, if accepted as true, entitle the movant to no relief, or which need not be accepted as true because they state conclusions instead of facts, contradict the record, or are inherently incredible”) (internal quotations omitted).

         Similarly, Petitioner can point to no evidence to substantiate his allegation that Special Agent Troiano “simply did not want the truth to be revealed-what his investigation in pursuit of Petitioner had unveiled, i.e., that [he] did not commit the robbery; that he was in Tucson, Arizona, the whole time; that he is factually innocent!!” (Mem. at 24, ECF No. 258-2) (emphasis omitted).)

         The Court details these allegations in consideration of the Government's position that they are “baseless.” (Opp'n to Mot. 17, ECF No. 265.) With the exception of the sworn statement quoted above, Petitioner provides no evidence to corroborate his claims that false testimony and corrupt or fabricated evidence were presented at trial. The Court rejects these bald allegations. See Dure, 127 F.Supp.2d at 279 (“Conclusory allegations or factual assertions that are unsupported, fanciful or contradicted by the record, are insufficient.”) (citing Lema, 987 F.2d at 51-52); Barrett v. United States, 965 F.2d 1184, 1186 (1st Cir. 1992)).

         The Court finds that Petitioner's rights to due process were not violated at his trial based on the allegations contained in Grounds Five and Eight of the Motion. Given the lack of any due process violation, there was nothing to raise at trial, defeating any implication of ineffective assistance of counsel. See Vieux, 184 F.3d at 64 (noting that “failing to pursue a futile tactic does not amount to constitutional ineffectiveness”); see also Knight v. Spencer, 447 F.3d 6, 16 (1st Cir. 2006).

         4. Ground Seven

         Ground Seven involves allegations that the Government withheld certain evidence material to Petitioner's defense, in violation of his right to due process.[14] (Mem. 17, ECF No. ...


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