18-457(L)
Rodriguez v. United States

                                UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary
order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of
Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in
a document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the nineteenth day of April, two thousand nineteen.

PRESENT:            JOHN M. WALKER, JR.,
                    JOSÉ A. CABRANES,
                    SUSAN L. CARNEY,
                                 Circuit Judges.


JAIME RODRIGUEZ,                                                    18-457(L) 18-459(Con)
                             Petitioner-Appellant,

STEVEN CAMACHO,
                             Consolidated Petitioner-Appellant,
                             v.

UNITED STATES OF AMERICA,

                             Respondent-Appellee.


FOR PETITIONER-APPELLANT RODRIGUEZ: Jaime Rodriguez, pro se, Joint Base MDL,
                                    NJ
FOR CONSOLIDATED
PETITIONER-APPELLANT CAMACHO:       Steven Camacho, pro se, Loretto, PA.

FOR RESPONDENT-APPELLEE:                                          Katherine Reilly and Won S. Shin,
                                                                  Assistant United States Attorneys, for
                                                                  Geoffrey S. Berman, United States


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                                                                         Attorney for the Southern District of New
                                                                         York, New York, NY.

       Appeal from a December 14, 2017 order of the United States District Court for the
Southern District of New York (Charles S. Haight, Jr., Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court be and hereby is
AFFIRMED.

         Petitioners-Appellants Jaime Rodriguez (“Rodriguez”) and Steven Camacho (“Camacho”)
(jointly “Petitioners”) appeal from an order of the District Court denying their petitions for writs of
habeas corpus.1 In 1996, Petitioners were convicted, after trial, of five counts in relation to their
involvement in a violent racketeering enterprise known as “C&C.” The five counts were conspiracy
to murder, two counts of murder, and attempted murder, all in aid of racketeering; and using a
firearm during a crime of violence. We affirmed their convictions on direct appeal and remanded for
resentencing. United States v. Rodriguez, 187 F. App’x 30 (2d Cir. 2006). After resentencing, we
affirmed their new sentences and affirmed the District Court’s denial of their motion for a new trial.
United States v. Padilla, 511 F. App’x 8 (2d Cir. 2013). Rodriguez and Camacho have now filed
petitions in the District Court for writs of habeas corpus under 28 U.S.C. § 2255. Their petitions
allege that they received ineffective assistance of counsel from both their trial and appellate counsel
in violation of the Sixth Amendment. They support their ineffective assistance claims with a long list
of alleged deficiencies in counsel’s advocacy at trial and on direct appeal. The District Court denied
the petition in its entirety but granted a certificate of appealability. We assume the parties’ familiarity
with the underlying facts, the procedural history of the case, and the issues on appeal.

        When reviewing a district court’s denial of habeas relief under § 2255, we review legal
conclusions de novo and findings of fact for clear error. See Massey v. United States, 895 F.3d 248,
251 n.7 (2d Cir. 2018). To succeed on a claim of ineffective assistance, a petitioner must
demonstrate that “counsel’s representation fell below an objective standard of reasonableness” and
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, 688, 694 (1984). Upon
review of the record, we conclude that Rodriguez and Camacho have failed to establish that their
attorneys were constitutionally ineffective.




    1  Petitioners filed separate petitions before the District Court, but jointly filed their briefs and exhibits in support of
their petitions. Petitioners have also filed joint briefs on appeal.


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        A. Irreconcilable Theories and “Black Rain” Evidence

        Petitioners argue that each of their trial counsel was ineffective by failing to introduce at trial
evidence of the Government’s “irreconcilable” theory of the case in a related criminal trial.
Petitioners further contend that their trial counsel failed to adequately object to the introduction of
background evidence regarding their involvement in the C&C criminal organization. Petitioners also
fault their appellate counsel for failing to adequately argue these issues on direct appeal. These
arguments are meritless. We considered and rejected variations of these arguments on direct appeal.
Rodriguez, 187 F. App’x at 33 (holding that the “contention that the government relied on
‘irreconcilable theories’ . . . fails” and that evidence from the so-called “Black Rain” trial was relevant
background evidence and not overly prejudicial). Accordingly, Petitioners’ ineffective assistance of
counsel claim fails because the mandate rule forecloses any argument that Petitioners were
prejudiced by counsel’s failure to adequately object to or argue these issues. See Yick Man Mui v.
United States, 614 F.3d 50, 53 (2d Cir. 2010) (the mandate rule bars re-litigation of “matters expressly
decided by the appellate court . . . [and] issues impliedly resolved by the appellate court’s mandate”).

        Furthermore, even if the mandate rule did not foreclose Petitioners’ claims regarding
background testimony of their drug dealing prior to their involvement in the C&C organization,
there was no prejudice to either because the District Court gave a limiting instruction on the
purpose of this testimony, immediately after defense counsel raised the issue. Moreover, the amount
of evidence describing Petitioners’ drug dealing prior to their involvement in C&C was minimal in
the context of the Government’s entire case. See United States v. Hasan, 586 F.3d 161, 170 (2d Cir.
2009) (attorney was not ineffective for failing to object to admission of evidence where the
remaining evidence was overwhelming, and defendant could not show prejudice from that particular
piece of evidence).

        B. Government Summation and Rebuttal

         Petitioners argue next that portions of the Government summation and rebuttal were
improper, and their trial attorneys were ineffective because they failed to challenge the Government
in this regard. We previously considered and rejected these claims. See Rodriguez, 187 F. App’x at 33–
34 (holding that we would not “disturb the convictions on account of improper closing
arguments”). Any additional improprieties in summation not explicitly discussed in our ruling on
direct appeal were impliedly rejected by our previous order and therefore Petitioners cannot show
that they were prejudiced by counsel’s failure to object to portions of the Government’s summation
and rebuttal. See Yick Man Mui, 614 F.3d at 53.

        C. Defense Summation

         Petitioners next argue that their trial attorneys’ summations were inadequate because they
failed to argue that the Government had mischaracterized the testimony of their alibi witnesses

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(Jiminez and Melendez) and victim witness (Garcia). The fact that defense attorneys did not assert
every possible argument to rebut the Government’s summation does not mean their summations
were constitutionally ineffective. Defense counsel presented a vigorous summation that focused on
discrediting the Government witnesses and rehabilitating Melendez and Garcia. The additional
arguments urged by Petitioners simply would have reinforced the points already made by counsel or
would have called unwanted attention to the weakness of the defense witnesses’ testimony. See
Greiner v. Wells, 417 F.3d 305, 320 (2d Cir. 2005) (“We will not normally fault counsel for foregoing a
potentially fruitful course of conduct if that choice also entails a significant potential downside.”
(internal quotation marks omitted)). Defense counsel’s summations were not constitutionally
deficient.

       D. Alibi Witnesses

         Camacho argues that his attorney did not properly prepare Jiminez to testify, failed to
investigate Camacho’s alibi, and failed to call Luisa Figueroa, Camacho’s mother, as an alibi witness.
These arguments are meritless for the reasons set forth in the District Court’s thorough and well-
reasoned ruling. Rodriguez v. United States, 2017 WL 6404900, at *25-38 (S.D.N.Y. 2017). Moreover,
there is no indication that any of these alleged errors altered the outcome of the trial.

       E. Cross-Examination of Jose Crespo

         Next, Petitioners argue that their counsel failed to adequately cross-examine Jose Crespo
about certain inconsistencies in his prior testimony and failed to press the argument that Crespo was
already sentenced and lacked any further motivation to be truthful. Generally, cross-examination is
considered strategic and courts give great deference to an attorney’s choice of topics. See Eze v.
Senkowski, 321 F.3d 110, 127 (2d Cir. 2003) (explaining that we will not “second-guess” attorney’s
cross-examination conduct “unless there is no strategic or tactical justification for the course taken”
(internal quotation marks omitted)). Defense attorneys’ cross-examinations of Crespo were
sufficiently vigorous. Both attorneys addressed Crespo’s criminal and drug abuse history, his
cooperation agreements, his withholding of information from the Government leading to a breach
of his first cooperation agreement, and his prior inconsistent testimony. We will not second-guess
the strategic decisions of counsel, who robustly cross-examined Crespo, for failing to pursue
particular lines of inquiry.

       F. Immunity for Gregory Cherry

        Petitioners argue that their attorneys were ineffective for failing to show that the
Government violated due process by denying immunity to Gregory Cherry. We have already
rejected a claim on direct appeal that the Government violated due process by denying Cherry
immunity. Rodriguez, 187 F. App’x at 34. Accordingly, the mandate rule prevents Petitioners from



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showing that they were prejudiced by counsel’s failures to object to the Government’s denial of
immunity to Cherry.

        G. Appellate Counsel

         Finally, Petitioners argue that their appellate attorneys were ineffective largely because of
their failures to adequately present the arguments we have rejected as meritless above, such as
immunity for Gregory Cherry and the Government’ allegedly improper summations. Petitioners
further argue that appellate counsel failed to adequately argue for Petitioners’ motion for a new trial.
We affirmed the District Court’s denial of Petitioners’ motion for a new trial on direct appeal,
Rodriguez, 187 F. App’x at 32, and affirmed the denial again after resentencing, Padilla, 511 F. App’x
at 11. Accordingly, the mandate rule prevents Petitioners from showing that they were prejudiced by
appellate counsel’s failure to adequately challenge the denial of the motion for a new trial.

         To the extent that any of Petitioners’ claims regarding their appellate counsel are not barred
by the mandate rule, they nonetheless fail because Petitioners have not shown that their appellate
attorneys’ performances were deficient. “[I]t is not sufficient for the habeas petitioner to show
merely that [appellate] counsel omitted a nonfrivolous argument, for counsel does not have a duty to
advance every nonfrivolous argument that could be made.” Clark v. Stinson, 214 F.3d 315, 322 (2d
Cir. 2000) (internal quotation marks omitted). A petitioner must show that counsel made a
significant omission or error or advanced a significantly weaker argument. Id. Here, Petitioners’
arguments boil down to a contention that the outcome on direct appeal would had been different if
only their appellate attorneys had made slightly different strategic choices, emphasized some facts
more than others, or made some additional arguments. But many of these arguments were
unsuccessfully advanced on direct appeal, and the additional arguments now cited by the Petitioners
are not significantly stronger than the issues appellate counsel chose to pursue on direct appeal.

        In sum, we conclude that Petitioners have failed to show that their appellate counsel were
ineffective.

                                          CONCLUSION

        We have reviewed all of the arguments raised by Rodriguez and Camacho on appeal and find
them to be without merit. For the foregoing reasons, we AFFIRM the December 14, 2017 order of
the District Court.

                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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