18-1631-cv
Batista 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 4th day of February, two thousand twenty.

PRESENT:             JOSÉ A. CABRANES,
                     ROBERT D. SACK,
                     RAYMOND J. LOHIER, JR.,
                                  Circuit Judges.


LUIS M. BATISTA,

                            Petitioner-Appellant,                  18-1631-cv

                            v.

UNITED STATES OF AMERICA,

                            Respondent-Appellee.



FOR PETITIONER-APPELLANT:                               BERNARD V. KLEINMAN, Law Office of
                                                        Bernard V. Kleinman, PLLC, Somers,
                                                        NY.

FOR RESPONDENT-APPELLEE:                                KEVIN TROWEL (Joann Navickas, on the
                                                        brief), Assistant United States Attorneys,
                                                        for Richard P. Donoghue, United States
                                                        Attorney for the Eastern District of New
                                                        York, Brooklyn, NY.


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        Appeal from a March 30, 2018 judgment of the United States District Court for the Eastern
District of New York (Dora L. Irizarry, Judge).

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

        Petitioner-Appellant Luis M. Batista (“Batista”) appeals from a March 30, 2018 judgment
denying his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.

        On appeal, Batista challenges the District Court’s denial of his motion to strike certain
purportedly defective declarations. Batista also argues that his trial counsel was ineffective by
allegedly advising him to reject a plea offer from the Government and to instead proceed to trial,
and he contends that the District Court erroneously denied his requests for an evidentiary hearing
and for discovery regarding these allegations of ineffective assistance. We address each of Batista’s
challenges in turn.

        I.      The District Court Properly Denied Batista’s Motion to Strike the
                Declarations of Anthony Ricco and James Moschella.

         Batista claims that the District Court erred by denying his motion to strike the Declarations
of his trial attorneys Anthony Ricco (“Ricco”) and James Moschella (“Moschella”) (the
“Declarations”), submitted in response to Batista’s allegations of ineffective assistance of counsel. In
particular, Batista contends that the Declarations failed to adhere to the requirements of 28 U.S.C. §
1746, as the Declarations did not contain sworn affirmations by Ricco and Moschella that their
statements were “true and correct” under penalty of perjury.

        We agree with the Government that the Declarations are not defective merely because they
do not contain the precise phrase “true and correct.” As we held in LeBoeuf, Lamb, Greene & MacRae,
L.L.P. v. Worsham, a sworn declaration may “substantially compl[y]” with the statutory requirements
without containing the exact language of Section 1764 or stating verbatim that its contents are “true
and correct.” 185 F.3d 61, 65-66 (2d Cir. 1999). And as the Government notes, the plain language of
Section 1746 itself requires only “substantial[]” compliance. We likewise reject Batista’s argument
that Ricco’s declaration is invalid due to an alleged deficiency with Ricco’s electronic signature.
Accordingly, the District Court properly denied Batista’s motion to strike the declarations.




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        II.     The District Court Correctly Denied Batista’s Section 2255 Petition Alleging
                Ineffective Assistance of Counsel.

       We review a district court’s findings of fact with respect to claims of ineffective assistance of
counsel for clear error. See Chhabra v. United States, 720 F.3d 395, 406-07 (2d Cir. 2013). In the
context of plea negotiations, we review de novo the district court’s conclusion as to whether a
counsel’s performance violated a defendant’s Sixth Amendment rights. See id. at 407.

         The District Court carefully reviewed Batista’s Section 2255 petition and concluded that the
record did not support Batista’s allegations that his trial counsel ineffectively represented his
interests during plea negotiations. Based on the record before us, the District Court correctly
determined that Batista could not satisfy either prong of the two-part test as stated in Strickland v.
Washington, 466 U.S. 668 (1984). Under Strickland, for a defendant to prevail on a claim that his
counsel was ineffective during plea negotiations, he must (1) show that his counsel’s representation
fell below “an objective standard of reasonableness” under “prevailing professional norms,” and (2)
“affirmatively prove prejudice.” Id. at 687-88, 693.

         As noted by the Government, the record does not support Batista’s allegations that his trial
counsel ineffectively represented his interests during plea negotiations. We credit the Declarations of
Ricco and Moschella as accurate representations of the events leading to Batista’s rejection of the
plea bargain, as compared to Batista’s self-serving and inconsistent statements that suggest that, in
hindsight, Batista now believes that accepting the plea agreement would have been a better strategy.
Moreover, Batista has not demonstrated prejudice from any alleged deficiency. He affirmatively
testified to his innocence as to the drug charge at his trial and at his sentencing, but the plea
agreement would have required his stipulation to the Government’s Sentencing Guidelines
calculation and the requisite facts needed to support that calculation. See Cullen v. United States, 194
F.3d 401, 407 (2d Cir. 1999) (remarking that, although “not dispositive,” a defendant’s “insistence
on his innocence is a factor relevant to any conclusion as to whether he has shown a reasonable
probability that he would have pled guilty”). Because Batista has not satisfied either element of the
Strickland test, the District Court correctly decided that Batista could not demonstrate that his trial
attorneys were ineffective.

        III.    The District Court Properly Denied Batista’s Requests for an Evidentiary
                Hearing and for Additional Discovery.

        A district court’s denial of a defendant’s request for an evidentiary hearing on a claim of
ineffective assistance of counsel is reviewed for abuse of discretion. United States v. Levy, 377 F.3d
259, 264 (2d Cir. 2004). “A district court has abused its discretion if it based its ruling on an
erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a
decision that cannot be located within the range of permissible decisions.” In re Sims, 534 F.3d 117,
132 (2d Cir. 2008) (internal quotation marks, alteration, and citations omitted); see also In re City of

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New York, 607 F.3d 923, 943 n.21 (2d Cir. 2010) (explaining that “abuse of discretion” is a
nonpejorative “term of art”).

          We conclude that the District Court did not abuse its discretion in denying Batista’s motions
for an evidentiary hearing and for discovery. The District Court acted within its discretion to deny
Batista’s motion where additional live testimony from the relevant witnesses at a hearing “would add
little or nothing to the written submissions.” Chang v. United States, 250 F.3d 79, 86 (2d Cir. 2001).
Furthermore, the District Court had already ordered additional discovery limited to the question of
whether the Government had made multiple plea offers to Batista. Upon resolution of that narrow
issue by the submission of sworn declarations, Batista was not entitled to further (or broader)
discovery, as “the scope and extent of [Section 2255] discovery is a matter confided to the discretion
of the District Court.” Bracy v. Gramley, 520 U.S. 899, 909 (1997). Accordingly, any additional
discovery beyond that already ordered was not warranted.

                                          CONCLUSION

       We have reviewed all of the arguments raised by Batista on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the March 30, 2018 judgment of the District
Court.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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