DocketNumber： 14 Civ. 1868 (JSR)(GWG); 11 Cr. 65 (JSR)
Citation Numbers： 187 F. Supp. 3d 402
Judges： Gorenstein
Filed Date： 5/17/2016
Status： Precedential
Modified Date： 7/25/2022
REPORT AND RECOMMENDATION
Plaintiff George Salerno brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 following his conviction on two counts of wire fraud in violation of 18 U.S.C. § 1343 on July 7, 2011. Salerno was sentenced principally to 162 months imprisonment and is currently serving that sentence. For the reasons stated below, Salerno’s petition should be denied.
I. BACKGROUND
A. Indictment and Pre-Trial Appearances
■Salerno was indicted in the Southern District of New York on two counts of wire fraud in violation of 18 U.S.C. § 1343. See Indictment, United States v. Salerno, 11 Cr. 65 (JSR), filed Jan. 19, 2011 (Docket #6), The first count of the indictment alleged that, in an effort to obtain funds from various financial lending institutions, Salerno caused a fraudulent document purporting to be a United States Department of Agriculture (“USDA”) grant agreement to be transmitted by email. See id. ¶ 1. The second count alleged that Salerno transmitted, through email and fax, an altered check and a check drawn on a closed bank account, for the purpose of obtaining real property fraudulently. See id. ¶ 2.
Priya Chaudhry was initially appointed as Salerno’s CJA attorney, and she represented him at his initial appearance and arraignment. On March 14, 2011, Michael Schachter of Willkie Farr & Gallagher LLP was substituted in as Salerno’s counsel. Schachter and his firm represented Salerno at trial and sentencing and on direct appeal. See Ex. A to Memorandum of Law of the United States of America in Opposition to the Motion of George Salerno under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct His Sentence, filed July 1, 2014 (Docket # 6) (“Gov’t Mem.”) (transcript of trial) (“Tr.”); Ex. C to Gov’t Mem. (transcript of sentencing hearing) (“Sent. Tr.”); United States v. Salemo, 499 Fed.Appx. 110, 112 (2d Cir.2012) (Summary Order).
B. Trial
Judge Jed S. Rakoff presided over Salerno’s trial, which began on June 28, 2011, and ended on July 5, 2011. (See Tr.). Over the course of the trial, the Government presented ten witnesses, all of whom were cross-examined by defense counsel. The defense called no witnesses, although it offered a stipulation and a document into evidence. (See Tr. 634-35). The evidence presented at trial is summarized below to the extent relevant to the issues in the petition. . '
1. Evidence as to the USDA Grant Scheme
As to the first count of the indictment, the Government offered evidence that, in 2008, Salerno met Erik Hagberg, the founder of a company called Pacific Aquaculture Cooperatives International (“PAC”), which dealt with sea cucumber-development and operated in the Marshall Islands. (See Hagberg: Tr. 97, 99-100,106). Hagberg and Salerno discussed using Sale-mo’s company, the Global Alliance for International Advancement (“GAIA”), to obtain funding for PAC. (See Hagberg: Tr. 107-08, 116-18, 121; Dalmau: Tr. 374-75).
As described further below, Salerno’s scheme involved presenting to potential investors a document that purported to be
Salerno’s company, GAIA, was listed on the grant agreement as the “fiscal’sponsor” of PAC. (Mikkelsen: Tr. 47); GX 106. The Government offered testimony that, as part of his fraud, Salerno placed advertisements in newspapers seeking investments in connection with PAC’s business and the forged USDA grant (See Porsch: Tr. 58-59).
Hartmut Porsch testified that he. met with Salerno and that Salerno had emailed a copy of the forged grant to him as part of Salerno’s request for a bridge loan of $1,000,000, in return for which Salerno would assign the right to receive payment from the grant to Porsch. (See Porsch: Tr. 59-67). That email was offered into evidence. (Tr. 60). Salerno promised Porsch that a bridge loan investment with GAIA would produce a 25% return once the USDA disbursed the grant funds.,(Porsch: Tr. 63). Salerno requested that the investment funds be deposited into GAIA’s bank account, which he controlled. (Porsch: Tr. 61; Dinkins: Tr. 569-70). On cross-examination, Porsch acknowledged that he had no laowledga of whether Salerno' .knew that the grant was a forgery, or whether Salerno forged the grant himself. (Porsch: Tr. 69-70).
• Natalio Lucangeli, a managing member of a company called Broadway Capital, testified that Salerno had told Lucangeli he wanted “to sell the proceeds of the grant.” (Lucangeli: Tr. 71, 73). Salerno told Lu-cangeli he needed to find a buyer for the grant because Salerno “needed cash” and that he “wanted [$]750,000.” (Lucangeli: Tr. 73-74). A copy of the grant that Lu-cangeli had received by fax, containing Salerno’s signature and the forged signature of Mikkelsen, was submitted into evidence. (See Lucangeli: Tr. 76-77); GX 106. Lucangeli testified that the only person at Salerno’s office he discussed the grant with was Salerno himself (Lucangeli: Tr. 80), and that Salerno had offered to introduce Lucangeli to the individual from the USDA who had signed the grant (Lucangeli: Tr. 88, 91). On cross-examination, Lucangeli indicated that he had initially thought the grant was real and that Salerno had said he was positive it would “pass due diligence.” (Lucangeli: Tr. 92-93).
Hagberg testified that although' GAIA entered into an agreement under which GAIA wduld work to obtain funding for PAG (see Hagberg: Tr. 107, 120-22), Sale-mo never told him that he had received a grant with PAC’s name on it (Hagberg: Tr. 132). Questioned by defense counsel, Hag-berg indicated that he had told Salerno
Pedro Dalmau, who had worked for GAIA in various capacities (see Dalmau: Tr. 369, 383), testified that he saw a document that appeared to be a grant from the' USDA to PAC when he was examining Salerno’s emails (Dalmau: Tr. 380-81). He stated that a signature on the grant purporting to be that of GAIA co-founder, Brandon Williams, did not match Williams’s usual signature. (Dalmau: Tr. 368,381-82).
James Knee, an independent contractor who provided funding for businesses (Knee: Tr. 484) testified that Salerno had asked him to advance approximately $1,000,000 in funding against a USDA grant, which Salerno represented GAIA had already been awarded (Knee: Tr. 487, 490, 497). A copy of the grant in question, which Knee stated he originally saw at Salerno’s office, was received into evidence. (Tr. 489). Knee testified that he and GAIA, by Salerno’s signature as CEO, entered into an agreement for Knee to locate funding for the advance that Salerno had requested, though he was ultimately unsuccessful. (Knee: Tr. 498-600, 502).
Agent Bethanne Dinkins of the USDA’s Office of Inspector General testified that she had received copies of the grant document itself or a similar document from Mikkelsen and several GAIA employees. (Dinkins: Tr. 662, 565-67, 569). Approximately three of those copies bore Salerno’s signature, and the others bore the purported signature of Williams. (Dinkins: Tr. 566). The purported grant document stated that funds were to be directed to a bank account that was identified as being held by GAIA. (See Dinkins: Tr. 569-70).
2. Evidence as to the Real Estate Scheme
As to the second count of the indictment, the Government offered evidence that Salerno transmitted copies of fraudulent checks in an attempt to obtain title to seven apartment buildings he had contracted to purchase. Julie Corrado, a residential real estate broker (Corrado: Tr. 157), testified that while Salerno was incarcerated on a separate matter, he had discussed with her his plan to buy the buildings, which were owned by a company called Milbank (see Corrado: Tr. 171,193). On Salerno’s instruction, Corrado emailed Milbank’s representative a “proof of funds” that she had received from Salerno, purportedly showing that Salerno’s company, called American Reclaimed Properties, Inc. (“ARP”), had a bank account with a balance of over $50,000,000. (Corrado: Tr. 212-16). The “proof of funds” was missing an account number and contained other errors. (See Corrado: Tr. 214-15). When Corrado asked Salerno about the missing account number, he responded that it was “to protect the account” and that if Mil-bank “dug deeper and had any kind of access to the account through an account number, then for some reason it would be putting it in jeopardy.” (Corrado: Tr. 219-20). In fact, the Government offered evidence that Salerno had altered a bank statement for an account held by an individual named Gabriel Gatto to make it appear as though ARP had these funds available to it when it did not. See Dinkins: Tr. 590-91; Government Exhibit 317R, annexed in App. App’x at A30.
.Corrado testified that Salerno directed her to execute a purchase contract for the properties. (See Corrado: Tr. 224-26). At Salerno’s direction, Corrado signed Sale-mo’s name to a contract between ARP and Milbank to purchase the properties. (See Corrado: Tr. 193, 224-28); see also Govern
On cross-examination, defense counsel questioned Corrado as to whether she herself had blacked out the account number on the bank statement. (Corrado: Tr. 312-14). When she stated that she had not, the defense attempted (unsuccessfully) to have admitted into evidence a document to impeach Corrado. (See Corrado: Tr. 314-15). In response to defense counsel’s questions about the $5,000,000 down payment required by the contract for purchase of the properties, Corrado acknowledged that the contract stated that the payment must be deposited by bank wire and did not say that the down payment could be made via a faxed photocopy of a check. (Corrado: Tr. 345-46).
Rodney Yashouafar, a project manager at Milbank, testified that he had seen the fraudulent bank statement and had also received a copy of a check from ARP for $5,000,000, which was signed by Salerno, dated October 8, 2010, and made out to an individual named Seymour Hurwitz.
Yashouafar testified that there were certain inconsistencies on the face of the check (Yashouafar: Tr. 419-20). He also testified that he had received a second check by fax for $5,000,000 from ARP, made out to Milbank’s in-house counsel, dated October 12, 2010. (Yashouafar: Tr. 422-24). That second check also appeared to be invalid, and when Yashouafar asked Salerno about this, Salerno responded that “the check is good” or “the check is okay.” (Yashouafar: Tr. 426-27), A copy of that check was admitted into evidence. (Tr. 423; Government Exhibit 405, annexed in App. App’x at A119 (“GX 405”)). Yashouafar testified that he had received by email a copy of a third check for $5,000,000, signed by Corrado and dated October 28, 2010, which Salerno had given to Hurwitz and which Hurwitz forwarded to Milbank. (See Yashouafar: Tr. 435-36, 447-49). A redacted copy of that email also was admitted into evidence. (Tr. 436, 446; Government Exhibit. 410, annexed in App. App’x at A126-28). On cross-examination, Yashoua-far stated that Milbank never actually received the $5,000,000 deposit, but only a fax, photocopy, or printout of checks for that amount. (Yashouafar: Tr. 459-60, 463). Nonetheless, in e-mails to Yashouafar, Salerno apparently urged Milbank to accept the check copies as proof of the $5,000,000 deposit and to go forward with the sále of the properties. (See Tr. 430-435; Government Exhibit 500A, annexed in App. App’x at A103-14). Yashouafar confirmed that the $5,000,000 deposit was to be made by bank
Ramak Radparvar, who had worked as a construction supervisor and assistant property supervisor in charge of several Mil-bank properties in New York City (Rad-parvar: Tr. 507-08), testified that Salerno, identifying himself as Gerald Meyers, had gone with him on a walk-through of a number of the apartment buildings as a potential buyer (Radparvar: Tr. 510-12, 514-15). He testified that Milbank’s corporate office had forwarded him by email a copy of the check dated October 12, 2010, from ARP (Radparvar: Tr. 522, see Tr. 423), and that he had unsuccessfully tried to verify the address of ARP listed on the check (Radparvar: Tr. 523-26). Radparvar also testified that he had been forwarded an email that was sent to Milbank containing a copy of the second check issued to Hurwitz. (See Radparvar: Tr. 613). That email was admitted into evidence. (Tr. 614). He stated he had been unable to verify the address of Fordham Group Properties, the business listed on this check and that the listed address was a P.O. box. (Radparvar: Tr. 614-16). On cross-examination, Radparvar acknowledged that Milbank was anxious to sell the buildings it had for sale and that he had met with Salerno several times at length. (Radparvar: Tr. 631-32).
Agent Dinkins testified that she obtained a search warrant that allowed her to look at a box of materials from the GAIA office. (Dinkins: Tr. 596). Included in these materials were two payroll checks signed by Salerno, which were admitted into evidence without objection. (Dinkins: Tr. 595-96, 603, 605). Those two payroll checks contained identical check and account numbers as two of the check copies sent to Milbank. (See Dinkins: Tr. 603-07).
The Government' also questioned Din-kins about the Gatto bank account statement, which Dinkins testified she discovered in a briefcase that was seized incident to Salerno’s arrest. (Dinkins: Tr. 590). That bank statement showed a balance that was identical, except for the first digit, to the balance on the statement of the account purportedly belonging to ARP, which was the statement Corradp had emailed to Mil-bank as a “proof of funds” on Salerno’s instruction. (See Dinkins: Tr. 591-92; Cor-rado: Tr. 212-16). The Gatto statement was admitted into evidence without objection. (Tr. 590.)
After the close of the Government’s case, the defense read a number of documents into evidence by stipulation, but did not call any witnesses of its own. (See Tr. 634-35). Additionally, defense counsel argued that a series of emails between Sale-mo and Hurwitz should be admitted to show Salerno’s state of mind (see Tr. 530-34), but the Court ruled that these emails were not admissible without the testimony of either Salémo or' Hurwitz to “explain their context” to the jury (Tr. 535). Salerno moved for judgment of acquittal on both counts of the indictment on the ground that the Government’s evidence was insufficient for a reasonable juror to convict him (Tr. 636), but this motion was denied (Tr. 637-39).
C. Deliberation, Verdict, Post-Trial Motion, and Sentencing
During the course of their deliberation, the jury sent several notes asking questions regarding the Court’s instructions to the jury. One of these notes, which was marked as “Jury Note No. 2,” asked, “Does a photocopy of a check constitute a ‘check’ for the purpose of Count 2?” (Tr. 774). In its argument to the court, the
On August 4, 2011, Salerno submitted a motion for judgment of acquittal or. a new trial, on the grounds that “the government failed to introduce evidence sufficient to prove beyond a reasonable doubt that Mr. Salerno committed the wire fraud offenses charged.” See George P. Salerno’s Post-Trial Motion for a Judgment of Acquittal or New Trial, United States v. Salemo, 11 Cr. 65 (JSR), filed Aug. 4, 2011 (Docket # 45); Memorandum of Law in Support of Defendant George P. Salerno’s Post-Trial Motion for a Judgment of Acquittal or New Trial, United States v. Salemo, 11 Cr. 65 (JSR), filed Aug. 4, 2011 (Docket #46). This motion was effectively denied when the Court entered judgment on the jury’s verdict of guilty. See Judgment in a Criminal Case, United States v. Salemo, 11 Cr. 65 (JSR), dated Oct. 26, 2011, and filed Oct. 27, 2011 (Docket # 49), Salerno’s sentencing hearing was set for October 19, 2011. (Tr. 813).
Prior to Salerno’s sentencing, the United States Probation Office prepared a Presen-tence Investigation Report (“PSR”), which included a proposed calculation of Salerno’s sentencing rangé under' the United States Sentencing Guidelines (the “Guidelines”). See Memorandum, United States District Court Southern District of New York Probation Office, annexed as Ex. E. to Gov’t Mem, at 6-12. The PSR calculated Sale-mo’s Base Offense Level as six and his Total Offense level as 28, noting that a 22-level increase was applicable because Salerno intended to fraudulently obtain the properties without paying the $22,000,000 purchase price. See id. at 6. It stated that Salerno’s criminal history placed him within Criminal History Category V. Id. at 6-12. The PSR concluded that Salerno’s Guidelines sentencing range was 130 to 162 months imprisonment, Id. at 20. It recommended a sentence of 130 months imprisonment. Id. at 20-21.
Also before his sentencing, Salerno’s counsel' sent a seven-page sentencing letter to the Court. See Letter addressed to Judge Jed S. Rakoff from Michael S. Schachter, dated Oct. 12, 2011, annexed in App. App’x at A256-62 (“Def. Sent. Ltr.”). The letter argued that Salerno’s Offense Level under the Guidelines should have been calculated as 20 because Salerno did not intend to cause $22,000,000 in losses. See id. at 2-3, 5. It also argued that Sale-mo was entitled to a reduction in his Criminal History Category because his prior convictions were remote in time. See id. at 5. Finally, the letter requested a sentence reduction, based on Salerno’s advanced age and ill health. See id. at 6. The Government argued that the Court should impose a sentence within the Guidelines range. See Government’s Sentencing Memoran
At the sentencing, Salerno’s counsel made a general objection to the description of the offense conduct contained in the PSR and argued that one of the sentences for a prior conviction listed in the PSR was misstated. (See Sent. Tr. at 2-3). Other than these objections, defense counsel relied on its sentencing submission. (Sent. Tr. 4-6). In rendering the sentence, the Court noted the goals of specific and general deterrence and stated that Salerno’s case “cries out for serious punishment, in light of his history and in light of the nature of these offenses.” (Sent. Tr. 10). The Court considered that the Guidelines were correct in “the proffered magnitude of sentence” but stated that “the guideline calculation, frankly, plays very little role in this sentence.” (Id.) The Court sentenced Saiemo principally to 162 months imprisonment. (Sent. Tr. 10-11).
D. Salerno’s Direct Appeal
Saiemo appealed his conviction to the Second Circuit. On appeal, he argued (1) that the Government had not provided sufficient evidence to support his conviction on the second count of the indictment; (2) that the district court erred in its answer to a note from the jury asking whether the use of deceitful means to stall constitutes a scheme to defraud; (3) that the district court erred in denying Salerno’s motion to sever the two counts; (4) that the district court abused its discretion in refusing to admit into evidence two emails between Saiemo and Hurwitz, which were relevant to Salerno’s intent; and (5) that the district court erred in basing Salerno’s sentence on a finding of a loss in the amount of $22,000,000 as to the second count. See Brief for Defendant-Appellant, United States v. Salemo, 11-4631 (2d Cir. filed Mar. 1, 2012) (Docket # 16) (“Salemo App. Br.”). In a Summary Order entered October 10, 2012, the Second Circuit rejected each of these arguments and affirmed Salerno’s conviction and sentence. See United States v. Salemo, 499 Fed.Appx. 110 (2d Cir.2012).
E. The Instant Habeas Petition
Saiemo filed the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on March 10, 2014 (Docket # 1) (“Pet.”). The petition claimed, first, that Salerno’s counsel was ineffective in various respects; second, that the trial court erred in its response to Jury Note No. 2; and third, that the trial court erred by “sealing the discovery product of the Government’s interview of attorney Seymour Hurwitz.” Id. at 3 (capitalization omitted). The Government filed opposition papers on July 1, 2014. See Gov’t Mem. Saiemo twice requested and received extensions of the deadline to submit a response to the Government’s papers, see Endorsed Letter from George Saiemo dated Sept. 18, 2014, filed Sept. 29, 2014 (Docket # 11); Memo Endorsement on Letter from George Saiemo dated Oct. 28, 2014, filed Nov. 6, 2014 (Docket # 13), but he never filed any response.
The Court later ordered the Government to provide supplemental briefing addressing Salerno’s claims regarding his counsel’s failure to move to suppress evidence that was allegedly seized illegally. See Order, filed May 6, 2015 (Docket # 14). The Government filed a letter on June 14, 2015 (Docket # 19) (“Gov’t Supp’l Resp.”), and Saiemo submitted a response, see Response to the Government’s Reply to the [sic], filed Aug. 12, 2015 (Docket #23) (“Saiemo Supp’l Reply”). By Order dated August 18, 2015 (Docket #24), the Court required the Government to submit another supplemental brief addressing one of the pieces of evidence that Saiemo contends was seized illegally, which the Gov
■ On September 16, 2015, the Court requested a submission from Salerno’s defense counsel in the underlying criminal action, Michael Schachter, that would address the reasons certain witnesses were not interviewed or, if interviewed, the reasons why they were not called as witnesses. See Order, filed Sept. 16, 2015 (Docket #27).
II. APPLICABLE LAW
A. Law Governing Petitions Under 28 U.S.C. § 2255
Section 2255(a) of Title 28 of the United States Code provides that
[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released 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 sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Relief under this statute is available “only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in [a] complete miscarriage of justice.” Graziano v. United States, 83 F.3d 587, 590 (2d Cir.1996) (per curiam) (citation and internal quotation marks omitted). “Because collateral challenges are in tension with society’s strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for á defendant to upset a conviction by collateral, as opposed to direct, attack.” Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir.2010) (citation and internal quotation marks omitted). A live testimonial hearing is required to adjudicate a § 2255 motion only in circumstances not present here. See Puglisi v. United States, 586 F.3d 209, 213 (2d Cir.2009) (“[I]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion.”) (alteration,. citations, and internal quotation marks omitted); Chang v. United States, 250 F.3d 79, 86 (2d Cir.2001) (district court’s review of the papers submitted
B. Law Governing Procedural Default
If a claim contained in a habeas petition was not asserted on direct review, the claim will be considered procedurally defaulted—and thus ineligible for review in a subsequent proceeding under § 2255— unless the petitioner “can - first demonstrate either ‘cause’ [for the default] and actual ‘prejudice’ ... or that he is ‘actual)/ innocent.’ ” Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (citations omitted); accord United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Zhang v. United States, 506 F.3d 162, 166 (2d Cir.2007). To satisfy the “cause” requirement, the petitioner must show circumstances “ ‘external to the petitioner, something that cannot be fairly attributed to him.’ ” Marone v. United States, 10 F.3d 66, 67 (2d Cir.1993) (per curiam) (quoting Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), superseded in part by 28 U.S.C. § 2255(b)(2)) (emphasis in original). “Objective factors that constitute cause include interference by officials that makes compliance with the State’s procedural rule impracticable, and a showing that the factual or legal basis for a claim was not reasonably available to counsel.” McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (citation and internal quotation marks omitted). Attorney error or ignorance does not amount to “cause” for a procedural default unless the error rises to the level of constitutional ineffectiveness. See Coleman, 501 U.S. at 752-54, 111 S.Ct. 2546. The resulting “prejudice” must create an “actual and substantial disadvantage, infecting [the petitioner’s] entire trial with error of constitutional dimensions.” Frady, 456 U.S. at 170, 102 S.Ct. 1584 (emphasis in original). Finally, “[t]o establish actual innocence, [the] petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousley, 523 U.S. at 623, 118 S.Ct. 1604 (citations and internal quotation marks omitted).
An exception to the procedural default rule exists for claims of ineffective assistance of counsel. In Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003), the Supreme Court held that “an ineffective-assistance-of-counsel claim may be brought in a collatéral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal.” Id. at 504, 123 S.Ct. 1690.
C. Law Governing Ineffective Assistance of Counsel Claims
To prove ineffective assistance, a petitioner must show (1) “that counsel’s representation fell below an objective standard of reasonableness”; and (2) “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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord United States v. Brown, 623 F.3d 104, 112 (2d Cir.2010); Pham, 317 F.3d 178, 182 (2d Cir.2003); see also Massaro, 538 U.S. at 505, 123 S.Ct. 1690 (“[A] defendant claiming ineffective counsel must show that counsel’s actions were not supported by a reasonable strategy and that the error was prejudicial.”).
In evaluating the first prong— whether counsel’s performance fell below
III. DISCUSSION
As a preliminary matter, the Court notes that because Salerno is a pro se litigant, wé hold his submissions “to less stringent standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam) (citations omitted); accord Scales v. N.Y. State Div. of Parole, 396 F.Supp.2d 423, 428 (S.D.N.Y.2005). Additionally, we construe his submissions “liberally.” E.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999).
We discuss in turn Salerno’s claims (1) that the district court made certain errors at trial, and (2) that he was denied the effective assistance of counsel at trial and sentencing. See Pet. at 3.
A. Salerno’s Claims of Errors by the Trial Court
In his petition, Salerno claims that the district court made two errors in the course of his trial. First, he argues that the Court’s response to the question posed in Jury Note No. 2—answering “yes” to the question “[d]oes a photocopy of a check constitute a ‘check’ for the purpose of Count 2?” (Tr. 774, 780)—was in error. See Pet. at 3, 51-52. Second, he claims that the Court “improperly sealed the Government’s discovery product of Attorney Seymour Hurwitz.” Id. at 52-53 (capitalization omitted). While it is not clear what Salerno refers to here, we presume it relates to Salerno’s pre-trial motion to compel the Government to produce “all notes and interview memoranda of interviews with Mr. Hurwitz.” See Notice of Motion to Compel, United States v. Salemo, 11 Cr. 65 (JSR), filed June 17, 2011 (Docket # 24); Memorandum of Law in Support of George P. Salerno’s Motion to Compel the Government to Produce Materials Relating to Seymour Hurwitz, United States v. Salemo, 11 Cr. 65 (JSR), filed June 17, 2011 (Docket #25), at 1. The Government argues that these claims of judicial error are both proeedurally defaulted and without merit. See Gov’t Mem. at 17-19.
As the Second Circuit has noted, “[a] § 2255 petition may not be used as a substitute for a direct appeal.” Marone, 10 F.3d at 67 (citing Frady, 456 U.S. at 165,
B. Salerno’s Claims of Ineffective Assistance of Counsel
Though the petition is not clear, Salerno seems to make three arguments to support his ineffective assistance of counsel claim. First, he argues that his counsel failed to present a defense at trial, even though a viable defense was “readily available.” Pet. at 6. Second, Salerno argues that his counsel erred by not making a motion to suppress certain evidence at trial, despite his request that they do so. See id. at 9-10. Finally, he contends that his counsel was ineffective because they did not make an argument at his sentencing hearing. See id. at 8-9.
1. Failure to Present a Defense
a. Deficient Performance
Salerno’s main complaint seems to be that his counsel called no witnesses at trial. See Pet. at 6, 8. He complains that his counsel did not call Hurwitz, see id. at 8, 49, Christopher Barnes, see id. at 44, Jack Elman, see id. at 45, Probation Officer Marcelo Bravo, see Salerno Second Supp’l Reply at 3, 5-6, or Kenneth Barnes, see id. at 7, to testify. He also complains that counsel did not call a number of law enforcement agents, GAIA employees, attorneys, and others who “would confirm all of the facts” surrounding his claims of innocence and the illegal nature of the criminal investigation overall, Pet. at 28-30.
Several of the individuals identified by Salerno, however—Knee, Dalmau, and Lucangeli—were called as witnesses at trial by the prosecution and cross-examined by defense counsel. Thus we do not consider them further. As to the other individuals, “[t]he decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial.” United States v. Smith, 198 F.3d 377, 386 (2d Cir.1999) (quoting United States v. Eisen, 974 F.2d 246, 265 (2d Cir.1992)) (quotation marks omitted). To challenge such a tactical decision, it is Salerno’s burden to
Additionally, where a petitioner claims that counsel improperly failed to call a witness at trial, the petitioner must explain what testimony the witness would have offered at trial and why that testimony would have led to a different outcome. See, e.g., Ozsusamlar v. United States, 2012 WL 4473286, at *5 (S.D.N.Y. Sept. 28, 2012) (rejecting claim that counsel was ineffective for failure to investigate or interview a potential witness, because the petitioner “failed to introduce any evidence that [the witness] would have testified and, if he did, whether he would have provided any exculpatory or impeachment testimony.”); Carr v. Senkowski, 2007 WL 3124624, at *21 (W.D.N.Y. Oct. 23, 2007) (“[A] petitioner does not show that he was prejudiced by trial counsel’s alleged deficient performance merely by asserting that certain witnesses might have supplied relevant testimony; rather, he must state exactly what testimony they would have supplied and how such testimony would have changed the result.”) (emphasis in original); Carneglia v. United States, 2006 WL 148908, at *4 (E.D.N.Y. Jan. 18, 2006) (rejecting challenge based on failure to call defense witnesses where “petitioner has not provided affidavits from the potential witnesses nor any assurance that they would have appeared at trial had counsel interviewed them.”); Charles v. United States, 2006 WL 208838, at *4 n. 5 (N.D.N.Y. Jan. 19, 2006) (“Conspicuously absent from this allegation is any showing of what testimony the witnesses ... would have offered in Petitioner’s defense, or how this testimony would have led to a different trial result.”).
As we explain next, Salerno’s claims rest purely on speculation, which often is directly contradicted by other evidence in the record. We group the witnesses according to the subject area of their purported testimony.
i. Witnesses Connected to Count One. Salerno contends that his counsel should have called Brandon Williams, Wayne Deas, and the attorneys of the Goldstein Hall Law Firm to support his defense against the alleged USDA Grant scheme. See Response to Schachter Aff. at 2-3. He argues that, unbeknownst to him, the GAIA executive staff conspired to forge the USDA grant,- which he believed was legitimate at the time. Pet. at 8, 15. In support of this alleged conspiracy, Salerno asserts that the testimony of Williams, Deas, and the Goldstein Hall attorneys would establish Williams’s previous knowledge of the grant; show Williams’s participation in creating the grant, see Pet. at 30; show that Williams sent the grant to Goldstein Hall; and support that contention that Salerno harbored 'a “belief that the [g]rant was valid,” Response to Schachter Aff. at 2-3. Salerno also suggests that Goldstein Hall, who had been hired to review the grant’s legitimacy, “never questioned the validity of the [g]rant,” which, he suggests, supports his argument that he believed the-grant was valid. M, at 3. Finally, Salerno argues that Deas should have been called, because a separate witness, Natalio Lucangeli, testified that he
As discussed in Michael Schachter’s affidavit, however, these beliefs are not supported by any- evidence in the record and defense counsel’s decision not to call these witnesses was entirely reasonable. Schachter Aff. ¶¶5-8. First, Salerno’s argument that attorneys from Goldstein Hall never questioned the validity of the USDA Grant, and only withdrew due to a payment issue, see Response to Schachter Aff. at 3, is inconsistent with the statements of Mafthew Hall, an attorney from Goldstein Hall who was involved with Salerno’s representation. Prior to trial, Salerno’s defense team interviewed Hall, who “informed [them] that Goldstein Hall terminated representation of Mr. Salerno ... because ‘things didn’t smell . right.’ ” Schachter Aff. ¶ 8. Hall also informed defense counsel that Salerno, not Williams, had provided Goldstein Hall with a copy of the forged USDA grant. Id.
Next, Salerno’s recollection of Lucange-li’s testimony and the potential relevance of Deas’s testimony is similarly unsupported. Not only does Lucangeli’s testimony never mention Deas, he made clear that Salerno provided him with a copy of the forged USDA grant. (See Lucangeli: Tr. 92). Finally, with regard to both Williams and Deas, defense counsel obtained background reports from a private investigator and believes they attempted to contact both individuals, but were ultimately unsuccessful. Schachter Aff. ¶ 6. In light of the above, defense counsel made a reasonable tactical decision not to call these witnesses on Salerno’s behalf. If anything, testimony from Goldstein Hall would have further inculpated Salerno. Furthermore, the unknown and speculative benefit the testimony of Williams and Deas could have provided was well outweighed by the significant risk of more harmful testimony. Accordingly, the decision not to call Williams, Deas, or the Goldstein Hall attorneys, was “supported by a- reasonable [trial] strategy,” Massaro, 538 U.S. at 505, 123 S.Ct. 1690, and thus not a “lapse in professional representation,” Best, 219 F.3d at 201 (citation and quotation marks omitted).
ii. Witnesses Connected to Count Two. Salerno also argues that Seymour Hurwitz, Christopher Barnes, Kenneth Barnes, Jack Elman, and employees from Key Bank should have been called in connection with the real estate scheme allegation. According to Salerno, Hurwitz’s testimony was essential to his defense, as it would have allowed for the admission of three emails between Hurwitz and Salerno concerning payments associated with the real estate purchase. See Response to Schachter Aff. at 4; Pet. at 49. The emails contain questions from Salerno to Hurwitz'regard-ing the correct party to address a deposit check, as well as instructions from Hurwitz to Salerno concerning the upcoming steps of the real estate transaction. See Pet. at 49;
Defense counsel chose not to call Hur-witz as a witness, and thus was precluded from introducing the three emails into evidence. As discussed in his affidavit, however, counsel decided against calling Hur-witz, because “Judge Rakoff had denied our pre-trial motion to compel the Government to disclose all materials related to
Salerno argues that Jack Elman should also have been called, because Elman, along with Salerno, was involved in the inspection of the real estate properties and because Elman had discussions with both Christopher Barnes and Key Bank officials regarding the real estate transaction. Pet. at 45-46. According to Salerno, Elman had also received the fraudulent proof of funds from Julie Corrado and was one of the first people to hear Christopher Barnes and Corrado begin using the fictitious name “Gerald Meyers.” Response to Schachter Aff. at 4. Defense counsel, however, states that in their own interviews with Elman, Elman provided only harmful information regarding Salerno’s case. Specifically, Elman informed defense counsel that “he was initially introduced to Mr. Salerno as ‘Gerald Meyers’ ” and that he had “received several fraudulent checks from Mr. Salerno.” Schachter Aff, ¶ 11.
Salerno suggests that “Key Bank [was] important to the defense,” Response to Schachter Aff. at 4, as it “approved the buildings,” as part of the real estate purchase, and that its “final .committee required just a few additional documents” to finalize ■ the transaction, Pet. at 46. He further states that Key Bank had informed him that “a 15 year, 4% loan was available” and only required “some more info.” Response to Schachter Aff. at 4. Testimony of this nature, Salerno contends, would have “in itself presented] a different picture to the Jury.” Pet. at 46. Presumably, Salerno thinks such evidence would show that Sale-mo and his company were attempting to purchase the properties through legal means. Once again, however, the fact that there was actual real estate involved and that there were entities who took Salmo seriously does nothing to show that Salerno did not himself act fraudulently. Moreover, defense couhsel’s own interviews with Key Bank officials did not show that they would have offered helpful evidence. Defense counsel interviewed Todd Goulet, a Key Bank mortgage broker referred by Sale-mo. Schachter Aff. ¶ 12. Goulet informed them that “Key Bank never received any information from Mr. Salerno necessary to proceed with a financing proposal,” and that, due to Salerno’s failure to provide necessary information, the bank had not even begun a formal due diligence review. Id.
Salerno contends that Christopher and Kenneth Barnes should have been called as witnesses to discredit Julie Corrado’s testimony* and establish that “Christopher Barnes, [was] in charge [of] directing Cor-rado’s every move, authorizing any interaction with [Salerno],” was the mastermind behind the real estate scheme, and used the fictitious name Gerald Meyers. Pet. 45; Response to Schachter Aff. at 3-4, He also alleges that Kenneth Barnes’s testimony would have shown ■ that Kenneth “controlled ... [t]he money for [the real estate transaction],” which stemmed from his “proceeds of 'drug transactions.” Pet. at 47. Again, these allegations are barely relevant to the central charge against Sale-mo: that he committed fraud in the real
Accordingly, we find that defense counsel’s decision not to call Hurwitz, Elman, the Key Bank officials, Christopher Barnes, and Kenneth Barnes, did not fall below an “objective standard of reasonableness.” Pham, 317 F.3d at 182 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052).
iii. Witnesses Associated with a Pre-Trial Suppression Motion. Finally, Salerno claims defense counsel was ineffective for not calling Marcelo Bravo, Mike Waring, Leonardo Gale, Ron Redding, Jane Byrie Alison, Keith Baumwald, and Cynthia Menutole. Response to Schachter Aff. at 6-8; Pet. at 22-23. Although Salerno’s exact rationale is difficult to follow, we interpret his pro se petition to argue that his counsel’s failure to call these witnesses was ineffective because they would have provided testimony to support a suppression motion regarding some or all of the incriminating evidence used against Salerno at trial. Id.
Beyond his own speculation and interpretation of evidence already in the record, Salerno’s only evidence of what testimony these witnesses could have offered is based exclusively on certain email communications and a “revocation hearing” transcript. Response to Schachter Aff. at 8,10-31. The email correspondence, however, does not suggest that any of the searches were illegal or that the named witnesses would provide testimony that it was. In fact, the few emails relevant to the seizure of items from Salerno suggest quite the opposite. See, e.g., Response to Schachter Aff. at 11 (Agent Dinkens describes how GAIA employees contacted her on their own accord and asked her to take possession of “several shopping bags of ‘evidence’ which they [believed] might be destroyed by Salerno if it [was] left in the office overnight.”); id. at 17 (Agent Dinkins states that the decision to lock Salerno out of his office was made by the “interim Chief Executive Officer ... Troy Ser-gent”). Not only were most of the emails not written by any of the named witnesses,
Similarly, Salerno’s transcript evidence fails to provides support for his claim of ineffective assistance. Salerno asserts that, based on testimony offered by Denise Morgan—a witness he sometimes refers to as Denise “Williams,” see, e.g., Response to Schachter Aff. at 8—in another of Sale-
iv. Efforts Taken in Support of Salerno’s Defense. Notwithstanding defense counsel’s decision not to call witnesses on Salerno’s behalf, defense counsel took significant steps to advance the defense’s theory of the case, expressed during both its opening and closing statements, that the Government could not prove that Salerno knew the USDA grant
Salerno also complains that- Schachter, his lead attorney, did not understand commercial mortgages and therefore did not present certain facts to the jury. See Pet. at 6-7. This is based on Schachter’s statement at a sidebar discussion in which Schachter was attempting to explain to the Court why emails from Salerno to Corrado about the mortgage process in commercial real estate were admissible non-hearsay. (See Tr. 291, 293). To that end, Schachter argued that the defense was offering the email not for the truth of its contents but to show Salerno’s state of mind. (Tr. 293-94), Schachter’s full statement on this point was:
I’m not trying to establish that in fact this is how commercial mortgages work. I don’t have any idea. I’m sure Mr. Salerno doesn’t either. I’m just trying to show what he believed was how commercial mortgage applications work to show that he is not operating with intent to defraud.
(Tr. 294). Read in context, it is clear that Schachter’s comment was made as part of an attempt to advance the defense’s theory of the case. Notwithstanding Salerno’s claims to the contrary, the details of the conduct of commercial mortgages were not an issue in the case. Additionally, Salerno has not shown that any specific action by Schachter reflected a lack of understanding of any issue'relevant to the case. Thus, Salerno has not shown ineffective assistance of counsel based on his attorney’s alleged failure to present a defense.
b. Prejudice
Relatedly, Salerno has not demonstrated the necessary prejudice to succeed on this ineffective, assistance of counsel claim based on his counsel’s alleged failure to present a defense. This alone is reason to find that Salerno is not entitled to habeas relief on this ground. See, e.g., Strouse v. Leonardo, 928 F.2d 548, 556 (2d Cir.1991); see also Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (“[T]here is no reason for a court deciding an ineffective assistance claim .., even to address both components of the inquiry if the defendant makes an insufficient showing on one.”).
Salerno states that if defense counsel had presented “the defense that was readily available,” the trial “would in all probability have resulted in a not guilty verdict” and that “there is a substantial likelihood of a different result” but for his counsel’s alleged errors. Pet. at 6, 50-51; see also Salerno Second Supp’l Reply at 2 (“[H]ad all thé necessary witnesses] been ut[i]lized ther[e] would have been no doubt as to the origin of [the] forged grant.” However, he offers no explanation of how any particular
2. Fourth Amendment Claim
When a petitioner claims ineffective assistance of counsel on account of a defense attorney’s failure to litigate a Fourth Amendment claim, he mdst prove both “that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence.” Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); accord United States v. Matos, 905 F.2d 30, 32 (2d Cir.1990). In considering, whether a claim is “meritorious,” we note that defense counsel are not required “routinely to file boilerplate motions merely to vindicate their professional competence without regard for the grounds supporting such motions.” United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir.1987). Rather, they are required only to file those motions “having a solid foundation.” United States v. Nersesian, 824 F.2d 1294, 1322 (2d Cir.1987).
Salerno argues that his counsel was ineffective because they refused to file a motion to suppress evidence allegedly obtained through an illegal search and seizure. See Pet. at 9-10. He identifies three such pieces of evidence: a copy of the fraudulent USDA grant signed by Williams, Gatto’s bank statement, and a copy of one of the payroll checks that was altered and sent to Milbank. See id.; Salerno Supp’l Reply at 2. The petition’s argument on this point, see Pet. at 11-28, amounts to an undifferentiated narrative of events occurring prior to his arrest and indictment.
Relevant to the instant petition, however, is Salerno’s contention that Dinkins entered the offices of GAIA with Sargent in the evening of May 21, 2009, without a warrant, and seized a box of “materials, documents, financial documents, hard
a. Deficient Performance
i. The Copy of the Fraudulent USDA Grant Signed by Brandon Williams. The first piece of evidence Salerno contends his counsel should have moved to suppress was a copy of the fraudulent USDA grant signed by GAIA’s COO, Brandon Williams. See Pet. at 9. The Government maintains that this document was provided by Porsch, .Gov’t Supp’l Resp. at 1, but Sale-mo contends that it was “obtained from employees during the illegal search of [the] GAIA office,” Pet. at 10 (capitalization and citation omitted). Salerno cites to no evidence to support this statement other than Dinkins’s trial testimony. But Din-kins testified that she received “approximately six copies” of the document from several GAIA employees “[d]uring the course of the investigation” of Salerno. (Dinkins: Tr. 566-67). In other words, Din-kins’s testimony indicates that the Government obtained the challenged document through third parties, and not from the box of evidence from the GAIA office. This is corroborated by Porsch’s own testimony, which indicates that he received an email from Salerno attaching a copy of the grant purportedly bearing Williams’s signature as well as Mikkelsen’s. (See Porsch: Tr. 60-61, 65-66).
Moreover, even if this copy of the fraudulent grant had been obtained from the box of materials from the GAIA office rather than from Porsch, the record does not provide a basis for finding that the search of the GAIA office was illegal. Sale-mo contends that Dinkins went with GAIA employee Sargent to search the GAIA offices on May 21, 2009, and that security tape footage exists which will corroborate this assertion. See Pet. at 16-17; Salerno Supp’l Reply at 6. But no such tapes are part of the record. Moreover, Salerno himself offers evidence—in the form of emails sent by Dinkins—that contradicts his assertion. These emails recount that on May 21, 2009, Dinkins received a phone call from a “disgruntled” GAIA employee who wanted to turn over- “several shopping bags of ‘evidence’” to Dinkins, and that the employee was concerned that the evidence “might be destroyed by Salerno if it is left in the office overnight.” Email from Bethanne Marik-Dinkins, dated May 21, 2009, attached as Ex. 8 to Salerno Supp’l Reply; see Email from Beth Dinkins, dated Nov. 2, 2010, attached as Ex. 130A to Salerno Supp’l Reply. Thus, counsel might have reasonably chosen not to make a motion to suppress this evidence given the lack of evidence that Dinkins improperly took or directed GAIA employees to deliver the materials to her.
ii. Gatto’s Bank Statement. As to the second challenged piece of evidence, Dinkins testified that she obtained the copy of Gatto’s bank statement from a briefcase belonging to Salerno, which was seized incident to his arrest. (Dinkins: Tr. 590). An exception to the Fourth Amendment’s warrant requirement exists for a search incident to a lawful arrest. E.g., Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (citing Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652 (1914)). “[A] search incident to arrest may only include ‘the arrestee’s person and the area within his immediate control,’ ” meaning “the area from within which he might gain possession of a weapon or destructible evidence.” Id. at 339, 129 S.Ct. 1710 (quoting Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)). Additionally, the Supreme Court has held that it is “not ‘unreasonable’ for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures.” Illinois v. Lafayette, 462 U.S. 640, 648, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983) (footnote omitted).
The record is not clear whether agents searched the briefcase at the time of Salerno’s arrest or later, as part of an inventory procedure. In any event, Salerno does not challenge the seizure of the briefcase incident to his arrest or the search
iii. The Payroll Check that Was Altered and Sent to Milbank. With respect to the third piece of evidence that Salerno challenges—“the check (American Reclaimed Properties) made out to Williams where the check number was alleged to have been changed and then given/faxed to Mil-bank,” Pet. at 9-10 (capitalization omitted)—Salerno has clarified, see Salerno Supp’l Reply at 2, that he means to challenge the original payroll check made out to Williams, which agents obtained “during a search warrant ... [o]f a box of materials obtained from [GAIA] ” (Dinkins: Tr. 596). At trial, the Government’s theory with respect to this evidence was that Salerno took previously deposited checks, like the challenged payroll check made out to Williams, altered them,-and then sent copies to Milbank. See Tr. 684-85 (Government summation). The original payroll check was admitted into evidence without objection (Tr. 596), separate from the altered version sent to Milbank, which was also admitted without objection (Yashoua-far: Tr. 422-23); GX 405. On direct examination, the Government asked Dinkins to compare these two checks. (See Dinkins: Tr. 603-05).
The Government acknowledges that this last piece of evidence was in the box of materials obtained from the GAIA office. See Gov’t Second Supp’l Resp. at 2-4; see also Dinkins: Tr. 596 (Dinkins testimony that the payroll check came from a box of materials from GAIA); Tr: 598-600 (sidebar discussion during which counsel for the Government indicated that Dinkins obtained the check from a box provided by a GAIA employee). As discussed above, however, we cannot find that the initial search of the GAIA offices and seizure of the box of materials was illegal. Therefore, Sale-mo’s counsel was not ineffective for-failing to make a motion to suppress the payroll check.
b. Prejudice
Aside from his failure to establish that counsel should have moved to suppress the materials he cites, Salerno offers nothing by way of showing a “reasonable probability (that the verdict would have been different” had the evidence been suppressed, Matos, 905 F.2d at 32 (citation and internal quotation marks omitted). We reach this conclusion in light of the overwhelming evidence offered by the Government at trial in the form of witness testimony, email communications, and copies of various forged and altered documents received by third parties. Cf. Strickland, 466 U.S. at 696, 104 S.Ct. 2052 (“[A] verdict or conclusion only weakly supported by the
With respect to the forged grant signed by Williams, the Government introduced multiple copies of the grant bearing the purported signatures of Mikkelsen and Salerno. (See, e.g., Tr. 41-54; 76). It also introduced testimony from Mikkelsen indicating that the grants were indeed forged (see Mikkelsen: Tr. 39-42, 45-52); testimony from three different witnesses that Salerno had requested loans based on the grant (see Porsch: Tr. 59-67; Lucangeli: Tr. 73-74; Knee: Tr. 487, 490, 497); testimony showing that Salerno attempted to convince Lucangeli that the grant was genuine (see Lucangeli: Tr. 88-93); and evidence that the forged grant stated that any funds received were to be directed to a GAIA-held bank account (see Dinkins: Tr. 569-70). The forged grant signed by Williams was thus of little importance given the other evidence that was introduced.
With respect to Gatto’s bank statement and the copy of one of the payroll checks that was ultimately altered and sent to Milbank, the Government introduced testimony regarding a “proof of funds” Salerno directed Corrado to email to Milbank, which was missing an account number, had inconsistent fonts, did not contain the name of the bank, and was missing a word (see Corrado: Tr. 212-15); testimony that, in connection with the Milbank transaction, Salerno wrote a check for $5,000,000 from an account that he knew only had a balance of $10,000 to $12,000 (see Corrado: Tr. 256-57, 261); evidence of checks received by Milbank that had apparent flaws on their face but which Salerno insisted were “good” .or -“ok” (see Yashouafar: Tr. 419-20, 422-24, 426-27; GX 404, GX 405; see also Radparvar: Tr. 523, 525-26, 614-16); GX 404; GX 405; and testimony that Salerno used the alias Gerald Meyers in connection with some dealings with Mil-bank (see, e.g., Radparvar: Tr. 510-12). In light of this evidence, Gatto’s bank statement and the payroll check were, of no particular importance. Also, given that Salerno has made no particularized argument as to the “reasonable probability” .that the verdict would have been different on either count if the challenged evidence had been suppressed, Salerno has not established the prejudice prong of his Fourth Amendment-based ineffective assistance of counsel claim.
. 3. Sentencing
a. Reasonableness
Salerno claims that his attorneys were ineffective at his sentencing because they “[said] nothing at sentencing but [stood] on their sentencing memorandum.” Pet; at 8-9. Here, too, Salerno has not shown that his counsel’s actions fell below an objective standard of reasonableness. Salerno’s counsel submitted a pre-sentenc-ing letter that made several arguments: that Salerno’s Offense Level should be reduced, that his Criminal History Category should be reduced, and that he should receive a shorter sentence because of h}s age and ill health. See Def. Sent. Ltr. at 2-3, 5-6. Salerno’s argument centers around the- fact that his counsel opted to rely on this letter at the sentencing hearing, rather than making an oral presentation, but the pre-sentencing letter fully addressed the alleged errors in the PSR at length, see id. at 2-3, 5, and we do not see why defense counsel must repeat orally the arguments made in a written sentencing submission in order to be effective. Moreover,
Salerno also contends that his counsel failed to “object to the misstatement, errors of the PSR.” Pet. at 51. Without further explanation—which Salerno does not provide—we are unable to determine what alleged errors this statement refers to. However, we note that Salerno’s counsel objected to the description of the offense conduct contained in the PSR and argued that one of the sentences for a prior conviction listed in the PSR was misstated at sentencing. (See Sent. Tr. at 2-3).
For these reasons, we find that Salerno has not shown that his counsel’s representation at his sentencing fell below the standard of objective reasonableness,
b. Prejudice
Salerno does not identify with any specificity what arguments he would have had his counsel make at his sentencing, or what would have been gained by his counsel making an oral argument in addition to the pre-sentencing letter. Indeed, he makes no allegations whatsoever as to how he was prejudiced by his counsel’s decision to rely on their pre-sentencing letter, let alone presenting any “objective evidence” establishing prejudice. Pham, 317 F.3d at 182. For this reason as well, we reject Salerno’s claim of ineffective assistance with respect to his counsel’s conduct at his sentencing.
IV. CONCLUSION
For the foregoing reasons, Salerno’s petition to vacate, set aside, or correct his sentence should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties have fourteen (14) days including weekends and holidays from service of this Report and Recommendation to serve and file any objections. See also Fed. R. Civ. P. 6(a), (b), (d). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Jed S. Rakoff at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Rakoff. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. An, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir.2010).
. The grant agreement.itself was.admitted as Government Exhibit 106 (“GX 106”) and appears in the appendix that was filed as part of Salerno’s appeal. The Government purported to attach this appendix to its memorandum of .law in opposition to the habeas corpus petition, see Gov’t Mem. at 5 n.l, but failed to do so. The appendix is available, however, in the Second Circuit docket. See Appendix, United States v. Salemo, 11-4631 (2d Cir. filed Mar. 1, 2012) (Docket # 17) ("App. App’x”). GX 106 appears at pages All-17.
. This individual is also referred to by the name "Horowitz” in the trial transcript (see Corrado: Tr. 251, 254; Yashouafar: Tr. 417, 422, 432-36, 442, 447-49).
. The Order sought such information with regard to Seymour Hurwitz, Christopher Barnes, Jack Elman, Marcelo Bravo, and Kenneth Barnes. Id. Salerno then submitted a letter indicating that the list of potential witnesses described in the Court’s Order was incomplete, and provided a list of witnesses whom Salerno believed should have been called. See Letter to Judge Gabriel W. Goren-stein from George Salerno, filed Oct. 2, 2015 (Docket # 28). Salerno’s letter added the following witnesses: Mike Waring, Ron Redding, Leonardo Gate, Ms. Menutole, Bryie Alison, Keith Baumwald, Wayne Deas, the attorneys at the Goldstein Law Firm, Brandon Williams, and Key Bank officers. See id On October 7, 2015, the court endorsed Salerno’s letter and ''requested] that Mr. Schachter address these additional witnesses in his response to the Court’s Order dated September 11, 2015.” See Memo Endorsement, filed Oct. 7, 2015 (Docket # 29).
. Citations to specific pages in this document refer to the ECF-assigned pagination.
. There is a one-year time limit for habeas petitions filed under § 2255. See 28 U.S.C. § 2255(f). While it seems that the petition is untimely, the Court does not address this issue inasmuch as the Government has not raised it.
. Citations to specific pages in this memorandum refer to the ECF-assigned pagination.
. In addition to these arguments, Salerno refers generally to the limited experience in criminal law of some of his attorneys. See Pet. at 6. However, Salerno admits that his lead attorney, Schachter, "is an experienced feder- . al criminal lawyer.” Id. While Salerno claims that, Schachter’s "involvement was peripheral,” id. the trial transcript shows that ' Schachter cross-examined multiple witnesses, made objections and applications to the Court, and presented the defense’s closing argument. (See, e.g., Tr. 136-56, 262-306, 310-58, 414-17, 442-44, 450-78, 559-60, 581, 611-12, 619-32, 695-732). Even if some of Salerno’s attorneys were inexperienced in criminal law, that alone would not support an ineffective assistance of counsel claim. See, e.g., United States v. Salameh, 54 F.Supp.2d 236, 250 (S.D.N.Y.1999) (such an argument "would have one conclude that every ‘first’ trial is perpetrated by an incompetent”), aff’d, 16 Fed.Appx. 73 (2d Cir.2001).
. Salerno contends that the third email was a message from Salerno to Hurwitz, which included the following statement: "[t]he check was faxed at 9:55 am to Homan for the Bronx properties.” Pet. at 49.
. The only email written by one of the named witnesses is a message purportedly sent by Wayne Deas to Salerno himself. Response to Schachter Aff. at 16, The message, however, only contains the forwarded substance of a separate message, originally sent to Deas from Troy Sergent, which informed Deas that Salerno was no longer CEO of "the company," which was "no longer in operation,” and that Salerno was currently under federal investigation and on supervised release. Id.
. Salerno arguably forfeited any claim that we should examine the failure to call Morgan as a witness. On September 16, 2015, the Court issued an order directing defense counsel to provide an affidavit regarding Salerno’s allegations that he had improperly failed to call certain witnesses named in the order. Order, filed Sept. 16, 2015 (Docket #27). Salerno then wrote a letter to the Court listing additional witnesses that he asserted should have been included in the Court’s September 16 order. Letter to Judge Gabriel W. Goren-stein from George Salerno, filed Oct. 2, 2015 (Docket # 28). The Court acceded to Salerno's request by issuing an order directing defense counsel to address the additional witnesses as well. See Memo Endorsement, filed Oct. 7, 2015 (Docket # 29). Salerno, however, never mentioned Morgan in his October 2 letter to the Court. Accordingly, defense counsel did not address her testimony in his own affidavit. -
. At one point, Salerno .refers to Morgan’s testimony as occurring at his "revocation of supervised release hearing before the Hon-norable [sic] Judge Jones SDNY.’’ Pet. at 18-19. The court record reflects, however, that Morgan did not testify at the revocation hearing concerning his supervised release. See Transcript of Oct. 16, 2009 (Docket # 16 in 09 Cr. 701); Transcript of Nov. 4, 2009 (Docket ## 19, 20 in 09 Cr. 701) (annexed to Order dated May 9, 2016 (Docket # 36)).
. These allegations also formed the basis of a civil complaint Salerno filed against various government officials, including Dinkins. See Complaint, Salemo v. Hastings, 11 Civ. 2525, filed Apr. 6, 2011 (Docket # 2); Motion for Reconsideration, Salemo v. Hastings, 11 Civ. 2525, filed Feb. 24, 2012 (Docket # 30). That complaint was dismissed for failure to state a claim, with the court finding that the searches at issue were not unreasonable under the Fourth Amendment. See Opinion, Salemo v. Hastings, 11 Civ. 2525, filed Sept. 27, 2012 (Docket # 40), at 12-14, Portions of Salerno's habeas petition appear to cite documents filed in that case, see Motion for Reconsideration, Salemo v. Hastings, 11 Civ. 2525, filed Feb. 24, 2012 (Docket # 30), and indeed, several pages of the petition are virtually identical to pages contained in another filing in that case, compare Pet. at 11-27 with Motion by Plaintiff to Deny Government’s Motion to Dismiss, Salemo v. Hastings, 11 Civ. 2525, filed July 29, 2013 (Docket # 53), at 3-19.
. The record indicates that, if anything, the challenged evidence came from the box of materials obtained from the GAIA office during the initial search, rather than the subsequent search by Bauman. See Affidavit in Support of a Search Warrant, dated June 5, 2009, annexed as Ex. B to Gov’t Second Supp'l, Reply, ¶ 5 (the box contained, inter alia, "payroll and bank records” and "binders maintained by GAIA ... containing bank account information”); Email from Bethanne Dinkins, dated May 22, 2009, attached as Ex. 11 to Salerno Supp’l Reply (indicating that the box from the GAIA office included, inter alia, "payroll records” and "a different version of the fraudulent USDA Grant Agreement (where the GAIA representative name was changed from ‘George Salerno' to ‘Brandon Williams’ ”); Email from Beth Dinkins, dated Nov. 2, 2010, annexed as Ex. 130A to Salerno Supp'l Reply (Dinkins "instructed Baumwald [sic] to return the [additional] items he had taken” from the GAIA office). Moreover, Sale-mo’s petition and supplemental submissions focus almost entirely on that initial search. We therefore do not find it necessary to consider the admissibility of any other materials which may have been allegedly obtained through Bauman.