James v. U.S.

Full title: KENT A. JAMES, a/k/a "Gondalini Ali," Movant, v. UNITED STATES OF AMERICA…

Court: United States District Court, S.D. New York

Date published: May 20, 2002

00 Civ. 8818 (LAK) (GWG)S2 97 Cr. 185 (S.D.N.Y. May. 20, 2002)

Opinion

00 Civ. 8818 (LAK) (GWG)S2 97 Cr. 185.

May 20, 2002

REPORT AND RECOMMENDATION

GABRIEL W. GORENSTEIN, United States Magistrate Judge

Kent A. James, a/k/a "Gondalini Ali, " proceeding pro se, has moved under 28 U.S.C. § 2255 to vacate his judgment of conviction. For the reasons stated below, James' motion should be denied.

I. BACKGROUND

A. Proceedings Before the Trial Court

On September 8, 1997, a nine-count indictment was filed against James and his codefendant Johnny Davis, who is also James' brother. See Indictment (S2) 97 Cr. 185 (SS). Because Davis pled guilty prior to trial, the indictment was subsequently reduced and renumbered to five counts. See Petition for Writ of Habeas Corpus Pursuant to 28 U.S. § 2255 dated October 31, 2000 (hereinafter, "Motion to Vacate"), Supplemental Exhibit 2. Pursuant to this superseding indictment, James was charged with the following crimes:

(1) Count One: Manufacturing fireanns, namely hand grenades and other bombs in violation of 26 U.S.C. § 5822, 5845(a), (f) (i) 5861(f);

(2) Count Two: Engaging in the business of manufacturing firearms without a license in violation of 18 U.S.C. § 922 (a)(1)(A);

(3) Count Three: Possession of a firearm, namely a Norinco, 7.62 caliber semiautomatic, by a prohibited person in violation of 18 U.S.C. § 922 (g) and (2);

(4) Count Four: Possession of a non-registered firearm, namely a pipe bomb, in violation of 18 U.S.C. § 5845 (a) (f) 586 1(d); and

(5) Count Five: Possession of C-4 explosives by a prohibited person in violation of 18 U.S.C. § 842 (i)(1) and (2).

See Supplemental Exhibit 2 to the Motion to Vacate (hereinafter, "Indictment"). James' trial before then-District Judge Sonia Sotomayor commenced on February 17, 1998 and ended on February 25, 1998. James was convicted by a jury of all five counts and was sentenced principally to a term of 365 months to be followed by three years of supervised release.See Judgment, dated August 21, 1998, at 3-4 (hereinafter "Judgment of Conviction"). James is currently incarcerated pursuant to this conviction.

B. Evidence at Trial

Viewed in the "light most favorable to the Government, " United States v. Desena, 287 F.3d 170, 176 (2d Cir. 2002), the evidence at trial demonstrated that from about 1991 until about 1997, James manufactured weapons and explosives, including home-made pipe bombs and grenades, for profit.

1. Activities prior to September 8, 1992 ¹

1 Because of the applicable statute of limitations, the jury was instructed that it had to find that criminal conduct "occurred or continued" on or after September 8, 1992, for purposes of Counts One and Two of the Indictment. (Transcript of Trial ("Tr.") 759).

In brief the evidence showed that in January 1991, James, a person identified as Jerome Tolden and certain other individuals murdered an individual who had several months earlier shot and wounded Tolden. (Tolden: Tr. 112-20). After the murder, Tolden began visiting James at his apartment two to three times a week. (Tolden: Tr. 121). Together, they and some other individuals robbed a drug dealer after disguising themselves as police officers. (Tolden: Tr. 121-23). Tolden saw James make two grenades and James taught Tolden how to make a pipe bomb. (Tolden: Tr. 125-26, 128). James' method of constructing pipe bombs involved laying gunpowder with a stem "across" the pipe. (Tolden: Tr. 129).

On April 9, 1991, Tolden and others committed an armed robbery. (Tolden: Tr. 130-31). To prepare for the robbery, James made at least eight pipe bombs and gave two each to Tolden as well as to others. (Tolden: Tr. 130). The robbery netted the group $25,000 to $30,000 and after the robbery Tolden returned a pipe bomb to James. (Tolden: Tr. 133). Later, two other members of this group were arrested: one had an unexploded pipe bomb (which was admitted at trial) (Tr. 169). The other exploded a pipe bomb during a residential burglary. The exploded fragments of this pipe-bomb were admitted at trial. (Tr. 170-7 1)

2. Post-1992 Activities

In 1993, James told Winston Phillips that he intended to provide "stuff' to one of the individuals with whom he had committed the 1991 murder. (Phillips: Tr. 190). Then, in 1994, James told Phillips that he owned a semi-automatic rifle and knew about guns. (Phillips: Tr. 181-83). James told Phillips he kept his "stuff" at his brother's house. (Phillips: Tr. 183). Later, James went with Phillips to his brother Johnny's apartment to "check on some stuff" (Phillips: Tr. 185). After the three of them went down to the basement, James went into an area of the basement by himself with a knapsack and returned carrying the same knapsack. (Phillips: Tr. 185-87).

A girlfriend of James's, Sonia Tillman, said that she saw James handling or removing weapons from his brother Johnny Davis' apartment sometime in 1994 or 1995. (Tillman: Tr. 297-99). Sometimes he took a black duffel bag with him. (Tillman: Tr. 304-05). When James needed to get into the basement of Davis' apartment building, James would obtain the key from Davis. (Tillman: Tr. 303). In July 1995, Tillman broke up with James shortly before the birth of their daughter. (Tillman: Tr. 286-87). Tillman then found two bags in her apartment, one of which contained two guns, a silencer, and two ammunition clips, and the other of which contained Islamic books, books on how to make bombs and "some sort of explosives" that were tied with wire. (Tillman: Tr. 289-91). When Tillman asked about these items, James told her "[t]he less you know the better for you." (Tillman: Tr. 293). A photograph was introduced a trial with James holding an SKS Norinco 7.62 caliber rifle, which was identified as having been taken while Tillman was pregnant with James' daughter. (Tillman: Tr. 307-09).

In 1996, a paid confidential informant pretended to be interested in buying explosives from James. (Tr. 369). In taped conversations, James agreed to supply bombs and grenades to the infcrmant and repeatedly acknowledged that he made bombs and grenades. See Supplemental Appendix,United States v. Johnny Davis, 98-1506 (2d Cir. filed January 26, 1999) ("Supplemental Appellate Appendix") (SA-9 to SA-84), at SA-13 ("I make homemade grenades"); see also id. at 12, 19-21, 47.

On February 12, 1997, the FBI executed a search warrant at Davis' apartment. An agent recovered multiple weapons as well as an operable pipe bomb and ammunition from the apartment itself. (Trahon: Tr. 33, 42-44). From the basement, they recovered a green army duffel bag in a locked room in the basement of the building that contained C-4 explosives, white plastic PVC pipe, hand grenade bodies, a military electric blasting cap, M-60 igniters, a King disposable cigarette lighter, explosive powder, two thermos containers packed with a mixture of two types of gunpowder and other weapons. (Doyle: Tr. 63-65).

After learning of the FBI's search, James fled to South Carolina. (See Phillips: Tr. 196). He told a woman he was seeing there that the bombs in Davis' apartment belonged to him. (Epps: Tr. 338-39; 341-42). James also told her that the FBI was looking for him and he was planning to leave the country. (Epps: Tr. 339). When arrested in South Carolina in April 1997, James was in possession of a King cigarette lighter — the same brand of lighter found in the duffel bag in Davis' basement. (Tr. 361).

Expert testimony was offered to show numerous similarities between the unexploded bomb recovered in the apartment and the unexploded bomb and bomb fragments that were recovered in April 1991. (Kelly: Tr. 84-86, 92-96; Heckman: Tr. 240-54). In addition, the two unexploded pipe bombs had transverse fusing, which occurs where the fuse is "injected from the side," something the expert had never before seen. (Heckman: Tr. 235, 243, 251-52).

C. Pre-Trial and Post-Trial Motions

1. Pre-Trial Motion

Prior to trial, James moved (a) to preclude the Government from introducing his brother and co-defendant Davis's statements at a joint trial, or in the alternative, to grant a severance pursuant to Fed.R.Crim.P. 14; (b) to require the Government to disclose the identities of all confidential informants; (c) to require the Government to provide a Bill of Particulars pursuant to Fed.R.Crim.P. 7(f); and (d) to compel the Government to disclose which, if any, criminal convictions or prior "bad acts" it would seek to introduce at trial. See Pre-Trial Motion, filed August 25, 1997 ("Pre-Trial Motion"), at 9-15. At a hearing on October 14, 1997, the trial court denied James's motion as to his request for severance, disclosure of the identities of the Government's informants and for a Bill of Particulars. The Court directed the Government to provide more detail about any crimes or prior bad acts that it intended to introduce during its case-in-chief. See October 14, 1997 Transcript at 8.

On August 11, 1997, James' co-defendant, Davis, moved to suppress the physical evidence seized from his apartment on the ground that the application for the search warrant obtained by the FBI was based on false information furnished by a confidential informant. Davis sought a hearing on whether the Government had either knowingly or recklessly relied on the false information of the informant in seeking the warrant. He also sought a hearing on whether he had given consent to the FBI to search his basement. See Notice of Motion, dated August 11, 1997 (describing grounds for Davis's suppression motion). James did not join in this suppression motion. In response to this motion, the Government conceded that a confidential informant had supplied the FBI with false information, which was incorporated into the search warrant. The Government maintained, however, that it had relied on the informant in good faith and that the warrant authorizing the search was valid. The Government also argued that Davis had given his consent to the search of the basement. See Pre-Trial Conference Transcript, dated October 14, 1997, at 18. The District Court ordered that a hearing be held preliminarily to determine whether a hearing was warranted under Franks v. Delaware, 438 U.S. 154 (1978), and whether Davis had consented to the search. Id. James was present at this hearing with his counsel. The Court never decided the motion, however, because Davis and the Government reached a plea agreement.

2. Motion to Dismiss the Indictment

On February 11, 1998, shortly before James' trial commenced, James' trial counsel made an oral application to dismiss the Indictment. February 11, 1998 Transcript at 2-9. Trial counsel argued dismissal was warranted because: (a) the prosecution's presentation to the grand jury improperly relied on double and triple hearsay, id. at 2; (b) there was no probable cause for the search "warrant to have been issued and the grand jury was not adequately apprised of this lack of probable causeid. at 2-3, 6-7; (c) Special Agent Trahon, a federal agent who had testified before the grand jury, had testified on matters about which he was unqualified and had also testified in an unduly inflammatory mannerid. at 8; and (d) the Government misled the grand jury into believing that any witness could be located and presented in person to the grand jury, even though the Government knew that one witness, a paid informant who had tape recorded conversations with James in 1996, could not be located. Id. at 8-9. The trial court stated that it would not rule on this motion yet and that it needed "motion papers," id. at 4, and additional time to "read the grand jury minutes and the cases [defense counsel] is citing." Id. at 9. Apparently, James's trial counsel never submitted a written motion to dismiss the Indictment. The Indictment was not dismissed and James proceeded to trial on February 17, 1998. He was convicted on all counts.

3. The Post-Trial Motion

Subsequent to trial, James obtained new appointed counsel. The new counsel moved for a judgment of acquittal on the grounds that: (a) the evidence seized from James's brother and co-defendant Davis's basement was improperly admitted at trial; (b) that prior bad act evidence was improperly admitted against James at trial and was unduly prejudicial; (c) the Government's misstatements to the trial court and to the jury in regard to criminal acts that allegedly occurred in 1991 unduly prejudiced James; and (d) that James's trial counsel was ineffective. See Post-Trial Motion for Judgment of Acquittal, filed on April 15, 1998 ("Post-Trial Motion"), at 7-32. The specific grounds for the claim that James's trial counsel had been ineffective were that counsel had inadequately objected to the admissibility of the materials seized from Davis' apartment and basement; failed to file a suppression motion until the first day of jury selection; failed to seek suppression aggressively; failed to move for a mistrial when the Government referred to 1991 as within the time frame for the jury's consideration of the first two counts of the indictment; and failed to ask for a corrective charge when the indictment and a portion of the transcript was sent to the jury. Id. at 30-31. Following sentencing, the trial court denied the Post-Trial Motion in its entirety. Transcript of Sentencing, August 19, 1998 at 28-30.

D. James' Appeal

James filed a Notice of Appeal from the Judgment of Conviction on August 25, 1998. On direct appeal, James continued to be represented by the newly appointed attorney who began representing James subsequent to trial. In support of his appeal, James made the following arguments to the Second Circuit: (1) the District Court improperly admitted extrinsic evidence of James's criminal activities in 1991; (2) there was insufficient evidence of criminal conduct within the statutory limitations period to support a conviction on Counts One and Two and such counts were also duplicitous; (3) the seizure of evidence from the co-defendant's apartment violated the Fourth Amendment; (4) trial counsel was ineffective; and (5) the District Court erred in sentencing James.See Brief for Defendant Appellant, United States v. Davis, (2d Cir. No. 98-1506 filed Nov. 23, 1998) ("Appellate Brief"), at 21-48. With respect to the ineffective assistance claim, the specific grounds raised were that (1) to the extent that trial counsel agreed that James lacked standing to challenge the search of Davis' apartment, that waiver constituted ineffective assistance of counsel; (2) counsel failed to identify James' two-year incarceration (from April 1991 until May 1993) as fatal to the Government's theory that the 1991 acts were part of a "continuing offense"; (3) counsel failed to request a clearer charge on the limits of the jury's consideration of extrinsic act evidence; (4) counsel failed to move for a mis-trial when the Government referred to 1991 as being within the operative time frame for the first two counts of the indictment; and (5) counsel failed to object to the jury charge or ask for a correction when the indictment and transcripts were sent to the jury. Id. at 41-44. see also Reply Brief for Defendant Appellant, filed November 23, 1998, in United States v. Davis, (2d Cir. No. 98-1506) ("Reply Appellate Brief'), at 20-21.

The Second Circuit rejected all of James arguments. See United States v. Davis, 181 F.3d 83 (Table), 1999 WL 316804 (2d Cir. May 14, 1999) (reproduced as Exhibit 30 to Motion to Vacate).

First, the Court ruled that the district court properly admitted extrinsic evidence of James' involvement in criminal activities in 1991 pursuant to Fed.R.Evid. 404(b) because such evidence was relevant to show the origin of the relationship between James and a cooperating witness, to demonstrate the purposes for which James manufactured explosives and to identify James as the maker of the explosives that were seized. Such evidence was also relevant to the charge that he engaged in the business of manufacturing firearms. The Court found that the district court had weighed the probative value of this information against its potential prejudicial effect and had concluded that the evidence was not unduly prejudicial. Accordingly, the Second Circuit declined to "second guess" the district court's determination. Davis, 1999 WL 316804, at *1.

Second, the Court found that there was sufficient evidence in the form of the physical evidence seized at Davis's apartment, the tape recordings of James' own statements and testimony from witnesses to sustain James's conviction on Counts One and Two of the Indictment. The Court declined to review James' duplicitous indictment claim as it was not raised prior to trial. Id. at *2.

Third, the Court held that James forfeited his claim that the evidence seized from Davis' premises should be suppressed because James failed to raise any suppression arguments with the district court. Further, the Court found that James lacked standing under the Fourth Amendment to contest the search and so his failure to raise the issue to the trial court was not the result of a lapse by his trial counsel. Id.

Fourth, the Court found that James' trial counsel was not constitutionally deficient because it found "no defect in any of the charges to the jury that James cites, or in the admission of any evidence." Id. at *3.

Lastly, the Court affirmed James' sentence because the upward adjustments that were made to his sentence did not reflect an abuse of discretion. The Court concluded by stating that it had considered all of James's other arguments and found "no error in his conviction or sentence." Id.

James filed a petition for writ of certiorari to the Supreme Court of the United States. Certiorari was denied on November 1, 1999.

E. The Instant § 2255 Motion

James' Motion to Vacate is dated October 31, 2000 and was received by the Pro Se Office in the Southern District of New York on November 6, 2000. He supplemented this motion with an additional submission on December 20, 2000. See Supplemental Motion to Original Pleading 28 U.S.C. § 2255, dated December 20, 2000 (hereinafter "Sup. Motion to Vacate No. 1"). On January 30, 2001, James submitted another supplement to his Motion to Vacate., See Supplemental Motion to Original Pleading 28 U.S.C. § 2255, dated January 30, 2001 (hereinafter "Sup. Motion to Vacate No. 2"). The Government responded with a memorandum of law on May 8, 2001, and James filed reply papers on June 2, 2001.

F. Claims Raised By James in the Motion to Vacate

James raises numerous claims in the papers submitted in support of his initial Motion to Vacate. In many instances, his 111-page motion continually restates the same arguments regarding the conduct of the trial under multiple headings. The issues, however, have been broadly grouped by James in the following categories and they fairly reflect the arguments that he makes in his motion:² Claim I: Prosecutorial Misconduct Before the Grand Jury: James makes the following claims of alleged misconduct in the grand jury: (a) the Government improperly introduced hearsay statements, Motion to Vacate at 1-6; (b) the Government improperly introduced custodial statements of James' co-defendant id. at 7-8; (c) the prosecutor failed to give a probable cause instruction with regard to constructive versus actual possession, id. at 8-9; (d) the Government improperly introduced evidence of the 1996 investigation into one particular grand jury hearing, failed to inform the Grand Jury that "no crime occurred" and failed to inform the grand jurors that the informant from the 1996 investigation was unavailable to testify, id. at 9-15; (e) the Government "suppress[ed] . . . exculpatory evidence that nigates [sic] guilt, thus demonstrating actual innocence of crimes alleged in Counts One and Two of the Indictment id. at 15-18; (f) the Government "misle[d] the Grand Jury" and "impair[ed] the Grand Jury's independence" by providing false evidence of a continuing offense, when a continuing offense was factually impossibleid. at 18-20; (g) a non-expert witness caused "calculated prejudice and increased indignation" through improper "personal and subjective" testimony, id. at 20-22; (h), (i), (j) The Government introduced the perjurious testimony of Agent Trahon through another witness, who read Agent Trahon's prior testimony, id. at 23-33; (k) The Government introduced the perjurious testimony of Epps, id. at 33-40.

2 In some instances, James uses letters to subdivide issues within a claim, sometimes numbers, and sometimes nothing at all. To ease the identification of James' claims, the Court lists the claims according to James' system wherever possible, but in other instances has added subdivisions that do not appear in James' submission.

Claim II: That James Is Actually Innocent of the Conduct Charged in Counts One and Two. On this claim, James makes the following arguments: (1) there was insufficient evidence that the crimes charged in Counts One and Two occurred within the relevant statute of limitations period, id. at 40-47; (2) it was factually impossible and unconstitutional for the offenses charged in Counts One and Two to be considered as continuing offenses id. at 47-54; and (3) James was the victim of vindictive prosecution id. at 54-61.

Claim III: Ineffective Assistance of Counsel. James alleges that his trial counsel was ineffective in the following ways: (1) trial counsel court failed to file a written application to dismiss the Indictment id. at 61-63; (2) trial counsel did not properly represent James before the grand jury, including failing to examine the grand jury minutes, failing to alert the trial court in defects in the grand jury presentation and failing to alert the trial court that certain witnesses had perjured themselves, id. at 63-74; (3) trial counsel (a) failed to move to preclude the use of the informant's taped conversations with James both because the informant was unavailable and because he was a co-conspirator under Bruton v. United States, 391 U.S. 123 (1968); (b) "obstructed [James'] right to an alibi offense" and denied James' Sixth Amendment right by failing to call witnesses in support of this defense; (c) failed to alert the trial court and the prosecution to the existence of an affidavit from James' brother and co-defendant, Johnny Davis, which "makes it clear" that James was not responsible for the contraband found at Davis's apartment and therefore supports James' "actual innocence" and "vindictive prosecution" claims; and (d) failed to seek "the professional assistance of an explosives expert." Id. at 74-83.

Claim IV. Abuse of Discretion. The trial judge abused her discretion by (a) admitting the tape recordings of James' conversation with the informant because, among other reasons, James would never have agreed to make bombs if the informant were not supplying the money; and (b) denying the defense request for a bill of particulars. Id. at 89-93.

Claim V. "Fatal Variance". The proof at trial improperly varied from the charges in the indictment because the government was not able to prove that the offenses charged in counts One and Two of the Indictment took place within the relevant statute of limitations. Id. at 93-96.

Claim VI. "Constructive Amendment of the Indictment" The Government constructively amended the Indictment because it failed to prove the actual crime or theory charged in the Indictment. Id. at 96-99.

Claim VII. Duplicitous Indictment. Counts One and Two of the Indictment were duplicitous. Id. at 99-105.

Claim VIII. Apprendi Issue. James also argues the trial court improperly sentenced James in violation of the rule set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000); id. at 105-109. In addition, he asserts the Indictment failed to include a penalty provision that would give James notice of his potential punishment. See Reply to Government's Response Pleading Pursuant to 28 U.S.C. § 2255, dated June 2, 2001 (hereinafter "Reply Mem."), at re-numbered pages "1-6" following page 24. James asked that this latter claim be examined "within the peramiters [sic] of' the Apprendi issue. Id. at 3.

G. Supplemental Motions

Following submission of the lengthy Motion to Vacate, James submitted Sup. Motion to Vacate No. 1, in which he states:

The claim herein at this instance represents that the appeal attorney appointed by the court was ineffective for failing to raise in direct appeal numerous issues as to trial attorney Mr. Howard Leader's, ineffectiveness in representation during pretrial and actual trial (all such issues and there details are embodied in the § 2255 petition). These issues includes the fact that the firm of Shanley Fisher [the new appellate counsel] had failed to raise in direct appeal all the issues of prosecutorial misconduct (grand jury and the actual trial) at issue number one in the petition pages 1 through 40(A) through (K).

Unconstitutional fatal variance issue number five, in petition at pages 93 through 96.

See Sup. Motion to Vacate No. 1 at 1-2 (errors in original text). While James points in the second sentence of the above paragraph to specific issues that are "include[d]" in his claim, his statement may be interpreted as indicating that he wishes to assert ineffective assistance of appellate counsel with respect to all the issues raised in his original Motion to Vacate.

James filed another document seeking to supplement his Motion to Vacate in which he makes "various arguments in support of his claim that there was an "unconstitutional constructive amendment of the indictment," Sup. Motion to Vacate No. 2 at 1-2, — a claim that is based on arguments raised in the original Motion to Vacate as well as the argument that the judge's charge to the jury did not precisely track language in the indictment. Id. at 3-7.

Finally, in his reply papers, James seeks an evidentiary hearing. Reply Mem. at 2-3.

II. DISCUSSION

A. Law Governing Motions under § 2255 28 U.S.C. § 2255 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 § 2255 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 ofjustice." Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (internal quotation marks and citations omitted).

1. Timeliness of James' Motion to Vacate

Except in circumstances not applicable here, a section 2255 motion must be filed within one year of "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255. The Government argues that James's Motion to Vacate is untimely, see Memorandum of Law in Opposition to Petition of Kent A. James, a/k/a "Gondalini Ali," Pursuant to 28 U.S.C. § 2255, dated May 8, 2001, at 7 n. 3, on the ground that the petition was not received by the Pro Se Office until November 6, 2000.

James's time to file a § 2255 motion expired on November 1, 2000, a year after the Supreme Court denied James' petition for writ of certiorari on November 1, 1999. James' Motion to Vacate is dated Tuesday, October 31, 2000, as is his affidavit of service stating that the Motion to Vacate was served on the United States Attorney for the Southern District. It was stamped "received" by the Pro Se Office on Monday, November 6, 2000, and was filed on November 20, 2000. If the petition was presented for mailing to prison authorities on October 31, 2001, or even on November 1, 2001, it is timely under Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001), cert. denied, 122 S.Ct. 147 (2001). The fact that it was received by the Pro Se Office from James' prison facility in South Carolina three business days after the last day for filing suggests that the petition must have been presented timely to prison officials for mailing. The Government has presented no evidence suggesting otherwise, even though they obviously have access to any mail log at the federal correctional institution where James was held. Accordingly, the Court assumes that the petition is timely. See, e.g., Johnson v. Coombe, 156 F. Supp.2d 273, 277 (S.D.N.Y. 2001) (court will generally assume, absent evidence to the contrary, that petitioner gave his petition to prison officials for mailing on the date he sigued the petition).

2. Relationship Between a Section 2255 Motion and a Direct Appeal

A § 2255 motion may not be used as a substitute for a direct appeal. Bousley v. United States, 523 U.S. 614, 621 (1998) ("Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.") (citations and internal quotation marks omitted); accord United States v. Frady, 456 U.S. 152, 165 (1982). Where a movant does not bring a claim on direct appeal that could have been raised on such an appeal, the movant is barred from raising that claim in a subsequent section 2255 proceeding unless he or she can establish both cause for the failure and actual prejudice resulting therefrom. See, e.g., Amiel v. United States, 209 F.3d 195, 198 (2d Cir. 2000) (citing Billy-Eko v. United States, 8 F.3d 111, 113-14 (2d Cir. 1993)); United States v. Canady, 126 F.3d 352, 359 (2d Cir. 1997) (citing Reed v. Farley, 512 U.S. 339, 345 (1994)),cert. denied, 522 U.S. 1134 (1998); Campino v. United States, 968 F.2d 187, 189 (2d Cir. 1992). The term "cause" means "something external to the petitioner, something that cannot be fairly attributed to him." Coleman v. Thompson, 501 U.S. 722, 753 (1991).

Under § 2255, not only are movants barred from raising arguments that could have been made on direct appeal, they are also precluded from using section 2255 to relitigate questions that actually were "raised and considered on direct appeal." Riascos-Prado v. United States, 66 F.3d 30, 33 (2d Cir. 1995) (citation omitted). The only exception to this rule arises where there has been an intervening change in the law. See, e.g.,Underwood v. United States, 15 F.3d 16, 18 (2d Cir. 1993).

Here, all of James claims could have been raised on appeal, with the exception of Claim VIII, which argues that there has been a change in the law under Apprendi and which is discussed in section II.D below. Indeed, some of these claims were actually raised on appeal. See section I.D above. As a result, none of James' claims (other than the Apprendi claim) is eligible for review absent a showing of cause, prejudice or actual innocence.

B. James' Claims of Ineffective Assistance of Trial Counsel

Where a ground raised in a section 2255 motion is based on ineffective assistance of trial counsel, the rule requiring the ground to have been raised on appeal does not apply because the ineffective assistance of counsel itself provides the "cause" for the failure to appeal the issue.See, e.g., Bloomer v. United States, 162 F.3d 187, 192 (2d Cir. 1998);Riascos-Prado, 66 F.3d 30 at 34-35 (citing Billy-Eko, 8 F.3d at 115). The theory behind this rule is that an attorney may not be inclined to argue his or her own ineffectiveness on appeal, that the attorney may find it difficult to identify examples of his or her own ineffectiveness, and that resolution of such claims typically involves consideration of matters outside the record on appeal. See, e.g., Billy-Eko, 8 F.3d 111 at 114. Where these grounds do not apply, however, a defendant is obligated to raise ineffective assistance of counsel claims on direct appeal. Id. at 115. Thus, the Second Circuit has held that where there is new appellate counsel on direct appeal and the ineffective assistance claim is based solely on the record at trial, section 2255 relief is unavailableId. accord Bloomer, 162 F.3d at 192.

In James' case, all of his claims regarding ineffective assistance of trial counsel are based on the record that existed before the trial court. No new facts have been submitted with his petition. James also had new counsel on his appeal. For these reasons, the fact that there are ineffective assistance of trial counsel claims does not provide "cause" for failure to raise these claims on direct review of his conviction. Thus, none of his claims regarding the ineffective assistance of trial counsel are reviewable by this Court.

C. James' Claims of Ineffective Assistance of Appellate Counsel

In the supplemental petition, however, James asserts that "the appeal attorney appointed by the court was ineffective for failing to raise in direct appeal numerous issues as to trial attorney Mr. Howard Leader's, ineffectiveness in representation during pretrial and actual trial (all such issues and there details are embodied in the § 2255 petition)." Sup. Mot. to Vacate No. 1 at 1 (errors in original). James subsequently states that these issues "include" all issues identified in Claim I (none of which were articulated as ineffective assistance claims) and Claim V. Id. at 1-2. Because James makes reference to "all such issues . . . in the § 2255 petition," his petition may be broadly construed to argue that appellate counsel was ineffective for failing to raise all of the claims James lists in his Motion to Vacate (presumably not including those that were actually raised). See generally Haines v. Kerner, 404 U.S. 519 (1972). Included among the claims that appellate counsel should have raised are James' complaints about his trial counsel's effectiveness. See Claim III, Motion to Vacate at 61-83.

The Second Circuit has described the law governing claims of ineffective assistance of appellate counsel as follows:

To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must establish two elements: (1) that counsel's performance "fell below an objective standard of reasonableness," Strickland [v. Washington], 466 U.S. 688, 688, 104 S.Ct. 2052 [(1984)], and (2) that there is a reasonable probability" that, but for the deficiency, the outcome of the proceeding would have been different id. at 694, 104 S.Ct. 2052. The same standard applies to a review of the effectiveness of appellate counsel. See, e.g., Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 513 U.S. 820, 115 S.Ct. 81, 130 L.Ed.2d 35 (1994). As to the reasonableness of counsel's performance, it does not suffice "for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument." Mayo v. Henderson, 13 F.3d at 533. "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." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Actions or omissions by counsel that" "might be considered sound trial strategy"' do not constitute ineffective assistance, Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)), and a court "may not use hindsight to second-guess" counsel's tactical choices, Mayo v. Henderson, 13 F.3d at 533, see Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). A petitioner may rebut the suggestion that the challenged conduct reflected merely a strategic choice, however, by showing that counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d at 533.

McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999); see also Chacko v. United States, 2000 WL 1808662, at *4 (S.D.N.Y. Dec. 11, 2000) ("If the [§ 2255] petitioner establishes the strength of one of his otherwise procedurally barred claims, then the failure of appellate counsel to raise the claim on appeal may be a basis for an ineffective assistance of appellate counsel claim").

The Seventh Circuit has noted that:

appellate counsel need not raise all possible claims of error. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). One of the principal functions of appellate counsel is winnowing the potential claims so that the court may focus on those with the best prospects. Defendants need dedicated, skillful appellate counsel, not routimeers who present every non-frivolous claim.

Page v. United States, 884 F.2d 300, 302 (7th Cir. 1989); see Stokes v. U.S., 2001 WL 29947, at *4 (S.D.N.Y., Jan. 9, 2001) ("The mere fact that [appellate counsel] was unsuccessful on appeal and did not raise every claim urged by the petitioner does not constitute ineffective assistance of counsel."); Villegas v. United States, 1997 WL 35510, at *3 (S.D.N.Y. January 30, 1997) (even "negligence or error in failing to raise [a] claim are not sufficient" to establish cause).

In the specific context of an appellate counsel who is being reviewed for ineffectiveness in failing to raise the ineffectiveness of trial counsel, the Seventh Circuit has noted that it is not enough for the habeas court to determine that trial counsel has been ineffective. Instead, the Court must decide "whether trial counsel was so obviously inadequate that appellate counsel had to present that question to render adequate assistance." 884 F.2d at 302 (emphasis in original).

James has made no substantive argument whatsoever regarding the manner in which his appellate counsel was ineffective. He does not even discuss the appellate brief in this matter, let alone alert this Court to the manner in which this brief either failed to raise appropriate issues, or failed to argue them appropriately.

Nonetheless, because of the Court's obligation to liberally construe the petition, Haines v. Kerner, 404 U.S. at 520-21, the Court will review each of James' claims to determine whether there is any basis for concluding that his appellate counsel was ineffective in failing to raise them. James' claims are discussed in the order listed in James' petition, see section I.F above, with the exception of his "actual innocence" claim, discussed in section II.E below.

1. Claim I (grand jury claims).

James cannot meet the burden required to demonstrate that he received ineffective assistance of appellate counsel with respect to any of the issues listed in "Claim I" because the issues themselves are meritless.See, e.g., United States v. Cook, 45 F.3d 388, 392-93 (10th Cir. 1995) ("When a defendant alleges his appellate counsel rendered ineffective assistance by failing to raise an issue on appeal, we examine the merits of the omitted issue. . . . If the omitted issue is without merit, counsel's failure to raise it 'does not constitute constitutionally ineffective assistance of counsel.'") (quoting United States v. Dixon, 1 F.3d 1080, 1084 n. 5 (10th Cir. 1993)).

It is well established that a guilty verdict at trial remedies any defects or errors in the grand jury indictment. United States v. Mechanik, 475 U.S. 66, 72-73 (1986) ("[A] petit jury's verdict of guilty beyond a reasonable doubt demonstrates a fortiori that there was probable cause to charge the defendant with the offense" and therefore "any error in the grand jury proceeding . . . was harmless beyond a reasonable doubt"); accord United States v. Eltayib, 88 F.3d 157, 173 (2d Cir.),cert. denied, 519 U.S. 1045 (1996); United States v. Ruggiero, 934 F.2d 440, 448 (2d Cir. 1991). Moreover, a court generally may not dismiss an indictment for errors in the grand jury unless the errors actually prejudiced the defendant. Bank of Nova Scotia v. United States, 487 U.S. 250, 257 (1988) (dismissal of indictment appropriate only where "the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair"). Prejudice exists where an error or defect in the grand jury proceeding "substantially influenced the grand jury's decision to indict, or . . . there is grave doubt that the decision to indict was free from the substantial influence of such violations" Id. at 256 (citation and internal quotation marks omitted).

Further, the dismissal of an indictment is warranted only in exceptional circumstances. United States v. Brown, 602 F.2d 1073, 1077 (2d Cir.) ("We have approved th[e] extreme sanction [of dismissal of the indictment] only when the pattern of [prosecutorial] misconduct is widespread or continuous."), cert. denied, 444 U.S. 952 (1979). Generally, extreme acts of prosecutorial misconduct must be demonstrated before an indictment will be dismissed. United States v. Williams, 504 U.S. 36, 46-47 (1992) (the supervisory power of the court can be used to dismiss an indictment because of misconduct before the grand jury where the misconduct amounts to a violation of one of those "few, clear rules which were carefully drafted and approved by [the Supreme Court] and by Congress to ensure the integrity of the grand jury's functions") (citations omitted). The remedy of dismissal has been applied only in extreme situations. See, e.g., United States v. Hogan, 712 F.2d 757, 761-62 (2d Cir. 1983) (indictment dismissed where the prosecutor's "flagrant and unconscionable" acts included the extensive presentation to the grand jury of false and misleading testimony, misleading and speculative hearsay, speculative and unsupported allegations of other criminal conduct and statements by the prosecutor that defendant was a "real hoodlum" who should be indicted); United States v. Vetere, 663 F. Supp. 381, 386-87 (S.D.N.Y. 1987) (indictment dismissed where prosecutor made extensive use of false and misleading evidence before the grand jury regarding defendant's alleged criminal background); cf., United States v. Feola, 651 F. Supp. 1068, 1131 (S.D.N Y 1987) (noting that Hogan should be limited to its "highly unusual facts" and should not be applied to cases where the prosecutor's alleged misconduct fell far short of the "flagrant and unconscionable" misconduct complained of inHogan), aff'd, 875 F.2d 857 (2d Cir. 1989).

Nothing in James' litany of complaints about the grand jury process rises to the sort of egregious conduct that justifies dismissal of the indictment. For example, the alleged use of hearsay certainly does not justify dismissal as it is permissible to present hearsay evidence to a grand jury. See Ruggiero, 934 F.2d at 447; accord Costello v. United States, 350 U.S. 359, 363 (1952). James' claim that the prosecution failed to give the grand jury a proper probable cause instruction is meritless under Mechanik, 475 U.S. 66 at 67, 70 (1986), because James was convicted at trial.

James' claim regarding the alleged improper admission of evidence before the grand jury concerning his tape recorded conversations with a paid informant in 1996 was meritless as this is proper evidence to present to a grand jury regardless of the informant's availability. See Fed R. Evid. 801(d)(2)(A). James' claim that the prosecution suppressed exculpatory evidence before the grand jury that he had been incarcerated during 1991 is meritless both because the prosecution is not required to present exculpatory evidence to the grand jury, United States v. Williams, 504 U.S. 36, 51-52 (1992), and because James' incarceration did not prevent him from having committed the offenses over the much longer time period charged in the indictment. See also infra footnote 3.

James claims that federal agents and other witnesses committed perjury before the grand jury. While James repeatedly alleges that an agent stated that there were two pipe bombs found during the February 1997 search, instead of the one he testified to at trial, see Motion to Vacate at 24, 26-27, that is hardly the sort of mistaken testimony that would provide a basis for dismissing the indictment given the other overwhelming evidence of James'guilt in this matter. Merely because witness testimony before the grand jury was inaccurate, or misleading, is insufficient to rise to the level necessary to warrant the dismissal of an indictment.See Bank of Nova Scotia, 487 U.S. at 260-61 ("To the extent that a challenge is made to the accuracy of [grand jury evidence], the mere fact that the evidence is unreliable is not sufficient to require a dismissal of the indictment."); see also United States v. Rodriguez, 1996 WL 479441, at *2 (S.D.N.Y. Aug. 22, 1996) (inaccurate and misleading grand jury testimony, absent actual evidence of perjury, not sufficient to dismiss indictment especially where a guilty verdict ultimately results). The other claims regarding instances of allegedly false testimony or instructions to the grand jury simply do not rise to the extreme level that would justify dismissal of the indictment given the other evidence in the case and James' conviction.

Of course, the issue in this section 2255 motion is not whether arguments could have been made to dismiss the indictment but whether James's appellate counsel's decision not to include such claims on James's direct appeal was "unreasonable" under the "prevailing norms of practice" as required by Strickland, 466 U.S. at 688. Because these claims could not be considered a "significant and obvious issue[s]," id., such that their omission from James's direct appeal demonstrates "constitutionally inadequate performance," Mayo, 13 F.3d at 533, James has not made out a claim of ineffective assistance of appellate counsel with respect to the arguments listed in his Claim I.

2. Claim III (Ineffectiveness Assistance of Trial Counsel)

James makes a number of specific allegations regarding the alleged ineffectiveness of his trial counsel. In each instance, the conduct of trial counsel was either adequate or not "so obviously inadequate that appellate counsel had to present that question to render adequate assistance." Page, 884 F.2d at 302 (emphasis omitted).

a. Ineffectiveness of trial counsel in making the oral pre-trial motion for dismissal of the indictment. James faults his attorney for not raising his grounds for dismissing the indictment in a written motion, as directed by the trial court. Motion to Vacate at 61-63. These grounds, however, were so weak that appellate counsel cannot be deemed inadequate for deciding not to raise on appeal trial counsel's failure to file a written motion as to these grounds.

The four grounds raised were that: (a) the prosecution's presentation to the grand jury improperly relied on double and triple hearsay; (b) there was no probable cause for the search warrant to have been issued and the grand jury was not adequately apprised of this lack of probable cause; (c) Special Agent Trahon, a federal agent who had testified before the grand jury, had testified on matters about which he was unqualified and had also testified in an unduly inflammatory manner; and (d) that the Government misled the grand jury into believing that any witness could be located and presented in person to the grand jury, even though the Government knew that one witness, a paid informant who had tape recorded conversations with James in 1996, could not be located. February 11, 1998 Transcript at 2-9.

As already noted, a defendant seeking a dismissal of an indictment for matters occurring before a grand jury is faced with an extremely high bar. Brown, 602 F.2d at 1077. None of the grounds raised by James, separately or collectively, could possibly have resulted in dismissal of the indictment. As previously discussed, hearsay is permissible in a grand jury presentation. Ruggiero, 934 F.2d at 447. Any lack of probable cause for the search warrant would have been properly addressed on a motion to suppress (assuming James had standing to do so), not a motion to dismiss the indictment. The alleged inflammatory comments of Agent Trahon — in telling the grand jury that certain bomb materials brought into the grand jury room could kill the jurors if exploded — was sufficiently inconsequential that it could not possibly call into question the validity of the indictment. The Government's usual statement to the grand jurors that it could obtain witnesses they required did not make the indictment invalid merely because one particular witness — the informant — was not available. That informant did not even testify at trial and, as noted further infra section II.C.3, his testimony was not necessary for the admission of the transcripts.

James also argues that trial counsel should have informed the trial court of his incarceration on the ground that he could not have committed the crimes alleged during the period alleged. Motion to Vacate at 67. This claim, however, was specifically raised by his appellate attorney, both on the merits, Appellate Brief at 32-35; Reply Appellate Brief at 1-13 and as an ineffective assistance of counsel claim, Appellate Brief at 43. The argument was rejected on the merits by the Second Circuit.Davis, 1999 WL3 16804, at *2. Accordingly, it cannot be re-argued again in the section 2255 motion. Riascos-Prado, 66 F.3d at 33.³

3 While this Court thus is precluded from re-visiting the issue, it bears noting that James' incarceration by itself did not prevent him from being found guilty of the offenses in the indictment. With respect to Count Two (charging James with unlawfully manufacturing firearms), there is nothing in the statute, 18 U.S.C. § 922 (a)(1)(A), that requires the offense of illegally engaging in the manufacture of firearms without a license to have been occurring on each day throughout the period charged in the indictment. The evidence at trial supported the determination that James entered into a single enterprise of manufacturing weapons, even if it was interrupted during his incarceration. Informing the trial court of his incarceration — as James suggests should have happened — would have been pointless as the Government presented no evidence that James was actively manufacturing weapons during this period. In any event, the jury was in fact informed of James' incarceration to a limited degree because James himself testified that in 1991 and in 1992 he was incarcerated at Rikers Island. Tr. 573, 577.
With respect to Count One — that James had illegally manufactured weapons — it was sufficient to meet the elements of this crime see 26 U.S.C. § 5822, 586 1(f), to show that James had engaged in the illegal act of making a weapon. The trial judge specifically instructed the jury that in order to convict on this count they had to find that James had "made a firearm." Tr. 761, 762, 763, 765. Thus, James' incarceration was irrelevant to proving this offense.
Because these claims are without merit, James's appellate counsel's decision not to raise them in the appeal brief was obviously not "unreasonable" under the "prevailing norms of practice," Strickland, 466 U.S. at 688. Put differently, these claims are not such "significant and obvious issues," that their omission from James's appellate brief demonstrates "constitutionally inadequate performance." Mayo, 13 F.3d at 533.

b. Ineffectiveness of trial counsel with regard to prosecutorial misconduct in the grand jury. James argues that his trial counsel was ineffective with respect to alerting the trial court to errors in the presentation of the case to the grand jury. Motion to Vacate at 63-74. These claims are meritless for the reasons discussed supra in Section II.C.1. Thus, his appellate counsel was not ineffective for failing to include them in his appellate brief.

c. Ineffectiveness of trial counsel in failing to move to preclude use of the informant's taped conversations. James argues that his trial counsel should have moved to preclude the prosecution's use of the 1996 tape recordings made by informant Anthony Pagan. Motion to Vacate at 74-77. This argument is apparently based on James' mistaken view that statements made by Pagan in the tapes were being offered for their truth as evidence against James. The tapes of their conversations, however, were offered solely to show James' conduct — specifically, his statement on the tape that "I make homemade grenades," (Supplemental Appellate Appendix 13) and that his grenade would "crush the brain right through the eardrums." (Id. 20-21). Such statements of a defendant are plainly admissible under Fed.R.Evid. 801(d)(2)(A). Thus, appellate counsel properly chose not argue to the Court of Appeals that trial counsel was ineffective for failing to raise this argument.

d. Trial counsel should have presented additional witnesses. James argues that his trial counsel should have called three witnesses in support of his "alibi" defense. Motion to Vacate at 78-80. Specifically, James argues that his trial attorney should have subpoenaed his brother Davis, and agents Scott and Trahon, and that he informed his trial attorney that he wanted them called as witnesses.

James suggests the agents should have testified only so that he could show that statements they made before the grand jury, or written statements they made regarding a custodial interview with his brother Davis, were not accurate. Motion to Vacate at 79-80. Such evidence, however, would have been irrelevant at trial, particularly since these three witnesses were not even called by the Govemment in their direct case. There is obviously no need to impeach a witness who is not called to testify.

With respect to his brother's testimony, James offers an affidavit from his brother, signed several months after the execution of the search warrant, in which Davis states that James did not have control over any part of the premises where the seized materials were found. See Motion to Vacate, Exhibit 28. Davis, however, pled guilty prior to trial and thus it is not unreasonable to expect that his credibility would be subject to attack were he to have taken the stand. Moreover, as James' brother, he would obviously have been subject to significant impeachment on account of bias.

James does not specify what conversations he had with his trial counsel regarding the decision to call Davis, except to say that he "wanted" to call Davis and trial counsel informed James that "he did not feel Davis would make a good witness [but] he agreed he will have the judge subpoena him." Motion to Vacate at 79. James provides no information as to what discussion took place between him and his counsel following the prosecution's case when the time came to decide whether to call Davis. More pertimently, James discloses nothing about what information he gave to his appellate counsel regarding this claim. There is thus no basis for concluding that appellate counsel's decision to omit this claim from his arguments regarding ineffective assistance of trial counsel represents the omission of a "significant and obvious issue[.]" Mayo v. Henderson, 13 F.3d at 533.

In any event, it is well established that "the decision not to call a particular witness is typically a question of trial strategy that appellate courts are ill-suited to second guess." United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998), cert. denied, 526 U.S. 1164 (1999). Generally, the decision "whether to call specific witnesses — even ones that might offer exculpatory evidence — is ordinarily not viewed as a lapse in professional representation." United States v. Schmidt, 105 F.3d 82, 90 (2d Cir.), cert denied, 522 U.S. 846 (1997); see also Trapnell v. United States, 735 F.2d 149, 155 (2d Cir. 1983) (decisions by petitioner's counsel concerning which witnesses to call at trial were "matters of trial strategy" and could not form "the basis for a finding of ineffective assistance."); Samper v. Greiner, 2002 WL 334466, at *9 (S.D.N.Y. March 1, 2002) (decision not to call alleged alibi witnesses was "entirely tactical and ultimately reasonable" where the witnesses in question had an "extremely close relationship" to petitioner and there were "differing interpretations of the credibility and usefulness" of the witnesses' testimony.) The decision by James's trial counsel not to call Davis as a witness was supported by the fact that Davis was James's brother and would be subject to impeachment due to bias and that James's trial counsel "did not feel that Davis would make a good witness." Motion to Vacate at 79. Accordingly, James's trial counsel's decision not to call Davis as a witness was a matter of trial strategy that cannot form the basis of an ineffective assistance of counsel claim. See Luciano, 158 F.3d at 660.

Finally, there was ample testimony to convict James that did not depend on any information available to Davis, including the testimony of Phillips that James was able to obtain a key to go into the basement at Davis' residence; the testimony of James' girlfriend Tillman that he kept weapons at her apartment; the testimony of Tillman that she saw James handling or removing weapons from Davis' apartment; the photograph of James holding an SKS Norinco 7.62 caliber rifle; and the testimony of the informant with whom James discussed his bomb- and grenade-making activities in 1996. Thus, given this testimony, appellate counsel could reasonably have concluded that — regardless of whether trial counsel had been "unreasonable" in failing to call Davis under theStrickland test — there was no basis for arguing that James had been "prejudiced" by this failure. Strickland, 466 U.S. at 688. Thus, appellate counsel's decision not to raise this issue in the appeal cannot be said to have fallen below an objective standard of reasonableness under Strickland.

e. Trial counsel was ineffective in not obtaining expert testimony. James argues that trial counsel should have sought "the professional assistance of an explosives expert." Motion to Vacate at 81-83. The decision whether to call an expert witness at trial generally falls within the realm of strategic choices that should not be second-guessed by a court on review. See United States v. Kirsch, 54 F.3d 1062, 1072 (2d Cir.) (trial counsel's decision not to call fingerprint expert "was plainly a tactical decision and hardly bespeaks professional incompetence"), cert. denied, 516 U.S. 927 (1995). Despite his claim that his trial counsel was ineffective for failing to retain an expert, James provides no reason to believe that an explosives expert hired by the defense would have offered any exculpatory testimony or indeed any testimony that differed from the Government expert. Indeed, the only specific complaint James makes is that because the Government's expert could not testify that the 1991 bomb and the 1997 bomb were "made by one and the same person " id. at 82, the trial attorney should have obtained an expert who could have "pointed out" that the Government expert's conclusion should not be "stretch[ed]." Id. However, in his summation to the jury, James's defense counsel did in fact emphasize that the Government's expert "concluded that there wasn't sufficient similarity between these items [the bomb recovered in 1991 and the bomb recovered in 1997] that he was given for him to conclude that these were actually manufactured by the same person. He couldn't do that. Lack of evidence. Not guilty." Tr. at 722. Further, James's trial counsel also demonstrated in his summation that although the expert had testified as to the similar materials used in both the 1991 and 1997 bombs, such materials were so common, and pipe bombs so prevalent, that such similarities were far from conclusive evidence that the two bombs had been manufactured by the same person. Id. In sum, James is unable to articulate any argument which would allow this court to second guess his trial counsel's decision not to retain an expert. Accordingly, James provides no grounds for concluding that this was a "significant and obvious" issue such that appellate counsel's decision to omit it from his appellate brief represents ineffective assistance of appellate counsel.⁴

4 James also argues, for the first time in his Reply Mem. at 16, that his trial counsel's failure to obtain an expert witness prevented his from making a pre-trial motion for a Daubert hearing. Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), a trial court must act as a "gatekeeper" to screen expert testimony to ensure that it is reliable. Such a screening may include consideration of whether the expert's theory has been tested and subjected to peer review and publication and the theory's degree of general acceptance and trustworthiness. See Daubert, 509 U.S. at 590-594. James makes no showing as to how the Government's expert testimony did not comport with the criteria established in Daubert. Nor does he explain how retaining his own expert would have necessitated a hearing and why the result of this hearing would have been the exclusion of testimony of any Government witnesses. Accordingly, James' contention in this regard is also meritless and appellate counsel cannot be faulted for not having raised it.

3. Claim IV: "Abuse of Discretion" Claim

James identifies two claims as involving an "abuse of discretion" by the trial judge.

First, James asserts that the trial court erroneously admitted the tape-recorded conversations made with the informant in 1996. Motion to Vacate at 83-89. James's main complaint seems to be that because he never actually made the bombs that he promised to make in the conversation with the informant, the conversations were not relevant to the charges against him. This assertion is frivolous. The conversation regarding the offer to make bombs was properly admitted under Fed.R.Evid. 801(d)(2)(A), see supra section II.C(2)(c), as directly relevant to the charge that James engaged in the business of making or manufacturing firearms, and it was therefore plainly admissible against James to show his bombmaking activities in 1996. To the extent that the conversation turned to the use of bombs (for example, James' statement to the informant that they bombs can be used to "kill human beings" because the "sound and percussion will . . . crush the brain"), Supplemental Appellate Appendix at 21, it was appropriately admitted to give a complete record of the conversation with the informant and because it showed James' motive. James' separate argument that the informant himself had to be called is also frivolous under Fed.R.Evid. 901(a), which has no specific requirement of what testimony must be used to establish that an item of evidence is in fact what it purports to be. See, e.g., United States v. Barone, 913 F.2d 46, 49 (2d Cir. 1990) (a recorded conversation may be authenticated by the technician who made the recording). Accordingly, appellate counsel properly did not complain in the appeal brief regarding the admission of the conversation with the informant.

Next, James asserts that the trial court abused its discretion when it denied his motion for a Bill of Particulars pursuant to Fed.R.Crim.P. 7. See Motion to Vacate at 89-93. This issue was raised by trial counsel in a written brief see Pre-Trial Motion at 12-13, and was denied at a hearing held on October 14, 1997, prior to the start of James's trial.See Transcript of October 14, 1997, at 8-9.

The trial court did not abuse its discretion in denying James' motion for a bill of particulars. The decision whether to grant a motion for a bill of particulars rests within the sound discretion of the trial court. See, e.g., United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999). "In exercising that discretion, the court must examine the totality of the information available to the defendant — through the indictment, affirmations, and general pre-trial discovery — and determine whether, in light of the charges that the defendant is required to answer, the filing of a bill of particulars is warranted." United States v. Bin Laden, 92 F. Supp.2d 225, 233 (S.D.N Y 2000). The Second Circuit has "consistently sustained indictments which track the language of a statute and, in addition, do little more than state time and place in approximate terms." United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir. 1973), cert. denied, 415 U.S. 985 (1974). "Generally if the information sought by defendant is provided in the indictment or in some acceptable alternate form, no bill of particulars in required." United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). The prosecution is not required to particularize all of its evidence, as long as it provides the defendant with adequate information concerning the charges against him. United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988). Thus a "'bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused.'" United States v. Torres, 901 F.2d 205, 234 (2d Cir.) (quoting United States v. Feola, 651 F. Supp. 1068, 1132 (S.D.N.Y. 1987), cert. denied, 498 U.S. 906 (1990).

James has not demonstrated that the trial court abused its discretion by denying his motion for a bill of particulars because he has not shown that the charges contained in the indictment were so general that he was not apprised of the specific acts of which he was accused. See Torres, 901 F.2d 205 at 234. Rather, he seems to argue that the prosecution did not adequately reveal the means by which they intended to prove when, where, and how the specific charges were committed, particularly in light of James's period of incarceration during 1991. See Motion to Vacate at 90-91. The Government, however, is not required to disclose to the defendant the manner in which it will attempt to prove the charges see United States v. Wilson, 565 F. Supp. 1416, 1438-39 (S.D.N.Y. 1983), or the means by which the crimes charged were committed, see United States v. Andrews, 381 F.2d 377, 378 (2d Cir. 1967) (per curiam), cert. denied, 390 U.S. 960 (1968). Rather, the purpose of the bill of particulars is to adequately inform the defendant of the charges against him. See Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). Here, the indictment provided James with sufficient information to allow him to prepare a defense. Because of the lack of merit of this argument, James's appellate counsel reasonably omitted it from his appellate brief.

4. Claim V: "Unconstitutional Fatal Variance"

James argues that there was a "fatal variance" in the proof offered at trial and the charges in the indictment. See Motion to Vacate at 93-96. The gravamen of James's argument is that the government was unable to prove that the offenses charged in Counts One and Two took place during the relevant statute of limitations period, thus causing a "fatal variance as they have failed to prove the case as charged by the grand jury." Id. at 95. James' "fatal variance" claim, however, is indistinguishable from his claim concerning the insufficiency of evidence as to counts One and Two of the Indictment. This matter was actually raised by his appellate counsel, see Appellate Brief at 32-35; Reply Appellate Brief at 1-13, and thus appellate counsel could not have been ineffective in failing to raise it. See, e.g., Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993) ("any claim raised on direct appeal from conviction is precluded from [§ 2255] consideration.").⁵

5 While not relevant to his habeas claim, it bears noting that the Second Circuit rejected James' claim. It found that "[t]he evidence presented at trial, notably the explosives and other materials retrieved from his brother's apartment in 1997, the recordings of James' own statements in 1996, and testimony of James' girlfriend Sonia Tillman as to his activities in 1995 and 1996 amply support conviction on both counts." Davis, 1999 WL 316804, at *2.

James also argues in his Reply Mem., apparently for the first time, that "by the judge instructing the jury that they may find the defendant for the charge act up to the date of the superseding indictment that being September 8, 1997, while the date charged by the grand jury is February 12, 1997 . . . the judge quite literally added more than six months to the indictment." Reply Mem. at 22 (citing United States v. Tran, 234 F.3d 798 (2d. Cir 2000), overruled on other grounds, 274 F.3d 655 (2001).). The trial judge, however, charged that the jury could only consider criminal conduct that occurred after September 8 1992 (to comply with the five-year statute of limitations), see Tr. 759; it did not charge that the jury could consider conduct after February 12, 1997. Thus, no additional period was added to the indictment. Tran holds only that a district court is precluded from trying, accepting a guilty plea from, convicting or sentencing a defendant for a crime that is not charged in the indictment. Tran, 234 U.S. at 809. James was convicted of all Five Counts contained in the Indictment and the charge was consistent with the dates stated therein.

5. Claim VI: "Unconstitutional Constructive Amendment of the Indictment".

James' claim concerning the alleged "constructive amendment" of the Indictment is not subject to review by this Court. In his Motion to Vacate, James argues that "the government had constructively amended the indictment as they have failed to prove the actual crime, or actual theory charged in the indictment." See Motion to Vacate at 96-99. Appellate counsel raised an analogous argument, however, when he argued that there was insufficient evidence that the crimes charged in Counts One and Two occurred during the relevant limitations period. See James' Appellate Brief at 32-25; Appellate Reply Brief at 1-16. James is barred from relitigating this issue in his Motion to Vacate. See Riascos-Prado, 66 F.3d at 33; Douglas v. United States, 13 F.3d at 46.

James makes the additional argument that the Government never proved that he acted "wilfully." Motion to Vacate at 98. Once again, this argument seems grounded on James' repeated contention that he could not have committed the crimes charged in Counts One and Two because he was incarcerated for a portion of this period. Id. at 98-99. As already noted, however, this matter was raised by appellate counsel and thus cannot be relitigated here. See section II.C.2.a above.

6. Claim VII: Duplicitous Indictment

James's claim that Counts One and Two of the Indictment are duplicitous, Motion to Vacate at 99-105, an argument that he concedes was raised by his appellate counsel, Motion to Vacate at 101; see also Appellate Brief at 34-35 (arguing that Counts One and Two of the Indictment are duplicitous). The Second Circuit rejected James's duplicitous indictment claim on the ground that it was not raised prior to trial pursuant to Fed.R.Crim.P. 12(b). Davis, 1999 WL 316804, at *2. James now argues that the Second Circuit incorrectly ruled that the matter had not been raised prior to trial because his trial counsel raised the issue in a letter to the Court on January 24, 1998. See Motion to Vacate, Ex. 30, at p. 6. Regardless of whether the Second Circuit properly ruled on this point, the fact remains that it was raised by his appellate counsel and thus he cannot be faulted for having given James ineffective assistance by failing to raise it.

As to the merits, James' motion seems not to focus on any duplicity but rather to reiterate his previously-made arguments that his activities in 1991 bore no relation to the time period within the statue of limitations (after September 8, 1992). Motion to Vacate at 102-103. The argument regarding the relevance of his activities in 1991, however, was explicitly raised by appellate counsel in a different context: that of its admissibility under Fed R. Civ. P. 404(b). Appellate Brief at 21-32. It was also explicitly addressed by the Second Circuit in its decision holding that such evidence was relevant to the crime charged and that its relevance outweighed any prejudice to James. Davis, 1999 WL 316804, at *1. Thus, this issue too cannot be relitigated in a section 2255 motion.

D. Claim under Apprendi v. New Jersey

James also argues that his sentence violates the rule set forth inApprendi v. New Jersey, 530 U.S. 466 (2000), which mandates that "any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Id. at 476 (citation omitted); see Motion to Vacate at 105-109. James claims that the trial court violated the due process right articulated in Apprendi when it applied sentence enhancements without regard to the statutory maximum sentences for James crimes. Motion to Vacate at 105-109. James also claims that the factual findings made by the trial court during sentencing were not authorized by the jury's guilty verdict and therefore also violated the Apprendi rule.Id. Assuming without deciding that James' Apprendi claim is cognizable on § 2255 review,⁶ James' Apprendi claim has no merit. Apprendi does not apply in a case where the defendant has been sentenced to the statutory maximum or less. United States v. White, 240 F.3d 127, 134-35 (2d Cir. 2001). In other words, if the trial court sentences a defendant at or below the statutory maximum on each count for which he or she was convicted, the Apprendi rule is not triggered, even where each count is to run consecutively rather than concurrently. Id. see also Apprendi, 530 U.S. at 481 ("nothing . . . suggests that it is impermissible for judges to exercise discretion . . . in imposing a judgment within the range prescribed by statute.") (emphasis in original). Nor does the fact that a sentence was enhanced pursuant to federal Sentencing Guidelines triggerApprendi as long as the ultimate sentence for each count is not above the statutory maximum. United States v. McLeod, 251 F.3d 78, 82 (2d Cir. 2001) ("Apprendi is inapplicable to Guidelines calculations that do not result in a sentence on a single count above the statutory maximum for that count."), cert. denied, 122 S.Ct. 304 (2001).

6 James was convicted and his direct appeal was decided a year prior to the Apprendi ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000). Following Teague v. Lane, 489 U.S. 288, 307 (1989), the Second Circuit has held that a new rule of criminal procedure cannot form the basis for collateral review unless the new rule is one which "place[s] an entire category of primary conduct beyond the reach of the criminal law, or new rules that prohibit the imposition of a certain type of punishment for a class of defendants because of their status or offense" or is a "new watershed rule of criminal procedure that [is] necessary to the fundamental fairness of the criminal proceeding." Blizerian v. United States, 127 F.3d 237, 241 (2d Cir. 1997) (citation omitted), cert. denied, 527 U.S. 1021 (1999). Although the Second Circuit has not yet ruled on whether the Apprendi rule should apply retroactively on collateral review of a conviction, Forbes v. United States, 262 F.3d 143, 146 n. 5 (2d Cir. 2001), other Circuit Courts that have addressed this issue have decided that the Apprendi rule does not constitute a new "watershed" rule of criminal procedure and should not be applied retroactively on collateral review. See, e.g., United States v. Sanders, 247 F.3d 139, 146 (4th Cir. 2001); Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir. 2000).

James was convicted of each of the five counts in the indictment. The maximum sentences of imprisonment were as follows:

Count One: 10 years imprisonment. See 26 U.S.C. § 5871.

Count Two: 5 years imprisonment. See 18 U.S.C. § 924(a)(1)(D).

Count Three: 10 years imprisonment. See 19 U.S.C. § 924(a)(2).

Count Four: 10 years imprisonment. See 26 U.S.C. § 5871.

Count Five: 10 years imprisonment. See 18 U.S.C. § 844(a)(1).

The total aggregate maximum sentence was thus 45 years.

James received a sentence of 30-1/2 years and the sentence for any given count was never more than the maximum statutory punishment. Thus, James was sentenced by the trial court to 10 years imprisonment for Counts One, Three and Four, to run consecutively. He was sentenced to an additional 5 months for Count Five, to run consecutively. He was sentenced to 5 years imprisonment on Count Two to run concurrent with the sentences imposed for Counts One, Three and Four. See Judgment of Conviction at 3. Thus, the Apprendi rule would have had no effect on James' sentence.⁷

7 James also argues that the Indictment failed to include a penalty provision. Reply Mem. at re-numbered pages "1-6" following page 24. The purpose of an indictment is to provide a statement of the charges against the defendant and it need only cite the statute or provisions "which the defendant is alleged. . . to have violated." Fed.R.Crim.P. 7(C)(1). There is no requirement that the indictment contain citations to penalty provisions.

E. James' Claim of Actual Innocence

A section 2255 movant may bypass the bar created by their failure to raise an issue on direct appeal if the movant can demonstrate "actual innocence." See Bousley v. United States, 523 U.S. 614, 622 (1998); see also DeJesus v. United States, 161 F.3d 99, 102 (2d Cir. 1998);Billy-Eko, 8 F.3d at 113-14. The term "actual innocence" means "factual innocence, not mere legal insufficiency." Bousley, 523 U.S. at 623. A claim of actual innocence requires that the movant "support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). In addition, the new evidence must be so strong that "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Id. at 327.

James, however, has come forth with no new evidence to bolster his actual innocence claim, let alone evidence that meets this rigorous standard. See Motion to Vacate at 40-61. Rather, James' "evidence" consists of the same arguments that are raised elsewhere in his Motion to Vacate. Thus, he argues at length that Counts One and Two of the Indictment were legally insufficient, Motion to Vacate at 40-47. This claim, however, was explicitly rejected in his direct appeal due to the overwhelming evidence introduced in support of his guilt. See Davis, 1999 WL 316804, at *2). Moreover, because the argument relates only to legal insufficiency, it in no way supports James's claim of actual innocence.Bousley, 523 U.S. at 623.

James also argues that he is actually innocent because it was "factually impossible" and unconstitutional for the offenses charged in Counts One and Two to be "continuing offenses" because of his period of incarceration beginning in 1991. See Motion to Vacate at 47-54. Again, this argument relies on no new evidence but is instead a variation on his argument made to the Second Circuit that there was insufficient evidence to support Counts One and Two of the Indictment. Thus James has not presented any "news' evidence in support of this claim let alone new scientific evidence, eyewitness accounts, or physical evidence. Schlup v. Delo, 513 U.S. at 324.

James also argues at length that he was the victim of a "vindictive prosecution." Motion to Vacate at 55-60. A complaint regarding the alleged motives of the prosecution in bringing the charges, however, is logically irrelevant to whether the defendant is actually innocent of those charges.

Because James' claim of actual innocence is unsupported by any new evidence that was not available at trial, it does not justify any relief under § 2255.

F. James' Entitlement to an Evidentiary Hearing

James seeks an evidentiary hearing on his motion. Motion to Vacate at 102; Reply Mem. at 2-3. Section 2255 provides that a court shall hold an evidentiary hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. In Chang v. United States, 250 F.3d 79 (2d Cir. 2001), the Second Circuit made clear that a court may appropriately rule on a § 2255 motion without a testimonial hearing where (1) the allegations of the motion, accepted as true, would not entitle the movant to relief or (2) the documentary record, including any supplementary submissions such as affidavits, render a testimonial hearing unnecessary. 250 F.3d at 85-86. Here, James is not entitled to an evidentiary hearing because the record before the Court is sufficient to address each of his claims.

CONCLUSION

For the foregoing reasons, it is recommended that James's Motion to Vacate be denied.

Notice of Procedure for Filing of Objections to this Report and Recommendation

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned at 40 Centre Street, New York, New York 10007. Any requests for an extension of time to file objections must be directed to Judge Kaplan. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 155 (1985).