Pantoliano v. United States

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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KATOSH PANTOLIANO,

Petitioner,

MEMORANDUM & ORDER

v.

13-cv-6417 (KAM)

UNITED STATES OF AMERICA,

Respondent.

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KIYO A. MATSUMOTO, United States District Judge

On February 10, 2012, Senior United States District

Judge Sterling Johnson, Jr. (“Judge Johnson”) sentenced pro se

petitioner Katosh Pantoliano (“Mr. Pantoliano”) to 125 months in

custody for conspiracy to commit Hobbs Act robbery, 18 U.S.C. §

1951(a), and brandishing a firearm in connection with a crime of

violence, 18 U.S.C. § 924(c), to which Mr. Pantoliano had

pleaded guilty pursuant to a plea agreement with the United

States of America (the “Government”). Before the Court is Mr.

Pantoliano’s petition to vacate his sentence pursuant to 28

U.S.C. § 2255. For the reasons set forth below, the Court finds

that Mr. Pantoliano’s arguments lack merit, and Mr. Pantoliano’s

petition is DENIED in its entirety.

Background

In 2008, the New York City Police Department and the

Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”)

launched an investigation into a series of card game robberies

in the Eastern District of New York. Through a cooperating

witness, the investigative team learned that Mr. Pantoliano was

part of a crew that carried out robberies of narcotics

traffickers and illegal gambling establishments. During certain

robberies, the crew posed as police officers, brandished

firearms, and used counterfeit police badges. Several victims

were physically restrained, threatened, or physically harmed.

I. The Indictment

Mr. Pantoliano faced a five-count indictment for his

involvement in the aforementioned robberies. (10-cr-68, ECF No.

84, Second Superseding Indictment.) Counts One and Two charged

Mr. Pantoliano with, respectively, a conspiracy to rob narcotics

traffickers and gambling establishments between April 2008 and

September 2008, and the use and brandishing of a firearm in

connection with the robbery conspiracy. (Id.) Counts Three,

Four, and Five charged Mr. Pantoliano with, respectively, a

conspiracy to rob a restaurant employee on September 28, 2009,

commission of the robbery, and the use, brandishing, and

discharge of a firearm in connection with the robbery. (Id.)

II. The Plea

Mr. Pantoliano, represented by Richard B. Lind, Esq.

(“Mr. Lind”),1 engaged in plea negotiations with the Government.

1 Prior to Mr. Lind, Mr. Pantoliano was represented by Charles Samuel

Hochbaum, Esq., and Michael Hurwitz, Esq.

On June 1, 2011, the Government conveyed a plea offer under

which Mr. Pantoliano would plead guilty to Counts One and Two of

the indictment and face an estimated advisory Guidelines range

of 121 to 130 months in custody. (Lind Aff. ¶ 10.) Mr. Lind

recalls Mr. Pantoliano as appearing pleased with the proposal.

(Id.) Several days later, on June 6, 2011, Mr. Pantoliano

emailed Mr. Lind that he “need[s] a 120 month (Binding-Plea)

that will guarantee us the 120 months,” and directed Mr. Lind

“to tell [Judge Johnson] that if [the Government is] not willing

to give us the 120 month binding plea that we want to ‘move’ to

dismiss all the charges against me because [there] is no[t]

sufficient evidence to support the elements of the crimes

charged against me in counts one and two.” (Id. Ex. E.)

Also on June 6, 2011, the Government sent a revised

plea agreement to Mr. Lind, stating that the initial agreement

contained an incorrect Guidelines calculation. (Id. ¶ 11; id.

Ex. D.) The revised plea agreement determined that Mr.

Pantoliano qualified as a “career offender,” subjecting him to

an enhanced penalty under Guideline 4B1.1(c)(3) and an estimated

advisory Guidelines range of 262 to 327 months in custody. (Id.

¶¶ 11-12.) Mr. Lind met with Mr. Pantoliano the next day, who

“strongly objected” to the revised agreement. (Id.)

Following the meeting, Mr. Lind researched and

presented evidence as to why Mr. Pantoliano should not qualify

as a career offender and convinced the Government of the same.

(Id. ¶ 17.) The Government then conveyed a further revised plea

agreement, which removed the career offender designation and set

forth an estimated Guidelines range of 114 to 121 months in

custody. (Id. ¶ 18; id. Ex. F.) After Mr. Pantoliano discussed

with Mr. Lind the elements of each offense and the strength of

the Government’s evidence against him, specifically as to his

involvement in the conspiracy to rob gambling establishments,

Mr. Pantoliano decided to plead guilty. (Id. ¶ 19.)

On June 15, 2011, Mr. Pantoliano entered into the

revised plea agreement with the Government, admitting he was

guilty of conspiracy to commit Hobbs Act robbery, in violation

of 18 U.S.C. § 1951(a) (Count One), and brandishing a firearm in

connection with a crime of violence, in violation of 18 U.S.C. §

924(c)(1)(A)(ii) (Count Two). (ECF No. 10, Response to Order to

Show Cause, Ex. A, Plea Agreement (“Plea Ag.”), ¶ 1.) As noted

above, the plea agreement stated that Mr. Pantoliano faced an

estimated Guidelines range of 114 to 121 months in custody.

(Id. ¶ 2.) By signing the plea agreement, Mr. Pantoliano

“agree[d] not to file an appeal or otherwise challenge, by

petition pursuant to 28 U.S.C. § 2255 or any other provision,

the conviction or sentence in the event that the Court impose[d]

a term of imprisonment of 125 months or below.” (Id. ¶ 4.) Mr.

Pantoliano signed immediately under the paragraph stating, “I

have read the entire agreement and discussed it with my

attorney. I understand all of its terms and am entering into it

knowingly and voluntarily.” (Id. ¶ 7.)

Mr. Pantoliano appeared for a plea hearing before

Judge Johnson the same day he entered into a plea agreement.

(ECF No. 1, Petition (“Pet.”), Ex. A, Transcript of June 15,

2011 Plea Hearing (“Plea Tr.”).) Mr. Pantoliano represented in

court that he had received a copy of the indictment and

understood the charges pending against him, which he had

discussed with his attorney, and that he was fully satisfied

with Mr. Lind’s advice, representation, and counsel. (Id. at

04:04-13, 14:06-24.) Mr. Pantoliano represented that he had

signed the plea agreement, that his plea was voluntary and

knowing, and that no one made any promises to him about the

sentence he would receive. (Id. at 04:21-05:02, 15:09-23.)

Turning to the substance of the plea agreement, Mr.

Pantoliano acknowledged under oath to Judge Johnson that, as set

forth in the agreement, he faced an estimated advisory

Guidelines sentencing range of 33 to 41 months’ imprisonment on

Count One (id. at 07:20-08:04) and a consecutive seven-year

mandatory minimum sentence on Count Two (id. at 08:05-09),

leading to a total effective estimated Guidelines range of 114

to 121 months (id. at 08:10-16). Mr. Pantoliano further

represented that he understood that by entering into the plea

agreement, he waived his right to “appeal or otherwise

challenge, by 2255 or any other provision, [his] conviction or

sentence in the event that the Court impose[d] a sentence of

imprisonment of 125 months or below.” (Id. at 08:17-23.)

After Mr. Pantoliano allocuted to his conduct in

connection with Counts One and Two, the Court found: “that the

defendant is fully competent and capable of entering an informed

plea; [t]hat the defendant is aware of the nature of the charges

and the consequences of his plea, and [t]hat his plea of guilty

is knowing and is voluntary, and; [s]upported by an independent

basis in fact containing each of the essential elements of the

offense.” (Id. at 15:24-16:09.) Judge Johnson then accepted

Mr. Pantoliano’s plea of guilty to Counts One and Two of the

Second Superseding Indictment.

III. The Sentence

The Probation Department prepared a Pre-Sentence

Investigation Report (“PSR”) in advance of sentencing. (Lind

Aff. ¶ 22.) The PSR calculated a higher estimated Guidelines

range than the plea agreement to which Mr. Pantoliano pleaded

guilty. (Id.; see also ECF No. 10, Response to Order to Show

Cause (“Opp.”), at 4 (stating that the PSR set forth an

estimated effective Guidelines range of 162 to 181 months).)

Mr. Pantoliano, in what had become a pattern, filed a letter

making various allegations of misconduct against Mr. Lind,

including that Mr. Lind “misled, coerced, manipulated,

misadvised, and convinced” him to sign the plea agreement, which

set forth an estimated Guidelines range of 114 to 121 months,

despite “knowing” that Mr. Pantoliano would receive a higher

sentence. (Lind Aff., Ex. G.) Mr. Pantoliano asked that Judge

Johnson (1) discharge Mr. Lind and appoint a new attorney and

(2) allow Mr. Pantoliano to withdraw his guilty plea. (Id.)

Shortly thereafter, Mr. Lind submitted a letter indicating that,

due to Mr. Pantoliano’s baseless allegations, a conflict now

existed with his client and asking to withdraw as counsel.

(Lind Aff., Ex. F.)

Judge Johnson granted Mr. Lind’s request to withdraw

and appointed Philip Katowitz, Esq. (“Mr. Katowitz”) to

represent Mr. Pantoliano at sentencing. (ECF Dkt. Order, Oct.

20, 2011.) In appointing Mr. Katowitz, Mr. Pantoliano’s fourth

CJA lawyer, Judge Johnson “admonished [Mr. Pantoliano] that CJA

counsel is assigned for purposes of sentencing. Should [Mr.

Pantoliano] be dissatisfied with new counsel, he will proceed

pro se and counsel will remain to advise.” (Id.) Shortly

thereafter, Mr. Pantoliano wrote Judge Johnson alleging a

conflict with Mr. Katowitz and asking that Judge Johnson remove

Mr. Katowitz, stating that “[he] [was] willing to proceed ‘pro

se’ for sentencing because [his] attorney fail[ed] to ethically

follow [his] instructions.” (ECF No. 145, Letter from Mr.

Pantoliano.)

On January 27, 2012, Mr. Pantoliano appeared before

Judge Johnson for sentencing. (Pet., Ex. E, Transcript of

January 27, 2012 Sentencing (“Sent. Tr.”).) Judge Johnson began

by addressing Mr. Pantoliano’s request to discharge Mr.

Katowitz. (Id. at 02:15-19.) Judge Johnson stated that “the

last time [he] spoke to Mr. Pantoliano,” he advised him that if

Mr. Pantoliano “didn’t accept [Mr. Katowitz as his attorney],

that [Mr. Pantoliano] was going to proceed pro se.” (Id.)

After Mr. Pantoliano confirmed he wished to represent himself,

Judge Johnson relieved Mr. Katowitz and granted Mr. Pantoliano’s

request to represent himself at sentencing. (Id. at 04:01-12.)2

Judge Johnson next denied Mr. Pantoliano’s motion to withdraw

his plea, because Judge Johnson had conducted the plea and found

that Mr. Pantoliano understood the nature of the charges against

him and the consequences of his actions. (Id. at 04:19-25.)

Judge Johnson proceeded with sentencing, and inquired

whether either party had outstanding objections to the PSR. Mr.

Pantoliano raised some objections but claimed that he required

2 Judge Johnson initially directed Mr. Katowitz to remain present to advise

Mr. Pantoliano, in the event he required any assistance. (Sent. Tr. at 04:01-

12.) Mr. Katowitz stated that Mr. Pantoliano had raised a grievance against

him, and inquired as to whether it would be appropriate to remain to advise

his former client in light of the filing. (Id. at 07:07-16.) Judge Johnson

then relieved Mr. Katowitz entirely. (Id. at 07:17-08:14.)

his “case file” to raise additional matters with the court.

(Id. at 12:01-13:01.) Having disposed of Mr. Pantoliano’s

objections to the PSR, Judge Johnson turned to imposition of the

sentence. Judge Johnson initially imposed a sentence of 97

months on Count One and 84 months on Count Two, for a total of

181 months. (Id. at 13:13-20.) Mr. Pantoliano, however,

objected to the sentence and reminded Judge Johnson that the

plea agreement allowed him to appeal a sentence above 125

months. (Id. at 14:14-16.) As a result, Judge Johnson reduced

Mr. Pantoliano’s sentence to 41 months on Count One and 84

months on Count Two, for a total sentence of 125 months. (Id.

at 16:07-17.) The Government then dismissed the remaining

counts and the underlying indictment (id. at 14:04-12), and the

court entered judgment convicting Mr. Pantoliano of conspiracy

to commit Hobbs Act robbery (Count One) and unlawful use of a

weapon in connection with a crime of violence (Count Two).

Procedural History

On February 10, 2012, Mr. Pantoliano filed an appeal

with the United States Court of Appeals for the Second Circuit.

(See ECF No. 168, Notice of Appeal.) Mr. Pantoliano argued that

his sentence and conviction should be vacated because the

district court lacked subject matter jurisdiction. The

Government moved to dismiss Mr. Pantoliano’s appeal as

procedurally barred by the waiver of appellate rights in his

plea agreement. U.S. v. Pantoliano, No. 12-577 (2d Cir.) (ECF

No. 30, Motion to Dismiss). The Second Circuit found that Mr.

Pantoliano “ha[d] not demonstrated that the waiver of his

appellate rights [was] unenforceable under United States v.

Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000),” and granted the

Government’s motion to dismiss Mr. Pantoliano’s appeal. U.S. v.

Pantoliano, No. 12-577 (2d Cir.) (ECF No. 77, Motion Order.)

On November 14, 2013, Mr. Pantoliano filed the instant

petition for habeas relief pursuant to 28 U.S.C. § 2255. (ECF

No. 1, Petition.) Mr. Pantoliano argued that his conviction and

sentence were unconstitutional for four reasons: (1) his guilty

plea was not knowing and voluntary because it was the product of

ineffective assistance of counsel at pleading; (2) his

conviction was unconstitutional because Respondents had a

financial interest in his conviction; (3) the court lacked

subject matter jurisdiction because Brooklyn and Staten Island

were not ceded to the United States at the time the offense was

committed; and (4) he received ineffective assistance of counsel

at sentencing. (See generally id.)

On January 2, 2014, on the court’s order, Mr. Lind

filed an affirmation responding to Mr. Pantoliano’s allegation

that he received ineffective assistance of counsel in deciding

to plead guilty to Counts One and Two of the indictment. (Lind

Aff.) Mr. Pantoliano responded to Mr. Lind’s affidavit, which,

as the court explains below, raised the same conclusory

assertions in his subsequent petition for habeas relief. (ECF

No. 9, Response to Lind Aff.) On April 3, 2014, the Government

filed its opposition to Mr. Pantoliano’s petition for habeas

relief. (ECF No. 10, Government’s Opposition to Petition

(“Opp.”).) Mr. Pantoliano filed a reply on May 6, 2014. (ECF

No. 20, Reply in Support of Pet.)

On May 24, 2016, Mr. Pantoliano moved to supplement

his petition to raise a challenge to his § 924(c) conviction

pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015).

(ECF No. 24, Motion for Leave to Amend.) The court granted Mr.

Pantoliano’s request. (ECF Dkt. Entry, June 22, 2016.) On

August 19, 2016, the Government submitted its response to Mr.

Pantoliano’s supplemental petition raising the Johnson claim.

(ECF No. 32, Government Response to Supplemental Petition.)

On June 14, 2017, Mark Goidell, Esq., appointed by the

court to assist Mr. Pantoliano in litigating his habeas

petition, filed a memorandum in further support of Mr.

Pantoliano’s petition, which addressed only the fourth ground

for relief – ineffective assistance of counsel at sentencing.

(ECF No. 39, Supplemental Reply in Support of Petition.) The

Government filed a supplemental opposition. (ECF No. 41,

Opposition to Supplemental Reply.)

Standard of Review

“A prisoner in custody under sentence of a [federal

court] 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 is otherwise

subject to collateral attack, may move the court which imposed

the sentence to vacate, set aside or correct the sentence.” 28

U.S.C. § 2255(a). The Court “shall vacate and set the judgment

aside” if the Court finds that “there has been such a denial or

infringement of the constitutional rights of the prisoner as to

render the judgment vulnerable to collateral attack.” Id. §

2255(b). To respect the finality of criminal convictions, “a

collateral attack on a final judgment in a federal criminal case

is generally available under § 2255 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.’”

United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting

Hill v. United States, 368 U.S. 424, 428 (1962)).

Discussion

Mr. Pantoliano moves for relief pursuant to § 2255 on

the grounds that: (1) his guilty plea was not knowing and

voluntary because he received ineffective assistance of counsel

at pleading; (2) his conviction is unconstitutional because

respondents had a financial interest in his conviction; (3) the

court lacked subject matter jurisdiction over the charges

against him; (4) he received ineffective assistance of counsel

at sentencing; and (5) his § 924(c) conviction is

unconstitutional. (See generally Pet.) Mr. Pantoliano agreed

to waive his right to collaterally attack his conviction and

sentence in the event Judge Johnson imposed a sentence of 125

months or less, as occurred here. The only ground not precluded

by this waiver is the argument that Mr. Pantoliano’s plea

agreement was not knowing and voluntary due to ineffective

assistance of counsel at the pleading stage. For the reasons

explained herein, the court finds that counsel effectively

assisted Mr. Pantoliano in connection with his plea, Mr.

Pantoliano’s waiver of his collateral attack rights was knowing

and voluntary, the plea agreement and waiver of collateral

attack rights remain valid, and the remainder of Mr.

Pantoliano’s claims are procedurally barred.

I. Preliminary Considerations

The court begins its discussion by addressing (1)

whether the collateral attack waiver in Mr. Pantoliano’s plea

agreement bars the instant petition and (2) whether the court

may decide the instant petition on the record before the court,

or whether an evidentiary hearing is necessary.

a. Waiver

The threshold question in this action is whether Mr.

Pantoliano’s collateral attack waiver bars the instant petition.

“A defendant’s knowing and voluntary waiver of the right to . .

. collaterally attack his conviction and/or sentence is

enforceable.” See Sanford v. United States, 841 F.3d 578, 580

(2d Cir. 2016). A waiver is knowing if the “defendant fully

understood the potential consequences of his waiver.” United

States v. Monzon, 359 F.3d 110, 116 (2d Cir. 2004).

“[E]xceptions to the presumption of the enforceability of a

waiver . . . occupy a very circumscribed area of [this

Circuit’s] jurisprudence.” Sanford, 841 F.3d at 580.

Mr. Pantoliano “agree[d] not to . . . challenge, by

petition pursuant to 28 U.S.C. § 2255 . . . [his] conviction or

sentence in the event that the Court impose[d] a term of

imprisonment of 125 months or below.” (Plea Ag. ¶ 4.) In

signing the agreement, Mr. Pantoliano represented that he had

“read the entire agreement and discussed it with [his] attorney”

and “underst[ood] all of its terms and [was] entering into it

knowingly and voluntarily.” (Id. at 7.) Mr. Pantoliano also

represented under oath in court that he understood the waiver

provision of the plea agreement, and had not been induced or

threatened in any way to enter into the plea agreement. (Plea

Tr. at 04:21-05:02, 15:09-23.) See United States v. Hernandez,

242 F.3d 110, 112 (2d Cir. 2001) (courts may rely on the

defendant’s sworn statements, made in open court, that he

understood that he was waiving his right to appeal a sentence

below the stipulated maximum). Because Judge Johnson sentenced

Mr. Pantoliano to 125 months in custody, Mr. Pantoliano is

procedurally barred from bringing this action.

There is, however, one potentially applicable

exception: A waiver is not enforceable if it “was not made

knowingly, voluntarily, and competently.” Gomez–Perez, 215 F.3d

at 319. Mr. Pantoliano argues that his waiver was not made

knowingly and voluntarily as it was a product of ineffective

assistance of counsel at pleading, a claim not barred by the

waiver because it serves as an attack on the constitutionality

of the process by which Mr. Pantoliano waived his rights. See,

e.g., United States v. Djelevic, 161 F.3d 104, 106–07 (2d Cir.

1998). If Mr. Pantoliano establishes that, due to ineffective

assistance of counsel, the waiver in his plea agreement was not

knowing and voluntary, the waiver will not be enforceable.

United States v. Lloyd, 901 F.3d 111, 124 (2d Cir. 2018). If he

fails to do so, Mr. Pantoliano’s remaining claims will be

barred. The court will, therefore, begin its analysis with this

threshold issue, before turning to Mr. Pantoliano’s remaining

challenges.

b. Evidentiary Hearing

The other question the court must address before

considering the merits of Mr. Pantoliano’s petition is whether

the court can address the instant petition on the submitted

record before the court, or whether Mr. Pantoliano’s request for

an evidentiary hearing should be granted. “In ruling on a

motion under § 2255, the district court is required to hold a

hearing ‘[u]nless the motion and the files and records of the

case conclusively show that the prisoner is entitled to no

relief.’” Gonzalez, 722 F.3d at 130 (quoting 28 U.S.C. § 2255).

“[T]he filing of a motion pursuant to § 2255 does not

automatically entitle the movant to a hearing.” Id. No hearing

is necessary “where the allegations are ‘vague, conclusory, or

palpably incredible.’” Id. (quoting Machibroda 131 v. United

States, 368 U.S. 487, 495 (1962)). A hearing is necessary only

where the petition “set[s] forth specific facts supported by

competent evidence, raising detailed and controverted issues of

fact that, if proved at a hearing, would entitle [the movant] to

relief.” Id.

Even if a hearing is warranted, it is “within the

district court’s discretion to determine the scope and nature of

a hearing.” Raysor v. United States, 647 F.3d 491, 494 (2d Cir.

2011) (citing Chang v. United States, 250 F.3d 79, 85–86 (2d

Cir. 2001)). A full-blown hearing is not necessary in all

cases. Puglisi v. United States, 586 F.3d 209, 214–15 (2d Cir.

2009)). Courts frequently “consider the ‘trial record, letters,

documents, exhibits, affidavits and written interrogatories’ and

may adopt a ‘middle road’ approach, declining to hold a hearing

and ‘deciding disputed facts on the basis of written

submissions.’” Rosario v. United States, No. 17-CR-0027 (LTS),

2019 WL 5260784, at *3 (S.D.N.Y. Oct. 17, 2019) (quoting Pham v.

United States, 317 F.3d 178, 184 (2d Cir. 2003)); see also Wang

v. United States, 458 F. App’x 44, 45 (2d Cir. 2012) (summary

order) (“[T]he District Court did conduct an evidentiary

hearing, albeit one limited to the sworn, written submissions of

[petitioner], his former counsel, and the interpreters.”).

In this action, the court adopted a “middle road”

approach and directed Mr. Lind to respond to Mr. Pantoliano’s

allegations of ineffective assistance of counsel in connection

with his plea. Mr. Lind filed a thorough, detailed, and

credible 12-page affidavit, attaching 8 supporting exhibits,

contradicting Mr. Pantoliano’s assertions that he provided

ineffective assistance in advising Mr. Pantoliano as to whether

he should plead guilty. Mr. Pantoliano’s response to Mr. Lind’s

affidavit does nothing more than offer the conclusory assertions

contained in his petition. The court finds a full-blown

evidentiary hearing unnecessary, as it would add “little to

nothing” to the Court’s determination of the instant petition,

particularly as both matters for which Mr. Pantoliano seeks a

hearing – the nature of his guilty plea and Faretta claim – can

be appropriately addressed on the record presently before the

court. Beckford v. United States, No. 13-CV-2208 (DLI), 2017 WL

4286615, at *3 (E.D.N.Y. Sept. 26, 2017) (quoting Chang, 250

F.3d at 86).3

II. Grounds for Relief

For the reasons that follow, the court finds that Mr.

Pantoliano’s plea was knowing and voluntary, and that the

collateral attack waiver in his plea agreement remains valid.

As a result, Mr. Pantoliano’s remaining claims are procedurally

barred and his petition must be denied.

A. Ground One: Ineffective Assistance of Counsel at

Pleading

Mr. Pantoliano argues that Mr. Lind provided

ineffective assistance at pleading, rendering his agreement to

plead guilty unknowing and involuntary and invalidating the plea

agreement and plea in their entirety. This argument is

unavailing.

3 Mr. Pantoliano also requests discovery of certain information relating to

his claim that Respondents have a financial interest in his conviction. (See

Pet. at 41-42.) Mr. Pantoliano “is not entitled to discovery as a matter of

ordinary course,” Bracy v. Gramley, 520 U.S. 899, 904 (1997), and has failed

to show good cause for discovery, Drake v. Portuondo, 321 F.3d 338, 346 (2d

Cir. 2003). Mr. Pantoliano’s assertions do not “show reason to believe that

[he] may, if the facts are fully developed, be able to demonstrate that he is

. . . entitled to relief,’” Ferranti v. United States, 480 F. App’x 634, 638

(2d Cir. 2012) (summary order) (quoting Bracy, 520 U.S. at 908-09), as his

claims, particularly the financial interest claim for which he seeks

discovery, lack merit. The request for discovery is therefore denied.

1. Legal Standard

A petitioner must meet the “highly demanding” standard

set forth in Strickland v. Washington, 466 U.S. 668 (1984), to

prevail on a claim of ineffective assistance of counsel.

Kimmelman v. Morrison, 477 U.S. 365, 382 (1986). Under

Strickland, a petitioner must show: (1) that defense counsel’s

performance was objectively unreasonable (the “performance

prong”); and (2) that defense counsel’s deficient performance

prejudiced the defense (the “prejudice prong”). Kovacs v.

United States, 744 F.3d 44, 49 (2d Cir. 2014) (citing

Strickland, 466 U.S. at 687-88); see also Parker v. Ercole, 666

F.3d 830, 834 (2d Cir. 2012) (court need not address both prongs

if a petitioner makes an insufficient showing on one).

“The performance component of the Strickland test asks

whether a ‘counsel's representation fell below an objective

standard of reasonableness.’” Kovacs, 744 F.3d at 50 (quoting

Strickland, 466 U.S. at 688). Courts “indulge a strong

presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance.” Strickland, 466 U.S. at

689. They examine the reasonableness of counsel’s actions,

keeping in mind that “[c]onstitutionally effective counsel

embraces a ‘wide range of professionally competent assistance,’

and ‘counsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of

reasonable professional judgment.’” Greiner v. Wells, 417 F.3d

305, 319 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 690).

The prejudice component of the Strickland test asks

whether “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694. “A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. Merely showing that counsel’s

errors had “some conceivable effect” on the outcome is not

enough to satisfy the prejudice prong, but “a defendant need not

show that counsel’s deficient conduct more likely than not

altered the outcome in the case.” Id. at 693.

2. Application

The crux of Mr. Pantoliano’s argument is that Mr. Lind

failed to properly explain the proof necessary to satisfy the

interstate commerce element of the Hobbs Act, and as a result,

he was unaware of a defense which he otherwise would have

litigated at trial, rather than pleading guilty. (See Pet. at

4.) This argument lacks merit.

a. Performance Prong

Mr. Pantoliano argues that Mr. Lind’s performance was

lacking because he did not explain the interstate commerce

element of the Hobbs Act. (Pet. at 18.) Specifically, Mr. Lind

allegedly failed to advise his client that if the type of drugs

that he and others conspired to rob was marijuana grown in New

York, he might have had a jurisdictional defense under United

States v. Needham, 604 F.3d 673 (2d Cir. 2010) (explaining that

the Hobbs Act’s interstate commerce element is not necessarily

satisfied where a robbery targets marijuana, as marijuana can be

grown, processed, and sold entirely within one state). Although

a petitioner can bring an ineffective assistance of counsel

claim based on the argument that defense counsel failed to

apprise him of the elements of a crime, see United States v.

Weeks, 653 F.3d 1188, 1201 (10th Cir. 2011), or a potential

defense, see Hill v. Lockhart, 474 U.S. 52, 59 (1985), the

record shows that Mr. Lind was not ineffective in this regard.

First, Mr. Pantoliano’s argument relies entirely on

his conclusory assertions and finds no support in the record.

Mr. Pantoliano cites no evidence that he did not understand the

nature of the interstate commerce element. Instead, Mr.

Pantoliano cites the absence of statements in the plea

transcript that he understood the elements of Count One, that he

had discussed them with his attorney, or that he had discussed

the plea agreement with his attorney. (Id. at 19-20.) Although

the absence of evidence, in certain contexts, may be persuasive,

it is not persuasive in this context as other evidence in the

record clearly contradicts Mr. Pantoliano’s assertions.

The record establishes that Mr. Pantoliano reviewed

the indictment and charges against him with Mr. Lind. (Plea Tr.

at 04:04-13 (confirming that Mr. Pantoliano reviewed the

indictment and charges against him and discussed them with Mr.

Lind).) The record further establishes that Mr. Pantoliano

understood the plea agreement’s terms, as evidenced by his

representation in signing the plea agreement that he had

reviewed and discussed the agreement with Mr. Lind. (Plea Ag.

at 7.)

Furthermore, Mr. Pantoliano’s assertions are

contradicted by Mr. Lind’s highly detailed and specific

statements, which were derived in part from his review of

contemporaneous records, namely, CJA vouchers submitted in

connection with Mr. Lind’s representation of Mr. Pantoliano.

According to Mr. Lind’s affidavit, on May 3, 2011, Mr. Lind met

with Mr. Pantoliano for over two hours at the MDC to review his

case. (Lind Aff. ¶ 7.) Mr. Lind “went over with [Mr.]

Pantoliano the charges in the Indictment, and the nature and

strength of the government’s proof.” (Id.) On June 14, 2011,

after Mr. Lind secured the final revised plea agreement, Mr.

Lind met with his client to review its terms:

[Mr. Lind’s] recollection is that, for once, [Mr.

Pantoliano] was enthusiastic about [his] performance. As

is [Mr. Lind’s] practice, [he] prepared [Mr.] Pantoliano

for his guilty plea, and went over the elements of both

crimes with [Mr.] Pantoliano, as [Mr. Pantoliano] had

demanded on prior occasions, and particularly the strength

of the evidence as to [Mr.] Pantoliano’s involvement in the

conspiracy to rob gambling establishments.

(Id. ¶ 19.) By contrast, Mr. Pantoliano’s response merely

alleges that Mr. Lind “disregarded” his contentions and, rather

than coming forward with competent proof contradicting Mr.

Lind’s affirmation, simply reiterates the absence of statements

in the plea colloquy that Mr. Pantoliano understood the elements

of the charges against him.4

Second, the court cannot find that Mr. Lind would have

been ineffective for not raising a potential jurisdictional

defense under Needham with his client. As the court addresses

in more detail below, Mr. Pantoliano proffers no evidence that a

jurisdictional defect existed in this case. As the Government

points out, Mr. Pantoliano does not present evidence that the

proceeds of the narcotics traffickers who were robbed in this

case were, in fact, proceeds from marijuana that was grown in

New York. (Opp. at 9 n.2.) Granting Mr. Lind’s conduct the

4 In response to Mr. Lind’s affidavit, which indicated that the Government’s

proffer as to jurisdiction relied primarily on Mr. Pantoliano’s involvement

in card game robberies, Mr. Pantoliano alleges that Mr. Lind was ineffective

for allegedly telling Mr. Pantoliano that “the strength of the case against

[him] was regarding robberies of Drug Dealers.” (Response to Lind Aff. at

3.) Mr. Pantoliano then asserts that, if Mr. Lind had properly explained

that Mr. Pantoliano “was really only being charged with robbing illegal

gambling establishments, [he] would have rejected the plea based on the fact

that no injured parties exist regarding such robberies.” (Id.) Whether this

claim, if true, prejudiced Mr. Pantoliano is addressed below. It is

sufficient for now to note that even if Mr. Pantoliano’s discussion with Mr.

Lind focused on robberies of card games, Mr. Pantoliano was charged with, and

allocuted to, committing robberies of narcotics traffickers and illegal

gambling establishments.

appropriate deference, and without any evidence that a Needham

(or, indeed, any other defense) stood a chance of success at

trial, the court cannot find that Mr. Lind was ineffective in

failing to raise the prospect of a Needham defense with his

client. Mr. Lind appropriately focused his efforts on securing

the most favorable plea deal for his client.

b. Prejudice Prong

Even if Mr. Lind’s performance was deficient, Mr.

Pantoliano cannot establish prejudice. In the plea context, the

prejudice prong “focuses on whether counsel’s constitutionally

ineffective performance affected the outcome of the plea

process.” Hill, 474 U.S. at 59. A petitioner can show

prejudice by “demonstrating a reasonable probability that, but

for counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.” Lee v. United States, 137 S.

Ct. 1958, 1965 (2017). The petitioner “must convince the court

that a decision to reject the plea bargain would have been

rational under the circumstances.” Padilla v. Kentucky, 559

U.S. 356, 372 (2010).

The court must consider “all relevant factors”5 in

determining whether the petitioner was prejudiced, Gonzalez, 722

5 “[T]he fact that an attempt was made to withdraw [a] guilty plea and go to

trial may not be dispositive on the issue of IAC prejudice; however, it is a

factor that must be considered by the court in assessing whether there is a

reasonable probability that but for substandard performance by counsel, the

F.3d at 132, including whether: (1) the defendant knew “that the

advice on which he claims to have relied might be incorrect”;

(2) pleading guilty led to more lenient sentencing; (3) “the

defendant advanced any basis for doubting the strength of the

government’s case against him;” or (4) the Government could have

prosecuted the defendant on additional counts. Chhabra v.

United States, 720 F.3d 395, 408 (2d Cir. 2013).

“In determining whether a petitioner has made the

requisite showing, ‘[c]onclusory allegations that [the

petitioner] would have insisted on proceeding to trial are

generally insufficient to establish actual prejudice under

Strickland.’” Francis v. United States, No. 12-CV-1362 (AJN),

2013 U.S. Dist. LEXIS 25470, at *12 (S.D.N.Y. Feb. 25, 2013)

(quoting Scott v. Superintendent, No. 03–CV–06383, 2006 WL

3095760, *9 (E.D.N.Y. Oct. 31, 2006)). The Second Circuit

requires “some objective evidence other than the petitioner’s

assertions to establish prejudice.” Pham, 317 F.3d at 182

(finding “objective” evidence of prejudice resulting from

defendant would have chosen to eschew the plea and go to trial.” Gonzalez,

722 F.3d at 133. Mr. Pantoliano moved to withdraw his guilty plea not based

on the discovery of a potential jurisdictional defense, the ineffective

assistance alleged here, but upon reviewing the PSR and learning that it

contained a Guidelines range greater than that set forth in the plea

agreement. (See ECF No. 130, Mot. to Withdraw Guilty Plea.) Yet, the plea

agreement indicated that the Guidelines analysis was not binding on the

Government, the Probation Department, or the court, a fact Mr. Pantoliano

indicated he understood by signing the plea agreement. (See Plea Ag. at 3,

7.) Mr. Pantoliano’s attempt to withdraw his plea is, therefore, not

conclusive as to prejudice in the context of this action.

alleged failure to convey plea offer to include “the undisputed

sentencing disparity of at least 113 months between the high end

of the government’s [allegedly unconveyed] plea offer and [the

petitioner’s] sentence after a trial conviction”); see also

Zhang v. United States, 543 F. Supp. 2d 175, 185 (E.D.N.Y.

2008).

First, the court must consider the viability of Mr.

Pantoliano’s proposed defense. Where a petitioner’s specific

claim is that counsel failed to inform him of a potential

defense, the relevant inquiry is whether the defense “was viable

and sufficiently promising that [the petitioner] would have

litigated the defense to avoid [the plea] consequences.”

Kovacs, 744 F.3d at 53. Mr. Pantoliano’s purported defense

falls short. The Hobbs Act’s interstate commerce element is

satisfied by a showing of the possibility or potential of an

effect on interstate commerce; an actual effect need not be

shown. See United States v. Jones, 30 F.3d 276, 285 (2d Cir.

1994).

Mr. Pantoliano posits that if the proceeds of the

narcotics traffickers he robbed resulted from marijuana grown in

New York, he might have had a defense under Needham. (Pet. at

19.) It is correct that the interstate commerce element is not

necessarily satisfied where a defendant is charged with stealing

marijuana, as marijuana “may be entirely grown, processed, and

sold in-state.” Needham, 604 F.3d at 685. But Mr. Pantoliano

cites no evidence from which the court could conclude that

Needham would, in fact, provide him with a defense in this

action – his argument is merely speculative. Moreover, as Mr.

Lind indicates, the Government’s proffer focused on Mr.

Pantoliano’s involvement in robberies of illegal card games, and

Mr. Pantoliano makes nothing more than a conclusory argument the

Government would not be able to establish jurisdiction through

this aspect of the offense.6 Without any facts indicating that

there was any jurisdictional defect, or that any potential

defense would have been viable in any way, the court cannot find

that Mr. Pantoliano has established a “‘reasonable probability’

6 Mr. Lind’s affidavit notes that the Government’s proffer at the plea hearing

focused on Mr. Pantoliano’s robbery of the proceeds of illegal card games,

not on the robbery of narcotics themselves, and that the Government could

have satisfied the Hobbs Act’s interstate commerce element based on Mr.

Pantoliano’s robbery of said gambling proceeds. (Lind Aff. at 9.) Mr.

Pantoliano reads Mr. Lind’s affidavit as stating he was charged only with

robbing card games and states that, had he known this was the case, he would

not have pleaded guilty because “later case agents went to investigate the

alleged crimes in which no injured parties or people existed,” so “it appears

that [he] pleaded guilty to robbing gambling establishments and people who do

not exist.” (ECF No. 9, Response to Lind Aff., at 5.) Mr. Pantoliano’s

cited evidence for this assertion comes from one paragraph of the PSR, which

reads:

Although [Mr. Pantoliano] is liable for restitution to the victims of

the robberies that occurred within the dates of the indictment, from

April 2008 through September 2008, the case agent advises that the

victims have been uncooperative and do not wish to be contacted by the

Probation Office.

(Id. Ex. 1.) Mr. Pantoliano’s assertion clearly relies on a misreading of

the PSR, and he cites no other evidence to support the proposition that there

were no victims. This argument is, consequently, similarly unavailing, and

this defense is not viable.

that advising [him] of the existence of the affirmative defense

would have produced a result more favorable to him.” Mitchell

v. Scully, 746 F.2d 951, 955 (2d Cir. 1984).

Second, the evidence contradicts Mr. Pantoliano’s

conclusory assertion that, barring Mr. Lind’s allegedly

ineffective assistance, he would not have accepted the plea

deal. Mr. Pantoliano played an active role in negotiating his

plea deal. Mr. Pantoliano demanded an agreement which would

guarantee him a 120-month term of imprisonment. If the

Government did not offer such an agreement, Mr. Pantoliano was

prepared to move to dismiss all counts for lack of evidence as

to the elements of each offense, indicating his awareness that

moving to dismiss the charges was a possibility. In the end,

Mr. Pantoliano received a plea offer setting forth an estimated

Guidelines range of 114 to 121 months in custody, all but

satisfying his request for a 120-month term of custody. Mr.

Pantoliano’s conclusory assertions that he would have rejected

this deal, which met his demands, and proceeded to trial on the

basis of the possibility of a defense – which, from the facts,

bore no viability – are unavailing and unsupported by evidence.

Finally, evaluation of the record as a whole does not

support the position that it would have been rational for Mr.

Pantoliano to reject the plea deal and proceed to trial. Mr.

Pantoliano “gained an enormous strategic benefit from accepting

the Government’s plea offer.” United States v. Diaz, No. 07-CR-

003 (BSJ), 2009 WL 4496052, at *4 (S.D.N.Y. Dec. 3, 2009).

“[I]n the absence of a plea agreement, the government would

presumably have been free to prosecute [Mr. Pantoliano] on [the

three] open counts against him[.]” United States v. Arteca, 411

F.3d 315, 321 (2d Cir. 2005). This is particularly notable as

Mr. Pantoliano faced an additional § 924(c) count, to which he

did not plead guilty. If convicted of both § 924(c) counts, Mr.

Pantoliano faced consecutive mandatory minimum sentences, and a

far longer term of incarceration. See United States v.

McIntosh, 33 F. Supp. 3d 448, 450 (S.D.N.Y. 2014); United States

v. Mejia, 545 F.3d 179, 205 (2d Cir. 2008); see also Gomez v.

United States, No. 10-CV-01886 (CBA), 2013 WL 66080, at *7

(E.D.N.Y. Jan. 4, 2013) (“Had [petitioner] proceeded to trial,

moreover, [he] risked a substantially harsher sentence.”). Mr.

Pantoliano also “earned a three-level reduction from his base

offense level for acceptance of responsibility - a benefit that

he would have lost had he gone to trial.” Arteca, 411 F.3d at

321; see also, e.g., Diaz, 2009 WL 4496052 at *4.

The strategic benefits of pleading guilty appear even

greater in light of the fact that Mr. Pantoliano has not

provided any persuasive reason for doubting the strength of the

Government’s case against him. See Arteca, 411 F.3d at 321-22.

Mr. Lind affirms that the Government’s case against Mr.

Pantoliano was strong, particularly with respect to his

involvement in robbing gambling establishments. (Lind Aff. ¶

19.)7 This is supported by the record. The Government

represented at the plea hearing that, had Mr. Pantoliano

proceeded to trial, its evidence would consist of “testimony

from cooperating witnesses, as well as testimony with respect to

the robbery itself,” that between April 2008 and September 2008,

Mr. Pantoliano went into illegal card games and robbed people of

the proceeds of those games, and that, during the aforementioned

robberies, Mr. Pantoliano brandished a firearm. (Plea Tr. at

10:13-11:12.) Mr. Pantoliano himself allocuted under oath that,

between April 2008 and September 2008, he conspired to rob

narcotics traffickers and gambling establishments in Brooklyn

and Staten Island, and that he brandished a gun during the

course of the conspiracy. (Id. at 11:13-13:14.)

Mr. Pantoliano now responds with baseless allegations

of misconduct and corruption, but identifies no potentially

viable defenses or any meritorious weaknesses in the

Government’s case against him. “[T]he evidence against

Defendant was strong, he acknowledge[d] his guilt, and it is

more than reasonable to assume that he would have been found

7 Portions of this evidence were previewed at the suppression hearing held.

(See 10-cr-68, ECF No. 39, Report and Recommendations (summarizing testimony

of ATF agent at suppression hearing).)

guilty and faced the same [if not far more dire] . . .

consequences had he proceeded to trial.” Francis, 2013 WL

673868, at *4 (S.D.N.Y. Feb. 25, 2013); see also, e.g., Morton

v. Perez, No. 13-CV-3985 (AT) (GWG), 2014 WL 407411, at *9

(S.D.N.Y. Feb. 4, 2014) (“[I]f [defendant] had gone to trial,

[he] could have faced 25 years imprisonment on each of the

robbery charges, seven years on the weapons possession charge,

and four years on the bail jumping charge. Also, all of these

sentences could have been ordered to run consecutively. Given

the choice [defendant] faced, and the absence of any evidence in

the record suggesting that he would have been acquitted, there

is no basis on which to conclude that ‘a decision to reject the

plea bargain would have been rational under the

circumstances.’”). In light of the above, the court cannot

conclude that Mr. Pantoliano has met the high standard of

Strickland. His claim is denied.

Mr. Pantoliano has not established that he received

ineffective assistance of counsel at pleading, and the facts –

summarized above – indicate that his agreement to plead guilty

was knowing and voluntary. Consequently, the collateral attack

waiver in the plea agreement remains valid and the remainder of

his claims are procedurally barred.

B. Ground Four: Ineffective Assistance at Sentencing

Mr. Pantoliano argues that Mr. Katowitz, his fourth

attorney, provided ineffective assistance of counsel at

sentencing because he failed to bring Mr. Pantoliano’s case file

to court, preventing Mr. Pantoliano from presenting “mitigating

evidence” contained therein. (Pet. at 35.) This mitigating

evidence allegedly consisted of letters of support and the PSR,

which Mr. Pantoliano claims reflected that there were “no

injured parties,” a contention rejected above. His ineffective

assistance at sentencing claim is procedurally barred by the

collateral attack waiver in the plea agreement. Northover v.

United States, No. 11-CR-630 (KMK), 2019 WL 6173704, at *3

(S.D.N.Y. Nov. 19, 2019) (“[A] claim of ineffective assistance

is waived when it relates to counsel’s performance at the

sentence.”); United States v. Djelevic, 161 F.3d 104, 107 (2d

Cir. 1998) (“If we were to allow a claim of ineffective

assistance of counsel at sentencing as a means of circumventing

plain language in a waiver agreement, the waiver of appeal

provision would be rendered meaningless.”).

Even if not barred, Mr. Pantoliano’s claim lacks

merit. Mr. Pantoliano makes only the bare allegation that he

would have received a lower sentence had he presented the

evidence cited above and has not shown there was “a reasonable

probability that, but for [Mr. Katowitz’s alleged failure to

bring his case file to the sentencing proceeding], he would have

received a less severe sentence,” Gonzalez, 722 F.3d at 130 (2d

Cir. 2013). Indeed, Judge Johnson initially imposed a sentence

of 181 months, which he reduced to 125 months only to comply

with the plea agreement. Mr. Pantoliano presents no evidence

from which this court can conclude that there is any reasonable

possibility that Judge Johnson would have further reduced Mr.

Pantoliano’s sentence after reviewing the allegedly mitigating

evidence cited above.

Mr. Pantoliano further argues that his waiver of his

right to counsel at sentencing was unconstitutional pursuant to

Faretta v. California, 422 U.S. 806 (1975) because it was not

“knowing and voluntary.” Any Faretta argument is barred both by

the collateral attack waiver, and because Mr. Pantoliano failed

to raise it on direct appeal and shows no cause for his failure

to do so do. Zhang v. United States, 506 F.3d 162, 166 (2d Cir.

2007) (“[A] claim may not be presented in a habeas petition

where the petitioner failed to properly raise the claim on

direct review.”); Marone v. United States, 10 F.3d 65, 67 (2d

Cir. 1993) (“[T]o raise a claim that could have been raised on

direct appeal, a § 2255 petitioner must show cause for failing

to raise the claim at the appropriate time and prejudice from

the alleged error.”); United States v. Miller, No. 92-CR-91

(RJD), 2010 WL 1269796, at *24 (E.D.N.Y. Mar. 30, 2010)

(“[Petitioner’s Faretta] claim is procedurally barred from

consideration by this Court because it is entirely record-based

but was not raised on [his] direct appeal.”).8

C. Ground Two: Alleged Financial Interest

Mr. Pantoliano argues that his conviction and sentence

are unconstitutional because “Respondents,” without specifying

8 Even if not barred, Mr. Pantoliano would not likely prevail on his Faretta

claim. Before granting a defendant the opportunity to proceed pro se, the

district court “must ensure itself that the waiver of counsel is made

knowingly and intelligently, which depends upon the particular facts and

circumstances of the case and characteristics of the defendant.” United

States v. Hausa, 922 F.3d 129, 134 (2d Cir. 2019) (internal citations and

quotation marks omitted). Although Judge Johnson did not engage in a lengthy

colloquy with Mr. Pantoliano on the record, a court need not “resort to any

particular talismanic procedures in order to ensure that the defendant’s

Sixth Amendment rights are not violated,” so long as it “ensure[s] that the

defendant understood [1] that he had a choice between proceeding pro se [or]

with assigned counsel, . . . [2] understood the advantages of having one

trained in the law to represent him, and . . . [3] had the capacity to make

an intelligent choice.” United States v. Nina, 607 F. App’x 33, 36 (2d Cir.

2015) (internal citations and quotation marks omitted).

As the record reflects, Mr. Pantoliano’s actions demonstrated all elements

were satisfied: Judge Johnson repeatedly indicated to Mr. Pantoliano, as each

of his four attorneys was discharged at Mr. Pantoliano’s request, he could

continue with counsel or proceed pro se; Mr. Pantoliano sparred with his

various attorneys and sought to substitute his legal views for their own,

despite Judge Johnson’s indications that their performance was helpful; and

Judge Johnson found Mr. Pantoliano competent to plead guilty, and Mr.

Pantoliano rejected any attempts to secure a mental health evaluation

requested by his counsel. Moreover, Mr. Pantoliano’s routine creation of

conflicts with his attorneys, despite their performance, may be the

functional equivalent of knowing and voluntary waiver of his right to

counsel. See, e.g., United States v. Moore, 706 F.2d 538 (5th Cir. 1983)

(finding no violation where defendant dismissed four separate court-appointed

counsel following warnings similar to those here, despite no Faretta

warnings, because defendant’s “persistent, unreasonable demand for dismissal

of counsel and appointment of new counsel, as [therein] discussed, [was] the

functional equivalent of a knowing and voluntary waiver of counsel”); United

States v. Thomas, 357 F.3d 357, 362-63 (3d Cir. 2004) (affirming district

court’s finding that the defendant waived his right to counsel after having

been appointed four attorneys prior to trial, particularly since the

defendant engaged in dilatory conduct and generally abusive behavior toward

his lawyers, and was repeatedly warned that his refusal to cooperate with

defense counsel would result in a waiver of his right to counsel).

which of the many Respondents named in this action, had a

financial interest in his conviction. Like Mr. Pantoliano’s

Faretta claim, this argument is procedurally barred both by the

collateral attack waiver contained in his plea agreement and

because Mr. Pantoliano failed to raise the argument on direct

appeal. Zhang, 506 F.3d at 166; Marone, 10 F.3d at 67; Reed,

512 U.S. at 354 (1994).9

Even if not barred, this claim lacks merit. Mr.

Pantoliano’s alleged evidence comes in the form of citations to

two Committee on Uniform Securities Identification Procedures

(“CUSIP”) numbers – used to identify financial instruments,

including stocks of all registered U.S. and Canadian companies,

commercial paper, and U.S. government and municipal bonds, see

CUSIP Number, SEC’S & EXCH. COMM’N, https://www.sec.gov/answers/

cusip.htm (last accessed April 20, 2020) – which allegedly

pertain to financial instruments associated with Mr.

Pantoliano’s name and case numbers. (Pet. at 21-22.) Mr.

Pantoliano makes the conclusory assertion that “it appears from

the [the CUSIP numbers] that the coffers of the Respondent(s)

9 Mr. Pantoliano argues that he raised this argument on rehearing “as

information became available.” (See Pet. at 2, 6.) Mr. Pantoliano does not

specify when he reportedly first received this information, nor does raising

this argument on rehearing cure Mr. Pantoliano’s failure to raise this

question on direct appeal prior to rehearing. See United States v. Quiroz,

22 F.3d 489, 490 (2d Cir.1994) (argument raised for the first time on

petition for rehearing will be deemed waived).

have profited from [his] conviction.” (Id. at 22.) Even if

these instruments do exist and are related in some way to Mr.

Pantoliano and/or his case, Mr. Pantoliano draws no connection

between Respondents and these numbers. Nor did Mr. Pantoliano

pay any fine, forfeiture, or restitution in the underlying

criminal action. His arguments of a financial interest are

meritless and unsupported by competent evidence.

D. Ground Three: Lack of Subject Matter Jurisdiction

Mr. Pantoliano argues that his conviction and sentence

are unconstitutional, and asserts that the district court lacked

subject matter jurisdiction over his criminal action because the

locations where the crimes occurred, Brooklyn and Staten Island,

were not “ceded to the United States Government by virtue of the

Enclave Clause” of the U.S. Constitution, and were not “ceded to

the United States Government by virtue of the Property Clause.”

(Pet. at 7.) Mr. Pantoliano’s argument is barred by the waiver

in his plea agreement and because it was raised and considered

on direct appeal. See United States v. Perea, 129 F.3d 255, 260

(2d Cir. 1997) (“A § 2255 motion may not relitigate issues that

were raised and considered on direct appeal.”).

Even if not barred, Mr. Pantoliano’s jurisdictional

challenge is plainly without merit. Mr. Pantoliano pleaded

guilty to an indictment charging him with a federal crime.

Pursuant to the United States Constitution, this Court retains

jurisdiction over violations of federal law. U.S. Const. Art.

III, § 2 (“The judicial power shall extend to all cases, in law

and equity, arising under . . . the laws of the United

States.”). “Contrary to [Mr. Pantoliano’s] bald assertions,

Staten Island [and Brooklyn] [are] part of the State of New York

and the United States of America and lie[] within the federal

jurisdiction of the United States Court for the Eastern District

of New York.” Garaventa v. Holder, No. 12-CV-1741 (CBA), 2013

WL 878677, at *2 (E.D.N.Y. Mar. 8, 2013) (rejecting identical

argument); see also 28 U.S.C. § 112 (providing that Kings and

Richmond county fall within this district’s jurisdiction).

E. Ground Five: Johnson Claim

Mr. Pantoliano last argues that his § 924(c)

conviction must be vacated pursuant to Johnson because

conspiracy to commit Hobbs Act robbery does not qualify as a

crime of violence so as to sustain a § 924(c) charge. (ECF No.

24, Request for Leave to Amend.) Were Mr. Pantoliano sentenced

today, or had Mr. Pantoliano not waived his collateral attack

rights, he could prevail. See United States v. Davis, 139 S.

Ct. 2319, 2323-24 (2019); United States v. Barrett, 937 F.3d

126, 127 (2d Cir. 2019). Yet, Mr. Pantoliano’s claim is barred.

“[A] defendant’s ‘inability to foresee [a change in

the law] does not supply a basis for failing to enforce an

appeal waiver. On the contrary, the possibility of a favorable

change in the law after a plea is simply one of the risks that

accompanies pleas and plea agreements.’” United States v. Lee,

523 F.3d 104, 107 (2d Cir. 2008) (quoting United States v.

Morgan, 406 F.3d 135, 137 (2d Cir. 2005)). As a result, the

Second Circuit routinely denies collateral attacks based on

Johnson where a petitioner pleaded guilty and waived his right

to appeal or file a collateral attack. See, e.g., Sanford, 841

F.3d at 580 (rejecting collateral attack of sentence based on

Johnson because of an appeal waiver); Collier v. United States,

No. 10-CR-820 (NGG), 2019 WL 296767, at *5 (E.D.N.Y. Jan. 22,

2019) (enforcing collateral waiver to bar Johnson claim for §

924(c) charge); Northover, 2019 WL 6173704, at *4 (same). Mr.

Pantoliano’s procedurally barred claim meets the same fate.10

10 By letter dated March 2, 2017, Mr. Pantoliano moved to supplement his

petition to state a sixth ground for relief, prosecutorial and agent

misconduct before the grand jury. (ECF No. 36, Motion to Supplement.) Mr.

Pantoliano failed to present this argument on direct appeal and it is, thus,

procedurally barred. See, e.g. Feuer v. United States, No. 07-CR-975 (WHP),

2012 WL 1319872, at *2 (S.D.N.Y. Apr. 4, 2012). To the extent Mr. Pantoliano

seeks to avoid this bar by arguing that his claim relies on new evidence –

namely, the statements of one of the three cooperating witnesses that he

allegedly did not identify Mr. Pantoliano to the ATF Agent, thus rendering

the agent’s grand jury testimony perjurious – his argument is unavailing. As

an initial matter, Mr. Pantoliano proffers only hearsay statements in an

effort to contravene the agent’s sworn statements before the grand jury.

Even if a cooperating witness had made the statement, it does not affect the

testimony of the two other cooperating witnesses who the agent testified

identified Mr. Pantoliano, and Mr. Pantoliano presents no evidence that the

two cooperators did not testify to this effect. Furthermore, Mr. Pantoliano

pleaded guilty to the crimes charged, thereby “extinguish[ing] [his] ability

. . . to raise a claim regarding misconduct before a grand jury.” Alston v.

Ricks, No. 01-CV-9862 (GWG), 2003 WL 42144, at *7 (S.D.N.Y. Jan. 7, 2003);

see also Mayes v. Donnelly, No. 03-CV-417, 2009 WL 2601106, at *10 (W.D.N.Y.

Aug. 21, 2009) (collecting cases). As the proposed amendment would be

futile, Mr. Pantoliano’s request for leave to amend is denied. See, e.g.,

Conclusion

For the reasons stated above, Mr. Pantoliano’s § 2255

petition is DENIED in its entirety. Because Mr. Pantoliano has

not made a substantial showing of the denial of a constitutional

right, a certificate of appealability shall not issue. 28

U.S.C. § 2253(c); Miller-El v. Cockrell, 537 U.S. 322, 327

(2003) (discussing certificate of appealability standard); Rules

Governing Section 2254 and 2255 Cases, Rule 11 (“The district

court must issue or deny a certificate of appealability when it

enters a final order adverse to the applicant.”). The Clerk of

Court is respectfully directed to enter judgment in favor of

Respondent, and to close the case.11 The Government is

respectfully directed to serve Petitioner with a copy of this

Memorandum & Order and the Judgement at his last known address,

and to note service on the docket.

In addition, the court’s review of the docket revealed

that several filings contain the full name and/or pictures

and/or medical information regarding Mr. Pantoliano’s minor

child (ECF Nos. 1, 19, 37, 39). Pursuant to the E-Government

Act of 2002, and corresponding guidance adopted by this court,

Thaler v. United States, 706 F. Supp. 2d 361, 373 (S.D.N.Y. 2009) (denying

leave to amend habeas petition as futile).

11 Mr. Pantoliano’s motion for judgment on the pleadings (ECF No. 31), Mr.

Pantoliano’s motion to amend (ECF No. 36), and Mr. Pantoliano’s request for a

restraining order and preliminary injunction (ECF No. 46) are denied.

see https://img.nyed.uscourts.gov/files/local_rules/

egov2002-amd8204.pdf, filings should not include such

information. The Clerk of Court is, therefore, respectfully

directed to restrict access to the aforementioned docket entries

to case participants only, to protect the child’s privacy.

SO ORDERED.

Dated: May 4, 2020

/s/

Hon. Kiyo A. Matsumoto

United States District Judge