OPINION & ORDER This decision resolves a pro se motion by defendant Carlos Lopez, pursuant to 28 U.S.C. §2255, for relief based on ineffective assistance of counsel from the 14 counts of conviction entered against him following a 12-week jury trial in fall 2014. I. Background A. Indictment, Trial, Sentencing, and Appeal As brief background,1 Indictment S5 11 Cr. 1028 (PAE), along with associated superseding indictments, charged approximately 76 defendants with racketeering, racketeering conspiracy, murder in aid of racketeering, narcotics conspiracy, and related offenses in connection with their membership in, or affiliation with, the Bronx Trinitarios Gang (“BTG”), a northwest Bronx gang that engaged in drug trafficking and numerous murders, attempted murders, stabbings, and other acts of violence. More than 70 defendants pled guilty. The remaining five were tried in two lengthy jury trials. The first was a two-defendant, eight-week trial that begin in March 2014. It centered on a single murder committed by BTG members in Yonkers in 2005. The second was a threedefendant, 12-week trial of Lopez and two others — Felix Lopez-Cabrera, who is Lopez’s halfbrother, and Luis Beltran — that began in September 2014. The trial centered on five murders committed by BTG members. Lopez was alleged to have participated in three. These were: (1) and (2), the May 22, 2010 shotgun double-murder of Raffy Taveras and Irving Cruz, members of a rival gang, whom Lopez and Lopez-Cabrera chased down an entire Bronx street while Lopez-Cabrera shot them each fatally in the back; and (3) the November 20, 2010 murder of Freddy Polanco, who had allegedly disrespected the BTG sect (“the Bad Boys”) with which Lopez affiliated, and whom Lopez and a fellow BTG member, seeking revenge, stalked and cornered in the lobby of a Bronx building, with Lopez’s confederate firing the fatal shots. The Government’s proof included 54 witnesses, including 11 cooperating witnesses from BTG, who testified to the murders, acts of violence, and other crimes the defendants had committed. It also included 601 exhibits, including security-camera footage of the Taveras-Cruz double-murder that captured images of Lopez and Lopez-Cabrera chasing the victims and fleeing the scene; crime-scene photographs, ballistics, and other physical evidence; numerous Title III wiretap interceptions; controlled substances, firearms, and machetes seized from BTG members, including machetes recovered from the homes of Lopez and Lopez-Cabrera; and internal gang documents setting forth BTG’s norms and rules. On December 3, 2014, the jury convicted Lopez on all charges against him. These were participating in a racketeering organization, in violation of 18 U.S.C. §1962(c); conspiracy to do the same, in violation of 18 U.S.C. §1962(d); three counts of murder in aid of racketeering, in violation of 18 U.S.C. §1959(a)(1); two counts of conspiracy to commit the same, in violation of 18 U.S.C. §1959(a)(5); assault and attempted murder in aid of racketeering, in violation of 18 U.S.C. §1959(a)(3) and (a)(5); conspiracy to distribute and possess with intent to distribute narcotics, in violation of 21 U.S.C. §846; three counts of discharging a firearm in furtherance of a crime of violence, causing death, in violation of 18 U.S.C. §924(j)(1); discharging a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §924(C)(1)(A)(iii); and discharging a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §924(c)(1)(A)(iii) and (c)(1)(C)(i). See Dkt. 1417 (jury’s verdict form). Save for the substantive racketeering charge against Beltran, Lopez-Cabrera and Beltran were convicted of all charges against them, which included four counts of murder in aid of racketeering for Lopez-Cabrera and one for Beltran. Id. On May 22, 2015, the three defendants jointly moved to challenge as unconstitutional the mandatory life sentences required by the murder in aid of racketeering statute. Noting that each had been between ages 18 and 22 at the time of the murders at issue, each argued that mandating a life term to a defendant of such an age violated the Eighth Amendment. Dkt. 1698 (sentencing submission by Lopez). In a written decision issued June 22, 2015, the Court denied that motion, based on binding case authority finding mandatory life sentences unconstitutional for juveniles, defined as persons under age 18 at the time of their offenses. See generally Dkt. 1726 (citing, inter alia, Miller v. Alabama, 132 S. Ct. 2455 (2012); and Roper v. Simmons, 543 U.S. 574 (2005)). On July 7, 2015, the Court sentenced Lopez to three mandatory life sentences, to be followed by 420 months’ imprisonment, and imposed a five-year period of supervised release. See Dkt. 1739 (judgment); Dkt. 1754 (transcript of Lopez sentencing). On July 10, 2015, Lopez filed a timely notice of appeal. Dkt. 1741. Lopez’s appeal raised issues relating to his sentence: (1) whether a mandatory life sentence for him on the murder in aid of racketeering accounts violated the Eighth Amendment, in light of Lopez’s age at the time of the murders and the fact that he had been an accomplice (not the shooter) in the Taveras, Cruz, and Polanco murders; and (2) if so, whether, in imposing the life sentences, the Court had erred in not considering factors relating to Lopez’s history and personal characteristics. See United States v. Sierra, 933 F.3d 95, 97-99 (2d Cir. 2019). On August 1, 2019, the Second Circuit denied Lopez’s appeal and affirmed this Court’s judgment. Id. at 99. Thereafter, Lopez joined a petition for a writ of certiorari submitted by Beltran. On March 23, 2020, the Supreme Court denied the petition for a writ of certiorari. Beltran v. United States, 140 S. Ct. 2540 (2020) (mem.). B. Lopez’s §2255 Motion Lopez’s instant pro se motion pursuant to 28 U.S.C. §2255, dated March 18, 2021, was filed March 26, 2021, upon its receipt. Dkt. 2607 (“Motion”). It argues that, in five respects, his counsel (trial and appellate) were ineffective.2 On October 3, 2021, the Government filed its opposition. Opp. Despite extending Lopez’s deadline to reply several times, including to February 15, 2022, see Dkt. 2655; see also Dkt. 2648, Lopez did not file a reply, although he did, in November 2022, submit a letter seeking copies of certain case documents. See Dkt. 2671 (letter of November 18, 2022, docketed December 1, 2022); Dkt. 2673 (order of December 6, 2022, granting this request). II. Discussion Lopez’s pro se §2255 motion3 argues that his trial counsel rendered ineffective assistance, based on counsel’s not having objected at trial to two of the Court’s legal instructions to the jury, not having objected at sentencing to an aspect of the presentence report, and not having moved for a judgment of acquittal on a firearms count. Lopez also faults his appellate counsel, for not challenging several of these ostensible errors on appeal, and for failing to challenge the firearms counts under United States v. Davis, 139 S. Ct. 2319 (2019). Section 2255 enables a prisoner who was sentenced by a federal court to petition that court to vacate, set aside, or correct the sentence because “the sentence was imposed in violation of the Constitution or laws of the United States…or is otherwise subject to collateral attack.” 28 U.S.C. §2255(a). Relief under §2255 is generally available “only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes ‘a fundamental defect which inherently results in a complete miscarriage of justice.’” United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). “Because collateral challenges are in tension with society’s strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack.” Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010) (citation omitted). A claim of ineffective assistance of counsel, however, is a permissible basis for bringing a §2255 petition. The Sixth Amendment affords a defendant in criminal proceedings the right “to effective assistance from his attorney at all critical stages in the proceedings.” Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir. 2013). A defendant claiming ineffective assistance must establish that (1) his “counsel’s performance was deficient” and (2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). As for Strickland’s first prong, a court “must judge [counsel's] conduct on the basis of the facts of the particular case, ‘viewed as of the time of counsel’s conduct,’ and may not use hindsight to second-guess his strategy choices.” Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (quoting Strickland, 466 U.S. at 690). A court is to start from the “strong presumption” that counsel’s conduct fell “within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. That is because there are many ways to provide effective assistance, and “[e]ven the best criminal defense attorneys would not defend a particular client in the same way.” Id. at 689-90; see id. at 689 (“Judicial scrutiny of counsel’s performance must be highly deferential.”); see Rivas v. Fischer, 780 F.3d 529, 547 (2d Cir. 2015). As for Strickland’s second prong, proving prejudice requires a defendant to show that but for counsel’s errors, there was a reasonable probability that the outcome would have been different — a “probability sufficient to undermine confidence in the outcome.” Bierenbaum v. Graham, 607 F.3d 36, 51 (2d Cir. 2010) (quoting Strickland, 466 U.S. at 694). This requires the court to examine “whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (citation omitted). “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). Thus, for a §2255 petitioner to obtain a hearing, “the motion must set forth specific facts supported by competent evidence, raising detailed and controverted issues of fact that, if proved at a hearing, would entitle him to relief.” Id. at 131 (citing Machibroda v. United States, 368 U.S. 487, 494 (1962)). Measured against these standards, Lopez’s ineffective assistance claim is quickly put aside. His challenges to specific decisions by his trial and appellate counsel are each baseless, for the reasons ably recited in the Government’s opposition brief and as addressed below. Most fundamentally, when viewed in totality, the performance of his estimable and dedicated trial counsel (Susan Kellman, Esq., assisted by Ezra Spilke, Esq.), who also represented Lopez on appeal, was light-years from being ineffective. Quite the contrary, as the lengthy trial transcript reflects throughout, counsel’s performance was formidable. Counsel put the Government’s case to its proof at every turn and adeptly and energetically engaged the jury during arguments and examinations. Simply put, the across-the-board guilty verdict as to Lopez reflected not any lapse by counsel, but the overwhelming proof of his guilt. For that separate reason, even if trial or appellate counsel’s overall performance were open to valid critique, which they are not, there was no conceivable prejudice to Lopez. The evidence of Lopez’s guilt was vast, compelling, and variegated, including in connection with the three retaliatory murders in which Lopez participated. And Lopez, revealingly, does not take issue with the performance of his counsel in connection with the receipt of, or argumentation about, the evidence. As to Lopez’s distinct critiques: Failing to object to lack of notice as to an aiding and abetting charge: Lopez first claims that he received late notice that the Government would pursue a theory of aiding and abetting liability on various substantive counts and that his trial and appellate counsel failed to challenge the inadequate notice. That critique is demonstrably off-base. The superseding indictment on which the charges at trial rested, S5 11 Cr. 1032 (PAE), was returned February 6, 2013. See Dkt. 539 (“Superseding Indictment”). In connection with each count that Lopez identifies, it explicitly charged Lopez with aiding and abetting. It did so by reciting both the substantive statutes at issue and, alongside each, 18 U.S.C. §2, which provides, as relevant here, that any person who “aids” or “abets” a principal in committing a substantive offense against the United States is punishable as a principal. Central here, these counts included the three charging Lopez with murder in aid of racketeering: one as to Taveras, one as to Cruz, and one as to Polanco. See id.
