United States District Court, D. Massachusetts
MEMORANDUM & ORDER
NATHANIEL M. GORTON, District Judge.
In November, 2009, Frank Iacaboni ("Iacaboni" or "petitioner") was sentenced to 183 months in prison and 36 months of supervised release after being convicted of RICO conspiracy, arson, extortion and gambling offenses. Iacaboni contends that his lawyer rendered ineffective assistance during trial and moves to vacate his sentence pursuant to 28 U.S.C. § 2255. For the reasons that follow, petitioner's motion will be denied without an evidentiary hearing.
A. The wiretaps
Iacaboni's prosecution resulted from an investigation of an extensive illegal gambling operation by the Massachusetts State Police ("the MSP") in 2003. The MSP obtained orders to intercept telephone conversations of co-defendants Arthur Gianelli ("Gianelli"), the head of the group, and Dennis Albertelli ("Albertelli"), the second-in-command, between October 31, 2003 and mid-January, 2004.
The intercepted calls revealed that Gianelli and Albertelli were involved in a dispute with Mark Colangelo ("Colangelo") over ownership of the Big Dog Sports Bar in Lynnfield, Massachusetts. Gianelli and Albertelli intended to pressure Colangelo to settle on terms favorable to themselves by burning down Romeo's Pizza, Colangelo's pizza shop in North Reading, Massachusetts.
Based on a series of intercepted telephone calls between November 5, 2003 and November, 11, 2003 ("the arson calls"), the MSP concluded that Iacaboni was involved in the planning of the arson. Investigators learned through the arson calls that Iacaboni requested and secured a diagram of the building from Albertelli. The following day, Iacaboni indicated to Albertelli that he had recruited an arsonist and discussed with that man specific plans for burning the building.
On November 13, 2003, officers set up surveillance at Romeo's Pizza and arrested two men attempting to set fire to the building. The men had been recruited by co-defendant Deeb Homsi ("Homsi").
B. Subsequent arrest and jury trial
Iacaboni was arrested in January, 2005 and charged with all five counts in the initial indictment which named four co-defendants. At that point, the prosecution believed that Iacaboni had recruited Homsi, who in turn hired the two men to carry out the arson.
In September, 2006, Iacaboni was charged in nine of the 520 counts in the Second Superseding Indictment which named 13 co-defendants and four co-racketeers. The prosecution advanced a revised theory, alleging that Albertelli had recruited Homsi but also enlisted Iacaboni to provide an alternative to Homsi's crew, after which Iacaboni recruited a team of back-up arsonists to carry out the burning of Romeo's Pizza.
Following a seven-week jury trial in March and April, 2009, Iacaboni was convicted of eight counts, including RICO conspiracy, arson, extortion and gambling offenses. He was acquitted on the substantive RICO count.
C. Procedural History
Iacaboni appealed his conviction in November, 2009. In July, 2012, the First Circuit Court of Appeals affirmed his conviction and the United States Supreme Court subsequently denied Iacaboni's petition for writ of certiorari.
In May, 2014, Iacaboni timely moved for habeas relief under 28 U.S.C. § 2255. He claims that he received ineffective assistance of counsel because his retained trial lawyer, Thomas J. Butters ("Attorney Butters"), 1) failed to call petitioner to testify, 2) failed to consult and introduce testimony of an expert forensic linguist, 3) failed to sufficiently cross-examine the sergeant responsible for supervising the wiretap investigations and 4) failed to draft a limiting instruction to minimize spillover prejudice. Petitioner contends that but for those errors, he likely would have been acquitted on all eight counts.
A. Legal Standard
Section 2255 enables a prisoner in custody to move the court that imposed his sentence to vacate, set aside or correct the sentence if it was 1) imposed in violation of the Constitution or laws of the United States or by a court that lacked jurisdiction, 2) in excess of the maximum authorized by law or 3) otherwise subject to collateral attack. 28 U.S.C. § 2255(a); David v. United States , 134 F.3d 470, 474 (1st Cir. 1998). The petitioner bears the burden of establishing the need for relief in each of those circumstances. David , 134 F.3d at 474. To be entitled to relief under § 2255, the petitioner must present "exceptional circumstances" that make the need for redress "evident." Id . (citing Hill v. United States , 368 U.S. 424, 428 (1962)).
A § 2255 petition is procedurally defaulted and unreviewable on collateral attack when the petitioner has not presented the claim on direct appeal, lacks cause for failing to do so and suffered no "actual prejudice resulting from the error." Damon v. United States , 732 F.3d 1, 4 (1st Cir. 2013) (citing Bousley v. United States , 523 U.S. 614, 622 (1998)). Pleading constitutionally ineffective assistance of counsel is sufficient to excuse a procedural default. Prou v. United States , 199 F.3d 37, 47 (1st Cir. 1999).
To prevail on a claim of ineffective assistance of counsel under the Sixth Amendment, the petitioner must show that his representation by counsel 1) "fell below an objective standard of reasonableness" and 2) "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington , 466 U.S. 668, 687-88, 694 (1984). That test is formidable.
[J]udicial scrutiny of counsel's performance must be highly deferential [and] counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.
Id. at 689-90; see also Knight v. Spencer , 447 F.3d 6, 15 (1st Cir. 2006) (noting that petitioner must show that his "counsel's choice was so patently unreasonable that no competent ...