Pizarro v. United States

Background

Robert Pizarro was convicted by a jury of charges arising from the 2015 robbery and the 2016 kidnapping, robbery, and murder of Robert Bishun. He received two life sentences and additional consecutive sentences, resulting in an overall sentence of life plus 14 years. The Second Circuit denied his direct appeal in 2023.

Pizarro, representing himself, filed a motion under 28 U.S.C. § 2255, a federal procedure for asking the sentencing court to vacate, set aside, or correct a sentence. He also sought discovery, an evidentiary hearing, and relief under Federal Rule of Civil Procedure 60(b). The court appointed standby counsel, who informed the court that no additional briefing was necessary.

Leave to Amend

The court treated Pizarro’s Rule 60(b) motion as a request for leave to amend his § 2255 petition because the motion challenged his underlying conviction and Pizarro intended it to operate as a § 2255 motion. The court also treated his addendum as a second request to amend. It granted both requests for leave to amend and considered the strongest arguments raised across the filings.

Discovery and Evidentiary Hearing

Pizarro sought written questions for prosecutors, trial counsel, and appellate counsel. The court denied discovery because he did not show good cause. His requests relied on generalized allegations, speculation, information already available in the record, and questions that asked for legal conclusions rather than specific evidence likely to establish entitlement to relief.

The court also denied an evidentiary hearing. It found that Pizarro had not presented a plausible ineffective-assistance claim supported by disputed facts that, if proven, would entitle him to relief. The existing files and records instead showed that he was not entitled to relief.

Ineffective Assistance of Counsel

The court applied the two-part standard for ineffective assistance of counsel: Pizarro had to show both that his lawyers’ work fell below an objective standard of reasonableness and that there was a reasonable probability the result would have been different without the alleged errors.

The court rejected Pizarro’s challenges concerning witness investigation, cross-examination, and decisions not to call witnesses. It found that his allegations were often conclusory, that decisions about witnesses and questioning could be reasonable trial strategy, and that he did not identify favorable testimony or show prejudice.

The court also rejected his arguments concerning the Speedy Trial Act, finding that counsel had objected to some continuances, that any consent could have been tactical, and that the objections would not have changed the result. It found that counsel had sought relief concerning the government’s late disclosures and had presented the defense theory that Gabriel Guillen was the killer. The court further found that Pizarro had not shown that counsel failed to investigate or use missing or allegedly exculpatory evidence, including surveillance footage, police records, and zip-tie evidence.

The court rejected Pizarro’s challenges to the timing and structure of the indictment, the grand-jury proceedings, the court’s authority, the case caption, his competence to stand trial, and his decision not to testify. The record contradicted some allegations, and the remaining arguments either lacked legal merit or failed to show prejudice. The court also found that appellate counsel was not ineffective for omitting the additional arguments Pizarro identified.

Regarding the firearm conviction tied to the 2015 completed Hobbs Act robbery, the court stated that completed Hobbs Act robbery qualifies as a crime of violence under the applicable statutory provision. Regarding the firearm conviction tied to the 2016 attempted Hobbs Act robbery, the court recognized that the Supreme Court later held that attempted Hobbs Act robbery does not qualify as a crime of violence under that provision. But it found that appellate counsel acted reasonably because the controlling law when counsel filed the appeal supported the conviction, and vacating that count would not have changed Pizarro’s time in prison. The court alternatively declined to review that count under the concurrent-sentence doctrine because Pizarro was serving concurrent life sentences and the challenged count would not affect his custody or create meaningful additional consequences.

Actual-Innocence Claim

The court held that a freestanding claim of actual innocence is not a recognized basis for relief under current Supreme Court and Second Circuit authority. It alternatively rejected the claim on the merits, finding that Pizarro had not presented evidence meeting the extraordinarily high standard required to undermine his convictions in light of the physical and testimonial evidence described in the record.

The court likewise declined to decide whether the later rule concerning attempted Hobbs Act robbery applied retroactively to Pizarro’s firearm conviction because the concurrent-sentence doctrine meant that resolving the issue would not change his imprisonment or produce meaningful additional consequences.

Disposition

The court granted Pizarro’s motions for leave to amend his § 2255 petition. It denied his motion for discovery, motion for an evidentiary hearing, and motion to vacate his sentence. The court declined to issue a certificate of appealability and certified that an appeal would not be taken in good faith, so permission to appeal without paying filing fees was denied. The court directed the clerk to close the § 2255 case.