United States v. Choudhry (330 F. Supp. 3d 815, 2018)

HON. WILLIAM F. KUNTZ, II, UNITED STATES DISTRICT JUDGE

On July 3, 2014, a unanimous jury found petitioner/defendant Mohammad Ajmal Choudhry ("Petitioner") guilty of conspiracy to commit murder in a foreign country, fraud and misuse of a petition for an alien relative, and transmission of threats to injure. On May 7, 2015, this Court sentenced Petitioner to life imprisonment. Before the Court are (1) Petitioner's motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, and (2) Petitioner's petition to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. For the reasons that follow, both of Petitioner's motions are DENIED.

BACKGROUND

I. The Charges and Offense Conduct

On June 6, 2014, the United States filed a superseding indictment charging Petitioner with (1) conspiracy to commit murder in a foreign country, in violation of 18 U.S.C. §§ 956(a)(1) and 956(a)(2)(A) ; (2) fraud and misuse of petition for an alien relative, in violation of 18 U.S.C. § 1546(a) ; and (3) transmission of threats to injure, in violation of 18 U.S.C. § 875(c). Superseding Indictment (S-2), ECF No. 77. The charges were filed following Petitioner's arrest on February 25, 2013, in Brooklyn, New York, and stem from the murder of two individuals in Pakistan, Muhammad Asghar ("Asghar") and Madeeha Asghar ("Madeeha"), the father and sister, respectively, of Shujat Abbas ("Shujat"), the forbidden love interest of Petitioner's youngest daughter, Amina Ajmal ("Amina"). Gov't Memo in Opp. to Petitioner's Rule 33 Mot. and 2255 Pet. ("Gov't Opp.") at 3, ECF No. 136; Petitioner's Memo in Supp. of Rule 33 Mot. (" Rule 33 Mot.") at 1-2, ECF No. 124; Petitioner's Memo in Supp, of 2255 Pet. ("2255 Pet.") at 3-4, ECF No. 127.

Amina was born in 1990 in Chiryawala, Pakistan. Trial Transcript ("Tr.") at 435, ECF Nos. 94-98 & 102-04. In 1999, when she was nine years old, Amina moved to Brooklyn, New York, to live with her father. Id. at 435-37. She became a United States citizen in 2009. Id. at 453. In approximately 2001, Amina learned her father had arranged for her to marry Abrar Ahmed Babar ("Babar"), Amina's cousin who lived in Pakistan. Id. at 454. In approximately 2007, Amina met Shujat while visiting Pakistan to attend her sister's wedding, and she continued to communicate with him after returning to Brooklyn. Id. at 470-75. Amina kept her communications with Shujat a secret because she believed her father would not approve of her communicating with him. Id. at 475. In approximately 2008, Amina told her father she wanted to marry Shujat, not Babar, and Petitioner initially indicated that he would make arrangements for Amina to marry Shujat. Id. at 476-78, 481-82.

In December 2009, Amina traveled with Petitioner to Pakistan to attend her cousin's wedding. Id. at 481-82. When they were in Pakistan, Petitioner told Amina she was "too Americanized" and would remain in Pakistan for some time, and she lived in her family's home in Chiryawala while her father returned to the United States. Id. at 483-85. While she was living in Pakistan with her family, Amina's Uncle Akmal ("Akmal")-Petitioner's brother-learned Amina had been continuing to speak in secret with Shujat, and Akmal told her she must marry Babar. Id. at 485-500. When Amina refused, Akmal went to get a gun and threatened to kill her. Id. at 500-01. Petitioner also threatened Amina in telephone calls, stating "I don't want to hear any more complaints from you or about you, and I will kill you if you do anything wrong now." Id. at 502-03.

Amina learned of the date on which she was supposed to marry Babar two days before the "nikkah" ceremony. Id. at 513. When Amina expressed her desire not to marry Babar, Akmal threatened to kill her, and Akmal also told Amina her father had given him permission to kill her if she did not marry Babar. Id. 513-16. Amina went forward with the nikkah and eight months later had a wedding celebration and subsequently moved in with Babar's family in November 2012. Id. at 517-21. Amina was not allowed to return to the United States even after her wedding celebration was over. Id. at 543.

In January 2013, with the assistance of Shujat and the United States Consulate in Pakistan, Amina planned and executed an escape to the United States. Id. at 544-55. Once in the United States, Amina contacted law enforcement officials because, as Amina explained, "[m]y family was threatening Shujat's family, and I wanted them to prevent that." Id. at 558-59. Amina explained her act of leaving Pakistan "dishonored" her family. Id. at 557-58.

Amina's concerns regarding the safety of Shujat's family members were well-founded. In January 2013, Akmal fired a gun at Asghar and his wife, Rukhsana Kousar ("Rukhsana"), when they were in their car driving back to Chiryawala. Id. at 732, 737-41. Rukhsana testified she saw other members of Amina's family at the scene of the shooting, as well as Babar. Id. at 740-42. Rukhsana testified Akmal and Amina's other family members at the scene were holding firearms. Id. at 820-21. Asghar and Rukhsana were able to escape unharmed. Id. at 744-45. However, Amina's family members continued to threaten Shujat's family, including during a phone call between Asghar and an individual who Seemab Asghar ("Seemab"), Shujat's sister, and Rukhsana believed to be Petitioner. In that call, the individual they believed to be Petitioner told Asghar, "[i]f our daughter will not come back to the home, we will kill all five of you, otherwise we will find your son and we'll kill him .... This time, we shoot on your car. It was threatening, but next time we will shoot in the chest of all five of you." Id. at 128-30, 752-54.

On February 25, 2013, Asghar received a telephone call directing him to go to the home of a political leader. Id. at 770-71. Rukhsana testified that she went to meet Seemab after school at a bus stop, which is approximately a thirty-minute walk from her house, and arrived at the stop at around 1:35 P.M. Id. at 772. While Rukhsana and Seemab were walking home, they saw Asghar and Madeeha riding on a motorcycle driven by Zameer Abbas ("Zameer"), a relative who was living with their family at the time and driving them around, heading towards their home. Id. at 152-53, 223-24, 773-74. Seemab and Rukhsana testified they heard gunfire when they were approximately one block away from their home. Id. at 153-54, 774-75.

Rukhsana testified she and Seemab ran towards the area where they heard the gunfire, and upon arriving, "[she] saw that [her] husband's dead body was laying down." Id. at 776. She testified Madeeha's body was on the street surrounded by Akmal, Babar, Nisar (Babar's father), and Sain Ashfaq ("Ashfaq") (who worked for Mohammad Afzal Choudhry ("Afzal"), Petitioner's brother, and lived in his house). Id. at 57-58, 779. Rukhsana testified she saw other individuals at the scene, including Javed Iqbal (a relative of Petitioner, see, e.g., id. at 1293), Mazhar Iqbal (Javed's cousin, see, e.g., id. at 442), Ehsan Ullah, and Shahid Iqbal (Javed's brother). Id. at 781-82.

Rukhsana testified Akmal had a gun in his hand and he was hitting Madeeha's body with it, and the other men also had guns and were kicking Madeeha. Id. at 776-77, 780-81. Rukhsana testified that Akmal pointed his gun at her and Seemab and said, "they are here, don't let them go and they're here to cry."Id. at 776-77, 787. Rukhsana and Seemab then fled. Id. at 787.

Seemab similarly testified that on February 25, 2013, she met her mother at the bus stop after school at approximately 1:35 P.M., and she started to walk home with her mother when she saw her father and sister, Madeeha, on a motorbike. Id. at 149-52. Seemab testified that when they were close to home, they heard gunfire. Id. at 153. Seemab testified she and her mother, Rukhsana, ran towards the sound of the gunfire. Id. at 154-55. Seemab testified she saw "[her] father's dead body on the ground," and she saw Akmal, Nisar, Babar, and Ashfaq standing around her sister, whose body was on a drain. Id. at 157-58. She testified Madeeha's feet were shaking and Akmal, Nisar, Babar, and Ashfaq were kicking Madeeha's body. Id. at 159. Seemab testified that all four men had guns in their hands, and Akmal said, "[t]hey talk a lot against our family, now I'm taking revenge." Id. at 161. Seemab testified when the men saw her and her mother, they said, "don't let them go, kill them." Id. at 162. Seemab testified that she and her mother fled the scene. Id.

II. Additional Evidence Presented During Trial

In addition to the testimony described above, the jury heard other evidence implicating Petitioner in the murders of Asghar and Madeeha. Specifically, the Government introduced into evidence six recorded telephone calls between Amina and Petitioner, which were recorded by the Department of Homeland Security with Amina's consent between February 15, 2013 and February 25, 2013 (the day of the murders). Gov't Opp. at 10-14; Gov't Trial Exs. 101-106, collectively attached as Ex. C to Gov't Opp. ("Gov't Ex. C"), ECF No. 136-3. In those calls, Petitioner made a number of threats regarding Shujat's family. Among other statements, Petitioner said, "[u]ntil I find you [Amina] ... I won't stop ... I'm going to kill their whole family." Gov't Ex. C at 10 (ECF pagination). Petitioner also stated, "I will keep shooting at them, until you come back home ... I will kill myself and also make sure I kill all of them." Id. at 11. In the final call, recorded shortly after the killings on February 25, 2013, Petitioner denied being involved in the killings but also made statements appearing to inculpate himself in the murders; for example, in response to Amina's accusation that Petitioner was involved, Petitioner stated:

I am not going to spare anyone. I swore on your mother, but you didn't respect it. But I swear on my mother now and will keep that promise. I will not leave a single member of their family alive. My name is tainted everywhere in newspapers, on TV channels, that I am a man with no honor, my daughters are whores ... [PAUSE] I have no place to show my face with dignity ... [PAUSE] ... you still have time. Think about it. In the next 24 hours, call me, wherever you are. If you are close by, I will come pick you up. If you are far away, I will send you airfare. Come back home.

Id. at 51. Petitioner explicitly acknowledged having threatened Shujat's family, stating: "Oh, we have to threaten them ... in order to have them bring you back to us. There is no doubt we threatened them." Id. at 47.

Homeland Security agents also uncovered evidence that Petitioner had mailed a falsified immigration petition naming Amina as the petitioner and Babar as the beneficiary. Gov't Opp. at 14-15; Tr. at 296-97, 367-70. The immigration petition, dated December 1, 2012, was mailed from 817 Foster Avenue in Brooklyn, New York, which Amina testified is Petitioner's address. Tr. at 369, 542. The petition indicated Amina was living at 817 Foster Avenue when the petition was completed and sent to the government, but Amina testified she was living in Pakistan as of December 1, 2012. Id. at 370, 540. Amina also testified she did not complete any immigration paperwork for Babar while she was in Pakistan. Id. at 537.

The Government called Matthew Maguire from the U.S. Diplomatic Security Service of the Department of State as a witness. Id. at 921-22. He testified he took part in arresting Petitioner on February 25, 2013. Id. at 923. He testified that after Petitioner was read his rights, he initially asked to speak with a lawyer, but then Petitioner "began spontaneously speaking about the case." Id. at 933-36. Agent Maguire testified Petitioner made several statements, including (1) Petitioner was upset Amina had not returned to the family home in Brooklyn; (2) Petitioner filed the visa petition mentioned above; (3) Petitioner "may have said he would kill the boy, which [Agent Maguire] understood to mean Shujat Abbas"; and (4) Petitioner's brother Akmal "might have been at the scene of the murders in Pakistan earlier that day." Id. at 937-38.

The Government introduced additional evidence of Petitioner's phone, financial, and work records further implicating him in the murders. Gov't Opp. at 15-16. These records indicated that during the two days leading up to the January 2013 shooting incident described earlier, Petitioner's cell phone was in contact with Pakistani phone numbers identified as being used by "Ak," "Akmal," and "Javed." Id. at 15-16 (citing Tr. at 720, 1032-33). An employee of Western Union Financial Services Incorporated testified that on February 5, 2013, someone who presented himself as Mohammad Choudhry with an address of 817 Foster Avenue in Brooklyn, New York sent $900.00 to a person presenting himself as Mohammad Akmal, and the money was picked up the following day in Karachi, Pakistan. Tr. at 423. Homeland Security Investigations Special Agent Danny Lee testified that on February 24, 2013, at 10:09 P.M., Petitioner received a call from a Pakistani telephone number used by Nisar or Babar that lasted more than nine minutes, and between 10:32 P.M. on February 24, 2013, when Petitioner finished his shift as a taxi driver, and the corresponding time of approximately 2:30 P.M. in Pakistan on February 25, 2013-the approximate time of the murders, see, e.g., id. at 809-Petitioner made or received thirty-nine phone calls. Id. at 1046, 1048-49. Special Agent Lee testified that over the course of the hours leading up to and after the time of the murders, he identified Petitioner as having contact with several Pakistani numbers, including numbers of individuals identified as Nisar or Babar, AK, Javed, Mazhar, and Ashfaq. Id. at 1049-53.

The defense called three witnesses during trial. Rule 33 Mot. at 4; 2255 Pet. at 8-9. Waqas Ali, a policeman, testified that on February 25, 2013, he was working at the Chiryawala traffic "check post" when he was instructed to leave his post and rush to the location of the shooting. Tr. at 1306-08. He testified that upon arriving at the scene, he observed "a wounded man and a woman ... on the street, on the ground." Id. at 1309. He testified that pursuant to instructions from a supervising officer, he proceeded to pick up Seemab from a bus stop on her way home from school and brought her to the scene of the shooting. Id. at 1312-13. Another defense witness, Manzoor Ahmed ("Manzoor"), who operated a private van in which he drove students to and from nearby schools, testified that on February 25, 2013, he picked Seemab up from school in his van at approximately 2:00 P.M. Id. at 1272-75. He testified he received a phone call from a police officer on the way to Chiryawala who told him not to "hand over" Seemab to anyone, "[e]ven if somebody asks for [her]." Id. at 1275-77. Manzoor testified he arrived in Chiryawala at about 3:15 P.M. that afternoon and handed Seemab over to police officers, as he had been instructed to do. Id. at 1277, 1281-82.

Nazia Khanum ("Nazia"), a teacher from Chiryawala whose testimony was read into the record pursuant to Rule 15 of the Federal Rules of Criminal Procedure, id. at 1153-54, testified that on the afternoon of February 25, 2013, she was walking home when she saw Asghar, Madeeha, and Zameer riding aboard a motorcycle and soon thereafter heard gunfire. Id. at 1158-62. Nazia testified she looked in the direction of the gunfire and saw two men with guns and saw Asghar and Madeeha "on the floor." Id. at 1162-63. Nazia testified she did not see Rukhsana, Seemab, Akmal, or Nisar at the scene of the shooting, all of whom she knew. Id. at 1157-58, 1165-66. She testified the two men who did the shooting were "unknowns" and she "had never seen them in [her] life." Id. at 1166.

III. Conviction and Sentence

On July 3, 2014, a unanimous jury found Petitioner guilty on all three counts of the Superseding Indictment. Jury Verdict, ECF No. 93; July 3, 2014 Minute Entry. On May 7, 2015, this Court sentenced Petitioner to: (1) life imprisonment on Count One, conspiracy to commit murder in a foreign country in violation of 18 U.S.C. §§ 956(a)(1) and 956(a)(2)(A) ; (2) time served on Count Two, fraud and misuse of petition for an alien relative in violation of 18 U.S.C. § 1546(a) ; and (3) twenty-four months imprisonment on Count Three, transmission of threats to injure in violation of 18 U.S.C. § 875(c). Judgment, ECF No. 114.

IV. Direct Appeal

Petitioner appealed his conviction and sentence to the Second Circuit. See United States v. Choudhry , 649 F. App'x 60 (2d Cir. 2016) ; Notice of Appeal, ECF No. 116. On appeal, Petitioner made the following arguments: (1) he was denied a fair trial because of purported bias displayed by this Court and because certain exculpatory evidence was not introduced; (2) this Court erroneously overruled his hearsay objections; (3) this Court's jury instruction regarding the charge for transmission of a threat to injure was erroneous; (4) the evidence was insufficient as a matter of law to support Petitioner's convictions; and (5) this Court erred by giving an uncalled witness jury charge. Choudhry , 649 F. App'x at 60. On May 20, 2016, the Second Circuit rejected Petitioner's arguments and affirmed the judgment of this Court. Id. at 63.

V. Petitioner's Instant Motions

On June 30, 2017, Petitioner filed (1) a motion for a new trial based on newly discovered evidence pursuant to Federal Rule of Criminal Procedure 33, see ECF No. 122 (notice of motion); ECF No. 123 (supporting documents); ECF No. 124 (memorandum in support), and (2) a petition to vacate his sentence and conviction based on ineffective assistance of counsel pursuant to 28 U.S.C. § 2255, see ECF No. 125 (notice of motion); ECF No. 126 (supporting documents); ECF No. 127 (memorandum in support). On August 21, 2017, pursuant to this Court's July 5, 2017 Order to Show Cause, ECF No. 128, Frederick L. Sosinsky, Petitioner's trial counsel, filed a Declaration of Trial Counsel responding to the allegations of ineffective assistance of counsel. Sosinsky Decl., ECF No. 131-1. On December 18, 2017, the Government filed its memorandum in opposition to both of Petitioner's motions, which included the declaration of Ying Stafford ("Stafford Decl"), Petitioner's appellate counsel, attached thereto as Exhibit B. Gov't Opp., ECF No. 136. On February 15, 2018, Petitioner filed a reply memorandum and supporting documents in further support of both of his motions. Reply Memo, ECF No. 140.

In Petitioner's Rule 33 motion, Petitioner argues that newly-discovered evidence warrants a new trial. As described in detail infra and in Petitioner's motion, Petitioner argues this newly-discovered information consists of (1) "information disclosed at trials conducted in Pakistan in Fall 2014 (after Mr. Choudhry's U.S. trial had concluded), and in which persons accused of direct participation in the February 25, 2013 murder of Mohammad Asghar and Madeeha Asghar were acquitted of all charges," and (2) "a Declaration by Amina Ajmal, an important prosecution witness (and Mr. Choudhry's daughter), in which she identifies false testimony by vital prosecution witnesses Seemab Asghar and Rukhsana Kousar." Rule 33 Mot. at 4-5.

In Petitioner's § 2255 petition, Petitioner argues he was deprived of his Sixth Amendment right to the effective assistance of both trial and appellate counsel. 2255 Pet. at 1. Specifically, Petitioner argues his trial counsel was ineffective because trial counsel failed to (1) introduce certain exculpatory evidence; (2) object to inadmissible hearsay and other improper testimony; (3) adequately cross-examine certain Government witnesses; and (4) object to an erroneous jury charge with respect to Count Three. Id. Petitioner argues his appellate counsel was ineffective "because she failed to raise multiple meritorious issues and instead interposed numerous frivolous claims on appeal, failed to apply the proper legal standard to certain issues, and failed to file a Reply Brief." Id.

DISCUSSION

I. Rule 33 Motion

A. Legal Standard

Pursuant to Rule 33 of the Federal Rules of Criminal Procedure, "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). A motion for a new trial based on newly discovered evidence "must be filed within 3 years after the verdict or finding of guilty." Fed. R. Crim. P. 33(b)(1). "It is well settled that motions for new trials are not favored and should be granted only with great caution." United States v. Costello , 255 F.2d 876, 879 (2d Cir. 1958). "A district court must exercise 'great caution' in determining whether to grant a retrial on the ground of newly discovered evidence, and may grant the motion only 'in the most extraordinary circumstances .' " United States v. Imran , 964 F.2d 1313, 1318 (2d Cir. 1992) (quoting United States v. DiPaolo , 835 F.2d 46, 49 (2d Cir. 1987) ).

"Among other things, the defendant must show that the new evidence 'would probably lead to an acquittal.' " Id. (quoting United States v. Gilbert , 668 F.2d 94, 96 (2d Cir. 1981) ). "The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice." United States v. Ferguson , 246 F.3d 129, 134 (2d Cir. 2001) (citation omitted). "The defendant bears the burden of proving that he is entitled to a new trial under Rule 33, and before ordering a new trial pursuant to Rule 33, a district court must find that there is a real concern that an innocent person may have been convicted." United States v. McCourty , 562 F.3d 458, 475 (2d Cir. 2009) (quotation marks and citations omitted). The Second Circuit's standard for Rule 33 motions based on newly discovered evidence requires that: "(1) the evidence be newly discovered after trial; (2) facts are alleged from which the court can infer due diligence on the part of the movant to obtain the evidence; (3) the evidence is material; (4) the evidence is not merely cumulative or impeaching; and (5) the evidence would likely result in an acquittal." United States v. Owen , 500 F.3d 83, 88 (2d Cir. 2007) (citations omitted); United States v. Forbes , 790 F.3d 403, 406-07 (2d Cir. 2015) ; see also United States v. Gambino , 59 F.3d 353, 364 (2d Cir. 1995) ("Because motions for a new trial are disfavored in this Circuit the standard for granting such a motion is strict; that is, newly discovered evidence must be of a sort that could, if believed, change the verdict." (citation omitted) ).

B. The Alleged Newly Discovered Evidence

Petitioner describes two sources of alleged newly discovered evidence: (1) evidence from trials conducted in Pakistan in 2014, and (2) a declaration of Amina, who contacted Petitioner's counsel "to notify him of false testimony by vital prosecution witnesses Seemab Asghar and Rukhsana Kousar." Rule 33 Mot. at 9.

1. Evidence From 2014 Proceedings in Pakistan

Petitioner points to multiple pieces of evidence he alleges were discovered during proceedings in Pakistan that took place in the fall of 2014, after Petitioner's trial.

First , Petitioner directs the Court to a document titled "Report Zimni," which was allegedly prepared in connection with the trials of Akmal and Babar in Pakistan charging them with the murders of Asghar and Madeeha, and lists a "Date And Place Of Proceeding" of October 29, 2014. Rule 33 Mot. at 5; Ex. 1 ("Report Zimni") to the Decl. of Joshua Dratel in Supp. of Rule 33 Mot. ("Dratel Rule 33 Decl."), ECF No. 123-1. The report was prepared by Shahzad Ahmad, who is noted on the report as a "Sub-Inspector (S.I)/Investigating Officer." Rule 33 Mot. at 5; Report Zimni at 1. Petitioner argues that statements from multiple witnesses in that report "would have convincingly contradicted the testimony of both Seemab Asghar and Rukhsana Kousar, both of whom insisted that Muhammad Akmal and Abrar Ahmad Babar, among others, were present at and participated in the slayings." Rule 33 Mot. at 6-7 (footnote omitted).

Specifically, Petitioner points to paragraph five of the Report Zimni, which "states that seven different persons provided information that, contrary to the government's theory at trial here (and the testimony of the government's witnesses), neither Muhammad Akmal nor Abrar Ahmad Babar were at the scene of the killings, but in fact were elsewhere at the time they occurred." Id. at 5 (citing Report Zimni ¶ 5). According to the Report Zimni, those individuals are "Muhammad Afzal s/o Muhammad Ashraf, Amanat Ali s/o Sardar Khan, Abdul Aziz s/o Bahadar Khan, Ghulam Hussain s/o Allah Ditta, Abdul Khaliq s/o Fateh Muhammad, Muhammad Aslam s/o Rehmat Khan, [and] Azhar Iqbal s/o Faiz Alimad." Report Zimni ¶ 5. According to the Report Zimni, these individuals stated "at the time of [the] alleged occurrence," Akmal was at his cattle farm, and Babar "was present at Chak no. 115/EB, Arifwala." Id.

Regarding Babar's whereabouts at the time of the killings, Petitioner also points to paragraph seven of the Report Zimni, which states Babar "was gone to his uncle[']s home namely Fiaz Ahmed s/o Muhammad Khan on 16.01.2013 at Chak no. 115 E/B, Tehsil Arifwala, District Pakpatan, to look after his agricultural land and stayed there about 08 months." Id. ¶ 7; Rule 33 Mot. at 6. Paragraph seven lists the names of seven additional individuals who could allegedly verify Babar's whereabouts during this time. Report Zimni ¶ 7. Petitioner also directs the Court's attention to cell site information discussed in paragraph seven which, according to Petitioner, establishes "Mr. Babar's location hundreds of miles from the location of the incident." Rule 33 Mot. at 6 (citing Report Zimni ¶ 7).

Second , Petitioner argues "an October 2, 2014 [o]rder on a bail application made in the Pakistani courts by Muhammad Ashfaq, another person alleged by Ms. Asghar and Ms. Kousar to have been present at and participated in the killings, mentions that Mr. Ashfaq had been 'sent to judicial lock up for his trial.' " Id. at 7 (citing and quoting Ex. 2 to Dratel Rule 33 Decl., ECF No. 123-2). According to Petitioner, "[t]hat information - that Mr. Ashfaq had been denied bail pending trial - would have been extremely useful in countering the subtext of the government's claim that Mr. Choudhry's family was sufficiently powerful politically in Pakistan that any witnesses exculpating him or the others alleged to have been involved could not be trusted, and that his family controlled the investigation by authorities in Pakistan." Id. (citations omitted).

Third , Petitioner argues testimony related to a document prepared in connection with the Pakistani trial of Mazhar Iqbal, Ashfaq's co-defendant, "would have undermined Seemab Asghar's testimony at Mr. Choudhry's trial with respect to the location of her sister, Madeeha, in the street after she had been killed, and thereby have cast persuasive doubt on Seemab Asghar's account that she and her mother (Rukhsana Kousar) had come upon the bodies while their assailants were still present." Id. at 8 (citation omitted). The document in question, which Petitioner describes as a summary of the proceedings prepared by the presiding judge, allegedly discusses the testimony of the "draftsman who created the sketch of the location at which Ms. Asghar and his daughter were killed," and states in relevant part that there are drains on both sides of the street, not a drain in the middle of the street. Id. at 7 (citing Ex. 3 to Dratel Rule 33 Decl., ECF No. 123-3). Petitioner further argues that page ten of this document, which states in relevant part that Asghar "had his enmity with different people" and "[i]t is correct that Mohammad Afzal etc. have their political rivalry and enmity with influential persons," ECF No. 123-3 at 10 (ECF pagination), "would have corroborated the defense position that Mr. Asghar had multiple enemies, any of whom could have been responsible for his death, and would have also provided evidence that political rivalries in Pakistan could have accounted for the false accusations against Mr. Choudhry and other members of his family in Pakistan (all of whom were ultimately exonerated prior to trial or acquitted thereat)." Rule 33 Mot. at 8.

2. Amina's Declaration

Petitioner's counsel, Mr. Dratel, states Amina contacted him in April 2017 and "expressed a desire to speak to [him] about the case." Dratel Rule 33 Decl. ¶ 4, ECF No. 123; Rule 33 Mot. at 9. Mr. Dratel explains, according to Amina, "she reached out in order to notify [Mr. Dratel] of false testimony by vital prosecution witnesses Seemab Asghar and Rukhsana Kousar." Rule 33 Mot. at 9. Amina's declaration, dated June 28, 2017, is attached as Exhibit 4 to Mr. Dratel's declaration in support of Petitioner's Rule 33 motion. Amina Decl., Ex. 4 to Dratel Rule 33 Decl., ECF No. 123-4. Petitioner argues Amina's declaration supports his motion for a new trial in several ways.

Petitioner states "[a]ccording to Amina, and contrary to Seemab Asghar's testimony at trial ... Seemab Asghar did not take public transportation from school the afternoon of February 25, 2013" because "this would have been inappropriate for women in her family." Rule 33 Mot. at 9 (citing Amina Decl. ¶¶ 2-3). During trial, Seemab testified she typically "use[d] the local van, public transport" to get to school, Tr. at 139, and she took the public van home after school on February 25, 2013, id. at 150. Amina states in her declaration that "Seemab Asghar always took the bus driven by Manzoor Ahmed to and from school. My cousin, Aisha Akmal, has informed me that she rode that bus with Seemab Asghar every day." Amina Decl. ¶ 2.

Amina also claims she knows "from personal experience that Seemab Asghar's testimony about the time line the day of the killings was false." Id. ¶ 5. Specifically, Amina states in her declaration, "[a]ccording to the transcript, Seemab Asghar testified she got to the bus stop at around 1:30 p.m., that the shooting took place some minutes after 2:30 p.m., and that she was still on her way home at that time. However, it does not take an hour to walk from the bus stop to the village and her house. That walk is only about half an hour." Id. Petitioner argues this information "renders impossible Seemab Asghar's and Rukhsana Kousar's claim(s) that they arrived in time to see the shooters - a conclusion shared by the Pakistani judge's findings at Mazhar Iqbal's trial." Rule 33 Mot. at 10.

In addition, Petitioner argues information in Amina's declaration regarding an alleged land ownership dispute involving Asghar, Rukhsana's husband, "would have further impeached Ms. Kousar, and corroborated the defense position that Mr. Asghar was in danger from other sources who might have been responsible for the killings." Id. During trial, when asked during cross-examination whether her husband and family were "involved in a dispute over the ownership of certain land in the village," Rukhsana denied having any knowledge about the existence of a dispute, any police reports or court orders regarding the alleged dispute, and threats made to her in connection with the alleged dispute. Tr. at 833-34. In her declaration, Amina claims she has "heard Rukhsana Kousar talk about needing to repay creditors, and that Asghar did not have the money to build the family home in Pakistan, and therefore borrowed money to do so." Amina Decl. ¶ 6.

During trial, Amina was also asked about a rumor involving the daughter of Aslam, an individual who lived in Chiryawala, who allegedly ran away. Tr. at 565. Amina testified the rumor was "[t]hat she run away and she's been killed." Id. at 566. In Amina's declaration, Amina purports to clarify that the source of this rumor-specifically, that Aslam's daughter (one of Amina's cousins) was killed because she abandoned an arranged marriage in Pakistan-was Shujat, who "assured [Amina] she had been killed." Amina Decl. ¶ 7; Rule 33 Mot. at 10. Petitioner argues Shujat "had a rather considerable vested interest in scaring Amina away from her family." Rule 33 Mot. at 10.

C. Analysis

As discussed more fully infra , to the extent any of the evidence Petitioner raises in his Rule 33 motion actually constitutes newly discovered evidence, the evidence does not warrant a new trial when considered individually and in the aggregate. Petitioner fails to meet his heavy burden of demonstrating that its introduction would likely result in an acquittal, as the law requires. Owen , 500 F.3d at 87-88 ; Gilbert , 668 F.2d at 96 ("Most pertinently, the new evidence must be such that it would probably lead to an acquittal." (citations omitted) ). Given the overwhelming evidence of guilt presented during trial, this Court has no "real concern that an innocent person may have been convicted." Ferguson , 246 F.3d at 134 (citation omitted). There are no "extraordinary circumstances" present here such that "letting a guilty verdict stand would be a manifest injustice." Id. (citing and quoting United States v. Sanchez , 969 F.2d 1409, 1414 (2d Cir. 1992) ). Petitioner's emphasis on the Pakistani proceedings-which have no bearing on the outcome in this case-is misplaced, particularly considering the evidence and testimony presented during Petitioner's trial was not presented during the Pakistani proceedings. Accordingly, this Court will not disturb the jury's unanimous verdict. The Court addresses the evidence Petitioner raises in his motion in turn.

1. The Report Zimni

Petitioner argues the Report Zimni identifies seven witnesses who would testify that neither Akmal nor Babar were present at the scene of the killings of Asghar and Madeeha, and identifies seven other witnesses who could verify that Babar was staying with his uncle at the time of the killings. Rule 33 Mot. at 5-6; Reply Memo at 20-22. Petitioner also argues "cell site location evidence" described in the Report Zimni confirms that Babar was hundreds of miles away from the location of the killings. Rule 33 Mot. at 6; Reply Memo at 22-23.

With respect to the purported alibi witnesses identified in the Report Zimni, Petitioner fails to satisfy his burden of proving that the proffered testimony of these witnesses is newly discovered. The Second Circuit has "long held that in order to constitute newly discovered evidence, not only must the defendant show that the evidence was discovered after trial, but he must also demonstrate that the evidence could not with due diligence have been discovered before or during trial." Forbes , 790 F.3d at 408-09 (quotation marks and citation omitted); United States v. Natelli , 553 F.2d 5, 7 (2d Cir. 1977). Here, trial counsel's declaration reveals the defense team not only called several Pakistani witnesses at trial, but was aware of and considered calling additional alibi witnesses. Sosinsky Decl. at 4-6. Additionally, an April 3, 2013 defense letter regarding bail identified four alibi witnesses who provided the defense team with affidavits. ECF No. 126-16 at 8-9. Significantly, as Petitioner acknowledges, three of the witnesses identified in the Report Zimni were known to the defense team prior to trial. Rule 33 Mot. at 13 n.8. Petitioner's argument that this evidence was unavailable during trial because "the Pakistani investigation was ongoing and the trials did not occur until Fall 2014," id. at 12, is unavailing, particularly in light of the aforementioned documents demonstrating the defense team's awareness of potential alibi witnesses. In short, because Petitioner fails to show that he could not have identified the witnesses mentioned in the Report Zimni prior to or during trial with due diligence, the proffered testimony is not newly discovered evidence.

Moreover, even if the testimony of these witnesses were newly discovered within the meaning of Rule 33, it would be cumulative of other evidence the defense presented during trial. Evidence is cumulative if it "is simply additional evidence to that which was presented at trial as to a fact, [rather than] unique evidence that tends to prove a fact at issue." White , 972 F.2d at 21 (citation omitted). Petitioner contends that the testimony of the witnesses identified in the Report Zimni is not merely impeaching but "refutes the substance of the government's case, as it contradicts the government's version of the events themselves." Rule 33 Mot. at 16. However, as described supra , the defense team called three witnesses who contradicted the version of the events as described by Seemab and Rukhsana, whose testimony Petitioner argues "provided the prosecution's case with the essential links between Mr. Choudhry in Brooklyn and the events in Pakistan." Id. The testimony of these purported alibi witnesses, even assuming they are able to testify, would be cumulative because the proffered testimony is "simply additional evidence to that which was presented at trial." White , 972 F.2d at 21. Accordingly, the proffered testimony of the purported alibi witnesses identified in the Report Zimni does not constitute a basis to grant a new trial.

The cell site data regarding the location of Babar does not compel a different result. As an initial matter, Petitioner has not demonstrated this information is newly discovered. Petitioner fails to explain why this information was not available to Petitioner through the exercise of due diligence prior to or during trial. While it may be true that the Pakistani investigation and trials were ongoing during the time of Petitioner's trial, Petitioner fails to explain why this information could not have been discovered independently from the Pakistani proceedings. Even if it were newly discovered evidence, Petitioner fails to meet his burden of establishing it would likely have resulted in an acquittal. The cell site data pertains to a single co-conspirator, Babar, when the Government presented evidence that Babar was only one of several individuals involved in and present during the killings. Accordingly, the Report Zimni does not provide a basis for a new trial.

2. October 2, 2014 Bail Order

Petitioner's argument regarding Ashfaq's October 2, 2014 bail order made in the Pakistani courts, Ex. 2 to Dratel Rule 33 Decl. ("Bail Order"), ECF No. 123-2, is also unavailing. Petitioner contends the information contained in this document-that Ashfaq had initially been denied bail pending trial-would have undermined "the subtext of the government's claim that Mr. Choudhry's family was sufficiently powerful politically in Pakistan that any witnesses exculpating him or the others alleged to have been involved could not be trusted, and that his family controlled the investigation by authorities in Pakistan." Rule 33 Mot. at 7; see also Reply Memo at 25. As an initial matter, Petitioner fails to establish the document's admissibility, and newly discovered evidence is not material if it is inadmissible. United States v. Parker , 903 F.2d 91, 102 (2d Cir. 1990). Even if the document were deemed admissible, Petitioner fails to satisfy his burden of demonstrating it "would probably lead to an acquittal." Id. at 102 (quotations and citations omitted). At bottom, the Bail Order indicates one of Petitioner's co-conspirators was initially denied bail but subsequently released on bail. See Bail Order ¶ 6 (releasing Ashfaq on bail "subject to his furnishing bail bonds"). Notably, the Bail Order indicates the police initially made a "request for the discharge" of Ashfaq (which was denied), and also indicates his co-conspirators were released on bail. Id. Moreover, as Petitioner's trial counsel explained, "emphasizing to a jury that named perpetrators were imprisoned pretrial for crimes they were accused of committing hardly seemed the stuff a jury would look favorably upon." Sosinsky Decl.

at 8. Accordingly, the Bail Order does not warrant a new trial.

3. Judge Kharian's Summary from Mazhar Iqbal's Trial

As discussed supra , Petitioner points to two portions of a document that he claims was prepared by a Pakistani judge-Additional Sessions Judge Kharian-in connection with the trial of Mazhar Iqbal, Ashfaq's co-defendant. Rule 33 Mot. at 7-8 (citing Ex. 3 to Dratel Rule 33 Decl. at 3, 10, ECF No. 123-3). With respect to the summary of the testimony of Asif Akhter Naqash, the draftsman who created the sketch of the scene of the killings, Petitioner fails to show how this document, or testimony from the draftsman about the location of drains, contradicts Seemab's testimony regarding the location of Madeeha's body after the killings. Seemab testified that "[t]here was a drain close to the wall[, and Madeeha's] body was on the drain." Tr. at 158. Judge Kharian's summary of the draftsman's testimony-which states it is "incorrect that there is a drain in the middle of the street.... [T]here are two drains available on both side[s] of the street," Dratel Rule 33 Decl. Ex. 3 at 3 (ECF pagination)-does not contradict Seemab's testimony. Indeed, Seemab's testimony is consistent with Judge Kharian's summary, and Government's Trial Exhibit 806, which Seemab testified depicted her father's body in the street after the killings and which she used to indicate the location of her sister Madeeha's body in relation to her father's body, see Tr. at 166, also shows a drain on both sides of the street, see Ex. D to Gov't Opp., ECF No. 136-4. In short, proffered testimony that is consistent with the testimony presented during trial is neither material nor likely to result in an acquittal, and does not warrant a new trial.

Petitioner's arguments regarding Judge Kharian's statement that Asghar "had his enmity with different people," and "[i]t is correct that Mohammad Afzal etc. have their political rivalry and enmity with influential persons," Dratel Rule 33 Decl. Ex. 3 at 10 (ECF pagination), also miss the mark. While the summary prepared by Judge Kharian itself may not have been available until after Petitioner's trial, Petitioner fails to show that evidence of Asghar's hostilities and Afzal's political rivalries could not have been discovered with the exercise of due diligence prior to or during trial. In fact, Rukhsana was asked on cross-examination about a land dispute involving her husband and family, including whether she was aware of a police complaint, court order, and threats made to her concerning the land dispute. Tr. at 833-34; see also Sosinsky Decl. at 3 ("[T]he undersigned at trial questioned Rukhsana Kousar concerning this very issue [of the land dispute involving Asghar to show the possibility of an alternative perpetrator] and she disclaimed any knowledge of the dispute."). Moreover, in a recorded telephone call between Amina and Petitioner on February 25, 2013-the day of the killings-Petitioner stated, "[t]here are hundreds of people involved.... They blame us, it could be someone else." Gov't Ex. C at 45; see also Sosinsky Decl. at 3 ("On this issue of others with potential motives to do Asghar harm ... were statements made by Mr. Choudhry in the final recorded conversation he had with his daughter in which he told her a number of times that there were many others who would have wanted to do harm to Asghar, to whom he owed sums of money and who were falsely blaming her family for the murders."). Thus, neither evidence of Asghar's hostilities nor Petitioner's family's political rivalries constitutes newly discovered evidence.

Even if this evidence could be considered newly discovered, it still does not warrant a new trial. As just described, the possibility of an alternative perpetrator with a motive to harm Asghar was adequately explored during trial, and any additional evidence on this topic would be merely cumulative of evidence presented during trial. Furthermore, evidence of Petitioner's family's political rivalries is not material and not likely to result in an acquittal in light of the overwhelming evidence of Petitioner's guilt. Accordingly, this evidence does not warrant a new trial.

4. Amina's Declaration

As an initial matter, Petitioner argues the information Amina provides in her declaration was unavailable during trial, and therefore constitutes newly discovered evidence, because "Amina was a government witness to whom the defense, despite requests, did not have any access." Rule 33 Mot. at 13 (citation omitted). According to Petitioner, it was only from Amina's review of the trial transcripts that the information contained in her affidavit became available to Petitioner. Id. at 13-14. However, Petitioner has failed to offer any explanation as to why the information Amina provides in her declaration was not available during trial, either through cross-examination of Amina or through other sources. As described more fully infra , much of this information was presented to the jury during trial, further undermining any argument that it constitutes newly discovered evidence. Petitioner's trial counsel was free to ask Amina about any of the topics raised in her declaration, which contains various assertions regarding Seemab's mode of transportation to and from school, the length of time it takes to walk from Seemab's bus stop to her home, whether Asghar owed money to any creditors who may have had a motive to harm him, and a rumor regarding a relative who had allegedly been killed for abandoning an arranged marriage, among other items. Amina Decl. ¶¶ 2-7.

To the extent Petitioner argues the newly discovered evidence is Amina's assertion that Seemab and Rukhsana did not testify truthfully, her observations constitute impeachment evidence that is not material and does not warrant a new trial. "Evidence of impeachment is material if the witness whose testimony is attacked supplied the only evidence linking the defendant(s) to the crime, or where the likely impact on the witness's credibility would have undermined a critical element of the prosecution's case." United States v. Wong , 78 F.3d 73, 79 (2d Cir. 1996) (quotations and citations omitted). "However, new impeachment evidence is not material, and thus a new trial is not required when the suppressed impeachment evidence merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable." Id. (quotations and citations omitted); see also United States v. Orena , 145 F.3d 551, 559 (2d Cir. 1998) ("It is well settled that where ample ammunition exists to attack a witness's credibility, evidence that would provide an additional basis for doing so is ordinarily deemed cumulative and hence immaterial." (citations omitted) ).

During trial, Petitioner's trial counsel thoroughly challenged the credibility of Seemab and Rukhsana through cross-examination and through other witnesses and evidence. Addressing Petitioner's contention that he should have called certain additional witnesses, Petitioner's trial counsel explained the defense had called "three witnesses, none of them related to or having friendships with defendant's family, who collectively, if believed, established that Rukhsana's and Seemab's sworn claims to the jury about having been eyewitnesses to the slayings of Muhammad and Madeeha Asghar were false." Sosinsky Decl. at 4; see also id. at 5 ("[T]he defense also introduced a translated police report from the date of the murders which placed both Rukhsana and Seemab at a different location from that at which they claimed to have observed the shootings. Thus, through the unbiased and independent witnesses we had presented, the jury had before it evidence which, combined with what we argued was an implausible story about what transpired immediately after the shooting, allowed them to conclude that they had not heard the truth from the Government's witnesses about that date."); United States v. Middlemiss , 217 F.3d 112, 122-23 (2d Cir. 2000) (district court did not abuse discretion in denying Rule 33 motion in part because the claimed newly discovered evidence was "additional impeachment evidence"). Furthermore, Seemab and Asghar did not provide the only evidence of Petitioner's guilt. As described in detail, the Government presented additional, overwhelming evidence of Petitioner's guilt. Accordingly, Amina's assertions regarding alleged false testimony are immaterial and do not warrant a new trial.

The information itself in Amina's declaration is cumulative of other evidence presented during trial and is immaterial. With regard to Amina's statements concerning Seemab's transportation to and from school, as noted previously, Petitioner called Manzoor Ahmed as a witness, who testified that in 2012 and 2013, including on February 25, 2013, he drove a private van which he used to transport Seemab, among other students, to and from school. Tr. at 1265-75. Amina's observation that Seemab "would not take public transportation" and Seemab "always took the bus driven by Manzoor Ahmed to and from school," Amina Decl. ¶¶ 2-3, is thus cumulative of evidence presented to the jury during trial. Moreover, Amina's assertion that she does, in fact, know Manzoor, and that "[t]here are many people named Manzoor in Pakistan," Amina Decl. ¶ 4, is immaterial.

Similarly, Amina's assertion that Seemab's version of the timeline of events on the day of the murders could not be true, Amina Decl. ¶ 5, was thoroughly explored during trial. Seemab testified it takes "around half an hour" to walk from the location of the bus stop to home, she arrived at the bus stop on February 25, 2013 at approximately 1:35 P.M., and the murders occurred at approximately 2:30 P.M. Tr. at 193, 198-200, 204. Petitioner's trial counsel cross-examined Seemab regarding her recollection of the timeline of events. See, e.g., id. at 193-204. Indeed, as this Court noted during the cross-examination, "[i]t's clear what the testimony is and what the testimony was. [Seemab] said it was approximately 1:30. It took her somewhere between 20, 30 minutes to walk." Id. at 203. Accordingly, additional evidence on this point would be cumulative.

Amina asserts in her declaration that Rukhsana "lied" when she testified regarding any debts owed by Asghar to creditors. Amina Decl. ¶ 6. As a preliminary matter, to the extent Petitioner seeks to use Amina's statement regarding what she heard Rukhsana allegedly say to show the possibility of an alternative perpetrator-which Petitioner acknowledges, Reply Memo at 26-it is hearsay, and therefore inadmissible and immaterial. On that basis alone, it does not warrant a new trial. Even if this statement were admissible, and even if Asghar did owe money to creditors, this evidence is immaterial in light of the overwhelming evidence of Petitioner's guilt. The fact that Asghar may have owed money to creditors is simply not a basis to grant a new trial, particularly given that the theory of an alternative perpetrator was already before the jury.

Indeed, trial counsel thoroughly cross-examined Rukhsana regarding an alleged land dispute and threats related to that dispute. Tr. at 833-34; Sosinsky Decl. at 3. Trial counsel showed Rukhsana a document concerning the topic of "the dispute over land and threats and guns that are contained within the document" in an attempt to refresh her recollection, which it did not. Tr. at 837, 840; see Sosinsky Decl. at 3 ("The fact is that the undersigned at trial questioned Rukhsana Kousar concerning this very issue and she disclaimed any knowledge of the dispute, even, as I recall, after being shown a copy of the very documents in question."). Notably, Petitioner's argument that this information "would have further impeached Ms. Kousar," Rule 33 Mot. at 10, is itself an acknowledgment that Rukhsana's credibility was already impeached-indeed, as discussed supra , Petitioner's trial counsel offered ample evidence to impeach Rukhsana's credibility during trial, and Amina's statement would be merely "an additional basis for doing so" and therefore "cumulative and hence immaterial." Orena , 145 F.3d at 559. Thus, this evidence is immaterial when used as either substantive or impeachment evidence, even assuming it is admissible.

The final issues Amina raises in her declaration regarding the source of a rumor about a relative who had allegedly been killed for abandoning an arranged marriage, the conduct of government agents during Amina's consensually recorded calls with Petitioner, and Amina's intentions regarding returning to her family's home in Brooklyn, Amina Decl. ¶¶ 7-9, are all immaterial and do not warrant a new trial. They do not, in any conceivable way, establish that their introduction to the jury would probably have led to an acquittal.

When considering a Rule 33 motion for a new trial, "[t]he controlling issue generally is the effect the evidence would have on the jury's verdict if it had been submitted at trial." Middlemiss , 217 F.3d at 122 (citation omitted). Indeed, "[g]ranting Rule 33 motions is not favored and is done with great caution." Id. (citation omitted). At bottom, Amina's affidavit fails to raise any issue that, if presented to the jury, would likely have resulted in an acquittal, and Petitioner therefore fails to meet his "ultimate burden." DiMattina v. United States , 949 F.Supp.2d 387, 397 (E.D.N.Y. 2013) (Weinstein, J.) (citing Owen , 500 F.3d at 88 ). Moreover, in the judgment of this Court, it does not raise "a real concern that an innocent person may have been convicted." Ferguson , 246 F.3d at 134 (citation omitted). Accordingly, because neither Amina's affidavit nor any of the other alleged newly discovered information would likely have resulted in an acquittal, Petitioner's motion for a new trial is denied.

II. Petition Pursuant to 28 U.S.C. § 2255

A. Legal Standard

Pursuant to Title 28, section 2255, a prisoner who is in federal custody may move the court that imposed the sentence to vacate, set aside, or correct the sentence "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." 28 U.S.C. § 2255(a). " Section 2255 provides a mechanism for federal prisoners to vacate sentences imposed in violation of the laws or Constitution of the United States."

Hardy v. United States , 878 F.2d 94, 96 (2d Cir. 1989). Although usually collateral review will not be afforded to claims a petitioner has failed to properly raise on direct review unless the petitioner can show good cause or actual innocence, that rule does not apply to claims for ineffective assistance of counsel, which "may appropriately be raised for the first time in a § 2255 motion, whether or not the petitioner could have raised the claim on direct appeal." Harrington v. United States , 689 F.3d 124, 129 (2d Cir. 2012) (quotation marks and citations omitted).

In Strickland v. Washington , the U.S. Supreme Court set forth the relevant law governing claims for ineffective assistance of counsel. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on a claim for ineffective assistance of counsel, a petitioner must satisfy Strickland 's two part test, which requires demonstrating (1) that counsel's performance was deficient, i.e. , "that counsel's representation fell below an objective standard of reasonableness," and (2) that counsel's deficient performance prejudiced the defense, meaning that "counsel's errors were so serious as to deprive the defendant of a fair trial." Id. at 687-88, 104 S.Ct. 2052 ; Bennett v. United States , 663 F.3d 71, 84 (2d Cir. 2011) ("[I]n order to prevail on an ineffective-assistance-of-counsel claim, a defendant must meet a two-pronged test: (1) he must show that counsel's performance was deficient, so deficient that, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance, and (2) he must show that the deficient performance prejudiced the defense, in the sense that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (quotation marks omitted) (citing Strickland , 466 U.S. at 687, 690, 694 ) ). " Strickland 's standard, although by no means insurmountable, is highly demanding." Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). The defendant bears the burden of proof on both prongs, id. at 381, 106 S.Ct. 2574, and the court must consider counsel's alleged errors in the aggregate, see Lindstadt v. Keane , 239 F.3d 191, 199 (2d Cir. 2001).

Under the first prong of Strickland , "[j]udicial scrutiny of counsel's performance must be highly deferential.... [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland , 466 U.S. at 689, 104 S.Ct. 2052 (quotation marks and citation omitted). "The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential." Kimmelman , 477 U.S. at 381, 106 S.Ct. 2574. Under the second prong, to show prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law." Strickland , 466 U.S. at 694, 104 S.Ct. 2052. "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. 2052.

A claim for ineffective assistance of counsel "must be rejected if the defendant fails to meet either the performance prong or the prejudice prong." Bennett , 663 F.3d at 85 (citations omitted). "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Strickland , 466 U.S. at 697, 104 S.Ct. 2052 ; see Brown v. Artuz , 124 F.3d 73, 80 (2d Cir. 1997) (declining to remand to the district court because, even if the petitioner raised an issue on the performance prong, the petitioner failed to establish prejudice under the second Strickland prong); Strouse v. Leonardo , 928 F.2d 548, 556 (2d Cir. 1991) ("[The petitioner] points to several instances in his trial where he asserts his lawyer's performance was objectively unreasonable. We need not address these alleged deficiencies because we conclude that [the petitioner] cannot satisfy the second prejudice prong of Strickland , given the overwhelming evidence of guilt adduced at trial.").

B. Analysis

As set forth in detail below, Petitioner has not met his high burden of establishing he received the ineffective assistance of trial or appellate counsel. Even when counsel's alleged errors are considered in the aggregate, Petitioner fails to establish deficient performance of either trial or appellate counsel, nor can Petitioner establish prejudice given the overwhelming evidence of his guilt. See Strouse , 928 F.2d at 556 ; United States v. Hurtado , 47 F.3d 577, 584 (2d Cir. 1995) ("[T]he evidence of [appellant's] guilt was overwhelmi