govinfo:USCOURTS-nynd-1_21-cr-00343-0

1 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF NEW YORK 
_______________________________________________ 
 
UNITED STATES OF AMERICA, 
 
vs. 1:21-CR-343 
 (MAD) 
RICHARD SINDE, 
 
 Defendant/Petitioner. 
_______________________________________________ 
 
APPEARANCES: OF COUNSEL: 
 
OFFICE OF THE UNITED DUSTIN SEGOVIA, AUSA 
STATES ATTORNEY 
James T. Foley U.S. Courthouse 
445 Broadway 
Albany, New York 12207 
Attorney for the Government 
 
RICHARD SINDE 
33454-054 
CANAAN 
U.S. Penitentiary 
Inmate Mail/Parcels 
P.O. BOX 300 
Waymart, Pennsylvania 18472 
Defendant/Petitioner, pro se 
 
Mae A. D'Agostino, U.S. District Judge: 
 
MEMORANDUM-DECISION AND ORDER 
I. INTRODUCTION 
 On April 2, 2021, a criminal complaint was filed against Robert Ingrao, alleging one count 
of possession with intent to distribute five or more grams of cocaine in violation of 21 U.S.C. § 
841(a)(1). See Dkt. No. 1. On September 28, 2021, the Government returned a two-count 
indictment against Ingrao and Richard Sinde ("Petitioner"). See Dkt. No. 17. The indictment 

 
 
2 
charged Ingrao and Petitioner with one count of conspiracy to distribute cocaine in violation of 21 
U.S.C § 841(b)(1)(A) and one count of possession with intent to distribute five or more grams of 
cocaine in violation of 21 U.S.C. § 841(a)(1). See id. Petitioner entered a not guilty plea, and 
following a detention hearing, was released under the supervision of probation. See Text Minute 
Entry 10/15/2021; Dkt. No. 23. A superseding indictment was filed on December 14, 2021, 
charging Petitioner, Ingrao, and Christopher Kelly for the same two charges as alleged in the 
initial indictment. See Dkt. No. 34. Defendant Kelly pled guilty to both counts of the first 
superseding indictment on May 3, 2022. See Dkt. No. 53; Text Minute Entry 05/03/2022. A 
second superseding indictment was then filed on May 24, 2022, naming two additional 
Defendants, Jeffrey C. Civitello, Sr. ("Civitello Sr.") and Jeffrey C. Civitello, Jr. ("Civitello Jr."). 
See Dkt. No. 55. The second superseding indictment also added a third charge, alleging 
possession with intent to distribute 500 grams or more of cocaine. See id. Defendant Ingrao pled 
guilty to two of the three counts of the second superseding indictment on November 21, 2022. 
See Dkt. No. 106; Text Minute Entry 11/21/2022. 
 Petitioner, Civitello Sr., and Civitello Jr. proceeded to trial on April 17, 2023. See Dkt. 
No. 181. The trial lasted approximately one week, Defendant Kelly testified on the Government's 
behalf, and the jury found all three Defendants guilty on all three charges. See Dkt. Nos. 193, 
195. Petitioner was sentenced on December 19, 2023, to 168 months' imprisonment followed by 
five years of supervised release. See Dkt. No. 284; Text Minute Entry 12/26/2023. Petitioner 
appealed his conviction. See Dkt. No. 289. The Second Circuit affirmed the judgment on July 
28, 2025. See Dkt. Nos. 348, 349. 
 On September 15, 2025, Petitioner filed the presently pending motion to vacate his 
conviction pursuant to 28 U.S.C. § 2255. See Dkt. No. 352. Petitioner argues that his conviction 

 
 
3 
must be vacated because it is based on perjured testimony of one witness and coerced testimony 
by another witness, both of whom were called by the Government at trial. See id. Those 
witnesses are Defendant Kelly and Jessica Hollenbeck, Civitello Sr.'s ex-girlfriend, respectively. 
 The Government opposes the § 2255 motion on several grounds. See Dkt. No. 358. First, 
the Government argues Petitioner's motion does not state a claim for relief under § 2255 because 
his arguments should have been made in a motion for a new trial pursuant to Federal Rule of 
Criminal Procedure 33. See id. at 10-11. Second, the Government contends Petitioner's 
arguments fail on the merits. See id. at 11-17. Petitioner filed a reply in further support of his 
motion. See Dkt. No. 359. 
For the reasons set forth below, Petitioner's motion is denied. 
II. BACKGROUND 
 During trial, Defendant Kelly testified about his criminal history, that he pled guilty in this 
case and was hoping to receive leniency at sentencing as a result of his testimony, and that he had 
a substance abuse history. See Dkt. No. 222 at 3-6. The Government showed Kelly a photo taken 
by law enforcement from March 31, 2021, which Kelly identified as including himself, Petitioner, 
and the Civitellos. See id. at 17-18. Kelly testified that the four individuals were standing near 
Civitello Jr.'s blue Jeep which had a hidden compartment and Petitioner was with Kelly that day 
"to transport" "drugs." Id. at 18-19. Kelly specified that the drug was cocaine. See id. at 19. 
Kelly identified Petitioner in the courtroom and testified that he had trafficked marijuana and 
cocaine with Petitioner. See id. at 19-20. Kelly also testified that Petitioner drove the blue Jeep 
from Upstate to the New York City area "to use it to transport drugs." Id. at 28. He explained 
that he met Petitioner near Queens, New York, and placed nine kilos of cocaine into the hidden 
compartment of the Jeep in front of Petitioner. See id. at 29-31. The Government asked Kelly 

 
 
4 
why Petitioner was "transporting cocaine" and Kelly explained that Petitioner "owed a debt. He 
gave somebody some cocaine and they took off, he said, and he owed a lot of money. And we 
were trying to help him pay it off. [Kelly] was trying to help him pay it off." Id. at 33. 
 Defendant Kelly testified that on April 2, 2021, he and Petitioner drove from the New 
York City area toward Schenectady, New York, following behind Defendant Ingrao. See id. at 
34-39. While driving, Kelly and Petitioner saw Ingrao pulled over in the blue Jeep by law 
enforcement. See id. at 39. Kelly got off the highway, and "backtracked" to pass the traffic stop, 
again. See id. He did that twice. See id. at 41. Kelly threw his and Petitioner's pre-paid cell 
phones into water. See id. at 46-47. 
During his testimony, Defendant Kelly explained that he was waiting to be sentenced by 
Manhattan Supreme Court on a cocaine trafficking case in March of 2021. See id. at 57. Kelly 
"told [Civitello Sr. he] was leaving him in good hands with [Petitioner], and [Petitioner] could do 
anything [Kelly] could do." Id. Kelly hoped that after he went to prison, Petitioner "would be 
able to pay his debt off, and [they] could make some money." Id. at 58. 
 At the end of his direct examination, the Government asked Kelly, "[s]eparate and apart 
from some of the days we talked about -- March 29th, March 31st and April 2nd, 2021 -- do you 
ever recall transporting cocaine to Schenectady while some of your family members were with 
you?" Id. at 75. Kelly stated he recalled doing this "[o]nce." Id. The following exchange 
occurred, explaining the situation: 
Q. When they were with you, where did you put the cocaine? 
 
A. I -- I wanted my mother to talk to a – my girlfriend, who was 
having marital problems. 
 
THE COURT: The question was: Where did you put the cocaine? 
 

 
 
5 
A. I hid the cocaine. I took the car, filled it up with gas, put 
cocaine in it, gave it back to him, told him to follow me up to 
Schenectady. 
 
Q. So you're using your mom and your girlfriend to transport 
cocaine? 
 
A. I told them I was taking them to the casino, and I was dropping 
my car off to be fixed. . . . 
 
Q. Why on earth would you put cocaine in the car of your mother 
and your girlfriend? 
 
A. Stupid, but I just -- nobody's going to pull over an 80-year-old 
woman with a -- two women. I just, you know, thought if 
something happened, I would have taken the blame, but I didn't 
foresee anything happen, put it that I way. Unbeknownst to them. 
 
Q. Was the cocaine safely delivered that time? 
 
A. Yes. 
Id. at 76. 
 During Petitioner's sentencing hearing, his attorney argued that "it is disturbing . . . that 
the [G]overnment is [] tied to the conundrum of Christopher Kelly," because Kelly "was the 
architect of this matter." Dkt. No. 294 at 17-18. 
On July 18, 2023, this Court denied Civitello Sr. and Civitello Jr.'s motion for a new trial. 
See Dkt. No. 223. The Court noted that Defendant Kelly was "the Government's primary 
witness" at trial. Id. at 4. The Civitellos argued that their convictions could not stand, in part, 
because Kelly's testimony was inconsistent and he had a motive to lie. See id. at 13. The Court 
stated that "[a]s the Government noted in its summation, Kelly was not an ideal witness, with his 
substantial criminal history, past fraudulent activity, and substance abuse issues. His testimony, 
however, was mostly credible, and corroborated in large part by other evidence introduced by the 
Government." Id. at 14. However, the Court explained that it is not the Court's "role to second-

 
 
6 
guess a jury's credibility determination on a sufficiency challenge" and concluded that 
"[c]onsidering the evidence in the light most favorable to the Government, crediting every 
inference that could have been drawn in the Government's favor, and deferring to the jury's 
assessment of witness credibility and its assessment of the weight of the evidence, the Civitellos' 
motions for judgment of acquittal must be denied." Id. at 13-14. 
 On July 28, 2025, the Second Circuit affirmed Petitioner and Civitello Sr.'s convictions 
and dismissed their appeal. See Dkt. No. 349. As part of that decision, the Second Circuit 
addressed Civitello Sr.'s argument "that the district court erred by denying his motion for a new 
trial. In particular, he asserts that, because Kelly provided inconsistent and incredible testimony, 
and this testimony was central to the government's case, a new trial is warranted to avoid manifest 
injustice." Id. at 14. The Second Circuit explained that "[t]he jury had the opportunity to observe 
Kelly testify and to weigh that testimony against other evidence in the case[,]" "Civitello Sr. had 
the opportunity to call into question Kelly's credibility through cross-examination and during 
summation rebuttal[,]" and Kelly's testimony was corroborated by "other evidence." Id. at 14-15. 
As part of that "other evidence," the Second Circuit reiterated Defendant Kelly's testimony "that . 
. . he gave nine kilograms of cocaine to Sinde, who was going to arrange for Ingrao to deliver the 
drugs to the Civitellos[.]" Id. at 15. 
 Petitioner now makes a similar argument to that which the Court and the Second Circuit 
rejected—that Defendant Kelly's testimony was false or inconsistent and cannot support the jury's 
verdict against Petitioner. See Dkt. No. 352. Specifically, Petitioner contends that "[a]t trial, 
Christopher Kelly testified that his mother unknowingly transported cocaine in her car on the 
upstate trial. That account placed narcotics at the center of the offense conduct and portrayed his 
mother as an unwitting courier." Id. at 11. Petitioner has provided the Court with a copy of 

 
 
7 
Defendant Kelly's mother, Barabara Kelly's, sworn affidavit. See id. at 27. The affidavit is dated 
September 10, 2023. See id. That letter was submitted to the Court prior to Petitioner's 
sentencing, see Dkt. No. 279 at 20, and the Court expressly noted its review of the letter during 
Petitioner's sentencing hearing, see Dkt. No. 294 at 4. 
 Ms. Kelly's affidavit states that, on an unspecified date, she drove her car with Defendant 
Kelly's girlfriend Upstate and Defendant Kelly "drove his car and followed" them. Dkt. No. 352 
at 27. She attests that Petitioner "was not with us and never came there for the couple of days we 
were there. My son lied in court. . . . He also said there were never drugs in my car that's why he 
said to the court that I never knew I was driving with drugs in the car to cover me so I couldn't get 
in any trouble." Id. Petitioner purportedly told Ms. Kelly that "he really went to pick up money 
from [Civitello Sr.] and that was the reason for the trip. He told me that [Petitioner] was only 
introduced to [the Civitello Sr.] so he could sell marijuana to him while [Defendant Kelly] was 
away in jail." Id. 
 Petitioner argues that "[i]f no drugs were transported, there was no narcotics conspiracy of 
any kind described at trial. And if the testimony about drugs was false, then the sentencing 
calculations, which turned on drug quantity, rested on perjury." Id. at 11. He asserts that "[a] 
sworn affidavit denying the very existence of cocaine stands in direct collision with the sworn 
trial testimony that convicted" Petitioner. Id. 
In his § 2255 motion, Petitioner also challenges the testimony of Jessica Hollenbeck. See 
Dkt. No. 352 at 17. Ms. Hollenbeck testified that she was subpoenaed by the Government. See 
Dkt. No. 220 at 2. She confirmed she had been "in a personal relationship with Jeffrey Civitello, 
Sr." for eight years. Id. at 3. As to Petitioner, his attorney asked Ms. Hollenbeck, "You don't 
know Richard Sinde, do you?" Id. at 37. Ms. Hollenbeck responded, "No, I do not." Id. 

 
 
8 
 Along with his motion, Petitioner provides the Court with a letter from Ms. Hollenbeck 
dated February 26, 2025. See Dkt. No. 352 at 29-30. In her letter, Ms. Hollenbeck stated that she 
had not "been able to fully speak [her] truth until now." Id. at 29. Ms. Hollenbeck asserted that 
she felt "forced to give testimony that wasn't accurate. [Her] words were manipulated, and [she] 
was threatened with perjury every time [she] tried to clarify [her] position." Id. Ms. Hollenbeck 
stated that she "was sexually harassed by an officer who had been involved with [the] case, and 
when [she] reported it to the prosecutor, [she] was told her complaint was noted but no action 
would be taken." Id. 
 As the Government explains, Ms. Hollenbeck's letter is unsworn and was "submitted as a 
victim impact statement in [United States] v. Patrick Civitello, Case No. 1:24-CR-280 (MAD)." 
Dkt. No. 358 at 15. This Court handled Patrick Civitello's case and reviewed Ms. Hollenbeck's 
letter, which was attached to the Final Presentence Investigation Report, prior to his sentencing 
hearing. See Civitello, 1:24-CR-280, Dkt. No. 55 at 21-22. Ms. Hollenbeck is the mother of the 
victim who was physically assaulted by Patrick Civitello in retaliation for his mother's testimony 
at trial underlying this case. See id. at 5. Civitello Jr. was the final Defendant to be sentenced in 
this case, which was on March 22, 2024. Ms. Hollenbeck's son was assaulted on May 19, 2024. 
III. DISCUSSION 
A. Standard of Review 
Section 2255 of Title 28 of the United States Code states, in relevant part, that 
[a] prisoner in custody under sentence of a court established by Act 
of Congress 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 that the sentence was in excess of the 
maximum authorized by law, or is otherwise subject to collateral 
attack, may move the court which imposed the sentence to vacate, 

 
 
9 
set aside or correct the sentence. 
 
28 U.S.C. § 2255(a). Relief under § 2255 is 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 complete miscarriage of justice." Graziano v. United States, 
83 F.3d 587, 590 (2d Cir. 1996) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)). 
(quotation marks omitted). Moreover, a movant under § 2255 is barred from relitigating 
questions "'which were raised and considered on direct appeal,'" Riascos-Prado v. United States, 
66 F.3d 30, 33 (2d Cir. 1995) (quotations omitted), as well as any issue he could have raised on 
direct appeal, whether he actually raised it on appeal or not. See Abbamonte v. United States, 160 
F.3d 922, 924 (2d Cir. 1998) (quotation omitted). 
The Court has the authority to dismiss a motion to vacate under § 2255 without a hearing 
if the record conclusively demonstrates that the petitioner is not entitled to relief. See Pham v. 
United States, 317 F.3d 178, 184 (2d Cir. 2003). Further, "'[i]f it plainly appears from the motion, 
any attached exhibits, and the record of prior proceedings that the moving party is not entitled to 
relief, the judge must dismiss the motion.'" Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 
2009) (quoting Rules Governing § 2255 Proceedings for the United States District Courts, Rule 
4(b)). 
B. Analysis 
The Government argues the Court should not consider Petitioner's "motion because it is 
procedurally improper. Section 2255 provides relief only for constitutional violations, 
jurisdictional errors, or significant legal or factual errors." Dkt. No. 358 at 10. The Government 
contends that Petitioner's claims concerning Ms. Kelly and Hollenbeck's statements "are properly 
brought under Rule 33 of the Federal Rules of Criminal Procedure, not through a collateral 

 
 
10 
attack." Id. The Government notes that "[t]he only arguable exception is Sinde's assertion that 
the Government's nondisclosure of information about a non-testifying investigator was a Brady 
and/or Giglio violation." Id. at n.2. 
 Petitioner argues that his claims can be considered by the Court because "[t]he 
prosecution's duty to disclose favorable evidence and to correct false or materially misleading 
testimony does not depend on defense objection or preservation." Dkt. No. 359 at 9. He contends 
that "[s]uppression of favorable impeachment/bias evidence, including the admitted nondisclosure 
regarding Hollenbeck and the later surfacing of Barbara Kelly's information, establishes cause." 
Id. Finally, Petitioner states that his arguments should be considered because he has shown 
prejudice in the Government's conduct because "[i]mpeachment of the [G]overnment's central 
witness via his mother's allegations of fabrication and motive, especially when paired with 
Hollenbeck-related misconduct and nondisclosure, plainly meets that standard." Id. 
"'[T]he suppression by the prosecution of evidence favorable to an accused upon request 
violates due process where the evidence is material either to guilt or to punishment, irrespective 
of the good faith or bad faith of the prosecution.'" Malachowski v. United States, No. 5:08-CR-
701, 2018 WL 11234034, *5 (N.D.N.Y. July 26, 2018) (quoting Brady v. Maryland, 373 U.S. 83, 
87 (1963); citing Giglio v. United States, 405 U.S. 150, 153-54 (1972)). "Evidence qualifies as 
material when there is 'any reasonable likelihood' it could have 'affected the judgment of the 
jury.'" Id. (quoting Wearry v. Cain, 577 U.S. 385, 392 (2016)). "[C]ourts in this Circuit have 
expressed doubts regarding whether the availability of new evidence can serve as an independent 
ground for relief under 28 U.S.C. § 2255." United States v. Ramsey, No. 15-CR-525, 2026 WL 
1091333, *6 (E.D.N.Y. Apr. 22, 2026) (collecting cases); see Herrera v. Collins, 506 U.S. 390, 
400 (1993) ("Claims of actual innocence based on newly discovered evidence have never been 

 
 
11 
held to state a ground for federal habeas relief absent an independent constitutional violation 
occurring in the underlying state criminal proceeding"). 
Petitioner does not explain why he failed to move for a new trial pursuant to Rule 33. He 
also does not explain why he failed to make the argument concerning Ms. Kelly's affidavit to the 
Second Circuit as part of his appeal. Regardless, for the following reasons, Petitioner has not 
established the existence of new evidence or a constitutional violation that justifies relief. 
First, "[a]t the very least, before a recantation statement may qualify as competent 
evidence for habeas review, it would need to be in sworn affidavit form, subject to penalty for 
perjury." Haouari v. United States, 510 F.3d 350, 354 (2d Cir. 2007). The Second Circuit has 
noted that "the requirement of an affidavit [is not] a difficult hurdle to clear." Id. Second, "'the 
discovery of new evidence which merely discredits a government witness and does not directly 
contradict the government's case ordinarily does not justify the grant of a new trial.'" United 
States v. Jones, 965 F.3d 149, 164-65 (2d Cir. 2020) (quoting United States v. Spencer, 4 F.3d 
115, 119 (2d Cir. 1993)). That is because "'a new trial is generally not required when the 
testimony of the witness is corroborated by other testimony . . . .'" United States v. Hunter, 32 
F.4th 22, 34 (2d Cir. 2022) (quoting United States v. Payne, 63 F.3d 1200, 1210 (2d Cir. 1995)). 
Third, and likewise, "[i]t 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." United States v. Orena, 145 F.3d 551, 559 (2d Cir. 1998) 
(collecting cases). 
Assuming, arguendo, that Ms. Kelly's sworn statement establishes that a part of Defendant 
Kelly's testimony was false, it does not support the Petitioner's request for relief. First, the 
defense attorneys had ample ammunition that they used to attack Defendant Kelly's credibility at 

 
 
12 
trial. See, e.g., Dkt. No. 222 at 84-111 (Cross examination of Defendant Kelly about his prior 
convictions, hope for leniency, faulty memory, etc.). As the Court noted in its denial of the 
Civitellos' motion for a new trial, "Kelly was not an ideal witness[.]" Dkt. No. 223 at 14. 
However, that does not invalidate the jury's verdict where it had the opportunity to consider 
Defendant Kelly's credibility, which was vigorously challenged on cross examination, along with 
the other evidence presented at trial. Ms. Kelly's letter would be an additional piece of 
information that could call into question Defendant Kelly's credibility, but it does not negate the 
existence of the drug conspiracy or Petitioner's participation in it. Therefore, the letter is not 
likely to alter the jury's verdict. 
 As to Ms. Hollenbeck, her letter is unsworn. This alone would warrant the Court's 
rejection of Petitioner's arguments because it is insufficient to combat her sworn trial testimony. 
However, Ms. Hollenbeck also fails to specify any piece of her testimony that was allegedly 
coerced or inaccurate. See Dkt. No. 352 at 29-30. She states only generally that she "felt 
targeted, like [she] was being coerced into a narrative that wasn't" hers. Id. at 29. Ms. 
Hollenbeck testified that she did not know Petitioner. See Dkt. No. 220 at 37. Petitioner has not 
explained how any purported error in her testimony would alter the verdict against Petitioner, 
whom she did not know, particularly because her letter does not negate the existence of the drug 
conspiracy. Ms. Hollenbeck states only that things got out of hand for everyone involved, 
including her son who was assaulted by Patrick Civitello. See Dkt. No. 352 at 29-30. That does 
not support a new trial in Petitioner's case. 
The Government also negates any purported problems in Ms. Hollenbeck's trial testimony. 
The Government obtained a sworn declaration from Attorney Michael Barnett, who was lead 
Government trial counsel. See Dkt. No. 358-1. In his declaration, Mr. Barnett explained that in 

 
 
13 
October of 2021, after Defendants had been indicted, an investigator called Mr. Barnett 
"informing [him] that as part of a separate investigation he was conducting, he had come across a 
witness who had information about Civitello Sr.'s involvement in drug trafficking. This witness, 
Jessica Hollenbeck, a former girlfriend of Civitello Sr., had described a series of events that 
seemed to coincide with the subject matter of the case in which [Petitioner] had already been 
indicted." Id. at ¶ 5. Mr. Barnett interviewed Ms. Hollenbeck twice in 2021 and does "not recall 
communicating with Ms. Hollenbeck for the remainder of 2021 and all of 2022." Id. at ¶¶ 6-7. 
Ms. Hollenbeck retained her own counsel. See id. at ¶ 9. On February 14, 2023, Ms. Hollenbeck 
and her attorney met with Mr. Barnett and a federal law enforcement agent. See id. at ¶ 10. 
During that interview, Ms. Hollenbeck told Mr. Barnett that the investigator "had drunkenly 
harassed and made advances on her at a Schenectady bar where she was out with friends" in May 
of 2022. Id. Ms. Hollenbeck and a friend drove the investigator "home and [] he acted 
inappropriately during the ride." Id. Mr. Barnett attested that Ms. Hollenbeck "said that his 
conduct did not affect her grand jury testimony – which had happened months prior to the 
incident – and that it would not affect her trial testimony." Id. 
Mr. Barnett also stated that he "never told Ms. Hollenbeck that nothing would be done 
about [the i]nvestigator []. ([The i]nvestigator was not a federal [task force officer]. The U.S. 
Attorney's Office has no authority over whether and how a local investigator is punished for 
misconduct.)." Id. Mr. Barnett did inform the investigator's supervisor about the allegations and 
he spoke to attorneys in his office about whether the information needed to be disclosed to 
defense counsel. See id. at ¶ 11. He and the other attorneys determined it did not need to be 
disclosed because the investigator "was not going to be a witness at trial (nor was he even part of 
the [Drug Enforcement Administration's] investigative team); his alleged conduct could not have 

 
 
14 
affected Ms. Hollenbeck's grand jury testimony; and there was no reason to believe it would 
impact her trial testimony." Id. 
 Mr. Barnett explained that Ms. Hollenbeck testified at Petitioner's trial on April 19, 2023, 
and he did "not recall speaking to her again until May 2024, when Patrick Civitello assaulted her 
15-year-old son in the parking lot of a restaurant, in retaliation for Ms. Hollenbeck's trial 
testimony a year prior." Id. at ¶ 14. "At that time, Ms. Hollenbeck repeatedly expressed the 
opinion that she had been retaliated against for complying with subpoenas." Id. at ¶ 15. Mr. 
Barnett attested as follows: 
At no time did Ms. Hollenbeck ever suggest to me, with respect to 
her November 2021 grand jury testimony or her April 2023 trial 
testimony, that her words had been misrepresented or manipulated, 
that she was coerced into testifying, that she had been threatened 
with perjury, or that she was forced to give inaccurate testimony or 
gave inaccurate testimony. 
 
Id. at ¶ 17. 
 In his reply, Petitioner argues the Government's response demonstrates "intensive witness-
management, circling topics for trial, followed by transcript-review sessions in which key points 
softened or became uncertain, underscoring why the defense was entitled to the full set of notes 
and communications bearing on pressure, threats, and access to counsel." Dkt. No. 359 at 7. 
 Petitioner is incorrect. Ms. Hollenbeck's typed letter is unsworn. See Dkt. No. 352 at 29-
30. It contains only her typed name but no written signature. It was written after her son had 
been physically assaulted by Patrick Civitello as a direct result of her trial testimony. See 
Civitello, 1:24-CR-280, Dkt. Nos 45, 55. The letter does not identify a single specific part of Ms. 
Hollenbeck's trial testimony which was allegedly "forced," Dkt. No. 352 at 29, and Mr. Barnett's 
sworn declaration supports the conclusion that her testimony was not coerced by the Government. 

 
 
15 
Second, Defendant is not entitled to every note or communication from a government 
attorney. See United States v. Shyne, 617 F.3d 103, 108 (2d Cir. 2010) ("'[I]t is well established 
that where a non-witness' out-of-court statements are not offered for their truth, the non-witness' 
credibility is not relevant and evidence intended to impeach the non-witness may properly be 
excluded'") (quoting United States v. Schweiger, No. 00-CR-284, 2001 WL 649826 (S.D.N.Y. 
June 12, 2001)). "Brady and its progeny may require disclosure of exculpatory and/or 
impeachment materials whether those materials concern a testifying witness or a hearsay 
declarant," United States v. Jackson, 345 F.3d 59, 70-71 (2d Cir. 2003); however, Petitioner 
makes no assertion that the Government sought to admit an out-of-court statement from the 
investigator for the truth of the matter. Third, Defendant references "access to counsel." Dkt. No. 
359 at 7. Ms. Hollenbeck never indicated she was unable to access counsel. Petitioner does not 
make such an argument, either. Rather, her attorney was present during the meeting in which she 
disclosed the harassment. Fourth, as sworn by Mr. Barnett under the penalty of perjury, Ms. 
Hollenbeck told Mr. Barnett that her grand jury testimony was not impacted by the investigator's 
behavior (which would have been chronologically impossible anyways), and it would not affect 
her trial testimony. See Dkt. No. 358-1 at ¶ 10. 
Based on the foregoing, the Court agrees with the Government when it states that 
Petitioner "does not cite a single case for the notion that Ms. Hollenbeck's once being subject to 
harassment – by an investigator who was not a federal law enforcement officer and not part of the 
[federal] investigative team – made her 'inherently vulnerable to pressure.'" Dkt. No. 358 at 16 
(citation omitted). Likewise, Petitioner "fails to explain how the investigator's harassment of Ms. 
Hollenbeck, if disclosed, would have affected the trial's outcome." Id. 

 
 
16 
 Finally, Petitioner mentions "[a]ctual innocence" Dkt. No. 352 at 21. Petitioner's filings 
have not come close to demonstrating his innocence of the drug conspiracy. As explained by the 
Government, even if Defendant Kelly lied about drugs being hidden in his mother's car and Ms. 
Hollenbeck felt pressured to testify, the evidence at trial included photos of Petitioner with the 
other Defendants in and around the vehicle which contained a hidden compartment filled with 
kilograms of cocaine, vehicle and cell phone tracking data which corroborated Kelly's testimony, 
and law enforcement agent testimony about the tracking data and recovered drugs. See Dkt. No. 
223 at 5-8 (explaining the evidence presented which supported the verdict beyond Defendant 
Kelly's testimony). Petitioner asserts that "[a] sworn affidavit denying the very existence of 
cocaine stands in direct collision with the sworn trial testimony that convicted" Petitioner. Dkt. 
No. 352 at 11. However, Ms. Hollenbeck's statement does not "deny[] the very existence of 
cocaine[.]" Id. At most, the "letter merely establishes another basis for calling her son's 
credibility into question," Dkt. No. 358 at 13, but that is not enough to require a new trial. 
 In sum, Petitioner has failed to demonstrate the existence of new evidence or a 
constitutional violation that warrants vacatur of his conviction, let alone a new trial. His motion 
is denied.
1 
 
 
1 Petitioner argues in his reply that the Government's request for an extension of time to file its 
response "confirms the issues' centrality." Dkt. No. 359 at 9. Petitioner contends that the 
Government's requests support his motion. See id. at 9-10. Part of the Government's reason for 
its extension requests was because the lead prosecutor on the case began a different job. See Dkt. 
No. 355. Petitioner's assertion that an extension request supports his motion finds no support in 
the law and is rejected. Petitioner also submitted "supplemental authority" to the Court. Dkt. No. 
360. Petitioner notes that John A. Sarcone III, whose name was included on the Government's 
opposition Petitioner's § 2255 motion, was found by a judge of the Southern District of New York 
to be unlawfully serving as Acting United States Attorney. See id. Petitioner is correct but 
provides no legal authority which states that the Assistant United States Attorney who drafted and 
submitted the response on behalf of the Government is without authority to do so. 

 
 
17 
C. Evidentiary Hearing 
 Petitioner asks the Court to conduct an evidentiary hearing to determine whether there was 
"[c]oercion/pressure and witness-handling of Ms. Hollenbeck, including perjury threats, narrative-
shaping, and access to counsel," the veracity of the harassment allegation and impact of the 
Government's nondisclosure, and "[t]he circumstances, content, and reliability of Barabara Kelly's 
letter[.]" Dkt. No. 359 at 11. 
 "Unless the motion and the files and records of the case conclusively show that the 
prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the 
issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. § 
2255(b). However, "[t]he filing of a § 2255 motion does not, by itself, obligate the district court 
to conduct an evidentiary proceeding." Smith v. United States, No. 1:20-CV-04195, 2020 WL 
13065428, *4 (S.D.N.Y. Dec. 31, 2020), R&R adopted, 2022 WL 443631 (S.D.N.Y. Feb. 14, 
2022) (citing Newfield v. United States, 565 F.2d 203, 207 (2d Cir. 1977)). "'[A]n evidentiary 
hearing is required on a [§] 2255 motion only when the papers on the motion, measured by the 
same standards of competence and admissibility applicable to motions for summary judgment, 
reveal the existence of a genuine issue of material fact.'" United States v. Sahabir, 880 F. Supp. 
2d 377, 383 (N.D.N.Y. 2012) (quoting Lamberti v. United States, 22 F. Supp. 2d 60, 71 (S.D.N.Y. 
1998), aff'd, 201 F.3d 430 (2d Cir. 1999)). 
"An evidentiary hearing is not required 'where the allegations are insufficient in law, 
undisputed, immaterial, vague, conclusory, palpably false or patently frivolous.'" Id. (quoting 
United States v. Malcolm, 432 F.2d 809, 812 (2d Cir. 1970)); see Haouari v. United States, 510 
F.3d 350, 354 (2d Cir. 2007) ("[I]n order to warrant an evidentiary hearing in the district court on 
a . . . § 2255 petition, 'the application must contain assertions of fact that a respondent is in a 

 
 
18 
position to establish by competent evidence . . . . Airy generalities, conclusory assertions and 
hearsay statements will not suffice . . . .'") (citation and internal quotation marks omitted). 
"[E]ven if the motion presents factual issues, the district court has the authority to deny the 
motion without a hearing when the motion, any attached exhibits, and the record of the prior 
proceedings plainly show that the movant is not entitled to relief." United States v. Handford, No. 
5:14-CR-0273, 2016 WL 8670498, *3 (N.D.N.Y. Oct. 25, 2016) (citing Puglisi, 586 F.3d at 214). 
In the present matter, the Court finds no evidentiary hearing is necessary. Based upon the 
Court's review of the record, including the trial transcripts, the sentencing transcript, Mr. Barnett's 
declaration, and the relevant law, the Court is persuaded that "the motion and the files and records 
of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). 
Petitioner's argument that two statements (one from an individual who did not testify at trial and 
the other from an individual who testified that she did not know Petitioner) impacted the jury's 
verdict against him is meritless. See United States v. Salvagno, No. 5:02-CR-0051, 2013 WL 
12364812, *7 (N.D.N.Y. July 25, 2013) ("Because the files and record conclusively show that the 
§ 2255 Motions are without merit, the Court finds that no evidentiary hearing is warranted"). 
D. Certificate of Appealability 
28 U.S.C. § 2253(c)(1) provides that "[u]nless a circuit justice or judge issues a certificate 
of appealability, an appeal may not be taken to the court of appeals from – (A) the final order in a 
habeas corpus proceeding in which the detention complained of arises out of process issued by a 
State court[.]" 28 U.S.C. § 2253(c)(1). Rule 22 of the Federal Rules of Appellate Procedure also 
provides that an appeal may not proceed in such actions "unless a circuit justice or a circuit or 
district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)." F
ED. R. APP. P. 

 
 
19 
22(b)(1). A court may only issue a Certificate of Appealability "if the applicant has made a 
substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). 
Petitioner has failed to make such a showing with regard to his claims. The Court 
therefore declines to issue a Certificate of Appealability in this matter. See Hohn v. United States, 
524 U.S. 236, 239-40 (1998) (quotation omitted). 
IV. CONCLUSION 
 After carefully reviewing the entire record in this matter, the parties' submissions and the 
applicable law, and for the above-stated reasons, the Court hereby 
ORDERS that Petitioner's motion to vacate his sentence pursuant to 28 U.S.C. § 2255 
(Dkt. No. 352) is DENIED and DISMISSED; and the Court further 
ORDERS that no Certificate of Appealability shall be issued in this case; and the Court 
further 
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision 
and Order on the parties in accordance with the Local Rules; and the Court further 
ORDERS that the Clerk of the Court shall close this case. 
IT IS SO ORDERED. 
Dated: June 10, 2026 
 Albany, New York 

Passage view · GavelSight