Broxmeyer v. United States
661 F. App'x 744
| 2d Cir. | 2016Background
- Todd Broxmeyer was convicted in 2008 on multiple child-pornography–related counts; this appeal follows earlier appellate decisions that partially reversed and then affirmed aspects of his convictions and sentence (Broxmeyer I & II).
- Broxmeyer filed a 28 U.S.C. § 2255 motion claiming ineffective assistance of counsel (trial and post-trial) in violation of the Sixth Amendment.
- Principal factual complaints: trial counsel allegedly was intoxicated/failed to mount a defense, failed to call or properly cross-examine witnesses, advised Broxmeyer not to testify, and failed to object to prosecutorial remarks; post-trial counsel allegedly failed to challenge factual findings in the presentence report (PSR).
- The district court denied relief without an evidentiary hearing; Broxmeyer appealed that denial.
- The Second Circuit reviewed de novo whether § 2255 relief was warranted, applied Strickland prejudice/deficiency standards, and reviewed the denial of an evidentiary hearing for abuse of discretion.
- The Second Circuit affirmed, finding no plausible Strickland claim and that no evidentiary hearing was required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Trial counsel ineffective (intoxication / failure to mount defense / call witnesses) | Counsel was intoxicated and otherwise failed to present a defense or call witnesses that would have aided Broxmeyer | Counsel actively litigated (motions, cross-examined thoroughly), made tactical choices about calling witnesses and not presenting a defense | No ineffective assistance; record shows active, strategic advocacy and Broxmeyer failed to identify omitted witnesses or rebut strategic presumption |
| 2) Advice not to testify / denial of right to testify | Counsel discouraged testimony and thus denied Broxmeyer his right to testify | Court asked Broxmeyer on the record and counsel confirmed he had discussed the right; Broxmeyer affirmed he wished to remain silent | No deficiency; Broxmeyer was informed on the record and chose to remain silent |
| 3) Failure to object to prosecutor’s summation | Counsel should have objected to allegedly improper prosecutorial remarks | Counsel chose tactical response in summation rather than objecting; no prejudicial prosecutorial error identified | No ineffective assistance; tactical decision and lack of prejudicial error foreclose claim |
| 4) Post-trial counsel ineffective re: PSR and new allegations at resentencing | Counsel failed to adequately object to PSR factual findings and to address new allegations | Counsel filed written objections, argued mitigation at sentencing, and district court stated it would not increase sentence based on new allegations | No ineffective assistance; objections made, court declined to rely on new allegations, and no prejudice shown |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishing deficiency and prejudice test for ineffective assistance of counsel)
- Bell v. Cone, 535 U.S. 685 (deferring to counsel’s strategic choices)
- Schriro v. Landrigan, 550 U.S. 465 (no evidentiary hearing required when record refutes applicant’s allegations)
- United States v. Broxmeyer, 616 F.3d 120 (2d Cir. 2010) (prior appellate decision addressing convictions)
- United States v. Broxmeyer, 699 F.3d 265 (2d Cir. 2012) (prior appellate decision addressing sentencing/remand)
- Puglisi v. United States, 586 F.3d 209 (2d Cir. 2009) (standard for § 2255 evidentiary hearing; plausibility requirement)
- United States v. Nersesian, 824 F.2d 1294 (2d Cir. 1987) (strategic decisions about which witnesses to call are afforded deference)
- Greiner v. Wells, 417 F.3d 305 (2d Cir. 2005) (deference to counsel’s witness decisions)