Locurto v. United States
1:10-cv-04589
E.D.N.YAug 12, 2016Background
- Stephen LoCurto was convicted at trial of racketeering conspiracy and sentenced to life imprisonment; he filed a 28 U.S.C. § 2255 petition alleging ineffective assistance of trial and appellate counsel and Brady-type suppression.
- Pretrial, prosecutors sent a November 1, 2005 letter proposing that if at least 10 of 11 defendants pled by a deadline, specified maximum sentences (LoCurto shown as 20 years) would be recommended. The Government disclaimed that the letter was a "formal" offer.
- LoCurto's trial counsel consulted private attorney Laura Oppenheim, who advised that a life sentence was unlikely because applying the 1988 RICO amendment to a pre-amendment murder would violate the Ex Post Facto Clause; LoCurto says he relied on that advice and declined to plea.
- Nine co-defendants pled and received sentences at or below the recommended maxima; LoCurto (and one co-defendant) went to trial and received life sentences.
- Magistrate Judge Orenstein recommended that (1) Oppenheim's advice was objectively unreasonable and (2) an evidentiary hearing is needed to determine prejudice; he recommended denying the appellate-ineffective-assistance claim and deferring other claims. District Judge Garaufis adopted the R&R, overruling the Government's objections and directing further proceedings (including possible evidentiary hearing).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Oppenheim's sentencing advice was objectively unreasonable under Strickland performance prong | Oppenheim advised LoCurto that the Ex Post Facto Clause and then-authority made a life sentence unavailable, so her advice was objectively unreasonable | Government argued existing Second Circuit precedent did not clearly foreclose Oppenheim's view and cited contemporaneous district-court decision Taveras | Court held Oppenheim's advice was objectively unreasonable in light of binding Second Circuit precedent (e.g., Minicone and related line) and rejected reliance on Taveras |
| Whether counsel-of-record status for Oppenheim defeats Strickland claim arising from her advice | LoCurto contends he reasonably relied on advice he received in consultation and that status questions go to prejudice/second-step, not the performance threshold | Government contends Batchelder (counsel of record) had warned of life exposure, so Oppenheim’s non‑record status forecloses relief | Court declined to resolve this at this stage; delegated status/prejudice issues for further proceedings (magistrate to address) |
| Whether an evidentiary hearing is required to determine prejudice from the advice | LoCurto says he would have pled to the 20‑year package and thus suffered prejudice from bad advice; factual disputes (existence/formality of offer and reliance) make a hearing appropriate | Government contends no "formal" plea offer existed, and LoCurto cannot show reasonable probability he would have pled or that court would have accepted a 20‑year plea | Court held that because a plausible Strickland claim exists and factual disputes remain (including about the letter/offers), an evidentiary hearing is required to resolve prejudice |
| Appellate counsel ineffective for failing to challenge admission of accomplice testimony implicating Garofalo/Infanti | LoCurto argued appellate counsel failed to raise important evidentiary errors | Government opposed | Court adopted R&R denial of the appellate-ineffectiveness claim (no objection to that R&R portion) |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes two‑prong ineffective assistance test for performance and prejudice)
- Lafler v. Cooper, 132 S. Ct. 1376 (2012) (Sixth Amendment right to effective counsel extends to plea‑bargaining; identifies prejudice standard when plea lost)
- Missouri v. Frye, 132 S. Ct. 1399 (2012) (counsel must communicate formal plea offers; clarifies duty in plea negotiations)
- Gordon v. United States, 156 F.3d 376 (2d Cir. 1998) (discusses prejudice where inaccurate sentencing exposure affected plea decision; held formal/informal distinction not necessarily dispositive)
- Minicone v. United States, 960 F.2d 1099 (2d Cir. 1992) (Second Circuit precedent treating application of increased penalties to continuing/"straddle" offenses as consistent with Ex Post Facto Clause)
- Trupin v. United States, 117 F.3d 678 (2d Cir. 1997) (addresses application of new statutes to continuing crimes and ex post facto concerns)