PHILIP ABRAMO, Petitioner, -against- UNITED STATES OF AMERICA, Respondent.
12 Civ. 1803 (JSR) (HBP)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
01/16/14
PITMAN, United States Magistrate Judge
Case 1:12-cv-01803-JSR-HBP Document 15 Filed 01/16/14 Page 1 of 52
TO THE HONORABLE JED S. RAKOFF, United States District Judge,
I. Introduction
Pro se petitioner Philip Abramo moves pursuant to
Pursuant to a written plea agreement, petitioner pled guilty on July 9, 2009 to one count of conspiracy to commit murder, one count of conspiracy to commit loansharking and one count of receiving the proceeds of an extortion in violation of
The Government opposes the Petition on the grounds that the claims are barred by the waiver in the plea agreement, procedurally barred and, in any event, lack merit.
For the reasons set forth below, I respectfully recommend that the Petition be dismissed.
II. Background
A. Petitioner‘s Underlying Offenses1
Petitioner was one of numerous individuals arrested in October 2000 for participating in a nationwide criminal enterprise, known as the Decavalcante Organized Crime Family. United States v. Riggi, 541 F.3d 94, 96 (2d Cir. 2008). At various times, petitioner was a soldier and a capo in the family (Ex. A to the Government‘s Opposition, dated May 21, 2012 (“Opp‘n“)
¶ 8). From August 1989 to September 1989, petitioner conspired
B. Procedural History
1. Initial Indictment, Jury Trial And Appeal
The indictment initially filed against petitioner charged him with several racketeering acts, including murders, conspiracies to murder, loansharking and conspiracy to commit securities fraud (Ex. B to Opp‘n at 12).
On June 4, 2003, a jury convicted petitioner of conspiring to make and collect extortionate extensions of credit, and of participating in and conspiring to participate in a racketeering enterprise, the activities of which included four
Petitioner appealed his conviction arguing, inter alia, that the admission in evidence of eight plea allocutions from non-testifying conspirators violated his Confrontation Clause rights under Crawford v. Washington, 541 U.S. 36 (2004). On September 4, 2008, the United States Court of Appeals for the Second Circuit concluded that the admission of the plea allocutions had been plain error. United States v. Riggi, supra, 541 F.3d at 102. Accordingly, petitioner‘s conviction was vacated and the matter remanded to Judge Rakoff.
2. Plea Agreement And Allocution
Following the Second Circuit‘s decision, petitioner signed a written waiver of indictment and consented to the filing of a superseding felony information (Ex. C to Opp‘n at 7). The superseding information charged petitioner with one count each of conspiracy to commit murder, conspiracy to commit loansharking
Petitioner and the Government entered into a written plea agreement on July 9, 2009, pursuant to which petitioner pled guilty to all counts in the superseding information (Ex. D to Opp‘n). The plea agreement also contained the following stipulations:
- The United States Sentencing Guidelines (“Guidelines“) in effect as of November 1, 2008 would govern petitioner‘s sentence.
- Petitioner had five criminal history points and a criminal history category of III.
- The appropriate Guidelines sentence was a term of imprisonment of eighteen years.
- Petitioner would not file a direct appeal or collaterally attack any sentence of eighteen years or less, even if the court employed a Guidelines analysis different from that stipulated to in the agreement.
- The sentence would be determined by the court, notwithstanding the parties’ agreement.
- If “the conviction” resulting from petitioner‘s plea was vacated for any reason, the Government could prosecute petitioner for any offense that was not time-barred as of July 9, 2009; the subsequent lapse of any limitations period would not constitute a defense.
(Ex. D to Opp‘n at 3-8). Petitioner reserved the right to argue that the sentence should be reduced by sixty-one months, which petitioner served in connection with a conviction for securities
On July 9, 2009, petitioner entered a plea of guilty to the superseding information before Judge Rakoff (Ex. C to Opp‘n). Inga L. Parsons, Esq., represented petitioner at the plea allocution. Petitioner had first retained Parsons, and when his funds were exhausted, Parsons was appointed by Judge Rakoff to represent petitioner pursuant to the Criminal Justice Act (Ex. C to Opp‘n at 5). Petitioner testified at the plea allocution that he was satisfied with Parsons’ representation of him, that he had read and discussed the counts in the superseding information with counsel and that he understood the charges contained therein (Ex. C to Opp‘n at 5-6). Petitioner also stated that he had read and discussed the terms of the plea agreement with counsel, understood the terms and agreed to the terms (Ex. C to Opp‘n at 12-13). Judge Rakoff expressly informed petitioner that, pursuant to the terms of the plea agreement, petitioner was barred from appealing or collaterally attacking any sentence of eighteen years or less; petitioner expressed his understanding of that waiver provision (Ex. C to Opp‘n at 14). After completing the allocution required by
Judge Rakoff conducted a sentencing hearing on October 7, 2009. At that time, Parsons alerted Judge Rakoff to an issue that petitioner had raised with her following the plea allocution. Parsons argued that the 2008 Sentencing Guidelines provided for a significantly higher sentence for the offense of conspiracy to commit murder than the 1989 Guidelines in place at the time the Weiss murder occurred, and that application of the 2008 Guidelines violated the Ex Post Facto Clause (Ex. E to Opp‘n at 3-7). Specifically, she stated: “Had I known that at the time of the plea I don‘t know how we would have done that in terms of what was the guideline range but I suspect that if that was known to the probation department that may have made a difference with respect to [petitioner‘s] guidelines” (Ex. E to Opp‘n at 3-4). The Government conceded that the murder conspiracy Guidelines in effect in 1989 were “quite different” from the 2008 murder conspiracy Guidelines (Ex. E to Opp‘n at 7-8). Nonetheless, the Government argued that petitioner‘s contention was moot because the Guidelines were only advisory, and
Frankly, I am of the view if it were in my power to not resolve this difference between what the government says the guideline calculation is here and what the defense says the government [sic] calculation is here, I would embrace that opportunity because I don‘t think it‘s going to make the slightest difference in my sentence and I say that because what we‘ve just discussed seems to me to show that the guidelines are not operating in the manner in which they were intended to operate in this situation and that therefore they to [sic] do not afford the Court meaningful guidance as to what sentence should be imposed.
However, I think I am required, nonetheless, to make a calculation or a determination. . . . So I will adopt the government‘s view of the guidelines which would be to a range that is above 18 years and therefore is capped at 216 months.
But, I repeat, I have to frankly say on this record that I don‘t think it‘s going to have material affect on my sentence and I don‘t think it is going to be a material affect if I had calculated it at 78 to 97 [months.]
(Ex. E to Opp‘n at 10-11 (emphasis added)).
Judge Rakoff found that petitioner “should receive some concurrency but not total concurrency” for the time he served on the Florida sentence (Ex. E to Opp‘n at 35). He focused primarily on the nature of the offenses themselves in calculating petitioner‘s sentence:
[A]t any rate the main point I wanted to make, if we just look at this in the most narrow way putting even aside -- and I don‘t see why I should put aside -- but
putting aside the loan sharking, just looking at the conspiracy to murder, why is that not an offense that calls for a[n] 18 year penalty? What am I missing here? Your colleague says, well, there are people who are more central to the murder. The government says, well, this guy was more central than the defense asserts. But the question I am asking is central or less central, what crime more calls out for deterrence, for punishment, for the most severe penalties that the court allows than getting together to murder a human being?
(Ex. E to Opp‘n at 25).
Notwithstanding petitioner‘s prior agreement to a sentence of eighteen years’ imprisonment, Judge Rakoff granted petitioner two and a half years’ credit for the time he had already served in connection with the Florida conviction and sentenced petitioner to a term of imprisonment of fifteen and one-half years (Ex. E to Opp‘n at 35, 38-39).
4. Direct Appeal
Despite the plea agreement‘s appeal/2255 waiver provision, petitioner appealed his sentence to the Second Circuit. Petitioner challenged the application of the 2008 Guidelines to the murder conspiracy charge. In an effort to overcome the waiver provision, petitioner argued that ex post facto rights should not be waivable and, in any event, that the waiver resulted from his ignorance of those rights. United States v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011).
With respect to petitioner‘s second argument -- that petitioner‘s waiver of his right to appeal ex post facto violations was void because it was not knowing and intelligent -- the court found that, at least in this case, the claim was subsumed within the ineffective-assistance claim petitioner had reserved for a Section 2255 motion.
It is unclear, however, why a hypothetical claim based on “ignorance of existing rights” is not subsumed by a claim based on ineffective assistance of counsel, which can survive an appeal waiver “where the claim concerns ‘the advice [the defendant] received from counsel.‘” Parisi v. United States, 529 F.3d 134, 138 (2d Cir. 2008) (quoting United States v. Torres, 129 F.3d 710, 715–16 (2d Cir. 1997)). A lawyer‘s obligations during plea negotiations include informing the client of constitutional rights that affect the plea. Thus, a defendant claiming ignorance of existing constitutional rights during plea negotiations is in effect arguing that the advice given by his counsel was inadequate or incorrect. Such a deficient performance is one element of an ineffective-assistance claim. Id. at 140 (referencing Strickland v. Washington, 466 U.S. 668, 688, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Were a separate “ignorance of existing rights” claim readily available, a defendant could litigate the same issue twice.
That concern is particularly acute here. Abramo claims “ignorance of existing rights” in this appeal, but he has carefully reserved an ineffective-assistance claim for a habeas petition. Abramo Br. at 28. (And he goes further, arguing that the “specter” of the ineffective-assistance claim “should give additional weight to finding the waiver clause unenforceable” in this case. Id.) We cannot say that a claim alleging ignorance of existing rights will always be subsumed by a claim of ineffective assistance, but on these facts Abramo‘s alleged ignorance of his ex post facto rights is relevant only in an ineffective-assistance claim (which is not raised here, and as to which we express no view).
Accordingly, the Court of Appeals found the waiver of appellate rights to be enforceable, albeit without prejudice to an argument in a 2255 petition that the waiver is void because it is the product of ineffective assistance.
Petitioner timely filed the Petition on March 9, 2012. As discussed in more detail below, petitioner argues that his waiver of a Section 2255 motion should not be enforced because he did not receive the effective assistance of counsel throughout the plea bargaining process. Petitioner goes on to complain of the following errors: (1) counsel was ineffective for failing to discover that the application of the 2008 Guidelines to the murder conspiracy charge, which he stipulated to in the plea agreement, violated the Ex Post Facto Clause of the Constitution; (2) counsel was ineffective for failing to object when petitioner allocuted to receiving the proceeds of an extortion in 1990 only and such conduct was not made a crime until 1994; (3) the plea agreement contained an incorrect calculation of his criminal history category (“CHC“); (4) Judge Rakoff failed to afford petitioner sufficient credit for the sentence imposed in the Middle District of Florida and (5) counsel was ineffective for failing to object to Judge Rakoff‘s application of Booker to his pre-Booker offenses.
The Government argues that petitioner‘s waiver of his right to file this Petition is valid, and in any event, that petitioner‘s claims lack merit. The Government contends that
Petitioner replied to the Government‘s opposition on August 29, 2012 (“Reply“) (Docket Item 8), asserting essentially the same grounds that he raised in the Petition. On May 8, 2013, petitioner sought the appointment of counsel, specifically seeking that Parsons be appointed to represent him in connection with the instant Petition (Letter from Philip Abramo to the
On May 17, 2013, petitioner submitted a letter of supplemental authority, citing the Supreme Court‘s decision in Dorsey v. United States, --- U.S. ---, 132 S. Ct. 2321, 2332 (2012), and noting that the “Ex Post Facto Clause, Art. I, § 9, cl. 3, prohibits applying a new Act‘s higher penalties to pre-Act conduct.” Petitioner subsequently submitted a second letter of supplemental authority, citing Peugh v. United States, --- U.S. ---, 133 S. Ct. 2072 (2013). In that case, the Supreme Court found an ex post facto violation where a defendant had been sentenced under more draconian Guidelines first promulgated after he committed the crime. Peugh v. United States, supra, 133 S. Ct. at 2088. On August 22, 2013, petitioner requested, inter
alia, an evidentiary hearing, but failed to identify any factual dispute that would warrant a hearing (Petition Requesting the Court to Compel the Government to Re-File Their Response in Opposition to Petitioners
III. Analysis
A. Petitions Under 28 U.S.C. § 2255
A prisoner in federal custody may move to vacate, set aside or correct his sentence only “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 a sentence, or that sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.”
Moreover, where, as here, the “motion and the files and records of the case conclusively show that the petitioner is entitled to no relief,” a court need not hold an evidentiary hearing.
Finally, because petitioner is appearing pro se, the Court construes the Petition liberally and interprets it to raise the strongest arguments that it suggests. See Erickson v. Pardus, 551 U.S. 89, 84 (2007); Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999).
B. Enforceability Of Petitioner‘s Right to File A Collateral Attack
As a preliminary matter, the Government argues that the Petition is barred because the waiver provision in the plea agreement expressly prohibits petitioner from seeking relief under
Accordingly, I consider first petitioner‘s claim that his waiver should not be enforced.
1. Applicable Law
a. Knowing And Voluntary Waiver
“It is by now well-settled that a defendant‘s knowing and voluntary waiver of his right to appeal a sentence within an agreed upon guideline range is enforceable.” United States v. Djelevic, 161 F.3d 104, 106 (2d Cir. 1998). This principle was recently reaffirmed by the Second Circuit in United States v. Riggi, supra, 649 F.3d at 146 (“Waivers of the right to appeal a sentence are presumptively enforceable.“), quoting United States v. Arevalo (Vigil), 628 F.3d 93, 98 (2d Cir. 2010); accord Grafton v. United States, CV-09-1551, 2011 WL 4793162 at *2 (E.D.N.Y. Aug. 24, 2011). A knowing and voluntary waiver of the right to litigate pursuant to Section 2255 is also valid and enforceable. See Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir. 2002) (“There is no general bar to a waiver of collateral attack rights in a plea agreement.“) (citation omitted); Garcia–Santos v. United States, 273 F.3d 506, 508 (2d Cir. 2001) (“We find no error in the District Court‘s deter
A waiver is “knowing” if the “defendant fully understood the potential consequences of his waiver.” United States v. Monzon, 359 F.3d 110, 116 (2d Cir. 2004) (inner quotation marks and citation omitted); accord United States v. Coston, 737 F.3d 235, 237 (2d Cir. 2013); United States v. Cook, 722 F.3d 477, 481 (2d Cir. 2013); United States v. Rosario, 300 F. App‘x 58, 58-59 (2d Cir. 2008). In determining whether a defendant understood the consequences of a waiver,
the district court [is] entitled to rely upon the defendant‘s sworn statements, made in open court . . . , that he understood the consequences of his plea, had discussed the plea with his attorney, knew that he could not withdraw the plea, understood that he was waiving his right to appeal a sentence below [the agreed upon time], and had been made no promises except those contained in the plea agreement. See Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977) (“The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.“); see also United
United States v. Hernandez, 242 F.3d 110, 112-13 (2d Cir. 2001). Accordingly, “[w]here the record clearly demonstrates that the defendant‘s waiver of h[is] right to appeal a sentence within an agreed Guidelines range was knowing and voluntary, that waiver is enforceable.” United States v. Monzon, supra, 359 F.3d at 116, quoting United States v. Salcido-Contreras, 990 F.2d 51, 51-52 (2d Cir. 1993) (per curiam) and United States v. Rivera, 971 F.2d 876, 896 (2d Cir. 1992).
b. Ineffective Assistance Of Counsel3
The presumption that a waiver is enforceable may be overcome by “an attack on the validity of the process by which the waiver has been procured, here, the plea agreement.”
[W]aivers do not prevent defendants from “seeking relief from the underlying plea where” . . . “[a]n ineffective assistance of counsel claim . . . concerns the advice the defendant received from counsel,” Parisi v. United States, 529 F.3d 134, 138 (2d Cir. 2008) (internal quotations omitted) (emphasis added), because “the very product of the alleged ineffectiveness’ cannot fairly be used to bar a claim of ineffective assistance of counsel[,]” United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001) (internal quotations omitted). In particular, the Second Circuit has distinguished between “challenging the attorney‘s role in shaping the defendant‘s bargaining position[,] [which] cannot avoid the waiver, [and] challenging the attorney‘s advice about the bargaining position, by connecting the knowing and voluntary nature of the defendant‘s plea decision with the attorney‘s conduct,” which does avoid the waiver. Parisi, 529 F.3d at 138-39 (emphasis original.)
The mere assertion of an ineffective-assistance-of-counsel claim is not sufficient to overcome the presumption that a waiver is enforceable. United States v. Monzon, supra, 359 F.3d at 118-19 (“We reject the notion that an appeal waiver becomes unenforceable simply because a defendant ‘claims’ . . . ineffective assistance of counsel.“). The claim of ineffective assistance must relate to the plea process and be meritorious to
Thus, a claim of ineffective assistance that is unrelated to the plea bargaining process does not provide a basis on which to invalidate a waiver of the right to challenge the conviction by appeal or by a Section 2255 proceeding. Liriano v. United States, supra, 2009 WL 2972519 at *3. “Similarly, counsel‘s alleged deficiencies at sentencing are also barred by
A claim that counsel was ineffective during the plea-bargaining process must be evaluated under the now-familiar, two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Hill v. Lockhart, 474 U.S. 52, 57-58 (1985) (Strickland analysis applies to plea process); Ramzan v. United States, 11 Civ. 1191 (NRB), 06 Cr. 456 (NRB), 2012 WL 3188847 at *4 (S.D.N.Y. Aug. 6, 2012) (Buchwald, D.J.); Hernandez v. United States, 280 F. Supp. 2d 118, 122 (S.D.N.Y. 2003) (Koeltl, D.J.). Under Strickland v. Washington, supra, 466 U.S. at 686–87:
The benchmark for judging any claim of ineffectiveness must be whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.
* * *
Accord Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005); Aeid v. Bennett, 296 F.3d 58, 62–63 (2d Cir. 2002); Hernandez v. United States, 202 F.3d 486, 488 (2d Cir. 2000); Hurel–Guerrero v. United States, 186 F.3d 275, 281–82 (2d Cir. 1999); McKee v. United States, 167 F.3d 103, 106–07 (2d Cir. 1999); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998). Because the test is conjunctive, a habeas petitioner‘s failure to satisfy either prong requires that the challenge to the conviction be rejected. Strickland v. Washington, supra, 466 U.S. at 697.
As to the first requirement, petitioner must show that “counsel‘s representation fell below an objective standard of reasonableness.” Strickland v. Washington, supra, 466 U.S. at 688. Courts “must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presump
With respect to the second prong, petitioner must show “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, supra, 466 U.S. at 694. “[I]n the context of plea negotiations, the defendant must show that there is a reasonable probability that were it not for counsel‘s errors, he would not have pled guilty and would have proceeded to trial.” United States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005), citing Hill v. Lockhart, supra, 474 U.S. at 59; accord United States v. Doe, 537 F.3d 204, 214 (2d Cir. 2008).
“‘[W]here the alleged error of counsel is a failure to investigate . . ., the determination whether the error ‘prejudiced’ the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence
Finally, “[i]n considering an ineffective counsel claim [arising out of a petitioner‘s decision to plead guilty], a court need not accept a petitioner‘s uncorroborated, self-serving testimony as true.” Grullon v. United States, 99 Civ. 1877 (JFK), 2004 WL 1900340 at *6 (S.D.N.Y. Aug. 24, 2004) (Keenan,
2. Application of the Foregoing Legal Principles
Petitioner argues that he did not “knowingly” agree to the waiver because his counsel was ineffective. He alleges that counsel failed to advise petitioner of the correct Guidelines and of potential ex post facto issues (Petition at 14). Specifically, petitioner alleges:
In this case, the defendant‘s waiver of his right was not done knowingly in that he was agreeing to a guideline that was not the correct guideline manual and in violation of his rights under the Ex Post Facto Clause. Accordingly, he was giving up such rights operating under ignorance and mistake of the legal consequences and constitutional rights in that the guideline calculation was incorrect and that the use of the later guidelines would result in more than a tripling of the guideline range in violation of the Ex Post Facto Clause. The failure of counsel to know the correct guideline and the ex post facto issue at the time of entering the plea agreement raised the issue of
ineffective assistance of counsel and the very product of the alleged ineffectiveness cannot be used as to bar [sic] a claim of ineffective assistance of counsel.
* * *
Defendant contends that he was denied his constitutionally guaranteed right to the effective assistance of counsel when the defendant‘s counsel failed to discover a second Ex Post Facto violation concerning Count Three of the Plea Agreement, “Receiving the Proceeds of an Extortion,” in violation of
During the Plea allocution on July 9, 2009, before Judge Rakoff, the defendant stated on page 16 of the pleading transcript as to Count Three, “I accepted the proceeds from an extortion in the Southern District of New York in 1990.”
Unknown to the defendant‘s counsel and not preserved at either the district court or the Appellate Court, the crime to which the defendant pled guilty to [sic], “receiving the Proceeds of an Extortion,” was not enacted until September 13, 1994, four years after the date to which the defendant allocuted to having committed the offense, which would make the defendant actually innocent of the offense as charged. (Petition at 14, 16 (emphasis in original)).
Even reading the Petition liberally, the foregoing are petitioner‘s only attempts to connect the claimed ineffective assistance to the plea agreement‘s waiver provision. Thus, unless petitioner succeeds in establishing one of the foregoing ineffective assistance claims or otherwise establishes that his consent to the plea agreement was not knowing and voluntary, the plea agreement‘s waiver provision is enforceable.
At the outset, there is simply no support in the record for petitioner‘s self-serving statement that the waiver “was not knowingly, competently or intelligently” entered into (Petition at 14). The record clearly demonstrates that petitioner stated he understood the consequences of the plea agreement‘s appeal/2255 waiver provision and that he had voluntarily entered into the agreement. During petitioner‘s plea allocution, petitioner acknowledged, under oath, that he had discussed the terms of the plea agreement with Parsons, and pursuant to those discussions, that he understood the terms (Ex. C to Opp‘n at 12-13). Petitioner also expressed his satisfaction with counsel‘s representation of him (Ex. C to Opp‘n at 5). Petitioner affirmed that he had not been threatened, induced or coerced into signing the plea agreement (Ex. C to Opp‘n at 14-15). Most importantly, while conducting petitioner‘s plea allocution, Judge Rakoff clearly informed petitioner of the consequences of the appeal/2255 waiver provision in the plea agreement: “under your agreement with the government, you have agreed that if the sentence is 18 years or less, you will not file any appeal or collateral attacks on the sentence;” petitioner acknowledged his understanding in response (Ex. C to Opp‘n at 14). On this basis,
Accordingly, the transcript of petitioner‘s plea allocution establishes that petitioner discussed the terms of the plea agreement with counsel and that he understood the plea agreement‘s waiver provision. See United States v. Monzon, supra, 359 F.3d at 118 (“[T]here is nothing in the transcript of [petitioner‘s] plea allocution to support her contention that she did not understand her Plea Agreement commitment to give up the right to appeal her sentence.“); Vernon v. United States, 03 Civ. 7859 (RWS), 2004 WL 1354115 at *3 (S.D.N.Y. June 17, 2004) (Sweet, D.J.) (“[T]he transcript of [petitioner‘s] plea allocution clearly shows that his waiver of his right to appeal or to collaterally attack his sentence was made voluntarily and knowingly.“).
b. Ineffectiveness As To Ex Post Facto Rights
Petitioner next argues that counsel improperly failed to advise him of ex post facto violations, which impaired his ability to make an informed waiver.
The parties stipulated in the plea agreement to the applicability of the Guidelines in effect as of November 1, 2008
For the reasons set forth below, neither claim provides a basis to invalidate the waiver.
i. Application of 2008 Guidelines
“‘[T]he Ex Post Facto Clause forbids the [government] to enhance the measure of punishment by altering the substantive ‘formula’ used to calculate the applicable sentencing range.‘” Peugh v. United States, supra, 133 S. Ct. at 2088, quoting Cal. Dep‘t of Corr. v. Morales, 514 U.S. 499, 505 (1995). Thus, an ex post facto violation occurs if a defendant is sentenced under an amended Guidelines provision, which provides for a higher sen
Even assuming counsel‘s performance “fell below an objective standard of reasonableness,” petitioner cannot show with “reasonable probability that . . . the result of the proceeding would have been different,” Strickland v. Washington, supra, 466 U.S. at 688, 694, and cannot, therefore, establish the prejudice necessary to sustain an ineffective-assistance claim.
Judge Rakoff directly addressed the ex post facto issue during the sentencing hearing, and after noting the discrepancy
I have to frankly say on this record that I don‘t think [adopting the 2008 Guidelines] is going to have material affect on my sentence and I don‘t think it is going to be a material affect if I had calculated it at 78 to 97 [months, as called for by the 1989 Guidelines;] it doesn‘t seem to me that the [G]uidelines in this situation are operating in a way that gives the Court any meaningful guidance as to what sentence it should impose.
(Ex. E to Opp‘n at 11). Indeed, in considering petitioner‘s direct appeal, the Second Circuit observed that Judge Rakoff‘s “explicit consideration of the phenomenon that arguably implicates the Ex Post Facto Clause, and the decision to discount or disregard the provision said to create the violation, may [have] eliminate[d] any ‘significant risk’ of a more severe sentence.” United States v. Riggi, supra, 649 F.3d at 148 n.4. Hence, to the extent any error occurred, it occurred without prejudice to petitioner. See Peugh v. United States, supra, 133 S. Ct. at 2088 n.8 (ex post facto error is harmless when record demonstrates that the sentencing judge would have imposed the same sentence under either Guideline).
Petitioner‘s case is entirely distinguishable from Dorsey v. United States, supra, on which petitioner relies. In that case, the defendant was convicted of
Dorsey has no applicability here. As noted above, Judge Rakoff did not impose a fifteen and one-half year sentence on petitioner because he believed he was bound to do so by the 2008 Guidelines. To the contrary, Judge Rakoff stated that he would have imposed the same sentence regardless of which version
In addition, even if petitioner was not aware of the ex post facto issue at the time the plea was entered, he certainly became aware of it when the sentencing hearing occurred. Yet, petitioner made no attempt to withdraw his plea of guilty at that time and does not even allege that he would have rejected the plea deal had he been aware of counsel‘s alleged error. See United States v. Arteca, supra, 411 F.3d at 320 (Petitioner must show that he would not have pled guilty, absent counsel‘s errors.).
Thus, because petitioner cannot show prejudice resulting from counsel‘s alleged failure to provide correct advice concerning the applicable Guidelines, he has failed to establish a Sixth Amendment violation on this theory and has failed to establish a basis to invalidate the plea agreement‘s waiver provision.
The exact nature of petitioner‘s second specification of ineffective assistance asserted as a basis to invalidate the appeal/2255 waiver provision is somewhat unclear. As noted above, petitioner states the claim as follows:
Defendant contends that he was denied his constitutionally guaranteed right to the effective assistance of counsel when the defendant‘s counsel failed to discover a second Ex Post Facto violation concerning Count Three of the Plea Agreement, “Receiving the Proceeds of an Extortion,” in violation of
18 [U.S.C. §] 880 , in or about 1990 through in or about 2000.During the Plea allocution on July 9, 2009, before Judge Rakoff, the defendant stated on page 16 of the pleading transcript as to Count Three, “I accepted the proceeds from an extortion in the Southern District of New York in 1990.”
Unknown to the defendant‘s counsel and not preserved at either the district court or the Appellate Court, the crime to which the defendant pled guilty to [sic], “receiving the Proceeds of an Extortion,” was not enacted until September 13, 1994, four years after the date to which the defendant allocuted to having committed the offense, which would make the defendant actually innocent of the offense as charged. (Petition at 14, 16 (emphasis in original)).
Petitioner appears to be claiming that his counsel was ineffective for not recognizing that his plea to the offense of receiving the proceeds of extortionate conduct was defective because he admitted to such conduct in 1990 only -- four years prior to the conduct being criminalized.
[T]he refusal to apply a waiver of ineffective assistance of counsel only allows appellate review of the constitutionality of the process by which the plea agreement was consummated. If the constitutionality of that process passes muster, the plea agreement‘s waiver would bar any consideration by the appellate court of issues that fall within the scope of that waiver.
United States v. Hernandez, supra, 242 F.3d at 114; accord United States v. Cano, supra, 494 F. Supp. 2d at 248; see also Parisi v. United States, 529 F.3d 134, 138-39 (2d Cir. 2008) (“[A]lthough challenging the attorney‘s role in shaping the defendant‘s bargaining position cannot avoid the waiver, challenging the attorney‘s advice about that bargaining position, by connecting the knowing and voluntary nature of the defendant‘s plea decision with the attorney‘s conduct, does.” (emphasis in original)); United States v. Djelevic, supra, 161 F.3d at 107 (appeal waiver provision in plea agreement precludes appellate claim that counsel was ineffective at sentencing); Garafola v. United States, supra, 909 F. Supp. 2d at 329 (Koeltl, D.J.) (appeal/2255 waiver provision in plea agreement precludes claims of ineffective
Petitioner‘s claim here arises out of conduct occurring after the negotiation and execution of the plea agreement, i.e., his allocution that he received the proceeds of extortionate conduct in 1990 only.4 However, in the absence of evidence that petitioner advised his counsel prior to his plea that his conduct concerning this count of the information ended in 1990, it is impossible to conclude that counsel‘s performance was deficient with respect to the negotiation of the plea agreement. Petitioner discloses no facts concerning his pre-plea discussions with his counsel; nor does he claim that he would have sought different terms or would not have entered into the plea agreement had he known that receiving the proceeds of extortionate conduct was not a federal crime until 1994. Because a 2255 petitioner
Thus, assuming, without deciding, that counsel‘s failure to recognize the deficiency in petitioner‘s allocution to Count Three did constitute ineffective assistance, the plea agreement‘s appeal/2255 waiver provision precludes that failure from serving as a basis for relief.
Admittedly, it is possible to view this specification of ineffective assistance as asserting that counsel improperly failed to advise petitioner, during the plea negotiation process, that receiving the proceeds of extortionate conduct was not a federal crime until 1994 and that the plea was, therefore, not knowing and voluntary. However, even if I were to construe the claim in this manner, there was no prejudice to petitioner. If
Accordingly, I conclude that the ineffective assistance of counsel asserted in connection with petitioner‘s plea to Count Three of the superseding information does not invalidate the appeal/2255 waiver provision in the plea agreement. As explained above, the claim is unrelated to the negotiation of the plea agreement. In addition, if it is deemed to be related to the negotiation of the plea agreement, the purported deficiency did not result in any prejudice to petitioner.7
Because petitioner‘s claims that counsel was ineffective during plea negotiations are without merit, and the plea
C. Remaining Claims
Petitioner‘s remaining claims consist of the following: (1) the CHC used to calculate petitioner‘s sentence was incorrect and (2) Judge Rakoff should have reduced petitioner‘s sentence by the total amount of time petitioner served in connection with the Florida securities fraud conviction, pursuant to
The waiver provision in the plea agreement does bar petitioner from challenging the accuracy of the CHC. Petitioner stipulated in the plea agreement to the CHC he now complains of
The analysis differs with respect to the claim that Judge Rakoff should have given petitioner more credit for the time served in connection with petitioner‘s securities fraud conviction. Petitioner specifically reserved the right in the plea agreement to seek a lower sentence on the basis of the time he served for the Florida securities fraud conviction (Ex. D to Opp‘n at 5). Further, the Second Circuit has held that a waiver of the right to attack a sentence within a stipulated Guidelines range does not preclude a defendant from filing a collateral attack
Despite surviving the waiver, petitioner‘s failure to raise the claim on direct appeal constitutes a procedural default.
If . . . a habeas petitioner asserts a claim that he did not raise on direct review, that claim will be considered procedurally defaulted and thus ineligible for review in a Section 2255 proceeding unless the petitioner “can first demonstrate either ‘cause’ [for the default] and actual ‘prejudice,’ or that he is ‘actually innocent.‘” Bousley v. United States, 523 U.S. 614, 622 (1998) (citations omitted). To satisfy the “cause” requirement, the petitioner must show circumstances “external to the petitioner, something that cannot be fairly attributed to him.” Coleman v. Thompson, 501 U.S. 722, 753 (1991). Attorney ignorance or error is not “cause” for a procedural default unless the error rises to the level of constitutional ineffectiveness. Id. at 752-55. To establish “prejudice,” the petitioner must establish that the errors “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Rodriguez v. Mitchell, 252 F.3d 191, 203 (2d Cir. 2001) (citations omitted). Finally, to establish actual innocence, the petitioner must demonstrate that “in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousely, 523 U.S. at 623 (internal quotation marks and citations omitted).
Cole v. United States, 00 Cr. 105 (RPP), 04 Civ. 2716 (RPP), 2005 WL 217019 at *3 (S.D.N.Y. Jan. 27, 2005) (Patterson, D.J.); see Garafola v. United States, supra, 909 F. Supp. 2d at 326. Because
Even if I were to consider the merits of the claim, it would fail on the merits. Section 5G1.3 governs the imposition of a sentence on a defendant who is subject to an undischarged term of imprisonment. Section 5G1.3(b)(1) states, in part:
If . . . a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction . . . and that was the basis for an increase in the offense level for the instant offense . . . , the sentence for the instant offense shall be imposed as follows:
(1) the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons; and
(2) the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged term of imprisonment.
In order for subsection (b) to apply, petitioner must have been subject to an undischarged term of imprisonment, and the conduct underlying that sentence must have been relevant and been fully taken into account in the determination of petitioner‘s offense level. See Witte v. United States, 515 U.S. 389, 405 (1995) (“If a defendant is serving an undischarged term of imprisonment ‘result[ing] from offense(s) that have been fully taken
Because petitioner asserts no other basis for challenging Judge Rakoff‘s decision, and there is no evidence that Judge Rakoff exceeded his discretion in fashioning a partially concurrent sentence, petitioner‘s claim that he should have received
Accordingly, petitioner‘s claim should be dismissed as procedurally defaulted or, in the alternative, as meritless.
For all the foregoing reasons, I respectfully recommend that the Petition be dismissed.
In addition, because petitioner has not made a substantial showing of the denial of a constitutional right, I also recommend that a certificate of appealability not be issued.
I further recommend that certification pursuant to
Pursuant to
Dated: New York, New York
January 16, 2014
Respectfully submitted,
HENRY PITMAN
United States Magistrate Judge
Copies mailed to:
Mr. Philip Abramo
No. 17652-050
FCI Allenwood Medium
Federal Correctional Institution
P. O. Box 2000
White Deer, Pennsylvania 17887
Steve C. Lee, Esq.
Assistant United States Attorney
Southern District of New York
1 St. Andrew‘s Plaza
New York, New York 10007