Summary
holding that appellate counsel's omission of meritless claims for direct appeal does not amount to deficient counsel performance
Summary of this case from Muyet v. U.S.Opinion
No. 00 Civ. 405 (JGK).
December 11, 2000.
OPINION AND ORDER
The petitioner, Kurian Chacko, moves pursuant to 28 U.S.C. § 2255 to vacate his conviction and sentence. He alleges five grounds for relief: (1) that the Government allegedly suppressed exculpatory and impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972); (2) that he received ineffective assistance from his trial counsel; (3) that the Government knowingly introduced perjured testimony at trial; (4) that he received ineffective assistance from his appellate counsel; and (5) that the Court's use of sentencing enhancements in the United States Sentencing Guidelines ("U.S.S.G."), which were not alleged in the indictment and determined beyond a reasonable doubt by the jury, violated the Fifth Amendment as determined by the United States Supreme Court inApprendi v. New Jersey, ___ U.S. ___, 120 S.Ct. 2348 (2000). Because none of these arguments has any merit, the petitioner's motion is denied.
I.
The facts in this case have already been recounted at length by this Court in United States v. Chacko, No. 96 Cr. 519, 1997 WL 481862 (S.D.N.Y. Aug. 21, 1997) and by the United States Court of Appeals for the Second Circuit in United States v. Chacko, 169 F.3d 140 (2d Cir. 1999). Familiarity with those decisions is assumed. The facts are summarized here to the extent relevant to this decision.
On March 31, 1997, the Government filed a six count superseding indictment against the petitioner. Count One charged the petitioner with engaging in a conspiracy, in violation of 18 U.S.C. § 371, from June 1992 through August 1995. The conspiracy involved making false statements to a bank in connection with a loan application, in violation of 18 U.S.C. § 1014, and committing bank fraud, in violation of 18 U.S.C. § 1344. Counts Two through Five charged the petitioner with making false statements in connection with a loan application, in violation of 18 U.S.C. § 1014. Each of those counts alleged a separate false statement submitted to the New York Branch of the State Bank of India ("the Bank"). These statements were submitted in May 1992 (Count Two), June 1992 (Count Three), July 1992 (Count Four), and September 1993 (Count Five). Count Six charged the petitioner with committing bank fraud, from May 1992 through August 1995, in violation of 18 U.S.C. § 1344. On June 3, 1997, the jury returned a verdict of guilty on Counts One, Two, Three, Five, and Six, and not guilty on Count Four.
The prosecution arose out of the petitioner's submission of false documents to the Bank in connection with two loans totaling $5 million on behalf of Balogh Jewelers ("Balogh"), a company he owned and operated. The petitioner represented that he needed the loan to buy new inventory for Balogh's New York store because he was shifting its inventory to a joint venture in the Middle East. At trial, the Government introduced numerous false documents submitted by the petitioner to the Bank including financial statements and tax returns, which overstated the petitioner's income and Balogh's assets and sales, and invoices, which overstated Balogh's inventory and purchases.
The Government also introduced two false appraisals of Balogh's merchandise that were purportedly done by Leo Lalieu ("Lalieu"). The submission of the appraisals to the Bank gave rise to Count Three of the indictment. The appraisals were written on Lalieu's stationery and contained his signature and corporate seal. At trial, Lalieu testified that he had never performed a valuation of Balogh's jewelry and never examined Balogh's books and records. Lalieu further testified that he gave his stationery and corporate seal to the petitioner, that he signed a document at the request of the petitioner or the petitioner's assistant, and that the petitioner returned the seal to him.
On August 6, 1992, the Bank agreed to lend the petitioner $4 million, and the Bank and the petitioner signed a credit agreement. In 1993, the petitioner requested an additional $1 million loan from the Bank. In support of the loan, the petitioner submitted a purported Christie's appraisal of Balogh's inventory to the Bank, which showed a value of $15,150,000. The submission of this false appraisal to the Bank gave rise to Count Five of the indictment. At trial, a representative of Christie's testified that the appraisal was fraudulent. On September 30, 1993, the Bank approved the additional $1 million loan for Balogh. The terms of the additional loan required the petitioner to submit monthly bank account statements from Balogh's Citibank account. The petitioner submitted what appeared to be Citibank account statements, but a representative from Citibank testified at trial that the documents were fraudulent. These statements overstated the financial health of Balogh.
After months of hollow promises, the petitioner continued to fail to pay off the loan and never paid it off. A lawyer for the Bank testified that at a meeting in September 1995, the petitioner admitted that there had been no Middle East venture and that he had used some of the loan proceeds to pay old debts rather than purchase jewelry.
After trial, represented by new counsel, the petitioner moved under Federal Rule of Criminal Procedure 33 to set aside his convictions on Counts Two, Three, and Five as multiplicitous of his conviction on Count Six, the general bank fraud count. The petitioner also moved to set aside the entire verdict based on the allegedly improper summation by the prosecutor and the allegedly perjured testimony of several Government witnesses. The petitioner further moved under Federal Rule of Criminal Procedure 29(c) for acquittal on Count Six, contending that the Government did not prove beyond a reasonable doubt that he intended to harm the Bank. On August 21, 1997, this Court denied these motions. See Chacko, 1997 WL 481862.
On October 22, 1997, the petitioner filed a motion requesting reconsideration of the Court's rejection of his first post-trial motions. (Tr. Dec. 17, 1997 Hearing at 12.) He asked the Court to reconsider his argument that the Government witnesses committed perjury and submitted a supplemental description of the alleged perjury. He also moved to set aside the verdict based on a handwriting analysis of documents the Government provided to him before trial. He claimed that the recently obtained handwriting analysis was "newly discovered evidence." On December 17, 1997, this Court denied this motion in an oral ruling. The Court rejected the petitioner's renewed allegation of perjury by Government witnesses as both untimely and meritless. (Id. at 12-15.) The Court also held that the handwriting analysis was not newly discovered evidence because the underlying documents had been produced prior to trial and could have been analyzed then. Moreover, the handwriting analysis was meaningless and would not lead to an acquittal. (Id. at 15-16.)
On January 22, 1998, this Court sentenced the petitioner principally to 121 months' imprisonment, 60 months on Count One, and 121 months on Counts Two, Three, Five, and Six to run concurrently with each other and with Count One. Pursuant to U.S.S.G. § 2F1.1, the petitioner's base offense level of 6 was increased 14 levels because the intended loss exceeded $5,000,000. This Court added two levels pursuant to U.S.S.G. § 2F1.1(b)(2)(A) because the offense involved more than minimal planning, added four levels pursuant to U.S.S.G. § 2F1.1(b)(6)(B) because the offense affected a financial institution and the petitioner derived more than $1,000,000 from the offense, added four levels pursuant to U.S.S.G. § 3B1.1(a) because the petitioner was an organizer or leader of a criminal activity that involves five or more participants, and added two levels pursuant to U.S.S.G. § 3C1.1 because the petitioner obstructed justice by testifying falsely at trial. The total offense level was therefore 32, the Criminal History category was I, and the Guideline Sentencing Range was 121-151 months.
After the petitioner was sentenced, U.S.S.G. 2F1.1(b)(6)(b) was renumbered as 2F1.1(b)(7)(b). See U.S.S.G. app. C, Amend. 587 (1998).
Represented by a third counsel, the petitioner appealed the judgment of conviction and raised some of the arguments that he had raised in his post-trial motions. He argued that the indictment was multiplicitous, that the evidence was insufficient to prove beyond a reasonable doubt that the petitioner intended to harm the Bank, and that the prosecutor's summation was improper. He also argued that this Court's four-level role enhancement under U.S.S.G. § 3B1.1(a) was improper. On March 1, 1999 the United States Court of Appeals for the Second Circuit affirmed the judgment of conviction. See Chacko, 169 F.3d 140.
II.
The Government first argues that the petitioner is barred from raising several of his claims because they were not raised on direct appeal. "It is well-settled that where a petitioner does not bring a claim on direct appeal, he is barred from raising the claim in a subsequent § 2255 proceeding unless he can establish both cause for the procedural default and actual prejudice resulting therefrom." Billy-Eko v. United States, 8 F.3d 111, 113-14 (2d Cir. 1993) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982); accord Dejesus v. United States, 161 F.3d 99, 102 (2d Cir. 1998); Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993) (superseded by statute on other grounds); Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992); Joseph v. United States, No. 99 Civ. 3495, 2000 WL 460439, at *1 (S.D.N.Y. April 18, 2000)
The petitioner has not demonstrated cause and prejudice for the failure to raise his first claim on appeal. The petitioner's Brady arguments are that the Government failed to produce an affidavit at trial filed by witness Leo Lalieu in support of Lalieu's application for appointment of counsel, and that the Government failed to produce certain original exhibits for purposes of a handwriting analysis after the conclusion of the trial. Both of these arguments were known to appellate counsel and could have been raised on appeal.
The petitioner's second claim, which alleges that his trial counsel was ineffective is also barred. A claim of ineffective assistance of counsel can not be brought through a collateral attack without a showing of cause and prejudice when: "(1) the petitioner was represented by new appellate counsel at direct appeal, and (2) the claim is based solely on the record developed at trial." Billy-Eko, 8 F.3d at 115; accord Douglas, 13 F.3d at 47. It is undisputed that the petitioner was represented by new counsel on his appeal and his arguments of ineffective assistance of trial counsel are based on the trial record. With new appellate counsel, the petitioner could have raised his ineffective assistance of trial counsel on appeal but failed to do so. Thus the petitioner's claim of ineffective assistance of trial counsel is procedurally barred.
The petitioner has not established cause and prejudice for failing to raise his fourth allegation, which claims that the Government knowingly used perjured testimony at trial. Variations of this argument were raised and denied in the petitioner's Rule 33 motion and his motion for reconsideration. See Chacko, 1997 WL 481862, at *8-9; Tr. of Dec. 17, 1997 Hearing at 15-16. This argument is procedurally barred because it could have been raised on appeal but was not.
While the petitioner's first, second, and fourth claims are procedurally barred because they were not raised on appeal, it is still necessary to evaluate the substantive merits of those claims to resolve the petitioner's ineffective assistance of appellate counsel claim. "[A] petitioner may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues [on appeal] while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994); accord Jackson v. Leonardo, 162 F.3d 81, 85-86 (2d Cir. 1998) (holding that appellate counsel's failure to advance an argument that was a sure winner was ineffective assistance). If the petitioner establishes the strength of one of his otherwise procedurally barred claims, then the failure of appellate counsel to raise the claim on appeal may be a basis for an ineffective assistance of appellate counsel claim.
III.
The petitioner's claim that the Government violated Brady and Giglio by suppressing exculpatory and impeachment evidence is meritless. The petitioner advances two independent claims. First, he alleges that the jury was denied evidence that Lalieu committed perjury in an affidavit. Second, he argues that the Government failed to produce originals of documents that the petitioner claims would prove he had not forged Lalieu's signature.
Under Brady, "the 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." 373 U.S. at 87. The Brady rule applies to both exculpatory and impeachment evidence. See Giglio, 405 U.S. at 154-55; United States v. Payne, 63 F.3d 1200, 1210 (2d Cir. 1995). To establish a Brady violation, the petitioner must show (1) that the evidence at issue is favorable to the accused, either because it is exculpatory or impeaching; (2) that the government suppressed the evidence, either willfully or inadvertently and (3) that prejudice ensued. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Orena, 145 F.3d 551, 557 (2d Cir. 1998) (quoting Kyles v. Whitley, 514 U.S. 419, 433 (1995)).
A.
The petitioner alleges that the Government suppressed an affidavit made by Lalieu. Lalieu admitted during cross-examination that in order to obtain a court appointed attorney, he had previously submitted an affidavit stating that he had insufficient funds to pay for an attorney. (Trial Tr. at 853.) Yet during cross-examination, Lalieu acknowledged that he owned a home in Woodburn, New York, with no mortgage on it. (Trial Tr. at 849-50, 853), and paid taxes on a home in Florida and a summer home in Westbury. (Trial Tr. at 849.) He claimed that he had disclosed his ownership of the Woodburn home in the affidavit. (Trial Tr. at 853.)
The Government correctly argues that the affidavit is not Brady material for numerous reasons. Under Brady, evidence is not suppressed if "the defendant or his attorney either knew or should have known, of the essential facts permitting him to take advantage of [that] evidence."Payne, 63 F.3d at 1208 (internal quotation marks and citations omitted);accord United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982); United States v. Brown, 582 F.2d 197, 200 (2d Cir. 1978). Lalieu was forthright about the existence of the affidavit and his real estate holdings. Therefore, the defense knew enough to impeach Lalieu's credibility by arguing that Lalieu's real estate holdings showed that the affidavit he had submitted to obtain counsel must have been false. Moreover, having been alerted to the substance of the affidavit, the defense counsel could have pursued the affidavit if it were important. Indeed, the Court adjourned the trial for the evening to allow the parties to pursue the issue of the affidavit, (Trial Tr. at 855), but the issue was not raised again. It is apparent that defense counsel had already impeached Lalieu with the substance of the affidavit and that any further impeachment with any affidavit would not have added materially to the impeachment. As the Court noted in denying the petitioner's motion for reconsideration, defense counsel had thoroughly attacked the credibility of Lalieu during cross-examination and closing argument. (Tr. of Dec. 17, 1997 Hearing at 16.)
Finally, the Government had no obligation under Brady to produce a document it did not possess, See e.g., United States v. Pena, 227 F.3d 23, 27 n. 3 (2d Cir. 2000); Orena v. United States, 956 F. Supp. 1071, 1090 (E.D.N.Y. 1997), and there is no evidence that the Government possessed the financial affidavit. The Government agreed to search for the affidavit (Trial Tr. at 854), but there is no indication that the Government had the affidavit and failed to produce it. Therefore, the failure to produce the affidavit was not a violation of the Government'sBrady obligation. See United States v. Hutcher, 622 F.2d 1083, 1088 (2d Cir. 1980) (Government's failure to produce affidavits that were made for a prior bankruptcy proceeding was not a Brady violation because the affidavits were in the possession of an arm of the district court and were not subject to the prosecution's control)
B.
The petitioner next alleges that the Government failed to produce the originals of 3 documents, specifically Government Exhibits 64, 300, and 301, and 302, after trial. He claims that without these originals his handwriting expert could not establish that the petitioner had not forged Lalieu's signature. The petitioner contends that he gave copies of the documents to a handwriting expert along with samples of Lalieu's handwriting. While the expert tentatively concluded that there were indications that the signatures were authentic, the conclusion was not with a reasonable degree of certainty and the expert needed the original documents to come to a more definitive conclusion. (Petitioner's Motion, Ex. B.)
The Government correctly argues that the documents were not suppressed because as this Court has already held, they were available upon request before and during trial and the defense did not ask for them until after the trial. (Tr. of December 17, 1997 Hearing at 15) ("Since the defendant could have obtained any expert opinion regarding the handwriting on these documents with minimal difficulty before trial, this evidence is not newly discovered."). When these documents were sought in connection with post-trial motions, the Court pointed out that expert testimony showing that Lalieu had signed the documents might not be in the defendant's best interests at sentencing. The documents were false and implicating Lalieu in the submission of false documents might increase the number of participants in the scheme, which was contrary to what the defense counsel sought to do at sentencing. (Id. at 21.) The petitioner's counsel said that he would reconsider the request and would submit a letter if he wanted to renew it. (Id. at 23). There was no subsequent request.
Because there was no request for the documents, to establish a Brady violation the petitioner must show that "the undisclosed evidence, viewed in the context of the entire record creates a reasonable doubt that otherwise would not exist." Cantone v. Superintendent, 759 F.2d 207, 213 (2d Cir. 1985) (internal citation omitted); accord Brown v. Bartlett, No. 92 Civ. 0324, 1993 WL 51073, at *3 (S.D.N.Y. Feb. 23, 1993). The petitioner has not established such doubt. In fact, as the Court ruled, there was a risk to pursuing this line of argument because it might have meant that Lalieu was a knowing participant in the scheme, which may not have been in the defendant's interest for purposes of sentencing. See e.g., Chacko, 169 F.3d at 150-51 (discussing the findings necessary for a role enhancement under U.S.S.G. § 3B1.1(a)). Furthermore, even if the handwriting analysis established the signatures were not forged, the documents were still fraudulent appraisals. In fact, the petitioner conceded that Lalieu was not qualified to do an appraisal. (Trial Tr. at 1035.) The petitioner conveyed these documents to the Bank and it was the petitioner who benefitted from these false appraisals. The jury could reasonably have concluded that the petitioner knew these documents were fraudulent even if he had not forged the signatures. The failure to produce the original documents for a post-trial handwriting analysis that would not have changed the result at trial is not a Brady violation.
C.
The petitioner asks for an evidentiary hearing on his Brady claims. However, the petitioner has not met his burden of establishing a genuine issue of material fact that would require an evidentiary hearing. See United States v. Aiello, 814 F.2d 109, 113-14 (2d Cir. 1987). His request for an evidentiary hearing on his Brady claims is denied. See, e.g., United States v. Svendsen, 72 F. Supp.2d 149, 161 (E.D.N.Y. 1999) (denying request for evidentiary hearing because petitioner's Brady claim was without merit).
IV. A.
The petitioner raises numerous examples of what he alleges to be ineffective assistance by his trial counsel. To establish a claim of ineffective assistance of counsel, the petitioner must show both that: (1) his counsel's performance was deficient in that it was objectively unreasonable under professional standards prevailing at the time, and (2) that his counsel's deficient performance was prejudicial to his case. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Bunkley v. Meachum, 68 F.3d 1518, 1521 (2d Cir. 1995)
The petitioner cannot meet the first prong of this test merely by showing that his counsel employed poor strategy or made a wrong decision. Instead, the defendant must establish that his counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." See Strickland, 466 U.S. at 687. In fact, there is a "strong presumption" that defense counsel's conduct fell within the broad spectrum of reasonable professional assistance, and a defendant bears the burden of proving "that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (citing Strickland 466 U.S. at 688-89)
To meet the second prong of the Strickland test, the petitioner must show that "[t]here 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." Strickland, 466 U.S. at 694; see also Ramos v. United States, No. 97 Civ. 2572, 1998 WL 230935, at *3 (S.D.N.Y. May 8, 1998)
B.
In this case, the petitioner raises a laundry list of alleged errors in which he seeks to second guess the trial strategy of his experienced and zealous trial counsel. Taken singly and cumulatively, the petitioner's claims are utterly without substance.
1. The petitioner alleges that his trial counsel was inadequately prepared and failed to investigate his claim. The petitioner claims that because of this inadequate preparation, his trial counsel only put on one witness and did not put on available witnesses such as a banking expert, an investigator, and a friend of the petitioner's accountant. He also claims that because of a lack of preparation trial counsel did not introduce all of the defense exhibits. The Government correctly responds that the petitioner has not shown that the testimony of any of these witnesses would have made a difference in the trial, and each of these witnesses could have given testimony that was harmful to the defendant. The decision to put on witnesses is a strategic decision within the discretion of trial counsel. See, e.g., United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992); Pitre v. United States, 834 F. Supp. 128, 131 (S.D.N.Y. 1993) Moreover, the petitioner has not shown that the failure to introduce more exhibits was unreasonable or that any of these exhibits would have made any difference at trial.
The defense actually called two witnesses at trial, the defendant and Leonard Lombardi, the defendant's former counsel.
The petitioner also alleges that trial counsel's failure to develop information about a federal investigation of the Bank was objectively unreasonable. The petitioner refers to certain letters of concern regarding the petitioner's loan account that were uncovered in the investigation. However, he fails to show how those letters if introduced at trial would have made a difference in his case.
2. The petitioner alleges that trial counsel failed to object to three allegedly biased jurors with bad opinions of persons with Indian heritage as a result of prior business relations. In fact, the Court excused all biased jurors from service. (Tr. of Voir Dire on May 13, 1997 at 20, 29, 32, 33, 47, 201, 211.) While juror number 1 did indicate that she had good experiences and bad experiences with people of the defendant's ethnicity (Id. at 148), she also stated that she believed she would be able to decide the case on the facts and the law. (Id. at 149-50.) The petitioner does not point to any statement by any juror to show that the juror was in fact biased.
Trial counsel was not passive during the extensive voir dire examination. In addition to the numerous challenges for cause which the Court granted sua sponte, defense counsel successfully struck two jurors for cause. (Id. at 201, 211.) Defense counsel made two challenges for cause that were denied (Id. at 77, 159-160, 235), but was able to remove both jurors with his first preemptory challenge. (Id. at 238.) There is nothing about defense counsel's conduct at the voir dire that would support a claim of ineffective assistance of counsel.
3. The petitioner alleges that one of the Government's main witnesses, Paul Doyle ("Doyle"), violated a sequestration order and attended the trial. There is no evidence that Doyle violated the order or that trial counsel was aware of the alleged violations and failed to object. Even if Doyle attended the trial, the petitioner has not demonstrated prejudice by pointing to aspects of Doyle's testimony that might have been affected by his alleged presence at trial.
4. The petitioner argues that his trial counsel should not have allowed Doyle to testify to an alleged confession by the petitioner during a civil settlement negotiation. But trial counsel did object extensively to that testimony before the Government's opening statement (Trial Tr. at 2-7, 18-20), despite the existence of authority that would have permitted the admissibility of the defendant's prior statement at a civil settlement conference. See e.g., Manko v. United States, 87 F.3d 50, 54-55 (2d Cir. 1996). The objection was withdrawn after it was confirmed that the petitioner had consented to a stipulation that statements made in the course of the negotiations would be admissible in other proceedings. (Trial Tr. at 22-28.) The Court also indicated that even without the stipulation it would not exclude the statement. (Trial Tr. at 26-29.)
5. The petitioner alleges that his trial counsel failed to object to the failure of the Government to produce Lalieu's affidavit. But as discussed earlier, there were no grounds to object because the Government did not have the affidavit. Trial counsel and the Government attempted to find the affidavit. (Trial Tr. at 854-55.) Moreover, there is no reason to believe that the affidavit would have undermined Lalieu's credibility in such a way as to make a difference in the outcome of the trial. Defense counsel was able to impeach Lalieu on the basis of his admissions with respect to his real estate holdings contrasted with his admissions with respect to his affidavit.
6. The petitioner argues that trial counsel failed to have the Government's handwriting expert examine certain documents that were allegedly forged by the petitioner. The Government correctly replies that trial counsel had no power to force the Government's witness to conduct such an examination. Also, there is no prejudice because trial counsel was still able to argue in closing that the signatures seemed authentic and encouraged the jurors to compare the signatures and decide the issue of authenticity for themselves. (Trial Tr. at 1475-76.) Rather than helping the petitioner, a handwriting examination may have established that the signatures were forged and precluded such an argument.
7. The petitioner argues that trial counsel did not confront witnesses about alleged lies. The petitioner's allegations are simply incorrect. The petitioner argues that trial counsel allowed Doyle to testify without contradiction that the petitioner had confessed that the Middle East venture did not exist. But trial counsel cross-examined Doyle about potential bias. (Trial Tr. at 796-97, 803.) He also called defense witness Leonard Lombardi to contradict Doyle's testimony by testifying that Lombardi did not recall the petitioner admitting at the civil settlement negotiation that there was no Middle East joint venture. (Trial Tr. at 930-31.)
The petitioner alleges that trial counsel allowed Michael Steinmetz ("Steinmetz") to testify that the petitioner had not paid him a debt when in fact a lawsuit on that debt was adjudicated in the petitioner's favor in New York State court. Actually, trial counsel cross-examined Steinmetz about the debt and the lawsuit (Trial Tr. at 621-22) and unsuccessfully tried to enter the opinion of the New York State court's decision concerning that debt into evidence. (Trial Tr. at 1090-99.) Finally, trial counsel introduced the petitioner's testimony to contradict Steinmetz' allegations. (Trial Tr. at 1099-1100.)
8. The petitioner alleges that trial counsel excused two prosecution witnesses, Lalieu and Joseph Rafalowitz without completing his cross examination. But the record shows that while trial counsel allowed Lalieu to leave early on Thursday, this was to allow trial counsel to search for the affidavit in support of Lalieu's request for appointed counsel and the cross was completed the following Tuesday. (Trial Tr. at 853-83.) Trial counsel initially demanded that Rafalowitz return for a second day of cross examination (Trial Tr. at 647), and only excused him because trial counsel concluded that further cross examination was unnecessary because Rafalowitz could not authenticate certain checks. (Trial Tr. at 654-59.) Trial Counsel's decisions were not objectively unreasonable and plainly fell well within the ambit of sound trial strategy. Moreover, the petitioner has not demonstrated that he was prejudiced in any way by these decisions.
9. The petitioner alleges that trial counsel failed to ask the prosecutor to produce bank employees who dealt with the petitioner. But the petitioner does not explain how doing so would have helped his case. In fact, the testimony of such employees, if elicited, might have been damaging because the petitioner had previously made numerous oral misrepresentations to the Bank and to its employees.
10. The petitioner attacks his trial counsel's refusal to have a document in evidence checked for the petitioner's fingerprints and trial counsel's refusal to argue about allegedly different dates on loan applications and faxes. The Government correctly argues that this argument fails because the petitioner conceded that he signed most of the documents. (Trial Tr. at 978-79.) Moreover, the petitioner does not explain how the alleged difference in dates on the applications and faxes would have helped his case.
11. The petitioner claims that trial counsel did not introduce into evidence a certain bank letter describing the receipt of invoices from the petitioner and failed to bring up the fact that many of the government exhibits were photocopies. The petitioner does not establish the letter's significance to his case. The Government introduced overwhelming evidence that many of the invoices submitted to the Bank were counterfeit. (Trial Tr. at 596-605, 608-20, 625-33 660-83, 700-05, 707-11, 717-37, 749-53.) The fact that the government exhibits were photocopies is not a ground for objection. See Federal Rule of Evidence 1003.
12. The petitioner alleges that trial counsel's summation was ineffective but this Court has already noted that the summation was effective and was not affected by any disputes between the petitioner and trial counsel. (Trial Tr. at 1592-93.)
In his reply, the petitioner alleges that the Government in its summation, in violation of the petitioner's Fifth and Sixth Amendment rights, improperly commented on the petitioner's right to testify and right to be present at trial and confront the witnesses against him. This argument has already been rejected by this Court and by the Court of Appeals. See Chacko, 169 F.3d at 149-50.
13. The petitioner's argument that trial counsel waived a multiplicitous indictment argument is baseless because the Second Circuit Court of Appeals has already determined that the indictment was not multiplicitous. Chacko, 169 F.3d at 145-46.
14. The petitioner alleges that trial counsel prejudiced his case by not producing all defense documents to the prosecutor. The plaintiff does not specify what documents trial counsel failed to produce. He does not establish that the failure to produce such documents prejudiced his case.
In sum, while the petitioner has raised a plethora of charges against his trial counsel, none of them has any even arguable merit. Trial counsel zealously represented the petitioner in the face of overwhelming evidence of the fraud that the petitioner had perpetrated against the Bank. The alleged errors of trial counsel were not errors and taken singly or cumulatively the changes in trial strategy that the petitioner now urges from hind sight would not have made any difference in the result at trial.
V.
The petitioner next alleges that the Government knowingly used perjured testimony at trial. He claims that Lalieu, Doyle, and Steinmetz lied under oath and the Government knew or should have known about it. However, this Court has found twice that the petitioner has not established that any of these witnesses committed perjury. See Chacko, 1997 WL 481862, at *8-9; (Tr. at Dec. 17, 1997 Hearing at 15-16.) The petitioner has presented no evidence to cause the Court to reconsider those decisions. Thus there is no basis to conclude that the testimony against the petitioner was false, and no basis to conclude that the Government knowingly used false testimony.
VI.
The petitioner next argues that the representation of his appellate counsel constituted ineffective assistance of counsel. "Although the Strickland test was formulated in the context of evaluating a claim of ineffective assistance of trial counsel, the same test is used with respect to appellate counsel." Mayo, 13 F.3d at 533. A petitioner can establish constitutionally inadequate performance by showing that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Id.
The petitioner alleges that the performance of his appellate counsel was ineffective because he only advanced four issues on appeal although the petitioner informed him of twelve potential appellate issues. The petitioner has not established that the omission of these issues on appeal was objectively unreasonable. As the Supreme Court has observed: "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745, 751-52 (1983); see also Benn v. Stinson, 917 F. Supp. 202, 206 (S.D.N.Y. 1995) ("[R]eviewing courts should not second guess the reasonable professional judgments of appellate attorneys as to the most promising appeal issues."). There is no merit to the plethora of issues that the petitioner urges should have been raised on appeal, and the addition of those meritless arguments would have detracted from any appellate brief. The petitioner's claims of a Brady violation, ineffective assistance of trial counsel, and the Government's knowledge of alleged perjury by witnesses, are unsupported by the facts and the law. It was not ineffective performance for appellate counsel to omit those issues in the brief to the Court of Appeals. The petitioner's description of other issues that he alleges should have been raised on appeal is vague and conclusory and does not suggest any meritorious issues. The petitioner has not established that his appellate counsel's performance was ineffective by demonstrating that any of these arguments were as strong as the ones actually raised on appeal or even that these arguments have any merit.
The petitioner also alleges that his appellate counsel failed to meet with him before the appeal was argued and did not cite enough cases in the appellate brief. In view of the contacts that the petitioner had with his appellate counsel it cannot be said that his appellate counsel provided ineffective assistance and the petitioner has failed to show any prejudice from the shortcomings he alleges.
The petitioner alleges that his appellate counsel's performance was ineffective because he received the Court of Appeals opinion one month after his counsel received it. However, the petitioner does not establish that he was prejudiced by the time he received the opinion. The petitioner had no right to appointed counsel in filing a petition for certiorari, See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), and the petitioner had ample time to file a petition for certiorari. See Sup.Ct. R. 13(1) (petition for certiorari must be filed within 90 days of the entry of judgment by a court of appeals). Taken singly and together, the petitioner's allegations against his appellate counsel have no merit and he has also failed to show any prejudice from any of the alleged errors.
VII.
The petitioner concludes his argument by alleging that the cumulative effect of his claims establishes a violation of his constitutional rights. However, there is no merit to the petitioner's claims and adding them together does not create a meritorious claim in this case. The petitioner's right to due process and a fair trial were not violated. The petitioner's trial counsel, sentencing counsel, and appellate counsel were all diligent and effective. There is nothing in the record that undermines confidence in the petitioner's conviction and the affirmance of that conviction.
VIII.
In a letter dated August 17, 2000, the petitioner argues that this Court's application of sections 2F1.1, 2F1.1(b)(2)(A), 2F1.1(b)(6)(B), and 3B1.1(a) of the United States Sentencing Guidelines ("the Guidelines"), which resulted in increases to his base offense level, violated the United States Supreme Court decision in Apprendi. The Government's response is that Apprendi does not apply to a case such as the petitioner's where sentencing factors resulted in a sentence within the statutory maximum. The Government also argues that the rule inApprendi does not apply retroactively to the petitioner's case.
In Apprendi, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 120 S.Ct. at 2362-63. The gist of the petitioner's argument is that the application of sentencing enhancements by this Court increased the penalty for his crimes and the decision to apply those enhancements was determined by facts that were not submitted to a jury and proved beyond a reasonable doubt.
The Guidelines at issue in this case only serve to guide the judge's discretion within the statutory maximum penalties set by Congress for the statutes that the petitioner violated. The petitioner was sentenced to a term of imprisonment of 121 months which consisted of 60 months on Count One and 121 months on Counts Two, Three, Five, and Six to run concurrently with each other and with Count One. The sentences on each of the Counts was within the statutory maximum for each of those Counts. Moreover, the jury was instructed on the elements of each of the offenses so that the petitioner could not have been found guilty of each of those offenses without the jury having found each of the elements of the offense charged beyond a reasonable doubt. Thus, the effect of the challenged Sentencing Guidelines in this case was simply to indicate where within the statutory maximum penalty the petitioner should be sentenced. This application of the Sentencing Guidelines is consistent with Apprendi and with prior decisions upholding the constitutionality of the Sentencing Guidelines. See Mistretta v. United States, 488 U.S. 361 (1989)
In contrast to the application of the Guidelines in this case, the statute at issue in Apprendi provided for an extended term of imprisonment if the trial judge found by a preponderence of the evidence that "[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity." Apprendi, 120 S.Ct. at 2351 (quoting N.J. Stat. Ann. § 2C:44-3(e) (West Supp. 2000)). The Supreme Court found that this statute did not merely serve to limit the discretion of the judge to sentence a defendant within a statutory range. Instead, "the effect of New Jersey's sentencing 'enhancement' here is unquestionably to turn a second-degree offense into a first degree offense, under the State's own criminal code." Apprendi, 120 S.Ct. at 2365. The statute in Apprendi impermissibly permitted a judge to find facts by a preponderance of the evidence that authorized an increase in the maximum punishment otherwise prescribed for the offense.See Apprendi, 120 S.Ct. at 2363-67.
The conclusion that Apprendi does not apply to Guidelines that simply cabin a judge's discretion with respect to the length of a sentence within the statutory maximum is consistent with the Apprendi Court's discussion of its earlier decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986). At issue in McMillan was the constitutionality of Pennsylvania's Mandatory Minimum Sentencing Act, which the Supreme Court described as providing that "anyone convicted of certain enumerated felonies is subject to a mandatory minimum sentence of five years' imprisonment if the sentencing judge finds, by a preponderance of the evidence, that the person 'visibly possessed a firearm' during commission of the offense." 477 U.S. at 81 (citing 42 Pa. Const.Stat. § 9712 (1982)). The Supreme Court upheld the statute, reasoning:
Section 9712 neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm.McMillan, 477 U.S. at 87-88. In Apprendi, the Supreme Court cited to this passage in McMillan, and stated that the holding in McMillan was not overruled but limited "to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury's verdict." 120 S.Ct. at 2361 n. 13.
The constitutionality of the application of the Sentencing Guidelines in this case is consistent with the conclusions of other courts. Other courts that have examined the issue have held that Apprendi does not invalidate Sentencing Guidelines that do not increase the penalty for the crime beyond the statutory maximum. See, e.g., United States v. Cepero, 224 F.3d 256, 268 n. 5 (3d Cir. 2000); Hernandez v. United States, 226 F.3d 839, 841-42 (7th Cir. 2000); United States v. Hernandez-Guardado, 228 F.3d 1017, 1027 (9th Cir. 2000); United States v. Nachamie, No. S3 98 Cr. 1238, 2000 WL 1372863, at *4 (S.D.N.Y. Sept. 22, 2000).
In this case, the Guidelines do not alter the maximum penalty for the crime committed but instead serve to indicate where within the maximum sentence allowed by statute this petitioner should be sentenced. That use of the Guidelines is not unconstitutional.
It is unnecessary to reach the Government's additional argument that Apprendi should not be applied retroactively.
CONCLUSION
For the reasons explained above, the petitioner's petition for habeas corpus pursuant to 28 U.S.C. § 2255 is denied. The petitioner's bail application is also denied because the petitioner has shown no basis for his requested release. The Court declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253 because the petitioner has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Clerk of the Court is directed to enter judgment dismissing the petition and closing this case.SO ORDERED.