Opinion
No. 03 CV 4923 (SJ).
February 11, 2005
MICHAEL ENTES, Brooklyn, NY, Petitioner Pro Se.
ROSLYNN MAUSKOPF OFFICE OF THE U.S. ATTORNEY, Brooklyn, NY, Keir Nicholas Dougall, Attorney for Respondent.
MEMORANDUM AND ORDER
Currently before this Court is Petitioner's motion to vacate his original sentence and to correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner claims that the amount of restitution imposed by this Court as part of his sentence was excessive, that his trial counsel was ineffective for failing to object to the restitution amount, and that the Court should hold an evidentiary hearing to determine the proper amount of restitution. Petitioner includes in his reply to the Government's opposition to his petition a supplemental argument that his sentence violated the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) and its recent decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004) because none of the sentencing enhancements were presented to a jury. For the reasons explained below, Petitioner's § 2255 motion is DENIED.
BACKGROUND
On May 2, 2001, Petitioner pled guilty to one count of conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 371 and one count of wire fraud in violation of 18 U.S.C. § 1343. He pled guilty pursuant to a written plea agreement which stated that Petitioner's sentence would be calculated based on a loss of "more than $800,000." (Plea Agreement at ¶ 2.) On October 24, 2002, this Court sentenced Petitioner to a total term of sixty-three (63) months imprisonment to run concurrent with Petitioner's sentence in his federal case in New Jersey. The Court also ordered Petitioner to pay restitution in the amount of $724, 581 which was the amount of actual loss suffered by the victims of Petitioner's fraudulent crimes.
DISCUSSION
I. Petitioner's Claim that the Amount of Restitution Imposed by This Court Was Excessive
Petitioner claims that this Court erred in ordering him to pay restitution in an amount which he alleges was greater than the actual loss sustained by the victims of his crimes. (Pet. at 6.) This claim appears to be based in part on the fact that the Government presented Petitioner with a plea agreement dated March 27, 2001 in which the amount of restitution set forth was $250,000, to be paid in cash by Petitioner. (Id. at 9-12; see also Pet'r Reply to Resp't Opp'n at 3.) ("How did the government arrive at these figures? How could the government in approximately 30 days change the amount of restitution from a specific and exact amount to an amount determined by the Court?")
First, this Court notes that the Government's original plea offer was incredibly favorable to Petitioner in terms of the low amount of restitution sought, given the amount of actual loss sustained by the victims; it was a bargain. Petitioner rejected that plea agreement, choosing instead to execute a subsequent plea agreement providing that the amount of restitution would be determined by this Court. (Id. at 9; Plea Agreement ¶ 1.) Upon Petitioner's rejection of the initial offer, the Government was free to set new terms in its subsequent plea offer and was not bound by any of the terms in its initial offer. Petitioner could have rejected the subsequent plea offer, as he did the first, but chose instead to agree to the Court's determination of the amount of restitution. This Court determined the amount of restitution to be $724, 581. Thus to the extent that Petitioner is displeased with his decision to reject the Government's initial plea offer, the instant ¶ 2255 petition is not an appropriate vehicle to reverse a decision that, in hindsight, appears to have been unwise.
Second, this Court rejects Petitioner's argument that the amount of restitution imposed exceeded the actual amount of loss sustained by the victims of his fraud. NJMIC's actual loss was determined to have been $79,000; EquiCredit's actual loss was $243,427; Interbay Funding's actual loss was $156,954; Columbia Equities' loss was $73,000; Empire Mortgage XI, Inc.'s actual loss was $29,564.76; and American Residential's total loss was $142,635. (Pre-Sentence Report.) These figures total $724,580.76 and the Court ordered that Petitioner pay restitution in the amount of $724,581. Thus, the Court did not impose restitution in an amount exceeding the victim's actual loss and Petitioner's claim is therefore dismissed as without merit.
II. Petitioner's Claim that His Trial Counsel Was Ineffective for Failing to Object to the Amount of Restitution Imposed by the Court
Petitioner claims he was denied effective assistance of counsel in that, inter alia his trial counsel "failed to advise and explain to the Petitioner the applicable and prevailing law on restitution" (Pet. at 28); "did not conduct his own independent calculations and determination in order to find the amount of actual loss" (id.); and "did not interpose any objections to the amount of loss the Probation Officer submitted to the Court" (id.). Petitioner further alleges that "[b]ut for trial counsel's defective performance, there existed a reasonable probability that the restitution order in the amount of $724,581.00 would have been different, and would have been an amount far less." (Id. at 31.)
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-part test to determine whether counsel's assistance was ineffective. First, "the defendant must show that counsel's representation fell below an objective standard of reasonableness. . . . under prevailing professional norms." Id. at 688. Second, the defendant must show that counsel's performance prejudiced his defense. Id. at 689. To show prejudice, there must be a reasonable probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different. Id. at 694. Thus, Petitioner must demonstrate that counsel failed to raise significant and obvious issues that, if raised, would likely have been successful. Mayo v. Henderson, 13 F.3d 528, 533-34 (2d Cir. 1994). Unless Petitioner makes both showings, it cannot be said that the judgment against him resulted from a breakdown in the adversary process.
As explained above, there was no error in the calculation of Petitioner's restitution award. Therefore, his trial counsel cannot now be said to have been constitutionally ineffective for failing to bring frivolous arguments, see, e.g., United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999) ("Failure to make a meritless argument does not result in ineffective assistance."); Flores v. Demskie, 215 F.3d 293, 297 (2d Cir. 2000) ("neither can counsel's representation be deemed incompetent merely because he did not pursue a concededly frivolous substantive claim") and thus Petitioner fails to satisfy Strickland's first prong.
Contrary to Petitioner's statements, his trial counsel did in fact correct an error at sentencing regarding the amount of actual loss sustained by NJMIC. (Sentencing Transcript at 6.) (Mr. McClain-Sewer stated that "Lastly, restitution in paragraph 87 of the [Pre-Sentence Report] is set at [$]875, 580.76. Actually. . . . that should be [$]724,581 because of over-valuation of the Rutland Road property . . .").
Even if Petitioner could demonstrate that trial counsel's performance fell below prevailing professional standards, he cannot show that he suffered any prejudice as a result and therefore his claim fails to meet the second prong ofStrickland. Petitioner's plea agreement provided that his offense level would be computed in part based on a "loss of more than $800,000" (Plea Agreement at ¶ 2) and, at his plea hearing, Petitioner represented to the court that he understood all of the provisions of his plea agreement. (Plea Hearing Transcript at 13.) In addition, the Government stated at that hearing that "the loss is over eight hundred thousand dollars and certainly the restitution amount could be, at a minimum, that amount . . ." (Id. at 15.) Furthermore, the Magistrate Judge explained to Petitioner that
the Court can impose restitution on both Count 1 and Count 2 . . . and the restitution is calculated — can be calculated either as the amount of the loss suffered as a result of the crimes, or the amount of the gain that you received as a result of the crimes. . . . And from what [the Assistant United States Attorney] tells me, the restitution could be in substantial amounts, as much as eight hundred thousand dollars, and perhaps more.
(Id. at 15-16) The magistrate asked Petitioner, "So do you understand that the Court, in addition to any fines or other monetary penalties that you face, can impose an order of restitution calculated by the Court according to statute, which could be in a substantial amount of money? Do you understand that?" to which Petitioner responded, "Yes, I do." (Id. at 16.)
Consequently, any prejudice Petitioner may arguably have suffered as a result of counsel's alleged failure to advise him about any potential restitution award was cured by the fact that Petitioner's plea agreement reported a loss of more than $800,000 and also by the fact that the magistrate explained the manners in which restitution could be calculated and that restitution could be in the amount of at least $800,000. Accordingly, Petitioner's claim of ineffective assistance of counsel is dismissed without merit.
III. Petitioner's Claim that His Sentence Violates Apprendi and Blakely
A. Apprendi
Petitioner claims that he was entitled to have a jury determine his sentencing enhancements beyond a reasonable doubt. (Pet'r Reply to Resp't Opp'n at 14-16.) This claim is meritless. First, Petitioner waived his right to a jury trial on May 2, 2001 when he pled guilty pursuant to a written plea agreement which contained the enhancements to Petitioner's base offense level at issue in the instant petition. Second, Petitioner misunderstands the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000).Apprendi held that a defendant's sentence cannot be increased beyond the statutory maximum on the basis of a judge's factual findings unless the enhancing fact is a prior conviction. Apprendi, 530 U.S. at 489 (emphasis added). In other words, Apprendi requires that any fact other than a prior conviction that enhances a sentence beyond the statutory maximum be found by a jury beyond a reasonable doubt. Id.
The statutes on which Petitioner was convicted, 18 U.S.C. § 371 and 18 U.S.C. § 1343, each provided for a maximum sentence of five years. Thus, Petitioner could have been sentenced to 120 months, considerably longer imprisonment than the sixty-three (63) months imprisonment he received. This Court's decision to have three months run consecutive on one of the counts was not at all restricted by Apprendi. See United States v. White, 240 F.3d 127, 135 (2d Cir. 2001) ("The district court's use of section 5G1.2(d) did not result in a sentence on any one count above the maximum available on that count . . . and so did not violate Apprendi.") Indeed, contrary to Petitioner's urging,Apprendi does not apply to sentencing enhancements that fall within the statutory maximum sentence. White, 240 F.3d at 136 (2d Cir. 2001) ("Where, as here, factual determinations were used to sentence the defendant to a sentence within the maximum allowed by statute, Apprendi is not controlling, and such determinations can be made by the court without violating the defendant's right to due process."); see also United States v. Garcia, 240 F.3d 180, 183 (2d Cir. 2001) ("We see nothing in the Court's holding in Apprendi or its explication of the holding that alters a sentencing judge's traditional authority to determine those facts relevant to selection of an appropriate sentence within the statutory maximum . . .") Therefore, Petitioner's Apprendi claim is dismissed as without merit.
B. Blakely
Petitioner also argues that his sentence violated the Supreme Court's recent decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004). The Supreme Court decided Blakely on June 24, 2004. At the present time, all indications are thatBlakely does not apply retroactively to either first or successive § 2255 motions, as Blakely announced a procedural rule that does not fall within either of the exceptions defined in Teague v. Lane, 489 U.S. 288 (1989). See, e.g., Green v. U.S., No. 04-6564, 2005 WL 237204 (2d Cir. 2005) (denying authorization to file a second or successive habeas petition under 28 U.S.C. § 2255 because Blakely did not establish a new rule of constitutional law that the Supreme Court has made retroactive to cases on collateral review); Carmona v. United States, 390 F.3d 200, 202 (2d Cir. 2004) ("To date, the Supreme Court has not . . . announced Blakely to be a new rule of constitutional law, nor has the Court held it to apply retroactively on collateral review."); Warren v. United States, No. 3:01 CV 179, 2005 WL 165385, *10 (D.Conn. Jan. 25, 2005);Bishop v. United States, No. 04 Civ. 3633, 2004 WL 2516715, *10 n. 8 (S.D.N.Y. Nov. 8, 2004); Garcia v. United States, No. 04-CV-0465, 2004 WL 1752588, *5 (N.D.N.Y. Aug. 4, 2004). Petitioner is therefore only eligible for relief under Blakely if his conviction became final after June 24, 2004.
For the purposes of 28 U.S.C. § 2255, a conviction becomes "final" when the Supreme Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires. Clay v. United States, 537 U.S. 522 (2003). The rules for the United States Supreme Court state that a petition for a writ of certiorari to review a decision by a United States Court of Appeals must be filed within ninety days after entry of the judgment. Id. at 525 (noting that time in which defendant could have petitioned for certiorari expired ninety days after the Court of Appeals affirmed the conviction); Sup. Ct. R. 13(1).
In the present case, Petitioner's conviction became final on May 2, 2001, given that he did not file any appeal. This Court therefore cannot apply Blakely retroactively to Petitioner's claim regarding his sentence and his claim is therefore dismissed.
CONCLUSION
For the reasons stated herein, Petitioner's § 2255 claims that (1) the trial court erred in imposing a restitution award allegedly exceeding the amount of actual loss sustained, (2) his trial court was ineffective for failing to object to the restitution award are dismissed without merit, and (3) his sentence violated Apprendi and Blakely are denied. Petitioner's request for an evidentiary hearing on the proper amount of restitution is denied summarily given this Court's conclusion that its imposition of the $724,581 restitution award was not erroneous.
For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A substantial showing "does not require a petitioner to demonstrate that he would prevail on the merits, but merely that `reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.'" Santana v. U.S., 2005 WL 180932, at *7 (S.D.N.Y. Jan. 26, 2005) (quoting Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002)) (internal quotation marks and citation omitted). Where a petition is dismissed on procedural grounds, the petitioner seeking a certificate of appealability must show that both the procedural and underlying constitutional issues are reasonably debatable. Sosa v. U.S., 2003 WL 22218505, *1 (S.D.N.Y. Sept. 25, 2003). Petitioner has made no substantial showing of the denial of a constitutional right in this case. Accordingly, this Court denies a certificate of appealability.
SO ORDERED.