Opinion
No. 00Civ.8463 (HB), 96Cr.553 (HB)
August 19, 2002
OPINION ORDER
Following affirmance of his conviction on direct appeal, petitioner Thomas Frost ("Frost"), proceeding pro se, moves pursuant to 28 U.S.C. § 2255 to modify or vacate his sentence and conviction. Specifically, he alleges that his trial counsel was ineffective in the following ways: (1) failing to convey a government plea offer to him prior to trial; (2) failing to produce a videotape of the crime scene into evidence; (3) failing to file motions after the verdict under Rule 29(c) and Rule 33 of the Federal Rules of Criminal Procedure; (4) failing to subpoena an eyewitness; and (5) allowing the government to create an adverse inference from petitioner's failure to call the confidential informant as a witness. Additionally, Frost alleges that his appellate counsel was ineffective for asserting on direct appeal a claim for ineffective assistance of Frost's trial counsel. Frost seeks a new trial, or, alternatively, an evidentiary hearing on his claims. For the following reasons, the petition and Frost's motion for an evidentiary hearing are DENIED.
I. BACKGROUND
In early 1996, law enforcement officials video-taped Frost and his son Kevin selling crack cocaine to a paid confidential informant ("CI") and undercover detectives posing as drug buyers. Police additionally recorded the drug sale on audio tape from a wire carried by the CI. One month after the first sale, police arranged a second sting operation in which the Frosts were again recorded selling crack cocaine. Indictment 96 Cr. 553 was filed on August 7, 1996, charging the Frosts in three counts, specifically, (1) conspiracy to distribute and possess with intent to distribute cocaine base from January 1996 to August 1996 in violation of 21 U.S.C. § 812, 841(a), 841(b)(1)(B) and 18 U.S.C. § 2, (2) distributing and possession with the intent to distribute cocaine base on January 18, 2996, in violation of 21 U.S.C. § 812, 814(a) and 814(b)(1)(C) and 18 U.S.C. § 2, and (3) distributing and possessing with intent to distribute cocaine base on February 15, 1996, in violation of 21 U.S.C. § 812, 841(a) and 841(b)(1)(B) and 18 U.S.C. § 2.
Although Frost moved for a severance, I denied his motion and he was tried together with his son in a jury trial that commenced on February 25, 1998. At the trial, the Government produced six witnesses: three chemists from the New York City Police Department and three undercover detectives who were involved in the investigation. The Government also produced several surveillance tapes of Frost, excerpts of which were shown to the jury. Defense counsel did not seek to introduce any of the tapes. On March 4, 1998, after a five-day trial, the jury returned a guilty verdict convicting Frost on counts one and three, and his son on all three counts. On November 12, 1998, I sentenced Frost to 120 months' imprisonment, eight years' supervised release, and mandatory special assessments of $200.
On the eve of trial, the Government voluntarily dismissed Count Two as to the movant but not his son.
Both Frosts appealed their convictions to the Second Circuit. On appeal, Frost was represented by new counsel, Edward Wilford, Esq., while during the trial and in preparation of trial he had been represented by Lloyd Epstein, Esq., ("Epstein") and Ira London, Esq. Frost raised the following claims to the Second Circuit, that: (1) the district court erred in (a) permitting the government to argue that the confidential informant was equally available to both the government and the defense, thereby raising an adverse inference as to Frost's reasons for not calling the informant to testify, and (b) denying Frost's motion for severance. Frost additionally claimed that he received ineffective assistance of counsel at trial because his trial attorney (a) failed to enter certain items into evidence; (b) failed to call or subpoena a particular witness; (c) failed to make Rule 29 and Rule 33 motions in a timely manner; and (d) failed to properly and adequately prepare for trial. On October 28, 1999, the Circuit rejected all of Frost's claims and affirmed his conviction. See United States v. Frost, 1999 WL 1024092 (2d Cir. Oct. 28, 1999) (unpublished). On October 25, 2000, Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255.
II. DISCUSSION
A. Standard of Review 28 U.S.C. § 2255 28 U.S.C. § 2255 states in relevant part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or the laws of the United States, or that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. An application for a writ of habeas corpus . . . shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him.28 U.S.C. § 2255 (1994). Relief under § 2255 is available only "for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes "a fundamental defect which inherently results in complete miscarriage of justice." Graziano v. United States. 83 F.3d 587, 590 (2d Cir. 1996) (citation and internal quotations omitted).
A movant under § 2255 is barred from relitigating questions that were actually "raised and considered on direct appeal." Riascos-Prado v. United States, 66 F.3d 30, 33 (2d Cir. 1995). Put another way, a § 2255 motion may not be used as a substitute for a direct appeal. See United States v. Frady, 456 U.S. 152, 165 (1982). Further, an issue generally cannot be presented in a § 2255 motion if it could have been raised on direct appeal, whether it was actually raised on appeal or not. See, e.g., Abbamonte v. United States, 160 F.3d 922, 924 (2d Cir. 1998) (citations omitted). To the extent that a petitioner fails to raise an issue on appeal, he is precluded from raising it in a § 2255 motion unless he can show both "cause" for failing to raise it on appeal and "actual prejudice" resulting from the error. Billy-Eko v. United States, 8 F.3d 111, 113-14 (2d Cir. 1993). Absent a showing of cause and actual prejudice, a petitioner may still gain relief if he can claim "a fundamental miscarriage of justice" by demonstrating actual innocence, specifically, that "in light of all the evidence it is more likely than not that no reasonable juror would have convicted him." Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotation omitted). Where a § 2255 habeas petitioner raises for the first time a claim of ineffective assistance of trial counsel, however, the requirement that the issue need have been raised on direct appeal does not apply because the ineffective assistance of counsel itself provides the "cause" for the failure to appeal the issue. See, e.g., Bloomer v. United States, 162 F.3d 187, 192 (2d Cir. 1998). The rationale underlying this exception is that an attorney may not be inclined to argue his own ineffective assistance on appeal, or may find it difficult to find examples of his own ineffectiveness. See Billy-Eko, 8 F.3d at 114. Not so, however, when the petitioner is represented by new appellate counsel on direct appeal and the claim of ineffective assistance of counsel is based solely on the record developed at trial. In such an instance, "a petitioner is not afforded the opportunity to assert an ineffective assistance claim in a § 2255 proceeding unless he can show both cause for not asserting it on appeal and actual prejudice resulting therefrom." Riascos-Prado v. United States, 66 F.3d at 35.
B. Ineffective Assistance of Trial Counsel
Petitioner contends that his first trial counsel was ineffective in several respects, as he failed to: (1) inform Petitioner of the Government's plea discussions; (2) adequately file the appropriate post-trial motions; (3) subpoena and call witnesses; and (4) introduce a videotape of the crime scene into evidence.
To prevail on a claim of ineffective assistance of counsel, a petitioner must satisfy a two-pronged test. See Strickland v. Washington, 466 U.S. 668, 687 (1984). First, a petitioner must show that the attorney's performance was deficient in such a manner as to fall below "an objective standard of reasonableness." Id. at 688.
Second, he must demonstrate that "the deficient performance prejudiced the defense." Id. at 687. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
All of Frost's grounds for ineffective assistance of counsel, save for his claim with respect to a purported plea offer, were previously raised on his direct appeal and rejected by the Circuit. He is therefore barred from relitigating them here and I need not consider them. See, e.g., Riascos-Prado v. United States 66 F.3d 30, 33 (2d Cir. 1995). Frost's claim of ineffectiveness based on a failure to convey a plea offer, although not raised on appeal, is not precluded because, as the government concedes, it is not the type that is based on the trial record. Nevertheless, the claim is wholly without merit and Frost fails to establish either prong of the Strickland test.
It is well-settled that a criminal defense attorney has a legal, ethical, and professional duty to communicate and advise his client of the existence of any plea offers. See United States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998) (noting that a failure to inform a client of a bona fide plea offer would constitute an egregious professional error on the attorney's part and prejudice the client if it affected the outcome of the case); Boria v. Keane, 99 F.3d 492, 496-97 (2d Cir. 1996) ("The decision whether to plead guilty or contest a criminal charge is ordinarily the most important single decision in a criminal case . . . [and] counsel may and must give the client the benefit of counsel's professional advice on this crucial decision.").
In sole support of his claim Frost attaches to his petition a letter dated September 20, 1996, from the Assistant United States Attorney Michael Rogoff ("Rogoff') to Frost's then attorney, London. In the letter, Rogoff in the final paragraph, writes:
you had previously told me that you were going to contact me regarding whether your client has any interest in a disposition in this case. Given your silence on this matter, I will assume that he does not. If that assumption is incorrect, please contact me so that we may discuss it.
While the letter could perhaps liberally be construed as inviting plea discussions, it is a far cry from establishing that an offer, formal or otherwise, had been made or was in the works. While the government never asserts in its papers whether a plea offer was made or not, even if the government had offered to negotiate a plea, Frost has provided no objective evidence, by affidavit or otherwise, that he would have accepted it. To satisfy the second prong of Strickland, a petitioner "must show, as an initial matter, a `reasonable probability' that, but for counsel's errors in considering or explaining a plea offer, the petitioner would have accepted the offer." Gluzman v. United States, 124 F. Supp.2d 171, 177 (S.D.N.Y. 2000) (Parker, J.) (citing authority). With hindsight conjecture, Frost merely claims that his acceptance of a plea offer would have resulted in a reduced sentence, although he nowhere asserts that he would have accepted a plea bargain, assuming one was on the table, prior to trial. Accordingly, courts are skeptical of accepting a defendant's self-serving, post-conviction contention that he would have pleaded guilty if counsel had properly informed him of the consequences of proceeding to trial. See id. Certainly, Frost has failed to establish by a preponderance of evidence that a plea was negotiated, offered or initiated by the government. Further, it stretches credulity to believe that during the fifteen months or more between Rogoff's letter and the commencement of trial it was never conveyed or discussed with Frost by either of his attorneys, London-or Epstein. Nor I might add does Frost set forth an argument that he likely ever had any inclination to plead guilty. Accordingly, Frost, aside from his posits of speculation and conclusory assertions, has failed to establish a plausible claim that would warrant an evidentiary hearing on his claims, and I deny his request. See, e.g., United States v. Tarricone, 996 F.2d 1414, 1417-18 (2d Cir. 1993) (noting that to prevail on motion for hearing, petitioner must establish that he has a plausible claim).
C. Ineffective Assistance of Counsel on Direct Appeal
Frost contends that had his attorney on direct appeal not made an ineffective assistance of counsel claim, the Circuit would have remanded his case for resentencing on other grounds. This claim is completely without merit and belies logic. Specifically, Frost argues that
Had appellate counsel not challenged the ineffective assistance of counsel ground on appeal to the Second Circuit, that Court would not have reviewed the district court's decision, and there is a reasonable probability that petitioner would have succeeded on the other merits, and had his case remanded for resentencing.
Petition at 3.
Frost apparently overlooks the fact that the Circuit reviewed his other claims, including and apart from those relating to the ineffective assistance of trial counsel, and found them to be without merit. See Frost, 1999 WL 1024092, at *3 ("We have considered the Frosts' remaining arguments and consider them to be without merit."). Additionally, it can hardly be said that it was unreasonable for Frost's appellate attorney to raise the claims of ineffective assistance of trial counsel, since a failure to do so on direct appeal could have potentially precluded the assertion of those claims here. See Bloomer v. United States, 162 F.3d 187, 191-92 (2d Cir. 1998) ("where the defendant is represented by new appellate counsel on direct appeal, and the ineffective assistance claim is based solely on the record developed at trial, the defendant is required to raise his claim on direct appeal").
Lastly, Frost fails to satisfy either prong of the Strickland test. Frost can neither show that his appellate attorney's conduct fell below an objective standard of reasonableness, nor that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687. As noted above, the Circuit's decision on appeal makes clear that Frost's claims, even absent those for ineffective assistance of counsel, were fully considered and his appeal would have been dismissed in any event.
III. CONCLUSION
For the foregoing reasons, and after review of the petition and the record in this case, the petitioner's motion for a new trial or to modify or vacate his sentence and conviction, and his request for an evidentiary hearing on his claims, are DENIED. The Clerk of the Court is instructed to close this case and remove it from my docket.
SO ORDERED.