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finding baseless ineffective assistance of counsel claim in section 2255 motion where petitioner's "attorneys in fact raised the issues . . . that are the basis for his petition"
Summary of this case from WOO v. U.S.Opinion
03 Civ. 1112 (DLC)
February 19, 2004
Marc Robinson, pro se, Loretto, PA, For Petitioner
Andrew J. Ceresney, Michael S. Schachter, New York, New York, For Respondent
OPINION AND ORDER
On February 19, 2003, Marc Robinson ("Robinson") filed a timely petition for a writ of habeas corpus pursuant to Title 28, United States Code, Section 2255, attacking his conviction following trial. Having been convicted on various fraud charges, Robinson was sentenced principally to 120 months in prison. In the petition Robinson contends that he received ineffective assistance of counsel at trial and in connection with his sentence. For the following reasons, the petition is denied.
Background
On April 24, 1998, Robinson and his co-defendant Mark Nissenbaum were charged in a twelve count indictment with wire fraud, transportation of property taken by fraud, and conspiracy to commit those offenses. Through a motion of October 9, 1998, John Patrick Rudden, retained counsel for Robinson, made an application to be relieved as counsel and to have counsel appointed to represent Robinson. Robinson submitted an affidavit in support of the application. On October 30, CJA attorney Jeremy Schneider was appointed to represent Robinson. At a conference on November 6, a trial date of June 21, 1999 was selected. On April 14, the trial date was adjourned to January 10, 2000. At a conference of November 4, Schneider's partner, Robert Soloway, was formally substituted as counsel for Robinson. The trial was scheduled to begin on January 18.
Both defendants proceeded to trial. Before trial the Government moved to dismiss two of the twelve counts in the indictment. The trial began on January 18, and at trial the Government proved that Robinson engaged in three separate schemes of fraud: a scheme to defraud the Ivy Corporation, a Japanese investor group, through a fraudulent investment in approximately $5 million of worthless German gold bonds; a scheme to defraud Jennifer Patterson, a recent divorcee, of approximately $10 million through an investment involving non-existent prime bank notes; and a scheme to defraud Alfred Olivolo of approximately $20,000 through a loan which Robinson told Olivolo would be repaid from the proceeds of the prime bank note trading program. Following a three week trial, the jury convicted both defendants on each of the counts on which they were tried.
On September 6, the Court granted a request that retained counsel appear on behalf of Robinson to assist at his sentence. At sentencing on September 29, 2000, Robinson was represented not only by Soloway, his trial counsel, but also by three additional counsel that he had retained, John Patrick Rudden, Joseph Barrett, and Franshone Winn. Robinson was sentenced to a term of imprisonment of 120 months, to be followed by three years of supervised release, $420,000 in restitution, and a mandatory $600 special assessment. Robinson appealed, and on January 8, 2002, the conviction was affirmed.
Robinson's claims in this petition concern in principal part whether Soloway made a sufficient effort to contact defense witnesses prior to trial and whether the Court erred in denying Robinson's application to delay the trial in order to permit new counsel to represent him. On Monday, January 17, the day before the trial was scheduled to begin, Robinson provided the Court with an affidavit raising issues about the efforts Soloway had undertaken to prepare for trial and to confer with him. The Court provided copies to counsel. With the consent of the Government, the Court conducted an ex parte hearing on January 18 to explore the issue in detail with Robinson and Soloway.
At the January 18 ex parte hearing, Robinson advised the Court orally that he was dissatisfied with Soloway and requested an opportunity to obtain replacement counsel. Soloway provided copies of his letters to Robinson and memoranda of conferences with Robinson, and described his repeated efforts from early November to obtain Robinson's assistance in identifying and contacting witnesses. Robinson had never produced anyone who could provide evidence that any of the three transactions at issue was legitimate. As explained by Soloway, despite Robinson's failure to provide him with such assistance, he tried to develop his own list of potential witnesses and to contact them. He also worked hard to prepare a defense and was "fully prepared" to present the defense that it was possible to present "under the circumstances." Soloway represented that he was "ready for trial." Soloway described his efforts to contact as potential witnesses Maurice Garber, Jim Choate, Ron Campbell, and David Drinkwater.
At the hearing, Robinson admitted that prior to January 13, which was the preceding Thursday, he had given Soloway contact information for only one individual, Bruce Bender. Soloway had met with Bender on November 23, 1999. On January 13, Robinson gave Soloway three additional names: Prince Kgodomo of the Royal Bank of Africa, Nigel Chadwick Healy, and Frank Barry. Robinson only gave contact information for Healy. Soloway had spent his time since January 13 preparing from trial instead of trying to contact Healy since Robinson described Healy as an attorney who was generally familiar with the instrument called a prime bank note, but not as someone who was involved with any of the transactions at issue at the trial.
The Court refused to grant Robinson's request to substitute counsel or to adjourn the trial. It found both that Soloway was able to provide effective representation at trial and that the application was made "for purposes of delay." The Court found that Soloway had demonstrated an excellent command of the issues and that he had worked long and hard to prepare the case for trial. The Court added,
there is no good faith basis for the complaints about a failure to work with the defendant or to contact potential defense witnesses. . . . [Soloway] has repeatedly asked his client for assistance to identify witnesses who could testify in a relevant way on his behalf at trial, . . . [and] it is fair to say that there had been no presentation of any name, or any relevant witness who was prepared to testify for the defendant before January 13. And then on January 13, the three names that were mentioned were not effectively presented to defense counsel in a way that would permit him on the eve of trial to bring [them] in as witnesses, with one possible exception, Nigel Healy. And in that case, the description that was given to defense counsel did not indicate that he would necessarily have any relevant information to give and, therefore, was not necessarily going to be a helpful defense witness.
Even during the trial, Soloway continued his efforts to contact potential witnesses. For example, the morning of January 26, Soloway reported on his efforts to contact a Timothy Hubman.
Discussion
In his petition, Robinson first claims that Soloway was ineffective in failing to procure defense witnesses prior to trial, and that the Court erred in not granting his request on the eve of trial, made because of Soloway's failure to obtain witnesses, for a delay in the trial to permit him to replace Soloway with retained counsel. Second, Robinson contends that his counsel at sentencing were ineffective in failing to challenge the Probation Department's calcualtion of the loss amount and abuse of trust enhancement.
To prevail on a Sixth Amendment claim that his counsel was ineffective, a defendant must show that the representation "fell below an objective standard of reasonableness" under "prevailing professional norms"; and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 693-94 (1984); see also United States v. Campbell, 300 F.3d 202, 214 (2d Cir. 2002); United States v. Eyman, 313 F.3d 741, 743-44 (2d Cir. 2002).
Courts must ensure that an accused's right to counsel is not manipulated "so as to obstruct the orderly procedure of justice in the courts or to interfere with the fair administration of justice." United States v. Arena, 180 F.3d 380, 397 (2d Cir. 1999) (citation omitted); see also United States v. John Doe No. 1, 272 F.3d 116, 122 (2d Cir. 2001). An application for new counsel on the eve of trial should not be permitted "to become a vehicle for achieving delay." Arena, 180 F.3d at 397; see also United States v. Schmidt, 105 F.3d 82, 89 (2d Cir. 1997);United States v. Pascarella, 84 F.3d 61, 69 (2d Cir. 1996); United States v. McCormick, 993 F.2d 1012, 1013 (2d Cir. 1992).
1. Soloway's Preparation for Trial
In his reply to the Government's opposition to his petition, Robinson contends that Soloway "refused" to utilize ten material witnesses that were "presented" to him: Bill Marvin, Bruce Bender, Maurice Garber, Nigel Chadwick Healy, Nigel Stovin Bradford, Chris Walhof, Gees Ooms, Roger Maddon, an unidentified "Owner" of the gold bonds, and Dan Deeter. Robinson explains that these individuals were the professionals upon whom he relied to handle the transactions at issue at the trial.
As the record created at the ex parte hearing of January 18 shows, there is no basis to find that Soloway failed to provide effective assistance of counsel to Robinson during the time prior to trial. Prior to January 13, Robinson had given Soloway contact information for only one of these ten witnesses, Bruce Bender. Bender had met with Soloway on November 23, 1999, but told Solway that he would not voluntarily testitify, that Soloway should forget that he was "ever here", and that Soloway should never disclose that they had spoken. Soloway concluded that Bender would not make a useful witness. These facts were included in the Government's memorandum in opposition to the petition, and Robinson has neither addressed these facts in his reply nor provided any basis to conclude that Soloway's judgment about Bender was not reasonable.
Prior to trial, Robinson provided Soloway with contact information for only one more of these ten individuals, Nigel Chadwick Healy. Robinson provided contact information for Healy on January 13, and Soloway explained that he had used the time between January 13 and 17 to prepare for trial rather than trying to reach Healy since Healy was not described as someone with personal knowledge of the events at issue at trial. Robinson has not shown in this petition that Soloway acted unreasonably in this regard. He does not describe Healy as someone with personal knowledge of the transactions at issue at trial or claim that he told Soloway prior to trial that Healy had such personal knowledge.
Soloway had tried on his own prior to trial to contact one more of these ten witnesses, Maurice Garber. Robinson does not show in this petition that Soloway can be faulted in any regard in connection with those efforts. With respect to the remaining six names and the unidentified "owner", Robinson has not shown that he provided Soloway with any assistance prior to trial to identify and/or contact these individuals and that Soloway failed to follow through or otherwise acted unreasonably.
Robinson also has not shown that any of these ten individuals would have been of assistance to him such that he was prejudiced at trial by the absence of their testimony. For instance, he has not presented any affidavit from any one of these ten individuals describing the testimony that they could have given at trial.
2. Denial of Motion to Substitute Counsel
In his reply to the Government's opposition to his petition, Robinson contends that the Court erred in not granting his eve of trial application to replace Soloway with an attorney from the law firm of Nixon Peabody. At the ex parte hearing, Robinson admitted that he had not yet retained the attorney, and had not made any effort to obtain new counsel until Friday, January 14. He asserted that he had spoken to the Nixon Peabody attorney by telephone three or four times in the intervening three days.
Based on the record created at the January 18 hearing, the Court found that the untimely application to substitute counsel was not made in good faith, but for purposes of delay. Nothing in the petition alters that conclusion.
3. Sentencing Calculation
Robinson contends that his attorneys were ineffective in failing to raise two errors in the Presentence Report, specifically, the determination that the loss amount was over $15 million, and an abuse of trust enhancement. The Government's opposition to the petition points out that defense counsel in fact challenged both calculations. It also explains why there was no error in the Court's determination that Robinson intended to cause a loss of over $15 million and that he abused a position of trust. Robinson does not address the Government's analysis in his reply papers.
Robinson has not shown that he received ineffective assistance of counsel at the time of his sentence. His attorneys in fact raised the issues at sentence that are the basis for his petition. Moreover, Robinson has not shown that there was any error in the sentencing guidelines calculation made by the Court, and therefore, is unable to establish that he was prejudiced by the representation he received at the time of sentence.
Conclusion
The petition for a writ of habeas corpus is denied. The petitioner has not made a substantial showing of a denial of a federal right, and appellate review is, therefore, not warranted.Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). I also find pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss this petition and close the case.
SO ORDERED.