Opinion
No. 04 Civ. 6918 (AJP), 02 Cr. 629 (JSR).
March 29, 2005
OPINION AND ORDER
Pro se petitioner Darryl Steele has petitioned pursuant to 28 U.S.C. § 2255 to vacate his conviction for conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846, and his sentence to 121 months imprisonment, followed by four years of supervised release. (04 Civ. 6918, Dkt. No. 1: Pet.) Steele claims that he received ineffective assistance of counsel because his trial counsel: (1) failed to properly prepare for trial and only spent 3.5 hours with him (Pet. at 7); (2) coerced him into consenting to a bench trial (id. at 8); (3) failed to object to "the admission of inadmissible hearsay testimony" which resulted in a Confrontation Clause violation (id. at 8); and (4) failed to object to the district court's sentencing findings (id. at 9). Steele also claims that his Confrontation Clause and Due Process rights were violated by the admission of hearsay tapes (id. at 9-10) and that, underApprendi v. New Jersey, his sentence violated his Fifth and Sixth Amendment rights (id. at 10-12). Finally Steele claims that his appellate counsel was ineffective for failing to raise the Confrontation Clause and Apprendi issues on appeal. (Pet. at 8 n. 2, 9; Dkt. No. 48: Steele Reply Br. at 4, 8.)
Unless otherwise indicated, references to docket numbers are to those in 02 Cr. 629.
The parties have consented to decision of Steele's petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 47.)
For the reasons set forth below, Steele's petition is DENIED.
FACTS
On August 20, 2002, a superseding indictment was filed against petitioner Darryl Steele and his co-defendant Michael Robinson for conspiracy to distribute and possess with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846. (Dkt. No. 22: Superseding Indictment.) On August 28, 2002, Robinson pled guilty to all three counts of the superseding indictment and on December 18, 2002 was sentenced to 322 months' imprisonment. (Dkt. No. 46: Gov't Letter Br. at 2; see also Dkt. Entries of 8/28/02 12/18/02; Dkt. No. 31: Judgment re: Robinson.)
The original indictment against Steele and Robinson was filed May 14, 2002. Count one of the three-count superseding indictment, the only one relevant to Steele, was identical in both indictments. (See Dkt. No. 28: 8/28/02 Conf. Tr. at 2;see also Dkt. No. 1: Criminal Complaint.)
Pretrial Suppression Motion
Despite a prior indication to the contrary, on August 8, 2002, defense counsel Steven Statsinger of the Legal Aid Society Federal Defender Division filed a motion to suppress on behalf of Steele. (Dkt. No. 19: 8/8/02 Notice of Motion; Dkt. No. 20: 8/8/02 Steele Suppression Br.) The motion sought suppression of statements Steele made, prior to receivingMiranda warnings, to Drug Enforcement Administration ("DEA") agents in response to their questions about the contents of the van Steele was driving and the purpose of his trip to New York City. (8/8/02 Steele Suppression Br. at 11-15.) The motion also sought suppression of the physical evidence seized from the van and Steele's statements because, Statsinger argued, the DEA agents did not have probable cause to stop the van and in the alternative, they did not have authority to make a traffic stop. (Id. at 3-10.)
On June 17, 2002 at a scheduling conference held before Judge Rakoff, Statsinger indicated that he did not have any pretrial motions to file. (Dkt. No. 18: 6/17/02 Conf. Tr. at 3: Statsinger: "when it comes to motions, mine were due on June 13. I haven't any.") Also at this conference, defense counsel Statsinger told the court that "it's more likely than not that we're heading for a disposition with Mr. Steele." (Id. at 5.)
The Government did not oppose Steele's motion to suppress his pre-Miranda statements. (Dkt. No. 23: 8/23/02 Gov't Letter Br. at 1.) The Government opposed Steele's second argument, relying on information from the DEA agents theretofore unknown to the defense. (8/26/02 Gov't Letter Br. at 8-10; see 8/26/02 Statsinger Letter.) Based on this new information, Statsinger agreed to withdraw this second argument provided the Government produced a sworn statement supporting that new information. (8/26/02 Statsinger Letter.) The Government did produce a sworn statement of a DEA agent which established the reasonable belief necessary to have made a Terry stop of Steele on March 10, 2002. (8/27/02 DEA Agent Wesly Fritz Aff.) That mooted the suppression motion. (See Dkt. No. 28: 8/28/02 Conf. Tr. at 3-4.) Steele's Waiver of a Jury Trial
On August 28, 2002, at the final pretrial conference, Statsinger informed Judge Rakoff that Steele would prefer a bench trial and that he was awaiting consent from the Government. (Dkt. No. 28: 8/28/02 Conf. Tr. at 11.) Judge Rakoff expressed his disfavor of bench trials in criminal cases, stating: "I have a predilection against waiver of jury trials and I will just flag that. If both sides want a bench trial, I am not going to say no. . . . But I think the role of the jury as the voice of the community has particular relevance in the case of a criminal charge. . . . [B]ut I, of course, respect whatever decision the parties mutually agree to if they do agree." (8/28/02 Conf. Tr. at 12-13.)
Statsinger also addressed the issue of the taped conversations between Robinson and a confidential informant and indicated that if the Government sought to introduce that material at trial, he might object at that time. (Id. at 14.)
Steele's bench trial began on September 10, 2002, with counsel advising Judge Rakoff that Steele and the government had agreed to waive a jury trial. (Dkt. No. 30: Trial Transcript ["Tr."] 2.) Pursuant to the procedure set forth in Rule 23 of the Federal Rules of Criminal Procedure, Judge Rakoff advised Steele of his right to a jury trial:
THE COURT: All right. Mr. Statsinger, before we get down to putting anything in writing, it probably is appropriate, in any event, for the Court to inquire of your client regarding his waiver.
So, Mr. Steele, do you understand that you have the right to a trial by a jury which would consist of 12 persons drawn from a cross section of the community, who could not find you guilty until and unless they unanimously agreed that you were guilty beyond a reasonable doubt; do you understand you have that right?
THE DEFENDANT: Yes.
THE COURT: Now, if you give up that right and have the Court decide this case instead, the burden of proof will still be the same. I'll still have to require the government to attempt to prove the charge by proof beyond a reasonable doubt. And only if they succeed in doing so, could a court find you guilty. But, it will just be me, it won't be 12 people. The unanimity will be automatic — unanimity, so, and of course I don't represent the voice of the community, I'm just another Judge. So you understand what you're giving up here?
THE DEFENDANT: Yes, your Honor.
THE COURT: And do you want to give that up and have the Court try this case?
THE DEFENDANT: Yes, your Honor.
THE COURT: All right. Now, I still want a written waiver, but I think that is helpful. Okay.
(Tr. 4-5.) During a brief recess, Statsinger prepared a written waiver of the right to a jury trial which Steele, along with defense counsel, the prosecutor and Judge Rakoff, signed. (Tr. 25; Dkt. No. 25: Waiver of Jury Trial.) The waiver form that Steele signed reads as follows: "I, Darryl Steele, being advised of my rights, do hereby waive pursuant F.R.C.P. 23(a) a trial by jury and consent to a trial by the Court. I waive this right knowingly and voluntarily." (Dkt. No. 25: Waiver of Jury Trial.)
The defense unveiled its theory of the case in its opening statement. (Defense Opening: Tr. 32-38.) Defense counsel Statsinger argued that the Government would be unable to prove that Steele shared the intent of his co-conspirator Robinson to purchase more than five kilograms of cocaine. (Tr. 33.) Instead, the defense was going to show that Steele admitted to the DEA agents who stopped the van that there was $30,000 in the van, which shows that Steele was aware only of a plan to purchase approximately one kilogram of cocaine. (Tr. 32-33.) Statsinger argued that since the indictment charged a conspiracy to distribute more than five kilograms, if the Government failed to prove beyond a reasonable doubt that Steele entered into the conspiracy to sell more than five kilograms of cocaine, then the Court would have to acquit, even if the Government could prove beyond a reasonable doubt that Steele entered into a conspiracy with Robinson to sell some amount less than five kilograms of cocaine. (Tr. 33-34.) Since Steele was charged under the section of the statute addressing more than five kilograms of cocaine, the defense viewed any failure by the Government to prove that Steele knew about that amount as grounds for a complete acquittal. (Tr. 34.) Faced with this technical legal argument, Judge Rakoff remarked: "Now, I know why we have a bench trial." (Id.) Judge Rakoff asked for briefing on the issue from counsel. (Tr. 35, 38, 99-102, 139-40.)
The Prosecution's Case at Trial Steele's Arrest and Confession
On March 8, 2002, Michael Robinson rented a van in Buffalo and Darryl Steele was listed as an additional authorized driver. (Fritz: Tr. 77-78.) On March 10, 2002, the DEA surveilled the area in lower Manhattan where the CI and Robinson had arranged to meet. (Fritz: Tr. 57-58, 60, 87-88; Lepkofker: Tr. 103-04.) Robinson arrived in a van and got out to meet with the CI. (Lepkofker: Tr. 104-05.) As planned, there was no cocaine transaction so Robinson got back in the van and drove uptown to a second location. (Lepkofker: Tr. 105-07, 109; Hoffman: Tr. 113.) Robinson got out of the van again and as he walked over to a third person, he conducted what the agents described as "counter surveillance." (Lepkofker: Tr. 107, 109-10; Hoffman: Tr. 113-14.) Robinson and the third person walked together down the block and the agents followed and arrested them. (Hoffman: Tr. 114-15.)
The DEA agents who had followed the van uptown approached the double-parked van which Robinson had exited and placed Steele, the van's driver, in handcuffs and into the back of the agents' car for questioning. (Fritz: Tr. 61-62, 90, 92; Lepkofker: Tr. 107-08.) Upon a search of the van, the agents recovered $30,000 hidden in the van. (Fritz: Tr. 62-63, 95.) The agents brought Steele, Robinson and the third individual to the DEA offices but released them after processing so as not to jeopardize the CI. (Fritz: Tr. 63-64, 95-96.) The DEA agents maintained custody of the van, however, and later that day agents searched the van and found a gun and an additional $130,000 hidden throughout the van. (Fritz: Tr. 64-69, 96.) The total amount of money found in the van was $164,330. (Tr. 64-65: Stipulation.)
On April 23, 2002, DEA Agent William Rodgers arrested Steele at his home in Buffalo. (Rodgers: Tr. 119-22.) Steele was read hisMiranda rights, and Steele said that he understood his rights and was willing to talk to the agents. (Rodgers: Tr. 122.) Steele admitted that he knew about the money and the gun that were found in the van because he had spoken to Robinson after their New York City arrest and Robinson, in jail at the time on a parole violation, had told him to try to recover the rented van to get the money and the gun. (Rodgers: Tr. 123.) Steele also told Agent Rodgers that he had made three trips in total from Buffalo to New York City with Robinson for purposes of buying cocaine. (Rodgers: Tr. 124.) When Agent Rodgers informed Steele that approximately $160,000 had been found in the van, Steele seemed surprised and angry at Robinson for involving him in a larger drug sale. (Rodgers: Tr. 125-26, 133.) Steele told Agent Rodgers that in the prior two trips, Robinson had only bought between one and two kilograms of cocaine and that $160,000 seemed like a much larger amount than had been involved on the other trips. (Rodgers: Tr. 125, 138.) Steele also told Agent Rodgers that he had been paid approximately $500 to help with the drive between Buffalo and New York City, and that in the past they had brought the cocaine back to Steele's apartment in Buffalo and split up the cocaine. (Rodgers: Tr. 126.)
Defense counsel Statsinger cross-examined Agent Rodgers about the fact that he took no notes during his interrogation of Steele even though he had taken notes when questioning other arrestees and that the notes he made after locking Steele up were "destroyed" once he wrote up his report the next day. (Rodgers: Tr. 128-32.) Statsinger also cross-examined Agent Rodgers to clarify the fact that Steele never said how much, if any, of the cocaine he would be given after they would bring it back to his apartment in Buffalo. (Rodgers: Tr. 135-38.)
The Robinson-CI Tape
The Government's first witness had been DEA Agent Wesley Fritz, who testified that the DEA set up two taped phone conversations between Robinson and a confidential informant, on February 25, 2002 and March 5, 2002. (Fritz: Tr. 43, 55.) In those conversations, the men arranged for Robinson to come to New York City from Buffalo to buy cocaine. (Fritz: Tr. 46.) Defense counsel did not object to the admissibility of the tapes. (Tr. 45, 56.)
In the tapes, the men, using coded language, discussed a transaction of seven or eight kilograms of cocaine at a price of $28,000 or $29,000 per kilogram. (Tr. 47, 55; Dkt. No. 23: 8/26/02 Gov't Letter Br. at 2.) Before Agent Fritz testified at trial to the meaning of the coded language — the numbers seven or eight were not referred to as amounts of drugs to be sold, but rather were referred to as hours of time and in the second conversation where they set March 10, 2002 as the date they would meet in Manhattan, they discussed whether the "movie" would be 27 or 28 minutes long (8/26/02 Br. at 2) — defense counsel conducted a voir dire of Agent Fritz as to whether he was a qualified expert on the meaning of the coded language used in the taped conversations (Tr. 47-49). At the end of his voir dire, defense counsel objected to Agent Fritz giving expert testimony on the coded language on the grounds that he was not qualified as an expert. (Tr. 49.) Judge Rakoff allowed the testimony, reserving ruling on whether the agent was an expert, but did rule that the only plausible inference to be drawn from the language on the tape was that it was indeed a conversation about a cocaine transaction, especially since defense counsel did not offer any alternate explanation. (Tr. 53-54, 56-57.)
The tapes were played at trial but the content of the tapes is not reflected in the trial transcript. (See Tr. 46, 56.)
Closing Arguments and Verdict
In addition to making closing arguments about the facts proven in the case (Gov't Closing: Tr. 154-65; Defense Closing: Tr. 167-76), the attorneys and Judge Rakoff discussed the legal issues central to the defense's theory. (Tr. 148-53, 165-67, 176-82.) During this colloquy, defense counsel tried to synthesize the existing precedent, including the Supreme Court case of Apprendi v. New Jersey decision and the Second Circuit United States v. Richards decision. (Tr. 178-80.) Before issuing the verdict, Judge Rakoff remarked that the legal arguments were "very forcefully" brought to "the Court's attention by able counsel for both sides." (Tr. 183.) Judge Rakoff also "thank[ed] counsel for what was . . . not only a well tried case and well argued case, but one that was handled with immense professionalism by both sides. It's really a pleasure for a Court to have that happen." (Tr. 183; see also Tr. 148, where Judge Rakoff "thank[ed] both sides for their excellent letter briefs.")
Judge Rakoff ruled that it was "clear not only beyond a reasonable doubt, but frankly to a virtual certainty, that [Steele] entered into a conspiracy with Mr. Robinson and perhaps others to distribute cocaine." (Tr. 183.) Since Judge Rakoff found himself bound by the Second Circuit Richards decision, he was compelled to find Steele guilty of conspiracy to distribute cocaine. (Tr. 184, 186.) As to quantity, Judge Rakoff found "the government has proven, beyond a reasonable doubt, that Mr. Steele entered into a conspiracy to distribute more than one kilogram of cocaine, but has not proven, beyond a reasonable doubt, that he entered into a conspiracy to distribute more than five kilograms of cocaine." (Tr. 184-85.) Judge Rakoff also found, "as a sentencing factor," that by a preponderance of the evidence, "it [was] more probable than not that Mr. Steele entered into a conspiracy to distribute more than five kilograms." (Tr. 185, 186.) Judge Rakoff explained that he did not think this would matter because he would likely sentence Steele above the mandatory minimum of five years applicable to a conspiracy to distribute more than 500 grams of cocaine and less than the maximum of 40 years. (Tr. 185-86, 189.)
Had it not been for Richards, Judge Rakoff said he would have found Steele guilty of conspiracy to distribute an amount less than five kilograms of cocaine, as a lesser included offense. (Tr. 184-85, 186-87.)
Pre-Sentence Submissions
On December 13, 2002, defense counsel Statsinger submitted a sentencing memorandum arguing for several sentencing downward adjustments. (2d Cir. Joint Appendix at A202-14: 12/13/02 Steele Sentencing Letter Br.) Defense counsel argued that: (1) the mandatory minimum applicable to Steele should be five years, not ten years as the Probation Department recommended; (2) Steele's offense level should be reduced by three levels for acceptance of responsibility; (3) Steele's offense level should be reduced by two additional levels due to his "minor participation" in the offense; and (4) Judge Rakoff should downwardly depart to 60 months' imprisonment so that Steele would be eligible to participate in the Bureau of Prison's shock incarceration program. (Id. at A202.)
As to the correct applicable mandatory minimum, defense counsel Statsinger argued that 21 U.S.C. § 841(b)(1)(B), which applies to more than 500 grams of cocaine, was the governing statute. (12/13/02 Steele Sentencing Letter Br. at A205.) According to Statsinger, subsections 841(b)(1)(A), (B) and (C) make out separate offenses, and it would violate the Double Jeopardy Clause to hold Steele to any mandatory minimum other than the one that was found to apply beyond a reasonable doubt, i.e. § 841(b)(1)(B). (12/13/02 Steele Sentencing Letter Br. at A205.)
The Government responded that the court had found as a sentencing factor that Steele's crime involved more than five kilograms of cocaine, which meant the applicable mandatory minimum was ten years. (Appendix at A223-38: 12/18/02 Gov't Letter Br. at A223, A228-30.) The Government asserted thatApprendi was not applicable to Steele's case because Steele's sentence would be within the mandatory maximum of 40 years set forth by § 841(b)(1)(B). (12/18/02 Gov't Letter Br. at A228.) The Government also opposed defense counsel's other grounds for downward adjustments. (12/18/02 Gov't Letter Br. at A230-36.) Sentencing
Defense counsel Statsinger submitted a reply letter brief in which he clarified the statutory argument he was making and replied to the Government's interpretation of Second Circuit case law. (Appendix at A237-38: 12/19/02 Steele Sentencing Reply Br.)
A sentencing hearing began on December 20, 2002 (Appendix at A302-17) and was continued to February 4, 2003 for further briefing on the sentencing issue which Judge Rakoff viewed as the most crucial issue on sentencing: Whether Steele deserved a two-level reduction for being a "minor participant" in the conspiracy. (See 12/30/02 Tr. at A313; see also Dkt. No. 36: 2/4/03 Sentencing Tr. a 2.)
At the final sentencing hearing on February 4, 2003, Judge Rakoff started by noting the "helpful" submissions from both sides on the minor participant issue. (2/4/03 Sentencing Tr. at 2.) Judge Rakoff, however, denied the minor participant reduction. (Id. at 7-9.) Judge Rakoff found that the total offense level was 32 and Steele's criminal history category was 1, putting him within the sentencing guideline range of 121 to 151 months. (2/4/03 Sentencing Tr. at 9.) The issue of whether the five or ten year mandatory minimum applied thus was rendered moot, since the Guideline range exceeded either minimum. (2/4/03 Sentencing Tr. at 9.) Judge Rakoff sentenced Steele to the bottom of the Guideline range, 121 months imprisonment, followed by four years' supervised release. (2/4/03 Sentencing Tr. at 17-18; see also Dkt. No. 33: 2/10/03 Judgment.)
Steele's Direct Appeal
Represented by another attorney from the Federal Defender Division of Legal Aid, Steele appealed to the Second Circuit on the single ground that Judge Rakoff erred when he gave Steele a two rather than three level reduction in offense level for acceptance of responsibility for Guideline calculation purposes. (Steele 2d Cir. Br. at 8-13.) On September 15, 2003, the Second Circuit affirmed Steele's sentence. (Dkt. No. 38: 2d Cir. Order.)See United States v. Steele, No. 03-1068, 75 Fed. Appx. 32, 2003 WL 22121009 (2d Cir. Sept. 15, 2003).
Steele's Present § 2255 Motion
In August 2004, Steele filed his present pro se § 2255 motion to vacate his sentence. (04 Civ. 6918, Dkt. No. 1: Pet.) Steele alleged ineffective assistance of counsel because his trial counsel: (1) failed to properly prepare for trial and only spent 3.5 hours with him (Pet. at 7); (2) coerced him into consenting to a bench trial (id. at 8); (3) failed to object to "the admission of inadmissible hearsay testimony" which resulted in a Confrontation Clause violation (id. at 8); and (4) failed to object to the district court's sentencing findings (id. at 9). Steele also claims that his Confrontation Clause and Due Process rights were violated by the admission of the hearsay tapes (id. at 9-10) and that, under Apprendi v. New Jersey, his sentence violated his Fifth and Sixth Amendment rights (id. at 10-12). Finally, Steele claims that his appellate counsel was ineffective for failing to raise the Confrontation Clause and Apprendi issues on appeal. (Pet. at 8 n. 2, 9; Dkt. No. 48: Steele Reply Br. at 4, 8.) I. STEELE'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL ARE DENIED A. The Strickland v. Washington Standard On Ineffective Assistance of Counsel
For additional decisions authored by this Judge discussing the Strickland v. Washington standard for ineffective assistance of counsel in language substantially similar to this section of this Report and Recommendation, see, e.g., Curry v. Burge, 03 Civ. 0901, 2004 WL 2601681 at *26-27 (S.D.N.Y. Nov. 17, 2004) (Peck, M.J.); Kanani v. Phillips, 03 Civ. 2534, 2004 WL 2296128 at *26 (S.D.N.Y. Oct. 13, 2004) (Peck, M.J.); Medina v. McGinnis, 04 Civ. 2515, 2004 WL 2088578 at *20-21 (S.D.N.Y. Sept. 20, 2004) (Peck, M.J.); Smalls v.McGinnis, 04 Civ. 0301, 2004 WL 1774578 at *13-15 (S.D.N.Y. Aug. 10, 2004) (Peck, M.J.); Gillespie v. Miller, 04 Civ. 0295, 2004 WL 1689735 at *14-16 (S.D.N.Y. July 29, 2004) (Peck, M.J.); Rodriguez v. Senkowski, 03 Civ. 3314, 2004 WL 503451 at *39 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); Gomez v.Duncan, 02 Civ. 0846, 2004 WL 119360 at *27 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.); Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *22-24 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.);Maldonado v. Greiner, 01 Civ. 799, 2003 WL 22435713 at *26-28 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *32-34 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.), report rec. adopted, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003) 2003 WL 22846044 (S.D.N.Y. Dec. 2, 2003) (Kaplan, D.J.); Guzman v. Fischer, 02 Civ. 7448, 2003 WL 21744086 at *9-12 (S.D.N.Y. July 29, 2003) (Peck, M.J.);Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *33-35 (S.D.N.Y. June 17, 2003) (Peck, M.J.); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *18-19 (S.D.N.Y. June 3, 2003) (Peck, M.J.) (citing my prior opinions); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *11 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002), cert. denied, 123 S. Ct. 1787 (2003).
In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), the Supreme Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2064; accord, e.g., Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003). This performance is to be judged by an objective standard of reasonableness. Strickland v.Washington, 466 U.S. at 688, 104 S. Ct. at 2064.
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."Strickland v. Washington, 466 U.S. at 689, 104 S. Ct. at 2065 (citation omitted).
Accord, e.g., Wiggins v. Smith, 123 S. Ct. at 2535;Bell v. Cone, 535 U.S. 685, 695, 122 S. Ct. 1843, 1850 (2002).
Accord, e.g., Bell v. Cone, 535 U.S. at 698, 122 S. Ct. at 1852; Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001).
Second, the defendant must show prejudice from counsel's performance. Strickland v. Washington, 466 U.S. at 687, 104 S. Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. at 2068-69. Put another way, 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, 104 S. Ct. at 2068.
See also, e.g., Wiggins v. Smith, 123 S. Ct. at 2542; Bell v. Cone, 535 U.S. at 695, 122 S. Ct. at 1850;Aparicio v. Artuz, 269 F.3d at 95; Sellan v. Kuhlman, 261 F.3d at 315; DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir.),cert. denied, 519 U.S. 824, 117 S. Ct. 83 (1996).
"[A] reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694, 104 S. Ct. at 2068; accord, e.g., Wiggins v. Smith, 123 S. Ct. at 2542. The phrase "reasonable probability," despite its language, should not be confused with "probable" or "more likely than not." Strickler v. Greene, 527 U.S. 263, 289-91, 119 S. Ct. 1936, 1952-53 (1999); Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1565-66 (1995); Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 998 (1986) ("a defendant need not establish that the attorney's deficient performance more likely than not altered the outcome in order to establish prejudice under Strickland"); Strickland v. Washington, 466 U.S. at 694, 104 S. Ct. at 2068 ("The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome."). Rather, the phrase "reasonable probability" seems to describe a fairly low standard of probability, albeit somewhat more likely than a "reasonable possibility." Strickler v. Greene, 527 U.S. at 291, 119 S. Ct. at 1953; cf. id. at 297-301, 119 S. Ct. at 1955-58 (Souter, J., concurring dissenting) (arguing that any difference between "reasonable probability" and "reasonable possibility" is "slight").
The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S. Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id.
Any counsel errors must be considered in the "aggregate" rather than in isolation, as the Supreme Court has directed courts "to look at the `totality of the evidence before the judge or jury.'"Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quotingStrickland v. Washington, 466 U.S. at 695-96, 104 S. Ct. at 2069); accord, e.g., Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991).
The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland v. Washington, 466 U.S. at 697, 104 S. Ct. at 2069.
Accord, e.g., Smith v. Robbins, 528 U.S. 259, 286 n. 14, 120 S. Ct. 746, 764 n. 14 (2000).
In addition, the Supreme Court has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 690-91, 104 S. Ct. at 2066.
See also, e.g., Yarborough v. Gentry, 124 S.Ct. 1, 5-6 (2003); Engle v. Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("In reviewing Strickland claims, courts are instructed to `indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to `second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every "colorable" claim' on appeal.") (citations omitted);Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (a reviewing court "may not use hindsight to second-guess [counsel's] strategy choices"), cert. denied, 513 U.S. 820, 115 S. Ct. 81 (1994).
As the Second Circuit noted: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard."Lindstadt v. Keane, 239 F.3d at 199.
B. Steele's Claims of Ineffective Assistance of Trial Counsel Are Denied 1. Steele Cannot Show Prejudice From Trial Counsel's Failure to Object to Admission of Hearsay Evidence
Steele contends that his trial counsel was ineffective for failing to object to the admission of the taped conversations between the CI and co-conspirator Michael Robinson. (04 Civ. 6918, Dkt. No. 1: Pet. at 8; see also Dkt. No. 48: Steele Reply Br. at 4, 7-8; Dkt. No. 50: Steele Supp. Br. at 1-4.) Although the tapes are hearsay, they were admitted through DEA Agent Fritz without objection by defense counsel. (See pages 8-9 above.) Because this Court finds Steele cannot show prejudice — the second prong of the Strickland analysis — it is unnecessary to determine whether Steele has shown deficient performance by trial counsel in failing to object to the tapes' admission.
The taped conversations admitted at trial were evidence of Robinson's intent to purchase more than five kilograms of cocaine from the CI for $28,000 or $29,000 per kilogram. (See pages 8-9 above.) However, the prosecution also introduced statements by Steele in which, after being advised of his Miranda rights, he told the DEA agent that he had agreed to drive with Michael Robinson from Buffalo to New York City to purchase cocaine. (See pages 7-8 above.) The physical evidence admitted at trial,i.e., the money and the gun found in the rented van that Steele was driving as an authorized driver, also were probative evidence of the conspiracy. The evidence of Steele's participation in a conspiracy with Robinson to possess with intent to distribute some amount of cocaine was overwhelming, or as Judge Rakoff put it, not only proved "beyond a reasonable doubt, but frankly to a virtual certainty." (Tr. 183.) Indeed, defense counsel's strategy was to concede as much but argue for acquittal based on the tecnhical argument as to quantity. Thus, admission of the tapes did not prejudice Steele as to the issue of his guilt (especially since Judge Rakoff did not find Steele guilty beyond a reasonable doubt of possessing five kilograms or more of cocaine).
Moreover, Judge Rakoff found the quantity of cocaine only to be a factor for sentencing, not guilt. (See page 12 above.) The tapes were evidence of Robinson's intent to purchase over five kilograms of cocaine. Judge Rakoff, however, did not find the five kilogram quantity proved as to Steele beyond a reasonable doubt. (See page 12 above.) This was a bench trial, and even had the Robinson-CI tapes been excluded for trial (guilt) purposes, Judge Rakoff could have heard the same tapes in connection with sentencing. Since a sentencing court may rely on hearsay, it was proper for Judge Rakoff in terms of sentencing to rely on the tapes in finding, by a preponderance of the evidence, that Steele conspired to distribute five kilograms or more of cocaine. See United States v. Gordon, No. 04-3172, 2005 WL 545464 at *1 (2d Cir. Mar. 4, 2005) (quoting United States v. Reese, 33 F.3d 166, 174 (2d Cir. 1994) ("[W]hen determining sentence, a sentencing court is free to consider hearsay evidence, evidence of uncharged crimes, dropped counts of an indictment and criminal activity resulting in acquittal."),cert. denied, 513 U.S. 1092, 115 S.Ct. 756 (1995)); United States v. Doumbia, No. 02-1003, 64 Fed. Appx. 297, 299, 2003 WL 21076823 at *2 (2d Cir. May 12, 2003); United States v.Chang, No. 02-1492, Fed. Appx. 361, 363-64, 2003 WL 560980 at *1 (2d Cir. Feb. 28, 2003) ("A sentencing court is not bound by the rules of evidence that would pertain at trial and is not limited to `admissible evidence' in making its sentencing determination. Instead, the court may consider any `reliable' proof. U.S.S.G. § 6A1.3, cmt. A sentencing court thus may rely on `hearsay statements, evidence of uncharged crimes, dropped counts of an indictment and criminal activity resulting in acquittal,' and even may choose to rely [on] the hearsay statements of an absent informant.'") (citations omitted), cert. denied, 539 U.S. 969, 123 S. Ct. 2663 (2003); see U.S.S.G. § 6A1.3(a) ("In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probably accuracy.").
Accordingly, Steele's ineffective assistance of trial counsel claim based on admission of the Robinson-CI tapes is DENIED for failure to show prejudice.
2. Steele's Claim that Trial Counsel Spent Insufficient Time with Him Fails
Steele argues that his trial counsel was ineffective because counsel only spent three and one half hours with him prior to trial. (04 Civ. 6918, Dkt. No. 1: Pet. at 7; see also Dkt. No. 48: Steele Reply Br. at 5-6.) Additionally, Steele claims that the majority of the time he did spend with Statsinger consisted of Statsinger "attempting to talk [him] into accepting a plea bargain and/or cooperating with the Government in other investigations." (Pet. at 7.)
Spending an insufficient amount of time with a defendant before trial can satisfy the deficient performance prong for ineffective assistance claims. See, e.g., Carmichael v. United States, No. 3:92 CR 0098, 3:97 CR 00185, 1998 WL 894592 at *5-6 (D. Conn. Dec. 16, 1998) (finding ineffective assistance of counsel where defense attorney only spent 2.9 hours with defendant and failed to advise whether he should accept a plea offer which led to the expiration of such offer prejudicing the defendant), vacated on other grounds, 216 F.3d 224 (2d Cir. 2000). Nevertheless, Steele again fails to show prejudice from the amount of time he spent with his counsel. From Steele's own allegations, defense counsel spent most of their time together trying to persuade Steele to accept a plea bargain which, based on the overwhelming evidence against Steele including his post-Miranda statements admitting the conspiracy, appears to be sound advice. Confronted with Steele's admission to his role in the conspiracy, defense counsel focused on a technical legal issue as his strategy for acquittal. While Steele may have preferred more time with counsel, and while three and one half hours may be a deficient amount of time to spend with a defendant charged with a felony, Steele cannot show that had defense counsel spent more than three and one half hours with him, the outcome at trial would have been different. (See cases cited in fn.13 above.) Steele's claim that defense counsel spent too little time with him is DENIED. 3. Steele's Claim That Counsel Coerced Him into Waiving His Right to a Jury Trial Fails
See also, e.g., United States v. Mealy, 851 F.2d 890, 908 (7th Cir. 1988) (Petitioner's claim that counsel failed to maintain regular contact with him prior to trial did not establish ineffective assistance of counsel where the court knew of "`no case establishing a minimum number of meetings between counsel and client prior to trial necessary to prepare an attorney to provide effective assistance of counsel.'" and petitioner "fails to explain how the lack of consultation affected the outcome of the trial."); Glatt v. Johnson, No. Civ. A. 4:00-CV-506-A, 2001 WL 432355 at *4 (N.D. Tex. Apr. 20, 2001) (petitioner who argued that defense counsel spent only five minutes with her to persuade her to plead guilty failed in her claim of ineffective assistance of counsel because "[b]revity in the consultation time between defendant and his counsel, alone, cannot support a claim of ineffective assistance of counsel" and she could not show prejudice); Huenefeld v. Maloney, 62 F. Supp. 2d 211, 233-34 (D. Mass. 1999) (petitioner failed to show that "a different result would have been obtained had counsel spent more time with him" and therefore his ineffective assistance claim failed), aff'd, 2 Fed. Appx. 54, 2001 WL 2731111 (1st Cir. Mar. 15, 2001); Parsons v. Galetka, 57 F. Supp. 2d 1151, 1174-75 (D. Ut. 1999) (finding no showing of prejudice where counsel spent 20 hours with defendant, spent hundreds of hours researching and there was no showing of unpreparedness of counsel at trial: "There is no set time counsel must spend with a defendant. The circumstances of each case will govern.").
Steele attached to his reply brief a letter dated July 16, 2002 addressed to Judge Rakoff which he claims to have sent requesting new legal representation. (Dkt. No. 48: Steele Reply Br.: Attachment: 7/16/02 Steele Letter to Judge Rakoff.) This letter was not addressed on the record and was not docketed. Steele's letter outlined several aspects of counsel's representation with which he was unsatisfied: (1) "scheduling meetings with the prosecutor which I am supposed to attend, without my knowledge of any such meeting, until the last minute"; (2) not making motions on his behalf; and (3) pushing Steele to plead guilty before the motion to suppress was filed because otherwise the Government could try to add more time onto his sentence. (Id.) First, Steele does not indicate that he was unable to attend the meetings which were scheduled at "the last minute" and therefore fails to show prejudice. Second, defense counsel did file motions on Steele's behalf (see pages 2-3, 10-11 above 29-31 below), mooting Steele's second point. Third, Statsinger's suggestions that it would be better for Steele to plead guilty earlier rather than later is strategic advice whichStrickland instructs not to second guess. In any event, Steele did not plead guilty nor is there any evidence that he was offered a favorable plea.
Steele claims that his trial counsel coerced him into consenting to a bench trial, that Steele "was left with a feeling that he would be abandoned if he took a jury trial," and therefore, "the trial would be . . . a `farce,'" and that defense counsel told Steele "that he `must face reality. You're black, no juror sitting in a federal court would understand why you had that much money in your possession. You'll be convicted on the color of your skin.'" (Dkt. No. 1: Pet. at 3, 4.)
While Steele claimed that counsel told him he would be convicted by a jury because of his skin color, it is noteworthy that Steele told Judge Rakoff that he was voluntarily waiving a jury. (See page 5 above.) The Court need not credit Steele's self-serving claims now over his contrary statements on the record before Judge Rakoff. See, e.g., Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *19 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.) (crediting petitioner's statements at the plea allocution that his plea was voluntary over his later allegations of coercion) ( cases cited therein).
The right to trial by jury in criminal cases is a fundamental constitutional right. See Duncan v. State of Louisiana, 391 U.S. 145, 157-58, 88 S. Ct. 1444, 1452 (1968) ("a general grant of jury trial for serious offenses is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants"); U.S. Const. art. III, § 2, cl. 3; U.S. Const. amend. VI; see also, e.g., Bueno v. Walsh, 01 Civ. 8738, 2002 WL 1498004 at *12 (S.D.N.Y. July 12, 2002) (Peck, M.J.). Nevertheless, a defendant may waive the right to trial by jury. See, e.g., Duncan v.State of Louisiana, 391 U.S. at 158, 88 S. Ct. at 1452 ("we hold no constitutional doubts about the practices, common in both federal and state courts, of accepting waivers of jury trial");Patton v. United States, 281 U.S. 276, 298, 50 S. Ct. 253, 258 (1930) (The Constitution confers "a right upon the accused [to a trial by jury] which he may forego at his election. To deny his power to do so is to convert a privilege into an imperative requirement."), abrogated in part on other grounds, Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893 (1970) (upholding jury trial of 6 rather than 12 jurors); Bueno v. Walsh, 2002 WL 1498004 at *12.
Since a trial by jury "confers burdens as well as benefits, an accused should be permitted to forego [his] privileges when his competent judgment counsels him that his interests are safer in the keeping of the judge than of the jury." Adams v. United States, 317 U.S. 269, 278, 63 S. Ct. 236, 241 (1942); accord, e.g., Bueno v. Walsh, 2002 WL 1498004 at *12.
However, because trial by jury is the "normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases, . . . the right of the accused to a trial by a constitutional jury [must] be jealously preserved."Patton v. United States, 281 U.S. at 312, 50 S.Ct. at 263. "[B]efore any waiver [of a jury trial] can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant." Id. at 312, 50 S. Ct. at 263. The court must ensure that the defendant has waived his right to a jury trial not "as a mere matter of rote, but with sound and advised discretion." Id.; see also, e.g., Adams v. United States, 317 U.S. at 275, 63 S. Ct. at 240 ("an accused, in the exercise of a free and intelligent choice, and with the considered approval of the court, may waive trial by jury"); Bueno v. Walsh, 2002 WL 1498004 at *12.
In order to waive the right to trial by jury, the defendant must execute a written waiver in open court, the prosecution and trial court must consent, and the waiver must be "voluntary, knowing, and intelligent." United States v. Martin, 704 F.2d 267, 271-73 (6th Cir. 1983); see also, e.g., Marone v.United States, 10 F.3d 65, 67 (2d Cir. 1993) ("The right to a jury trial must be jealously preserved, and before this right can be waived, the trial court must satisfy itself that the defendant has intelligently consented."); United States v. Hunt, 413 F.2d 983, 983-84 (4th Cir. 1969) ("[N]othing more was required, either by [Fed.R.Crim.P.] Rule 23(a), or the Sixth Amendment," for a valid waiver of the right to a jury trial than defendants' statements in open court that they waived jury trial, a written waiver executed in open court, and consent by court and United States Attorney); Bueno v. Walsh, 2002 WL 1498004 at *13;see also Fed.R.Crim.P. 23(a) (requiring that the right to jury trial be waived explicitly in writing); cases cited in fn. 16 below.
A trial court is not constitutionally required to conduct an on-the-record colloquy with a defendant prior to a waiver of the right to a jury trial. See, e.g., Marone v. United States, 10 F.3d at 67 (citing United States v. Martin, 704 F.2d at 274 United States v. Scott, 583 F.2d 362, 363-64 (7th Cir. 1978)); see also, e.g., Bueno v. Walsh, 2002 WL 1498004. "In order to obviate any future misunderstandings," however, the Second Circuit, in the exercise of its supervisory powers over the federal trial courts, suggested that
the district courts individually inform each defendant, on the record, of the fundamental attributes of a jury trial before accepting a waiver. This court urges that at a minimum the district courts inform each defendant that a jury is composed of twelve members of the community, that the defendant may participate in the selection of the jurors, that the jury's verdict must be unanimous, and that a judge alone will decide guilt or innocence if the defendant waives the right to a jury trial.Marone v. United States, 10 F.3d at 67-68 (citations omitted); see also, e.g., Utensyshev v. Portuondo, No. 00-CV-6529, 03-MISC-0066, 2003 WL 21499841 at *10 (E.D.N.Y. June 11, 2003) (Weinstein, D.J.) (finding habeas petitioner's waiver of jury trial to have been voluntary where "[t]he trial court engaged in a lengthy discussion with petitioner, informing him of the rights he was waiving and ascertaining that his waiver of a jury trial was voluntary.");Bueno v. Walsh, 2002 WL 1498004 at *13; Philippe v. Lacy, No. 95 CV 4545, 1998 WL 440301 at *6 (E.D.N.Y. July 30, 1998) (habeas petitioner's claim that his jury trial waiver was not valid "is clearly without merit as the record reveals an express waiver of the petitioner's right to a jury trial, which was signed by the petitioner, his counsel, and the judge presiding over the case."); Burnett v. Racette, No. 92-CV-785, 1996 WL 904018 at *4-5 (W.D.N.Y. May 17, 1996) ("the written waiver and brief colloquy sufficiently demonstrate that [petitioner] voluntarily, knowingly and intelligently waived his right to a jury trial."), report rec. adopted, 1997 WL 251498 (W.D.N.Y. May 8, 1997).
Other circuits have suggested similar colloquies. See, e.g., Sowell v. Bradshaw, 372 F.3d 821, 832 n. 5 (6th Cir. 2004) (noting that while "there is no constitutional requirement for the trial court to conduct a colloquy with the defendant prior to a jury waiver," such a colloquy is strongly recommended), cert. denied, ___ S. Ct. ___, 2005 WL 62488 (Mar. 21, 2005); United States v. Dunn, 345 F.3d 1285, 1295 (11th Cir. 2003) (although not required, "a personal evaluation [by the district court of the defendant] may be a valuable prophylactic measure."), cert. denied, 124 S. Ct. 2837 (2004); United States v. DeMathews, No. 00-50225, 60 Fed. Appx. 19, 20, 2003 WL 462779 at *1 (9th Cir. Feb. 19, 2003) ("Although there was no written waiver, the district court conducted an extensive colloquy that adequately apprised DeMathews of his rights" with respect to jury trial waiver.); United States v. Martin, 704 F.2d at 274-75 (imploring "the district courts to personally inform each defendant of the benefits and burdens of jury trials on the record prior to accepting a proffered waiver. At a minimum, a defendant should be informed that a jury is composed of 12 members of the community, he may participate in the selection of jurors, the verdict of the jury must be unanimous, and that a judge alone will decide guilt or innocence should he waive his jury trial right.") (citations omitted); United States v. Anderson, 704 F.2d 117, 119 (3d Cir.) ("a colloquy between the district judge and the defendant is preferable to the mere acceptance by the court of the written waiver. . . . The colloquy between the judge and the defendant serves both to emphasize to the defendant the seriousness of the decision to waive the right to trial by jury and to create a clear record of the circumstances of the waiver, establishing that `express and intelligent consent' was indeed given by the defendant."), cert. denied, 464 U.S. 838, 104 S. Ct. 129 (1983); United States v.Delgado, 635 F.2d 889, 890 (7th Cir. 1981) ("We take this opportunity to advise the [federal] trial courts that they should explain that a jury is composed of twelve members of the community, that the defendant may participate in the selection of jurors, and that the verdict of the jury is unanimous. The court should inform the defendant that if he waives a jury, the judge alone will decide guilt or innocence. After informing the defendant of these factors, the trial court should then ascertain whether the defendant wishes to waive his right to a jury trial. Only after this type of inquiry will the court be able to determine that the defendant understands his right to a jury trial and the consequences of waiver."); United States v.Scott, 583 F.2d at 364 (adopting a rule under its supervisory power requiring that "before a district court accepts a waiver of jury trial the court will interrogate the defendant to ensure that he understands his right to a jury trial and the consequences of waiver."); United States v. David, 511 F.2d 355, 361 (D.C. Cir. 1975) ("trial judges would be well-advised to directly question the defendant in all cases to determine the validity of any proffered waiver of jury trial"); United States v. Mitchell, 427 F.2d 1280, 1282 (3d Cir. 1970) ("We do believe that it is better practice for a district judge, when advised by a defendant that he desires to waive his right to a jury trial, to interrogate the defendant so as to satisfy himself that the defendant is fully apprised of his rights and freely and voluntarily desires to relinquish them."); United States v.Hunt, 413 F.2d at 984 ("Undoubtedly, it is better practice for a district judge, when advised by a defendant that he desires to waive his right to a jury trial, to interrogate the defendant so as to satisfy himself that the defendant is fully apprised of his rights and freely and voluntarily desires to relinquish them. Such an interrogation would provide the district judge with an additional factual basis on which to grant or withhold his approval of the waiver. It would tend to obviate motions under 28 U.S.C.A. § 2255 and discourage groundless appeals.").
Here, Judge Rakoff engaged in the required oral colloquy with Steele, and required and received a written waiver signed by Steele, defense counsel and the Government. (See pages 4-5 above.) Moreover, Judge Rakoff initially expressed his reluctance to hold a bench trial in a criminal case (see page 4 above), but once the legal issue involved in the defense's theory was presented, Judge Rakoff acknowledged that "Now, I know why we have a bench trial." (See page 6 above.)
Indeed, defense counsel's strategy of pursuing a bench trial was sound, or at the very least not deficient, considering the overwhelming evidence against Steele. The legal theory that defense counsel Statsinger pursued would have required the jury to look beyond the "virtual certainty" that Steele participated in the conspiracy and acquit Steele because the Government would have failed to prove beyond a reasonable doubt that Steele agreed to participate in a conspiracy to distribute more than five kilograms of cocaine as charged in the indictment. A reasonable defense counsel could believe that a jury would have a hard time acquitting Steele because of the technicalities of the indictment and the drug quantity involved. Relying on a judge to consider the technical legal issue presented by the defense theory was a reasonable trial strategy, to which deference is due underStrickland. See e.g., Sowell v. Bradshaw, 372 F.3d 821, 837-38 (6th Cir. 2004) (in death penalty case where defendant decided to waive his right to jury trial solely because of counsel's recommendation, counsel was not ineffective for recommending that a judge was less likely to recommend death),cert. denied, ___ S. Ct. ___, 2005 WL 62488 (Mar. 21, 2005);Romero v. New Mexico, No. 96-2068, 100 F.3d 967 (table), 1996 WL 647270 at *1 (10th Cir. Nov. 7, 1996) (where, at evidentiary hearing, counsel testified "that he believed a judge would better distinguish the evidence related to the various counts, and that, traditionally in that district, defendants received more favorable sentences from a judge after a bench trial than after a jury trial," court held no ineffective assistance noting: "Counsel's advice to waive a jury trial is deficient only if such advice is `completely unreasonable, not merely wrong, so that it bears no relationship to a possible defense strategy.'");Ganaway, v. United States, No. 94-2119, 69 F.3d 539 (table), 1995 WL 623828 at *2 (7th Cir. Oct. 23, 1995) (denying petitioner's ineffective assistance of trial counsel claim where petitioner "agreed to th[e] strategic decision [to waive his right to a jury trial] in open court."); United States v.Ortiz Oliveras, 717 F.2d 1, 4-5 (1st Cir. 1983) (counsel not ineffective for advising a bench trial where the evidence against the defendant was strong and counsel could have decided that the chance of acquittal was more likely if the trial was held before a judge rather than a jury); Walendzinski v. Renico, 354 F.Supp. 2d 752, 758 (E.D.Mich. 2005) ("A defense counsel's decision to waive a defendant's right to jury and proceed with a non-jury trial is a `classic example of strategic trial judgment' for which Strickland requires highly deferential judicial scrutiny. . . . In this case, petitioner's trial counsel could have reasonably believed that it was better strategy for petitioner to be tried by the judge rather than a jury; petitioner has failed to offer evidence to the contrary.").
In short, defense counsel's strategy of a bench trial rather than a jury trial was reasonable, since the defense was a technical one that would not appeal to jurors. There is no evidence that Steele was coerced into agreeing with defense counsel's strategy. This ineffective assistance claim isDENIED. 4. Defense Counsel's Objections to Sentencing
Steele argues that his trial counsel failed to object to the findings by the sentencing court. (04 Civ. 6918, Dkt. No. 1: Pet. at 9.) To the contrary, the record shows that defense counsel Statsinger did object to Judge Rakoff's sentencing findings. Prior to sentencing, defense counsel Statsinger submitted two briefs in which he argued that Steele deserved additional reductions in Guideline sentence levels on several grounds, that a downward departure should be granted to allow Steele to participate in the "shock incarceration" prison program, and that the drug statute's construction warranted a lower mandatory minimum than the Government sought. (See pages 10-11 above.) It is not lost on this Court that Judge Rakoff commended counsel on both sides for their forceful arguments. (See page 12 above.)
Specifically, construing Steele's pro se petition liberally, Steele argues that Statsinger failed to argue that the sentence violated the Supreme Court's decision in Apprendi v. New Jersey. (Pet. at 9-10; Dkt. No. 46: Gov't Letter Br. at 15-18.)Apprendi held that "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 v.New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000). The Second Circuit has considered the applicability of Apprendi to drug conspiracies charged under 28 U.S.C. §§ 841 and 846, as here, and according to that precedent, there was no Apprendi violation here. See United States v. Luciano, 311 F.3d 146, 152-53 (2d Cir. 2002) ("Even if . . . not charged in the indictment or found by the jury, . . . drug . . . quantity may be used to determine the appropriate sentence so long as the sentence imposed is not greater than the maximum penalty authorized by statute for the offense charged in the indictment and found by the jury.'"), cert. denied, 540 U.S. 1167, 124 S. Ct. 1185 (2004);United States v. Thomas, 274 F.3d 655, 660 n. 3, 664 (2d Cir. 2001) (en banc). An Apprendi violation occurs when "the defendant is sentenced on the basis of a triggering fact not found by the jury to a sentence that exceeds the maximum that would have been applicable but for the triggering fact, but if the defendant's sentence is within the otherwise applicable maximum, no violation of Apprendi has occurred, even though the defendant was sentenced under a statute that allows for a sentence that exceeds that otherwise applicable maximum." United States v. Luciano, 311 F.3d at 151. Therefore, "drug quantity becomes an element of the offense under § 841 [or conspiracy under § 846] `only where' it may be used to impose a sentence above the applicable statutory maximum." United States v.Richards, 302 F.3d 58, 66 n. 5 (2d Cir. 2002). Otherwise, drug quantity is a sentencing factor and "`the constitutional rule of Apprendi does not apply where the sentence imposed is not greater than the prescribed statutory maximum for the offense of conviction.'" United States v. Richards, 302 F.3d at 66 (quoting United States v. Thomas, 274 F.3d at 664.
Here, defense counsel argued to Judge Rakoff that Richards was contrary to Apprendi. (Dkt. No. 30: Tr. at 178.) Defense counsel argued that the court should "harmonize" Richards andApprendi by applying a harmless error standard where, "looking backwards if the sentence imposed is less than the lowest available statutory maximum, the Apprendi violation is harmless." (Tr. at 180.) Judge Rakoff rejected defense counsel's argument, and found itself bound by Richards. (See page 10 above.)
There was no Apprendi violation since Steele was sentenced under the Guidelines to 121 months (see page 12 above), which is considerably below forty years, the statutory maximum for 500 grams or more of cocaine. See 28 U.S.C. § 841(b)(1)(B). Thus, defense counsel did address the Apprendi issue and Judge Rakoff's sentencing of Steele did not violate Apprendi. Defense counsel was not deficient in his assistance of Steele at sentencing. Steele's ineffective assistance sentencing claim isDENIED. II. STEELE'S CONFRONTATION CLAUSE AND APPRENDI CLAIMS ARE BARRED BECAUSE HE FAILED TO RAISE THEM ON DIRECT APPEAL, AND IN ANY EVENT LACK MERIT AS DOES HIS INEFFECTIVE APPELLATE COUNSEL CLAIM
The remainder of Steele's ineffective assistance claims also are belied by the record and thus are denied. First, Steele argues that his counsel failed to file pretrial motions until the court berated him for not doing so. (Pet. at 3.) The record does not reflect any such "berating." In fact, the record is replete with compliments to defense counsel for his competence at trial and well-argued briefs. (See pages 9, 12 above.) Moreover, defense counsel did file a motion to suppress which was successful in suppressing Steele's statements to DEA agents prior to receiving Miranda warnings. (See page 3 above.)
Second, Steele argues that he told his attorney that he did not make the statements to the DEA agents that they claimed he did and that his counsel did nothing about it. (Pet. at 4.) Defense counsel cross-examined Agent Rodgers at trial about the absence of any notes, suggesting that the agent's testimony about Steele's alleged statements was not true. (See page 8 above.)
Finally, construing Steele's motion liberally, he argues that counsel failed to make Daubert objections to the expert qualification of Agent Fritz who testified about the content of the taped conversations. (Dkt. No. 48: Steele Reply Br. at 7.) Defense counsel did in fact object to Agent Fritz's testimony as to the meaning of the coded language used in the tapes on the grounds that the agent did not qualify as an expert. (See page 9 above.) In any event, Judge Rakoff found the meaning of the tapes clear even without Agent Fritz's testimony. (See page 9 above.)
In short, all of Steele's "miscellaneous" complaints about defense counsel are contradicted by the record. Steele's ineffective assistance of trial counsel claim is DENIED in all respects.
It is well-established law that a § 2255 claim cannot be used as a substitute for a direct appeal, and that a claim that could have been raised on direct appeal is cognizable under § 2255 only under the "cause and prejudice" standard. As the Second Circuit has held:
A § 2255 petition may not be used as a substitute for direct appeal. United States v. Frady, 456 U.S. 152, 165, 102 S. Ct. 1584, 1593, 71 L. Ed. 2d 816 (1982). . . . In order to raise a claim that could have been raised on direct appeal, a § 2255 petitioner must show cause for failing to raise the claim at the appropriate time and prejudice from the alleged error. Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992). The Supreme Court has stated that "cause' under the cause and prejudice test must be something external to the petitioner, something that cannot be fairly attributed to him." Coleman v. Thompson, 501 U.S. 722, ___, 111 S. Ct. 2546, 2566, 115 L. Ed. 2d 640 (1991).Marone v. United States, 10 F.3d 65, 67 (2d Cir. 1993); see also, e.g., Massaro v. United States, 538 U.S. 500, 504, 123 S. Ct. 1690, 1693 (2003) ("[T]he general rule [is] that claims not raised on direct appeal may not be raise on collateral review unless the petitioner shows cause and prejudice.");United States v. Frady, 456 U.S. 152, 165, 167, 102 S. Ct. 1584, 1593, 1594 (1982) ("[W]e have long and consistently affirmed that a collateral challenge may not do service for an appeal. . . . We believe the proper standard for review of [petitioner's § 2255] motion is the `cause and actual prejudice' standard. . . .") (citing cases); United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998); Fountain v. United States, 357 F.3d 250, 255 (2d Cir. 2004), petition for cert. filed, 73 U.S.L.W. 3146 (Aug 25, 2004) (No. 04-294); United States v.Warren, 335 F.3d 76, 79 (2d Cir. 2003); United States v.Canady, 126 F.3d 352, 359 (2d Cir. 1997), cert. denied, 118 S. Ct. 1092 (1998); United States v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995); Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993) (superseded by statute on other grounds);Tapia-Garcia v. United States, 53 F. Supp. 2d 370, 376-77 (S.D.N.Y. May 24, 1999) (Baer, D.J. Peck, M.J.).
Here, Steele argues that the taped conversations admitted at trial violated the Confrontation Clause because he did not have the opportunity to cross-examine the declarants. (04-6918, Dkt. No. 1: Pet. at 9.) Steele also argues that his sentence violated his Fifth and Sixth Amendment rights because it violated Apprendi. (Pet. at 10-12.) Steele could have raised these issued on direct appeal but did not. For this reason alone, these claims should be denied.
Steele also argues that appellate counsel was ineffective for not raising the Confrontation Clause and Apprendi issues on appeal. (Pet. at 8 n. 2, 9; Dkt. No. 48; Steele Reply Br. at 4, 8.) The Strickland standard applies to ineffective assistance claims asserted against appellate counsel. See, e.g., Otero v. Eisenschmidt, 01 Civ. 2562, 2004 WL 2504382 at *29 (S.D.N.Y. Nov. 8, 2004) (Peck, M.J.) ( cases cited therein). In addition to consideration as a separate claim, ineffective assistance of appellate counsel can constitute "cause," under the "cause and prejudice" standard, for the failure to raise a claim on direct appeal. See, e.g., Otero v. Eisenschmidt, 01 Civ. 2562, 2004 WL 2504382 at *21 ("Ineffective assistance of counsel can, of course, represent cause for a procedural default."); Kanani v. Phillips, 03 Civ. 2534, 2004 WL 2296128 at *24 n. 39 (S.D.N.Y. Oct. 31, 2004) (Peck, M.J.) ("Ineffective assistance of counsel, if found, also can represent `cause' for a procedural default under the `cause and prejudice' standard."); Maldonado v. Greiner, 01 Civ. 0799, 2003 WL 22435713 at *26 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.) ("Because his ineffective appellate counsel claims are meritless, . . . the may not serve as `cause' for this procedural default of [petitioner's] . . . claims."). Nevertheless, as an ineffective assistance claim or under the cause and prejudice standard, the claim fails because Steele cannot show prejudice.
As to Steele's Apprendi claim, as discussed above, there was no Apprendi violation — Steele received a sentence below the statutory maximum for even the lesser offense of conspiracy to possess with intent to distribute 500 grams or more of cocaine. (See page 12 above.) Appellate counsel cannot be found to be ineffective for failing to raise a meritless claim on appeal. See, e.g., Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *34 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.) ("It is well-settled that appellate counsel cannot be faulted for failing to raise a meritless claim."); Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *30 (S.D.N.Y. Dec.17, 2003) (Peck, M.J.) ("Appellate counsel cannot be faulted for not raising meritless arguments as to trial counsel's ineffectiveness."); Maldonado v. Greiner, 2003 WL 22435713 at *41 ( cases cited therein).
As to the Confrontation Clause argument, since there was ample evidence of the conspiracy without the tapes, any admission of the tapes at trial was harmless; trial counsel was not ineffective because Steele was not prejudiced; any claim on appeal was not preserved except to argue ineffective assistance of trial counsel, which would not have succeeded for the reasons already discussed. (See page 33 above.)
Thus, appellate counsel was not ineffective, and even considered as direct claims, the Apprendi and Confrontation Clause claims lack merit.
Steele also cites to the Supreme Court's decision inBlakely v. Washington, 124 S. Ct. 1531 (2004), and the recent decision (pending at the time of Steele's motion) of United States v. Booker, 124 S. Ct. 738 (2005), to support his arguments. (04 Civ. 6918, Dkt. No. 1: Pet. at 10-12; Dkt. No. 48: Steele Reply Br. at 10-11; Dkt. No. 50: Steele Supp. Br. at 4-5.)Blakely and Booker, however, do not apply retroactively on collateral review. See, e.g., United States v. Mitchell, No. 04-3367, ___ Fed. Appx. ___, 2005 WL 387974 at *1 (2d Cir. Feb. 18, 2005) ("This court has held . . . that Booker does not apply retroactively to cases on collateral review."); Green v.United States, 397 F.3d 101, 103 (2d Cir. 2005) ("[N]eitherBooker or Blakely apply retroactively to [petitioner's] collateral challenge."); Carmona v. United States, 390 F.3d 200, 202 (2d Cir. 2004); Mingo v. United States, 05 Civ. 0280, 2005 WL 627637 at * 2 (S.D.N.Y. Mar. 17, 2005) ("The Second Circuit has not yet directly addressed the question of whetherBooker applies retroactively on collateral review to initial section 2255 petitions. However, every circuit court that has considered the question has concluded that Booker does not apply retroactively."); Muniz v. United States, 04 Civ. 10209, ___ F. Supp. 2d ___, 2005 WL 589396 at *6 (S.D.N.Y. Mar. 14, 2005); Harris v. United States, 97. Civ. 1904, 2005 WL 578918 at *2 (S.D.N.Y. Mar. 11 2005) ("neither Blakely norBooker apply retroactively to [petitioner's] collateral challenge.'") (quoting Green v. United States, 397 F.3d at 103); Huang v. United States, 03 Civ. 3755, 91 Cr. 827, 2005 WL 550888 at *2 (S.D.N.Y. Mar. 9, 2005) (Blakely does not apply retroactively on collateral review); Woodard v. United States, No. 04-CV-3570, 2005 WL 524725 at *2 (E.D.N.Y. Mar. 7, 2005) (Booker and Blakely do not apply retroactively on collateral review for first time § 2255 petitions); United States v. Reyes, 90 Cr. 584-01, 2005 WL 427578 at *1 (S.D.N.Y. Feb. 23, 2005) (Blakely and Booker do not apply retroactively on collateral review); Nnebe v. United States, 04 Civ. 2416, 01 Cr. 5455, 2005 WL 427534 at *9 (S.D.N.Y. Feb. 22, 2005) (Blakely does not apply retroactively on collateral review);Hamdani v. United States, No.Civ.A.04-3332, 2005 WL 419727 at *1-2 (E.D.N.Y. Feb. 22, 2005) (Blakely and Booker do not apply retroactively on initial § 2255 motions).
Similarly, Steele relies on Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), for his argument that the Robinson-CI tapes were admitted in error. (04 Civ. 6918, Dkt. No. 1: Pet. at 10.) However, the Second Circuit has held thatCrawford does not apply retroactively on collateral review, and therefore it does not apply here. Mungo v. Duncan, 393 F.3d 327, 336 (2d Cir. 2004) ("We thus conclude that Crawford would not be applied retroactively on collateral review."), petition for cert. filed, (Feb. 17, 2005) (No. 04-8782); see Perez v.Zon, No. 04-CV-4421, 2005 WL 503933 at *9 (E.D.N.Y. Feb. 2, 2005) ("[T]he Second Circuit has held that Crawford is not retroactively applicable to claims on collateral review.").
CONCLUSION
For the reasons set forth above, Steele's § 2255 petition isDENIED. The Clerk of Court shall enter judgment accordingly.SO ORDERED.