Opinion
18-CR-00848 (JSR) 21-CV-00112 (JSR)(SN)
05-16-2022
UNITED STATES OF AMERICA, v. DERICK MURPHY, Defendant. DERICK MURPHY, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
REPORT & RECOMMENDATION
Sarah Netburn, United States Magistrate Judge
TO THE HONORABLE JED S. RAKOFF:
Petitioner Derick Murphy, proceeding pro se, moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence of 87 months' imprisonment, which the Court imposed on May 20, 2019, after Murphy pleaded guilty to unlawful possession of a firearm following a prior felony conviction. See 18-cr-848 ECF No. 21 (Sentencing Tr.); ECF No. 24 (Pet.); ECF No. 29 (Gilbert Aff.) Ex. D. When Murphy accepted the government's plea offer, he waived his right to a direct appeal and all collateral challenges and sentence modifications but reserved the right to assert claims of ineffective assistance of counsel. Gilbert Aff. Ex. D at 4-5.
Murphy argues that he was denied effective assistance of counsel because his attorney: (1) coerced him to accept the government's plea offer; (2) failed to challenge the calculated guideline range for imprisonment, which Murphy claims was based on an incorrectly determined offense level and criminal history category; (3) did not file a direct appeal on his behalf; and (4) did not raise the Supreme Court's decision in Rehaif v. United States, 139 S.Ct. 2191 (2019), to the Court or on appeal. I recommend that the Court dismiss the petition because it is time-barred and without merit.
BACKGROUND
On September 23, 2018, Murphy and two other people were in the Bronx when Murphy took a gun from another person and opened fire, shooting ten rounds at a crowd of people on the street in front of an apartment building. Gilbert Aff. Ex. A at 6. Two people were shot and survived; no one was killed. Id. Murphy was charged on November 27, 2018, with a violation of 18 U.S.C. § 922(g)(1) for unlawful possession of a firearm following a prior felony conviction. Gilbert Aff. ¶ 2. The next day, Michael Gilbert was appointed, pursuant to the Criminal Justice Act, to represent Murphy. At the initial presentment and bail proceeding, Gilbert argued for bail, which was denied by Magistrate Judge Kevin N. Fox.
Soon after Murphy's presentment, Gilbert received discovery from the government that included surveillance video footage capturing the events of September 23, 2018. Id. ¶ 4. The footage showed a person, alleged to be Murphy, taking a gun from another person and shooting at a crowd of people on the street. Id. According to Gilbert's colleague, Murphy denied that he was the shooter in the video footage. Id. ¶ 6. At a January 11, 2019 status conference, the Court denied a renewed bail request after having reviewed the surveillance video. The Court concluded that “it is more likely than not that [Murphy] was the shooter.” Gilbert Aff. Ex. C at 21:17-18.
On January 16, 2019, Gilbert received a proposed plea agreement from the government in connection with Murphy's § 922(g)(1) charge. See Gilbert Aff Ex. D. Murphy's total offense level was calculated as 26 due to the applicability of U.S.S.G. § 2A2.1, the guideline for the substantive offense of attempted murder. Murphy was also assigned 3 criminal history points for a December 14, 2009 conviction for second-degree assault that resulted in a two-year sentence. Id. at 3; Gilbert Aff. ¶¶ 9-10. The plea offer provided that Murphy would “not file a direct appeal; nor bring a collateral challenge, including but not limited to an application under [28 U.S.C. §§ 2255 and/or 2241]; nor seek a sentence modification pursuant to [18 U.S.C. § 3582(c)], of any sentence within or below the Stipulated Guidelines Range of 70 to 87 months' imprisonment, ” but that Murphy would reserve “whatever rights [he] may have to assert claims of ineffective assistance of counsel, whether on direct appeal, collateral review, or otherwise.” Gilbert Aff. Ex. D at 4-5.
Murphy was also convicted on December 14, 2009, for attempted criminal possession of a weapon in the second degree, see N.Y. Penal Law § 265.03, but the sentence was less than one year and one day long. Because he committed the offense at age seventeen and was released from confinement more than five years before he committed the § 922(g)(1) offense, this conviction did not factor into the calculation. See U.S.S.G. § 4A1.2(d)(2).
In ensuing plea discussions, the government stated that, if Murphy were convicted at trial, it intended to seek and apply the sentencing guideline for attempted first-degree murder, which had a base offense level of 33 (versus 27 for attempted second-degree murder). Gilbert Aff. ¶¶ 9, 12. Gilbert also learned from the government that Murphy had additional potential criminal exposure based on uncharged drug conduct, including the alleged sale of crack cocaine. Id. ¶ 13. The government produced additional discovery to support this claim, including video footage. Id.
Gilbert and his colleague then engaged in plea discussions with the government to try and resolve both the § 922(g)(1) charge and the uncharged drug conduct to limit Murphy's criminal exposure. On February 12, 2019, the government sent a second proposed plea offer to resolve both issues. See Gilbert Aff. Ex. F. The offer would expire on February 15, 2019, and the government declined to extend the expiration date. See Gilbert Aff. Exs. H, I. On February 13, 2019, and February 14, 2019, Gilbert and his colleague visited Murphy at the Metropolitan Correction Center and reviewed both plea offers and discussed Murphy's options (including trial). Gilbert Aff. ¶¶ 16-17. The attorneys reviewed the appellate waiver in each plea offer. Id. ¶ 17. Gilbert states in a sworn affidavit that at no point during the February 14, 2019 meeting did he or his colleague “ever attempt to coerce or intimidate” Murphy into accepting either plea offer, suggest that a certain sentence was assured, or suggest that the uncharged drug conduct would “go away.” Id. ¶ 18.
When Gilbert returned to the office, he received an email from Murphy's girlfriend stating that Murphy had decided to accept the original January 16, 2019 plea offer resolving only the § 922(g)(1) charge. See Gilbert Aff. Ex. J. Gilbert informed the government of Murphy's decision and asked to schedule a plea proceeding. See Gilbert Aff. Ex. K. Like the original January 16, 2019 plea offer, the final plea agreement, now dated February 19, 2019, calculated Murphy's total offense level as 26, placed him in Criminal History Category II, and provided that the stipulated Guidelines range was 70 to 87 months' imprisonment. See Gilbert Aff. Ex. L. The plea agreement contained the same appellate waiver that was in the original plea offer. See id.
Murphy claims that Gilbert deceived him into believing that, if he did not plead guilty, the government would charge him with another drug-related offense and seek an enhanced sentence. Pet. at 7. In February of 2019, Gilbert purportedly “began a crusade of deception and manipulation, ” advising Murphy that the government had information it would use to have a grand jury indict him for an additional drug-related offense if he did not plead guilty. Id. Then, Murphy asserts, Gilbert met with him only “moments” before appearing before Judge Rakoff and advised Murphy that if he pleaded guilty, Gilbert would be able to convince the government to drop the second drug-related charge. Id. at 8.
Murphy's change-of-plea hearing took place on February 20, 2019. See 18-cr-848 ECF No. 13 (Plea Tr.). After Judge Rakoff found Murphy competent to enter an informed plea, Murphy confirmed on the record that: he was satisfied with the legal representation he had received and had been given “a full opportunity” to discuss the matter with his lawyers, id. 4:1621; he had reviewed the charge and sentencing guidelines with his attorneys, id. at 4:25-5:5, 7:16-23; he understood the various rights he was giving up by pleading guilty, id. at 5:9-7:5; he had reviewed, discussed with his attorneys, understood, and agreed to the terms in the February 19, 2019 plea agreement, id. at 7:24-8:13; he understood that he would be bound by the sentence Judge Rakoff would impose if he pleaded guilty and that “if anyone has made any kind of promise or prediction or estimate or representation to you of what your sentence will be in this case, that person can be wrong, ” id. at 8:19-9:9; he understood that, under the terms of the plea agreement, he had agreed not to appeal or otherwise attack a sentence of 87 months or less, id. at 9:10-15; and no one had threatened or coerced him in any way to make him plead guilty, id. at 10:1-7.
Judge Rakoff then asked Murphy to explain what made him guilty of the charged crime. Murphy responded, “On September 23, 2018, I possessed a firearm in Bronx New York. I was a convicted felon at the time. I knew it was wrong and that it was illegal for me to have a gun because I'm a convicted felon.” Id. at 10:23-11:1. Judge Rakoff asked, “And you fired that gun, yes?” Murphy said, “Yes.” Id. at 11:2-3. Judge Rakoff concluded that Murphy had acknowledged his guilt as charged and shown “he understands his rights, ” and that his plea was “knowingly and voluntarily supported by independent basis and facts.” Id. at 11:15-20.
Before sentencing, the Probation Office interviewed Murphy and his family members and prepared a Presentence Investigation Report (PSR). See Gilbert Aff. Ex. N. The PSR reflected the same calculations as the plea agreement, including a total offense level of 26, Criminal History Category of II, and Guidelines range of 70 to 87 months' imprisonment. See id. at 4-5, 79, 14. The PSR assigned Murphy three criminal history points for his December 14, 2009 conviction for second-degree assault and zero points for his December 14, 2009 conviction for attempted criminal possession of a weapon in the second degree. Id. at 8-9.
On May 20, 2019, Judge Rakoff sentenced Murphy to 87 months' imprisonment to be followed by three years of supervised release. Sentencing Tr. at 8:7-9:9. He then said, “Mr. Murphy, you have a right to appeal the sentence. Do you understand that?” Id. at 9:21-23. Murphy responded, “Yes.” Id. at 9:23.
Murphy claims that he instructed Gilbert to file a notice of appeal, and that Gilbert failed to do so, instead misleading Murphy into believing that an appeal had been filed. Pet. at 5. Specifically, Murphy alleges that, before the change-of-plea hearing, Gilbert advised him that regardless of the appellate waiver in the plea agreement, Murphy would retain the right to appeal, and that the presiding judge would inform him of that right. Id. at 5-6. Additionally, Murphy claims that shortly after Judge Rakoff sentenced him, Gilbert turned and asked Murphy whether he wanted to appeal, to which Murphy responded, “Yes, please file an appeal for me.” Id. at 6. Over the next three months, Murphy says that he communicated with Gilbert via his girlfriend and emailed about specific issues to pursue on direct appeal. Id. Murphy was allegedly “led to believe that an appeal notice had been filed and that, according to Mr. Gilbert, ‘we're just waiting for a schedule on our case.'” Id. Murphy's communication included an August 24, 2019 email to Gilbert sent via his girlfriend that requested re-sentencing due to alleged error in calculating his total offense level and noted that he was “in the process of submitting a 2255 petition with the Clerk of the Southern District of New York.” Gilbert Aff. Ex. R. The email made no reference to a direct appeal. Id. Gilbert and his colleague responded to Murphy, informing him that they believed his total offense level and Guidelines range to have been correctly determined. Gilbert Aff. Ex. S.
Murphy included a copy of this email as an attachment to his petition as well. See Pet. at 16. However, Murphy's version is dated October 13, 2020. Given that the email was written “before [Murphy's] movement to another district, ” presumably referring to his transfer to USP Canaan, which took place in 2019, I assume the email was sent on August 24, 2019. Id.; see also Gilbert Aff. Ex. U at 26 (August 27, 2019 email from Gilbert's colleague thanking Murphy for his message, which was received “on August 24”).
Then, in June of 2020, Murphy sent Gilbert a letter asking about the status of his appeal, which he says Gilbert did not acknowledge. Pet. at 6. Murphy also claims that Gilbert later advised him that he could not pursue a Section 2255 motion until the appeal was concluded. Id. Gilbert has no recollection or record of ever having received such correspondence, or of informing Murphy that he could not pursue a Section 2255 motion until his appeal was done. Gilbert Aff. ¶ 31.
More generally, Gilbert has no recollection or record of Murphy ever having asked him to file a direct appeal, either at sentencing or afterwards, or any recollection or record of having ever informed Murphy (orally or in writing) that a direct appeal would be filed on his behalf. Gilbert Aff. ¶ 26. On October 22, 2020, Gilbert received a letter from Murphy dated October 13, 2020, requesting an update on the status of his direct appeal. Gilbert Aff. Ex. T. To the best of Gilbert's recollection, this letter was the first communication that he received from Murphy concerning a direct appeal or its status. Gilbert Aff. ¶ 31. Gilbert's colleague responded soon after, reminding Murphy of the appellate waiver in the plea agreement, which stated that Murphy had agreed not to appeal a sentence within or below the Stipulated Guidelines Range of 70 to 87 months' imprisonment. Gilbert Aff. Ex. U. The letter also reminded Murphy that the Court had advised him of the appellate waiver during the plea hearing, and informed Murphy that he had never requested that his attorneys file a direct appeal on his behalf, and they had not done so. Id.
On January 5, 2021, Murphy filed this petition for writ of habeas corpus under 28 U.S.C. § 2255. Judge Rakoff subsequently referred the matter to my docket for a report and recommendation. 21-cv-00112 ECF No. 3. I granted Murphy three extensions to reply to the government's opposition, first to August 17, 2021, then to October 1, 2021, then to November 1, 2021. 21-cv-00112 ECF Nos. 16, 17, 18. I informed Murphy that if he failed to file his reply or a letter showing good cause for his inability to do so by November 1, 2021, the matter would be considered fully briefed and ready for resolution. As of the issuance of this report and recommendation, Murphy has not filed a reply.
DISCUSSION
I. Standard of Review
A. Pro Se Submissions
Courts liberally construe pleadings prepared by pro se litigants and hold them “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). It is appropriate to interpret pro se submissions to raise the strongest arguments that they suggest. Gomez v. Brown, 655 F.Supp.2d 332, 342 (S.D.N.Y. 2009) (explaining that because of the right of self-representation, the court is obligated to make reasonable allowances to protect pro se litigants from “inadvertent forfeiture of important rights because of their lack of legal training” (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983))).
B. Habeas Review
“The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law.” Harrington v. Richter, 562 U.S. 86, 91 (2011). Under 28 U.S.C. § 2255, a petitioner may move the court which imposed his federal sentence to vacate, set aside, or correct his sentence where the sentence was imposed in violation of the Constitution or the laws of the United States, the sentencing court lacked jurisdiction, the sentence was in excess of the maximum authorized by law, or the sentence was an error of law or fact that constitutes “a fundamental defect which inherently results in a complete miscarriage of justice.” Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)); 28 U.S.C. § 2255.
The Court's discretion to grant habeas relief is narrowly limited out of “respect for the finality of criminal sentences, the efficient allocation of judicial resources, and an aversion to retrying issues years after the underlying events took place.” Bokun, 73 F.3d at 12. As a result, to upset a conviction by collateral attack, a petitioner “must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982); see Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010).
The Court need not hold a hearing to make findings of fact and conclusions of law where a motion pursuant to Section 2255 and the supporting files and records conclusively show that the prisoner is not entitled to relief. 28 U.S.C. § 2255(b); see also Puglisi v. United States, 586 F.3d 209, 214-15 (2d Cir. 2009).
II. Timeliness
A movant must seek relief under Section 2255 within one year after the judgment of conviction becomes final or the date on which the facts supporting the movant's claims could have been discovered through the exercise of due diligence, whichever is later. 28 U.S.C. § 2255(f). Because the one-year period is a statute of limitations, not a jurisdictional bar, the period may be equitably tolled. Green v. United States, 260 F.3d 78, 82 (2d Cir. 2001). A court may toll the one-year period only where “(1) the moving party requests the extension upon or after filing an actual section 2255 motion, and (2) ‘rare and exceptional' circumstances warrant equitably tolling the limitations period.” Id. at 82-83 (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)).
“[F]or purposes of § 2255 motions, an unappealed federal criminal judgment becomes final when the time for filing a direct appeal expires.” Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005). Under Federal Rule of Appellate Procedure 4(b), Murphy's time to file a direct appeal expired on June 7, 2019, 14 days after entry of judgment. See 18-cr-848 ECF No. 20.
The next question is when a duly diligent person in Murphy's circumstances would have discovered that no appeal had been filed. “[T]he date on which the limitations clock [begins] to tick is a fact-specific issue the resolution of which depends, among other things, on the details of [the petitioner's] post-sentence conversation with his lawyer and on the conditions of his confinement in the period after” the judgment became final. Wims v. United States, 225 F.3d 186, 190-91 (2d Cir. 2000). “Maximum feasible diligence” is not required, only “reasonable” diligence. Id. at 190 n.4. The “petitioner bears the burden of persuading the court that he exercised due diligence in discovering the factual predicate of his habeas claim.” Shabazz v. Filion, No. 02-cv-939 (LEK)(GHL), 2006 WL 2792741, at *5 (N.D.N.Y. Sept. 26, 2006) (citing cases), affd, 402 Fed.Appx. 629 (2d Cir. 2010).
Murphy argues that he exercised due diligence when he wrote to Gilbert on October 13, 2020, to inquire about the status of his appeal, then sent certified mail reiterating his question. Pet. at 4. Murphy does not acknowledge the correspondence he had with Gilbert and Gilbert's colleague in August of 2019. Murphy's August 24, 2019 email specifically noted that he was “in the process of submitting a 2255 petition with the Clerk of the Southern District of New York” and made no reference to the prospect of a direct appeal. See Gilbert Aff. Ex. R. Gilbert's August 27, 2019 reply did not mention a direct appeal or Section 2255 petition. A duly diligent person in Murphy's circumstances contemplating filing a Section 2255 petition on the grounds that his lawyer had failed to file an appeal would have asked in that August 24, 2019 email whether an appeal had indeed been filed. And even earlier than August of 2019, Murphy was on notice that an appeal would not be filed: Murphy voluntarily entered into a plea agreement which contained a valid waiver of his rights to appeal a sentence within or below the stipulated Guidelines range, which is the sentence he received on May 20, 2019.
The Court need not inquire into the issue further: whether the one-year period began to run on August 24, 2019, or June 7, 2019, Murphy's petition was filed on January 5, 2021, well over a year later. See Tsastsin v. United States, No. 18-cv-5975 (LAK)(GWG), 2019 WL 4266186, at *14 (S.D.N.Y. Sept. 10, 2019) (finding that a duly diligent person would “have known or discovered within a year of his sentence the fact that no appeal was filed on his behalf”). His petition is therefore untimely.
Murphy argues that equitable tolling applies because he was misled by Gilbert into believing that an appeal had been filed and that Gilbert had advised Murphy that he was filing a Section 2255 motion. If credited, such an assertion of attorney conduct could be “so outrageous and incompetent that it is truly extraordinary” and justifies equitable tolling. Doe v. Menefee, 391 F.3d 147, 159 (2d Cir. 2004). But Murphy's insistence that he was misled by his attorney about the filing of an appeal or Section 2255 motion is not credible. Gilbert explains, under penalty of perjury, that Murphy never asked him to file an appeal and that he never promised to do so (or to file a Section 2255 motion). Gilbert Aff. ¶¶ 26, 31. This representation “is thoroughly plausible in view of the fact that [Murphy] waived his right to appeal in his plea agreement.” Mills v. United States, No. 09-cv-4090 (JSR)(MHD), 2010 WL 3825732, at *6 (S.D.N.Y. May 20, 2010), adopted by 2010 WL 3825733 (S.D.N.Y. Sept. 30, 2010). In the absence of any evidence that Murphy was misled by his attorney, he is not entitled to equitable tolling, which is warranted “only in the most compelling circumstances.” Id. at *7.
I therefore recommend that the Court deny Murphy's petition as untimely.
III. Merits
Even if the Court could reach the merits of Murphy's claims, he cannot establish that federal habeas relief is warranted. Murphy claims that Gilbert provided ineffective assistance of counsel because: (1) he coerced Murphy into pleading guilty; (2) he failed to challenge the offense level and criminal history category determinations used in calculating the appropriate Guidelines range for sentencing; (3) he failed to file a direct appeal on Murphy's behalf; and (4) he failed to raise Rehaif to the district court or on appeal. I evaluate all four ineffective assistance claims using the framework established in Strickland v. Washington, 466 U.S. 668 (1984). See United States v. Hernandez, 242 F.3d 110, 112 (2d Cir. 2001) (applying Strickland test to determine whether guilty plea was involuntary).
To establish a claim of ineffective assistance of counsel, a petitioner bears the burden of showing that (1) counsel's assistance fell below an objective standard of reasonableness, and (2) prejudice resulted. Strickland, 466 U.S. at 687-88, 693-94. This standard is “highly demanding.” Bennett v. United States, 663 F.3d 71, 85 (2d Cir. 2011) (quoting Kimmelman v. Morrison, 477 U.S. 365, 382 (1986)). The ineffective assistance of counsel claim “must be rejected if the [petitioner] fails to meet either the performance prong or the prejudice prong.” Id.
Counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. The Court must be “mindful of the diversity of the bar and the variety of approaches effective attorneys might employ when dealing with a particular set of facts.” Parisi v. United States, 529 F.3d 134, 141 (2d Cir. 2008). This consideration applies across multiple facets of an attorney's representation, including plea bargaining, which is “by its nature, defined to a substantial degree by personal style.” Missouri v. Frye, 566 U.S. 134, 145 (2012). “Simple disagreement with counsel's chosen strategy, especially with the benefit of hindsight, is insufficient to support an ineffective assistance of counsel claim.” United States v. Zubiate, No. 18-cr-442 (AJN), 2022 WL 1294437, at *3 (S.D.N.Y. Apr. 29, 2022) (citations omitted).
To establish prejudice, a petitioner must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
A. Voluntariness of Murphy's Plea
“It is by now well established that a knowing and voluntary waiver of the right to appeal is generally enforceable.” Hernandez, 242 F.3d at 113 (citing United States v. Garcia, 166 F.3d 519, 521 (2d Cir. 1999), then citing United States v. Yemitan, 70 F.3d 746, 747 (2d Cir. 1995)). The Court is “entitled to rely upon the defendant's sworn statements, made in open court . . ., that he understood the consequences of his plea, had discussed the plea with his attorney, knew that he could not withdraw the plea, [and] understood that he was waiving his right to appeal a sentence [within the stipulated Guidelines range].” Id. at 112. However, “appellate and collateral attack waivers may be set aside when a defendant challenges ‘the constitutionality of the process by which he waived those rights.'” United States v. Yousef, No. 08-cr-1213 (JFK), 2019 WL 1517653, at *2 (S.D.N.Y. Apr. 8, 2019) (quoting Khan v. United States, No. 07-cr-711 (LAP), 2014 WL 2111677, at *6-7 (S.D.N.Y. Apr. 28, 2014)). The Court of Appeals has recognized such a constitutional challenge to waivers where the petitioner claims the plea agreement was entered into without effective assistance of counsel. See Hernandez, 242 F.3d at 113-14.
Murphy contends that Gilbert coerced him to plead guilty by deceiving him into believing that, if he did not, the government would charge him with additional drug-related offenses and seek an enhanced sentence. Gilbert, however, explains that he learned from the government that Murphy had additional potential criminal exposure based on uncharged drug conduct, including the alleged sale of crack cocaine. Gilbert Aff. ¶ 13. To limit Murphy's criminal exposure, Gilbert requested that the government extend a plea offer that would resolve both the § 922(g)(1) charge and the uncharged drug conduct. Gilbert and his colleague then reviewed both plea offers with Murphy and discussed his options, including trial. Id. ¶¶ 16-17. Gilbert swears that at no point did he or his colleague “ever attempt to coerce or intimidate” Murphy into accepting either plea offer, suggest that a certain sentence was assured, or suggest that the uncharged drug conduct would “go away.” Id. ¶ 18.
The record does not support Murphy's claim of coercion, and his sworn testimony at the plea allocation-which carries a “strong presumption of verity, ” Blackledge v. Allison, 431 U.S. 63, 74 (1977)-conclusively demonstrates that he accepted the plea agreement knowingly and voluntarily. See Puglisi, 586 F.3d at 214 (“[A] district court need not assume the credibility of factual assertions, as it would in civil cases, where the assertions are contradicted by the record in the underlying proceeding.”). Murphy's allegations are insufficient to overcome Strickland's “strong presumption, ” 466 U.S. at 689, that counsel acted competently. See Naranjo v. United States, Nos. 17-cv-9573 (JSR)(BCM), 13-cr-351 (JSR), 2021 WL 1063442, at *6 (S.D.N.Y. Feb. 26, 2021) (disregarding petitioner's “unsupported assertions” of ineffective assistance as “starkly at odds with the more detailed affidavit of [his] attorney”), adopted by 2021 WL 1317232 (S.D.N.Y. Apr. 8, 2021); Stitsky v. United States, Nos. 15-cv-7889 (KMW), 06-cr-357 (KMW), 2018 WL 10741470, at *6 (S.D.N.Y. Oct. 25, 2018) (“Where, as here, a habeas court is faced with self-serving allegations that are contradicted by a credible affirmation from a trial attorney, it may choose to credit the attorney and dismiss the ineffective assistance of counsel claim without further hearings.” (cleaned up)), adhered to on reconsideration, 2019 WL 1254566 (S.D.N.Y. Mar. 19, 2019).
I recommend that the Court find Murphy's plea was voluntary and uncoerced.
B. Gilbert's Failure to Challenge the Guidelines Calculation at Sentencing
Murphy next claims counsel was ineffective for failing to contest the offense level and criminal history calculations the Judge Rakoff adopted at the sentencing hearing. As Gilbert and his colleague explained-and Murphy ignores-Judge Rakoff's Guidelines calculation was identical to that included in the plea agreement and PSR. See Gilbert Aff. Ex. S.
In any event, the Court agrees with the calculations. Section 2K2.1 of the Sentencing Guidelines, which covers the possession of firearms, contains a “cross reference” under subsection 2K2.1(c): “If the defendant used or possessed any firearm or ammunition . . . in connection with the commission or attempted commission of another offense, . . . apply §2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above.” Section 2X1.1 in turn states that in cases of attempt, the “base offense level” is determined “from the guideline for the substantive offense.” Because Murphy's substantive offense was attempted murder, the applicable guideline was Section 2A2.1, which has a base offense level of 27 and triggers a two-level increase when a victim sustains serious bodily injury, resulting in a total offense under 2X1.1 of 29. Because that offense level is greater than the offense level under 2K2.1, the 2X1.1 offense level applied (and was then reduced to 26 based on Murphy's acceptance of responsibility). Similarly, Murphy was correctly assigned criminal history points in connection with one of his 2009 convictions. Although the offense was committed before Murphy's 18th birthday, he was convicted as an adult and received a sentence of imprisonment exceeding one year and one month. See U.S.S.G. §§ 4A1.1(a), 4A1.2(d). He therefore appropriately received three criminal history points. Murphy's claim that Gilbert should have objected to correct Guidelines calculations is without merit.
C. Gilbert's Failure to File an Appeal
Even if a client waives his right to appeal in a plea agreement, if he nevertheless requests that his attorney file a notice of appeal, the attorney must do so and submit a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Campusano v. United States, 442 F.3d 770, 771-72 (2d Cir. 2006). “[A] lawyer who disregards specific instructions from [his client] to file a notice of appeal acts in a manner that is professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000).
“When there is a dispute over whether a defendant specifically instructed his attorney to file an appeal, the district court must conduct a hearing and determine as a matter of fact whether an appeal was requested.” Brown v. United States, No. 17-cr-789 (PKC), 2021 WL 1222437, at *2 (S.D.N.Y. Apr. 1, 2021) (citing Campusano, 442 F.3d at 776). However, “the district court has discretion to determine if a testimonial hearing will be conducted.” Campusano, 442 F.3d at 776. See also Daragjati v. United States, 598 Fed.Appx. 50, 52 (2d Cir. 2015) (instructing the district court on remand to “determine as a matter of fact whether [defendant] requested a notice of appeal” but recognizing that a “hearing need not be testimonial”); Lopez v. United States, 03-cr-317, 2006 WL 2020389, at *3 (S.D.N.Y. July 12, 2006) (“Although the district court is required to engage in fact-finding to determine if an appeal was requested, Campusano specifically recognizes that ‘the district court has discretion to determine if a testimonial hearing will be conducted' in order to make this finding.” (quoting Campusano, 442 F.3d at 776)).
Murphy's assertion that he asked his attorney to file a notice of appeal at the time of sentencing (or, indeed, any time after) is not credible. Murphy provides no evidence to support his claim, whereas Gilbert swears under penalty of perjury that he has no recollection or record of Murphy ever having asked him to file a direct appeal, either at sentencing or afterwards, or any recollection or record of having ever informed Murphy (orally or in writing) that a direct appeal would be filed on his behalf. Gilbert Aff. ¶ 26. “Moreover, the subsequent written communications between [Murphy] and his counsel do not support [Murphy's] account.” Brown, 2021 WL 1222437, at *3. In the November 12, 2020 letter, Gilbert, through his colleague, stated that Murphy never asked him to file a notice of appeal. See Gilbert Aff. Ex. U. Gilbert's account is corroborated by the fact that he counseled Murphy about the appellate waiver during the review of both plea offers, including the ultimate agreement reached. Gilbert Aff. ¶ 17. Murphy also confirmed his understanding of the waiver at his plea allocution when specifically asked by the Court. Plea Tr. at 9:10-15.
Murphy is correct that Judge Rakoff instructed him at sentencing that he had the right to appeal his sentence. See Sentencing Tr. at 9:21-23. Given Murphy's knowing and voluntary plea, however, it would have been unreasonable for him to rely on the statement Judge Rakoff made. The Court's arguable misstatement at sentencing did not negate the appellate waiver. Cf, Sanchez v. United States, No. 04-cr-36 (VEC), 2021 WL 603224, at *1 n.1 (S.D.N.Y. Feb. 16, 2021) (noting affirmance of consecutive sentence where district judge misspoke at the sentencing hearing and stated that a consecutive sentence was not possible but nevertheless imposed consecutive sentence).
I find that holding a full-scale evidentiary hearing “would add little or nothing to the written submissions.” Chang v. United States, 250 F.3d 79, 86 (2d Cir. 2001); see also Brown, 2021 WL 1222437, at *3 (collecting cases deciding analogous Section 2255 motions without a testimonial hearing). Moreover, despite repeated opportunities granted by the Court, Murphy has failed to respond to the government's contentions. On the current record, Murphy did not ask Gilbert to file a notice of appeal until his October 13, 2020 letter. Gilbert's performance was therefore not ineffective for failing to file a notice of appeal.
D. Gilbert's Failure to Raise Rehaif
Finally, Murphy argues that Gilbert failed to raise Rehaif, which was before the Supreme Court at the time of Murphy's sentencing but had not yet been decided. Specifically, Murphy claims that Gilbert told him that, on appeal, he would raise Rehaif, and that Murphy could “always come back on [his] case” if Rehaif was decided favorably. Before he accepted the plea agreement, Murphy claims, he specifically told Gilbert that he did not know that either of his prior state convictions were felony convictions.
In Rehaif, the Supreme Court held that, in a prosecution under § 922(g), “the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” Rehaif, 139 S.Ct. at 2200. In doing so, the Court “express[ed] no view . . . about what precisely the Government must prove to establish a defendant's knowledge of status in respect to other § 922(g) provisions not at issue here.” Id. Accordingly, following Rehaif, in a prosecution under § 922(g)(1), the government must demonstrate that the defendant knew the facts that made his possession of a firearm illegal.
Murphy did know-and said so in open court. During his plea hearing, while under oath, Judge Rakoff asked Murphy to explain what made him guilty of the charged crime. Murphy responded, “On September 23, 2018, I possessed a firearm in Bronx New York. I was a convicted felon at the time. I knew it was wrong and that it was illegal for me to have a gun because I'm a convicted felon.” Plea Tr. at 10:23-11:1. Murphy's “own sworn statements suggest that he knew that, at the time of his arrest, he was prohibited from possessing a firearm.” United States v. Sumlin, No. 18-cr-682 (SHS), 2020 WL 3318207, at *4 (S.D.N.Y. June 18, 2020), appeal dismissed, No. 20-1985, 2021 WL 2624172 (2d Cir. Jan. 4, 2021). Any ineffective assistance of counsel claim based on Rehaif is therefore without merit.
CONCLUSION
I recommend that Murphy's petition for a writ of habeas corpus be DENIED as untimely and, in the alternative, without merit. Because the petition makes no substantial showing of a denial of a constitutional right, a certificate of appealability should not issue. See 28 U.S.C. § 2253. I further recommend that the Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith and therefore in forma pauperis status should be denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Rakoff. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).