Opinion
87 CR 132 (RO)
October 26, 2001
Mary Jo White, United States Attorney, and Deborah E. Landis, Assistant United States Attorney, Attorneys for Plaintiff.
Leonard Rollock, pro se
OPINION AND ORDER
Leonard Rollock was twice convicted of being a major drug dealer conspiring with others. The conviction and 50 year sentence on the first trial was reversed (See United States v. Reiter, 897 F.2d 639 (2nd Cir. 1990)). The conviction and 50 year sentence on the second trial in 1992 was affirmed in an unpublished summary order on January 9, 1992 (United States v. Rollack, 956 F.2d 1159 (2nd Cir. 1992)). In papers filed on March 31, 2000, supplementing earlier submissions, Rollock, after an earlier denial of a 28 U.S.C. § 2255 motion in 1997, again moves under § 2255 to vacate, set aside or correct his now eight year old conviction and sentence.
To obtain relief from a conviction under § 2255, a petitioner must demonstrate "a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes "a fundamental defect which inherently results in a complete miscarriage of justice." Graziano v. United States, 83 F.3d 587, 589-90 (2nd Cir. 1996) (quoting United States v. Bokun, 73 F.3d 8, 12 (2nd Cir. 1995)).
A § 2255 petition is not a substitute for an appeal, United States v. Frady, 456 U.S. 152, 165 (1982), and a petitioner cannot use a § 2255 motion to relitigate questions that were raised on direct appeal or that could have been raised on direct appeal but were not. See, Riascos-Prado v. United States, 66 F.3d 30, 33-34 (2nd Cir. 1995).
Thus, a petitioner seeking to raise a new claim on a motion for relief under 28 U.S.C. § 2255 may overcome the failure to raise that claim on appeal only by demonstrating both "cause" for the procedural default and "actual prejudice" resulting therefrom. See Frady, 456 U.S. at 162-170.
"Cause" is measured by a stringent standard of diligence. See, e.g., Coleman v. Thompson, 501 U.S. 722, 752 (1991), and United States v. Helmsley, 985 F.2d 1202, 1205-08 (2nd Cir. 1995) (the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default).
To meet the "prejudice" requirement, the petitioner must show that the error or errors alleged "worked to his actual and substantial disadvantage, infecting his entire trial with error," Frady, 456 U.S. at 170 (emphasis in original).
If a petitioner cannot show cause and prejudice, he can have his claim heard on collateral review if he establishes "actual innocence". Bousley v. United States, 523 U.S. 614, 623 (1998). In describing "actual innocence," the Court in Bousley stated, "It is important to note in this regard that `actual innocence' means factual innocence, not mere legal insufficiency." Id.
As to claims of ineffective assistance of counsel, in Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court reaffirmed that "[a]n accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair."Id. at 685. Thus, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686.
A claim of ineffective assistance of counsel, however, requires a showing of two things: inadequate performance by counsel, and prejudice resulting from that inadequate performance. The first part of the test requires the defendant to show "that counsel's performance was deficient. This requires showing that counsel nude errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. The governing performance standards depend in large part on the standards set by the legal profession: "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id. at 688.
In evaluating a claim that counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms," the reviewing court "`must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,' bearing in mind that `[t]here are countless ways to provide effective assistance in any given case' and that `[e]ven the best criminal defense attorneys would not defend a particular client in the same way.'" United States v. Aguirre, 912 F.2d 555, 560 (2nd Cir. 1990) (quoting Strickland, 486 U.S. at 689). As the Supreme Court recognized inStrickland, "[i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland 486 U.S. at 689. Accordingly, the Court inStrickland held, "[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." Id.
Obviously, "[a]ctions or omissions by counsel that might be considered sound trial strategy do not constitute ineffective assistance." Mason v. Scully, 16 F.3d 38, 42 (2nd Cir. 1994).
With respect to the prejudice prong of the Strickland analysis, the Supreme Court in that case noted that "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." Strickland, 466 U.S. at 697. Accordingly, the Second Circuit has repeatedly rejected ineffectiveness claims on the ground of the strength of the Government's case. See, e.g., Strouse v. Leonardo, 928 F.2d 548, 556 (2nd Cir. 1991) (declining to address alleged deficiencies of counsel given the overwhelming evidence of guilt at trial); United States v. Simmons, 923 F.2d 934, 956 (2nd Cir. 1991) ("given the plethora of evidence against [appellant] there is little reason to believe that alternative counsel would have fared any better"), cert. denied, 500 U.S. 919 (1991); United States v. Reiter, 897 F.2d 639, 645 (2nd Cir. 1990) (although counsel's performance fell below professional standards, Sixth Amendment claim was deemed meritless "given the overwhelming evidence of [the defendant's] guilt"), cert. denied, 498 U.S. 817 (1990).
Against this background, while Rollock states a plethora of claims, he makes essentially five:
1. Ineffective assistance of counsel, Douglas Thomas, during plea negotiations prior to the first trial. This is somewhat of a misnomer for it is a claim that if the government had told Rollock about its possession of a taped conversation with a wired informant giving it knowledge of his major but unrelated criminal drug activity elsewhere, but particularly Florida, his then attorney would have "effectively" advised him to accept a fifteen year plea offer, instead of letting him go to trial, get convicted, and thereafter be sentenced to 50 years.
2. Ineffective assistance of defense counsel Michael Milner in the preparation for and in the conduct of the second trial.
3. Ineffective assistance of defense counsel Maurice Sercarz at the sentencing phase after the second trial and the subsequent appeal thereof — including claims of prosecutorial vindictiveness and misconduct.
4. The imposition of a high sentence only permitted for higher drug amounts than Rollock alleges were proven.
5. A demand for re-sentencing, asserting that the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000), should be applied retroactively even though it was rendered long after the second conviction and sentence was affirmed by the Second Circuit.
Turning to Rollock's first claim, it boils down to the fact that Rollock claims that the government, which had indicted him for a major drug conspiracy in New York, also possessed a tape recording of his conspiratorial drug activities of a major nature elsewhere, such as Florida. He claims there was a duty to furnish him with that tape prior to the first trial and if he and his counsel had known of this tape his counsel would have urged him and he would have accepted the fifteen year plea bargain the government offered him at the time. The said recorded conversation with a fellow prison inmate-informant named Fitzpatrick, parts of which are quoted hereafter for a different purpose, is a devastating document of criminal conduct. The government apparently initially looked at it cursorily, but did not use it in the first trial because it had nothing to do with the issues litigated in that first trial and concomitantly, therefore, the government had no obligation to disclose it under Brady or Giglio since it spoke only of crimes elsewhere. I note that Rollock before the Second Circuit on the second appeal, after the reimposition of the 50 year sentence, did raise the subject of this tape, which was admitted into evidence on the second trial, but alleged an entirely different error based on its receipt in evidence. This the Court of Appeals rejected. He made no mention on that appeal of the present claim that its earlier undisclosed existance bore on his and his attorney's uninformed rejection of an advantageous plea before the first trial. This ground is therefore waived (see p. 7 infra). Rollock's argument thus fails, but also it is obvious that whether or not the government knew of this conduct, Rollock had to have known all the facts the tape revealed — he was the speaker, after all — and this could have informed and guided his conduct. Rollock's claim that knowledge of the tape would have motivated him to take the fifteen years is further put into question by the fact that when Rollock did learn that his co-conspirator James Jackson was going to testify against him on the first trial — and presumably quite damagingly — instead of grabbing the fifteen years, he jumped bail and disappeared only to be rooted out months later during the first trial, and he went to trial again knowing of both Jackson's testimonyand the tape, rejecting a 20 year plea offer.
As to claim two, ineffective assistance of counsel Milner in the second trial, First, when Rollock was specifically asked by the court on the record to list the instances of ineffective assistance, he not only failed to do so but limited his claim to one of a "breakdown" of communication.
THE DEFENDANT: And I don't want to really try to prove ineffective assistance, but I do believe we had a breakdown of communication. And I was hoping that I would be — that would be enough to request that mercy of the Court, to get a substitution for the proceeding.
THE COURT: Well, what I have heard in the last two or three sentences is, that you said — maybe you better read it back to me, Mr. Rollock, I had the transcript read back — I take it what you say is accurately what you really mean. Is that what it amounts to?
THE DEFENDANT: Yes.
THE COURT: You said you don't want to prove ineffective assistance, but you feel there has been a breakdown of communication, and you want somebody to deal with the presentence report.
THE DEFENDANT: Yes, your Honor.
Tr. 4/30/1991, pp. 5-6.
In addition to that, Rollock proffers no factual support for his claim and, being represented by a new attorney (Sercarz) on appeal, he could have raised the claim of ineffective assistance at trial had it existed,Cf., Ciak v. United States, 59 F.3d 296 (2nd Cir. 1995). Thus, the issue is both without merit and is factually barred.
Turning to Rollock's third claim of ineffective assistance of subsequent counsel Sercarz at the sentencing following the second trial and the subsequent appeal to the Second Circuit, this claim breaks down into four assertions. First, whereas the Court sentenced Rollock under three different paths to concurrent 50 year terms one of them, he argues, was not subject to parole in some part, thereby possibly extending it beyond 50 years. At the time, neither the Court nor any lawyer could answer whether it was or not subject to parole. This Rollock asserts was evidence of prosecutorial vindictiveness and misconduct. However, under the circumstances, the sentence was then viewed by this Court as the same 50 year sentence imposed on Rollock after the first trial. Accordingly, there is no presumption of vindictiveness. The Second Circuit on the second appeal also dealt with this area stating:
Rollock asserts that the addition of the second § 846 conspiracy charge, in the final superseding indictment brought against him, was an act of prosecutorial vindictiveness. The District Court was satisfied that the second § 846 count was added only after the prosecutor listened anew to the Fitzpatrick tapes and realized that they provided evidence of another distinct conspiracy. The record does not support the conclusion that the District Court's determination was in error. Any possible presumption of vindictiveness is therefore rebutted. See United States v. Ricard, 563 F.2d 45, 48 (2d Cir. 1977) (presumption of vindictiveness rebutted by showing that reevaluation of evidence led to new charge), cert. denied, 435 U.S. 916 (1978).
Second, this Court specifically put a statement on the record addressing the vindictiveness. Third, whether any part of any sentence under any of the three branches was paroleable or not, if it were not, was not because of any vindictiveness by the Court, but because of some change in law.
Further under this heading, attorney Sercarz is charged with an unspecified failure to research, and an unspecified failure to take Rollock's "approach," and finally that he "misconstrued" trial testimony to Rollock's injury.
As to all of these, there is no basis given in the record to support them and under the discussion of legal background hereto, supra, without specifics, a court cannot even begin to deal with such generalized claims.
I note in one area that counsel Sercarz obtained a favorable verdict for Rollock on the issue of Rollock's involvement in the Bannister murder. The jury in the first trial had concluded he had participated in the Bannister murder. The fact that Sercarz did not call a number of allegedly exculpatory drug-participant witnesses that had been called at the first trial was obviously a trial strategy, since the witnesses — coming to the stand with an obvious drug-conspirator label themselves — had not been helpful at the first trial. Then, too, I observe this issue could have been raised by new counsel after the second trial, but was not, and thus was waived.
As to the fourth claim, Rollock asserts he was sentenced following the second trial on the basis of higher amounts of cocaine than he had in his possession when arrested. This claim is frivolous. There was extensive evidence in the trial of kilo amounts of cocaine in his operation in New York and in the Fitzpatrick tape, Rollock speaks of his being involved with kilograms of cocaine in his various conspiracies. He was in fact arrested with enough heroin on his person to meet the heroin test had it only been heroin. As a "for instance" as to cocaine in the Fitzpatrick tape, Rollock is heard saying:
I got a lot of respect in New York . . . as far as a lot of major cocaine niggers up there . . . that spend cash with me, niggers that could just get it on credit and get my money in a week or two, no problem, and I got a lot of spots that I can deal with as far as Boston. . . . I mean, you know, I don't have to do this a whole lot because I am able to get something like this. My problem — when I was buying keys, every time I got something good I wasn't able to continue. I never had consistent sources. But I never tried to make it my priority because I have always been so . . . good at . . . doing other things. I've always been good on the other side stuff.
* * *
In about three months I had about, uh, maybe about a two-and-a-half; three-month run where I was, uh, . . . I was averaging like $30,000 a week clear profit. Every seven, ten days. You know, but this is purely from street sales.
This claim, too, could have been raised on direct appeal, but was not and is waived.
Finally, he urges that it was not for the Court but for the jury to have made the determination of the amount of drugs involved which established his sentence range. That was not the law at the time. He therefore argues for the retroactive application of Apprendi v. New Jersey, supra. However, the Apprendi rule is one of those not applicable retroactively to cases on collateral review. See Teague v. Lane, 489 U.S. 288 (1989).
In any event, the evidence of Rollock's major drug dealing in both conspiracies for which Rollock was convicted on the second trial as to which the Circuit affirmed (see, supra) together with the Fitzpatrick tape as to his conduct in Florida was overwhelming evidence before the jury of his high level of cocaine dealings well beyond any limits necessary to support the conviction and sentence here, even had Apprendi been applicable to this situation. (I am confident that had the jury been asked, the jury would doubtless have so found the higher level predicate.)
The numerous other grounds asserted by Rollock have been examined and are either without merit, or no bases alleged, or were waived as having been known and not asserted on direct appeal.
For all the foregoing reasons, Rollock's motion to vacate the conviction, or set aside or correct sentence under 28 U.S.C. § 2255, is denied in its entirety.
The foregoing is SO ORDERED.