Opinion
01 Civ. 401 (SWK), 99 Civ. 1131 (SWK)
December 17, 2001
OPINION AND ORDER
Petitioner Anthony Williams ("Williams") moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. The Court referred this matter to Magistrate Gabriel W. Gorenstein, who issued a Report and Recommendation recommending the dismissal of the petition. Williams, through counsel, has submitted objections, and the Court will consider de novo those matters to which objections have been made. See Fed.R.Civ.Proc. 72(b). For the reasons set forth below, the Report and Recommendation of Magistrate Judge Gorenstein is adopted and the petitioner's motion to vacate his sentence is denied.
I. BACKGROUND
The Magistrate has clearly set forth the relevant background facts and the Court need not repeat them here in detail. See Report and Recommendation of Magistrate Judge Gabriel W. Gorenstein (hereinafter the "Report"), dated August 14, 2001, at 2-9. On October 1, 1999, Williams was arrested and charged with bank fraud pursuant to 18 U.S.C. § 1344. Yuanchang Lee, an attorney with the Federal Public Defender Services Unit, was appointed as counsel for Williams. On October 28, 1999, Williams was indicted by a grand jury, and, on November 4, 1999, Williams entered a plea of not guilty.
Subsequently, Williams changed his plea and plead guilty to one count of bank fraud on January 19, 2000. However, on April 3, 2000, Williams sent a letter to the Court in which he stated that his attorney told him to plead guilty and that immediately following the plea, he informed his attorney that he wished to withdraw the plea because he believed his attorney had made a deal with the prosecution for a shorter sentence, he was "disoriented" during the plea allocution, and because he did not understand the questions asked by the Court. See Letter dated April 3, 2000, from Williams to the Court. Williams also requested the appointment of new counsel. See Letter dated April 3, 2000, from Williams to the Court. Subsequently, the Court appointed Labe Richman as new counsel for Williams.
Following the appointment of new counsel, Williams did not make an application to withdraw his plea. In fact, in a May 3, 2000 letter to the Court, Williams stated that he wished to "withdraw" the letter dated April 3, 2000. See Letter dated May 8, 2000, from Williams to the Court. On May 17, 2000, Williams was sentenced to twelve months of incarceration, three years supervised release, and ordered to make restitution.
On January 8, 2001, Williams filed the instant motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Williams seeks to vacate his conviction on three grounds: (1) that Richman provided ineffective assistance of counsel by failing to appeal the conviction, despite Williams' specific request to do so; (2) that Lee provided ineffective assistance of counsel by improperly advising Williams regarding the guilty plea; and (3) that Lee failed to explain the deportation consequences of a conviction.
An evidentiary hearing was held by the Magistrate on June 6, 2001, at which the Magistrate ruled that the only factual issue to be decided was whether Williams had directed Richman to file a notice of appeal.
On August 14, 2001, the Magistrate issued a Report and Recommendation which recommended that Williams' petition should be denied on all grounds. Specifically, the Magistrate found that Williams failed to provide sufficient evidence of Richman's failure to file an appeal when Williams allegedly requested him to do so, and that he also failed to establish ineffective assistance of counsel with regard to Lee's alleged misrepresentations regarding sentencing and possible deportation. See,e.g., Report at 10-15.
On October 2, 2001, the Court received Williams' objections to the Report. Williams objects to each finding made by the Magistrate. Specifically, Williams argues that Richman's testimony concerning whether he withdrew his request for an appeal should not have been credited. See Objections to Report and Recommendation (hereinafter "Objections") dated September 30, 2001, at 10-18. Williams also challenges the Magistrate's finding that his ineffective assistance of counsel claim regarding Lee's presentencing advice was barred. See Objections at 10-18. Finally, Williams argues that the Magistrate erroneously failed to grant an evidentiary hearing on the issue of whether Lee had informed him of the deportation consequences of his conviction. See Objections at 18.
II. DISCUSSION
A. STANDARD OF REVIEW
Rule 72 of the Federal Rules of Civil Procedure, as well as the Federal Magistrate's Act, 28 U.S.C. § 631-639, designate the standard of review a district court should apply when reviewing a magistrate judge's order. Where, as here, objections have been made to the magistrate judge's determination, the district court's review is de novo the district court may "accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate (judge]." 28 U.S.C. § 636 (b)(1).
B. Richman's Alleged Failure to File An Appeal
Williams alleges that contrary to his direct instructions, Richman failed to file a notice of appeal. See Objections at 11. At the June 6, 2001 hearing before the Magistrate, both Williams and Richman testified as to whether Williams had directed Richman to file an appeal. A detailed description of the testimony at the hearing is contained within the Report and is hereby incorporated by reference. See Report at 5-9.
In order to demonstrate ineffective assistance of counsel, a petitioner must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). The petitioner must show that his "counsel's representation fell below an objective standard of reasonableness . . . [and] that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687-88.
The Supreme Court has also held that "a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (citing Rodriguez v. United States, 395 U.S. 327 (1969)). Therefore, "counsel has a constitutionally-imposed duty to consult with the defendant about an appeal where there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Flores-Ortega, 528 U.S. at 480.
In the instant case, Williams makes no claim that his counsel failed to consult with him regarding an appeal. Instead, he alleges that Richman failed to appeal his conviction and sentencing as instructed. At the hearing before the Magistrate, Williams testified that he told Richman to "appeal my case for me" while at his sentencing, and that he continuously requested that Richman file an appeal during numerous telephone conversations following the sentencing. Report at 5. Williams, however, did not recall Richman informing him that there were no grounds for an appeal, but testified that Richman failed to file an appeal because he was too busy with other cases. See Report at 5-6. In contrast, Richman testified that he has never failed to file a notice of appeal when asked to do so by a client, even when there were no grounds. See Report at 7. Richman also testified to discussing the possibility of an appeal with Williams, and he remembered Williams being "very depressed about the whole situation" because he had conveyed all the disadvantages of filing an appeal, including the possibility that Williams might do worse at trial. See Report at 7. The Magistrate, crediting the entire testimony of Richman, held that Williams and Richman discussed an appeal; Williams concurred he should not appeal; and therefore, Williams did not instruct Richman to file a notice of appeal. See Report at 9.
The Court upholds the findings of the Magistrate as to the credibility of the testimony of Williams and Richman. The Court therefore holds that Williams discussed the possibility of an appeal with Richman, and that subsequent to those discussions, Williams failed to request that Richman file an appeal. Accordingly, the Court finds that Richman's actions do not rise to the level of ineffective assistance of counsel, and denies Williams' petition on this issue. See Strickland, 466 U.S. at 687-88;see also Flores-Ortega, 528 U.S. at 477.
C. Sentencing
Williams also alleges that his guilty plea was unknowingly and unintelligently entered due to Lee's ineffective assistance. See Motion to Vacate at 6-7; see also Objections at 11. Specifically, Williams alleges that Lee promised him that he would receive only probation if he pled guilty, and that Lee also advised him that if he failed to plead guilty he would face life in prison. See Motion to Vacate at 8-9; Affidavit of Anthony Williams (hereinafter "Williams Aff."), dated December 28, 2000, ¶¶ 7-10. The Court, however, relieved Lee as counsel on April 26, 2000, after Williams informed the Court that Lee was providing ineffective assistance, and appointed Richman as new counsel the same day. Moreover, following Richman's appointment, Williams never moved to withdraw his previously entered guilty plea.
"The interests of finality and conservation of scarce judicial resources dictate that strict procedural rules govern the filing of motions to vacate pursuant to 28 U.S.C. § 2255." Robinson v. United States, No. 95 Civ. 10772, 1999 WL 156000 (S.D.N.Y. March 22, 1999) (citing Schlup v. Delo, 513 U.S. 295, 318-20 (1995)). As a general rule, if a defendant fails to raise a claim on direct appeal, he is barred from raising it in a section 2255 motion, unless he can demonstrate both cause for the procedural default and actual prejudice resulting from the claimed error. See United States v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995); Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992). This procedural bar applies even to a claim that a plea was unknowingly and unintelligently entered. See Bousley v. United States, 523 U.S. 614, 621 (1998).
An exception to this rule was created in Billy-Eko v. United States, 8 F.3d Ill. (2d Cir. 1993) (superseded by statute on other grounds), in which the Second Circuit held that unless "(1) the petitioner was represented by new appellate counsel at direct appeal, and (2) the claim is based solely on the record developed at trial," a section 2255 movant need not show cause and prejudice for his failure to raise an ineffective assistance of counsel claim on direct appeal. Billy-Eko, 8 F.3d at 115. However, no such presumption is appropriate where the petitioner was represented by new counsel on appeal, and where the grounds supporting his claim were apparent from the trial record, based upon the theory that an attorney may not be inclined to argue his or her own effectiveness on appeal, and because resolution of such claims typically involves consideration of matters outside the record on appeal. See Billy v. Eko, 8 F.3d at 114-15; see also Chacko v. United States, No. 00 Civ. 405, 2000 WL 1808662, at *4 (S.D.N.Y. Dec. 11, 2000). Where these grounds do not apply, there is no reason why a defendant should not be required to raise an ineffective assistance of counsel claim on a direct appeal. See Stokes v. U.S., No. 00 Civ. 1867, 2001 WL 29997, *4 (S.D.N.Y. Jan. 9, 2001). Therefore, where the defendant has new appellate counsel on direct appeal and the ineffective assistance of counsel claim is based solely upon the actions of the previous counsel, section 2255 relief is unavailable. See Billy-Eko, 8 F.3d at 115.
As stated in the Report, "[t]he same reasons that motivated the rule inBilly-Eko . . . apply with even stronger force here: (1) Williams was provided with new counsel far earlier than any potential appellate stage of his proceedings; and (2) the record of the alleged violation had already been made before the entry of the judgment of conviction, when Williams sought to withdraw his guilty plea." Report at 13. Williams, however, chose not to withdraw his guilty plea and proceeded to sentencing with his new attorney. Because Williams was represented by new counsel at his sentencing and each of the grounds he asserts to support his ineffective assistance of counsel claim was apparent from the record, Williams is procedurally barred from asserting his claim in this motion. See Billy-Eko, 8 F.3d at 115. Therefore, Williams, by choosing not to pursue an appeal, is barred from raising an ineffective assistance of counsel claim based upon the actions of his previous attorney in a section 2255 motion. Accordingly, the Court adopts the findings of the Magistrate's Report and denies Williams' petition on this issue.
Moreover, aside from the procedural bar, an examination of the merits of Williams' argument reveals that it must be dismissed. A defendant's statements at a plea allocution "carry a strong presumption of verity."Blackledge v. Allison, 431 U.S. 63, 74 (1977), and are conclusive absent a credible reason "justifying departure from their apparent truth."United States v. Gonzalez, 970 F.2d 1095, 1101 (2d Cir. 1992). Such "solemn declarations . . . are not to be lightly disregarded in favor of [petitionet's] present self-serving assertion." United States v. Napolitano, 212 F. Supp. 743, 747 (S.D.N.Y. 1963).
At Williams' plea allocution, the Court found that he was competent to make the plea, and that he had adequately discussed his case with his attorney. See Transcript of Plea Allocution (hereinafter "Tr."), Jan. 19, 2000, at 3-4. Williams also affirmed that he was aware of the Sentencing Guidelines, how the Guidelines operated, and how they would affect his case. Tr. at 6. The Assistant United States Attorney had also provided Richman with a Pimentel letter, which clearly set forth the Government's calculation of the applicable Sentencing Guidelines to the case, and informed Williams that he faced a Guidelines sentencing range of 12 to 18 months. See January 6, 2000 Letter from AUSA Eric Bruce to Yuanchang Lee, Esq.
During the plea allocution, Williams was asked whether anyone had threatened him or in any way forced him to plead guilty, and he responded, "No, ma'am." Tr. at 9. Moreover, the Court specifically asked Williams, "Has anyone made any prediction, prophecy or promise to you as to what your sentence will be?" Williams again replied, "No, ma'am." Tr. at 10. Finally, Williams was also advised by the Court that the maximum statutory penalties he faced were "30 years imprisonment, a million dollar fine, five years supervised released, [and a] $100 special assessment," and Williams indicated that he understood those to be the maximum penalties in this case. Tr. at 9.
Williams' statements during the plea allocution, along with thePimentel letter, indicate that he was indeed aware of the possible maximum sentence he faced and the possible recommendation under the Sentencing Guidelines. Therefore, Williams' claim that Lee misrepresented the penalties that he might face is without basis and is flatly contradicted by his own testimony at the plea allocution. Accordingly, the Court finds that it is evident that Williams has failed to meet the standard set forth in Strickland, and thus his ineffective assistance of counsel claim with regard to Lee's alleged misrepresentations regarding sentencing is hereby denied.
D. Deportation
"An attorney's failure to advise a client that deportation is a possible consequence of a guilty plea does not constitute ineffective assistance of counsel." Kyem v. United States, No. 00 Civ. 1643, 2000 WL 375237 (S.D.N.Y. April 11, 2000) (citing United States v. Banda, 1 F.3d 354, 355 (5th Cir. 1993)); see also United States v. Santelises, 509 F.2d 703 (2d Cir. 1975). Deportation is a collateral rather than a direct consequence of a guilty plea, and the accused need not be "informed prior to the acceptance of his guilty plea about every conceivable collateral effect the conviction" may have. Michel v. United States, 507 F.2d 461, 466 (2d Cir. 1974). However, an affirmative misrepresentation by counsel "in response to a specific inquiry from the accused may, . . ., under certain circumstances, constitute ineffective assistance of counsel." Campbell, 778 F.2d at 768 (citing Santelises, 509 F.2d at 704).
The Report found that even if Williams' allegations regarding Lee's conduct were true, the alleged failure to inform him of the possibility of deportation following his guilty plea would not fall below the range of competence demanded of an attorney in a criminal case. See Report at 15. Contrary to Williams' assertions, Lee was under no duty to inform him of every collateral consequence of his conviction. See Michel, 507 F.2d at 466. In his objections to the Report, Williams makes conclusory statements about Lee's alleged misrepresentations, yet fails to identify or substantiate any such misrepresentations made in response to a specific question regarding deportation. See Objections at 18-19. Absent an allegation that Lee made an affirmative misrepresentation in response to a specific inquiry from Williams regarding deportation as a collateral consequence of the guilty plea, Lee's actions fail to rise to the level of ineffective assistance of counsel. See Campbell, 778 F.2d at 768. Accordingly, the Court adopts the findings of the Magistrate's Report and denies Williams' petition on this issue.
III. CONCLUSION
For the foregoing reasons, Williams is not entitled to relief on any of his claims, and his motion to vacate his sentence is denied.
Accordingly, the existing stay of deportation is vacated.
On July 4, 2001, Williams, acting pro se, submitted an "Application for Release on Bail/Bond from INS Detention." The Court adopts the findings of the Magistrate's Report, and holds that Williams' application is hereby denied. See Report at 15, n. 7.
It is hereby
ORDERED that the Report and Recommendation issued by Magistrate Judge Gabriel W. Gorenstein on August 14, 2001, is accepted in accordance with 28 U.S.C. § 636 (b). Accordingly, it is further
ORDERED that in accordance with the Report and Recommendation of the Magistrate, the petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is denied. The petitioner may not appeal this order to the Court of Appeals unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253 (c) (1). A certificate will be granted "only if the applicant has made a showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2); see also United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). The Court finds that the petitioner will not be able to sustain his burden. Thus, the Court declines to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. See Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). Should the petitioner seek to appeal in forma pauperis, the Court certifies, pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).
SO ORDERED.