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denying section 2255 petitioner's Flores-Ortega claim without an evidentiary hearing based on trial attorney's letter to the Court
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01-CV-2642 (ILG).
November 5, 2001
MEMORANDUM AND ORDER
Petitioner John Benvenuto ("Benvenuto"), proceeding pro se, has filed a motion pursuant to 28 U.S.C. § 2255, seeking to vacate his sentence on the grounds of ineffective assistance of trial counsel and the Government's breach of his plea agreement. Specifically, Benvenuto argues that: (1) trial counsel was ineffective for (a) "thrusting him into accepting" a plea agreement based on a "bad faith" promise by the Government to seek concurrent sentences, and (b) failing to file a notice of appeal; and (2) the Government breached the plea agreement by not complying with its promise to request concurrent sentences. Benvenuto seeks an evidentiary hearing on his claims, and moves for appointment of counsel to represent him at the hearing. The Government argues that the ineffective assistance of counsel claims are meritless, and the Government's breach of the plea agreement claim is both procedurally barred and meritless. For the reasons that follow, Benvenuto's motion is denied.
Benvenuto also claims that the Court failed to advise him of his right to an appeal in violation of his constitutional rights. This claim is clearly baseless because Benvenuto waived his right to appeal any sentence within the estimated Guidelines range of 21 to 27 months. He received a sentence at the bottom of the range, and therefore the Court was under no obligation to advise him of his right to appeal. See United States v. Fisher, 232 F.3d 301, 303 (2d Cir. 2000) (court is not required to advise defendant of right to appeal after such right was waived in plea agreement, but may mention that appellate rights were waived in plea agreement); Fed.R.Crim.P. 32(c)(5). Moreover, at sentencing, Benvenuto stated that he understood that he had waived his right to an appeal and that he agreed to such waiver voluntarily. (See Plea Tr. at 10; Sentencing Tr. at 10.)
Benvenuto also requests that a hearing be conducted via video-teleconferencing because he is currently enrolled in the 500 Hour Residential Drug Treatment Program (CHOICE), and is not allowed to miss more than eight (8) days of group instruction. Because this Court declines to grant Benvenuto's request for an evidentiary hearing, as discussed below, his request for video-teleconferencing is also denied.
BACKGROUND
On May 24, 1999, Benvenuto pled guilty before this Court, pursuant to a written plea agreement, to interstate sale and receipt of stolen motor vehicles in violation of 18 U.S.C. § 2313. In his written plea agreement, Benvenuto agreed, inter alia, not to appeal or collaterally attack his sentence if it was within the range of 21 to 27 months. On March 13, 2000, this Court sentenced Benvenuto to 21 months' imprisonment, and three years of supervised release. Benvenuto did not file a direct appeal.
At the time of Benvenuto's guilty plea, Benvenuto was also facing charges for violating his supervised release under a sentence imposed by the United States District Court for the District of New Jersey. At his plea allocution, Benvenuto's attorney, James Froccaro, Esq. ("Froccaro"), advised the Court that, in connection with the written plea agreement, the Government had agreed orally to seek to transfer the violation of supervised release proceedings to the Eastern District of New York. In addition, Froccaro explained that, regardless of whether the violation was transferred, the Government had agreed to "recommend that any time he receives in this case run concurrent to the extent it can with the [violation of probation]." (Plea Tr. at 13.) The Assistant United States Attorney who was present at the plea allocution agreed with Froccaro's representation of the agreement.
In an effort to comply with the oral agreement, the Government first obtained the consent of both the New Jersey probation office and the New Jersey United States Attorney's Office to transfer the violation of supervised release proceedings from the District of New Jersey to the Eastern District of New York; the Government then sought an order of transfer from the District of New Jersey. However, the district judge presiding over Benvenuto's New Jersey proceedings, the Honorable Harold Ackerman, declined to transfer the case. Judge Ackerman also declined Froccaro's request to sentence Benvenuto on the violation of supervised release charge before this Court imposed sentence on the illegal receipt and sale of a motor vehicle offense.
On March 13, 2000, Benvenuto was sentenced by this Court. The Government did not request the imposition of concurrent sentences because there was no pending sentence imposed by the District of New Jersey to which this Court could order its sentence to run concurrently.
On April 26, 2000, Benvenuto pled guilty to the violation of supervised release charge in the District of New Jersey. The New Jersey United States Attorney's Office moved for a consecutive sentence. Judge Ackerman granted the request and sentenced Benvenuto to sixteen months' imprisonment to run consecutively with the term of imprisonment already imposed by this Court.
DISCUSSION
I. Benvenuto's Trial Counsel Did Not Provide Ineffective Assistance
Petitioner's ineffective assistance of counsel claims are properly raised for the first time in his Section 2255 motion. Billy-Eko v. United States, 8 F.3d 111, 114-16 (2d Cir. 1993). The only time such claims must first be raised on direct appeal is when a defendant is represented by different counsel on appeal and the claims are "based solely on the record developed at trial." Id. Neither of these two exceptions apply in this case, and therefore the Court will review the ineffective assistance of counsel claims on the merits.
A. Ineffective Assistance With Respect to the Plea Agreement
To prevail on a claim of ineffective assistance of counsel, a petitioner must show that his lawyer's performance "fell below an objective standard of reasonableness" and that the lawyer's deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 688, 692 (1984)); see Hill v. Lockhart, 474 U.S. 52, 59 (1985) (holding thatStrickland test applies to challenges of guilty pleas based on ineffective assistance of counsel claims). When a petitioner claims that his counsel rendered ineffective assistance with respect to a guilty plea, he must show "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59. Benvenuto cannot show that counsel's performance was objectively unreasonable, nor does he allege that but for counsel's alleged errors, he would not have pled guilty. Therefore, his claims must be denied.
Benvenuto's first complaint of ineffective assistance is that his trial lawyer did not record in the written plea agreement the Government's promise to seek concurrent sentences. Second, he argues that his lawyer should have known that the Government's promise was an act of "trickery" in order to secure a guilty plea because the Court did not have the legal authority to impose concurrent sentences under the Sentencing Guidelines. In essence, Benvenuto's claims boil down to a single complaint — the fact that he did not receive concurrent sentences for his crimes. However, the record clearly demonstrates that Benvenuto was never promised concurrent sentences by the Government, defense counsel or the Court. At the plea allocution, the Court asked Benvenuto whether anybody had made any prediction as to what his sentence would be, and Benvenuto responded in the negative. (See Plea Tr. at 11.) Moreover, in the presence of petitioner, defense counsel described the oral promise made by the Government which consisted of the Government seeking a transfer of the New Jersey proceeding to this Court and requesting concurrent sentences "to the extent it can." (See Plea Tr. at 13.) The United States Attorney assigned to the case agreed that the agreement was accurately stated by defense counsel, and Benvenuto made no objection to his attorney's description of the agreement. The agreement never guaranteed that Benvenuto would receive concurrent sentences, and, in fact, neither the Government nor defense counsel would have had the authority to make such a promise. Benvenuto even concedes in his traverse in further support of his Section 2255 motion that he knew there was a "small chance that he would receive consecutive sentences." (Traverse at 17.) Therefore, Benvenuto cannot now claim that he did not know that he could have received consecutive sentences.
More importantly, however, is the fact that the Government did not breach its oral promise, and therefore Benvenuto cannot show that he was constitutionally prejudiced by entering into the agreement and by pleading guilty. The Government promised that it would take certain steps to try and obtain concurrent sentences for Benvenuto, specifically, by seeking a transfer of the violation of supervised release charge from the District of New Jersey to this Court, and "recommend[ing] that any time he receives in this case run concurrent to the extent it can with the [violation of parole]." (Plea Tr. at 13.) Had the New Jersey court transferred the case, this Court would have had the legal authority to impose concurrent sentences for both crimes under United States v. Maria, 186 F.3d 65 (2d Cir. 1999) (holding that a sentencing court has discretion to impose concurrent sentences under U.S.S.G. § 5G1.3(c), note 6, for crimes of violating supervised release and the substantive offense). However, after seeking the consent of both the New Jersey probation office and the United States Attorney's Office, the New York United States Attorney's Office was still unable to obtain a transfer from the New Jersey court. Thus, although the Government in this case fully complied with its promise to seek a transfer to this Court, Judge Ackerman of the District of New Jersey nonetheless decided to retain jurisdiction, and refused to sentence Benvenuto before this Court imposed its sentence. As a result, when Benvenuto finally came before this Court for sentencing, there was no pending sentence to which this Court's sentence could run concurrently. For this reason, the Government did not request that concurrent sentences be imposed. There can be no doubt based on these facts that the Government fully complied with the plea agreement, and therefore Benvenuto cannot show that he was prejudiced by trial counsel's alleged errors with respect to that agreement.
Benvenuto also argues that the "Government" failed to honor its promise to recommend concurrent sentences because the New Jersey United States Attorney's Office sought consecutive terms in the District of New Jersey after this Court had imposed its sentence. However, when the express terms of a plea agreement set forth promises by "the Government," the "plea agreement binds only the office of the United States Attorney for the district in which the plea is entered unless it affirmatively appears that the agreement contemplates a broader restriction." United States v. Annabi, 771 F.2d 670, 672 (2d Cir. 1985) ( per curium)). No broader restriction was contemplated in this case, and therefore Benvenuto's claim fails.
Moreover, Froccaro's performance was anything but objectively unreasonable. Although the Government's promise was not written into the actual plea agreement, at the plea allocution, Froccaro specifically described the agreement to the Court, which the Government confirmed, thereby creating an enforceable agreement of record. (See Plea Tr. at 13.) In addition, Froccaro diligently and persistently tried to obtain concurrent sentences for his client. Froccaro initially negotiated an agreement with the United States Attorney's Office to seek transfer of the New Jersey proceeding to this Court. Once the New Jersey court refused the transfer, Froccaro asked Judge Ackerman to sentence Benvenuto prior to this Court's imposition of sentence so that this Court could impose its sentence to run concurrently with the pending New Jersey sentence. After that request was denied, Froccaro still tried to obtain concurrent sentences for his client by asking this Court at sentencing to consider imposing concurrent sentences under the "undischarged terms of imprisonment" provision of the Sentencing Guidelines, even though there was no sentence, or even conviction, in the New Jersey proceeding. See U.S.S.G. § 5G1.3(c). Froccaro did all that he could for his client within the confines of the law, and in no way rendered objectively unreasonable assistance.
B. Failure to File a Notice of Appeal
To prevail on a claim that his lawyer was ineffective because he failed to bring an appeal, petitioner must satisfy the two-prong Strickland standard set forth above. See supra at 4; Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000) (quoting Strickland, 466 U.S. at 688, 692)). Benvenuto cannot show that his lawyer's performance was deficient in any way, and thus his claim must be denied. For purposes of evaluating a lawyer's performance in this context, the Supreme Court has divided claims into two categories: cases in which the lawyer never consulted with petitioner about appeal, and cases in which the lawyer did consult with petitioner about appeal. Id. at 1035. In cases where the lawyer consulted with petitioner about an appeal, a lawyer "performs in a professionally unreasonable manner only by failing to follow defendant's express instructions with respect to an appeal." Id. (emphasis added).
Benvenuto states in his Section 2255 motion: "[o]nce it became apparent from the record that the government was not going to live up to its end of the plea agreement, the petitioner's defense counsel had a duty to file a `Notice of Appeal' based on the breach." (Section 2255 Mot. at 24.) Nowhere in his original motion does Benvenuto assert that he consulted with his attorney about an appeal or that he expressly instructed his attorney to file an appeal on his behalf. The Government's opposition to the motion describes an interview that was held between the United States Attorney's Office and Froccaro in response to Benvenuto's motion. At the interview, Froccaro apparently stated that Benvenuto had never at any time indicated an interest in appealing his conviction or sentence, nor had he requested that Froccaro file a Notice of Appeal. In addition, Froccaro stated that he did not consult with Benvenuto about an appeal because both he and his client knew that the right to an appeal had been waived. (See Gov't Br. in Opp'n at 4.) Despite Froccaro's statement, Benvenuto filed a traverse in which he contends for the first time that he had expressly instructed Froccaro to file a Notice of Appeal. (See Traverse at 19.)
In support of petitioner's contention, he directs the Court to "exhibit D." The Court, however, is at a loss as to what petitioner is referring to because there are no exhibits attached to petitioner's traverse. The only exhibits provided by petitioner to the Court are attached to his original motion. Exhibit D, attached to that motion, is a copy of this Court's judgment of conviction and sentence and has no bearing on petitioner's statement one way or the other.
Benvenuto's after-the-fact contention that he instructed his attorney to file a Notice of Appeal and Froccaro's assertion to the contrary, has led this Court to seriously doubt the truthfulness of Benvenuto's assertion. For this reason, the Court was inclined to seek additional information from Froccaro, as it is encouraged to do by Sparman v. Edwards, 154 F.3d 51 (2d Cir. 1998) (per curiam), regarding Benvenuto's new contention before ordering an evidentiary hearing on the matter. In response to the Court's inquiry, Froccaro again stated in a letter to the Court that he was never asked by Benvenuto to file a Notice of Appeal in this case. (See Letter Br., dated Oct. 18, 2001.) This Court will view Froccaro's letter as a letter brief within the meaning of Sparman.
In Sparman, the Second Circuit held that where claims of ineffectiveness are raised in a habeas petition, the "assertedly ineffective attorney [may be afforded] an opportunity to be heard and to present evidence, in the form of live testimony, affidavits, or briefs."Sparman, 154 F.3d at 52 (emphasis added). As this Court has found on more than one other occasion, Sparman strongly suggests that "live testimony is not invariably necessary where the record in the form of `affidavits or briefs' clearly and convincingly supports the inference that may be drawn without the assistance of such testimony." Nix v. United States, 111 F. Supp.2d 186, 189 (E.D.N.Y. 2000). Furthermore, by
encouraging district courts to extend to `assertedly ineffective' attorneys the opportunity to respond by way of `affidavits or briefs,' the Sparman Court was mindful that a `barebones assertion by a defendant . . . is insufficient to require a hearing or other action on his claim' in the absence of greater `particularity,' or `some substantiation . . . to give the claim sufficient credibility to warrant a further investment of judicial resources in determining the truth of the claim.'Id. (quoting Underwood v. Clark, 939 F.2d 473, 476 (7th Cir. 1991) (Posner, J.)); see also Lloyd v. United States, No. 00-CV-1513, 2000 WL 804632, at *4 (E.D.N.Y. May 18, 2000). The Second Circuit recently held that, while summary dismissal of an ineffective assistance of counsel claim raised in a Section 2255 would be inappropriate under Underwood, a district court may request additional information from trial counsel, and decide, based on those submissions, that the claim may be disposed of without a hearing. See Chang v. United States, 250 F.3d 79, 84-86 (2d Cir. 2000) (holding that defendant's "generic claim" of ineffective assistance of counsel based on counsel's alleged refusal to allow defendant to testify at trial was properly disposed of by district court without a hearing based on trial counsel's additional affidavit).
While the district court in Chang received a "detailed affidavit" from trial counsel, Froccaro's letter brief should be sufficient to permit denial of Benvenuto's claim without an evidentiary hearing becauseSparman permits "assertedly ineffective" attorneys to submit either "affidavits or briefs." Sparman, 154 F.3d at 52.
Froccaro has consistently maintained that he was never instructed by his client to file a Notice of Appeal. The fact that Benvenuto knowingly and voluntarily waived his right to appeal as part of the plea agreement further supports Froccaro's contention that the issue of appeal was never discussed. Additionally, not only has Benvenuto failed to support his "barebones assertion" that he instructed Froccaro to file a Notice of Appeal with any facts whatsoever regarding the context of the alleged instruction, the fact that Benvenuto never made the assertion in his original Section 2255 motion makes it even more likely that he raised it only as an afterthought just so that a hearing would be held.
There is no other indication that Benvenuto's attorney rendered ineffective assistance at any of the proceedings before this Court. To the contrary, although unable to obtain concurrent sentences for his client, Froccaro provided Benvenuto with excellent assistance during the plea negotiations and at sentencing. In addition, Froccaro was not obligated to file a Notice of Appeal, as argued by petitioner, based on the Government's alleged breach of the plea agreement because, as the Court has already determined, the Government fully complied with its promise. Thus, as previously stated by this Court: "[i]n the absence of any other evidence to suggest that petitioner might actually have suffered a deprivation of his constitutional right to effective representation by trial counsel, [a petitioner's] assertion [alone] is simply not sufficient to justify the investment of judicial resources that a hearing would require." Nix, 111 F. Supp. 2 d at 189. This reasoning applies with equal force to the present case, and the Court will therefore deny Benvenuto's claim without a hearing. The motion for appointment of counsel is also denied.
II. The Government's Breach of the Plea Agreement Claim is Procedurally Barred
"A party who fails to raise an issue on direct appeal and subsequently endeavors to litigate the issue via a [Section] 2255 [motion] must `show that there was cause for failing to raise the issue, and prejudice resulting therefrom.'" United States v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995) (quoting Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993)). Here, Benvenuto claims that his trial counsel's failure to file a direct appeal constitutes cause for his failure to bring the claim on direct appeal. However, as discussed above, Benvenuto's ineffective assistance claim lacks merit, and therefore Benvenuto cannot show valid cause for failing to bring his claim on direct appeal. Moreover, because the Government did not breach the plea agreement, Benvenuto cannot establish prejudice. Consequently, Benvenuto's claim is procedurally barred from federal habeas review.
CONCLUSION
For the foregoing reasons, the motion pursuant to Section 2255 is denied.
SO ORDERED.