Opinion
No. 01 Cr. 782 (GEL).
January 24, 2005
OPINION AND ORDER
Defendant John Doe was sentenced principally to 151 months of imprisonment for distribution of cocaine base. He now seeks appointment of counsel to pursue a 28 U.S.C. § 2255 motion to vacate his sentence. Doe neither contests his guilt, nor seeks to overturn his guilty plea and resulting conviction. Rather, Doe seeks to challenge only his sentence, asserting that it was the product of ineffective assistance of counsel. Specifically, Doe contends that his retained lawyer acted unprofessionally in failing to move for a downward departure on the basis of Doe's alleged cooperation with law enforcement authorities, which, Doe claims, the Government in bad faith failed to reward with a downward departure motion.
Defendant seeks to proceed under a pseudonym because his application alludes to efforts on his part to cooperate with the authorities, and the Court accedes to that request to minimize any risk to his safety. However, the Court notes that the subject of defendant's alleged cooperation was discussed on the record in open court during the underlying proceeding. Moreover, the defendant should be on notice that if he moves under § 2255, it will not likely be appropriate, or even possible, to operate in the entirely secret manner that defendant suggests. While details of defendant's purported cooperation activities need not be a part of the public record, the Court is accountable to the public for its decisions, and absent a far more compelling record than has been presented so far, it is inconceivable that the Court could conduct a hearing, make findings regarding the alleged ineffectiveness of assistance provided to defendant by a member of the bar, and potentially grant relief in the form of a reduction of a sentence recommended by the sentencing guidelines and entry of a new judgment of conviction, without any of these proceedings taking place in public and under defendant's true name.
Doe's original retained counsel initially presented this ineffectiveness argument on direct appeal. The Court of Appeals relieved that attorney, appointed new counsel to pursue the argument, and ultimately dismissed the appeal, holding that defendant's proper remedy was not an appeal, but a § 2255 motion to vacate his conviction. United States v. Doe, 365 F.3d 150 (2d Cir. 2004). The Court specifically noted that counsel could be appointed to pursue such an application "if the district court . . . find[s] [appointment of counsel] to be required by 'the interests of justice.'" Id. at 155, quoting 18 U.S.C. § 3006A(a)(2)(B).
Through his appointed appellate counsel, Doe now seeks appointment of counsel to represent him in connection with a potential § 2255 petition. In his application, counsel incorporates by reference the briefs submitted in connection with Doe's appeal as embodying the grounds for Doe's proposed petition, and notes that Doe himself "does not speak or write English and is uneducated and indigent." The application will be denied.
DISCUSSION
A prisoner has no constitutional right to the assistance of counsel in connection with petitions for post-conviction relief such as habeas corpus or § 2255 relief. Wright v. West, 505 U.S. 277, 293 (1992);Pennsylvania v. Finley, 481 U.S. 551, 555-59 (1987); Heath v. U.S. Parole Comm'n, 788 F.2d 85, 88 (2d Cir. 1986). However, the Criminal Justice Act authorizes a court to appoint counsel upon determining that a person seeking relief under § 2255 is "financially eligible" and that "the interests of justice . . . require" appointment of counsel. 18 U.S.C. § 3006A(a)(2). In assessing whether to appoint counsel for any indigent civil litigant pursuant to § 3006A(a)(2)(B), the courts in this circuit consider factors such as the petitioner's likelihood of success on the merits, the complexity of the legal issues raised by the petition, and the petitioner's ability to investigate and present the case. Toron v. United States, 281 F. Supp. 2d 591, 593 (E.D.N.Y. 2003).
As the Court of Appeals appointed counsel for Doe on his appeal, and appellate counsel has represented that Doe is "indigent," the Court will assume for purposes of this application that Doe is "financially eligible" for appointed counsel.
The Court accepts for purposes of this application that Doe's lack of education and facility with the English language would make it difficult for him to investigate and present issues relating to the complex sentencing scheme created by the federal guidelines, and by the body of case law relating to guilty pleas, cooperation agreements, and substantial assistance departures. These factors accordingly favor appointment of counsel. But the Second Circuit has emphasized that in deciding to appoint counsel in a discretionary context such as an application for a habeas petition, counsel should only be appointed where the applicant has made "a threshold showing of some likelihood of merit."Duran v. Reno, 193 F.3d 82, 84 (2d Cir.) (internal quotation marks and citation omitted), vacated as moot, 197 F.3d 63 (2d Cir. 1999). In this case, petitioner cannot make such a showing, because "the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. The asserted grounds for the petition, as presented to the Court of Appeals, are meritless, and any motion to vacate filed in reliance on those grounds would be denied.
In some cases, the very difficulties that prevent a pro se prisoner from adequately investigating or presenting his claims will make it difficult for a court to determine whether the failure to make such a showing is the result of a genuine lack of merit or is simply an artifact of the petitioner's incapacity. In this case, however, the application for appointment of counsel is made not by the indigent prisoner on his own behalf, but by an attorney who was appointed by the Court of Appeals to present the very argument that would be the basis for the projected petition. That attorney incorporates by reference into the application for appointment of counsel the appellate briefs that present defendant's argument, presumably as it would be presented by counsel if he were appointed to bring the § 2255 motion — as he likely would be, if the appointment of counsel were appropriate, since it would clearly be efficient to appoint a lawyer who is already familiar with the case and who has already researched, developed, and presented the issues in question. Under these unusual circumstances, therefore, the Court is comfortable in its ability to assess the likely merits of Doe's projected motion.
I. Procedural Background
Doe pled guilty before this Court on January 28, 2002. The plea was expressly entered without an agreement with the Government. (1/28/02 Tr. 2-3.) Indeed, during his allocution, Doe expressly advised the Court, under oath, that no one, including the Government, "promised [him] or offered [him] anything in order to get [him] to plead guilty." (Id. 17.) Doe does not contend otherwise today; although he argues that he was induced to make certain statements to the arresting officers based on certain representations, he does not contend that his plea itself was predicated on any promise of leniency from the Government.
At the end of the January 28 plea proceeding, Doe's attorney noted that he and his client were "in the process of determining whether or not to make certain [departure] motion or motions," which might entail a hearing. However, counsel further advised that he was "not certain whether we're going with that yet," but was researching the matter. (Id. 21-22.) Sentencing was scheduled for April 29, 2002.
On April 17, 2002, counsel wrote to the Court requesting an adjournment of the sentence. (Letter of Mark I. Cohen to the Court, dated April 17, 2002.) The adjournment was sought because "[i]t currently appears that the defendant will present [the Court] with a significant and detailed memorandum in support of sentencing, as well as a motion for a downward departure pursuant to U.S.S.G. § 5K2.0." (Id.) The Court adjourned the sentence to June 10, 2002.
On May 24, 2002, counsel sought a further adjournment, once again indicating that the defense needed more time to decide whether to pursue a downward departure. Counsel's letter stated: "The defendant is now considering . . . a motion for a downward departure pursuant to U.S.S.G. § 5K2.0. If [Doe] decides to proceed with his motion, it will likely result in a confrontational sentencing proceeding. He is now weighing the risks and benefits of such a sentencing hearing. . . ." (Letter of Mark I. Cohen to the Court, dated May 24, 2002.) The Court adjourned the sentence to June 27, 2002.
On June 20, 2002, counsel again wrote the Court, "to request that the [June 27] court appearance . . . be changed from the date for sentencing to a status conference." (Letter of Mark I. Cohen to the Court, dated June 20, 2002, at 1.) In explaining this request, counsel explained:
I believe that my client would benefit from a public explanation of [the Government's] intentions if [Doe] decides to move for a downward departure. . . . [Doe] is considering moving for a downward departure[, w]hich, if entertained by [the Court], could result in an acrimonious proceeding with a significant upside or downside for [Doe].
(Id.) The Court again granted counsel's request.
At the resulting conference, the reason for the defense's hesitation over filing a motion became clear. In the presence of his client, counsel advised the Court that Doe was considering whether to move either (1) to compel the Government to move for a departure pursuant to U.S.S.G. § 5K1.1, on the ground that Doe had provided government agents with substantial assistance pursuant to an oral cooperation agreement with the officers who had arrested him, and that the Government was withholding such a motion in bad faith; or (2) for a downward departure under § 5K2.0, on the basis of cooperation with state authorities, see United States v. Kaye, 140 F.3d 86 (2d Cir. 1998), based on the same activities.
Counsel advised the Court, again in Doe's presence, of the potential risks of pursuing such a motion. Doe's claims to have provided useful information had been presented to the Government, and were significantly contested by the prosecutor, who evidently believed that whatever the value of any information Doe may have at one point provided, Doe had not been candid in proffer sessions conducted by the Government and therefore was not entitled to a downward departure. (Aff. of AUSA Bret R. Williams in Support of Mot. to Dismiss Appeal, dated November 14, 2002 ("Williams Aff."), at ¶ 7; 6/27/02 Tr. 3-5.) Clearly, the Government and Doe had very different views of Doe's cooperation, which would have to be resolved at a hearing. But if the Government persuaded the Court that its view was correct, there were significant downside risks for the defendant. As counsel pointed out, without contradiction from the Government:
I do believe that the government would seek, possibly, no acceptance points. And I think that the government would also seek, worse, if they felt that he was lying on the witness stand, perhaps a perjury indictment against him. . . .
(6/27/02 Tr. 8.) The Court noted that counsel was correct that if the defendant were found to have obstructed justice, that would lead to a two-point enhancement under the sentencing guidelines for obstruction of justice, U.S.S.G. § 3C1.1, as well as potentially to the loss of a three-level credit for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. (Id. 8-9.)
These were significant risks for Doe. The Probation Department had recommended a finding of an offense level of 33 (allowing a three-level credit for acceptance of responsibility based on Doe's plea of guilty), and a criminal history category of III. (Id. 9.) Under the Sentencing Guidelines, this would result in a recommended sentence of 168-210 months in prison. If Doe succeeded in persuading the Court either that the Government acted in bad faith or that he was entitled to a departure for assisting state authorities, the Court could potentially grant him a reduction in sentence of an unpredictable amount, depending on the Court's view of the value of the cooperation and the extent of departure that would be appropriate for such assistance in light of defendant's offense conduct. On the other hand, if the Government prevailed by persuading the Court that Doe had not been candid with its agents and was continuing in a deceitful effort to commit perjury and obstruct justice, the combination of the obstruction enhancement and the disallowance of the acceptance of responsibility credit could result in a guideline sentence of 292-365 months — more than a ten-year increase in the minimum guideline sentence.
Quite reasonably, counsel expressed some reluctance to take that risk, which could result in a sentence under which "a good part of [Doe's remaining] lifetime would be spent in jail." (Id. 9.) Counsel therefore sought additional time for his client to consider his options, promising that he would "sit down with [Doe], and make a final determination as to whether he wishes me to serve the motion, which, frankly, your Honor, is all but drafted — I mean, we have drafts of it ready to go — or whether we wish to just hold off on that and proceed to sentencing in another fashion." (Id. 13.) The Court agreed to grant yet another adjournment, advising counsel:
I do appreciate the fact . . . that while it is a hard choice your client may have to make, that, as usual, it seems to me that you've done a very thorough and commendable job in thinking through the implications. You'll give him such advice as you think is appropriate with respect to what you think he should do. Then it will be up to him to make the decision whether to . . . . go forward with one strategy or the other, understanding what the potential risks are for good or ill.
(Id. 14.)
On July 23, 2003, Doe's attorney informed the Court that Doe "has decided not to proceed with a motion for a downward departure based on prosecutorial bad faith." (Letter of Mark I. Cohen to the Court, dated July 23, 2002.) Instead, Doe moved for a "horizontal" departure, arguing that his calculated criminal history category of III significantly overstated the seriousness of his record and likelihood of recidivism, and sought the minimum sentence permitted by whatever guideline range the Court found applicable, citing among other things his activities on behalf of law enforcement. (Letter of Mark I. Cohen to the Court, dated August 6, 2002.)
This strategy proved successful. On August 13, 2002, the Court granted a downward departure pursuant to U.S.S.G. § 4A1.3, to Criminal History Category II, and sentenced Doe to the minimum sentence of imprisonment permitted for his offense level and that criminal history category — 151 months. As noted above, Doe appealed, arguing that his attorney was ineffective in connection with his sentence by failing to move for a downward departure based on his alleged cooperation, the Court of Appeals dismissed his appeal, and Doe now seeks appointment of counsel to pursue a § 2255 petition based on his ineffectiveness claim.
II. Legal Standards for Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, Doe must demonstrate that his trial attorney's representation "fell below an objective standard of reasonableness" under "prevailing professional norms," and that the attorney's error prejudiced him, in that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 693-94 (1984). This burden is properly heavy in view of the "constitutionally protected independence of counsel and . . . the wide latitude counsel must have in making tactical decisions." Id. at 689.
III. Application to This Case
In Doe's direct appeal, the Government argued that finding ineffective assistance would require evidence on various subjects, including whether promises were made to him at the time of his arrest, whether the Government acted in bad faith in not moving for a downward departure on his behalf, and/or whether Doe cooperated with state officers acting independently or only with members of a federal/state task force. (Govt. App. Br. 19-20.) But whether or not the record would need to be further developed to decide the case in favor of Doe, no factual hearing is required to resolve the case against him. Doe does not claim that he had a constitutional right to a downward departure that was denied to him. Nor can he make such a claim, which would be foreclosed, among other things, by his procedural default in failing to assert it either at the time of his sentencing or on appeal. See De Jesus v. United States, 161 F.3d 99, 102 (2d Cir. 1998); Dominguez v. United States, No. 04 Civ. 293, 2004 WL 1574717, at *2-*3 (S.D.N.Y. July 14, 2004). Rather, his claim is that his lawyer acted unreasonably and unprofessionally in failing to present an issue to the Court. While the prejudice prong would require inquiry into the potential success of a departure motion, which in turn would require development of the issues highlighted by the Government in its appellate brief, the issue of counsel's professionalism can be resolved on the record before the Court.
Doe's application for appointment of counsel is explicit that the argument he hopes to advance in his projected petition is the same ineffective assistance claim he made on direct appeal. (Letter of Lawrence Mark Stern to the Court, dated December 29, 2004, at 1.)
Typically, when a prisoner argues that his lawyer failed to make a motion or adopt a particular legal strategy, a hearing is necessary in order to determine why the attorney failed to take the step the petitioner claims was appropriate. Cox v. Donnelly, 387 F.3d 193, 201 (2d Cir. 2004); Chang v. United States, 250 F.3d 79, 84-86 (2d Cir. 2001). The record of a case ordinarily reflects only what a lawyer did, and thus does not reveal the strategic calculations of counsel and client, or the reasons (if any other than neglect or ignorance of counsel) for failing to make omitted motions or adopt alternative strategies to those actually pursued.
The statute itself provides that "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. § 2255.
But this case does not fit that pattern. Here, the record indisputably demonstrates that counsel was well aware of the option of moving for a departure based on Doe's alleged cooperation, whether based on § 5K2.0 or on the Government's bad faith. Counsel repeatedly discussed that option in open court, noting several times that he and Doe were considering whether to file such a motion, and even represented that the motion had been researched and prepared. (Letters of Mark I. Cohen to the Court, dated May 24, June 20, and July 23, 2002; 6/27/02 Tr. 6-14.) Counsel took the unusual step of seeking a conference with the Court in order to put on the record, in his client's presence, some of the tactical concerns that might lead to a decision not to file such a motion. At no point did Doe dispute his attorney's representations that the motion had been prepared, and that counsel had discussed the matter with him and was continuing to consult him about whether to file the motion. Counsel represented to the Court in writing after that conference that Doe had "decided not to proceed" with the proposed departure motion, but instead to pursue an alternative strategy. Once again, at Doe's sentencing hearing, Doe failed to object to counsel's presentation of that strategy, or to indicate that he was surprised by counsel's approach or disagreed with it in any way. The Court is thus fully able to evaluate whether counsel's strategic decision, made with the evident concurrence of Doe himself, was a reasonable professional decision.
Doe's application states that he does not understand English. (Letter of Lawrence Mark Stern to the Court, dated December 29, 2004, at 1.) However, in all court proceedings, Doe of course had the aid of qualified interpreters. Moreover, the Court is aware, from this and other cases, that Doe's trial counsel speaks Spanish, and on numerous occasions the Court observed Doe and his lawyer communicating, with apparent fluency, in Spanish.
It is also noteworthy that, although Doe was represented on appeal by new appointed counsel, who makes this application on his behalf, he has submitted no affidavit, or even represented in any submission to this Court or to the Second Circuit that he did not understand this decision, was not fully advised and consulted by counsel in making it, or that he did not fully concur in the choice ultimately made.
Doe's strategic choice was manifestly reasonable. On the one hand, the alternative that Doe now suggests was the only reasonable course offered uncertain prospects of success, and considerable risk. The proceedings in this Court made clear, and the Government has since asserted in its appellate brief and in an affidavit submitted in support of its motion to dismiss the appeal, that it sharply disputed the alleged facts on which Doe's proposed motion would have relied. (Govt. App. Br. 4-6; Williams Aff., at ¶ 7.) The Government maintained that it did not seek a downward departure because Doe had not been candid with the Government in proffer sessions, and that a motion pursuant to § 5K2.0 and United States v. Kaye would fail because the officers with whom Doe allegedly cooperated were part of a federal task force — a situation in which § 5K1.1's requirement of a prosecution motion would apply. 140 F.3d 87-89. Even if the defendant had prevailed on these issues, a departure would not have followed as a matter of law, nor would the extent of any departure be predictable. Rather, whether and how much to depart would be matters solely within the Court's discretion. Doe's present hindsight strategy, then, offered no guarantee of a successful outcome.
For purposes of this motion, there is no need for the Court to make factual findings on these issues. What matters is not whether the Government necessarily would have prevailed in establishing the accuracy of its view of the facts. It is sufficient that the facts were seriously contested, and that the Government might well have prevailed in a hearing.
Moreover, contrary to Doe's present claim that "[t]here was nothing to lose by" such a motion (Letter of Lawrence Mark Stern to the Court, dated December 29, 2004, at 1), any competent defense attorney would have been concerned, as Doe's counsel expressly was (Letters of Mark I. Cohen to the Court, dated May 24, May 29, and June 20, 2002), that a contested evidentiary sentencing hearing would have presented a substantial risk for Doe. Indeed, it is a commonplace of defense bar criticisms of the Sentencing Guidelines that the potential for obstruction of justice enhancements deters defendants from making arguably meritorious motions.See, e.g., Margareth Etienne, The Declining Utility of the Right to Counsel in Federal Criminal Courts: An Empirical Study on the Diminished Role of Defense Attorney Advocacy Under the Sentencing Guidelines, 92 Cal. L.Rev. 425, 443-44, 457-62 (2004). The threat in this case was very real. If Doe contested the Government's failure to make a § 5K1.1 motion, the good faith and candor of his own presentations to prosecutors and agents would be at issue. Doe would presumably have to affirm, under oath, the accuracy of whatever he had told the Government that government agents and prosecutors had found less than truthful. If the Court concurred with the Government's assessment of Doe's credibility, an obstruction finding would almost certainly follow, occasioning at a minimum a two-level sentence enhancement, and quite possibly a refusal of credit for acceptance of responsibility. Such findings, in addition, would seriously detract from the possibility of successfully pursuing a "horizontal" departure. The argument that Doe's criminal record overstated his likelihood of committing further crimes would obviously lie ill in the mouth of a defendant who, by hypothesis, would have been found by the Court to be committing additional crimes in the very courtroom in which the argument was being made.
This Court has presided over at least two cases in which defendants contested issues relating to their candor in alleged cooperation scenarios — neither ended favorably for defendant. The Court has personal experience as well of other cases in which defendants either expressly forbore making sentencing arguments that would require disputed evidentiary hearings for fear of the risk of adverse factual findings, or made such motions to their ultimate disadvantage. Far from being fanciful, the risks cited by defense counsel as occasioning his hesitation to pursue a cooperation departure motion are, in this Court's experience, a recurring and serious problem that is considered as a matter of course by those defense counsel most experienced and skilled in federal sentencing matters.
Counsel's actual strategy, on the other hand, produced tangible benefits for his client. The Probation Department had calculated a guideline range of 168-210 months in prison. By arguing for a horizontal departure, and putting Doe's alleged willingness to cooperate before the Court in a manner that went uncontested by the Government, as a matter going to where in the range Doe should be sentenced, counsel succeeded in winning a departure, and in securing a sentence at the low end of the resulting range, thus achieving a sentence of "only" 151 months — between 17 and 59 months less than the sentence he could have received, and enormously less than would have resulted had the "cooperation" strategy gone awry. The strategy actually followed by Doe, moreover, was virtually free of any risk that it would land him in prison for an increased sentence.
The sentence Doe received is indeed severe; more than 12 years in prison for selling approximately $17,600 worth of illegal drugs. Now that the dust has settled and the reality of this draconian sentence has set in, it is hardly surprising that Doe has had second thoughts about having pursued a conservative strategy, rather than a bolder one that held out a chance for a better outcome, or that he now feels that the benefits achieved were small and the terrible risks of the more aggressive strategy were worth taking. But the sentence Doe now endures is the result of the extreme penalties that Congress and the Sentencing Commission have attached to the distribution of crack cocaine, not to any lack of competence on the part of his attorney. Doe and his attorney, as the Court noted during the drawn-out sentencing proceedings, faced a "hard choice." (6/27/02 Tr. 14.) They elected a sensible, conservative strategy, deciding to minimize risk rather than to gamble on a high-risk strategy that offered uncertain rewards even had it succeeded. Far from being incompetent, trial counsel did "a very thorough and commendable job in thinking through the implications," as the Court recognized at the time (id.), and with his client's apparent agreement made a tactical decision that was reasonable and appropriate. It is not the function of habeas corpus for the Court to second-guess that decision. See, e.g., Jones v. Hollins, 884 F.Supp. 758, 765-66 (W.D.N.Y. 1995) There is no basis now for giving Doe, on the pretext of ineffective assistance, an opportunity to replay his sentencing using an alternate strategy.
CONCLUSION
In form, Doe's application seeks only the appointment of counsel on behalf of an indigent, untutored prisoner who presumably would need counsel in order to effectively address the issues set forth above. The Court is sensible of the potential appearance that denial of counsel may effectively preclude Doe even from filing a § 2255 motion. But this appearance would be misleading. Doe has already had the benefit of appointed counsel on appeal, who has vigorously presented the argument that would be the basis of his post-conviction motion. That argument, as is apparent from the above discussion, is without merit, and its meritlessness can be determined from the record of the case itself, without the need for additional factual exploration. Under these circumstances, the Court is entirely comfortable that the merits of the proposed petition have been adequately presented through counsel, and found wanting. The "interests of justice" do not "require" further expenditure of public funds for the appointment of counsel to pursue a meritless argument still further. The application is accordingly denied.
SO ORDERED.