Opinion
19 CV 5420 17 CR 616 (GRB)
2022-01-13
Danielle HOUPE, Movant, v. UNITED STATES, Respondent.
Artie McConnell, Government Attorney, US Attorney's Office, Brooklyn, NY, Christopher Charles Caffarone, Government Attorney, United States Attorneys Office, Central Islip, NY, for Respondent. Neil Bruce Checkman, Law Office of Neil Checkman, New York, NY, for Movant.
Artie McConnell, Government Attorney, US Attorney's Office, Brooklyn, NY, Christopher Charles Caffarone, Government Attorney, United States Attorneys Office, Central Islip, NY, for Respondent.
Neil Bruce Checkman, Law Office of Neil Checkman, New York, NY, for Movant.
MEMORANDUM AND ORDER
GARY R. BROWN, United States District Judge:
Petitioner Danielle Houpe files the instant motion pursuant to 28 U.S.C. § 2255, seeking to vacate her sentence and for resentencing. This matter, originally before the Honorable Sandra J. Feuerstein, was reassigned to the undersigned following Judge Feuerstein's tragic death.
Relevant Facts and Procedural History
As relevant herein, on November 7, 2017, a grand jury sitting in this district indicted Houpe for Conspiracy to Distribute and Possess with Intent to Distribute Cocaine Base involving more than 28 grams or more of cocaine base, and a related firearms offense under 924(c)(1)(A)(i). Docket Entry ("DE") 1. Neil Checkman, Esq., an experienced CJA counsel, was appointed to represent Houpe. The record reveals that Mr. Checkman, among other things, hired an investigator to assist in her defense. DE 16. Pursuant to a negotiated plea agreement, on March 29, 2018, Houpe entered a guilty plea to a lesser included offense as to Count 1, in return for, inter alia , the Government's commitment to dismiss the 924(c) count, which provided for a five-year mandatory minimum consecutive to the sentence imposed on the drug count. DE 17 ("Tr."); see also DE 26.
Unless otherwise noted, the Docket Entries refer to the Docket Report in 17 CR 616.
As part of her plea allocution, defendant completed and signed a plea form, which mirrored the questions of the allocution. Tr. at 4. Defense counsel confirmed that he reviewed the plea agreement with the defendant, and the defendant indicated that she signed it. Tr. at 10. Judge Shields carefully reviewed the relevant matters with the defendant, and it was noted that, in the plea agreement, she stipulated to the Guidelines calculation. Tr. at 10-11. In the plea form, signed by defendant (who acknowledges having four years of college education), she stipulated to the Guidelines calculation set forth in the plea agreement, acknowledges the appellate waiver and indicates that she had discussed the Sentencing Guidelines with her attorney. DE 49. Similarly, during the plea colloquy, Houpe stated under oath that she had discussed the sentencing guidelines with her attorney and evidenced an understanding of them. Tr. at 13. Though given the opportunity, she had no questions for the Court. Tr. at 14. Moreover, during the plea proceeding, the prosecutor emphasized that the defendant would waive any appeal in the event that she were sentenced to 108 months or less. Tr. at 10.
Prior to sentencing, Mr. Checkman filed several substantial sentencing submissions with the Court and the Probation Department. DE 21, 22, 24, 35-4. On November 6, 2018, Judge Feuerstein held a sentencing proceeding regarding the defendant. DE 35-3. At that proceeding, Mr. Checkman zealously advocated on behalf of his client; she, in turn, thanked him for "the fine job he's done representing me." DE 35-3 at 12. Nevertheless, Judge Feuerstein, finding that defendant, "an armed member of the Bloods," had "profited handsomely" from more than two years of drug sales, sentenced defendant to 108 months, the top of the Guidelines range. DE-3. at 16. This sentence comported with the recommendation of the Probation Department and the Department of Justice.
As part of the Government's response to the instant motion, Mr. Checkman executed an affidavit, averring that she had, in fact, been advised of the appellate waiver in the plea agreement (which waived appeal for a sentence of 108 months or less), that defendant never requested he file a notice of appeal, and that had she done so, he would have filed such a notice notwithstanding the provisions of the plea agreement. DE 35-4. On September 23, 2019, Houpe, acting pro se , filed the instant motion to vacate her sentence pursuant to 28 U.S.C. § 2255. DE 31. The petition is predicated solely on the grounds of alleged ineffective assistance of counsel. Specifically, she claims that Mr. Checkman failed to address "discrepancies" in the Indictment, Plea Agreement and the Pre-Sentence Report (PSR), most notably relating to a purported error in the Sentencing Guidelines Calculation. She claims, somewhat in contention with her statements at the sentencing hearing, that he failed to review, discuss and challenge the PSR, and failed to file a notice of appeal. DE 31 at 6.
Perhaps most remarkably, even after Houpe filed allegations of ineffective assistance against Mr. Checkman, following the advent of the pandemic, Mr. Checkman dutifully sought and received court approval to pursue an emergency application for compassionate release for her based on risks of COVID infection. DE 39, 40. And while that relief was ultimately denied, Mr. Checkman advocated forcefully for his client. DE 46, 48. During that proceeding, though, Judge Feuerstein reconfirmed the justification for the sentence. DE 48 at 11 (Court reaffirming that defendant was sentenced "at the top of the guidelines because she was a Bloods member who dealt significant quantities of crack cocaine and used firearms during the process.").
Discussion
Standard of Review
Title 28, U.S.C., § 2255 allows federal prisoners to challenge the constitutionality of their sentences. This section provides, in pertinent part, that:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a). To qualify for relief under § 2255, the 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 complete miscarriage of justice.’ " Graziano v. United States , 83 F.3d 587, 590 (2d Cir. 1996) (quoting United States v. Bokun , 73 F.3d 8, 12 (2d Cir. 1995) ). A petitioner claiming ineffective assistance of counsel "must show that (1) counsel's performance was objectively deficient, and (2) petitioner was actually prejudiced as a result." Harrington v. United States , 689 F.3d 124, 129 (2d Cir. 2012) (citing Strickland v. Washington , 466 U.S. 668, 687-88, 692-93, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). The burden of showing ineffective assistance is "a heavy one because, at the first step of analysis, [a court must] ‘indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]’ " Id.
"The determinative question at this step is not whether counsel ‘deviated from best practices or most common custom,’ but whether his ‘representation amounted to incompetence under prevailing professional norms.’ " Id. at 129-30 (quoting Harrington v. Richter , 562 U.S. 86, 105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ). The standard for evaluating the adequacy of counsel's representation is "a most deferential one," Harrington , 562 U.S. at 105, 131 S.Ct. 770, because "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." United States v. Thomas , 608 F. App'x. 36, 38 (2d Cir. 2015) (quoting Strickland , 466 U.S. at 690, 104 S.Ct. 2052 ).
Should defendant clear this first hurdle by demonstrating ineffective performance by counsel, prevailing on a § 2255 petition then requires demonstrating actual prejudice from identified errors. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland , 466 U.S. at 694, 104 S.Ct. 2052. "[T]he question to be asked in assessing the prejudice from counsel's errors ... is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Henry v. Poole , 409 F.3d 48, 63-64 (2d Cir. 2005) (quoting Strickland , 466 U.S. at 695, 104 S.Ct. 2052 ). "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Lindstadt v. Keane , 239 F.3d 191, 204 (2d Cir. 2001) (quoting Strickland , 466 U.S. at 691, 104 S.Ct. 2052 ). Where, as here, defendant challenges sentencing, the prejudice prong mandates that petitioner show either that counsel's failings "suffice to undermine [ ] confidence in the outcome of [the] original sentencing," Gonzalez v. United States, 722 F.3d 118, 136 (2d Cir. 2013), or "would have changed ... the sentence imposed," Strickland , 466 U.S. at 700, 104 S.Ct. 2052.
Here, by any measure, Mr. Checkman's representation proved effective. Defendant got the benefit of a plea bargain which included the dismissal of the 924(c) count and a concomitant five-year consecutive period of incarceration. Additionally, the Government agreed to allow her to plead to a lesser-included offense as to Count One, eliminating a five-year mandatory minimum. Thus, defendant cannot clear the first hurdle, as Mr. Checkman's advocacy did not fall below an objective standard of reasonableness.
Even assuming, arguendo , that defendant could establish a defect in her representation, she similarly fails to identify prejudice. Her arguments regarding the Guidelines calculation simply miss the mark – the Sentencing Guidelines (as compared to statutory exposure) may be enhanced based on increased levels of drugs and gun possession even where, as here, the related charges are dismissed as the result of a plea bargain. See, e.g. , United States v. Quintero , 937 F.2d 95, 97 (2d Cir. 1991) ("we have upheld the authority of sentencing judges to apply the relevant conduct guideline to activity charged in dismissed counts."). While defendant is plainly dissatisfied with the top of the Guidelines range sentence she received, this decision had little to do with Mr. Checkman's advocacy, but was plainly driven by defendant's troubling criminal history and the serious offense conduct. Moreover, her claims regarding a notice of appeal – which the Court does not credit – are ultimately spurious, as the valid and enforceable waiver of appeal contained in the plea agreement would have forestalled any such effort.
For avoidance of doubt, had Mr. Checkman advised her that the appellate waiver prevented the filing of an appeal, such advice would have been accurate, even if disappointing.
The defendant would have this Court declare that Mr. Checkman's performance in this matter was substandard. In this Court's view, his service in her defense was exemplary. Thus, the petition is denied in its entirety.
This Court does not stand alone in holding Mr. Checkman's advocacy in high regard. See, e.g. , Jones v. United States , No. 10 CR 197-16, 2014 WL 657508, at *6 (S.D.N.Y. Feb. 19, 2014) ("The Court finds Mr. Checkman - an experienced defense lawyer and a member of this court's Criminal Justice Act panel to be completely credible" on the question of the filing of a waived notice of appeal); Bishop v. United States , No. 04 CV. 3633 (CSH), 2004 WL 2516715, at *6 (S.D.N.Y. Nov. 8, 2004) ("I understood Checkman's strategy at the time of trial—and in fact told him so—and I understand it now. Counsel's tactic did not fall below objective standards of reasonableness.").
Conclusion
Because the Court has considered all of Petitioner's arguments and found them meritless, the petition is DENIED. A certificate of appealability shall not issue because Petitioner has not made a substantial showing that she was denied any constitutional rights. See 28 U.S.C. § 2253(c)(2). The Court certifies that any appeal of this Memorandum and Order as to those issues would not be taken in good faith, and thus in forma pauperis status is denied for the purposes of any appeal on those grounds. Coppedge v. United States , 369 U.S. 438, 444–45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).