MEMORANDUM ORDER

I. LEO GLASSER, United States District Judge

On March 15, 2000, George Lloyd moved this Court for an order to vacate his sentence pursuant to 28 U.S.C. § 2255. His asserted claim for relief is ineffectiveness of his counsel in failing to file objections to the presentence report and failing to advise him of his right to appeal.

By way of background, Lloyd supervised an extensive car theft ring, the members of which stole luxury automobiles to order. After the cars were stolen, vehicle identification numbers were changed and certificates of title forged thus conferring upon them all the indicia of legitimacy. Those cars were then transported to buyers in Florida, Louisiana, Mississippi, Texas and California. It was asserted that the value of the automobiles thus stolen, "legitimized" and shipped exceeded $1.5 million. Lloyd was also engaged in the illegal purchase and interstate transportation of guns. At the time of his arrest, seized from his home were two shotguns, one .45 caliber, one .380 caliber and one .9mm semiautomatic firearm together with a large amount of ammunition and firearm paraphernalia.

On April 7, 1999, Lloyd pled guilty pursuant to a plea agreement to violating 18 U.S.C. § 2312, the interstate transportation of stolen vehicles and to violating 18 U.S.C. § 922 (a)(1), the illegal transportation of firearms. The plea agreement estimated that the guideline range of his sentence would be 41-51 months assuming a criminal history category of I. The agreement explicitly provided that the estimate was not binding on either the United States Attorney, the Office of Probation or the Court. Lloyd was also explicitly advised by the Court that the guideline estimate had no binding effect and that he would not be permitted to withdraw his plea if the guidelines proved to be higher. He acknowledged his understanding of that. Transcript of Plea at p. 19.

The Court reviewed with Lloyd that segment of his plea agreement by which he waived his right to appeal his sentence if it did not exceed 51 months, notwithstanding Lloyd's acknowledgment that he read his plea agreement and his statement that the Court's review of it with him was not necessary. He also acknowledged that he understood the significance of that waiver and agreed to it voluntarily.

The presentence report subsequently prepared by the Office of Probation reflected a total offense level of 27, a criminal history category of II and a guideline range of 78 to 97 months. In a letter to the Court dated July 12, 1999, his attorney, David Cohen, Esq., wrote that he reviewed that report with Lloyd and raised a number of objections to it which were also vigorously pressed at the time of sentence, and resulted in a finding that the offense level should be reduced to 24 and the guideline range reduced to 57-71 months. On July 28, 1999, Lloyd was sentenced to 57 months and filed no appeal. The record belies Lloyd's claim that his counsel failed to file objections to his presentence report and that claim is dismissed.

After the filing of this petition, the Court wrote to Mr. Cohen advising of Lloyd's claim that he was ineffectively assisted and, in accordance with Sparman v. Edwards, 154 F.3d 51 (2d Cir. 1998), extended to him the "opportunity to be heard and present evidence in the form of live testimony, affidavits or briefs." Mr. Cohen opted to present testimony and a hearing was held on May 12, 2000. Lloyd was advised of his right to counsel and elected to proceed pro se. Transcript of hearing at pp. 3, 18 (Tr.). Mr. Lloyd testified that Mr. Cohen never came to his cell and never saw him after he was sentenced. He said that he was told that Mr. Cohen left with his mother and his fiancee and while sitting in the park opposite the courthouse, explained what had transpired at sentencing. A letter dated May 10, 2000, received by the Court from his mother was shared with the parties and marked as a Court exhibit. In it she avers that while sitting on a bench in the corridor outside the courtroom neither she nor her son were advised of the right to appeal.

Upon being questioned by the government, Lloyd's attention was called to his Memorandum in Support of his petition in which he wrote that he "was grossly misled by counsel regarding his appellate rights." Primarily he was told that he did not have an appeal issue and that counsel could not represent him because Lloyd was out of money. He was not told that he could proceed as an indigent and the entire discussion regarding his appeal lasted about five minutes. At the May 12th hearing, Lloyd persisted in his assertion that Mr. Cohen did not visit him after sentence and did not advise him with respect to an appeal, notwithstanding his written acknowledgment of a discussion regarding his appeal. He admitted that his claim that Mr. Cohen said he would not represent him because he had no money was false. (Tr. at 7).

Mr. Cohen was called to testify by the government and the portion of his testimony relevant to the issue here was as follows:

Q. What happened immediately following the sentencing:

A. After the sentence I went into the court holding facility and spoke to Mr. Lloyd about what had happened. We were happy, quote unquote, that the judge did not increase the sentence with respect to obstruction and we were also pleased that he received the minimum sentence within the guideline range. I indicated to him that since the judge did make an upward departure and since it was not the time that was set in the plea agreement that he did have a right to appeal but I also explained to him that if we appealed the sentence, the government could appeal the obstruction and he could be in worse shape.

At that point we talked about a few other matters and he did not indicate to me anything at all about wanting to appeal or asked me any questions at all about anything dealing with an appeal.

Q. Were you left with an impression that he wanted you to do an appeal or another impression?

A. Well, based upon our conversation it was clear to me that he did not want me to file a notice of appeal or to handle an appeal.

* * *

Q. Just so the record is clear on that point.

Now, after that day did you ever speak with Mr. Lloyd or have communication with him?

A. On a number of occasions, yes.

Q. What was the nature of that?

A. Well, specifically I believe that the day — the next day or shortly thereafter I received a phone call from Mr. Lloyd requesting that I contact the Court to have the Court recommend that he be sent — housed in the northeast region and that he be given consideration for eligibility in drug treatment.

Based on our conversation I wrote a letter to the court making those requests on his behalf and pursuant to that letter the Court issued an amended sentencing judgment where it did recommend northeast region and that he be given drug and/or alcohol treatment.

Q. Now, in any of the communication you had with Mr. Lloyd after the date of sentence did he ever say anything to you about an appeal?

A. No, sir, he did not.

Q. Did you ever have a discussion with Mr. Lloyd about financing of an appeal?

A. Absolutely not.

Discussion

The determination of this motion ultimately turns upon this Court's assessment without more of the credibility of the witnesses. Given the inconsistency between Lloyd's written submission and his testimony regarding the crux of his petition, namely, whether Mr. Cohen spoke with him at all after sentencing and this Court's observation of the demeanor of each and appraisal of the substance of their testimony, the conclusion is compelled that the testimony of Mr. Cohen was entirely credible and that the testimony of Lloyd was not.

The recent case of Roe v. Flores-Ortega, ___ U.S. ___; 120 S.Ct. 1029 (2000) informs the decision to be made here. In a passage peculiarly applicable to this motion, the Court wrote, at p. 1035:

In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, we believe the question whether counsel has performed deficiently by not filing a notice of appeal is best answered by first asking a separate, but antecedent, question: whether counsel in fact consulted with the defendant about an appeal. We employ the term `consult' to convey a specific meaning — advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes. If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal.

Mr. Cohen's testimony, which the court credits, plainly establishes that he did consult with Lloyd about an appeal, advised him of the disadvantages of pursuing one, namely, the real possibility that the government would press its obstruction of justice enhancement and that the clear implication of their discussion was that Lloyd did not want an appeal to be taken.

As concerns the assertion of ineffective assistance, there has been no showing that Mr. Cohen's performance "fell below an objective standard of reasonableness" or that Lloyd was prejudiced in any way by Mr. Cohen's representation. Strickland v. Washington, 466 U.S. 668 (1984). On the contrary, having presided over the proceedings at which Lloyd pleaded guilty and was sentenced it is this Court's view that he was conscientiously and effectively represented on both occasions and the ineffective assistance claim has no merit.

As regards Lloyd's contention that the Court erred in its determination of his total offense level and criminal history category, his claim is procedurally barred. See United States v. Frady, 456 U.S. 152 (1982);Soto v. United States, 185 F.3d 48 (2d Cir. 1999). He has shown neither cause nor prejudice in not pursuing his right to appeal his sentence of which he was advised and may not avoid the failure to do so by a collateral attack.

I am moved to observe that the multiplication of ineffective assistance of counsel claims at least since Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993) is difficult to ignore. If the Court were required to grant a hearing whenever such a claim is made, a serious strain upon judicial resources would follow. This case lends persuasive validity to the observation of Judge Posner in Underwood v. Clark, 939 F.2d 473, 476 (7^th Cir. 1991) which I paraphrase to read that after being convicted, it is simple enough for a defendant to claim he was ineffectively assisted by counsel for any one of a variety of reasons limited only by the defendant's imagination. His barebones assertion that his attorney never discussed an appeal with him, for example, are tactics just too facile to be permitted to succeed. See also Siciliano v. Vose, 834 F.2d 29, 31 (1^st Cir. 1987) (Breyer, J.)

The Court of Appeals for the Second Circuit has not yet determined whether such a conclusory barebones allegation is enough to grant the petition or require an evidentiary hearing. It has cited Underwood favorably in a number of "summary orders." See, e.g., Kowalezvk v United States, 152 F.3d 918 (2d Cir. 1998) cert. denied 119 S.Ct. 455 (1998);Brown v. Artuz, 124 F.3d 73, 80 (2d Cir. 1997) which have no precedential value. I will not discuss the debatable premise of the Summary Order rule. Suffice it to say that I find the views of its critics unassailable. See, e.g., Richard Arnold, Unpublished Opinions: A Comment, 1 Journal of Appellate Practice and Process 219 (1999); Dragich, Will the Federal Courts of Appeals Perish if They Publish? or Does the Declining Use of Opinions to Explain and Justify Judicial Decisions Pose a Greater Threat? 44 Am.U.L.Rev. 757 (1995); Baker, Intramural Reforms: How the U.S. Courts of Appeals Have Helped Themselves, 22 Fla.St.U.L.Rev. 913 (1995); Reynolds and Richman, the Non-Precedential Precedent — Limited Publication and No Citation Rules in The United States Courts of Appeals, 78 Col.L.Rev. 1167 (1978).Underwood has been consistently cited favorably by the district courts of this circuit. See, e.g., White v. United States, 2000 WL 546426, *5 (S.D.N.Y. 2000); United States v. Pham, 2000 WL 375245 *2 (S.D.N Y 2000); Lejhanec v. United States, 1999 WL 1487594 *9 (E.D.N.Y. 1999);Slevin v. United States, 71 F. Supp.2d 348, 357 (S.D.N.Y. 1999); Young v. United States, 1999 WL 820563, *5 (S.D.N.Y. 1999); Acevedo v. Demskie, 1999 WL 325055, *29 E.D.N.Y. 1999); Chang v. United States, 1999 WL 439097, *2 (E.D.N.Y. 1999); United States v. Wiggins, 971 F. Supp. 660, 663 (N.D.N.Y. 1997); Rendon v. United States, 1997 WL 220328 *4 (S.D.N.Y. 1997); Scire v. United States, 1997 WL 138991 *11 (E.D.N Y 1997); United States v. DeFeo, 1997 WL 3259 *14 (S.D.N Y 1997); Hernandez v. United States, 1996 WL 507324 *1 (S.D.N.Y. 1996); Rivera v. Kuhlman, 1995 WL 594858 *2 (S.D.N.Y. 1995).

For the foregoing reasons, the petition is dismissed.