Opinion
Nos. 01 Civ. 9371 (PKL), 95 Cr. 941 (PKL).
August 3, 2004
Jose Muyet, Pro Se, Reg. No. 38136-054, USP Allenwood, White Deer, PA.
Joshua A. Goldberg, Assistant United States Attorney, Southern District of New York, New York, New York.
OPINION AND ORDER
Petitioner Jose Muyet, acting pro se, moves to vacate his sentence pursuant to 28 U.S.C. § 2255. Muyet also alleges that questions of law and fact pertaining to ineffective trial and appellate counsel entitle him to an evidentiary hearing pursuant to Rule 4 of the Rules Governing Section 2255. For the following reasons, Muyet's petition and request for an evidentiary hearing are denied in their entirety.
BACKGROUND
On April 10, 1997, a jury convicted Jose Muyet for various racketeering, narcotics, and firearms offenses arising out of his participation in and leadership of the so-called "Nasty Boys" criminal enterprise. Jose Muyet led the Nasty Boys, which operated in the Bronx from 1991 until 1995. The Nasty Boys sold crack cocaine and heroin worth millions of dollars and often used violence to advance and protect its business. After the five-month trial, the jury convicted Jose Muyet of violating the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c) (Count One of the Indictment), conspiracy to violate RICO, 18 U.S.C. § 1962(d) (Count Two), committing violent crimes in aid of racketeering, 18 U.S.C. § 1959 (Counts Three through Twenty-nine), conspiracy to distribute heroin and crack cocaine, 21 U.S.C. § 846 (Count Thirty), and use and possession of a firearm, 18 U.S.C. § 942(c) (Counts Thirty-one through Thirty-five and Thirty-seven through Forty-two).
Following the conviction, Muyet filed to replace his trial counsel, Roy R. Kulcsar, Esq. This Court granted the motion and in July 1997, appointed Jay L. Weiner, Esq., to represent Muyet. On November 26, 1997, Mr. Weiner entered motions for recusal, judgment of acquittal, new trial and for arrest of judgment, pursuant to Rules 29, 33 and 34 of the Federal Rules of Criminal Procedure. Mr. Weiner claimed that Muyet received ineffective counsel because trial counsel slept through portions of the trial, objected excessively, and failed to call important witnesses. The motions also alleged that this Court lacked jurisdiction, that the government failed to prove certain elements of the racketeering charges and that some of its witnesses had committed perjury.
This Court denied the motion, see United States v. Muyet, 994 F. Supp. 550 (S.D.N.Y. 1998) (Leisure, J.), and on July 28, 1998, sentenced Muyet to life imprisonment to be followed by a consecutive 205 year term.
The United States Probation Office issued findings and recommendations in a Pre-Sentence Investigation Report to this Court. The Office reasoned that because Jose Muyet was the leader of the Nasty Boys and particularly vicious in his role when he showed no hesitation to execute certain individuals, his lengthy sentence would prevent him from further harming the community. This Court followed the sentencing recommendation.
Then on direct appeal, Muyet's appellate counsel, Mr. Weiner, argued that the Court committed plain error in its jury instructions, that the Court abused its discretion in empanelling an anonymous jury, and that Muyet suffered unfair prejudice when the Court allowed the government to introduce the testimony of a former co-defendant who had pleaded guilty. The Second Circuit rejected all of Muyet's arguments and affirmed the conviction on September 8, 2000. See United States v. Muyet, 255 F.3d 647 (2d Cir. 2000).
On October 25, 2001, Muyet filed the instant habeas petition through the Pro Se Office of the United States District Court, Southern District. Considering that petitioner is proceeding pro se, this Court construes his allegations liberally. See Billy-Ecko v. United States, 8 F.3d 111, 117 (2d Cir. 1993) (recognizing a "judicial interest in interpreting pro se pleadings liberally and in the interests of fairness topro se litigants"). Muyet seeks relief on grounds that his Sixth Amendment right to counsel was violated. Muyet challenges trial counsel's assistance in three respects: (1) trial counsel was ineffective because trial counsel slept during considerable and critical periods of time during trial; (2) trial counsel prevented Muyet from testifying during trial, and 3) trial counsel failed to inform Muyet of a potential plea bargain. Muyet also collaterally attacks that appellate counsel was ineffective because (1) appellate counsel did not directly appeal the allegations of ineffective sleeping trial counsel and (2) appellate counsel failed to reassert previous claims made in a post-judgment motion for new trial on direct appeal.
On August 5, 2002, the Court received petitioner's motion to expand the record in his habeas corpus proceedings to include potential additional affidavits. The government responded to petitioner's motion with a letter in which the government indicated that it did not currently object to petitioner's request, but that it reserved the right to object to additional submissions once they are made. The Court memo-endorsed the government's letter on September 3, 2002. Petitioner thereafter submitted a letter, which the Court received on October 16, 2002, requesting that the Court withdraw its memo endorsement, and deny the government's request to object to petitioner's additional filings once they are made. On May 20, 2004, the Court issued an order declining to withdraw its memo endorsement. The Court ordered petitioner to submit any additional affidavits he sought to introduce no later than July 2, 2004, and the government to submit any objections no later than July 16, 2004. Petitioner timely complied with the Court's scheduling order, submitting on July 1, 2004, the affidavit of co-defendant Frank Sosa and a copy of a letter from Sanford M. Katz, Esq., Sosa's attorney, to Sosa, dated October 24, 1996.
Sosa states in his affidavit that he observed "Mr. Muyet's attorney . . . constantly falling asleep." In his letter to Sosa, Mr. Katz relays information about a plea offer made by the government to Sosa and co-defendant Del Valle.
The government asked for additional time to submit any objections to petitioner's additional submissions, and has not yet responded. After reviewing Sosa's affidavit and Mr. Katz's letter, the Court finds that these additional submissions do not counterbalance the weight of evidence, discussed below, showing that petitioner's attorney rendered effective counsel during the trial.
Any response by the government about whether the additional submissions are objectionable is therefore moot. The Court has included petitioner's additional submissions in its analysis set forth below, and finds the outcome of petitioner's petition unchanged by these submissions. Moreover, having already expanded the record to permit petitioner to submit additional evidence, the Court finds petitioner's request for an evidentiary hearing, discussed below, even less compelling. Cf. Valverde v. Stinson, 224 F.3d 129, 135 (2d Cir. 2000) ("If the district court decides to expand the record . . . instead of conducting a full evidentiary hearing, it should of course reevaluate the need for such an evidentiary hearing after these initial steps have been taken.") (internal citations omitted); Jamison v. Senkowski, 204 F. Supp.2d 610 (S.D.N.Y. 2002) (finding that after the court had expanded the record and found no violation of the right to effective counsel, an evidentiary hearing was not needed).
This Court answers claims made in the petitioner's § 2255 motion and traverse or response to the Government's reply. While the Court usually requires that all claims must be made in the petition, the Court will also consider claims raised by pro se litigants for the first time in the response to the Government's Brief of Opposition. See Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998); Wojtowicz v. United States, 550 F.2d 786, 789 (2d Cir. 1977).
DISCUSSION
I. Standard of Review
Section 2255 enables a prisoner in federal custody to petition the sentencing court to "vacate, set aside or correct the sentence" if the sentence is in violation of the United States Constitution, imposed by a court without jurisdiction, is excessive under applicable law or "is otherwise subject to collateral attack." 28 U.S.C. § 2255. Muyet's § 2255 motion falls under the last category for relief. To obtain collateral relief, a defendant must prove that he suffered from "an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Bokum, 73 F.3d 8, 12 (2d. Cir. 1995) (citing Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)). Muyet claims ineffective assistance of trial and appellate counsel and must demonstrate that counsels "committed errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
II. Muyet Received Effective Assistance of Trial Counsel
Muyet claims that his trial counsel rendered ineffective assistance by allegedly sleeping through critical and substantial periods of the trial, prohibiting defendant from testifying at trial, and withholding information of a plea offer. The Sixth Amendment guarantees criminal defendants effective assistance of counsel. Id. at 688. The Supreme Court set forth in Strickland a two part test to determine if counsel's assistance was ineffective in situations where defendant's claims were based on counsel's specific performance errors. The test requires that (1) "counsel's performance was deficient," in that it "fell below an objective standard of reasonableness," and (2) the deficient performance prejudiced the defense, or in other words, "that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Id. at 687, 694-95.
On July 21, 2003, the government submitted a letter amending its papers of opposition. In its original response, the government relied primarily on the Second Circuit's decision inBilly Eko v. United States, 8 F.3d 111, 115 (2d Cir. 1993), which held that when defendant had new counsel on appeal and the claim of ineffective trial counsel was based solely on the trial record, failure to bring such claim on direct appeal would procedurally bar it in collateral proceedings. In light ofMassaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003), which overruled the holding in Billy Eko, the government retracted the argument that Muyet's ineffective assistance of trial counsel claims was procedurally barred. The government recognized the holding of the Supreme Court inMassaro, which allowed the defendant to raise ineffective assistance of counsel claims in collateral proceedings, whether or not the defendant had raised such claims on direct appeal. The Supreme Court reasoned that ineffective counsel claims would be best brought in the first instance in a motion under § 2255 because (1) the district court would be best suited to develop the facts; (2) the judge, having observed the earlier trial, would have the first-hand observations of trial counsel's performance; and (3) this process would be most efficient. Id. at 505-07. Hence, this Court holds that Muyet's motion brought under § 2255 for ineffective assistance is not procedurally barred.
The standard to measure attorney performance is "reasonable effective assistance." United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995). Furthermore, in assessing the defendant's ineffective assistance claims, the court "must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and that counsel's actions may be considered "sound trial strategy." Strickland, 466 U.S. at 689; see also Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) (setting a highly deferential standard of review); United States. v. Bentley, 706 F.2d 1498 (8th Cir. 1983) (establishing that there would be a heavy burden to prove otherwise). A court evaluating counsel's performance must do so from the perspective of the counsel at the instant of the alleged error and prevailing circumstances. See Strickland, 466 U.S. at 689 (reasoning that courts must make every effort to eliminate the distorting effects of hindsight).
If the defendant can show that counsel's performance was deficient, then he must also show prejudice from counsel's deficiency, in other words, "absent the errors, the fact finder would have reasonable doubt respecting guilt." Id. at 687, 695. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Furthermore, even professionally unreasonable errors by counsel do not set aside the judgment of a criminal proceeding unless these errors affect the judgment. Lindstat v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quoting Strickland, 466 U.S. at 691). This means that if the petitioner makes an insufficient showing on either prong, the court does not need to address both components of the test. Strickland, 466 U.S. at 687.
A. Claim of Ineffective Trial Counsel Because of Alleged Sleeping Is Denied
Muyet claims that his trial attorney, Roy Kulcsar, Esq. slept through significant portions of the trial. When an attorney is found to be unconscious for numerous extended periods of time when defendant's interests are at stake, such performance is objectively deficient. See Tippins v. Walker, 77 F.3d 682, 685 (2d Cir. 1996) (citing Strickland, 466 U.S. at 696). In such extreme cases where counsel is sleeping for a "substantial" amount of time, the defendant will not need to prove the second prong of the Strickland test because the Court may presume prejudice to the defendant. Id. at 686. The Second Circuit has established that a lawyer who sleeps for a substantial amount of time or is unconscious during important times in the trial leaves the defendant without the ability to distinguish which legal initiatives to pursue and results in a "breakdown of the adversarial process." Id. InTippins, the Second Circuit held that when counsel slept everyday of a twelve-day trial, a multitude of times, and for such extended periods of time that the trial judge had to halt the trial and issue a warning to the trial counsel to stop sleeping, such extreme deficiency would be inherently prejudicial. Id. at 687. However, when the defendant can only evince that his attorney is merely closing his eyes or sleeping a few times when the defendant's interests are not at stake, the courts should continue to apply the two-prong Strickland test and find counsel effective unless defendant can prove that the counsel's actions were prejudicial. See United States v. Petersen, 777 F.2d 482, 484 (9th Cir. 1985) (finding that counsel had not slept through a "substantial portion" of the trial; therefore defendant received effective assistance of counsel); Ortiz v. Artuz, 113 F. Supp.2d 327, 342 (S.D.N.Y. 2000) (holding that defendant failed to show that counsel was repeatedly unconscious at trial for which petitioner's interests were at stake and thereby was unable to fulfill the Strickland prejudice requirement); United States v. Mittal, No. 98 Cr. 1302, 2000 WL 1610799 at *8 (S.D.N.Y. Oct. 27, 2000) (holding that where counsel closed his eyes twice during trial did not constitute ineffective assistance).
When a defendant establishes a per se violation of his right to counsel, he does not need to make a further showing to obtain relief. See United States v. Noval, 903 F.2d 883, 886 (2d Cir. 1990). The Second Circuit emphasized that it is reluctant to extend that an attorney sleeping through a substantial portion of the defendant's trial constitutes as a per se violation. See United States v. O'Neil, 118 F.3d 65, 70-71 (2d Cir. 1997), cert. denied, 522 U.S. 1064, 118 S.Ct 728, 139 L.Ed.2d 666 (1998); Triana v. United States, 205 F.3d 36, 42 (2d Cir. 2000) ("For a very limited set of Sixth Amendment violations, prejudice is so likely that case-by-base analysis is inefficient and the infringement is presumed.").
In this case, Muyet has failed to show that his trial counsel slept for substantial amounts of time when his interests were at stake. This Court has already discussed and dismissed Muyet's claim of ineffective counsel due to alleged sleeping, under the appropriate Strickland standard, in an opinion denying a post judgment motion for new trial. See Muyet, 994 F. Supp. at 560. Through first hand observations, the record, and affidavits, this Court previously found as a matter of fact, that trial counsel had not slept for substantial portions of time.Id. at 561. In addition, the post trial motion is indicative of counsel's active performance because one of Muyet's claims was that trial counsel objected too frequently and cross-examined in a manner that was lengthy and overdrawn.
Muyet has now submitted additional affidavits to his § 2255 petition from a codefendant, three different attorneys for other codefendants, and a spectator to support his claim that Mr. Kulcsar slept a substantial amount. While each one states that Mr. Kulcsar slept or appeared to be sleeping, none of the new affidavits affirmatively state or establish that Kulscar slept for a substantial amount of time or that Kulscar was unconscious for times when defendant's interests were at stake. The most descriptive affidavit only states that Mr. Kulcsar "appeared to be sleeping . . . a few times per week during the months in which [he] was not feeling well." Affidavit of Lee A. Ginsberg, Esq., ¶ 2. The trial lasted five months and the time Mr. Kulcsar was allegedly asleep is proportionally miniscule to the times he was actively engaged. Without more evidence to prove otherwise, this Court continues to find as a matter of fact, that Kulscar did not sleep for substantial portions of the trial.
Assuming the amount of time Mr. Kulcsar slept was deficient performance, Muyet fails to demonstrate prejudice. The second prong of Strickland requires that once a defendant has evinced deficient performance, he must then show that there was prejudice resulting from counsel's performance. At trial, Muyet faced a powerful government case. Mr. Kulcsar aggressively cross-examined adverse witnesses and this Court found that Kulscar made every effort to counter the government's damaging evidence. Moreover, this Court found that Muyet's counsel did not sleep when Muyet's interests were at stake. In light of these facts, Muyet has not shown prejudice. See United States v. Cruz, 785 F.2d 399, 405 (2d Cir. 1986) (finding that a showing of prejudice requires a defendant to establish a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different").
The Government presented the testimony of seven accomplice witnesses, all of whom had been members and participants in the gang and criminal activities charged in the Indictment. Their testimony was corroborated by special agents in the FBI and DEA, officers and detectives of the NYPD detailing arrests, searches and seizures of cash, narcotics, narcotic paraphernalia, and firearms in relation to the Nasty Boys. Law enforcement also testified that various defendants made false exculpatory statements during arrests and such. Furthermore, lay witnesses like neighborhood residents and innocent victims provided first-hand accounts of murders, drug dealing, and other criminal activities of the Nasty Boys. Finally, expert witnesses provided forensic evidence that linked the defendants to some of the crimes charged. In total, the Government presented over 70 witnesses evincing the crimes of the Nasty Boys.
Finally, Muyet claims that this Court erred in reviewing the trial lawyer's performance using the Strickland analysis in the post judgment motion and should have used the "presumption of prejudice" standard established in United States v. Cronic, 466 U.S. 648, 10 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Under Cronic, a defendant who claims that he was denied counsel at a critical stage in the proceedings need not show prejudice because there is a "presumption that counsel's assistance is essential" and that "a trial is unfair if the accused is denied counsel at a critical stage of his trial." Norde v. Keane, 294 F.3d 401, 413 (2d Cir. 2001) (citing Cronic, 466 U.S. at 659). The four circumstances outlined where a presumption of prejudice is assumed are as follows: (1) the accused is completely denied counsel at critical stage of proceedings, (2) counsel does not subject prosecution's case to meaningful adversarial testing, (3) the surrounding circumstances made it so unlikely that any lawyer could provide effective assistance that ineffectiveness was properly presumed without inquiry into counsel's actual performance at trial, or (4) there were possible conflicts of interest between codefendants who shared one counsel. Id. at 659-61; See also State v. McGurk, 3 Neb. App. 778, 786 (1995). The Cronic exception applies only in a "narrow application of cases" and such circumstances exist if "the accused is denied counsel at a critical stage of his trial." Lainfiesta v. Artuz, 253 F.3d 151, 157 (2d Cir. 2001) (citing Cronic, 466 U.S. at 659). Furthermore, unless Muyet can "show that the instant case is squarely governed by Cronic, he must rebut a presumption thatStrickland should apply." See Tippins, 77 F.3d at 685;Restrepo v. Kelly, 178 F.3d 634, 641 (2d Cir. 2003); Woodard v. Collins, 898 F.2d 1027, 1029 (5th Cir. 1990) (citations omitted).
The instant case does not fall within that narrow spectrum of cases described in Cronic. There is no evidence that Mr. Kulcsar was unconscious during critical proceedings of the trial, hence leaving Muyet without counsel, and the record shows that he was not totally absent. Furthermore, even under the Cronic standard, Muyet cannot evince that he was left without counsel for critical periods of time. After reviewing the transcripts of trial counsel's cross-examination and summation, the Court has not discovered any error of constitutional dimension. The record shows that Mr. Kulcsar, as lead defense counsel, took an active role in objecting and cross-examining witnesses. He did not fail to subject the prosecutor's case to meaningful adversarial testing. Therefore, under the Cronic standard, Muyet's claim fails. This Court continues to use the Strickland analysis and cannot conclude that Muyet's trial counsel fell outside the "range of reasonable professional assistance" and "prejudiced" the defendant. Strickland, 466 U.S. at 689.
Petitioner's submission of additional affidavits does not warrant an evidentiary hearing. Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that trial court may examine the record, the moving papers and any exhibits and affidavits submitted therewith and, on the basis of those materials, may summarily dismiss the motion if they "conclusively show that the movant is entitled to no relief." "Conclusory allegations unsupported by specifics are insufficient to require a court to grant an evidentiary hearing, as are contentions that in the face of the record are wholly incredible." See Stokes v. United States, No. 00 Civ. 1867, 2001 WL 29997 (S.D.N.Y Jan. 9, 2001) at *6 (internal quotations omitted); Paulino v. United States, No. 95 Cr. 116, No. 97 Civ. 2107, 1998 WL 214877 at *2 (S.D.N.Y. Apr. 28, 1998) ("Petitioner's unsupported, conclusory allegations are insufficient to require an evidentiary hearing on a habeas corpus petition."). Furthermore, when a district judge is familiar with the case because he presided over the trial, the district court may deny the motion without a hearing. See Blackledge v. Allison, 431 U.S. 63, 74 n. 4, 52 L.Ed.2d 136, 97 S.Ct. 1621 (1977); United States v. Aiello, 900 F.2d 528, 534 (2d Cir. 1990) ("A district court may rely on its own familiarity with the case and dismiss a motion without an deny an evidentiary hearing if court concludes that the motion lacks meritorious allegations that can be established by competent evidence."); See Polizzi v. United States, 926 F.2d 1311, 1320 (2d Cir. 1991); McCarthy v. United States, 764 F.2d 28, 31 (1st Cir. 1985).
The record contradicts Muyet's claim of trial counsel sleeping and the new affidavits cannot overturn this Court's findings of fact that counsel was not sleeping for substantial periods of time. This Court supplements the record with its own recollections and observations and finds that Kulscar was effective counsel. Finally, even if the affidavits were to be considered factually compelling, Muyet has no basis of lawful relief because he cannot show prejudice by the sleeping counsel. An evidentiary hearing is not required on this issue.
B. Muyet's Claim that Trial Counsel Prohibited Defendant from Testifying at Trial is Unsupported
Muyet argues that his trial counsel preventing him from testifying at trial. The accused has a right to testify grounded in the Due Process Clauses of the Fifth and Fourteenth amendment. U.S. Const, amends. V, XIV; Rock v. Arkansas, 483 U.S. 44, 51, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). "It is one of the rights that are 'essential to due process of law in a fair adversary process.'" Rock, 482 U.S. at 51 (citingFaretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). The defendant's waiver of the right to testify must be "knowing and intelligent." Schneckloth v. Bustamonte, 412 U.S. 218, 241, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The Second Circuit has ruled that "the decision to testify belongs to the defendant and may not be made for him by defense counsel." Brown v. Artuz, 124 F.3d 73, 78 (2d Cir. 1997). In addition, the Second Circuit concluded that "the burden of ensuring that the defendant is informed of his right to testify rests upon defense counsel and this burden is a component of the effective assistance of counsel". Id. at 80. Claims that defense counsel prohibited defendant from testifying or curtailed his right to testify must satisfy the two-prong test established in Strickland. See id. at 79; Jackson v. Bennett, No. 01 Civ. 8971, 2002 WL 1770781 (S.D.N.Y. July 31, 2002); Vellon v. David, No. 01 Civ. 6505, 2003 WL 23185761 (E.D.N.Y. Nov 11, 2003).
In the present case, the only evidence in support of Muyet's claim is petitioner's own affidavit. When the petitioner can only buttress his claim with his own affidavit and the counsel's affidavit squarely contradicts defendant's affidavit, the petitioner has not overcome the burden of proof and the claim should be dismissed without an evidentiary hearing. See Chang v. United States, 250 F.3d 79, 85 (2d Cir. 2001). Mr. Kulcsar's affidavit belies Muyet's claim, providing a detailed affirmation that he advised Muyet before and during the trial of the right to testify, the potential risks and benefits of testifying and how it was ultimately Muyet's decision whether or not to testify. Kulscar Aff. ¶ 3. Other than his own accusations, Muyet provides no proof that Kulscar prevented him from testifying.
Muyet claims that the record lacks his objections because while he wanted to object to counel's restrictions, he observed the district court dismissing the same claim made by his codefendant. He then concluded that his own objections to the Court would be fruitless. Without more exculpatory evidence proving the claims of Muyet, the record indicates otherwise and shows that the Court informed defendants of their right to testify and stressed to the defense counsels that they needed to follow the instructions of the client. Trial Tr. 7591-93. The pattern of events in no way reflects deficient counsel and does not satisfy the first element of the Strickland test. Without more substantial objective evidence, Muyet's claim remains supported only by a conclusory allegation.
Even if trial counsel had prohibited Muyet from testifying, the second prong of the Strickland test requires that petitioner must prove that his own testimony would have altered the outcome of the case. See Rega v. United States, 263 F.3d 18, 25-26 (2d Cir. 2001); see also Shaba v. United States, 721 F. Supp. 132 (E.D. Mich. 1989); United States v. Palma-Rodriguez 819 F. Supp. 1064 (M.D. Fla. 1993). Considering the physical evidence of photographs, documents and hospital records that supported the live testimony incriminating Muyet, his own testimony would not have altered the decision of the jury. There was an abundance of evidence to convict Muyet on all counts. Furthermore, trial counsel had already attempted to attack the credibility of the witnesses' testimonies in cross-examination. As the Second Circuit has previously expressed, where the evidence of guilt is very strong, "there is not too much the best defense attorney can do." United States ex rel. Testamark v. Vincent, 496 F.2d 641, 643 (2d Cir. 1974).
Because Muyet has failed to establish his right to relief, this Court does not need to grant an evidentiary hearing. Furthermore he fails to support his claims with objective evidence and such conclusory allegations do not warrant an evidentiary hearing.
C. Muyet's Plea Offer Claim is Unsubstantiated
Muyet argues that trial counsel was ineffective because Mr. Kulcsar did not properly advise him of a plea offer. To render effective assistance, counsel must communicate any government plea offer to the defendant. See Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003); Boria v. Keane, 99 F.3d 492, 498 (2d Cir. 1996) (affirming a finding of ineffective assistance where lawyer failed to advise fully on desirability of plea). Furthermore, counsel must fully inform and advise the client on the wisdom of accepting a particular plea offer and its consequences or it constitutes as deficient performance. See Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 92 L.Ed. 309 (1948); Cullen v. United States, 194 F.3d 401, 404 (2d Cir. 1999). However, the petitioner must offer "objective evidence" outside his own colorable claims to support his allegations that there was a plea offer and that he would have accepted it. Slevin v. United States, 71 F. Supp.2d 348, 356 (2d Cir. 1999).
Here, Muyet's claim is unsubstantiated because the Government has proffered sworn declarations from Assistant United States Attorney Thomas Finnegan, and trial counsel, Mr. Kulcsar, both affirming that a plea offer was never made. See Kulcsar Aff ¶ 5; Finnegan Aff. ¶ 2-4. Adding to the credibility of Government's position are the relevant circumstances of the trial. Mr. Finnegan's affidavit explains that Muyet never received a plea offer because of Muyet's leadership role in the gang and personal involvement in many of the gang's violent criminal activities. Finnegan Aff. ¶ 4.
Muyet contends that his claim is supported Finnegan's affidavit because there was a purported possible "global" plea was discussed between the defense attorneys and the Government. However, Mr. Finnegan's affidavit can only be read to conclude that a plea never materialized for Jose Muyet. The government states with absolute certainty that, "the government never made a formal global plea offer encompassing Mr. Muyet." Finnegan Aff. ¶ 4. Furthermore, Muyet's deductions that he received a plea offer because some of his codefendants were offered a plea is faulty logic. The affidavit of his codefendant's lawyer stating that Muyet's codefendant, Frank Sosa, received a plea offer from the government, adds no proof that Muyet was offered one. The government had no reason to offer Muyet a plea along with Sosa because of the insurmountable evidence it had against Muyet. It also emphasized in its affidavit how Muyet was "personally responsible for a litany of criminal acts" and given Muyet's role in the crimes charged, it is clear that the government would have never offered a plea to the gang leader. Finnegan's Aff. ¶ 3. The only evidence Muyet has is his own affidavit which this Court does not find credible in light of all of the other evidence. See Purdy v. Zeldes, 337 F.3d 253, 259 (2d Cir. 2003) ("In most circumstances a convicted felon's self serving testimony is not likely to be credible."). Accordingly, the Court is not persuaded that Muyet has rebutted the "strong presumption" under the Strickland standard that his trial counsel failed to provide effective assistance.
A "global" plea would be where all of the defendants would plead guilty.
In Muyet's traverse, he selectively quotes parts of AUSA Finnegan's affidavit so that it appears that there was a "global" plea offered. However, looking at the full quote evinces that it never materialized and that discussions of a global plea were shallow.
However, even assuming arguendo that Muyet received such a plea offer, so that Kulcsar's performance would fall below the "objective standard of reasonableness" set by Strickland, 466 U.S. at 687-688, Muyet must then demonstrate that counsel's errors were prejudicial. In the plea negotiation context, the second part ofStrickland requires petitioner to show, with at least a reasonable probability, that he would have accepted such offer.See Boria, 99 F.3d at 497 (2d Cir. 1996); Percan v. United States, 294 F. Supp.2d 505, 512 (2d Cir. 2003); Aeid v. Bennett, 296 F.3d 58, 64 (2d Cir. 2002) (rejecting an ineffective assistance of counsel claim, despite counsel's misinformation, because defendant failed to show that his decision would have been different). To meet this burden of proof, petitioner cannot solely rely on his own affidavit but must also present objective evidence to substantiate his claim that he would have accepted a purported plea offer. Cf. Gonzalez v. Green Haven Corr. Facility, No. 85 Civ. 3775, 1986 WL 1194 at *4 (S.D.N.Y. Jan 15, 1986) (holding that testimony concerning a petitioner's subjective impressions of a plea agreement is insufficient to vacate a guilty plea in absence of substantial evidence to justify such a claim); United States v. Wisniewski, 478 F.2d 274, 284 (2d Cir. 1973) (finding that "in the absence of objective evidence of corroboratory circumstances, such post-trial claims must be viewed with some suspicion, especially when there has not been submitted a supporting affidavit of the attorney in accordance with the practice recommended in cases where clients belated raise a claim of ineffective assistance of counsel").
However, the Second Circuit has held that "a great disparity" between the maximum sentence established under the guideline and the sentence exposure represented to the defendant by counsel may satisfy this corroborative requirement. See United States v. Gordon, 156 F.3d 376, 280 (2d Cir. 1998) (holding that the 142 month disparity between counsel's prediction and the maximum sentence under the Guidelines range was sufficient to support a finding of prejudice under Strickland); Pham, 317 F.3d at 183 (finding that a disparity of between the plea offer of 78 to 97 months and a sentence after trial of 210 months, which is more than double the time, was indicative of ineffective counsel). Muyet claims that he was offered "40 years or significantly more time" in the alleged global plea, whereas at trial he was sentenced to a life sentence with an additional 205 year term. While it may appear as if there was a great disparity between the suggested two terms, this Court finds no significant difference between the sentence supposedly offered and the one received at trial because both sentences would result in the incarceration of Muyet for most of his remaining life. With no significant disparity to support his claim, in the final analysis Muyet fails to provide the objective evidence required by the second prong of Strickland. Therefore, even assuming if trial counsel failed to inform Muyet of a plea offer, the petitioner cannot prove prejudice resulting from counsel's deficiency.
This Court also denies the request for an evidentiary hearing on this issue. Without any sort of evidence other than his own tenuous claims, a court may dismiss a petition without a hearing.Chang, 250 F.3d at 87; see also Aiello, 814 F.2d at 111 ("Airy generalities, conclusory assertions and hearsay statements will not suffice because none of these would be admissible evidence at a hearing."). However, even if there are findings of fact needed because of competing affidavits, this Court denies the hearing because Muyet has no basis for relief since he cannot sustain the either prong of the Strickland test.
III. Muyet Received Effective Assistance of Appellate Counsel
Petitioner contends that he received ineffective assistance of appellate counsel because counsel chose not to reassert claims of ineffective trial counsel, deficient strategy of trial counsel, witness perjury, and lack of sufficient evidence for racketeering charges on direct appeal. However, Muyet fails to meet the requisite burden of proof for his claim of ineffective assistance of appellate counsel and therefore his claim is rejected.
The Strickland two-prong test continues to apply to assistance by appellate counsel. See Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). A petitioner alleging ineffective assistance of appellate counsel must prove both that (1) appellate counsel acted objectively unreasonably in failing to raise a particular issue on appeal, and (2) absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful before the state's highest court. See Evitts v. Lucey, 469 U.S. 387, 396-97, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (holding "[T]he promise of . . . a right to counsel on appeal . . . would be a futile gesture unless it comprehended the right to the effective assistance of counsel."); Frederick v. Warden, 308 F.3d 192, 197 (2d Cir. 2002) (applying Strickland's two-prong test to determine if appellant received ineffective assistance of counsel on appeal); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994); Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990). According to this strict standard wisdom, Muyet cannot evince deficiency in his appellate counsel's performance, and therefore Muyet's claim of ineffective appellate counsel fails.
A. Failure to Raise Meritless Claims on Appeal Does Not Constitute Deficient Performance
Muyet claims that his appellate counsel was ineffective because he failed to raise important issues on direct appeal. A petitioner may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker.See, e.g., Narvaez v. United States, No. 95 Cr. 941, No. 02 Civ. 2308, 2003 WL 21749638, at *22 (S.D.N.Y. July 29, 2003). However, like the standards for trial counsel, there is a strong presumption that appellate counsel acted within reason and that counsel's action may be considered "sound trial strategy" when reviewing attorney performance. Strickland, 466 U.S. at 689. Moreover, the decision not to assert certain issues on appeal does not show ineffectiveness unless that decision was "objectively unreasonable." See Chacko v. United States, No. 96 Cr. 519, No. 00 Civ. 405, 2000 WL 1808662, at *11 (S.D.N.Y. Dec 11, 2000) (holding that appellate counsel's omission of meritless claims for direct appeal does not amount to deficient counsel performance). Furthermore, appellate counsel "need not (and should not) raise every non-frivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith, 528 U.S. at 288 (citing Jones v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)); see also United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) (denying an ineffective assistance of counsel claim, in part, because the motions not pursued by counsel were without merit); Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000) ("Counsel does not have a duty to raise every non-frivolous argument that could be made."). Most importantly, appellate counsel cannot be ineffective for failing to raise issues he did in fact raise. See Narvaez, No. 02 Civ. 2308 at *22.
Muyet specifically argues that the following issues were significant, obvious and merited attention on direct appeal: (1) trial counsel was ineffective for allegedly sleeping through critical moments of the trial, 2) trial counsel was ineffective for failure to call important witnesses, 3) some government witnesses perjured themselves and 4) the evidence on the racketeering counts was insufficient. However, the Court finds each of those claims meritless because each claim was dismissed by this Court in the post-judgment proceedings. See Muyet, 994 F. Supp. at 565. Without any new evidence, the Court continues to hold each claim meritless.
Claims one and two involve ineffective trial counsel. The Court has previously found that trial counsel, Mr. Kulcar, was in fact effective because (1) he did not sleep for substantial periods of time, (2) calling witnesses is a matter of trial strategy, and (3) failure to call one does not constitute ineffective assistance. Muyet, 994 F. Supp. at 565. See also Trapnell v. United States, 725 F.2d 149, 155 (2d Cir. 1983) (holding that counsel failed to call witnesses with favorable testimony "concern matter of trial strategy and thus do not form the basis of a finding of ineffective assistant"). Moreover, since the trial counsel was not ineffective, appellate counsel cannot be faulted for choosing not to argue on appeal the ineffective assistance of trial counsel. Cf. Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) (holding that "because the double jeopardy claim was meritless, Petitioner's trial counsel was not ineffective for failing to raise it. And thus, Petitioner's appellate counsel was not ineffective for failing to raise the ineffectiveness of trial counsel.").
The third and fourth claims involve alleged government witness perjury and sufficiency of evidence for racketeering counts. This Court found that Muyet totally failed to prove any perjury on the part of Government witnesses and dismissed that claim. Muyet, 994 F. Supp. at 565. Furthermore, the Court found that a rational jurist could arrive at inferences from the murders to support the racketeering counts to the extent that it appears that a victim was murdered in order to expand or protect the drug enterprise.Id. at 566. With all these claims dismissed as meritless in the post judgment motion and without any new evidence to suggest otherwise, these claims remain meritless and appellate counsel is not ineffective for not bringing them up on direct appeal.
Additionally, even if Muyet's claims had merit, it by no means follows that the issues that his appellate lawyer did raise were significantly less promising grounds for a reversal. See Spencer v. McCray, No. 01 Civ. 8029, 2004 WL 1110244, at *10 (S.D.N.Y. Apr. 30, 2004). Seeing how the Court rejected such claims in a post judgment motion, Mr. Weiner, Muyet's appellate counsel, was objectively reasonable to focus on new issues to challenge at the appellate level. See Narvaez, No. 02 Civ. 2308 at *22. Mr. Weiner chose to challenge the empanelling of an anonymous jury, the reasonable doubt jury instruction, and admission of testimony from a previous co-defendant. With the burden on Muyet to prove otherwise, Muyet has not shown that any of the appellate counsel's decisions to pursue new issues deviates from "prevailing professional norms." Having advanced all the claims he believed to be meritorious, appellate counsel fulfilled his duty to protect effectively the rights of Muyet.
B. Appellate Counsel's Failure to Bring Forth Claims on Direct Appeal Is Not Outcome Determinative
Turning to the second prong of the Strickland analysis, even if Muyet's appellate counsel was inadequate, his inadequacy would not have changed the outcome of the jury or infused doubt into the results. Muyet cannot prove that but for a deficiency, there was a reasonable probability that his appeal would have been successful before the court of appeals. The record includes overwhelming amount of evidence against Muyet that would be hard if not impossible to surmount. The mountain of evidence that the Government presented spanned over 70 witnesses ranging from law enforcement to neighborhood residents, providing first-hand accounts of the criminal activity, and peaked with seven accomplice witnesses testifying to being members or associates of the gang. Furthermore, on direct appeal, Muyet's co-defendant raised similar issues to those that Muyet now claims should have been raised on his behalf. See Muyet, 225 F.3d at 647. The Second Circuit rejected all such claims and held that neither of Muyet's codefendants, John Muyet and Pedro Narvaez, received ineffective trial counsel despite failure to call certain witnesses. The Second Circuit also struck down the co-defendants' claim of insufficient evidence for conviction on grounds that there was overwhelming evidence. Considering the evidence against Muyet and his axiomatic role in the gang, it is unlikely that the Second Circuit would find a different result for Muyet than for his codefendants.
Muyet cannot sustain the burden of proof on either prong of theStrickland test and has no basis for relief. An evidentiary hearing is unnecessary because first, the court is intimate with the proceedings of the trial and second, no additional submissions could afford Muyet relief.
IV. Certificate of Appealability
To appeal denial of relief under § 2255, petitioner must obtain a certificate of appealability from this Court. 28 U.S.C. § 2253(c)(1). Once the applicant files a notice of appeal, the district judge who rendered the judgment that the applicant wishes to appeal must issue a certificate of appealability or state why a certificate should not issue. Fed.R.App.P. 22(b)(1). This Court may issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Petitioner may make such a substantial showing by demonstrating "(1) that the issues are debatable among jurists of reason; (2) that a court could resolve the issues in a different manner; or (3) that the questions are adequate to deserve encouragement to proceed further." Wright v. United States, No. 01 Civ. 443, No. 97 Cr. 228, 2002 WL 32086478 at *1 (D. Conn. Nov. 1, 2002) (quotingBarefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)); see alsoSlack, 529 U.S. at 484. This Court finds that petitioner has not made a substantial showing of the denial of a constitutional right and declines to issue a certificate of appealability.
CONCLUSION
For all the reasons set forth above, Muyet's petition pursuant to 28 U.S.C. § 2255 and all his requested relief are HEREBY DENIED. A certificate of appealability should not be issued as to the habeas claims addressed in this opinion.
SO ORDERED.