Opinion
No. 99-CV-0365E(Sr), 95-CR-8E
July 26, 2000
Pro Se, Three Rivers, for the Plaintiff.
William J. Hochul, Esq., Asst. United States Attorney, for The United States.
MEMORANDUM and ORDER
Petitioner George R. Powell was convicted September 13, 1996 of racketeering in violation of 18 U.S.C. § 1962 (c), racketeering conspiracy in violation of 18 U.S.C. § 1962 (d) and narcotics conspiracy in violation of 21 U.S.C. § 846. Powell was sentenced to three concurrent terms of life imprisonment from which he appealed. On October 8, 1997, the Second Circuit Court of Appeals affirmed the conviction and sentence in an unpublished order. United States v. Powell, 125 F.3d 845 (mem.), 1997 WL 626481 (2d Cir. 1997). Powell thereafter filed a Petition for Writ of Certiorari, challenging his sentence. On May 18, 1998 the United States Supreme Court denied Powell's Petition. 523 U.S. 1123 (1998) (mem.). Presently before this Court is Powell's motion to vacate, set aside or correct has sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, this motion will be denied.
Section 2255 authorizes a federal prisoner to challenge the legality of his sentence on the ground that the sentencing court "was without jurisdiction to impose [the] sentence" or that the sentence itself "was imposed in violation of the Constitution or laws of the United States," was "in excess of the maximum authorized by law" or is "otherwise subject to collateral attack." 28 U.S.C. § 2255. The motion is to be made to the court that imposed the sentence prior to the expiration of a "1-year period of limitation" that runs from the latest of (1) the date on which the judgment of conviction becomes final, (2) the date on which an impediment to making a motion created by illegal governmental action is removed, (3) the date on which a new retroactive right is recognized by the Supreme Court or (4) the date on which the facts supporting the claim presented could have been discovered through due diligence. Ibid. Although the statute refers primarily to the prisoner's "sentence" rather than to his conviction, challenges may be made under section 2255 to both sentences and convictions. See Davis v. United States, 417 U.S. 333, 343-344 (1974).
While section 2255 is often referred to as a habeas corpus provision, such characterization is technically incorrect because, rather than authorizing the granting of a writ, the statute provides for a federal court to consider a motion that is, in effect, a continuation of the underlying criminal proceeding. See 28 Moore's Federal Practice § 672.02[2][b] (3d Ed. 1999). Similarly, although prisoners file motions rather than petitions to initiate section 2255 proceedings, their motion papers are generally referred to as petitions and the prisoners are referred to as petitioners. In the interests of conformity and convenience, this Court will refer to Powell as "petitioner" and to the United States as "respondent." Inasmuch as petitioner is proceeding pro se, the Court will construe the petitions of the prisoner liberally. See Billy-Eko 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 to pro se litigants").
True habeas corpus relief for federal prisoners is granted pursuant to 28 U.S.C. § 2241.
The Court can dismiss a section 2255 proceeding without conducting a hearing if the petition and the record "conclusively show" that petitioner is not entitled to relief. 28 U.S.C. § 2255. However, if the petition and record reveal that petitioner may be entitled to some form of relief, the Court must hold an evidentiary hearing on all of petitioner's potentially meritorious arguments. See Ciak v. United States, 59 F.3d 296, 297 (2d Cir. 1995). As will be seen below, petitioner's arguments and the evidence presented do not merit an evidentiary hearing.
As a threshold matter, respondent argues that, because the final judgment in this case was the denial of certiorari by the Supreme Court on May 18, 1998 and the petition was filed with the Clerk's Office for the Western District of New York on May 27, 1999, the one-year limitations period had elapsed by the time of filing and the petition should not be considered by the Court. Government's Memorandum at 5. Respondent, however, uses the incorrect date to analyze the limitations period. The Supreme Court has held that pro se prisoners' notices of appeal are "filed" at the moment of delivery to prison authorities for forwarding to the district court. See Houston v. Lack, 487 U.S. 266, 276 (1988). Although the Court suggested the result of this bright-line rule would generally be a straightforward inquiry, it is not so in the instant case. Petitioner's original motion ("petition") is dated May 17, 1999, which is within the limitations period. Petition at 7. There is no legible postmark on the front of the envelope that would constitute proof of mailing within the period (and therefore proof that petitioner had delivered the petition to the prison authorities). On the rear side of the envelope there is a prison stamp with a line on which the date is to be indicated, but it has been left blank. Approximately three inches from that stamp is a partially smudged date stamp reading "May 16 1999." It is not clear at what time or for what purpose this stamp was applied. In any event, this Court will assume, arguendo, that the petition was filed within the statutory period and address the petition on its merits.
A second preliminary complication in the instant case is that petitioner filed a second document ("the supplemental petition") on August 18, 1999, in response to the Government's Answer. In this petition, he raised two new grounds related to ineffective assistance of counsel that were only very briefly addressed in the petition dated May 17, 1999. Inasmuch as Billy-Eko recognizes an interest in interpreting pro se motions liberally and Rule 15(a) of the Federal Rules of Civil Procedure recognizes that "leave [to amend] shall be freely given when justice so requires," this Court will consider the arguments raised in the supplemental petition as if they had been incorporated in a timely-filed initial petition.
The full caption of this document is "Petitioner's Traverse to Government's Answer to His § 2255, and Contemporaneously a Motion to Supplement His Original § 2255, and Motion to Stay Proceedings."
Petitioner cites the leading cases on ineffective assistance of counsel in his original petition. Petition at 2. He does not specify the two specific claims of ineffective assistance which were asserted only in the supplemental petition.
Petitioner's first contention is that he was improperly convicted pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962 (c) and (d). This issue was addressed on direct appeal before the Second Circuit Court of Appeals by petitioner's counsel. She argued that petitioner s conviction was improper based upon the Supreme Court's clarification of the "conduct and participation" element in Reves v. Ernst Young, 507 U.S. 170 (1993). More specifically, she contended, petitioner criminal activities were not part of an enterprise, he did not direct the affairs of the L.A. Boys gang of which he was a member and the criminal acts were not his "idea." Powell brief to Second Circuit at 34-38. This argument was rejected by that court — see United States v. Powell, 1997 WL 626481 at *2 — and, in any event, is inappropriate for a section 2255 motion, as this extraordinary remedy is generally available only for 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 a complete miscarriage of justice.'" Graziano v. United States, 83 F.3d 587, 589-590 (2d Cir. 1996) (quoting United States v. Bokin, 73 F.3d 8, 12 (2d Cir. 1995)). "An error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." United States v. Addonizio, 442 U.S. 178, 184 (1979). More to the point, a section 2255 motion is not the procedural means to correct erroneous factual determinations or challenge the sufficiency of the evidence. See, e.g., Sunal Large, 332 U.S. 174, 178-179 (1947).
The Second Circuit Court of Appeals has held that "section 2255 may not be employed to relitigate questions which were raised and considered on direct appeal." Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992); see also Chin v. United States, 622 F.2d 1090, 1092 (2d Cir. 1980) (holding that issue already raised on direct appeal may not be relitigated absent an intervening change of law that would change the outcome). In the instant case, petitioner's first ground has already been litigated and neither the RICO statutes nor their interpretations by the courts have changed in a manner that would alter the outcome of his case. Accordingly, petitioner's claim that he was improperly convicted under RICO may not be considered on this petition.
Petitioner's two additional grounds were raised in the supplemental petition and are interrelated — viz., both claims involve an allegation of ineffective assistance of counsel. The standard for claims of ineffective assistance of counsel is a two-part test. First, petitioner must show that the attorney failed to provide "reasonably effective assistance" under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687 (1984). Second, he must show that there is a reasonable probability that, but for counsel's unprofessional errors, "the outcome of the case would have been different. Id. at 694. The Sixth Amendment generally grants a defendant right to counsel, but the Supreme Court has declined to provide more specific guidelines for effectiveness of counsel. See id. at 688. There is a strong presumption that an attorney's conduct satisfied the constitutional minimum. See United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990).
In general, to bring forth on collateral review an issue not raised on appeal, petitioner must satisfy the "cause and prejudice" standard. See United States v. Frady, 456 U.S. 152, 167 (1982). Under this standard, a convicted defendant must show (1) cause excusing his procedural default and (2) actual prejudice resulting from the errors of which he complains. See id. at 168; see also Campino v. United States, 968 F.2d 187 (2d Cir. 1992). A petitioner may also present an issue not raised on direct appeal if he can demonstrate actual innocence — by showing that "in light of all the evidence it is more likely than not that no reasonable juror would have convicted him." Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotation marks omitted). Petitioner has not sought review via either mechanism.
However, the Second Circuit Court of Appeals has held that — subject to a narrow limitation — ineffective assistance claims may be made in a section 2255 petition without a showing of cause and prejudice. See Billy-Eko, at 114; see also Ciak, at 303-304. In cases in which the petitioner is represented by new counsel for his direct appeal and the claim is based solely on the record developed at trial, a showing of cause and prejudice is still required. See Billy-Eko, at 115. In the instant case, petitioner was represented by Margot S. Bennett, Esq. at the trial before this Court, for his direct appeal to the Second Circuit Court of Appeals and for his Petition for Writ of Certiorari to the Supreme Court. Petitioner has also offered a small quantum of additional evidence that was not in the trial record. Accordingly, this Court will consider the merits of petitioner's ineffective-assistance-of-counsel claims.
Petitioner first claims that his counsel was ineffective because she failed to object to what he alleges was a violation of Federal Rule of Criminal Procedure 11(e) by the prosecution in making plea agreements with his co-defendants. This argument is apparently based upon short-lived jurisprudence within two other federal circuits that has never been accepted by the Second Circuit Court of Appeals. Petitioner claims that the respondent violated the "anti-conflict of interest prohibition of 18 U.S.C. § 210(c)(2), and the witness tampering prohibition of 18 U.S.C. § 1512 (b)." Supplemental Petition at 14. Accordingly, he concludes, his Fifth Amendment right to due process was infringed upon and — because his attorney did not object at trial to these actions — his Sixth Amendment right to counsel was also infringed upon.
That petitioner's theory is based upon faulty legal ground is clear. The Eleventh Circuit Court of Appeals reversed a Southern District of Florida District Court which held that the government's plea bargain violated the bribery statute, 18 U.S.C. § 210 (c)(2), because the Assistant United States Attorney provided a "thing of value" in exchange for the co-defendant's testimony as a witness. See United States v. Lowery, 15 F. Supp.2d 1348 (S.D. Fla. 1998), rev'd, 166 F.3d 1119 (11th Cir.), reh'g en banc denied, 180 F.3d 276 (11th Cir. 1999), and cert. denied ___ U.S. ___, 120 S.Ct. 212 (1999). A decision based on a similar line of reasoning in the Tenth Circuit involving 18 U.S.C. § 210 (c)(2) has also been reversed. Moreover, the Court of Appeals for the Second Circuit has held that section 210(c)(2) does not apply to the United States or to any Assistant United States Attorney acting within his official capacity. See United States v. Stephenson, 183 F.3d 110, 118 (2d Cir. 1999). The related claim — that the respondent engaged in witness tampering in violation of 18 U.S.C. § 1512 (b) — is belied by the text of the statute which provides that "[w]hoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from * * * (1) attending or testifying in an official proceeding * * * [is guilty of witness tampering]." First, the actions of a prosecutor in plea-bargaining encourage a co-defendant to testify rather than hindering, delaying, preventing, or dissuading testimony. Second, in Stephenson, the Court of Appeals for the Second Circuit stated that it agreed with the reasoning of Singleton, 165 F.3d 1297 (10th Cir. 1999), which held that the term "whoever" in 18 U.S.C. § 2lo(c)(2) does not apply to the United States and that an Assistant United States Attorney acting in his official capacity is "the alter ego of the United States exercising its sovereign power of prosecution." Singleton, 165 F.3d at 1300, cited in Stephenson, at 118. Petitioner has presented no argument — and this Court can conceive of no colorable argument — why the term "whoever" should be construed differently in the witness tampering statute than in the bribery statute in the same context of actions of the prosecutor in plea bargaining. Accordingly, petitioner can claim no constitutional error based upon a failure to object to the plea agreement with the co-defendants.
United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), rev'd en banc, 165 F.3d 1297 (10th Cir. 1999), cert. denied, 527 U.S. 1024 (1999).
Because this legal argument is flawed, petitioner cannot show that his counsel failed to provide reasonably effective assistance. In fact, raising this argument would have detracted from the effectiveness of assistance rather than improving upon its quality. Further and because the argument would have failed, petitioner cannot show actual prejudice because the outcome of the case would not have been affected had counsel objected to the plea agreements.
Petitioner's second ineffective-assistance argument is that counsel failed to ascertain his mental status. He argues that legal insanity or "criminal incapacity" would have been presented as a defense had his counsel properly investigated his mental status. Supplemental Petition at 14-15. As evidence of his allegedly impaired mental status, petitioner makes two claims. First — according to the probation report — his I.Q. "falls within the range of mental retardation." Supplemental Petition Ex. 1 ¶ 93. The report reflects that petitioner advised the probation officer that he was able to read and write at only a ninth grade level at the time of his graduation from high school, and that he had been enrolled in special education classes. Ibid. The petition contains allegations that he has been examined and treated by numerous mental health experts since childhood, but such contention contradicts the statement in the probation report that petitioner "reported that he has been treated by psychiatrist or psychologist." Id. ¶ 91. The second claim petitioner makes is that he was unable to assist in his own defense and, therefore, was incompetent to stand trial. Supplemental Petition at 15. He points to an affirmation of his former attorney that "[petitioner] has been difficult and has rarely been able to offer any meaningful assistance in developing a defense." Supplemental Petition Ex. 2 ¶ 4. Neither of petitioner's claims has merit for purposes of the insanity and mental incompetence arguments.
The standard for the affirmative defense of insanity under federal law is whether, "at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense." 18 U.S.C. § 17. Petitioner has presented no evidence of a "severe mental disease or defect" and has not alleged that he informed his counsel of such condition. Further, he has not provided evidence that he had a cognitive failure such that he was unable to appreciate the nature and quality or wrongfulness of his acts.
Petitioner relies on cases that antedate the adoption of the Insanity Defense Reform Act of 1984 ("the IDRA"), which modified the standard for legal insanity under federal law. Prior to the adoption of this Act, there was also a volitional prong — whether the defendant was able to conform his conduct to the law. See, e.g., United States v. Torniero, 736 F.2d 725 (2d Cir. 1984). Torniero and the case on which petitioner relies, United States Weeks, 716 F.2d 830 (5th Cir. 1983), were superseded by the passage of the IDRA, and the current statute provides for only a cognitive prong to the test for the legal insanity. Therefore petitioner's arguments regarding his ability to conform his behavior to the law are irrelevant under the current law (and the law at the time of his trial).
The Strickland standard is clearly not satisfied with respect to the claims of a potential insanity defense that counsel failed to raise at trial. Assuming, arguendo, that counsel was aware of a severe mental disease or defect, it would be within the discretion of the attorney as a matter of trial strategy whether to present the affirmative defense of insanity. See, e.g., Shaird v. Scully, 610 F. Supp. 442, 447 (S.D.N.Y. 1985). In reviewing a section 2255 motion, a court cannot grant relief for alleged tactical errors or mistakes in counsel's strategy. See United States v. Garguilo, 324 F.2d 795, 797 (2d Cir. 1963); see also Trapnell v. United States, 725 F.2d 149, 155 (2d Cir. 1983). In other words, it is inappropriate for this Court to use hindsight to second-guess an attorney's strategy choices. See Mayo v. Henderson, 13 F.3d 528, 533 (2d. Cir 1994). To show that counsel's performance was deficient, it must be shown that there are "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, at 687. All that petitioner has shown in this case, however, is that his attorney did not make an argument that, even had she known the basis for it, would have been within her discretion not to make. Under the Strickland test, petitioner — in addition to showing that his attorney's performance was below an objectively reasonable standard — must show that there is a reasonable probability that, but for her error, the outcome would have been different. Id. at 694. This requires a finding that petitioner was denied a fair trial — i.e., one in which the result is reliable. Id. at 687. Given the silence of the record on any legitimate grounds for the legal insanity defense, it is clear that the outcome of the trial would not have been different had such been raised by petitioner's counsel. Thus, this Court concludes that petitioner has failed to make a showing that his counsel was ineffective for not offering an insanity defense at trial.
The record reflects that counsel was aware of petitioner's mental status — "[t]he bulk of Mr. Powell's schooling was in special education classes * * * [and his] mental abilities are substantially limited." Statement and Objections of Defendant With Respect to Sentencing Factors and Probation Report at 8. While this evidence shows that counsel was aware that petitioner had some mental deficiency, it does not show that such deficiency amounted to incompetency to stand trial or was sufficient to produce an affirmative defense of insanity.
The test for one's legal incompetency is well-settled. "A defendant may not be put to trial unless he 'has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding * * * [and] a rational as well as factual understanding of the proceedings against him.'" Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (quoting Dusky v. United States, 362 U.S. 402 (1960) (per curiam)). Pursuant to 18 U.S.C. § 4241 (d), the burden of proof is on the defendant to show by the preponderance of the evidence that he is mentally incompetent to stand trial. The Supreme Court has held that the right not to stand trial while incompetent is sufficiently important to merit protection even if the defendant has failed to make a timely request for a competency determination. See Pate v. Robinson, 383 U.S. 375, 384 (1966). Therefore, this argument is proper for a section 2255 motion. However, petitioner has not presented evidence that raises either a constitutional error or an error of law or fact that is a "complete miscarriage of justice." Graziano, at 590.
According to the probation report, "[t]he defendant appeared to be in stable mental and emotional health * * * appeared alert and responsive, [and] answer[ed] all questions in a timely and appropriate fashion." Supplemental Petition Ex. 1 ¶ 91. The two pieces of evidence petitioner has presented do not sufficiently undermine this assessment. Petitioner's statement of his history of treatment by "numerous mental health experts" is unsupported by any evidence such as medical records and is contradicted by the probation report. Second, his former attorney's statement — when put in the proper context — is also insufficient evidence. After approximately sixteen months of representation, Ms. Bennett filed a motion seeking to withdraw as counsel. Along with a claim that petitioner was rarely able to offer any meaningful assistance — on which petitioner places great import —, she stated that petitioner was "dishonest," "engaged in bad faith negotiations" and "has no respect or faith in my professional advice." Supplemental Petition Ex. 1 ¶¶ 6-7. In part of the affirmation not attached to petitioner's memorandum, she stated "[m]y feelings in this regard are deep and heartfelt * * *." Affirmation in Support of Motion to Be Relieved as Counsel ¶ 8. Ms. Bennett is not a mental health professional and her affirmation was clearly made at a time of conflict between herself and petitioner. Her comments, as a whole, seem to be directed at a difficulty in working with petitioner that is rooted in a personality conflict rather than in petitioner's self-styled mental defect. Accordingly, neither of petitioner's assertions represents sufficient proof that he was incompetent to stand trial. Applying Strickland, petitioner has neither shown that counsel failed to provide reasonably effective assistance nor that the outcome of the trial would have been different had she requested a competency hearing.
Accordingly, this Court finds that the petition and the record show that petitioner is not entitled to relief based upon his claims and it is hereby ORDERED that petitioner's motion is denied, that his petition is dismissed and that this action shall be closed. Furthermore, inasmuch as petitioner has not made a substantial showing of the denial of a constitutional right, this Court declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253 and certifies that any appeal taken from this order would not be taken in good faith such that an appeal could be taken in forma pauperis pursuant to 28 U.S.C. § 1915 (a)(3).