Opinion
02 Civ. 310 (JSM), 99 Cr. 1263 (JSM)
November 12, 2002
To Petitioner: Ivan Nikolov, Lisbon, Ohio.
For Respondent: Edward C. O'Callaghan, Assistant United States Attorney, New York, New York.
MEMORANDUM OPINION AND ORDER
Ivan Nikolov, who was convicted on his pleas of guilty to counterfeiting charges, brings this application seeking to set aside his sentence pursuant to 28 U.S.C. § 2255.
Petitioner claims that his counsel was ineffective and that the Court committed error in calculating his Guidelines sentence. However, these claims were raised and rejected at the time petitioner was sentenced and thereafter the Second Circuit affirmed. A § 2255 application may not be used to relitigate issues which either were or could have been raised on direct appeal. United States v. Frady, 456 U.S. 1001, 102 S.Ct. 1584, 1592-93 (1982) ("Our trial and appellate procedures are not so unreliable that we may not afford their completed operation any binding effect beyond the next in a series of endless postconviction collateral attacks. To the contrary, a final judgment commands respect.") Here Petitioner expressly raised the adequacy of his counsel in the District Court in his appeal, and his claims were rejected.
For the Court to consider issues that could have been raised on direct appeal on a § 2255 petition, Petitioner must establish both cause for not raising the issue on appeal and actual prejudice. Billy-Eko v. United States, 8 F.3d 111, 113-14 (2d Cir. 1993); Campino v. United States, 968 F.2d 187, 189-90 (2d Cir. 1992). Petitioner has failed to establish either cause or prejudice.
To the extent that Petitioner seeks to satisfy the cause requirement by arguing that his appellate counsel was ineffective his argument is without merit. For Petitioner to prevail on his claim of ineffective assistance of counsel, Petitioner must establish that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). To establish prejudice "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. In Jones v. Barnes, 463 U.S. 745, 752-53, 103 S.Ct. 3308, 3313 (1983), the Supreme Court rejected the argument that appellate counsel had an obligation to raise every non-frivolous ground for reversal, stating:
There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review. This has assumed a greater importance in an era when oral argument is strictly limited in most courts — often to as little as 15 minutes — and when page limits on briefs are widely imposed. See, e.g., Fed. Rules App. Proc. 28(g); McKinney's 1982 New York Rules of Court §§ 670.17(g)(2), 670.22 (1982). Even in a court that imposes no time or page limits, however, the new per se rule laid down by the Court of Appeals is contrary to all experience and logic. A brief that raises every colorable issue runs the risk of burying good arguments — those that, in the words of the great advocate John W. Davis, "go for the jugular," Davis, The Argument of an Appeal, 26 A.B.A.J. 895, 897 (1940) — in a verbal mound made up of strong and weak contentions. See generally, e.g., Godbold, Twenty Pages and Twenty Minutes — Effective Advocacy on Appeal, 30 Sw.L.J. 801 (1976).
Here, appellate counsel's choice of issues to raise on appeal was well within the range of tactical strategy that is left to the professional judgment of defense counsel, and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
For the foregoing reasons, the petition for relief pursuant to 28 U.S.C. § 2255 is denied and the action is dismissed. In addition, pursuant to 28 U.S.C. § 1915 (a), the Court certifies that an appeal from this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 920-21 (1962). The Court determines that the petition presents no question of substance for appellate review and that Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2); see Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.