Opinion
Civil Action No. 99-1682 (NHP).
August 27, 1999.
Mr. Evans Ahanotu, #l9437-050, Oakdale, La., Petitioner Pro Se.
Martin Cronin, Assistant U.S. Attorney, FAITH S. HOCHBERG, UNITED STATES ATTORNEY, Newark, N.J., Attorneys for Respondent.
LETTER ORDER ORIGINAL ON FILE WITH CLERK OF THE COURT
Dear Litigants:
This matter comes before the Court on the motion by petitioner Evans O. Ahanotu to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255. The Court has reviewed the written submissions of the parties and, for the reasons explained below, the motion by petitioner Evans O. Ahanotu to vacate, set aside or correct a sentence is DENIED. This matter was resolved without oral argument pursuant to Federal Rule of Civil Procedure 78.
STATEMENT OF FACTS
On June 18, 1996, petitioner Evans O. Ahanotu was arrested in East Orange, New Jersey, after attempting to sell heroin to an undercover law enforcement officer. Petitioner was thereafter charged with possession with intent to distribute more than 100 grams of heroin, in violation of 21 U.S.C. § 841(a)(1).On June 19, 1996, Assistant Federal Public Defender Tonianne Bongiovianni was appointed to represent petitioner. Assistant Defender Bongiovianni received a plea agreement from the United States on July 8, 1996 and recommended that petitioner accept the plea offer. Petitioner Ahanotu subsequently retained a private attorney, William O. Perkins, Jr. Petitioner then received a second plea offer from the United States, which was practically the same plea offer forwarded to Assistant Defender Bongiovianni. Mr. Perkins also advised petitioner to accept this plea offer.
On July 25, 1996, this Court accepted petitioner's plea of guilty to possession with intent to distribute more than 100 grams of heroin. Petitioner qualified for the "safety valve" provisions of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, thereby decreasing his imprisonment range from the applicable statutory minimum sentence of 60 months to the range of 37 to 46 months. On February 6, 1997, this Court sentenced petitioner to a 40 month term of imprisonment and five years of supervised release.
Petitioner filed a notice of appeal from his conviction. On April 9, 1998, the Court of Appeals for the Third Circuit affirmed petitioner's conviction. Petitioner filed the instant motion on May 24, 1999. In his petition, Ahanotu alleges that his attorney was involved in an intimate relationship with petitioner's girlfriend. Petitioner contends that such a relationship placed his attorney in an impermissible conflict of interest with petitioner, thereby tainting petitioner's guilty plea and sentencing hearing. Petitioner also claims that counsel, laboring under a conflict of interest, failed to obtain certain evidence and otherwise acted generally indifferent to petitioner's cause.
DISCUSSION
Petitioner's principal argument in this matter is that he was denied the effective assistance of counsel as guaranteed by the Sixth Amendment. Ahanotu asserts that counsel was ineffective as a result of a conflict of interest arising from counsel's intimate relationship with petitioner's girlfriend. Specifically, petitioner contends that he was denied effective assistance of counsel in his decision to plead guilty and in the pre-plea investigation and sentencing stages as a result of the conflict of interest.
In order to prevail on his claim of ineffective assistance of counsel, petitioner must satisfy a two-prong test. First, petitioner must prove that counsel's performance was so grossly deficient so as to deny the petitioner his Sixth Amendment right. See Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to prove a deficient performance, petitioner must show that counsel's representation fell below "an objective standard of reasonableness." See id. at 688. In demonstrating such deficient performance, the petitioner must show that, in effect, counsel's errors were so serious that counsel "was not functioning" as an advocate. See id. at 687.
Second, to prove ineffective assistance of counsel petitioner must also show that he was prejudiced as a result of the deficient performance of his attorney. See id. at 687. To show such prejudice, petitioner must prove that the errors of the attorney were "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. The petitioner 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.
Moreover, where an ineffective assistance of counsel claim is based upon the existence of a conflict of interest arising from counsel's multiple representation, the petitioner "must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). The mere possibility of a conflict of interest is not sufficient to collaterally attack a conviction. See id. Furthermore, once an actual conflict of interest is found the petitioner need not prove prejudice. See id. at 349-50. The Supreme Court has not expanded the standard set forth in Cuyler beyond cases involving multiple representation.
In this matter, petitioner alleges that his attorney, William O. Perkins, Jr., was involved in an intimate relationship with petitioner's girlfriend. Petitioner, however, has failed to establish that counsel's representation was so "grossly deficient" as to fall below an objective standard of reasonableness. First, Ahanotu's allegation that his attorney was engaged in intimate relations with his girlfriend is unsubstantiated in the record. Moreover, petitioner's attorney negotiated the exact same plea offer for petitioner as did the Assistant Federal Public Defender. In fact, petitioner expressed satisfaction with his attorney's performance at the plea hearing and admitted his guilt at both the plea hearing and sentencing hearing. The Court therefore finds that trial counsel's representation was not objectively unreasonable under the circumstances. As a result, petitioner has failed to satisfy the first prong ofStrickland.
Second, assuming petitioner did establish that his attorney's representation was grossly deficient, petitioner cannot demonstrate that he was prejudiced as a result. Petitioner has proffered no evidence tending to establish that, but for his attorney's alleged conflict of interest, the result of the proceeding would have been different. Indeed, as a result of entering a plea agreement, petitioner actually had his sentence decreased from a possibility of five to 40 years to 40 months.
Lastly, the Supreme Court has not extended Cuyler beyond cases involving multiple representation. Inasmuch as petitioner's case does not involve multiple representation, Cuyler is therefore inapplicable. Moreover, even if Cuyler were applicable, petitioner's claim would fail. Petitioner's contention that his attorney labored under an impermissible conflict of interest is unsupported in the record. Ahanotu has proffered no more than mere conclusory allegations with no evidence supporting his claim that a conflict of interest existed. Therefore, petitioner has failed establish an actual conflict of interest as required by Cuyler.
CONCLUSION
For the aforementioned reasons, the petition to vacate, set aside, or correct the petitioner's sentence, pursuant to 28 U.S.C. § 2255 is DENIED. Accordingly, this case is CLOSED.