Opinion
11 Cv. 2175 (CM) 08 Cr. 523 (CM)
04-17-2013
LETTERIO DECARLO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
DECISION AND ORDER DENYING PETITIONER'S MOTION TO VACATE PURSUANT TO TITLE 28 U.S.C. § 2255 :
Letterio DeCarlo has filed a motion pursuant to Title 28, United States Code, Section 2255, claiming ineffective assistance of counsel, and seeking to withdraw his guilty plea or, in the alternative, to file an appeal from his sentence. DeCarlo's motion is without merit and is denied. There is no need for a hearing.
Background
On June 18, 2008, an indictment (the "Indictment") charging petitioner Letterio DeCarlo, along with Thomas Dono and Edmund Boyle, with (1) murder in aid of racketeering in violation of Title 18, United States Code, Section 1959(a)(1), and (2) murder of a federal informant in violation of Title 18, United States Code, Sections 1512(a)(1)(C) and (a)(3)(A), was unsealed in the United States District Court for the Southern District of New York. Both counts of the Indictment carried a maximum penalty of death and a mandatory minimum sentence of life imprisonment.
Petitioner was presented and arraigned on the charges in the Indictment on July 2, 2008. Alan Haber, Esq., was appointed as counsel for petitioner pursuant to the Criminal Justice Act. Petitioner entered a plea of not guilty. The other two defendants each retained private counsel.
Subsequently, on July 10, 2008, the Court appointed Frederick Cohn, Esq., as learned counsel for petitioner to assist petitioner in seeking to remove the death penalty as a potential consequence of conviction. Thereafter, counsel successfully obtained an agreement from the Government that the death penalty would not be sought in the matter.
On December 15, 2008, a superseding indictment was filed adding an additional count against petitioner and his co-defendants. In addition to the murder in aid of racketeering and murder of a federal informant counts, petitioner was charged with participating in a racketeering conspiracy in violation of Title 18, United States Code, Section 1962(d). The new count carried a maximum prison sentence of either 20 years' imprisonment or, if the jury were to find that the conspiracy involved murder as a racketeering act, the maximum sentence would be life imprisonment.
Petitioner filed various pretrial motions. On July 9, 2009, the Court issued a Decision and Order denying most of the defendant's motions.
On December 21, 2009, petitioner consented to the filing of a superseding information (the "Superseding Information") and pled guilty to that charging instrument pursuant to a plea agreement with the Government. The Superseding Information charged petitioner with (1) conspiracy to murder Frank Hydell in order to advance his position within the Gambino Organized Crime Family in violation of Title 18, United States Code, Section 1959 (a) (1), and (2) with conducting an illegal gambling operation in violation of Title 18, United States Code, Section 371.
Petitioner pled guilty to those charges pursuant to a plea agreement the same day that they were filed. During the plea proceeding, the Court advised petitioner that a purpose of the hearing was to ensure that petitioner was "fully aware of all [his] rights and that any waiver of those rights that [he chooses] to make . . . is knowing and voluntary." (December 21, 2009 Plea Hearing Transcript ("12/21/09 Tr.") at 3-4 (attached hereto as Exhibit A)). The Court then proceeded to inquire of petitioner as to whether he had adequately consulted with his attorney with respect to the plea. Specifically, with respect to petitioner's waiver of indictment, the Court asked whether petitioner had the opportunity to discuss the filing of the Superseding Information with Mr. Haber and understand its legal implications. Petitioner responded that he had in fact discussed the matter with Mr. Haber. (Id. at 9). The Court went on to confirm that petitioner's waiver of indictment was voluntary and that petitioner had not been coerced in any way, including "an[y] improper threat against [him] or some of [his] loved ones." (Id. at 9-10).
The Court also ensured that petitioner was satisfied with Mr. Haber's representation of him in the matter. The Court informed petitioner that "if you were to be dissatisfied with Mr. Haber's services, you would be entitled to apply to the Court for a new attorney to represent you." (Id. at 4). In response, petitioner answered that he understood and never indicated that he was less than satisfied with Mr. Haber's assistance. (Id. at 4-5).
Thereafter, the Court inquired as to petitioner's understanding of the plea agreement. Among other things, the Court confirmed that petitioner had had the opportunity to discuss the plea agreement with Mr. Haber and he signed the agreement of his own free will. (Id. at 19-20). The Court pointed out that, under the agreement, petitioner was "agreeing that no matter what I sentence you to, you are not going to take an appeal from the sentence or bring a habeas corpus proceeding down the line or some kind of legal challenge." (Id. at 21-22). Petitioner responded that he understood the plea waiver. (Id. at 22). The Court further asked petitioner whether "anyone has threatened you or coerced you or pressured you or one of your loved ones improperly in order to get you to plead guilty to these charges?" Petitioner responded, "No, your Honor." (Id. at 28). In addition, petitioner confirmed that no promises other than what was set forth in the plea agreement had been made to him. (Id. at 28-29). Petitioner also agreed that no one had "made any specific promises to [him] about what sentence [the Court] will impose upon [him] in this matter." (Id. at 29).
Because the applicable guidelines range in the plea agreement exceeded the statutory maximum sentence, the plea waiver was fixed at the statutory maximum—15 years' imprisonment—or below.
The Court then requested that petitioner describe his participation in the crimes charged in the Superseding Information. Petitioner first stated that "[o]n or about April 28, 1998, within the Southern District of New York and elsewhere, I conspired with others to murder Frank Hydell. Specifically, I had discussion with others about killing Hydell . . . I was part of an association . . . that engaged in activities that affected interstate commerce, and this discussion to murder Hydell was in the furtherance of this association." (Id. at 38). Petitioner then went on to allocute that "[t]hroughout the mid '90s through 1999 within the Southern District I managed an illegal gambling operation, specifically, a card game which involved five or more persons and which continued in operation for more than thirty days and had gross revenues of $2,000 in a single day." (Id.)
At the conclusion of the plea allocution, the Court asked petitioner whether "in light of everything that has been said," petitioner chose to still plead guilty to the charges in the Superseding Information. Petitioner responded that he did and his guilty plea was accepted by the Court. (Id. at 39-40).
On March 22, 2010, the Court sentenced petitioner to 120 months' imprisonment for Count One (conspiracy to commit murder in aid of racketeering) and 60 months' imprisonment for Count Two (conspiracy to conduct a gambling operation) to run consecutive. In addition, petitioner's combined sentence in this case—180 months' imprisonment—was ordered by the Court to run consecutive to a prior sentence that petitioner was serving from a conviction in the Eastern District of New York. No appeal was filed.
The Petition
On March 24, 2011, the instant habeas application was filed with the Court. Petitioner argued that Mr. Haber failed to file a notice of appeal despite petitioner's alleged request that he do so. (3/34/11 Habeas Motion at 1-2). Petitioner further claimed that "on appeal [he] will show that he did not receive reasonable effective assistance from counsel when deciding to plead guilty . . . [and] [t]herefore, he cannot be bound by that plea." (Id. at 3). Petitioner went on to allege that Mr. Haber was ineffective for various reasons, including Mr. Haber's health at the time. (Id. at 5).
In an affidavit submitted in connection with his motion (the "DeCarlo Aff."), petitioner set forth additional allegations with respect to his claim of ineffective assistance of counsel. Among other things, petitioner claimed that:
"[t]wo days after I was sentenced attorney Haber visited with me at the MDC Brooklyn. He was concerned with how I was feeling because he knew I was innocent for the murder of Frank Hydell. We also spoke on my desires to file an appeal, specifically on my innocence of the Hydell murder, as well as issues concerning double jeopardy, statute of limitations, and both the maximum and consecutive sentence[s] imposed by the [C]ourt. During our conversation attorney Haber was concerned that I could not file an appeal because when I pled guilty, my plea agreement waived my right to appeal the sentence. Although he did explain that he felt filing an appeal would be useless in my case, I still advised him I wished to file a notice of appeal and appeal in the case.(DeCarlo Aff. at 2-3 (attached hereto as Exhibit B)).
Thereafter, in compliance with the Court's procedures set forth in Douglas v. United States, No. 09 Civ. 9566 (CM), 2011 WL 335861 (S.D.N.Y. Jan. 28, 2011), petitioner executed a waiver of the attorney-client privilege and Mr. Haber was instructed to file a responding affidavit in this case.
In a filing dated June 22, 2012, petitioner amended his habeas application alleging that he should be permitted to withdraw his guilty plea pursuant to the Supreme Court's recent decisions in Lafler v. Cooper, 132 S.Ct. 1376 (2012), and Missouri v. Frye, 132 S.Ct. 1399 (2012). (6/22/12 Habeas Motion at 8).
On September 6, 2012, Mr. Haber submitted a sworn affidavit (the "Haber Aff.") in connection with petitioner's application. In that affidavit, Mr. Haber stated that "[s]everal days after Mr. DeCarlo's sentencing I visited him in the MDC jail to discuss whether or not he wanted me to file a notice of appeal on his behalf." (Haber Aff. at ¶6 (attached hereto as Exhibit C)). Mr. Haber went on explain that "we discussed the legal issues and Mr. DeCarlo ultimately told me he did not want me to file a notice of appeal." (Id. at ¶7).
Applicable Law
A defendant seeking to attack his conviction or sentence based on the allegedly ineffective assistance of his counsel must: (1) overcome a "strong presumption" that his counsel's conduct was reasonable and show that his representation "fell below an objective standard of reasonableness" under "prevailing professional norms"; and (2) "affirmatively prove prejudice," that is, show that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 693-94 (1984); accord United States v. Torres, 129 F.3d 710, 716 (2d Cir. 1997); United States v. Arnold, 126 F.3d 82, 89 (2d Cir. 1997); United States v. Tarricone, 21 F.3d 474, 475 (2d Cir. 1993). The burden is on the defendant to establish both elements. Strickland, 466 U.S. at 687.
In determining prejudice to the defendant, the relevant inquiry is whether there is a reasonable probability that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "[P]urely speculative" arguments about the impact of an error do not establish prejudice. United States v. Weiss, 930 F.2d 185, 199 (2d Cir. 1991). A court may consider the question of prejudice first because it is often "easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice[.]" Strickland, 466 U.S. at 697.
Request to Withdraw Plea on Ineffective Assistance of Counsel Grounds
Petitioner "asserts that [Mr. Haber's] 'bad legal advice' led him to plea[d] guilty, despite his willingness not to." (6/22/12 Habeas Motion, at 8). Petitioner argues that the Lafler and Frye decisions stand for the proposition that "when counsel gives a defendant 'bad legal advise' about a plea negotiation, then he is ineffective." Neither Lafler nor Frye provide a basis to disturb petitioner's conviction.
The Frye case addressed the question of "whether defense counsel has the duty to communicate the terms of a formal [plea] offer" to his or her client. Frye, 132 S.Ct. at 1408. The Supreme Court held that "as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." Id. Here, there is no dispute that the offer made by the Government to Mr. Haber was in fact conveyed to petitioner. Indeed, the offer that was conveyed was accepted and is embodied in plea agreement signed by petitioner. Frye is, therefore, wholly inapplicable to the instant habeas application.
In Lafler, the defendant rejected a favorable plea offer based on poor legal advice from his attorney. Lafler, 132 S.Ct. at 1383. The defendant in Lafler was offered a favorable plea deal that greatly reduced his potential prison term, but his attorney advised him to reject the offer because, according to the attorney, "the prosecution would be unable to establish [defendant's] intent to murder [the victim] because [the victim] had been shot below the waist." Id. at 1383. The Supreme Court ruled that "[i]f a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence." Id. at 1387. Here, of course, petitioner did not go to trial. Instead, he accepted a plea offer that reduced the applicable statutory maximum to 15 years' imprisonment in the face of charges which potentially carried a mandatory minimum sentence of life and a maximum sentence of life. So, unlike the defendant in Lafler, petitioner suffered no prejudice in accepting his plea offer.
In any event, nothing in petitioner's papers supports the allegation that Mr. Haber was ineffective in advising petitioner to accept the plea offer because the offer was beneficial to petitioner. The plea offer permitted petitioner to plead to crimes carrying a much lower statutory maximum than the crimes charged in the Superseding Indictment, which also carried a mandatory minimum sentence. This is evident from the fact that petitioner's co-defendant, Edmund Boyle, proceeded to trial and was convicted of a RICO conspiracy. Boyle faced a maximum sentence of life (because the jury found that murder and witness tampering were racketeering acts in furtherance of the criminal enterprise) and was ultimately sentenced to 20 years' imprisonment, five years more than petitioner.
In addition, petitioner's ancillary complaints relating to Mr. Haber's medical problems and "lethargic and detached" tone during telephone calls, even if true, do not demonstrate ineffectiveness. From the mix of those complaints and others proffered by petitioner in his various filings, the central argument advanced by petitioner seems to be his new claim of innocence for the crime that he already pled guilty to under oath. That claim is transparently false and self-serving in light of petitioner's sworn statements and the proof adduced at the Boyle trial. The bottom line is that petitioner received and accepted a favorable plea offer which his attorney negotiated for him. There was nothing ineffective about Mr. Haber's advice and the complaints petitioner now asserts in his habeas application are completely contrary to the satisfaction that he expressed with Mr. Haber at the time of his guilty plea.
In another filing submitted by petitioner on November 18, 2011, he makes a series of unsupported claims that his due process rights were violated. For example, petitioner argues that "I was denied due process by the actions and conduct of the Government, which mounted a vindictive and malicious prosecution against me on account of the fact that I am of Italian-American descent and a resident of New York City." (November 18, 2011 Certification of Petitioner Letterio DeCarlo at 2). Nothing in the records supports this assertion.
Notice of Appeal Claim
The Second Circuit has held that failure to file a notice of appeal pursuant to a client's instruction is per se ineffective assistance of counsel even if the client previously waived his or her right to appeal in a plea agreement. Campusano v. United States, 442 F.3d 770, 771-72 (2d Cir. 2006). In this case, Mr. Haber, a long time member of the CJA panel for the Southern District of New York, has filed an affidavit clearly stating that petitioner never asked him to file a notice of appeal in their post-sentencing meeting. (Haber Aff. at ¶7). While petitioner has filed his own affidavit to the contrary, that affidavit is so filled with misrepresentations that there is no need for a hearing. See Douglas, 2011 WL 3355861, at *4 ("Requiring mandatory production of incarcerated petitioners in Section 2255 cases would raise serious issues of cost and security . . . as well as calendar congestion . . . There is no reason that an attorney's initial testimony would need to be otherwise than by affidavit . . . It is the Court, not the ABA, that is best positioned to decide whether or not to order live testimony in order to resolve credibility issues.")
Petitioner's affidavit simply lacks credibility. In setting forth the circumstances of the meeting at which petitioner claims that he informed Mr. Haber that he wanted to file a notice of appeal, petitioner alleged that Mr. Haber "was concerned with how I was feeling because he knew that I was innocent for the murder of Frank Hydell." Moreover, petitioner claimed that he advised Mr. Haber that he wanted to appeal "specifically on [his] innocence of the Hydell murder." (DeCarlo Aff. at 2-3). This version of the conversation belies belief. Petitioner had pled guilty, under oath, to conspiring to murder Hydell. The proof at the trial of Boyle further corroborated petitioner's own admissions of guilt at the plea hearing. Moreover, in the correspondence between Mr. Haber and petitioner (which petitioner attached to his November 18, 2011 submission), there is no reference to these alleged protestations of innocence. Compared with Mr. Haber's straightforward affidavit, which is entirely consistent with how the conversation would reasonably have played out (there was a discussion of appealing, but given the fact the plea waiver precluded such an appeal, they opted to forego filing a notice of appeal) and Mr. Haber's longstanding position on the CJA panel, petitioner has failed to make a showing that there was in fact a request by him to file a notice of appeal.
The petition is denied.
This Court declines to issue a certificate of appealability because there has been no "substantial showing of the denial of a constitutional right." 28 U.S.C. Section 2253(c)(2); see United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997). Further, the Court finds, pursuant to 28 U.S.C. Section 1915(a)(3), that any appeal from an order denying Laor's motion would not be taken in good faith. See Feliz v. United States, 2002 WL 1964347, at *7 (S.D.N.Y. 2002).
This constitutes the decision and order of the Court. April 17, 2013
/s/_________
U.S.D.J.