Summary
noting "the awkwardness of asking trial counsel to address the issue of his own alleged ineffectiveness"
Summary of this case from Durand v. GoguenOpinion
CIVIL ACTION NO. 06-CV-10489-RGS.
July 11, 2007
MEMORANDUM AND ORDER ON PETITIONER'S MOTION TO VACATE SENTENCE
On March 17, 2006, Michael Flemmi, a federal inmate and former Boston police officer, filed this pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Flemmi was sentenced on September 9, 2002, to a term of 120 months after being found guilty by a federal district court jury of perjury, obstruction of justice, and several firearms-related offenses, including the illegal possession of machine guns. Flemmi's motion to vacate asserted two grounds: (1) that he was entitled to re-sentencing in light of Booker v. United States, 543 U.S. 220 (2005) — a case decided on January 12, 2005, some two years after his sentencing hearing — and that his counsel was ineffective at his original sentencing for failing to anticipate Booker; and (2) that his counsel was ineffective in advising him not to testify at trial. After a hearing on July 26, 2006, at which Flemmi was represented (at the court's request) by his trial counsel, the court issued a brief order on August 11, 2006, denying the first ground of the petition, noting that the Court of Appeals had rejected any suggestion thatBooker applied retroactively, and a fortiori counsel could not have been ineffective in failing to preserve a nonexistent ground of appeal. See Cirilo-Munoz v. United States, 404 F.3d 527, 533 (1st Cir. 2005). Given the awkwardness of asking trial counsel to address the issue of his own alleged ineffectiveness, the court declined to hear argument on the second ground. Flemmi was given leave to obtain substitute counsel. Other than filing a motion for court-appointed counsel, which was denied, Flemmi took no further action.
Flemmi's direct appeal of his conviction and sentence was rejected by the First Circuit Court of Appeals. See United States v. Flemmi, 402 F.3d 79 (2005).
Flemmi was accused of aiding and abetting a notorious South Boston-based organized crime group by hiding an arsenal of illegal firearms in his mother's home.
While it may be that Flemmi has abandoned the petition, the court will for the sake of completeness now deny the second ground as well. The rules governing the analysis of an ineffectiveness of counsel claim are well established. A defendant must demonstrate both that trial counsel's performance fell below an objective standard of reasonable effectiveness, and that counsel's deficient performance was so prejudicial as to undermine confidence in the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 688-689 (1984). "Judicial scrutiny of counsel's performance must be highly deferential," and "every effort [should] be made to eliminate the distorting effects of hindsight." Id. at 689. "First, a reviewing court must assess the proficiency of counsel's performance under prevailing professional norms. . . . This evaluation demands a fairly tolerant approach; after all, the Constitution pledges to an accused an effective defense, not necessarily a perfect defense or a successful defense. . . . The second line of inquiry . . . entails a showing of `a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994) (a showing of actual prejudice is a necessary element in almost all cases involving allegations of attorney error).
Reasonable advice on trial tactics and litigation strategy simply does not lend itself to a successful claim of ineffective assistance of counsel. Cofske v. United States, 290 F.3d 437, 443-444 (1st Cir. 2002). See United States v. LaBonte, 70 F.3d 1396, 1413 (1st Cir. 1995) (an attorney's inaccurate prediction of the length of a petitioner's sentence will almost never rise to the level of ineffectiveness). The court, having presided at Flemmi's trial, and being fully familiar with the tangled web in which Flemmi was enmeshed, is of no doubt that his testimony would have invited a mountain of damaging impeachment evidence on cross-examination that not only would have hastened his conviction, but most probably would have led to a further enhancement of his sentence. At the very least, counsel's advice fell well within "the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. See United States v. Norwood, 798 F.2d 1094, 1100 (7th Cir. 1986) (where by testifying, a defendant would have permitted the government to bring a prior conviction for a similar crime before the jury, counsel's "decision not to place the defendant on the stand is a classic example of what might be considered sound trial strategy.").
ORDER
For the foregoing reasons, Flemmi's motion to vacate sentence is DENIED with prejudice. The case will be closed.
SO ORDERED.