Opinion
97 Civ. 3252 (HB), 95 Cr. 258-01 (HB)
November 22, 2000
OPINION ORDER
Asserting a denial of his constitutional right to effective assistance of counsel, Petitioner Abdul Ghafoor Khan ("Khan") appeals to this court pursuant to 28 U.S.C. § 2255 to vacate his sentence. In his objections to the Report and Recommendation of Magistrate Judge Theodore H. Katz, petitioner alleges that his trial counsel were constitutionally ineffective on four grounds: (1) failure to investigate the facts of the case prior to the commencement of the trial, (2) failure to negotiate a plea bargain, (3) failure to inform petitioner of the risks involved in an attempted and fruitless cooperation agreement with the Government and finally (4) failure to file a timely appeal. For the reasons set forth below, the Report and Recommendation of Magistrate Judge Katz is adopted and the petitioner's motion to vacate his sentence is DENIED and dismissed with prejudice.
I. BACKGROUND
On February 21, 1995, law enforcement arrested Melvin Mendelsohn ("Mendelsohn") and two female couriers at O'Hare International Airport in Chicago in connection with the importation of approximately 13 pounds of Pakistani heroin. (Trial Transcript ("Trial Tr.") at 30-32, 38-39, 58-59.) Mendelsohn and one of the couriers agreed to make a controlled delivery to Mohammad Yousaf ("Yousaf"), and Yousaf was arrested on the following day in New York. (Trial Tr. 42-43, 45, 94.) Yousaf then agreed to cooperate with law enforcement and under the direction of agents, placed a telephone call to Khan, asking him to "come and take your bag." (Trial Tr. at 96-97, 203-10, 96-98.) Yousaf was to surreptiously record the meeting with Khan, but aside from the header recorded by the agents, the tape was blank. (Trial Tr. 98-100, 141-43, 159-62, 195-96, 204-06, 210-17.)
Khan was arrested after taking the suitcase purported to have heroin in it. (Trial Tr. 33, 100-01, 208-10.) As law enforcement frisked Khan, he motioned towards Yousaf and told the agents to "get him, get him, before he gets away." (Trial Tr. at 229.) Upon being informed by an agent that he was being arrested for importation of 13 pounds of heroin Khan purportedly said "No, no, it's not supposed to be that much." (Trial Tr. at 230-33.)
On March 24, 1995, petitioner was charged in a single count indictment with conspiring to distribute and possess with intent to distribute more than one kilogram of heroin in violation of 21 U.S.C. § 812, 841 (a)(1), and 841(b)(1)(A). Thereafter, on May 30, 1995, the Government filed a superseding indictment against petitioner which enlarged the time period of the conspiracy and added a number of importations of heroin to the conspiracy. ((Report and Recommendation of Magistrate Judge Katz ("RR.") at 2.)
Following Khan's arrest, the Court appointed James Roth as counsel pursuant to the Criminal Justice Act. (Transcript of Evidentiary Hearing ("Hr.") at 4-6.) Following a meeting wherein counsel and Khan discussed the mandatory minimums under the Federal Sentencing Guidelines and the merits of the Government's case against him, Khan decided to plead guilty. (Hr. at 10.) Shortly thereafter, on the recommendation of a fellow prisoner, Khan decided to retain private counsel in the person of Ivan Fisher ("Fisher"). (Hr. at 11-12.) Fisher and his associate Ellyn Bank ("Bank") represented the petitioner through sentencing. Petitioner testified that although he hired private counsel, at a considerable cost, "I was prepared to take the plea and plead guilty, but I wanted to get the best advantage by pleading guilty." (Hr. at 63.) Rather than pleading guilty, petitioner went to trial and was convicted of participating in a conspiracy to distribute narcotics. (RR. at 3.)
At trial, the Government proved that from on or about September 1993 through February 1995, Khan participated in a conspiracy to import and distribute heroin in and around Manhattan. The Government's proof at trial consisted of cooperating witness testimony, a drug ledger, and statements made by the accused upon being arrested. A jury found Abdul Ghafoor Khan guilty of participating in a conspiracy to import and distribute narcotics on June 29, 1995.
Prior to sentencing, Khan, Bank, and an Assistant United States Attorney participated in a proffer session. According to Bank, she and Fisher agreed to advise Khan to waive filing an appeal "as a sign of good faith to the Government" and to cooperate with the Government in order to obtain a reduction of sentence for substantial assistance pursuant to Fed.R.Crim.P. 35(b). (Hr. 249.) The Government determined that Khan's proffered information was insufficient to warrant a motion for reduction of sentence; accordingly the Government did not enter into a cooperation agreement with the defendant. (RR. at 24-25.)
The Probation Office calculated Khan's applicable offense level at 36, generating a Guideline range of 188-235 months imprisonment. At sentencing petitioner moved for a two-level reduction under § 2D1.1(b)(4) and § 5C1.2 of the United States Sentencing Guidelines; the so-called "safety valve" provision was found applicable and that reduction was granted. Petitioner further sought a reduction for acceptance of responsibility because he attempted to cooperate with the Government; this motion was denied. After this Court calculated the appropriate downward departure, petitioner s Guideline range was 151-188 months and he received a sentence of 168 months.
"The Sentencing Reform Act, as amended in 1994, contains a safety valve that provides that the district court "shall impose a sentence pursuant to [the Guidelines] without regard to any statutory minimum sentence' if the defendant meets certain criteria." United States v. Conde, 178 F.3d 616, 619 (2d Cir. 1999) (quoting 18 U.S.C. § 3553 (f)). The statute requires that (1) the defendant have not more than one criminal-history point; (2) the defendant not have perpetrated any violence or possess a firearm or other dangerous weapon . . . in connection with the offense; (3) no one was killed or severely hurt as a result of the offense; (4) the defendant was not an organizer, leader, manager, or supervisor and was not engaged in a continuing criminal enterprise; and (5) that no later than the sentencing hearing, the defendant truthfully provides the Government all information and evidence the defendant has concerning the offense." Id.
In 1997, Khan filed a petition for a writ of habeas corpus to vacate his conviction on the grounds that he was denied the effective assistance of counsel. This court referred the matter to Magistrate Judge Katz who determined that an evidentiary hearing was necessary in order to clarify ambiguities in the submissions. Alan Nelson, Esq. was appointed to represent the petitioner on this habeas appeal. Judge Katz noted that Mr. Nelson ably represented petitioner in the course of this habeas petition and was a forceful advocate for his client throughout this process. (RR. at 2, n. 1.) The evidentiary hearing revealed the following relevant facts.
At the hearing, Khan testified that (1) he desired to plead guilty and was coerced into proceeding to trial by his trial counsel, Fisher (Hr. at 20-21); (2) Fisher was more interested in discussing his fee than he was in ascertaining the merits of the case (Hr. at 19-21, 29, 65); (3) he repeatedly conveyed his desire to plead guilty to Fisher who instructed him to "just keep quiet," (Hr. at 21, 36); (4) his counsel never discussed with him waiving his right to appeal in consideration of the possibility of receiving a lower sentence or agreed to waive his right to appeal (Hr. at 50-52.); and finally (5) Fisher told him that he would "put our plan to appeal in motion." (Hr. at 50.)
Both Fisher and Bank testified at the hearing and each contradicted Khan's testimony. (RR. at 8-10, 10-12.) Counsel testified that (1) Khan maintained his innocence throughout the proceedings and was neither truthful nor helpful in his own defense, (Hr. at 134), (2) the Government did not discuss a plea offer with counsel, (RR. at 24-25), (3) Fisher described the case as "triable" but made no promise of acquittal, (Hr. at 109), and finally (4) after conviction petitioner agreed to waive his right to appeal as a show of good faith to the Government with whom he wished to cooperate. (Hr. at 144-145, 191-193.)
Having reviewed the record in its entirety, including the transcript of the evidentiary hearing, the petitioner's affidavit, the petitioner's objections to the Report and Recommendation and the Government's Memorandum in Opposition thereto, it is the opinion of this Court that Magistrate Judge Katz's recommendation of dismissal with prejudice be and is hereby adopted.
II. DISCUSSION
A. Standard of Review
Rule 72 of the Federal Rules of Civil Procedure, as well as the Federal Magistrate's Act, 28 U.S.C. § 631-639, designate the standard of review a district court should apply when reviewing a magistrate judge's order. 28 U.S.C. § 636 (b)(1) grants a district court ample discretion in considering a magistrate judge's recommendations; the court is not bound by the findings, even where no party objects to them. See Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). Where, as here, timely objection has been made to the magistrate judge's determination the district court's review is de novo; the district court may "accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]." 28 U.S.C. § 636 (b)(1).
Furthermore, the district court may execute a sua sponte review of any segment of the magistrate's report. 7 Pt. 2 Moore's Federal Practice, ¶ 72.04[10.-1], at 72-95. "[W]hile the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard." Thomas v. Am, 474 U.S. 140, 153 (1985); see also Moore v. Scully 956 F. Supp. 1139, 1143 (S.D.N.Y. 1997).
"It is well-settled that on federal collateral review, the petitioner bears the burden of proving that his constitutional rights were violated." Whitaker v. Meachum, 123 F.3d 714, 716 (2d Cir. 1997) (per curiam) (citing Walker v. Johnston, 312 U.S. 275, 286 (1941) (petitioner has the burden of "sustaining his allegations by a preponderance of evidence" on collateral review)); Polizzi v. United States, 926 F.2d 1311, 1321 (2d Cir. 1991) ("petitioner generally bears the burden of proof throughout the habeas proceeding") (internal quotation marks omitted); Wolfrath v. LaVallee, 576 F.2d 965, 971 (2d Cir. 1978) ("The burden of proving a constitutional claim on federal habeas corpus review lies with the petitioner."))
B. Petitioner's Objections
In his objections to Magistrate Judge Katz's Report and Recommendation, Khan claims that he was deprived of effective assistance of counsel because his trial counsel, Fisher and Bank (1) failed to investigate his "one plausible line of defense", i.e. counsel failed to interview individuals who witnessed how Khan was "duped" and who could "explain how the deception was levied against [Khan]" (Petitioner's Memorandum in Opposition ("Pet. Mem.") at 3); (2) failed to seek a plea agreement from the Government; (3) failed to disclose the risks involved in going to trial; and finally (4) failed to file a timely appeal. In other words, petitioner claims that his trial counsel provided constitutionally deficient representation in violation of his Sixth Amendment right to effective assistance of counsel.
C. Strickland Standard
In order to prevail on a claim of ineffective assistance of counsel, petitioner must show that defense counsel's representation "fell below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 688, and 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. In other words, in this case, petitioner must show that but for counsel's errors, he would have pleaded guilty.
When considering a claim of ineffective counsel the court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," bearing in mind that "[t]here are countless ways to provide effective assistance in any given case" and that "[e]ven the best criminal defense attorneys would not defend a particular client in the same way." Strickland, 466 U.S. at 689. The ineffectiveness inquiry should focus "on the fundamental fairness of the proceeding whose result is being challenged." Id. at 696. The court's central concern is not with "grad[ing] counsel's performance" id at 697, but with discerning "whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Id. at 696.
D. Failure to Investigate
Khan alleges that his trial counsel, Fisher and Bank, were ineffective because they failed to investigate the facts of the case prior to the commencement of trial. (Pet. Mem. at 1, 3.) Specifically, petitioner claims that trial counsel (1) failed to investigate any of the information or facts relayed to them by petitioner, (2) failed to question individuals who petitioner made known to trial counsel — individuals whom petitioner alleges could have corroborated petitioner's claim that he was an innocent man who had been "duped" or "set up" by Government cooperators. (Id.)
In his objections to the Report and Recommendation, petitioner appears to take issue with the fact that the record of the evidentiary hearing does not provide a comprehensive overview of the pre-trial investigation performed by Fisher and Bank. While this fact may dismay the petitioner, it should not come as a surprise to him. At the evidentiary hearing, petitioner's habeas counsel did not pursue a line of inquiry designed to reveal trial counsel's supposed failure to uncover facts tending to prove petitioner's guilt. In fact, the petitioner filed an affidavit dated March 15, 2000 in which he stated that "I seek the sole remedy of re-sentencing premised upon my pre-trial desire to accept responsibility." (Pet. Affidavit ¶ 8.) Khan's objections to the Report and Recommendation squarely contradict his sworn affidavit in that petitioner states that he now seeks the remedy of a new trial and vacatur of sentence because counsel failed to investigate. (Pet. Mem. at 5.) In his objections, Khan also states that "an innocent person was wrongfully convicted" a statement which is directly contradicted by the fact that he testified before Magistrate Judge Katz that he repeatedly told his trial counsel that he wished to plead guilty, and until September of this year, sought only a downward departure for acceptance of responsibility.
In Strickland, Justice O'Connor, writing for the majority, entered the following observations on the duty to conduct a reasonable pre-trial investigation:
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions.Strickland at 690-91 (citation omitted).
The credible evidence indicates that Fisher and Bank conducted a constitutionally effective investigation. Fisher testified that he spent upwards of 50 hours with Khan prior to trial in preparation for trial. (Hr. 110.) Bank testified that she also spent time with Khan, without Fisher present, adding to the total hours of trial preparation. Fisher testified that he engaged in "intense" and ultimately "unavailing" attempts to determine petitioner's truthfulness with regard to his claims of innocence, even urging his client to submit to a polygraph examination. (I-Jr. at 112-13.) Fisher's research into the past of one of the cooperating witnesses, Mendelsohn, revealed that he was highly vulnerable to cross examination because of "some odious prurient conduct he had visited upon young female students at some of the best colleges in America." (Hr. at 113.) However, counsel was unable to utilize this information because the Government chose not to have Mendelsohn testify. Fisher hired an expert, Ernest Aschkenasy, to whom he paid $4,000, to investigate the blank tape that the Government proffered at trial. (Hr. at 116.) After the Government superceded the original indictment, Fisher moved for a continuance, which this Court granted, in an effort to gain additional time to prepare to defend against the expanded charges. Finally, Fisher testified that he had Charles Kelly, a private investigator, look into Khan's account of his employment history, in hopes that Khan's background of employment at menial labor would bolster his claims of innocence and noninvolvement with drug trafficking. (Hr. at 180.)
Trial counsel were apparently unable to unearth evidence sufficient to create reasonable doubt in the minds of the jury, which is not surprising in light of the fact that, until petitioner filed his objections, he had virtually insisted that he was guilty, seeking only the remedy of re-sentencing and testifying that he had wished to enter a guilty plea rather than proceed to trial. Petitioner's eleventh hour protestations of innocence are self-serving, incredible, and directly contradicted by his sworn affidavit and testimony under oath at the evidentiary hearing before Judge Katz.
E. Failure to Pursue a Guilty Plea and Inform of the Risk of Trial
Petitioner further argues that Fisher's failure to pursue a guilty plea constitutes ineffective counsel and that he was denied effective counsel because he was neither informed of the consequences of proceeding to trial nor made aware of the perils of a post-conviction attempt at cooperating with the Government. (Pet. Mem. at 2-5.) In this case, counsel for petitioner did not seek a plea offer from the government, and the government did not extend a plea offer.
Petitioner, in his post-hearing brief, argues that Fisher had a professional obligation to counsel his client as to the advisability of pleading guilty rather than going to trial and that Fisher failed to discharge this obligation. Fisher acknowledged at the hearing and in his affidavit that as the case got closer to trial, he felt that the evidence became more compelling. (Hr. at 174.) However, Fisher's testimony at the hearing suggests that he did not discuss the advisability of pleading guilty with his client after the superseding indictment increasing the petitioner's sentencing exposure was handed down nor after the government indicated that it intended to introduce a document at trial which their expert described as a drug ledger. (Hr. at 175.) However, Bank testified that she confronted petitioner with the purported drug ledger and counseled him to plead guilty on the eve of trial. (Tr. 207-08.) Bank also testified that she explained the Federal Sentencing Guidelines and the potential sentencing consequences of the superseding indictment with the petitioner. (Tr. 232.) Judge Katz found specifically that "both Fisher and Bank testified credibly at the hearing that, contrary to expressing his desire to plead guilty, petitioner repeatedly maintained his innocence." (RR. at 15.) This Court notes that there is a discrepancy in the testimony of Fisher and Bank as to how exactly petitioner wanted to proceed on the eve of trial — Fisher testified that petitioner expressed a desire to cooperate, but steadfastly maintained his innocence; Bank testified that she was not aware of a pre-trial desire to cooperate. (Tr. 170-71; 247-48.) In any event, Fisher's decision that his client should proceed to trial rather than attempt to cooperate whilst simultaneously maintaining innocence seems well within the bounds of professional discretion in light of Fisher's reasonable assessment that such a hollow offer of cooperation could do his client more harm than good and that cooperation "was not a good idea because it did not seem to me that Mr. [Khan] had the stuff for which 5K1.1 letters are written." (Transcript of January 11, 1996 Sentencing ("Sent. Tr.") at 30.) Indeed, as it turns out, Fisher's assessment was correct — the Government considered Khan's pre-sentence proffer of little value. Khan proposed cooperation that was "contingent on several individuals coming [to the United States] from Pakistan" at some unspecified point in the future" and was thus "completely prospective." (Sent. Tr. at 26.) On the record presented here, petitioner cannot sustain his claim that counsel's decision to forgo cooperation with the Government constituted ineffective assistance of counsel.
Petitioner also alleges that counsel repeatedly ignored his numerous requests to seek a plea bargain and coerced him into going to trial. (Hr. at 20-21, 36.) Magistrate Judge Katz found petitioner's testimony on this score to be farfetched, calling it "uncorroborated" and "self-serving," (RR. at 13), and noting that "[t]he Second Circuit has invariably affirmed a trial judge's right to discount a habeas petitioner's uncorroborated, self-serving testimony." Slevin v. United States, 71 F. Supp.2d 348, 356 n. 7 (S.D.N.Y. 1999); see also Williams v. United States, 481 F.2d 339, 346 (2d Cir. 1973); United States v. Follette, 416 F.2d 156, 163-64 (2d Cir. 1969). Moreover, it is incumbent on the petitioner to show "objective evidence" beyond unsubstantiated, "self-serving, post-conviction testimony" that establishes a "reasonable probability" that if it were not for the failure of counsel to reasonably inform him of any plea offers and the possible consequences of going to trial, the client would likely have opted to plead guilty. See United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998). The showing required by the Gordon decision has not been made in this case. Put another way, petitioner has not satisfied the second prong of theStrickland test because the credible evidence does not bear out his claim that he would have pleaded guilty if he had been properly advised to do so. As mentioned above, Judge Katz determined that Fisher and Bank testified credibly that petitioner did not express a desire to plead guilty and "repeatedly maintained his innocence." (RR. at 15.) While petitioner may disagree in hindsight with Fisher's decision to try his case, "a lawyer must take care not to coerce a client into either accepting or rejecting a plea offer." See Purdy v. United States, 208 F.3d 41, 45 (2d Cir. 2000). I adopt Magistrate Judge Katz's view that "Fisher reasonably believed the case was triable, and that petitioner never informed counsel that he wished to plead guilty," and consequently I must reject petitioner's claim that counsel was ineffective for having proceeded to trial. (RR. at 22.)
Petitioner cites a variety of cases that stand for the proposition that the Government must abide by any representations of leniency or other promises made by prosecutors that induce defendants to cooperate. (Pet. Mem. at 4.) See generally Santobello v. New York, 404 U.S. 257 (1971);United States v. Ruggles, 70 F.3d 262 (2d Cir. 1995); United States v. Eliason, 3 F.3d 1149 (7th Cir. 1993). However, what petitioner fails to consider is that the aforementioned cases only apply to representations made by the Government. They do not and cannot apply to representations made by a defendant's counsel because such counsel is never in a position to promise leniency in exchange for cooperation, and may only suggest cooperation as a strategy. If a potential cooperator' has no information upon which the Government may capitalize the prosecutor is under no obligation to request a reduction in defendants sentence. See, e.g., United States v. Harris, 209 F.3d 156, 158 (2d Cir. 2000) (holding that the extension of minimal cooperation by a defendant seeking leniency does not trigger the Governments' obligation to file a 5K1.1 motion).
In the instant case, the record reveals that the Government determined the information Khan proffered had little value, as Khan proposition was "completely prospective" and was "contingent on several individuals coming [to the United States] from Pakistan" at some point in the future. (Sent. Tr. 26.) On the record presented here, the petitioner cannot claim that counsel's decision to seek a sentence reduction in exchange for cooperation with the Government constituted ineffective assistance of counsel.
F. Failure to File an Appeal
Finally, petitioner avers that he was denied effective assistance of counsel because his trial counsel failed to file an appeal. (Pet. Mem. at 4.) In Roe v. Flores-Ortega, ___ U.S. ___, 120 S.Ct. 1029, 1035 (2000), the Supreme Court decided the issue of whether counsel is deficient for not filing a notice of appeal when the defendant has not clearly conveyed to counsel whether he or she wishes to file an appeal. The Court began by noting that when a defendant instructs counsel to initiate an appeal and counsel fails to do so, such a mistake "cannot be considered a strategic decision" and is professionally unreasonable. Id. However, the Court made clear that "a defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his counsel performed deficiently." Id. The Court concluded that "counsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are non-frivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing."Id. at 1036. The Court further noted that "[i]n making this determination, courts must take into account all the information counsel knew or should have known." Id.
In this case, the credible evidence indicates that Khan agreed to waive his right to appeal as a gesture of good faith to the Government as part of an effort to provide sufficient post-sentencing assistance in order to obtain a sentence reduction pursuant to Fed.R.Crim.P.35. (Tr. 141-45, 193, 215.) It is not surprising that Fisher and Bank began to focus on cooperation as the best hope for their client immediately after the jury rendered a guilty verdict in light of their assessment that Khan's chances of obtaining a sentence reduction were greater than prevailing on appeal. In fact, trial counsel believed that an appeal in this case would have been frivolous. (Hr. at 144-146, 153-156, 214, 248-50.) In his post-hearing brief, Khan has acknowledged that he initially agreed to this strategy. (Pet. Post-Hearing Brief at 23.) Bank testified that she discussed the waiver of appellate rights with Khan shortly after the verdict was rendered. (Hr. at 214.) Thus, as Magistrate Judge Katz found "it is clear that counsel did consult with petitioner about the decision not to file a notice of appeal, and that petitioner expressed his agreement with their strategic recommendation that he waive his right to appeal." (RR. at 24.) I adopt the findings of the Report and Recommendation in this regard.
Petitioner further asserts that trial counsel should have, either in addition to or in place of cooperation negotiations, filed a notice of appeal and then filed a subsequent letter explaining that there were no non-frivolous issues for an appeal citing Anders v. California, 386 U.S. 738, 744 (1967). However, Anders is inapposite. Anders requires that "if, after reviewing the record, defense counsel is satisfied that there are no non-frivolous issues for appeal, defense counsel should file an Anders brief . . . and an accompanying motion seeking to be relieved as counsel." United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000). The Anders procedure applies in cases where the defendant expresses a desire to appeal but counsel sees no meritorious issues.Teieda v. United States, No. 99 Civ. 2948, 1999 WL 893275 at *5 (S.D.N.Y. Oct 18, 1999).
Finally, petitioner claims that counsel rendered ineffective assistance in failing to notify him that his proffer lacked sufficient substance to warrant a sentence reduction. Petitioner suggests that counsel should have re-conferred after his proffer was deemed insufficient in order to reconsider the decision to waive his right to appeal. But as Magistrate Judge Katz observed, "[p]etitioner had previously agreed with counsel that there were no non-frivolous arguments he could raise on appeal," and "there was no point prior to the expiration of time to file a notice of appeal, at which it became clear that cooperation would not lead to a sentence reduction. . . ." (RR. at 25.)
Petitioner fails also to satisfy the second prong of the Strickland analysis — he has not established a reasonable probability that but for counsel's failure to consult with him about an appeal, he would have timely appealed. Magistrate Judge Katz noted that in a letter to Fisher fifteen months after sentencing, petitioner did not mention a desire to proceed with an appeal. (RR. at 25-26.) Furthermore, Petitioner and his habeas counsel acknowledge that there are no non-frivolous grounds for appeal. (Affidavit of Abdul Ghafoor Khan (Pet. Affidavit), March 15, 2000, at ¶¶ 6-9 ("I have discussed with Mr. Nelson all potential appellate issues and agree that there are no non-frivolous issues to pursue other than (1) prior counsel's failure to advise me to plead guilty and (2) failure to file a notice of appeal"); see also Roe. 120 S.Ct. at 1039 ("showing nonfrivolous grounds for appeal may give weight to the contention that the defendant would have appealed"). In any event, petitioner has averred that he "withdraws any request to be permitted to file a Notice of Appeal" and acknowledges that he "raise[s] the issue of prior counsel's failure to file such notice as evidence of such counsels' ineffective representation." (Pet. Affidavit at ¶ 9.) Petitioner was convicted by a jury on June 29, 1995, and according to Bank, she later advised Khan (at Fisher's behest) to waive filing an appeal "as a sign of good faith to the Government" and to cooperate with the Government in order to obtain a reduction of sentence for substantial assistance pursuant to Fed.R.Crim.P. 35(b). (Hr. 249.) Bank testified that Khan agreed to waive his right to appeal. Sometime during August of 1995, after the deadline to file a notice of appeal had elapsed, petitioner the Government and Bank met for the first of two disappointing proffer sessions, the second coming on the day of sentencing. (Hr. at 212, 244.) The proffer sessions proved to be of little value to the Government and even less to Khan as he was left both without a Rule 35 motion for reduction of sentence or the ability to appeal his conviction. The more prudent course of action would have been to file a notice of appeal, meet with the Government and only after securing a cooperation agreement abandon the appeal. However, as Magistrate Judge Katz points out, Fisher, bank, petitioner's habeas counsel Alan Nelson and petitioner himself have all recognized that there were and are no non-frivolous grounds for appeal and indeed, "petitioner does not now seek the right to appeal his conviction as a remedy for his claim of ineffective assistance of counsel." (RR. at 26) (citing Pet. Affidavit at ¶¶ 8-9.) The Second Circuit has held that "in order to show that appellate counsel was constitutionally deficient in not filing an appeal, the petitioner must demonstrate that he asked to have an appeal filed." McHale v. United States, 175 F.3d 115, 119 (2d Cir. 1999) (citing Morales v. United States, 143 F.3d 94 (2d Cir. 1998) (per curiam)). It is telling that in his affidavit, petitioner does not state that he instructed his trial counsel to file an appeal; to the contrary he states that "I seek to withdraw any request to be permitted to file a Notice of Appeal." On these facts, it is clear that petitioner would not have appealed his conviction but for counsel's alleged failure to adequately consult with him and accordingly, adopts Magistrate Judge Katz's recommendation that petitioner's claim with respect to ineffectiveness at the appeal stage be dismissed. (RR. at 26.)
III. CONCLUSION
For the foregoing reasons, Khan's petition pursuant to 28 U.S.C. § 2255 is dismissed and a certificate of appealability is denied. Having determined that Khan has not proffered adequate grounds for the issuance of a petition pursuant to 28 U.S.C. § 2255, this Court declines to issue a certificate of appealability. See 28 U.S.C. § 2253 (c)(1). Such a certificate may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2); see Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-112 (2d Cir. 2000). Khan has made no such showing. Furthermore, pursuant to 28 U.S.C. § 1915 (a) the Court certifies that any appeal from this Order would not be taken in good faith. Clerk of the Court is instructed to close the case.
SO ORDERED.