Opinion
No. 00 CIV. 3621 (SHS), 97 CR 114 (SHS), 97 Cr 1001 (SHS)
May 25, 2000
OPINION ORDER
On October 4, 1999, Michael Kleinberg was convicted following a jury trial of one count of bank fraud in violation of 18 U.S.C. § 1344 (2) and two counts of tax evasion in violation of 26 U.S.C. § 7201. Kleinberg had embezzled hundreds of thousands of dollars from the Sutton Place Synagogue in order to sustain his substantial gambling habit. He was sentenced to 57 months imprisonment to be followed by a five-year term of supervised release and was ordered to pay restitution in the amount of $907,394.23. On October 4, 1999 the U.S. Court of Appeals for the Second Circuit affirmed the judgment of conviction. See United States v. Kleinberg, 199 F.3d 1324 (2nd Cir. 1999) (summary order).
Kleinberg has filed a pro se petition pursuant to 28 U.S.C. § 2255 attacking his sentence and requesting a new trial. For the reasons set forth below, Kleinberg's petition is denied.
I. Discussion.
Kleinberg challenges his conviction on four grounds. Three are claims of ineffective assistance of counsel and the fourth is based on the denial of a requested additional sentencing reduction based upon his acceptance of responsibility.
A. Ineffective Assistance of Trial Counsel: Trial Strategy.
A petitioner must meet a high standard to prevail on a claim of ineffective assistance of counsel. Specifically, a petitioner must establish two elements: "(1) that counsel's performance 'fell below an objective standard of reasonableness' and (2) that there is a 'reasonable probability' that, but for the deficiency, the outcome of the proceeding would have been different." McKee v. United States, 167 F.3d 103, 106 (2nd Cir. 1999) (quotingStrickland v. Washington, 466 U.S. 668, 688 694 (1984)).
Kleinberg has not shown that he requires a hearing on these claims. As a primary mailer, Kleinberg's attorney's performance did not fall below an objectively reasonable level. The guilty verdict notwithstanding, his trial counsel was diligent and well prepared. Kleinberg's conviction resulted from the substantial evidence against him, including his position at the synagogue, his access to the synagogue's funds, the existence of doctored checks, evidence that documents were destroyed by Kleinberg, and records of Kleinberg's substantial gambling losses.
The alleged lapses by his attorney that Kleinberg sets forth did not prejudice his defense. His first ground asserts that his trial attorney did not adequately cross-examine a bank officer who testified for the prosecution. In fact, Kleinberg's trial attorney conducted a lengthy cross examination of the witness. Although Kleinberg complains that the attorney did not cover certain areas, the subject of cross examination is a question of trial strategy for the defense attorney. The Second Circuit has "often noted [its] reluctance to second-guess matters of trial strategy simply because the chosen strategy has failed. Trial advocacy is an art, and the advocate must be given some latitude in deciding upon an appropriate trial strategy." United States v. Helgesen, 669 F.2d 69, 72 (2nd Cir. 1982) (internal citations omitted).
Petitioner's second ground asserts that his trial attorney did not assert a defense based on Kleinberg's status as a compulsive gambler and did not use original checks in his defense. These claims also fail. Compulsive gambling is not a legal defense to these charges and would have been irrelevant, because even if it were a mental disease, compulsive gambling does not create a mental inability to pay one's taxes or restrain from defrauding banks. See United States v. Torniero, 735 F.2d 725, 731 733 (2d Cir. 1984). Regarding the original forged checks, Kleinberg has given no explanation of how those checks would have aided his defense, and the possibility of any prejudice to Kleinberg is remote and speculative given the overwhelming evidence of his guilt.
B. Ineffective Assistance of Counsel: Conflict of Interest.
As a third ground asserted in support of vacating his sentence, Kleinberg claims that his counsel had a conflict of interest. This putative conflict is based on the fact that defense counsel was paid a single fee of $30,000 for the entire trial, and so had no incentive to pursue a lengthy defense, including such measures as obtaining documents from the Sutton Place Synagogue, interviewing prosecution witnesses, or adequately preparing for trial.
"[I]f a defendant establishes that her attorney had a potential conflict of interest, in order to prove that the conflict resulted in a violation of her Sixth Amendment right to effective assistance of counsel, she must prove prejudice. However, prejudice is presumed when a defendant establishes that her attorney had an actual conflict of interest that adversely effected the attorney's performance." See Winkler v. Keane, 7 F.3d 304, 307 (2nd Cir. 1993).
This Court disagrees with Kleinberg's assessment that the payment of a flat fee — a common arrangement — created an actual and impermissible conflict of interest. A flat fee payment such as the one described by Kleinberg does not by itself cause the interests of client and attorney to actually diverge. See Winkler, 7 F.3d at 307. Moreover, there is no evidence that the alleged fee arrangement adversely effected Kleinberg's attorney's performance or caused Kleinberg any prejudice. Kleinberg' s claim of prejudice as a result of the failure to produce certain Sutton Place documents in response to a subpoena is belied by the substantial number of documents in evidence and the lack of any indication of how additional documents would have been exculpatory. Kleinberg's trial attorney conducted effective cross examinations of prosecution witnesses, was effective and performed his trial duties in a highly competent fashion.
C. Sentencing.
Finally, Kleinberg asserts that his post-offense rehabilitation efforts merited an additional one level-reduction of his sentence because they demonstrate his acceptance of responsibility.
The claim is procedurally barred. Petitioner apparently did not raise this issue on direct appeal, and he has thus waived the claim. "It is well settled that habeas corpus is not a substitute for direct appeal." Burgess v. United States, 70 F. Supp.2d 391, 393 (S.D.N.Y. 1999). Moreover, habeas corpus is not the proper mechanism for challenging sentencing errors of this type. "Non-constitutional errors of law, including sentencing errors, do not provide a basis for collateral attack unless the claimed error constitutes a fundamental miscarriage of justice." Gordils v. United States, 943 F. Supp. 346, 355 (S.D.N.Y. 1996) (internal quotation marks omitted); see also Burgess, 70 F. Supp. 2d at 393-94. "Under this stringent standard the Second Circuit has ruled that sentencing errors generally are not cognizable on habeas corpus." See Gordils, 943 F. Supp. at 355 (citing Fermia v. United States, 47 F.3d 519, 525 (2nd Cir. 1995)). For both of these reasons, the claim is procedurally barred.
Moreover, this claim was raised by defense counsel and debated on the record as part of this Court's sentencing determination. At that time, the Court denied Kleinberg's request on the merits. See Transcript of Dec. 4, 1998 Sentencing, at 6-8.
II. Conclusion.
The petition pursuant to 28 U.S.C. § 2255 is dismissed and a certificate of appealability is denied. Having determined that Kleinberg 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 (2nd Cir. 2000). Kleinberg has made no such showing.