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Leon v. U.S.

United States District Court, E.D. New York
Feb 11, 2005
03 CV 5522 (SJ) (E.D.N.Y. Feb. 11, 2005)

Opinion

03 CV 5522 (SJ).

February 11, 2005

MISCHEL, NEUMAN HORN, P.C., New York, NY, By: Richard E. Mischel, Sr., Attorney for Petitioner.

UNITED STATES ATTORNEYS OFFICE, Brooklyn, NY, Attorney for Respondent.


MEMORANDUM AND ORDER


Petitioner brings this motion for habeas relief pursuant to 28 U.S.C. § 2255, requesting that the Court vacate or set aside his sentence. For the reasons stated herein, the motion is DENIED.

BACKGROUND

On March 25, 2002, Petitioner pled guilty to receiving and attempting to receive child pornography through interstate mail, in violation of 18 U.S.C. § 2252A, and on November 1, 2002 Petitioner was sentenced to a term of 41 months incarceration, a $100 special assessment, and three years supervised release. On September 19, 2003 Petitioner withdrew his appeal to the Second Circuit. (Stipulation Withdrawing Appeal, Docket No. 02-1675.)

DISCUSSION

I. Petitioner's Blakely Claim

Petitioner asserts that his sentence was imposed in violation of the Supreme Court's decision in Blakely v. Washington, 124 S.Ct. 2531 (2004). The Supreme Court decided Blakely on June 24, 2004. At the present time, all indications are that Blakely does not apply retroactively to either first or successive § 2255 motions, as Blakely announced a procedural rule that does not fall within either of the exceptions defined in Teague v. Lane, 489 U.S. 288 (1989). See, e.g., Green v. U.S., No. 04-6564, 2005 WL 237204 (2d Cir. 2005) (denying authorization to file a second or successive habeas petition under 28 U.S.C. § 2255 because Blakely did not establish a new rule of constitutional law that the Supreme Court has made retroactive to cases on collateral review); Carmona v. United States, 390 F.3d 200, 202 (2d Cir. 2004) ("To date, the Supreme Court has not . . . announced Blakely to be a new rule of constitutional law, nor has the Court held it to apply retroactively on collateral review."); Warren v. United States, No. 3:01 CV 179, 2005 WL 165385, *10 (D.Conn. Jan. 25, 2005); Bishop v. United States, No. 04 Civ. 3633, 2004 WL 2516715, *10 n. 8 (S.D.N.Y. Nov. 8, 2004); Garcia v. United States, No. 04-CV-0465, 2004 WL 1752588, *5 (N.D.N.Y. Aug. 4, 2004). Petitioner is therefore only eligible for relief under Blakely if his conviction became final after June 24, 2004.

For the purposes of 28 U.S.C. § 2255, a conviction becomes "final" when the Supreme Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires. Clay v. United States, 537 U.S. 522 (2003). The rules for the United States Supreme Court state that a petition for a writ of certiorari to review a decision by a United States Court of Appeals must be filed within ninety days after entry of the judgment. Id. at 525 (noting that time in which defendant could have petitioned for certiorari expired ninety days after the Court of Appeals affirmed the conviction); Sup. Ct. R. 13(1).

In the present case, Petitioner's conviction became final no later than September 19, 2003, when the Second Circuit noted the withdrawal of his appeal. This Court therefore cannot applyBlakely retroactively to Petitioner's claim regarding his sentence.

II. Petitioner's Apprendi Claim

Petitioner appears to assert that his sentence was imposed in violation of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), in that upward adjustments of two and four levels were applied during sentencing based on evidence — specifically, that some of the pornographic images involved in the offense portrayed minors under the age of twelve, that at least one of the pictures depicted violence, and that several images were of prepubescent and teenage girls engaged in sexual intercourse with adult males — that was not presented to a jury to be proven beyond a reasonable doubt.

Petitioner's argument focuses on the Blakely v. Washington decision, but based on the repeated references to and discussion of the Apprendi v. New Jersey case, and Petitioner's use of the term "the Blakely-Apprendi issue" to summarize the claim, this Court construes the Petition as directed toApprendi as well.

The Supreme Court decided Apprendi on June 26, 2000 and, as mentioned above, Petitioner was not sentenced until November 1, 2002. The rules regarding retroactivity therefore do not bar this Court from considering the question of whether Petitioner's sentencing was in violation of Apprendi. See Griffith v. Kentucky, 479 U.S. 314, 322 (1987).

However, as Petitioner acknowledges, he did not raise theApprendi issue before the District Court. (Am. Pet. at 11.) Since Petitioner did not appeal, the claim was not raised to the Second Circuit, either; thus it is raised for the first time in his § 2255 petition. The Court finds that Petitioner has not demonstrated cause or prejudice for failing to raise his claim earlier, nor is Petitioner arguing factual innocence, and therefore this Court is procedurally barred from considering the claim. See Bousley v. United States, 523 U.S. 614, 622-23 (1998) (holding that defendant who fails to raise a claim on direct appeal cannot pursue it in a habeas petition unless he demonstrates either cause for the default and ensuing prejudice for the default, or "factual innocence, not mere legal insufficiency"); Underwood v. United States, 166 F.3d 84, 87-88 (2d Cir. 1999).

Additionally, Petitioner's claim lacks merit. As the Second Circuit has explained, "nothing in the Court's holding inApprendi or its explication of the holding . . . alters a sentencing judge's traditional authority to determine those facts relevant to selection of an appropriate sentence within the statutory maximum." United States v. Garcia, 240 F.3d 180, 183 (2d Cir. 2001). Rather, Apprendi requires that facts, other than prior convictions, that increase the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. 466. At the time of Petitioner's conviction, the maximum sentence that could be imposed for violations of 18 U.S.C. §§ 2252A(a)(1) was fifteen years, and Petitioner was sentenced to 41 months, well within this range. Apprendi therefore does not apply to Petitioner's case. See Garcia, 240 F.3d at 183.

III. Petitioner's Ineffective Assistance of Counsel Claims

To the extent that Petitioner may be suggesting that trial counsel's failure to raise the Apprendi issue at sentencing constituted ineffective assistance of counsel, such a claim cannot succeed because failure to raise anApprendi claim that in fact would have been meritless does not constitute ineffective assistance of counsel. Duarte v. U.S., 289 F.Supp.2d 487, 492 (S.D.N.Y. 2003).

However, Petitioner alleges a number of other reasons to find trial counsel to have been ineffective: 1) counsel's negotiation of a plea agreement that required Petitioner to forfeit constitutional rights and the right to appeal without offering any substantial benefit to Petitioner; 2) counsel's failure to pursue potential defenses to the charges or pursue and produce evidence to support a sentencing adjustment; 3) counsel's failure to advise Petitioner of the existence of such defenses so that Petitioner could intelligently, knowingly, and voluntarily waive those defenses, plead guilty, and waive appellate rights; 4) counsel's failure to investigate and challenge the factual basis for the sentencing enhancements, and specifically to review the pornographic images; 5) counsel's failure to challenge the description of the images as showing "pain," which formed the basis for a sentencing enhancement, when the images had not been viewed by counsel or by this Court, and instead were summarized by the investigating officer; 6) counsel's failure to file a motion requesting a downward departure; and 7) counsel's failure to file a sentencing brief. (Mem. Law Supp. Pet. at 1-2.)

A. Petitioner's Plea Agreement

Petitioner alleges that the plea agreement negotiated by trial counsel did not offer substantial benefit in exchange for the rights it required Petitioner to forfeit. In order to establish that this constituted ineffective assistance of counsel, Petitioner must satisfy the requirements of Strickland v. Washington, 466 U.S. 668 (1984), in which the Supreme Court established a two-part test to determine whether counsel's assistance was ineffective. First, "the defendant must show that counsel's representation fell below an objective standard of reasonableness. . . . under prevailing professional norms." Id. at 688. Petitioner must overcome the strong presumption that the challenged action or inaction may be considered reasonable trial strategy. Id. at 689. Second, the defendant must show that counsel's performance prejudiced his defense. Id. at 689. To show prejudice, there must be a reasonable probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different. Id. at 694.

In the present case, even if Petitioner could establish that counsel's representation fell below an objective standard of reasonableness, which he cannot, Petitioner's claim does not satisfy Strickland's second prong, which requires a petitioner to demonstrate prejudice as a result of counsel's ineffectiveness. Trial counsel obtained a sentence of 41 months for Petitioner, which was at the low end of the Guideline range of 15 years, and so it is not clear how a better result could have been obtained but for counsel's purported ineffectiveness, with the exception of the possibility that counsel could have obtained an acquittal at trial on the basis of a First Amendment defense. However, as discussed below, such a defense would have been completely meritless under the facts conceded by Petitioner himself, and would have risked exposing Petitioner to a far harsher penalty. Therefore, Petitioner has demonstrated no actual prejudice resulting from the plea negotiated by defense counsel, and thus the claim must fail.

B. Failure to Pursue Defenses and Failure to Advise Petitioner of Defenses

In alleging that trial counsel was ineffective for failing to pursue "certain defenses," Petitioner appears to be referring to the First Amendment defense outlined in the Memorandum of Law supporting the § 2255 Petition. (Mem. Law Supp. Pet. at 6-9.) It is clear that the First Amendment does not protect child pornography. NYC C.L.A.S.H., Inc. v. City of New York, 315 F.Supp.2d 461, 474 (S.D.N.Y. 2004) (citing New York v. Ferber, 458 U.S. 747 (1982)). However, Petitioner suggests that the images were not proven to meet the definition of child pornography provided in 18 U.S.C. § 2256, and that "images should be presumed to be protected by the First Amendment unless declared otherwise by a court or jury." (Id.)

This argument is greatly undermined by the fact that Petitioner himself conceded that the images constituted child pornography. The letter from Petitioner's therapist submitted at the time of sentencing, provided by Petitioner in support of his Petition, states that "he understands that he is responsible for his actions in terms of possessing child pornographic images." (Decl. Supp. Pet. Ex. D.) During his plea allocution, Petitioner stated, "I tried to obtain child pornography . . . through the Internet." (Decl. Supp. Pet. Ex. C.) When asked, "When you ordered . . . these items over the Internet, did you understand that they would contain images of persons under the age of 18 engaging in sexually explicit conduct?" Petitioner answered, "Yes." (Id.)

The catalogue from which Petitioner ordered the pictures also apparently stated that one involved a 13-year-old girl and one involved a 10-year-old child, a fact which Petitioner does not appear to contest.

Though Petitioner suggests that he would have avoided making these admissions had defense counsel alerted him to the possibility of a First Amendment defense, Petitioner at no point indicates that he gave defense counsel any reason to believe that the images did not constitute child pornography. Given Petitioner's willingness to admit the substance of the images, defense counsel exercised reasonable strategy in choosing to forgo a defense strategy that would have entailed presenting photographs to a jury or to the judge that would almost certainly cause Petitioner to lose any First Amendment argument by demonstrating that the images were indeed pictures of minors engaging in sexually explicit behavior, and could bring about imposition of a harsher sentence by presenting the decision-makers with highly disturbing imagery. Defense counsel cannot be held ineffective for failing to advise Petitioner of the existence of a defense that, on the facts conceded by Petitioner himself, would clearly be frivolous and would quite likely be damaging to Petitioner's sentencing.

C. Petitioner's Guilty Plea

Petitioner also suggests that defense counsel's failure to inform him of the possibility of this defense rendered his guilty plea involuntary. This Court evaluates Petitioner's claim that his guilty plea was involuntary and unknowing due to ineffective assistance of counsel under the framework set forth inStrickland, 466 U.S. 668. "A defendant must first establish that `counsel's representation fell below an objective standard of reasonableness.' Second, `the defendant must show that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.'" United States v. Couto, 311 F.3d 179, 187 (2d Cir. 2002) (citing United States v. Hernandez, 242 F.3d 110, 112 (2d Cir. 2001)). Petitioner cannot satisfy this standard because defense counsel did not err in failing to inform Petitioner of an apparently frivolous defense, and Petitioner cannot establish that he would have risked going to trial only to assert this frivolous defense.

D. Failure to Investigate the Factual Basis for the Sentencing Enhancements and Failure to Challenge the Description of the Images

"[I]t is fundamental that acts and omissions that could be considered sound trial strategy do not rise to the level of deficient performance under Strickland[.]" Eze v. Senkowski, 321 F.3d 110, 136 (2d Cir. 2003) (citingStrickland, 466 U.S. 668). Defense counsel's failure to review the images may arguably have fallen below an objective standard of reasonable performance given that a decision not to review the images cannot be said to be strategic. However, Petitioner cannot establish the second requirement of Strickland, 466 U.S. 668, because he cannot demonstrate that he was prejudiced by defense counsel's failure to review the images, given Petitioner's own admissions that the images did in fact constitute child pornography.

The only benefit of reviewing the images would have been to present them to the Court at the time of sentencing. However, the decision not to challenge the description of the images and request that the Court review them clearly can be considered strategic. The decision to present the Court with a picture of a minor, allegedly a child as young as 10 years old, being sexually penetrated by an adult, in order for the Court to decide whether the child's face in fact showed an expression of pain, just moments before the Court exercised its discretion in sentencing Petitioner, could clearly have disastrous effects on Petitioner's sentence. Given Petitioner's own admissions of the content of the pictures, and the descriptions of the pictures in the catalogue from which Petitioner ordered them, there is little doubt that the pictures had a potential to induce a decision-maker to impose a harsher sentence than that which Petitioner received, and thus the failure to challenge the description of the images was strategic.

E. Failure to File a Motion Requesting a Downward Departure and Failure to File a Sentencing Brief

Petitioner alleges that defense counsel failed to file a motion requesting a downward departure or to file a sentencing brief. (Mem. Law Supp. Pet. at 2.) However, during the sentencing hearing, the Court stated, "Let the record reflect that I am in receipt of a submission by the defendant dated October the 30th basically asking for a downward departure." (Decl. Supp. Pet. Ex. F.) As Petitioner acknowledges, in this letter defense counsel stated that he was seeking downward departures on the basis of diminished capacity and two arguments for atypicality. (Decl. Supp. Pet. Ex. E.) Defense counsel also evidently sought and obtained evidence from Petitioner's therapist to support a downward departure. (Decl. Supp. Pet. Ex. D.) Therefore, it is not evident what basis there is, if any, for this asserted failure to file a sentencing motion or brief.

To the extent that Petitioner in fact wishes to challenge defense counsel's failure to raise the particular sentencing objections proposed by Petitioner, namely that the offense did not involve trafficking (in addition to the objections discussed above), the Court notes that Petitioner's argument does not establish either prong of Strickland, 466 U.S. 668. First, failure to pursue every possible argument regarding sentencing does not establish that defense counsel's performance fell below an objective standard of reasonableness. See, e.g., Percan v. U.S., 294 F.Supp.2d 505, 513 (S.D.N.Y. 2003) ("It is well settled that Strickland does not require counsel to raise every possible non-frivolous argument in representing a criminal defendant."). Second, given that defense counsel succeeded in obtaining a relatively short sentence the Court is not convinced that Petitioner suffered any prejudice.

CONCLUSION

For the reasons stated herein, Petitioner has not established that he received ineffective assistance of trial counsel, or that he is eligible for a modification of his sentence underApprendi, 530 U.S. 466, or Blakeley, 124 S.Ct. 2531. Petitioner's 28 U.S.C. § 2255 motion is therefore DENIED.

For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A substantial showing "does not require a petitioner to demonstrate that he would prevail on the merits, but merely that `reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.'" Santana v. U.S., 2005 WL 180932, at *7 (S.D.N.Y. Jan. 26, 2005) (quoting Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002)) (internal quotation marks and citation omitted). Where a petition is dismissed on procedural grounds, the petitioner seeking a certificate of appealability must show that both the procedural and underlying constitutional issues are reasonably debatable. Sosa v. U.S., 2003 WL 22218505, *1 (S.D.N.Y. Sept. 25, 2003). Petitioner has made no substantial showing of the denial of a constitutional right in this case. Accordingly, this Court denies a certificate of appealability.

SO ORDERED.


Summaries of

Leon v. U.S.

United States District Court, E.D. New York
Feb 11, 2005
03 CV 5522 (SJ) (E.D.N.Y. Feb. 11, 2005)
Case details for

Leon v. U.S.

Case Details

Full title:MARK LEON, Petitioner, v. UNITED STATES OF AMERICA, Respondent

Court:United States District Court, E.D. New York

Date published: Feb 11, 2005

Citations

03 CV 5522 (SJ) (E.D.N.Y. Feb. 11, 2005)