Opinion
15-CR-6004L 18-CV-6144L 15- CR-6115L 18- CV-6145L
2020-03-03
Steven RAY, Plaintiff, v. UNITED STATES of America, Defendant.
Craig R. Gestring, U.S. Attorney's Office, Rochester, NY, for Plaintiff. William C. Dedes, Rochester, NY, for Defendant.
Craig R. Gestring, U.S. Attorney's Office, Rochester, NY, for Plaintiff.
William C. Dedes, Rochester, NY, for Defendant.
DECISION & ORDER
DAVID G. LARIMER, United States District Judge
BACKGROUND
In February 2015, defendant Steven Ray ("Ray") pleaded guilty pursuant to a Plea Agreement to a two-count Information (15-CR-6004). Ray pleaded to mail fraud (Count 1) and forgery of United States Treasury checks (Count 2). The factual basis for the plea was set forth at Paragraph 5 of the Plea Agreement and during the plea colloquy before the Court, the prosecutor summarized in detail the facts supporting the plea.
The Plea Agreement is attached to the Government's Answer to Ray's motion pursuant to 28 U.S.C. § 2255 as Exhibit 1.
The transcript of the plea hearing before Magistrate Judge Payson is attached to the Government's Answer as Exhibit 5.
In sum, Ray fraudulently endorsed, passed and executed over 120 United States Treasury checks including Social Security payments, and federal tax refunds, and therefore obtained approximately $405,000. During the plea colloquy before United States Magistrate Judge Marian W. Payson, Ray agreed on the record that he had engaged in all of the conduct outlined by the prosecutor and as contained in the Plea Agreement (Exhibit 5, pp. 32-36). The matter was scheduled for sentencing on the two counts. Sentencing was delayed, however, because Ray engaged in serious criminal conduct relating to sentencing. Ray falsified information submitted to the Court in sentencing materials and intimidated and threatened a witness. That conduct resulted in a new Indictment, 15-CR-6115. Ray was charged in Count 1 with intimidating a witness in violation of 18 U.S.C. § 1512(b)(1) and in Count 2 with obstructing an official proceeding pursuant to 18 U.S.C. § 1512(c)(2).
Because of serious health issues, Ray's retained counsel, William Dedes, was granted leave to withdraw from the case and the Court appointed new counsel, Jason Abbott, under the Criminal Justice Act on September 1, 2015.
Some months later, on December 17, 2015, Ray pleaded guilty to Count 2 of the new Indictment before this Court. Ray admitted contacting and intimidating a disabled individual to prepare and sign a false affidavit concerning Ray which was submitted to influence sentencing on the forgery charges. During the plea colloquy on the new charge, Ray admitted that he knew that the affidavit was false. Specifically, Ray acknowledged he contacted a disabled person and had him sign an affidavit that Ray knew contained false statements. Exhibit 6, p. 12.
The transcript of the plea proceeding on December 17, 2015 of 26 pages is attached to the Government's Answer as Exhibit 6.
After the plea to the new charge, a Presentence Report was prepared and the parties filed sentencing memoranda. Grouping the three charges contained in both cases, the Probation Office determined that the United States Sentencing Guidelines for the three counts was 57-71 months.
Sentencing occurred on September 1, 2016. After a lengthy sentencing hearing, the Court imposed an above-Guideline sentence of 84 months concurrent on each of the two counts in 15-CR-6004 and the single count in 15-CR-6115. The Court also imposed restitution to the Government for the forgery of $309,000.
The 98-page transcript of the sentencing on September 1, 2016, is attached to the Government's Answer as Exhibit 3.
Ray appealed the judgment focusing primarily on the Court's sentencing. By Summary Order, the United States Court of Appeals for the Second Circuit affirmed the judgment, specifically finding that the 84-month sentence was substantively reasonable. 713 Fed. App'x 20 (2017). The Second Circuit found that the above-Guideline sentence was not an abuse of discretion, noting that Ray was a key figure in "serious criminal activity" involving more than 100 fraudulent checks which totaled "more than a quarter million dollars." The Circuit noted that Ray repeatedly attempted to cover up his criminal activity by lying to investigators and that he submitted a forged document to the Court, and intimidated a disabled person in an effort to mask his deception. (Exhibit 4, p. 2).
The Second Circuit decision affirming the judgment is also attached to the Government's Answer as Exhibit 4.
2255 MOTION
As set forth above, Ray pleaded guilty on two separate dates to three serious crimes. He pleaded guilty to forgery and mail fraud pursuant to a detailed Plea Agreement before United States Magistrate Judge Marian W. Payson on February 27, 2015. He was represented then by attorney William Dedes. The plea proceeding (Exhibit 5) was exhaustive, covering 39 pages of transcript. Under oath, Ray admitted all the conduct outlined by the prosecutor.
Ray's criminal activities continued as he attempted to effect sentencing. As referenced above, in attempting to improperly influence sentencing, Ray intimidated a person and obtained a false and fraudulent affidavit which was submitted to the Court. With new counsel, Ray also pleaded to that charge approximately three months after new counsel (Abbott) had been appointed. The Plea Agreement was thoroughly discussed at this plea proceeding and Ray specifically acknowledged that he was "satisfied with the help and legal advice given to him by attorney Abbott." (Exhibit 6, p. 20).
Ray said precisely the same thing when he had pleaded previously before Judge Payson in February 2015. Judge Payson specifically asked Ray during the plea colloquy if he was "satisfied with the representation and advice that Mr. Dedes had given you." Ray replied that he was satisfied. (Exhibit 5, p. 14).
The plea proceedings before both Magistrate Judge Payson and this Court were lengthy and thorough, and Ray repeatedly advised both judges that he was guilty of the charged conduct and that he understood the potential consequences and that he agreed to waive his right to trial. Even a cursory review of the transcripts of the plea proceedings demonstrate that all aspects of Rule 11 were satisfied.
The Second Circuit's decision affirming the conviction rejected all of Ray's substantive and procedural claims. The Circuit found that Ray's claim that he should have received an acceptance-of-responsibility reduction "easily fails" and that his challenge to the above-Guideline sentence of 84 months was without merit. Ray's other arguments also were rejected. 713 Fed. App'x 20 ; Exhibit 4, p. 2.
All of his claims having been rejected on appeal, Ray has now filed this pro se motion under Section 2255, claiming that both of his lawyers, Dedes and Abbott, provided ineffective assistance of counsel. After reviewing the entire record and having been involved in the plea to the second Indictment and the sentencing, I find that there is no basis whatsoever to find ineffective assistance of counsel. Based on the strong, uncontested evidence against Ray, both lawyers fully represented Ray's interests in the proceedings.
In launching these claims against his lawyers, as the Government points out in its Answer, Ray faces a heavy burden of proof under well-established legal authority. In the leading case on the matter, Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established a two-part test for evaluating a claim that defense counsel provided ineffective assistance. There is both a "performance" and "prejudice" test which the defendant must establish. The defendant must demonstrate that his counsel's performance was deficient when measured objectively and that the deficient performance somehow resulted in prejudice. Defendant must establish both matters; if he fails to meet one test, then relief must be denied. In this case it is clear that Ray has failed to meet either prong of the required two-part test.
The burden is especially difficult in the context of a guilty plea. Defendant must establish that counsel's performance somehow undermined the voluntarily and intelligent nature of the defendant's decision to plead guilty. Ray must also establish that, but for the errors, the result of the proceeding would have been different. That is, he would not have pleaded guilty. It is clear beyond peradventure that Ray can meet neither of the two-pronged tests that are required here.
Ray makes general conclusory claims, e.g. that the plea was not voluntary, coupled with some specific claims concerning statements, are acts of his attorneys. A careful review of the claims on the record and Ray's statements during the plea proceedings completely refutes the claims made here and compels the conclusion that no relief is warranted.
Ray filed his original motion to vacate (Dkt. #96) on February 12, 2018. He later filed two amended motions (Dkt. #110 on May 3, 2018 and Dkt. #117 on June 8, 2018). The Government filed its Answer (Dkt. #175) on September 3, 2019, covering all of the several filings of Ray.
Ray has been a prolific filer of documents and has submitted numerous, what he describes as "supplements" to his 2255 motion, see, e.g. , Dkt. ##164, 165, 166, 169, 170, 177, 187, as well as least ten other peripheral motions seeking relief unrelated to the ineffective-assistance-of-counsel claim contained in the Section 2255 motion. For example, he has moved for compassionate release (Dkt. #158); for a reduction of sentence (Dkt. #185); and so on. All these motions will be dealt with hereafter.
Because of this jumble of motions filed by Ray, it is at time difficult to determine precisely the basis for his 2255 motion. He often makes broad, sweeping claims, but the gist of his petition seems to be the following: first, he claims that his first attorney, Dedes, urged him to plead guilty and that he would probably get probation; he also claims that Dedes was relieved because of illness, although it is not clear how that action constituted ineffective assistance.
As to the second attorney, Abbott, Ray claims that that attorney urged him to plea and that he could probably get a split sentence of one year. Finally he claims that he did not fully understand the consequences of the plea and that he could be sentenced to a term of imprisonment greater than what the Guidelines suggested.
Even a cursory review of the plea transcript shows Ray's claims to be totally without merit. Ray makes claims and assertions which are directly refuted and contradicted by Ray's own statements made under oath before Magistrate Judge Payson and this Court. Ray is asking this Court to ignore his own statements under oath. There is no basis in law or logic for this Court to do so. Ray ignores completely the many statements he made when he pleaded guilty before Judge Payson and this Court. Ray's attorneys provided effective assistance considering the strong evidence against Ray – strong evidence that warranted the above-Guideline sentence which the Second Circuit found to be reasonable.
Magistrate Judge Payson specifically asked Ray if any promises had been made to him about the sentence he might receive. Ray answered that no promise had been made. (Exhibit 5, p. 29). When this Court accepted Ray's plea to the obstruction charge, Ray was specifically asked if any threats or force had been made to get him to plead guilty. Ray said that no such thing had occurred. (Exhibit 6, p. 5). During both plea proceedings, the Guideline ranges were discussed as well as the fact the Court was not bound to accept the Guidelines but could impose a sentence up to the maximum, which was 20 years imprisonment on the first Indictment and up to 10 years on the second. It was also discussed that there could be consecutive sentences. (Exhibit 6, pp. 7-9).
It was clearly discussed and understood by Mr. Ray that both his attorney and the Government could seek sentences outside the Guideline ranges. Specifically, both Magistrate Judge Payson and this Court advised Ray that the Sentencing Court was not bound to follow the Guidelines but could depart and impose a more serious sentence. (Exhibit 5, p. 22; Exhibit 6, p. 16). It is clear from the transcripts that Ray was advised of the consequences of his plea, the nature of the Guidelines and the fact that the Court could impose a non-Guideline sentence. Ray made no mention of any understanding or promise to the contrary.
During both pleas, the prosecutor set forth a detailed summary of the criminal activities of Ray. In both cases Ray was asked if he agreed to the factual summary of the Plea Agreement and the facts as set forth by the prosecutor. Ray admitted under oath the accuracy of the facts supporting the plea and raised no issue or dispute. (Exhibit 5, pp. 33-35; Exhibit 6, p. 12).
Essentially, Ray expects this Court to ignore all the statements that he made to both Magistrate Judge Payson and this Court under oath. This Court will give short shrift to such claims that are contrary to the statements Ray made when he stood before both Judges and pleaded guilty.
Both Magistrate Judge Payson and this Court conducted the plea proceedings and had an opportunity to observe Ray. Both Judges found the defendant was competent and capable of entering into a plea, that he was aware of the consequences of the plea and that there were facts to support the plea. (Exhibit 5, pp. 37-38; Exhibit 6, p. 21).
In sum, I find that Ray has failed to meet the heavy burden established by Strickland , defined ineffective assistance of counsel where the defendant has entered a guilty plea. Ray has failed to demonstrate that either counsel provided deficient performance and there is no demonstration of prejudice. Therefore, the petition of defendant Steven Ray to vacate his convictions in case 15-CR-6004 and 15-CR-6115, pursuant to 28 U.S.C. § 2255, is in all respects denied.
Moreover, pursuant to 28 U.S.C. § 2253, I decline to issue a Certificate of Appealability since Ray has failed to make a substantial showing of the denial of any constitutional right.
As referenced, Ray has filed a plethora of other motions seeking various forms of relief. I have reviewed them all and find that none have merit and that all are, therefore, denied. Specifically in 15-CR-6004, I deny the following motions with Docket #158, #168, #171, #183, #184, #185, #186, #188, #189.
In case 15-CR-6115, I deny the following motions with Docket #135, #138, #139.
IT IS SO ORDERED.