Opinion
96-CR-103E, 99-CV-0482E
February 5, 2001
Pro Se, Bradford, PA, For Plaintiff.
Richard P. Maigret, Esq., Asst. United States Attorney, Buffalo, NY, For Defendant.
MEMORANDUM and ORDER
Decaress Smith ("petitioner") pleaded guilty before the undersigned September 20, 1996, to one count of possessing a firearm as a felon in violation of 18 U.S.C. § 922 (g) and for which he was later sentenced to 210 months imprisonment. Section 922(g) makes it unlawful for a convicted felon "to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." The Second Circuit Court of Appeals affirmed such conviction November 9, 1998. See United States v. Smith, 160 F.3d 117 (2d Cir. 1998). Presently before this Court is petitioner's motion to vacate or set aside his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, this motion will be denied.
Section 2255 authorizes a federal prisoner to challenge the legality of his sentence on the ground that the sentencing court was "without jurisdiction to impose [the] sentence," or that the sentence "was imposed in violation of the Constitution or laws of the United States," was "in excess of the maximum authorized by law" or is "otherwise subject to collateral attack." 28 U.S.C. § 2255. The instant motion challenges the legality of the sentence imposed by alleging that his plea of guilty was rendered involuntarily because petitioner was denied effective assistance of counsel at the district court level.
As with all section 2255 motions, this Court necessarily begins its analysis of petitioner's claim by discerning whether he raised such on direct appeal and, if he did not, whether cause for the procedural default and prejudice resulting therefrom has been established. See United States v. Frady, 456 U.S. 152, 167-168 (1982). If neither is shown, a collateral attack upon his sentence may be barred.
With regard to plaintiff's claim of ineffective assistance of trial counsel, it is not contested that petitioner challenged his conviction on direct appeal solely on the basis that the undersigned "entered judgment *** without having made the requisite inquiry" of a possible defense to the charges levied against him in violation of the Federal Rules of Criminal Procedure. See Government's Response Exs. 14 16 (petitioner's briefs on direct appeal). In other words, there has been no direct appellate review of petitioner's instant claim that he was denied effective assistance of counsel at the district court level.
Rule 11(f) of the Federal Rules of Criminal Procedure states that "[n]otwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea."
Although it is normally presumed that continued representation on appeal by the attorney whose conduct is in question constitutes "cause" for failing to raise the ineffective assistance of counsel claim on direct appeal, cause is generally found to be lacking where the petitioner was represented by new counsel on direct appeal and the ineffectiveness claim is based on the record developed in the district court. See, e.g., Billy-Eko v. United States, 8 F.3d 111, 115 (2d Cir. 1993). In the present matter, petitioner was represented by new counsel on direct appeal from his conviction and the basis for the instant claim was fully developed in the record before the undersigned. See Government's Response Ex. 8 (sentencing transcript); Presentence Investigation Report ¶ 9. Accordingly, petitioner is not entitled to assert his denial of effective assistance of counsel because where "an appellate court is able to evaluate the grounds upon which trial counsel is said to be ineffective on the existing record, the claim of ineffectiveness is forfeited if not initially raised on appeal." United States v. Phillips, 914 F.2d 835, 846 (7th Cir. 1990) (cited with approval in Billy-Eko, at 115).
Even if petitioner's claim were properly before the undersigned, his claim would still be dismissed because it is without merit. For his claim to succeed, petitioner must show, inter alia, that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." United States v. Shareef, 190 F.3d 71, 77 (2nd Cir. 1999) (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)); see also Hill Lockhart, 474 U.S. 52, 58 (1985) (holding that "the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel").
Although such is not entirely clear, petitioner's contention appears to be that, had trial counsel investigated his case, fully advised petitioner of his possible defense of necessity and not mislead him into believing that, by not pleading out the case, petitioner was "looking at a life sentence," he would not have accepted the plea agreement. See Petition, at 5. In this regard,
"where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error 'prejudiced' the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, still depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the 'prejudice' inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial." Hill, at 370-371.
Accordingly, the relevant inquiry for this Court is the whether the petitioner's purported defense would have been successful at trial.
By way of background, petitioner was arrested in Buffalo, N.Y., after the local police had responded to a report of gun shots being fired near a city intersection. The police officers stopped petitioner at that intersection, found that he was carrying a handgun and arrested him. Petitioner, who had previously been convicted of committing five violent felonies, pleaded guilty to possessing a firearm as a convicted felon and was sentenced therefor. Petitioner, who had been working at a non-violence center aimed at youths, asserts that he took possession of this handgun after he had confiscated it from a gang member and that, presumably, this conduct was "necessary" to avoid harm.
The affirmative defense of necessity has been said to contain five elements. First, "that defendant was under an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury." U.S. v. Singleton, 902 F.2d 471, 472 (6th Cir. 1990). Second, "that defendant had not recklessly or negligently placed himself in a situation in which it was probable that he would be forced to choose the criminal conduct." Ibid.[2] Third, "that defendant had no reasonable, legal alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened harm." Ibid.[2] Fourth, "that a direct causal relationship may be reasonably anticipated between the criminal action taken and the avoidance of the threatened harm." Ibid. [2] Fifth, defendant did not maintain the illegal conduct "any longer than absolutely necessary." Id. at 473.
Internal citations, brackets and quotation marks omitted.
The record shows that, upon arriving at the intersection, the police officers observed petitioner with a handgun firing one round at a crowd of people. See Government's Response Ex. 1. After being informed of his rights, petitioner admitted the same. Ibid. Petitioner's trial counsel was aware of these facts. Id. at Exs. 4 5. Given these circumstances, it simply is not reasonable to assume that petitioner could have satisfied his burden of establishing an affirmative defense of necessity and that the outcome at trial would have been different. Moreover and considering the fact that petitioner could have received anywhere from 235 to 293 months of incarceration had he proceeded to trial, the acceptance of the plea actually worked to petitioner's benefit by reducing his length of imprisonment by at least 25 months. In short, plaintiff can establish no prejudice.
Finally and insofar as plaintiff asserts ineffective assistance of appellate counsel in his reply brief, the undersigned declines to consider this issue because the prosecution did not have an opportunity to brief this issue. Had petitioner desired to include such claim, a motion to amend the instant petition was required.
Accordingly, it is hereby ORDERED that petitioner's motion to vacate or set aside his sentence is denied, that — having raised no substantial showing of the denial of a constitutional right — a certificate of appealability still not issue and that this case shall be closed.