Opinion
01 Civ. 4501 (JSM) [97 Cr. 1034 (JSM)]
January 3, 2002
MEMORANDUM OPINION AND ORDER
Jeffrey Stone petitions under 28 U.S.C. § 2255 seeking to set aside his conviction on his plea of guilty to conspiracy to commit wire fraud and bribery and substantive counts of wire fraud.
Petitioner claims that his counsel was ineffective in that he failed to file a notice of appeal and failed to familiarize himself with the facts of the case, and that the Court failed to adequately advise him of the elements of the crime to which he was pleading guilty. Petitioner's claims are without merit.
In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish 1) that counsel's performance was deficient and 2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). To establish prejudice "[t]he defendant must show 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. 104 S.Ct. at 2068.
Although Petitioner now claims that he wanted his counsel to file a notice of appeal, he acknowledged during his plea allocution that in his plea agreement he was waiving any right to appeal if the Court imposed a sentence within or below the guideline range set forth in the plea agreement. Since the Court imposed a sentence below the guideline range set forth in the plea agreement, there was no basis for an appeal.
While Petitioner does not assert that he specifically asked counsel to file a notice of appeal, he contends that he told counsel he was unhappy with his sentence and asked counsel to pursue overturning his conviction. Counsel has submitted an affidavit in which he states that Petitioner stated at the time that he was happy with the sentence, which was below the guideline urged by the Government, and Petitioner never informed counsel that he desired to appeal.
Even accepting Petitioner's version of the events, counsel's decision not to file a notice of appeal would not entitle Petitioner to relief.See Morales v. United States, 143 F.3d 94, 97 (2d Cir. 1998) ("Strickland analysis offers an adequate means for assessing the impact of counsel's failure to file an appeal or to advise the defendant, post-sentencing, of his appellate rights. A reviewing court is able to gauge both whether the lawyer's conduct was objectively unreasonable and whether an appeal would have had a reasonable likelihood of success.")
Petitioner's claim that the Court did not adequately advise him of the elements of the charges against him and did not properly determine that there was a factual basis for Petitioner's plea is belied by the record of Petitioner's plea proceeding which establishes: (1) Petitioner, who was a college graduate, acknowledged receiving and reading the indictment; (2) the charging paragraphs of each count, setting forth the statutory elements of the offense, were read to him; (3) the Court explained the elements of each of the charges to him; (4) in response to questions from the Court, Petitioner admitted facts that established the elements of the offense; (5) defense counsel stated that he had discussed the facts fully with his client and on the basis of those discussions he was satisfied that Petitioner was guilty of the charged offenses; and (6) the Government represented to the Court that it could establish a prima facie case.
For the foregoing reasons, the petition for relief pursuant to 28 U.S.C. § 2255 is denied and the action is dismissed. In addition, pursuant to 28 U.S.C. § 1915 (a). the Court certifies that an appeal from this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 920-21 (1962). The Court determines that the petition presents no question of substance for appellate review, and that Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2); see Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.
SO ORDERED.