Opinion
01 Civ. 401 (SWK) (GWG)
August 14, 2001
REPORT AND RECOMMENDATION
To the Honorable Shirley Wohl Kram, United States District Judge:
This motion to vacate a judgment of conviction was brought under 28 U.S.C. § 2255 by Anthony Williams, the defendant in United States v. Williams, 99 Cr. 1131 (SWK). On January 19, 2000, Williams pled guilty to one count of bank fraud under 18 U.S.C. § 1344. On May 17, 2000, he was sentenced to a term of imprisonment of twelve months, three years of supervised release, restitution in the amount of $16,512, and a mandatory special assessment of $100. Williams is currently in custody at the Immigration and Naturalization Services ("INS") Detention Facility in New York City under an order of deportation resulting from the present conviction.
While technically a "movant," Williams is referred to as the "petitioner" because he is so designated in the caption of his court papers.
This Report and Recommendation contains the undersigned's findings of fact and conclusions of law with respect to the instant motion.
Background of Williams' Plea and Sentence
On October 1, 1999, Anthony Williams was arrested and charged with bank fraud under 18 U.S.C. § 1344. Yuanchung Lee, Esq., of the Federal Public Defender Services Unit, was appointed as his attorney. On October 28, 2001, Williams was indicted by a grand jury. The indictment alleged in substance that Williams deposited three counterfeit checks into a bank account within his control at Manufacturers and Traders Trust Company Bank in late September 1999 totaling approximately $192,726.26 and that he began to withdraw these funds. On November 4, 1999, Williams entered a plea of not guilty to the indictment.
On January 19, 2000, Williams changed his plea and entered a plea of guilty before District Judge Shirley Wohl Kram to one count of bank fraud. (P.2 13). There was no plea agreement but according to a letter issued pursuant to United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991), dated January 6, 2000, the Government calculated Williams' sentencing range under the guidelines to be twelve to eighteen months. Sentencing was set for April 26, 2000.
On April 3, 2000, Williams sent a letter to Judge Kram in which he said that his "lawyer told me [to plead] guilty to the offence [sic] in question"; that following the plea he "[i]mmediately . . . informed my lawyer that I wish to withdraw the plea because all that the The abbreviation "P." refers to the transcript of the plea proceedings on January 19, 2000. "C." refers to the transcript of the conference before Judge Kram on April 26, 2000. "S." refers to the sentencing proceedings before Judge Kram on May 17, 2000. "H." refers to the transcript of the evidentiary hearing held before the undersigned on June 6, 2001.
judge told me in the court room is extremely different from what he promised [m]e"; that his lawyer "made deal [sic] with prosecution that the punishment period will be reduced to 9-10 months"; and that he was "disoriented" during the plea, did not understand the judge's questions and "was just affirming yes to them as advised by my lawyer." He concluded by asking that a new lawyer be appointed and that his plea be vacated. See Letter dated April 3, 2000, from Anthony Williams to Judge Kram.
On April 26, 2000, the parties appeared before Judge Kram. Judge Kram asked what the parties wished to say about Williams' letter. During the colloquy, Williams alleged that Lee had told him to plead guilty in return for a sentence of "nine to ten months' [sic] probation." (C. 3-4). The District Judge expressed doubt that any lawyer would say this but nonetheless acceded to Williams' request that he be appointed new counsel. (C. 4). That same day, Labe Richman was appointed as counsel for Williams.
Williams made no application to withdraw his plea. Instead, on May 11, 2000, Richman submitted a letter addressing only the appropriate sentence for Williams. Richman attached a copy of a May 8, 2000, letter from Williams to Judge Kram in which Williams stated that he wished to "withdraw" his prior letter. On May 17, 2000, Williams appeared for sentencing, represented by Richman, and stated that he was "ready to proceed." (S. 2). Judge Kram sentenced him to a term of twelve months of incarceration followed by three years of supervised release along with restitution and a special assessment of $100. (S. 8).
The Present Motion
Williams' motion under 28 U.S.C. § 2255 is dated December 28, 2000, and was received by the Court on January 4, 2001. See Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (December 28, 2000) (hereinafter, "Motion to Vacate"). In the Motion to Vacate, Williams notes that he is subject to deportation from the United States because of his conviction and seeks to vacate the judgment of conviction on three grounds: (1) that Richman was ineffective in failing to appeal the conviction despite Williams' request; (2) that Lee gave improper advice to Williams regarding his plea of guilty; and (3) that Lee failed to explain the deportation consequences of pleading guilty. See Motion to Vacate at 2, 6-7. On March 5, 2001, the United States Attorney's Office requested that the Court hold an evidentiary hearing in the matter. On March 26, 2001, an order of reference issued referring the matter to the undersigned.
Appended to Williams' Motion to Vacate is a memorandum of law that is also entitled "Motion to Vacate" and which fully describes Williams' claims. The page numbers refer to the memorandum of law.
On March 29, 2001, the Court, by the undersigned, issued an order with the Government's consent staying the deportation of Williams until the resolution of the instant motion. On March 30, 2001, the Court appointed Oliver Smith, Esq., as counsel for Williams pursuant to Rule 8(c) of the Rules Governing Section 2255 Cases in the United States District Courts to represent Williams at the requested evidentiary hearing. On April 9, 2001, the Court ordered the parties to submit pre-hearing memoranda regarding the issues of fact and law to be discussed at the evidentiary hearing, which was scheduled at Williams' request for June 6, 2001.
On April 18, 2001, Williams wrote to the Court seeking to have Mr. Smith relieved from the case and new counsel appointed. This request was denied by Order dated April 26, 2001.
An evidentiary hearing was held before the undersigned on June 6, 2001. Following this hearing, the defendant requested the opportunity to submit written proposed findings of fact and conclusions of law. Williams submitted a memorandum on June 27, 2001; the Government responded on July 15, 2001; and Williams submitted a reply letter on July 29, 2001.
The Evidentiary Hearing
At the evidentiary hearing, the Court ruled that the only factual issue that would be the subject of testimony was whether Williams had directed Richman to file a notice of appeal. (H.
2-3). Two witnesses testified at the hearing: Williams and Richman.
A. Williams' Testimony
Williams testified that he is forty-three years old and a resident of New York State currently in INS custody. (H. 4, 13). He is a high school graduate and attended college for about a year. (H. 4). He was arrested for bank fraud and, represented by Lee, pled guilty to the charge in January 2000 before Judge Kram. (H. 4, 9-11, 13). Prior to sentencing, Williams moved to withdraw his plea and also asked for new counsel. (H. 13, 36). Richman was then appointed as Williams' counsel. (H. 13, 36). Williams was sentenced on May 17, 2000. (H. 5, 13).
Williams testified he had given Richman instructions to "make an appeal" both during and after sentencing. (H. 5, 15). Williams testified that while at the sentencing before Judge Kram he had said to Richman, "I would like to you [sic] appeal my case for me" at a point when Judge Kram was "speaking and talking to somebody." (H. 30). He also testified that "[b]efore they take me to the door," he told Richman, "please, could you make the appeal for me," and that Richman said he would do so. (H. 30). Williams believed Richman would file an appeal to vacate his plea and sentence. (H. 7-8).
Williams testified that, in addition to the conversation at the sentencing, he had spoken to Richman over the phone on "numerous occasions" after the sentencing regarding the filing of the notice of appeal (H. 6, 26-29, 30), though none of these telephone conversations occurred within the first thirty days after sentencing. (H. 29).5 Williams did not recall Richman telling him there were no grounds for an appeal. (H. 15-16, 25).
Williams was sentenced on May 17, 2000. The judgment of conviction was entered on May 31, 2000. Accordingly, his time to appeal expired on June 14, 2000.
Williams testified that sometime in June 2000 he had called Richman to discuss the appeal and learned that the notice of appeal had not been filed. (H. 6-7). Williams also learned it was now too late to file an appeal. (H. 7). When Williams asked why the notice of appeal had not been filed, Richman apologized and said he was busy with other cases where the client was facing "a lot of time." (H. 7).
B. Richman's Testimony
Richman testified that he is an attorney practicing federal criminal defense work with his own firm. (H. 32). He has been on the CJA panel, from which attorneys are assigned to criminal defendants, in either the Southern or Eastern District of New York since 1990. (H. 33-34). He was also a professor in the Cardozo Law School appeal clinic. (H. 33). Richman had been a public defender in Bronx County for the Legal Aid Society for four and a half years and associate appellate counsel for the Legal Aid Society for about a year and a half prior to opening his own practice. (H. 32).
During his time as a criminal defense lawyer, Richman has filed approximately twenty notices of appeal in both federal and state courts. (H. 35). Filing a notice of appeal requires filing a form with the court clerk within ten days of the entry of judgment. (H. 35). Richman testified that he has never failed to file a notice of appeal when instructed by a client to do so, even when there were no grounds for an appeal. (H. 44-45). Richman has also filed Anders briefs, by which an assigned counsel makes a motion to be relieved on appeal because there are no non-frivolous issues that can be raised. (H. 45-46). Richman testified that if he had filed a notice of appeal in Williams' case, he would have expected to file an Anders brief because Richman believed there to be no non-frivolous issues, although he also said that he probably could have "come up with something" if necessary. (H. 46, 50, 58, 59).
Richman testified unequivocally that he discussed the possibility of an appeal with Williams; that their discussion took place within the time to appeal; and that the decision was made by Williams not to appeal. (H. 60-61). Richman conceded that he did not "have a clear recollection" (H. 40) of the details of his discussions with Williams following the judgment of conviction but he nonetheless remembered discussions about the possibility of an appeal. (H. 41). Richman recalled that some of those meetings were in person. (H. 41, 48-49). Richman had notes and a voucher (admitted into evidence) reflecting an in-person meeting with Williams on May 23, 2000. (H. 48, 53-55). Richman did not specifically recall whether the possibility of an appeal was discussed on that date, but he believed it could have been. (H. 49, 55-56). In any event, Richman was certain that a discussion about the possibility of an appeal occurred at some point before the time to file a notice of appeal had expired. (H. 57-58, 60-61).
As to the substance of their conversations, Richman remembered discussing the risks of appealing the sentence, including the fact that Williams might do much worse at a trial. (H. 43-44, 56-57). He also remembered Williams being "very depressed about the whole situation" because Richman had conveyed the disadvantages to filing an appeal. (H. 43-44). Richman testified that:
I know that he, as most defendants do, would like to get an appeal if it's in their best interests and I know that he broached the subject of an appeal, should we appeal, or, you know, I would like to do an appeal. Certainly that was there.
But we had a discussion and the decision was made not to file it. I mean, there is no question in my mind that if he had told me, no, file one anyway, I would have done it. I get paid to do the Anders brief by the Court of Appeals, so that's not a big issue for me.
(H. 58; accord H. 44). Richman testified that there was "no direction" from Williams to file a notice of appeal. (H. 44, 60-61). He understood it was Williams' decision whether to appeal and that "after I advised him that he shouldn't appeal, he was like, oh, okay, that's what we'll do." (H. 61).
C. The Disputed Issue of Fact
The only material factual dispute between the parties is whether Williams instructed Richman to file a notice of appeal.
The Court credits Richman's testimony that he discussed the possibility of an appeal with Williams (H. 43-44, 48, 57-58, 61) and that Williams never told him to file a notice of appeal (H. 44, 60-61). This conclusion is not based simply on the demeanor of the witnesses at the hearing but also on the logic of Richman's testimony contrasted with the improbability of Williams' testimony.
Richman testified that he believed there were no non-frivolous grounds for an appeal (H. 40, 42-44, 49-50, 59), a conclusion certainly supported by the record in this case, which would explain a decision by Richman and Williams not to seek an appeal. Moreover, there were obvious risks to appealing because Williams would be disadvantaged either if he went to trial or if the Government noticed on remand that his criminal history category was in fact one step higher than it should have been. (H. 43).
Richman's testimony is bolstered by the fact that there is no reason why he would have failed to file a notice of appeal. He testified that he had filed notices of appeal on at least twenty occasions. (H. 34-35). As Richman put it, "it's no skin off [his] nose," to file a notice of appeal; in fact, it is "easy to do." (H. 44). He noted that he is paid by the Court of Appeals for filing an appeal brief. (H. 58).
The Court discounts Williams' testimony. During the evidentiary hearing, he was extremely evasive regarding his conduct in the bank fraud, to which he pled guilty, refusing to answer direct questions about what in fact he had done. (H. 8-11). He was also evasive as to whether he had read an affidavit he had submitted as part of his Motion to Vacate. (H. 16-20). Although he admitted he knew he was signing the affidavit under penalty of perjury (H. 16-17), he repeatedly denied knowing or understanding the contents of his affidavit. (H. 17-20).
Williams showed he was willing to lie when he stated at the evidentiary hearing that he had told Judge Kram no one had promised him anything regarding his sentence even though he testified that this was not in fact the case. (H. 23). Moreover, Williams' very conviction for bank fraud casts doubt on his credibility. As reflected in his plea, Williams opened a bank account for a fictitious company using an alias. (P. 11-12). He then deposited a counterfeit check into that account and attempted to withdraw money from it (P. 11).
For these reasons, I credit the testimony of Richman on all material points: Richman and Williams discussed an appeal; Williams concurred that there should be no appeal; and Williams never instructed Richman to file a notice of appeal.
Discussion
In his Motion to Vacate, Williams seeks to vacate, set aside, or correct his sentence on the grounds of ineffective assistance of counsel because (1) Richman was ineffective in failing to file an appeal despite Williams' request; (2) Lee had promised Williams he would receive probation in exchange for the guilty plea; and (3) Lee failed to explain the deportation consequences of pleading guilty. See Motion to Vacate at 2, 6-7. Each claim is discussed separately.
While Williams is no longer incarcerated under his judgment of conviction, he was so incarcerated at the time of the filing of his motion and in any event is still within the period of his supervised release. Accordingly, he is eligible to bring this motion under 28 U.S.C. § 2255. See, e.g., Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994).
A. Failure to File a Notice of Appeal
Williams argues that Richman was ineffective because he failed to file a notice of appeal despite instructions to do so. See Motion to Vacate at 2-3. To show ineffective assistance of counsel, a petitioner must meet the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984), by showing that his "counsel's representation fell below an objective standard of reasonableness . . . [and] that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 687-88, 694.The Supreme Court has held that "a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (citing Rodriguez v. United States, 395 U.S. 327 (1969)). Because the Court finds that Williams agreed with his attorney's suggestion that the case not be appealed, Richman was not ineffective in his decision not to file a notice of appeal.
The Supreme Court has also held that "counsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Roe v. Flores-Ortega, 528 U.S. at 480. This rule is inapplicable to the present case because Williams makes no claim that there was a failure to consult regarding an appeal and because, in any event, Williams never demonstrated to counsel that he wished to appeal. In addition, the Court finds that Richman in fact consulted with Williams regarding an appeal. (H. 42-44, 57-58, 61).
B. Lee's Alleged Advice Regarding Sentencing
Williams argues that his guilty plea was not entered knowingly and intelligently due to his counsel's ineffectiveness. See Motion to Vacate at 6-7. Specifically, Williams alleges that Lee had promised him that he would receive probation if he pled guilty and also advised him that if he failed to plead guilty he would face life in prison. See Motion to Vacate at 8-9; Affidavit of Anthony Williams, dated December 28, 2000 ("Williams Aff."), ¶¶ 7-10.
This Court's findings regarding Williams' failure to appeal also dispose of this issue. Williams' allegations that his counsel ineffectively advised him regarding his plea are directed exclusively at Lee, not at Richman. Lee, however, was relieved on April 26, 2001, before Williams decided to proceed with his plea and before the judgment of conviction was entered. Williams' allegations regarding his counsel's ineffectiveness in advising him on the guilty plea — and his original desire to vacate his guilty plea ___ were raised before the District Judge in Williams' April 3, 2000, letter and at the April 26, 2000 conference. See C. 3-4 (referring to 11 Williams' letter and containing Williams assertion that Lee promised him he would get "nine to ten months' probation"). It was because of these very allegations that the District Judge appointed new counsel for Williams. Following the appointment of Richman as Williams' new counsel, Williams elected not to move to withdraw his plea. He also elected not to appeal his judgment of conviction.
It is well-settled that habeas corpus review under 28 U.S.C. § 2255 is not a substitute for a direct appeal. See, e.g., United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998); United States v. Gordon, 433 F.2d 313, 314 (2d Cir. 1970) ("A motion under section 2255 may not be used to review grounds which defendant failed timely to raise at trial and on appeal.") Where a defendant does not bring a claim on direct appeal, the defendant is barred from raising the claim in a subsequent proceeding under 28 U.S.C. § 2255 unless he or she can establish cause for the procedural default and actual prejudice resulting therefrom. See, e.g., Underwood v. United States, 166 F.3d 84, 87 (2d Cir. 1999). This bar applies even to a claim that a plea was involuntary. See Bousley v. United States, 523 U.S. 614, 621 (1998).
The rule normally does not apply, however, where the basis of the 2255 motion is an ineffective assistance of counsel claim on the theory that an attorney may not be inclined to argue his or her own ineffectiveness on appeal, that the attorney may find it difficult to identify examples of his or her own ineffectiveness, and because resolution of such claims typically involves consideration of matters outside the record on appeal. See, e.g., Billy-Eko v. United States, 8 F.3d 111, 114 (2d Cir. 1993), superseded by statute on other grounds as recognized in Triestman v. United States, 124 F.3d 361, 369 n. 8 (2d Cir. 1997). Where these grounds do not apply, however, there is no reason why a defendant should not be required to raise ineffective 12 assistance of counsel claims on direct appeal. Thus, the Second Circuit has held that where there is new appellate counsel on direct appeal and the ineffective assistance claim is based solely on the record at trial, section 2255 relief is unavailable. Billy-Eko, 8 F.3d at 115; accord Bloomer v. United States, 162 F.3d 187, 191-92 (2d Cir. 1998) ("where the defendant is represented by new appellate counsel on direct appeal, and the ineffective assistance claim is based solely on the record developed at trial, the defendant is required to raise his claim on direct appeal").
The same reasons that motivated the rule set forth in Billy-Eko and Bloomer apply with even stronger force here: (1) Williams was provided with new counsel far earlier than any potential appellate stage of his proceedings; and (2) the record of the alleged violation had already been made before the entry of the judgment of conviction, when Williams sought to withdraw his guilty plea. Indeed, it was because Williams himself had made a record of the alleged violation that the District Judge promptly provided Williams with new counsel in the first place. Not only did Williams chose to proceed with his plea, he also elected not to appeal. Notably, Williams' decision not to appeal occurred following a discussion with his new lawyer of the risks of appeal and as part of a specific decision not to raise on appeal the alleged ineffective assistance of counsel claim as it related to his plea. (H. 59-60).
Moreover, none of the concerns that motivated the rule in Billy-Eko apply here. To institute an appeal, Richman would not have been required to search the record of his own conduct for error. He would not have had to file an appellate brief alleging that he made errors. Nor would he have had to develop a new record for purposes of the appeal. Because there was nothing preventing Williams from raising his ineffective assistance of counsel claim as part of a direct appeal, Williams is now barred from attempting to raise that claim as part of a collateral 13 attack on his judgment of conviction. As Williams can show no cause for his failure to raise this claim on appeal, this ground for relief should be rejected.
C. Deportation Consequences of Conviction
Williams also claims that his plea was not entered into knowingly and intelligently because Lee failed to explain the deportation consequences of pleading guilty. See Motion to Vacate at 6-7. In his affidavit, Williams states that "Mr. Lee never informed [Williams] that he would be deported from the United States and that an I.N.S. 212(c) waiver of deportation was not available due to the new A.E.D.P.A. and IIRAIRA laws." Williams Aff. ¶ 3. He asserts that "had [Williams] been informed of such harsh sanctions, [he] would have taken [his] chances before a jury trial." Id. at ¶ 4.
Under the Strickland test for determining ineffective assistance of counsel, "[t]he voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." Hill v. Lockhart, 474 U.S. 52, 56 (1985) (citation omitted). However, there exists no right to effective assistance of counsel as to the collateral consequences of a guilty plea. See, e.g., Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir. 1992). Deportation has been held to be a collateral consequence of a guilty plea because it is not an automatic punishment. See United States v. Santelises, 476 F.2d 790 (2d Cir. 1973); accord United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993); United States v. Olvera, 954 F.2d 788, 793 (2d Cir. 1992) (citing United States v. Santelises, 476 F.2d 787 at 790). Because deportation is a collateral consequence of conviction, there is no requirement that a defendant be made aware of the possibility of deportation prior to pleading guilty, including by the trial court. See Santelises, 476 F.2d at 790; accord United States v. Salerno, 66 F.3d 544, 550 (2d Cir. 1995); Michel v. United States, 507 F.2d 461, 445-46 (2d Cir. 1974).
For these reasons, it is well-settled that an attorney's failure to warn a criminal defendant of possible deportation following a guilty plea does not render the attorney's legal assistance ineffective. See, e.g., United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975); accord Banda, 1 F.3d at 355 ("an attorney's failure to advise a client that deportation is a possible consequence of a guilty plea does not constitute ineffective assistance of counsel"); United States v. Yearwood, 863 F.2d 6, 7-8 (4th Cir. 1988); United States v. Campbell, 778 F.2d 764, 768 (11th Cir. 1985). Accepting Williams' assertion regarding Lee's conduct as true, Lee's alleged failure to inform Williams of the deportation consequences of a conviction would not fall below the range of competence demanded of attorneys in criminal cases. Thus, Williams' motion on this ground should be denied.
CONCLUSION
For the reasons set forth above, I recommend that the Court deny Williams' motion under 28 U.S.C. § 2255. In addition, the existing stay of deportation should be vacated.
On July 4, 2001, Williams, acting pro se, submitted an "Application for Release on Bail/Bond from INS Detention." For the reasons already described in this Report, Williams has not raised a "substantial claim" in his petition that would justify any award of bail. See Mapp v. Reno, 241 F.3d 221, 229 (2d Cir. 2001). Thus, it is recommended that his request for release be denied.