09-3871-pr
Raysor v. United States
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2010
6
7 (Argued: November 23, 2010 Decided: July 27, 2011)
8
9 Docket No. 09-3871-pr
10
11 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
12
13 UMEME RAYSOR,
14
15 Petitioner-Appellant,
16
17 v.
18
19 UNITED STATES OF AMERICA,
20
21 Respondent-Appellee,
22
23 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
24
25 B e f o r e: WINTER, CALABRESI, and KATZMANN, Circuit Judges.
26
27 Appeal from a denial by the United States District Court for
28 the Eastern District of New York (Sandra Townes, Judge) of a
29 Section 2255 motion to vacate a sentence due to counsel’s failure
30 to advise appellant with regard to a plea offer by the
31 government. We vacate and remand for an evidentiary hearing on
32 the ineffective assistance of counsel claim.
33 SALLY WASSERMAN, New York, New York, for
34 Petitioner-Appellant.
35
36 WILLIAM D. SARRAT, Assistant United
37 States Attorney, of counsel (Jo Ann M.
38 Navickas, Assistant United States
39 Attorney, of counsel, on the brief),
1
1 Loretta E. Lynch, United States
2 Attorney, United States Attorney’s
3 Office for the Eastern District of New
4 York, Brooklyn, New York, for
5 Respondent-Appellee.
6
7 WINTER, Circuit Judge:
8 Umeme Raysor appeals from Judge Townes’s denial of his
9 petition for a writ of habeas corpus. Raysor v. United States,
10 No. 03-CV-5418, 2009 WL 2707307 (E.D.N.Y. Aug. 26, 2009). The
11 only issue on appeal is a claim of ineffective assistance of
12 counsel. Appellant alleges that trial counsel failed to advise
13 him as to whether appellant should accept or reject a particular
14 plea offer by the government. The district court concluded that
15 appellant failed to establish that he was actually prejudiced by
16 counsel’s alleged ineffectiveness and denied the motion without
17 holding a full evidentiary hearing.
18 We vacate and remand.
19 BACKGROUND
20 From approximately 1985 to 1996, appellant and his brother
21 ran a violent street gang that distributed large quantities of
22 drugs in New York and Virginia. On December 10, 1996, after
23 appellant was indicted, the government sent a letter to his
24 original counsel memorializing a plea offer. The offer involved
25 a government recommendation of 29 years’ incarceration.
26 According to the letter, the plea offer would expire on December
27 20, 1996, but the offer was briefly extended until after a
2
1 meeting between appellant’s original counsel and the government
2 on February 3, 1997. Appellant rejected the government’s offer,
3 and no additional plea offers were made.
4 On February 27, 1997, the government moved to disqualify
5 original counsel on the basis of a conflict of interest resulting
6 from original counsel’s prior representation of a co-defendant.
7 On April 4, 1997, the motion was granted.
8 Appellant’s trial lasted approximately twelve weeks. The
9 government’s case consisted primarily of accomplice testimony;
10 nine former gang members testified against appellant, eight of
11 whom pled guilty prior to trial. The jury found appellant guilty
12 on four counts: (i) racketeering, in violation of 18 U.S.C. §
13 1962(c); (ii) racketeering conspiracy, in violation of 18 U.S.C.
14 § 1962(d); (iii) operating a criminal enterprise, in violation of
15 21 U.S.C. § 848; and (iv) conspiracy to distribute and to possess
16 with the intent to distribute cocaine base, in violation of 21
17 U.S.C. § 846. Appellant was acquitted on eight counts, and,
18 despite the conviction on the racketeering count, the jury found
19 that 10 of the 13 predicate acts had not been proven. However,
20 the jury did find appellant guilty of a predicate act of murder.
21 On August 13, 1999, appellant was sentenced to multiple life
22 terms.
23 On direct appeal, appellant raised numerous claims of error,
24 none of which are pertinent to this appeal. After remanding for
3
1 supplementation of the record, United States v. Raysor, 9 F.
2 App’x 33 (2d Cir. 2001), we vacated the conviction for conspiracy
3 to distribute narcotics under 21 U.S.C. § 846, but affirmed the
4 district court’s judgment in all other respects. United States
5 v. Raysor, No. 99-1503, 2001 WL 36037731 (2d Cir. Apr. 29, 2002).
6 On November 4, 2002, the Supreme Court denied appellant’s
7 petition for a writ of certiorari. Raysor v. United States, 537
8 U.S. 1012 (2002).
9 On October 20, 2003, appellant filed the instant petition
10 pro se pursuant to 28 U.S.C. § 2255, asserting, inter alia,
11 ineffective assistance of counsel. He alleged that he had been
12 deprived of adequate assistance of counsel because his original
13 counsel “failed to discuss with Raysor the advisability of
14 whether to accept or reject the government’s plea offer.” App.
15 51. Further, he submitted an affidavit stating that his original
16 counsel:
17 never conveyed to this affiant his ultimate
18 opinion as to the wisdom of the plea nor did
19 he give any suggestions as to how to deal
20 with the government’s plea offer. Affiant
21 asserts that if properly advised by counsel,
22 he would have accepted the plea bargain
23 instead of proceeding to trial.
24 Id. at 67. The district court also had before it original
25 counsel’s affirmation, submitted by the government, that “I
26 conveyed the government offer of 29 years to the defendant. The
27 defendant refused the offer.” Id. at 76. The district court
4
1 dismissed the petition after concluding that, even if original
2 counsel had provided ineffective assistance, appellant had failed
3 to establish a reasonable probability that he would have accepted
4 the plea. Raysor, 2009 WL 2707307, at *2.
5 The district court denied a certificate of appealability.
6 Id. at *6. On February 19, 2010, we granted appellant a
7 certificate of appealability to review whether the district court
8 erred in not conducting an evidentiary hearing.
9 DISCUSSION
10 Section 2255 states that “[u]nless the motion and the files
11 and records of the case conclusively show that the prisoner is
12 entitled to no relief, the court shall . . . grant a prompt
13 hearing thereon, determine the issues and make findings of fact
14 and conclusions of law with respect thereto.” 28 U.S.C. §
15 2255(b).
16 A defendant seeking a hearing on an ineffective assistance
17 of counsel claim “need establish only that he has a ‘plausible’
18 claim of ineffective assistance of counsel, not that he will
19 necessarily succeed on the claim.” Puglisi v. United States, 586
20 F.3d 209, 213 (2d Cir. 2009) (internal quotation marks omitted).
21 Moreover, “[t]he procedure for determining whether a hearing is
22 necessary is in part analogous to . . . a summary judgment
23 proceeding. . . . If material facts are in dispute, a hearing
24 should usually be held, and relevant findings of facts made.”
25 Id.
5
1 “[O]ur standard of review with respect to a district court’s
2 decision to hold a hearing,” however, “differs from summary
3 judgment’s general de novo review.” Id. at 215. We review a
4 district court’s denial of an evidentiary hearing for clear error
5 as to issues of fact and de novo as to issues of law. Id.
6 It is within the district court’s discretion to determine
7 the scope and nature of a hearing. Chang v. United States, 250
8 F.3d 79, 85-86 (2d Cir. 2001). Thus, when the judge who tried
9 the underlying proceedings also presides over a § 2255 motion, a
10 full-blown evidentiary hearing may not be necessary. See
11 Puglisi, 586 F.3d at 214-15. Although “[o]ur precedent
12 disapproves of summary dismissal of petitions where factual
13 issues exist[], . . . it permits a ‘middle road’ of deciding
14 disputed facts on the basis of written submissions.” Pham v.
15 United States, 317 F.3d 178, 184 (2d Cir. 2003) (citing Chang,
16 250 F.3d at 86).
17 For example, in Chang, the district court did not hold a
18 full-blown testimonial hearing where the petitioner had alleged
19 ineffective assistance for counsel’s refusal to let petitioner
20 testify on his own behalf. 250 F.3d at 81-82. The district
21 court considered the petitioner’s affidavit’s blanket statements
22 that counsel had prohibited him from testifying as well as
23 counsel’s “detailed affidavit . . . credibly describing the
24 circumstances concerning appellant’s failure to testify.” Id. at
25 85. It denied the petition and the request for an evidentiary
6
1 hearing because counsel’s affidavit “belied [petitioner’s]
2 claim." Id. at 82 (internal alteration omitted). We affirmed
3 the denial of the evidentiary hearing and concluded that a full-
4 fledged evidentiary hearing was unnecessary to flesh out the
5 petitioner’s § 2255 petition:
6 It was, therefore, within the district
7 court’s discretion to choose a middle road
8 that avoided the delay, the needless
9 expenditure of judicial resources, the burden
10 on trial counsel and the government, and
11 perhaps the encouragement of other prisoners
12 to make similar baseless claims that would
13 have resulted from a full testimonial
14 hearing. The district court reasonably
15 decided that the testimony of Chang and his
16 trial counsel would add little or nothing to
17 the written submissions. . . . [W]e cannot
18 say that it was an abuse of discretion on the
19 part of the district court to conclude that
20 such a hearing would not offer any reasonable
21 chance of altering its view of the facts.
22
23 Id. at 86.
24 Turning to the merits, to be entitled to relief on a claim
25 of counsel’s ineffective assistance, a “defendant must show that
26 counsel’s performance was deficient” and “that the deficient
27 performance prejudiced the defense.” Strickland v. Washington,
28 466 U.S. 668, 687 (1984). The performance prong requires a
29 showing that defense counsel’s representation “fell below an
30 objective standard of reasonableness.” Id. at 688. When
31 analyzing counsel’s alleged deficiency, a court must “indulge a
32 strong presumption that counsel’s conduct falls within the wide
33 range of reasonable professional assistance.” Id. at 689.
7
1 Moreover, “[t]he reasonableness of counsel’s performance is to be
2 evaluated from counsel’s perspective at the time of the alleged
3 error and in light of all the circumstances.” Kimmelman v.
4 Morrison, 477 U.S. 365, 381 (1986). As to prejudice, a defendant
5 must demonstrate “a reasonable probability that, but for
6 counsel’s unprofessional errors, the result of the proceeding
7 would have been different.” Strickland, 466 U.S. at 694.
8 The district court never addressed whether counsel’s
9 performance fell below an objective standard of reasonableness
10 under the first Strickland prong, but denied relief based on
11 appellant’s failure to show prejudice as the second prong
12 requires. See Raysor, 2009 WL 2707307, at *2 (“Even assuming, as
13 Raysor argues, that defense counsel failed to offer advice
14 regarding the desirability of the twenty-nine year plea offer,
15 Raysor has not established a reasonable probability that he would
16 have accepted the plea.”).
17 To show the requisite prejudice in the instant case,
18 appellant must demonstrate a reasonable probability that but for
19 counsel’s deficient performance, he would have pled guilty
20 instead of going to trial. See Purdy v. United States, 208 F.3d
21 41, 49 (2d Cir. 2000) (to show prejudice under Strickland,
22 defendant “must demonstrate a reasonable probability that but for
23 [defense counsel’s] deficiencies, [the defendant] would have pled
24 guilty”); Cullen v. United States, 194 F.3d 401, 405 (2d Cir.
25 1999) (evaluating the “likelihood that [the defendant] would have
8
1 accepted the plea bargain if he had been fully informed of its
2 terms and accurately advised of the likely sentencing ranges
3 under the plea bargain and upon conviction after trial”).
4 Appellant’s burden was to proffer a prima facie case that,
5 but for counsel’s improper advice, the petitioner would have
6 accepted the plea offer. Puglisi, 586 F.3d at 215. Prima facie
7 evidence may include a petitioner’s own statement, as was offered
8 here; however, in order for the statement to be sufficiently
9 credible to justify a full hearing, it must be accompanied by
10 some “objective evidence,” such as a significant sentencing
11 disparity, that supports an inference that the petitioner would
12 have accepted the proposed plea offer if properly advised. Id.
13 at 215-16; see also United States v. Gordon, 156 F.3d 376, 381
14 (2d Cir. 1998) (finding that “such a disparity [between the
15 sentence imposed and the sentence that effective counsel would
16 have obtained for the defendant] provides sufficient objective
17 evidence -- when combined with a petitioner’s statement
18 concerning his intentions -- to support a finding of prejudice
19 under Strickland”).
20 The government contends that appellant’s post-conviction
21 assertion that, with the benefit of competent legal advice, he
22 would have accepted the government’s plea offer, is insufficient
23 by itself to establish a reasonable probability that appellant
24 would have pled guilty. The government also argues that the
9
1 district court acted within its discretion in denying appellant’s
2 claim without holding a hearing. We disagree and conclude that
3 an evidentiary hearing is necessary to flesh out the sparse
4 record before us.
5 Appellant has asserted under oath that he would have
6 accepted the plea offer if properly advised by counsel. This
7 distinguishes Puglisi, where the petitioner failed to provide
8 such a personal sworn statement. See Puglisi, 586 F.3d at 216-17
9 (“We believe that a statement regarding intent must be directly
10 attributable to the habeas petitioner, whether it be through
11 sworn testimony in the main proceeding or a sworn affidavit in
12 support of the motion.”).
13 Moreover, the disparity between the sentence offered in the
14 plea agreement -- 29 years -- and the sentence he actually
15 received -- multiple life terms -- was substantial. Along with
16 appellant’s testimony, it may provide enough “objective evidence”
17 to support the inference appellant would have accepted the plea
18 offer if properly advised. See, e.g., id. at 216; Pham, 317 F.3d
19 at 182-83; Gordon, 156 F.3d at 380-81. Given appellant’s age of
20 25 at the time of the plea offer, a guilty plea would have led to
21 his release during his early fifties. The difference between
22 this and life imprisonment is sufficient to satisfy the prejudice
23 requirement. See, e.g., Pham, 317 F.3d at 182-83 (remanding for
24 an evidentiary hearing on ineffective assistance because
10
1 prejudice could be found based on the “undisputed sentencing
2 disparity of at least 113 months between the high end of the
3 government plea offer [of 78 to 97 months] and Pham’s sentence
4 [of 210 months] after a trial conviction”); Gordon, 156 F.3d at
5 381 (finding the disparity between the 84 months offered in the
6 plea agreement and the actual sentencing range of 262 to 327
7 months as “sufficient objective evidence . . . to support a
8 finding of prejudice under Strickland”); see also Mask v.
9 McGinnis, 233 F.3d 132, 142 (2d Cir. 2000) (“[A] large disparity
10 between the defendant’s sentence exposure following a trial and
11 his potential exposure had a plea offer been made . . . . coupled
12 with [defendant’s] statements that he would have accepted a
13 reasonable offer as credited by the district court, satisfies the
14 prejudice requirement.”). Indeed, the government concedes in its
15 brief that “there is a potentially significant disparity between
16 the offered 29-year sentence and the life sentence Raysor
17 received.”
18 With regard to the reasonableness of original counsel’s
19 performance, it is clear that failure to advise a client as to a
20 plea offer is unreasonable performance. Cullen, 194 F.3d at 404
21 (“failure to give any advice concerning the acceptance of a plea
22 bargain [falls] below the standard of reasonable representation”)
23 (citing Boria v. Keene, 99 F.3d 492, 496-97 (2d Cir. 1996)).
24 Counsel must advise a client regarding a plea offer, although
25 “counsel’s choice of how to do so will be guided by many factors,
11
1 including the duty to avoid coercing a plea from an unwilling
2 client.” Purdy, 208 F.3d at 47.
3 The statement by original counsel, quoted supra, was only
4 that he conveyed the plea offer but appellant rejected it. This
5 statement is hardly equal to the “detailed affidavit from trial
6 counsel credibly describing the circumstances concerning
7 appellant’s failure to testify” that we found sufficient to deny
8 a full evidentiary hearing and to support dismissal of the § 2255
9 petition in Chang, 250 F.3d at 85. In particular, we do not know
10 what, if anything, was communicated to appellant regarding the
11 likelihood of a substantially more severe sentence as a result of
12 going to trial, what original counsel believed as to the plea
13 offer, or why original counsel did whatever he did. There is,
14 moreover, the fact that the court soon after disqualified
15 original counsel for a conflict of interest.
16 We acknowledge that the issues are close. Numerous
17 questions of fact or mixed fact and law must be resolved in
18 appellant’s favor if he is to prevail. These include: (i) what
19 would have been reasonable legal advice in the circumstances;
20 (ii) whether original counsel gave such advice; (iii) what the
21 considered basis for original counsel’s actions was; and (iv)
22 whether but for counsel’s alleged ineffectiveness, appellant
23 would have accepted the government’s plea offer and pled guilty.
24 There is sufficient chance of success, however, in our view to
25 justify a full hearing on remand.
12
1 CONCLUSION
2 For the foregoing reasons, the judgment is vacated and the
3 matter is remanded for further proceedings in accordance with
4 this opinion.
5
13