Puglisi v. United States

04-4834-pr
Puglisi v. United States

1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2008
6
7 (Argued: November 24, 2008 Decided: November 13, 2009)
8
9 Docket No. 04-4834-pr
10
11 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
12
13 FREDERICK PUGLISI,
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, WALKER, and CALABRESI, Circuit Judges.
26
27 Appeal from a denial by the United States District Court for

28 the Eastern District of New York (Joanna Seybert, Judge) of a 28

29 U.S.C. § 2255 motion to vacate conviction and sentence due to

30 ineffective assistance of counsel. We hold that denial was

31 appropriate given that appellant failed to produce or identify

32 evidence of actual prejudice. We therefore affirm.

33

1
 1 CHERYL J. STURM, Chadds Ford,
2 Pennsylvania, for Petitioner-Appellant.
3
4 JO ANN M. NAVICKAS, Assistant United
5 States Attorney (Benton J. Campbell,
6 United States Attorney, Peter A.
7 Norling, Assistant United States
8 Attorney, of counsel, on the brief),
9 United States Attorney’s Office for the
10 Eastern District of New York, Brooklyn,
11 New York, for Respondent-Appellee.
12
13 WINTER, Circuit Judge:

14 Frederick Puglisi appeals from Judge Seybert’s order denying

15 his 28 U.S.C. § 2255 motion to vacate his conviction and sentence

16 due to ineffective assistance of counsel. The basis for the

17 motion was a claim that appellant’s trial counsel misinformed him

18 as to whether the district court could consider conduct for which

19 he had not been convicted in determining his sentence. It was

20 argued in supporting papers that appellant relied on such

21 misinformation in rejecting a plea agreement offered by the

22 government. The district court concluded that appellant failed

23 to establish that he was actually prejudiced by the alleged

24 misinformation and denied the motion without holding an

25 evidentiary hearing. On appeal, appellant contends that the

26 district court erred in denying his motion without first holding

27 a hearing.

28 We affirm.

29

2
1 BACKGROUND

2 Appellant was tried with co-defendants Silverio Romano and

3 Anthony Basile. Appellant had been charged with a myriad of

4 crimes, many quite serious: racketeering, 18 U.S.C. § 1962(c),

5 racketeering conspiracy, id. § 1962(d), murder and conspiracy to

6 kidnap and murder in order to increase or maintain position in

7 the racketeering enterprise, id. § 1959(a)(1) & (5), conspiracy

8 to possess with intent to distribute cocaine and marijuana, 21

9 U.S.C. §§ 846, 841(a)(1), possession with intent to distribute

10 marijuana, id. § 841(a)(1), use of a communication device to

11 facilitate narcotics offenses, id. § 843(b), use and possession

12 of firearms in relation to crimes of violence and drug

13 trafficking crimes, 18 U.S.C. § 924(c)(1), and receiving or

14 possessing defaced firearms, id. § 922(k). On February 14, 1995,

15 after a four and one-half month trial and seventeen days of

16 deliberation, the jury convicted appellant of racketeering,

17 racketeering conspiracy, conspiracy to possess with intent to

18 distribute marijuana, possession with intent to distribute

19 marijuana, and the use of a communication device to facilitate a

20 narcotics transaction. The jury could not agree on a verdict as

21 to the remaining charges.

22 After several adjournments to allow present counsel, who was

23 retained after the trial but before sentencing, to supplement

24 trial counsel’s sentencing submissions with her own, the court

3
1 held a series of sentence-related hearings in March and April of

2 1997. At the beginning of the final sentencing hearing on April

3 25, 1997, appellant was represented both by trial counsel and

4 present counsel. At that hearing, present counsel pressed a

5 claim, obliquely raised for the first time in an out-of-time

6 submission two days prior, that appellant was entitled to a

7 sentence reduction for acceptance of responsibility. Her

8 argument was that trial counsel had misinformed appellant as to

9 the court’s power to consider at sentencing conduct that was not

10 the subject of conviction. That misinformation, the argument

11 went, caused appellant to fail to plead guilty, thereby losing a

12 reduction in sentence for acceptance of responsibility. See U.S.

13 Sentencing Guidelines (“U.S.S.G.”) § 3E1.1 (1991). The

14 government immediately countered that it could disprove the

15 factual basis of the argument -- that it was an “outrageous

16 claim” and “utterly and completely false.” Puglisi Sentencing

17 Trans., Apr. 25, 1997 (“Trans.”), at 42, 45.

18 The court inquired of trial counsel as to their position on

19 this issue, but they demurred on the ground of attorney-client

20 privilege. Present counsel then invoked the privilege, thereby

21 blocking the court’s inquiry. Trial counsel moved to withdraw as

22 counsel for appellant.

23 The court offered appellant’s present counsel an opportunity

24 to present evidence on the issue. Counsel declined. Rather, she

4
1 responded that before pressing appellant’s claim at an

2 evidentiary hearing, she needed to speak with possible witnesses

3 who were alleged to have overheard statements by trial counsel

4 after the verdict. After chiding present counsel for raising a

5 new point well after the scheduled deadline and without adequate

6 preparation, the judge then granted trial counsel’s motion to

7 withdraw and decided to proceed with the scheduled sentencing,

8 leaving the advice-of-trial-counsel issues to later proceedings.

9 Appellant then addressed the court. He stated that he never

10 wanted to go to trial but that “[t]he circumstances dragged me to

11 trial.” Trans. at 76. He said that he “felt that [he] should

12 have cooperated with the government” but that there were “people

13 involved in the case that were killing witnesses.” Trans. at 77.

14 He noted that if he had cooperated, his brother and brother-in-

15 law would lose their established businesses on Staten Island and

16 have to move, thereby “ruin[ing] their lives” and “destroy[ing]

17 their livelihood.” Id.

18 The district court sentenced appellant to life imprisonment.

19 The court based its sentence on a total offense level of 42,

20 which warranted a range from 360 months to life, and imposed the

21 highest term in the range after considering appellant’s role in

22 the attempted murders and a murder, charges on which the jury had

23 reached a hung verdict.

24 Appellant appealed, making several claims, one of which is

5
1 relevant to the present proceeding: loss of the acceptance of

2 responsibility reduction in sentence because of constitutionally

3 ineffective assistance of trial counsel. See United States v.

4 Silvestri, Nos. 97-1430, 97-1439, 1998 WL 777763, at *3 (2d Cir.

5 Oct. 29, 1998). We affirmed appellant’s conviction and sentence

6 but declined to rule on his ineffective assistance of counsel

7 claim due to the sparse record. Id.

8 On October 26, 1999, appellant timely filed the present

9 motion under 28 U.S.C. § 2255. The motion raised a number of

10 claims, only one of which is before us: trial counsel’s failure

11 to provide effective assistance in rendering pre-trial advice.

12 The memorandum of law accompanying the motion deviated in one

13 respect from the earlier claim on direct appeal concerning the

14 alleged erroneous advice. The harm now alleged to have occurred

15 was not simply the loss of the acceptance of responsibility

16 reduction but rather the failure to accept a plea bargain offered

17 by the government. The relief sought was the reversal of

18 conviction, or in the alternative, that the sentence be vacated.

19 No details were provided as to the plea bargain offered by the

20 government. Appellant filed a declaration and an affidavit in

21 support of the motion, the former adopting counsel’s statements

22 of facts as set forth in the motion and memorandum of law and the

23 latter stating in relevant part that he had been misinformed by

24 trial counsel in the manner noted above.

6
1 On November 2, 1999, the district court ordered the

2 government to show cause why appellant’s petition should not be

3 granted. After both the government’s reply and appellant’s

4 traverse were filed, the government wrote to the court requesting

5 that it issue an order directing appellant’s counsel to provide

6 more detailed facts to enable the government to provide the court

7 with attorney affirmations that would respond to appellant’s

8 allegations. Present counsel replied, suggesting that an

9 evidentiary hearing was the appropriate vehicle. Thereafter,

10 without a hearing, the district court issued an order denying the

11 petition. As to the ineffective assistance of counsel claim that

12 is the subject of this appeal, the district court concluded that

13 the appellant had failed to establish that counsel’s alleged

14 misinformation prejudiced the outcome of his case because (i) he

15 had persisted in his claims of innocence, (ii) he had exhibited

16 no intent to accept any offered plea agreement, and (iii) even

17 assuming that he would have accepted a plea offer, he remained

18 subject to the court’s consideration of any acquitted charges at

19 sentencing.

20 On February 28, 2009, we granted appellant a certificate of

21 appealability with respect to the ineffective assistance of

22 counsel claim relating to his rejection of a plea offer.

23 DISCUSSION

24 Appellant’s claim on appeal is that the district court erred

7
1 by not holding an evidentiary hearing on the ineffective

2 assistance of counsel claim asserted in his motion and presumably

3 (it is not explicitly argued) that he is entitled to the sentence

4 that he could have received had he accepted a plea agreement.

5 Under Section 2255 of Title 28, United States Code, a

6 federal prisoner may move the sentencing court to vacate, set

7 aside, or correct the sentence on the ground that such sentence

8 was illegally imposed. 28 U.S.C. § 2255(a). The statute further

9 provides that “[u]nless the motion and the files and records of

10 the case conclusively show that the prisoner is entitled to no

11 relief, the court shall . . . grant a prompt hearing thereon,

12 determine the issues and make findings of fact and conclusions of

13 law with respect thereto.” 28 U.S.C. § 2255(b). To warrant a

14 hearing on an ineffective assistance of counsel claim, the

15 defendant need establish only that he has a “plausible” claim of

16 ineffective assistance of counsel, not that “he will necessarily

17 succeed on the claim.” Armienti v. United States, 234 F.3d 820,

18 823 (2d Cir. 2000) (quoting United States v. Tarricone, 996 F.2d

19 1414, 1418 (2d Cir. 1993)). Rule 4(b) of the Rules Governing

20 § 2255 Proceedings further provides that “[i]f it plainly appears

21 from the motion, any attached exhibits, and the record of prior

22 proceedings that the moving party is not entitled to relief, the

23 judge must dismiss the motion.” Rules Governing § 2255

24 Proceedings for the United States District Courts, Rule 4(b), 28

8
1 U.S.C. foll. § 2255.

2 The procedure for determining whether a hearing is necessary

3 is in part analogous to, but in part different from, a summary

4 judgment proceeding. The petitioner’s motion sets forth his or

5 her legal and factual claims, accompanied by relevant exhibits:

6 e.g., an affidavit from the petitioner or others asserting

7 relevant facts within their personal knowledge and/or identifying

8 other sources of relevant evidence. Compare Rules Governing §

9 2255 Proceedings, Rules 2, 4(b), with Fed. R. Civ. P. 56(a)-(c);

10 see also Blackledge v. Allison, 431 U.S. 63, 80-83 (1977). The

11 district court reviews those materials and relevant portions of

12 the record in the underlying criminal proceeding. Compare Rules

13 Governing § 2255 Proceedings, Rules 4(b), 8(a) with Fed. R. Civ.

14 P. 56(c). The court then determines whether, viewing the

15 evidentiary proffers, where credible, and record in the light

16 most favorable to the petitioner, the petitioner, who has the

17 burden, may be able to establish at a hearing a prima facie case

18 for relief. If material facts are in dispute, a hearing should

19 usually be held, and relevant findings of facts made. Compare

20 Armienti, 234 F.3d at 825 (remanding for a hearing where

21 appellant alleged several specified instances of attorney’s

22 deficiencies that were product of specific conflict of interest),

23 United States v. Aiello, 814 F.2d 109, 113 (2d Cir. 1987)

24 (holding that hearing is appropriate when application includes

9
1 “assertions of fact that a petitioner is in a position to

2 establish by competent evidence”), and Newfield v. United States,

3 565 F.2d 203, 207 (2d Cir. 1977) (a motion supported by a

4 “sufficient” affidavit including detailed and controverted issues

5 of fact warrants a hearing, but “bald allegations” unsupported by

6 evidentiary facts do not), with Anderson v. Liberty Lobby, Inc.,

7 477 U.S. 242, 255 (1986) (requiring plaintiff present evidence

8 from which a jury might return a favorable verdict in order to

9 have survived summary judgment requirement that he provide “a

10 genuine issue of fact” for trial).

11 The analogy to summary judgment is not complete, however.

12 There is no pre-motion discovery in a Section 2255 case, as there

13 is in summary judgment proceedings in a civil case. Therefore, a

14 petitioner may need only to identify available sources of

15 relevant evidence rather than obtain it as in civil cases or seek

16 a discovery order from the court under Rule 6 of the Rules

17 Governing Section 2255 Proceedings. Compare Rules Governing

18 § 2255 Proceedings, Rules 4(b), 6(a) (discovery requires leave of

19 court), and Armienti, 234 F.3d at 823 with Fed. R. Civ. P. 56,

20 and Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir. 2008).

21 Moreover, a district court need not assume the credibility

22 of factual assertions, as it would in civil cases, where the

23 assertions are contradicted by the record in the underlying

24 proceeding. Compare Contino v. United States, 535 F.3d 124, 127-

10
1 28 (2d Cir. 2008) (per curiam) (defendant failed to make a

2 substantial showing that his plea was not voluntary or

3 intelligent or that he received ineffective assistance of counsel

4 where it was clear from the record, including the indictment, the

5 signed plea agreement, and the allocution at the plea proceeding

6 that he understood the nature of charges against him), Zhang v.

7 United States, 506 F.3d 162, 164, 169 (2d Cir. 2007) (defendant’s

8 claim that his guilty plea was involuntary because he was unaware

9 of the deportation consequences was insufficient where the judge

10 at the plea allocution put defendant on notice of the

11 consequences), Frederick v. Warden, Lewisburg Corr. Facility, 308

12 F.3d 192, 193, 196-98 (2d Cir. 2002) (defendant’s claim that he

13 received ineffective assistance of counsel because he did not

14 know the nature of the charges was insufficient where the

15 proceedings at the guilty plea hearing and the plea agreement

16 showed otherwise), Newfield, 565 F.2d at 208 (defendant was not

17 entitled to a hearing on his claims of incompetency at the time

18 of trial where there was no assertion of new information and the

19 trial judge reviewing the petition “had ample opportunity to

20 observe the appellant’s demeanor and behavior in the courtroom”),

21 and Accardi v. United States, 379 F.2d 312, 313 (2d Cir. 1967)

22 (per curiam) (defendant was not entitled to a hearing where he

23 claimed he was unable to understand the charges against him due

24 to his poor English language skills and that he was incompetent

11
1 at the time of trial where the trial judge reviewing the petition

2 was familiar with the facts, the record showed that defendant did

3 not need an interpreter and had discussions with his trial

4 attorney in English, and there was no proof of the claimed

5 medical condition), with Cioffi v. Averill Park Cert. Sch. Dist.

6 Bd. of Ed., 444 F.3d 158, 162 (2d Cir. 2006) (when deciding a

7 summary judgment motion in a civil case, all factual ambiguities

8 must be resolved in the non-moving party’s favor and the court

9 may not weigh the evidence, but rather must only determine

10 whether a genuine issue of fact exists for trial).

11 Indeed, for this reason, we have also held that when the

12 judge that tried the underlying proceedings also presides over

13 the Section 2255 motion, a less-than full-fledged evidentiary

14 hearing may permissibly dispose of claims where the credibility

15 assessment would inevitably be adverse to the petitioner.

16 For example, we have so held in a case in which a petitioner

17 raised a claim generic to all defendants who have not taken the

18 stand in their defense at trial, namely, that trial counsel

19 prohibited him from taking the stand. Chang v. United States,

20 250 F.3d 79, 84-86 (2d Cir. 2001). In Chang, the district court

21 did not hold a full hearing. Id. at 81-82. Rather, it invited

22 trial counsel to respond to the claim. Id. at 81. Trial counsel

23 submitted a detailed affidavit contradicting the claim that the

24 petitioner was not advised of his right to testify, detailing

12
1 conversations between counsel and the petitioner about the

2 advisability of testifying, and explaining why they agreed that

3 it was inadvisable for the petitioner to testify. Id. at 81-82.

4 We affirmed on the ground that a sufficient hearing had been held

5 to reject the claim. Id. at 85-86.

6 We held that in cases involving claims “that can be, and

7 [are] often, made in any case,” the judge may properly rely on

8 his or her knowledge of the record and may permissibly forgo a

9 full hearing and instead request letters, documentary evidence,

10 and affidavits to aid in its resolution of the claim. Id. at 86.

11 The trial judge is intimately familiar with the proceedings and

12 the surrounding circumstances. The trial judge is also in a

13 position, based on the knowledge gained in the underlying

14 criminal proceeding and on his or her role as a trier of fact in

15 the habeas proceeding, to hold that the particular petitioner had

16 no chance of overcoming counsel’s detailed explanation and

17 proving that counsel prohibited testimony in his or her defense.

18 Id. The intermediate step –- between deciding the motion without

19 the benefit of any supplemental materials and a full hearing with

20 live witnesses –- “avoid[s] the delay, the needless expenditure

21 of judicial resources, [and] the burden on trial counsel and the

22 government.” Id.

23 Finally, our standard of review with respect to a district

24 court’s decision to hold a hearing and if held, its sufficiency,

13
1 also differs from summary judgment’s general de novo review. See

2 Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 107 (2d

3 Cir. 2008). In some cases, such as where the judge who tried the

4 case holds a limited hearing to decide a generic claim, the

5 determination of whether the hearing was sufficient is reviewed

6 for an abuse of discretion. Chang, 250 F.3d at 82, 85-86. In

7 the present case, in which the district court denied any form of

8 an evidentiary hearing, our review of the district court’s denial

9 of a hearing is for clear error as to issues of fact, such as a

10 district court’s determination that the record precludes the

11 claim, and de novo for issues of law. Harris v. United States,

12 367 F.3d 74, 79 (2d Cir. 2004); Chang, 250 F.3d at 82. Because

13 petitioner’s claim of ineffective assistance of counsel is a

14 question of mixed fact and law, our review is de novo. See Pham

15 v. United States, 317 F.3d 178, 182 (2d Cir. 2003); Chang, 250

16 F.3d at 82. We turn now to the merits.

17 To establish an ineffective assistance of counsel claim, a

18 defendant must satisfy two requirements. See Strickland v.

19 Washington, 466 U.S. 668, 687 (1984). First, the defendant must

20 show that counsel’s performance was deficient. Id. Given the

21 procedural posture of this appeal, we will assume the deficiency

22 of the advice allegedly given, although the record of the

23 sentencing hearing suggests that trial counsel would, if allowed,

24 dispute the claim. Second, the defendant must show that the

14
1 deficient performance prejudiced the defense, that is, “there is

2 a reasonable probability that, but for counsel’s unprofessional

3 errors, the result of the proceeding below would have been

4 different.” Id. at 694. This prong of the Strickland test is

5 the subject of the present appeal.

6 With respect to a claim that counsel’s ineffective

7 assistance led to the rejection of a plea offer that, properly

8 informed, would have been accepted, a petitioner seeking a

9 hearing must proffer arguably credible evidence of a prima facie

10 case that, but for counsel’s improper advice, the petitioner

11 would have accepted the plea offer. See Aeid v. Bennett, 296

12 F.3d 58, 63-64 (2d Cir. 2002). This may be accomplished through

13 the petitioner’s own sworn statement if it is credible in light

14 of all the relevant circumstances. See Cullen v. United States,

15 194 F.3d 401, 407-08 (2d Cir. 1999) (“Though a claim that he

16 would have accepted the plea would be self-serving . . . , it

17 ought not to be rejected solely on this account. . . . The

18 credibility determination should be based on all relevant

19 circumstances.” (footnote omitted)); Dalli v. United States, 491

20 F.2d 758, 760 (2d Cir. 1974) (“[T]his court takes a dim view of

21 any summary rejection of a petition for post-conviction relief

22 when supported by a ‘sufficient affidavit.’ But we have,

23 consistently with that pronouncement, recognized that a judge is

24 well within his discretion in denying a petition when the

15
1 supporting affidavit is insufficient on its face to warrant a

2 hearing.” (citations omitted)); see also Purdy v. Zeldes, 337

3 F.3d 253, 259 (2d Cir. 2003). Thus, we have found that a

4 petitioner’s statement is sufficiently credible to warrant a

5 hearing where it is accompanied by some “objective evidence,”

6 such as a significant sentencing disparity, that he or she would

7 have accepted the proposed plea offer if properly advised. See

8 Pham, 317 F.3d at 182-83; United States v. Gordon, 156 F.3d 376,

9 380-81 (2d Cir. 1998) (per curiam).

10 Here, appellant has failed to shoulder his burden to

11 establish actual prejudice under Strickland. This is so for

12 several reasons. First, unlike the petitioner in Pham, appellant

13 failed to provide any statement that he would have accepted the

14 government’s plea offer if properly advised. While appellant did

15 submit an affidavit in support of his motion, he never stated

16 that he would have entered a plea had he received adequate legal

17 advice. Rather, his affidavit states as follows: “I was never

18 advised by my Lawyers that if the Jury was dead-locked on any

19 count(s), those count(s) could be use [sic] against me for

20 sentence.” Puglisi Affidavit, Oct. 21, 1999, at ¶14.

21 Specifically, although represented by counsel on his § 2255

22 petition, appellant never states that he would have accepted a

23 particular plea offer had he known that the judge could consider

24 at sentencing conduct that was not the subject of a conviction.

16
1 This is so even though the district court had repeatedly

2 expressed its skepticism at sentencing with respect to this

3 particular claim. See, e.g., Trans. at 61:5-7 (“[The appellant]

4 hasn’t accepted responsibility for the crimes for which he was

5 convicted of and I doubt if he ever will.”); id. at 61:11-14

6 (“Mr. Puglisi wanted to plead guilty on his terms. He wanted a

7 guarantee that he would get no more than X amount of years. He

8 chose to go to trial. He didn’t accept responsibility.”); id. at

9 94:16-21 (“And I must say up until today you’ve been respectful

10 of the Court. You’ve never appeared to suborn perjury or

11 anything of that sort. And you didn’t take the stand. What

12 comes later on these other issues of acceptance of responsibility

13 is certainly something that I [have] no control over.”).

14 Instead, the sole statement asserting this critical fact is

15 in the memorandum of law written by counsel and filed in support

16 of the Section 2255 motion. It states, without any citation to

17 the record or reference to the terms of any purported plea

18 agreement, “If [appellant] had been made aware of all relevant

19 facts, he would have accepted the plea agreement offered by the

20 prosecution.” Memorandum of Law at 15, No. 9:99-cv-0689-JS

21 (E.D.N.Y. Oct. 26, 1999). Appellant argues that this sentence is

22 the equivalent of a statement by him because in a declaration

23 attached to the memorandum he stated, under penalty of perjury,

24 that he read the motion and memorandum carefully and “[he]

17
1 agree[s] with the facts set forth therein, and [he] adopt[s]

2 those statements of fact as [his] own.” Id.

3 While the appellant did state that he adopted the statement

4 of facts of his lawyer as his own, we are not prepared to hold

5 that a petitioner’s declaration adopting a memorandum of law

6 written by counsel renders a statement describing the

7 petitioner’s intent a factual statement by the petitioner for

8 purposes of satisfying Strickland. See, e.g., Aeid, 296 F.3d at

9 64 (failure to assert such intent was “critical omission”);

10 Gordon, 156 F.3d at 380. See also Kulhawik v. Holder, 571 F.3d

11 296, 298 (2d Cir. 2009) (per curiam) (“[a]n attorney’s unsworn

12 statements in a brief are not evidence”). There was no good

13 reason to put such a statement in the memorandum of law while

14 omitting it from petitioner’s affidavit. In writing the

15 memorandum, counsel could not have had personal knowledge of the

16 factual truth of the statement. Adopting wholesale the twenty-

17 eight page brief written by counsel here, which was devoted

18 almost exclusively to legal argument on multiple claims

19 marshalled in kitchen-sink style, is fundamentally different from

20 swearing to particular statements made in one’s own name.

21 Indeed, the adoption by a party of a brief in toto would be a

22 poor basis for a perjury prosecution. A lay person is not

23 generally aware of the distinction between fact and law and is

24 unlikely to challenge favorable statements that his or her lawyer

18
1 has written. To a lay person, a brief is lawyer-talk. Moreover,

2 a client is not likely to expect his or her lawyer to write

3 something that might expose the client to prosecution for

4 perjury.

5 We believe that a statement regarding intent must be

6 directly attributable to the habeas petitioner, whether it be

7 through sworn testimony in the main proceeding or by a sworn

8 affidavit in support of the motion. See Dalli, 491 F.2d at 760;

9 Accardi, 379 F.2d at 313; cf. Herzog v. United States, 38 Fed.

10 App’x 672 (2d Cir. 2002) (summary order)(upholding district

11 court’s denial of an evidentiary hearing on § 2255 motion in part

12 because defendant failed to state in his supporting affidavit

13 that he would have accepted the government’s plea offer had he

14 been adequately advised); United States v. Perez Gomez, No.

15 3:98CR109 (JBA), 2003 WL 22119123, at *5-*6 (D. Conn. Aug. 29,

16 2003) (denying defendant’s § 2255 motion without a hearing

17 because he made no assertion that he would have accepted the

18 government’s plea offer had he known about it despite the

19 opportunity to make such assertion in numerous affidavits and pro

20 se filings). Given the assistance of counsel and ample

21 opportunity to remedy this obvious evidentiary gap, the absence

22 of such a statement is particularly telling in the present

23 matter.

24 Second, even assuming arguendo that counsel’s statement

19
1 equates to a statement by the appellant as to his intent to

2 accept the government’s plea offer, the appellant has failed to

3 proffer any objective evidence that he would have accepted the

4 plea offer had he received adequate pre-trial counseling. We are

5 mindful that a significant disparity between the sentencing

6 exposure in the plea offer and the actual sentence imposed at

7 trial would constitute objective evidence. See Pham, 317 F.3d at

8 182 (“[A] significant sentencing disparity in combination with

9 defendant’s statement of his intention [to accept the plea offer]

10 is sufficient to support a prejudice finding.”); id. at 183 (“We

11 have held that where the disparity in potential sentences is

12 great, a finder of fact may infer that defendants who profess

13 their innocence still will consider a plea.”); Gordon, 156 F.3d

14 at 381. However, appellant in the present matter has not

15 produced or identified evidence sufficient to show, or permit an

16 inference of, a significant disparity between the terms of a plea

17 offer and his ultimate sentence exposure after a trial

18 conviction.

19 Although appellant’s memorandum of law includes the blanket

20 assertion that “Mr. Puglisi’s position is supported by the huge

21 disparity between the sentence imposed, and the sentence under

22 the plea agreement,” Memorandum of Law, Oct. 26, 1999, at 15,

23 appellant’s affidavit is devoid of any factual specificity

24 regarding such an agreement, appellant’s supposed understanding

20
1 of its terms, and whether it required cooperation. Cf.

2 Machibroda v. United States, 368 U.S. at 487, 489-90 (1962)

3 (petitioner’s affidavit set out detailed factual allegations,

4 including a promised sentence of twenty years); Accardi, 379 F.2d

5 at 313. Neither appellant’s affidavit nor the sentencing

6 memorandum provides any such details other than the conclusory

7 characterization of “huge disparity.” This is so even though

8 present counsel represented the appellant, and first gave notice

9 of this agreement, at the sentencing hearing. Despite filing

10 this motion over two years after the date of sentencing, no

11 objective evidence let alone one of a sentencing disparity was

12 proffered. Moreover, the district court’s numerous statements

13 concerning the severity of the conduct at issue undermine any

14 assertion by the appellant that he would have received the

15 benefit of a lenient plea agreement. See Trans. at 94:5-15

16 (“This sentence is justified based on what you did, what others

17 did for you. It shows the drug business. If you were presented

18 with violence, if you were truly fearful you had every

19 opportunity to walk away. This is not simply a case of just

20 being a marijuana dealer. You were armed. You knew the

21 consequences. And I simply can’t do anything less than give you

22 a just sentence, one that really reflects the seriousness of what

23 you have done no matter how you view it.”).

24 Third, the record evidence undermines the appellant’s

21
1 assertion that trial counsel’s advice was a critical

2 consideration in his rejection of a plea offer. In fact,

3 appellant made it clear in his sentencing colloquy that he had

4 not cooperated with the government because such cooperation would

5 have endangered members of his family and forced relatives to

6 give up established businesses upon moving away. See Trans. at

7 76:18-23 (“I am sorry to put the courts through all that they've

8 been through because I know these have been lengthy things,

9 tremendous amounts of money spent here. And I never wanted to go

10 to trial. Believe me. The last thing I wanted was to go to

11 trial. The circumstances dragged me to trial."); id. at 77:13-16

12 ("I could have ruined [my relatives’] lives, destroy [sic] their

13 livelihood. They would have to move. You know, there's people

14 involved in the case that were killing witnesses."). Appellant

15 made these statements even after present counsel had asserted the

16 argument that appellant was misinformed about the scope of

17 conduct the district court could consider for purposes of

18 sentencing. Given appellant's own statements at sentencing, we

19 are unwilling to accept the conclusory statements he now makes in

20 support of his contention that he suffered actual prejudice in

21 satisfaction of Strickland.

22 On the present record, a hearing based on the proffers of

23 proof set forth in appellant's supporting papers would be

24 fruitless because the appellant has neither stated that he would

22
1 have accepted a plea if properly advised by trial counsel nor

2 proffered objective evidence in support of such a statement.

3 Therefore, appellant has failed to establish that "there is a

4 reasonable probability that, but for counsel's unprofessional

5 errors the result of the proceeding would have been different,"

6 Strickland, 466 U.S. at 694, and thus, has failed to state a

7 "plausible" claim for relief under 28 U.S.C. § 2255.

8 CONCLUSION

9 For the reasons discussed above, we affirm.

23