22-841-pr
Seabrook v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 13th day of November, two thousand twenty-three.
PRESENT: RAYMOND J. LOHIER, JR.,
WILLIAM J. NARDINI,
BETH ROBINSON,
Circuit Judges.
------------------------------------------------------------------
NORMAN SEABROOK,
Petitioner-Appellant,
v. No. 22-841
UNITED STATES OF AMERICA,
Respondent-Appellee.
------------------------------------------------------------------
FOR APPELLANT: ROGER B. ADLER, Roger Bennet
Adler, P.C., New York, NY
FOR APPELLEE: JARROD L. SCHAEFFER, (Lara
Pomerantz, David
Abramowicz, on the brief),
Assistant United States
Attorneys, for Damian
Williams, United States
Attorney for the Southern
District of New York, New
York, NY
Appeal from an order of the United States District Court for the Southern
District of New York (Alvin K. Hellerstein, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of the District Court is AFFIRMED.
Plaintiff Norman Seabrook appeals from a March 9, 2022 order of the
District Court (Hellerstein, J.) denying his habeas petition under 28 U.S.C. § 2255
and his motion for a new trial under Rule 33 of the Federal Rules of Criminal
Procedure. We granted a certificate of appealability with respect to one of
Seabrook’s claims for relief: that he received ineffective assistance of counsel
because his attorney failed to consult with him about the trial court’s disclosed
2
potential conflicts of interest. 1 We assume the parties’ familiarity with the
underlying facts and the record of prior proceedings, to which we refer only as
necessary to explain our decision to affirm.
Seabrook, the former president of the Correction Officers Benevolent
Association (“COBA”), was convicted after a jury trial of honest services wire
fraud and conspiracy to commit wire fraud stemming from a kickback scheme
involving a hedge fund, Platinum Partners. During a pretrial conference at
which Seabrook was present with trial counsel, Judge Hellerstein disclosed that
he had three relationships that presented potential conflicts of interest in the
case: first, with a prosecution witness who had interned for him almost twenty
years earlier; second, with the wife of Seabrook’s co-defendant, whose parents
Judge Hellerstein knew; and third, with Andrew Kaplan, a defendant in a
pending Eastern District of New York criminal case and former Platinum
Partners executive, with whom Judge Hellerstein and his family had a close
friendship. After disclosing these potential conflicts, Judge Hellerstein asked
counsel to inform him if they did not want him to preside over the trial.
1 Seabrook’s appeal of the denial of his motion for a new trial does not require a
certificate of appealability.
3
Seabrook’s attorney responded, “we’re comfortable having you as the trial
judge.” Appellee’s Add. 13.
Seabrook brought a habeas petition, contending that his trial counsel’s
failure to consult with him before declining to seek Judge Hellerstein’s recusal
constitutes ineffective assistance of counsel. Seabrook also brought a motion for
a new trial based on what he claims is new evidence material to his defense. On
appeal, Seabrook challenges the dismissal of his habeas petition on the merits,
Judge Hellerstein’s failure to hold a hearing or provide Seabrook notice before
dismissing the petition, and the denial of his motion for a new trial.
I. Ineffective Assistance of Counsel
“To demonstrate that counsel was constitutionally ineffective, a defendant
must show that counsel’s representation fell below an objective standard of
reasonableness and that he was prejudiced as a result.” Lee v. United States, 582
U.S. 357, 363 (2017) (quotation marks omitted). Pursuant to this Court’s limited
certificate of appealability, Seabrook argues that his trial counsel’s failure to
consult with him before declining to move for Judge Hellerstein’s recusal fell
below an objective standard of reasonableness because it undermined Seabrook’s
Sixth Amendment right of autonomy.
4
We disagree. We have previously described the “nature of counsel’s
choice not to move for recusal in a timely fashion” as “strategic.” United States v.
Bayless, 201 F.3d 116, 130 (2d Cir. 2000). In general, it is not a decision that
implicates a defendant’s “fundamental choices about his own defense.” McCoy
v. Louisiana, 138 S. Ct. 1500, 1508, 1510–11 (2018); see United States v. Rosemond,
958 F.3d 111, 119–21 (2d Cir. 2020). For that reason, we reject Seabrook’s
argument that counsel’s failure to consult with him before declining to seek
recusal of the District Court judge violated his Sixth Amendment rights. Cf.
Florida v. Nixon, 543 U.S. 175, 187 (2004) (“An attorney . . . has a duty to consult
with the client regarding important decisions. . . . That obligation, however, does
not require counsel to obtain the defendant’s consent to every tactical decision.”)
(quotation marks omitted).
Having concluded that counsel’s failure to consult with Seabrook did not
impair his Sixth Amendment rights, we need not and do not reach the question
of whether Seabrook can show that he was prejudiced as a result of counsel’s
failure to confer with him before declining to move for Judge Hellerstein’s
recusal.
5
II. Failure to Hold a Hearing
Seabrook next argues that the District Court erred in dismissing his habeas
petition without holding a hearing or notifying Seabrook. We review the District
Court’s decision not to grant a hearing for abuse of discretion, Gonzalez v. United
States, 722 F.3d 118, 131 (2d Cir. 2013), and its decision to dismiss Seabrook’s
habeas petition without providing advance notice de novo, Ethridge v. Bell, 49
F.4th 674, 682 (2d Cir. 2022).
Section 2255(b) provides that a district court “shall . . . grant a prompt
hearing” upon receiving a habeas petition “[u]nless the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief.”
28 U.S.C. § 2255(b). So “‘if it plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the moving party is not entitled
to relief, the judge must dismiss the motion.’” Puglisi v. United States, 586 F.3d
209, 213 (2d Cir. 2009) (brackets omitted) (quoting Rule 4(b) of the Rules
Governing Section 2255 Proceedings). “[A] district court has the power to
dismiss the petition on the merits without prior notice” if it is clear “that the
petitioner is not entitled to relief.” Ethridge, 49 F.4th at 682 (quotation marks
omitted) (emphasis added); see also Femia v. United States, 47 F.3d 519, 524 (2d Cir.
6
1995) (affirming dismissal without prior notice of a Section 2255 petition where
the dismissal was based on the petition’s lack of merit), superseded by statute on
other grounds, Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104–
132, 110 Stat. 1214.
Here, the material facts relating to trial counsel’s decision not to consult
with Seabrook before deciding not to seek Judge Hellerstein’s recusal are
undisputed. Because counsel was not obligated to confer with Seabrook before
deciding whether to seek the recusal, for the reasons set forth above, Seabrook is
not entitled to relief. The District Court dismissed Seabrook’s habeas petition
because it plainly lacked merit. We therefore conclude that the District Court did
not err in forgoing a hearing and dismissing Seabrook’s habeas petition without
prior notice.
III. Motion for a New Trial
Finally, Seabrook challenges the District Court’s denial of his motion for a
new trial based on newly discovered evidence: a state civil lawsuit brought by
Platinum Partners’ investors two years after Seabrook’s trial, alleging that they
were deceived by Platinum Partners and its outside auditors. See Fed. R. Crim.
P. 33. Upon review of the District Court’s denial of Seabrook’s Rule 33 motion
7
for a new trial for abuse of discretion, United States v. James, 712 F.3d 79, 107 (2d
Cir. 2013), we reject Seabrook’s challenge.
As an initial matter, Platinum Partners’ alleged fraud is not “newly
discovered” evidence, as several Platinum Partners executives were indicted for
fraud well before Seabrook’s trial took place. See United States v. Landesman, 17
F.4th 298, 317 (2d Cir. 2021) (noting that the grand jury returned an eight-count
indictment in December 2016). And shortly after the indictment was filed, the
Securities and Exchange Commission filed a complaint that alleged similar
fraudulent schemes as the indictment. Compl., SEC v. Platinum Mgmt. (NY) LLC,
No. 16-cv-6848 (BMC) (E.D.N.Y. Dec. 19, 2016).
Furthermore, we are not persuaded that the evidence of the lawsuit is
material to Seabrook’s conviction. The jury convicted Seabrook based on his
intent to deprive COBA of honest services by taking bribes. Evidence of
Platinum Partners’ efforts to conceal its separate and independent fraud,
however, does not “directly contradict the government’s case” against Seabrook
and thus does not “justify the grant of a new trial.” United States v. Jones, 965
8
F.3d 149, 164–65 (2d Cir. 2020). 2
We have considered Seabrook’s remaining arguments and conclude that
they are without merit. For the foregoing reasons, the order of the District Court
is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
2Seabrook also contends that the evidence would have a material impact on his
sentence because it would show that he did not intend for COBA to lose all $19 million,
reducing the amount of restitution imposed. But because this issue was not raised
before the District Court, we decline to consider it on appeal. Green v. Dep’t of Educ. of
City of N.Y., 16 F.4th 1070, 1078 (2d Cir. 2021).
9