BASSETT v. UNITED STATES OF AMERICA
Filing
27
OPINION. Signed by Judge William H. Walls on 5/24/16. (DD, )
FOR PUBLICATION
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
RONALD B.
BASSETT,
HONORABLE WILLIAM H.
WALLS
Petitioner,
Civil Action
No. 15—2074 (WHW)
v.
UNITED STATES OF AMERICA,
OPINION
Respondent.
APPEARANCES:
JENNIFER L. GOTTSCHALK, Esq.
1920 Fairfax Avenue
Cherry Hill, New Jersey 08003
Attorney for Petitioner Ronald B.
Bassett
SHARON E. ASHE, Esq.
UNITED STATES ATTORNEY’S OFFICE
970 Broad Street
Suite 700
Newark, New Jersey 07102
Attorney for Respondent United States of America
WALLS,
I.
Senior District Judge:
INTRODUCTION
Ronald B.
Bassett
(“Petitioner”)
moves to vacate,
correct,
or set aside his federal sentence pursuant to 28 U.S.C.
(Docket Entries 8 and 10)
(“Respondent”)
.
§ 2255.
Respondent United States of America
opposes the motion.
(Docket Entry 16)
.
For the
reasons stated herein and for the reasons expressed on the
record at the March 16,
2016 evidentiary hearing,
Petitioner’s
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motion is denied,
and no certificate of appealability will
issue.
II.
BACKGROUND
After pleading guilty to a drug trafficking conspiracy
involving one kilogram or more of heroin,
and
(b) (1) (A);
21 u.s.C.
§ 846,
21 U.S.C.
Petitioner was interviewed by
the United States Probation Office on June 22,
presence of his attorney,
of the interview,
§ 841(a) (1)
Ronald Rubinstein.
2012 in the
During the course
United States Probation Officer Albert Flores
inquired about Petitioner’s assets for the purpose of
determining whether Petitioner had the financial ability to pay
a fine.
Petitioner indicated during the interview he had no
income.
Presentence Report
(“PSR”)
¶ 81.
“The defendant and
counsel explained that there were a number of assets which were
part of the parental estate,
which have not been disposed of,
and remain in probate.” Id.
¶ 138.
After conducting an investigation into Petitioner’s
finances,
the Government notified Probation and Petitioner that
it would be seeking an enhancement for obstruction of justice
and objecting to the acceptance of responsibility deduction at
sentencing.
It submitted recordings of Petitioner’s jailhouse
telephone conversations and documents indicating Petitioner’s
late mother’s estate,
beneficiary,
of which Petitioner was the sole
had been out of probate since 2010 in support of
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its argument that Petitioner had deliberately mislead Probation
as to the extent of his assets in an effort to avoid having to
pay a fine.
Mr.
2012,
Rubinstein responded to the arguments on November 14,
noting that “[t]lie gravamen of the government’s
obstruction claim revolves around the word
correct definition,
and Mr.
‘probate,’
its
Bassett’s statement to the Probation
Department at his pre-sentence interview that the properties
‘remained in probate.’” A46.’ He argued:
The government’s argument is apparently based upon a
misunderstanding that the term “probate.”
tsic] The
government correctly stated a decree admitting the will
to probate was entered on August 5, 2010. However, it
incorrectly assumed probate concluded rather than began
the process permitting the administration of the estate,
and the ability of obtaining letters testamentary from
the court. Though inartful, Mr. Bassett’s use of “in
probate” to describe the status of the assets was not
intended to deny ownership of the assets; rather Mr.
Bassett intended to communicate that the assets were not
immediately
available
to
in
him
that
the
estate
administration process had not been completed.
While the government was correct in so far as Mr. Bassett
became the executor of the estate with administration
authority
of
as
August
2010,
5,
the
government
incorrectly claimed Mr.
Bassett inherited “$550,000
worth of assets outright” and that he has been receiving
income from the trust, which has not even been set up as
of the date of this letter.
.
A48.
Counsel continued to argue:
[t]he
government
has
unjustifiably
attributed
the
expertise of a trusts and estates professional to Mr.
Bassett, claiming that he intentionally characterized
1
“A” refers to the appendix submitted with Respondent’s answer.
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the assets as “in probate” to mislead the government as
to the true status of the assets. The fact is that Mr.
Bassett had no more than an elementary understanding of
the legal terminology of the trusts and estates universe
and the correct definition of the word “probate.”
His assertion that the assets were still “in probate”
was intended to convey his understanding that the assets
were
still
inaccessible
him due
to
the
to
still
incomplete estate administration process. It is patently
unfair to assume Mr. Bassett had technical knowledge of
the legal meaning of “probate” and even more so that he
intentionally used this term to mislead the government
in order to avoid a fine.
.
A49.
He further argued the Government’s characterization of the
jailliouse tapes was incorrect and that the properties owned by
Petitioner were not generating income. A49—50.
The Court heard argument on January 9,
2013 regarding the
Government’s motions. After the Government submitted several
evidentiary items that indicated Petitioner had assets that he
had either not reported to Probation or had undervalued,
the
argument turned towards the “in probate” remark at the June 22,
2012 interview.
Court:
The following conversation took place:
So the will had been probated and approved,
in other words, as of 2010. And in June of
2012, practically two years from that time,
what mention if any is made from that which
flowed from his mother by way of testacy [to]
him?
Counsel:
Well,
the first thing,
Judge, nothing
asked about what was involved in probate.
Court:
He said everything is in probate. I’m asking
he says everything is in probate, which
happened 20
22 months before.
—
—
4
was
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Counsel:
Well,
Court:
But what’s August of 2010 and June of 2012?
Counsel:
that’s not exactly accurate,
Judge.
You’re right about the timeframe, but the fact
of the matter is, that the term “probate” was
misstated; correct?
Court:
Was what?
Counsel:
Was a misstatement of the term, understanding
of the term, what the term means.
Court:
Come on now, we have your client, who proudly
says
he’s
teacher
a
“good
fucking
with
business.”
Counsel:
I thought
I’m the one that said it was
probate. I’m the one that said
—
in
—
Court:
You thought.
too?
Counsel:
I’m the one that said to Mr.
it in 143
You want to go to jail with him
Flores
—
he says
—
Court:
Go ahead with that argument. I caution
since you’ve been before me, don’t go
that path.
Counsel:
I don’t want to. I don’t want to, Judge. I
want to explain to your Honor that the term
“in probate” is a term of art for estate
lawyers. What it means
you,
down
—
Court:
It’s a term of art for anybody who wants to
make ±t a term of art. But in the real world,
anybody such as your very
your very astute
client, he knows that his mother’s will is in
there
to
be
approved.
And
once
that’s
approved, he takes what she divides to it. I
don’t expect him to use the terms that you and
I learned in Property 1 or Estate Planning,
but I expect him to understand that. It would
be unrealistic for me not to assume that he
knew what was going on with regard to probate.
I would expect him to know that, once my
—
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mother’s will went to the probation department
and they approved it, whatever she left was
mine.
T39:9 to 41:5.2 Counsel continued to argue that the Court’s
interpretation was “not accurate” because “none of the assets
were transferred.
In probate,
it just means the will was
accepted. Now you have to administer the estate.” T41:6—ll. As
he was arguing Petitioner did not have access to the estate or
its assets because the will still had to be administered at the
time of the interview,
doing,
the Court stated:
you’re making it hard on yourself.
harder on yourself.
the Court answered “[a]
and
Greek tragic person who was ordained by
[sic]
up,
was consigned to do that for eternity,
I told you,
Do you know who
Counsel responded that he did not,
the gods to push the bolder
point.
You’re making it
You remind me of Sisyphus.
Sisyphus was?” T42:18-20.
and go back down.
“You know what you’re
and came back down and he
push the bolder
[sic]
up,
You’re not getting anywhere with me on that
go back to your presentation.
throw you off stride.” T42:22 to 43:2.
I don’t want to
Counsel concluded his
point that “legally none of the assets were transferred to Mr.
Bassett’s name,” T43:6—7,
and moved on to discuss the
Government’s other arguments.
The Court ultimately found by a
preponderance of the evidence that Petitioner “willfully
2
T refers to the January 3,
2013 Sentencing Transcript.
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withheld material information about his financial status with
the probation officer on June 22,
2012.” T105:4—5.
Government’s motion for an enhancement was granted,
The
and the
motion for a deduction for acceptance of responsibility was
denied.
T107:3-7.
The Court sentenced Petitioner to 210 months.
Petitioner appealed claiming “(1)
assistance of counsel;
representation,
counsel,
(2)
he received ineffective
his counsel failed to withdraw from
and the District Court failed to disqualify his
when it became obvious that counsel ought to be a
witness for Bassett at sentencing;
and
(3)
the District Court
improperly imposed a two—level enhancement for obstruction of
justice and denied Bassett’s request for a downward adjustment
for acceptance of responsibility.” The Third Circuit declined to
address the ineffective assistance of counsel claim for the
first time on direct appeal and found that the record was
“ambiguous as to whether there was a conflict.”
The
conversation
between
defense
counsel
and
the
District Court at sentencing could be read to indicate
that a conflict had developed between Bassett and his
counsel.
However,
in
light
of
counsel’s
previous
submissions to the District Court, defense counsel’s
statements at sentencing could also be seen as a last
minute ill—advised attempt to assume blame. Furthermore,
it is not sufficiently clear what the District Court
meant when it asked counsel if he “want[ed] to go to
jail” with his client for this court to find that a
conflict existed. Thus, we find that the record is
ambiguous as to whether there was a conflict, and we
will decline to address this claim on direct appeal.
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Bassett,
553 F. App’x 196,
198
(3d Cir.
2014)
The Court of Appeals affirmed the sentence finding that there
was ample evidence in the record to support the enhancement for
obstruction,
even without determining who told Probation the
estate was “in probate.” Id.
at 199
(“While that comment
elicited a strong reaction from the District Court at
sentencing,
it was not the sole or even major piece of evidence
on which the District Court relied.”).
Petitioner thereafter filed this § 2255 motion raising four
grounds for relief:
(1)
that he was denied the effective
representation of counsel during sentencing due to a conflict of
interest created by the sentencing court;
(2)
that the
sentencing court failed to inquire into the conflict of
interest,
rendering the sentencing invalid;
(3)
that trial
counsel was ineffective for failing to advise Petitioner “to be
accurate about his income and assets if he chose to report
them”
and for failing to move to adjourn the sentencing after
the conflict arose;
and
(4)
that appellate counsel was
ineffective for failing to challenge the denial of Petitioner’s
motion to suppress the wiretap evidence on direct appeal.
The Court conducted an evidentiary hearing on March 16,
2016,
at which time Mr.
Flores and Mr.
Rubinstein testified.
After the conclusion of testimony and argument,
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the Court orally
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denied the motion.
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The Court fully incorporates its findings as
stated on the record into this Opinion.
III.
SThNDABD OF REVIEW
Section 2255 provides in relevant part that:
prisoner in custody under sentence of a court
[a]
established by Act of Congress claiming the right to be
released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United
States
may move the court which imposed the sentence
to vacate, set aside or correct the sentence.
...
28 U.S.C.
IV.
§ 2255(a).
ANALYSIS
A. Timeliness
Respondent argues the motion should be dismissed as
untimely.
This argument is without merit.
The Anti—Terrorism and Effective Death Penalty Act
(“AEDPA”)
imposes a one—year statute of limitations for filing
motions pursuant to § 2255.
The limitation period runs from the
latest of:
(1) the date on which the judgment of conviction becomes
final;
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if
the movant was prevented from making a motion by such
governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been
newly
recognized
by
the
Supreme
Court
and
made
retroactively applicable to cases on collateral review;
or
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(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C.
§ 2255(f).
Respondent argues Petitioner was required
to file his motion within a year of February 12,
of the Third Circuit’s mandate.
However,
2014,
the date
“a judgment of
conviction becomes final within the meaning of § 2255 on the
later of
(1)
the date on which the Supreme Court affirms the
conviction and sentence on the merits or denies the defendant’s
timely filed petition for certiorari,
or
(2)
the date on which
the defendant’s time for filing a timely petition for certiorari
review expires.” Kapral v.
Cir.
v.
1999)
166 F.3d 565,
(internal quotation marks omitted);
Palakovich,
Greene v.
United States,
606 F.3d 85,
fisher,
132 5.
Ct.
91
38
(3d Cir.
(2011)
.
did not file a petition for certiorari,
2010),
577
(3d
see also Greene
aff’d sub nom
In this case,
Petitioner
and his time to do so
expired 90 days after the Third Circuit denied his appeal on
January 21,
April 21,
2014: April 21,
2014.
Petitioner therefore had until
2015 to file a timely § 2255 motion.
Petitioner’s counsel filed his original motion on March 22,
2015.
(Docket Entry 1)
March 31,
2015,
.
Petitioner filed a pro se motion on
and the Court ordered Petitioner’s counsel to
inform the Court as to which petition the Court should review.
(Docket Entry 5)
.
In response to that order,
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counsel for
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Petitioner informed the Court that Petitioner wishes to
prosecute both filings as “[t]he second one is intended to
supplement the first and includes additional case citations.”
Counsel submitted this was permitted by Fed.
(Docket Entry 6)
.
By Order dated April 28,
R.
2015,
Civ.
Pro.
15(d).
the Court
administratively terminated the motion and directed counsel to
file one all—inclusive motion within 30 days.
(Docket Entry 7)
Petitioner complied with the order and filed the amended motion
on May 21,
2015.
(Docket Entry 8)
Petitioner satisfied the statute of limitations when he
filed his original motion within the one—year period.
The
amended petition relates back to the original pursuant to
Federal Rule of Civil Procedure 15 (c)
.
The petition was
therefore timely filed.
B.
Conflict of Interest
Petitioner argues trial counsel was ineffective during
sentencing due to a conflict of interest created by the Court’s
vthreat to sanction counsel.
In Mickens v.
Taylor,
the Supreme Court defined an “actual
conflict” as “precisely a conflict that affected counsel’s
performance
—
as opposed to a mere theoretical division of
loyalties.” 535 U.S.
162,
171
(2002)
.
Although Mickens concerned
a conflict arising out of trial counsel’s prior representation
of the victim,
the Third Circuit has applied its reasoning to
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other conflict of interest claims.
Dep’t of Corr.,
598 F. App’x 94
See Chester v.
(3d Cir.
2015)
Comm’r of Pa.
(applying Mickens
to case in which petitioner alleged his attorney’s pending DUI
charge in the same court in which petitioner was tried created
an actual conflict requiring a new trial).
an actual conflict,
“[I]n order to prove
the petitioner must show:
(1)
that some
plausible alternative defense strategy or tactic might have been
pursued;
and
(2)
that the alternative defense was inherently in
conflict with or not undertaken due to the attorney’s other
loyalties or interests.” Id.
Gambino,
864 F.2d 1064
at 106
(3d Cir.
(citing United States v.
1988)
The Court finds that there was no actual conflict between
Mr.
Rubinstein and Petitioner at sentencing as there was no
plausible defense strategy that was abandoned due to a division
of loyalties.
Primarily,
the purported strategy of Mr.
Rubinstein taking responsibility for the comments to Probation
regarding Petitioner’s mother’s estate is not of sufficient
substance to have been a plausible defense to the obstruction
enhancement.
See Gambino,
864 F.2d at 1070
(Defendants claiming
an actual conflict “need not show that the defense would
necessarily have been successful if it had been used,
but that
it possessed sufficient substance to be a viable alternative”
(internal citation and quotation marks omitted) )
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Mr.
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Rubinstein testified that both he and Petitioner
represented to Probation that the estate was in probate.
Throughout his written sentencing submissions,
however,
Mr.
Rubinstein had argued that Petitioner should not be subjected to
an obstruction enhancement because Petitioner did not understand
the legal definition of the term “probate” when Petitioner made
the statement.
See A46-53. When confronted during cross-
examination with the inconsistencies between his written
submissions and oral statements,
Mr.
Rubinstein attempted to
reconcile the discrepancies by saying he did not include the
fact that he also had made the statement to Probation in his
papers because it was not relevant to whether Petitioner should
receive an obstruction enhancement.
This explanation is not
credible as that fact would have been equally irrelevant to the
enhancement question at sentencing unless it was only Mr.
Rubinstein who made the statement. As his testimony was that
Petitioner did in fact tell Probation that his late mother’s
estate was in probate,
the account presented at the hearing does
not credibly explain why Mr.
Rubinstein would unequivocally
state at sentencing that he made the statement to Probation.
Based on the Court’s review of the record and Mr.
Rubinstein’s testimony at the hearing,
the Court concludes Mr.
Rubinstein’s statement at sentencing was an attempt to assume
the blame for the “in probate” representation.
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This is the only
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remotely plausible way to reconcile his position in his papers,
namely that Petitioner made the comments but should not be
penalized for them because Petitioner is not a lawyer or estate
professional that understood the meaning of “in probate”,
Mr.
Rubinstein’s statement at sentencing.
and
Combined with the
plethora of other evidence that Petitioner willfully concealed
his assets from Probation,
no reasonable jurist could conclude
that a last—minute assumption of the blame for Petitioner’s
misrepresentation has sufficient substance to be a viable
defense strategy.
Even if the Court were to find that there was a plausible
defense strategy,
it also finds that Mr.
Rubinstein’s statements
in his affidavit and trial testimony that the Court’s “you want
to go to jail with him” rhetorical device so “chilled” him so as
to lead him to abandon this strategy are not credible. Mr.
Rubinstein testified that he has been practicing for over 50
years in various state and federal courts,
and Southern Districts of New York.
affected by the Court’s remark,
convey to Mr.
including the Eastern
His assertion that he was so
which was merely intended to
Rubinstein that he should not try to assume the
blame for Petitioner’s actions,
that he could not effectively
represent Petitioner’s interests is not credible. The Court
finds persuasive the reasoning of the Court of Appeals for the
District of Columbia Circuit’s line of cases beginning with
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Shark.
In that case,
that ±t “very much doubt[ed]
the D.C.
Circuit noted
that mere fear of rebuke from the
court could ever give rise to a conflict of interest sufficient
to establish a predicate for ineffective assistance. Were that
the case,
matter,
any provocation of the court,
even on the smallest
could be maneuvered into an excuse for invalidating a
conviction.” 51 F.3d 1072,
original)
1076
(D.C.
Cir.
1995)
(emphasis in
(holding district court’s comment that trial counsel
“‘doesn’t pay any attention to me,
...
and next time I’m going
to get his attention and put him in the cell block’” did not
create an actual conflict);
Burriss,
791 F.3d 50,
63
see also United States v.
(D.C.
Cir.
2015)
Gray—
(“The mere fact that a
court has threatened an attorney with contempt is insufficient
to make
[an actual conflict]
showing.”);
Taylor,
139 F.3d 924,
(D.C.
931—32
Cir.
United States v.
1998)
(holding no
conflict where attorney may be cited for contempt as “all
attorneys potentially face contempt citations,
no particular
attorney can be considered ineffective due to a concern that he
or she might be so cited.”);
220,
227
(D.C.
Cir.
1996)
United States v.
Leggett,
(noting “friction between a trial
counsel and the court does not,
as a matter of law,
conflict of interest between counsel and client”)
of Mr.
81 F.3d
.
create a
No attorney
Rubinstein’s experience could credibly believe that the
Court would in fact jail him for his statement.
15
The fact that he
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continued to vigorously argue on behalf of his client for
several hours also indicates he was not “chilled” by the Court’s
remark.
As the Court finds that there was no plausible defense
strategy that was abandoned,
and that Mr.
Rubinstein was not in
fact “chilled” by the Court’s rhetorical device,
the Court finds
that Petitioner has not established an actual conflict or
ineffective assistance of counsel. The motion is denied on this
point.
C. Whether the Sentencing Court Erred by Failing to Inquire Into
the Conflict of Interest
Petitioner further argues the sentencing court erred by
failing to halt the proceedings once it became clear that a
conflict had arisen between him and his counsel. Amended
Petition at 14.
In Mickens,
the Supreme Court construed its
precedents as holding that a trial court need only inquire into
potential conflicts
“when
‘the trial court knows or reasonably
should know that a particular conflict exists,’
which is not to
be confused with when the trial court is aware of a vague,
unspecified possibility of conflict
69
(2002)
(1980))
.
(quoting Cuyler v.
.
Sullivan,
.
.
.“
535 U.S.
446 U.S.
335,
162,
347,
168—
346
If the sentencing court was aware or should have been
aware of the conflict but did not inquire into it,
objection to the conflict was made at trial,
16
and no
Petitioner must
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establish,
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at a minimum,
there was an actual conflict.
States v. Berroa,
374 F. App’x 266,
Mickens,
United
at 174).
535 U.S.
269
(3d Cir.
2010)
(citing
As the Court has already found that no actual conflict
existed at sentencing,
Petitioner is not entitled to relief on
this claim.
Comm’r of Pa.
App’x 94,
Chester v.
108
(3d Cir.
2015)
Dep’t of Corr.,
598 F.
(noting that a petitioner “is not
entitled to relief on an argument that the trial judge failed to
inquire into the potential conflict unless he can establish that
an actual conflict adversely affected
(citing Mickens,
535 U.S.
[counsel’s]
performance”
at 168))
D. Whether Trial Counsel Otherwise Provided Ineffective
Assistance of Counsel
Petitioner asserts that Mr.
Rubinstein was ineffective for
failing to advise him “to be accurate about his income and
assets if he chose to report them,” and for failing to move to
adjourn sentencing when the purported conflict arose.
claims are governed by the Strickland standard.
These
Petitioner must
first “show that counsel’s representation fell below an
objective standard of reasonableness.” Strickland v.
466 U.S.
668,
688
(1984)
.
Washington,
He must then show “a reasonable
probability that, but for counsel’s unprofessional errors,
the
result of the proceeding would have been different. A reasonable
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probability is a probability sufficient to undermine confidence
in the outcome.” Id.
at 694.
Petitioner does not state in his affidavit that Mr.
Rubinstein did not tell him not to lie to Probation,
nor does he
cite any authority for the proposition that an attorney renders
ineffective assistance of counsel when he or she fails to tell a
client not to lie.
The few district courts to have confronted
this issue have determined an alleged failure to advise a client
not to lie does not constitute ineffective assistance of
counsel.
714648,
See, e.g., Martin v.
at *8
CD.
Md.
Feb.
26,
United States,
2013)
No.
11-958,
2013 WL
(“The government also
correctly asserts that even if defense counsel had not advised
Petitioner of the consequences of committing perjury,
this Court
would still not consider defense counsel ineffective.”),
539 F. App’x 116
appealability);
3363037,
at *2
(4th Cir.
Smith v.
(M.D.
2013)
(denying certificate of
United States,
Fla. Aug.
24,
2010)
No.
8:07-cr—25,
United States,
(M.D. Ala. May 29,
2009)
No.
2010 WL
(“An attorney cannot be
ineffective in failing to explain the obvious
Cleckler v.
aff’d
2:08—cv—397,
(“Defense counsel
.
.
.
.“);
2009 WL 1507538,
.
.
*13
is not required
.
to warn a defendant that testifying untruthfully could lead to a
sentence enhancement for obstruction of justice
410 F. App’x 279
(11th Cir.
credibility findings)
.
2011)
.
.
.
.“),
aff’d
(affirming on District Court’s
The Court agrees with the conclusions of
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its sister courts and finds that Petitioner has not established
that trial counsel’s actions fell below an objective standard of
reasonableness.
Petitioner also alleges that Mr.
Rubinstein was ineffective
for failing to move to adjourn sentencing once the conflict of
interest became apparent. As the Court has already found that
there was no actual conflict of interest between Petitioner and
his attorney at sentencing,
Petitioner has not established the
first prong of the Strickland analysis. He is therefore not
entitled to relief.
Petitioner has not established ineffective assistance of
counsel under the Strickland standard.
The motion is therefore
denied as to this claim.
E. Whether Appellate Counsel was Ineffective for Failing to
Appeal the Denial of Petitioner’s Motion to Suppress the Wiretap
Evidence
Petitioner’s final claim is that his appellate counsel was
ineffective for failing to challenge the denial of the motion to
suppress the wiretap evidence. He asserts appellate counsel
should have known that the conflict issue was more appropriate
for § 2255 proceedings,
and therefore it was unreasonable for
her to raise that issue on appeal instead of the suppression
issue.
133
But see Gov’t of Virgin Islands v.
(3d Cir.
1984)
Zepp,
748 F.2d 125,
(noting considering conflict claim on direct
appeal is appropriate where record is sufficiently developed)
19
FOR PUBLICATION
CLOSE
In determining whether appellate counsel was ineffective,
the Court applies the Strickland standard.
528 U.S.
536
259,
(1986)
.
285—86
(2000);
See Smith v.
Smith v. Murray,
477 U.s.
To establish the prejudice prong,
show “that there is a
—
535—
‘a probability
sufficient to undermine confidence in the outcome,’
—
527,
Petitioner must
‘reasonable probability’
than a preponderance of the evidence
Robbins,
but less
that his appeal would
have prevailed had counsePs performance satisfied
constitutional requirements.” United States v.
308,
315
(3d Cir.
2002)
(quoting Strickland,
Cross,
466 U.S.
308 F.3d
at 694—
95)
Other than the mere fact that the denial of the motion to
suppress was not raised on appeal,
Petitioner has set forth no
facts or supporting case law to support his contention that
appellate counsel was ineffective. Appellate attorneys are not
constitutionally required to raise every theoretical issue on
appeal,
Cir.
see United States v.
2012),
Turner,
677 F.3d 570,
577-78
(3d
and Petitioner has not provided the Court with any
evidence that the failure to raise the issue on appeal was
unreasonable. As Petitioner has not carried his burden of
establishing ineffective assistance of counsel,
denied on this ground.
20
the motion is
FOR PUBLICATION
CLOSE
F. Certificate of Appealability
AEDPA provides that an appeal may not be taken to the court
of appeals from a final order in a § 2255 proceeding unless a
judge issues a certificate of appealability on the ground that
“the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C.
§ 2253(c) (2).
This Court denies
a certificate of appealability because jurists of reason would
not find it debatable that Petitioner has not made a substantial
showing of the denial of a constitutional right.
V.
CONCLUSION
For the reasons stated above and on the record at the March
16,
2016 evidentiary hearing,
Correct,
Petitioner’s Motion to Vacate,
or Set Aside his sentence is denied.
No certificate of
appealability shall issue. An accompanying Order will be
entered.
Date
7I
Senior U.S.
21
WALLS
District Judge
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