Defilippo v. United States of America

Filing 31

ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255). DeFilippo's Petition for Writ of Habeas Corpus is DENIED. Because DeFilippo has not made a substantial showing of the denial of a constitutional right, no certificate of appealability shall issue. See 28 U.S.C. § 2253( c). The Clerk of Court is directed to enter judgment and close this case. So Ordered by Judge Nicholas G. Garaufis on 3/1/2013. (Lee, Tiffeny)

~IF
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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PATRICK DEFILIPPO,

MEMORANDUM & ORDER
Petitioner,

09-CV-4153 (NGG)

-againstUNITED STATES OF AMERICA,
Respondent.

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NICHOLAS G. GARAUFIS, United States District Judge.

Petitioner Patrick DeFilippo brings this Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2255. Following a jury trial, DeFilippo was convicted of racketeering conspiracy;
conducting an illegal gambling business; illegal gambling conspiracy; and extortionate collection
of credit conspiracy in violation of 18 U.S.C. §§ 1962, 1955,371, and 894(a)(1), respectively.
This court sentenced DeFilippo to forty years' imprisonment. DeFilippo now seeks to vacate or
correct his sentence on the grounds that he received ineffective assistance of counsel in violation
ofthe Sixth Amendment. Specifically, DeFilippo alleges that counsel: (1) erroneously advised
him, both orally and in writing, that he would receive a maximum sentence of twenty years'
imprisonment; (2) did not advise him that the court could impose consecutive sentences totaling
forty years' imprisonment or more; (3) did not discuss the strengths or weaknesses of the
Government's case with him prior to his decision to proceed to trial; and (4) did not make any
specific recommendation as to whether he should proceed to trial or attempt to arrange an
acceptable plea. For the reasons set forth below, DeFilippo's Petition is DENIED.

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I.

BACKGROUND
On August 14, 2003, a grand jury charged DeFilippo and co-defendants Joseph Massino

and John Joseph Spirito with, among other things, murder in-aid-of racketeering for the
March 18, 1999, murder ofBonanno family captain Gerlando ("George") Sciascia, in violation
of 18 U.S.C. § 1959(a)(l). See Indictment, No. 03-CR-929 (NGG) (E.D.N.Y. Aug. 14, 2003),
Dkt. 1.
A week later, the Government filed a memorandum in support of its request for a
permanent order of detention of DeFilippo ("Detention Memorandum"). (See Detention Mem.
(Dkt. 5-2).) The Government noted that DeFilippo was eligible for the death penalty if convicted
of the Sciascia murder. (Id. at 2.) If the death penalty was not authorized, the Detention
Memorandum stated that DeFilippo would face life imprisonment. (IQJ The Detention
Memorandum cited extensive crime scene, surveillance, documentary, and other evidence
implicating DeFilippo's involvement in the Sciascia murder. (ld. at 7-11.)
At that stage, DeFilippo was represented by several attorneys, including Richard W.
Levitt, who ultimately represented DeFilippo at trial. (Am. Stipulation (Dkt. 19) ~ 2.) In early
2004, Levitt's associates prepared a written analysis of DeFilippo's sentencing exposure
("Sentencing Analysis") based on the various charges pending against him. (See Sentencing
Analysis (Ex. 1 to.Am. Stipulation (Dkt. 19)) at 7-9.) The Sentencing Analysis was prepared to
provide an estimate of a possible sentence in the event that DeFilippo was acquitted of the
Sciascia murder and related charges. (ld. at 7.) However, it took care to note that DeFilippo was
charged "as the triggerman in Sciascia's murder," and that conviction for the murder "would
require a minimum sentence of life imprisonment." (IQJ Moreover, the Sentencing Analysis

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boldly cautioned: "but note that even acquitted conduct may be considered if proved to the
court's satisfaction by a preponderance of the evidence." (Id. at 8 (emphasis in original).)
Assuming that DeFilippo was acquitted of the Sciascia murder, and that the court did not
take acquitted conduct into consideration, the Sentencing Analysis calculated a likely sentencing
range of70-87 months in prison. (ld.) It noted that "in rare instances" a sentencing judge may
depart from the minimum or maximum statutory sentence, "in this case probation or 20 years
imprisonment[, respectively.]" (ld. at 9.) DeFilippo "spent a great deal of time studying" the
Sentencing Analysis. (DeFilippo Supp. Aff. (Dkt. 22-1) ~ 19.)
In late 2005 and early 2006, counsel for DeFilippo and co-defendant Spirito entered into
discussions with the Government concerning a potential plea bargain. (Am.

Stipulation~

5.)

Throughout these discussions, the Government insisted that any potential plea offer was
contingent on the defendant pleading guilty to, or at least admitting his complicity in, the
Sciascia murder.

(MJ

Following these discussions, the Government extended Spirito a formal

offer of a recommended twenty years' imprisonment sentence in exchange for his guilty plea to
the charge of racketeering conspiracy, which he later accepted. (ld.

~~5-6.)

DeFilippo, however, was never extended a formal written plea offer. Although AUSA
Greg Andres discussed the possibility of a potential plea in exchange for a recommended
sentence of fifteen years' imprisonment, any agreement, like Spirito's, was specifically
contingent on DeFilippo pleading guilty to, or admitting his complicity in, the Sciascia murder.
(Andres Stipulation (Dkt. 18-2) ~ 5.) DeFilippo refused to do either. As Andres recounted,
Levitt specifically advised him that "DeFilippo refused to admit to any culpability in Sciascia's
murder." (IQJ Indeed, as Levitt would later explain at sentencing, DeFilippo was unwilling to
plead guilty to the murder, "even if [the Government offered him] a walk." (Sentencing Tr.

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(Dkt. 20-10) at 20.) At some point during plea discussions, DeFilippo generally proposed to
plead guilty in exchange for a sentence of twelve years' imprisonment. (Am. Stipulation~ 9.)
But, because this oral offer did not include any admission of DeFilippo's involvement in the
Sciascia murder, the Government rejected the offer. (Andres Stipulation~ 5.) Because an
admission of culpability was a critical prerequisite to any potential plea offer, Andres never
obtained supervisory approval to make a formal plea offer to DeFilippo. (Id. ~ 6.)
Having refused to admit his involvement in the Sciascia murder, DeFilippo proceeded to
trial. (Am.

Stipulation~

12.) On May 9, 2006, a jury found DeFilippo guilty of one count of

racketeering conspiracy, three counts of illegal gambling and bookmaking, and one count of
extortionate credit collection conspiracy. See United States v. Massino, 546 F.3d 123, 127 (2d
Cir. 2008). It acquitted him of two counts of substantive extortionate credit collection, and was
unable to reach a unanimous verdict on the three counts pertaining to the Sciascia murder. Id.;
see also Jury Verdict, No. 03-CR-929 (NGG) (E.D.N.Y. May 9, 2006), Dkt. 749.
In anticipation of sentencing, the Probation Department filed a Pre-Sentence Report
("PSR") that calculated DeFilippo's combined offense level to be 48-a level that included
DeFilippo's murder of Sciascia as relevant conduct proven by a preponderance ofthe evidence.
(See Gov't Mem. (Dkt. 5) at 6 (citing PSR).) The Government sought a 55-year term of
imprisonment, the statutory maximum. (@ Among other things, DeFilippo objected to the
consideration of the Sciascia murder as relevant conduct. (lll)
Sentencing was held before this court on March 14, 2007. At the start of the hearing,
DeFilippo himself confirmed that he had reviewed the entire PSR, and affirmed his satisfaction
with his counsel's assistance. (See Sentencing Tr. at 2-3.) Although the jury had not reached a
verdict on the counts pertaining to the Sciascia murder, the court agreed with the Probation

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Department that DeFilippo was involved in the murder by a preponderance of the evidence. 1 (I d.
at 26-28.) As Levitt's Sentencing Analysis cautioned (see Sentencing Analysis at 8), the court
considered the murder in the calculation of DeFilippo's guideline range. (See Sentencing Tr. at
26, 30.) This court then sentenced DeFilippo to forty years' imprisonment: twenty years for the
racketeering conspiracy charge; five years for each of the three illegal gambling charges; and
five years for the extortionate collection of credit charge, all of which to run consecutively. (ld.
at 46.)
On September 25, 2009, DeFilippo filed his Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2255. (See Pet. (Dkt. 1).) He seeks to vacate or correct his forty-year prison
sentence on the grounds that he received ineffective assistance of counsel, in violation of the
Sixth Amendment, because his counsel allegedly: (1) advised him, both orally and in writing,
that he would receive a maximum sentence of twenty years' imprisonment; (2) did not advise
him that, even ifhe were not convicted of the Sciascia murder, the court could sentence him to
consecutive sentences adding up to forty years' imprisonment or more; (3) did not discuss the
strengths or weaknesses of the Government's case with him prior to his decision to proceed to
trial; and (4) did not make any specific recommendation as to whether he should proceed to trial
or attempt to arrange. an acceptable plea. (See DeFilippo Aff. (Dkt. 1) at 3-7; Am. Stipulation at
4-5.)

On May 17, 2012, the court ordered a hearing on DeFilippo's claims. (See
May 17, 2012, Mem. & Order (Dkt. 16).) Rather than take advantage ofthe opportunity to
testify before this court and present witnesses, DeFilippo proposed that the matter be resolved
Among other evidence presented at trial, Bonanno crime family underboss Salvatore Vitale testified that
DeFilippo was involved in the planning of the murder, lured Sciascia to the murder location, and then shot Sciascia
in the head and chest. Bonanno crime family captain Dominick Cicale corroborated this testimony, explaining that
DeFilippo was the designated shooter. After the murder, Sciascia was found with a note in his pocket bearing
DeFilippo's name and what appeared to be the location of the murder. (See Sentencing Tr. at 26-28.)

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without a hearing on the basis of a stipulated record. (See June 6, 2012, Def. Ltr. (Dkt. 17).)
The Government agreed (see Sept. 4, 2012, Gov't Ltr. (Dkt. 18) at 1), and the parties filed a Joint
Stipulation on September 4, 2012, which was amended on September 5, 2012. (See Am.
Stipulation.)

II.

STANDARD OF REVIEW
Section 2255, as amended by the Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA"), permits a prisoner who was sentenced in federal court to "move the court which
imposed the sentence to vacate, set aside, or correct the sentence" when he claims "the right to

be released upon the ground that the sentence was imposed," among other reasons, "in violation
ofthe Constitution or laws ofthe United States." 28 U.S.C. § 2255(a). "Because the Sixth
Amendment provides criminal defendants with the right to effective assistance of counsel,
inadequate representation is a basis for relief under section 2255." Morales v. United States,
635 F.3d 39,42-43 (2d Cir. 2011) (citing Strickland v. Washington, 466 U.S. 688,686 (1984)).
To succeed on an ineffective assistance of counsel claim, a petitioner must satisfy a
stringent two-prong test: (1) he must show that "counsel's performance was deficient," that is,
that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed
the defendant by the Sixth Amendment"; and (2) the petitioner must show that, ''the deficient
performance prejudiced the defense ... [by producing] errors ... so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. Under the
"prejudice" prong, the evidence presented must be considered in light of "the totality of the
circumstances," and the court must inquire "into the record as a whole" to determine ''whether a
reasonable probability exists that absent counsel's error, the outcome of the proceeding would
have been different." Id. at 680; see United States v.

6

Artec~

411 F.3d 315, 321 (2d Cir. 2005).

In the context of plea offers, a petitioner must show "that but for the ineffective advice of

counsel there is a reasonable probability that ... the defendant would have accepted the plea and
the prosecution would not have withdrawn it in light of intervening circumstances[.]" Lafler v.
Cooper, 132 S.Ct. 1376, 1385 (2012).
The defendant bears the burden of establishing both that his counsel was deficient and
that he was prejudiced. United States v. Birkin, 366 F.3d 95, 100 (2d Cir. 2004). However,
"there is no reason for a court deciding an ineffective assistance claim ... to address both
components of the inquiry if the defendant makes an insufficient showing on one." Strickland,
466 U.S. at 697.

III.

DISCUSSION
Because the court concludes that DeFilippo has failed to satisfy that he was prejudiced

under Strickland's second prong, it does not address whether his counsel was deficient. 2 See
Reich v. United States, No. 07-CV-2406 (NGG), 2010 WL 10373, at *7 (E.D.N.Y. Jan. 4, 2010).
To establish prejudice, a petitioner must show that it is reasonably likely "that but for
counsel's unprofessional errors, the result ofthe proceeding would have been different." Arteca,
411 F.3d at 320. A "self-serving and conclusory statement" by a petitioner is "insufficient in
itself to show prejudice in the context of guilty pleas." Id. at 322 (citations omitted). A
petitioner's self-serving statement can establish prejudice only if it is "credible in light of all the
relevant circumstances." See Puglisi v. United States, 586 F.3d 209, 215-16 (2d Cir. 2009). The
Second Circuit has found that a petitioner's statement is sufficiently credible where it is
2

DeFilippo focuses primarily on his claim that counsel erroneously calculated his sentencing exposure. (See
DefMem. (Dkt. 23) at 12-19, 21-29; see also DeFilippo Aff. ~~ 14-20, 24-26; Am. Stipulation~~ 11-14, 18-20.)
However, he also claims that his counsel did not discuss the strengths or weaknesses of the Government's case with
him, and did not make any specific recommendation as to whether he should proceed to trial or attempt to arrange an
acceptable plea. (See DeFilippo Aff. ~~ 21-23; Am. Stipulation~ 21.) Even assuming that his counsel was deficient
in these respects, DeFilippo still must show that but for these errors there is a reasonable probability that he would
have accepted a plea offer. As set forth below, he has failed to do so.

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accompanied by some "objective evidence," such as a "significant sentencing disparity," that the
petitioner would have accepted the proposed plea offer if properly advised. See Pham v. United
States, 317 F.3d 178, 182-83 (2d Cir. 2003); United States v. Gordon, 156 F.3d 376,380-81 (2d
Cir. 1998).
Aside from a self-serving statement, factors affecting whether a petitioner has proven
prejudice in the plea bargaining context include whether a formal plea offer existed, see Lafler,
132 S.Ct. at 1385 ("[A] defendant must show that ... the prosecution would not have withdrawn
[the plea] in light of intervening circumstances ...."),and whether the petitioner was aware of
the possibility of the sentence that he ultimately received, see Artec~ 411 F.3d at 320 ("To
satisfy the second prong of Strickland in the context of plea negotiations ... the issue is whether
the defendant was aware of actual sentencing possibilities .... ").
Here, DeFilippo swears "he had absolutely no idea" that he was facing more than twenty
years' imprisonment, and that "had he been counseled about the actual sentence exposure [facing
him], he would have pleaded guilty." (Am. Stipulation, 14.) These statements, examined

alongside the record as a whole, are insufficient to prove prejudice as required by Strickland for
two reasons: (1) DeFilippo was undoubtedly aware that he faced a possibility of more than
twenty years' imprisonment if he proceeded to trial; and (2) DeFilippo has failed to establish that
there was a reasonable probability that he would have pled guilty.

A.

Knowledge of Actual Sentencing Possibilities

To help establish prejudice, a petitioner may point to "a significant disparity between the
sentencing exposure in [a] plea offer and the actual sentence imposed at trial[,]" in addition to his
self-serving claim that he was unaware of the consequences of proceeding to trial. See Puglisi,
586 F.3d at 217. But even so, when a "defendant's specific claim is that counsel has misled him

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as to the possible sentence which might result from a plea ... the issue is whether the defendant
was aware of actual sentencing possibilities." Arteca, 411 F.3d at 320 (quoting Ventura v.
Meachum, 957 F.2d 1048, 1058 (2d Cir. 1992) (emphasis added)).
DeFilippo claims that he believed the maximum sentence he faced going into trial was
twenty years' imprisonment. (Am.

Stipulation~

13.) He was sentenced to forty years'

imprisonment. (Sentencing Tr. at 26.) The difference between twenty years' and forty years'
imprisonment may very well constitute a "significant sentencing disparity." See Pham, 317 F.3d
at 182-83 (noting that the difference between "a plea offer of 78 to 97 months and a sentence
after trial of 210 months, which is more than double" could constitute a significant sentencing
disparity). But the record conclusively establishes that at the time DeFilippo elected to proceed
to trial, he was aware that he faced a possible sentence of much longer than twenty years.
First, both DeFilippo's counsel and the Government informed him that he risked a
sentence of life imprisonment if convicted of the counts pertaining to the Sciascia murder. The
first clause of the Sentencing Analysis provided by DeFilippo's counsel-a document that
DeFilippo "spent a great deal of time studying" (DeFilippo Supp. Aff.

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19)--explicitly states

that "a conviction for the murder of George Sciascia would require a minimum sentence of life
imprisonment" (Sentencing Analysis at 7). Similarly, the Government's Detention
Memorandum instructed DeFilippo that he was eligible for the death penalty, or, in the
alternative, life imprisonment. (See Detention Mem. at 2.) Moreover, DeFilippo was informed
that, even if he was acquitted on the charges pertaining to the Sciascia murder, the murder could
still be considered by the court at sentencing. This warning rang loud and clear in the Sentencing
Analysis: "but note that even acquitted conduct may be considered if proved to the court's

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satisfaction by a preponderance of the evidence." (Sentencing Analysis at 8 (emphasis in
original).)
Second, at sentencing, DeFilippo never indicated any surprise or lack of awareness
concerning the 55-year sentence the Government was seeking. (See Sentencing Tr. at 2-3.) He
noted that he had "gone over everything" in the PSR-which calculated a maximum sentence of
55 years-with his counsel, and that his counsel had answered all of his questions about it. (Id.
at 3.) In light of this uncontested evidence, DeFilippo's statements that he was unaware that he
risked a sentencing of more than twenty years' imprisonment, including the possibility of
consecutive sentences adding up to forty years or more, are not credible. 3
The choice for DeFilippo was never between a fifteen-year plea and a maximum of
twenty years' imprisonment. Rather, the choice was whether to plead guilty in exchange for a
potential fifteen-year sentence, or to proceed to trial and risk a sentence of life imprisonment if
convicted of the Sciascia murder. DeFilippo chose the latter.

B.

Likelihood of Pleading Guilty

Even if DeFilippo was not aware of the actual sentencing possibilities he faced, he has
still failed to show that there is a reasonable probability that he would have pled guilty if not for
his counsel's allegedly deficient conduct. See Cullen v. United States, 194 F.3d 401, 404-05 (2d
Cir. 1999) (stating that in examining prejudice, a court must determine whether a petitioner has
established "the requisite reasonable probability that [he] would have pled guilty" by considering
whether the petitioner "would have accepted [a] plea bargain ifhe had been fully informed of its
terms and accurately advised of the likely sentencing ranges [he faced]"). Such a showing
3

This is especially true given that DeFilippo had no "persuasive reason for doubting the strength of the
government's case against him." See Arteca, 411 F.3d at 321. In fact, the record portrays a strong case, with ample
evidence and accomplice testimony connecting DeFilippo to the Sciascia murder. (See Detention Mem. at 7-11;
Sentencing Tr. at 26-28; supra n.1.)

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presupposes both the existence of a formal plea offer, see Lafler, 132 S.Ct. at 1385, and the
petitioner's willingness to plead guilty, see Zandi v. United States, 460 F. App'x 51, 53 (2d Cir.
2012) (noting that the appellant "continue[d) to proclaim his innocence" and that such a factor
"undermine[d) [his] bare assertion that he would have accepted a plea agreement if properly
advised"); see also Cullen, 194 F.3d at 407 (noting that an appellant's "insistence on his
innocence is a factor relevant to any conclusion as to whether he has shown a reasonable
probability that he would have pled guilty"). Neither of those factors is present here.
1. Absence of a Formal Plea Offer
Although the Government discussed with DeFilippo's counsel the possibility of a
potential plea in exchange for a recommended fifteen-year sentence, any plea was specifically
contingent on DeFilippo pleading guilty to the murder of Sciascia, or admitting his complicity in
the murder. (Andres

Stipulation~

5.) DeFilippo was unwillingly to do either. As Andres

explained, Levitt specifically advised him that "DeFilippo refused to admit to any culpability in
Sciascia's murder."

eM:; see also Sentencing Tr. at 20.)

Although during plea discussions

DeFilippo proposed an offer of twelve years' imprisonment (Am.

Stipulation~

9), the

Government rejected this offer because it was void of any declaration by DeFilippo that he
would plead guilty to, or otherwise admit his involvement in, the Sciascia murder (Andres
Stipulation~

5.) Consequently, Andres never sought supervisory approval, and never extended

DeFilippo a formal written plea offer. (I d.

~

6.) Thus, the lack of a formal plea offer strongly

weighs against a finding that DeFilippo would have pled guilty. See Lafler 132 S.Ct. at 1385.
2. DeFilippo's Insistence on Innocence
Even if a formal plea offer had existed, DeFilippo has still failed to prove that he was
truly willing to plead guilty because he consistently maintained his innocence throughout his

11

case. As DeFilippo's counsel stated at sentencing (without any objection), DeFilippo was
unwilling to plead guilty to the Sciascia murder "no matter what," "even if [the Government
offered him] a walk." (Sentencing Tr. at 20.) DeFilippo's co-defendant, Spirito, testified that
DeFilippo "was adamant that he did not participate in [the Sciascia murder] and did not want to
plead guilty to it." (Supp. Aff. (Dkt. 22-2) ~ 11.) In light of this evidence, DeFilippo has further
failed to establish the requisite reasonable probability that he would have pled guilty. See
Cullen, 194 F.3d at 404-05; Reich, 2010 WL 10373, at *7 (rejecting an ineffective assistance of
counsel claim where the defendant "consistently maintained that he was innocent" throughout
pre-trial investigations, and where his trial testimony showed that "he would never have pleaded
guilty or accepted a non-prosecution agreement, had the Government offered one").

*

*

*

The ultimate question under Strickland's prejudice prong is whether there is a reasonable
probability that DeFilippo would have pled guilty but for his counsel's alleged ineffective
assistance. All of the evidence in this case-including the bold cautioning in counsel's
Sentencing Analysis, the Government's Detention Memorandum, the nonexistence of a formal
plea offer, and DeFilippo's persistent insistence on his innocence through pre-trial negotiations
and beyond-far outweighs DeFilippo's lone, self-serving affidavit. 4 Therefore, DeFilippo has
failed to satisfy his burden and his Petition for Writ of Habeas Corpus must be denied.

4

This court ordered a hearing on DeFilippo's claims on May 17,2012. (See May 17,2012, Mem. & Order.)
Rather than take advantage of the opportunity to testify before this court and present witnesses, DeFilippo proposed
that the matter be resolved without a hearing on the basis of a stipulated record. (See June 6, 2012, Def. Ltr.)
Because DeFilippo has chosen not to testify, the court cannot gauge his credibility, which may, in theory, have been
able to outweigh all the other evidence weighing against a finding of prejudice. DeFilippo's lone affidavit is all this
court can examine in his favor.

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IV.

CONCLUSION
For the foregoing reasons, DeFilippo's Petition for Writ of Habeas Corpus is DENIED.

Because DeFilippo has not made a substantial showing of the denial of a constitutional right, no
certificate of appealability shall issue. See 28 U .S.C. § 2253(c). The Clerk of Court is directed
to enter judgment and close this case.
SO ORDERED.

s/Nicholas G. Garaufis

G.

Dated: Brooklyn, New York
March 1_, 2013

NiCHOLAS
GARAUFIS
United States District Judge

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