Clanton v. United States of America

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION. For the reasons set forth in the attached Order, Magistrate Judge Orenstein's well-reasoned and thorough Report and Recommendation is incorporated by reference and adopted in its entirely and petitioner 's objections are denied. The Clerk of Court is respectfully requested to enter judgment in favor of respondents, dismiss the petition and close this case. Respondents shall serve a copy of this Order on petitioner and file a declaration of service on ECF by September 16, 2011. Ordered by Judge Kiyo A. Matsumoto on 9/14/2011. (Zeehandelaar, Rachel)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------- X
TONY CLANTON,
Petitioner,

NOT FOR PUBLICATION

-against-

ORDER ADOPTING REPORT
AND RECOMMENDATION

UNITED STATES OF AMERICA,
09-CV-5509 (KAM)(JO)
Respondent.
-------------------------------------X
MATSUMOTO, United States District Judge:
Pursuant to 28 U.S.C. § 2255, petitioner Tony Clanton
(“petitioner”) seeks to vacate, set aside, or correct the 18month sentence he is to begin serving in federal custody for a
violation of supervised release (“VOSR”) upon completion of his
state custodial term.
December 9, 2009.)

(ECF No. 1, Petitioner’s Motion, filed

Respondent opposes the motion. (ECF No. 18,

The Government’s Response in Opposition to Petitioner’s Motion
Pursuant to 28 U.S.C. Section 2255 (“Govt. Mem.”).)

Magistrate

Judge James Orenstein has issued a Report and Recommendation
(“R&R”) recommending that petitioner’s motion be denied in its
entirety.

(ECF No. 23, R&R dated August 1, 2011.)

timely objected to the R&R.

Petitioner

(See ECF No. 25, Objection to

Report and Recommendation, dated Aug. 9, 2011 (“Pet. Obj.”).)
Having undertaken a de novo review of the record in light of
the petitioner’s written objections pursuant to 28 U.S.C.
§ 636(b)(1)(C), the court incorporates the R&R by reference and

adopts it in its entirety.
STANDARD OF REVIEW
To the extent that a party makes specific and timely
objections to a magistrate’s findings, the court must apply a
de novo standard of review.

United States v. Male Juvenile,

121 F.3d 34, 38 (2d Cir. 1997); 28 U.S.C. § 636(b)(1)(C).

Upon

such de novo review, the district court “may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.”

28 U.S.C. § 636(b)(1)(C).

This

standard of review must be applied while remaining cognizant of
the court’s obligation to construe a pro se litigant’s
submissions liberally and to interpret them to raise the
strongest possible arguments that they suggest.

See Triestman

v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006)
(citations omitted).
DISCUSSION
The facts and procedural history in this matter are
set forth in detail in Magistrate Judge Orenstein’s R&R.

In

light of petitioner’s timely objections, the court has
undertaken a de novo review of the full record including the
applicable law, the transcript of petitioner’s sentencing on
the instant VOSR charges before Judge Korman on July 11, 2008,
the underlying record, the parties’ submissions on the instant
motions, the affidavits of petitioner’s trial and appellate

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counsel, the R&R, and petitioner’s objections to the R&R, to
which the government did not respond.

See 28 U.S.C.

§ 636(b)(1)(C).
Petitioner poses eight objections to the R&R, each of
which the court will address in turn.

First, petitioner

objects to the R&R’s determination that he declined a hearing
after stipulating that his two state court convictions provided
a basis for the court to find by a preponderance of the
evidence that he had violated supervised release.

Petitioner

states that he “never agreed to the stipulation,” entered by
the parties at the VOSR hearing on July 11, 2008 (“VOSR”).
(Pet. Obj. at 1.)

Petitioner cites his attorney’s statement

that “it might be a technicality” as support that he did not
intend to so stipulate.

(Pet. Obj. at 1; see also Transcript

of VOSR Hearing, dated July 11, 2008 (“Tr.”) at 5.)
Petitioner’s first objection is without merit.

At

the July 11, 2008 VOSR hearing, defense counsel, in the
presence of his client, stated that “we are prepared to
stipulate that . . . a judgment has been entered in state court
and that that provides a basis for the Court to make a finding
by a preponderance of the evidence that he has . . . violated
his supervised release.

I think based on that we would be

prepared to have the Court make a finding and proceed to
sentencing determination on that.”

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(Tr. at 3.)

The court

asked petitioner whether he understood that if he “didn’t
stipulate to the fact that [he] violated the conditions of
[his] release by virtue of this conviction in state court [he]
would be entitled to a full-blown hearing,” to which petitioner
responded “Yes.”

(Tr. at 4.)

Petitioner’s counsel Jeremy

Gutman, Esq. (“Gutman”) affirmed that he had advised his client
“that the government would be able to satisfy its burden of
proof at a [VOSR] hearing by doing nothing more than offering
into evidence Mr. Clanton’s own plea allocution . . . that, in
[his] view, there was no longer any point in insisting on a
hearing, and that [they] had little choice but to accept a
finding that he had violated the terms of his supervised
release, and to argue for as lenient a sentence as possible.”
(ECF No. 12, Affirmation of Jeremy Gutman, Esq. dated June 4,
2010 (“Gutman Aff.”), at ¶ 13.)

Gutman affirmed that his

client agreed with his advice to waive the hearing.

(Id.)

Any

“technicality” that the petitioner refers to appears to be a
disagreement between the court and Gutman regarding how to
characterize the judgment entered by the state court upon
petitioner’s guilty plea.

On the record before the court,

however, there is no dispute that petitioner agreed to
stipulate to the VOSR and forgo the hearing.

Accordingly,

petitioner’s first objection is overruled.
Second, petitioner objects to the R&R and argues that

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he was going to receive “24 months for the Violation and an
additional 24 months for the perjury charge . . . .”
Obj. at 1.)

(Pet.

Petitioner points to the VOSR hearing at which he

asked “Can I say something?

I mean, can I speak, please?”

(Tr. at 25) as evidence that he was “trying to plead his case
and then was stopped and coerced by attorney.”
1.)

(Pet. Obj. at

Thereafter, the court advised petitioner that he “can

speak, but [he] has a lawyer there” (Tr. at 25), to which
petitioner responded “All right” (id.).

For the reasons set

forth in Judge Orenstein’s well-reasoned R&R, the court agrees
and adopts the finding that Gutman did not provide ineffective
assistance of counsel to petitioner, and his advice to
petitioner not to speak at the VOSR hearing was a strategic
decision which does not constitute ineffective assistance of
counsel.
Third, petitioner argues that Gutman told him that
“[he] was going to get a much Higher sentence if [he went] to
the hearing.”

(Pet. Obj. at 1.)

The court adopts Judge

Orenstein’s reasoned finding that requesting a hearing would
not necessarily have resulted in a more favorable outcome for
petitioner because the court already gave petitioner a sentence
at the low end of the guidelines range.

(See R&R at 5.)

Fourth, petitioner argues that “[p]rejudice was shown
because had counsel told the Courts that [he] was not willing

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to accept his concession Petitioner would of [sic] been
appointed new counsel.”

(Pet. Obj. at 1.)

As Judge Orenstein

detailed in the R&R, there is no evidence that the outcome for
petitioner would have been any different, let alone better, had
he had another attorney.

(R&R at 4-6.)

The court adopts Judge

Orenstein’s analysis as the opinion of the court, and
petitioner’s fourth objection is denied.
Fifth, petitioner states that he has an “active
appeal that will go in his favor that will Suppress all of the
illegal evidence that was planted In Petitioners Home from
Detective Corruption that will come to light real soon.”
Obj. at 1.)

(Pet.

Petitioner, however, has not provided any evidence

to the court of the motion he references or even cited to the
relevant documents in his objection to the R&R.

On this

record, the court cannot say what effect, if any, such a
motion, if it exists, would have on petitioner’s claims, and
petitioner’s objection is accordingly overruled.
Sixth, petitioner argues that his appellate counsel
failed to file a pro se appellate brief on his behalf.
Obj. at 1.)

(Pet.

Specifically, petitioner points to a letter he

sent this court on June 7, 2010, in which he states that he
“was being moved from 4 different facilities in the state and
was unable to file a supplemental brief and I requested this
attorney to file and which he stated ‘He Forgot’!

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I also had

documents mailed to him that he rejected the delivery!”

(ECF

No. 14, Letter from petitioner to Judge Matsumoto, filed June
7, 2010.)

Petitioner’s statement, however, provides no details

as to when he asked appellate counsel to file the pro se brief,
nor does petitioner provide the court with a copy of the
materials he sent to appellate counsel, nor is petitioner’s
statement to the court, two years after the sentencing on the
VOSR, sworn under penalty of perjury.

On the other hand,

appellate counsel Marshall A. Mintz, Esq. (“Mintz”) affirms
that he informed petitioner of his right to request new counsel
or respond to his Anders brief.

(ECF No. 9, Declaration of

Marshall A. Mintz dated May 25, 2010, at ¶ 16.)

Mintz further

affirmed that “at no point after [he] filed the Anders brief
did Mr. Clanton indicate that he actually intended to file a
pro se submission.”

(Id. at ¶ 19.)

Under de novo review of

these facts, the court finds that appellate counsel did not
provide ineffective assistance of counsel, adopts Magistrate
Judge Orenstein’s reasoning and finds petitioner’s objection
without merit.
Seventh, plaintiff argues that prejudice has been
shown because he could have “plead guilty to the first
violation and the most time that [he] could have been sentenced
too [sic] is 15 months.”

(Pet Obj. at 2.)

no authority for this argument.

Plaintiff provides

Moreover, for the reasons set

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forth in Magistrate Judge Orenstein’s R&R and as discussed
above, there is no evidence that petitioner would have received
a more favorable sentence had he been represented by a
different attorney who might have advised him differently.
Accordingly, petitioner’s seventh objection is overruled.
Eighth, petitioner points out that Magistrate Judge
Orenstein found that respondent failed to address petitioner’s
argument regarding credit for time previously served.
Obj. at 2.)

(Pet.

Magistrate Judge Orenstein did, indeed, note that

the respondent did not trouble itself to respond to
petitioner’s argument on this point.

(R&R at 8.)

However,

Magistrate Judge Orenstein nevertheless considered the merits
of petitioner’s argument and found that his argument for credit
for time previously served was premature until such time that
the federal Bureau of Prisons receives petitioner into custody,
determines whether he will receive credit for time served, and
until petitioner exhausts his administrative remedies.
8-9.)

(R&R at

Upon de novo review of the relevant legal authority, the

court agrees with Magistrate Judge Orenstein’s analysis and
adopts his R&R as the opinion of the court.

Accordingly,

petitioner’s eighth objection is overruled.
CONCLUSION
For the reasons set forth above, Magistrate Judge
Orenstein’s well-reasoned and thorough Report and

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Recommendation is incorporated by reference and adopted in its
entirely and petitioner’s objections are denied.

The Clerk of

Court is respectfully requested to enter judgment in favor of
respondents, dismiss the petition and close this case.
Respondents shall serve a copy of this Order on petitioner and
file a declaration of service on ECF by September 16, 2011.

SO ORDERED.
Dated:

September 14, 2011
Brooklyn, New York
_______ __ /s/
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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