Locurto v. United States of America
Filing
87
ORDER ADOPTING REPORT AND RECOMMENDATIONS: For the reasons set forth above, the court OVERRULES the Government's objections and ADOPTS IN FULL Judge Orenstein's R&R. Accordingly, the court DENIES Plaintiff's motion w ith respect to the ineffectiveness of appellate counsel claim and DEFERS ruling on other claims pending litigation of an amended petition. Judge Orenstein may conduct an evidentiary hearing in reviewing the remainder of Petitioner's ineffectiveness of trial counsel claim. So Ordered by Judge Nicholas G. Garaufis on 8/11/2016. (Lee, Tiffeny)
p /F
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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STEPHEN LOCURTO,
Petitioner,
MEMORANDUM & ORDER
10-CV-4589 (NGG) (JO)
-againstUNITED STATES OF AMERICA,
Respondent.
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NICHOLAS G. GARAUFIS, United States District Judge.
Petitioner Stephen LoCurto brings this proceeding pursuant to 28 U.S.C. § 2255, seeking
to vacate his conviction and life sentence for racketeering conspiracy. (Mot. to Vacate ("Pet.")
(Dkt. !).) Petitioner alleges ineffective assistance of both trial and appellate counsel, as well as
the improper suppression of exculpatory information. (Id.) On August 16, 2012, the court
referred the Petition to Magistrate Judge James Orenstein for a Report and Recommendation
("R&R") pursuant to 28 U.S.C. § 636(b)(l)(B) and Federal Rule of Civil Procedure 72(b)(l).
(Order (Dkt. 18).) Judge Orenstein then determined, on consent of the parties and with the
court's approval, to bifurcate consideration of the Petition, addressing first the threshold issue of
whether Petitioner received objectively umeasonable legal advice concerning a potential plea
bargain before trial. (See Sept. 3, 2013, Min. Entry (Dkt. 51); Sept. 3, 2013, Tr. (Dkt. 64)
at5, 12-19.)
On January 29, 2016, Judge Orenstein issued an R&R concluding that it was objectively
umeasonable for counsel to provide the legal advice at issue, and recommending that the court
conduct--or refer to him-an evidentiary hearing to determine whether that advice had any
cognizable prejudicial effect on the outcome of Petitioner's criminal case. (R&R (Dkt. 72) at!.)
Judge Orenstein further recommended that the court deny Petitioner's claim of ineffectiveness of
1
appellate counsel and defer ruling on other claims pending litigation of an amended petition.
(Id.) The Government has objected to the R&R (Obj. ("Gov't's Objs.") (Dkt. 74)), and
Petitioner has responded to those objections (Reply in Opp'n ("Pet'r's Resp.") (Dkt. 77)). For
the following reasons, the court OVERRULES the Government's objections and ADOPTS the
R&R in full.
I.
BACKGROUND
The court assumes familiarity with the underlying facts of Petitioner's criminal case. See
United States v. Rizzuto, No. 03-CR-1382 (NGG); United States v. Amato, 306 F. App'x 630
(2d Cir. 2009), cert. denied, 558 U.S. 940 (2009). As explained in Judge Orenstein's R&R, the
primary issue before the court at this stage of the bifurcated review of the Petition is whether
Petitioner received objectively umeasonable legal advice when considering whether to pursue
plea negotiations with the Government before trial. (See R&R at 2-5.)
In 1988, Congress increased-from 20 years to life-the maximum sentence that could
be imposed on a defendant convicted of racketeering conspiracy, but only for cases in which "the
violation is based on a racketeering activity for which the maximum penalty includes life
imprisonment[.]" 18 U.S.C. § 1963(a). As Judge Orenstein noted in the R&R, the only
racketeering act attributed to Petitioner for which the maximum penalty included life
imprisonment was the 1986 murder of Joseph Platia, which pre-dated the 1988 statutory
amendment. (See R&R at 2-3.) Therefore, "LoCurto's participation in the charged racketeering
conspiracy ... was a so-called 'straddle offense,' meaning that it occurred over a period that
straddled the effective date of the statute that increased the maximum penalty." (Id. at 3.) While
it is now undisputed that Second Circuit case law allows for the imposition of a life sentence for
such a straddle offense (see id. at 8), the question at issue here is "whether, during the pretrial
2
proceedings, ... competent counsel would have ... advised a client that it was still an open
question in this jurisdiction whether a life sentence in such circumstances would violate the
Constitution's Ex Post Facto Clause" (ifl at 3).
This question is relevant because on November 1, 2005, prosecutors sent a letter
concerning plea negotiations to attorneys representing Petitioner and 10 of his codefendants. (Id.
at 4.) The letter advised that the Government was not yet making a "formal" offer but that
prosecutors were prepared to recormnend dispositions providing for specified maximum
sentences for each defendant, on the condition that at least 10 of those 11 defendants pleaded
guilty by November 21, 2005.
C.WJ The maximum sentence suggested for Petitioner was 20
years. (Id.)
The parties agree that Petitioner's trial attorney, Harry C. Batchelder, Jr., sought the legal
advice of attorney Laura A. Oppenheim concerning the maximum possible sentence that
Petitioner could face if convicted at trial. (Id. at 3.) The parties also agree that in a meeting
between Petitioner and both attorneys, "Oppenheim expressed her opinion that the availability of
a life sentence in the circumstances of this case was an open question in the Second Circuit, that
application of the 1988 statutory amendment to the straddle offense in this case would violate the
Ex Post Facto Clause, that the maximum allowable sentence for the charged offense was
therefore twenty years, and that she believed LoCurto would prevail on that issue on appeal
should he be convicted." (Id.)
Nine of the 11 defendants named in the Government's November 1, 2005, letter
ultimately pleaded guilty, and each was sentenced to a prison term that was less than or equal to
the maximum sentence that had been specified in the letter. (Id. at 4.) Petitioner and another
codefendant, Anthony Basile, did not plead guilty; they were later convicted at trial and
3
sentenced to life in prison. ()_QJ Now, Petitioner maintains that he rejected an opportunity to
plead guilty because he believed that the maximum sentence of 20 years, as specified in the
letter, was the most that he would face if convicted at trial. (LoCurto Aff. (Mem. in Supp. of
Mot. to Vacate ("Pet'r's Mem.") (Dkt. 2), Ex. B) if 7.) He insists that had he been properly
advised as to his sentencing exposure, he would have entered into a plea agreement with the
Government and thus would not have received a life sentence. (Id.
iii! 6-9.)
Petitioner raises two additional grounds for relief. First, he claims that he was denied
effective assistance of appellate counsel, on the basis of the fact that appellate counsel did not
challenge the trial court's admission of testimony from three accomplice witnesses, each of
whom conveyed a statement from non-party Gabe Infanti that Petitioner had committed the
Platia murder. (See Pet. at 5; Pet'r's Mem. at 11-12; R&R at 5, 12.) Next, Petitioner claims that
the Government unlawfully suppressed evidence that impeached the credibility of accomplice
witness Frank Lino, thereby depriving Petitioner of his rights to due process and the effective
assistance of trial counsel. (See Pet. at 6; Pet'r's Mem. at 12-14; R&R at 5, 12.)
II.
LEGAL STANDARDS
A.
Review of a Report and Recommendation
In reviewing the R&R of a dispositive matter from a magistrate judge, the district court
"may adopt those portions of the Report to which no objections have been made and which are
not facially erroneous." La Torres v. Walker, 216 F. Supp. 2d 157, 159 (S.D.N.Y. 2000); see
also Gesualdi v. Mack Excavation & Trailer Serv .. Inc., No. 09-CV-2502 (KAM) (JO), 2010
WL 985294, at *l (E.D.N.Y. Mar. 15, 2010) ("Where no objection to the Report and
Recommendation has been filed, the district court need only satisfy itself that there is no clear
error on the face of the record." (internal quotation marks and citation omitted)).
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The district court must review de novo "those portions of the report ... to which
objection is made." 28 U.S.C. § 636(b)(l). However, to obtain this de novo review, an objecting
party "must point out the specific portions of the report and recommendation to which they
object." U.S. Flour Coro. v. Certified Bakery, Inc., No. IO-CV-2522 (JS) (WDW), 2012
WL 728227, at *2 (E.D.N.Y. Mar. 6, 2012); see also Fed. R. Civ. P. 72(b)(2) ("[A] party may
serve and file specific written objections to the proposed findings and recommendations."). If a
party "makes only conclusory or general objections, or simply reiterates his original arguments,
the Court reviews the Report and Recommendation only for clear error." Pall Coro. v. Entegris,
Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008) (citations omitted); see also Mario v. P&C Food Mkts.
Inc., 313 F.3d 758, 766 (2d Cir. 2002) (holding that plaintiff's objection to an R&R was "not
specific enough" to "constitute an adequate objection under ... Fed. R. Civ. P. 72(b)"). "A
decision is 'clearly erroneous' when the Court is, 'upon review of the entire record, left with the
definite and firm conviction that a mistake has been committed."' DiPilato v. 7-Eleven, Inc., 662
F. Supp. 2d 333, 339-40 (S.D.N.Y. 2009) (quoting United States v. Snow, 462 F.3d 55, 72
(2d Cir. 2006)). Finally, courts "ordinarily refuse to consider arguments, case law and/or
evidentiary material which could have been, but was not, presented to the magistrate judge in the
first instance." Kennedy v. Adamo, No. 02-CV-1776 (ENV) (RML), 2006 WL 3704784, at *l
(E.D.N.Y. Sept. l, 2006) (internal quotation marks and citation omitted), aff'd, 323 F. App'x 34
(2d Cir. 2009) (summary order); see also Allen v. United Parcel Serv., Inc., 988 F.
Supp. 2d 293, 299 (E.D.N.Y. 2013); Forman v. Artuz, 211 F. Supp. 2d 415, 418
(S.D.N.Y. 2000).
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B.
Ineffective Assistance of Connsel During Plea Bargaining
To prevail on a claim of ineffective assistance of counsel, a petitioner must satisfy the
two-pronged test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668
(1984). See Williams v. Taylor, 529 U.S. 362, 390 (2000). First, under the "performance"
prong, a petitioner must show that trial counsel's representation "fell below an objective standard
of reasonableness" measured under "prevailing professional norms." Strickland, 466 U.S.
at 688. "Constitutionally effective counsel embraces a 'wide range of professionally competent
assistance,' and 'counsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professionaljudgment."' Greiner v.
Wells, 417 F.3d 305, 319 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 690). Second, under
the "prejudice" prong, the petitioner must show that "there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694. "It is not enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding"; rather, "[a] reasonable probability is a
probability sufficient to undermine confidence in the outcome." Id. at 693-94.
A defendant's Sixth Amendment right to counsel "extends to the plea-bargaining
process." Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012) (citing Missouri v. Frye, 132
S. Ct. 1399 (2012); Padilla v. Kentucky, 559 U.S. 356, 375 (2010); Hill v. Lockhart, 474
U.S. 52, 57 (1985)). Notwithstanding the strong presumption of counsel's reasonableness, the
Second Circuit has held that the gross underestimation of a defendant's sentencing exposure may
constitute ineffective assistance. See Davis v. Greiner, 428 F .3d 81, 88-89 (2d Cir. 2005)
(finding that because "'[k]nowledge of the comparative sentence exposure between standing trial
and accepting a plea offer will often be crucial to the decision whether to plead guilty,'" defense
6
counsel is ineffective for '"grossly' underestimating a defendant's potential sentencing exposure
at trial" (quoting United States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998))).
III.
DISCUSSION
A.
Those Portions of the R&R to Which No Objections Were Made
Judge Orenstein's R&R focused primarily on the first prong of Petitioner's claim of
ineffectiveness of trial counsel. However, Judge Orenstein also recommended that the court
deny Petitioner's claim of ineffectiveness of appellate counsel and defer ruling on Petitioner's
other claims pending litigation of an amended petition. (See R&R at 1, 12-14.) Neither party
has objected to these recommendations, and the time to do so has passed. See Fed. R. Civ.
P. 72(b)(2). (See also R&R at 14 ("Any objections to this [R&R] must be filed no later than
February 15, 2016.").) Therefore, the court reviews these portions of the R&R for clear error.
See Gesualdi, 2010 WL 985294, at *l; La Torres, 216 F. Supp. 2d at 159; cf. 28 U.S.C.
§ 636(b )(! ). Finding no clear error, the court adopts these portions of the R&R; accordingly, the
court denies Plaintiff's motion with respect to the claim of ineffectiveness of appellate counsel
and defers ruling on other claims pending litigation of an amended petition. See Porter v.
Potter, 219 F. App'x 112 (2d Cir. 2007) (summary order).
B.
The Government's Objections
The Government's objections are not entirely easy to discern. Although the Government
identifies several broad arguments (see Gov't's Objs. at 13), these arguments are not all framed
as objections to specific portions of the R&R, and the court has found additional grounds for
objection throughout the Government's brief, as explained below. Out of an abundance of
caution, the court has identified four objections and will address them each individually. First,
the Government argues that the court should reject Judge Orenstein's conclusion that Oppenheim
7
provided objectively unreasonable legal advice regarding Petitioner's sentencing exposure. (Id.
at 13, 28-32.) Second, the Governrnent maintains that regardless of whether Oppenheim's
advice was objectively unreasonable, the fact that she was not Petitioner's counsel ofrecord
precludes Petitioner's ineffective assistance claim. Mat 27-28.) Third, the Governrnent urges
the court to reject Judge Orenstein's recommendation to hold-or refer to him-a hearing to
determine whether Petitioner suffered prejudice as a result of the legal advice at issue. (Id.
at 13, 32-42.) Fourth, the Governrnent requests that the court issue a dispositive order denying
Petitioner's entire claim of ineffective assistance of trial counsel, despite the fact that Judge
Orenstein has not yet addressed the second prong of that claim. (See id. at 13.) For the
following reasons, the court overrules each of the Governrnent's objections.
I.
Whether Oppenheim's Advice Was Objectively Unreasonable
In the R&R, Judge Orenstein noted the parties' agreement that Oppenheim's legal
analysis of Petitioner's sentencing exposure was incorrect at the time, as was her view that a life
sentence in this case would violate the Ex Post Facto Clause. (R&R at 8.) The question Judge
Orenstein faced, then, was whether Oppenheim's analysis was not just wrong, but objectively
unreasonable. (Id.)
In finding that Oppenheim' s legal analysis was indeed objectively unreasonable, Judge
Orenstein agreed with Petitioner's argument that it was "plainly at odds with a Second Circuit
decision that was already over a decade old when she gave her advice." (Id. (citing United States
v. Minicone, 960 F.2d 1099 (2d Cir. 1992)).) 1 Although the Governrnent argued that Minicone
1
In Minicone, the Second Circuit held that mandatory application of the United States Sentencing Guidelines to the
defendant's RICO conspiracy conviction did not violate ex post facto principles, even though the defendant
personally committed no predicate acts after the effective date of the Guidelines. See Minicone, 960 F.2d at 1111.
Subsequent cases affirmed this holding. See, e.g., United States v. Eisen, 974 F.2d 246, 268 (2d Cir. 1992) (holding
that defendant in RlCO conspiracy could be sentenced under Guidelines for pre-Guidelines conduct where it was
foreseeable that conspiracy would continue to operate and defendant took no action to withdraw from conspiracy);
United States v. Alkins, 925 F.2d 545, 549 (2d Cir. 1991) (defendants properly convicted on certain counts under
8
had not squarely addressed the precise issue that Oppenheim faced, Judge Orenstein found this
argument unpersuasive, noting that "the holding and rationale of Mini cone necessarily compelled
the conclusion that it would not offend the Constitution to impose a life sentence on LoCurto in
this case." (Id. at 11.) Judge Orenstein further observed that Minicone "did not in any way
suggest that the holding or rationale of that case was in any way limited to the precise
circumstances in which the issue arose" Ci!h), and he noted that the Second Circuit itself cited
directly to Minicone as clearly established law in rejecting Petitioner's ex post facto argument on
appeal (id. (citing Amato, 306 F. App'x at 633)).
The Government raises a two-pronged objection to Judge Orenstein's determination on
this point, maintaining that "the R&R's analysis ofMinicone and the state of the law at the time
Ms. Oppenheim rendered her advice is incomplete[.]" (Gov't's Objs. at 13.) First, the
Government argues that because Minicone dealt with the application of the Sentencing
Guidelines to conduct that pre-dated their enactment, the case "did not squarely address the
question of whether a subsequently-increased statutory penalty could be applied to a continuing
offense that straddled the date of the statutory amendment." (Id. at 13 n.4.) However, this
contention appears to be a restatement of the same argument considered and rejected by Judge
Orenstein. (See R&R at 11.) Accordingly, the court reviews this portion of the R&R for clear
error and finds none. See Pall Corp., 249 F.R.D. 48, 51(E.D.N.Y.2008) (noting that a court
reviews an R&R only for clear error where a party "simply reiterates his original arguments").
statute that became effective after defendants committed all of their fraudulent acts, where defendants could have
"taken steps to prevent the final element from occurring" after statute's effective date). The Second Circuit later
summarized the state of the law on this issue in United States v. Trupin, 117 F.3d 678 (2d Cir. 1997), explaining that
the application of a new statute to a continuing crime does not violate ex post facto principles as long as the
defendant has the opportunity to terminate the criminal conduct within a reasonable time of the statute's effective
date. Id. at 686.
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Even under de novo review, the court would reach the same conclusion as Judge
Orenstein. As explained in the R&R, regardless of whether Minicone squarely addressed the
"precise circumstances" at issue in Petitioner's case, the Second Circuit clearly viewed the case
as having firmly precluded Petitioner's ex post facto argument on appeal. (See R&R at 11
(citing Amato, 306 F. App'x at 633).) Furthermore, as Petitioner points out, Minicone was not
the first case in the Second Circuit to address this issue. (See Pet'r's Resp. at 7-9.) In fact,
Minicone relies on a line of cases reaching back decades. See Minicone, 960 F.2d at 1111 ("We
have found that in general no Ex Post Facto violation occurs by application of the Guidelines to
'straddle crimes"' (citing United States v. McCall, 915 F.2d 811, 816 (2d Cir. 1990); United
States v. Story. 891F.2d988, 991-92 (2d Cir. 1989))); see also United States v. Monaco, 194
F.3d 381, 386 (2d Cir. 1999) (rejecting ex post facto challenges, and noting that "[i]t is wellsettled that when a statute is concerned with a continuing offense, the Ex Post Facto clause is not
violated by application of a statute to an enterprise that began prior to, but continued after, the
effective date of the statute" (internal quotation marks and citation omitted)); filQJ:y, 891 F.2d
at 994 ("With respect to continuing offenses, the elimination of ex post facto problems does not
require limiting the Guidelines to offenses begun after November 1, since enhanced sentencing
provisions may validly be applied to continuing offenses that straddle the effective date of such
provisions, as has been held in this Circuit[.]" (citing United States v. Borelli, 336 F.2d 376, 386
n.5 (2d Cir. 1964), cert. denied, 379 U.S. 960 (1965))); United States v. Markman, 193
F.2d 574, 576 (2d Cir. 1952) (rejecting defendant's argument that he could not be sentenced for
violating a provision that did not become effective until after he ceased taking an active role in
the conspiracy, because the conspiracy continued after the later date and defendant did not
10
affirmatively disassociate from it). Accordingly, the court overrules the Government's objection
on this point.
Next, the Government argues that a contemporaneous, 2005 decision by Judge Jack
Weinstein of the Eastern District ofNew York lends support to Oppenheim's analysis, rendering
her advice not objectively unreasonable. (Id. (citing United States v. Taveras, 401
F. Supp. 2d 304, 306 (E.D.N.Y. 2005)).) In Taveras, the defendant was charged with homicide
in furtherance of a drug conspiracy and faced the death penalty. 401 F. Supp. 2d at 305. While
the drug conspiracy continued after the federal death penalty statute became effective, the
murder itself pre-dated the enactment of the legislation. Id. Judge Weinstein granted the
defendant's motion to strike that count of the indictment, holding that the Ex Post Facto Clause
prevented the prosecution of the defendant under a death penalty statute that did not exist at the
time of the murder. Id. at 306-07. Noting that Petitioner relied on Taveras in his appeal, the
Government now maintains that the case "provided an entirely reasonable basis for an attorney to
argue against the application of the higher penalty available as a result of the 1988 amendment to
the RICO statute given that the penalty, just like the penalty in Taveras, was increased after the
homicide at issue." (Gov't's Objs. at 31-32.)
As an initial matter, the court notes that the Government appears not to have cited
Taveras in its briefing before Judge Orenstein. As courts in this circuit and elsewhere have held,
"a litigant is not allowed to oppose a magistrate's Report and Recommendation by suddenly
asserting new arguments that were not presented to the magistrate originally." Kennedy, 2006
WL 3704784, at *3; see also Allen, 988 F. Supp. 2d at 299 ("[Plaintiff] did not present this
argument or case law to [the magistrate], so this Court need not consider it."). Nonetheless,
courts may exercise their discretion to consider new arguments when reviewing an R&R where
11
there are compelling reasons to do so. 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b); Hynes v.
Sguillace, 143 F.3d 653, 656 (2d Cir. 1998). Here, Petitioner did indeed reference Taveras in his
appeal to the Second Circuit, and the record was available to Judge Orenstein. See Brief for
Defendant-Appellant at 9-10, Amato, 306 F. App'x 630 (No. 07-CR-712), 2007 WL 6449580.
Accordingly, the court will consider Taveras in reviewing this portion of the R&R.
However, on de novo review, the court finds that Taveras does not undermine Judge
Orenstein's determination that Oppenheim's advice was objectively unreasonable. In fact, the
Government distinguished Taveras in its own brief before the Second Circuit:
The only authority cited by LoCurto, [Taveras], turned upon an
interpretation of the elements of the particular statute involved in
that case, 18 U.S.C. § 924(j)(l). The court apparently concluded
that statute did not charge a continuing offense, holding that ' [t ]he
crime was completed when the murder was committed during the
conspiracy.' [Taveras, 401 F. Supp. 2d at 307]. That was clearly
not true for the racketeering conspiracy of which LoCurto was
convicted in this case. Moreover, to the extent, if at all, that the
court intended its ruling to apply to continuing offenses, it failed to
cite or analyze the precedents of this Court . . . . Thus, Taveras
provides scant support for Lo Curto' s argument in this case.
Brief for the United States at 34 n.20, Amato, 306 F. App'x 630 (No. 07-CR-712), 2008
WL 6099300. The court finds this argument compelling and notes that the Second Circuit did
not see fit to address Taveras in rejecting Petitioner's ex post facto argument on appeal. See
Amato, 306 F. App'x at 633 ("We reject this argument because LoCurto continued to act in the
conspiracy after the effective date of the challenged amendment." (citing Minicone, 960 F.2d
at 1111)). Furthermore, even if Taveras were not distinguishable, there is no indication that
Oppenheim relied on-or was even aware of-the case when she provided her advice.
Accordingly, the court finds that the decision in Taveras did not provide a reasonable basis for
Oppenheim's erroneous legal advice. The court agrees with Judge Orenstein that Oppenheim's
12
advice was objectively unreasonable and, accordingly, overrules the Governrnent's objection on
this point.
2.
Whether Petitioner Was Correctly Advised of His Sentencing Exposure
Next, the Governrnent argues that regardless of whether Oppenheim's advice was
objectively unreasonable, Petitioner cannot prevail on his ineffective assistance claim because
Oppenheim was not his counsel ofrecord. (Gov't's Objs. at 27-28.) The Governrnent notes that
Petitioner's appointed trial counsel correctly advised Petitioner that he faced the possibility of a
life sentence if convicted at trial. (Id. (citing Deel. of Harry C. Batchelder, Jr. ("Batchelder
Deel.") (Gov't's Objs., Ex B (Dkt. 74-2)) '\['\[ 5, 8).) Therefore, the Governrnent maintains that
Petitioner's counsel "at all times provided LoCurto with constitutionally sufficient
representation, notwithstanding the fact that LoCurto received inconsistent advice from Ms.
Oppenheim." (Id. at 28.)
This objection is not properly before the court, as it is not directed at any portion of the
R&R. This R&R is concerned only with the question of whether the legal advice itself violated
the performance prong of Strickland. (See Sept. 3, 2013, Tr. at 10-11.) As Judge Orenstein
explained to the parties: "If the answer to that is no[,] that's the end of it and no hearing is
necessary. If the answer to that is yes[,] then we get to the second issue raised ... which is
whether Ms. Oppenheim's status not being counsel ofrecord precludes a successful Strickland
motion." (Id.) The court expects that Judge Orenstein will address the issue ofOppenheim's
status in the subsequent R&R; accordingly, the Governrnent's objection is overruled.
3.
Whether Petitioner is Entitled to a Hearing Regarding Prejudice
After concluding that Oppenheim had provided objectively unreasonable legal advice to
Petitioner, Judge Orenstein determined that "as a result the petitioner's ineffective assistance
13
claim cannot be resolved without an evidentiary hearing about whether that advice caused the
petitioner any cognizable prejudice." (R&R at 13.) Judge Orenstein therefore recommended
that the court conduct, or refer to him, such a hearing. (Id.)
The Government objects to Judge Orenstein' s determination that a hearing is necessary,
arguing that regardless of whether Oppenheim's advice was objectively unreasonable, Petitioner
has failed to show that he is entitled to a hearing under 28 U.S.C. § 2255. (Gov't's Objs. at 32.)
Specifically, the Government maintains that Petitioner cannot establish prejudice, because: (I)
the record does not demonstrate that Petitioner received a "formal" plea offer (id. at 33-34 (citing
Lafler, 132 S. Ct. at 1387 (2012))); (2) he has not shown a reasonable probability that he would
have pied guilty even ifhe had received a formal plea offer (&at 34-38 (citing United States v.
Frederick, 526 F. App'x 91, 93 (2d Cir. 2013))); and (3) he has not shown a reasonable
probability that the court would have accepted the purported 20-year plea deal even if the offer
existed (id. at 38-41).
The Government's objection includes a lengthy discussion of statutory standards and
caselaw addressing when a habeas petitioner is entitled to a hearing on an ineffective assistance
claim, none of which are addressed in Judge Orenstein's R&R. Accordingly, the court finds that
this objection warrants de novo review. However, for the following reasons, the court agrees
with Judge Orenstein's determination that a hearing is necessary to determine whether Petitioner
suffered prejudice.
When considering a§ 2255 motion, the district court must hold a hearing "[u]nless the
motion and the files and records of the case conclusively show that the petitioner is entitled to no
relief." 28 U.S.C. § 2255. "With respect to claims of ineffective assistance of counsel, the
petitioner need establish only that he has a 'plausible' claim of ineffective assistance, not that 'he
14
will necessarily succeed on the claim."' Siraj v. United States, 999 F. Supp. 2d 367, 371
(E.D.N.Y. 2013) (quoting Armienti v. United States, 234 F.3d 820, 823 (2d Cir. 2000)). In
determining whether to hold a hearing, the district court should consider whether a factual
dispute exists. Knight v. Phillips, No. 05-CV-2749 (NG), 2012 WL 5955058, at *25 (E.D.N.Y.
Nov. 28, 2012). "Where specific allegations before the court show reason to believe that the
petitioner may, if the facts are fully developed, be able to demonstrate that he is ... entitled to
relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate
inquiry." Bracy v. Gramley, 520 U.S. 899, 908-09 (1997).
The first ground for the Government's objection is that Petitioner cannot establish a
plausible claim for relief because he did not receive a "formal" plea offer. (Gov't's Objs.
at 20-22, 33-34.) For support, the Government cites the companion cases of Lafler and Frye, in
which the Supreme Court clarified the contours of the Sixth Amendment right to counsel in the
context of plea negotiations. While Lafler made no mention of formal-as opposed to
informal-plea offers, the Court did observe that "[i]fno plea offer is made, or a plea deal is
accepted by the defendant but rejected by the judge, the issue raised here simply does not arise."
Lafler, 132 S. Ct. at 1387. In Frye, which dealt with trial counsel's failure to communicate a
plea offer to the defendant, the Court held that "as a general rule, defense counsel has the duty to
communicate formal offers from the prosecution to accept a plea on terms and conditions that
may be favorable to the accused." Frye, 132 S. Cl. at 1408.
Most courts to address this issue have interpreted Lafler and Frye to require the extension
of a formal plea offer in order for a petitioner to prevail on claims of ineffective assistance in the
context of plea negotiations. See, e.g., Mavashev v. United States, No. l 1-CV-3724 (DLI), 2015
WL 1508313, at *9-11 (E.D.N.Y. Mar. 31, 2015) (rejecting attempt to extend Lafler to "informal
15
plea negotiations"); Diallo v. United States, No. 12-CV-3310 (MEA), 2014 WL 4460364, at *6
(S.D.N. Y. Sept. 10, 2014) ("Because there was no formal plea deal ever offered by the
government, Diallo's claim of prejudice ... fails."); Williams v. United States, No. 08-CR-0112
(GZS), 2013 WL 2155390, at *4 (D. Me. May 17, 2013) ("When there is no formal offer on the
table, this particular duty does not arise."); Silva v. United States, No. 12-CV-0898 (DGK), 2013
WL 1628444, at *4 (W.D. Mo. Apr. 16, 2013) (holding that "the movant must prove that the
alleged plea agreement was formally offered by the Government").
However, not all courts have taken such a formalistic view of the plea bargaining
2
process. In United States v. Gordon, 156 F.3d 376 (2d Cir. 1998) (per curiam), which pre-dated
Lafler and Frye, the Second Circuit rejected the distinction between formal and informal offers,
holding that "whether the government ... made a formal plea offer was irrelevant," and finding
that the petitioner "was nonetheless prejudiced because he did not have accurate information
upon which to make his decision to pursue further plea negotiations or go to trial." Id. at 381.
More recently, this court held that the lack of a formal offer "strongly weighs against a finding
that [the petitioner] would have pied guilty"; however, the court treated the existence ofa formal
offer as an important but non-dispositive "factor[] affecting whether a petitioner has proven
prejudice in the plea bargaining context." Defilippo v. United States, No. 09-CV-4153
(NGG), 2013 WL 817196, at *6 (E.D.N.Y. Mar. 5, 2013) (citing Lafler, 132 S. Ct. at 1385).3
2
Commentators have also expressed doubt as to whether the Supreme Court intended to established a "formal offer"
requirement in Lafler or~· See Sabrina Mirza, Note, Formalizing the Plea Bargaining Process After Lafler and
~' 39 Seton Hall Legis. J. 487, 499(2015) ("The Supreme Court uses the word 'formal' in~- but not in Lafler.
The inconsistent use of 'formal offer' between the two decisions suggests that the Court did not intend to limit its
holdings to formal offers."); Jenny Roberts, Effective Plea Bargaining Counsel, 122 Yale L.J. 2650, 2671 (2013)
("Surely, if the Court meant to limit the right to effective assistance to informing and counseling defendants about
formal plea offers the prosecution has extended, it would not have repeatedly used the words 'plea bargaining,' 'plea
negotiations,' and 'negotiation of a plea bargain.'").
3
It is also important to note that while the court denied the habeas petition in Defilippo, in part due to the lack of a
formal plea offer, it nonetheless ordered a hearing on the ineffective assistance claim. See Defilippo, 2013
WL 817196, at *7 n.4.
16
Furthermore, it is not always entirely clear what distinguishes a formal plea offer from an
informal offer or a mere proposal for further negotiation. In suggesting that prosecutors and trial
courts adopt measures to formalize plea offer procedures, the Frye Court explained that "the fact
of a formal offer means that its terms and its processing can be documented so that what took
place in the negotiation process becomes more clear if some later inquiry turns on the conduct of
earlier pretrial negotiations." Frye, 132 S. Ct. at 1409. However, as the Court recognized, plea
bargaining is, "by its nature, defined to a substantial degree by personal style," id. at 1408, and
formalization of the plea bargaining process varies widely, see id. at 1409 (citing different states'
procedures for documenting plea offers).
Even courts that have required a formal plea offer in these situations do not always
specify what such formality would entail, with many implying that the distinction is based on
whether there was a written offer with definite terms, as opposed to an oral proposal, or no
proposal at all. In Mavashev, for example, the district court rejected the petitioner's claim that
trial counsel had failed to consult him regarding informal plea proposals that arose from
"ongoing discussions with the government," noting that absent any formal documentation,
"allegations of insufficiently communicated plea offers are easily fabricated after the fact." 2015
WL 1508313, at *9; see also Barnes v. United States, No. 09-CR-1053 (SAS), 2013
WL 3357925, at *7 (S.D.N.Y. July 2, 2013) (rejecting ineffective assistance claim for lack ofa
formal plea offer, because "it would be entirely speculative to consider the terms, including the
length of sentence, of a theoretical plea bargain"); United States v. Waters, No. 11-CR-l 00
(JRP), 2013 WL 3949092, at *8 (E.D. Pa. July 31, 2013) ("While we have been unable to find
any authority defining the requisite elements of a formal plea offer, it is clear that an oral
discussion of the sentencing range for a possible plea agreement that does not include an
17
agreement on the charges to which the defendant will plead guilty and the facts that he will
admit, does not constitute a formal plea offer."). These cases, along with Frye, suggest that
whether an offer is formal or not may have more to do with whether it is capable of
documentation and less with whatever label prosecutors choose to apply to it.
Here, while the Government disclaimed the formality of the communication at issue, the
fact that it was written, set a deadline for guilty pleas, and listed specific recommended
maximum sentences for each defendant suggests that it might satisfy the ~ criteria for a
formal offer, assuming there is such a requirement. Regardless, in order to determine the extent
and formality of the purported plea offer, the court would benefit from more information about
the context in which the letter was sent and whether it represented the entirety of the parties'
communications regarding a possible plea. In fact, the parties were engaged in a discovery
dispute on this very issue when Judge Orenstein suggested the bifurcated R&R process as a
potential solution. (See R&R at 6 (describing Petitioner's request for "discovery of the
govermnent's internal deliberations about plea negotiations and its communications with
Batchelder and other defendants' counsel on that subject," and noting that "[u]ltimately, the
parties and I agreed that the most efficient way to proceed in the unusual circumstances of this
case would be to postpone resolution of the thorny issues attendant to the discovery motion and
instead bifurcate consideration of the Petition").) Because there remains a factual dispute as to
whether Petitioner received a plea offer at all, let alone a formal one, the court finds that
Petitioner is entitled to a hearing on this issue. (See id. (noting that the Government "disavowed
having made a plea offer despite relying on Batchelder's declaration[,] which referred to the
government's 'initial plea offer of twenty years"').)
18
Next, the Government argues against a hearing on the ground that Petitioner has failed to
establish a reasonable probability both that he would have pied guilty (Gov't's Objs. at 34-38),
and that the court would have accepted the purported 20-year plea deal (id. at 3 8-41 ). However,
"reasonable probability" is the standard that Petitioner ultimately must meet in order to satisfy
the prejudice prong of Strickland. See Lafler, 132 S. Ct. at 1384 ("In these circumstances a
defendant must show that but for the ineffective advice of counsel there is a reasonable
probability that the plea offer would have been presented to the court ... , that the court would
have accepted its terms, and that the conviction or sentence, or both, under the offer's terms
would have been less severe than under the judgment and sentence that in fact were imposed.").
As noted above, the standard for obtaining a hearing is significantly less burdensome: Petitioner
"need establish only that he has a 'plausible' claim of ineffective assistance, not that 'he will
necessarily succeed on the claim.'" Siraj, 999 F. Supp. 2d at 371 (quoting Armienti, 234 F.3d
at 823).
In light of the factual dispute regarding the purported plea offer, and the fact that the
court has adopted Judge Orenstein's determination that Oppenheim provided objectively
umeasonable legal advice regarding Petitioner's sentencing exposure, the court finds that
Petitioner has established a plausible claim of ineffective assistance and is therefore entitled to a
hearing. Accordingly, the court overrules the Govermnent's objection.
4.
Whether the Court Should Deny Petitioner's Claim oflneffective
Assistance of Trial Counsel
Finally, the Government makes a broad argument that the court should deny the entirety
of Petitioner's claim of ineffective assistance of trial counsel, despite the fact that Judge
Orenstein has not yet issued an R&R addressing the second prong of Petitioner's claim. (See
Gov't's Objs. at 13.) This argument is not exactly an objection, so much as the conclusion to the
19
4
As noted in the R&R, the Government reserves the right to object to any arguments put forward in an amended
Government's previous objections. If the court were to agree with the Government that
Oppenheim's advice was not objectively unreasonable, or that Petitioner has no plausible claim
of prejudice, then Petitioner would necessarily fail the Strickland criteria, and there would be no
need for Judge Orenstein to continue his review of the claim. However, as discussed above, the
court has overruled the Government's previous objections and adopts Judge Orenstein's
recommendations. Accordingly, the court rejects the Government's final argument and grants
Judge Orenstein leave to continue his review of Petitioner's claim of ineffective assistance.
IV.
CONCLUSION
For the reasons set forth above, the court OVERRULES the Governments objections and
ADOPTS IN FULL Judge Orenstein's R&R. Accordingly, the court DENIES Plaintiffs motion
with respect to the ineffectiveness of appellate counsel claim and DEFERS ruling on other
claims pending litigation of an amended petition. 4 Judge Orenstein may conduct an evidentiary
hearing in reviewing the remainder of Petitioner's ineffectiveness of trial counsel claim.
SO ORDERED.
s/Nicholas G. Garaufis
MICHOLAS G. GARAUF\§
United States District Judge
Dated: Brooklyn, New York
August _11, 2016
As noted in the R&R, the Government reserves the right to object to any arguments put forward in an amended
petition, on the grounds that such claims are untimely. (See R&R at 13 n.8.)
4
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