Hamilton v. United States of America
Filing
27
OPINION AND ORDER. The petition for a writ of habeas corpus is denied. Because Hamilton has failed to make a substantial showing of the denial of a constitutional right, 28 U.S.C. § 2253(c)(2), the courtdeclines to issue a certificate of appealability. The Clerk of Court is directed to enter judgmentaccordingly. Ordered by Judge Allyne R. Ross on 8/12/2013. Forwarded for judgment. C/M. (Siegfried, Evan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------------JEFFREY EARL HAMILTON,
Petitioner,
-againstUNITED STATES OF AMERICA,
Respondent.
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12-CV-2091 (ARR)
OPINION AND ORDER
ROSS, United States District Judge:
On April 24, 2012, Jeffrey Earl Hamilton (“Hamilton” or “petitioner”), filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Hamilton claims that his trial counsel,
John Yu (“Yu”), was ineffective for: (1) advising petitioner that accepting the government’s plea
offers would preclude him from challenging the role enhancement calculations, see Sentencing
Guidelines (“U.S.S.G.”) § 3B1.1, set forth in those offers; (2) failing to conduct an adequate
investigation before either advising Hamilton to reject the plea offers or proceeding to trial; (3)
refusing to allow petitioner to testify at trial; and (4) failing to object, and subsequently raise on
appeal, that the introduction of a drug courier’s address book at trial violated Hamilton’s rights
under the Confrontation Clause. For the reasons stated below, the petition is denied.
I. BACKGROUND
On January 30, 2006, the government filed an indictment against Hamilton, charging him
with: (1) conspiracy to import five kilograms or more of a substance containing cocaine in
violation of 21 U.S.C. §§ 963, 960(a)(1) and 960(b)(1)(B)(ii) (Count 1); conspiracy to possess
with intent to distribute five kilograms or more of a substance containing cocaine in violation of
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21 U.S.C. §§ 846 and 841(b)(1)(A)(ii)(II) (Count Two); and (3) conspiracy to possess with intent
to distribute marijuana in violation of 21 U.S.C. §§ 846 and 841(b)(1)(D) (Count Three).
Government Ex. (“GE”) 1. The government extended three plea offers to Hamilton prior to trial,
GE 2; GE 3; GE 4, at 2-3, each of which petitioner rejected, Transcript of June 11, 2013 Hearing
(“Hr’g Tr.”) 13, 17, 27. Hamilton also declined to plead to the indictment. Hr’g Tr. 29.
Subsequently, petitioner was tried before a jury and convicted of Counts One and Two. Dkt. #1,
at 1; see generally Tr. of Trial, United States v. Hamilton, No. 06-cr-00064 (E.D.N.Y. Jan. 2226, 2007), Dkt. #52-57 (“Trial Tr.”).
A.
The Plea Offers
The primary issue in this case involves the plea advice that Yu provided to Hamilton.
Had Hamilton accepted any of the government’s plea offers, he would have received a
significantly lower advisory Sentencing Guidelines range than the one he was assigned following
his conviction. As summarized below, the three plea offers that Hamilton received and rejected
contained different estimates with respect to the advisory Sentencing Guidelines:
First Offer
Extended: October 3, 2006
Base Offense Level: 34
Role Adjustment: +4
Acceptance of Responsibility: -3
Total Offense Level: 35
Sentencing Range: 168-210 months
Second Offer Extended: October 23, 2006
Base Offense Level: 32
Role Adjustment: +4
Acceptance of Responsibility: -3
Total Offense Level: 33
Sentencing Range: 135-168 months
Third Offer
Extended: October 27, 2006
Available through: October 31, 2006
Base Offense Level: 32
Role Adjustment: +3
2
Acceptance of Responsibility: -3
Total Offense Level: 32
Sentencing Range: 121-151 months
GE 2, at 2-3; GE 3, at 2-3; GE 4, at 1-3; GE 5, at 1-2.
B.
Hamilton’s Sentence
At sentencing, the court determined petitioner’s base offense level to be 34, Tr. of
Sentence of the Court, United States v. Hamilton, No. 06-cr-00064, Dkt. #70 (E.D.N.Y. June 28,
2007) (“Sentencing Tr.”), at 5, and imposed an aggravating role enhancement of three levels due
to Hamilton’s managerial or supervisory role in the conspiracies, id. at 7. The court thus
calculated Hamilton’s adjusted offense level to be 37, which yielded an advisory sentencing
range of 210 to 262 months. Id. at 8. Subsequently, the court imposed a sentence of 210 months
imprisonment, which was within the advisory Sentencing Guidelines range. Id. at 13.
Before imposing the sentence, the court had the following colloquy with Hamilton and
Yu:
THE COURT:
Mr. Hamilton, is there anything you would like to say?
....
THE DEFENDANT: There’s been, really, a lot of misunderstanding, when I just
got locked up, I spoke to Mr. Yu and I told my role, so I
was really willing to accept my responsibility, but going to
trial was not going to trial to say I’m innocent, because I’m
accountable and responsible for what I was responsible for
and not all the things that I was accused of.
THE COURT:
I’m sorry. I’m not sure I understand.
MR. YU:
Judge, may I just—
THE COURT:
Yes.
MR. YU:
—because I’ve heard this argument before.
THE COURT:
Okay.
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MR. YU:
Mr. Hamilton wants to inform The Court that, from Day 1,
he never denied that he was involved in the drug trade. He
was involved in the drug trade.
He told me he was involved, but he was not involved to the
extent that the Government makes his participation to be,
Your Honor; in large part, what Mr. Hamilton is saying:
There was misunderstandings about his role.
He had a very small role in the matter, Your Honor, and
that’s wh[y] he wanted to go to trial, to show that his role
wasn’t as extensive as the Government claimed.
[THE COURT:]
Is that correct, sir?
THE DEFENDANT: Yes, ma’am.
Id. at 10-11.
C.
Hamilton’s Evolving Claim as to Yu’s Deficient Plea Advice
Petitioner now claims that, but for Yu’s ineffective counsel, he would have accepted one
of the government’s plea offers. Notably, the contours of Hamilton’s claim have changed
substantially over the course of this case.
1.
Petitioner’s pro se papers
In his April 24, 2012 habeas petition, filed pro se, Hamilton initially claimed that Yu
“was ineffective for advising Defendant to reject two plea agreements, each that would have
resulted in a sentence substantially less than the 210 months Defendant received.” Dkt. #1, at 4.
Petitioner asserted that counsel advised him to “proceed to trial, despite the fact that a sentence
under the Guidelines if convicted would have carried almost twice the penalty.” Id.
In addition, Hamilton attached a sworn declaration to the petition that described his
interactions with Yu. Dkt. #1, at 45-49. Hamilton asserted that he had informed Yu from the
start that he “was guilty of some of the charges in the indictment, but not all charges alleged in
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the indictment.” Id. at 45. With respect to the first plea offer, Hamilton declared, “[Yu] advised
me that in his professional opinion, He thinks it’s not a reasonable plea offer, but He’ll go back
and talk to the Government and see if they’ll make a better offer.” Id. at 46. As for the second
plea offer, Hamilton asserted, “[Yu] told me that the Government still insist. I get the leadership
role, unless I cooperate with the Government.” Id. at 47. According to the declaration, Hamilton
responded that he was unwilling to cooperate and that “Yu then told [him] that [they] got to start
preparing for trial.” Id. at 48.
The declaration also included statements regarding Hamilton’s interactions with Yu while
defendant was preparing for trial. According to petitioner, Yu met with Hamilton before trial
and informed petitioner that “[h]e went over a lot of the discovery including some of the 3500
material briefly.” Id. The declaration further states: “[Yu] then said remember at first I told you
it was looking steep gesturing upwards with his hands. But now it’s looking good for us
gesturing downwards with his hands.” Id. According to Hamilton, Yu continued, “I think you
have a good chance of winning at trial. They have nothing against you. I think we should give it
a shot.” Id.
With respect to the trial itself, Hamilton declared, “About the third day during the trial, . .
. the evidence was becoming overwhelming, evidence I never seen during the pretrial.” Id. at 4849. Based on the “overwhelming” evidence, Hamilton told Yu that he wanted to plead guilty,
but Yu advised petitioner to continue with the trial and preserve his rights on appeal. Id. at 49.
In conclusion, Hamilton asserted, “[B]ecause my counsel was ineffective, the length of my
incarceration was increased from . . . the 135-168 months the Government offered to 210
months, my current sentence.” Id.
Thereafter, on August 27, 2012, Hamilton filed an additional pro se brief and affidavit in
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support of his petition. Dkt. #11. In the affidavit, Hamilton asserted, “Based on my attorney’s
advice I rejected the United States’ plea offer, which provided a sentencing range of 135 to 168
months.” Id. at 3. “Had I been properly advised,” petitioner continued, “I would have accepted
the plea offer.” Id.
2.
Supplemental papers by Hamilton’s counsel
Subsequently, the court appointed Jeffrey G. Pittell (“Pittell”) to represent Hamilton.
Pittell then submitted a supplemental memorandum in further support of Hamilton’s petition.
Dkt. #14. In addition to reiterating Hamilton’s argument that Yu had misadvised petitioner as to
the strength of the government’s case, Pittell asserted a new argument as to why Yu’s plea
advice was deficient: trial counsel had incorrectly advised petitioner that he “should proceed to
trial in order to contest his Sentencing Guideline role in the offense.” Id. at 10-11.
Pittell contended that “Hamilton was willing to accept responsibility for his offense
conduct, and only sought to contest his role in the offense.” Id. at 12. Under these
circumstances, counsel maintained, “there was no professionally competent reason for his
counsel to advise him to proceed to trial. By proceeding to trial, Mr. Hamilton lost the benefit of
receiving the reduction, for acceptance of responsibility, as provided by the Sentencing
Guidelines.” Id. In other words, insofar as Hamilton sought to litigate only the sentencing issue
of his role in the offense, then Yu should have advised petitioner to plead guilty and challenge
the imposition of any role enhancement during a Fatico sentencing hearing. Id. at 13; see
generally United States v. Fatico, 603 F.2d 1053, 1054 (2d Cir. 1979).
D.
The Evidentiary Hearing
On June 11, 2013, the court held an evidentiary hearing to adduce testimony regarding
the plea advice that Hamilton had received from Yu and Thomas J. Sullivan, an attorney who, at
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Yu’s request, had also reviewed Hamilton’s case and advised petitioner regarding the
government’s plea offers. Hr’g Tr. 22. Yu, Sullivan, and Hamilton all testified at the hearing.
In addition, the government introduced several recorded telephone conversations between
Hamilton and an unidentified female that occurred while petitioner was incarcerated at the
Metropolitan Detention Center (“MDC”) in Brooklyn. GE 11-17. In these conversations,
Hamilton discussed his interactions with Yu relating to the plea deals and articulated his
objections to the government’s offers. See id.
In general, the court found the testimony of Yu and Sullivan to be highly credible and
consistent with respect to the attorneys’ communications to Hamilton regarding the strength of
the government’s case and the evidence against petitioner; their advice to petitioner regarding the
benefits of pleading rather than going to trial; and Hamilton’s reasons for not accepting their
advice that petitioner plead guilty.
In contrast, the court had substantial doubts about Hamilton’s credibility. With respect to
several critical issues, petitioner’s testimony contradicted the statements that he had made in his
habeas petition and supporting documents. The court was left with the distinct impression that,
rather than simply telling the truth, Hamilton tried to shape his testimony to conform to Pittell’s
new theory as to why Yu’s plea advice was ineffective. Although the court credits certain
statements made by Hamilton—including petitioner’s insistence that his primary objection to the
plea offers was the government’s characterization of his role in the offense—the court remains
unconvinced by Hamilton’s assertion that he would have pleaded guilty but for Yu’s allegedly
deficient advice.
1.
Yu’s Testimony
The court finds that Yu testified credibly regarding his interactions with Hamilton.
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a.
Initial interactions
During their initial meeting, Yu advised Hamilton that, “based upon the charges in the
indictment, [petitioner] was facing . . . a minimum of 10 years with a maximum of life.” Hr’g
Tr. 36-37. In addition, Yu recalled that Hamilton informed him very early on that petitioner
“was a small time drug dealer.” Id. at 34; accord id. at 59. As Yu further explained, Hamilton
never claimed innocence; instead, petitioner denied involvement in “the conspiracy aspect” of
the drug charges. Id. at 59.
b.
First plea offer
At the time that he received the first offer, Yu recalled, he already “thought the
government had a rather strong case against Mr. Hamilton.” Id. at 14. Yu’s perception was
based in part on the prosecutor’s disclosure that “there were going to be at least three
coconspirators testifying against Mr. Hamilton at the trial.” Id. Based on his review of the
evidence produced by the government up to that point, id., Yu advised Hamilton that “under the
circumstances he should consider taking a plea in this case,” id. at 15. As Yu credibly testified,
“I thought at trial he would lose and I informed him of that.” Id. In addition, the court credits
Yu’s testimony that, in the course of that discussion, he reviewed with Hamilton the evidence
that he expected the government to put on at trial. Id. Among other things, Yu recalled
communicating to petitioner “that the number of coconspirators testifying against him . . . made
his case a rather difficult one.” Id. at 16. Yu also calculated Hamilton’s sentencing exposure
and shared that with petitioner. Id. at 68.
The court also finds Yu’s testimony regarding Hamilton’s response to the first plea offer
to be truthful. Recalling that “Hamilton was not too pleased with this particular offer,” id. at 16,
counsel acknowledged that petitioner’s “primary objection was the [four-point] role
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enhancement in the plea agreement.” Id. at 47; accord id. at 16, 49. As Yu further explained, “I
think it was—his role was that of a managerial role in the overall conspiracy and a leadership
role, which meant his exposure was greater.” Id. at 16-17. Because Hamilton “felt that the
government overstated his role in the conspiracy,” Yu testified, petitioner decided not to accept
the plea offer and asked Yu “to go back and argue that issue with [the prosecutor] about the role
adjustment.” Id. at 17. Thereafter, Yu communicated Hamilton’s rejection of the first plea offer
to the prosecutor, explained “the nature of the rejection,” and asked the prosecutor “to consider
adjusting the role status . . . to a lesser role.” Id.
c.
Second plea offer
Yu testified that the prosecutor responded with a second offer. Id. Seeing that the new
offer carried an advisory sentencing range of 135 to 168 months, which was a decrease from the
168 to 210-months range in the first plea offer, Yu “was very happy with it and . . . immediately
went to see Mr. Hamilton to show him the plea offer.” Id. at 19. Yu credibly testified that he
discussed the new offer with Hamilton, explained that petitioner’s sentencing exposure would be
“more than 25 years” if he went to trial and lost, id. at 21, and urged him to accept it, id. at 53.
Yu recalls that Hamilton was “startled” and “concerned” by this information, id. at 21, but that
petitioner nonetheless indicated that he was unwilling to accept the plea, id. at 20.
As Yu explained, Hamilton remained bothered by the role adjustment in the plea offer.
Id. at 19-20; accord id. at 51. Indeed, Yu acknowledged that the role enhancement was “the
main impediment to him accepting the offer.” Id. at 51; accord id. at 52, 54. According to Yu,
Hamilton indicated, “I’m not taking it. First of all, I didn’t do that to cause four points
adjustment.” Id. at 51. Although counsel agreed at one point during cross examination that the
role enhancement was Hamilton’s “only objection” to the plea agreement, id. at 51, he
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subsequently clarified, “I’m not saying there weren’t other issues that Mr. Hamilton may have
had problems with. . . . The thing I recollect most vividly was his objection to the role
enhancement.” Id. at 51-52. At the same time, Yu recalled that “Hamilton didn’t believe that his
coconspirators would come to court to testify against him.” Id. at 51. The court credits Yu’s
testimony regarding Hamilton’s response to the second plea offer.
Counsel next testified that he became “very concerned,” because “if [Hamilton] wasn’t
going to take the plea, that meant he was going to go to trial and [Yu] did not think this was a
case that should be tried.” Id. at 20. The court finds truthful Yu’s statement that he believed that
Hamilton would lose at trial and thereby “get more time.” Id. at 21. At that point, Yu recalled,
he realized that Hamilton “was not inclined to plead guilty in the case.” Id. Feeling “totally
befuddled as to what was going to happen to Mr. Hamilton because of his intransigence with
respect at the plea offers,” Yu decided to invite Sullivan to provide petitioner with a second
opinion. Id. at 22.
Yu testified credibly that he “went over the case in detail” and shared his copy of the
relevant materials with Sullivan. Id. at 23-24. Thereafter, Yu and Sullivan met with Hamilton.
Id. at 24. As Yu recalled, Sullivan urged Hamilton to accept the second plea offer, advising
petitioner that “[t]his is not a case that you want to go to trial because you may lose.” Id. Yu
also explained that although the plea offer carried “a 10 year minimum,” Hamilton “could get a
lot more time” if he went to trial and lost. Id. at 25. The court also finds truthful Yu’s statement
that he discussed the case and reviewed the evidence “every time” he met with petitioner. Id.;
accord id. at 70. Despite the attorneys’ efforts, Hamilton rejected the second plea offer. Id. at
25. The court credits Yu’s explanation as to why Sullivan became involved in this case and also
finds veracious Yu’s characterization of the exchange between Yu, Sullivan, and Hamilton.
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d.
Third plea offer
During a court appearance on October 27, 2006, GE 4, Yu informed the prosecutor that
Hamilton was not inclined to accept the second plea offer, Hr’g Tr. 27. Thereupon, the
prosecutor orally conveyed the government’s third and final offer. Id. The court finds truthful
Yu’s testimony that he advised Hamilton to accept the third offer, but that Hamilton “wanted to
go to trial and . . . rejected that plea offer.” Id. Notably, the third offer contained a three-point
role enhancement rather than a four-point enhancement for role, GE 4, at 3, and Yu testified that
he counseled Hamilton “that he should take the plea offer and if he takes the plea offer, he is
going to have to accept the fact that his role is going to have a three-point enhancement.” Id. at
61; accord id. at 72. Yu discussed Hamilton’s sentencing exposure with petitioner, id. at 68, and
told him that this was “the best offer” that he would receive, id. at 60. Counsel recalled,
however, that Hamilton remained unwilling to accept the role enhancement. Id. at 56. As Yu
explained, Hamilton wanted counsel “to get him safety valve,” and “in order for qualify for the
safety valve, a person cannot have a role enhancement in effect.” Id.
In addition, Yu recalled that sometime before the third plea offer was extended, the
prosecutor informed Yu that the government had intercepted a phone call in which Hamilton
identified himself as “Chuckie.” Id. at 73. Yu explained that “the fact that Mr. Hamilton
allegedly used the name Chuckie was not good for Mr. Hamilton because the government
alleged that Chuckie was one of the names Mr. Hamilton used during the course of the
conspiracy.” Id. Yu believed that petitioner’s connection to “Chuckie” constituted “another line
of evidence that was conceivably quite damning” and discussed this with Hamilton. Id.
Although he informed Hamilton that this evidence “made the case more difficult,” Yu testified,
petitioner “didn’t seem concerned about that.” Id. at 74. Yu surmised, “I don’t know if he
11
believed me whether or not that the government was going to bring that out during the trial.” Id.
The court credits Yu’s characterization of Hamilton’s lack of concern with respect to the
“Chuckie” evidence, and, more generally, finds truthful counsel’s testimony that Hamilton did
not believe that his “coconspirators whoever they were were going to come to court.” Id. In
particular, the court credits Yu’s statement that petitioner told Yu, “I don’t think these people are
coming. I have to see it.” Id.
e.
Pleading to the indictment
In addition, Yu recounted that he discussed with petitioner the possibility of pleading to
the indictment:
Q
What do you recall, if anything, about those conversations?
A
Well, because his main concern was the role adjustment, we had discussed
the possibility of not accepting the government’s plea offer but entering a
plea with the Court to the charges and to have later on some type of Fatico
hearing to determine exactly what his role in the conspiracy was. . . . I
said that is something that we can consider. And he asked me: Well, what
guarantees are there? And I said there were no guarantees. He asked me
if it could go higher than the plea offer, and I said yes, it could. I said I
couldn’t tell you because we have to do the hearing and the judge has to
make the determination, so I could not say what the judge would say.
Q
What was Mr. Hamilton’s response to that advice?
A
I’m not going to take a plea where I don’t know what I’m looking at
basically.
Q
So what happened in the end?
A
He decided to go to trial.
Id. at 28-29.
When questioned by Pittell whether “the purpose of the discussion for Mr. Hamilton to
plead guilty to the indictment was so that he could challenge the role enhancement or the role
adjustment in the sentence guidelines,” Yu responded in the affirmative. Id. at 59. Counsel
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likewise answered “yes” when Pittell inquired whether it was his understanding that if “Hamilton
was going to take the government’s offer, he was locked into initially four points now three
points.” Id. Yu acknowledged that it was his opinion that, aside from trial, “the only other way
[petitioner] could challenge his role would have been to have pleaded guilty to the indictment.”
Id. at 65; accord id. at 59. As counsel explained to Hamilton, petitioner could plead guilty to the
indictment and still challenge his role in the conspiracy during a Fatico hearing. Id. at 59-60. In
contrast, Yu believed, if Hamilton “had taken [a] plea agreement, he would have been stuck with
either the three or four points depending on which one he took.” Id. at 65.
The court credits Yu’s characterization of the discussions that counsel had with petitioner
regarding the option of pleading to the indictment. The court also accepts as true Yu’s
description of his understanding that petitioner could have challenged his role in the offense if he
pleaded guilty to the indictment, but not if petitioner accepted one of the government’s plea
offers. Likewise, the court finds truthful Yu’s statement that he never advised Hamilton to go to
trial. Id. at 30.
At trial, Yu recalled, the evidence against Hamilton proved to be “overwhelming,” id. at
63, and petitioner expressed his desire to plead guilty, id. at 64. However, Yu advised Hamilton
that he should not do so, id., because “the case had gone on for too long for him now to avail
himself of a plea to the indictment before the Court,” id. at 75.
2.
Sullivan’s Testimony
Yu’s testimony was strongly corroborated by Sullivan’s account. Sullivan testified that
Yu approached him in the fall of 2006 for assistance in advising Hamilton with respect to the
plea negotiations. Id. at 83-84. Specifically, Sullivan recalled that Yu asked him to speak to
petitioner “about the nature of the offense, what the federal statues were, [and] what the
13
guidelines were.” Id. at 84. According to Sullivan, Yu discussed with him the discovery and
evidence in the case, which involved numerous cooperating witnesses and recorded
conversations. Id. In addition, Sullivan credibly testified that he reviewed the discovery
evidence prior to his first meeting with Hamilton. Id.
Sullivan testified that, during the first meeting, he shared his assessment of the strength of
the government’s case with petitioner. Id. at 85. Sullivan recalled that “the evidence was
strong” in light of the cooperating witnesses and tape recordings, the transcripts for which
counsel had reviewed. Id. In addition to emphasizing the strength of the case, Sullivan
explained that “the guidelines that were contained were only estimates in the plea agreement,
that the estimates were not binding on the sentencing Court . . . , [and that] they were no longer
mandatory but that he should consider them because [counsel’s] assessment was the guidelines
were reasonable.” Id. at 85-86.
Sullivan testified that he met with Hamilton at least two times to discuss the
government’s first two plea offers. Id. at 85, 91. During those meetings, he advised Hamilton as
to the meaning of the estimates in the plea agreement and as to “the government’s chance of
prevailing.” Id. at 86. Sullivan also informed Hamilton of the sentencing exposure petitioner
would face in the event of conviction at trial. Id. at 89. Ultimately, Sullivan told petitioner that
“the plea agreements were reasonable and that he should consider them.” Id. at 87. However,
Sullivan recalled, petitioner “expressed concerns over the role enhancements.” Id.; accord id. at
94. With respect to whether petitioner would be bound by the role enhancements set forth in the
plea agreements, Sullivan testified, “It was my understanding that he would have to take the
enhancement but it was up to the judge in the end.” Id. at 95.
The court credits Sullivan’s testimony regarding his discussions with Hamilton.
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3.
Hamilton’s Testimony
Although it was partially consistent with the testimony of Yu and Sullivan, Hamilton’s
account also diverged from those of the attorneys—and from the statements in petitioner’s own
papers—in several significant ways.
a.
First plea offer
With respect to the first plea offer, Hamilton acknowledged that he had discussed the
“specific terms” of the deal with Yu. Id. at 104. According to Hamilton, Yu characterized the
agreement as “unreasonable” insofar as the government “always start[s] high.” Id. at 103.
Nonetheless, petitioner admitted, counsel advised him to accept the offer. Id. at 104. Notably,
Hamilton’s admission directly contradicts the statement in his habeas petition that Yu “advised
Defendant to reject the plea agreement,” Dkt. #1, at 4. When Yu discussed the aggravating role
enhancement with Hamilton, petitioner responded that he “didn’t like a leadership role.” Hr’g
Tr. 105. Consistent with Yu’s account, Hamilton testified that Yu agreed to try to secure a more
favorable offer. Id. at 106.
b.
Second plea offer
Petitioner recalled that Yu then returned with a second offer in which the base offense
level had changed from 34 to 32 but in which the role enhancement had remained the same. Id.
Contradicting the statement in his habeas petition that “Counsel advised Defendant to reject the
agreement and proceed to trial,” Dkt. #1, at 4, Hamilton testified that Yu advised him to accept
the second plea offer, Hr’g Tr. 108. In addition, petitioner averred that he told Yu that he “still
didn’t like the leadership role.” Id. at 107, 108. According to Hamilton, Yu responded that if
petitioner did not like the leadership role, then they would “probably have to start preparing for
trial.” Id. at 108.
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c.
Third plea offer
Hamilton testified that Yu also advised him to accept the third plea offer, id. at 110,
which reduced petitioner’s leadership enhancement from four to three points, id. at 112.
However, petitioner told Yu that he still did not like the leadership role enhancement and that he
wanted it to be reduced to “[z]ero.” Id. at 110. According to Hamilton, Yu responded that “[t]he
government ain’t budging, they ain’t moving.” Id. Petitioner testified credibly that Yu never
told him that he “still had the option of challenging the leadership role” if he pleaded guilty
under the agreement. Id. at 112. The court likewise credits Hamilton’s statement that he
believed that he would have been “stuck with the three-point enhancement” if he accepted the
guilty plea. Id.
However, the court disbelieves Hamilton’s testimony that he would have pleaded guilty
under the plea agreement had Yu advised him that he could still challenge the leadership role at
sentencing. Id. at 112-13. Notably, petitioner never mentioned this issue in his habeas petition
or original supporting documents. Id. at 117-19. Petitioner’s omission casts substantial doubt on
his testimony that his belief that he would be “stuck with the three-point enhancement” under the
plea agreement constituted “the reason” why he did not accept the offer, id. at 112-13.
d.
Pleading to the indictment
Hamilton also testified that another inmate informed him that he could plead to the
indictment and challenge his leadership role. Id. at 111. Accordingly, petitioner averred, he
brought up this potential course of action with Yu. Id. at 110-11. When asked by Pittell how Yu
responded, Hamilton testified, “I don’t remember exactly what his response was.” Id. at 111. As
discussed, however, Yu credibly testified that he had advised Hamilton that petitioner could
plead to the indictment and still challenge his leadership role but that petitioner had rejected this
16
option after learning that “there were no guarantees” and that “it could go higher than the plea
offer.” Id. at 28.
4.
The Phone Recordings
In addition to the testimony of Yu, Sullivan, and Hamilton, the evidence at the hearing
included a number of recorded telephone conversations between Hamilton and an unidentified
female that occurred while petitioner was incarcerated at the Brooklyn MDC. GE 11-17.
a.
Call occurring after extension of first plea offer
The government introduced into evidence one call, dated October 20, 2006, that
Hamilton made between receiving and rejecting the first plea offer. GE 11, 12. In that call,
petitioner balked at the length of his advisory Sentencing Guidelines range under the first plea
agreement:
A plea for one hundred and sixty eight months. I am telling him that I cannot do
that. You know what I mean? Because that is my whole life right there. You
know what I mean? I can’t just give up my whole life like that. I am . . . I am
going to tell him that I have kids and all these things. You know what I mean?
So . . . My life is useless if I am to spend a hun . . . hundred and sixty eight
months in jail.
GE 11, at 2 (ellipses in original).
In addition, Hamilton expressed his belief that the government had overstated his
involvement in the crimes at issue:
I am telling him that most of the things that are on the thing, I do not know
anything about them. I don’t know most of these people and he does not want to
hear that. He is telling me his own thing and . . . you know . . . I am telling him
that the government is not like that. The law is not like that. The law is not going
to prosecute you for things that you do not know about. You know what I mean?
Id. at 3 (ellipses in original). Petitioner also explained that he had retained counsel for the
purpose of going to trial: “[I]f you get an attorney, you know, you have to prepare to go to
trial.” Id. at 2.
17
b.
Call occurring after extension of second plea offer
In addition, the government introduced evidence of a call, dated October 26, 2006, that
Hamilton made between receiving and rejecting the second plea offer. GE 12. In that call,
petitioner mentioned that he had been offered a plea deal but that he was going to tell Yu that he
could not accept the offer. Id. at 2.
Apparently upset because Yu had requested additional payment before trying the case,
Hamilton indicated that he would have simply accepted representation by a public defender or
proceeded pro se had he wanted to plead guilty. Id. at 4. As petitioner related, “[H]e is claiming
that he took that money to go to a plea. So I am telling him that I could have gotten a plea with
the public defender. . . . Or I could have done a plea on my own. You know what I mean?” Id.
Hamilton moreover suggested that Yu had his own—and not Hamilton’s—best interest in mind
in advising petitioner to accept the plea agreement; specifically, Hamilton voiced his suspicion
that Yu did not want to try the case because “to go to trial is a lot of work,” id. at 6, and Yu “did
not expect that he was going to trial with that money,” id. at 7.
c.
Calls occurring after extension of third plea offer
The government also introduced calls that Hamilton made from the MDC between
receiving and rejecting the third plea offer. GE 13; GE 14; GE 15.
In a call dated October 28, 2013, Hamilton mentioned that Yu had approached him with
another plea deal. GE 13, at 2, 6. Once more, however, Hamilton expressed his unwillingness to
accept the deal in light of his belief that he was not criminally responsible to the extent indicated
by the government: “He is just convincing, persuading me to take the plea but I am telling him
no, it does not work like that because most of . . . what they allege that I did, I did not do, I did
not do.” Id. at 2. Petitioner continued, “I am not accepting things. . . . He brought a plea and
18
brought things that I should sign in court. I just told him that I refuse to do that.” Id. (ellipsis in
original).
In addition, Hamilton articulated his reluctance, in light of his family and other
unspecified reasons, to simply plead guilty and thereby forfeit his chance of possibly prevailing
at trial: “He came yesterday. He was telling me that I should, I should take based on . . . . I am
telling that no, I am not making any decisions because I have a family and stuff like that. I can’t
do that, just take things and not know. . . . You know what I’m saying?” Id. (ellipses in original).
In response, the female with whom Hamilton was conversing inquired, “[Y]ou don’t really want
to, to go and then you get more, more time. What do you think?” Id. at 4. Thereupon, Hamilton
suggested that Yu was exaggerating the risks of proceeding to trial: “[N]o, he is just saying that,
man. He is just saying things his way.” Id. Petitioner then indicated that, regardless of the
possible consequences, he was willing to risk going to trial:
[B]ut whatever the case, I told him I will take the chance, man. Whatever the
outcome is, I, I, I will be satisfied with it because I am just not. . . . I am not. . . . I
have my kids and things like that. I am not going to prison to, to do how much
time for things that other people did . . . and leave my responsibility for that.”
Id. (first two ellipses in original). In another call later that day, the woman with whom Hamilton
was speaking reiterated her concern that Hamilton would face more time if he went to trial and
lost: “I don’t want you to really go to do and get more. That’s my opinion.” GE 14, at 5. In
response, Hamilton stated, “Yeah. Don’t worry about that, man.” Id.
d.
Calls occurring after rejection of third plea offer
Finally, the government introduced two calls that Hamilton made on the night of October
31, 2006, the day that he rejected the government’s final plea offer. GE 16; GE 17. In these
calls, Hamilton recounted that he and Yu had “a battle.” GE 16, at 2. Hamilton explained that
he had been doing his own research on the case and felt that Yu was trying push him in a
19
direction in which petitioner did not want to go. Id.; accord GE 17, at 2-3. Hamilton further
noted, “I don’t feel like he is one hundred percent with me. . . . It’s like he wants . . . to force me
to do some things that I don’t really want to do and I am telling him that I don’t really want to do
it and he is rushing me to.” GE 16, at 2.
Stating that “it seems like [Yu] is on the prosecutor’s side,” GE 17, at 2, Hamilton
accused Yu of wanting to do things “his own way or do it the prosecutor’s way” rather than
comporting with petitioner’s wishes. Id. at 4. Elaborating on his distrust for Yu, petitioner
continued, “Right now I am not listening to him because, he is not on my side as far as I am
concerned and certain thing that he is supposed to fight for me to get . . . . , that I am telling him
to fight for me to get, it’s like he is leaning more to the prosecutor’s side.” Id. at 5.
In particular, Hamilton expressed dissatisfaction with his perception of Yu’s attitude that
petitioner “didn’t stand a chance” and that he “should acknowledge everything . . . even things
that [he] was not guilty of.” Id. at 4. Subsequently, the woman with whom Hamilton was
speaking voiced her concern that Yu had informed her that petitioner would be found guilty of
additional acts if he went to trial. Id. at 7. In response, petitioner stated, “He does not
understand what he is saying, man. Let me tell you. He is just trying to tell you all things to . . .
for you all to convince me [not to go to trial].” Id. Hamilton insisted, “I know what I am saying
you know. . . . He is just saying things and . . . he doesn’t want me to fight is what I am saying.”
Id.
Emphasizing that Yu “just wants to give up,” Hamilton surmised that it had been
counsel’s “intention since day one” to resolve the case through a plea agreement rather than trial.
GE 17, at 2. Attributing Yu’s advice that petitioner plead guilty to counsel’s self-interest,
Hamilton surmised, “He does not want to do anymore work . . . . He is just trying to convince me
20
for the last couple. . . . It’s the most he has ever come.” Id. at 3. Moreover, Hamilton noted, “I
saw that he does not . . . really want to go on with the case anymore because he wants more
money.” Id. at 5.
Hamilton added that Yu had tried to convince him to accept the plea offer by telling
petitioner about the difficulties defendants faced with respect to conspiracy liability. According
to petitioner, Yu had informed him that it was difficult for defendants to prevail on conspiracy
charges because the government needed only “to find you guilty on a little thing in a
conspiracy.” GE 16, at 3. And once the government found that a defendant had been involved
in “a little thing,” id., it could “lock them up and tell them that alright, if you go to trial, you will
get twenty years or forty years.” Id. at 4. For these reasons, Hamilton stated, Yu urged him to
accept the plea offer. Id. at 3. However, Hamilton continued, “I am telling him that you cannot
take a plea for something that you don’t know about.” Id. at 4.
Finally, Hamilton expressed his inability to accept the length of the advisory Sentencing
Guidelines range in the plea offer: “The other day [Yu] called me. . . . He wanted to bring the
plea. I am saying I cannot take a plea like this for fourteen years.” GE 17, at 4. Petitioner
continued, “[I]t’s a ten year, ten year plea but . . . when you do time you would do eight and a
half but I am not listening to him right now you know.” Id. at 5.
II. DISCUSSION
Petitioner argues that Yu’s representation fell below the range of professionally
competent assistance insofar as counsel: (1) advised Hamilton that accepting the government’s
plea offers would preclude him from challenging the role enhancement calculations, see
Sentencing Guidelines (“U.S.S.G.”) § 3B1.1, set forth in those offers; (2) failed to conduct an
adequate investigation either prior to advising Hamilton to reject the plea offers or commencing
21
trial; (3) prevented petitioner from testifying at trial; and (4) failed to object, and subsequently
raise on appeal, that the admission into evidence at trial of a drug courier’s address book violated
Hamilton’s rights under the Confrontation Clause. The court concludes that none of these claims
are meritorious.
To begin, a petitioner seeking a writ of habeas corpus on ineffective assistance of counsel
grounds faces a heavy burden in establishing entitlement to relief. Strickland v. Washington,
466 U.S. 668 (1984), established a two-prong test by which ineffective assistance of counsel
claims are adjudicated. Under Strickland, a petitioner must demonstrate, first, that counsel’s
performance fell below “an objective standard of reasonableness” under “prevailing professional
norms,” id. at 688, and second, that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A
court need not decide both prongs of the Strickland test if a there is an insufficient showing on
one. See id. at 697.
Of particular relevance here, the Supreme Court has held that the Sixth Amendment right
to counsel “extends to the plea-bargaining process.” Lafler v. Cooper, 132 S. Ct. 1376, 1384
(2012). To establish prejudice under the second prong of Strickland “[i]n the context of pleas[,]
a defendant must show the outcome of the plea process would have been different with
competent advice.” Id. When the prejudice alleged is “[h]aving to stand trial,”
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
(i.e., that the defendant would have accepted the plea and the prosecution would
not have withdrawn it in light of intervening circumstances), 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.
Id. at 1385.
22
A.
Hamilton’s Decisions to Reject the Plea Offers
On behalf of Hamilton, Pittell argues that petitioner is entitled to habeas relief because
Yu’s advice with respect to the government’s plea offers was both deficient and prejudicial under
Strickland. Specifically, Pittell contends that Yu’s performance fell below “an objective
standard of reasonableness” under “prevailing professional norms,” Strickland, 466 U.S. at 688,
because Yu failed to advise petitioner that “he still had the right to challenge the calculation of
his sentencing guideline role in the offense,” Dkt. #24, at 3, under the terms of the plea
agreements. But for Yu’s deficient performance, Pittell maintains, “the result would have been
different because if he had known he still had this right, Mr. Hamilton would have pleaded guilty
pursuant to one of the Plea Agreements.” Id. The court disagrees. Based on the totality of the
record, the court concludes that, even if Yu had advised Hamilton of his right to challenge the
role enhancements in the governments plea offers, there is not a reasonable probability that
petitioner would have accepted one of the offers.1
1.
Hamilton’s concern with his role in the offense
As an initial matter, the court credits the testimony of Hamilton, Yu, and Sullivan that
petitioner’s primary objection to the government’s plea offers was the leadership role
enhancement. Petitioner and both attorneys testified consistently on this point. Hamilton’s
concern about the role enhancement is moreover reflected in the plea offers themselves, insofar
as the government reduced the enhancement from four points in the second offer to three points
in the third offer. As Yu testified, this reduction was made in response to Hamilton’s objection
to the enhancement, which Yu communicated to the prosecutor.
In addition, the court credits Hamilton’s testimony that he believed that he would have
1
Because the court holds that Hamilton suffered no prejudice from Yu’s plea advice, it need not determine whether
Yu’s performance was deficient. Instead, the court presumes deficiency and proceeds with the prejudice analysis.
23
been “stuck with” the leadership enhancement set forth in the plea agreements. Hr’g Tr. 112.
Hamilton’s testimony is corroborated by Yu’s testimony that counsel believed that petitioner
would be “locked into,” id. at 59, and “stuck with,” id. 65, a four- or three-point enhancement,
depending on which plea offer he accepted. Even though each of the written plea agreements
explicitly stated that the Sentencing Guidelines estimates contained therein were “not binding on
the [U.S. Attorney’s] Office, the Probation Department or the Court,” Ex. 2, at 3; Ex. 4, at 3, the
court is not persuaded that Hamilton understood this language—particularly where Yu testified
to having a contrary understanding. And although Sullivan testified that he explained the nonbinding nature of the Sentencing Guidelines calculations in the agreements, it is significant that
petitioner’s primary counsel testified to having a different understanding.
Furthermore, the court recognizes that Yu articulated at sentencing, on Hamilton’s behalf,
that petitioner “wanted to go to trial . . . to show that his role wasn’t as extensive as the
Government claimed.” Sentencing Tr. 11. It must be noted, however, that petitioner made this
representation in the context of trying to secure a reduced sentence by arguing that he had always
accepted responsibility for his “involve[ment] in the drug trade.” See id. In addition, the record
suggests that Hamilton’s protestations as to the extent of his culpability was, at least in part,
grounded in his objections to co-conspirator liability rather than disagreement over his role in the
offense. See generally United States v. Coplan, 703 F.3d 46, 71 (2d Cir. 2012) (“Under
Pinkerton [v. United States], 328 U.S. 640 (1946)], [o]nce a conspiracy has been established, the
criminal liability of its members extends to all acts of wrongdoing occurring during the course of
and in furtherance of the conspiracy. . . . Pinkerton provides that a defendant who does not
directly commit a substantive offense may nevertheless be liable if the commission of the offense
by a co-conspirator in furtherance of the conspiracy was reasonably foreseeable to the defendant
24
as a consequence of their criminal agreement.”) (second alteration in original ) (internal citations
and quotation marks omitted). As Hamilton repeatedly claimed, “[M]ost of . . . what they allege
that I did, I did not do, I did not do.” GE 13, at 2; see, e.g., GE 16, at 4; GE 17, at 4. In other
words, a substantial motivating factor in Hamilton’s decision not to plead guilty appears to have
been his desire to avoid liability for the acts of his co-conspirators—a motivation that is related
to, but distinct from, his desire to contest his role in the offense.
2.
Petitioner’s refusal to plead guilty to the indictment
In any event, the court finds that it is not reasonably probable that Hamilton would have
accepted any of the government’s plea offers—even if Yu had properly advised petitioner that he
could do so and still challenge the imposition of a role enhancement. Perhaps most tellingly,
Hamilton refused to plead to the indictment even though he knew that doing so would not
preclude him from subsequently contesting his role in the conspiracy. Hr’g Tr. 28-29. Upon
receiving Yu’s advice about pleading to the indictment, petitioner inquired what “guarantees”
there were. Id. at 28. In response, Yu informed Hamilton that “there were no guarantees” and
that the sentence “could go higher than the plea offer.” Id. Counsel moreover told petitioner that
the court would hold a hearing and that Yu could not predict what sentence the judge would
ultimately impose. Id. at 28-29. Based on this information, Hamilton responded, “I’m not going
to take a plea where I don’t know what I’m looking at basically.” Id. at 29.
Yu’s credible testimony makes clear that the determinative factor in petitioner’s decision
was ultimately the uncertainty inherent in the plea process. Even though Hamilton knew that he
would maintain the right to challenge any role enhancement at sentencing if he pleaded to the
indictment, he also knew that there would be no guarantee that his challenge would be
successful. Without any “guarantees,” id. at 28, as to what sentence the judge would ultimately
25
impose, Hamilton was unwilling to plead guilty to the indictment. Significantly, Hamilton’s
refusal to plead to the indictment shows that petitioner’s decision did not hinge on the
opportunity to argue for a zero role enhancement; rather, it depended on whether petitioner could
secure a guarantee of a zero role enhancement.2
Hamilton’s decision not to plead guilty to the indictment is indicative of how petitioner
would have responded to the plea offers had Yu rendered competent plea advice. Under those
circumstances, petitioner would have known—as he did with respect to the option of pleading to
the indictment—not only that (1) he retained the right to contest his role in the offense at
sentencing; but also that (2) the imposition of any role enhancement lay completely within the
court’s discretion. In other words, Hamilton would have known that pleading guilty under an
agreement would have provided him with only the opportunity of arguing for a zero role
enhancement and not the guarantee of a zero role enhancement. Without such a guarantee, the
court concludes, there was no reasonable probability that Hamilton would have accepted one of
the government’s plea offers. As Hamilton had informed Yu, “I’m not going to take a plea
where I don’t know what I’m looking at basically.” Id. at 29.
3.
Hamilton’s doubts as to the strengths of the government’s case
The court’s conclusion is corroborated by extensive evidence in the record that Hamilton
disbelieved the advice he received from Yu and Sullivan regarding the strength of the
government’s case. As Yu credibly testified, Hamilton informed counsel that he did not believe
2
Notably, whereas Hamilton understood correctly that the court would not have been bound to impose any
particular sentence if petitioner pleaded guilty to the indictment, he believed—mistakenly—that the court would
have been bound by the recommended Sentencing Guidelines calculations (including the role enhancement
adjustment) if he pleaded guilty under one of the proposed agreements. As Hamilton testified, he believed that he
would have been “stuck with” the leadership enhancement set forth in the plea agreements had he accepted one of
those agreements. Id. at 112. Hamilton’s mistaken belief about the binding nature of the Sentencing Guidelines
recommendations is also reflected in his insistence that Yu continue negotiating with the prosecutor to reduce the
role enhancement calculation in the plea agreements, as well as in petitioner’s ultimate rejection of the plea offers
when the calculations were not reduced to his satisfaction.
26
that his “coconspirators whoever they were were going to come to court.” Id. at 74. Petitioner
moreover told Yu, “I don’t think these people are coming. I have to see it.” Id. The court
likewise credits Yu’s testimony that petitioner “didn’t seem concerned” about the intercepted
phone call linking him to the name “Chuckie,” even though Yu found this evidence to be “quite
damning” and had informed petitioner as much. Id. at 73-74. Even Hamilton’s declaration
reveals that petitioner underestimated the showing that the government would make at trial; it
was not until “[a]bout the third day during the trial” that petitioner realized that “the evidence
was becoming overwhelming, evidence [that he had] never seen during the pretrial.” Dkt. #1, at
48-49.
Petitioner’s disbelief in the strength of the government’s case is further substantiated by
the phone calls that he made from MDC. Notably, the woman with whom Hamilton was
speaking expressed her concern that Hamilton would face more time in jail if he went to trial and
lost. GE 14, at 5. She also told Hamilton that Yu had informed her that petitioner would be
found guilty of additional acts if he went to trial. GE 17, at 7. In response, Hamilton told her not
to worry and asserted, “He is just trying to tell you all things . . . for you all to convince me [not
to go to trial].” Id.
As the phone calls further reflect, Hamilton unfortunately mistrusted Yu and believed
that counsel was not acting in petitioner’s best interest in urging him to accept the government’s
plea offers. Specifically, the calls indicate that Hamilton believed that Yu was deterred by the
work associated with trial and that counsel was unwilling to undertake that work for the amount
of money that he had been paid. It thus appears that Hamilton thought that Yu, motivated by
self-interest, was exaggerating the strength of the government’s case and the risks of going to
trial.
27
That Hamilton doubted the strength of the evidence against him supports the court’s
determination that petitioner would have proceeded to trial regardless of whether he knew he
could enter into a plea agreement and still challenge his role in the offense at sentencing.
Replete with evidence that Hamilton disbelieved Yu’s evaluation of the government’s case, the
record suggests that petitioner chose to go to trial because he believed that he might prevail and
was unwilling to give up his shot at an acquittal.
4.
Petitioner’s unwillingness to accept a lengthy sentence without a trial
The recorded conversations moreover capture Hamilton’s attitude that the length of time
that he would serve under the plea agreements was simply too long and that, regardless of the
risks, petitioner was unwilling to forfeit his chance of prevailing at trial. As Hamilton told the
woman with whom he was speaking, “[W]hatever the case, I told him I will take the chance,
man. Whatever the outcome is, I, I, I will be satisfied with it because I am just not. . . . I am not.
. . . I have my kids and things like that.” GE 13, at 4. Commenting on the second plea offer,
Hamilton similarly indicated, “I am telling him that I cannot do that. . . . Because that is my
whole life right there. . . . I can’t just give up my whole life like that. . . . I am going to tell him
that I have kids and all these things. . . . My life is useless if I am to spend a . . . hundred and
sixty eight months in jail.” GE 11, at 2. The calls reflect petitioner’s sentiment that he could not
affirmatively abdicate his responsibilities towards his family by acceding guilt and accepting
incarceration without having fought his case at trial. In addition, the phone calls suggest that
Hamilton had retained Yu specifically for the purpose of going to trial, and that petitioner would
have accepted representation by a public defender or proceeded pro se had he simply wanted to
plead guilty. Cf. Rodriguez v. United States, Nos. 11 Civ. 6707(NRB), 09 CR 58(NRB), 2013
WL 3388223, at *7 (S.D.N.Y. July 8, 2013) (“The fact that [petitioner] regretted his decision to
28
go to trial after being found guilty by a jury does not suggest that he was prepared to plead guilty
prior to trial.”).
5.
Hamilton’s conduct in the litigation
Finally, petitioner’s conduct in this litigation also belies his purported reason for rejecting
the government’s plea offers. Notably, petitioner never mentioned in his habeas petition or
original supporting documents Yu’s failure to advise him of his right, under the terms of the plea
agreements, to challenge his role in the offense at sentencing. Id. at 117-19. Petitioner’s
omission casts considerable doubt on his testimony that his belief that he would be “stuck with,”
id. at 112, the role enhancements set forth in the agreements constituted “the reason,” id., why he
did not accept any of the offers. Significantly, it was only after the court appointed Pittell to
represent Hamilton that petitioner began asserting the claim that he now makes. The court is left
with the impression that the basis for Hamilton’s current argument originated with habeas
counsel (who has undoubtedly represented petitioner with great skill and diligence) rather than
with petitioner.
Ultimately, the court disbelieves petitioner’s testimony that he would have pleaded guilty
but for Yu’s allegedly deficient plea advice. Hamilton’s lack of veracity as to this critical
issue—and his willingness to misrepresent the facts to secure habeas relief—is reflected in the
significant contradictions between the statements in his petition and at the hearing. Perhaps most
strikingly, Hamilton initially insisted that Yu had advised him to reject the two written plea
offers. Only after the government disclosed the tape recordings that clearly indicated otherwise
did petitioner admit that Yu had, in fact, repeatedly urged him to accept the deals. Similarly,
Hamilton originally maintained that Yu had failed to advise him with respect to his sentencing
exposure in the event of a conviction at trial. After being confronted with strong evidence to the
29
contrary, however, petitioner abandoned that position at the hearing. In addition, petitioner
initially claimed that Yu had misadvised him as to the strength of the government’s case prior to
trial; indeed, petitioner went so far as to insist in his declaration that, on the eve of trial, Yu had
told him, “I think you have a good chance of winning at trial. They have nothing against you. I
think we should give it a shot.” Dkt. #1, at 48. However, Hamilton’s statements in this regard
were squarely contradicted by the credible testimony of Yu and Sullivan at the evidentiary
hearing.
***
In sum, although petitioner’s legal argument is persuasive on its face, it is not supported
by a factual basis sufficient to establish a reasonable probability that, but for Yu’s alleged
deficiency, Hamilton would have accepted one of the government’s plea offers. Accordingly,
the court concludes that Hamilton suffered no prejudice from Yu’s plea advice.
B.
Yu’s Investigations
Hamilton also argues that Yu “was ineffective for failure to conduct an adequate or
reasonable investigation prior to advising Defendant to reject two plea agreements” and “for
failure to conduct an adequate or reasonable investigation in preparation of a strategy for jury
trial.” Dkt. #1, at 4. In Strickland, the Supreme Court recognized that “counsel has a duty to
make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” 466 U.S. at 691. The Court further instructed that, “[i]n any
ineffectiveness case, a particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s
judgments.” Id.
1.
Counsel’s investigations with respect to the plea offers
30
Petitioner first insists that Yu “had no realistic outline of what evidentiary strengths the
government’s case-in-chief held.” Dkt. #1, at 5. He further maintains that “counsel had not
discussed with Defendant what sentence range Defendant would face under the Sentencing
Guidelines if convicted at a jury trial versus entering a plea of guilt.” Id.
However, petitioner’s claim is contradicted by Yu’s credible testimony. Yu testified that
that, at the time that the government extended its first plea offer, he had already assessed the
strength of the government’s case and concluded that there was a strong case against Hamilton.
Hr’g Tr. 14. As Yu explained, the prosecutor had informed him from the outset that there would
be at least three coconspirators testifying against Hamilton. Id. The number of testifying coconspirators, Yu recalled, made petitioner’s case “a rather difficult one.” Id. at 16. In addition,
Yu averred that “the government produced some of the evidence . . . in the course of or prior to
the plea negotiations,” and Yu had reviewed these materials. Id. at 14. The court credits Yu’s
testimony that, in advising Hamilton about the first plea offer, defense counsel discussed the
strength of the government’s case, “review[e]d some of the evidence that [he] expected the
government to put on at trial,” and communicated his belief that petitioner would lose at trial
based on “the total circumstances of his case.” Id. at 15.
With respect to the second plea offer, Yu testified credibly that he first discussed
Hamilton’s sentencing exposure with petitioner during an initial meeting: “I said if I got to trial
and you lose, I believe your exposure will be . . . more than 25 years.” Id. at 21. Yu recalled that
Hamilton was “startled” and “concerned” by this information. Id. Realizing that Hamilton was
nonetheless not inclined to accept the offer, Yu became “very concerned,” id., and asked
Sullivan to provide petitioner with a second opinion, id. at 22-23.
To prepare Sullivan, Yu “went over the case in detail with him,” id. at 23, and provided
31
Sullivan with the materials in Yu’s possession, id. at 24. Thereafter, Yu and Sullivan met with
Hamilton, and Yu again discussed Hamilton’s sentencing exposure with petitioner. Id. at 24. In
particular, Yu told Hamilton that although he would face a ten-year mandatory minimum if he
pled guilty, petitioner “could get a lot more time” if he went to trial and lost. Id. at 25. When
asked whether he also reviewed some of the evidence with petitioner during the course of that
discussion, Yu recalled, “[E]very time I went to visit him, we discussed his case and went over
evidence.” Id.
Based on the record produced at the evidentiary hearing, the court finds that Yu had
acquired an adequate understanding of the strengths of the government’s case against Hamilton
and that counsel communicated this information to petitioner. In addition to discussing the
available evidence with Hamilton, Yu informed petitioner of his likelihood of losing at trial and
of the significantly heightened sentencing exposure that petitioner should then expect. The court
credits Yu’s testimony that he reviewed all the evidence that the government provided to him
prior to trial and that he shared this evidence with Hamilton in the course of reviewing the
successive plea agreements. Id. at 70. Accordingly, the court concludes that Yu performed an
adequate investigation of Hamilton’s case before advising petitioner as to the government’s plea
offers. Petitioner has failed to satisfy Strickland’s first prong.
2.
Counsel’s investigations in preparation for trial
Hamilton next contends that Yu was ineffective “for failure to conduct an adequate or
reasonable investigation in preparation of a strategy for jury trial.” Dkt. #1, at 4. Petitioner
maintains that “trial counsel had no viable trial strategy and could not have prepared an
adequate[] defense.” Id. at 20.
Hamilton, however, has adduced no support for his claim that Yu “prepared no defense
32
and tried the case with the hope that Rule 29 motion would be granted,” id. at 22. Indeed, even
petitioner acknowledges that Yu pursued a strategy of “cross-examining witnesses in attempts to
create the appearance of reasonable doubt.” Id. at 21. The record reflects that Yu recognized
that the government’s case against Hamilton rested largely on the testimony of co-conspirators.
See, e.g., Trial Tr. 37-44. This recognition is reflected in Yu’s strategy of challenging the coconspirators’ credibility by, for example, emphasizing that they were convicted felons and
maintaining that their cooperation agreements with the government made them biased. See, e.g.,
id. at 37-38; cf. Dixon v. United States, No. 07 CV 829, 2010 WL 3311837, at *3 (E.D.N.Y.
Aug. 19, 2010) (“Counsel’s decision to . . . focus the jury instead on the adequacy of the
government’s proof of the existence of a racketeering enterprise and the credibility of the
cooperating witnesses, themselves violent criminals, falls easily within the realm of reasonable
trial strategy . . . .”); Smith v. Berbary, No. 05–CV–0069, 2009 WL 3165611, at *7 (W.D.N.Y.
Sept. 25, 2009) (“A review of the record shows that counsel’s strategy was reasonable, as . . .
counsel zealously attacked the credibility of the evidence relating to the robbery charge through
cross-examination.”). In addition, the trial transcript demonstrates that Yu attempted to highlight
gaps in the government’s evidence with respect to Hamilton’s involvement in the conspiracies.
See, e.g., Trial Tr. 39-43.
In light of Yu’s performance at trial, Hamilton has failed to prove that defense counsel
undertook a deficient pretrial investigation. The trial transcript reflects Yu’s understanding of
the strengths and weaknesses of the government’s case, an understanding that demonstrates the
adequacy of Yu’s pretrial investigation. Once again, petitioner has failed to satisfy the first
prong of Strickland.
33
C.
Hamilton’s Decision Not to Testify
In addition, Hamilton argues that he was deprived of the effective assistance of counsel
when Yu “failed to call Defendant as a witness in his own right.” Dkt. #1, at 4. This claim has
no merit.
The Second Circuit has recognized that “the burden of ensuring that the defendant is
informed of the nature and existence of the right to testify rests upon defense counsel.” Brown v.
Artuz, 124 F.3d 73, 79 (2d Cir. 1997). Accordingly, “any claim by the defendant that defense
counsel has not discharged this responsibility—either by failing to inform the defendant of the
right to testify or by overriding the defendant’s desire to testify—must satisfy the two-prong test
established in Strickland . . . for assessing whether counsel has rendered constitutionally
ineffective assistance.” Id. (internal citation omitted).
Here, Hamilton’s insistence that “Yu refused to allow Defendant to testify,” id., is
directly contradicted by the record. During a side bar conference on January 26, 2007, the
following exchange occurred between the court, Yu, and Hamilton:
THE COURT:
I gather that you spoke with Mr. Hamilton whether or not
he wishes to take the stand?
MR. YU:
Yes. I had an opportunity to speak to him downstairs and I
did speak to him and we discussed my client’s thought
about testifying in this matter and after our conversation
my client informed me that he no longer wishes to testify in
this case and I came up immediately to tell your Honor.
THE COURT:
Mr. Hamilton, I know that you have gone over this many,
many times in the last weeks and months. As you
understand you have a right to testify if you wish to do so.
Obviously no one can force you to testify and I will tell the
jury that they cannot hold that against you. I know that you
advise of counsel [sic]. Ultimately, the decision is yours.
Am I correct that you did not wish to testify?
34
THE DEFENDANT: Yes, Ma’am.
Trial Tr. 1012-13. Contrary to Hamilton’s claim that “Yu impeded Defendant’s right to testify at
trial,” Dkt. #1, at 1, the trial transcript reflects that it was petitioner who chose not to testify after
extended conversations with Yu about this matter. Accordingly, Hamilton has failed to
demonstrate that Yu performed deficiently with respect to petitioner’s right to testify.
D.
Admission of Address Book Belonging to Drug Courier Michelle Diamond
Finally, Hamilton maintains that Yu “was ineffective for failing to object to the
introduction of Michelle Diamond’s diary[3] as evidence at trial [because] [i]ntroducing the diary
at trial violated Defendant’s right to confront accusers and cross-examine witnesses.” Id. at 5.
Petitioner also argues that Yu was ineffective for failing to raise this issue on appeal. Id. This
claim is devoid of merit.
The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. “In
Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the Confrontation
Clause prohibits the admission of out-of-court ‘testimonial’ statements against a criminal
defendant, unless the declarant is unavailable and the defendant had a prior opportunity to crossexamine the declarant.” United States v. Williams, 506 F.3d 151, 155-56 (2d Cir. 2007). In
accordance with Crawford, the Second Circuit has emphasized that “the right to confrontation
only extends to testimonial statements, or, put differently, the Confrontation Clause simply has
no application to nontestimonial statements.” See United States v. Feliz, 467 F.3d 227, 231 (2d
Cir. 2006). Although the Supreme Court did not set forth a comprehensive definition of the term
“testimonial” in Crawford, it provided examples of what falls within the “core class” of
“testimonial statements”:
3
It appears that Hamilton objects to the admission of Diamond’s address book rather than diary. See Trial Tr. 334.
35
ex parte in-court testimony or its functional equivalent—that is, material such as
affidavits, custodial examinations, prior testimony that the defendant was unable
to cross-examine, or similar pretrial statements that declarants would reasonably
expect to be used prosecutorially; extrajudicial statements . . . contained in
formalized testimonial materials, such as affidavits, depositions, prior testimony,
or confessions; [and] statements that were made under circumstances which
would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial.
541 U.S. at 51-52 (first alteration in original) (internal citations and quotations omitted).
Here, the entries in Diamond’s address book “bear none of the hallmarks of testimonial
statements identified in Crawford,” Williams, 506 F.3d at 156-57. The evidence at trial
established that Diamond was a drug courier in the cocaine-related conspiracies for which
Hamilton was ultimately convicted. See generally Trial Tr. 328-47. Diamond’s address book
was seized during her arrest, id. at 334, and contained a note, “Call Chucky, leave Friday
afternoon, 3:00 to 7:00 pm,” id. at 335. The address book also included a phone number entry of
(876) 869-7867 for “Chucky Short Man.” Id. at 336. This number matched the business phone
number listed for Hamilton on a non-immigrant visa application. Id. at 336-37. The entries in
Diamond’s address book bear no resemblance to “a declarant’s knowing responses to structured
questioning in an investigative environment or in a courtroom setting where the declarant would
reasonably expect that his or her responses might be used in future judicial proceedings.” United
States v. Saget, 377 F.3d 223, 228 (2d Cir. 2004). Accordingly, the court concludes that they
were not “testimonial” statements within the meaning of Crawford.
Because Hamilton did not have the right to confront Diamond about the statements in her
address book, Yu did not perform deficiently with respect to the admission of this item into
evidence.
III. CONCLUSION
The petition for a writ of habeas corpus is denied. Because Hamilton has failed to make a
36
“substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the court
declines to issue a certificate of appealability. The Clerk of Court is directed to enter judgment
accordingly.
SO ORDERED.
/s/
Allyne R. Ross
United States District Judge
Dated:
August 12, 2013
Brooklyn, New York
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