Pantoliano v. United States of America
Filing
50
For the reasons stated in the attached Memorandum and Order, Mr. Pantoliano's § 2255 petition 1 is DENIED in its entirety. Because Mr. Pantoliano has not made a substantial showing of the denial of a constitutional right, a certificate o f appealability shall not issue. 28 U.S.C. § 2253(c); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (discussing certificate of appealability standard); Rules Governing Section 2254 and 2255 Cases, Rule 11 ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."). The Clerk of Court is respectfully directed to enter judgment in favor of Respondent, and to close the case. The Government is respectfully directed to serve Petitioner with a copy of this Memorandum & Order and the Judgement at his last known address, and to note service on the docket by 5/11/2020. In addition, the court's review of the docket revealed that several filings con tain the full name and/or pictures and/or medical information regarding Mr. Pantoliano's minor child (ECF Nos. 1 , 19 , 37 , 39 ). Pursuant to the E-Government Act of 2002, and corresponding guidance adopted by this court, see https://img.n yed.uscourts.gov/files/local_rules/egov2002-amd8204.pdf, filings should not include such information. The Clerk of Court is, therefore, respectfully directed to restrict access to the aforementioned docket entries to case participants only, to protect the child's privacy.Ordered by Judge Kiyo A. Matsumoto on 5/4/2020. (Mayer, Michael)
Case 1:13-cv-06417-KAM Document 50 Filed 05/04/20 Page 1 of 40 PageID #: 404
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
KATOSH PANTOLIANO,
Petitioner,
MEMORANDUM & ORDER
v.
13-cv-6417 (KAM)
UNITED STATES OF AMERICA,
Respondent.
----------------------------------X
KIYO A. MATSUMOTO, United States District Judge
On February 10, 2012, Senior United States District
Judge Sterling Johnson, Jr. (“Judge Johnson”) sentenced pro se
petitioner Katosh Pantoliano (“Mr. Pantoliano”) to 125 months in
custody for conspiracy to commit Hobbs Act robbery, 18 U.S.C. §
1951(a), and brandishing a firearm in connection with a crime of
violence, 18 U.S.C. § 924(c), to which Mr. Pantoliano had
pleaded guilty pursuant to a plea agreement with the United
States of America (the “Government”).
Before the Court is Mr.
Pantoliano’s petition to vacate his sentence pursuant to 28
U.S.C. § 2255.
For the reasons set forth below, the Court finds
that Mr. Pantoliano’s arguments lack merit, and Mr. Pantoliano’s
petition is DENIED in its entirety.
Background
In 2008, the New York City Police Department and the
Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”)
launched an investigation into a series of card game robberies
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in the Eastern District of New York.
Through a cooperating
witness, the investigative team learned that Mr. Pantoliano was
part of a crew that carried out robberies of narcotics
traffickers and illegal gambling establishments.
During certain
robberies, the crew posed as police officers, brandished
firearms, and used counterfeit police badges.
Several victims
were physically restrained, threatened, or physically harmed.
I.
The Indictment
Mr. Pantoliano faced a five-count indictment for his
involvement in the aforementioned robberies.
84, Second Superseding Indictment.)
(10-cr-68, ECF No.
Counts One and Two charged
Mr. Pantoliano with, respectively, a conspiracy to rob narcotics
traffickers and gambling establishments between April 2008 and
September 2008, and the use and brandishing of a firearm in
connection with the robbery conspiracy.
(Id.)
Counts Three,
Four, and Five charged Mr. Pantoliano with, respectively, a
conspiracy to rob a restaurant employee on September 28, 2009,
commission of the robbery, and the use, brandishing, and
discharge of a firearm in connection with the robbery.
II.
(Id.)
The Plea
Mr. Pantoliano, represented by Richard B. Lind, Esq.
(“Mr. Lind”), 1 engaged in plea negotiations with the Government.
Prior to Mr. Lind, Mr. Pantoliano was represented by Charles Samuel
Hochbaum, Esq., and Michael Hurwitz, Esq.
1
2
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On June 1, 2011, the Government conveyed a plea offer under
which Mr. Pantoliano would plead guilty to Counts One and Two of
the indictment and face an estimated advisory Guidelines range
of 121 to 130 months in custody.
(Lind Aff. ¶ 10.)
Mr. Lind
recalls Mr. Pantoliano as appearing pleased with the proposal.
(Id.)
Several days later, on June 6, 2011, Mr. Pantoliano
emailed Mr. Lind that he “need[s] a 120 month (Binding-Plea)
that will guarantee us the 120 months,” and directed Mr. Lind
“to tell [Judge Johnson] that if [the Government is] not willing
to give us the 120 month binding plea that we want to ‘move’ to
dismiss all the charges against me because [there] is no[t]
sufficient evidence to support the elements of the crimes
charged against me in counts one and two.”
(Id. Ex. E.)
Also on June 6, 2011, the Government sent a revised
plea agreement to Mr. Lind, stating that the initial agreement
contained an incorrect Guidelines calculation.
Ex. D.)
(Id. ¶ 11; id.
The revised plea agreement determined that Mr.
Pantoliano qualified as a “career offender,” subjecting him to
an enhanced penalty under Guideline 4B1.1(c)(3) and an estimated
advisory Guidelines range of 262 to 327 months in custody.
¶¶ 11-12.)
(Id.
Mr. Lind met with Mr. Pantoliano the next day, who
“strongly objected” to the revised agreement.
(Id.)
Following the meeting, Mr. Lind researched and
presented evidence as to why Mr. Pantoliano should not qualify
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as a career offender and convinced the Government of the same.
(Id. ¶ 17.)
The Government then conveyed a further revised plea
agreement, which removed the career offender designation and set
forth an estimated Guidelines range of 114 to 121 months in
custody.
(Id. ¶ 18; id. Ex. F.)
After Mr. Pantoliano discussed
with Mr. Lind the elements of each offense and the strength of
the Government’s evidence against him, specifically as to his
involvement in the conspiracy to rob gambling establishments,
Mr. Pantoliano decided to plead guilty.
(Id. ¶ 19.)
On June 15, 2011, Mr. Pantoliano entered into the
revised plea agreement with the Government, admitting he was
guilty of conspiracy to commit Hobbs Act robbery, in violation
of 18 U.S.C. § 1951(a) (Count One), and brandishing a firearm in
connection with a crime of violence, in violation of 18 U.S.C. §
924(c)(1)(A)(ii) (Count Two).
(ECF No. 10, Response to Order to
Show Cause, Ex. A, Plea Agreement (“Plea Ag.”), ¶ 1.)
As noted
above, the plea agreement stated that Mr. Pantoliano faced an
estimated Guidelines range of 114 to 121 months in custody.
(Id. ¶ 2.)
By signing the plea agreement, Mr. Pantoliano
“agree[d] not to file an appeal or otherwise challenge, by
petition pursuant to 28 U.S.C. § 2255 or any other provision,
the conviction or sentence in the event that the Court impose[d]
a term of imprisonment of 125 months or below.”
(Id. ¶ 4.)
Pantoliano signed immediately under the paragraph stating, “I
Mr.
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have read the entire agreement and discussed it with my
attorney.
I understand all of its terms and am entering into it
knowingly and voluntarily.”
(Id. ¶ 7.)
Mr. Pantoliano appeared for a plea hearing before
Judge Johnson the same day he entered into a plea agreement.
(ECF No. 1, Petition (“Pet.”), Ex. A, Transcript of June 15,
2011 Plea Hearing (“Plea Tr.”).)
Mr. Pantoliano represented in
court that he had received a copy of the indictment and
understood the charges pending against him, which he had
discussed with his attorney, and that he was fully satisfied
with Mr. Lind’s advice, representation, and counsel.
04:04-13, 14:06-24.)
(Id. at
Mr. Pantoliano represented that he had
signed the plea agreement, that his plea was voluntary and
knowing, and that no one made any promises to him about the
sentence he would receive.
(Id. at 04:21-05:02, 15:09-23.)
Turning to the substance of the plea agreement, Mr.
Pantoliano acknowledged under oath to Judge Johnson that, as set
forth in the agreement, he faced an estimated advisory
Guidelines sentencing range of 33 to 41 months’ imprisonment on
Count One (id. at 07:20-08:04) and a consecutive seven-year
mandatory minimum sentence on Count Two (id. at 08:05-09),
leading to a total effective estimated Guidelines range of 114
to 121 months (id. at 08:10-16).
Mr. Pantoliano further
represented that he understood that by entering into the plea
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agreement, he waived his right to “appeal or otherwise
challenge, by 2255 or any other provision, [his] conviction or
sentence in the event that the Court impose[d] a sentence of
imprisonment of 125 months or below.”
(Id. at 08:17-23.)
After Mr. Pantoliano allocuted to his conduct in
connection with Counts One and Two, the Court found: “that the
defendant is fully competent and capable of entering an informed
plea; [t]hat the defendant is aware of the nature of the charges
and the consequences of his plea, and [t]hat his plea of guilty
is knowing and is voluntary, and; [s]upported by an independent
basis in fact containing each of the essential elements of the
offense.”
(Id. at 15:24-16:09.)
Judge Johnson then accepted
Mr. Pantoliano’s plea of guilty to Counts One and Two of the
Second Superseding Indictment.
III. The Sentence
The Probation Department prepared a Pre-Sentence
Investigation Report (“PSR”) in advance of sentencing.
Aff. ¶ 22.)
(Lind
The PSR calculated a higher estimated Guidelines
range than the plea agreement to which Mr. Pantoliano pleaded
guilty.
(Id.; see also ECF No. 10, Response to Order to Show
Cause (“Opp.”), at 4 (stating that the PSR set forth an
estimated effective Guidelines range of 162 to 181 months).)
Mr. Pantoliano, in what had become a pattern, filed a letter
making various allegations of misconduct against Mr. Lind,
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including that Mr. Lind “misled, coerced, manipulated,
misadvised, and convinced” him to sign the plea agreement, which
set forth an estimated Guidelines range of 114 to 121 months,
despite “knowing” that Mr. Pantoliano would receive a higher
sentence.
(Lind Aff., Ex. G.)
Mr. Pantoliano asked that Judge
Johnson (1) discharge Mr. Lind and appoint a new attorney and
(2) allow Mr. Pantoliano to withdraw his guilty plea.
(Id.)
Shortly thereafter, Mr. Lind submitted a letter indicating that,
due to Mr. Pantoliano’s baseless allegations, a conflict now
existed with his client and asking to withdraw as counsel.
(Lind Aff., Ex. F.)
Judge Johnson granted Mr. Lind’s request to withdraw
and appointed Philip Katowitz, Esq. (“Mr. Katowitz”) to
represent Mr. Pantoliano at sentencing.
(ECF Dkt. Order, Oct.
20, 2011.) In appointing Mr. Katowitz, Mr. Pantoliano’s fourth
CJA lawyer, Judge Johnson “admonished [Mr. Pantoliano] that CJA
counsel is assigned for purposes of sentencing.
Should [Mr.
Pantoliano] be dissatisfied with new counsel, he will proceed
pro se and counsel will remain to advise.”
(Id.)
Shortly
thereafter, Mr. Pantoliano wrote Judge Johnson alleging a
conflict with Mr. Katowitz and asking that Judge Johnson remove
Mr. Katowitz, stating that “[he] [was] willing to proceed ‘pro
se’ for sentencing because [his] attorney fail[ed] to ethically
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follow [his] instructions.”
(ECF No. 145, Letter from Mr.
Pantoliano.)
On January 27, 2012, Mr. Pantoliano appeared before
Judge Johnson for sentencing.
(Pet., Ex. E, Transcript of
January 27, 2012 Sentencing (“Sent. Tr.”).)
Judge Johnson began
by addressing Mr. Pantoliano’s request to discharge Mr.
Katowitz.
(Id. at 02:15-19.)
Judge Johnson stated that “the
last time [he] spoke to Mr. Pantoliano,” he advised him that if
Mr. Pantoliano “didn’t accept [Mr. Katowitz as his attorney],
that [Mr. Pantoliano] was going to proceed pro se.”
(Id.)
After Mr. Pantoliano confirmed he wished to represent himself,
Judge Johnson relieved Mr. Katowitz and granted Mr. Pantoliano’s
request to represent himself at sentencing.
(Id. at 04:01-12.) 2
Judge Johnson next denied Mr. Pantoliano’s motion to withdraw
his plea, because Judge Johnson had conducted the plea and found
that Mr. Pantoliano understood the nature of the charges against
him and the consequences of his actions.
(Id. at 04:19-25.)
Judge Johnson proceeded with sentencing, and inquired
whether either party had outstanding objections to the PSR.
Mr.
Pantoliano raised some objections but claimed that he required
Judge Johnson initially directed Mr. Katowitz to remain present to advise
Mr. Pantoliano, in the event he required any assistance. (Sent. Tr. at 04:0112.) Mr. Katowitz stated that Mr. Pantoliano had raised a grievance against
him, and inquired as to whether it would be appropriate to remain to advise
his former client in light of the filing. (Id. at 07:07-16.) Judge Johnson
then relieved Mr. Katowitz entirely. (Id. at 07:17-08:14.)
2
8
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his “case file” to raise additional matters with the court.
(Id. at 12:01-13:01.)
Having disposed of Mr. Pantoliano’s
objections to the PSR, Judge Johnson turned to imposition of the
sentence.
Judge Johnson initially imposed a sentence of 97
months on Count One and 84 months on Count Two, for a total of
181 months.
(Id. at 13:13-20.)
Mr. Pantoliano, however,
objected to the sentence and reminded Judge Johnson that the
plea agreement allowed him to appeal a sentence above 125
months.
(Id. at 14:14-16.)
As a result, Judge Johnson reduced
Mr. Pantoliano’s sentence to 41 months on Count One and 84
months on Count Two, for a total sentence of 125 months.
at 16:07-17.)
(Id.
The Government then dismissed the remaining
counts and the underlying indictment (id. at 14:04-12), and the
court entered judgment convicting Mr. Pantoliano of conspiracy
to commit Hobbs Act robbery (Count One) and unlawful use of a
weapon in connection with a crime of violence (Count Two).
Procedural History
On February 10, 2012, Mr. Pantoliano filed an appeal
with the United States Court of Appeals for the Second Circuit.
(See ECF No. 168, Notice of Appeal.)
Mr. Pantoliano argued that
his sentence and conviction should be vacated because the
district court lacked subject matter jurisdiction.
The
Government moved to dismiss Mr. Pantoliano’s appeal as
procedurally barred by the waiver of appellate rights in his
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plea agreement.
U.S. v. Pantoliano, No. 12-577 (2d Cir.) (ECF
No. 30, Motion to Dismiss).
The Second Circuit found that Mr.
Pantoliano “ha[d] not demonstrated that the waiver of his
appellate rights [was] unenforceable under United States v.
Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000),” and granted the
Government’s motion to dismiss Mr. Pantoliano’s appeal.
U.S. v.
Pantoliano, No. 12-577 (2d Cir.) (ECF No. 77, Motion Order.)
On November 14, 2013, Mr. Pantoliano filed the instant
petition for habeas relief pursuant to 28 U.S.C. § 2255.
No. 1, Petition.)
(ECF
Mr. Pantoliano argued that his conviction and
sentence were unconstitutional for four reasons: (1) his guilty
plea was not knowing and voluntary because it was the product of
ineffective assistance of counsel at pleading; (2) his
conviction was unconstitutional because Respondents had a
financial interest in his conviction; (3) the court lacked
subject matter jurisdiction because Brooklyn and Staten Island
were not ceded to the United States at the time the offense was
committed; and (4) he received ineffective assistance of counsel
at sentencing.
(See generally id.)
On January 2, 2014, on the court’s order, Mr. Lind
filed an affirmation responding to Mr. Pantoliano’s allegation
that he received ineffective assistance of counsel in deciding
to plead guilty to Counts One and Two of the indictment.
Aff.)
(Lind
Mr. Pantoliano responded to Mr. Lind’s affidavit, which,
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as the court explains below, raised the same conclusory
assertions in his subsequent petition for habeas relief.
No. 9, Response to Lind Aff.)
(ECF
On April 3, 2014, the Government
filed its opposition to Mr. Pantoliano’s petition for habeas
relief.
(ECF No. 10, Government’s Opposition to Petition
(“Opp.”).)
Mr. Pantoliano filed a reply on May 6, 2014.
(ECF
No. 20, Reply in Support of Pet.)
On May 24, 2016, Mr. Pantoliano moved to supplement
his petition to raise a challenge to his § 924(c) conviction
pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015).
(ECF No. 24, Motion for Leave to Amend.)
Pantoliano’s request.
The court granted Mr.
(ECF Dkt. Entry, June 22, 2016.)
On
August 19, 2016, the Government submitted its response to Mr.
Pantoliano’s supplemental petition raising the Johnson claim.
(ECF No. 32, Government Response to Supplemental Petition.)
On June 14, 2017, Mark Goidell, Esq., appointed by the
court to assist Mr. Pantoliano in litigating his habeas
petition, filed a memorandum in further support of Mr.
Pantoliano’s petition, which addressed only the fourth ground
for relief – ineffective assistance of counsel at sentencing.
(ECF No. 39, Supplemental Reply in Support of Petition.)
Government filed a supplemental opposition.
Opposition to Supplemental Reply.)
11
(ECF No. 41,
The
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Standard of Review
“A prisoner in custody under sentence of a [federal
court] claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or
laws of the United States, or that the court was without
jurisdiction to impose such sentence, . . . or is otherwise
subject to collateral attack, may move the court which imposed
the sentence to vacate, set aside or correct the sentence.”
U.S.C. § 2255(a).
28
The Court “shall vacate and set the judgment
aside” if the Court finds that “there has been such a denial or
infringement of the constitutional rights of the prisoner as to
render the judgment vulnerable to collateral attack.”
2255(b).
Id. §
To respect the finality of criminal convictions, “a
collateral attack on a final judgment in a federal criminal case
is generally available under § 2255 only for a constitutional
error, a lack of jurisdiction in the sentencing court, or an
error of law or fact that constitutes a ‘fundamental defect
which inherently results in a complete miscarriage of justice.’”
United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting
Hill v. United States, 368 U.S. 424, 428 (1962)).
Discussion
Mr. Pantoliano moves for relief pursuant to § 2255 on
the grounds that: (1) his guilty plea was not knowing and
voluntary because he received ineffective assistance of counsel
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at pleading; (2) his conviction is unconstitutional because
respondents had a financial interest in his conviction; (3) the
court lacked subject matter jurisdiction over the charges
against him; (4) he received ineffective assistance of counsel
at sentencing; and (5) his § 924(c) conviction is
unconstitutional.
(See generally Pet.)
Mr. Pantoliano agreed
to waive his right to collaterally attack his conviction and
sentence in the event Judge Johnson imposed a sentence of 125
months or less, as occurred here.
The only ground not precluded
by this waiver is the argument that Mr. Pantoliano’s plea
agreement was not knowing and voluntary due to ineffective
assistance of counsel at the pleading stage.
For the reasons
explained herein, the court finds that counsel effectively
assisted Mr. Pantoliano in connection with his plea, Mr.
Pantoliano’s waiver of his collateral attack rights was knowing
and voluntary, the plea agreement and waiver of collateral
attack rights remain valid, and the remainder of Mr.
Pantoliano’s claims are procedurally barred.
I.
Preliminary Considerations
The court begins its discussion by addressing (1)
whether the collateral attack waiver in Mr. Pantoliano’s plea
agreement bars the instant petition and (2) whether the court
may decide the instant petition on the record before the court,
or whether an evidentiary hearing is necessary.
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a. Waiver
The threshold question in this action is whether Mr.
Pantoliano’s collateral attack waiver bars the instant petition.
“A defendant’s knowing and voluntary waiver of the right to . .
. collaterally attack his conviction and/or sentence is
enforceable.”
(2d Cir. 2016).
See Sanford v. United States, 841 F.3d 578, 580
A waiver is knowing if the “defendant fully
understood the potential consequences of his waiver.”
United
States v. Monzon, 359 F.3d 110, 116 (2d Cir. 2004).
“[E]xceptions to the presumption of the enforceability of a
waiver . . . occupy a very circumscribed area of [this
Circuit’s] jurisprudence.”
Sanford, 841 F.3d at 580.
Mr. Pantoliano “agree[d] not to . . . challenge, by
petition pursuant to 28 U.S.C. § 2255 . . . [his] conviction or
sentence in the event that the Court impose[d] a term of
imprisonment of 125 months or below.”
(Plea Ag. ¶ 4.)
In
signing the agreement, Mr. Pantoliano represented that he had
“read the entire agreement and discussed it with [his] attorney”
and “underst[ood] all of its terms and [was] entering into it
knowingly and voluntarily.”
(Id. at 7.)
Mr. Pantoliano also
represented under oath in court that he understood the waiver
provision of the plea agreement, and had not been induced or
threatened in any way to enter into the plea agreement.
Tr. at 04:21-05:02, 15:09-23.)
(Plea
See United States v. Hernandez,
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242 F.3d 110, 112 (2d Cir. 2001) (courts may rely on the
defendant’s sworn statements, made in open court, that he
understood that he was waiving his right to appeal a sentence
below the stipulated maximum).
Because Judge Johnson sentenced
Mr. Pantoliano to 125 months in custody, Mr. Pantoliano is
procedurally barred from bringing this action.
There is, however, one potentially applicable
exception: A waiver is not enforceable if it “was not made
knowingly, voluntarily, and competently.”
at 319.
Gomez–Perez, 215 F.3d
Mr. Pantoliano argues that his waiver was not made
knowingly and voluntarily as it was a product of ineffective
assistance of counsel at pleading, a claim not barred by the
waiver because it serves as an attack on the constitutionality
of the process by which Mr. Pantoliano waived his rights.
See,
e.g., United States v. Djelevic, 161 F.3d 104, 106–07 (2d Cir.
1998).
If Mr. Pantoliano establishes that, due to ineffective
assistance of counsel, the waiver in his plea agreement was not
knowing and voluntary, the waiver will not be enforceable.
United States v. Lloyd, 901 F.3d 111, 124 (2d Cir. 2018).
If he
fails to do so, Mr. Pantoliano’s remaining claims will be
barred.
The court will, therefore, begin its analysis with this
threshold issue, before turning to Mr. Pantoliano’s remaining
challenges.
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b. Evidentiary Hearing
The other question the court must address before
considering the merits of Mr. Pantoliano’s petition is whether
the court can address the instant petition on the submitted
record before the court, or whether Mr. Pantoliano’s request for
an evidentiary hearing should be granted.
“In ruling on a
motion under § 2255, the district court is required to hold a
hearing ‘[u]nless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief.’”
Gonzalez, 722 F.3d at 130 (quoting 28 U.S.C. § 2255).
“[T]he filing of a motion pursuant to § 2255 does not
automatically entitle the movant to a hearing.”
Id.
No hearing
is necessary “where the allegations are ‘vague, conclusory, or
palpably incredible.’”
Id. (quoting Machibroda 131 v. United
States, 368 U.S. 487, 495 (1962)).
A hearing is necessary only
where the petition “set[s] forth specific facts supported by
competent evidence, raising detailed and controverted issues of
fact that, if proved at a hearing, would entitle [the movant] to
relief.”
Id.
Even if a hearing is warranted, it is “within the
district court’s discretion to determine the scope and nature of
a hearing.”
Raysor v. United States, 647 F.3d 491, 494 (2d Cir.
2011) (citing Chang v. United States, 250 F.3d 79, 85–86 (2d
Cir. 2001)).
A full-blown hearing is not necessary in all
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cases.
2009)).
Puglisi v. United States, 586 F.3d 209, 214–15 (2d Cir.
Courts frequently “consider the ‘trial record, letters,
documents, exhibits, affidavits and written interrogatories’ and
may adopt a ‘middle road’ approach, declining to hold a hearing
and ‘deciding disputed facts on the basis of written
submissions.’”
Rosario v. United States, No. 17-CR-0027 (LTS),
2019 WL 5260784, at *3 (S.D.N.Y. Oct. 17, 2019) (quoting Pham v.
United States, 317 F.3d 178, 184 (2d Cir. 2003)); see also Wang
v. United States, 458 F. App’x 44, 45 (2d Cir. 2012) (summary
order) (“[T]he District Court did conduct an evidentiary
hearing, albeit one limited to the sworn, written submissions of
[petitioner], his former counsel, and the interpreters.”).
In this action, the court adopted a “middle road”
approach and directed Mr. Lind to respond to Mr. Pantoliano’s
allegations of ineffective assistance of counsel in connection
with his plea.
Mr. Lind filed a thorough, detailed, and
credible 12-page affidavit, attaching 8 supporting exhibits,
contradicting Mr. Pantoliano’s assertions that he provided
ineffective assistance in advising Mr. Pantoliano as to whether
he should plead guilty.
Mr. Pantoliano’s response to Mr. Lind’s
affidavit does nothing more than offer the conclusory assertions
contained in his petition.
The court finds a full-blown
evidentiary hearing unnecessary, as it would add “little to
nothing” to the Court’s determination of the instant petition,
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particularly as both matters for which Mr. Pantoliano seeks a
hearing – the nature of his guilty plea and Faretta claim – can
be appropriately addressed on the record presently before the
court.
Beckford v. United States, No. 13-CV-2208 (DLI), 2017 WL
4286615, at *3 (E.D.N.Y. Sept. 26, 2017) (quoting Chang, 250
F.3d at 86). 3
II.
Grounds for Relief
For the reasons that follow, the court finds that Mr.
Pantoliano’s plea was knowing and voluntary, and that the
collateral attack waiver in his plea agreement remains valid.
As a result, Mr. Pantoliano’s remaining claims are procedurally
barred and his petition must be denied.
A. Ground One: Ineffective Assistance of Counsel at
Pleading
Mr. Pantoliano argues that Mr. Lind provided
ineffective assistance at pleading, rendering his agreement to
plead guilty unknowing and involuntary and invalidating the plea
agreement and plea in their entirety.
This argument is
unavailing.
Mr. Pantoliano also requests discovery of certain information relating to
his claim that Respondents have a financial interest in his conviction. (See
Pet. at 41-42.) Mr. Pantoliano “is not entitled to discovery as a matter of
ordinary course,” Bracy v. Gramley, 520 U.S. 899, 904 (1997), and has failed
to show good cause for discovery, Drake v. Portuondo, 321 F.3d 338, 346 (2d
Cir. 2003). Mr. Pantoliano’s assertions do not “show reason to believe that
[he] may, if the facts are fully developed, be able to demonstrate that he is
. . . entitled to relief,’” Ferranti v. United States, 480 F. App’x 634, 638
(2d Cir. 2012) (summary order) (quoting Bracy, 520 U.S. at 908-09), as his
claims, particularly the financial interest claim for which he seeks
discovery, lack merit. The request for discovery is therefore denied.
3
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1. Legal Standard
A petitioner must meet the “highly demanding” standard
set forth in Strickland v. Washington, 466 U.S. 668 (1984), to
prevail on a claim of ineffective assistance of counsel.
Kimmelman v. Morrison, 477 U.S. 365, 382 (1986).
Under
Strickland, a petitioner must show: (1) that defense counsel’s
performance was objectively unreasonable (the “performance
prong”); and (2) that defense counsel’s deficient performance
prejudiced the defense (the “prejudice prong”).
Kovacs v.
United States, 744 F.3d 44, 49 (2d Cir. 2014) (citing
Strickland, 466 U.S. at 687-88); see also Parker v. Ercole, 666
F.3d 830, 834 (2d Cir. 2012) (court need not address both prongs
if a petitioner makes an insufficient showing on one).
“The performance component of the Strickland test asks
whether a ‘counsel's representation fell below an objective
standard of reasonableness.’”
Kovacs, 744 F.3d at 50 (quoting
Strickland, 466 U.S. at 688).
Courts “indulge a strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.”
689.
Strickland, 466 U.S. at
They examine the reasonableness of counsel’s actions,
keeping in mind that “[c]onstitutionally 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
19
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reasonable professional judgment.’”
Greiner v. Wells, 417 F.3d
305, 319 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 690).
The prejudice component of the Strickland test asks
whether “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.
“A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.”
Id.
Merely showing that counsel’s
errors had “some conceivable effect” on the outcome is not
enough to satisfy the prejudice prong, but “a defendant need not
show that counsel’s deficient conduct more likely than not
altered the outcome in the case.”
Id. at 693.
2. Application
The crux of Mr. Pantoliano’s argument is that Mr. Lind
failed to properly explain the proof necessary to satisfy the
interstate commerce element of the Hobbs Act, and as a result,
he was unaware of a defense which he otherwise would have
litigated at trial, rather than pleading guilty.
4.)
(See Pet. at
This argument lacks merit.
a. Performance Prong
Mr. Pantoliano argues that Mr. Lind’s performance was
lacking because he did not explain the interstate commerce
element of the Hobbs Act.
(Pet. at 18.)
Specifically, Mr. Lind
allegedly failed to advise his client that if the type of drugs
20
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that he and others conspired to rob was marijuana grown in New
York, he might have had a jurisdictional defense under United
States v. Needham, 604 F.3d 673 (2d Cir. 2010) (explaining that
the Hobbs Act’s interstate commerce element is not necessarily
satisfied where a robbery targets marijuana, as marijuana can be
grown, processed, and sold entirely within one state).
Although
a petitioner can bring an ineffective assistance of counsel
claim based on the argument that defense counsel failed to
apprise him of the elements of a crime, see United States v.
Weeks, 653 F.3d 1188, 1201 (10th Cir. 2011), or a potential
defense, see Hill v. Lockhart, 474 U.S. 52, 59 (1985), the
record shows that Mr. Lind was not ineffective in this regard.
First, Mr. Pantoliano’s argument relies entirely on
his conclusory assertions and finds no support in the record.
Mr. Pantoliano cites no evidence that he did not understand the
nature of the interstate commerce element.
Instead, Mr.
Pantoliano cites the absence of statements in the plea
transcript that he understood the elements of Count One, that he
had discussed them with his attorney, or that he had discussed
the plea agreement with his attorney.
(Id. at 19-20.)
Although
the absence of evidence, in certain contexts, may be persuasive,
it is not persuasive in this context as other evidence in the
record clearly contradicts Mr. Pantoliano’s assertions.
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The record establishes that Mr. Pantoliano reviewed
the indictment and charges against him with Mr. Lind.
(Plea Tr.
at 04:04-13 (confirming that Mr. Pantoliano reviewed the
indictment and charges against him and discussed them with Mr.
Lind).)
The record further establishes that Mr. Pantoliano
understood the plea agreement’s terms, as evidenced by his
representation in signing the plea agreement that he had
reviewed and discussed the agreement with Mr. Lind.
(Plea Ag.
at 7.)
Furthermore, Mr. Pantoliano’s assertions are
contradicted by Mr. Lind’s highly detailed and specific
statements, which were derived in part from his review of
contemporaneous records, namely, CJA vouchers submitted in
connection with Mr. Lind’s representation of Mr. Pantoliano.
According to Mr. Lind’s affidavit, on May 3, 2011, Mr. Lind met
with Mr. Pantoliano for over two hours at the MDC to review his
case.
(Lind Aff. ¶ 7.)
Mr. Lind “went over with [Mr.]
Pantoliano the charges in the Indictment, and the nature and
strength of the government’s proof.”
(Id.)
On June 14, 2011,
after Mr. Lind secured the final revised plea agreement, Mr.
Lind met with his client to review its terms:
[Mr. Lind’s] recollection is that, for once, [Mr.
Pantoliano] was enthusiastic about [his] performance. As
is [Mr. Lind’s] practice, [he] prepared [Mr.] Pantoliano
for his guilty plea, and went over the elements of both
crimes with [Mr.] Pantoliano, as [Mr. Pantoliano] had
22
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demanded on prior occasions, and particularly the strength
of the evidence as to [Mr.] Pantoliano’s involvement in the
conspiracy to rob gambling establishments.
(Id. ¶ 19.)
By contrast, Mr. Pantoliano’s response merely
alleges that Mr. Lind “disregarded” his contentions and, rather
than coming forward with competent proof contradicting Mr.
Lind’s affirmation, simply reiterates the absence of statements
in the plea colloquy that Mr. Pantoliano understood the elements
of the charges against him. 4
Second, the court cannot find that Mr. Lind would have
been ineffective for not raising a potential jurisdictional
defense under Needham with his client.
As the court addresses
in more detail below, Mr. Pantoliano proffers no evidence that a
jurisdictional defect existed in this case.
As the Government
points out, Mr. Pantoliano does not present evidence that the
proceeds of the narcotics traffickers who were robbed in this
case were, in fact, proceeds from marijuana that was grown in
New York.
(Opp. at 9 n.2.)
Granting Mr. Lind’s conduct the
In response to Mr. Lind’s affidavit, which indicated that the Government’s
proffer as to jurisdiction relied primarily on Mr. Pantoliano’s involvement
in card game robberies, Mr. Pantoliano alleges that Mr. Lind was ineffective
for allegedly telling Mr. Pantoliano that “the strength of the case against
[him] was regarding robberies of Drug Dealers.” (Response to Lind Aff. at
3.) Mr. Pantoliano then asserts that, if Mr. Lind had properly explained
that Mr. Pantoliano “was really only being charged with robbing illegal
gambling establishments, [he] would have rejected the plea based on the fact
that no injured parties exist regarding such robberies.” (Id.) Whether this
claim, if true, prejudiced Mr. Pantoliano is addressed below. It is
sufficient for now to note that even if Mr. Pantoliano’s discussion with Mr.
Lind focused on robberies of card games, Mr. Pantoliano was charged with, and
allocuted to, committing robberies of narcotics traffickers and illegal
gambling establishments.
4
23
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appropriate deference, and without any evidence that a Needham
(or, indeed, any other defense) stood a chance of success at
trial, the court cannot find that Mr. Lind was ineffective in
failing to raise the prospect of a Needham defense with his
client.
Mr. Lind appropriately focused his efforts on securing
the most favorable plea deal for his client.
b. Prejudice Prong
Even if Mr. Lind’s performance was deficient, Mr.
Pantoliano cannot establish prejudice.
In the plea context, the
prejudice prong “focuses on whether counsel’s constitutionally
ineffective performance affected the outcome of the plea
process.”
Hill, 474 U.S. at 59.
A petitioner can show
prejudice by “demonstrating a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.”
Ct. 1958, 1965 (2017).
Lee v. United States, 137 S.
The petitioner “must convince the court
that a decision to reject the plea bargain would have been
rational under the circumstances.”
Padilla v. Kentucky, 559
U.S. 356, 372 (2010).
The court must consider “all relevant factors” 5 in
determining whether the petitioner was prejudiced, Gonzalez, 722
“[T]he fact that an attempt was made to withdraw [a] guilty plea and go to
trial may not be dispositive on the issue of IAC prejudice; however, it is a
factor that must be considered by the court in assessing whether there is a
reasonable probability that but for substandard performance by counsel, the
5
24
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F.3d at 132, including whether: (1) the defendant knew “that the
advice on which he claims to have relied might be incorrect”;
(2) pleading guilty led to more lenient sentencing; (3) “the
defendant advanced any basis for doubting the strength of the
government’s case against him;” or (4) the Government could have
prosecuted the defendant on additional counts.
Chhabra v.
United States, 720 F.3d 395, 408 (2d Cir. 2013).
“In determining whether a petitioner has made the
requisite showing, ‘[c]onclusory allegations that [the
petitioner] would have insisted on proceeding to trial are
generally insufficient to establish actual prejudice under
Strickland.’”
Francis v. United States, No. 12-CV-1362 (AJN),
2013 U.S. Dist. LEXIS 25470, at *12 (S.D.N.Y. Feb. 25, 2013)
(quoting Scott v. Superintendent, No. 03–CV–06383, 2006 WL
3095760, *9 (E.D.N.Y. Oct. 31, 2006)).
The Second Circuit
requires “some objective evidence other than the petitioner’s
assertions to establish prejudice.”
Pham, 317 F.3d at 182
(finding “objective” evidence of prejudice resulting from
defendant would have chosen to eschew the plea and go to trial.” Gonzalez,
722 F.3d at 133. Mr. Pantoliano moved to withdraw his guilty plea not based
on the discovery of a potential jurisdictional defense, the ineffective
assistance alleged here, but upon reviewing the PSR and learning that it
contained a Guidelines range greater than that set forth in the plea
agreement. (See ECF No. 130, Mot. to Withdraw Guilty Plea.) Yet, the plea
agreement indicated that the Guidelines analysis was not binding on the
Government, the Probation Department, or the court, a fact Mr. Pantoliano
indicated he understood by signing the plea agreement. (See Plea Ag. at 3,
7.) Mr. Pantoliano’s attempt to withdraw his plea is, therefore, not
conclusive as to prejudice in the context of this action.
25
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alleged failure to convey plea offer to include “the undisputed
sentencing disparity of at least 113 months between the high end
of the government’s [allegedly unconveyed] plea offer and [the
petitioner’s] sentence after a trial conviction”); see also
Zhang v. United States, 543 F. Supp. 2d 175, 185 (E.D.N.Y.
2008).
First, the court must consider the viability of Mr.
Pantoliano’s proposed defense.
Where a petitioner’s specific
claim is that counsel failed to inform him of a potential
defense, the relevant inquiry is whether the defense “was viable
and sufficiently promising that [the petitioner] would have
litigated the defense to avoid [the plea] consequences.”
Kovacs, 744 F.3d at 53.
falls short.
Mr. Pantoliano’s purported defense
The Hobbs Act’s interstate commerce element is
satisfied by a showing of the possibility or potential of an
effect on interstate commerce; an actual effect need not be
shown.
See United States v. Jones, 30 F.3d 276, 285 (2d Cir.
1994).
Mr. Pantoliano posits that if the proceeds of the
narcotics traffickers he robbed resulted from marijuana grown in
New York, he might have had a defense under Needham.
19.)
(Pet. at
It is correct that the interstate commerce element is not
necessarily satisfied where a defendant is charged with stealing
marijuana, as marijuana “may be entirely grown, processed, and
26
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sold in-state.”
Needham, 604 F.3d at 685.
But Mr. Pantoliano
cites no evidence from which the court could conclude that
Needham would, in fact, provide him with a defense in this
action – his argument is merely speculative.
Moreover, as Mr.
Lind indicates, the Government’s proffer focused on Mr.
Pantoliano’s involvement in robberies of illegal card games, and
Mr. Pantoliano makes nothing more than a conclusory argument the
Government would not be able to establish jurisdiction through
this aspect of the offense. 6
Without any facts indicating that
there was any jurisdictional defect, or that any potential
defense would have been viable in any way, the court cannot find
that Mr. Pantoliano has established a “‘reasonable probability’
Mr. Lind’s affidavit notes that the Government’s proffer at the plea hearing
focused on Mr. Pantoliano’s robbery of the proceeds of illegal card games,
not on the robbery of narcotics themselves, and that the Government could
have satisfied the Hobbs Act’s interstate commerce element based on Mr.
Pantoliano’s robbery of said gambling proceeds. (Lind Aff. at 9.) Mr.
Pantoliano reads Mr. Lind’s affidavit as stating he was charged only with
robbing card games and states that, had he known this was the case, he would
not have pleaded guilty because “later case agents went to investigate the
alleged crimes in which no injured parties or people existed,” so “it appears
that [he] pleaded guilty to robbing gambling establishments and people who do
not exist.” (ECF No. 9, Response to Lind Aff., at 5.) Mr. Pantoliano’s
cited evidence for this assertion comes from one paragraph of the PSR, which
reads:
6
Although [Mr. Pantoliano] is liable for restitution to the victims of
the robberies that occurred within the dates of the indictment, from
April 2008 through September 2008, the case agent advises that the
victims have been uncooperative and do not wish to be contacted by the
Probation Office.
(Id. Ex. 1.) Mr. Pantoliano’s assertion clearly relies on a misreading of
the PSR, and he cites no other evidence to support the proposition that there
were no victims. This argument is, consequently, similarly unavailing, and
this defense is not viable.
27
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that advising [him] of the existence of the affirmative defense
would have produced a result more favorable to him.”
Mitchell
v. Scully, 746 F.2d 951, 955 (2d Cir. 1984).
Second, the evidence contradicts Mr. Pantoliano’s
conclusory assertion that, barring Mr. Lind’s allegedly
ineffective assistance, he would not have accepted the plea
deal.
Mr. Pantoliano played an active role in negotiating his
plea deal.
Mr. Pantoliano demanded an agreement which would
guarantee him a 120-month term of imprisonment.
If the
Government did not offer such an agreement, Mr. Pantoliano was
prepared to move to dismiss all counts for lack of evidence as
to the elements of each offense, indicating his awareness that
moving to dismiss the charges was a possibility.
In the end,
Mr. Pantoliano received a plea offer setting forth an estimated
Guidelines range of 114 to 121 months in custody, all but
satisfying his request for a 120-month term of custody.
Mr.
Pantoliano’s conclusory assertions that he would have rejected
this deal, which met his demands, and proceeded to trial on the
basis of the possibility of a defense – which, from the facts,
bore no viability – are unavailing and unsupported by evidence.
Finally, evaluation of the record as a whole does not
support the position that it would have been rational for Mr.
Pantoliano to reject the plea deal and proceed to trial.
Mr.
Pantoliano “gained an enormous strategic benefit from accepting
28
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the Government’s plea offer.”
United States v. Diaz, No. 07-CR-
003 (BSJ), 2009 WL 4496052, at *4 (S.D.N.Y. Dec. 3, 2009).
“[I]n the absence of a plea agreement, the government would
presumably have been free to prosecute [Mr. Pantoliano] on [the
three] open counts against him[.]”
F.3d 315, 321 (2d Cir. 2005).
United States v. Arteca, 411
This is particularly notable as
Mr. Pantoliano faced an additional § 924(c) count, to which he
did not plead guilty.
If convicted of both § 924(c) counts, Mr.
Pantoliano faced consecutive mandatory minimum sentences, and a
far longer term of incarceration.
See United States v.
McIntosh, 33 F. Supp. 3d 448, 450 (S.D.N.Y. 2014); United States
v. Mejia, 545 F.3d 179, 205 (2d Cir. 2008); see also Gomez v.
United States, No. 10-CV-01886 (CBA), 2013 WL 66080, at *7
(E.D.N.Y. Jan. 4, 2013) (“Had [petitioner] proceeded to trial,
moreover, [he] risked a substantially harsher sentence.”).
Mr.
Pantoliano also “earned a three-level reduction from his base
offense level for acceptance of responsibility - a benefit that
he would have lost had he gone to trial.”
Arteca, 411 F.3d at
321; see also, e.g., Diaz, 2009 WL 4496052 at *4.
The strategic benefits of pleading guilty appear even
greater in light of the fact that Mr. Pantoliano has not
provided any persuasive reason for doubting the strength of the
Government’s case against him.
See Arteca, 411 F.3d at 321-22.
Mr. Lind affirms that the Government’s case against Mr.
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Pantoliano was strong, particularly with respect to his
involvement in robbing gambling establishments.
19.) 7
This is supported by the record.
(Lind Aff. ¶
The Government
represented at the plea hearing that, had Mr. Pantoliano
proceeded to trial, its evidence would consist of “testimony
from cooperating witnesses, as well as testimony with respect to
the robbery itself,” that between April 2008 and September 2008,
Mr. Pantoliano went into illegal card games and robbed people of
the proceeds of those games, and that, during the aforementioned
robberies, Mr. Pantoliano brandished a firearm.
10:13-11:12.)
(Plea Tr. at
Mr. Pantoliano himself allocuted under oath that,
between April 2008 and September 2008, he conspired to rob
narcotics traffickers and gambling establishments in Brooklyn
and Staten Island, and that he brandished a gun during the
course of the conspiracy.
(Id. at 11:13-13:14.)
Mr. Pantoliano now responds with baseless allegations
of misconduct and corruption, but identifies no potentially
viable defenses or any meritorious weaknesses in the
Government’s case against him.
“[T]he evidence against
Defendant was strong, he acknowledge[d] his guilt, and it is
more than reasonable to assume that he would have been found
Portions of this evidence were previewed at the suppression hearing held.
(See 10-cr-68, ECF No. 39, Report and Recommendations (summarizing testimony
of ATF agent at suppression hearing).)
7
30
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guilty and faced the same [if not far more dire] . . .
consequences had he proceeded to trial.”
Francis, 2013 WL
673868, at *4 (S.D.N.Y. Feb. 25, 2013); see also, e.g., Morton
v. Perez, No. 13-CV-3985 (AT) (GWG), 2014 WL 407411, at *9
(S.D.N.Y. Feb. 4, 2014) (“[I]f [defendant] had gone to trial,
[he] could have faced 25 years imprisonment on each of the
robbery charges, seven years on the weapons possession charge,
and four years on the bail jumping charge.
Also, all of these
sentences could have been ordered to run consecutively.
Given
the choice [defendant] faced, and the absence of any evidence in
the record suggesting that he would have been acquitted, there
is no basis on which to conclude that ‘a decision to reject the
plea bargain would have been rational under the
circumstances.’”).
In light of the above, the court cannot
conclude that Mr. Pantoliano has met the high standard of
Strickland.
His claim is denied.
Mr. Pantoliano has not established that he received
ineffective assistance of counsel at pleading, and the facts –
summarized above – indicate that his agreement to plead guilty
was knowing and voluntary.
Consequently, the collateral attack
waiver in the plea agreement remains valid and the remainder of
his claims are procedurally barred.
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B. Ground Four: Ineffective Assistance at Sentencing
Mr. Pantoliano argues that Mr. Katowitz, his fourth
attorney, provided ineffective assistance of counsel at
sentencing because he failed to bring Mr. Pantoliano’s case file
to court, preventing Mr. Pantoliano from presenting “mitigating
evidence” contained therein.
(Pet. at 35.)
This mitigating
evidence allegedly consisted of letters of support and the PSR,
which Mr. Pantoliano claims reflected that there were “no
injured parties,” a contention rejected above.
His ineffective
assistance at sentencing claim is procedurally barred by the
collateral attack waiver in the plea agreement.
Northover v.
United States, No. 11-CR-630 (KMK), 2019 WL 6173704, at *3
(S.D.N.Y. Nov. 19, 2019) (“[A] claim of ineffective assistance
is waived when it relates to counsel’s performance at the
sentence.”); United States v. Djelevic, 161 F.3d 104, 107 (2d
Cir. 1998) (“If we were to allow a claim of ineffective
assistance of counsel at sentencing as a means of circumventing
plain language in a waiver agreement, the waiver of appeal
provision would be rendered meaningless.”).
Even if not barred, Mr. Pantoliano’s claim lacks
merit.
Mr. Pantoliano makes only the bare allegation that he
would have received a lower sentence had he presented the
evidence cited above and has not shown there was “a reasonable
probability that, but for [Mr. Katowitz’s alleged failure to
32
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bring his case file to the sentencing proceeding], he would have
received a less severe sentence,” Gonzalez, 722 F.3d at 130 (2d
Cir. 2013).
Indeed, Judge Johnson initially imposed a sentence
of 181 months, which he reduced to 125 months only to comply
with the plea agreement.
Mr. Pantoliano presents no evidence
from which this court can conclude that there is any reasonable
possibility that Judge Johnson would have further reduced Mr.
Pantoliano’s sentence after reviewing the allegedly mitigating
evidence cited above.
Mr. Pantoliano further argues that his waiver of his
right to counsel at sentencing was unconstitutional pursuant to
Faretta v. California, 422 U.S. 806 (1975) because it was not
“knowing and voluntary.”
Any Faretta argument is barred both by
the collateral attack waiver, and because Mr. Pantoliano failed
to raise it on direct appeal and shows no cause for his failure
to do so do.
Zhang v. United States, 506 F.3d 162, 166 (2d Cir.
2007) (“[A] claim may not be presented in a habeas petition
where the petitioner failed to properly raise the claim on
direct review.”); Marone v. United States, 10 F.3d 65, 67 (2d
Cir. 1993) (“[T]o raise a claim that could have been raised on
direct appeal, a § 2255 petitioner must show cause for failing
to raise the claim at the appropriate time and prejudice from
the alleged error.”); United States v. Miller, No. 92-CR-91
(RJD), 2010 WL 1269796, at *24 (E.D.N.Y. Mar. 30, 2010)
33
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(“[Petitioner’s Faretta] claim is procedurally barred from
consideration by this Court because it is entirely record-based
but was not raised on [his] direct appeal.”). 8
C. Ground Two: Alleged Financial Interest
Mr. Pantoliano argues that his conviction and sentence
are unconstitutional because “Respondents,” without specifying
Even if not barred, Mr. Pantoliano would not likely prevail on his Faretta
claim. Before granting a defendant the opportunity to proceed pro se, the
district court “must ensure itself that the waiver of counsel is made
knowingly and intelligently, which depends upon the particular facts and
circumstances of the case and characteristics of the defendant.” United
States v. Hausa, 922 F.3d 129, 134 (2d Cir. 2019) (internal citations and
quotation marks omitted). Although Judge Johnson did not engage in a lengthy
colloquy with Mr. Pantoliano on the record, a court need not “resort to any
particular talismanic procedures in order to ensure that the defendant’s
Sixth Amendment rights are not violated,” so long as it “ensure[s] that the
defendant understood [1] that he had a choice between proceeding pro se [or]
with assigned counsel, . . . [2] understood the advantages of having one
trained in the law to represent him, and . . . [3] had the capacity to make
an intelligent choice.” United States v. Nina, 607 F. App’x 33, 36 (2d Cir.
2015) (internal citations and quotation marks omitted).
8
As the record reflects, Mr. Pantoliano’s actions demonstrated all elements
were satisfied: Judge Johnson repeatedly indicated to Mr. Pantoliano, as each
of his four attorneys was discharged at Mr. Pantoliano’s request, he could
continue with counsel or proceed pro se; Mr. Pantoliano sparred with his
various attorneys and sought to substitute his legal views for their own,
despite Judge Johnson’s indications that their performance was helpful; and
Judge Johnson found Mr. Pantoliano competent to plead guilty, and Mr.
Pantoliano rejected any attempts to secure a mental health evaluation
requested by his counsel. Moreover, Mr. Pantoliano’s routine creation of
conflicts with his attorneys, despite their performance, may be the
functional equivalent of knowing and voluntary waiver of his right to
counsel. See, e.g., United States v. Moore, 706 F.2d 538 (5th Cir. 1983)
(finding no violation where defendant dismissed four separate court-appointed
counsel following warnings similar to those here, despite no Faretta
warnings, because defendant’s “persistent, unreasonable demand for dismissal
of counsel and appointment of new counsel, as [therein] discussed, [was] the
functional equivalent of a knowing and voluntary waiver of counsel”); United
States v. Thomas, 357 F.3d 357, 362-63 (3d Cir. 2004) (affirming district
court’s finding that the defendant waived his right to counsel after having
been appointed four attorneys prior to trial, particularly since the
defendant engaged in dilatory conduct and generally abusive behavior toward
his lawyers, and was repeatedly warned that his refusal to cooperate with
defense counsel would result in a waiver of his right to counsel).
34
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which of the many Respondents named in this action, had a
financial interest in his conviction.
Like Mr. Pantoliano’s
Faretta claim, this argument is procedurally barred both by the
collateral attack waiver contained in his plea agreement and
because Mr. Pantoliano failed to raise the argument on direct
appeal.
Zhang, 506 F.3d at 166; Marone, 10 F.3d at 67; Reed,
512 U.S. at 354 (1994). 9
Even if not barred, this claim lacks merit.
Mr.
Pantoliano’s alleged evidence comes in the form of citations to
two Committee on Uniform Securities Identification Procedures
(“CUSIP”) numbers – used to identify financial instruments,
including stocks of all registered U.S. and Canadian companies,
commercial paper, and U.S. government and municipal bonds, see
CUSIP Number, SEC’S & EXCH. COMM’N, https://www.sec.gov/answers/
cusip.htm (last accessed April 20, 2020) – which allegedly
pertain to financial instruments associated with Mr.
Pantoliano’s name and case numbers.
(Pet. at 21-22.)
Mr.
Pantoliano makes the conclusory assertion that “it appears from
the [the CUSIP numbers] that the coffers of the Respondent(s)
Mr. Pantoliano argues that he raised this argument on rehearing “as
information became available.” (See Pet. at 2, 6.) Mr. Pantoliano does not
specify when he reportedly first received this information, nor does raising
this argument on rehearing cure Mr. Pantoliano’s failure to raise this
question on direct appeal prior to rehearing. See United States v. Quiroz,
22 F.3d 489, 490 (2d Cir.1994) (argument raised for the first time on
petition for rehearing will be deemed waived).
9
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have profited from [his] conviction.”
(Id. at 22.)
Even if
these instruments do exist and are related in some way to Mr.
Pantoliano and/or his case, Mr. Pantoliano draws no connection
between Respondents and these numbers.
Nor did Mr. Pantoliano
pay any fine, forfeiture, or restitution in the underlying
criminal action.
His arguments of a financial interest are
meritless and unsupported by competent evidence.
D. Ground Three: Lack of Subject Matter Jurisdiction
Mr. Pantoliano argues that his conviction and sentence
are unconstitutional, and asserts that the district court lacked
subject matter jurisdiction over his criminal action because the
locations where the crimes occurred, Brooklyn and Staten Island,
were not “ceded to the United States Government by virtue of the
Enclave Clause” of the U.S. Constitution, and were not “ceded to
the United States Government by virtue of the Property Clause.”
(Pet. at 7.)
Mr. Pantoliano’s argument is barred by the waiver
in his plea agreement and because it was raised and considered
on direct appeal.
See United States v. Perea, 129 F.3d 255, 260
(2d Cir. 1997) (“A § 2255 motion may not relitigate issues that
were raised and considered on direct appeal.”).
Even if not barred, Mr. Pantoliano’s jurisdictional
challenge is plainly without merit.
Mr. Pantoliano pleaded
guilty to an indictment charging him with a federal crime.
Pursuant to the United States Constitution, this Court retains
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jurisdiction over violations of federal law.
U.S. Const. Art.
III, § 2 (“The judicial power shall extend to all cases, in law
and equity, arising under . . . the laws of the United
States.”).
“Contrary to [Mr. Pantoliano’s] bald assertions,
Staten Island [and Brooklyn] [are] part of the State of New York
and the United States of America and lie[] within the federal
jurisdiction of the United States Court for the Eastern District
of New York.”
Garaventa v. Holder, No. 12-CV-1741 (CBA), 2013
WL 878677, at *2 (E.D.N.Y. Mar. 8, 2013) (rejecting identical
argument); see also 28 U.S.C. § 112 (providing that Kings and
Richmond county fall within this district’s jurisdiction).
E. Ground Five: Johnson Claim
Mr. Pantoliano last argues that his § 924(c)
conviction must be vacated pursuant to Johnson because
conspiracy to commit Hobbs Act robbery does not qualify as a
crime of violence so as to sustain a § 924(c) charge.
24, Request for Leave to Amend.)
(ECF No.
Were Mr. Pantoliano sentenced
today, or had Mr. Pantoliano not waived his collateral attack
rights, he could prevail.
See United States v. Davis, 139 S.
Ct. 2319, 2323-24 (2019); United States v. Barrett, 937 F.3d
126, 127 (2d Cir. 2019).
Yet, Mr. Pantoliano’s claim is barred.
“[A] defendant’s ‘inability to foresee [a change in
the law] does not supply a basis for failing to enforce an
appeal waiver.
On the contrary, the possibility of a favorable
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change in the law after a plea is simply one of the risks that
accompanies pleas and plea agreements.’”
United States v. Lee,
523 F.3d 104, 107 (2d Cir. 2008) (quoting United States v.
Morgan, 406 F.3d 135, 137 (2d Cir. 2005)).
As a result, the
Second Circuit routinely denies collateral attacks based on
Johnson where a petitioner pleaded guilty and waived his right
to appeal or file a collateral attack.
See, e.g., Sanford, 841
F.3d at 580 (rejecting collateral attack of sentence based on
Johnson because of an appeal waiver); Collier v. United States,
No. 10-CR-820 (NGG), 2019 WL 296767, at *5 (E.D.N.Y. Jan. 22,
2019) (enforcing collateral waiver to bar Johnson claim for §
924(c) charge); Northover, 2019 WL 6173704, at *4 (same).
Mr.
Pantoliano’s procedurally barred claim meets the same fate. 10
By letter dated March 2, 2017, Mr. Pantoliano moved to supplement his
petition to state a sixth ground for relief, prosecutorial and agent
misconduct before the grand jury. (ECF No. 36, Motion to Supplement.) Mr.
Pantoliano failed to present this argument on direct appeal and it is, thus,
procedurally barred. See, e.g. Feuer v. United States, No. 07-CR-975 (WHP),
2012 WL 1319872, at *2 (S.D.N.Y. Apr. 4, 2012). To the extent Mr. Pantoliano
seeks to avoid this bar by arguing that his claim relies on new evidence –
namely, the statements of one of the three cooperating witnesses that he
allegedly did not identify Mr. Pantoliano to the ATF Agent, thus rendering
the agent’s grand jury testimony perjurious – his argument is unavailing. As
an initial matter, Mr. Pantoliano proffers only hearsay statements in an
effort to contravene the agent’s sworn statements before the grand jury.
Even if a cooperating witness had made the statement, it does not affect the
testimony of the two other cooperating witnesses who the agent testified
identified Mr. Pantoliano, and Mr. Pantoliano presents no evidence that the
two cooperators did not testify to this effect. Furthermore, Mr. Pantoliano
pleaded guilty to the crimes charged, thereby “extinguish[ing] [his] ability
. . . to raise a claim regarding misconduct before a grand jury.” Alston v.
Ricks, No. 01-CV-9862 (GWG), 2003 WL 42144, at *7 (S.D.N.Y. Jan. 7, 2003);
see also Mayes v. Donnelly, No. 03-CV-417, 2009 WL 2601106, at *10 (W.D.N.Y.
Aug. 21, 2009) (collecting cases). As the proposed amendment would be
futile, Mr. Pantoliano’s request for leave to amend is denied. See, e.g.,
10
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Conclusion
For the reasons stated above, Mr. Pantoliano’s § 2255
petition is DENIED in its entirety.
Because Mr. Pantoliano has
not made a substantial showing of the denial of a constitutional
right, a certificate of appealability shall not issue.
28
U.S.C. § 2253(c); Miller-El v. Cockrell, 537 U.S. 322, 327
(2003) (discussing certificate of appealability standard); Rules
Governing Section 2254 and 2255 Cases, Rule 11 (“The district
court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.”).
The Clerk of
Court is respectfully directed to enter judgment in favor of
Respondent, and to close the case. 11
The Government is
respectfully directed to serve Petitioner with a copy of this
Memorandum & Order and the Judgement at his last known address,
and to note service on the docket.
In addition, the court’s review of the docket revealed
that several filings contain the full name and/or pictures
and/or medical information regarding Mr. Pantoliano’s minor
child (ECF Nos. 1, 19, 37, 39).
Pursuant to the E-Government
Act of 2002, and corresponding guidance adopted by this court,
Thaler v. United States, 706 F. Supp. 2d 361, 373 (S.D.N.Y. 2009) (denying
leave to amend habeas petition as futile).
Mr. Pantoliano’s motion for judgment on the pleadings (ECF No. 31), Mr.
Pantoliano’s motion to amend (ECF No. 36), and Mr. Pantoliano’s request for a
restraining order and preliminary injunction (ECF No. 46) are denied.
11
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see https://img.nyed.uscourts.gov/files/local_rules/
egov2002-amd8204.pdf, filings should not include such
information.
The Clerk of Court is, therefore, respectfully
directed to restrict access to the aforementioned docket entries
to case participants only, to protect the child’s privacy.
SO ORDERED.
Dated:
May 4, 2020
/s/
Hon. Kiyo A. Matsumoto
United States District Judge
40
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