Jacques v. United States of America

Filing 15

OPINION AND ORDER denying Motion to Vacate, Set Aside or Correct Sentence (2255). Since petitioner has not made a "substantial showing of the denial of a constitutional right," a certificate of appealability shall not issue. 28 U.S.C. & #167; 2253(c)(2). The court certifies pursuant to 28 U.S.C. § 1915(a) that any appeal from this order would not be taken in good faith and therefore in forma pauperis relief is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to enter judgment for respondent. Ordered by Judge Nina Gershon on 7/10/2017. C/M (Barrett, C)

IN CLERK'S OFFICE
U.$. DISTRICT COURT E.D.N.Y.

* JUL10 2017 *
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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GARY JACQUES,

BROOKLYN OFFICE
OPINION AND ORDER
15-cv-1878 (NG)
(08-cr-577 (NG))

Petitioner,
- against UNITED STATES OF AMERCA,
Respondent.
--------------------- - -----------------

x

GERSHON, United States District Judge:
On June 29, 2010, petitioner, Gary Jacques, was convicted of substantive and conspiratorial
importation of, and possession with intent to distribute, cocaine. The convictions were affirmed on
February 6, 2014. United States v. Jacques, 555 F. App'x 41 (2d Cir. 2014). Jacques now brings a
28 U.S.C. § 2255 motion challenging his convictions, claiming ineffective assistance of counsel.
In addition to responses from the government, at my request, Jacques's trial counsel, James R.
Froccaro, Esq., also submitted an affidavit in response to Jacques's petition. Jacques was given
until February 14, 2017 to file a reply to the submissions of the government and Mr. Froccaro, but
none has been filed. For the reasons stated below, Jacques's § 2255 motion is denied.
BACKGROUND
On October 3, 2008, in preparation for Jacques's trial, the government provided Jacques
with discovery pursuant to Rule 16 of the Federal Rules of Criminal Procedure, including a
narrative of oral statements made by him to Jaw enforcement. According to the government's letter,
Jacques had made a number of statements to law enforcement before he was given warnings
pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and a number of statements after he was
given warnings. On October 23, 2009, I ordered the defendants in the case to file any motions to
suppress statements, identifications, or other evidence by December 1, 2009. Jacques's counsel at

the time, Thomas F.X. Dunn, Esq., did not submit any such motions. On February 1, 2010, I
granted Jacques's application to substitute Mr. Froccaro as his counsel, and to relieve Mr. Dunn.
Mr. Froccaro did not request leave to submit a motion to suppress statements until less than
two weeks before trial. Although I initially denied his request because of the delay, I granted his
request upon a motion for reconsideration. On June 2, 2010, he filed a motion to suppress certain
of Jacques's statements. The motion addressed only those statements Jacques had made before
being given Miranda warnings. His motion relied on the government's factual narrative as set forth
in the government's October 3, 2008 Rule 16 letter. I granted Jacques's motion in part and denied
it in part, suppressing one statement out of six.
On appeal, Jacques did not challenge my ruling on his motion to suppress the pre-Miranda
statements. Instead, Jacques. argued that the statements he made after being given Miranda
warnings, which were not the subject of his pretrial motion, should have been suppressed. The
Second Circuit, applying a plain error standard because Jacques had not moved to suppress those
statements, rejected his argument.
Jacques now claims in his habeas petition that his trial counsel was ineffective by (1) failing
to move to suppress statements Jacques made after being given Miranda warnings (his post-

Miranda statements); and (2) failing to investigate and challenge the government's factual
narrative in the motion to suppress the statements Jacques made before being given Miranda
warnings (his pre-Miranda statements), and instead relying on the government's narrative.
Affidavits
In support of his petition, Jacques filed an affidavit in which he describes his counsel's
claimed failings and the favorable facts that he argues his counsel should have relied on in the
motion to suppress. In it he states that Dominican law enforcement — Jacques was arrested in the

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Dominican Republic and extradited to the United States - told him, at the behest of American law
enforcement agents, that he would be given a "heavily reduced sentence" if he were forthcoming
with American law enforcement and agreed to plead guilty. He states that these assurances
prompted him to make the statements in question to law enforcement. He further states that when
he later asked American law enforcement agents to speak to his "family attorney Michal Arbeit,"
one of the agents told him that "speaking to Mike was going to be a 'conflict of interest" because
Arbeit had previously represented Jacques's co-defendants in other cases. As for his counsel,
Jacques states in his affidavit that Mr. Froccaro
never would speak to me about the circumstances surrounding my interrogation and the
statements I made. On one occasion, I specifically asked him if my testimony was needed
or if there was anything he needed to know about the suppression and he declined to speak
about it, telling me "there is nothing we need other than the government's letter." Though
I do not specifically recollect mylawyer's words, it was my strong impression he did not
want me to testify about the foregoing circumstances because it may constitute a waiver of
my right to refrain from testifying at trial.
In his affidavit responding to Jacques's allegations, Mr. Froccaro states that
Mr. Jacques' assertion that I never spoke to him about the circumstances surrounding his
interrogation and the statements he made to the authorities in or around when he was
transported from the Dominican Republic to the United States - is not accurate. I
specifically reviewed the government's letter dated October 3, 2008, with Mr. Jacques prior
to moving before this Court for the suppression of certain statements made by him. I did
not submit an affidavit from Mr. Jacques because Mr. Jacques indicated that the factual
assertions in the government's letter were accurate.
Finally, Mr. Jacques appears to assert[] that I denied him of the opportunity to testify at
trial. If he is, indeed, making this claim, it is not true. I never deny a defendant from
testifying, but rather, provide an opinion to the client about the pros and cons involved with the ultimate decision whether to testify being the client's decision, alone. Mr. Jacques
never indicated that he wanted to testify at his trial.

DISCUSSION
A prisoner in custody serving a sentence for a federal offense may "move the court which
imposed the sentence to vacate, set aside, or correct the sentence" on the basis that the sentence
was "imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a).
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In deciding a § 2555 motion, the district court must hold a hearing "[u]nless the motion and the
files and records of the case conclusively show that the petitioner is entitled to no relief." 28 U.S.C.
§ 2255(b). To be entitled to a hearing with respect to claims of ineffective assistance of counsel,
petitioner "need establish only that he has a 'plausible' claim of ineffective assistance of counsel,
not that he will necessarily succeed on the claim." Puglisi v. United States, 586 F.3d 209, 213 (2d
cir.2009) (internal quotation marks omitted). And, where, as here, a petitioner is appearing pro se,
the court must construe his habeas petition liberally and interpret it to raise the strongest arguments
that it suggests. See Erickson v. Pardus, 551 U.S. 89, 84 (2007); Green v. United States, 260 F.3d
78, 83 (2d cir.2001).
Although the court must "view[] the evidentiary proffers, where credible, and record in the
light most favorable to the petitioner," the court "need not assume the credibility of factual
assertions... where the assertions are contradicted by the record in the underlying proceeding."
Puglisi, 586 F.3d at 214. Where "material facts are in dispute," the court should "usually" hold a
hearing, and make relevant findings of fact. Id. However, "when the judge that tried the underlying
proceedings also presides over the Section 2255 motion, a less-than full-fledged evidentiary
hearing may permissibly dispose of claims where the credibility assessment would inevitably be
adverse to the petitioner." Id. Instead, a district court may "choose a middle road" by soliciting
affidavits to expand the record, if the judge determines that live testimony "would add little or
nothing to the written affidavits." Foster v United States, 581 F. App'x 105, 106 (2d cir. 2014)
(quoting Chang v. United States, 250 F.3d 79, 86 (2d cir. 2001)). The court may properly choose
to credit trial counsel's sworn statements over a petitioner's "self-serving and improbable
assertions" in dismissing the petition. Chang, 250 F.3d at 86 (holding that trial counsel did not err
in crediting counsel's "eminently credible" and "detailed" affidavit over petitioner's assertions);

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see also Foster, 581 F. App'x at 106 ("[A]n affidavit from the petitioner's trial counsel credibly
describing the circumstances concerning appellant's failure to testify... was sufficient to support
dismissal of the petition."); Padin v. United States, 521 F. App'x 36, 38 (2d Cir. 2013) (internal
quotation marks omitted).
Jacques's Claims of Ineffective Assistance of Counsel
To succeed on a claim of ineffective assistance of counsel, a petitioner must show that (1)
"counsel's representation fell below an objective standard of reasonableness" and (2) that "the
deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 688, 694
(1984). A court's review of counsel's performance must be "highly deferential," and the court
"must indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Strickland, 466 U.S. at 689. Further, "an error by counsel,
even if professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if, the error had no effect on the judgment." Id. at 691. To show prejudice, a petitioner
must establish 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.

Post-Miranda Statements

On direct appeal, the Second CircuIt reviewed Jacques's claim that the four post-Miranda
statements he made to law enforcement should have been suppressed for plain error because
Jacques had not moved to suppress the statements at trial. Jacques, 555 F. App'x at 45-46. The
Circuit held that, with respect to three of the four post-Miranda statements, there was no error
because two of the statements were not made in response to interrogation, and one of the statements
did not raise Miranda concerns because it "[did] nothing more than seek clarification of what the
defendant had already volunteered." Id. at 46. Therefore, Jacques's counsel was not

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constitutionally deficient in failing to move for suppression of those three post-Miranda
statements.
As for the fourth statement, the Circuit held that, though made in response to custodial
interrogation, Jacques failed to show prejudice because "the other, admissible evidence of
Jacques's culpability, including other admissions made by him, so overwhelmingly established
guilt." Jacques, 555 F. App'x at 46. Therefore, as the Circuit has already held, Jacques cannot
show he was prejudiced by his attorney's failure to move for suppression of his post-Miranda
statements. See Bennet v. United States, 663 F.3d 71, 88-89 (2d Cir. 2011) (finding that petitioner
failed to show prejudice under Strickland where the Circuit Court had previously, in the direct
appeal, found no prejudice under the plain error standard).' Accordingly, Jacques's claim that his
counsel was ineffective in failing to move to suppress the post-Miranda statements is denied.

B. Pre-Miranda Statements
Jacques claims that his counsel, Mr. Froccaro, was deficient in failing to ascertain the
factual circumstances surrounding Jacques's pre-Miranda statements. Jacques argues that, had he
investigated the circumstances, Mr. Froccaro could have included an affidavit by Jacques detailing
those facts and even offered Jacques's testimony at a suppression hearing. Specifically, Jacques
argues, he could have testified that Dominican law enforcement, at the behest of American law
enforcement, had encouraged him to cooperate with American agents, and that he had requested

'In finding that the other evidence at trial overwhelmingly established Jacques's guilt, the Second
Circuit relied, in part, on Jacques's pre-Miranda admissions which were introduced at trial.
Jacques, 555 F. App'x at 46. If, as he claims, Jacques could successfully show that those preMiranda statements would also not have been admitted but for his counsel's ineffectiveness, the
prejudice analysis here would be different from the analysis done by the Circuit on his direct appeal
as I could not rely on the pre-Miranda statements in evaluating the strength of the other evidence
at trial. However, as I explain in the next section, Jacques has 1 failed to establish his ineffectiveness
claim as to the pre-Miranda statements, and therefore, the Circuit's analysis is controlling.

to speak with his attorney, Mike Arbeit, but that an agent denied his request on the grounds that
the attorney had a conflict of interest. These additional facts, Jacques argues, would have
persuaded the court to suppress all his pre-Miranda statements. However, viewing the evidentiary
proffer and the record before me, Jacques has failed to establish that his counsel's performance
was deficient.
In his affidavit, responding to Jacques's allegations, Mr. Froccaro credibly states that
Jacques's allegation Mr. Froccaro never spoke to Jacques about the circumstances surrounding
Jacques's statement is "not accurate." Mr. Froccaro describes that he "reviewed the government's
letter dated October 3, 2008, with Mr. Jacques prior to moving before this Court for the suppression
of certain statements made by him" and that "Mr. Jacques indicated that the factual assertions in
the government's letter were accurate." Jacques did not file a reply disputing his counsel's account.
In sum, in filing the motion to suppress, Mr. Froccaro relied on what Jacques shared with
him, which was that the government's letter was accurate. Since Jacques corroborated the
government's version of events, Mr. Froccaro's reliance in the motion to suppress on the factual
assertions in the government's letter was reasonable.
In his affidavit, Jacques further states that his counsel gave him the "impression" that
counsel did not want Jacques to provide an affidavit because doing so could constitute a waiver of
Jacques's right to refrain from testifying at trial. Although Mr. Froccaro's statement that he did
not prevent Jacques from testifying at trial does not address Jacques's "impression" as to why, he
thought, counsel would not have wanted him to testify, there could be no ineffectiveness where
the government's letter accurately detailed the facts as Mr. Froccaro knew them to be at the time.
His choice to forgo submission of an affidavit by Jacques or Jacques's testimony was reasonable.

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Accordingly, Jacques's claim that his counsel was ineffective in failing to include an affidavit or
have Jacques testify at a suppression hearing is denied.
Finally, it is worth noting that I observed Mr. Froccaro throughout his representation of
Jacques, and he zealously defended and advocated on behalf of his client throughout the
proceedings. I have no reason to doubt the veracity of Mr. Froccaro's affidavit or the competence
of his representation.
CONCLUSION
For the foregoing reasons, Jacques's petition for a writ of habeas corpus is denied on the
basis of the existing record, without the need for a further evidentiary hearing. Since petitioner 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)(2). The court certifies pursuant to 28 U.S.C. §
19 15(a) that any appeal from this order would not be taken in good faith and therefore informa
pauperis relief is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S.
438, 444-45 (1962).

The Clerk of Court is directed to enter judgment for respondent.

SO ORDERED.

Nina Gershon

/s/
NINA GERSHON
United States District Judge
Dated: July / 2017
Brooklyn, New York

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cc:

Gary Jacques, 64673-053
FCI Danbury
Federal Correctional Institution
Route 37
Danbury, CT 06811