Bennett v. United States of America
MEMORANDUM DECISION AND ORDER: For the foregoing reasons, Bennett's Petition is DENIED. Because Bennett has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. 7; 2253. The Court certifies pursuant to 28 U.S. C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S.438 (1962). The Clerk of Court is directed to enter judgment and terminate docket entry 1 in this matter, and to close docket 97 Cr. 639. (Signed by Judge Paul A. Crotty on 1/11/2013) Copies Mailed By Chambers. (ago)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DOC #: _________________
DATE FILED: January 11, 2013
THE UNITED STATES OF AMERICA,
No. 05 Civ. 3666 (PAC)
HONORABLE PAUL A. CROTTY, United States District Judge:
Petitioner Patrick R. Bennett (“Bennett”), appearing pro se, moves pursuant to 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence. For the reasons stated below, Bennett’s
petition (the “Petition”) is DENIED.1
This matter has had a long and complicated history over the past 15 years, which is
recounted in multiple opinions and orders by the District Court and the United States Court of
Appeals for the Second Circuit, familiarity with which is assumed. See, e.g., Bennett v. United
States, 663 F.3d 71, 73–83 (2d Cir. 2011) (“Bennett VII”).
In summary, on October 28, 1998, Bennett and three co-defendants were charged in a
106-count indictment with, inter alia, securities fraud, mail fraud, bank fraud, money laundering,
conspiracy to obstruct justice and commit perjury, obstruction of justice, and perjury.
At the first trial, which was before the Honorable Thomas P. Griesa and ended in March
1999, the jury convicted Bennett of one count of obstruction of justice, two counts of conspiracy
The Court construes Bennett’s pro se filings to raise the strongest arguments that they suggest. See
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). The issues raised by Bennett’s Petition can be
resolved on the papers, and thus the Court denies Bennett’s motions for oral argument and an
to obstruct justice and commit perjury, and four counts of perjury, but was unable to reach a
verdict on the other counts. In the second trial, which was before the Honorable John S. Martin,
Jr. and ended in June 1999, Bennett was convicted of two counts of securities fraud, five counts of
bank fraud, five counts of engaging in monetary transactions with criminally derived property, and
thirty counts of money laundering. Judge Martin sentenced Bennett to thirty years imprisonment
and ordered forfeiture of certain assets.
On May 31, 2001, the Second Circuit affirmed Bennett’s convictions. See United States
v. Bennett, No. 00-1330 (2d Cir. May 31, 2001) (summary order) (“Bennett I”). The Second
Circuit simultaneously vacated Bennett’s sentence and remanded to the District Court for
resentencing, holding that Judge Martin improperly enhanced Bennett’s sentence based on the
refusal of Bennett’s wife to surrender assets held in her name that were derived from the
underlying criminal conduct for which Bennett was convicted. See United States v. Bennett, 252
F.3d 559, 562–65 (2d Cir. 2001) (“Bennett II”), cert. denied 535 U.S. 932 (2002).
On remand, Judge Martin resentenced Bennett to twenty-two years imprisonment, and reimposed the same nonincarceratory penalties. In his resentencing, Judge Martin upwardly
departed from the Sentencing Guidelines recommendation by two years based on Bennett’s own
concealment of assets. A new judgment of conviction was entered on June 6, 2002. On appeal,
the Second Circuit affirmed this sentence. See United States v. Bennett, No. 02-1379 (2d Cir.
Sept. 18, 2003) (summary order) (“Bennett III”), cert. denied 540 U.S. 1134 (2004).
Bennett’s direct appeal from the resentencing was still pending when, on March 17, 2003,
Bennett filed a 28 U.S.C. § 2255 petition to vacate his sentence and conviction on the grounds
that, inter alia, he had received ineffective assistance of counsel at his second trial. This Court
denied the petition. See Bennett v. United States, No. 03 Civ. 1852 (PAC), 2006 WL 738162
(S.D.N.Y. Mar. 22, 2006) (“Bennett IV”); see also Bennett v. United States, No. 03 Civ. 1852
(PAC), 2006 WL 1751242 (S.D.N.Y. June 26, 2006). Bennett appealed the Court’s order, and
on December 3, 2008, pursuant to United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994), the
Second Circuit remanded the matter to permit the Court to conduct an evidentiary hearing with
regard to certain of Bennett’s ineffective assistance of counsel claims. See Bennett v. United
States, 301 F. App’x 31 (2d Cir. 2008) (“Bennett V”).
On remand, the Court conducted a two day hearing, and concluded that Bennett’s
contentions in support of his ineffective assistance of counsel claim were “incredible,” and that
Bennett’s trial counsel was effective. See Bennett v. United States, No. 03 Civ. 1852 (PAC),
2009 WL 3614613, at *12 (S.D.N.Y. Nov. 3, 2009) (“Bennett VI”).2
The Second Circuit restored Bennett’s appeal, and on December 9, 2011, affirmed this
Court’s denial of Bennett’s Section 2255 petition. See Bennett VII, 663 F.3d at 83–89.
The Instant Petition
This recounting is not a complete catalog of the dozens of motions, affidavits,
affirmations, letters, and other materials Bennett filed before this Court, the Second Circuit, and
other courts.3 This brings us to the current Petition (docketed April 11, 2005), which alleges the
ineffective assistance of counsel in the appeal from the resentencing.4
The Court noted that “[c]ross examination demonstrated that Bennett is a person who would say or do
anything he thought would give him a temporary advantage. . . . Bennett is not credible.” Id.
See, e.g., Bennett v. Wellinger, No. 10 Civ. 172J (LPL), 2011 WL 3735053 (W.D. Pa. Aug. 24, 2011)
(dismissing Bennett’s 28 U.S.C. § 2241 petition because of pendency of matters in this circuit); Bennett
v. United States, No. 03 Civ. 1852 (SAS), 2004 WL 2711064, at *8 (S.D.N.Y. Nov. 23, 2004) (noting
“Bennett has submitted numerous pro se motions and letters although he is represented by counsel in
the instant matter. As a result, there are several duplicate filings and a number of letters requesting the
same action from both petitioner and his attorney,” and ordering Bennett to cease filing duplicative
papers). See generally Dkts. 97 Cr. 639, 03 Civ. 1852, 05 Civ. 3666 (S.D.N.Y.), 06-2443-pr (2d Cir.).
The Petition initially raised additional claims, which Bennett has abandoned. (See ECF Nos. 6, 16-7.)
The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) bars a “second or
successive” Section 2255 petition, unless permitted by the appropriate court of appeals. See 28
U.S.C. § 2255(h). The Government asserts that because Judge Martin imposed a new sentence
upon remand from Bennett II, the instant Petition is not a “second or successive” petition, and
thus the Court has jurisdiction over this petition. See Magwood v. Patterson, 130 S.Ct. 2788,
2802 (2010) (holding that where “there is a new judgment intervening between . . . two habeas
petitions, . . . an application challenging the resulting new judgment is not ‘second or
successive’” (internal quotations omitted)); Johnson v. United States, 623 F.3d 41, 45–46 (2d
Cir. 2010). But no intervening sentence or judgment was entered between the filing of the
original petition (under docket 03 Civ. 1852) and the instant Petition (under docket 05 Civ.
3666), both of which challenge the June 5, 2002 judgment (incorporating the underlying
resentencing), albeit on different grounds. See Johnson, 623 F.3d at 45.
Since Bennett filed the instant Petition while his initial petition was still pending,
however, AEDPA’s gatekeeping provisions regarding second or successive petitions were not
triggered. See Whab v. United States, 408 F.3d 116, 118 (2d Cir. 2005); Ching v. United States,
298 F.3d 174, 177 (2d Cir. 2002). “[B]efore a motion or petition can be regarded as successive,
there must be some prior adjudication on the merits or a dismissal with prejudice.” Littlejohn v.
Artuz, 271 F.3d 360, 363 (2d Cir. 2001); see Jiminian v. Nash, 245 F.3d 144, 148 (2d Cir. 2001).
The 2005 Petition is not considered second or successive because no ruling on the merits of the
initial petition had been issued when Bennett filed it.5
Before the Court’s order in Bennett IV, Bennett had moved pursuant to Ching to amend his original
petition to incorporate the grounds raised by the instant Petition. See Ching, 298 F.3d at 177.
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
Bennett contends his counsel on the appeal from the resentencing was ineffective because
appellate counsel failed to raise in the “questions presented” or opening brief that Judge Martin
erred when he imposed an upward departure of two years based on Bennett’s actions in
transferring assets in order to shield them from potential creditors and victims.6 Bennett claims
this error by counsel resulted in the Second Circuit not considering this argument and instead
affirming the sentence Judge Martin imposed on resentencing.
The Second Circuit in Bennett II held it was improper for Judge Martin to impose an
upward departure based on the refusal of Bennett’s wife to forfeit certain assets. On remand,
however, Judge Martin was free to consider additional factors, including:
whether, apart from Mrs. Bennett’s refusal to surrender the properties, [Bennett’s]
own acts of concealment or any other appropriate factors warrant a departure
above the twenty-year sentence [Judge Martin] stated would have been imposed
had the properties been surrendered. Bennett II, 252 F.3d at 565.
At the resentencing, Judge Martin stated that he would not base any upward departure on
grounds he had not considered at the original sentencing. Judge Martin then ruled that the
original upward departure was based not only on the refusal by Bennett’s wife to surrender
assets, but also on Bennett’s own actions in transferring assets. Judge Martin ruled that the
Second Circuit’s opinion in Bennett II left him the option to impose an upward departure based
on Bennett’s own actions, and as such, imposed a two-year upward departure. Bennett claims
To provide some sense of the legal games being played here, the Court notes that throughout the
proceedings in this matter, Bennett has availed himself of the assistance of counsel when he has seen it
fit, but has attempted to disassociate himself from counsel when he believes it will give him a tactical
advantage and allow him to file additional materials or raise additional claims on his own. (E.g., ECF
No. 5 ¶ 15; Dec. 22, 2004 Mem. of Law in Supp. at 10.) See also Bennett, 2004 WL 2711064. In
addition, despite Bennett (in 2005) accusing counsel of being ineffective in the direct appeal of his
resentencing (in 2002–2003), the same counsel continued to represent Bennett in the proceedings and
appeals relating to the initial Section 2255 petition (from 2003–2011). See, e,g., Bennett VII, 663 F.3d
71; Bennett VI, 2009 WL 3614613. Counsel now professes that “I can certainly live with being called
ineffective” if this outcome would be helpful to his former client, Bennett. (ECF No. 20 ¶ 16.)
Judge Martin’s rulings regarding the grounds for his original upward departure were improper
and that counsel was ineffective for failing to properly raise this argument on appeal.
Under the test of Strickland v. Washington, 466 U.S. 668 (1984), “to establish ineffective
assistance of appellate counsel, [a petitioner] must show that counsel’s representation fell below
an objective standard of reasonableness, and that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Forbes
v. United States, 574 F.3d 101, 106 (2d Cir. 2009) (internal quotations omitted). In order to
satisfy the first prong of the Strickland test, “it is not sufficient for the habeas petitioner to show
merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to
advance every nonfrivolous argument that could be made.” Mayo v. Henderson, 13 F.3d 528,
533 (2d Cir. 1994). Appellate counsel “need not (and should not) raise every non-frivolous
claim, but rather may select from among them in order to maximize the likelihood of success on
appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000) (citing Jones v. Barnes, 463 U.S. 745
(1983)). A habeas petitioner, however, “may establish constitutionally inadequate performance
if he shows that counsel omitted significant and obvious issues while pursuing issues that were
clearly and significantly weaker.” Mayo, 13 F.3d at 533.
Bennett cannot satisfy the Strickland test. As to counsel’s performance, Bennett cannot
show that counsel omitted a significant and obvious issue because, contrary to Bennett’s
assertions, appellate counsel argued in the opening brief on direct appeal from the resentencing
that the law of the case doctrine precluded Judge Martin from imposing an upward departure.
(See ECF No. 16-3, Br. of Def.-Appellant at 62.) Appellate counsel argued that the Second
Circuit in Bennett II “clearly found . . . that the entire 120-month upward departure originally
imposed was imposed solely due to failure of Mr. Bennett and his wife ‘to surrender
properties[,]’” and that “[t]his became law of the case and the mandate rule prohibits the district
court on remand from altering this ruling.” (Id. (quoting Bennett II, 252 F.3d at 564).) Appellate
counsel repeated this argument in the reply brief. (See ECF No. 16-6, Reply Br. of Def.
Appellant at 26–27.) Bennett and his former appellate counsel now assert that the argument
appellate counsel raised on appeal (that Judge Martin violated the law of the case) is different
than the argument Bennett now claims should have been raised—that Judge Martin on remand
improperly made new factual findings (about his grounds for the original upward departure) that
differed from those made by the Second Circuit (that Judge Martin’s original upward departure
was based solely on the refusal of Bennett’s wife to surrender assets). This is a distinction
without a difference. No matter how this argument is characterized now—whether Judge Martin
violated the law of the case or improperly made new factual findings at variance to the Second
Circuit’s opinion—it is the same argument that was raised on direct appeal from resentencing.
It is equally meritless to suggest that because the Second Circuit in Bennett III did not list
this argument in its summary order denying the appeal, this means appellate counsel was
ineffective for failing to raise it. As this Court has noted, “[t]he Court is not required to delineate
every reason for the decisions it makes; it is in the Court’s discretion to respond specifically—or
not—to arguments made by the parties.” Devinsky v. Kingsford, No. 05 Civ. 2064 (PAC), 2008
WL 2704338, at *3 (S.D.N.Y. July 10, 2008) (citing Rita v. United States, 551 U.S. 338, 356
(2007)). Such reasoning applies equally—indeed with greater force—in the context of a
summary order affirming a district court’s decision following a limited remand.
Bennett also claims that because the law of the case argument constitutes only a few
sentences in the opening appellate brief, the Second Circuit did not consider it. See Coalition on
W. Valley Nuclear Wastes v. Chu, 592 F.3d 306, 314 (2d Cir. 2009) (“Appellant’s two-sentence
legal analysis in their opening brief is insufficient to preserve this issue for appellate review[.]”).
Even if this were true, and the Court were to credit counsel’s assertion that he “did not
contemplate making the argument in the context of stating that the district court imposed the
enhancement by making a factual finding . . . that was inconsistent with the Second Circuit’s and
its prior factual finding” (ECF No. 20 ¶ 13), Bennett has failed to show this argument was
“significant and obvious,” and that the arguments counsel did pursue “were clearly and
significantly weaker.” Mayo, 13 F.3d at 533; see Carter v. Scully, 745 F. Supp. 854, 856
(E.D.N.Y. 1990) (“[A]ppellate counsel cannot be faulted for not pursuing every issue on appeal,
even when pressed to do so by the client.”). The Second Circuit’s rejection of the arguments it
noted in Bennett III does not by itself make those arguments clearly and significantly weaker,
and Bennett’s post hoc, bald assertions that the “new factual findings” argument was a “sure
winner” do not make it so. Having examined the record, the Court concludes this argument was
not clearly significant and obvious, nor was it clearly and significantly stronger than those
appellate counsel presented. See Mayo, 13 F.3d at 533.
Quite apart from whether appellate counsel’s representation fell below an objective
standard of reasonableness, there would be no prejudice under the second Strickland prong
because Bennett’s argument is futile. See Torres v. McGrath, 407 F. Supp. 2d 551, 562
(S.D.N.Y. 2006) (Chin, J.) (“As the failure to make a meritless argument does not amount to
ineffective assistance, appellate counsel was not constitutionally ineffective.” (internal
quotations omitted)). In Bennett II, the Second Circuit explicitly held that on remand Judge
Martin could upwardly depart from the Sentencing Guidelines recommendation based on
Bennett’s own conduct in concealing certain assets:
On remand, Judge Martin will be entitled to consider whether, apart from Mrs.
Bennett’s refusal to surrender the properties, [Bennett’s] own acts of concealment
or any other appropriate factors warrant a departure above the twenty-year
sentence he stated would have been imposed had the properties been surrendered.
Bennett II, 252 F.3d at 565.
Judge Martin did precisely what the Second Circuit said he could. On appeal from the
resentencing, the Second Circuit affirmed the upward departure, notwithstanding Judge Martin
having stated that he would not consider grounds for an upward departure which he had not
considered in the original sentencing. See Bennett III. Bennett has not shown that there is a
reasonable probability that, had counsel advanced the argument as Bennett now styles it, the
result of the appeal would have been different.7
Bennett’s other claims—that appellate counsel was ineffective for failing to argue that
Judge Martin did not make the required findings of fact for the upward departure at resentencing,
that Judge Martin imposed the upward departure premised on an improper basis, and that the
twenty-four month upward departure was unreasonable—all fail.8 Each of these arguments was
properly raised by counsel on direct appeal from the resentencing, and even if they had not been,
each of these arguments would have been frivolous. (See ECF No. 15 at 17–22.)
“At some point all litigation must end.” Jimenez v. United States Dist. Ct. for the S.
Dist. of Fla., 84 S.Ct. 14, 19 (1963) (Goldberg, J., in chambers). For Bennett, that moment is
The Court also notes that while the Second Circuit held that it was improper to consider the refusal of
Bennett’s wife to surrender assets as a ground for an upward departure, it did not hold that Judge Martin
only considered her actions (and not Bennett’s) in imposing the original upward departure. Rather, the
actions of Bennett and his wife were considered and reviewed together. See Bennett II, 252 F.3d at 561
(“Judge Martin made clear at this hearing that ‘it was very important that every dollar of money that
Bennett and his family had taken from the investors in this case be repaid.’”); id. (“He also noted that
‘Mr. Bennett and his wife are still endeavoring to keep the proceeds of the fraud,’ and said that ‘based
on this fact’ he would additionally depart upward ten years.”); id. at 562 n.3 (“The record is clear that
Judge Martin imposed the upward departure because Bennett and his wife refused to surrender
[assets].”); id. at 564 (“[T]he enhancement for Bennett was explicitly imposed because he and his wife
refused to surrender the properties.”). On resentencing, Judge Martin focused only on Bennett’s
conduct, and excluded consideration of the actions of Bennett’s wife.
Bennett appears to agree, abandoning his other ineffective assistance arguments in his reply papers and
focusing almost exclusively on the law of the case/factual findings argument. (See ECF No. 18.)
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