Ottenwarde v. USA
Filing
11
MEMORANDUM OPINION AND ORDER: The Court has considered all of the arguments of the parties. To the extent not specifically addressed above, the remaining arguments are either moot or without merit. For the foregoing reasons, the petitioners motion is denied. The Court declines to issue a certificate of appealability because the petitioner has failed to make a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). The Clerk is directed to enter judgment and to close this case. SO ORDERED. (Signed by Judge John G. Koeltl on 3/28/2013) (rsh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
ANDRES OTTENWARDE,
Petitioner,
- against -
12 Civ. 6537 (JGK)
MEMORANDUM OPINION
AND ORDER
UNITED STATES OF AMERICA,
Respondent.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
Andres Ottenwarde, appearing pro se, moves pursuant to
28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.
The petitioner was convicted pursuant to his plea of guilty to
one count of conspiracy to distribute and possess with intent to
distribute cocaine in violation of 21 U.S.C. §§ 846, 812,
841(a)(1), and 841(b)(1)(C).
The petitioner was sentenced
principally to time served--which amounted to approximately
eighteen months’ imprisonment--and a term of three years’
supervised release.
Pursuant to a plea agreement, the
petitioner waived his right to appeal or litigate under
28 U.S.C. §§ 2255 and 2241 any sentence within or below the
Stipulated Guidelines Range of fifteen to twenty-one months’
imprisonment.
He also agreed not to challenge his conviction or
sentence on the basis of any adverse immigration consequences
(including deportation) resulting from his guilty plea and
conviction.
The petitioner primarily alleges that his defense
counsel advised him that he would not be deported if he pleaded
guilty, and thereby rendered ineffective assistance under the
Sixth Amendment of the United States Constitution.
I.
On December 21, 2009, Ottenwarde waived his right to be
indicted by a grand jury, and Information 09 Cr. 1206 (JGK) (the
“Information”) was filed to which Ottenwarde pleaded not guilty.
(Presentence Investigation Report dated March 2, 2011 (“PSR”) at
¶ 1.)
The Information charged Ottenwarde in one count alleging
that from on or about June 3, 2009 through on or about August
20, 2009, Ottenwarde conspired with others to distribute and
possess with intent to distribute 500 grams or more of mixtures
and substances containing a detectable amount of cocaine.
(PSR
at ¶ 2.)
On February 15, 2011, Ottenwarde appeared before this Court
and pleaded guilty pursuant to a plea agreement (the “Plea
Agreement”) with the Government.
Under the terms of the Plea
Agreement, the parties agreed that the amount of cocaine
involved in the offense was at least 50 grams but less than 100
grams.
Significantly, the Plea Agreement addressed the possible
immigration consequences of Ottenwarde’s plea:
The defendant recognizes that if he is not a
citizen of the United States, his guilty plea and
conviction
make
it
very
likely
that
his
2
deportation
from
the
United
States
is
presumptively mandatory and that, at a minimum,
he is at risk of being deported or suffering
other adverse immigration consequences.
(Plea Agreement dated January 13, 2011 (“Plea Agr.”) at 5.)
The Plea Agreement also indicated that Ottenwarde had
discussed the possible immigration consequences with his
counsel:
The defendant acknowledges that he has discussed
the possible immigration consequences (including
deportation) of his guilty plea and conviction
with defense counsel. The defendant affirms that
he wants to plead guilty regardless of any
immigration consequences that may result from the
guilty
plea
and
conviction,
even
if
those
consequences include deportation from the United
States.
It is agreed that the defendant will
have no right to withdraw his guilty plea based
on any actual or perceived adverse immigration
consequences (including deportation) resulting
from the guilty plea and conviction.
It is
further agreed that the defendant will not
challenge his conviction or sentence on direct
appeal, or through litigation under Title 28,
United States Code, Section 2255 and/or Section
2241, on the basis of any actual or perceived
adverse
immigration
consequences
(including
deportation) resulting from his guilty plea and
conviction.
(Plea Agr. at 5.)
At Ottenwarde’s guilty plea, this Court conducted an
allocution in conformity with Rule 11 of the Federal Rules of
Criminal Procedure.
Ottenwarde was placed under oath and then
answered a series of questions establishing that he was
competent to enter a guilty plea.
3
(Transcript of Plea
Allocution on February 15, 2011 (“Plea Tr.”) at 6-8.)
As to his
immigration status, Ottenwarde responded that he was not a
citizen of the United States but was a resident.
7.)
(Plea Tr. at
Ottenwarde stated that he had had a full opportunity to
discuss the case with his counsel and discuss the consequences
of entering a plea.
(Plea Tr. at 9.)
Ottenwarde acknowledged
that he was satisfied with the work of his counsel.
at 9.)
(Plea Tr.
Ottenwarde acknowledged the various rights he was giving
up by pleading guilty.
(Plea Tr. at 10-13.)
Ottenwarde
acknowledged that he consented to being charged by Information
rather than indictment.
(Plea Tr. at 14-15.)
Ottenwarde was
also advised of the nature of the charges to which he was
pleading guilty (Plea Tr. at 15-17), the maximum penalties for
those charges, and the implications of any term of supervised
release (Plea Tr. at 17-18).
The Court allocuted Ottenwarde about the immigration
consequences of his plea.
(Plea Tr. at 19-20.)
Specifically,
the Court asked Ottenwarde: “Do you understand that if I accept
your guilty plea and adjudge you guilty, that adjudication can
be used to remove you from the United States, what used to be
called ‘deportation’?
19.)
Do you understand that?”
Ottenwarde stated that he understood.
(Plea Tr. at
(Plea Tr. at 19.)
The Court also asked: “Have you spoken with your lawyer about
the immigration consequences of your plea?”
4
(Plea Tr. at 19.)
Ottenwarde responded: “Yes.
I spoke with him and he told me
that this has nothing to do with that.”
(Plea Tr. at 19.)
At
that point defense counsel stated that he had “informed Mr.
Ottenwarde that, and I am confident he understands, that under
the immigration law there is a very high probability, I
expressed it as ‘certainty’ that this has the potential of being
the basis of deportation.”
(Plea Tr. at 19.)
Defense counsel
further stated that he advised Ottenwarde that “this court does
not have jurisdiction to make that determination.”
19.)
(Plea Tr. at
Thus, it was defense counsel’s view that Ottenwarde’s
statement was “directed at [his] representations as to the forum
in which the deportation determination would be made one way or
the other.”
(Plea Tr. at 19.)
The Court then asked Ottenwarde
if he agreed with defense counsel’s statement, to which
Ottenwarde responded, “Yes, I understand.”
(Plea Tr. at 19-20.)
The Court again asked: “So you understand that a consequence of
your plea of guilty if I accept the plea and adjudge you guilty,
that adjudication can be used to deport you, to remove you from
the United States?
Do you understand that?”
Ottenwarde responded: “I do.”
(Plea Tr. at 20.)
(Plea Tr. at 20.)
As to the Plea Agreement, Ottenwarde acknowledged that he
signed it, it was translated for him, and he discussed it with
his counsel who “explained everything to” him.
5
(Plea Tr. at
23.)
Ottenwarde acknowledged that he fully understood it before
signing it.
(Plea Tr. at 23.)
The Court ensured that there was an adequate factual basis
for Ottenwarde’s guilty plea.
Ottenwarde admitted that he
“agreed with Jose Cleaner [Garcia] to get 50 grams” of cocaine
which was to be “pass[ed] on to someone else.”
26.)
(Plea Tr. at
Ottenwarde admitted he was aware that his actions were
illegal.
(Plea Tr. at 27.)
At the conclusion of the proceeding, the Court found that
Ottenwarde understood the rights that he was giving up by
pleading guilty and the consequences of his plea, and that he
did so knowingly and voluntarily.
The Court further found that
Ottenwarde acknowledged his guilt, that the plea was entered
knowingly and voluntarily, and that the plea was supported by an
independent basis in fact containing each of the essential
elements of the offense.
(Plea Tr. at 29.)
Prior to sentencing, Ottenwarde’s counsel filed a
submission dated March 4, 2011.
Defense counsel noted that
Ottenwarde had no substantive objections to the Presentence
Investigation Report, and further stated in a footnote:
Counsel remains uncertain if the account of Mr.
Ottenwarde’s immigration status, PSR ¶ 46, is
complete. It is possible that Mr. Ottenwarde has
legal status as a permanent resident (“green
card” holder).
However, the significance of
whether Mr. Ottenwarde enjoys that status is
largely negated by the fact that even were he to
6
be a lawful permanent resident he is still
deportable
because
the
instant
crime
of
conviction is a controlled substance offense that
triggers automatic deportation.
See 8 U.S.C.
§ 1227(a).
(Defendant’s Submission (“Def.’s Sub.”) at 1, n.1.)
In seeking
a sentence of time served, defense counsel noted that Ottenwarde
had “already served almost the maximum guideline sentence and
faces certain deportation following his release from prison.”
(Def.’s Sub. at 2.)
The parties appeared before this Court for sentencing on
March 11, 2011.
Defense counsel noted Ottenwarde’s objection to
Paragraph 46 of the Presentence Investigation Report.
(Transcript of Sentencing Hearing on March 11, 2011 (“Sentencing
Tr.”) at 3.)
That paragraph stated that Ottenwarde did not have
legal status; defense counsel stated that it was “our
understanding” that Ottenwarde had legal status due to his
marriage.
(Sentencing Tr. at 3.)
Defense counsel further
stated that Ottenwarde was a citizen of the Dominican Republic.
(Sentencing Tr. at 3.)
The Court found that Ottenwarde fell
within Criminal History Category II, and with an offense level
of 13, faced a sentencing guidelines range of fifteen to twentyone months’ imprisonment.
(Sentencing Tr. at 6.)
The Court
sentenced Ottenwarde to time served--which amounted to
approximately eighteen months’ imprisonment--and a term of three
years’ supervised release.
(Sentencing Tr. at 8.)
7
The Court
further ordered that Ottenwarde pay $1,800 in forfeiture, as
well as a $100 special assessment.
(Sentencing Tr. at 9-10.)
The Court confirmed that Ottenwarde had waived his right to
appeal as part of the Plea Agreement.
(Sentencing Tr. at 10.)
The Court nonetheless advised Ottenwarde that a notice of appeal
must be filed within fourteen days after the entry of the
judgment of conviction.
(Sentencing Tr. at 10.)
confirmed that he understood.
Ottenwarde
(Sentencing Tr. at 11.)
The
judgment of conviction was entered on March 14, 2011.
On March 28, 2012, Ottenwarde was arrested by the
Department of Homeland Security (“DHS”) and detained in DHS
custody where he remains.
A hearing on his immigration status
took place on December 17, 2012.
On June 26, 2012, Ottenwarde sought to file a direct
appeal.
On June 28, 2012, this Court found that Ottenwarde’s
appeal was untimely because it was filed “well beyond the
thirty-day grace period.”
See Order dated June 28, 2012.
On or
about August 27, 2012, Ottenwarde filed the present petition.
II.
The present petition is styled as a petition pursuant to
28 U.S.C. § 2255, yet seeks relief under various forms.
However, regardless of whether it is construed as a direct
appeal, a petition under 28 U.S.C. § 2241, a petition under
8
28 U.S.C. § 2255, or a petition for a writ of error coram nobis,
the present petition is defective.
A.
The present petition cannot properly be construed as a
direct appeal.
As confirmed during his sentencing, under the
terms of the Plea Agreement Ottenwarde waived his right to
appeal on the basis of any adverse immigration consequences.
(Plea Agr. at 5; Sent. Tr. at 10-11.)
Furthermore, after being
sentenced in March 2011, Ottenwarde never filed a notice of
appeal.
Ottenwarde attempted to file what was deemed an appeal
See Order
in June 2012, which this Court rejected as untimely.
dated June 28, 2012; Fed. R. App. P. 4(b)(1)(A) (providing that
a criminal defendant must file a notice of appeal within
fourteen days of the “entry of either the judgment or the order
being appealed”).
The present petition, therefore, cannot
reasonably be construed as a direct appeal.
B.
Nor is Ottenwarde entitled to habeas relief under either
28 U.S.C. § 2241 or 28 U.S.C. § 2255.
Under the terms of the
Plea Agreement, Ottenwarde waived his right to litigate under
28 U.S.C. §§ 2255 and 2241 on the basis of any adverse
immigration consequences.
(Plea Agr. at 5.)
9
Furthermore, the Second Circuit Court of Appeals has
observed that “[a] motion pursuant to § 2241 generally
challenges the execution of a federal prisoner’s sentence,”
while Ҥ 2255 is generally the proper vehicle for a federal
prisoner’s challenge to his conviction and sentence.”
Jiminian
v. Nash, 245 F.3d 144, 146-47 (2d Cir. 2001) (citations
omitted).
“[A]s a general rule, federal prisoners must use
§ 2255 instead of § 2241[] to challenge a sentence as violating
the Constitution or laws of the United States.”
Id. at 147
(citing Triestman v. United States, 124 F.3d 361, 373 (2d Cir.
1997); see also Cephas v. Nash, 328 F.3d 98, 103 (2d Cir. 2003).
Here, Ottenwarde is not challenging the way his sentence is
being administered, but rather the constitutionality of his
conviction and sentence.
Thus, the Court will consider the
present petition under Section 2255 rather than Section 2241.
The Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) imposes a one-year statute of limitations on an
application for a writ of habeas corpus under Section 2255.
28 U.S.C. § 2255(f).
The limitations period for such a claim
begins to run from the date on which the judgment of conviction
becomes final.
Because Ottenwarde did not file a timely direct
appeal, the judgment of conviction in this case became final
fourteen days after its entry on March 14, 2011.
See Order
dated June 28, 2012; Fed. R. App. P. 4(b)(1)(A).
Ottenwarde
10
filed the present petition on or about August 27, 2012, well
after the applicable one-year limitations period had ended.
28 U.S.C. § 2255(f).
See
Therefore, the present petition is time-
barred under Section 2255.
To the extent that Ottenwarde attempts to argue that
equitable tolling can be used to avoid the bar of the statute of
limitations in this case, there is no merit to that argument.
Equitable tolling is only appropriate in “rare and exceptional
circumstances” where, despite a petitioner’s reasonable
diligence, “extraordinary circumstances beyond [the
petitioner’s] control prevented successful filing during [the
Baldayaque v. United States, 338 F.3d 145, 151
required] time.”
(2d Cir. 2003) (quoting Smaldone v. Senkowski, 273 F.3d 133, 138
(2d Cir. 2001)) (internal quotation marks omitted).
In this case, there were no exceptional or extraordinary
circumstances.
Ottenwarde was aware of the immigration
consequences of his plea from the time it was made, and he was
aware of his defense counsel’s representations as to those
immigration consequences.
There was nothing that prevented
Ottenwarde from seeking post-conviction relief, except his own
agreement in the Plea Agreement not to pursue that relief.
Similarly, Ottenwarde cannot rely on Section 2255(f)(4),
which provides that the one-year limitations period shall run
from “the date on which the facts supporting the claim or claims
11
presented could have been discovered through the exercise of due
diligence.”
28 U.S.C. § 2255(f)(4).
Any challenge to the
effectiveness of Ottenwarde’s defense counsel could have been
raised at any time after the plea allocution.
C.
Moreover, Ottenwarde is not entitled to relief pursuant to
a writ of error coram nobis.
“Coram nobis is essentially a
remedy of last resort for petitioners who are no longer in
custody pursuant to a criminal conviction and therefore cannot
pursue direct review or collateral relief by means of a writ of
habeas corpus.”
Fleming v. United States, 146 F.3d 88, 89-90
(2d Cir. 1998) (per curiam).
A writ of error coram nobis is
only available to a petitioner who is no longer in custody
pursuant to the sentence he seeks to attack.
See Cisse v.
United States, 330 F. Supp. 2d 336, 340 (S.D.N.Y. 2004).
A
petitioner serving a term of supervised release is considered to
be “in custody” for purposes of 28 U.S.C. § 2255.
See Scanio v.
United States, 37 F.3d 858, 860 (2d Cir. 1994).
Here, Ottenwarde is currently serving a three-year term of
supervised release which was imposed as part of his sentence.
Because Ottenwarde is still “in custody” for purposes of Section
2255, a writ of error coram nobis is not available to Ottenwarde
at this time.
12
III.
In any event, the petition is without merit.
Ottenwarde
alleges that his defense counsel was ineffective by advising him
that he would not be deported if he pleaded guilty.
To
establish a claim of ineffective assistance of counsel, the
petitioner must show both that: (1) his counsel’s performance
was deficient in that it was objectively unreasonable under
professional standards prevailing at the time, and (2) that his
counsel’s deficient performance was prejudicial to his case.
See Strickland v. Washington, 466 U.S. 668, 687 (1984); Bunkley
v. Meachum, 68 F.3d 1518, 1521 (2d Cir. 1995).
The petitioner cannot meet the first prong of this test
merely by showing that his counsel employed poor strategy or
made a wrong decision.
Instead, the defendant must show that
“counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed . . . by the Sixth Amendment.”
Strickland, 466 U.S. at 687.
In fact, there is a “strong
presumption” that defense counsel’s performance fell within the
wide range of reasonable professional assistance, and “the
defendant bears the burden of proving that counsel’s
representation was unreasonable under prevailing professional
norms and that the challenged action was not sound strategy.”
13
Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (citing
Strickland, 466 U.S. at 688-89).
To meet the second prong of the Strickland test, the
petitioner must show that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.
A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.”
Strickland, 466 U.S. at 694.
Where a defendant
challenges a guilty plea on the basis of alleged ineffective
assistance of counsel, “the defendant must show that ‘there is a
reasonable probability that, but for counsel’s errors, [the
defendant] would not have pleaded guilty and would have insisted
on going to trial.’”
United States v. Hernandez, 242 F.3d 110,
112 (2d Cir. 2001) (per curiam) (quoting Hill v. Lockhart, 474
U.S. 52, 59 (1985)).
In the context of sentencing, the
petitioner must show that but for counsel’s ineffectiveness,
there is a reasonable probability that the sentence imposed
would have been different.
See United States v. Workman, 110
F.3d 915, 920 (2d Cir. 1997).
In this case, Ottenwarde primarily alleges that his defense
counsel misrepresented the immigration consequences of
Ottenwarde’s guilty plea and thereby rendered ineffective
assistance under Padilla v. Kentucky, 130 S. Ct. 1473 (2010).
In support of his claim, Ottenwarde does not submit any evidence
14
other than his own assertion that his counsel assured him he
would not be deported if he pleaded guilty.
However, the
evidence in the record refutes the allegation that Ottenwarde’s
defense counsel misrepresented the immigration consequences of
Ottenwarde’s guilty plea.
During his plea allocution,
Ottenwarde repeatedly confirmed that he understood his
conviction could be used to remove him from the United States.
(Plea Tr. at 19-20.)
Ottenwarde also confirmed that he had
spoken with his counsel about the immigration consequences of
his plea.
(Plea Tr. at 19.)
When there appeared to be
confusion on the nature of these discussions, defense counsel
clarified that he had advised Ottenwarde that this Court did not
have jurisdiction to make the deportation determination, but had
“informed Mr. Ottenwarde that, and I am confident he
understands, that under the immigration law there is a very high
probability, I expressed it as ‘certainty’ that this has the
potential of being the basis of deportation.”
(Plea Tr. at 19.)
The Court asked Ottenwarde if he agreed with defense counsel’s
statement, to which Ottenwarde responded, “Yes, I understand.”
(Plea Tr. at 19-20.)
These statements belie Ottenwarde’s
allegations that his counsel previously represented to him that
he would not be deported.
A defendant cannot disavow his sworn
statements made at his plea allocution by making conclusory
allegations in the course of a subsequent challenge to the
15
conviction or sentence.
See Blackledge v. Allison, 431 U.S. 63,
74 (1977) (a defendant’s sworn statements made at his plea
allocution “carry a strong presumption of verity”); United
States v. Gonzalez, 970 F.2d 1095, 1101 (2d Cir. 1992) (such
statements are conclusive absent a credible reason for departing
from them).
No evidentiary hearing is necessary on the basis of
unsupported allegations that merely contradict sworn statements
made earlier at a plea allocution.
Gonzalez, 970 F.2d at 1101.
Moreover, Ottenwarde fails to present any evidence showing
that he was prejudiced by any alleged advice from defense
counsel concerning the immigration consequences of his guilty
plea.
The evidence in the record makes clear that Ottenwarde
was aware of the possible immigration consequences of his plea
prior to the imposition of his sentence.
The Plea Agreement
itself, which Ottenwarde confirmed he fully understood (Plea Tr.
at 23), advised Ottenwarde that his “guilty plea and conviction
make it very likely that his deportation from the United States
is presumptively mandatory and that, at a minimum, he is at risk
of being deported or suffering other adverse immigration
consequences.”
(Plea Agr. at 5.)
In addition, Ottenwarde
repeatedly confirmed at his plea allocution that he understood
his conviction could be used to remove him from the United
States.
(Plea Tr. at 19-20.)
Nevertheless, Ottenwarde did not
make any request to withdraw his guilty plea.
16
Therefore,
Ottenwarde has failed to establish a reasonable probability that
he would have insisted on going to trial if he had received any
allegedly different advice from defense counsel prior to his
guilty plea.
Because Ottenwarde has failed to show that his
counsel’s representation was objectively unreasonable or that he
suffered any prejudice, his claim for ineffective assistance of
counsel does not satisfy the Strickland test.
Ottenwarde also has not demonstrated prejudice regarding
his counsel’s alleged failure to negotiate a hypothetical plea
bargain that would have spared Ottenwarde from deportation.
There is no evidence to suggest that the Government would have
entered into a plea agreement that would have spared Ottenwarde
from adverse immigration consequences.
Convictions for drug
trafficking offenses are treated as “aggravated felonies” under
immigration law, see 8 U.S.C. § 1101(a)(43)(B), thereby
disqualifying the defendant for waiver or cancellation of
removal under 8 U.S.C. §§ 1182(h) and 1229b(a).
While
Ottenwarde contends that there was insufficient evidence of his
guilt, during his plea allocution Ottenwarde himself admitted to
conspiracy to distribute and possess with intent to distribute
50 grams of cocaine.
(Plea Tr. at 26.)
Given that Ottenwarde
admitted to engaging in a drug trafficking crime, there is no
reason to believe that the Government would have entered into a
plea agreement involving an offense that would have allowed
17
Ottenwarde to avoid an “aggravated felony” conviction under the
immigration laws.
In fact, the evidence in the record demonstrates that
Ottenwarde’s defense counsel did negotiate a favorable plea
agreement for Ottenwarde.
Ottenwarde was charged with the
offense of conspiracy to distribute and possess with intent to
distribute 500 grams or more of mixtures and substances
containing a detectable amount of cocaine, in violation of
21 U.S.C. §§ 846, 812, 841(a)(1), and 841(b)(1)(B), which
carries a penalty of a maximum sentence of forty years’
imprisonment and a mandatory minimum sentence of five years’
imprisonment.
Under the terms of the Plea Agreement, however,
the Government agreed that Ottenwarde could plead guilty to an
offense involving a lower quantity of cocaine, in violation of
21 U.S.C. §§ 846, 812, 841(a)(1), and 841(b)(1)(C).
at 1, n.1.)
(Plea Agr.
The penalty that could be imposed for that plea was
a maximum sentence of twenty years’ imprisonment and no
mandatory minimum sentence of imprisonment.
The Plea Agreement
ultimately resulted in a sentence of time served, amounting to
approximately eighteen months’ imprisonment, and a term of three
years’ supervised release.
(Sentencing Tr. at 8.)
Thus, the
Plea Agreement negotiated by Ottenwarde’s defense counsel was
plainly a favorable plea agreement for Ottenwarde.
18
Additionally, had Ottenwarde proceeded to trial, the
Government could have filed a prior felony information based on
Ottenwarde’s 2004 felony conviction for possession with intent
to distribute cocaine.
(PSR at ¶¶ 35-36.)
The filing of that
information would have resulted in Ottenwarde facing a maximum
sentence of life imprisonment and a mandatory minimum sentence
of ten years’ imprisonment.
See 21 U.S.C. § 841(b)(1)(B).
Ottenwarde has not credibly shown that, facing these
circumstances, he would have proceeded to trial.
In sum,
Ottenwarde has failed to establish a reasonable probability
that, but for his counsel’s alleged ineffectiveness, “the result
of the proceeding would have been different.”
Strickland, 466
U.S. at 694.
CONCLUSION
The Court has considered all of the arguments of the
parties.
To the extent not specifically addressed above, the
remaining arguments are either moot or without merit.
For the
foregoing reasons, the petitioner’s motion is denied.
The Court
declines to issue a certificate of appealability because the
petitioner has failed to make a substantial showing of the
denial of a constitutional right pursuant to 28 U.S.C.
19
§ 2253(c)(2).
The Clerk is directed to enter judgment and to
close this case.
SO ORDERED.
Dated:
New York, New York
March 28, 2013
__/s/________________________
John G. Koeltl
United States District Judge
20
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