King v. USA

Filing 26

MEMORANDUM OPINION AND ORDER: Michael Schachter, Michael Handwerker, and Alice Fontier are directed to provide affidavits setting forth any factual information in response to the petitioner's allegations. The affidavits should be submitted by September 30, 2016. Ms. King may submit any response by October 21, 2016. (Signed by Judge John G. Koeltl on 9/6/2016) (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
__________________________________
MELISSA G. KING,
Petitioner,
14-cv-7962 (JGK)
- against MEMORANDUM OPINION AND
ORDER

UNITED STATES OF AMERICA,
Respondent.
__________________________________
JOHN G. KOELTL, District Judge:

Melissa King has filed a motion pursuant to 28 U.S.C. §
2255 in which she seeks to vacate the judgment of conviction
against her on the grounds, among others, that her guilty plea
was not knowing and voluntary, that she was provided ineffective
assistance of counsel for numerous reasons both in connection
with her guilty plea and in connection with her alleged desire
to withdraw her plea, and that she was denied the right to file
an appeal. The full description of the grounds are contained in
the 290-page motion filed on September 30, 2014 and in the reply
papers filed on July 1, 2015, including in the 115-page
Memorandum in Support of the Reply.
The Government has suggested at page 29 of its response
that, if the Court has any questions, it should require Ms.
Kings’s attorney to submit an affidavit providing further
details with respect to Ms. King’s claims. The petitioner does
not appear to oppose the suggestion. In her Reply Memorandum,
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the petitioner requests the Court to consider expanding the
record without a hearing, as the Government suggests, if the
Court could not otherwise grant the petition, although the
petitioner suggests that, in addition to the petitioner’s courtappointed attorneys, the Court ask for affidavits from the
prosecutors, the case agents, and the civil attorney for the
Local 147 Trustees.
It is unnecessary to expand the record at this time beyond
the affidavits to be submitted by Ms. King’s court-appointed
attorneys. It is well established that when an attorney is
accused of ineffective assistance of counsel, the attorney
should have a right to respond. See, e.g., Sparman v. Edwards,
154 F.3d 51, 52 (2d Cir. 1998) (per curiam); Davis v. United
States, No. 13 CIV. 5400 RMB, 2015 WL 4111311, at *3 (S.D.N.Y.
June 26, 2015); Marcus v. United States, No. 14-CV-5780 ARR,
2015 WL 3869689, at *8 (E.D.N.Y. June 22, 2015).

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Michael Schachter, Michael Handwerker, and Alice Fontier
are directed to provide affidavits setting forth any factual
information in response to the petitioner’s allegations. The
affidavits should be submitted by September 30, 2016. Ms. King
may submit any response by October 21, 2016.
SO ORDERED.
Dated:

New York, New York
September 6, 2016

_____________/s/_______________
John G. Koeltl
United States District Judge

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