Puglisi v. United States, No. 04-4834 (2d Cir. 2009)

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04-4834-pr Puglisi v. United States 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: November 24, 2008 Decided: November 13, 2009) Docket No. 04-4834-pr - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - FREDERICK PUGLISI, Petitioner-Appellant, v. UNITED STATES OF AMERICA Respondent-Appellee. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B e f o r e: WINTER, WALKER, and CALABRESI, Circuit Judges. Appeal from a denial by the United States District Court for 28 the Eastern District of New York (Joanna Seybert, Judge) of a 28 29 U.S.C. § 2255 motion to vacate conviction and sentence due to 30 ineffective assistance of counsel. 31 appropriate given that appellant failed to produce or identify 32 evidence of actual prejudice. We hold that denial was We therefore affirm. 33 1 1 2 3 4 5 6 7 8 9 10 11 12 13 CHERYL J. STURM, Chadds Ford, Pennsylvania, for Petitioner-Appellant. JO ANN M. NAVICKAS, Assistant United States Attorney (Benton J. Campbell, United States Attorney, Peter A. Norling, Assistant United States Attorney, of counsel, on the brief), United States Attorney s Office for the Eastern District of New York, Brooklyn, New York, for Respondent-Appellee. WINTER, Circuit Judge: 14 Frederick Puglisi appeals from Judge Seybert s order denying 15 his 28 U.S.C. § 2255 motion to vacate his conviction and sentence 16 due to ineffective assistance of counsel. 17 motion was a claim that appellant s trial counsel misinformed him 18 as to whether the district court could consider conduct for which 19 he had not been convicted in determining his sentence. 20 argued in supporting papers that appellant relied on such 21 misinformation in rejecting a plea agreement offered by the 22 government. 23 to establish that he was actually prejudiced by the alleged 24 misinformation and denied the motion without holding an 25 evidentiary hearing. 26 district court erred in denying his motion without first holding 27 a hearing. 28 The basis for the It was The district court concluded that appellant failed On appeal, appellant contends that the We affirm. 29 2 1 2 BACKGROUND Appellant was tried with co-defendants Silverio Romano and 3 Anthony Basile. Appellant had been charged with a myriad of 4 crimes, many quite serious: 5 racketeering conspiracy, id. § 1962(d), murder and conspiracy to 6 kidnap and murder in order to increase or maintain position in 7 the racketeering enterprise, id. § 1959(a)(1) & (5), conspiracy 8 to possess with intent to distribute cocaine and marijuana, 21 9 U.S.C. §§ 846, 841(a)(1), possession with intent to distribute racketeering, 18 U.S.C. § 1962(c), 10 marijuana, id. § 841(a)(1), use of a communication device to 11 facilitate narcotics offenses, id. § 843(b), use and possession 12 of firearms in relation to crimes of violence and drug 13 trafficking crimes, 18 U.S.C. § 924(c)(1), and receiving or 14 possessing defaced firearms, id. § 922(k). 15 after a four and one-half month trial and seventeen days of 16 deliberation, the jury convicted appellant of racketeering, 17 racketeering conspiracy, conspiracy to possess with intent to 18 distribute marijuana, possession with intent to distribute 19 marijuana, and the use of a communication device to facilitate a 20 narcotics transaction. 21 to the remaining charges. 22 On February 14, 1995, The jury could not agree on a verdict as After several adjournments to allow present counsel, who was 23 retained after the trial but before sentencing, to supplement 24 trial counsel s sentencing submissions with her own, the court 3 1 held a series of sentence-related hearings in March and April of 2 1997. 3 25, 1997, appellant was represented both by trial counsel and 4 present counsel. 5 claim, obliquely raised for the first time in an out-of-time 6 submission two days prior, that appellant was entitled to a 7 sentence reduction for acceptance of responsibility. 8 argument was that trial counsel had misinformed appellant as to 9 the court s power to consider at sentencing conduct that was not At the beginning of the final sentencing hearing on April At that hearing, present counsel pressed a Her 10 the subject of conviction. 11 went, caused appellant to fail to plead guilty, thereby losing a 12 reduction in sentence for acceptance of responsibility. 13 Sentencing Guidelines ( U.S.S.G. ) § 3E1.1 (1991). 14 government immediately countered that it could disprove the 15 factual basis of the argument -- that it was an outrageous 16 claim and utterly and completely false. 17 Trans., Apr. 25, 1997 ( Trans. ), at 42, 45. 18 That misinformation, the argument See U.S. The Puglisi Sentencing The court inquired of trial counsel as to their position on 19 this issue, but they demurred on the ground of attorney-client 20 privilege. 21 blocking the court s inquiry. 22 counsel for appellant. 23 24 Present counsel then invoked the privilege, thereby Trial counsel moved to withdraw as The court offered appellant s present counsel an opportunity to present evidence on the issue. 4 Counsel declined. Rather, she 1 responded that before pressing appellant s claim at an 2 evidentiary hearing, she needed to speak with possible witnesses 3 who were alleged to have overheard statements by trial counsel 4 after the verdict. 5 new point well after the scheduled deadline and without adequate 6 preparation, the judge then granted trial counsel s motion to 7 withdraw and decided to proceed with the scheduled sentencing, 8 leaving the advice-of-trial-counsel issues to later proceedings. 9 After chiding present counsel for raising a Appellant then addressed the court. He stated that he never 10 wanted to go to trial but that [t]he circumstances dragged me to 11 trial. 12 have cooperated with the government but that there were people 13 involved in the case that were killing witnesses. 14 He noted that if he had cooperated, his brother and brother-in- 15 law would lose their established businesses on Staten Island and 16 have to move, thereby ruin[ing] their lives and destroy[ing] 17 their livelihood. 18 Trans. at 76. He said that he felt that [he] should Trans. at 77. Id. The district court sentenced appellant to life imprisonment. 19 The court based its sentence on a total offense level of 42, 20 which warranted a range from 360 months to life, and imposed the 21 highest term in the range after considering appellant s role in 22 the attempted murders and a murder, charges on which the jury had 23 reached a hung verdict. 24 Appellant appealed, making several claims, one of which is 5 1 relevant to the present proceeding: 2 responsibility reduction in sentence because of constitutionally 3 ineffective assistance of trial counsel. 4 Silvestri, Nos. 97-1430, 97-1439, 1998 WL 777763, at *3 (2d Cir. 5 Oct. 29, 1998). 6 but declined to rule on his ineffective assistance of counsel 7 claim due to the sparse record. 8 9 loss of the acceptance of See United States v. We affirmed appellant s conviction and sentence Id. On October 26, 1999, appellant timely filed the present motion under 28 U.S.C. § 2255. The motion raised a number of 10 claims, only one of which is before us: trial counsel s failure 11 to provide effective assistance in rendering pre-trial advice. 12 The memorandum of law accompanying the motion deviated in one 13 respect from the earlier claim on direct appeal concerning the 14 alleged erroneous advice. 15 was not simply the loss of the acceptance of responsibility 16 reduction but rather the failure to accept a plea bargain offered 17 by the government. 18 conviction, or in the alternative, that the sentence be vacated. 19 No details were provided as to the plea bargain offered by the 20 government. 21 support of the motion, the former adopting counsel s statements 22 of facts as set forth in the motion and memorandum of law and the 23 latter stating in relevant part that he had been misinformed by 24 trial counsel in the manner noted above. The harm now alleged to have occurred The relief sought was the reversal of Appellant filed a declaration and an affidavit in 6 1 On November 2, 1999, the district court ordered the 2 government to show cause why appellant s petition should not be 3 granted. 4 traverse were filed, the government wrote to the court requesting 5 that it issue an order directing appellant s counsel to provide 6 more detailed facts to enable the government to provide the court 7 with attorney affirmations that would respond to appellant s 8 allegations. 9 evidentiary hearing was the appropriate vehicle. After both the government s reply and appellant s Present counsel replied, suggesting that an Thereafter, 10 without a hearing, the district court issued an order denying the 11 petition. 12 is the subject of this appeal, the district court concluded that 13 the appellant had failed to establish that counsel s alleged 14 misinformation prejudiced the outcome of his case because (i) he 15 had persisted in his claims of innocence, (ii) he had exhibited 16 no intent to accept any offered plea agreement, and (iii) even 17 assuming that he would have accepted a plea offer, he remained 18 subject to the court s consideration of any acquitted charges at 19 sentencing. 20 As to the ineffective assistance of counsel claim that On February 28, 2009, we granted appellant a certificate of 21 appealability with respect to the ineffective assistance of 22 counsel claim relating to his rejection of a plea offer. 23 24 DISCUSSION Appellant s claim on appeal is that the district court erred 7 1 by not holding an evidentiary hearing on the ineffective 2 assistance of counsel claim asserted in his motion and presumably 3 (it is not explicitly argued) that he is entitled to the sentence 4 that he could have received had he accepted a plea agreement. 5 Under Section 2255 of Title 28, United States Code, a 6 federal prisoner may move the sentencing court to vacate, set 7 aside, or correct the sentence on the ground that such sentence 8 was illegally imposed. 9 provides that [u]nless the motion and the files and records of 10 the case conclusively show that the prisoner is entitled to no 11 relief, the court shall . . . grant a prompt hearing thereon, 12 determine the issues and make findings of fact and conclusions of 13 law with respect thereto. 14 hearing on an ineffective assistance of counsel claim, the 15 defendant need establish only that he has a plausible claim of 16 ineffective assistance of counsel, not that he will necessarily 17 succeed on the claim. 18 823 (2d Cir. 2000) (quoting United States v. Tarricone, 996 F.2d 19 1414, 1418 (2d Cir. 1993)). 20 § 2255 Proceedings further provides that [i]f it plainly appears 21 from the motion, any attached exhibits, and the record of prior 22 proceedings that the moving party is not entitled to relief, the 23 judge must dismiss the motion. 24 Proceedings for the United States District Courts, Rule 4(b), 28 28 U.S.C. § 2255(a). The statute further 28 U.S.C. § 2255(b). To warrant a Armienti v. United States, 234 F.3d 820, Rule 4(b) of the Rules Governing Rules Governing § 2255 8 1 2 U.S.C. foll. § 2255. The procedure for determining whether a hearing is necessary 3 is in part analogous to, but in part different from, a summary 4 judgment proceeding. 5 her legal and factual claims, accompanied by relevant exhibits: 6 e.g., an affidavit from the petitioner or others asserting 7 relevant facts within their personal knowledge and/or identifying 8 other sources of relevant evidence. 9 2255 Proceedings, Rules 2, 4(b), with Fed. R. Civ. P. 56(a)-(c); The petitioner s motion sets forth his or Compare Rules Governing § 10 see also Blackledge v. Allison, 431 U.S. 63, 80-83 (1977). The 11 district court reviews those materials and relevant portions of 12 the record in the underlying criminal proceeding. 13 Governing § 2255 Proceedings, Rules 4(b), 8(a) with Fed. R. Civ. 14 P. 56(c). 15 evidentiary proffers, where credible, and record in the light 16 most favorable to the petitioner, the petitioner, who has the 17 burden, may be able to establish at a hearing a prima facie case 18 for relief. 19 usually be held, and relevant findings of facts made. 20 Armienti, 234 F.3d at 825 (remanding for a hearing where 21 appellant alleged several specified instances of attorney s 22 deficiencies that were product of specific conflict of interest), 23 United States v. Aiello, 814 F.2d 109, 113 (2d Cir. 1987) 24 (holding that hearing is appropriate when application includes Compare Rules The court then determines whether, viewing the If material facts are in dispute, a hearing should 9 Compare 1 assertions of fact that a petitioner is in a position to 2 establish by competent evidence ), and Newfield v. United States, 3 565 F.2d 203, 207 (2d Cir. 1977) (a motion supported by a 4 sufficient affidavit including detailed and controverted issues 5 of fact warrants a hearing, but bald allegations unsupported by 6 evidentiary facts do not), with Anderson v. Liberty Lobby, Inc., 7 477 U.S. 242, 255 (1986) (requiring plaintiff present evidence 8 from which a jury might return a favorable verdict in order to 9 have survived summary judgment requirement that he provide a 10 11 genuine issue of fact for trial). The analogy to summary judgment is not complete, however. 12 There is no pre-motion discovery in a Section 2255 case, as there 13 is in summary judgment proceedings in a civil case. 14 petitioner may need only to identify available sources of 15 relevant evidence rather than obtain it as in civil cases or seek 16 a discovery order from the court under Rule 6 of the Rules 17 Governing Section 2255 Proceedings. 18 § 2255 Proceedings, Rules 4(b), 6(a) (discovery requires leave of 19 court), and Armienti, 234 F.3d at 823 with Fed. R. Civ. P. 56, 20 and Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir. 2008). 21 Therefore, a Compare Rules Governing Moreover, a district court need not assume the credibility 22 of factual assertions, as it would in civil cases, where the 23 assertions are contradicted by the record in the underlying 24 proceeding. Compare Contino v. United States, 535 F.3d 124, 127- 10 1 28 (2d Cir. 2008) (per curiam) (defendant failed to make a 2 substantial showing that his plea was not voluntary or 3 intelligent or that he received ineffective assistance of counsel 4 where it was clear from the record, including the indictment, the 5 signed plea agreement, and the allocution at the plea proceeding 6 that he understood the nature of charges against him), Zhang v. 7 United States, 506 F.3d 162, 164, 169 (2d Cir. 2007) (defendant s 8 claim that his guilty plea was involuntary because he was unaware 9 of the deportation consequences was insufficient where the judge 10 at the plea allocution put defendant on notice of the 11 consequences), Frederick v. Warden, Lewisburg Corr. Facility, 308 12 F.3d 192, 193, 196-98 (2d Cir. 2002) (defendant s claim that he 13 received ineffective assistance of counsel because he did not 14 know the nature of the charges was insufficient where the 15 proceedings at the guilty plea hearing and the plea agreement 16 showed otherwise), Newfield, 565 F.2d at 208 (defendant was not 17 entitled to a hearing on his claims of incompetency at the time 18 of trial where there was no assertion of new information and the 19 trial judge reviewing the petition had ample opportunity to 20 observe the appellant s demeanor and behavior in the courtroom ), 21 and Accardi v. United States, 379 F.2d 312, 313 (2d Cir. 1967) 22 (per curiam) (defendant was not entitled to a hearing where he 23 claimed he was unable to understand the charges against him due 24 to his poor English language skills and that he was incompetent 11 1 at the time of trial where the trial judge reviewing the petition 2 was familiar with the facts, the record showed that defendant did 3 not need an interpreter and had discussions with his trial 4 attorney in English, and there was no proof of the claimed 5 medical condition), with Cioffi v. Averill Park Cert. Sch. Dist. 6 Bd. of Ed., 444 F.3d 158, 162 (2d Cir. 2006) (when deciding a 7 summary judgment motion in a civil case, all factual ambiguities 8 must be resolved in the non-moving party s favor and the court 9 may not weigh the evidence, but rather must only determine 10 11 whether a genuine issue of fact exists for trial). Indeed, for this reason, we have also held that when the 12 judge that tried the underlying proceedings also presides over 13 the Section 2255 motion, a less-than full-fledged evidentiary 14 hearing may permissibly dispose of claims where the credibility 15 assessment would inevitably be adverse to the petitioner. 16 For example, we have so held in a case in which a petitioner 17 raised a claim generic to all defendants who have not taken the 18 stand in their defense at trial, namely, that trial counsel 19 prohibited him from taking the stand. 20 250 F.3d 79, 84-86 (2d Cir. 2001). 21 did not hold a full hearing. 22 trial counsel to respond to the claim. 23 submitted a detailed affidavit contradicting the claim that the 24 petitioner was not advised of his right to testify, detailing Chang v. United States, In Chang, the district court Id. at 81-82. 12 Rather, it invited Id. at 81. Trial counsel 1 conversations between counsel and the petitioner about the 2 advisability of testifying, and explaining why they agreed that 3 it was inadvisable for the petitioner to testify. 4 We affirmed on the ground that a sufficient hearing had been held 5 to reject the claim. 6 Id. at 81-82. Id. at 85-86. We held that in cases involving claims that can be, and 7 [are] often, made in any case, the judge may properly rely on 8 his or her knowledge of the record and may permissibly forgo a 9 full hearing and instead request letters, documentary evidence, 10 and affidavits to aid in its resolution of the claim. 11 The trial judge is intimately familiar with the proceedings and 12 the surrounding circumstances. 13 position, based on the knowledge gained in the underlying 14 criminal proceeding and on his or her role as a trier of fact in 15 the habeas proceeding, to hold that the particular petitioner had 16 no chance of overcoming counsel s detailed explanation and 17 proving that counsel prohibited testimony in his or her defense. 18 Id. 19 the benefit of any supplemental materials and a full hearing with 20 live witnesses - avoid[s] the delay, the needless expenditure 21 of judicial resources, [and] the burden on trial counsel and the 22 government. 23 24 Id. at 86. The trial judge is also in a The intermediate step - between deciding the motion without Id. Finally, our standard of review with respect to a district court s decision to hold a hearing and if held, its sufficiency, 13 1 also differs from summary judgment s general de novo review. See 2 Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 107 (2d 3 Cir. 2008). 4 case holds a limited hearing to decide a generic claim, the 5 determination of whether the hearing was sufficient is reviewed 6 for an abuse of discretion. 7 the present case, in which the district court denied any form of 8 an evidentiary hearing, our review of the district court s denial 9 of a hearing is for clear error as to issues of fact, such as a In some cases, such as where the judge who tried the Chang, 250 F.3d at 82, 85-86. In 10 district court s determination that the record precludes the 11 claim, and de novo for issues of law. 12 367 F.3d 74, 79 (2d Cir. 2004); Chang, 250 F.3d at 82. 13 petitioner s claim of ineffective assistance of counsel is a 14 question of mixed fact and law, our review is de novo. 15 v. United States, 317 F.3d 178, 182 (2d Cir. 2003); Chang, 250 16 F.3d at 82. We turn now to the merits. 17 Harris v. United States, Because See Pham To establish an ineffective assistance of counsel claim, a 18 defendant must satisfy two requirements. See Strickland v. 19 Washington, 466 U.S. 668, 687 (1984). 20 show that counsel s performance was deficient. 21 procedural posture of this appeal, we will assume the deficiency 22 of the advice allegedly given, although the record of the 23 sentencing hearing suggests that trial counsel would, if allowed, 24 dispute the claim. First, the defendant must Id. Given the Second, the defendant must show that the 14 1 deficient performance prejudiced the defense, that is, there is 2 a reasonable probability that, but for counsel s unprofessional 3 errors, the result of the proceeding below would have been 4 different. 5 the subject of the present appeal. 6 Id. at 694. This prong of the Strickland test is With respect to a claim that counsel s ineffective 7 assistance led to the rejection of a plea offer that, properly 8 informed, would have been accepted, a petitioner seeking a 9 hearing must proffer arguably credible evidence of a prima facie 10 case that, but for counsel s improper advice, the petitioner 11 would have accepted the plea offer. 12 F.3d 58, 63-64 (2d Cir. 2002). 13 the petitioner s own sworn statement if it is credible in light 14 of all the relevant circumstances. 15 194 F.3d 401, 407-08 (2d Cir. 1999) ( Though a claim that he 16 would have accepted the plea would be self-serving . . . , it 17 ought not to be rejected solely on this account. . . . 18 credibility determination should be based on all relevant 19 circumstances. (footnote omitted)); Dalli v. United States, 491 20 F.2d 758, 760 (2d Cir. 1974) ( [T]his court takes a dim view of 21 any summary rejection of a petition for post-conviction relief 22 when supported by a sufficient affidavit. 23 consistently with that pronouncement, recognized that a judge is 24 well within his discretion in denying a petition when the See Aeid v. Bennett, 296 This may be accomplished through 15 See Cullen v. United States, The But we have, 1 supporting affidavit is insufficient on its face to warrant a 2 hearing. (citations omitted)); see also Purdy v. Zeldes, 337 3 F.3d 253, 259 (2d Cir. 2003). 4 petitioner s statement is sufficiently credible to warrant a 5 hearing where it is accompanied by some objective evidence, 6 such as a significant sentencing disparity, that he or she would 7 have accepted the proposed plea offer if properly advised. 8 Pham, 317 F.3d at 182-83; United States v. Gordon, 156 F.3d 376, 9 380-81 (2d Cir. 1998) (per curiam). 10 Thus, we have found that a See Here, appellant has failed to shoulder his burden to 11 establish actual prejudice under Strickland. This is so for 12 several reasons. 13 failed to provide any statement that he would have accepted the 14 government s plea offer if properly advised. 15 submit an affidavit in support of his motion, he never stated 16 that he would have entered a plea had he received adequate legal 17 advice. 18 advised by my Lawyers that if the Jury was dead-locked on any 19 count(s), those count(s) could be use [sic] against me for 20 sentence. 21 Specifically, although represented by counsel on his § 2255 22 petition, appellant never states that he would have accepted a 23 particular plea offer had he known that the judge could consider 24 at sentencing conduct that was not the subject of a conviction. First, unlike the petitioner in Pham, appellant While appellant did Rather, his affidavit states as follows: I was never Puglisi Affidavit, Oct. 21, 1999, at ¶14. 16 1 This is so even though the district court had repeatedly 2 expressed its skepticism at sentencing with respect to this 3 particular claim. 4 hasn t accepted responsibility for the crimes for which he was 5 convicted of and I doubt if he ever will. ); id. at 61:11-14 6 ( Mr. Puglisi wanted to plead guilty on his terms. 7 guarantee that he would get no more than X amount of years. 8 chose to go to trial. 9 94:16-21 ( And I must say up until today you ve been respectful See, e.g., Trans. at 61:5-7 ( [The appellant] He wanted a He He didn t accept responsibility. ); id. at 10 of the Court. You ve never appeared to suborn perjury or 11 anything of that sort. 12 comes later on these other issues of acceptance of responsibility 13 is certainly something that I [have] no control over. ). And you didn t take the stand. What 14 Instead, the sole statement asserting this critical fact is 15 in the memorandum of law written by counsel and filed in support 16 of the Section 2255 motion. 17 the record or reference to the terms of any purported plea 18 agreement, If [appellant] had been made aware of all relevant 19 facts, he would have accepted the plea agreement offered by the 20 prosecution. 21 (E.D.N.Y. Oct. 26, 1999). 22 the equivalent of a statement by him because in a declaration 23 attached to the memorandum he stated, under penalty of perjury, 24 that he read the motion and memorandum carefully and [he] It states, without any citation to Memorandum of Law at 15, No. 9:99-cv-0689-JS Appellant argues that this sentence is 17 1 agree[s] with the facts set forth therein, and [he] adopt[s] 2 those statements of fact as [his] own. 3 Id. While the appellant did state that he adopted the statement 4 of facts of his lawyer as his own, we are not prepared to hold 5 that a petitioner s declaration adopting a memorandum of law 6 written by counsel renders a statement describing the 7 petitioner s intent a factual statement by the petitioner for 8 purposes of satisfying Strickland. 9 64 (failure to assert such intent was critical omission ); See, e.g., Aeid, 296 F.3d at 10 Gordon, 156 F.3d at 380. See also Kulhawik v. Holder, 571 F.3d 11 296, 298 (2d Cir. 2009) (per curiam) ( [a]n attorney s unsworn 12 statements in a brief are not evidence ). 13 reason to put such a statement in the memorandum of law while 14 omitting it from petitioner s affidavit. 15 memorandum, counsel could not have had personal knowledge of the 16 factual truth of the statement. 17 eight page brief written by counsel here, which was devoted 18 almost exclusively to legal argument on multiple claims 19 marshalled in kitchen-sink style, is fundamentally different from 20 swearing to particular statements made in one s own name. 21 Indeed, the adoption by a party of a brief in toto would be a 22 poor basis for a perjury prosecution. 23 generally aware of the distinction between fact and law and is 24 unlikely to challenge favorable statements that his or her lawyer There was no good In writing the Adopting wholesale the twenty- 18 A lay person is not 1 has written. To a lay person, a brief is lawyer-talk. Moreover, 2 a client is not likely to expect his or her lawyer to write 3 something that might expose the client to prosecution for 4 perjury. 5 We believe that a statement regarding intent must be 6 directly attributable to the habeas petitioner, whether it be 7 through sworn testimony in the main proceeding or by a sworn 8 affidavit in support of the motion. 9 Accardi, 379 F.2d at 313; cf. Herzog v. United States, 38 Fed. See Dalli, 491 F.2d at 760; 10 App x 672 (2d Cir. 2002) (summary order)(upholding district 11 court s denial of an evidentiary hearing on § 2255 motion in part 12 because defendant failed to state in his supporting affidavit 13 that he would have accepted the government s plea offer had he 14 been adequately advised); United States v. Perez Gomez, No. 15 3:98CR109 (JBA), 2003 WL 22119123, at *5-*6 (D. Conn. Aug. 29, 16 2003) (denying defendant s § 2255 motion without a hearing 17 because he made no assertion that he would have accepted the 18 government s plea offer had he known about it despite the 19 opportunity to make such assertion in numerous affidavits and pro 20 se filings). 21 opportunity to remedy this obvious evidentiary gap, the absence 22 of such a statement is particularly telling in the present 23 matter. 24 Given the assistance of counsel and ample Second, even assuming arguendo that counsel s statement 19 1 equates to a statement by the appellant as to his intent to 2 accept the government s plea offer, the appellant has failed to 3 proffer any objective evidence that he would have accepted the 4 plea offer had he received adequate pre-trial counseling. 5 mindful that a significant disparity between the sentencing 6 exposure in the plea offer and the actual sentence imposed at 7 trial would constitute objective evidence. 8 182 ( [A] significant sentencing disparity in combination with 9 defendant s statement of his intention [to accept the plea offer] 10 is sufficient to support a prejudice finding. ); id. at 183 ( We 11 have held that where the disparity in potential sentences is 12 great, a finder of fact may infer that defendants who profess 13 their innocence still will consider a plea. ); Gordon, 156 F.3d 14 at 381. 15 produced or identified evidence sufficient to show, or permit an 16 inference of, a significant disparity between the terms of a plea 17 offer and his ultimate sentence exposure after a trial 18 conviction. 19 We are See Pham, 317 F.3d at However, appellant in the present matter has not Although appellant s memorandum of law includes the blanket 20 assertion that Mr. Puglisi s position is supported by the huge 21 disparity between the sentence imposed, and the sentence under 22 the plea agreement, 23 appellant s affidavit is devoid of any factual specificity 24 regarding such an agreement, appellant s supposed understanding Memorandum of Law, Oct. 26, 1999, at 15, 20 1 of its terms, and whether it required cooperation. Cf. 2 Machibroda v. United States, 368 U.S. at 487, 489-90 (1962) 3 (petitioner s affidavit set out detailed factual allegations, 4 including a promised sentence of twenty years); Accardi, 379 F.2d 5 at 313. 6 memorandum provides any such details other than the conclusory 7 characterization of huge disparity. 8 present counsel represented the appellant, and first gave notice 9 of this agreement, at the sentencing hearing. Neither appellant s affidavit nor the sentencing This is so even though Despite filing 10 this motion over two years after the date of sentencing, no 11 objective evidence let alone one of a sentencing disparity was 12 proffered. 13 concerning the severity of the conduct at issue undermine any 14 assertion by the appellant that he would have received the 15 benefit of a lenient plea agreement. 16 ( This sentence is justified based on what you did, what others 17 did for you. 18 with violence, if you were truly fearful you had every 19 opportunity to walk away. This is not simply a case of just 20 being a marijuana dealer. You were armed. 21 consequences. 22 a just sentence, one that really reflects the seriousness of what 23 you have done no matter how you view it. ). 24 Moreover, the district court s numerous statements See Trans. at 94:5-15 It shows the drug business. If you were presented You knew the And I simply can t do anything less than give you Third, the record evidence undermines the appellant s 21 1 assertion that trial counsel s advice was a critical 2 consideration in his rejection of a plea offer. 3 appellant made it clear in his sentencing colloquy that he had 4 not cooperated with the government because such cooperation would 5 have endangered members of his family and forced relatives to 6 give up established businesses upon moving away. 7 76:18-23 ( I am sorry to put the courts through all that they've 8 been through because I know these have been lengthy things, 9 tremendous amounts of money spent here. See Trans. at And I never wanted to go 10 to trial. 11 trial. 12 ("I could have ruined [my relatives ] lives, destroy [sic] their 13 livelihood. 14 involved in the case that were killing witnesses."). 15 made these statements even after present counsel had asserted the 16 argument that appellant was misinformed about the scope of 17 conduct the district court could consider for purposes of 18 sentencing. 19 are unwilling to accept the conclusory statements he now makes in 20 support of his contention that he suffered actual prejudice in 21 satisfaction of Strickland. 22 Believe me. In fact, The last thing I wanted was to go to The circumstances dragged me to trial."); id. at 77:13-16 They would have to move. You know, there's people Appellant Given appellant's own statements at sentencing, we On the present record, a hearing based on the proffers of 23 proof set forth in appellant's supporting papers would be 24 fruitless because the appellant has neither stated that he would 22 1 have accepted a plea if properly advised by trial counsel nor 2 proffered objective evidence in support of such a statement. 3 Therefore, appellant has failed to establish that "there is a 4 reasonable probability that, but for counsel's unprofessional 5 errors the result of the proceeding would have been different," 6 Strickland, 466 U.S. at 694, and thus, has failed to state a 7 "plausible" claim for relief under 28 U.S.C. § 2255. 8 9 CONCLUSION For the reasons discussed above, we affirm. 23

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