Forbes v. United States of America, No. 07-3130 (2d Cir. 2009)
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07-3130-pr Forbes v. United States of America 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 28 29 30 31 UNITED STATES COURT OF APPEALS F OR THE S ECOND C IRCUIT August Term, 2008 (Argued: June 25, 2009 Decided: July 30, 2009) Docket No. 07-3130-pr D ENNIS F ORBES, Petitioner-Appellant, v. U NITED S TATES OF A MERICA, Respondent-Appellee. * Before: P ARKER and W ESLEY, Circuit Judges, T SOUCALAS, Judge. ** Appeal from an order of the United States District Court for the Western District of New York (Siragusa, J.), entered on May 23, 2007, dismissing petitioner-appellant s * We direct the Clerk of Court to amend the caption as noted. ** The Honorable Nicholas Tsoucalas, Senior Judge of the United States Court of International Trade, sitting by designation. Page 1 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 application to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. A FFIRMED. E LEANOR J ACKSON P IEL, New York, NY, for PetitionerAppellant. F RANK H. S HERMAN, Assistant United States Attorney (Kathleen M. Mehltretter, Acting United States Attorney, of counsel), Office of the United States Attorney for the Western District of New York, Rochester, NY, for RespondentAppellee. P ER C URIAM: Petitioner-appellant Dennis Forbes ( Forbes ) appeals 22 from an order of the United States District Court for the 23 Western District of New York (Siragusa, J.), dismissing his 24 petition to vacate, set aside, or correct his sentence under 25 28 U.S.C. § 2255 on the basis of ineffective assistance of 26 appellate counsel on direct appeal. 27 below, the district court s order of dismissal is hereby 28 AFFIRMED. 29 30 31 For the reasons stated Background Forbes was indicted on September 9, 1999 on one count of being a convicted felon in possession of a firearm in Page 2 of 14 1 violation of 18 U.S.C. § 922(g)(1). 2 Forbes, No. 99-CR-6084(CJS) (W.D.N.Y.). 3 indicted in a separate instrument for possession of a 4 firearm in furtherance of a crime of drug trafficking in 5 violation of 18 U.S.C. § 924(c), as well as two other drug- 6 related counts, based on the same set of events that led to 7 the § 922(g)(1) charge. 8 6089(CJS) (W.D.N.Y.). 9 United States v. Forbes was also United States v. Forbes, No. 99-CR- After a jury trial, Forbes was convicted on all counts 10 in the second indictment but the § 924(c) count, on which 11 the jury could not reach a verdict. 12 count, however, was not tried with the offenses alleged in 13 the second indictment. 14 guilty to the § 922(g)(1) count, and in exchange the 15 government agreed not to pursue the 8 U.S.C. § 924(c) count 16 left open by the jury. 17 the district court tolled the requirements of the Speedy 18 Trial Act, 18 U.S.C. § 3161, in relation to the § 924(c) 19 count because Forbes specifically indicated that the reason 20 for his plea on the § 922(g)(1) count was the government s 21 promise to dismiss the § 924(c) trafficking charge. The initial § 922(g)(1) On January 24, 2001, Forbes pleaded On accepting Forbes s guilty plea, Page 3 of 14 1 Later in 2001, but prior to sentencing, Forbes wrote a 2 letter to the district court indicating that he wanted to 3 withdraw his guilty plea because it was illegal due to the 4 fact that [he] was not fingerprinted, photographed, booked, 5 charged, or arraigned in 72 hours of [his] arrest which 6 [was] a violation of [his] due process rights. 7 retained attorney, Michael P. Schiano, stated on the record 8 that he had advised Forbes that in attempting to withdraw 9 his guilty plea he would likely lose the two-point reduction Forbes s 10 in his sentencing offense level on the basis of acceptance 11 of responsibility, as well as risk a two-point enhancement 12 for perjury and obstruction of justice. 13 pursuing the plea withdrawal and indicated to the court that 14 he would discharge Schiano as his attorney. 15 informed the district court that, for his part, he intended 16 to withdraw as Forbes s counsel should Forbes pursue the 17 plea withdrawal, because one of [Forbes s] basis [sic] in 18 wanting to withdraw his plea [was] his position that 19 [Schiano] intimidated and forced him . . . into taking the 20 plea. 21 Forbes insisted on Schiano After extensive attempts on the record by defense Page 4 of 14 1 counsel, the government, and the district court to explain 2 to Forbes the status of the charges against him and the 3 potential consequences of attempting to withdraw his plea at 4 this stage of the proceeding, the district court stated: 5 6 7 8 9 10 11 12 13 14 15 Mr. Forbes, here s what I m going to do. If you tell me this is what you want to do, I m going to ask Mr. Schiano to make a formal motion to withdraw. I ll make it returnable for a day. I ll examine you now. If I find you re entitled to assigned counsel, I ll have another counsel here, and I ll give you a chance to consult with that counsel to determine what you want to do; but I m not going to keep assigning you lawyers. 16 Forbes indicated that he understood the district court s 17 statement and insisted that he still wanted to withdraw his 18 guilty plea. 19 for assigned counsel. The district court then found Forbes eligible 20 On June 25, 2001, Jeffrey Wicks agreed to serve as 21 Forbes s assigned counsel, provided he should conclude upon 22 review of the record that Forbes had a nonfrivolous argument 23 to withdraw his guilty plea. 24 Forbes that Wicks s review of the record would result in one 25 of three possibilities: (1) Wicks might agree that 26 attempting to withdraw the plea was Forbes s best legal The district court informed Page 5 of 14 1 option; (2) Wicks might inform Forbes that going forward 2 with the attempt would be against Forbes s best interest but 3 that a legal argument could be made in support of it; or (3) 4 Wicks might determine any such attempt would be frivolous 5 and that he would be unable to make the application to 6 withdraw the plea. The district court then told Forbes: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 If Mr. Wicks comes back to you after independently reviewing everything and says Mr. Forbes, you re crazy for trying to withdraw your plea, and secondly, there s no basis upon which I can in good faith ask the Court to withdraw the plea, that s the end of it. I m not saying that s going to happen, but that would be the end of it. I m not going to assign you another lawyer. It would be exceptionally foolish, but you can always represent yourself if you want; but I m not going to assign you a string of lawyers until you somehow hit on one that is going to give you the advice you want. 21 Wicks ultimately decided that there was no good faith basis 22 for Forbes s motion to withdraw his plea, after which the 23 district court concluded that Wicks was ethically obligated 24 not to bring the motion on Forbes s behalf and allowed Wicks 25 to withdraw as counsel. 26 that he would have to move for the plea withdrawal on his 27 own and described the proper procedure and potential 28 consequences. The district court informed Forbes The district court explained that it would Page 6 of 14 1 assign Forbes another attorney upon resolution of his motion 2 to withdraw his plea, but again emphasized that it would not 3 put another lawyer in a situation where they re called upon 4 by you [Forbes] as the client, despite what they tell you, 5 to do something that they feel is unethical and really 6 against your best interest. 7 In September 2001, Forbes filed the motion to vacate 8 his guilty plea, arguing that his plea was not knowing, 9 intelligent, and voluntary as required by Federal Rule of 10 Criminal Procedure 11 because Schiano had advised him that 11 he would be pleading guilty to count two of indictment No. 12 99-CR-6089 [the § 924(c) count] and not to indictment No. 13 99-CR-6084 [the § 922(g) count]. 14 alleged that his counsel was ineffective for advising him to 15 plead guilty to the § 922(g) count in spite of what he 16 termed jurisdictional defects, namely that the count 17 should have been dismissed because the police did not have 18 probable cause to search or arrest him and because he was 19 not arraigned until more than 60 days after his arrest. 20 21 In his papers, Forbes The district court denied the motion to vacate. The district court rejected Forbes s claim of ineffectiveness of Page 7 of 14 1 counsel with respect to the plea, explaining to Forbes that 2 pleading guilty to the § 922(g) charge did not result in any 3 additional jail time and 4 the possibility of the government re-trying him on the 5 remaining § 924(c) count. 6 court explained, eliminated the possibility of an additional 7 five years of jail time being added to Forbes s sentence, as 8 would have been required with a § 924(c) conviction. 9 district court further found that Forbes s factual that the guilty plea eliminated This, in turn, as the district The 10 allegations were clearly contradicted by the record and 11 inherently incredible. 12 At sentencing Forbes was represented by M. Kirk Okay of 13 The Okay Law Firm. 14 offense level of 26 with respect to the § 922(g) count, 15 starting from a base level of 20 and adding two points 16 because the pistol was stolen, U.S.S.G. § 2K2.1(b)(4), and 17 four points for possession of the firearm while distributing 18 cocaine, U.S.S.G. § 2K2.1(b)(5). 19 enhance Forbes s sentence for obstruction of justice with 20 respect to his motion to vacate the guilty plea. 21 sentenced to life in prison on each of the two drug count The district court calculated a total The district court did not Page 8 of 14 Forbes was 1 jury convictions and a concurrent 120 months imprisonment 2 on the § 922(g) firearm possession conviction. 3 On appeal, Forbes was again represented by Okay, who 4 argued that the district court erred in not allowing Forbes 5 to withdraw his plea and that the record did not contain 6 sufficient facts to support his plea. 7 these arguments, concluding that, [a]lthough Forbes now 8 suggests that his plea was not knowing and voluntary because 9 he was confused as to the charge he was pleading to during This Court rejected 10 the allocution, our review of the transcript of the 11 allocution discloses no such confusion[, n]or . . . that the 12 district court accepted Forbes plea without determining 13 that there was an adequate factual basis for the plea. 14 United States v. Forbes, No. 02-1120-cr, 78 Fed. App x 164, 15 165 (2d Cir. 2003). 16 the propriety of the district court relieving counsel of his 17 representation of the defendant . . . and then proceeding to 18 deny the defendant s motion to withdraw his guilty plea 19 while he was unrepresented, we declined to address this 20 issue because it was not raised on appeal or pursued during 21 questioning at oral argument. Although we expressed some doubt about Id. Page 9 of 14 Forbes, still 1 represented by Okay, filed a petition for a writ of 2 certioriari to the United States Supreme Court in which he 3 raised this new Sixth Amendment right-to-counsel issue. 4 Supreme Court denied the petition. 5 540 U.S. 1210 (2004). 6 The Forbes v. United States, On October 13, 2004, Forbes filed a pro se petition to 7 vacate, set aside, or correct his sentence under 28 U.S.C. § 8 2255, contending that Schiano s pre-trial representation was 9 ineffective and that Schiano had coerced him into pleading 10 guilty to the § 922(g) charge. 11 was ineffective at sentencing for not challenging the 12 sentencing enhancements imposed and on appeal because he did 13 not raise the argument that Forbes was unconstitutionally 14 deprived of counsel with respect to his motion to withdraw 15 the guilty plea. 16 without a hearing. Forbes also argued that Okay The district court dismissed the petition 17 With respect to the allegations regarding Schiano, the 18 district court indicated that it had already considered and 19 rejected Forbes s arguments in the motion to vacate the 20 plea, and that decision had been affirmed. 21 court concluded that these issues were therefore Page 10 of 14 The district 1 procedurally barred. 2 F.3d 79, 83 (2d Cir. 2001). See, e.g., United States v. Sanin, 252 3 The district court also found that Forbes s allegations 4 regarding Okay at sentencing were unsupported by the record. 5 With respect to Okay s effectiveness on appeal, the district 6 court noted that appellate counsel was not obligated to 7 raise every possible argument and that Forbes had not 8 indicated that the arguments Okay raised were significantly 9 weaker, Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994), 10 than Forbes s right-to-counsel claim. 11 also noted that Forbes did not argue that he suffered 12 prejudice due to Okay s failure to raise the right-to- 13 counsel issue on appeal. 14 The district court Forbes subsequently moved for a certificate of 15 appealability on the basis of ineffectiveness of appellate 16 counsel. 17 that counsel be appointed. 18 This court granted the certificate and ordered Discussion 19 Forbes now argues that his motion to withdraw his 20 guilty plea constituted a critical stage of the criminal 21 proceeding, such that he was entitled to counsel unless he Page 11 of 14 1 waived the right, which he did not do. 2 318 F.3d 157, 164 (2d Cir. 2003) (Winter, J., dissenting). 3 As the majority noted in Hines, federal courts have taken a 4 variety of approaches with respect to habeas claims of 5 denial of the right to counsel based on ineffective 6 representation, or complete lack of representation, on 7 motions to withdraw guilty pleas. 8 Hines court left open the question of the proper standard to 9 apply in such situations, Forbes s claim does not bring this See Hines v. Miller, Id. at 163. While the 10 issue before us. 11 he contends his appellate counsel was ineffective for not 12 raising the issue on direct appeal. 13 Rather, Forbes s claim is once removed Under Strickland v. Washington, 466 U.S. 668 (1984), to 14 establish ineffective assistance of appellate counsel, 15 Forbes must show that counsel s representation fell below 16 an objective standard of reasonableness, id. at 688, and 17 that there is a reasonable probability that, but for 18 counsel s unprofessional errors, the result of the 19 proceeding would have been different, id. at 694. 20 there may be merit to Forbes s unraised right-to-counsel 21 argument in the abstract, as indicated by the panel of this Page 12 of 14 Although 1 Court that heard his direct appeal, this does not make 2 counsel s failure to raise the argument on appeal 3 objectively unreasonable on the record before us. 4 A motion to withdraw a guilty plea is a critical stage 5 of a criminal proceeding, United States v. Davis, 239 F.3d 6 283, 285-86 (2d Cir. 2001), meaning no showing of prejudice 7 is necessary to establish a Sixth Amendment violation where 8 a defendant is deprived of counsel in bringing it, see 9 United States v. Cronic, 466 U.S. 648, 659 (1984). However, 10 the Sixth Amendment does not require that counsel do what 11 is impossible or unethical. 12 established that [t]he failure to include a meritless 13 argument does not fall outside the wide range of 14 professionally competent assistance to which [a defendant 15 is] entitled. 16 2001) (internal quotation marks omitted). 17 withdrew as counsel to Forbes because he insisted on 18 pursuing what both attorneys considered to be a frivolous 19 motion to withdraw his plea. 20 conducted a thorough review of the record on direct appeal 21 and found no merit in any of the grounds Forbes raised as Id. at 656 n.19. It is well Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. Two attorneys A previous panel of this Court Page 13 of 14 1 possible bases for allowing him to withdraw his plea. 2 independent review of the record reconfirms this conclusion. 3 Moreover, Forbes would likely have ended up in a worse 4 position than he now finds himself had he been allowed to 5 withdraw his plea, because the government promised to pursue 6 both the § 922(g) and § 924(c) charges if he succeeded. 7 conviction on the § 924(c) count would have required the 8 court to add a minimum of five years to Forbes s sentence, 9 to be served consecutively to the sentences for the two 10 11 An A other drug-related counts. Forbes s right to counsel at the critical plea- 12 withdrawal stage is not the issue before us, but rather 13 appellate counsel s failure to raise that right-to-counsel 14 claim on direct appeal. 15 that counsel s failure to raise it was objectively 16 unreasonable or caused Forbes any prejudice. 17 18 We cannot, on this record, conclude Conclusion The district court s order of May 23, 2007 dismissing 19 petitioner-appellant s motion to vacate, set aside, or 20 correct his sentence under 28 U.S.C. § 2255 is hereby 21 A FFIRMED. Page 14 of 14
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