Raysor v. United States, No. 09-3871 (2d Cir. 2011)
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Defendant appealed the denial of his petition for a writ of habeas corpus where he was convicted of crimes stemming from his involvement in a violent street gang. At issue was whether defendant received ineffective assistance of counsel where defendant alleged that trial counsel failed to advise him as to whether he should accept or reject a particular plea offer by the government. The court held that an evidentiary hearing was necessary to flesh out the sparse record before the court. Accordingly, the court vacated the judgment and remanded for further proceedings.
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09-3871-pr Raysor 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, 2010 (Argued: November 23, 2010 Decided: July 27, 2011) Docket No. 09-3871-pr - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - UMEME RAYSOR, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee, - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B e f o r e: WINTER, CALABRESI, and KATZMANN, Circuit Judges. Appeal from a denial by the United States District Court for 28 the Eastern District of New York (Sandra Townes, Judge) of a 29 Section 2255 motion to vacate a sentence due to counsel s failure 30 to advise appellant with regard to a plea offer by the 31 government. 32 the ineffective assistance of counsel claim. 33 34 35 36 37 38 39 We vacate and remand for an evidentiary hearing on SALLY WASSERMAN, New York, New York, for Petitioner-Appellant. WILLIAM D. SARRAT, Assistant United States Attorney, of counsel (Jo Ann M. Navickas, Assistant United States Attorney, of counsel, on the brief), 1 1 2 3 4 5 6 7 8 9 Loretta E. Lynch, United States Attorney, United States Attorney s Office for the Eastern District of New York, Brooklyn, New York, for Respondent-Appellee. WINTER, Circuit Judge: Umeme Raysor appeals from Judge Townes s denial of his petition for a writ of habeas corpus. Raysor v. United States, 10 No. 03-CV-5418, 2009 WL 2707307 (E.D.N.Y. Aug. 26, 2009). 11 only issue on appeal is a claim of ineffective assistance of 12 counsel. 13 him as to whether appellant should accept or reject a particular 14 plea offer by the government. 15 appellant failed to establish that he was actually prejudiced by 16 counsel s alleged ineffectiveness and denied the motion without 17 holding a full evidentiary hearing. 18 19 20 The Appellant alleges that trial counsel failed to advise The district court concluded that We vacate and remand. BACKGROUND From approximately 1985 to 1996, appellant and his brother 21 ran a violent street gang that distributed large quantities of 22 drugs in New York and Virginia. 23 appellant was indicted, the government sent a letter to his 24 original counsel memorializing a plea offer. 25 a government recommendation of 29 years incarceration. 26 According to the letter, the plea offer would expire on December 27 20, 1996, but the offer was briefly extended until after a On December 10, 1996, after 2 The offer involved 1 meeting between appellant s original counsel and the government 2 on February 3, 1997. 3 and no additional plea offers were made. Appellant rejected the government s offer, 4 On February 27, 1997, the government moved to disqualify 5 original counsel on the basis of a conflict of interest resulting 6 from original counsel s prior representation of a co-defendant. 7 On April 4, 1997, the motion was granted. 8 Appellant s trial lasted approximately twelve weeks. 9 government s case consisted primarily of accomplice testimony; 10 nine former gang members testified against appellant, eight of 11 whom pled guilty prior to trial. 12 on four counts: 13 1962(c); (ii) racketeering conspiracy, in violation of 18 U.S.C. 14 § 1962(d); (iii) operating a criminal enterprise, in violation of 15 21 U.S.C. § 848; and (iv) conspiracy to distribute and to possess 16 with the intent to distribute cocaine base, in violation of 21 17 U.S.C. § 846. 18 despite the conviction on the racketeering count, the jury found 19 that 10 of the 13 predicate acts had not been proven. 20 the jury did find appellant guilty of a predicate act of murder. 21 On August 13, 1999, appellant was sentenced to multiple life 22 terms. 23 24 The The jury found appellant guilty (i) racketeering, in violation of 18 U.S.C. § Appellant was acquitted on eight counts, and, However, On direct appeal, appellant raised numerous claims of error, none of which are pertinent to this appeal. 3 After remanding for 1 supplementation of the record, United States v. Raysor, 9 F. 2 App x 33 (2d Cir. 2001), we vacated the conviction for conspiracy 3 to distribute narcotics under 21 U.S.C. § 846, but affirmed the 4 district court s judgment in all other respects. 5 v. Raysor, No. 99-1503, 2001 WL 36037731 (2d Cir. Apr. 29, 2002). 6 On November 4, 2002, the Supreme Court denied appellant s 7 petition for a writ of certiorari. 8 U.S. 1012 (2002). 9 United States Raysor v. United States, 537 On October 20, 2003, appellant filed the instant petition 10 pro se pursuant to 28 U.S.C. § 2255, asserting, inter alia, 11 ineffective assistance of counsel. 12 deprived of adequate assistance of counsel because his original 13 counsel failed to discuss with Raysor the advisability of 14 whether to accept or reject the government s plea offer. 15 51. 16 counsel: He alleged that he had been App. Further, he submitted an affidavit stating that his original 17 18 19 20 21 22 23 never conveyed to this affiant his ultimate opinion as to the wisdom of the plea nor did he give any suggestions as to how to deal with the government s plea offer. Affiant asserts that if properly advised by counsel, he would have accepted the plea bargain instead of proceeding to trial. 24 Id. at 67. The district court also had before it original 25 counsel s affirmation, submitted by the government, that I 26 conveyed the government offer of 29 years to the defendant. 27 defendant refused the offer. Id. at 76. 4 The The district court 1 dismissed the petition after concluding that, even if original 2 counsel had provided ineffective assistance, appellant had failed 3 to establish a reasonable probability that he would have accepted 4 the plea. 5 Raysor, 2009 WL 2707307, at *2. The district court denied a certificate of appealability. 6 Id. at *6. 7 certificate of appealability to review whether the district court 8 erred in not conducting an evidentiary hearing. 9 On February 19, 2010, we granted appellant a DISCUSSION 10 Section 2255 states that [u]nless the motion and the files 11 and records of the case conclusively show that the prisoner is 12 entitled to no relief, the court shall . . . grant a prompt 13 hearing thereon, determine the issues and make findings of fact 14 and conclusions of law with respect thereto. 15 2255(b). 28 U.S.C. § 16 A defendant seeking a hearing on an ineffective assistance 17 of counsel claim need establish only that he has a plausible 18 claim of ineffective assistance of counsel, not that he will 19 necessarily succeed on the claim. 20 F.3d 209, 213 (2d Cir. 2009) (internal quotation marks omitted). 21 Moreover, [t]he procedure for determining whether a hearing is 22 necessary is in part analogous to . . . a summary judgment 23 proceeding. . . . If material facts are in dispute, a hearing 24 should usually be held, and relevant findings of facts made. 25 Id. 5 Puglisi v. United States, 586 1 [O]ur standard of review with respect to a district court s 2 decision to hold a hearing, however, differs from summary 3 judgment s general de novo review. 4 district court s denial of an evidentiary hearing for clear error 5 as to issues of fact and de novo as to issues of law. 6 Id. at 215. We review a Id. It is within the district court s discretion to determine 7 the scope and nature of a hearing. Chang v. United States, 250 8 F.3d 79, 85-86 (2d Cir. 2001). 9 the underlying proceedings also presides over a § 2255 motion, a Thus, when the judge who tried 10 full-blown evidentiary hearing may not be necessary. 11 Puglisi, 586 F.3d at 214-15. 12 disapproves of summary dismissal of petitions where factual 13 issues exist[], . . . it permits a middle road of deciding 14 disputed facts on the basis of written submissions. 15 United States, 317 F.3d 178, 184 (2d Cir. 2003) (citing Chang, 16 250 F.3d at 86). 17 See Although [o]ur precedent Pham v. For example, in Chang, the district court did not hold a 18 full-blown testimonial hearing where the petitioner had alleged 19 ineffective assistance for counsel s refusal to let petitioner 20 testify on his own behalf. 21 court considered the petitioner s affidavit s blanket statements 22 that counsel had prohibited him from testifying as well as 23 counsel s detailed affidavit . . . credibly describing the 24 circumstances concerning appellant s failure to testify. 25 85. 250 F.3d at 81-82. The district Id. at It denied the petition and the request for an evidentiary 6 1 hearing because counsel s affidavit belied [petitioner s] 2 claim." 3 the denial of the evidentiary hearing and concluded that a full- 4 fledged evidentiary hearing was unnecessary to flesh out the 5 petitioner s § 2255 petition: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Id. at 82 (internal alteration omitted). We affirmed It was, therefore, within the district court s discretion to choose a middle road that avoided the delay, the needless expenditure of judicial resources, the burden on trial counsel and the government, and perhaps the encouragement of other prisoners to make similar baseless claims that would have resulted from a full testimonial hearing. The district court reasonably decided that the testimony of Chang and his trial counsel would add little or nothing to the written submissions. . . . [W]e cannot say that it was an abuse of discretion on the part of the district court to conclude that such a hearing would not offer any reasonable chance of altering its view of the facts. Id. at 86. Turning to the merits, to be entitled to relief on a claim 25 of counsel s ineffective assistance, a defendant must show that 26 counsel s performance was deficient and that the deficient 27 performance prejudiced the defense. 28 466 U.S. 668, 687 (1984). 29 showing that defense counsel s representation fell below an 30 objective standard of reasonableness. 31 analyzing counsel s alleged deficiency, a court must indulge a 32 strong presumption that counsel s conduct falls within the wide 33 range of reasonable professional assistance. Strickland v. Washington, The performance prong requires a 7 Id. at 688. When Id. at 689. 1 Moreover, [t]he reasonableness of counsel s performance is to be 2 evaluated from counsel s perspective at the time of the alleged 3 error and in light of all the circumstances. 4 Morrison, 477 U.S. 365, 381 (1986). 5 must demonstrate a reasonable probability that, but for 6 counsel s unprofessional errors, the result of the proceeding 7 would have been different. Strickland, 466 U.S. at 694. Kimmelman v. As to prejudice, a defendant 8 The district court never addressed whether counsel s 9 performance fell below an objective standard of reasonableness 10 under the first Strickland prong, but denied relief based on 11 appellant s failure to show prejudice as the second prong 12 requires. 13 Raysor argues, that defense counsel failed to offer advice 14 regarding the desirability of the twenty-nine year plea offer, 15 Raysor has not established a reasonable probability that he would 16 have accepted the plea. ). 17 See Raysor, 2009 WL 2707307, at *2 ( Even assuming, as To show the requisite prejudice in the instant case, 18 appellant must demonstrate a reasonable probability that but for 19 counsel s deficient performance, he would have pled guilty 20 instead of going to trial. 21 41, 49 (2d Cir. 2000) (to show prejudice under Strickland, 22 defendant must demonstrate a reasonable probability that but for 23 [defense counsel s] deficiencies, [the defendant] would have pled 24 guilty ); Cullen v. United States, 194 F.3d 401, 405 (2d Cir. 25 1999) (evaluating the likelihood that [the defendant] would have See Purdy v. United States, 208 F.3d 8 1 accepted the plea bargain if he had been fully informed of its 2 terms and accurately advised of the likely sentencing ranges 3 under the plea bargain and upon conviction after trial ). 4 Appellant s burden was to proffer a prima facie case that, 5 but for counsel s improper advice, the petitioner would have 6 accepted the plea offer. 7 evidence may include a petitioner s own statement, as was offered 8 here; however, in order for the statement to be sufficiently 9 credible to justify a full hearing, it must be accompanied by Puglisi, 586 F.3d at 215. Prima facie 10 some objective evidence, such as a significant sentencing 11 disparity, that supports an inference that the petitioner would 12 have accepted the proposed plea offer if properly advised. 13 at 215-16; see also United States v. Gordon, 156 F.3d 376, 381 14 (2d Cir. 1998) (finding that such a disparity [between the 15 sentence imposed and the sentence that effective counsel would 16 have obtained for the defendant] provides sufficient objective 17 evidence -- when combined with a petitioner s statement 18 concerning his intentions -- to support a finding of prejudice 19 under Strickland ). 20 Id. The government contends that appellant s post-conviction 21 assertion that, with the benefit of competent legal advice, he 22 would have accepted the government s plea offer, is insufficient 23 by itself to establish a reasonable probability that appellant 24 would have pled guilty. The government also argues that the 9 1 district court acted within its discretion in denying appellant s 2 claim without holding a hearing. 3 an evidentiary hearing is necessary to flesh out the sparse 4 record before us. 5 We disagree and conclude that Appellant has asserted under oath that he would have 6 accepted the plea offer if properly advised by counsel. This 7 distinguishes Puglisi, where the petitioner failed to provide 8 such a personal sworn statement. 9 ( We believe that a statement regarding intent must be directly See Puglisi, 586 F.3d at 216-17 10 attributable to the habeas petitioner, whether it be through 11 sworn testimony in the main proceeding or a sworn affidavit in 12 support of the motion. ). 13 Moreover, the disparity between the sentence offered in the 14 plea agreement -- 29 years -- and the sentence he actually 15 received -- multiple life terms -- was substantial. 16 appellant s testimony, it may provide enough objective evidence 17 to support the inference appellant would have accepted the plea 18 offer if properly advised. 19 at 182-83; Gordon, 156 F.3d at 380-81. 20 25 at the time of the plea offer, a guilty plea would have led to 21 his release during his early fifties. 22 this and life imprisonment is sufficient to satisfy the prejudice 23 requirement. 24 an evidentiary hearing on ineffective assistance because Along with See, e.g., id. at 216; Pham, 317 F.3d Given appellant s age of The difference between See, e.g., Pham, 317 F.3d at 182-83 (remanding for 10 1 prejudice could be found based on the undisputed sentencing 2 disparity of at least 113 months between the high end of the 3 government plea offer [of 78 to 97 months] and Pham s sentence 4 [of 210 months] after a trial conviction ); Gordon, 156 F.3d at 5 381 (finding the disparity between the 84 months offered in the 6 plea agreement and the actual sentencing range of 262 to 327 7 months as sufficient objective evidence . . . to support a 8 finding of prejudice under Strickland ); see also Mask v. 9 McGinnis, 233 F.3d 132, 142 (2d Cir. 2000) ( [A] large disparity 10 between the defendant s sentence exposure following a trial and 11 his potential exposure had a plea offer been made . . . . coupled 12 with [defendant s] statements that he would have accepted a 13 reasonable offer as credited by the district court, satisfies the 14 prejudice requirement. ). 15 brief that there is a potentially significant disparity between 16 the offered 29-year sentence and the life sentence Raysor 17 received. Indeed, the government concedes in its 18 With regard to the reasonableness of original counsel s 19 performance, it is clear that failure to advise a client as to a 20 plea offer is unreasonable performance. 21 ( failure to give any advice concerning the acceptance of a plea 22 bargain [falls] below the standard of reasonable representation ) 23 (citing Boria v. Keene, 99 F.3d 492, 496-97 (2d Cir. 1996)). 24 Counsel must advise a client regarding a plea offer, although 25 counsel s choice of how to do so will be guided by many factors, 11 Cullen, 194 F.3d at 404 1 including the duty to avoid coercing a plea from an unwilling 2 client. 3 Purdy, 208 F.3d at 47. The statement by original counsel, quoted supra, was only 4 that he conveyed the plea offer but appellant rejected it. This 5 statement is hardly equal to the detailed affidavit from trial 6 counsel credibly describing the circumstances concerning 7 appellant s failure to testify that we found sufficient to deny 8 a full evidentiary hearing and to support dismissal of the § 2255 9 petition in Chang, 250 F.3d at 85. In particular, we do not know 10 what, if anything, was communicated to appellant regarding the 11 likelihood of a substantially more severe sentence as a result of 12 going to trial, what original counsel believed as to the plea 13 offer, or why original counsel did whatever he did. 14 moreover, the fact that the court soon after disqualified 15 original counsel for a conflict of interest. 16 We acknowledge that the issues are close. There is, Numerous 17 questions of fact or mixed fact and law must be resolved in 18 appellant s favor if he is to prevail. 19 would have been reasonable legal advice in the circumstances; 20 (ii) whether original counsel gave such advice; (iii) what the 21 considered basis for original counsel s actions was; and (iv) 22 whether but for counsel s alleged ineffectiveness, appellant 23 would have accepted the government s plea offer and pled guilty. 24 There is sufficient chance of success, however, in our view to 25 justify a full hearing on remand. 12 These include: (i) what 1 2 CONCLUSION For the foregoing reasons, the judgment is vacated and the 3 matter is remanded for further proceedings in accordance with 4 this opinion. 5 13
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