The opinion of the court was delivered by: McLAUGHLIN, District Judge.
Petitioner, pro se, moves pursuant to 28 U.S.C. § 2255 to
vacate his sentence on the ground that he was denied effective
assistance of counsel. For the reasons set forth below, the
motion is denied.
On September 20, 1988, petitioner met with a confidential
informant and agreed to find him a supply of cocaine for
purchase. Petitioner then introduced the informant to his
codefendant, William Rodriguez, who displayed a sample of cocaine
to the informant. Later that day, the three met with an
undercover agent who agreed to complete the transaction at
another location. At that pre-arranged location petitioner and
Rodriguez were arrested.
On December 2, 1988, petitioner pled guilty to conspiracy to
distribute and possess with intent to distribute cocaine.
21 U.S.C. § 841(a)(1); 846. In March 1989 petitioner was sentenced
to 41 months incarceration, to be followed by a four-year term of
Petitioner now seeks to vacate his sentence on the ground that
the assistance of his counsel was ineffective. Specifically,
petitioner claims that counsel's failure to raise a possible
entrapment defense led to his conviction.
To establish an ineffective assistance of counsel claim,
petitioner must satisfy the two-part test set forth in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Petitioner must show that: (1) his counsel's
errors fell below an objective standard of reasonableness, and
(2) that "but for counsel's unprofessional errors, the result of
the preceding would have been much different." Id. at 694, 104
S.Ct. at 2068.
As Strickland teaches, "a court need not determine whether
counsel's performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged
deficiencies." Id at 697, 104 S.Ct. at 2069. See Hill v.
Lockhart, 474 U.S. 52, 57-60, 106 S.Ct. 366, 369-71, 88 L.Ed.2d
203 (1985) (applying the Strickland test to guilty pleas).
The alleged deficiencies in this case involve counsel's failure
to raise entrapment as an affirmative defense. As Hill notes,
"where the alleged error of counsel is a failure to advise the
defendant of a potential affirmative defense to the crime
charged, the resolution of the `prejudice' inquiry will depend
largely on whether the affirmative defense likely would have
succeeded at trial." 474 U.S. at 59, 106 S.Ct. at 371. See Evans
v. Meyer, 742 F.2d 371, 375 (7th Cir. 1984).
As a threshold matter, petitioner would be wrong to assume that
his counsel is required to mount any and all possible defenses,
including those that are frivolous in substance. Such a strategy
would only be a "useless charade" and may ultimately work to harm
the interests of the client.*fn1 See Ames v. New York State
Div. of Parole, 772 F.2d 13, 16 (2d Cir.), cert. denied,
475 U.S. 1066, 106 S.Ct. 1379, 89 L.Ed.2d 605 (1986); Mitchell v.
Scully, 746 F.2d 951, 957 (2d Cir.), cert. denied,
470 U.S. 1056, 105 S.Ct. 1765, 84 L.Ed.2d 826 (1985). Benefitting from a
review of the full record, I am more than satisfied that an
entrapment defense would not be likely to succeed at trial.
Isaraphanich v. United States, 632 F. Supp. 1531, 1534 (S.D.N Y
1986) ("[N]or is there any reason to believe that an entrapment
defense likely would have succeeded at trial, since it is a
matter of legal realism that such defenses rarely succeed."). In
short, petitioner "has failed to show a reasonable probability
that, but for his attorney, the [charges against him] would have
been disposed of on a more favorable basis than they were."
Ames, 772 F.2d at 16.
As the judge presiding over the plea and the sentence in this
case, I recall with clarity the proceedings and the performance
of counsel. My review of the record serves only to confirm that
recollection. Having observed counsel's performance first-hand,
the Court cannot find that petitioner was denied his right to
effective assistance of counsel. I am convinced, through my own
dialogue with petitioner, that the plea was knowing and
voluntary. Plea tr. at 2-6. See Tollett, 411 U.S. at 266, 93
S.Ct. at 1607; Isaraphanich, 632 F. Supp. at 1534 (proper focus
of federal habeas inquiry into counsel's failure to raise
entrapment defense at plea is the "voluntary and intelligent
character" of the plea).
As reflected in the carefully negotiated plea agreement, and by
the minimum guideline sentence ultimately imposed, petitioner was
represented by able counsel. Pursuant to the negotiated plea,
petitioner's exposure to incarceration was reduced from a
statutory minimum of five and a maximum of forty years, to a
minimum of zero and a maximum of twenty years. Plea tr. at 9-10;
Respondent's Mem. at 11.
Through the same negotiated plea, the government also agreed
not to pursue any further charges against petitioner arising from
its investigation. Id. Counsel's diligent representation
continued through sentencing where arguments from defense counsel
effectively persuaded the Court to impose the minimum sentence
under the applicable guideline range, even though the government
made a ...