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 motion — denied on lateness grounds — to increase the offense
level. Sentencing tr. at 2.
The motion to vacate petitioner's sentence pursuant to § 2255
must be, and hereby is, denied.