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September 23, 1993



The opinion of the court was delivered by: CONSTANCE BAKER MOTLEY


 MOVANT, STEVEN FELLOURIS, along with two co-defendants, was indicted on August 16, 1985. The case was tried as to defendants JONATHON B. KOHAN and DANIEL LOWERY in a five-day trial starting on February 7, 1986. A bench warrant was issued with respect to Fellouris on September 5, 1985, whose whereabouts, at the time, were unknown.

 Fellouris voluntarily returned to the United States and was arrested on October 23, 1991 upon his release from a 41 day stay in the hospital.

 On March 20, 1992, Fellouris pleaded guilty to count two only of the indictment, bank fraud in violation of 18 U.S.C. §§ 1344 and 2. No medical evidence was presented. On June 26, 1992, this court sentenced Fellouris to five years in prison, the maximum term under the statute in effect at the time of the offense.

 On October 26, 1992, Fellouris filed a motion for reduction of sentence pursuant to Rule 35(B) of the Federal Rules of Criminal Procedure. By order of the court, dated April 9, 1993, that motion was denied due the court's finding that Fellouris' condition had not significantly changed since his sentencing in June 1992.

 Fellouris now claims, pursuant to 28 U.S.C. § 2255, that the court should vacate, set aside or correct his sentence.

 The court determines that the motion should be denied, without hearing, for the reasons set forth below.


 Fellouris' § 2255 motion rests on the ground that he had ineffective assistance of counsel.

 § 2255 provides in part,

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.

 Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts provides in part that,

If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified.

 To determine whether it is necessary to conduct a hearing on allegations made in support of a § 2255 motion, the court looks to the sufficiency of affidavits or other evidence proffered in support of those allegations. United States v. Aiello, 814 F.2d 109, 113 (2d Cir. 1987); Dalli v. United States, 491 F.2d 758, 760 (2d Cir. 1974). Fellouris' signed memorandum of law and fact serve as his affidavit. Affidavits are sufficient to grant a hearing if they proffer evidence, admissible at a hearing, which might entitle Movant to relief. Dalli, 491 F.2d at 760. However, allegations that are "insufficient in law, undisputed, immaterial, vague, conclusory, palpably false or patently frivolous" do not warrant a hearing. United States v. Malcolm, 432 F.2d 809, 812 (2d Cir. 1970).

 Ineffective Assistance of Counsel.

 In support of his claim of ineffective assistance of counsel, Movant alleges that counsel 1) failed to present a defense that counsel knew or should have known existed and 2) by stating that Fellouris had no defense to the charges against him, "induced" Movant to enter into a guilty plea.

 In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, rehearing denied, 467 U.S. 1267, 82 L. Ed. 2d 864, 104 S. Ct. 3562 (1984), the Supreme Court set forth the two-part standard for the assertion of a claim of ineffective assistance of counsel.

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed to the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

 Id. at 687; accord U.S. v. Eisen, 974 F.2d 246, 265 (2nd Cir. 1992).

 The Court noted that if an insufficient showing is made on either component of the Strickland test, the other need not be addressed. Strickland, 466 U.S. at 697. In addition, the Court held that the defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id at 689. The Court more recently emphasized its position, stating that "the essence of an ineffective-assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect." Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986).

1) Failure to Raise a Defense Counsel Knew or Should Have Known Existed.

 Entailed in counsel's basic duty to assist the defendant are counsel's duties ". . . to advocate the defendant's cause . . ." and ". . . to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution." Strickland, 466 U.S. at 688. Failure to raise an existing defense would clearly fall within the realm of counsel's basic duties.

 In asserting his claim that counsel failed to present a defense available to him as disclosed by his co-defendants' appeals of their own convictions, Movant relies on the Second Circuit's decision in U.S. v. Kohan, 806 F.2d 18 (2d Cir. 1986), which discusses his co-defendants' defenses and evidentiary rulings made as to them. In Kohan, co-defendants Kohan and Lowery appealed judgments of conviction entered in this court following a joint five-day trial. Id. at 19. The Second Circuit reversed and remanded the case for a new trial on evidentiary grounds relating to the state of mind of the co-defendant Lowery which the trial court had excluded, and the conspiracy theory of the co-defendant Kohan relating to the check owner and a loan allegedly made by Movant to the check owner. Id. at 22, 24. Movant claims he was entitled to a defense unbeknownst to him but known to his counsel, the court, and the Government, and that his counsel was ineffective due to a failure to raise this defense.

 Fellouris, who was a co-defendant to the charges of conspiracy to commit bank fraud and bank fraud, ". . . was a fugitive at the time of trial . . . ." Id. at 19. Fellouris was never tried for these crimes. Instead, upon his return to the United States, he pleaded guilty to the charge of bank fraud only as follows:

I took two checks from Brook Fuel. I put in the amount ($ 143,500) and gave the checks to Dan Lowery so that he could deposit them and cash them. After he deducted his fee for doing so he gave me the remainder. It was somewhere around $ 130,000. The checks did not belong to me when I took them.

 See attached Petition of Movant to Plead Guilty, p. 8.

 Fellouris was represented by experienced, competent counsel, Cary A. Bricker, Associate Attorney, who was a member of the staff of the Federal Defender Services Unit of this court. There were no evidentiary rulings at issue on Fellouris' voir dire prior to his plea and no possible defense was disclosed. He was asked specifically whether he had given his lawyer all the facts. Petition, p. 3. He disclosed in his Petition that he is a High School graduate. Petition, p. 2. He additionally stated,

I have given my attorney a full statement of all the facts and surrounding circumstances as known to me concerning the matters mentioned in the Indictment (Information), and believe and feel that my attorney is fully informed as to all such matters. [ ] My attorney has since informed me, and has counseled and advised me, as to the nature and cause of every accusation against me, and as to any possible defenses I might have in this case.

 Petition, pp. 3-4.

2) Movant was "Induced" to enter into a Guilty Plea.

 The Supreme Court has held that "where . . . a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985). A guilty plea cannot be attacked on the basis of inadequate legal advise unless counsel was not a reasonably competent attorney and the advice was outside the range of competence required of counsel in criminal cases. Strickland, 466 U.S. at 687. Again, following the Strickland test, to successfully overcome a guilty plea the ". . . defendant must show that counsel's representation fell below an objective standard of reasonableness, as determined by the range of competence required of attorneys in criminal cases . . . [and] second, 'defendant must show that there is a reasonable probability that, but for counsel's errors he would not have pleaded guilty and would have insisted on going to trial.'" Tate v. Wood, 963 F.2d 20, 26 (2nd Cir. 1992) (quoting Hill v. Lockhart, 474 U.S. at 58).

 Since Fellouris, according to the written and oral voir dire prior to plea, had no available defense, his counsel's advice to enter into a guilty plea was not unreasonable nor outside of "the range of competence" required of attorneys. Strickland, 466 U.S. at 687.

 Moreover, Movant took the oath in open court to tell the truth at the time of the court's voir dire of him before accepting his plea of guilty as required by Rule 11 of the Federal Rules of Criminal Procedure. He was warned by the court of the consequences of giving false answers. Petition, p. 5. Prior to pleading guilty, Movant read and signed his Petition. In addition, prior to his plea, in open court, on the record, Movant was again asked each question which he answered in his Petition. He was questioned, in open court, as to whether he was, in fact, guilty; whether he understood the charges against him; whether he understood he was giving up any defense which he may have had; whether he discussed any possible defense with his attorney before ...

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