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KEATS v. UNITED STATES

June 22, 1994

RICHARD KEATS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: JOHN E. SPRIZZO

 SPRIZZO, D.J.,

 Petitioner pro se in the above-captioned action brings this petition pursuant to 28 U.S.C. § 2255, seeking a vacatur of his convictions for conspiracy and wire fraud and an opportunity to plead to a solitary conspiracy count. In the alternative, the petitioner moves to alter the fine and/or term of imprisonment imposed at sentencing. For the reasons that follow, the petition is denied.

 BACKGROUND

 On December 18, 1987, the Federal Bureau of Investigation ("FBI") arrested the petitioner Richard Keats ("Keats") for his participation in a fraudulent scheme to obtain bearer bonds from a New York brokerage house and to sell the bonds to purchasers in Europe. Movant's Motion to Vacate Judgment of Sentence and Memorandum of Law ("Pet. Br.") at 1. At the time, Keats was on parole from a fraud conviction in the Eastern District of Pennsylvania. Affidavit of Peter K. Vigeland dated July 2, 1993 ("Vigeland Aff.") P 10. On March 17, 1988, Keats was indicted on one count of conspiracy in violation of 18 U.S.C. § 371. See Indictment 88 Cr. 152. He was released on bail the following December. Vigeland Aff. P 2(b).

 In April 1989, Keats, represented by a court-appointed attorney, Martin J. Siegel, Esq. ("Siegel"), began plea negotiations with the Government. Affirmation of Martin J. Siegel, Esq. dated July 2, 1993 ("Siegel Aff.") at 1. At that time, the Government offered Keats a maximum sentence of five years if he pleaded guilty to the single conspiracy count. Id. The Government also indicated that it would seek a superseding indictment with additional wire fraud counts if Keats chose not to plead guilty. Pet. Br. at 9. According to Siegel's affirmation, Siegel advised Keats that a conviction under the superseding indictment would result in a sentence in excess of five years. Siegel Aff. at 1-2. Keats contends, however, that Siegel informed him that the maximum sentence would be five years, regardless of any additional counts. See Movant's Response to Affidavits, Affirmation and Government Memorandum of Law In Opposition to Habeas Petition ("Pet. Resp. Br.") at 6. After Keats rejected the offer and entered no plea, the Government filed a superseding indictment that charged Keats with six additional counts of wire fraud in violation of 18 U.S.C. § 1343. Vigeland Aff. P 2(c). After a bench trial in April 1990, this Court convicted Keats of all seven federal charges.

 In the meantime, during the time that Keats was awaiting trial before this Court, Keats was arrested on August 30, 1989 pursuant to an investigation by the Manhattan District Attorney. Keats ultimately pleaded guilty in July 1990 to state charges of grand larceny in New York Supreme Court. Id. at 3. The state officials who arrested Keats on August 30, 1989 found a Ryder truck containing Keats's belongings in front of his home, see Sent. Tr. (Oct. 22, 1990) at 40-41, an Israeli visa application, Gov't Ex. 33, an El Al Airlines timetable with notations regarding a flight leaving the next day, Gov't Ex. 34, and a computer printout reserving seats for "Mr. & Mrs. Kats" on a flight to Israel the next day. Gov't Ex. 35. On October 23, 1990, after a sentencing hearing of over three hours, during which Keats testified, Sent. Tr. (Oct. 22, 1989) at 40-45, this Court found that Keats had intended to flee to Israel when he was arrested on August 30, 1989. Sent. Tr. (Oct. 23, 1989) at 98.

 On the same date, this Court sentenced Keats pursuant to the sentencing guidelines to a prison term of 96 months and a fine of $ 100,000. Sent. Tr. (Oct. 23, 1989) at 118. Although Keats's counsel advanced several arguments in support of sentence reduction, the Court found that: the initial offense level was properly set because Keats was responsible for a scheme to cause losses in excess of $ 5 million, id. at 4-6, 100-01; a two-level enhancement was appropriate for more than minimal planning, id. at 6-7, 100; a two-level enhancement was appropriate for obstruction of justice due to Keats' attempted flight, id. at 100; Keats's state conviction mandated an upward departure to the next criminal history category, id. at 101; and it would be legally erroneous to limit the sentence of a multicount case to the longest maximum sentence of only one of those counts, id. at 103-04. The Court did agree that a two-level enhancement for being an organizer was inapplicable in a two-person conspiracy. Id. at 106, 114.

 Keats's counsel argued to the Court, unsuccessfully, that Keats was financially unable to pay the fine. Id. at 119. In his allocution, Keats maintained his innocence. Id. at 108-13.

 On November 1, 1990, Keats appeared before the Court to correct an error in the original sentence by reducing the fine to $ 75,000. Neither Keats nor his attorney requested an indigency hearing at that time. Sent. Tr. (Nov. 1, 1990) 4-5.

 Siegel continued to serve as counsel for Keats on his appeal of his conviction to the United States Court of Appeals for the Second Circuit. The Second Circuit affirmed the conviction and sentence, stating that Keats had failed to meet his burden in challenging the sufficiency of evidence and that no meritorious challenge to the sentence was presented. On behalf of Keats, Siegel also filed a petition for certiorari in the United States Supreme Court. See United States v. Keats, 937 F.2d 58, 68 (2d Cir.), cert. denied, 116 L. Ed. 2d 348, 112 S. Ct. 399 (1991).

 On May 27, 1993, Keats, proceeding pro se, filed a petition pursuant to 28 U.S.C. § 2255 to vacate his conviction and, in the alternative, to alter his sentence. Keats claims that he received ineffective assistance of counsel and that the Court miscalculated his sentence.

 DISCUSSION

 Where, as here, a defendant has failed to raise a claim on direct appeal, his claim is barred from collateral review on a § 2255 petition unless he can demonstrate "cause" for the default of normal appellate procedure and actual "prejudice" from the alleged violation on which the claim is based. See Campino v. United States, 968 F.2d 187, 189 (2d Cir. 1992); see also United States v. Frady, 456 U.S. 152, 167-68, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982). Under the cause and prejudice test, "'cause'. . . must be something external to the petitioner, something that cannot be fairly attributed to him," Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 2566, 115 L. Ed. 2d 640 (1991) (emphasis in original), and the "prejudice" must be so substantial that it undermines the integrity of the entire proceeding. See Frady, 456 U.S. at 170. The Second Circuit has recently carved out an exception to the Campino requirement that a § 2255 petition establish "cause," however, for those § 2255 petitions that raise an issue ...


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