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BARNETT v. UNITED STATES

December 12, 1994

BERNARD BARNETT, Petitioner, against UNITED STATES OF AMERICA, Respondent.

David N. Edelstein, U.S.D.J.


The opinion of the court was delivered by: DAVID N. EDELSTEIN

EDELSTEIN, Senior District Judge:

 Petitioner Bernard Barnett brings this motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. *fn1"

 BACKGROUND

 On December 20, 1990 petitioner was indicted for narcotics conspiracy, possession with intent to distribute crack, possession with intent to distribute heroin, use of a firearm in relation to a drug trafficking crime, felony possession of a firearm, and maintaining a place to manufacture and distribute a controlled substance, in violation of 21 U.S.C. §§ 846, 812, 841(a)(1), 841(b)(1)(A), and 856(a)(1), and 18 U.S.C. §§ 924(c) and 922(g)(1). Petitioner pleaded not guilty to all charges.

 On January 3, 1991, petitioner's counsel informed this Court that counsel intended to file pre-trial motions, and accordingly this Court ordered that the time from January 3, 1991 until the final adjudication of these motions be excluded from Speedy Trial Act calculations. On May 22, 1991, petitioner's counsel filed a pre-trial motion, alleging a number of claims. On October 17, 1991, this Court issued an Opinion and Order, denying petitioner's motion in all respects. See United States v. Roberts, 1991 U.S. Dist. LEXIS 14758, No. 90 CR 913 (DNE), 1991 WL 221099 (S.D.N.Y. Oct. 17, 1991), aff'd, 9 F.3d 1537 (2d Cir. 1993) (Table), cert. denied, 114 S. Ct. 1630, 128 L. Ed. 2d 353 (1994). On November 19, 1991, petitioner's trial began, and seventeen days later, a jury found petitioner guilty on all counts.

 Petitioner then appealed his conviction. At an unspecified time while petitioner's appeal was pending, petitioner wrote a lengthy appellate brief. Petitioner alleges that he sent this brief to his attorney, instructing his attorney to raise all of the issues that petitioner raised in the brief. Thereafter, petitioner submitted this brief to the Second Circuit, but the Second Circuit refused to consider it and forwarded it to petitioner's counsel. The Second Circuit affirmed petitioner's conviction without opinion, and the Supreme Court denied certiorari. See United States v. Roberts, 9 F.3d 1537 (2d Cir. 1993) (Table), cert. denied, 114 S. Ct. 1630, 128 L. Ed. 2d 353 (1994).

 Petitioner now seeks relief under 28 U.S.C. § 2255. He contends that thirteen grounds entitle him to § 2255 relief. Petitioner did not raise seven of these grounds on direct appeal. Although Petitioner asserts that he raised the other six grounds on direct appeal, *fn2" nowhere in his motion papers does he state what any of these six claims is. Further, petitioner fails to allege any facts that would support these unspecified claims.

 DISCUSSION

 As an initial matter, petitioner is not entitled to relief based on the six claims that he purportedly raised on direct appeal because petitioner has entirely failed to state what these claims are. See Rules Governing Section 2255 Proceedings in the United States District Court Rule 2(b) (stating that a § 2255 motion "shall specify all the grounds for relief which are available to the movant . . . and shall set forth in summary form the facts supporting each of the grounds thus specified"). Although district courts employ substantial leniency in interpreting motion papers that pro se petitioners submit, it is simply impossible for this Court to determine whether petitioner has made out a case for relief on these six claims because petitioner has failed to state both the grounds on which relief is requested and any facts that would substantiate these grounds.

 In addition, if, as petitioner contends, the Second Circuit previously considered these six grounds on petitioner's direct appeal, these grounds do not entitled petitioner to § 2255 relief. It is well settled that "'section 2255 may not be employed to relitigate questions which were raised and considered on direct appeal.'" Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992) (quoting Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986) (per curiam)); see also United States v. Natelli, 553 F.2d 5, 7 (2d Cir.) (per curiam) ("once a matter has been decided adversely to a defendant on direct appeal it cannot be relitigated in a collateral attack under section 2255"), cert. denied, 434 U.S. 819, 54 L. Ed. 2d 75, 98 S. Ct. 59 (1977). Insofar as the Second Circuit considered these claims on direct appeal, petitioner may not relitigate them on this motion.

 Petitioner further contends that he is entitled to § 2255 relief based on seven grounds that were not raised on direct appeal. These grounds are: (1) illegal search, seizure, and arrest; (2) jury tampering; (3) void indictment; (4) selective prosecution; (5) variance at trial; (6) ambush and speedy trial violation; and (7) illegal sentence.

 All seven of these claims are within the scope of § 2255. The first six claims are collateral attacks on petitioner's sentence. See 28 U.S.C. § 2255 (petitioner may bring collateral attacks on his sentence by a § 2255 motion). The seventh claim asserts that petitioner's sentence violates the laws of the United States. See id. (petitioner may bring a § 2255 motion on the ground that his sentence violates the laws of the United States).

 The rule is well settled that a petitioner who fails to raise a claim on direct appeal cannot raise that claim on a § 2255 motion "unless he can establish both cause for the procedural default and actual prejudice resulting therefrom." Billy-Eko v. United States, 8 F.3d 111, 114 (2d Cir. 1993) (citing United States v. Frady, 456 U.S. 152, 167-68, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982)); see also Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992) (holding that the "cause and prejudice" requirement applies to federal prisoners seeking § 2255 relief for constitutional errors). Thus, because petitioner concedes that these seven claims were not appealed, he is barred from raising these claims unless he can demonstrate both cause and prejudice.

 Petitioner argues that ineffective assistance of counsel was the cause of his failure to raise these seven claims on direct appeal. *fn3" Petitioner states that he wrote a 135-page brief, which raised various arguments, and that he sent this brief to his attorney with instructions to include these arguments in the brief that the attorney submitted to the Second Circuit. Petitioner asserts that his attorney failed to raise many of these arguments, including the seven grounds on which petitioner now seeks relief.

 Ineffective assistance of counsel not only constitutes a ground for § 2255 relief, but it also can constitute cause for failure to raise an issue on direct appeal. *fn4" See Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986) ("Ineffective assistance of counsel, then, is cause for a procedural default."); Smith v. South Carolina, 882 F.2d 895, 898 (4th Cir. 1989) (recognizing that ineffective assistance of counsel constitutes cause for failure to raise an issue on direct appeal), cert. denied, 493 U.S. 1046, 107 L. Ed. 2d 838, 110 S. Ct. 843 (1990); Cantone v. Superintendent, 759 F.2d 207, 218 (2d Cir.) (same), cert. denied, 474 U.S. 835, 106 S. Ct. 109, 88 L. Ed. 2d 89 (1985). To establish ineffective assistance of counsel as the cause of a procedural default, "petitioner must show that his counsel was ineffective for the purpose of the sixth amendment." Cantone, 759 F.2d at 218; see also Smith, 882 F.2d at 898 (attorney's failure to raise a non-frivolous issue on appeal only constitutes cause for procedural default if attorney's failure fulfills the standard for ineffective assistance of counsel). Therefore, in order to determine whether petitioner has shown cause for his failure to raise these seven grounds on direct appeal, it must be determined whether his attorney's failure to raise these claims constitutes ineffective assistance of counsel.

 The sixth amendment to the Constitution guarantees criminal defendants the right to counsel. As the Supreme Court has noted, "the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial." Strickland v. Washington, 466 U.S. 668, 684, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864, 104 S. Ct. 3562 (1984). The right to counsel protects a defendant's right to a fair trial because "access to counsel's skill and knowledge is necessary to accord defendants . . . 'ample opportunity to meet the case of the prosecution.'" Id. (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 275-76, 87 L. Ed. 268, 63 S. Ct. 236 (1942)). Because counsel plays such a crucial role, the Supreme Court has recognized that "'the right to counsel is the right to the effective assistance of counsel.'" 466 U.S. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970)). Thus, if a defendant's counsel fails to render adequate legal assistance, defendant's sixth amendment rights are violated. See id. (citing Cuyler v. Sullivan, 446 U.S. 335, 344, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980)).

 The Supreme Court has established a two-part test for determining whether an attorney's representation constitutes ineffective assistance of counsel. "First, the defendant must show that counsel's performance was deficient." 466 U.S. at 687. "Second, the defendant must show that the deficient performance prejudiced the defense." Id. Although the Strickland test was formulated to determine whether trial counsel was ineffective, "the same test is used with respect to appellate counsel." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (citing Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 124 L. Ed. 2d 256, 113 S. Ct. 2347 (1993); Adburraham v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990)), cert. denied, 130 L. Ed. 2d 35, 115 S. Ct. 81 (1994).

 To satisfy the first prong of the Strickland test, a defendant must show that "his attorney's performance 'fell below an objective standard of reasonableness.'" See Mayo, 13 F.3d at 533 (quoting Strickland, 466 U.S. at 688). The Supreme Court has eschewed articulating a rigid set of standards for determining whether an attorney's conduct is reasonable, stating instead that "the proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688.

 The Supreme Court has, however, explained the method that a federal court should employ in determining whether an attorney's performance was reasonable. The Court has instructed that "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound . . . strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83 (1955)). The presumption is necessary because "it is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." 466 U.S. at 689 (citation omitted). Further, to prevent a federal court from second-guessing counsel's actions, a court may not use hindsight in evaluating whether an attorney's conduct was reasonable. See Id.; Mayo, 13 F.3d at 533 (citation omitted).

 Moreover, the Supreme Court has examined whether counsel's failure to raise a non-frivolous issue on appeal constitutes ineffective assistance of counsel. See Jones v. Barnes, 463 U.S. 745, 77 L. Ed. 2d 987, 103 S. Ct. 3308 (1983). In Jones, after defendant was convicted in state court of robbery and assault, he wrote a letter to his appellate counsel "listing several claims that he felt should be raised" on appeal. Id. at 747. Defendant's attorney wrote a return letter in which he "accepted some but rejected most of the suggested claims." Id. The state appellate court affirmed defendant's convictions, and defendant exhausted his state-court remedies. See id. at 748-49. Thereafter, defendant sought a writ of habeas corpus on the ground that he had been denied effective assistance of appellate counsel because his attorney failed to raise several issues on appeal that defendant had instructed counsel to raise. See id. at 749. Although the district court rejected defendant's argument, the Second Circuit reversed, holding that if an appellant instructs his counsel to raise non-frivolous issues on appeal, "counsel must argue the additional points to the full extent of his professional ability." Barnes v. Jones, 665 F.2d 427, 433 (2d Cir. 1981) (citations omitted), rev'd, 463 U.S. 745, 77 L. Ed. 2d 987, 103 S. Ct. 3308 (1983).

 The Supreme Court reversed, holding that a defendant has no constitutional right to have appellate counsel raise every nonfrivolous issue on appeal, even if defendant requests that counsel raise a specific issue. See Jones, 463 U.S. at 754. In reaching this conclusion, the Court stressed that "experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Id. at 751-52. Because requiring appellate counsel "to raise every 'colorable' claim suggested by a client would disserve the very goal of ...


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