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HORNICK v. UNITED STATES

June 23, 1995

DELORES HORNICK, Petitioner, against United States of America, Respondent.


The opinion of the court was delivered by: THOMAS J. MCAVOY

 Before the court is petitioner Delores Hornick's motion for a modification of her sentence made pursuant to 28 U.S.C. section 2255. The petitioner alleges ineffective assistance of counsel as the grounds for her motion.

 I. BACKGROUND

 On October 13, 1989, the petitioner, Delores Hornick, appeared before this court and was convicted before a judge and jury for mail fraud, travel fraud, conspiracy to commit mail fraud and wire fraud, conspiracy to impede the Internal Revenue Service, Obstruction of Justice, and Aiding and Abetting the Obstruction of Justice. All of these charges related to the fraudulent sale of limited partnerships in oil well projects. On January 30, 1990, Delores Hornick was sentenced 60 months and 24 months to be served consecutively. Ms. Hornick then initiated a claim of ineffective assistance of counsel and presented it to the Second Circuit Court of Appeals on direct appeal from her underlying conviction. United States v. Hornick, 942 F.2d 105, 107 (2d. Cir. 1991). After the Second Circuit affirmed the District Court's decision (see, Id.), Ms. Hornick sought permission to appeal the Second Circuit's denial of her ineffective assistance of counsel claim to the United States Supreme Court. The Supreme Court denied certiorari. See, Hornick v. United States, 502 U.S. 1061, 117 L. Ed. 2d 112, 112 S. Ct. 942 (1992). Delores Hornick is currently incarcerated at F.C.I. Danbury, CT.

 On November 25, 1994, Ms. Hornick filed this petition to vacate, set aside or correct her sentence under 28 U.S.C. section 2255. In support of this motion, Ms. Hornick alleges ineffective assistance of counsel. For the reasons stated below, this court dismisses her petition under 28 U.S.C. section 2255.

 II. DISCUSSION

 A. Attack on Ineffective Assistance of Counsel

 In order to establish a claim for ineffective assistance of counsel in a section 2255 motion, the petitioner must show 1) that the attorney's representation was unreasonable under prevailing professional norms, and 2) that there was a reasonable probability that, but for the counsel's unprofessional errors, the result of the initial proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 690, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

 In performing this analysis, the court has a strong interest in not second-guessing the tactical decisions made by defense counsel. In other words, as the government asserts, the court should not play "monday morning quarterback". Such scrutiny by the court, aided by hindsight, would undermine the finality of a judgment and could adversely affect "counsel's performance and even willingness to serve." Id. at 690. Rigid requirements for acceptable conduct "could dampen the ardor and impair the independence of defense, discourage the acceptance of assigned cases, and undermine the trust between attorney and client." Id. As a result of these interests, defense counsel "is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id.

 It is in light of this presumption that the court turns to petitioner's claim of ineffective assistance, which is based on her assertions that: 1) her attorney, Jon Blechman, Esq., represented the government's "main witness" against her; 2) Mr. Blechman never called her as a witness to present a defense, 3) Mr. Blechman did not call his former client as a witness in Hornick's defense; and 4) the trial court never held an inquiry into Mr. Blechman's possible conflict of interest. The court finds each of these claims to be without merit.

 1) Representation of the Government's Main Witness

 After the Affidavit was filed, this court conducted an ex parte proceeding in order to resolve the conflict issue. The court then asked the government to indicate whether Ballard would be called as a witness and the government responded that Mr. Ballard would not be called. Since Blechman did not then represent Mr. Ballard, nor would Blechman be called upon to cross-examine his ex-client, this court ruled there was no existing conflict. The court maintains this position after completely reviewing the record.

 In order for Ms. Hornick to establish ineffective assistance of counsel on the basis of a conflict of interest, Ms. Hornick must prove that "an actual conflict of interest adversely affected her lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 350, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980). Further, the defendant-petitioner must identify an actual conflict of interest. Allegations of wrongdoing alone will not rise to the level of an actual conflict unless the charges have some foundation. United States v. Jones, 900 F.2d 512, 519 (2d Cir. 1990). In her petition, however, Ms. Hornick has offered only general allegations that her attorney's previous relationship with a possible witness constituted ineffective assistance. Furthermore, petitioner's assertion that Mr. Ballard was the government's "main witness" is without merit. In fact, neither side called upon Mr. Ballard to testify in this case, thereby vitiating any possible conflict of interest claim. The petitioner bears the burden of demonstrating that a conflict in fact exists. Simply because an attorney previously represented a possible ...


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