his recollection by reading from the transcript of the sentencing proceedings (Ex. 15), Mr. Humann testified that petitioner again mentioned to the judge that he had not taken his medication on the day of the robbery. None of these instances of petitioner's behavior caused Mr. Humann to reconsider investigating the issue of petitioner's competency at the time of the robbery.
On cross-examination, Mr. Humann testified that he had been a criminal defense attorney for twenty-two years, with extensive trial experience in federal and state courts in all kinds of criminal cases. He first met with petitioner on June 16, 1994. He explained to petitioner that his first option was to try the case. Mr. Humann suggested to petitioner that, based on the strength of the evidence, including the written confession and the surveillance photographs, the only way he could defend the case would be to pursue the insanity defense. In Mr. Humann's opinion, the insanity defense is particularly difficult to raise in federal court, and it is not typically raised in a bank robbery case. With respect to petitioner's case, his statement that he changed his clothes at the Salvation Army both before and after the robbery showed that he thought about how the robbery would be accomplished and how he would conceal his identity. In addition, he said he did it because he was hungry and needed the money. These statements did not fit the scenario of an insanity defense. Petitioner had a lengthy criminal history, including several plea proceedings conducted after he was diagnosed with schizophrenia in 1983. In none of those proceedings was the issue of petitioner's mental competency raised.
Mr. Humann testified that when he discussed these matters with petitioner, petitioner told him that he knew he had to do his time and just wanted to get it over with. He told Mr. Humann he robbed the bank because he was drunk, he was hungry, and he needed the money. Petitioner never told Mr. Humann that he did not know what he was doing at the time of the robbery because he was not taking his Prolixin. The first time Mr. Humann became aware of this was during the plea proceedings. Mr. Humann advised petitioner that if he pursued this tact there was a potential that the judge might not grant the three-point reduction allowed under the sentencing guidelines for acceptance of responsibility, which was the advantage of taking the plea. In fact, prior to the sentencing, Mr. Humann received correspondence from Judge Elfvin in which he indicated that he was considering not granting the sentence reduction, based on information contained in the presentence investigation report suggesting that petitioner did not fully cooperate with the probation officer during the presentence interview (Ex. 14). Mr. Humann was able to persuade Judge Elfvin to grant the three-point reduction (see Ex. 15).
Mr. Humann further testified that he discussed with petitioner the potential sentencing consequences, the benefits of taking the plea, and the importance of the three-point reduction. Petitioner also indicated to Mr. Humann that he wanted to get out of the Monroe County facility as quickly as possible, and that he wanted to take advantage of the counseling, jobs and exercise available at a long-term facility.
The court received Government Exhibits 1A, 1B, 2-4, 5A, 5B, 6-16, 20-23, 30, 31A, 32, and 101-105 into evidence. The court also received post-hearing memoranda from the parties. The sole issue for determination on this petition is whether the testimony and other evidence presented at the hearing establishes that defense counsel rendered ineffective assistance within the meaning of the Sixth Amendment.
I. 28 U.S.C. § 2255.
As outlined by Judge Elfvin in his prior memorandum and order in this case, 28 U.S.C. § 2255 authorizes a federal prisoner to challenge the legality of his sentence on the ground that the sentence "was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. Although its language refers primarily to the prisoner's "sentence," the statute authorizes post-conviction challenges to both sentences and convictions. See Davis v. United States, 417 U.S. 333, 343-344, 41 L. Ed. 2d 109, 94 S. Ct. 2298 (1974). The statute is often referred to as a "habeas corpus" provision, but rather than authorizing the granting of a writ, the statute provides jurisdiction for a federal court to consider a motion that is, in effect, a continuation of the underlying criminal proceeding. See Short v. United States, supra, 1997 U.S. Dist. LEXIS 7407, 1997 WL 276229, at *1(citing 28 Moore's Federal Practice, § 672.02[b] (3d ed.1997). "Similarly, although prisoners who initiate proceedings pursuant to section 2255 actually file motions rather than petitions, their initial motion papers are generally referred to as petitions, and the prisoners who file them are invariably referred to as petitioners rather than as movants." Id.
With these preliminary considerations in place, the court turns to the requirements for § 2255 relief based on a claim of ineffective assistance of counsel.
II. Ineffective Assistance.
In order to succeed on his § 2255 challenge to the conviction in this case, petitioner must show (1) that counsel's representation fell below an objective standard of reasonableness, which is determined by the range of competence demanded of attorneys in criminal cases, and (2) prejudice-- i.e., a reasonable possibility that, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial with the obvious chance of being acquitted. Hill v. Lockhart, 474 U.S. 52, 56-59, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985)(citing Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); other citations omitted); see also United States v. Coffin, 76 F.3d 494, 498 (2d Cir.), cert. denied, 517 U.S. 1147, 116 S. Ct. 1445, 134 L. Ed. 2d 565 (1996)); Panuccio v. Kelly, 927 F.2d 106, 108 (2d Cir. 1991). Because the failure to establish prejudice can be dispositive of a § 2255 application, the reasonableness of counsel's representation need not be addressed if the petitioner cannot show prejudice. Strickland, supra, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed."); see also United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir, 1996).
As stated by the Supreme Court in Hill :
The resolution of the "prejudice inquiry," i.e., the second prong of the dual showing, is closely related to the objective prediction of whether the defense could succeed if the case went to trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.
Hill v. Lockhart, 474 U.S. at 59-60; see also United States v. Torres, 113 F.3d 1230 (2d Cir. 1997)(unpublished disposition; text at 1997 WL 279893); United States v. Kauffman, 109 F.3d 186, 191 (3d Cir. 1997)("If the ineffectiveness alleged was a failure to investigate thoroughly, which in turn caused the defendant to plead guilty, the defendant must show a likelihood that some evidence would have been discovered which would have caused the attorney to change his recommendation to enter into a plea agreement."); Panuccio v. Kelly, supra, 927 F.2d at 109 ("The likelihood that an affirmative defense will be successful at trial and an assessment of the probable increase or reduction in sentence relative to the plea if the defendant proceeds to trial are clearly relevant to the determination of whether an attorney acted competently in recommending a plea.").
The Insanity Defense Reform Act of 1984 ("IDRA"), 18 U.S.C. § 17, established a uniform standard for the insanity defense in all federal prosecutions, as follows:
(a) Affirmative defense.--It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.