The opinion of the court was delivered by: Leisure, District Judge.
Petitioner pro se Frank Slevin is a federal prisoner
challenging his conviction and sentence pursuant to 28 U.S.C. § 2255.
On September 13, 1999, this Court held an evidentiary
hearing to determine whether petitioner received ineffective
assistance of counsel during pretrial plea negotiations. For
the following reasons, petitioner's § 2255 motion is denied.
On August 16, 1994, petitioner was indicted on ten counts of
mail and wire fraud, conspiracy to commit mail and wire fraud,
and various other offenses relating to the tendering of surety
bonds to private construction contractors. Nine days later,
petitioner, represented by Harry R. Pollak, Esq. ("Pollak"),
tendered a plea of not guilty. The original indictment was then
superseded and redacted, and petitioner was tried on an
indictment charging five counts of mail fraud in violation of
18 U.S.C. § 1341, one count of wire fraud in violation of
18 U.S.C. § 1343, and one count of conspiracy to commit mail and
wire fraud in violation of 18 U.S.C. § 371. Following a
seven-day jury trial before the late Hon. Dominick L. DiCarlo,
Senior Judge of the United States Court of International Trade,
sitting in this Court by designation, on June 13, 1995,
petitioner was convicted on all counts. On December 13, 1995,
petitioner was sentenced by this Court to 78 months'
imprisonment, followed by three years' supervised release, and
a mandatory $350 special assessment.
On December 26, 1995, petitioner filed a notice of appeal.
Despite efforts by petitioner to replace Pollak as his
appellate counsel, Pollak again represented petitioner in those
proceedings. The Second Circuit ultimately affirmed
petitioner's conviction and sentence on December 18, 1996. See
United States v. Slevin, 106 F.3d 1086 (2d Cir. 1996).
Petitioner now seeks § 2255 relief based on allegations that he
received ineffective assistance of counsel both during and
after his trial and during plea pretrial negotiations. On July
28, 1999, this Court denied petitioner relief on various claims
of ineffective assistance. See Slevin, 1999 WL 549010, at
*3-*9. However, this Court granted petitioner's request for an
evidentiary hearing to explore two issues: "(1) whether
petitioner's trial counsel provided ineffective assistance in
advising petitioner with respect to the Government's plea
offer; and (2) whether there is a reasonable probability that,
but for counsel's allegedly erroneous advice, petitioner would
have accepted the Government's plea offer rather than
proceeding to trial." Id. at *13. After petitioner received
the Court's July 28, 1999 Order, but prior to the evidentiary
hearing, it was learned that Pollak was recently deceased.
See Pet. Mem. at 2.
At the hearing, petitioner called two witnesses: himself and
his wife, Margaret Slevin ("Mrs.Slevin"). The Government
produced a single witness, Susan Brune ("Brune"), the former
Assistant United States Attorney who had prosecuted petitioner
and who had allegedly made the plea offer at issue. For the
most part, petitioner reiterated the allegations he set forth
in his affidavit. See September 13, 1999 Hearing Transcript
("Hearing Tr.") at 15-21. Mrs. Slevin testified that her
husband had informed her that he had received a two-year plea
offer from Brune, but that Pollak counseled petitioner to
reject it because, according to Pollak, petitioner was only
facing "two to three years" in prison. See id. at 11-12.
Brune described her discussions with Pollak and explained to
the best of her recollection, how she calculated petitioner's
plea offer. See id. at 62-84. She acknowledged making the
offer, but conceded that she had difficulty recalling its
details. See id. at 66-67. Moreover, she stated that she
never had any direct discussions with petitioner regarding the
plea offer. See id. at 90-91.
Petitioner's sole remaining claim alleges that, during the
pretrial plea negotiation process, Pollak drastically
underestimated petitioner's maximum potential sentencing
exposure. According to petitioner. Pollak advised him that, if
convicted, he would receive "a sentence of two to three years."
Hearing Tr. at 17. Moreover, Pollak allegedly told his client
that "if [he] was a good
person, behaved [him]self well in jail, the likelihood [was he]
would only have one third of the time to do so." Id. at 18.
In other words, had petitioner received the three-year sentence
Pollak allegedly predicted, he would have only been
incarcerated for twelve months. See id. Finally, according to
petitioner's affidavit, counsel stated that petitioner "would
continue to be at home release [sic] on bond during an appeal
that could be taken in the event of a conviction." Pet. Aff. at
In fact, as he later discovered, petitioner was facing the
possibility of a much more substantial prison term.
Petitioner's actual maximum exposure under the relevant
statutes, 18 U.S.C. § 1341 and 1343, was five years for each of
the seven counts on which he was indicated, amounting to a
total possible exposure of thirty-five years.*fn2 That
exposure, and even the 78-month sentence this Court eventually
imposed under the United States Sentencing Guidelines (the
"Guidelines", or "U.S.S.G."), were both far greater than either
the "two or three years" allegedly predicted by petitioner's
counsel or the twelve-month maximum based on "good time"*fn3
that counsel also allegedly advised.
Petitioner asserts that, based on Pollak's alleged erroneous
estimate, he decided to reject the Government's proposed plea
offer of two years' imprisonment in late 1994.*fn4 See id.
at 18-10. At the September 13, 1999 hearing, petitioner alleged
his version of his conversation with Pollak, in which Pollak
allegedly advised him to reject the offer:
Q: What did Mr. Pollak tell you was the plea offer that the
[G]overnment had made to you?
Q: Did you have any further discussion with him about what
had been said?
A: I asked him is two years a normal intelligent plea offer
when, as you told me, I am looking at two to three and you
advised [me that a] first time criminal would get the lower
end, does this make sense?
A: And he said no, it doesn't, your exposure to going to
trial is very, very limited.
Q: Did he give you any recommendation as to whether you
should accept or reject the plea offer?
A: He told me to reject the plea offer.
Petitioner further testified that, before deciding to go to
trial, he discussed the offer with his wife and "looked at the
risk exposure that was there." Id. at 19-20. He also stated
unequivocally that, had he been adequately informed of his
actual sentencing exposure, he would have accepted the
Government's plea offer:
Q: If you had been told at the time by Mr. Pollak or someone
on his behalf that the actual exposure, the jail exposure you
might have after being convicted at trial would be in the
range of six and a half years, would your ...