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December 7, 2000


The opinion of the court was delivered by: Barrington D. Parker, Jr., District Judge.

In this federal habeas corpus proceeding, Rita Gluzman challenges her incarceration following her conviction in January 1997 in this Court for the ax-murder and dismemberment of her estranged husband Yakov. See 28 U.S.C. § 2255. Specifically, at trial she was convicted of conspiracy to commit, and the actual commission of, the interstate domestic violence murder of her husband in violation of 18 U.S.C. § 371 and 2261(a)(1) (Counts 1 and 2); unlawful interception of wire communications in violations of 18 U.S.C. § 2511 (1)(a) (Count 3); and unlawful use of a wire to intercept oral communications in violations of 18 U.S.C. § 2511 (1)(b). In April 1997, Petitioner was sentenced to life imprisonment followed by five years supervised release and a $200 special assessment.

Ms. Gluzman was represented at trial by Lawrence Hochheiser, Esq., Michael Rosen, Esq., Felicia Reinhardt, Esq. and Dairmuid White, Esq. She appealed her conviction to the United States Court of Appeals for the Second Circuit. On appeal she was represented by Mr. Hochheiser, Mr. Rosen, as well as by Judd Burstein, Esq. Her conviction was affirmed in August 1998. United States v. Gluzman, 154 F.3d 49 (2d Cir. 1998). She petitioned for a writ of certiorari and in that proceeding was represented by Allen E. Untereiner, Esq. Certiorari was denied in March 1999. Gluzman v. United States, 526 U.S. 1020, 119 S.Ct. 1257, 143 L.Ed.2d 353 (1999).

Ms. Gluzman now, with another set of lawyers — Daniel Meyers, Esq., Richard Reeve, Esq. and Margaret Ratner, Esq., (as well as Mt. Untereiner) — petitions for a writ of habeas corpus claiming that she was denied effective assistance of counsel at trial. Her post-trial lawyers, emboldened by the clarity of hindsight, devote most of the Petition to second guessing various difficult strategic and tactical problems faced at trial and at sentencing by Ms. Gluzman's skilled and experienced trial counsel who were confronted with a plethora of unhelpful facts, with federal law that criminalized Ms. Gluzman's conduct, as well as with committed and able professional adversaries from the United States Attorney's office.

The record herein belies new counsel's claim of ineffectiveness, since the conduct of trial counsel met and surpassed applicable constitutional standards. The Petition is facially meritless and raises no factual issues that bear exploration in an evidentiary hearing. See Newfield v. United States, 565 F.2d 203, 207 (2d Cir. 1977). The government has accepted Petitioner's averments. No evidentiary hearing is required because, "the motion and the files and records of the case conclusively show that the petitioner is entitled to no relief." 28 U.S.C. § 2255.

To prevail on a claim of ineffective assistance of counsel, a defendant is required to overcome a "strong presumption" that her attorneys' conduct was reasonable and to show that the representation accorded fell below an objective standard of reasonableness under prevailing professional norms and, in addition, must affirmatively demonstrate prejudice. Strickland v. Washington, 466 U.S. 668, 687-89, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In this context prejudice means "a reasonable probability that but for counsel's unprofessional errors, the results of the proceeding would have been different." Id. at 693-94, 104 S.Ct. 2052; accord Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).

Strickland cautions that "there are countless ways to provide effective assistance in a given case" and that "even the best criminal defense attorneys would not defend the particular client the same way." 466 U.S. at 689, 104 S.Ct. 2052. Among the "virtually unchallengeable" tactical decisions left to the judgment of trial counsel are determinations regarding the defense strategy adopted at trial. See United States v. Simmons, 923 F.2d 934, 956 (2d Cir.) (defendant's displeasure with counsel's strategy does not establish ineffectiveness), cert. denied; 500 U.S. 919, 111 S.Ct. 2018, 114 L.Ed.2d 104 (1991); United States v. DiTommaso, 817 F.2d at 215 (lack of success of chosen strategy does not warrant judicial second-guessing). "Actions or omissions by counsel that might be considered sound trial strategy do not constitute ineffective assistance." Mason v. Scully, 16 F.3d 38, 42 (2d Cir. 1994) (internal quotation omitted); accord United States v. Smith, 198 F.3d 377 386 (2d Cir. 1999) (reasonably made strategic calls do not support ineffective assistance claim); United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992) ("decisions that fall squarely within the ambit of trial strategy, . . . if reasonably made, cannot support an ineffective assistance claim") (internal quotation omitted), cert. denied, 507 U.S. 998, 113 S.Ct. 1619, 123 L.Ed.2d 178 (1993). Accordingly, the reviewing court "may not use hindsight to second-guess [counsel's] strategy choices." Mayo v. Henderson, 13 F.3d at 533.

The Petition fails the first prong of the Strickland test since, as shown below, it essentially challenges various strategical and tactical decisions of trial counsel without proper acknowledgment of the fact that such decisions are, as the case law teaches, uniquely ill-suited to judicial second guessing and if, reasonable (as they are here), cannot support an ineffective assistance claim. See Mayo v. Henderson, 13 F.3d at 533.

Furthermore, the second prong of the Strickland test has not been met. Neither the Petition nor the supporting documentation comes close to showing that any errors of trial counsel — even assuming them to exist — were of sufficient seriousness as to deprive the defendant of a fair trial whose results could be considered reliable. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

The linchpin of the prejudice test is, of course, the government's case. See Strouse v. Leonardo, 928 F.2d 548 (2d Cir. 1991). The government's evidence at trial showed that Gluzman painstakingly planned Yakov's murder in order to thwart Yakov's attempts to divorce her and pursue a relationship with another woman. Weeks in advance Gluzman, a successful scientist and businesswoman, recruited Zelenin to assist her in the murder by threatening to withhold assistance he believed necessary for him and his children to avoid deportation back to Kyrgistan. At Gluzman's direction security experts unwittingly planted a recording device on the telephone line in Yakov's apartment, and Gluzman surreptitiously retrieved and reviewed the tapes. She contacted other investigators about various bizarre schemes to disrupt Yakov's relationship with his girlfriend and sent threatening letters to Yakov's family in Israel.

The following day Zelenin was caught disposing of Yakov's remains in the Passaic River. Before Zelenin confessed, and even before the police knew who the victim was, Gluzman had fled. She successfully eluded the police for nearly a week, hiding out on the grounds and in a guest cottage of the Cold spring Harbor Laboratory, where her husband had been employed years earlier. During that week she had dyed her hair, switched the license plates on her car for ones she had stolen, and used aliases. She used a telephone calling card to call various international airlines, and at the time of her arrest had several foreign travel guides with her. These and other details were elicited at trial by the government from Zelenin who, pursuant to a cooperation agreement, was the government's principal witness.

New counsel claims that trial counsel should have imprinted mental incompetence and diminished capacity themes on these facts which reflect considerable rational and cognitive capacity. Specifically, Petitioner's first claim is that trial counsel was ineffective because they neglected to pursue a psychiatric evaluation of Ms. Gluzman to access her competence to stand trial, despite what is termed a "documentary history of severe mental illness." Under 18 U.S.C. § 4241, to demonstrate a lack of competence to stand trial the petitioner would have to demonstrate that she was "suffering from a mental disease or defect rendering him mentally incompetent to the extent he is unable to understand the nature, consequence or the proceeding against him or to assist properly in his defense." Id.

The standard for determining whether a defendant is competent to stand trial is well-settled. "[T]he defendant must have (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and (2) a rational as well as factual understanding of the proceedings against him." United States v. Morrison, 153 F.3d 34, 46 (2d Cir. 1998) (internal quotation marks and citations omitted); accord Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d ...

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