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
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
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.
In preparation for the murder, Gluzman took Zelenin to see Yakov's
apartment. They went to the Home Depot, and following discussions, decided
on and purchased the tools, including axes and saws, latex gloves, and
clean-up items necessary to kill and dismember Yakov. Their first attempt
to kill Yakov was thwarted when,
though they waited in his apartment all night, Yakov did not come home. A
week later, on April 6, they succeeded in killing Yakov. Prior to
entering Yakov's apartment, Gluzman used a pay phone to call the
apartment and ensure it was vacant. She and Zelenin then entered the
apartment and lay in wait. When Yakov came home, Gluaman and Zelenin set
upon him with their axes. During the attack, Gluzman accidentally cut
Zelenin with her ax. As Zelenin tended to his wound, Gluzman noticed that
Yakov was still breathing, and repeatedly plunged a knife in his torso.
Zelenin then dismembered the body while Gluzman cleaned the apartment.
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
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 ...