that there is a reasonable probability that counsel's deficient
performance prejudiced him. Petitioner in this case must
demonstrate a reasonable probability that but for Counsel's
errors in considering or explaining a plea offer, he would have
accepted the prosecution's offer. See id, at 381.
This issue presents a question of fact. The Court will not
simply accept a petitioner's self-serving, post-conviction
testimony regarding his intent with respect to a plea offer as
sufficient, by itself, to establish a "reasonable probability"
that he or she would have accepted the plea agreement. See id.
at 381; see also Johnson v. Duckworth, 793 F.2d 898, 902 n. 3
(7th Cir. 1986). As a result, additional "objective evidence"
that Petitioner would have accepted the plea offer is required.
See Gordon, 156 F.3d at 381; see also Toro v. Fairman,
940 F.2d 1065, 1068 (7th Cir. 1991); Diaz v. United States,
930 F.2d 832, 835 (11th Cir. 1991) (finding awareness of plea offer
and after-the-fact testimony concerning desire to plead is
insufficient evidence). In Gordon, the Second Circuit found
the great disparity between the actual maximum sentencing
exposure under the Sentencing Guidelines and the sentence
exposure represented by defendant's attorney to be sufficient
objective evidence to establish a reasonable probability that
the outcome of the proceedings would be different. See Gordon,
156 F.3d at 381; see also Mask v. McGinnis, 233 F.3d 132, 139
(2d Cir. 2000); see also Cullen v. United States,
194 F.3d 401, 407-08 (2d Cir. 1999) (stating that disparity between
actual sentence and sentence available through plea bargain is a
factor in determining whether petitioner suffered prejudice).
Petitioner claims that had he known he would not be eligible
for parole until he served twelve and one-half years, instead of
eight and one-third years as advised by Counsel, then he would
have accepted the plea offer. The record demonstrates that
Petitioner considered the prosecution's plea offer of five to
fifteen years when he thought he faced eight and one-third
years. In fact, Petitioner asked the trial court if he could
consider the plea offer over the weekend. The trial court denied
Petitioner's request, and he declined the plea offer. More
importantly, Counsel's error resulted in a fifty percent
increased in Petitioner's sentence exposure. This disparity
between the actual sentence exposure for parole purposes, and
the sentence exposure erroneously represented by Counsel is
sufficiently great to support the objective component
establishing a reasonable probability that Petitioner would have
accepted the plea offer. When combined with Petitioner's
statement concerning his intentions, Petitioner has demonstrated
prejudice in that he would have accepted the plea offer of five
to fifteen years but for the erroneous advice of Counsel.
Respondent maintains that Petitioner's protestations of
innocence indicate that it is unlikely that he would have agreed
to any plea offer. The Second Circuit has stated that such
contentions of innocence by a defendant are not entirely
dispositive. See Mask v. McGinnis, 233 F.3d 132, 142 (2d Cir.
2000); see also Cullen v. United States, 194 F.3d 401, 407 (2d
Cir. 1999) ("Though Cullen's insistence on his innocence is a
factor relevant to any conclusion as to whether he has shown a
reasonable probability that he would have pled guilty, it is not
dispositive."). Taken in light of the other evidence of
Petitioner's intentions, the Court finds that Petitioner's
protestations of innocence do not forestall a conclusion that he
would have been amenable to a reasonable plea offer.
C. Habeas Remedy
The Supreme Court has announced that the remedy for an
ineffective assistance of
counsel violation "should be tailored to the injury suffered
from the constitutional violation and should not unnecessarily
infringe on competing interests." United States v. Morrison,
449 U.S. 361, 364, 101 S.Ct. 665, 66 L.Ed.2d 564, (1981); see
also United States v. Cox, 245 F.3d 126, 133 (2d Cir. 2001)
(stating that a the remedy for constitutionally ineffective
assistance of counsel should be fashioned specifically tailored
to that error, in order to restore Petitioner as much as
possible "to the circumstances that would have existed had there
been no constitutional error"). Those "competing interests"
include "the necessity for preserving society's interest in the
administration of criminal justice." Id.
The district court has considerable discretion in fashioning a
remedy appropriate under the circumstances. See Gordon, 156
F.3d at 381. There are two realistic remedies applicable in this
case. First, the Court could give Petitioner a second
opportunity to accept the plea offer. However, Petitioner is not
necessarily entitled to specific performance of the previously
rejected plea offer.*fn16 Furthermore, specific performance
of the plea offer is frustrated because the offer of five to
fifteen years is not allowed under N.Y. Penal Law § 70.02(3) and
(4).*fn17 Second, the Court could vacate the judgment and
order a new trial. See Gordon, 156 F.3d at 381-82. As to this
remedy, the Court is hesitant to vacate a jury's guilty verdict
where the trial itself was not affected by constitutional error.
The Court therefore reduces Petitioners sentence to sixteen
and two-thirds years (200 months) with a minimum term of
imprisonment of eight and one-third years (100 months) before
parole eligibility. Under this remedy, Petitioner will be
required to serve, at a minimum, eight and one-third years
before eligible for parole — as informed by Counsel. When faced
with the possibility of a sentence of eight and one-third to
twenty-five years imprisonment, Petitioner rejected the
prosecution's plea offer and opted for trial. This remedy
restores Petitioner as much as possible "to the circumstances
that would have existed had there been no constitutional error."
United States v. Cox, 245 F.3d 126, 133 (2d Cir. 2001).
For the reasons stated above, it is hereby
ORDERED, that petitioner Aeid's application for a writ of
habeas corpus is GRANTED only as it concerns petitioner Aeid's
claim of ineffective assistance of counsel during the plea
bargaining phase; and it is further
ORDERED, that petitioner Aeid's application for a writ of
habeas corpus is DENIED in all other respects; and it is further
ORDERED, the judgment of the conviction is affirmed; and it is
ORDERED, that the sentence is reduced to a term of
imprisonment of sixteen and two-thirds years (200 months) with a
minimum term of imprisonment of eight and one-third years (100
months) before parole eligibility; and it is further
ORDERED, that the Report-Recommendation is APPROVED and
ADOPTED in all, other respects; and it is further
ORDERED, that the Clerk serve a copy of this order on all
parties by regular mail.
IT IS SO ORDERED.