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U.S. v. ERDIL

November 15, 2002

UNITED STATES, RESPONDENT,
V.
NAMIK ERDIL, PETITIONER.



The opinion of the court was delivered by: Spatt, District Judge

    MEMORANDUM OF DECISION AND ORDER

Namik Erdil ("Erdil" or the "petitioner") by petition dated November 2, 2000, seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The Government seeks dismissal of Erdil's petition.

I. BACKGROUND

On February 19, 1999, Erdil, a citizen of Turkey, pled guilty to two counts which charged him with conspiracy to commit bank fraud, credit card fraud and laundering money, and bank fraud. During the plea allocution proceedings held on February 19, 1999, Erdil was represented by a court-appointed attorney. The Court asked Erdil whether he understood the nature of the counts in the indictment, and Erdil responded that he and his counsel discussed the plea agreement and that he understood the terms of the agreement. In addition, Erdil stated that he understood his rights and the consequences of pleading guilty. He further asserted that he was satisfied with the assistance of his attorney and that he did not need more time to discuss with his attorney the question of his guilty plea.

Erdil entered into a cooperation agreement with the Government, in which Erdil was promised a 5K1.1 letter in return for his "substantial assistance." On September 29, 1999, the Government notified Erdil that because the information he supplied to the Government did not rise to the level of "substantial assistance," it would not move for a downward departure pursuant to U.S.S.G. § 5K1.1.

On November 5, 1999, Erdil was sentenced by this Court to 57 months imprisonment, with credit for time already served. The Court further imposed a term of five years of supervised release to commence upon his release from prison. In addition, a special assessment charge of $200 was imposed, and the Court ordered Erdil, upon release, to pay restitution in the amount of $424,722.31 to be paid at the rate of 10% of Erdil's gross monthly income until the amount of restitution is paid in full to the Clerk of the Court.

Pursuant to 28 U.S.C. § 2255, Erdil petitions this Court to vacate, set aside, or correct his sentence on the grounds that (1) his counsel was unconstitutionally ineffective in failing to (a) inform him of his rights under the consular notification provision of the Vienna Convention on Consular Relations ("Vienna Convention"), Apr. 24, 1963, art. 36, 21 U.S.T. 77, 596 U.N.T.S. 261; (b) challenge the amount of fraudulent money charged against him, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000); and (c) challenge the indictment for money laundering pursuant to 18 U.S.C. § 1956; and (2) the Government acted in bad faith when it declined to make a 5K1.1 downward departure motion at his sentencing. Finally, Erdil argues that the Court failed to consider his ability to pay before ordering him to pay $424,722.31 in restitution. The Government seeks to dismiss all of Erdil's claims.

II. DISCUSSION

1. Standard of Review

As stated by the Second Circuit, "because requests for habeas corpus relief are in tension with society's strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack." Ciak v. United States, 59 F.3d 296, 301 (2d Cir. 1995) (citing United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584 (1982)). As a result, prisoners seeking habeas corpus relief pursuant to Section 2255 must show both a violation of their constitutional rights and "substantial prejudice" or a "fundamental miscarriage of justice." Ciak, 59 F.3d at 301.

Further, in Section 2255 proceedings, the Supreme Court has recognized the rule of "procedural default: [that prisoners] cannot assert claims they failed to raise at trial or on direct appeal unless they can show `cause' for the default and `prejudice' resulting from it." Id. at 302 (citing Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497 (1977)); see also Reed v. Farley, 512 U.S. 339, 114 S.Ct. 2291 (1994). The general rule is that a writ of habeas corpus is not a substitute for an appeal. "Where the petitioner — whether a state or federal prisoner — failed properly to raise his claims on direct review, the writ is available only if the petitioner establishes `cause' for the waiver and shows `actual prejudice from the alleged . . . violation.'" Id. at 354 (citing Wainwright, 433 U.S. 84, 97 S.Ct. 2497.

However, the traditional procedural default rule generally will not apply to ineffective assistance of counsel claims where a petitioner was represented by the same attorney at trial and on direct appeal and where such claims depend on matters outside the scope of the record of a direct appeal. Billy-Eko v. United States, 8 F.3d 111, 114 (2d Cir. 1993). Billy-Eko added that, "ineffective assistance of counsel claims are appropriately brought in § 2255 petitions even if overlooked on direct appeal because resolution of such claims often requires consideration of matters outside the record on direct appeal. . . ." Id. (citations omitted). Thus, ineffective assistance of counsel claims may be raised for the first time in a habeas petition. See United States v. Matos, 905 F.2d 30, 32 (2d Cir. 1990). Therefore, while the petitioner did not raise an ineffective assistance of counsel claim on direct appeal, the Court is required to examine the merits of such a claim under Section 2255.

To establish an ineffective assistance of counsel claim, the petitioner must "show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052 (1984). Moreover, the petitioner must show that the "deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. 2051. In order to show prejudice, the petitioner must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." United States v. Caputo, 808 F.2d 963, 967 (2d Cir. 1987) (quoting United States v. Cruz, 785 F.2d 399, 405 (2d Cir. 1986)). The Court's determination, however, must be highly deferential to counsel as, "it is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence." Strickland, 466 U.S. at 689. While the Court must presume that counsel's conduct was reasonable, the Court nonetheless is mindful that the petitioner is proceeding pro se and thus, his submissions will be liberally construed. See Douglas v. United States, 13 F.3d 43, 47 (2d Cir. 1993).

A. Vienna Convention

Erdil argues that the Government violated Article 36 of the Vienna Convention by not advising him of his rights to notify the consular post of Turkey of his arrest, and that his attorney was unconstitutionally ineffective by not moving to dismiss the indictment on this basis. As discussed above, to prevail on a claim for ineffective assistance of counsel, Erdil must establish two elements: (1) his counsel's performance "fell below an objective standard of reasonableness"; and (2) but for the deficiency, there is "a reasonable probability" that the outcome of the proceeding would have been different. Strickland, 466 U.S. at 687-96, 104 S.Ct. 2052 (1984). As demonstrated below, Erdil establishes neither prong of this test because a ...


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