United States District Court, S.D. New York
April 28, 2004.
DEBORAH J. BRECKENRIDGE, Petitioner, -against- UNITED STATES OF AMERICA, Respondent
The opinion of the court was delivered by: JOHN KOELTL, District Judge
OPINION and ORDER
Deborah J. Breckenridge, appearing pro se, moves pursuant to
28 U.S.C. § 2255 to vacate, set aside, or correct her sentence.*fn1
Breckenridge claims that she received ineffective assistance of counsel
at sentencing because: (1) her counsel failed to pursue her request to
review the evidence against her (2) her counsel failed to demand a
factual basis for determining the amount of the loss by New York Life
Insurance Company ("NYL"); and (3) her counsel advised her not to file a
direct appeal. Read generously, Breckenridge's motion also presents a
claim challenging the Government's refusal to make a § 5K1.1
application. None of these claims has merit. I
Breckenridge was charged in a two-count Indictment filed on March 21,
2001. Count One charged Breckenridge with conspiring, in violation of
18 U.S.C. § 371, to commit: (i) securities fraud, in violation of
15 U.S.C. § 78j(b) and 78ff; (ii) mail fraud, in violation of
18 U.S.C. § 1341 and 1346; (iii) wire fraud, in violation of
18 U.S.C. § 1343 and 1346; and (iv) commercial bribery, in violation of
18 U.S.C. § 1952(a)(3). Count Two charged Breckenridge with securities
fraud in violation of 15 U.S.C. § 78j(b) and 78ff and 18 U.S.C. § 2.
On March 19, 2002, Breckenridge entered a plea of guilty to the charges
in the Indictment. (Transcript of Plea Allocution dated Mar. 19, 2002
("3/19/02 Tr.") attached as Ex. A to Govt. Ltr. at 30.) On September 25,
2002, the Court sentenced Breckenridge principally to a prison term of
eighteen months, to run concurrently on Counts One and Two, followed by a
three-year term of supervised release. The Court ordered that
Breckenridge pay restitution in the amount of $136,394. (Transcript of
Sentencing dated Sept. 25, 2002 ("9/25/02 Tr.") attached as Ex. B to
Govt. Ltr. at 62-63.) Breckenridge did not appeal her sentence. She then
timely filed this motion pursuant to 28 U.S.C. § 2255. II
Relying in part on Billy-Eko v. United States, 8 F.3d 111 (2d Cir.
1993), the Government argues first that, absent a showing of cause and
prejudice, Breckenridge's motion is barred because she did not raise on
direct appeal the claims she now asserts in her § 2255 motion. This
argument, at least with respect to Breckenridge's
ineffective-assistance-of-counsel claims, is squarely foreclosed by
Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 1694 (2003), where
the Supreme Court abrogated Billy-Eko by holding that "an
ineffective-assistance-of-counsel claim may be brought in a collateral
proceeding under § 2255, whether or not the petitioner could have raised
the claim on direct appeal." Id. at 1694.
The Government correctly argues that Breckenridge's
ineffective-assistance-of-counsel claim is without merit. To prevail on
this claim, Breckenridge must show both that (1) her counsel's
performance was deficient in that it was objectively unreasonable under
professional standards prevailing at the time, and (2) that her counsel's
deficient performance was prejudicial to Breckenridge's case. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); Bunkley v. Meachum, 68 F.3d 1518, 152 (2d Cir. 1995). The first prong of the Strickland test
is not satisfied merely by showing that counsel employed poor strategy or
made a wrong decision. Instead, it must be shown that counsel "made
errors so serious that counsel was not functioning as the `counsel'
guaranteed . . . by the Sixth Amendment." Strickland, 466 U.S. at 687.
Indeed, there is a "strong presumption" that defense counsel's conduct
fell within the broad spectrum of reasonable professional assistance, and
a defendant bears the burden of proving "that counsel's representation
was unreasonable under prevailing professional norms and that the
challenged action was not sound strategy." Kimmelman v. Morrison,
477 U.S. 365, 381, (1985) (citing Strickland, 466 U.S. at 688-89). To
satisfy the second prong of Strickland, Breckenridge must show that
"[t]here is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Strickland, 466 U.S. at 694; see
also Bennett v. United States, Nos. 99 Civ. 4481, 97 CR. 1029, 2000 WL
10213, at *2 (S.D.N.Y. Jan. 5, 2000).
Two of Breckenridge's arguments that she was denied effective
assistance of counsel relate to the loss amount incurred by NYL. Breckenridge. first contends that her attorney failed to
pursue her request to review the evidence against her.*fn2 She also
contends that her attorney failed to demand a factual basis for
determining the amount of the loss by NYL. She maintains that the
evidence concerning the eighteen trades that caused NYL's loss of
$736,394 was never actually reviewed by her attorney, was never given to
her to review, and was never investigated further to confirm the accuracy
of the loss amount. She asserts that she was prejudiced as a result
because further review and investigation could have shown that the
subject trades resulted in a loss of less than $500,000, which would have
reduced her sentence under the Sentencing Guidelines and could have
reduced the amount of restitution. Under the November 1, 1998 Sentencing
Guidelines that applied, a loss amount between $500,000 and $800,000
required a ten-level enhancement, so that Breckenridge would have had to
reduce the loss below $500,000 to affect the sentence. See U.S.S.G. § 2
F1.1(b)) (1)(K) (Nov. 1, 1998 ed.).
The arguments fail both prongs of the Strickland standard.
Breckenridge's contentions are wholly conclusory and do not indicate what
information, if any, could have been discovered through further investigation or review of the eighteen trades that
composed the loss amount. See Polanco v. United States, Nos. 99 Civ.
5739, 94 Cr. 453, 2000 WL 1072303, at *10 (S.D.N.Y. Aug. 3, 2000)
(collecting cases) ("[Petitioner] does not say precisely what counsel
would have learned or how counsel would have learned it. Such undetailed
and unsubstantiated assertions that counsel failed to conduct a proper
investigation have consistently been held insufficient to satisfy either
Strickland prong."). Breckenridge does not present any alternative method
of calculation that would reduce the loss amount below $500,000.
Moreover, in advance of sentence Breckenridge was given the presentence
report, which explained that NYL had retained a forensic audit team to
calculate NYL's loss and that the experts had concluded, using a "very
conservative methodology," that NYL had been disadvantaged by eighteen of
Breckenridge's trades for a loss of $736,394. (Presentence Investigation
Report ("PSR") ¶¶ 33-34.) Breckenridge stated at sentencing that she had
reviewed the PSR and discussed it with her lawyer, and that she had no
objections other than those raised by her lawyer. (Id. at 40.)
Breckenridge's former counsel, Ira Lee Sorkin, submitted an affidavit in
connection with this § 2255 motion stating that Breckenridge "made a
conscious decision not to hire an expert to analyze the trades . . . because she did not dispute the
loss calculation." (Affidavit of Ira Lee Sorkin dated Jan. 15, 2004
("Sorkin Aff.") ¶ 16.) Furthermore, NYL's counsel, who was present at
Breckenridge's sentencing, explained that NYL had been disadvantaged by
"at least" eighteen trades totaling $736,394, and that NYL had not
investigated additional trades because NYL had entered into a settlement
with Breckenridge and Suncoast, Breckenridge's employer at the time of
the trades. (9/25/02 Tr. at 20-22.) Sorkin also stated that Breckenridge
had advised him "not to contest any of the charges, loss calculation or
other documentary evidence," because she sought to cooperate with the
Government in hopes of securing a § 5K1.1 letter from the Government.
(Sorkin Aff. ¶ 17.) Under these circumstances, Sorkin's representation
of Breckenridge in connection with the loss amount was objectively
reasonable. He indicated that he had had conversations with counsel for
NYL concerning the extent of NYL's loss, and at sentencing, in addition
to other objections to the PSR, he clarified that the loss concerned only
eighteen out: of a total of sixty or more trades. (9/25/02 Tr. at 10-11,
18-19, 21-22.) Further investigation of the trades would have required
incurring the expense of an expert, and it could reasonably have prompted
NYL to expand its investigation into other trades that might have caused additional losses. Sorkin's performance in connection with
the loss amount fell comfortably within the broad spectrum of reasonable
professional assistance, and thus did not deprive Breckenridge of the
"counsel" guaranteed by the Sixth Amendment.
Breckenridge also cannot show that Sorkin's representation in
connection with the loss amount prejudiced her case. There is no basis to
conclude that the eighteen trades could have caused a loss of less than
$500,000, an outcome which would have changed Breckenridge's sentencing
calculation under the Guidelines. Breckenridge does not suggest an
alternative calculation for these trades, and indeed does not allege any
reasonable basis from which to conclude that the trades caused a loss of
some amount less than $736,394.
Breckenridge also contends that she was denied effective assistance of
counsel when Sorkin advised her not to file a direct appeal. Breckenridge
acknowledges that she knew she had the right to appeal and that the Court
informed her that counsel could be appointed for that purpose.
Nevertheless, she contends that she was dissuaded from appealing, because
Sorkin indicated that she would have no meritorious issues on appeal.
This argument also fails both prongs of the Strickland standard.
Breckenridge pleaded guilty to the charges in the Indictment, and she never raised any issues in connection with her plea
or her sentence that would have provided colorable issues for appeal. It
was objectively reasonable for her attorney to advise her of that fact.
Moreover, Breckenridge concedes that she knew she had the right to appeal
and that she could obtain appointed counsel if she desired to appeal.
Therefore, she cannot show any prejudice that resulted from her counsel's
advice that she would have no meritorious issues on appeal.
Breckenridge's motion also appears to challenge the fact that the
Government did not make a § 5K1.1 application on her behalf. To the
extent this motion challenges the Government's decision not to make a §
5K1.1 application, it is without merit. A defendant is entitled to a
remedy for the Government's refusal to make a § 5K1.1 application only in
extremely limited circumstances, such as where "the refusal was based on
an unconstitutional motive," or where "the prosecutor's refusal to move
was not rationally related to any legitimate Government end. . . ." Wade
v. United States, 504 U.S. 181, 185-86 (1992). "[A] claim that a
defendant merely provided substantial assistance will not entitle a
defendant to a remedy or even to discovery or an evidentiary hearing. Nor
would additional but generalized allegations of improper motive." Id. at 186. Breckenridge has
not alleged any unconstitutional motive by the Government in refusing to
make a § 5K1.1 application. Moreover, the Government points out, with
support from Breckenridge's lawyer, that Breckenridge was never promised
that she would obtain a § 5K1.1 letter from the Government, and there is
also no basis to believe that the Government's failure to make a § 5K1.1
motion was based on an unconstitutional or irrational motive.
To the extent the motion contends that she was denied effective
assistance of counsel because her attorney did not seek to compel the
Government to make a § 5K1.1 application, it is also without merit. Given
that § 5K1.1 "gives the Government a power, not a duty, to file a motion
when a defendant has substantially assisted," id. at 185, and given the
extremely limited grounds on which the Government's decision can be
challenged, it was not objectively unreasonable for Breckenridge's
counsel not to seek to compel a § 5K1.1 application by the Government. In
any event, Breckenridge could not show any prejudice, because as
explained above, she has not alleged that the Government's refusal was
based on an unconstitutional or irrational motive that would have
entitled her to a remedy. CONCLUSION
For the reasons explained above, Breckenridge's motion to vacate, set
aside, or correct her sentence pursuant to 28 U.S.C. § 2255 is denied.
The Court declines to issue a certificate of appealability pursuant to
28 U.S.C. § 2253 (c)(2) because Breckenridge has failed to make a
substantial showing of the denial of a constitutional right. The Clerk is
directed to enter Judgment and to close this case.