Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, E.D. New York

May 11, 2004.

DORIAN PORRAS, Petitioner, -against- UNITED STATES OF AMERICA, Respondent

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

Memorandum and Order

Petitioner Dorian Porras filed this motion pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the motion is denied.


  On January 15, 1997, petitioner Dorian Porras ("Porras") was indicted on conspiracy to distribute cocaine and using and carrying a handgun in connection with a narcotics offense, among other charges. On October 28, 1997, Porras pled guilty to conspiring to distribute cocaine, in violation of 21 U.S.C. § 841. In connection with his guilty plea, Porras entered into a Cooperation Agreement with the United States Attorney's Office for the Eastern District of New York ("the Office"), which provided that the Office would file a § 5K1.1 motion if it determined the Porras had "cooperated fully, provided substantial assistance to law enforcement authorities and otherwise complied" with the Cooperation Agreement. (Pet.*fn1 Ex. A 6.) The agreement specified it is understood that a good faith determination by the Office as to whether the defendant has cooperated fully and provided substantial assistance and has otherwise complied with the terms of this agreement, and the Office's good faith assessment of the value, truthfulness, completeness and accuracy of the cooperation, shall be binding upon him.


  On December 10, 1998, Porras was sentenced to 70 months imprisonment, followed by five years of supervised release. At sentencing, his attorney stated:

I already heard from the government the last of the defendant's best efforts to cooperate have not met with concrete success. . . . It isn't because the government hasn't given him an opportunity, because they have, it's not because the prosecution hasn't monitored their agents to see they were faithfully exploring all the potential cooperation for this defendant because [the AUSA] did do that. So, there's no bad faith here, none on the part of the government and I'm confident not on the part of my client either.
(Resp.*fn2 Ex. 1 at 2.) There was no § 5K1.1 motion. However, the government argued the appropriate sentencing guideline was level 29, with a minimum sentence of 87 months, but this court applied level 27 on the grounds that it didn't seem the unloaded gun in Porras's back pocket at the time of his arrest was being used "in connection with the offense."

  Porras did not appeal his conviction or sentence. He filed the instant § 2255 motion on April 18, 2000.


  In the current motion, petitioner alleges that his counsel's performance was ineffective, and violated his Sixth Amendment rights. Petitioner contends that had his attorney, Mr. Martin Schmuckler, alleged that the government acted in bad faith in connection with not providing a § 5K1.1 letter, the court would have held "a hearing resulting in sufficient evidence to support such a claim and a resultant 5K1.1 Letter would have been deemed merited." (Pet. at 4.) Petitioner argues that his counsel's failure to allege bad faith on the part of the government deprived him of the only basis on which the sentencing court could have downwardly departed from the guidelines.

  The only evidence petitioner provides as to the government's alleged bad faith is a letter Porras himself sent to his counsel which outlined the information he had provided to the government. Petitioner also claims in a footnote that "[u]pon information and belief, one of the parties referenced in the letter . . . has subsequently been arrested by federal authorities and is either awaiting prosecution or has been successfully prosecuted. Some, or all, of the information used in this prosecution may well have originated with the Movant."*fn3 (Pet. at 2.) Petitioner argues that "[h]ow the decision was made by the 5K Committee of U.S. Attorney for the E.D.N.Y. is a mystery, a mystery that sentencing counsel was duty-bound to have made inquiry of." (Pet. at 13.)

  There is no law which would say that it constitutes ineffective assistance of counsel for a defense lawyer not to make a charge of bad faith by the government although he has no basis for doing so and his personal knowledge is directly to the contrary. It would be an extraordinary development in the law if a lawyer must make a baseless charge of bad faith or be deemed to have performed his duties in a deficient manner. Cf. American Bar Association, ABA Standards for Criminal Justice: Prosecution Function and Defense Function, Standard 4-1.2(f) (3d ed. 1993) ("Defense counsel should not intentionally misrepresent matters of fact or law to the court."); ABA Model Rules of Professional Conduct, Comment on Rule 3.3 (2004 ed.) ("[A]n assertion purporting to be on the lawyer's own knowledge, as in . . . a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry."). Moreover, Mr. Schmuckler's candor led the court to stretch its interpretation of Porras's weapon possession in order to give the defendant some credit for his ultimately ineffective cooperation. Accordingly, any attempt to allege bad faith without a basis for doing so might have resulted in an enhanced sentence.

  Furthermore, the mere fact that Porras provided information to the government is insufficient to warrant a hearing into the possible bad faith of the government in not providing a § 5K1.1 letter. "The government does not now dispute and has never disputed that the Petitioner provided certain information. But the undisputed fact remains that the information Petitioner provided never resulted in any arrest, seizure or `substantial assistance' to the government." (Resp. at 3-4.) Moreover, "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." Wade v. United States, 504 U.S. 181, 186 (1992).

  Petitioner has not met his burden of showing that his attorney was obliged to allege bad faith on the part of the government, or that a hearing would have resulted in which the court would have found the bad faith alleged. In all, the court documents completely undermine the ineffective assistance of counsel claim. Thus, petitioner's motion is substantively meritless. Conclusion

  For the aforementioned reasons, the § 2255 motion is denied. The Clerk of the Court is directed to close the case.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.