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June 1, 2004.


The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


Petitioner Alphonse Graziose ("Graziose") moved by order to show cause for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255. Upon the facts and conclusions set forth below, the motion is denied and the order extending Graziose's self-surrender date indefinitely is vacated.

 Prior Proceedings

  A two-count information, 02 Cr. 367 (TPG), was filed against Graziose on April 3, 2002, charging him with one count of conspiracy to commit securities fraud, mail fraud and wire fraud in violation of 18 U.S.C. § 371 and one count of securities fraud in violation of 15 U.S.C. § 78j(b) and 77ff and 17 C.F.R. § 10b-5. The indictment alleged the operation of a "boiler room" by Graziose and six other defendants, including his son Jeffrey Graziose, in connection with the operation of American Capital Securities, Inc. ("American Capital"). This action was initially assigned to the Honorable Thomas P. Griesa, who accepted Graziose's plea of guilty to both counts on April 3, 2002.

  Certain of the other defendants, including Jeffrey Graziose, had been named in similar charges assigned to this Court. The sentencing of Graziose was transferred to this Court on May 14, 2002. On October 7, 2002, a sentencing opinion was filed describing Graziose's activities and a proposed sentence including 27 months in prison to be served concurrently. See United States v. Graziose, 02 Cr. 367, 2002 WL 31260263 (S.D.N.Y. Oct. 9, 2002). On October 24, 2002, a sentence of 26 months incarceration with certain other terms and conditions was imposed. Graziose did not make a direct appeal of his sentence.

  Graziose requested and received adjournments of his surrender date to March 2, 2003, June 26, 2003, July 29, 2003, September 3, 2003, and October 1, 2003. The grounds for these requests varied from business to family concerns. A request for a further adjournment to October 30, 2003 was denied.

  On September 29, 2003, another 30-day extension to October 15, 2003, submitted by new counsel for Graziose, was granted to permit psychiatric testing. A further request was denied on October 10, 2003. On October 15, 2003, Graziose by order to show cause, filed the instant application seeking to withdraw his plea on the grounds of inadequate representation arising in part out of his diminished capacity. Argument was held on November 6, 2003, at which time a factual hearing was scheduled, and the surrender date was deferred until the completion of the hearings and a decision on the motion. Evidence was taken on January 16, 2004, February 2, 2004, April 1, 2004, and April 8, 2004, at which time the petition was deemed fully submitted.

 The Facts

  Graziose is sixty years old (born December 2, 1943). He entered the armed services at age 17 and married while in the service. He and his wife were divorced, and in 1977 he married his present wife. They had two children, one of whom, Jeffrey Graziose, survived.

  After leaving the service, Graziose owned a construction company. In the early 1980's Graziose served as a police officer in the Police Department of the Village of Amityville, New York. While responding to a call of burglary in progress in 1984, Graziose was attacked and struck on the back of the head. He suffered a severe concussion, unconsciousness, and was briefly comatose following the attack. In October 1985 and again in January 1986, Graziose was hospitalized in order to stabilize his major depression. In addition to his depression, Graziose was diagnosed as suffering post-concussional syndrome and as having experienced personality changes of a major type. Graziose retired from the police department on a disability in 1986. Graziose was unemployed until 1995. Graziose stated that he drank vodka heavily and received treatment for alcoholism and suffers from high blood pressure, high cholesterol, coronary artery disease, and a loss of hearing. In 1995 he became secretary of Graz Recycling, a company started by Jeffrey Graziose.

  In 1997, Graziose, Jeffrey Graziose and two of their co-defendants started American Capital which employed brokers and cold callers to solicit the purchase of American Capital units by means of false and fraudulent representations. Additional purchases in other companies were fraudulently induced. Investors lost approximately $2 million dollars.

  An account for American Capital was opened listing J. Graziose as president and Graziose as signer.

  In January 2001, Graziose ran for mayor of Amityville in a March 20 election. He was not elected, receiving 285 votes out of over 1,600 votes.

  During 2001 there was an investigation of American Capital by the Attorney General of the State of New York. In December 2001, Graziose and his co-defendants were arrested on the instant charges. In January 2002, Graziose retained Randy Zelin ("Zelin"), an experienced defense lawyer who had been recommended to Graziose by another lawyer. Zelin had served as an assistant district attorney for three years after graduating from law school and thereafter for approximately 16 years has maintained a practice specializing in ...

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