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United States District Court, S.D. New York

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 criminal law. He is a member of the appropriate professional associations and has served as an instructor for other lawyers and law students.

  Upon being retained, Zelin advised Graziose of the charges and reviewed the evidence as disclosed by the government. In order to accept pleas, the government had indicated the importance of a complete disposition, and Zelin advised Graziose of the importance of the consideration of his plea, both to Graziose and to his son. Zelin advised Graziose in meetings and telephone calls of the effect of the sentencing guidelines, the possible sentence and the effect of going to trial. Zelin was aware of a memo which he discussed with Graziose that raised the possibility of an additional charge of money laundering. During these discussions, Graziose stated that one of his principal concerns was the impact of his decision upon his son, including the possibility of presenting a defense that Graziose was merely a passive investor. Graziose expressed his unwillingness to in any way increase his son's culpability. Zelin reviewed the government's discovery materials, checks, memos, and American Capital materials. One memo in particular related to a conversation with Graziose concerning the hiring of brokers with little experience. The checks, some of which Graziose signed, related to expenses which could have been alleged to have been authorized for personal expenses.

  Zelin had extensive conversations with Graziose concerning the plea agreement tendered by the government and each of its provisions, including the anticipated guideline range of 24 to 30 months imprisonment and the provision barring an application for a downward departure, the grounds for such a departure, as well as the requirements for a global resolution. Zelin discussed with Graziose his substance abuse treatment and the effect that might have on his sentence.

  Zelin reviewed with Graziose the proceedings relating to his plea, the allocution requirements, a written allocution statement, and the facts underlying the statement, including material that Graziose wanted to include, in particular his entering the venture without any fraudulent intent. Graziose at no time indicated to Zelin a lack of understanding as to the plea or its effect and expressed to Zelin his willingness to assume all of his son's jail time if it could prevent his son from going to jail.

  Zelin was aware of Graziose's head injury and believed that Graziose understood the advice given. The only effect of the injury he observed was that Graziose advised Zelin that the injury had caused him to be emotional and that alcohol abuse was the principal effect of the brain injury. According to Zelin, the conversations with Graziose were intelligent and articulate.

  Zelin prepared an allocution statement for Graziose and discussed it with him. At the time of the plea before the Judge Griesa, the government and Zelin agreed to changes in the statement, which was rewritten, explained to Graziose and read by him.

  After the plea, Zelin accompanied Graziose to the interview with the probation officer and observed that Graziose answered the questions appropriately and displayed no lack of understanding.

  Zelin was aware of Graziose's psychiatric treatment undertaken after his plea but conducted no investigation or research on the subject. Zelin discussed it with Graziose principally in connection with sentencing and a possible amelioration by the Court of the guidelines.

  After the plea, Zelin wrote to the Court requesting an extension of the surrender date to enable Graziose to assist in the affairs of Graz Recycling in which Zelin believed, based on his conversations with Graziose, that Graziose had a fair amount of involvement. Two experts testified with respect to Graziose's mental condition, Dr. Michael Kessler ("Dr. Kessler") on behalf of Graziose and Dr. Barry Rosenfeld ("Dr. Rosenfeld") on behalf of the government. Both reviewed the existing medical records and Dr. Rosenfeld conducted a number of tests of Graziose. Dr. Rosenfeld was highly qualified and entirely credible and a professor and specialist in forensic psychology which Dr. Kessler was not.

  Dr. Kessler, a psychiatrist, was retained by Graziose in April 2002, and testified on his behalf. After Graziose pled guilty, Kessler treated Graziose in April, May and December and regularly thereafter until February 2003 when his license was suspended for reasons unrelated to his practice of medicine.

  According to Kessler, Graziose suffered cognitive impairment as a consequence of his 1984 injury.

  Dr. Rosenfeld saw no indication of any impairment to prevent Graziose from understanding and entering a knowing and voluntary plea. He diagnosed Graziose as having an adjustment disorder with anxiety and a depressed mood as well as a fairly mild cognitive disorder. Dr. Rosenfeld conducted tests to determine malingering which he defined as exaggerating or fabricating symptoms for some external reason. He did so because Graziose described unrealistic memory impairments. Also in terms of overall intellectual functioning, after reviewing the relevant tests, Dr. Rosenfeld concluded that Graziose could adequately comprehend a plea agreement and that his performance on certain tests was implausibly low for a person functioning on a day-to-day basis. Graziose informed Dr. Rosenfeld of a rational reason for his plea, namely, his belief that his plea would affect his son's sentence. Dr. Rosenfeld concluded that no special accommodations would be needed to assist Graziose to understand and present a guilty plea. Where the testimony of the experts conflicted, Dr. Rosenfeld was the more credible having conducted some 1,000 competency evaluations for both defense and prosecution purposes.

  Graziose also testified and conceded that as a result of his experience as a police officer he was familiar with the concept of pleading guilty. His recollection was faulty with respect to telephone calls with Zelin, and he denied that he understood that he was pleading guilty on April 3, 2002, or the purpose of going to Court that day, or that the brokers of American Capital were lying to customers. He did concede that it was a possibility that he told Zelin he had been involved in a scheme to defraud. He had no recollection of any work he performed at Graz Recycling except for helping his son get in touch with people. He denied recollection of his plea agreement. He denied the truthfulness of his statements upon sentencing that he had done anything wrong and that he had to be punished. As set forth above, Graziose functioned in the world of business, was president of American Capital, signed company checks, ran for public office, and was active in a charitable organization in the period following his head injury. His testimony at the hearing was evasive and not credible.


  As an initial matter, jurisdiction exists to hear Graziose's habeas petition. The Supreme Court has held that "[o]ur cases make clear that `the use of habeas corpus has not been restricted to situations in which the applicant is in actual, physical custody.'" Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 300 (1984). Further, in Hensley v. Municipal Court, 411 U.S. 345 (1973), the Court held that a state prisoner who had been released on his own recognizance pending execution of sentence was in custody within the meaning of 28 U.S.C. § 2241(c)(3) and 2254. See also United States v. Loschiavo, 531 F.2d 659, 662 (2d Cir. 1976) (noting, in discussion of the `in custody' requirement, that "Section 2255 gives federal prisoners the same collateral remedy as is available to state prisoners under 28 U.S.C. § 2241-2254.") (citing Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)).

  Courts within this Circuit have cited to either Lydon or Hensley, or both, in finding that federal prisoners who are free either pending sentencing or following sentencing are in custody within the meaning of § 2255. See United States v. Mocombe, 98 Cr. 770, 2000 WL 488464, at *1 (S.D.N.Y. Apr. 24, 2000) (finding jurisdiction to hear post-conviction, pre-sentence § 2255 petition); Feldman v. United States, 90 Civ. 7174, 1991 WL 35871, at *16 n.1 (S.D.N.Y. Mar. 6, 1991) (finding jurisdiction to hear § 2255 petition for defendant "sentenced but released on bail pending surrender."). The rationale of these decisions is that these petitioners are "subject to restraints `not shared by the public generally.'" Hensley, 411 U.S. at 351 (quoting Jones v. Cunningham, 371 U.S. 236, 240 (1963)).

  Graziose's petition raises three grounds: 1) that his guilty plea was not made voluntarily or with understanding of the nature of the charges and the consequences of the plea because Judge Griesa did not make any inquiry into his mental state or whether he had ever been under the care of a doctor or psychiatrist or had ever been treated for any form of mental illness and 2) because the plea Court violated Federal Rule of Criminal Procedure 11(b)(1)(G) by failing to summarize or provide any information to Graziose about the information to which he was pleading guilty, instead allowing the Assistant United States Attorney to summarize the charges set forth in the information; and 3) that Graziose's counsel rendered ineffective assistance of counsel by failing to bring the fact of Graziose's brain injury to the plea Court's attention during the Rule 11 proceeding, resulting in the entry of a guilty plea that was not made voluntarily or knowingly.

 Graziose May Not Collaterally Attack the Voluntariness and Intelligence of His Guilty Plea

  Because Graziose failed to raise either of his first two grounds for relief on direct appeal, he may not raise them in his § 2255 petition. "A motion under § 2255 is not a substitute for an appeal." Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998) (quoting United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998)). In particular, "even the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review." Bousley v. United States, 523 U.S. 614, 621, (1998).


Where a criminal defendant has procedurally forfeited his claim by failing to raise it on direct review, the claim may be raised in a § 2255 motion only if the defendant can demonstrate either: (1) "cause for failing to raise the issue, and prejudice resulting therefrom," Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993); or (2) "actual innocence." Bousley, 523 U.S. at 622.
Rosario, 164 F.3d at 732. Graziose has not raised a claim of actual innocence. To establish cause, Graziose must demonstrate that "some objective factor external to the defense impeded counsel's efforts" to raise the claim at an earlier proceeding. Murray v. Carrier, 477 U.S. 478, 488 (1986). And he must also show "`actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 168 (1982).

  Graziose argues that the allegation of ineffective assistance in the petition constitutes cause and prejudice, excusing the failure to file a direct appeal on the first two grounds. The cases cited by Graziose, however, establish only that if the ineffective assistance consisted in the failure to file an appeal, that failure will be excused and the ineffective assistance claim considered on the merits. See, e.g., Restrepo v. Kelly, 178 F.3d 634, 639-642 (2d Cir. 1999); Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994); Patrick v. United States, 02 Civ. 9753, 2003 WL 1797856, at *3 (S.D.N.Y. Apr. 3, 2003). The government has not contested that a claim of ineffective assistance of counsel is not procedurally barred by the failure to raise it on direct appeal, nor could it. See Massaro v. United States, 538 U.S. 500, 504 (2003) (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."). However, Graziose does not make the specific claim that the failure of his counsel to file a direct appeal was the reason for his counsel's ineffective assistance, nor is his counsel's performance even mentioned in either of the first two grounds.

  Further, Graziose may not use the plea agreement waiving his right to appeal the sentence as his "cause" to excuse the procedural default because the plea agreement did not waive Graziose's right to appeal the voluntariness of the plea agreement. See Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 195 (2d Cir. 2002) ("a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been produced, here, the plea agreement.").

  Because Graziose has established neither cause nor prejudice for failing to file a direct appeal on the first two grounds of his § 2255 petition, they are procedurally defaulted and may not be raised in a collateral attack on his guilty plea.

 Graziose Has Not Established That His Counsel Was Constitutionally Ineffective

  Graziose's claim that his guilty plea was involuntary or unknowing due to his counsel's ineffective assistance is evaluated according to the standard set forth in Strickland v. Washington, 466 U.S. 668, 687-94 (1984). See also United States v. Couto, 311 F.3d 179, 187 (2d Cir. 2002).

  A defendant must first establish that "counsel's representation fell below an objective standard of reasonableness." United States v. Hernandez, 242 F.3d 110, 112 (2d Cir. 2001) (quoting Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S.Ct. 366 (1985)). Second, "the defendant must show that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Id. (quoting Hill, 474 U.S. at 59, 106 S.Ct. 366). Couto, 311 F.3d at 187. "In judging any claim of ineffectiveness, a reviewing court must begin with a `strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,' taking a `highly deferential' view of counsel's performance without the benefit of hindsight." Castillo v. Hodges. 01 Civ. 2172, 2004 WL 613075, at *5 (S.D.N.Y. Mar. 29, 2004) (quoting Strickland, 466 U.S. at 689).

  Graziose has not shown that Zelin, his counsel before and at the time of his plea and sentencing, rendered ineffective assistance. Given the persuasive testimony of Dr. Rosenfeld that no special accommodations would be needed to assist Graziose to understand and present a guilty plea, Zelin's performance as counsel cannot reasonably be considered unconstitutionally ineffective for failing to bring Graziose's brain injury to the attention of Judge Griesa.

  Even if it were determined that Zelin's performance had been in any way ineffective, Graziose cannot demonstrate prejudice because it has not been shown that but for Zelin's failure to bring Graziose's brain injury to the attention of the plea Court, Graziose would not have pleaded guilty and would have insisted on going to trial. Graziose's highest priority in pleading guilty was to spare his son any unnecessary jail time. Because the government insisted that all of the defendants involved in the fraud at American Capital plead guilty, Graziose's decision to go to trial would have jeopardized his son's plea agreement with the government. Graziose's assertion in hindsight that he would not have pleaded guilty is therefore not credible.


  For the reasons set forth above, each of the three grounds on which Graziose bases his § 2255 petition are rejected. The petition is accordingly denied. `The order, dated December 5, 2003, extending Graziose's self-surrender date indefinitely is vacated, and Graziose is ordered to surrender 14 days from the entry of this opinion.

  It is so ordered.


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