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

April 6, 2005.

MARY ANN HANNA, Petitioner,
UNITED STATES, Respondent.

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


Presently before the court are petitioner's claims of ineffective assistance of counsel with respect to the two attorneys who represented her in her criminal case, brought as part of her motion pursuant to 28 U.S.C. ยง 2255 to vacate, set aside or correct her sentence. By order dated December 27, 2001, this court denied the petition in its entirety. Hanna v. United States, 2001 U.S. Dist. LEXIS 22284 (E.D.N.Y. 2001). The Court of Appeals for the Second Circuit granted a certificate of appealability on the issue of the effectiveness of Hanna's counsel, and, on December 31, 2003, remanded the case to this court with instructions to conduct the fact-finding necessary to evaluate Hanna's ineffective assistance claims. Specifically, this court was instructed to "conduct the necessary fact-finding as to the nature of the alleged conflict of interest [of Hanna's first counsel] and Hanna's knowledge of her rights at the time of her guilty plea," and as to "the sufficiency of second counsel's advice regarding Hanna's decision to enter a guilty plea and the terms thereof." Hanna v. United States, 84 Fed. Appx. 129, 131 (2d Cir. 2003). An evidentiary hearing was held on October 4 and 5, 2004, at which petitioner and the two attorneys she claims provided ineffective assistance of counsel testified. After reviewing the evidence and the arguments of the parties, Hanna's claims of ineffective assistance of counsel are denied for the reasons that follow. A more detailed history of the case is set forth in my prior order of December 27, 2001. Hanna's claims arise out of the relationship between her first attorney, Steven Goldenberg, Esq., and Michael Rabadi, a government informant who was a defendant in the Nersesian case, a narcotics prosecution in the Southern District of New York. See United States v. Nersesian, 824 F.2d 1294 (2d Cir.), cert. denied, 484 U.S. 958 (1987). Goldenberg represented one of Rabadi's co-defendants in the Nersesian case, Hani Fraih, and continued to represent Fraih on a Rule 35 motion for a sentence reduction at the same time that he represented Hanna.

Petitioner claims that Goldenberg's representation was infected by an actual conflict of interest as a result of his undisclosed simultaneous representation of herself and Fraih. She claims that Rabadi, who recommended Goldenberg to Hanna and who was included in conversations about Hanna's case, was trying to help Fraih at Hanna's expense. According to petitioner, Goldenberg had an interest in promoting, or at least failing to hinder, a relationship between Hanna and Rabadi in order to allow Rabadi to obtain information about Hanna's case that would inure to Fraih's benefit, an interest that was in conflict with Goldenberg's duty to insulate her from Rabadi, preserve the attorney-client privilege, and ensure that any information she had to provide to the government was credited to her. Petitioner further claims that Goldenberg's representation of her was adversely affected as a result of this conflict, in that "Goldenberg fail[ed] to give [her] the information she needed to understand why she should not trust Rabadi, fail[ed] to give her information that would have led her to meaningfully question where her counsel's loyalties lay, conceal[ed] from her that the individual she was confiding in was cooperating in her case, and facilitat[ed] Rabadi's access to [her]."

  Regarding Marvin Schechter, Esq., who replaced Goldenberg as Hanna's counsel and represented her at the time she pled guilty, Hanna claims that she received ineffective assistance of counsel because Schechter failed adequately to explore the Goldenberg conflict issue and possible remedies for it prior to her plea of guilty and did not adequately explain that pleading guilty would waive the conflict issue. As a result, Hanna argues, she did not knowingly and voluntarily waive the conflict issue by pleading guilty.

  Hanna has never testified that she wants her plea to be vacated or that she wants to go to trial. Hanna's counsel in this proceeding represents that Hanna wants her plea back so that she can be restored "to the position she was in in early March, 1988, when the government viewed her as a viable candidate for cooperation." Counsel ultimately acknowledged that restoring an opportunity to cooperate would be a practical impossibility, since the government, which views Hanna as having lied to them, has no interest in working with Hanna. Thus, as an alternative remedy, Hanna seeks a reduction in her sentence. Specifically, Hanna has requested that the court resentence her without the two-point obstruction of justice enhancement that the Honorable Raymond J. Dearie, the sentencing judge, applied to her original sentence.*fn1


  In federal habeas corpus proceedings, the burden of proof is on petitioner to establish her constitutional claims by a preponderance of the evidence. See Triana v. United States, 205 F.3d 36, 40 (2d Cir.), cert. denied, 531 U.S. 956 (2000); Whitaker v. Meachum, 123 F.3d 714, 716 (2d Cir. 1997). "A defendant's Sixth Amendment right to effective assistance of counsel includes the right to representation by conflict-free counsel." United States v. Blau, 159 F.3d 68, 74 (2d Cir. 1998). In the absence of a conflict of interest, a petitioner claiming ineffective assistance of counsel must demonstrate that the lawyer's representation "fell below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 687-88 (1984), and that counsel's deficiency was "prejudicial" to the defense, id. at 692. When evaluating ineffective assistance of counsel claims stemming from alleged conflicts of interest, prejudice will be presumed if the petitioner demonstrates that counsel "actively represented conflicting interests" and that "an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348-50 (1980); Eisemann v. Herbert, 2005 U.S. App. LEXIS 4134, *9-10 (2d Cir. 2005). These components are considered in a single, integrated inquiry. Eisemann, 2005 U.S. App. LEXIS 4134 at *10. "An `actual conflict,' for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance." Mickens v. Taylor, 535 U.S. 162, 172 n. 5 (2002).

  With respect to Goldenberg, petitioner claims she was denied her right to conflict-free counsel based on an actual conflict of interest; therefore, she must establish that a conflict of interest adversely affected her counsel's performance. In order to prove that there was a lapse in Goldenberg's representation, she "must demonstrate that some plausible alternative defense strategy or tactic might have been pursued, and that the alternative defense was inherently in conflict with or not undertaken due to [Goldenberg's] other loyalties or interests." Eisemann, 2005 U.S. App. LEXIS 4134 at *10 (internal quotation marks and citation omitted).

  Hanna's claim as to Schechter is that he failed adequately to explain the alleged conflict of Goldenberg and to explore potential remedies. Therefore, this claim will be evaluated using the familiar two-pronged standard of Strickland v. Washington, in which prejudice is not presumed but must be demonstrated by petitioner. That is, in order to succeed on her ineffective assistance of counsel claim as to Schechter, Hanna must show both that Schechter's performance fell below the objective standards of reasonableness dictated by prevailing professional norms and that there is a reasonable probability that, but for his deficient performance, the outcome of the proceedings would have been different. Strickland, 466 U.S. at 687-99, 694.

  With respect to the possible remedy, if Hanna could establish that Goldenberg was constitutionally ineffective pretrial, the court would be required to craft a remedy "specifically tailored to the constitutional error," that is, a remedy "that as much as possible restores the [petitioner] to the circumstances that would have existed had there been no constitutional error." United States v. Carmichael, 216 F.3d 224, 227 (2d Cir. 2000); see also United States v. Williams, 372 F.3d 96, 110-11 (2d Cir. 2004). As noted above, Hanna argues that an appropriate, "specifically tailored" remedy in this case would be a sentence reduction.

  With respect to Hanna's claim as to Schechter's representation, which is measured by the Strickland standard, normally she would have to show that there is a reasonable probability that, but for counsel's errors, she would not have pleaded guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). The remedy then would be to return Hanna's plea to her. As noted above, however, that remedy is not in fact what Hanna seeks. Whether or not an alternative, "specifically tailored" remedy like that in Carmichael would be available to Hanna where Strickland is the test need not be resolved, however, because, as described below, I find that Schechter's representation was not constitutionally ineffective and that Hanna's guilty plea was both knowing and voluntary. The legal framework having been laid out, I turn to the facts. Based upon the credible evidence at the hearing, I make the findings set forth below.*fn2

  Hanna retained Goldenberg in approximately March 1988 at the recommendation of Rabadi, after speaking with Rabadi's sister, Maysoun Anabi, at the Metropolitan Correctional Center ("MCC"). At the time Hanna retained Goldenberg, Goldenberg was also representing Fraih, who was the brother-in-law as well as a co-defendant of both Rabadi and Anabi, on a pending Rule 35 motion in Nersesian. Hanna did not know that Rabadi, Anabi, and Fraih were co-defendants in Nersesian nor that Goldenberg represented Fraih.

  Although Goldenberg's Rule 35 motion on behalf of Fraih was based on humanitarian grounds, he knew Rabadi was cooperating with the government on behalf of Fraih while he represented Hanna. Goldenberg believed that Rabadi's cooperation related only to crimes in Westchester County and was unaware that Rabadi's cooperation related to Hanna's case. Goldenberg never disclosed to Hanna that he represented Fraih or that Rabadi was cooperating on Fraih's behalf.

  Goldenberg explained to Hanna that there were three ways they could proceed with her case: (1) go to trial; (2) plead guilty, which would involve a great deal of time in prison; or (3) plead guilty and try to cooperate, in the hopes of getting a sentence reduction. Hanna's principal focus was to be released on bail. Goldenberg explained that the only way Hanna would be released on bail was if she could convince the government that she could provide valuable information and assist them in making new cases against additional defendants.

  Hanna and Goldenberg knew that the evidence against Hanna was overwhelming. It consisted of wiretaps of her telephone in which she conducted drug deals, surveillance of her making the bank deposits underlying the money-laundering charges, and the testimony of cooperating co-defendants including Roy Mercer, the principal buyer of the drugs she had distributed.

  Hanna chose to cooperate. Goldenberg contacted then-AUSA Cheryl Pollak to set up a proffer session with the government. Hanna wanted Rabadi to be present at the proffer sessions, so he accompanied Goldenberg to the first session. However, the AUSA refused to allow Rabadi to attend the proffer session, and he left. Goldenberg, as well as the AUSA, advised Hanna to tell the truth to the government.

  Hanna had extensive contact with Rabadi during the period in which she sought to cooperate, often telephoning Rabadi in the evenings after her proffer sessions. Goldenberg was aware that Hanna and Rabadi were having conversations. Goldenberg knew that Hanna hoped that she and Rabadi could cooperate together on Hanna's behalf. While he thought it unlikely that this could happen, and cautioned Hanna not to discuss the details of her case with Rabadi because Rabadi was not an attorney, he never warned her about Rabadi already being a cooperator. Goldenberg recognized that identifying someone as a cooperator could be dangerous to that person and felt bound not to disclose it. As a result, Goldenberg could not give Hanna a persuasive reason not to talk to Rabadi. Hanna would not have spoken with Rabadi had she known he was a cooperator.

  Hanna's proffer sessions with the government occurred over approximately a one-week period in March 1988. According to Hanna, during a conversation with Rabadi in which she expressed frustration that nothing was happening on her case, Rabadi asked her for information regarding a narcotics shipment to Detroit. Hanna provided Rabadi with the address of a house in Detroit where she claimed drugs might be located; Rabadi apparently shared this information with the government and a trip to Detroit with Hanna, Rabadi and the case agents was arranged. The drugs were not at the house that Hanna identified, and the government eventually concluded that Hanna had lied. Although Rabadi had some involvement in setting up the trip, which occurred in April 1988, Hanna does not claim that anything Rabadi did with respect to this trip led to the failure of her cooperation efforts. Goldenberg did not participate in this trip and was not aware of it.*fn3

  According to both Hanna and Goldenberg, they had no substantive conversations about her case between April, when the Detroit trip occurred, and July 1988. During this time, a fifty-two count superceding indictment was filed against Hanna and her co-defendants; Hanna was named in forty-two of the counts. Hanna testified that she was growing suspicious of Goldenberg and Rabadi during this period and, by the middle of May 1988, she no longer believed anything Rabadi said to her. At the beginning of July 1988, Hanna sent a letter to Judge Dearie saying that she was unhappy with Goldenberg's representation and requested a new lawyer.

  Goldenberg first realized that Rabadi had been providing information to the government about Hanna's case when he received a letter, dated May 16, 1988, written by then-AUSA Pollak to Judge Sprizzo, who was presiding over the sentences of Annabi and Fraih in the Nersesian case. A2-3.*fn4 The letter detailed Rabadi's cooperation with the government and discussed the information Rabadi had provided regarding Hanna's case.*fn5 The letter provided this information in connection with the sentencing of Annabi, stating, "I trust you will consider this information helpful in your determination of Mr. Rabadi's sister['s] sentence." The AUSA also requested that the contents of the letter be kept confidential. Goldenberg was not the addressee of the letter and was not listed as a copied party on it; he did not know how he came to receive it. Fraih received a sentence reduction from Judge Sprizzo on July 14, 1988. Until he received the May 16, 1988 letter, Goldenberg believed Rabadi's cooperation in Fraih's case concerned cases in Westchester County, not in Hanna's case.

  The parties agree that, following Goldenberg's receipt of the May 16, 1988 letter, Judge Sprizzo issued a "gag order" regarding Rabadi's cooperation. The gag order itself has not been located and is not part of the record.*fn6 Goldenberg testified that the order prevented him from disclosing to Hanna Rabadi's cooperation in her case. At a hearing before Judge Dearie on July 22, 1988, Goldenberg was relieved as Hanna's counsel, at the request of both Goldenberg and Hanna. The record of this hearing indicates that there was some mention of a potential conflict and of Judge Sprizzo's confidentiality order, but neither was fully explored or explained to Hanna.

  Hanna has not shown how any conflict Goldenberg had before his withdrawal adversely affected his performance as her lawyer. Goldenberg represented her only for a matter of months. Even if Hanna's communications to Rabadi are attributed completely to Goldenberg's dual representation (a fact I do not find), she is unable to identify a single injury to her case arising from anything she told Rabadi or any alternative defense that was not undertaken as the result of Goldenberg's other loyalties.

  The record establishes that Hanna's attempts to cooperate failed because she lied to the government in the Detroit episode, not because of any advice or action by Goldenberg. The sentence enhancement for obstruction of justice that Hanna received as a result of her failed cooperation also cannot be traced to any lapse of representation by Goldenberg, or even to her interaction with Rabadi. Hanna does not suggest that Rabadi fed her any incorrect information about the Detroit house. Rather, she simply disputes the government's conclusion that she lied. As noted above, the credible evidence established that Goldenberg urged her to be truthful with the government in the proffer sessions.

  Hanna claims that, as a result of Goldenberg's conflict, she confided in Rabadi more details than she gave to the government. This claim, even if true, does not establish an adverse affect on her representation. While Goldenberg was her counsel, a superseding indictment was filed, which increased the counts with which she was charged from one to forty-two, but this cannot be tied to a lapse in representation by counsel. Hanna was fully aware of the voluminous evidence the government had in support of the superseding indictment. She does not identify a single piece of information which she gave to Rabadi which the government did not already have and which was used to her detriment. Nor does she identify a single count against her in the superseding indictment which depends on information she gave to Rabadi rather than on information the government already had. In sum, the charges in the superseding indictment cannot be attributed to divided loyalties on the part of Goldenberg. Therefore, Hanna has failed to establish that a conflict of interest adversely affected Goldenberg's representation.

  In any event, any conflict of interest ended when Goldenberg was relieved as Hanna's counsel. As discussed below, I find that Hanna received effective assistance of counsel from her new lawyers and that, based on their reasonable advice, Hanna, at the time she plead guilty, knowingly and voluntarily waived any claim she may have had regarding Goldenberg's performance as her counsel. Thus, Hanna is not entitled to any relief based on Goldenberg's actions.

  I turn now to the claim related to Schechter. After Goldenberg was relieved as counsel, Hanna retained Marvin Schechter and Faith Colangelo. They represented Hanna at her plea and sentencing and on direct appeal. Like Goldenberg, Schechter discussed Hanna's options with her, which were to go to trial, to plead guilty without cooperating, or to cooperate. However, at the time Schechter came into the case, the government had made clear that, as a result of the Detroit incident, it did not trust Hanna and had no use for her as a cooperator. Therefore, Schechter and Colangelo indicated that so much damage had been done by her attempts to cooperate that her only viable option was to plead guilty. An attempt to work out a plea deal and get the best possible sentence, given the weight of the evidence against her, drove their efforts.

  Schechter, while acknowledging the difficulty of remembering the details of events of many years ago, remembered Hanna's case because she was accused of being a leader of a large drug organization and faced a long sentence. Hanna was an engaged, involved client with whom he and Colangelo had many meetings and discussions. He explained Hanna's legal options in detail. Hanna never expressed an interest in going to trial. At the time she decided to plead guilty, Hanna, like all of her lawyers, recognized that the evidence against her was overwhelming. The credible evidence established that neither Schechter's advice to Hanna to plead guilty, nor Hanna's decision to plead guilty, depended upon any information that she gave to Rabadi. She testified that she had "spilled her guts" to the government, but there is no evidence that any information she gave to Rabadi colored her decision to plead guilty. Her attorneys explained to her that her statements at her proffer sessions would not be admissible on the government's direct case. Her decision to plead guilty was based upon the overwhelming evidence that the government had implicating her in both drug dealing and money laundering.

  Hanna explained to Schechter and Colangelo her concerns about the way Goldenberg was retained, questioning whether it was illegal or unethical to have a government cooperator involved in securing her counsel. As Hanna acknowledged, at that time she was mostly concerned about getting her money back from Goldenberg.*fn7

  At the time Schechter was counseling Hanna, he was aware of two possible areas of ineffectiveness by Goldenberg. One was Hanna's claim that Goldenberg told her not to be fully forthcoming during her proffer sessions with the government. The other related to Rabadi's cooperation against her and the dual loyalty this created in Goldenberg. Contrary to Hanna's argument on this petition, Schechter fully understood the nature of the alleged conflict and its possible impact on Goldenberg's representation. He testified, for example, that Hanna's concern was

that she had hired Goldenberg, that Goldenberg had not advocated totally for her. That he had told her to lie to the government or to withhold the truth, or to shave the truth.
That Rabadi somehow was being given the information by Goldenberg, and it was being used by Rabadi for either his benefit or his relative's benefit in another case.
That would have put Mr. Goldenberg in a dual position, if that were true. That's how I understood the conflict.
Tr. 232-33.

  While Schechter acknowledged that he could not know whether his client's statements regarding these issues would be found factually correct in the absence of an evidentiary hearing, he had sufficient basis for evaluating whether an evidentiary hearing would likely benefit his client. For one thing, his client did not want to go to trial but wanted to plead guilty and limit her sentence. Schechter testified:

And the issue for us was, could we prove that? If we could prove it, how would we prove it? And where were we going with it as a major issue, in terms of what we were trying to achieve?
Tr. 233.

  Schechter was "sure" he and Colangelo had counseled Hanna that by pleading she was waiving the conflicts issue for all time. Tr. 234-35. He testified credibly that: "We would not have given up an issue for a client under any circumstances, particularly one which was banging around in the case from the outset, without getting the client's full and complete cooperation on it, and we would have counseled the client on that." Tr. 235.

  Hanna entered into a plea agreement that provided that the government would recommend a sentence range of ten to forty years. At Hanna's plea proceeding on September 30, 1988 before Judge Dearie, there was discussion of a "serious motion" that Schechter had contemplated making but had decided not to make. The substance of the proposed motion was not identified at the proceeding. Schechter testified that he believed the "serious motion" had to do with the issue of Goldenberg's representation of Hanna, and I find that this was the case.*fn8

  Schechter stated on the record at Hanna's plea that "[c]ounsel still has great concern about the aspects of this motion. But we have found another way of remedy, if you will, on our side that we can pursue the goals of this motion without having to bring it." Judge Dearie reiterated that the issue underlying the motion was now resolved, stating, without contradiction from Schechter or Hanna, "you discussed this matter with your client. She realizes as far as this proceeding that issue is behind her."

  Schechter's testimony, as supported by the record of proceedings before Judge Dearie, established that Schechter, in consultation with Hanna, ultimately used a strategy in which they would not make a motion prior to a plea regarding the role of Rabadi and any conflict of Goldenberg. Rather, they would argue at sentencing that Goldenberg's involvement with Rabadi tainted his representation of Hanna and that, as a result, the sentencing judge should view her failure of cooperation, which the government argued amounted to obstruction of justice, in a more lenient light and grant her a downward departure, if not under Section 5K1 of the United States Sentencing Guidelines, which were relatively new at the time, then under Section 5K2. Thus, the evidentiary hearing confirms that Schechter and Hanna had discussed the possibility of bringing a motion related to the conflict issue but decided not to bring it. See also Hanna v. United States, 2001 U.S. Dist LEXIS 22284 at *13-16 (discussing Hanna's sworn statements at her plea allocution, which support the conclusion that her plea was knowing and voluntary).

  The decision to waive a motion related to Goldenberg and Rabadi was supported by Schechter's view that bringing such a motion represented a potential "disaster" for Hanna. This was because he knew that Hanna had a history of having been found to have lied to the government and that, were she found to be lying again, it would negatively affect the sentence.*fn9 It was also clear that there was little or nothing to be lost from foregoing a motion relating to Goldenberg's representation. Goldenberg had been relieved. Schechter reasonably concluded that there was no possibility that the indictment or even that certain charges would be dismissed. There was no possibility of the government accepting Hanna as a cooperator. Then, as now, the only potential relief was sentencing relief.

  A review of Schechter's sentencing memorandum of February 28, 1989, confirms that Schechter did seek sentencing relief based on a claim that Hanna's ability to cooperate had been compromised by the conduct of Goldenberg and Rabadi. It also confirms that he was fully aware of the facts that Hanna now claims created a conflict. See A243-254. After reciting those facts in detail, Schechter concludes, at A254:

The tangled web of relationships between Rabadi, a government informant (whose information regarding Hanna and the co-defendants was cited by the government as a basis for the reduction of Annabi's and Fraih's sentences), and Goldenberg, who had, at the very least, an apparent conflict of interest, leaves much to be desired when evaluating the circumstances under which Mary Ann Hanna sought to cooperate with the government in March, 1988.
Although the strategy ultimately was not successful, in that no departure was granted, Schechter's testimony, in which he repeatedly stressed the risks to Hanna of pursuing her claims regarding Goldenberg and Rabadi at a hearing, established that the strategy was professionally sound. The obstruction of justice sentence enhancement that Hanna received was not the result of ineffective assistance of either Goldenberg or Schechter. Rather, it was the result of the information she herself provided about the Detroit house, without Goldenberg's involvement.

  In sum, the evidence at the hearing established that Schechter made a professionally reasonable, indeed sophisticated, strategic decision regarding how to deal with Goldenberg's alleged conflict, that Hanna was fully consulted about that decision and that, when entering her plea of guilty, she knowingly and voluntarily gave up any right she may have had to bring a motion regarding the alleged conflict. Hanna seeks relief based upon a conflict of interest that she became aware of, and that ended, long before she entered her guilty plea. It caused no adverse effect on her representation, and, even if it had, she knowingly and voluntarily waived any such effect when she pled guilty.


  The petition is denied. Because petitioner has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability is denied.


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.