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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. § 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 ...

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