United States District Court, S.D. New York
August 1, 2005.
HAROLD BRIDGES, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: HAROLD BAER, Jr., District Judge[fn*] [fn*] Alissa Hazan, a summer 2005 intern in my Chambers, and currently a second year law student at New York University School of Law, provided substantial assistance in the research and drafting of this Opinion.
OPINION & ORDER
On April 9, 2004, Harold Bridges ("Petitioner"), petitioned
this Court for a writ of habeas corpus to vacate his May 11,
2001 sentence of life imprisonment, pursuant to 28 U.S.C. § 2255.
(Dckt. 39.) Petitioner claims: (1) ineffective assistance of
counsel, (2) abuse of discretion, (3) denial of right to
allocution, and (4) improper use of prior felony convictions. For
the foregoing reasons, the petition for a writ of habeas
corpus is DENIED.
On March 15, 2000, the Government filed a Superseding
Indictment, which charged Petitioner with conspiracy to
distribute, and possess with the intent to distribute, "one
kilogram and more of a mixture and substance containing a
detectable amount of phencyclidine ("PCP"), in violation of
Sections 812, 841(a) and 841(b)(1)(A) of Title 21, United States
Code." (Superseding Ind. at ¶ 2) (Dckt. 5.)
In April 2000, Petitioner retained California-based attorney
Vincent Oliver ("Oliver"). (Dckt. 9.) However, on June 26, 2000,
the Government moved to disqualify Oliver due to a conflict of
interest. (Dckt. 19.) The Government maintained that a conflict
was present because one of Oliver's former clients, an alleged
co-conspirator to Petitioner's crimes, compensated Oliver for his
representation of Petitioner. (Trial Tr. at 2:10-6:5). On July
28, 2000, the Court disqualified Oliver and appointed new
counsel, Jeremy Schneider ("Schneider"). (Dckt. 19; 20.) On August 30, 2000, the Government filed a prior felony
information against Petitioner pursuant to Title 21 U.S.C. § 851.
(Dckt. 26.) A second prior felony information was filed on
September 12, 2000. (Dckt. 31.) Both prior convictions were for
On September 18, 2000, trial commenced in the United States
District Court for the Southern District of New York. (Dckt. 31.)
Following a seven-day trial, Petitioner was convicted of all
charges (Dckt. 32), and was subsequently sentenced on May 11,
2001. (Dckt. 39.) Given the two prior felony informations filed
by the Government, as well as the jury's finding as to the PCP
weight, the Court imposed the mandatory minimum sentence of life
imprisonment upon Petitioner. Defendant appealed to the
United States Court of Appeals for the Second Circuit. See Bridges,
61 Fed. Appx. at 736.
On appeal, Mr. Ollen raised three arguments: (1) improper
admission of evidence regarding the allowance of testimony that
pertained to the discovery of a gun in Petitioner's house upon
his arrest; (2) inaccurate finding of fact regarding the quantity
of PCP, which ultimately lead to an improper sentence; and (3)
Government violation of discovery obligations under the Federal
Rules of Criminal Procedure by turning over exculpatory evidence
after the commencement of the trial. Id. at 737-39. The
appellate court affirmed this Court's conviction and life
sentence against Petitioner on March 18, 2003. Id. at 739.
II. STANDARD OF REVIEW
Pursuant to the Antiterrorism and Effective Death Penalty Act,
to prevail on a petition for a writ of habeas corpus, the
petitioner must demonstrate the:
[R]ight to be released upon the ground that the
sentence was imposed in violation of the Constitution
or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that
the sentence was in excess of the maximum authorized
by law, or is otherwise subject to collateral attack.
28 U.S.C. § 2255. As a collateral action, a petition for a writ
of habeas corpus is not a substitute for direct appeal, and a
petitioner who "fails properly to raise his claim on direct
review is barred from obtaining collateral relief under Section
2255 unless he establishes cause for the waiver and shows
actual prejudice resulting from the alleged error."
Velasquez v. United States, 24 F. Supp. 2d 320, 321 (S.D.N.Y.
1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994))
(emphasis added); see also St. Helen v. Senkowski,
374 F.3d 181
, 184 (2d Cir. 2004). There is an exception to this procedural
default rule. A petitioner's claim of ineffective assistance of counsel is not procedurally barred,
regardless of whether or not the petitioner could have raised the
claim on direct appeal. See Olaya-Rodriguez v. United States,
No. 02 Civ. 4153, 2003 WL 21219854, at *2 (S.D.N.Y. May 23, 2003)
(citing Massaro v. United States, 538 U.S. 500
, 504 (2003)).
Petitioner presents four arguments in support of his petition
for a writ of habeas corpus: (1) ineffective assistance of
counsel, (2) abuse of discretion, (3) denial of right to
allocution, and (4) improper use of prior felony convictions.
A. Procedural Bar
Petitioner failed to raise any of his four claims on direct
appeal, and consequently, with the exception of the claim for
ineffective assistance of counsel, his claims are procedurally
barred unless he can establish "cause" and "prejudice."
Olaya-Rodriguez, 2003 WL 21219854, at *2.
To satisfy the "cause" requirement, a petitioner must
demonstrate that he was prevented from filing a direct appeal.
Sanchez v. United States, No. 01 Cr. 908, 2005 WL 1005159, at
*2 (S.D.N.Y. April 30, 2005). Petitioner must prove that "some
objective factor external to the defense impeded counsel's
efforts to raise the claim in the prior petition factors such
as interference by officials or the unavailability of relevant
facts." Rodriguez v. Mitchell, 252 F.3d 191, 203 (2d Cir. 2001)
(internal quotation marks omitted). However, "cause" will
"usually [be] outside the record and [possibly] exclusively
within the petitioner's knowledge, and thus will only come to
light if properly asserted by the petitioner." Acosta v. Artuz,
221 F.3d 117, 125 (2d Cir. 2000) (internal quotation marks
Here, Petitioner fails to present any cause, with the
exception of ineffective assistance of counsel, for the absence
of these claims on appeal. See Dimas-Lopez v. United States,
No. 00 Cr. 153, No. 01 Civ. 7170, 2005 WL 1241890, at *2
(S.D.N.Y. May 25, 2005) (finding that a petitioner's habeas
petition was procedurally barred because he provided no reason
for failing to raise issues previously). As demonstrated in the
discussion below, Petitioner's ineffective assistance of counsel
argument lacks merit, and therefore, cannot satisfy valid cause. Maldonado v. Greiner, No. 01 Civ. 0799, 2003 WL 22435713
at *26 (S.D.N.Y. Oct. 28, 2003) ("Because his ineffective
appellate counsel claims are meritless, . . . they may not serve
as `cause' for this procedural default of [petitioner's] . . .
claims."). Given that Petitioner has failed to provide
justification for failure to raise three of his claims on appeal,
and there is no evidence of any external factors which impeded
his opportunity to raise these claims on appeal, the claims are
procedurally barred. Rodriguez, 252 F.3d at 203.*fn2
Accordingly, Petitioner's claims for (1) abuse of discretion,
(2) denial of right to allocution, and (3) improper use of prior
felony convictions are DENIED.
B. Ineffective Assistance of Counsel
Petitioner alleges that his trial and appellate counsel were
To prevail on a claim of ineffective assistance of counsel, a
petitioner must demonstrate that: (1) "counsel's representation
fell below an objective standard of reasonableness," and (2)
"there is a reasonable probability that but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Bell v. Cone, 535 U.S. 685, 694 (2002)
(citing Strickland v. Washington, 466 U.S. 668, 688, 694
(1984)); see also Henry v. Poole, No. 03 Civ. 2884, 2005 WL
1220468, at *12-13 (2d Cir. May 24, 2005); Cox v. Donnelly,
387 F.3d 193, 197 (2d Cir. 2004). Moreover, there is "strong
presumption" that an attorney's performance and manner of
representation were effective. Bell, 535 U.S. at 702 (citation
1. Ineffective Assistance of Trial Counsel
Petitioner presents five examples of inadequate performance by
his trial counsel: (a) failure to present witnesses, (b) failure
to have a voice exemplar produced, (c) failure to investigate the
validity of prior convictions used to enhance Petitioner's
sentence, (d) failure to object to sentence enhancement on
account of presence of a firearm, and (e) failure to pursue a
A court need not address both components of an ineffective
assistance inquiry if a petitioner fails to make a sufficient
showing on one. Kanani v. Phillips, No. 03 Civ. 2534, 2004 WL
2296128, at *26 (S.D.N.Y. Oct. 13, 2004) (citing Strickland,
466 U.S. at 697); see also Rodriguez v. Senkowski, No. 03 Civ. 3314, 2004 WL
503451, at *40 (S.D.N.Y. Mar. 15, 2004); Muyet v.
United States, No. 01 Civ. 9371, 2004 WL 1746369, at *3 (S.D.N.Y. Aug.
3, 2003). Petitioner's claims concern only actions allegedly
taken by his trial counsel that are not reflected in the record,
and the record indicates that counsel has declined the
opportunity to make a sworn statement via affidavit to clarify
his measures expended in connection with this case. Therefore, it
would be difficult to evaluate the "reasonableness" of counsel's
performance. Indeed, the Strickland Court commented that "[i]f
it is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, which we expect will often be
so, that course should be followed." 466 U.S. at 697. Due to the
unavailability of information pertaining to trial counsel's
actions, and because a court is not required to address both
prongs, Petitioner's claims will be evaluated only on the second
prong of the test the "reasonable probability" prong.
According to both the Supreme Court and the Second Circuit, to
satisfy the "reasonable probability" prong of the test for
ineffective assistance of counsel, a petitioner must demonstrate
"that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable."
Henry, 2005 WL 1220468, at *12-13 (citing Strickland,
466 U.S. at 687, 696). The court must ascertain "whether there is a
reasonable probability that, absent the errors, the fact finder
would have had a reasonable doubt respecting guilt." Id.
a. Failure to Present Witnesses
First, Petitioner argues that various witnesses were available
to testify in his defense, and that his counsel, Schneider,
failed to locate and interview them. In particular, Petitioner
claims that his brother, Shanea Jackson, his father, Quinten
Bridges, and his girlfriend, Tamara Moore, would have established
alibis for some of the occasions in which Errol Card, the
Government's principal witness, testified Petitioner was engaged
in narcotics dealings.
The Second Circuit has held that "[t]he decision not to call a
particular witness is typically a question of trial strategy that
appellate courts are ill-suited to second-guess." United States
v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998). Indeed, the
Supreme Court recently determined that "[q]uestioning a few more
family members and searching for old records can promise less
than looking for a needle in a haystack, when a lawyer truly has
reason to doubt there is any needle there." Rompilla v. Beard,
545 U.S. ___, 2005 WL 1421390, at *9 (Jun. 20, 2005). In
addition, "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than
one with overwhelming record support." Strickland,
466 U.S. at 695-96.
Unlike Rompilla, where a plethora of evidence that likely
would have mitigated Petitioner's sentence was available in the
courthouse and went unopened by trial counsel, here the
Petitioner failed to present a scintilla of evidence of
testimonies or affidavits he maintains exist. Id. This lack of
proof undermines the validity of Petitioner's allegations of his
counsel's errors. See, e.g., Buitrago v. Scullyi,
705 F. Supp. 952, 954 (S.D.N.Y. 1989) (counsel not ineffective for
failing to present alibi witness where petitioner fails to show
witness would provide alibi). In addition, a formidable case
against Petitioner exists and, thus, any potential errors have a
diminished impact. The Government presented a persuasive case
with substantial evidence against Petitioner at trial, including,
but not limited to: (1) testimony by Errol Card and recordings of
conversations between Petitioner and Card that incriminate
Petitioner in the conspiracy to manufacture and distribute PCP,
and (2) testimony from law enforcement officers who stopped or
surveilled Petitioner throughout the evolution of the conspiracy.
(Trial Tr. at 221-30; 234-46; 249-75.)
Petitioner's lack of proof of his alleged alibis and the
substantial evidence presented by the Government indicate that
the verdict at trial would not have been different had Schneider
investigated and used the witnesses. Therefore, "in light of the
extremely strong evidence against [Petitioner], including
testimony of his former accomplices, any deficiency by counsel
still would not satisfy the second Strickland prong, of showing
that [Petitioner] was prejudiced." Rodriguez v. Senkowski, No.
03 Civ. 3314, 2004 WL 503451, at *41 (S.D.N.Y. Mar. 15, 2004);
see also Kanani v. Phillips, No. 03 Civ. 2534, 2004 WL
2296128, at *32 (S.D.N.Y. Oct. 13, 2004) ("[D]ue to the
overwhelming evidence of Kanani's guilt, it is unlikely that
additional investigation would have affected the outcome of the
Accordingly, Petitioner has not has proved his trial counsel
was ineffective for failure to present certain witnesses.
b. Lack of Voice Exemplar
Second, Petitioner contends that his attorney failed to call a
voice exemplar,*fn3 which would have proved that some of
the alleged phone conversations that occurred between Petitioner and Card were in fact conversations in which
Petitioner himself was not a party.
A convicted felon must substantiate an allegation of evidence
with more than his own words. McCombe v. United States, No. 02
Civ. 1846, 2005 WL 730566, at *2 (S.D.N.Y. Mar. 31, 2005) (Baer,
J.) ("[A] petitioner with a demonstrated lack of credibility must
provide some evidence in addition to his own word if he is to
prevail in an ineffective assistance argument.").
Here, Petitioner fails to provide a scintilla of evidence in
support of his claim that a voice exemplar would have proved
Petitioner was not a party to some of the phone calls. Assuming
arguendo that he could prove this claim, "due to the
overwhelming evidence of guilt, there [is] no reasonable
probability that . . . the fact finder would have had reasonable
doubt respecting guilt." Rodriguez, 2004 WL 503451, at *42
(internal citations omitted).
Therefore, the aforementioned evidence supports the proposition
that there is no "reasonable probability" that the outcome at
trial would have been different.
c. Failure to Investigate the Validity of Prior Convictions
Third, Petitioner argues that Schneider failed to investigate
the claim that his prior convictions for felony narcotics in the
State of California were unsubstantiated and uncounseled, which
ultimately led to a mandatory life sentence.
Once a court determines that a petitioner's claim is meritless,
the petitioner cannot successfully attest that his attorney was
ineffective for failing to raise such a claim because,
presumably, the result of the proceedings would not have been
different if the claim were raised. See Mocombe, No. 02 Civ.
1846, 2005 WL 730566, at *4 (holding that "[petitioner] provides
no indication or argument as how [counsel's failure to produce
certain documents] would have been exculpatory . . .
[a]ccordingly, [petitioner] has failed to show that the decision
not to produce or argue from [the] documents amounted to
ineffective assistance of counsel); see also Salas-Soto v.
United States, No. 02 Civ. 9306, 2004 WL 63494, at * 2 (S.D.N.Y.
Jan. 13, 2004) (Upon conclusion that the minor blindness
Petitioner experienced was not nearly sufficient to reach the
standard required for downward departure from Sentencing
Guidelines for medical condition, the court held that
Petitioner's counsel was not ineffective for failing to seek such
Here, Petitioner maintains that he was convicted of only one
narcotics felony, not two, and that the conviction was obtained
without representation by counsel. However, the Government submitted as evidence two separate Abstracts of
Judgment that unambiguously confirm that Petitioner was properly
convicted of felony drug offenses twice in the State of
California, and that he was represented by counsel in connection
with both convictions. The evidence clearly demonstrated that
Petitioner's denial of the existence and validity of his prior
convictions lacks merit. As such, "[petitioner's] ineffective
assistance of counsel claim fails . . . since the objection that
[petitioner] believes that [counsel] should have made [to his
prior state conviction] would have been unavailing." Echevarria
v. United States, No. 97 Cr. 532, 2001 WL 1111523, at *2
(S.D.N.Y. Sept. 21, 2001).
Accordingly, Petitioner's prior convictions were both canonical
and counseled, and, therefore, there is no "reasonable
probability" that his sentence would have been altered had his
counsel argued that the prior convictions were specious.
d. Failure to Object to Sentence Enhancements
Fourth, Petitioner contends that his counsel was deficient for
failure to object to the two level enhancement for possession of
a firearm in the course of the commission of his crime in
accordance with U.S.S.G. § 2D1.1(b)(1).
If a convicted felon receives the mandatory minimum sentence
for the crime committed, which is required in spite of the error
he claims his counsel made, the felon could not have suffered
prejudice attributable to this error. See United States v.
White, 174 F.3d 290, 294-95 (2d Cir. 1998). Similarly, in
Luciano, 158 F.3d at 661, the Second Circuit determined that
ineffective assistance of counsel alone does not necessitate the
Were we to remand for resentencing, [petitioner]
could receive no lesser sentence of incarceration.
Because the district court lacked discretion to
sentence [petitioner] to any lesser period of jail
time, the outcome of the proceeding in which the
constitutionally deficient representation occurred
could not possibly have been any different.
Luciano, 158 F.3d at 661-62. The Second Circuit recognized the
futility of resentencing a petitioner because of trial counsel
ineffectiveness where the sentence was predetermined.
Here, Petitioner was convicted of a violation of
21 U.S.C. § 841(b)(1)(A), and had previously been convicted of two felony
drug offenses. According to 21 U.S.C. § 841(b)(1)(A): [I]f any person commits a violation of [this statute]
after two or more prior convictions for a felony drug
offense have become final, such person shall be
sentenced to a mandatory term of life imprisonment
without release. . . .
21 U.S.C. § 841. Thus, according to the Second Circuit's decision
in Luciano, the enhanced penalties of 21 U.S.C. § 841(b)(1)(A)
dictate that Petitioner receive a minimum sentence of life
imprisonment and make such a claim futile. Luciano,
158 F.3d at 661-62.
Consequently, there was no potential alternative to the outcome
of Petitioner's sentencing, notwithstanding any unsatisfactory
performance by his counsel for the failure to object to the two
level sentence enhancement.
e. Failure to Pursue a Plea Bargain
Fifth, Petitioner argues that his counsel was ineffective due
to his failure to pursue a plea bargain upon Petitioner's
indication that he would be inclined to accept one.
Counsel is required to inform his client of any plea offer made
by the government. Muyet v. United States, No. 01 Civ. 9371,
2004 WL 1746369, at *7 (S.D.N.Y. Aug. 3, 2003). However, failure
to pursue a plea bargain is not sufficient proof of ineffective
assistance of counsel when there is no suggestion that the
prosecutor would have offered one. Eisemann v. Herbert,
401 F.3d 102, 109 (2d Cir. 2005) (citing Burger v. Kemp,
483 U.S. 776, 785-86 (1987)).
Here, there is no evidence that the prosecutor ever intended to
offer a plea bargain. Furthermore, "[a] petitioner cannot solely
rely on his own [assertion] but must also present objective
evidence to substantiate his claim that he would have accepted a
purported plea offer." Muyet, 2004 WL 17463369, at *8.
Petitioner has tendered no such evidence, and therefore fails to
prove either the existence of an offer of a plea-bargain, or his
alleged willingness to accept such an offer.
Accordingly, there is no merit to the argument that the outcome
of the trial would have been any different had Petitioner's trial
counsel attempted to obtain a plea bargain. Id.
2. Ineffective Assistance of Appellate Counsel
Petitioner also claims that his appellate counsel, Ollen, was
ineffective for his failure to raise any issues on appeal that
Petitioner requested he raise. In particular, Petitioner argues
that the three issues warranted attention on direct appeal: (1)
abuse of discretion by the disqualification of desired trial
counsel, (2) the Court's incorrect application of prior convictions to enhance his sentence, and (3) the Court's increase
of his sentence due to the presence of a weapon.
Appellate counsel is under no duty to raise a claim that lacks
merit. Muyet, 2004 WL 17463369, at *9 (holding that "failure to
raise meritless claims on appeal does not constitute deficient
performance"). Moreover, appellate counsel "need not (and should
not) raise every non-frivolous claim, but rather may select from
among them in order to maximize the likelihood of success on
appeal." Smith v. Robins, 528 U.S. 259, 288 (2000) (citing
Jones v. Barnes, 463 U.S. 745, 750-54 (1983)).
First, Petitioner's claim that the Court's decision to
disqualify his retained attorney for trial constituted an abuse
of discretion lacks merit. The Sixth Amendment guarantees that
"[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defense."
U.S. Const. Amend. VI. However, the Supreme Court has recognized
that the defendant's right to counsel of his choice is not
absolute. Wheat v. United States, 486 U.S. 153, 159 (1998). If
an actual or potentially serious conflict of interest exists, the
court has "substantial latitude" to disqualify the choice of
counsel, even if the accused has attempted to waive any
conflicts. United States v. Zichettello, 208 F.3d 72, 104 (2d
Cir. 2000) (citing Wheat, 486 U.S. at 163). A conflict of
interest exists when, inter alia, "the attorney's
representation of the defendant is impaired by loyalty owed to a
prior client." United States v. Jones, 381 F.3d 114, 119 (2d
Here, the Government presented potential conflicts that could
arise as a consequence of Oliver's prior representation, and
continuing compensation, of Leonard Brown ("Brown"). (Trial Tr.
at 5:12-6:5.) In addition, Brown was also an alleged
co-conspirator and a potential witness at trial. (Trial Tr. at
2:10-4:22.) The Court, as in Jones, determined that "the
interests of [appellant] and [potential testifier] diverged with
respect to what course of action should be taken." Jones,
381 F.3d at 119. Accordingly, the Court's decision to disqualify
Oliver was not an abuse of discretion and Petitioner's claim
Second, Petitioner argues that his prior convictions were
erroneous and, therefore, should not have received an enhanced
sentence. This Court has already determined that the Court's
enhancement of Petitioner's sentence due to his prior convictions
was appropriate. Similarly, this Court has also already
determined that the sentence enhancement Petitioner received
because of the presence of the gun was irrelevant to his sentence
determination. All three claims that Petitioner argues his appellate counsel
should have raised lack merit. Accordingly, while "a petitioner
may establish constitutionally inadequate performance if he shows
that counsel omitted significant and obvious issues while
pursuing issues that were clearly and significantly weaker," he
cannot prevail on the claim that an attorney's performance is
objectively unreasonable for failing to raise claims that have no
merit. Muyet, 2004 WL 1746369, at *10. Therefore, Petitioner's
claim for relief, on the grounds of ineffective assistance of
appellate counsel, is also DENIED.
For the aforementioned reasons, Bradley's petition for a writ
of habeas corpus is DENIED. The Clerk of the Court is
instructed to close this case and any pending motions and ORDERED
to remove this case from my docket.
IT IS SO ORDERED.