Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. v. BECKER

November 18, 2005.

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
GREGG BECKER, Defendant — Petitioner.



The opinion of the court was delivered by: ROBERT PATTERSON JR., Senior District Judge

OPINION & ORDER

The Petitioner, Gregg Becker ("Becker"), presently subject to a sentence imposed by this Court, seeks relief pursuant to 28 U.S.C. § 2255 from his earlier conviction for securities fraud. For the reasons set forth below, the petition is denied in part but further briefing is requested on one issue.

BACKGROUND

  On February 3, 2002, the Government filed Superseding Indictment S3 01 Cr. 156 (RPP), which contained five counts, two of which implicated Petitioner. Count One charged Petitioner with unlawful involvement in a conspiracy to commit: (a) securities fraud in violation of 15 U.S.C. §§ 78j(b) and 78ff, and 17 C.F.R. § 240.10b-5; (b) mail fraud in violation of 18 U.S.C. § 1341; and (c) wire fraud in violation of 18 U.S.C. § 1343. (Superseding Indictment S3 01 Cr. 156 (RPP) at 1-29.) Count Two charged Petitioner with securities fraud in violation of 15 U.S.C. § 78j(b) and 78ff; 17 C.F.R. § 240.10b-5; and 18 U.S.C. § 2. (Id. at 30-31.)

  Petitioner's trial began on June 3, 2002, and ended on July 1, 2002, when a jury convicted him of (1) conspiracy to commit securities fraud, mail fraud, and wire fraud; and (2) commission of securities fraud. (Trial Tr. at 3596-3601.) On February 20, 2003, Petitioner was sentenced to twenty-four months imprisonment, followed by three years supervised release; a $200 special assessment; and restitution in the amount of $386,338. (Sentencing Tr. at 54-55.)

  Petitioner appealed his conviction to the Second Circuit, which affirmed his conviction by summary order on October 31, 2003. United States v. Alvarado (Becker), No. 03-1117, 84 F.App'x 162 (2d Cir. October 31, 2003.) Petitioner filed a petition for rehearing with a suggestion for rehearing en banc, which was denied on December 19, 2003. Petitioner did not file a petition for a writ of certiorari to the Supreme Court. (Third Am. Pet. for Writ of Habeas Corpus ("Third Am. Pet."), dated Feb. 14, 2005, filed Mar. 7, 2005, at 2.) On February 27, 2004, Petitioner filed the present 28 U.S.C. § 2255 motion, and has amended his petition three times, on May 24, 2004, August 10, 2004, and February 14, 2005.

  Petitioner raises several claims in his oft-amended petition for a writ of habeas corpus. In his original motion for relief pursuant to 28 U.S.C. § 2255, which was filed by his habeas attorney, Petitioner argues that he received ineffective assistance of counsel in violation of the Sixth Amendment, when trial counsel failed to argue on appeal that the jury did not follow the law. (Mot. for Relief Pursuant to 28 U.S.C. § 2255 ("Pet."), dated Feb. 27, 2004, at 1.)

  In his First Amended Petition for Writ of Habeas Corpus, also filed by his habeas attorney, Petitioner invokes the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004), and challenges the admission of the plea allocutions of his co-conspirators, thereby denying him opportunity to cross-examine them. (First Am. Pet., dated May 24, 2004, at 1-5.)

  The Second Amended Petition for Writ of Habeas Corpus relies on Blakely v. Washington, 542 U.S. 296 (2004), and argues that Petitioner's sentence was improperly enhanced beyond the statutory maximum as a result of judicially-determined facts not presented to the jury for a finding beyond a reasonable doubt. (Second Am. Pet., dated Aug. 5, 2004, at 17-18.)

  Finally, in his Third Amended Petition for Writ of Habeas Corpus, Petitioner, proceeding pro se, appears to raise three new and distinct ineffective assistance of counsel claims. The first relates to his counsel's untimely filing of a Rule 29 motion, and her failure to challenge her own allegedly deficient performance on appeal. (Third Am. Pet. at 4-5.) Petitioner also asserts that he received "ineffective assistance of appellate counsel wherein counsel failed to advise him of his right to file a petition for certiorari in the Supreme Court." (Id. at 3.) It is unclear from this statement and from his subsequent argument whether Petitioner is arguing that his counsel was ineffective on appeal for failing to notify him of his right to proceed pro se by filing a petition for a writ of certiorari, or if he challenges counsel's decision to dissuade Petitioner from directing counsel to petition for a writ of certiorari. Because "the pleadings of a pro se plaintiff must be read liberally and should be interpreted `to raise the strongest arguments that they suggest,'" this Court will consider both of these interpretations. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).*fn1

  DISCUSSION

  A. Ineffective Assistance of Counsel Claims

  1. Petitioner fails to show prejudice with respect to his claim for ineffective assistance of counsel, when counsel filed an untimely Rule 29 motion

  In his Third Amended Petition, Petitioner claims, inter alia, that he was denied effective assistance of trial counsel when counsel filed an untimely motion for a judgment of acquittal. (Third Am. Pet. at 1.)

  Following the jury's guilty verdict, Petitioner's trial counsel requested an additional three weeks of time for filing post-trial motions because of the complexity of the case. (Trial Tr. at 3618.) This Court granted her request, setting a deadline of July 22, 2002. (Id.) Petitioner's counsel did not, however, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.