The opinion of the court was delivered by: Hurley, Senior District Judge
On 2255 Application (doc. #1)
Petitioner Michael Salzman ("Petitioner" or "Salzman") moves pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence arising from his 2002 conviction in this Court. The basis for this § 2255 Application is ineffective assistance of trial counsel. For the reasons set forth below, the Application is DENIED.
On June 22, 2002, Salzman plead guilty to a one-count information charging him with bank fraud in violation of 18 U.S.C. § 1344. At that time, he was represented by Attorney Michael R. Franzese. Attorney Franzese continued his representation of Petitioner at Petitioner's sentencing on November 1, 2002. Salzman's sentence included a term of imprisonment of 21 months to be followed by a term of three years supervised release. The imprisonment term fell in the middle of the recommended range of 18 to 24 months.
In calculating the sentencing range in the Pre-Sentencing Report ("PSR"), the Probation Department recommended against a two-point deduction for acceptance of responsibility. This was contrary to the original pleas agreement entered into by Petitioner and the Government, where the two-point reduction was anticipated. However, between the time the plea agreement was entered and the time the PSR was prepared, and while Petitioner was under the supervision of Pre-Trial Services, an arrest warrant was issued by the Carteret, New Jersey Police Department as the result of a fraud committed by Petitioner in September 2002. The circumstances of this warrant issuance were discussed in the PSR. (See PSR at ¶¶ 12-13.) Thus, as a result of this incident, the Probation Department concluded Petitioner did not demonstrate the requisite acceptance of responsibility warranting the corresponding two-point downward adjustment.
Further, reference to the Declaration of Petitioner's prior attorney, Michael R. Franzese, filed in response to the current § 2255 Application indicates that Petitioner told his then-counsel that he "committed the charged fraud."*fn1 (Decl. Michael R. Franzese ("Franzese Decl.") at ¶2, attached to Gov'ts' Letter Br. (July 23, 2004) (doc. #19).) Thus, based on his investigation of the arrest warrant and on his client's admission to him, Attorney Franzese "concluded that the charge did indeed have merit and that the arrest warrant was issued." (Id.) Furthermore, Attorney Franzese "was concerned about Mr. Salzman's positive test for cocaine and false denial of using cocaine, which were recorded in a memorandum submitted to the Court by U.S. Probation on July 31, 2002." (Id.) Attorney Franzese further stated that he discussed the potential sentencing impact of both the arrest warrant and the positive drug test result with his client. (See id.) According to Attorney Franzese, both he and Petitioner were concerned that these two incidents would provide the Court with a basis for sentencing Salzman towards the maximum of his Sentencing Guidelines range. (See id.) According to Attorney Franzese, "After his sentencing, Mr. Salzman was pleased that Judge Hurley opted not to sentence him at the maximum of his Sentencing Guidelines range. Indeed, we both determined that Mr. Salzman had received the best possible sentence in his Federal Case." (Id.)
At Petitioner's sentencing, his attorney did not object to the Probation Department's recommended sentencing range. However, when the Court asked whether the defense had any further comments or objections concerning the PSR, Attorney Franzese requested to be heard by the Court. (See Nov. 1, 2002 Sent. Hrg. Tr. 10:8-14.)
THE COURT: All right, Mr. Salzman, or I'll hear Mr. Franzese first.
MR. FRANZESE: Judge, as I was saying, my client has an illness and it's been documented years ago.
As early as junior high, if not earlier. His conduct reflects that illness. He has been trying to get treatment reflected in the report you have. He's made some efforts -- recently he's got into trouble and he's tried to make sincere efforts. We've made many efforts to take a plea earlier to avoid the complication, through no fault of Mr. Mato or the government, but Mr. Salzman was prepared to take his plea two years ago to accept the responsibility. * * * I will ask the Court to impose a period of 18 months. . . . (Id. at 11:6-12:7.) Petitioner reiterated his attorney's request for leniency in sentencing. (See id. at 12:24-25.) As indicated earlier, the Court imposed a sentence in the middle of the recommended sentencing range of 18 to 24 months, i.e., 21 months.
Now, Salzman argues that his trial attorney was ineffective for two reasons. First, Salzman finds fault with Franzese because he did not object to the recommendation of the Probation Department that Salzman not receive a two-point reduction for acceptance of responsibility. Second, Salzman faults Franzese's failure to raise the issue of his client's alleged attempts to rehabilitate his gambling addiction as a basis ...