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Schwamborn v. United States

June 20, 2007


The opinion of the court was delivered by: Glasser, United States District Judge


Petitioner Frank Schwamborn seeks an order, pursuant to 28 U.S.C. § 2255 ("Section 2255"), vacating the sentence of 55 months' imprisonment that this Court initially imposed on May 28, 2003, and affirmed on remand on June 22, 2005.*fn1 Mr. Schwamborn's principal argument in support of his petition is that his former attorney ineffectively assisted him during plea negotiations and at sentencing by failing to inform Mr. Schwamborn of a plea agreement offered by the government prior to the entry of Mr. Schwamborn's guilty plea, and failing to request an evidentiary hearing for the purpose of challenging the testimony that Mr. Schwamborn's co-conspirator David Grossman gave at the trial of co-conspirator Robert Santoro, upon which this Court relied in determining that a four-level enhancement should be applied to Mr. Schwamborn's base offense level at sentencing due to his role as a leader or organizer in the criminal enterprise to which he pleaded guilty. During the pendency of this petition, Mr. Schwamborn has filed several other motions seeking various forms of relief. By separate motions filed on October 24, 2006, Mr. Schwamborn seeks an order directing the Bureau of Prisons to return Mr. Schwamborn to the Nassau County Correctional Facility ("NCCF"), where he is currently incarcerated, rather than to a facility closer to this Court's location in Brooklyn, New York, if he is removed from the NCCF to appear for a hearing in this matter, and an order directing the Bureau of Prisons to grant him daily access to the NCCF's law library so that he may effectively represent himself in this pro se petition and any subsequent appeals.*fn2 Finally, Mr. Schwamborn has moved for leave to supplement his § 2255 petition on the basis of "newly discovered evidence" regarding a sealed hearing on Robert Santoro's renewed motion to sever his trial from that of Mr. Schwamborn, from which Mr. Schwamborn and his attorney were excluded. For the reasons stated below, all of Mr. Schwamborn's motions are denied.


Frank Schwamborn was indicted and arrested in April 2001 on charges of racketeering, conspiracy to commit money laundering, and related counts, stemming from his participation in a money laundering scheme in which Schwamborn, co-defendants Santoro and Grossman, and other members of the Genovese crime family passed stolen checks through a check cashing service in Jersey City, New Jersey, known as City Check Cashing, which was managed by Santoro. The proceeds from the stolen checks were then deposited into bank accounts set up by Schwamborn, including some accounts owned by David Grossman, who had served as Mr. Schwamborn's attorney for several years. Mr. Schwamborn initially pleaded not guilty to the charges, and a joint trial for Schwamborn, Santoro, and Grossman was scheduled for November 4, 2002. During the pretrial proceedings, Mr. Schwamborn's defense attorney, Michael Washor, entered into negotiations with the government regarding a possible plea agreement. In October 2001, the government provided Mr. Washor with a draft plea agreement, marked "for discussion purposes only," which envisioned a plea to the money laundering charge, and was contingent upon Santoro and Grossman also pleading guilty. Mr. Schwamborn asserts this document was intended as a bona fide plea agreement offer, and that Mr. Washor failed to inform him of the existence of that offer at any time in which he could have accepted it. Mr. Washor, however, testified that he did discuss the draft agreement with Mr. Schwamborn, and both Mr. Washor and the government have stated that the draft plea agreement was never intended as a formal offer, but was created only to facilitate ongoing negotiations, and that, because the draft offer was, in any event, contingent upon a global plea that would include Mr. Schwamborn's co-defendants Santoro and Grossman, the government would have remained free to rescind any agreement with Mr. Schwamborn, because Mr. Santoro did not plead guilty, but was convicted at trial.

On October 11, 2002, approximately three weeks before the joint trial was to begin, David Grossman pleaded guilty to the indictment and agreed to testify at trial against Schwamborn and Santoro. Approximately two weeks later, on October 28, the Court held a sealed hearing on Mr. Santoro's motion to sever his trial from that of Mr. Schwamborn, which it subsequently granted. Santoro's trial began on November 4, 2002; he was convicted on six of the nine counts against him by jury verdict on November 18. Grossman testified at Santoro's trial, and the government elicited substantial testimony from him regarding the degree of Schwamborn's participation in the money laundering scheme. During Santoro's trial, Mr. Schwamborn and the government entered into an agreement pursuant to which Mr. Schwamborn would plead guilty to the indictment, in exchange for which the government would not oppose a motion for a two-level reduction of Mr. Schwamborn's base offense level for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. On Friday, November 15, three days before his trial was scheduled to begin, Mr. Schwamborn appeared before this Court and pleaded guilty to the indictment. The Court found a factual basis to exist for Mr. Schwamborn's guilty plea, and accepted that plea.

Schwamborn's sentencing was initially scheduled for February 26, 2003, but was subsequently adjourned to May 21, 2003. Two days before the sentencing hearing was to be held, Mr. Scwamborn, now represented by Flora Edwards, moved to withdraw his plea on the ground that Mr. Schwamborn was ineffectively assisted by his former counsel, Mr. Washor. The Court denied that motion, finding that Mr. Washor effectively represented Mr. Schwamborn, and that Mr. Schwamborn's guilty plea was both knowing and voluntary. At the subsequent sentencing hearing on May 28, 2003, Mr. Schwamborn was again represented by Mr. Washor, who objected, inter alia, to a four-level sentence enhancement pursuant to U.S.S.G. § 3B1.1 based on Mr. Schwamborn's role as an "organizer or leader" in the criminal enterprise. The Court based that enhancement primarily on Grossman's testimony during the Santoro trial regarding Schwamborn's leadership capacity in the money laundering scheme; although Mr. Washor objected to the Court's reliance on that evidence, he declined the opportunity for an evidentiary hearing pursuant to United States v. Fatico, 579 F.2d 707 (2d Cir. 1978), to cross-examine Grossman on the issue of Schwamborn's leadership role and to offer rebuttal evidence on that point. The Court then applied the 4-level enhancement, sentencing Mr. Schwamborn to 55 months' imprisonment to be followed by three years' supervised release.

Represented again by Ms. Edwards, Mr. Schwamborn appealed the Court's denial of his motion to withdraw his plea and his 55-month sentence, arguing, inter alia, that he was ineffectively assisted by Mr. Washor prior to pleading guilty, in part because Mr. Washor allegedly failed to convey the alleged plea offer to Mr. Schwamborn prior to his plea. The Second Circuit affirmed this Court's rulings and sentence in an unpublished order dated January 23, 2004, and issued on February 24, 2005, United States v. Schwamborn, 87 Fed. Appx. 197 (2004), but in a separate order issued the same day, remanded the case to give this Court the opportunity to consider re-sentencing Mr. Schwamborn under the sentencing paradigm announced by the Supreme Court's then-recent opinion in United States v. Booker, 543 U.S. 220 (2005). United States v. Schwamborn, 03-1370 (2d Cir. issued Feb. 24, 2005). In an opinion dated June 22, 2005, this Court denied Mr. Schwamborn's request for resentencing, holding that the 55-month sentence it initially imposed was "eminently fair and reasonable." United States v. Schwamborn, No. 01-CR-416 (E.D.N.Y. filed June 22, 2005). On June 26, 2006, Mr. Schwamborn, acting pro se, filed the present § 2255 motion, in which he argues once again that he should be released because he received ineffective assistance of counsel from Mr. Washor both prior to entering his plea and at his sentencing hearing. Mr. Schwamborn has subsequently filed motions to supplement his § 2255 petition and for various peripheral relief. The Court shall address each motion in turn.


A. Ineffective Assistance of Counsel

As noted above, Mr. Schwamborn raises two ineffective assistance arguments with respect to Mr. Washor's representation of him in the underlying criminal action: first, he argues that Mr. Washor was ineffective in not conveying the government's plea agreement offer to Schwamborn prior to his guilty plea, and second, that Mr. Washor was ineffective in declining a Fatico hearing on the issue of Schwamborn's role in the criminal enterprise. Both of Mr. Schwamborn's arguments are unavailing.

1. Schwamborn's Ineffective Assistance Claim Based on Counsel's Failure to Advise Him of a Possible Plea Agreement is Barred by the Law of the Case

The government contends that Mr. Schwamborn's first ineffective assistance claim, which was considered and rejected by the Second Circuit on direct appeal, is barred from further consideration in this action by the law of the case doctrine. The "mandate rule," which is "a branch of the law-of-the-case doctrine[,]. . . holds 'that where issues have been explicitly or implicitly decided on appeal, the district court is obliged, on remand, to follow the decision of the appellate court.'" Burrell v. United States, 467 F.3d 160, 165 (2d Cir. 2006) (quoting United States v. Minicone, 994 F.2d 86, 89 (2d Cir. 1993)); see also United States v. Tenzer, 213 F.3d 34, 40 (2d Cir. 2000) ("'When an appellate court has once decided an issue, the trial court, at a later stage of the litigation, is under a duty to follow the appellate court's ruling on that issue.'") (quoting United States v. Cirami, 563 F.2d 26, 32 (2d Cir. 1977)). The government relies primarily upon the Seventh Circuit's opinion in Fuller v. United States, 398 F.3d 644 (7th Cir. 2005), which held that where a plaintiff's claim of ineffective assistance of counsel during plea negotiations was rejected by the court on direct appeal, the defendant was barred by the law of the case doctrine from raising the issue again in a subsequent § 2255 motion.

In Fuller, the defendant pleaded guilty, pursuant to a plea agreement, to a single charge of making a false statement to a credit union for the purpose of influencing his application for an overdraft protection loan in violation of 18 U.S.C. § 1014, a Class B felony. 398 F.3d at 645-646. Prior to sentencing, he moved to withdraw his plea, on the ground that the prosecutor had allegedly promised him that he would receive probation upon pleading guilty to the offense, and his defense attorney had failed to inform Mr. Fuller that he would be ineligible for probation prior his accepting the plea agreement.*fn3

Mr. Fuller's counsel informed the district court that, before the plea agreement was executed, he had told Mr. Fuller that "I sort of doubt that you're eligible for probation." Id. at 646. The district court denied Fuller's motion to withdraw his plea, and sentenced him to 46 months' imprisonment. See id. at 646-647. On appeal, Fuller retained new counsel and argued to the Seventh Circuit that his former attorney had provided him with ineffective assistance on his motion to withdraw his guilty plea, because the attorney's interest in shielding himself from a malpractice action was in conflict with his duty to represent Mr. Fuller's interests. The appellate court rejected that argument, "holding that Fuller failed to establish that his prior counsel had a conflict of interest that adversely affected his performance in arguing the motion." Id. at 647 (citing United States v. Fuller, 312 F.3d 287, 293 (7th Cir. 2002)). After the court of appeals affirmed his sentence and conviction, Fuller filed a motion to vacate his sentence pursuant to § 2255, "claiming once again that his trial counsel had a conflict of interest that caused him to render ineffective assistance at the hearing concerning the withdrawal of his guilty plea." Fuller, 398 F.3d at 647. The district court denied the motion, holding that Fuller's ineffective assistance claim was barred by the law of the case. On appeal, the Seventh Circuit affirmed the district court's denial of Fuller's motion to vacate his sentence, holding that "[i]n the context of § 2255 petitions, the 'law of the case' doctrine dictates that 'once this court has decided the merits of a ground of appeal, that decision establishes the law of the case and is binding on a [court] asked to decide the same issue in a later phase of the same case, unless there is some good reason for reexamining it." Id. at 648 (quoting United States v. Mazak, 789 F.2d 580, 581 (7th Cir. 1986)).

Schwamborn responds to the government's argument that his ineffective assistance claim is barred by the law of the case doctrine only briefly, quoting the Supreme Court's admonition in Massaro v. United States, 538 U.S. 500, 504-505 (2003), that "[w]hen an ineffective assistance claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose," and arguing that "petitioner bases his claim on the expanded record before this court post direct appeal and not solely on the record available to the court of appeals." Reply Mem. at 2. Mr. Schwamborn's reliance on Massaro is misplaced; that case stands only for the proposition that a criminal defendant's "failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255." 538 U.S. at 509. It does not mean that a defendant who raises an ineffective assistance claim on direct appeal is entitled to re-litigate the issue in a subsequent proceeding under § 2255. As the Seventh Circuit noted in Fuller, "Massaro does not hold that ineffective assistance claims must be brought on collateral appeal, nor does it disturb the rule in this circuit that bars relitigation of ineffective-assistance claims that have been raised and addressed on direct appeal." 398 F.3d at 649 (emphasis in original). The Supreme Court recognized in Massaro that "[w]e do not hold that ineffective-assistance claims must be reserved for collateral review," because "[t]here may be cases in which trial counsel's ineffectiveness is so apparent from the record that appellate counsel will consider it advisable to raise the issue on direct appeal." Massaro, 538 U.S. at 508. Although the Court also noted that "certain questions may arise in subsequent proceedings under § 2255 concerning the conclusiveness of determinations made on the ineffective-assistance claims raised on direct appeal," this Court does not read Massaro to ...

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