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Blumenberg v. United States

April 30, 2008


The opinion of the court was delivered by: John G. Koeltl, District Judge


Fritz Blumenberg, appearing pro se, moves pursuant to 28 U.S.C. § 2255 to vacate his conviction and sentence. The petitioner also has filed a motion pursuant to the All Writs Act, 28 U.S.C. § 1651, for a writ of error coram nobis, two documents designated "Mandatory Judicial Notice," and a "Motion to Expedite Vacatur of Illegal Conviction/Sentence Pursuant to § 2255."

The defendant was convicted pursuant to his plea of guilty to one count of conspiracy to commit wire fraud and mail fraud, in violation of 18 U.S.C. § 371; one count of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2; one count of mail fraud, in violation of 18 U.S.C. §§ 1341, and 2; and two counts of filing false tax returns, in violation of 26 U.S.C. § 7201. He was sentenced principally to 30 months imprisonment to run concurrently on all counts and has been removed from the United States after the service of his sentence.

The defendant filed a § 2255 petition alleging ineffective assistance of counsel. (05 Civ. 9416 (JGK), Docket No. 1). The petition is dated and signed August 16, 2005, and was received by the Pro Se Office of this Court on October 31, 2005. The defendant subsequently filed a motion for a writ of error coram nobis dated December 16, 2005, seeking to vacate his conviction, and served a document entitled "Mandatory Judicial Notice" dated April 8, 2006. (01 Cr. 571 (JGK), Docket Nos. 163, 165.) The Court issued an Order dated April 19, 2006, in which it indicated that the subsequent filings would be treated as amendments to the petitioner's § 2255 motion. (01 Cr. 571 (JGK), Docket No. 167.) The Court treats the subsequent filings as amendments because the petitioner is currently serving a three-year term of supervised release which was imposed as part of his sentence, and a writ of error coram nobis is only available to a petitioner who is no longer in custody pursuant to the sentence he seeks to attack. See Scanio v. United States, 37 F. 3d 858, 860 (2d Cir. 1994) (petitioner serving supervised release is "in custody" for purposes of § 2255); Cisse v. United States, 330 F. Supp. 2d 336, 340 (S.D.N.Y. 2004). Because the petitioner is proceeding pro se, the Court liberally construes his subsequent filings as amendments to the § 2255 petition.


The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), imposes a one-year statute of limitations on an application for a writ of habeas corpus. 28 U.S.C. § 2255(f). The limitations period for such a claim begins to run from the date on which the judgment of conviction becomes final.*fn1 A conviction becomes final for the purposes of § 2255 when the Supreme Court "affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." Clay v. United States, 537 U.S. 522, 527 (2003). A petition for certiorari must be filed within 90 days from the date of entry of judgment below. See Supreme Court Rules 13(1), 13(3).

In this case, the Court of Appeals filed its decision affirming the sentence on May 13, 2004. United States v. Blumenberg, 96 Fed. Appx. 776 (2d Cir. 2004). Thus, the petitioner's conviction became final on August 11, 2004, ninety days after the entry of the judgment of the Court of Appeals. AEDPA's one-year statute of limitations expired one year from this date, on August 11, 2005. The petition was signed and dated August 16, 2005, and the petition is therefore untimely. The petitioner's reliance on the prison mailbox rule, announced in Houston v. Lack, 487 U.S. 266 (1972), and codified in Federal Rule of Appellate Procedure 4(c)(1), is without merit. The petition was signed and dated after the expiration of the limitations period, and therefore the petition could not have been placed in the institutional mailbox prior to the expiration of the limitations period.*fn2


In any event, the petition is without merit. The petitioner alleges that his counsel was ineffective for various reasons. To establish a claim of ineffective assistance of counsel, the petitioner must show both that: (1) his counsel's performance was deficient in that it was objectively unreasonable under professional standards prevailing at the time, and (2) that his counsel's deficient performance was prejudicial to his case. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Bunkley v. Meachum, 68 F.3d 1518, 1521 (2d Cir. 1995).

The petitioner cannot meet the first prong of this test merely by showing that his counsel employed poor strategy or made a wrong decision. Instead, the defendant must establish that his counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed. . . by the Sixth Amendment." Strickland, 466 U.S. at 687. In fact, there is a "strong presumption" that defense counsel's conduct fell within the broad spectrum of reasonable professional assistance, and a defendant bears the burden of proving "that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (citing Strickland, 466 U.S. at 688-89).

To meet the second prong of the Strickland test, the petitioner must show that "[t]here is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see also Ramos v. United States, No. 97 Civ. 2572, 1998 WL 230935, at *3 (S.D.N.Y. May 8, 1998). Where a defendant challenges a guilty plea on the basis of alleged ineffective assistance of counsel, the defendant must show that, "there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." United States v. Couto, 311 F.3d 179, 187 (2d Cir. 2002) (citing United States v. Hernandez, 242 F.3d 110, 112 (2d Cir.2001) (per curiam)) (alteration in original and citation omitted); see also Hill v. Lockhart, 474 U.S. 52, 59 (1985). In the context of sentencing, the petitioner must show that but for counsel's ineffectiveness, there is a reasonable probability that the sentence imposed would have been different. See United States v. Workman, 110 F.3d 915, 920 (2d Cir. 1997).

In his original petition, the petitioner alleges that he was not advised of the immigration consequences of his plea, and in his motion for coram nobis relief, the petitioner claims that his attorney misrepresented the possible deportation consequences of his plea. The Court of Appeals has held that "an affirmative misrepresentation by counsel as to the deportation consequences of a guilty plea is today objectively unreasonable," but has not determined "whether the standards of attorney competence have evolved to the point that a failure to inform a defendant of the deportation consequences of a plea would by itself now be objectively unreasonable." Couto, 311 F.3d at 188; see also Cisse, 330 F. Supp. 2d at 342-43; Castillo-Acevedo v. INS, No. 02 Civ. 9623, 2003 WL 22416122, at *4-*5 (S.D.N.Y. Oct. 22, 2003).

The records submitted refute the allegation that Mr. Weinstein, the petitioner's trial counsel, affirmatively misrepresented the immigration consequences of the petitioner's guilty plea. In support of his claim, the petitioner does not submit any evidence other than his unsworn assertion that Mr. Weinstein stated that the petitioner "could hardly be deported from this country for committing fraud against a German Corporation." (Def.'s motion dated Dec. 16, 2005 at 9.) However, this allegation is refuted by the evidence in the record.

In connection with sentencing, defense counsel submitted a sentencing memorandum a few months after the defendant entered his guilty plea, in which defense counsel sought a downward departure based on extraordinary collateral consequences presented by deportation. In this memorandum, Mr. Weinstein stated that "it is almost certain that [the petitioner] will be deported to Germany." (Def. letter dated Aug. 21, 2002 at 8, 12.) At sentencing, both Mr. Weinstein and the petitioner stated that the petitioner was likely to be deported. (Sent. Tr. 4, 7, May ...

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