Appeal from an order of the United States District Court for the Western District of New York (Siragusa, J.), entered on May 23, 2007, dismissing petitioner-appellant's application to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
Before: PARKER and WESLEY, Circuit Judges, TSOUCALAS, Judge.*fn2
Petitioner-appellant Dennis Forbes ("Forbes") appeals from an order of the United States District Court for the Western District of New York (Siragusa, J.), dismissing his petition to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 on the basis of ineffective assistance of appellate counsel on direct appeal. For the reasons stated below, the district court's order of dismissal is hereby AFFIRMED.
Forbes was indicted on September 9, 1999 on one count of being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). United States v. Forbes, No. 99-CR-6084(CJS) (W.D.N.Y.). Forbes was also indicted in a separate instrument for possession of a firearm in furtherance of a crime of drug trafficking in violation of 18 U.S.C. § 924(c), as well as two other drug-related counts, based on the same set of events that led to the § 922(g)(1) charge. United States v. Forbes, No. 99-CR-6089(CJS) (W.D.N.Y.).
After a jury trial, Forbes was convicted on all counts in the second indictment but the § 924(c) count, on which the jury could not reach a verdict. The initial § 922(g)(1) count, however, was not tried with the offenses alleged in the second indictment. On January 24, 2001, Forbes pleaded guilty to the § 922(g)(1) count, and in exchange the government agreed not to pursue the 8 U.S.C. § 924(c) count left open by the jury. On accepting Forbes's guilty plea, the district court tolled the requirements of the Speedy Trial Act, 18 U.S.C. § 3161, in relation to the § 924(c) count because Forbes specifically indicated that the reason for his plea on the § 922(g)(1) count was the government's promise to dismiss the § 924(c) "trafficking" charge.
Later in 2001, but prior to sentencing, Forbes wrote a letter to the district court indicating that he wanted to withdraw his guilty plea because it "was illegal due to the fact that [he] was not fingerprinted, photographed, booked, charged, or arraigned in 72 hours of [his] arrest which [was] a violation of [his] due process rights." Forbes's retained attorney, Michael P. Schiano, stated on the record that he had advised Forbes that in attempting to withdraw his guilty plea he would likely lose the two-point reduction in his sentencing offense level on the basis of acceptance of responsibility, as well as risk a two-point enhancement for perjury and obstruction of justice. Forbes insisted on pursuing the plea withdrawal and indicated to the court that he would discharge Schiano as his attorney. Schiano informed the district court that, for his part, he intended to withdraw as Forbes's counsel should Forbes pursue the plea withdrawal, because "one of [Forbes's] basis [sic] in wanting to withdraw his plea [was] his position that [Schiano] intimidated and forced him . . . into taking the plea."
After extensive attempts on the record by defense counsel, the government, and the district court to explain to Forbes the status of the charges against him and the potential consequences of attempting to withdraw his plea at this stage of the proceeding, the district court stated:
Mr. Forbes, here's what I'm going to do. If you tell me this is what you want to do, I'm going to ask Mr. Schiano to make a formal motion to withdraw. I'll make it returnable for a day.
I'll examine you now. If I find you're entitled to assigned counsel, I'll have another counsel here, and I'll give you a chance to consult with that counsel to determine what you want to do; but I'm not going to keep assigning you lawyers.
Forbes indicated that he understood the district court's statement and insisted that he still wanted to withdraw his guilty plea. The district court then ...