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United States v. Rose

August 3, 2009


The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge


Petitioner Gregory Rose filed the instant Petition claiming that he received ineffective assistance of counsel: (1) in connection with plea negotiations; (2) at trial; (3) at sentencing; and (4) on appeal. For the following reasons, the Petition is dismissed.


Petitioner was arrested in connection with a series of bank robberies. Counsel was appointed for Petitioner. Petitioner was indicted on one count of Conspiracy to commit bank robberies and firearms crimes in violation of 18 U.S.C. § 371; four counts of bank robbery in violation of 18 U.S.C. § 2113(a); and four counts of the use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). A second superseding indictment was filed charging Petitioner with four additional § 924(c) counts. The new counts charged Petitioner under the theory that he possessed (as opposed to used and/or carried) a firearm in furtherance of a crime of violence. Following a jury trial, Petitioner was convicted on all counts. The Court dismissed Counts 4, 7, 10, and 13 (the possession of a firearm counts) on the ground that they were multiplicitous with Counts 3, 6, 9 and 12 (the use and carrying of a firearm counts). Petitioner was sentenced to 97 months imprisonment on the conspiracy and bank robbery counts (Counts 1, 2, 5, 8, and 11). Petitioner was sentenced to 7 years on the initial § 924(c) count (Count 3) and consecutive sentences of 25 years each on the other § 924(c) counts, for a total of 82 years on the § 924(c) counts. The total sentence was 1,081 months. Petitioner appealed his conviction, which was affirmed on appeal. Petitioner now brings the instant petition claiming he was denied the effective assistance of counsel.


This Court may not vacate a sentence of a prisoner in federal custody unless it "was imposed in violation of the Constitution or laws of the United States, or . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). "The Sixth Amendment right to effective counsel attaches at all 'critical stage[s]' of the case following the 'formal initiation of adversary judicial proceedings.'" United States v. Pitcher, 559 F.3d 120, 123 (2d Cir. 2009) (quoting Moran v. Burbine, 475 U.S. 412, 429, 432, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)). "'It is well settled that a defendant's Sixth Amendment right to counsel extends to plea negotiations.'" Pitcher, 559 F.3d at 123 (quoting Davis v. Greiner, 428 F.3d 81, 87 (2d Cir. 2005)). "To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate that: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Pitcher 559 F.3d at 123 (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). "'The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error.'" Pitcher, 559 F.3d at 123 (quoting Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)).


Petitioner claims that he received the ineffective assistance of counsel at four stages of the underlying proceedings. The Court will address each of the claims seriatim.

a. Plea Negotiations

Petitioner contends that his trial counsel was ineffective because he failed "to provide proper advice as to whether or not to accept the Government's plea offer." Pet. at p. 15. Petitioner argues that had he accepted the offer to plead guilty to some of the counts in the indictment, he would have had a sentence of approximately 420 months. According to Petitioner, he had several discussions with his counsel with regards to this offer. During those discussions, the issue of whether to accept the offer, or wait until a better offer was presented, was discussed. The Petitioner, during those discussions, was lead to believe that if he waited until further in the process, that he would receive a better offer. Counsel further informed the Petitioner that even if they went to trial, all but one of the 924c counts would need to be dismissed as duplicitive [sic]; therefore, it made no sense to take the plea offer.

Pet. at 17-18. Petitioner concludes that "counsel's failure to provide correct and competent advice as to whether the offer from the prosecution would become more advantageous was conduct falling below an objective standard of reasonableness." Id. at 19.

The Court rejects Petitioner's claim that he was denied the effective assistance of counsel concerning plea negotiations. As Petitioner admits, he had "several discussions with his counsel" concerning whether to accept the government's offer. Indeed, Petitioner and his counsel took additional time (approximately 30 minutes) on January 5, 2005 to review the "final version of the plea agreement" in preparation for proceedings before the Court. See Gov't Ex. C. In the proceedings before the Court, at which Petitioner was present, trial counsel stated that "the government has presented a plea agreement . . . [that] would require a plea of guilty to the first count, that being conspiracy. It would also require pleas of guilty to three counts of bank robbery, that being counts two, five, and eight of the second superceding indictment, and also would require pleas of guilty to two counts of 924(c), specifically that being count six of the second superseding indictment and count nine." Gov't Ex. C at p. 5. Trial counsel further stated that "what is proposed here today would indicate to the Court that the government's position would be that Mr. Rose be sentenced to 420 months. . . ." Id. at p. 6. Counsel stated that he "had extensive discussions with [Petitioner] and his family regarding his option at this point. I've made certain recommendations. It's my understanding at this time that Mr. Rose is choosing to reject that plea agreement and go forward from here." Id. The Court expressly stated on the record that "[m]y understanding is that the government's offer that's contained in this plea agreement that we've just gone over today and counsel's gone over with his client, that this offer expires as of today?" Id. at p. 8. The Assistant United States Attorney ("AUSA") responded "[t]hat's right, your Honor." Id. The following colloquy then transpired:

The Court: All right. Just plan on ...

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