Appeal from a denial by the United States District Court for the Eastern District of New York (Joanna Seybert, Judge) of a 28 U.S.C. § 2255 motion to vacate conviction and sentence due to ineffective assistance of counsel. We hold that denial was appropriate given that appellant failed to produce or identify evidence of actual prejudice. We therefore affirm.
The opinion of the court was delivered by: Winter, Circuit Judge
Argued: November 24, 2008
Before: WINTER, WALKER, and CALABRESI, Circuit Judges.
Frederick Puglisi appeals from Judge Seybert's order denying his 28 U.S.C. § 2255 motion to vacate his conviction and sentence due to ineffective assistance of counsel. The basis for the motion was a claim that appellant's trial counsel misinformed him as to whether the district court could consider conduct for which he had not been convicted in determining his sentence. It was argued in supporting papers that appellant relied on such misinformation in rejecting a plea agreement offered by the government. The district court concluded that appellant failed to establish that he was actually prejudiced by the alleged misinformation and denied the motion without holding an evidentiary hearing. On appeal, appellant contends that the district court erred in denying his motion without first holding a hearing.
Appellant was tried with co-defendants Silverio Romano and Anthony Basile. Appellant had been charged with a myriad of crimes, many quite serious: racketeering, 18 U.S.C. § 1962(c), racketeering conspiracy, id. § 1962(d), murder and conspiracy to kidnap and murder in order to increase or maintain position in the racketeering enterprise, id. § 1959(a)(1) & (5), conspiracy to possess with intent to distribute cocaine and marijuana, 21 U.S.C. §§ 846, 841(a)(1), possession with intent to distribute marijuana, id. § 841(a)(1), use of a communication device to facilitate narcotics offenses, id. § 843(b), use and possession of firearms in relation to crimes of violence and drug trafficking crimes, 18 U.S.C. § 924(c)(1), and receiving or possessing defaced firearms, id. § 922(k). On February 14, 1995, after a four and one-half month trial and seventeen days of deliberation, the jury convicted appellant of racketeering, racketeering conspiracy, conspiracy to possess with intent to distribute marijuana, possession with intent to distribute marijuana, and the use of a communication device to facilitate a narcotics transaction. The jury could not agree on a verdict as to the remaining charges.
After several adjournments to allow present counsel, who was retained after the trial but before sentencing, to supplement trial counsel's sentencing submissions with her own, the court held a series of sentence-related hearings in March and April of 1997. At the beginning of the final sentencing hearing on April 25, 1997, appellant was represented both by trial counsel and present counsel. At that hearing, present counsel pressed a claim, obliquely raised for the first time in an out-of-time submission two days prior, that appellant was entitled to a sentence reduction for acceptance of responsibility. Her argument was that trial counsel had misinformed appellant as to the court's power to consider at sentencing conduct that was not the subject of conviction. That misinformation, the argument went, caused appellant to fail to plead guilty, thereby losing a reduction in sentence for acceptance of responsibility. See U.S. Sentencing Guidelines ("U.S.S.G.") § 3E1.1 (1991). The government immediately countered that it could disprove the factual basis of the argument -- that it was an "outrageous claim" and "utterly and completely false." Puglisi Sentencing Trans., Apr. 25, 1997 ("Trans."), at 42, 45.
The court inquired of trial counsel as to their position on this issue, but they demurred on the ground of attorney-client privilege. Present counsel then invoked the privilege, thereby blocking the court's inquiry. Trial counsel moved to withdraw as counsel for appellant.
The court offered appellant's present counsel an opportunity to present evidence on the issue. Counsel declined. Rather, she responded that before pressing appellant's claim at an evidentiary hearing, she needed to speak with possible witnesses who were alleged to have overheard statements by trial counsel after the verdict. After chiding present counsel for raising a new point well after the scheduled deadline and without adequate preparation, the judge then granted trial counsel's motion to withdraw and decided to proceed with the scheduled sentencing, leaving the advice-of-trial-counsel issues to later proceedings.
Appellant then addressed the court. He stated that he never wanted to go to trial but that "[t]he circumstances dragged me to trial." Trans. at 76. He said that he "felt that [he] should have cooperated with the government" but that there were "people involved in the case that were killing witnesses." Trans. at 77. He noted that if he had cooperated, his brother and brother-inlaw would lose their established businesses on Staten Island and have to move, thereby "ruin[ing] their lives" and "destroy[ing] their livelihood." Id.
The district court sentenced appellant to life imprisonment. The court based its sentence on a total offense level of 42, which warranted a range from 360 months to life, and imposed the highest term in the range after considering appellant's role in the attempted murders and a murder, charges on which the jury had reached a hung verdict.
Appellant appealed, making several claims, one of which is relevant to the present proceeding: loss of the acceptance of responsibility reduction in sentence because of constitutionally ineffective assistance of trial counsel. See United States v. Silvestri, Nos. 97-1430, 97-1439, 1998 WL 777763, at *3 (2d Cir. Oct. 29, 1998). We affirmed appellant's conviction and sentence ...