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United States of America v. Dennis Forbes

March 23, 2011

UNITED STATES OF AMERICA
v.
DENNIS FORBES, DEFENDANT



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

Now before the Court is Dennis Forbes' ("Defendant" or "Forbes") pro se application to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the application is denied.

BACKGROUND

The facts of this case were accurately set forth in the Government's briefs, and in other documents in the record, as follows:

On September 16, 1999, . . . Forbes was charged in an Indictment with violations of Title 21, United States Code, Section 846 [conspiracy to distribute and possess with intent to distribute marijuana and 50 grams or more of cocaine base - Count One], and Title 18, United States Code, Section 924(c) [possession of a firearm in connection with a drug trafficking crime -Count Two]. On March 23, 2000, a Second Superseding Indictment was returned in that case which, with respect to Forbes, charged the same violations. Forbes was also charged in that Indictment . . . with a violation of Title 21, United States Code, Section 861 [use of a minor to commit a drug trafficking crime - Count Three].

On November 6, 2000, the trial of Forbes and co-defendant Kevin Pierre on the Second Superseding Indictment . . . began before this Court and a jury. The trial lasted until November 17, 2000, when the jury returned a verdict of guilty against Forbes on Counts One and Three and against Pierre on Counts One and Four. The jury was unable to reach a verdict on Count Two against Forbes. Petitioner was represented through his trial by Michael P. Schiano, Esquire [("Schiano")]. On June 25, 2001, this Court received and granted attorney Schiano's motion to be relieved as counsel for Forbes.

On January 15, 2002, now represented by M. Kirk Okay, Esquire [("Okay")], Forbes was sentenced . . . to concurrent terms of life imprisonment on Counts One and Three, a total fine in the amount of $2,000 ($1,000 on Count One and $1,000 on Count Three) and a total special assessment in the amount of $200. After sentence was imposed on Forbes, this Court granted the government's motion to dismiss Count Two[.]

Forbes appealed from his judgment of conviction[.] The Second Circuit affirmed the conviction on January 29, 2004, in an opinion, published at 356 F.3d 478, and an unpublished Summary Order[.] Forbes filed a petition in the Supreme Court for a writ of certiorari, which was granted on January 24, 2005. Forbes v. United States, 543 U.S. 1100 (2005). The judgment of the Second Circuit was vacated by the Supreme Court and the case remanded to the Second Circuit for further consideration in light of the decision in United States v. Booker, 543 U.S. 220 (2005). Following the Supreme Court's decision, the Second Circuit issued its mandate on November 10, 2005, remanding the case to this Court for further proceedings in conformity with United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), and making the disposition in the opinion and order issued on January 29, 2004, fully effective except to the extent that it was inconsistent with the Crosby remand being ordered.

This Court, after obtaining the views of counsel and considering all of the sentencing factors listed at 18 U.S.C. § 3553(a), declined to order resentencing as to petitioner in a decision and order dated April 12, 2006. Forbes appealed from this decision[.] The Court of Appeals again affirmed the conviction on November 1, 2007. United States v. Forbes, 253 Fed.Appx. 50 (2d Cir. 2007).

On March 18, 2008, Forbes filed a motion in this Court for retroactive application of the Sentencing Guidelines to his crack cocaine offense . . . pursuant to Title 18, United States Code, Section 3582(c)(2). This motion was denied by this Court on July 11, 2008. [Forbes appealed, and on August 10, 2010, the Second Circuit affirmed. See, U.S. v. Forbes, No. 09-1011-cr, 389 Fed.Appx. 57, 2010 W L 3125217 (2d Cir. Aug. 10, 2010)].

On November 13, 2008, Forbes filed this motion pursuant to 28 U.S.C. § 2255 seeking to have this Court vacate, set aside or correct the sentence imposed in [this case.] The Motion attacks his conviction on six grounds. The first three grounds raise allegations of ineffectiveness of counsel relating to pre-trial proceedings and the trial. The last three grounds raise allegations of ineffectiveness of counsel at sentencing and on direct appeal.

Government's Response [#197] at 1-6 (citations to exhibits omitted). Specifically, Defendant contends the following: 1) Schiano was ineffective for failing to properly advise Defendant whether to plead guilty; 2) Schiano was ineffective for failing to seek severance from his co-defendant Pierre; 3) Schiano was ineffective because he did not interview or call as a witness Damon Shallow ("Shallow"), who allegedly would have testified at trial that drugs and a gun found at 82 Eddy Street in Rochester were not connected to Defendant; 4) Schiano was ineffective at sentencing, and Okay was ineffective on appeal, for failing to argue that the Government had not proven that the cocaine involved was crack cocaine base; 5) Schiano and Okay were ineffective for failing to challenge the Court's calculations under the advisory sentencing guidelines based on facts that were not found by the jury at trial beyond reasonable doubt; and 6) Schiano and Okay were ineffective for failing to challenge sentencing enhancements that constituted "double counting."

DISCUSSION

Section 2255 provides, in relevant part, as follows: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. 28 U.S.C. § 2255. The Court may dismiss a section 2255 petition without conducting a hearing if the petition and the record "conclusively show" that the defendant is not entitled to relief. 28 U.S.C. § 2255. In other cases, "[a] district court has a wide variety of tools available to it in developing the record during habeas proceedings." Pham v. United States, 317 F.3d 178,180 (2d Cir. 2003). Specifically, [i]t is within the district court's discretion to determine whether a hearing is warranted. Among the wealth of materials available to the district court at its direction are the trial record, letters, documents, exhibits, affidavits and ...


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