The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.
Petitioner George Martinez seeks to vacate his sentence pursuant to 28 U.S.C. § 2255 based on the alleged ineffectiveness of his trial counsel. In the alternative, he seeks the restoration of his right to appeal his criminal conviction based on his trial counsel's unauthorized withdrawal of Petitioner's notice of appeal following sentencing. The Petition is granted in part and denied in part. As set forth below, the court finds that trial counsel was ineffective with regard to the withdrawal of the notice of appeal; therefore Petitioner's right to appeal his conviction is restored. Petitioner's remaining claims are denied without prejudice.
Petitioner George Martinez was indicted on September 18, 2003 in United States v. Martinez, 03-CR-1049 (NGG). Gino Josh Singer was his trial counsel in this criminal matter. On March 18, 2005, Petitioner pled guilty to one count of conspiracy to possess with intent to distribute one or more kilogram of heroin. Id. (Docket Entry # 126). The prosecution initially calculated Petitioner's guideline range as 324 to 405 months. After Petitioner entered into a stipulation with the Government, his offense level was reduced and his guideline range was changed to 210 to 262 months. In the stipulation, Petitioner waived his right to appeal or challenge his sentence under 28 U.S.C. § 2255, so long as his sentence fell within that range. (See Gov't Opp. (Docket Entry # 11) at 3 (referencing stipulation, which is attached to the Government's submission as Ex. C).) On June 20, 2006, the court sentenced Petitioner to 210 months. United States v. Martinez, 03-CR-1049 (NGG) (Docket Entry # 232).
Seven days later, on June 27, 2006, Petitioner filed a hand-written, pro se notice of appeal. Id. (Docket Entry # 231).*fn1 On November 29, 2006, Mr. Singer moved for withdrawal of the appeal. See id. (Docket Entry # 254). As part of the motion to withdraw the appeal, Mr. Singer affirmed that:
I explained to GEORGE MARTINEZ that . . . the stipulation included an unequivocal waiver of appellate rights, given the sentence that was imposed . . . . Thereafter, after GEORGE MARTINEZ was transferred to FCI Allenwood, I wrote to GEORGE MARTINEZ and asked him if it was his desire to withdraw the  appeal. In response, I received a telephone call from Socorro Martinez Rutman, GEORGE MARTINEZ'S sister. Ms. Rutman informs me that GEORGE MARTINEZ has told her that it is his desire to withdraw the appeal. (Gov't Opp. (Docket Entry # 11) at 3 (quoting Singer Affirmation at 3-4).) The Court of Appeals granted the motion to withdraw Petitioner's notice of appeal on December 22, 2006. See United States v. Martinez, 03-CR-1049 (NGG) (Docket Entry # 254).
On June 14, 2007, Petitioner, acting pro se, filed the Petition in the
above-captioned case, pursuant to 28 U.S.C. § 2255. (Docket Entry #
1.) Petitioner alleged that his trial counsel had been
unconstitutionally ineffective in four respects: (1) by stipulating to
a guideline enhancement based on a "drug quantity [of] 30 kilograms or
more while the government only had less than 15 kilograms in their
case in chief," (2) by "goad[ing]" Petitioner to plead guilty,
although counsel knew "that he (counsel) was going to stipulate to a
drug quantity which would net a pretty stiff
penalty compared to the penalty for the quantity the government had in
their possession (less than 14 kilograms)," (3) by "coerci[ng]"
Petitioner into taking a guilty plea without telling him that "the
quantity he would be responsible for would be 30 or more kilograms of
heroin," and (4) by "stipulating that [Petitioner] would waive his
right to appeal and to file a 2255 motion." (Id. at 5-6.) Petitioner
subsequently amended his Petition to include a fifth allegation: that
Mr. Singer provided ineffective assistance with regard to his notice
of appeal. (Mot. to Amend (Docket Entry # 4) at 1; see also Pet. Mem.
of Law (Docket Entry # 5); Martinez Affidavit (Docket Entry # 6) at 2
(stating that he asked counsel to file an appeal on his behalf, and
counsel refused); Pet. Supp. Br. (Docket Entry # 8).) *fn2
Thereafter, on July 31, 2008, the Government filed its
opposition to this Petition. (Gov't Opp. (Docket Entry # 11).)
The court ordered Martinez to file an affidavit by his sister, Socorro Rutman, presenting any additional facts related to the withdrawal of his appeal (Docket Entry # 13); and Petitioner did so on September 17, 2008 (Rutman Aff. (Docket Entry # 14-2)). Ms. Rutman swore that Petitioner spoke with her about his appeal and his attempts to contact Mr. Singer, and that Petitioner told her "to allow the attorney to contact him about whether or not to continue with the appeal because there were some issues that needed clarification." (Id. at 1.) Ms. Rutman also acknowledged that she had misunderstood her brother's instructions. (Id.) The court also ordered Mr. Singer to provide it with any information relevant to whether Ms. Rutman had actual or apparent authority to act on Petitioner's behalf. (Docket Entry # 22.) On September 9, 2009, the Government filed an affidavit by Mr. Singer, dated August 18, 2009. (Singer Affidavit (Docket Entry # 27-2) (attached).) In it, Mr. Singer stated that he withdrew the appeal at Ms. Rutman's direction. He stated that Ms. Rutman's "actual or apparent authority to act on MARTINEZ's behalf was demonstrated in various ways": Mr. Singer prepared documents giving Ms. Rutman power of attorney over Petitioner's affairs, Ms. Rutman managed Petitioner's businesses, Ms. Rutman recovered property from the Government on Petitioner's behalf, and Ms. Rutman acted on Petitioner's behalf in connection with the sale of several houses. (Id. at 1-4.)
The court determined that an evidentiary hearing was necessary. On December 9, 2010, the court issued a Memorandum and Order, stating that it would hold a hearing "to determine (1) whether trial counsel's decision to withdraw the notice of appeal based on communications with Petitioners' sister-and without further consultation with Petitioner-constituted constitutionally deficient representation, and, if so, (2) whether 'but for counsel's deficient performance, [Petitioner] would have appealed.'" (Docket Entry # 40 (citing Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000); Campusano v. United States, 442 F.3d 770, 771 (2d Cir. 2006).) The court appointed Kelley Sharkey to represent Petitioner on January 14, 2011. (Docket Entry ## 41, 42.)
Unfortunately, in October 2010-after filing his affidavit in this case but before the hearing-Mr. Singer suffered a massive stroke. As a result of the stroke, he has suffered significant speech and memory losses, which both parties agree make him unavailable to testify. (See Docket Entry of October 20, 2011; Oct. 20 Tr. at 44-45.) As such, on February 16, 2011, the Government filed a Motion in Limine, "requesting that the Court allow Mr. Singer's Affidavit and Affirmation to substitute for the former attorney's appearance at [the evidentiary] hearing." (Gov't Mot. in Limine (Docket Entry # 43).) Petitioner opposes the Government's Motion in Limine. (Docket Entry # 44.)
The court conducted the evidentiary hearing on October 20 and 24, 2011. At the hearing Petitioner's sister, Socorro Rutman, testified. Ms. Rutman stated that after the sentencing, she attempted to contact Mr. Singer 7 to 10 times on her brother's behalf because Petitioner had been unable to reach Mr. Singer (Oct. 20 Tr. at 6); when Mr. Singer eventually responded to her calls, he said that he was unavailable to see Petitioner and encouraged Ms. Rutman to relay messages between them (id. at 6-7); and-when she relayed this information to Petitioner-Petitioner became frustrated and told her to "forget about it" before hanging up the telephone (id. at 9).
Ms. Rutman stated that she relayed this message to Mr. Singer and that she wrongly interpreted her brother's statement to mean that he wanted to "forget about" the appeal. (Id. at 9-10.) The Government questioned Ms. Rutman about a durable power of attorney, which both she and Petitioner signed in 2004; and Ms. Rutman testified that she understood the power of attorney to give her authority to make decisions regarding her brother's bank accounts and property (which she and Petitioner owned jointly), not personal legal matters. (Id. 10-17; see Power of Attorney (Gov't Ex. 2) (attached).) Ms. Rutman also testified that she did not manage her brother's business affairs. (Oct. 20 Tr. at 17 (stating that she had not run Petitioner's gas station or parking lot).)*fn3
Petitioner also testified at the hearing on his own behalf. He stated that he never authorized Mr. Singer to withdraw his notice of appeal, he never authorized his sister to tell Mr. Singer to withdraw his notice of appeal, and-despite 5 to 6 attempts to do so-he was not able to reach Mr. Singer by telephone.*fn4 (Id at 27-30.) Petitioner stated that on several occasions, he was told to call Mr. Singer "at a certain time," but even when Petitioner called at these times, Mr. Singer "was never available." (Id. at 28.) Petitioner also testified that when he told his sister to "forget it," he was not referring to the appeal. (Id. at 29-30.) His intended meaning was that Ms. Rutman "forget about" continuing to attempt to contact Mr. Singer on his behalf. (Id. at 29-30 (further explaining that he believed that Mr. Singer had a duty to come contact him by telephone or come see him in person before making decisions about Petitioner's case.) Additionally, Petitioner testified that ...