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Cesar Munoz v. United States of America

February 29, 2012


The opinion of the court was delivered by: Glasser, United States District Judge:

Memorandum and Order

On May 17, 2007, petitioner Cesar Munoz ("petitioner" or "Munoz") moved pursuant to 28 U.S.C. § 2255 ("Section 2255") for an order, vacating his conviction and sentence in the underlying criminal action, United States v. Munoz, 04 Crim. 473 (ILG). This Court dismissed all but one of Munoz's claims in an order dated July 28, 2008, familiarity with which is assumed. See Munoz v. United States, No. 07 Civ. 2080 (ILG), 2008 WL 2942861 (E.D.N.Y. July 28, 2008) ("July 28 Order"). The sole remaining issue before the Court is petitioner's claim that trial counsel provided ineffective assistance in failing to consider or properly advise him regarding a guilty plea, refusing to discuss the United States Sentencing Guidelines, and misrepresenting the sentencing range Munoz faced if convicted. The Court held an evidentiary hearing on this matter November 5, 2008 and November 7, 2008 ("the November 2008 hearing" or "the hearing"). For the following reasons, Munoz's petition is DENIED.


Munoz asserts that during the pre-trial phase of his criminal prosecution, his counsel, Michael Pizzi ("Pizzi"): (1) refused to consider a guilty plea; (2) downplayed the strength of the government's case and effectively guaranteed an acquittal; (3) failed to review the United States Sentencing Guidelines with Munoz, and (4) informed Munoz that he faced a maximum sentence of only two to four years when his actual exposure under the Guidelines was 97 to 121 months.

I.Legal Standard

To establish a claim of ineffective assistance of counsel, a convicted defendant must show: (1) "that counsel's representation fell below an objective standard of reasonableness;" and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687--88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). It is the petitioner's burden to demonstrate that both prongs of Strickland have been satisfied. Id. at 688. In addition, there is a strong presumption that an attorney's performance was reasonable, and courts are highly deferential to the decisions made by an attorney during representation. See Strickland, 466 U.S. at 689. A convicted defendant making a claim of ineffective assistance must overcome this presumption by identifying the attorney's specific acts or omissions that fell below an objective standard of reasonableness. Id. at 687.

"The first prong-constitutional deficiency-is necessarily linked to the practice and expectations of the legal community: 'The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Padilla v. Kentucky, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284 (2010) (quoting Strickland, 466 U.S. at 694). Courts must be "highly deferential" in scrutinizing counsel's performance, and "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Moreover, "'[t]he reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances.'" Raysor v. United States, 647 F.3d 491, 495 (2d Cir. 2011) (quoting Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986)). Concerning the second prong-the probability that, but for counsel's unprofessional errors, the result would have been different-the Second Circuit generally "requires some objective evidence other than defendant's assertions to establish prejudice." Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003) (citing United States v. Gordon, 156 F.3d 376, 380--81 (2d Cir. 1998) (per curiam)).

If Munoz's allegations are credited, Pizzi's representation undoubtedly violated "prevailing professional norms." As this Court noted previously:

There is little question that Mr. Munoz would prevail on his ineffective assistance claim if he is ultimately able to prove that Mr. Pizzi refused to discuss the Sentencing Guidelines range that Munoz would likely face if convicted at trial, substantially understated the likely sentence that Mr. Munoz would face if convicted, refused to assist Mr. Munoz in entering a guilty plea despite his wish to do so, or failed to adequately advise Mr. Munoz of the risks of going to trial.

Munoz, 2008 WL 2942861, at *10 (citations omitted). This is because "'[t]he decision whether to plead guilty or contest a criminal charge is ordinarily the most important single decision in a criminal case.'" United States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998) (quoting Boria v. Keane, 99 F.3d 492, 496-97 (2d Cir. 1996)).

When advising a client regarding a guilty plea, an attorney must balance two competing obligations. "On the one hand, defense counsel 'must give the client the benefit of counsel's professional advice on this crucial decision' of whether to plead guilty." Purdy v. United States, 208 F.3d 41, 44-45 (2d Cir. 2000) (quoting Boria, 99 F.3d at 497) ("Boria recognizes a lawyer's general duty to advise a defendant concerning acceptance of a plea bargain."); Model Rules of Professional Conduct Rule 1.4(b) (1995) ("A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."). This advice must include the terms of any plea offer, Cullen v. United States, 194 F.3d 401, 404 (2d Cir. 1999), and should include the strengths and weaknesses of the case against the defendant, Purdy, 208 F.3d at 45, and the comparative sentencing exposure between a guilty plea and proceeding to trial. Gordon, 156 F.3d at 380 ("'Knowledge of the comparative sentence exposure between standing trial and accepting a plea offer will often be crucial to the decision whether to plead guilty.'" (quoting United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992))); Carrion v. Smith, 644 F. Supp. 2d 452, 467 (S.D.N.Y. 2009) ("When a plea offer is made and there is a reasonable probability that the defendant is uncertain about the sentencing exposure he faces . . . a lawyer unquestionably has a duty to inform his client of the sentencing exposure he faces if he accepts the plea offer and if he does not.").

On the other hand, counsel must refrain from overbearing a client's will:

[T]he ultimate decision whether to plead guilty must be made by the defendant. See Model Rules of Professional Conduct Rule 1.2(a) (1995) ("In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered. . . ."). And a lawyer must take care not to coerce a client into either accepting or rejecting a plea offer. See Jones [v. Murray], 947 F.2d [1106,] 1111 ("[V]arious [ABA] Standards place[ ] upon counsel an affirmative duty to avoid exerting 'undue influence on the accused's decision' and to 'ensure that the decision . . . is ultimately made by the defendant.'" (quoting Standards for Criminal Justice 4-5.1(b) & 14-3.2(b))).

Purdy, 208 F. 3d at 45. Thus, in advising a client, counsel must "steer[ ] a course between the Scylla of inadequate advice and the Charbydis of coercing a plea." Id. In light of these competing obligations, "[c]counsel's conclusion as to how best to advise a client in order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea enjoys a wide range of reasonableness because '[r]epresentation is an art,' and '[t]here ...

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