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Michael Schlussel v. United States of America

October 18, 2012


The opinion of the court was delivered by: John F. Keenan, United States District Judge:


Before the Court is Petitioner Michael Schlussel's ("Schlussel" or "Petitioner") pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("Section 2255"). For the following reasons, Petitioner's motion is denied.


On March 25, 2008, Petitioner was charged with three counts, two of which went to trial before a jury: (1) conspiracy to commit mail fraud, in violation of 18 U.S.C. § 1349, and (2) mail fraud, in violation of 18 U.S.C. § 1341. These charges arose out of Petitioner's scheme to defraud hundreds of companies by mailing them what appeared to be invoices for fluorescent light bulbs, and depositing the victims' "payments" into a bank account that he controlled. On March 10, 2009, Petitioner was convicted by a jury of both counts. The Court sentenced him to 108 months' imprisonment - well below the range of 210 to 262 months set forth in the United States Sentencing Guidelines - on July 30, 2009. Petitioner then appealed to the Second Circuit, which upheld his convictions and his sentence. See United States v. Schlussel, 383 F. App'x 87 (2d Cir. 2010).

II.Section 2255 Standard of Review

Section 2255 allows a prisoner held in federal custody to collaterally challenge his federal conviction or sentence. 28 U.S.C. § 2255(a). To obtain relief under this provision, a petitioner must establish "a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a 'fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Because Schlussel is proceeding pro se, his submissions will be "liberally construed in his favor," Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)), and will be read "to raise the strongest arguments that they suggest," Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (citing Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)).


Petitioner now moves for relief under Section 2255 on the basis of due process violations, as well as several different purported manifestations of ineffective assistance of counsel. Each contention is discussed in turn below.

A. Petitioner's Due Process Claims

A court must conduct a hearing to determine a defendant's competency to stand trial "if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." 18 U.S.C. § 4241(a). The Second Circuit has noted that "the failure to conduct a full competency hearing is not a ground for reversal when the defendant appeared to be competent during trial, and the district court's view of the defendant's competency based on its observations at trial is entitled to deference." United States v. Kirsh, 54 F.3d 1062, 1070--71 (2d Cir. 1995) (citing United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986)). Moreover, "failure by trial counsel to indicate that the defendant had any difficulty in assisting in preparation or in comprehending the nature of the proceedings 'provides substantial evidence of the defendant's competence.'" Id.

Petitioner now asserts that he was incompetent to stand trial, and argues that he was denied due process of law because the Court failed to address this alleged incompetence at trial and sentencing. He claims that his behavior should have caused the Court to order a competency hearing. Petitioner notes that the Court remarked during his sentencing on his boundless capacity for lying, and that counsel chalked this up to "psychological difficulties." Pet. at 12 (quoting Sentencing Tr. at 10). To be sure, the record in this case is replete with evidence of Petitioner's health problems, both physical and mental. See, e.g., Letter and Report by Yvette Schlussel, Ph.D. (July 23, 2009) (recounting Petitioner's family and medical history); Letter from Joseph B. Bernstein, M.D. (June 30, 2007) (summarizing Petitioner's physical condition).

Nevertheless, the Court finds Petitioner's position to be meritless. As he notes in his Reply, a court looks to several factors in determining whether a competency hearing is necessary, including the defendant's conduct, attorney representations, and prior medical opinions on the defendant's competence for trial. Petitioner's Reply Brief at 6 (citing Drope v. Missouri, 420 U.S. 162, 180 (1975)). At the outset, it bears mentioning that Petitioner reported no mental health problems to Pretrial Services. See Pretrial Servs. Rep. at 2. More important, this Court presided over the trial and had ample opportunity to observe Petitioner's behavior - which, though hardly model, certainly did not rise to the level of incompetence for the purposes of standing trial. See Sentencing Tr. at 28 (The Court noting, "There is no suggestion he wasn't competent."); cf. Kirsh, 54 F.3d at 1070--71 (affording deference to observations of trial court). Petitioner's counsel never saw fit to ask the Court for a hearing on Petitioner's competence, did not contest the Court's statement at sentencing that Petitioner was competent, and has submitted an affidavit reaffirming his opinion that Petitioner was competent throughout the course of his proceedings. See Aff. of Michael Hurwitz, Esq., at 2. Finally, three years before Petitioner's trial in the instant matter, he was evaluated for competence in another proceeding and was adjudged competent to stand trial in that proceeding. See Forensic Psychological Evaluation of Sanford L. Drob, Ph.D., at 8--9 ("Dr. Serban found Mr. Schlussel competent to proceed with his case."). The Court now rejects Petitioner's claims to the contrary.

B.Petitioner's Ineffective Assistance of Counsel Claims

Petitioner alleges that the performance of his attorney, Michael Hurwitz ("Hurwitz"), was constitutionally deficient and thus ineffective as a matter of law because: (1) counsel failed "to adequately discuss . . . the benefits of accepting the plea offer"; (2) counsel ineffectively argued with respect to a sentencing enhancement; and (3) counsel ...

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