The opinion of the court was delivered by: John G. Koeltl, District Judge:
The petitioner, Edward Garafola, appearing pro se, moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The petitioner also seeks leave of court to conduct discovery pursuant to Rule 6 of the Rules Governing 28 U.S.C. § 2255.
The petitioner pleaded guilty, pursuant to a plea agreement (the "Plea Agreement"), to participating in the conduct and affairs of a racketeering enterprise-the Gambino Organized Crime Family of La Cosa Nostra-through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(c). Pursuant to the Plea Agreement the petitioner waived his right to appeal or litigate under 28 U.S.C. §§ 2255 and 2241 a sentence of life imprisonment or less.
The petitioner now challenges his conviction and sentence on three grounds: (1) the alleged ineffective assistance of trial counsel; (2) alleged prosecutorial misconduct; and (3) the alleged abuse of discretion of the district court judge presiding over the petitioner's case for failing to recuse himself sua sponte. In an amendment to his petition, the petitioner also contends that his trial counsel was ineffective for not objecting to an allegedly incorrect Guidelines Sentencing Range and a sentence beyond the statutory maximum.
In June 2002, the petitioner, along with Peter Gotti and Thomas Carbonaro, were charged in a two count Indictment with violating the Racketeer Influenced and Corrupt Organizations Act ("RICO") and conspiracy to do so, in violation of 18 U.S.C. §§ 1962(c) and (d) based on activities allegedly related to the "Gambino Organized Crime Family." The racketeering acts alleged against the petitioner were a murder and murder conspiracy relating to the September 11, 1989, death of Frederick Weiss; conspiracy to commit extortion in the construction industry; and loansharking. On October 5, 2004, the defendant and his co-defendants were charged in an eight count Superseding Indictment which, among other additions, added as racketeering acts a murder and murder conspiracy relating to the August 8, 1990, death of Edward Garofalo and a conspiracy to murder Salvatore Gravano in 1999 and 2000. (See Appendix on Appeal, Gov't Mem. Opp. Ex. B ("A.") 23.) The Gravano murder conspiracy was also charged in a separate count under 18 U.S.C. § 1959(a)(5), and the construction industry extortion conspiracy, previously charged only as a racketeering act, was now also charged as a separate count, under 18 U.S.C. § 1951.
On or around September 9, 2004, the petitioner was indicted in the Eastern District of New York with three co-defendants- Richard Calabro, Junior Campbell, and the petitioner's son, Mario Garafola-for multiple RICO violations. (Pet'r's Mem. ¶ 32; Pre-Sentence Report, Gov't Mem. Opp. Ex. A ("PSR") ¶¶ 99-100.) The petitioner alleges that his son's indictment was a "devastating blow" and he "wanted to do what ever [sic] he could to see [his son] released." (Pet'r's Mem. ¶ 33.) The petitioner alleges that he directed his attorney, Richard Guay, to inform the prosecutors in the Southern District of New York that he would be willing to plead guilty if the "plea would result in consideration for his son." (Pet'r's Mem. ¶ 34.)
On October 21, 2004, less than two weeks before trial commenced against Garafola's co-defendants, Peter Gotti and Thomas Carbonaro, the petitioner, represented by Richard Guay, pleaded guilty before Judge Casey to Count One of the Superseding Indictment. (A. 54-56, 73-77.) The petitioner pleaded guilty to three predicate racketeering acts: the conspiracy to murder Gravano; the construction industry extortion conspiracy; and the conspiracy to murder, and the murder of Edward Garofalo, in or about August 1990. (A. 54-55, 76-77.) The petitioner pleaded guilty pursuant to the Plea Agreement with the Government. The Plea Agreement provided that "[t]he defendant hereby acknowledges that he has accepted this Agreement and decided to plead guilty because he is in fact guilty." (A. 59-60.) In the Plea Agreement, the parties agreed "that neither a downward nor an upward departure or adjustment from the stipulated Sentencing Guidelines Range set forth above, [life imprisonment], is warranted, and that the Stipulated Guidelines Sentence of life imprisonment should be imposed. Accordingly, neither party will seek such a departure or seek any adjustment not set forth herein." (A. 58.) The Plea Agreement also provided that "the Defendant will not file a direct appeal from, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence at or below the Stipulated Guidelines Sentence set forth above (life imprisonment) . . . ." (A. 59.)
At the plea proceeding, the Government, at the Court's direction, summarized the counts to which the petitioner was expected to plead guilty. The Government stated that this included "[t]he murder of Edward Garofalo on August 8, 1990, as charged in racketeering act 2 of Count 1 . . . ." (A. 64.) The Government noted that, because the petitioner would be pleading to the "actual murder of Edward Garofalo, . . . the maximum term of imprisonment for Count 1 [is] life imprisonment." (A. 64.)
The petitioner confirmed that he had received a copy of the Superseding Indictment and had discussed it with his attorney.
(A. 65.) Judge Casey next determined that the petitioner was competent to plead guilty, that the petitioner was satisfied with his counsel's representation, and that the petitioner "underst[ood] what the Government [said he] did[.]" (A. 66-67.). The Court advised the petitioner of the various constitutional rights he would waive by pleading guilty.
Judge Casey then asked whether the petitioner was pleading guilty pursuant to a plea agreement. (A. 69.) The petitioner stated that he was, and that he had reviewed the Plea Agreement with his lawyer. (A. 69.) The petitioner affirmed that he understood he was "waiving [his] right to appeal directly under 28 U.S.C., Section 2255 and 2241, any sentence within the stipulated guideline range" and his attorney had explained those sections to him. (A. 72.) The petitioner confirmed that he was pleading guilty voluntarily and of his own "free will and choice." (A. 73.)
The Government next stated the elements of the charged crimes. (A. 73-75.) After explaining the enterprise requirement for the RICO charge in Count One, the Government turned to the Garofalo murder:
With specific regard to the pattern of racketeering that the defendant today is pleading guilty to, there is racketeering act 2, which is the murder of Edward Garofalo. And on that score the government would have to prove at trial that on or about August 8, 1990, having conspired to kill Edward Garofalo, the defendant Edward Garafola did in fact cause the death of Edward Garofalo and that the defendant did so with specific intent to cause Mr. Garofalo's death.
(A. 74.) The petitioner stated that he heard the elements of the charged crimes and had in fact committed them. (A. 75.)
The petitioner then admitted that "[f]rom about the late 1970s to about April of 2003 . . . I knowingly, unlawfully participated together with others in the conduct of the affairs of a racketeering enterprise as charged in the indictment."
(A. 75-76.) The petitioner stated with respect to the Garofalo murder that "in or about August 1990, in this District and in the Eastern District of New York, I knowingly and unlawfully conspired with others to murder Edward Garofalo. About August 8, 1990 I and others did cause this death . . . ." (A. 76.) The petitioner admitted that he knew his actions were wrong.
(A. 76.) After confirming that neither the prosecutor nor defense counsel knew of any legal reason why the guilty plea should not be accepted, Judge Casey accepted the petitioner's plea. (A. 76-78.)
On September 12, 2005, nearly one year after entering his guilty plea, and after his co-defendants Peter Gotti and Thomas Carbonaro had been convicted of Counts One and Two, the petitioner moved before Judge Casey to withdraw the portions of his guilty plea relating to the Garofalo murder and on November 22, 2005, filed an amended motion also seeking to withdraw his guilty plea to the construction industry extortion to the extent that charge included a sentencing enhancement for the death of Frank Parasole. (A. 79.) The petitioner was represented by Diarmuid White in connection with that motion. In a declaration submitted to the Court, the petitioner claimed that he did not allocute that he intended to cause Garofalo's death. (A. 83.) The petitioner also claimed that, while he had agreed with his co-conspirators to position his car near 85th Street and 15th Avenue-several blocks removed from the scene of the planned shooting so that the shooters could use that car or that the car could be used as a "crash car"-he did not in fact go to the "appointed place" on the night of the murder. (A. 83.) The petitioner claimed that he was "innocent of the charge of murdering Edward Garofalo" and "never admitted to intending to cause his death . . . ." (A. 83.) The petitioner further asserted that, although he allocuted that he "knowingly and unlawfully conspired with others to murder Edward Garofalo," he "did not fully understand the import of those legal words or how they encompassed [his] conduct." (A. 84.) Finally, the petitioner claimed that he had waited nearly a year to make the motion because he feared that such a motion "might cause the Government to retaliate against [his] son, Mario Garafola, who was indicted in the Eastern District of New York . . . ." (A. 84.)
On August 2, 2005, more than a month before the petitioner signed his declaration in support of his motion to withdraw his plea, his son was sentenced to thirty-six months imprisonment on the indictment in the Eastern District of New York. (Criminal Cause for Sentencing, United States v. Garafola, No. 04 Cr. 732 (E.D.N.Y. Aug. 2, 2005), ECF No. 68.) Judge Casey denied Garafola's motion to withdraw his plea on April 13, 2006. United States v. Garafola, No. 02 Cr. 743, 2006 WL 963878, at *5 (S.D.N.Y. Apr. 13, 2006). Judge Casey first rejected Garafola's claim that there was no factual basis for the portion of his guilty plea relating to the Garofalo murder because he did not allocute to having the intent to cause Garofalo's death. Id. at *3. Judge Casey found that the claim was "without merit" because the "allocution, taken together with all the other facts the Court may consider in its analysis, is sufficient to find a factual basis for the plea." Id. (citation omitted). Judge Casey also noted that the petitioner's counsel, Mr. Guay, stated during the plea hearing that he had no objection to the legality of the plea. Id. In light of these facts, Judge Casey could not "imagine how [the petitioner] caused Garofalo's death, but did so 'unintentionally.'" Id. Accordingly, based on all the facts before him, Judge Casey found that "a factual basis for the plea exists." Id.
Turning to Garafola's post hoc claim of factual innocence, Judge Casey rejected the claim. Id. at *3-4. Judge Casey noted that the petitioner had waited nearly a year after his plea to claim innocence, "which casts suspicion on the validity of the claim." Id. at *4. Judge Casey rejected the petitioner's "self-serving" claim that he had delayed out of fear that the Government would retaliate against the petitioner's son, Mario Garafola. Id. In Judge Casey's view:
[Garafola] offers no reason why his innocence would foment retaliation against his son from the Government, particularly if he discovered his own innocence before his trial began. Nor does he point to the moment when his innocence was realized. The most likely reason for the late withdrawal is exactly the "change of heart" prompted by a "reevaluation of either the Government's case against him or the penalty that might be imposed" that is forbidden under the law of this Circuit.
Id. (citation omitted). Judge Casey also noted that the petitioner allocuted to the Garofalo murder using essentially the same words he had used to allocute to the other racketeering acts, including the Gravano murder conspiracy, yet the petitioner did not claim a lack of understanding as to those counts, or claim that those words were "overly legal or abstract." Id.
Finally, Judge Casey found that withdrawal of the petitioner's plea would "substantially prejudice the Government." Id. at *5. Judge Casey also denied the motion to withdraw the guilty plea to Count One, Racketeering Act Five. Id. The petitioner contended that he did not admit that the extortion scheme resulted in the death of Frank Parasole, and that death should not be used to enhance the petitioner's sentence. Id. Judge Casey held that those arguments should be raised at sentencing, particularly given that the petitioner had already stipulated to a life sentence in the Plea Agreement.
This Court, to which this case was reassigned after Judge Casey's death, sentenced the petitioner on September 5, 2007. Mr. White and Mr. Guay represented the petitioner.
The petitioner objected to the Pre-Sentence Report regarding the factual basis for the Garofalo murder charge and the murder of Frank Parasole as well as to the upward enhancements for being an organizer or leader of a construction extortion conspiracy and an organizer or leader of the conspiracy to murder Salvatore Gravano. (Sentencing Hr'g Tr., Sept. 5, 2007, United States v. Garafola, No. 02 Cr. 743 (S.D.N.Y. Sept. 21, 2007), ECF No. 348 ("Sentencing Hr'g Tr.") at 13.) This Court found that there was insufficient evidence for the murder of Parasole and therefore did not rely on it for purposes of sentencing. (Sentencing Hr'g Tr. at 14-15.) This Court, however, overruled the petitioner's objection regarding the Garofalo murder, finding that "the evidence that Judge Casey relied upon to support the plea [was] more than sufficient to find by more than a preponderance of the evidence that the [petitioner] committed . . . the murder of Edward Garofalo." (Sentencing Hr'g Tr. at 16.) This Court did not address the petitioner's other objections to the PreSentence Report because the contested enhancements would not augment the petitioner's sentence; the Court sentenced the petitioner solely on the basis of Racketeering Act Two-the murder of Edward Garofalo. (Sentencing Hr'g Tr. at 17.) Although the petitioner stipulated to a life sentence in the Plea Agreement, the Court gave a three-level reduction in the offense level, without objection from the Government, for acceptance of responsibility. (Sentencing Hr'g Tr. at 17-18.) This resulted in a Guidelines Sentencing Range of 360 months to life. (Sentencing Hr'g Tr. at 18.) The Court sentenced the petitioner principally to 360 months imprisonment. (Sentencing Hr'g Tr. at 18-19.)
The petitioner appealed his conviction to the United States Court of Appeals for the Second Circuit. He argued that he should have been allowed to withdraw his plea because there was an insufficient factual basis for the plea, his plea was not knowing and voluntary, and because he maintained his innocence in the Garofalo murder. (Gov't Mem. Opp. Ex. D 12-23.) The Court of Appeals held that Judge Casey did not abuse his discretion by denying Garafola's motion to withdraw his plea. See United States v. Garafola, 292 F. App'x 138, 139-40 (2d Cir. 2008) (Summary Order). The Court found "no error in Judge Casey's determinations that there was a sufficient factual basis" for the plea, which was "amply supported in the record including [the petitioner's] own statements." Id. at 139. The Court of Appeals also found that Judge Casey had properly concluded that the eleven-month delay between the entry of Garafola's plea and the initiation of his motion to withdraw that plea would cause significant prejudice to the Government. Id. at 140. The Court of Appeals found that an examination of the record, including the sealed portions, belied the petitioner's claim of actual innocence of the murder of Edward Garofalo. Id.
The petitioner now challenges his sentence on three grounds: first, the petitioner alleges that his trial counsel, Mr. Guay, was ineffective because he advised the petitioner to plead guilty to crimes he was not guilty of even though the petitioner allegedly told his attorney he was innocent. The petitioner alleges that his attorney failed to investigate the petitioner's claim of innocence and failed to argue for a downward departure based on the harsh conditions of pre-trial confinement. Second, the petitioner alleges that the Government was responsible for prosecutorial misconduct for prosecuting the petitioner without a sufficient factual basis and for violating the terms of the Plea Agreement. Third, the petitioner ...