United States District Court, E.D. New York
For Petitioner: Herald Price Fahringer, Esq., Erica Tamar Dubno, Esq., Nicole Neckles, Esq., of Counsel, Fahringer & Dubno, New York, NY.
For Respondent: Charles N. Rose, Esq., Lara Treinis Gatz, Esq., of Counsel, Loretta E. Lynch, United States Attorney for the Eastern District of New York, Central Islip, NY.
MEMORANDUM OF DECISION AND ORDER
ARTHUR D. SPATT, United States District Judge.
The Petitioner Phillip Murph (the " Petitioner" ), presently incarcerated at the Federal Correctional Facility in Edgefield, South Carolina, brings this petition for a writ of habeas corpus under 28 U.S.C. § 2255 to vacate, set aside, or correct his judgment of conviction and sentence. The Petitioner is currently serving a twenty-year sentence imposed by the Honorable Leonard D. Wexler after a jury found him guilty of (1) attempt to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § § 846, 841(a), and 841(b)(1)(C), and (2) conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § § 846, 841(a), and 841(b)(1)(B)(ii)(II).
Here, the Petitioner argues that that he was denied effective assistance of counsel because (1) his pre-trial counsel, Frank Murphy, allowed him to proffer with the Government, in the hope of obtaining a cooperation agreement, without knowing the specific holding of United States v. Barrow, 400 F.3d 109 (2d Cir. 2005) or advising the Petitioner about the holding of that specific case; (2) his retained attorney, Thomas Liotti, had purported hearing difficulties at the second trial; and (3) Liotti failed to object to an improper sentencing enhancement contained in a proposed plea agreement with the Government.
For the reasons set forth, the Court denies the Petitioner's habeas petition.
On May 1, 2008, the Petitioner was arrested pursuant to a warrant. No drugs were found in his possession when he was arrested. Later that day, the Petitioner appeared on a complaint charging him with conspiracy to possess and distribute 200 grams of cocaine on March 12, 2008, in violation of 21 U.S.C. § 846. United States Magistrate Judge Arlene R. Lindsay appointed Francis Murphy, Esq., under the Criminal Justice Act, to represent the Petitioner.
On May 19, 2008, the Petitioner, on Murphy's advice, attended a proffer session with Special Assistant United States Attorney Kenneth St. Bernard; Drug Enforcement Agency (" DEA" ) Special Agent Brian Fitzpatrick; DEA Task Force Officer Jeff Boletteri; and Internal Revenue Service Special Agent Gerald Ricchardi. Prior to the beginning of the Proffer Session, the Petitioner, with the assistance of counsel, reviewed and signed an agreement acknowledging his knowing and voluntary participation in the Proffer Session.
The Proffer Agreement stated that " the Office will not offer in evidence any statements made by the [Petitioner] at the Meeting (A) in its case-in-chief or (B) at sentencing." The Proffer Agreement further
provided that " the Office may use any statement made by [the Petitioner] . . . (B) as substantive evidence to cross-examine [the Petitioner], should [the Petitioner] testify, and (C) as substantive evidence to rebut, directly or indirectly, any evidence offered or elicited, or factual assertions made, by or on behalf of [the Petitioner] at any stage of a criminal prosecution (including but not limited to detention hearing, trial or sentencing)." The Proffer Agreement provided that the " Fed.R.Evid. 410 do[es] not apply to any statements made by [the Petitioner] at the Meeting, and [the Petitioner] shall not assert any claim under these or any other provisions of law that such statements or any leads therefrom should be suppressed."
During the Proffer Session, the Petitioner acknowledged engaging in certain narcotics transactions with other defendants named in the complaint. In particular, the Petitioner admitted, among other things, to (1) engaging in cocaine and marijuana transactions and (2) knowingly providing numerous drug dealers with cellular telephones through his cell phone store. Attorney Murphy concedes that, at the time of this proffer session, he was unaware of the holding by the Second Circuit in Barrow, which defines the circumstances under which the prosecution may use a defendant's proffer statements as substantive evidence against him at trial.
On June 3, 2008, the Petitioner discharged Murphy. Sometime thereafter, the Petitioner retained Thomas Liotti, to represent him. On June 11, 2008, Liotti's associate, Drummond C. Smith, Esq., attended a second proffer session with the Petitioner and the Government. That meeting ended prematurely when Smith advised the Petitioner not to answer any questions. The Government subsequently had several telephone conversations with Smith, during which Smith was advised that the Petitioner could continue to meet with the Government in the hope of obtaining a cooperation agreement, or face indictment. On several occasions, Smith requested that the Government refrain from presenting the Petitioner's case to the grand jury.
However, because it was clear to the Government that the Petitioner no longer wished to cooperate, a decision was made on July 23, 2008 to present the Petitioner's case to the grand jury. On July 30, 2008, a grand jury returned the first superseding indictment against the Petitioner. The Petitioner was charged with conspiracy to distribute 200 grams of cocaine in violation of 21 U.S.C. § § 846 and 841(b)(1) (C).
On December 9, 2008, the case was transferred from United States District Judge Thomas C. Platt to United States District Judge Leonard D. Wexler.
On December 16, 2008, the Government obtained a second superseding indictment, which replaced the charge in the first superseding indictment with two new charges: namely, attempt to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § § 846, 841(b)(1)(C) and 18 U.S.C. § 2; and conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § § 846 and 841(b)(1)(B)(ii)(II).
On December 31, 2008, the Government filed a letter under seal, which Judge Wexler subsequently unsealed, indicating that the Government intended to use Petitioner's Proffer admissions in the event the Petitioner triggered any of the exceptions to the Proffer Agreement signed by the parties. The Government explained the various ways under Barrow that the Petitioner could open the door to the admission of his proffer statements and requested " that the [Petitioner] be specifically advised about potential admission of his
proffer statements prior to the commencement of trial."
Later that day, the Petitioner filed a letter responding to the Government's December 31, 2008. The letter stated that the proffer statements should be suppressed because the Petitioner had never been advised of the holding of the Barrow case and that the " boiler plate, non-negotiable proffer agreement is unconscionable on its face particularly if the court permits this belated and distorted use of it." The Petitioner further added that if the Government was allowed to use the proffer statements, the Government's position would " clearly and reprehensibly deprive the [Petitioner] of the due process of law."
On January 5, 2009, the Petitioner filed a letter requesting an " emergency hearing" on the Government's intended use of the Petitioner's proffer statements.
Prior to the first trial, the Petitioner asked Liotti to request a plea offer from the prosecution. The plea presented by the prosecution, on January 13, 2009, included an enhancement provision pursuant to 21 U.S.C. 851(a) based on a prior drug felony conviction, which, for the attempt count, increased the mandatory maximum from 20 to 30 years imprisonment, and for the conspiracy count, increased the mandatory minimum sentence to 10 years imprisonment and increased the maximum sentence to life imprisonment. While Liotti asked the Prosecution to consider a lower maximum sentence, Liotti did not realize that it was error to include the § 851(a) enhancement because the Petitioner was never served with notice, as required by the statute, of the Prosecution's intent to rely on a prior conviction to increase any potential sentence.
Also, as part of the plea agreement, the Government stipulated to a sentence range of 151-188 months' imprisonment -- 12.5 to 15.6 years -- and agreed that the Petitioner could appeal and/or file a habeas petition if the sentence greater than 188 months' imprisonment was imposed.
Ultimately, a plea agreement could not be reached. A jury trial was held before Judge Wexler in January 2009. That trial ended in a mistrial because the jury could not reach a unanimous decision.
At the Government's request, a second jury trial was held before Judge Wexler in February 2009. Prior to the beginning of the second trial, the Petitioner moved to suppress the Petitioner's proffer statements, arguing that the Proffer Agreement was vague and did not apprise the Petitioner of the consequences of the Second Circuit decision in Barrow.
On February 5, 2009, Judge Wexler held a hearing on the voluntariness of the Petitioner's proffer statements, taking testimony from Special Agent Fitzpatrick, the Petitioner, and Murphy. During the hearing, the Petitioner admitted that he signed the Proffer Agreement voluntarily. (Transcript of Second Trial, (" T2" ), 261.)
Murphy revealed that he was not aware of Barrow at the time of the Proffer Session. However, Murphy stated that he " read the proffer agreement, went over with [the Petitioner] any question that he might have had," id. at 289, and that during the Proffer session, " he would have to tell the truth and that he would -- if somehow he made a misrepresentation in the court one way or another, whether himself or through others, that could be used against him, and perhaps what he said might be used against him. But [the Petitioner] appeared to understand that." (T2. 290-91.).
At the hearing, Liotti represented that neither he nor other defense counsel whom he had consulted had been aware of Barrow.
The Petitioner testified that the Government attorney St. Bernard told him " that if I were to take the stand and say something that was different than what I said in the proffer, that it could be used against me." (T2 241.) The Petitioner did not call St. Bernard, who conducted the proffer session, because the defense was unable to locate him.
In lieu of St. Bernard's testimony, the Government provided an affidavit from St. Bernard dated January 14, 2009 and offered to stipulate that no one from the Government advised the Petitioner about Barrow during the proffer.
At the end of the hearing, Judge Wexler found that the Petitioner " voluntarily went into [the proffer] agreement, he knew what he was doing, he was read the facts, and therefore my ruling stands the same as it did previously. It comes in if there is an inconsistency." (T2. 328)
The second trial began on February 6, 2009. At various points during the second trial, Liotti expressed difficulty hearing the witnesses and Judge Wexler. According to Liotti, instead of accommodating him, Judge Wexler disparaged him in the presence of the jury. Liotti memorialized his complaints in a letter to Judge Wexler dated February 9, 2009.
In terms of the evidence at the second trial, the Government called eight witnesses in its case-in-chief. Two were cooperating witnesses, Omar Mims and Anthony Williams, who had been involved in cocaine trafficking with the Petitioner. The Government also introduced corroborating evidence, including recorded telephone conversations between the Petitioner and his coconspirators; a consensually monitored and recorded jail house call from the Petitioner to his wife; telephone records; and other documentary evidence. The Petitioner's sole witness was his wife, who testified regarding the jail house call with the Petitioner. (T2. 779-80.)
The evidence at the trial showed that, upon Anthony William's release from custody in 2005 for a federal narcotics conviction, he was reacquainted with the Petitioner, whom he had known prior to his incarceration. (T2. 576.) Late in 2006, Williams approached the Petitioner and indicated that he was receiving wholesale quantity shipments of marijuana from Mexico and distributing them. (T2. 584-85.) The Petitioner purchased approximately 500 pounds of marijuana from Williams and told Williams that he was selling cocaine and wanted Williams to introduce him to a source of supply for cocaine. (T2. 585-87.)
In " early to mid" 2007, Williams introduced the Petitioner to Baldimir Martinez, Williams's supplier for marijuana who could also provide cocaine. (T2. 588-90.) In the summer of 2007, the Petitioner obtained four kilograms of cocaine from Martinez through Williams at a price of $19,000 per kilogram. (T2. 591.) After the four-kilogram transaction, the Petitioner wanted more cocaine from Martinez, so Williams arranged a meeting with the Petitioner, Martinez, and himself in late 2007 at the Petitioner's cell phone store in Brooklyn. (T2. 593-95.) After the ...