United States District Court, E.D. New York
MEMORANDUM AND ORDER
SANDRA L. TOWNES, District Judge.
Petitioner Michael Cassese, pro se, an inmate at FCI Fairton, moves for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 on the grounds that he was denied effective assistance because his attorney (1) failed to bring the government's alleged plea-breach to the Court's attention at sentencing, (2) failed to file a motion to correct an alleged arithmetical error at sentencing, and (3) failed to reduce some of the terms of the plea agreement to writing. For the following reasons, the petition is DENIED.
On November 5, 1991, Michael Cassese was sentenced by then-Eastern District Judge Reena Raggi to 87 months imprisonment followed by a lifetime of supervised release. ( USA v. Martini, et al., 90-cr-494.) In 2006, he was arrested again, and charged with, inter alia, violating the conditions of his supervised release and participating in a racketeering conspiracy.
In connection with the 2006 arrest, Cassese's attorney, Steve Zissou, negotiated a plea agreement, the terms of which provided that Cassese would plead guilty to the racketeering charge and the government would agree to dismiss the other counts. In the plea agreement, the parties estimated that the total Sentencing Guidelines ("Guidelines") offense level was 27 and Cassese fell into Criminal History Category III - corresponding to an advisory sentencing guideline of 87 to 108 months incarceration. (Plea Agreement ¶ 2.) It provided that if Cassese pleaded guilty by September 28, 2007, the Government would move for a one level reduction resulting in an adjusted offense level of 26 - corresponding to a 78 to 97 months advisory term of imprisonment. It also provided for a possible one offense-level reduction in the event of global disposition - that is, in the event that certain co-defendants also pleaded guilty. The agreement provided that the calculations were only estimates and these estimates did not bind the Court. ( Id. at ¶ 3.) Although not included in the plea agreement, Cassese asserts that the Government also agreed to recommend that his sentence on the racketeering conspiracy charge should run concurrently with whatever sentence he received on the violation of supervised release charge. He also contends that the Government agreed that, after his release, he would no longer be on lifetime supervised release.
On September 7, 2007, Cassese pleaded guilty before then-Magistrate Judge Kiyo A. Matsumoto to Count One of the Superseding Indictment-racketeering conspiracy in violation of 18 U.S.C. §§ 1961(1) and (5). (06-cr-800, Dkt. 288 ("Plea Tr.").) Magistrate Judge Matsumoto confirmed on the record that Cassese understood each aspect of the plea agreement. Cassese confirmed on the record that he understood that "despite whatever the Government and [his] attorney may have estimated with respect to [his] offense level and the range of sentence that [he] could face, that their estimate could be incorrect." ( Id. at 17:21-25.) He also confirmed that he understood that "after Judge Townes considers the sentencing guidelines she does have the authority to impose a sentence that is more or less severe than that called for by the [Sentencing G]uidelines." ( Id. at 17:9-15.)
On May 15, 2009, at the sentencing hearing, the Court went through the Guidelines calculations on the record and concluded that the total offense level was 28. (11-cv-810, Dkt. 5-3 ("Sent. Tr.") at 12:1-25.) In light of the global disposition of the case, the Court granted the parties' motion to downwardly depart from the advisory Guidelines range and sentenced Cassese within a range two offense-levels lower than 28 - at a level of 26, which corresponds to a sentence of 78 to 97 months. ( Id. at 5:13-16.) The Court sentenced Cassese in the middle of that lower range - to 90 months followed by three years supervised release. ( Id. at 12:1-25.)
After sentencing on the underlying indictment, the Defendant pleaded guilty on the record to violating the terms of his pre-existing supervised release. ( Id. at 16:25-17:1.) The Government recommended that the sentence for the violation of supervised release run concurrently to the sentence imposed on the racketeering count. ( Id. at 17:4-9.) The Court declined to follow the Government's recommendation. Instead, the Court sentenced Cassese to 12 months imprisonment to run consecutively to the 90 month sentence imposed on the racketeering count, followed by a lifetime term of supervised release. ( Id. at 17:13-19:4.) Casesse's attorney objected to the sentence. The Court explained, "you said... that the government and the defense agreed the sentence should run concurrently with the sentence imposed on the racketeering conspiracy.... The government did say they recommend a concurrent term of imprisonment, " ( Id. at 20:8-11, 24-25), and while the Court "accepted the recommendation as coming from the government and the defendant[, the Court] simply did not agree with it, " (Tr. 21:8-10).
Cassese appealed. On July 14, 2010, the Second Circuit Court of Appeals dismissed the appeal based on the waiver of appellate rights contained in the plea agreement. By a petition dated February 10, 2011, Cassese commenced the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 seeking a reduction in his sentence to a term between 70 and 87 months and an order that his sentence imposed for his participation in a racketeering conspiracy be served concurrently with the sentence imposed for violating supervised release.
Section 2255(a) of Title 28 of the United States Code provides:
[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Relief under this statute is available only "for 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 complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (citations omitted).
Section 2255 requires a district court to hold a hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; Phan v. United States, 317 F.3d 178, 185 (2d Cir. 2003) (§ 2255 does not permit summary dismissals of motions that present facially valid claims). However, "[t]he language of the statute does not strip the district court of all discretion to exercise [its] common sense." Machibroda v. United States, 368 U.S. 487, 495 (1962). Where the petitioner's allegations are "vague, conclusory, or palpably incredible" a district court may investigate "allegations of facts outside the record... without requiring the personal presence of the prisoner." Id. It is "within the district court's discretion to choose a middle road" between a full-fledged hearing and summary dismissal to "avoid[ ] the delay, the needless expenditure of judicial resources, ...