United States District Court, S.D. New York
For John Matera, Petitioner: Charles F. Carnesi, LEAD ATTORNEY, Charles F. Carnesi, Attorney At Law, Garden City, NY; Russell Todd Neufeld, Russell T. Neufeld Law Office, New York, NY; Seth Ginsberg, Seth Ginsberg Attorney At Law, New York, NY.
For USA, Respondent: Ian Patrick McGinley, United States Attorney Office, SDNY, New York, NY.
OPINION AND ORDER
John G. Koeltl, United States District Judge.
The petitioner, John Matera, challenges his conviction and sentence pursuant to 28 U.S.C. § 2255. On August 31, 2004, Matera pleaded guilty before Judge Richard Casey pursuant to a plea agreement to two counts of conspiring to participate in the affairs of the Gambino Organized Crime Family through the commission of racketeering acts, in violation of the Racketeering Influenced and Corrupt Organizations Act (" RICO" ), 18 U.S.C. § 1962(d). In particular, Matera pleaded guilty to two predicate racketeering acts: a conspiracy to murder Frank Hydell and the operation of an illegal gambling business. On October 29, 2004, Judge Casey sentenced Matera principally to twenty years imprisonment, the maximum sentence under the statute and the term that the parties had stipulated to in the plea agreement.
Matera appealed his conviction, arguing, among other things, that the District Court erred in failing to make an inquiry as to any potential conflict between Matera and Jeffrey Lichtman, his counsel at the plea and sentence, who also represented Thomas Dono, who was then a suspected co-conspirator in the Hydell murder. The Court of Appeals affirmed Matera's conviction. United States v. Matera, 489 F.3d 115, 125 (2d Cir. 2007). The Court explained that Lichtman represented Dono on an unrelated charge after Matera's plea and during his sentencing, and then represented Dono in the Hydell-related charge several years later. Id. The Court held that there was no reason to make an inquiry at the time of the plea and no possibility of prejudice at the time of the sentence because Matera had already stipulated to receiving a sentence of twenty years. Id.
On March 23, 2011, Matera, represented by new counsel, filed the current petition pursuant to 28 U.S.C. § 2255 to vacate his conviction and sentence. Matera argues that, based on " newly discovered evidence," Lichtman had an actual conflict of interest during plea negotiations and at the time of Matera's guilty plea and sentencing that adversely affected Lichtman's representation of Matera. Matera claims that Lichtman had a financial interest in representing Dono and that the financial interest was antagonistic to Matera's, and that Lichtman had an attorney-client relationship with Dono, whose interests were antagonistic to Matera's. Matera claims that the " newly discovered evidence" consisted of statements that Lichtman made on March 24, 2010, at Dono's sentencing for involvement in the Hydell murder, and a tape recording (the " Kasman-Lichtman recording" ) previously produced in 2008 to Seth Ginsberg, one of the attorneys representing Matera on this petition, which Matera claims he became aware of in June 2010. Ginsberg Affirm. Ex. I (Matera Aff. ¶ ¶ 27-30, Mar. 23, 2011).
This Court held an evidentiary hearing at which Matera, Dono, Lichtman, and Ginsberg testified. Having assessed the credibility of the witnesses and reviewed the documentary evidence, the Court concludes that the petition is time-barred and that, in any event, Matera's counsel was not laboring under a conflict of interest at the relevant times. Therefore, the petition must be denied.
The Court makes the following findings of fact and draws the following conclusions of law.
FINDINGS OF FACT
On April 16, 2003, Matera, along with several co-defendants including Thomas Carbonaro, was indicted in the Southern District of New York. Superseding Indictment, United States v. Matera, No. 02cr743 (Apr. 16, 2003), ECF No. 33. The charges against Matera included a RICO charge as well as substantive charges relating to the murder of Frank Hydell. Initially, Matera was represented by Richard Rehbock and Jeremy Schneider. Pet'r's Post-Hr'g Br., Ex. C. On or about September 20, 2003, Rehbock was relieved as counsel and Schneider continued to represent Matera until Matera retained Lichtman. Tr. 7. On April 23, 2004, while Matera was still represented by Schneider, the Government provided Matera with a plea agreement to charges that Matera conspired to participate in a RICO enterprise through the predicate acts of the conspiracy to murder Hydell and the operation of an illegal gambling business. The plea agreement capped Matera's sentencing exposure at 20-years' imprisonment. Pet'r's Post-Hr'g Br., Ex. D.
On or about June 1, 2004, Matera retained Lichtman to represent him. Tr. 9; Matera Ex. 1. At that time, Matera wanted a lawyer to represent him at trial. Tr. 25, 193. After he was retained by Matera, Lichtman spent a half-day with Schneider reviewing Matera's case file, which consisted of at least seven boxes, among other materials. Tr. 9-10; Matera Ex. 2. Included in the materials Lichtman received from Schneider was a copy of the transcript from the bail hearing in the Eastern District of New York for Thomas Dono. Tr. 11-12; Matera Ex. 2. The bail hearing pertained to bank burglary charges that Dono faced in the Eastern District of New York that were unrelated to the Hydell murder, but the Government referred to Dono's involvement in that murder in support of its argument at the bail hearing. Tr. 11-12; Pet'r's Post-Hr'g Br., Ex. J.
After being retained in June, Lichtman began preparing for trial by going through the documentary evidence, preparing cross-examinations of potential witnesses, and investigating possible impeachment evidence. Tr. 24. Later in the summer, as trial approached, Matera urged Lichtman to work out a plea agreement. In one letter to Lichtman, dated August 16, 2004, Matera wrote " all the brains in the world sometimes can't win a case like this." GX 16. Matera continued:
First, I'm going to try and put this globle [sic] plea together. Let me deal with these guys. We need a codefendant meeting. . . I am confident we can put this together. This is what we want. This is why we need to meet, and put work in to make it go. I hate when you say it's not going to happen because its [sic] your job to make it happen. But if this is a trial, we have lots of things to do.
GX 16. Matera ended the letter with a postscript: " P.S. Huck [Carbonaro] and I are the only ones on Hydell, so if we both plead, that's a benefit for the prosecutors." GX 16.
On August 31, 2004, a one count Information, S7 02 Cr. 743 (RCC), was filed against Matera alone. The Information charged Matera with a racketeering conspiracy, in violation of 18 U.S.C. § 1962(d). Matera was charged with conspiring with others to participate in the conduct of the affairs of the Gambino Organized Crime Family through a pattern of racketeering activity. The information alleged two predicate racketeering acts committed by Matera in furtherance of that racketeering conspiracy: (1) conspiring to murder Frank Hydell on or about April 28, 1998; and (2) conducting an illegal gambling business from in or about January 1998 through in or about April 2003. See Pet'r's Post-Hr'g Br., Ex. D (Superseding Information, United States v. Matera, No. 02 Cr. 743 (S.D.N.Y. Aug. 31, 2004)).
On the same day the information was filed, Matera waived indictment and pleaded guilty to the Information pursuant to a plea agreement with the Government. Both Matera and his then-counsel, Lichtman, signed the agreement. The plea agreement capped Matera's sentencing exposure at 20-years' imprisonment. GX 10. The plea agreement allowed the defendant to argue for the sentence to be imposed concurrently with the 97-month sentence he was then serving that had been imposed in the Eastern District of New York for racketeering charges. GX 10. The Government also retained the right to oppose that argument.
At Matera's change of plea hearing the same day, Judge Casey explained in detail the constitutional rights Matera would be waiving upon entering a guilty plea. GX 11 (Plea Tr. 7-12, Aug. 31, 2004). Matera stated he was pleading guilty voluntarily. Plea Tr. 12. Matera stated that he understood that by pleading guilty, he was waiving his right to a jury trial. Plea Tr. 7-8. Matera also acknowledged that he was " very much" satisfied with his attorney, Lichtman. Plea Tr. 6. Matera explained his crimes to the Court as follows:
On or about January 1998 through April 2003, in the Southern District of New York, in the Eastern District of New York, and elsewhere, I was a part of a group of individuals associated in fact conspired to engage in activities which affected interstate commerce. As part of this association in fact, I participated in a pattern of racketeering activities. . . .
From January 1998 through April 28th, 1998, in the Southern District of New York, the Eastern District of New York and elsewhere, I had conspired with others to murder Frank Hydell. Specifically, I alerted other individuals as to the location of Hydell, knowing that these other individuals were coming to kill Frank Hydell.
I knew when I committed this act that it was illegal.
In January 1998 up to and including April 2003, in the Southern District of New York, the Eastern District of New York and elsewhere, I operated and aided and abetted others in the operation of a bookmaking operation. . . .
My role included collecting debts owed to the gambling operation. I knew when I committed these acts that they were illegal.
Plea Tr. 13-15. The Court concluded that the defendant's plea was knowing and voluntary, and that there was an independent factual basis for the plea, and consequently accepted the plea. Plea Tr. at 16.
After his guilty plea, Matera wrote Lichtman additional letters. On October 4, 2004, Matera wrote to Lichtman to ask Lichtman to speak to the prosecutor to convince the Government to take no position at sentencing, presumably about whether Matera's sentence should run concurrently with the undischarged portion of the sentence Matera was then serving for his conviction in the Eastern District of New York. GX 17.
On October 19, 2004, Lichtman sent the Pre-Sentence Report (" PSR" ) to Matera. GX 19. The Probation Department recommended that the sentence run concurrently with the Eastern District sentence that Matera was then serving. On October 21, 2004, Matera expressed approval to Lichtman about the PSR, writing " I like what it says." GX 18.
Before his sentencing, Matera also wrote a letter to the New York Daily News, in response to false rumors that Matera was cooperating with the Government. Tr. 217. In the letter, Matera wrote, " I am not cooperating against Peter Gotti. I'm going to jail for killing a rat. I'm not proud of this. I'm just proud I'm not a rat. I never was." GX 7. He added, " all I have is my name left, and I'm going to prison for a long time." GX 7. In its article about Matera's letter, the Daily News also reported that Matera had a large tattoo across his back, depicting a courtroom scene with a rat in a witness box next to a judge, with the words, " 12 Jurors, One Judge, Half a Chance." GX 7. Matera denied that the article correctly described his tattoo. Tr. 218.
On October 29, 2004, Judge Casey sentenced Matera principally to a term of 240 months' incarceration. The Guideline Sentencing Range for the offense to which Matera pleaded guilty was 360 months to life, but the statutory maximum sentence of imprisonment for the offense was 240 months. The plea agreement provided that it was the intent of the parties that a twenty year term of imprisonment " should be imposed." GX 10, at 6. The one area that remained open for argument under the plea agreement was whether the sentence should run concurrently with the sixteen months remaining on the term of Matera's sentence for his conviction in the Eastern District of New York.
During the sentencing proceeding, Lichtman argued for the sentence to be imposed concurrently with the Eastern District sentence. While Matera now faults the ardor of Lichtman's advocacy before Judge Casey, a fair reading of the transcript indicates that while Lichtman acknowledged the seriousness of the offense of conviction, he argued strenuously that the Court should afford Matera " a very minor break" by providing for a concurrent period of sixteen months on the two sentences. GX 13 (Sentencing Tr. 4-6, Oct. 29, 2004). Lichtman argued that Matera had " made an effort to change his life" since he had been imprisoned on the Eastern District offense in 1999, including the completion of numerous programs in prison. Sentencing Tr. 5.
Lichtman also pointed to the Probation Department's recommendation for a concurrent sentence, as stated in the PSR. Judge Casey, however, noted that the Probation Department had been unaware of the letter to the Daily News. Sentencing Tr. 6. Judge Casey questioned whether Matera was truly remorseful for the Hydell murder, given that Matera wrote the letter after his guilty plea. Sentencing Tr. 6-7. Lichtman unsuccessfully attempted to persuade the Court that the letter was caused by the defendant's concern that the defendant or his family would be in danger if he were thought to be a cooperating witness. Sentencing Tr. 6-7. In response to Lichtman's arguments, the Court also noted the tattoo that had been mentioned in the Daily News. Sentencing Tr. 8.
After Lichtman concluded his mitigation argument, Matera apologized to Hydell's family, stating: " You know, we were very friendly, and this was a mistake, and I apologize." Sentencing Tr. 9. At the conclusion of the hearing, Judge Casey sentenced Matera principally to 240 months of imprisonment to run consecutively with the undischarged portion of Matera's Eastern District sentence. Sentencing Tr. 10.
While Matera now attempts to fault Lichtman's advocacy at sentencing, contemporaneously, Matera expressed his satisfaction. On October 29, 2004, Matera wrote to Lichtman as follows:
Well my friend, it's over. I really was not surprised by the Judge's doing. . . . I'm not mad. I'm really happy, It's over, I know what I have to do! I want you to know, I know you tried, I saw how you were pleading with this Judge. The truth is, no matter what you did or said, and even if I didn't write ...