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Vaughan v. United States

United States District Court, S.D. New York

February 1, 2017

CYNTHIA VAUGHAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          PAUL G. GARDEPHE, U.S.D.J.

         On March 19, 2013, Cynthia Vaughan filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel by her trial attorney, David Goldstein. (Dkt. No. I)[1] On April 24, 2013, this Court referred the petition to Magistrate Judge Frank Maas for a Report and Recommendation ("R & R"). (Dkt. No. 5) On July 19, 2016, Judge Maas issued an R & R recommending that the petition be denied. (R & R (Dkt. No. 11)) For the reasons stated below, this Court will adopt the R & R in its entirety, and Vaughan's petition will be denied.

         BACKGROUND

         On March 18, 2010, Vaughan was charged in Indictment 10 Cr. 233 with three counts of bank fraud, in violation of 18 U.S.C. § 1344. Vaughan is the former chief executive officer of the Rockland Employees Federal Credit Union, and she was charged with embezzling funds from the Credit Union. (Dkt. No. 10 in 10 Cr. 233)

         On May 12, 2011, Vaughan pleaded guilty before Magistrate Judge George Yanthis to Count One of the Indictment. (May 12, 2011 Plea Tr. (Dkt. No. 7-3) at 14-17) During Vaughan's allocution, Judge Yanthis advised Vaughan of, inter aha, the rights she would be giving up if she pleaded guilty (id at 12-16), and the consequences of pleading guilty, including the possibility of a maximum sentence of 30 years' imprisonment. ( Id. at 8) Vaughan told Judge Yanthis that no one had threatened her, coerced her, or "put any pressure on [her] to get [her] to plead guilty"; that she had "had enough time to discuss [the plea agreement] with [her] attorney"; and that no one had "force[d] [her] or coerce[d] [her] or threatened] [her] or promise[d] [her] anything to get [her] to sign the plea agreement." ( Id. at 5-7, 17-19)

         During her allocution, Vaughan admitted that - between October 2000 and June 2006 - while she was the Chief Executive Officer of the Rockland Employees Federal Credit Union, she transferred the Credit Union's funds into her own accounts without authorization. (Id. at 18-19) Vaughan also admitted that she "knew that the transfers were not legitimate at the time." (Id. at 18) She further admitted that she used the transferred funds for her own personal expenses. (Id. at 20-21)

         In the plea agreement, Vaughan agreed not to appeal or collaterally challenge any sentence of 30 months' imprisonment or less. (Plea Agr. (Dkt. No. 7-2) at 4; May 12, 2011 Plea Tr. (Dkt. No. 7-3) at 10-11) Vaughan also agreed not to appeal any order of restitution in the amount of $150, 000 or less. (Plea Agr. (Dkt. No. 7-2) at 4; May 12, 2011 Plea Tr. (Dkt. No. 7-3) at 12)

         On September 8, 2011, this Court accepted Vaughan's guilty plea. (Dkt. No. 52 in 10 Cr. 233) This Court sentenced Vaughan to 18 months' imprisonment and three years of supervised release, and ordered her to pay $150, 000 in restitution. (See Judgment (Dkt. No. 53 in 10 Cr. 233)) The judgment of conviction was entered on September 9, 2011. (Id.)

         On September 15, 2011, Vaughan filed a pro se notice of appeal. (Notice of Appeal (Dkt. No. 59)) On April 3, 2012, Randall Douglas Unger - who had been appointed to represent Vaughan for purposes of her appeal - filed a brief pursuant to Anders v. California. 386 U.S. 738 (1967), stating that there were no non-frivolous issues to raise on appeal and, accordingly, requesting permission to withdraw as counsel. (Dkt. No. 30 in No. 11-3958-cr) The Government then moved to dismiss Vaughan's appeal. (Dkt. No. 46 in No. 11-3958-cr)

         On August 3, 2012, Vaughan filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. (Dkt. No. 1 in 12 Civ. 6129) Because Vaughan's direct appeal was pending at that time, Vaughan's petition was premature. Accordingly, this Court dismissed the petition without prejudice. (Sept. 7, 2012 Order (Dkt. No. 4 in 12 Civ. 6129) at 3)

         On January 14, 2013, the Second Circuit granted the Government's motion to dismiss Vaughan's appeal. (Dkt. No. 61 in No. 11-3958-cr)

         On March 19, 2013, Vaughan filed the instant petition under 28 U.S.C. § 2255. (Dkt. No. 1) Vaughan argues that her trial counsel, David Goldstein, was ineffective because he (1) had a conflict of interest (Pet. at 3-10);[2] (2) coerced her into pleading guilty (Id. at 13-15); (3) did not provide adequate advice regarding the plea agreement (id. at 10-15); (4) did not present mitigating evidence in a timely fashion (id. at 5-6, 11-12); (5) failed to conduct a timely interview of a key witness (id. at 6-7, 10-12, 14-15); and (6) failed to assist in the prosecution of her appeal. (Id. at 15-16)

         On April 24, 2013, this Court referred Vaughan's petition to Judge Maas for an R & R. (Dkt. No. 5) On July 19, 2016, Judge Maas issued an R & R recommending that the petition be denied. (R & R (Dkt. No. 11) at 25) Judge Maas informed Vaughan that she had fourteen days from service of the R & R to file any objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, and that "failure to file ... timely objections will result in a waiver of those objections for purposes of appeal." ( Id. at 25-26) No objections to the R & R were filed.

         DISCUSSION

         I. STANDARD OF REVIEW

         Because Vaughan did not file an objection to Judge Maas's R & R, she has waived her right to de novo review by this Court. See Thomas v. Arn. 474 U.S. 140, 147-48 (1985); see also Razo v. Astrue, No. 04 Civ. 1348 (PAC) (DF), 2008 WL 2971670, at *2 ("For uncontested portions of the R & R, the court need only review the face of the record for clear error." (citing Wilds v. United Parcel Serv., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003))); Mario v. P & C Food Markets. Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Where parties receive clear notice of the consequences, failure timely to object to a magistrate's report and recommendation operates as a waiver of further judicial review of the magistrate's decision." (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam))); Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 174 (2d Cir. 2000) ("Failure to timely object to a report generally waives any further judicial review of the findings contained in the report.").

         This Court has nonetheless reviewed Judge Maas's R & R and is satisfied that there is no clear error on the face of the R & R. See Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y. 1985).

         II. INEFFECTIVE ASSISTANCE OF COUNSEL

         In her petition, Vaughan argues that she received ineffective assistance of counsel in connection with her guilty plea and sentencing. (Pet. (Dkt. No. 1))

         In considering Vaughan's ineffective assistance claims, Judge Maas correctly applied the two-prong test set forth by the Supreme Court in Strickland v. Washington. 466 U.S. 668 (1984). Strickland requires Vaughan to first establish that her attorney's performance was so deficient that it "fell below an objective standard of reasonableness." Strickland. 466 U.S. at 688. Second, Vaughan must demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. As Judge Maas explained, in the context of a guilty plea, Vaughan must demonstrate under the second prong that "but for counsel's errors, [s]he would not have pleaded guilty and would have insisted on going to trial." United States v. Hernandez, 242 F.3d 110, 112 (2d Cir. 2001) (quoting Hill v. ...


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