United States District Court, S.D. New York
G. GARDEPHE, U.S.D.J.
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) 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.
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)
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,
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)
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)
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,
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.
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)
January 14, 2013, the Second Circuit granted the
Government's motion to dismiss Vaughan's appeal.
(Dkt. No. 61 in No. 11-3958-cr)
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) 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)
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.
STANDARD OF REVIEW
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.").
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).
INEFFECTIVE ASSISTANCE OF COUNSEL
petition, Vaughan argues that she received ineffective
assistance of counsel in connection with her guilty plea and
sentencing. (Pet. (Dkt. No. 1))
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. ...