United States District Court, W.D. New York
DONOVAN A. HOUGH, Petitioner,
UNITED STATES OF AMERICA, Respondent.
DECISION AND ORDER
Elizabeth A. Wolford United States District Judge
1990, the petitioner, Donovan Hough ("Petitioner"),
was convicted by a jury of various felony charges, including
drug and gun crimes, and he was sentenced to 40 years in
prison. On October 5, 2012, proceeding pro se,
Petitioner filed a petition pursuant to 28 U.S.C. § 2255
to vacate, set aside, or correct his sentence. (Dkt.
210).Petitioner seeks to vacate his conviction
and sentence on the grounds that he was denied effective
assistance of counsel. (Dkt. 211 at 1-3). Petitioner claims
that his attorneys failed to "give any advi[ce]
concerning the acceptance of a plea bargain, " and/or
communicate plea offers. (Id. at 9; Dkt. 225 at 6,
April 11, 2016, the Court found outstanding questions of fact
existed regarding the communications surrounding
Petitioner's plea negotiations and concluded that an
evidentiary hearing was necessary. (Dkt. 238 at 7-11). An
evidentiary hearing was held on September 7 and September 9,
2016, before the undersigned. (Dkt. 255; Dkt. 256; Dkt. 257;
Dkt. 259). In relation to the hearing, Petitioner filed a
motion in limine to preclude certain testimony at
the hearing. (Dkt. 252). At the hearing, the undersigned
reserved decision on those evidentiary issues, allowing the
testimony to come in for the purpose of making a
determination as to whether to consider the evidence in
making an ultimate decision on the petition. (Dkt. 257 at 3).
forth below, the Court finds that Petitioner has failed to
meet his burden to show that he received ineffective
assistance of counsel during and leading up to his criminal
trial between 1989 and 1990. Accordingly, the petition is
denied with prejudice.
was convicted of various crimes in 1990 after a jury trial
before United States District Judge Arcara. (Dkt. 90). On
June 14, 1991, Judge Arcara sentenced Petitioner to
imprisonment of 40 years. (Dkt. entry on 6/14/1991).
Petitioner appealed his conviction, and the United States
Court of Appeals for the Second Circuit affirmed the judgment
on April 9, 1992. United States v. Bolden, 963 F.2d
1521 (2d Cir. 1992) (Table). In July of 1992, Petitioner
filed a petition pursuant to 28 U.S.C. § 2255, which was
denied on September 27, 1993. (Dkt. 158; Dkt. 167). The
Second Circuit dismissed three attempted appeals of this
denial. (2d Cir. Dkt. 93-2709; 2d Cir. Dkt. 94-2691; 2d Cir.
Dkt. 95-2623). Petitioner filed a second petition pursuant to
28 U.S.C. § 2255 in March of 1997 (Dkt. 177), which was
transferred to the Second Circuit pursuant to 28 U.S.C.
§§ 2244(b) and 2255(h). (Dkt. entry on 4/18/1997).
The Second Circuit issued an Order granting Petitioner
permission to file his successive petition on April 29, 1997.
(2d Cir. Dkt. 97-3525; Dkt. 178). On February 26, 1998, Judge
Arcara issued a Decision and Order granting the petition in
part and denying it in part. (Dkt. 185). Because the terms of
imprisonment on the vacated counts were to run concurrently
with the imprisonment for the remaining counts, and because
the order vacating certain of the counts did not change the
length of the prison term, Judge Arcara determined that
re-sentencing was not required. (Id.). The Court
denied the certificate of appealability. (Dkt. 187).
next moved on February 4, 2003, under Fed.R.Civ.P. 60(b)
based on newly-discovered evidence. (Dkt. 192). The Court
denied the motion on May 14, 2003 (Dkt. 195), which
Petitioner appealed almost a year later on April 26, 2004.
(Dkt. 198). Petitioner requested the Second Circuit grant
leave to file a successive habeas petition. (2d Cir. Dkt.
04-4112). The Second Circuit denied the motion on September
22, 2004. (Id.).
next sought a reduction in his sentence on December 12, 2005,
pursuant to 18 U.S.C. § 3582(c), post-United States
v. Booker, 543 U.S. 220 (2005). (Dkt. 199). The Court
denied the motion (Dkt. 202), and the Second Circuit
dismissed the appeal of that decision on June 15, 2006. (2d
Cir. Dkt. 06-2025). Thereafter, Petitioner moved to reduce
his sentence under 18 U.S.C. § 3582(c) pursuant to a
retroactive amendment to the sentencing guidelines. (Dkt.
226). The case was then transferred to the undersigned on
January 30, 2015, and in June 2015, this Court granted the
motion, reducing Petitioner's sentence to 340 months on
Count 1 of the indictment, or to 400 months overall. (Dkt.
at issue is Petitioner's motion to vacate under §
2255,  filed on October 5, 2013. (Dkt. 210). The
petition alleges that Petitioner's trial counsel deprived
him of constitutionally-effective assistance by failing to
adequately negotiate a plea disposition for Petitioner during
his criminal case. (Id.; Dkt. 211). He alleges that
his first attorney, Carl Dobozin, who represented him from
the time of his arrest in June 1989 through approximately
September 1989, failed to attempt to negotiate a plea despite
Petitioner's request that he do so. (See
generally Dkt. 211). Similarly, he alleges that his
second attorney, Alan D. Goldstein, delayed plea negotiations
after Petitioner had requested that Mr. Goldstein engage in
negotiations and did not follow up, relay any plea offers, or
advise Petitioner of his potential sentencing exposure if
convicted at trial. (See generally id.; Dkt. 225).
Complicating the disposition of this issue is the fact that
Mr. Goldstein is deceased.
filed the instant petition to vacate under § 2255 on
October 5, 2012. (Dkt. 210). The Government responded on
October 31, 2013 (Dkt. 223),  and Petitioner replied on
November 20, 2013. (Dkt. 225). As referenced above, the case
was transferred to the undersigned on January 30, 2015. (Dkt.
entry on 1/30/2015). On April 11, 2016, the undersigned
determined that an evidentiary hearing was necessary to
resolve questions of fact left outstanding by the briefing.
(Dkt. 238). The Government filed a hearing brief on August 8,
2016 (Dkt. 246), and Petitioner filed a hearing brief on the
same date. (Dkt. 251). Petitioner also filed a motion in
limine to preclude certain evidentiary
testimony-specifically, certain testimony from the Assistant
United States Attorney, Joseph M. Guerra, III, who handled
the criminal trial, and from Robert N. Convissar, the
attorney of Petitioner's co-defendant-on the basis of
hearsay. (Dkt. 252). The evidentiary hearing was held on
September 7 and September 9, 2016. (Dkt. 255; Dkt. 256; Dkt.
257; Dkt. 259). At the hearing, AUSA Guerra, Petitioner, and
Mr. Convissar testified. (See generally Dkt. 237;
Dkt. 259). Petitioner filed post-hearing briefing on December
12, 2016 (Dkt. 261), with the Government following suit on
February 15, 2017. (Dkt. 266). Petitioner filed his reply on
March 1, 2017. (Dkt. 268).
Sixth Amendment right to counsel is needed to "protect
the fundamental right to a fair trial, " and "the
right to counsel is the right to the effective assistance of
counsel." Strickland v. Washington, 466 U.S.
668, 684, 686 (1984) (quoting McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970)).
A convicted defendant's claim that counsel's
assistance was so defective as to require reversal of a
conviction . . . has two components. First, the defendant
must show that counsel's performance was deficient. This
requires showing that counsel made errors so serious that
counsel was not functioning as the "counsel"
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced
the defense. This requires showing that counsel's errors
were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable. Unless a defendant makes
both showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversary process that
renders the result unreliable.
Id. at 687. "[C]laims of ineffective assistance
of counsel in the plea bargain context are governed by the
two-part test set forth in Strickland.'"
Missouri v. Frye, 566 U.S. 133, 140 (2012). "The
performance prong of Strickland requires a defendant
to show '"that counsel's representation fell
below an objective standard of
reasonableness.'"" Lafler v.
Cooper, 566 U.S. 156, 163 (2012) (quoting Hill
v. Lockhart, 474 U.S. 52, 57 (1985)). "To establish
Strickland prejudice a defendant must 'show that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.'" Id. (quoting
Strickland, 466 U.S. at 694)).
relates to plea offers, under the first Strickland
prong, "[a] defendant suffers a Sixth Amendment injury
where his attorney fails to convey a plea offer, " and
"[d]efense counsel have a constitutional duty to give
their clients professional advice on the crucial decision of
whether to accept a plea offer from the government."
Pham v. United States, 317 F.3d 178, 182
(2d Cir. 2003); see Frye, 566 U.S. at 145. When an
attorney "grossly underestimate[s]" a client's
sentencing exposure, the attorney has "breached his duty
as a defense lawyer in a criminal case 'to advise his
client fully on whether a particular plea to a charge appears
desirable.'" United States v. Gordon, 156
F.3d 376, 380 (2d Cir. 1998) (quoting Boria v.
Keane, 99 F.3d 492, 496 (2d Cir. 1996)).
the second prong:
[t]o show prejudice from ineffective assistance of counsel
where a plea offer has lapsed or been rejected because of
counsel's deficient performance, defendants must
demonstrate a reasonable probability they would have accepted
the earlier plea offer had they been afforded effective
assistance of counsel. Defendants must also demonstrate a
reasonable probability the plea would have been entered
without the prosecution canceling it or the trial court
refusing to accept it, if they had the authority to exercise
that discretion under state law.
Frye, 566 U.S. at 147. "If it is easier to
dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which . . . will often be so, that
course should be followed." Strickland, 466
U.S. at 697.
addition, the Second Circuit has referred to an objective
evidence rule relating to ineffective assistance of counsel
claims, United States v. Gordon, l56F.3d 376, 380-81
(2d Cir. 1998); however, it later elaborated that the better
reading of Gordon was not as propounding a strict
objective evidence rule, but rather that, while "in most
circumstances a convicted felon's self-serving testimony
is not likely to be credible, " "[t]his does not
relieve habeas courts of their responsibility to actually
make a credibility finding in each case, even absent
objective evidence." Purdy v. Zeldes, 337 F.3d
253, 259 (2d Cir. 2003).
the Strickland test, a petitioner carries a heavy
burden, " Burton v. Phillips, 303 F.App'x
954, 955 (2d Cir. 2008), as "[j]udicial scrutiny of
counsel's performance must be highly deferential, "
and "counsel is strongly presumed to have rendered
adequate assistance." Strickland, 466 U.S. at
689-90. The fact that Petitioner's attorney is deceased
does not change the Strickland analysis. See
Slevin v. United States, 71 F.Supp.2d 348 (S.D.N.Y.
1999) ("While unfortunate, because the death of a
petitioner's trial counsel is just as, if not more,
likely to prejudice the respondent, it does not relieve the
petitioner of his 'heavy burden' of proving
ineffective assistance."), declined to follow by
Purdy v. Zeldes, 337 F.3d at 259 on ground of use of
strict objective evidence rule; see also Hauck v.
Mills, 941 F.Supp. 683 (M.D. Tenn. 1996) (applying
Strickland standard despite death of the
petitioner's trial attorney).
hearing, the undersigned reserved on the evidentiary issues
raised by Petitioner's motion in limine,
allowing admission of the evidence in order to better decide
whether to consider the evidence in making an ultimate
decision. Specifically, Petitioner takes issue with portions
of the testimony of AUSA Guerra, the prosecutor on the
original criminal case against Petitioner, and Mr. Convissar,
the defense attorney of Petitioner's co-defendant,
Russell Bolden. Petitioner moved in limine to
preclude their testimony on the basis of hearsay.
(See Dkt. 252; Dkt. 253). The Court will address the
objection to each witness's testimony in turn.