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Hough v. United States

United States District Court, W.D. New York

May 25, 2017

DONOVAN A. HOUGH, Petitioner,


          Elizabeth A. Wolford United States District Judge


         In 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).[1]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, 8).

         On 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).

         As set 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.


         Petitioner 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).

         Petitioner 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.).

         Petitioner 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. 235).

         Presently at issue is Petitioner's motion to vacate under § 2255, [2] 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.


         Petitioner filed the instant petition to vacate under § 2255 on October 5, 2012. (Dkt. 210). The Government responded on October 31, 2013 (Dkt. 223), [3] 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).


         I. Standard

         The 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)).

         As it 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)).

         Under 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.

         In 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).

         "Under 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).

         II. Evidentiary Issues

         At the 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.

         A. AUSA ...

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