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Mitchell v. United States

United States District Court, W.D. New York

June 27, 2017

MICHAEL MITCHELL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          DECISION AND ORDER

          HON. RICHARD J. ARCARA, UNITED STATES DISTRICT JUDGE

         Petitioner Michael Mitchell seeks relief pursuant to 28 U.S.C. § 2255. For the reasons stated below, the petition is denied.

         BACKGROUND

         On January 23, 2015, Petitioner pled guilty to five counts of bank robbery and one count of attempted bank robbery, all in violation of 18 U.S.C. § 2113(a). Several months later, the Court sentenced Petitioner principally to concurrent sentences of 108 months' imprisonment on each count. Judgment was entered on May 26, 2015.[1]Petitioner did not file a notice of appeal.

         Petitioner now seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Docket No. 69. Petitioner makes two claims for relief. First, he argues that his attorney, Michael L. D'Amico, Esq., “failed to file a timely appeal after being instructed to do so.” Id. at 5. In response to this claim, the Court directed Mr. D'Amico to file an affidavit stating, among other things, whether Petitioner asked him to file a notice of appeal. Mr. D'Amico has filed an affidavit stating that Petitioner “[n]ever requested an appeal be filed by [Mr. D'Amico], either before or after sentencing.” Docket No. 85 ¶ 4.

         Petitioner's second claim for relief is that Mr. D'Amico “failed to negotiate a fair plea agreement.” Id. at 6. Specifically, Petitioner argues that Mr. D'Amico “failed to make a strategy and secure a fair plea bargain. Instead, counsel rushed the case and accepted to have his client plea out to a harsh prison term. Had counsel in fact, prepare a made defense [sic], the out come of this case would have been completely different and a much lesser sentence would have been rendered.” Id.

         DISCUSSION

         The Court considers each of Petitioner's arguments in turn.

         1. Alleged failure to file a notice of appeal

         “When a defendant claims that his attorney failed to file a requested notice of appeal, ” the district court must hold “a hearing . . . to determine whether the client requested the appeal.”[2] Campusano v. United States, 442 F.3d 770, 776 (2d Cir. 2006). But a district court also has “discretion to exercise [its] common sense” “to expand the record without conducting a full-blown testimonial hearing.” Chang v. United States, 250 F.3d 79, 85-86 (2d Cir. 2001) (quotation marks omitted). For instance, “when counsel has submitted a detailed affidavit” in response to his former client's claims of ineffective assistance, a court ordinarily need not conduct an evidentiary hearing. United States v. Hernandez-Uberia, No. 07 Cr. 378-03(SHS), 2010 WL 1948586, at *2 (S.D.N.Y. May 11, 2010). As noted, Petitioner's former counsel filed a detailed affidavit stating, among other things, that Petitioner did not ask counsel to file a notice of appeal, “either before or after sentencing.” Docket No. 85 ¶ 4.

         “Th[e] Court accepts counsel's affidavit over petitioner's bare assertions and concludes on this basis of this expanded record that the taking of live testimony is not necessary to evaluate petitioner's claims.” Id. See also Fermin v. United States, 859 F.Supp. 590, 602 (S.D.N.Y. 2012) (“[W]ith only [petitioner's] own conclusory allegations to support [his] claim, and without any indication that an evidentiary hearing or any other discovery would be fruitful, the Court denies [petitioner's] claim without a hearing.”) The Court therefore finds that Petitioner did not, as he claims, ask his attorney to file a notice of appeal. Petitioner's ineffective-assistance claim on that ground is therefore without merit.

         2. Alleged failure to negotiate a “fair” plea agreement

         Petitioner's second argument is that Mr. D'Amico was ineffective for failing to negotiate a “fair” plea agreement. Docket No. 69 at 6.

         This claim is foreclosed by the collateral-attack waiver in Petitioner's plea agreement. In his plea agreement, Petitioner “knowingly waive[d] the right to . . . collaterally attack any component of a sentence by the Court which falls within or is less than the sentencing range for imprisonment.” Docket No. 39 ¶ 28. The sentencing range contemplated by the plea agreement was 87 to 108 months' imprisonment. See Id. ΒΆ 17. At sentencing, the Court found that the applicable Sentencing Guideline range was the same as that contemplated by the ...


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