United States District Court, W.D. New York
DECISION AND ORDER
RICHARD J. ARCARA, UNITED STATES DISTRICT JUDGE
Michael Mitchell seeks relief pursuant to 28 U.S.C. §
2255. For the reasons stated below, the petition is denied.
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.Petitioner did not file a
notice of appeal.
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.
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.
Court considers each of Petitioner's arguments in turn.
Alleged failure to file a notice of appeal
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.” 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.
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.
Alleged failure to negotiate a “fair” plea
second argument is that Mr. D'Amico was ineffective for
failing to negotiate a “fair” plea agreement.
Docket No. 69 at 6.
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. ¶ 17. At
sentencing, the Court found that the applicable Sentencing
Guideline range was the same as that contemplated by the ...