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Orbe v. United States

United States District Court, S.D. New York

July 31, 2017

JONATHAN ORBE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. UNITED STATES OF AMERICA
v.
JONATHAN ORBE, Defendant.

          OPINION AND ORDER

          RICHARD J. SULLIVAN UNITED STATES DISTRICT JUDGE

         Jonathan Orbe ("Orbe"), originally proceeding pro se but now represented by appointed counsel, brings this petition to vacate his sentence under 28 U.S.C. § 2255 (the "Petition" or "Pet."). Orbe contends that his retained trial counsel rendered ineffective assistance by failing to file a requested notice of appeal. For the reasons set forth below, the Petition is denied.

         I. Background[1]

         Orbe was arrested on January 8, 2015 for his participation in a tax fraud scheme. (See Doc. Nos. 1, 18, 20.) On September 8, 2015, he pleaded guilty pursuant to a plea agreement to one count of conspiracy to commit wire fraud and two counts of subscribing to a false tax return in violation of 18 U.S.C. § 1349 and 26 U.S.C. § 7206(1). (See Doc. No. 69 ("Plea Tr.") 54:5-24; Doc. No. 164, Ex. A ("Plea Agreement").) Orbe's plea agreement provided, among other things, that he would not appeal a sentence of 51 months' imprisonment or less. (Plea Agreement at 5.)

         On January 28, 2016, the Court sentenced Orbe to a term of 60 months' imprisonment. (Doc. No. 123.) After pronouncing sentence, the Court advised Orbe that he had a right to appeal his sentence by filing a notice of appeal within fourteen days of the final judgment. (Doc. No. 149 ("Sent. Tr.") 68:6-13.) See Fed. R. App. P. 4. The Court added that the deadline to file a notice of appeal was "strict" and instructed Orbe to talk to his retained counsel, Murray Richman ("Richman"), if he wished to proceed with an appeal. (Sent. Tr. 68:13 15.) Orbe's right to appeal expired on February 11, 2016; he never filed a notice of appeal.

         1. Orbe's Petition and the Parties' Conflicting Affidavits

         On October 5, 2016, Orbe, proceeding pro se, filed this Petition, asserting a claim for ineffective assistance of counsel on the ground that Richman failed to file a notice of appeal despite Orbe's request that he do so. (Doc. No. 161 ("Pet.").) According to the Petition, Orbe asked Richman to file a notice of appeal twice: once on the day of sentencing and again about two weeks later. (Pet. at 14.) The memorandum of law accompanying the Petition requested an evidentiary hearing to determine the veracity of Orbe's account. (No. 16-cv-7971, Doc. No. 2 ("Mem.") at 3-4.) See Campusano v. United States, 442 F.3d 770, 776 (2d Cir. 2006) (holding that "[w]hen a defendant claims that his attorney failed to file a requested notice of appeal, " the first step is "a hearing before the district court pursuant to § 2255 to determine whether the client requested the appeal").

         The government responded to Orbe's Petition on November 17, 2016. (Doc. No. 164 (“Opp'n").) Along with a memorandum of law, the government submitted a sworn affidavit from Richman, which stated that although he spoke with Orbe about his right to appeal, Orbe "did not tell [him] to go forward with the appeal." (Doc. No. 164, Ex. C.) Richman's affidavit added that it was his "recollection" that Orbe "did not come to see [him] after sentencing." (Id.) In light of this affidavit, the government opposed Orbe's request for an evidentiary hearing, arguing that Orbe's bare-bones assertions about the conversations he allegedly had with Richman did not betoken a genuine factual dispute. (Opp'n at 7-9 (citing Fardella v. United States, No. 13-cv-5373 (LTS), 2014 WL 3294876, at *3 (S.D.N.Y. July 8, 2014) (hearing not warranted where, "[i]n light of [defense counsel's] sworn affidavit, the Court finds [the defendant's] self-serving, conclusory allegation insufficient to establish a plausible claim of ineffective assistance of counsel.")).)

         Orbe's reply and accompanying sworn affidavit, filed on January 17, 2017, provided more detail about his alleged conversations with Richman. (Doc. No. 168.) In particular, Orbe averred that Richman told him to "come to [Richman's] office over the weekend [after the sentencing] to talk [about] the fees to file the appeal, " that Orbe visited Richman in his office on February 1, 2016 (a Monday), and that Richman "advised [Orbe] that he would file a notice of appeal on his behalf, but [would] not do the appeal" himself. (Id. at 8-10.) Instead, Richman referred Orbe to Levitt and Kaizer, a firm that specializes in appeals. (Id. at 10.) Orbe visited the firm the following day, but was unhappy to learn that appealing his sentence would cost $30, 000. (Id.) According to his affidavit, Orbe returned to Richman's office a day later to complain about the cost of the appeal, and Richman told him he "shouldn't be upset" or worry about the two-week appeal deadline because Richman had already filed a notice of appeal on his behalf. (Id. at 10, 3.)

         Because the parties submitted conflicting and fairly detailed factual accounts of the conversations between Orbe and Richman during the two weeks after Orbe's sentencing, the Court ordered the parties to appear for an evidentiary hearing to determine whether Orbe in fact instructed Richman to file a notice of appeal. (Doc. No. 169.) See Campusano, 442 F.3d 770; 28 U.S.C. § 2255 (''Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.”). Orbe was assigned court-appointed counsel on February 27, 2017 (Doc. No. 172), and the hearing took place on April 20, 2017.

         2. The Hearing

         Despite having requested the evidentiary hearing, Orbe chose not to testify. (No. 16-cv-7971, Doc. No. 23 ("Tr.") 4:21-23.) Richman alone took the stand and testified that Orbe never told him to file a notice of appeal. (Tr. 10:25-11:2.) More specifically, he testified as follows: immediately after being sentenced, Orbe was "very upset" and "sweating profusely." (Tr. 8:1-3.) Richman reminded Orbe that he had a right to appeal his sentence, to which Orbe responded that he "[couldn't] think right now" and would "give [Richman] a call" later. (Tr. 8:5-6.) Richman told Orbe to give him a call on Monday, February 1, 2016. (Tr. 8:6-7.) On Monday, Richman spoke with Orbe either on the phone or in person - he could not remember which - and they discussed the possibility of Orbe's appealing his sentence. (Tr. 8:22-9:12.) Richman recalled that Orbe was assessing "whether he wanted to spend any more money for the appeal" and the likelihood that his sentence might be reduced by a few months. (Tr. 9:15 18.) Richman told Orbe that it was "up to [him]" to decide what he wanted to do, recommended that he consult Levitt and Kaizer "to explore the possibility of appeal, " and told him to let Richman know about his decision. (Tr. 9:1-2, 17:23, 9:18-19.) Orbe and Richman spoke a few days later, and Orbe said he would "let [Richman] know before the end of the week" what he wanted to do. (Tr. 9:24-10:4.) Richman never heard back from Orbe. (Tr. 10:3-4.)

         On cross examination, Richman testified that he does not typically handle appeals, that his client agreements indicate he does not handle appeals, and that, in the course of 53 years of practice in federal court, he has filed only two appeals and perhaps five notices of appeal. (Tr. 15:1-18.) He added that for clients who are considering whether to appeal, he often refers them to Levitt and Kaizer, a firm he respects. (Tr. 17:4-23.)

         After Richman testified, the Court asked once more if Orbe wished to take the stand, since the purpose of the hearing - which Orbe requested - was to allow the Court to make credibility findings with respect to both Richman and Orbe, who had submitted affidavits with "completely inconsistent" factual allegations. (Tr. 28:13-16, 31:12-19.) When Orbe again demurred, the Court inquired whether he was conceding Richman's credibility and the accuracy of his testimony. (Tr. 31:15-19.) Through ...


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