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09-3871-pr

Raysor v. United States

1 UNITED STATES COURT OF APPEALS

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3 FOR THE SECOND CIRCUIT

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5 August Term, 2010

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7 (Argued: November 23, 2010 Decided: July 27, 2011)

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9 Docket No. 09-3871-pr

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13 UMEME RAYSOR,

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15 Petitioner-Appellant,

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17 v.

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19 UNITED STATES OF AMERICA,

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21 Respondent-Appellee, 

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25 B e f o r e: WINTER, CALABRESI, and KATZMANN, Circuit Judges.

26

27 Appeal from a denial by the United States District Court for

28 the Eastern District of New York (Sandra Townes, Judge) of a

29 Section 2255 motion to vacate a sentence due to counsel’s failure

30 to advise appellant with regard to a plea offer by the

31 government. We vacate and remand for an evidentiary hearing on

32 the ineffective assistance of counsel claim. 

33 SALLY WASSERMAN, New York, New York, for

34 Petitioner-Appellant.

35

36 WILLIAM D. SARRAT, Assistant United

37 States Attorney, of counsel (Jo Ann M.

38 Navickas, Assistant United States

39 Attorney, of counsel, on the brief),
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1 Loretta E. Lynch, United States

2 Attorney, United States Attorney’s

3 Office for the Eastern District of New

4 York, Brooklyn, New York, for

5 Respondent-Appellee.

6

7 WINTER, Circuit Judge: 

8 Umeme Raysor appeals from Judge Townes’s denial of his

9 petition for a writ of habeas corpus. Raysor v. United States,

10 No. 03-CV-5418, 2009 WL 2707307 (E.D.N.Y. Aug. 26, 2009). The

11 only issue on appeal is a claim of ineffective assistance of

12 counsel. Appellant alleges that trial counsel failed to advise

13 him as to whether appellant should accept or reject a particular

14 plea offer by the government. The district court concluded that

15 appellant failed to establish that he was actually prejudiced by

16 counsel’s alleged ineffectiveness and denied the motion without

17 holding a full evidentiary hearing. 

18 We vacate and remand.

19 BACKGROUND

20 From approximately 1985 to 1996, appellant and his brother

21 ran a violent street gang that distributed large quantities of

22 drugs in New York and Virginia. On December 10, 1996, after

23 appellant was indicted, the government sent a letter to his

24 original counsel memorializing a plea offer. The offer involved

25 a government recommendation of 29 years’ incarceration. 

26 According to the letter, the plea offer would expire on December

27 20, 1996, but the offer was briefly extended until after a
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1 meeting between appellant’s original counsel and the government

2 on February 3, 1997. Appellant rejected the government’s offer,

3 and no additional plea offers were made. 

4 On February 27, 1997, the government moved to disqualify

5 original counsel on the basis of a conflict of interest resulting

6 from original counsel’s prior representation of a co-defendant. 

7 On April 4, 1997, the motion was granted.

8 Appellant’s trial lasted approximately twelve weeks. The

9 government’s case consisted primarily of accomplice testimony;

10 nine former gang members testified against appellant, eight of

11 whom pled guilty prior to trial. The jury found appellant guilty

12 on four counts: (i) racketeering, in violation of 18 U.S.C. §

13 1962(c); (ii) racketeering conspiracy, in violation of 18 U.S.C.

14 § 1962(d); (iii) operating a criminal enterprise, in violation of

15 21 U.S.C. § 848; and (iv) conspiracy to distribute and to possess

16 with the intent to distribute cocaine base, in violation of 21

17 U.S.C. § 846. Appellant was acquitted on eight counts, and,

18 despite the conviction on the racketeering count, the jury found

19 that 10 of the 13 predicate acts had not been proven. However,

20 the jury did find appellant guilty of a predicate act of murder. 

21 On August 13, 1999, appellant was sentenced to multiple life

22 terms. 

23 On direct appeal, appellant raised numerous claims of error,

24 none of which are pertinent to this appeal. After remanding for
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1 supplementation of the record, United States v. Raysor, 9 F.

2 App’x 33 (2d Cir. 2001), we vacated the conviction for conspiracy

3 to distribute narcotics under 21 U.S.C. § 846, but affirmed the

4 district court’s judgment in all other respects. United States

5 v. Raysor, No. 99-1503, 2001 WL 36037731 (2d Cir. Apr. 29, 2002). 

6 On November 4, 2002, the Supreme Court denied appellant’s

7 petition for a writ of certiorari. Raysor v. United States, 537

8 U.S. 1012 (2002).

9 On October 20, 2003, appellant filed the instant petition

10 pro se pursuant to 28 U.S.C. § 2255, asserting, inter alia,

11 ineffective assistance of counsel. He alleged that he had been

12 deprived of adequate assistance of counsel because his original

13 counsel “failed to discuss with Raysor the advisability of

14 whether to accept or reject the government’s plea offer.” App.

15 51. Further, he submitted an affidavit stating that his original

16 counsel: 

17 never conveyed to this affiant his ultimate

18 opinion as to the wisdom of the plea nor did

19 he give any suggestions as to how to deal

20 with the government’s plea offer. Affiant

21 asserts that if properly advised by counsel,

22 he would have accepted the plea bargain

23 instead of proceeding to trial.

24 Id. at 67. The district court also had before it original

25 counsel’s affirmation, submitted by the government, that “I

26 conveyed the government offer of 29 years to the defendant. The

27 defendant refused the offer.” Id. at 76. The district court
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1 dismissed the petition after concluding that, even if original

2 counsel had provided ineffective assistance, appellant had failed

3 to establish a reasonable probability that he would have accepted

4 the plea. Raysor, 2009 WL 2707307, at *2.

5 The district court denied a certificate of appealability. 

6 Id. at *6. On February 19, 2010, we granted appellant a

7 certificate of appealability to review whether the district court

8 erred in not conducting an evidentiary hearing. 

9 DISCUSSION

10 Section 2255 states that “[u]nless the motion and the files

11 and records of the case conclusively show that the prisoner is

12 entitled to no relief, the court shall . . . grant a prompt

13 hearing thereon, determine the issues and make findings of fact

14 and conclusions of law with respect thereto.” 28 U.S.C. §

15 2255(b). 

16 A defendant seeking a hearing on an ineffective assistance

17 of counsel claim “need establish only that he has a ‘plausible’

18 claim of ineffective assistance of counsel, not that he will

19 necessarily succeed on the claim.” Puglisi v. United States, 586

20 F.3d 209, 213 (2d Cir. 2009) (internal quotation marks omitted). 

21 Moreover, “[t]he procedure for determining whether a hearing is

22 necessary is in part analogous to . . . a summary judgment

23 proceeding. . . . If material facts are in dispute, a hearing

24 should usually be held, and relevant findings of facts made.” 

25 Id.
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1 “[O]ur standard of review with respect to a district court’s

2 decision to hold a hearing,” however, “differs from summary

3 judgment’s general de novo review.” Id. at 215. We review a

4 district court’s denial of an evidentiary hearing for clear error

5 as to issues of fact and de novo as to issues of law. Id.

6 It is within the district court’s discretion to determine

7 the scope and nature of a hearing. Chang v. United States, 250

8 F.3d 79, 85-86 (2d Cir. 2001). Thus, when the judge who tried

9 the underlying proceedings also presides over a § 2255 motion, a

10 full-blown evidentiary hearing may not be necessary. See

11 Puglisi, 586 F.3d at 214-15. Although “[o]ur precedent

12 disapproves of summary dismissal of petitions where factual

13 issues exist[], . . . it permits a ‘middle road’ of deciding

14 disputed facts on the basis of written submissions.” Pham v.

15 United States, 317 F.3d 178, 184 (2d Cir. 2003) (citing Chang,

16 250 F.3d at 86).

17 For example, in Chang, the district court did not hold a

18 full-blown testimonial hearing where the petitioner had alleged

19 ineffective assistance for counsel’s refusal to let petitioner

20 testify on his own behalf. 250 F.3d at 81-82. The district

21 court considered the petitioner’s affidavit’s blanket statements

22 that counsel had prohibited him from testifying as well as

23 counsel’s “detailed affidavit . . . credibly describing the

24 circumstances concerning appellant’s failure to testify.” Id. at

25 85. It denied the petition and the request for an evidentiary
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1 hearing because counsel’s affidavit “belied [petitioner’s]

2 claim." Id. at 82 (internal alteration omitted). We affirmed

3 the denial of the evidentiary hearing and concluded that a full4 fledged evidentiary hearing was unnecessary to flesh out the

5 petitioner’s § 2255 petition: 

6 It was, therefore, within the district

7 court’s discretion to choose a middle road

8 that avoided the delay, the needless

9 expenditure of judicial resources, the burden

10 on trial counsel and the government, and

11 perhaps the encouragement of other prisoners

12 to make similar baseless claims that would

13 have resulted from a full testimonial

14 hearing. The district court reasonably

15 decided that the testimony of Chang and his

16 trial counsel would add little or nothing to

17 the written submissions. . . . [W]e cannot

18 say that it was an abuse of discretion on the

19 part of the district court to conclude that

20 such a hearing would not offer any reasonable

21 chance of altering its view of the facts.

22

23 Id. at 86. 

24 Turning to the merits, to be entitled to relief on a claim

25 of counsel’s ineffective assistance, a “defendant must show that

26 counsel’s performance was deficient” and “that the deficient

27 performance prejudiced the defense.” Strickland v. Washington,

28 466 U.S. 668, 687 (1984). The performance prong requires a

29 showing that defense counsel’s representation “fell below an

30 objective standard of reasonableness.” Id. at 688. When

31 analyzing counsel’s alleged deficiency, a court must “indulge a

32 strong presumption that counsel’s conduct falls within the wide

33 range of reasonable professional assistance.” Id. at 689. 
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1 Moreover, “[t]he reasonableness of counsel’s performance is to be

2 evaluated from counsel’s perspective at the time of the alleged

3 error and in light of all the circumstances.” Kimmelman v.

4 Morrison, 477 U.S. 365, 381 (1986). As to prejudice, a defendant

5 must demonstrate “a reasonable probability that, but for

6 counsel’s unprofessional errors, the result of the proceeding

7 would have been different.” Strickland, 466 U.S. at 694.

8 The district court never addressed whether counsel’s

9 performance fell below an objective standard of reasonableness

10 under the first Strickland prong, but denied relief based on

11 appellant’s failure to show prejudice as the second prong

12 requires. See Raysor, 2009 WL 2707307, at *2 (“Even assuming, as

13 Raysor argues, that defense counsel failed to offer advice

14 regarding the desirability of the twenty-nine year plea offer,

15 Raysor has not established a reasonable probability that he would

16 have accepted the plea.”).

17 To show the requisite prejudice in the instant case,

18 appellant must demonstrate a reasonable probability that but for

19 counsel’s deficient performance, he would have pled guilty

20 instead of going to trial. See Purdy v. United States, 208 F.3d

21 41, 49 (2d Cir. 2000) (to show prejudice under Strickland,

22 defendant “must demonstrate a reasonable probability that but for

23 [defense counsel’s] deficiencies, [the defendant] would have pled

24 guilty”); Cullen v. United States, 194 F.3d 401, 405 (2d Cir.

25 1999) (evaluating the “likelihood that [the defendant] would have
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1 accepted the plea bargain if he had been fully informed of its

2 terms and accurately advised of the likely sentencing ranges

3 under the plea bargain and upon conviction after trial”). 

4 Appellant’s burden was to proffer a prima facie case that,

5 but for counsel’s improper advice, the petitioner would have

6 accepted the plea offer. Puglisi, 586 F.3d at 215. Prima facie

7 evidence may include a petitioner’s own statement, as was offered

8 here; however, in order for the statement to be sufficiently

9 credible to justify a full hearing, it must be accompanied by

10 some “objective evidence,” such as a significant sentencing

11 disparity, that supports an inference that the petitioner would

12 have accepted the proposed plea offer if properly advised. Id.

13 at 215-16; see also United States v. Gordon, 156 F.3d 376, 381

14 (2d Cir. 1998) (finding that “such a disparity [between the

15 sentence imposed and the sentence that effective counsel would

16 have obtained for the defendant] provides sufficient objective

17 evidence -- when combined with a petitioner’s statement

18 concerning his intentions -- to support a finding of prejudice

19 under Strickland”). 

20 The government contends that appellant’s post-conviction

21 assertion that, with the benefit of competent legal advice, he

22 would have accepted the government’s plea offer, is insufficient

23 by itself to establish a reasonable probability that appellant

24 would have pled guilty. The government also argues that the
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1 district court acted within its discretion in denying appellant’s

2 claim without holding a hearing. We disagree and conclude that

3 an evidentiary hearing is necessary to flesh out the sparse

4 record before us. 

5 Appellant has asserted under oath that he would have

6 accepted the plea offer if properly advised by counsel. This

7 distinguishes Puglisi, where the petitioner failed to provide

8 such a personal sworn statement. See Puglisi, 586 F.3d at 216-17

9 (“We believe that a statement regarding intent must be directly

10 attributable to the habeas petitioner, whether it be through

11 sworn testimony in the main proceeding or a sworn affidavit in

12 support of the motion.”). 

13 Moreover, the disparity between the sentence offered in the

14 plea agreement -- 29 years -- and the sentence he actually

15 received -- multiple life terms -- was substantial. Along with

16 appellant’s testimony, it may provide enough “objective evidence”

17 to support the inference appellant would have accepted the plea

18 offer if properly advised. See, e.g., id. at 216; Pham, 317 F.3d

19 at 182-83; Gordon, 156 F.3d at 380-81. Given appellant’s age of

20 25 at the time of the plea offer, a guilty plea would have led to

21 his release during his early fifties. The difference between

22 this and life imprisonment is sufficient to satisfy the prejudice

23 requirement. See, e.g., Pham, 317 F.3d at 182-83 (remanding for

24 an evidentiary hearing on ineffective assistance because
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1 prejudice could be found based on the “undisputed sentencing

2 disparity of at least 113 months between the high end of the

3 government plea offer [of 78 to 97 months] and Pham’s sentence

4 [of 210 months] after a trial conviction”); Gordon, 156 F.3d at

5 381 (finding the disparity between the 84 months offered in the

6 plea agreement and the actual sentencing range of 262 to 327

7 months as “sufficient objective evidence . . . to support a

8 finding of prejudice under Strickland”); see also Mask v.

9 McGinnis, 233 F.3d 132, 142 (2d Cir. 2000) (“[A] large disparity

10 between the defendant’s sentence exposure following a trial and

11 his potential exposure had a plea offer been made . . . . coupled

12 with [defendant’s] statements that he would have accepted a

13 reasonable offer as credited by the district court, satisfies the

14 prejudice requirement.”). Indeed, the government concedes in its

15 brief that “there is a potentially significant disparity between

16 the offered 29-year sentence and the life sentence Raysor

17 received.” 

18 With regard to the reasonableness of original counsel’s

19 performance, it is clear that failure to advise a client as to a

20 plea offer is unreasonable performance. Cullen, 194 F.3d at 404

21 (“failure to give any advice concerning the acceptance of a plea

22 bargain [falls] below the standard of reasonable representation”)

23 (citing Boria v. Keene, 99 F.3d 492, 496-97 (2d Cir. 1996)). 

24 Counsel must advise a client regarding a plea offer, although

25 “counsel’s choice of how to do so will be guided by many factors,
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1 including the duty to avoid coercing a plea from an unwilling

2 client.” Purdy, 208 F.3d at 47.

3 The statement by original counsel, quoted supra, was only

4 that he conveyed the plea offer but appellant rejected it. This

5 statement is hardly equal to the “detailed affidavit from trial

6 counsel credibly describing the circumstances concerning

7 appellant’s failure to testify” that we found sufficient to deny

8 a full evidentiary hearing and to support dismissal of the § 2255

9 petition in Chang, 250 F.3d at 85. In particular, we do not know

10 what, if anything, was communicated to appellant regarding the

11 likelihood of a substantially more severe sentence as a result of

12 going to trial, what original counsel believed as to the plea

13 offer, or why original counsel did whatever he did. There is,

14 moreover, the fact that the court soon after disqualified

15 original counsel for a conflict of interest.

16 We acknowledge that the issues are close. Numerous

17 questions of fact or mixed fact and law must be resolved in

18 appellant’s favor if he is to prevail. These include: (i) what

19 would have been reasonable legal advice in the circumstances;

20 (ii) whether original counsel gave such advice; (iii) what the

21 considered basis for original counsel’s actions was; and (iv)

22 whether but for counsel’s alleged ineffectiveness, appellant

23 would have accepted the government’s plea offer and pled guilty. 

24 There is sufficient chance of success, however, in our view to

25 justify a full hearing on remand. 
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1 CONCLUSION

2 For the foregoing reasons, the judgment is vacated and the

3 matter is remanded for further proceedings in accordance with

4 this opinion.

5