1 09-3871-pr Raysor v. United States
UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4 August Term, 2010 5 6 (Argued: November 23, 2010 Decided: July 27, 2011) 7 8 Docket No. 09-3871-pr 9 10

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 11 12 UMEME RAYSOR, 13 14 Petitioner-Appellant , 15 16 v. 17 18 UNITED STATES OF AMERICA, 19 20 Respondent-Appellee , 21 22

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 23 24 B e f o r e: WINTER, CALABRESI, and KATZMANN, Circuit Judges

. 25 26 Appeal from a denial by the United States District Court for 27 the Eastern District of New York (Sandra Townes, Judge ) of a 28 Section 2255 motion to vacate a sentence due to counsel’s failure 29 to advise appellant with regard to a plea offer by the 30 government. We vacate and remand for an evidentiary hearing on 31 the ineffective assistance of counsel claim. 32 SALLY WASSERMAN, New York, New York, for 33 Petitioner-Appellant

. 34 35 WILLIAM D. SARRAT, Assistant United 36 States Attorney, ofcounsel(Jo Ann M. 37 Navickas, Assistant United States 38 Attorney, ofcounsel , on the brief ), 392 Loretta E. Lynch, United States 1 Attorney, United States Attorney’s 2 Office for the Eastern District of New 3 York, Brooklyn, New York, for 4 Respondent-Appellee

. 5 6 WINTER, Circuit Judge : 7 Umeme Raysor appeals from Judge Townes’s denial of his 8 petition for a writ of habeas corpus. Raysor v. United States , 9 No. 03-CV-5418, 2009 WL 2707307 (E.D.N.Y. Aug. 26, 2009). The 10 only issue on appeal is a claim of ineffective assistance of 11 counsel. Appellant alleges that trial counsel failed to advise 12 him as to whether appellant should accept or reject a particular 13 plea offer by the government. The district court concluded that 14 appellant failed to establish that he was actually prejudiced by 15 counsel’s alleged ineffectiveness and denied the motion without 16 holding a full evidentiary hearing. 17 We vacate and remand. 18
BACKGROUND 19 From approximately 1985 to 1996, appellant and his brother 20 ran a violent street gang that distributed large quantities of 21 drugs in New York and Virginia. On December 10, 1996, after 22 appellant was indicted, the government sent a letter to his 23 original counsel memorializing a plea offer. The offer involved 24 a government recommendation of 29 years’ incarceration. 25 According to the letter, the plea offer would expire on December 26 20, 1996, but the offer was briefly extended until after a 273 meeting between appellant’s original counsel and the government 1 on February 3, 1997. Appellant rejected the government’s offer, 2 and no additional plea offers were made. 3 On February 27, 1997, the government moved to disqualify 4 original counsel on the basis of a conflict of interest resulting 5 from original counsel’s prior representation of a co-defendant. 6 On April 4, 1997, the motion was granted**.** 7 Appellant’s trial lasted approximately twelve weeks. The 8 government’s case consisted primarily of accomplice testimony; 9 nine former gang members testified against appellant, eight of 10 whom pled guilty prior to trial. The jury found appellant guilty 11 on four counts: (i) racketeering, in violation of 18 U.S.C. § 12 1962(c); (ii) racketeering conspiracy, in violation of 18 U.S.C. 13 § 1962(d); (iii) operating a criminal enterprise, in violation of 14 21 U.S.C. § 848; and (iv) conspiracy to distribute and to possess 15 with the intent to distribute cocaine base, in violation of 21 16 U.S.C. § 846. Appellant was acquitted on eight counts, and, 17 despite the conviction on the racketeering count, the jury found 18 that 10 of the 13 predicate acts had not been proven. However, 19 the jury did find appellant guilty of a predicate act of murder. 20 On August 13, 1999, appellant was sentenced to multiple life 21

terms. 22 On direct appeal, appellant raised numerous claims of error, 23 none of which are pertinent to this appeal. After remanding for 244 supplementation of the record, United States v. Raysor , 9 F. 1 App’x 33 (2d Cir. 2001), we vacated the conviction for conspiracy 2 to distribute narcotics under 21 U.S.C. § 846, but affirmed the 3 district court’s judgment in all other respects. United States 4 v. Raysor , No. 99-1503, 2001 WL 36037731 (2d Cir. Apr. 29, 2002). 5 On November 4, 2002, the Supreme Court denied appellant’s 6 petition for a writ of certiorari. Raysor v. United States , 537 7 U.S. 1012 (2002). 8 On October 20, 2003, appellant filed the instant petition 9

prosepursuant to 28 U.S.C. § 2255, asserting, interalia , 10 ineffective assistance of counsel. He alleged that he had been 11 deprived of adequate assistance of counsel because his original 12 counsel “failed to discuss with Raysor the advisability of 13 whether to accept or reject the government’s plea offer.” App. 14 51. Further, he submitted an affidavit stating that his original 15 counsel: 16 never conveyed to this affiant his ultimate 17 opinion as to the wisdom of the plea nor did 18 he give any suggestions as to how to deal 19 with the government’s plea offer. Affiant 20 asserts that if properly advised by counsel, 21 he would have accepted the plea bargain 22 instead of proceeding to trial. 23 Id. at 67. The district court also had before it original 24 counsel’s affirmation, submitted by the government, that “I 25 conveyed the government offer of 29 years to the defendant. The 26 defendant refused the offer.” Id. at 76. The district court 275 dismissed the petition after concluding that, even if original 1 counsel had provided ineffective assistance, appellant had failed 2 to establish a reasonable probability that he would have accepted 3 the plea. Raysor , 2009 WL 2707307, at *2. 4 The district court denied a certificate of appealability. 5 Id. at *6. On February 19, 2010, we granted appellant a 6 certificate of appealability to review whether the district court 7 erred in not conducting an evidentiary hearing. 8
DISCUSSION 9 Section 2255 states that “[u]nless the motion and the files 10 and records of the case conclusively show that the prisoner is 11 entitled to no relief, the court shall . . . grant a prompt 12 hearing thereon, determine the issues and make findings of fact 13 and conclusions of law with respect thereto.” 28 U.S.C. § 14 2255(b). 15 A defendant seeking a hearing on an ineffective assistance 16 of counsel claim “need establish only that he has a ‘plausible’ 17 claim of ineffective assistance of counsel, not that he will 18 necessarily succeed on the claim.” Puglisi v. United States , 586 19 F.3d 209, 213 (2d Cir. 2009) (internal quotation marks omitted). 20 Moreover, “[t]he procedure for determining whether a hearing is 21 necessary is in part analogous to . . . a summary judgment 22 proceeding. . . . If material facts are in dispute, a hearing 23 should usually be held, and relevant findings of facts made.” 24 Id. 256 “[O]ur standard of review with respect to a district court’s 1 decision to hold a hearing,” however, “differs from summary 2 judgment’s general denovoreview.” Id. at 215. We review a 3 district court’s denial of an evidentiary hearing for clear error 4 as to issues of fact and denovoas to issues of law. Id. 5 It is within the district court’s discretion to determine 6 the scope and nature of a hearing. Chang v. United States , 250 7 F.3d 79, 85-86 (2d Cir. 2001). Thus, when the judge who tried 8 the underlying proceedings also presides over a § 2255 motion, a 9 full-blown evidentiary hearing may not be necessary. See 10 Puglisi , 586 F.3d at 214-15. Although “[o]ur precedent 11 disapproves of summary dismissal of petitions where factual 12 issues exist[], . . . it permits a ‘middle road’ of deciding 13 disputed facts on the basis of written submissions.” Pham v. 14 United States , 317 F.3d 178, 184 (2d Cir. 2003) (citing Chang , 15 250 F.3d at 86). 16 For example, in Chang , the district court did not hold a 17 full-blown testimonial hearing where the petitioner had alleged 18 ineffective assistance for counsel’s refusal to let petitioner 19 testify on his own behalf. 250 F.3d at 81-82. The district 20 court considered the petitioner’s affidavit’s blanket statements 21 that counsel had prohibited him from testifying as well as 22 counsel’s “detailed affidavit . . . credibly describing the 23 circumstances concerning appellant’s failure to testify.” Id. at 24 85. It denied the petition and the request for an evidentiary 257 hearing because counsel’s affidavit “belied [petitioner’s] 1 claim." Id. at 82 (internal alteration omitted). We affirmed 2 the denial of the evidentiary hearing and concluded that a full3 fledged evidentiary hearing was unnecessary to flesh out the 4 petitioner’s § 2255 petition: 5 It was, therefore, within the district 6 court’s discretion to choose a middle road 7 that avoided the delay, the needless 8 expenditure of judicial resources, the burden 9 on trial counsel and the government, and 10 perhaps the encouragement of other prisoners 11 to make similar baseless claims that would 12 have resulted from a full testimonial 13 hearing. The district court reasonably 14 decided that the testimony of Chang and his 15 trial counsel would add little or nothing to 16 the written submissions. . . . [W]e cannot 17 say that it was an abuse of discretion on the 18 part of the district court to conclude that 19 such a hearing would not offer any reasonable 20 chance of altering its view of the facts. 21 22 Id. at 86. 23 Turning to the merits, to be entitled to relief on a claim 24 of counsel’s ineffective assistance, a “defendant must show that 25 counsel’s performance was deficient” and “that the deficient 26 performance prejudiced the defense.” Strickland v. Washington , 27 466 U.S. 668, 687 (1984). The performance prong requires a 28 showing that defense counsel’s representation “fell below an 29 objective standard of reasonableness.” Id. at 688. When 30 analyzing counsel’s alleged deficiency, a court must “indulge a 31 strong presumption that counsel’s conduct falls within the wide 32 range of reasonable professional assistance.” Id. at 689. 338 Moreover, “[t]he reasonableness of counsel’s performance is to be 1 evaluated from counsel’s perspective at the time of the alleged 2 error and in light of all the circumstances.” Kimmelman v. 3 Morrison , 477 U.S. 365, 381 (1986). As to prejudice, a defendant 4 must demonstrate “a reasonable probability that, but for 5 counsel’s unprofessional errors, the result of the proceeding 6 would have been different.” Strickland , 466 U.S. at 694. 7 The district court never addressed whether counsel’s 8 performance fell below an objective standard of reasonableness 9 under the first Stricklandprong, but denied relief based on 10 appellant’s failure to show prejudice as the second prong 11 requires. SeeRaysor , 2009 WL 2707307, at *2 (“Even assuming, as 12 Raysor argues, that defense counsel failed to offer advice 13 regarding the desirability of the twenty-nine year plea offer, 14 Raysor has not established a reasonable probability that he would 15 have accepted the plea.”). 16 To show the requisite prejudice in the instant case, 17 appellant must demonstrate a reasonable probability that but for 18 counsel’s deficient performance, he would have pled guilty 19 instead of going to trial. SeePurdy v. United States , 208 F.3d 20 41, 49 (2d Cir. 2000) (to show prejudice under Strickland , 21 defendant “must demonstrate a reasonable probability that but for 22 [defense counsel’s] deficiencies, [the defendant] would have pled 23 guilty”); Cullen v. United States , 194 F.3d 401, 405 (2d Cir. 24 1999) (evaluating the “likelihood that [the defendant] would have 259 accepted the plea bargain if he had been fully informed of its 1 terms and accurately advised of the likely sentencing ranges 2 under the plea bargain and upon conviction after trial”). 3 Appellant’s burden was to proffer a primafaciecase that, 4 but for counsel’s improper advice, the petitioner would have 5 accepted the plea offer. Puglisi , 586 F.3d at 215. Primafacie 6 evidence may include a petitioner’s own statement, as was offered 7 here; however, in order for the statement to be sufficiently 8 credible to justify a full hearing, it must be accompanied by 9 some “objective evidence,” such as a significant sentencing 10 disparity, that supports an inference that the petitioner would 11 have accepted the proposed plea offer if properly advised. Id. 12 at 215-16; seealsoUnited States v. Gordon , 156 F.3d 376, 381 13 (2d Cir. 1998) (finding that “such a disparity [between the 14 sentence imposed and the sentence that effective counsel would 15 have obtained for the defendant] provides sufficient objective 16 evidence -- when combined with a petitioner’s statement 17 concerning his intentions -- to support a finding of prejudice 18 under Strickland”). 19 The government contends that appellant’s post-conviction 20 assertion that, with the benefit of competent legal advice, he 21 would have accepted the government’s plea offer, is insufficient 22 by itself to establish a reasonable probability that appellant 23 would have pled guilty. The government also argues that the 2410 district court acted within its discretion in denying appellant’s 1 claim without holding a hearing. We disagree and conclude that 2 an evidentiary hearing is necessary to flesh out the sparse 3 record before us. 4 Appellant has asserted under oath that he would have 5 accepted the plea offer if properly advised by counsel. This 6 distinguishes Puglisi , where the petitioner failed to provide 7 such a personal sworn statement. SeePuglisi , 586 F.3d at 216-17 8 (“We believe that a statement regarding intent must be directly 9 attributable to the habeas petitioner, whether it be through 10 sworn testimony in the main proceeding or a sworn affidavit in 11 support of the motion.”). 12 Moreover, the disparity between the sentence offered in the 13 plea agreement -- 29 years -- and the sentence he actually 14 received -- multiple life terms -- was substantial. Along with 15 appellant’s testimony, it may provide enough “objective evidence” 16 to support the inference appellant would have accepted the plea 17 offer if properly advised. See,e.g. , id. at 216; Pham, 317 F.3d 18 at 182-83; Gordon , 156 F.3d at 380-81. Given appellant’s age of 19 25 at the time of the plea offer, a guilty plea would have led to 20 his release during his early fifties. The difference between 21 this and life imprisonment is sufficient to satisfy the prejudice 22 requirement. See , e.g. , Pham, 317 F.3d at 182-83 (remanding for 23 an evidentiary hearing on ineffective assistance because 2411 prejudice could be found based on the “undisputed sentencing 1 disparity of at least 113 months between the high end of the 2 government plea offer [of 78 to 97 months] and Pham’s sentence 3 [of 210 months] after a trial conviction”); Gordon , 156 F.3d at 4 381 (finding the disparity between the 84 months offered in the 5 plea agreement and the actual sentencing range of 262 to 327 6 months as “sufficient objective evidence . . . to support a 7 finding of prejudice under Strickland”); seealsoMask v. 8 McGinnis , 233 F.3d 132, 142 (2d Cir. 2000) (“[A] large disparity 9 between the defendant’s sentence exposure following a trial and 10 his potential exposure had a plea offer been made . . . . coupled 11 with [defendant’s] statements that he would have accepted a 12 reasonable offer as credited by the district court, satisfies the 13 prejudice requirement.”). Indeed, the government concedes in its 14 brief that “there is a potentially significant disparity between 15 the offered 29-year sentence and the life sentence Raysor 16 received.” 17 With regard to the reasonableness of original counsel’s 18 performance, it is clear that failure to advise a client as to a 19 plea offer is unreasonable performance. Cullen , 194 F.3d at 404 20 (“failure to give any advice concerning the acceptance of a plea 21 bargain [falls] below the standard of reasonable representation”) 22 (citing Boria v. Keene , 99 F.3d 492, 496-97 (2d Cir. 1996)). 23 Counsel must advise a client regarding a plea offer, although 24 “counsel’s choice of how to do so will be guided by many factors, 2512 including the duty to avoid coercing a plea from an unwilling 1 client.” Purdy , 208 F.3d at 47. 2 The statement by original counsel, quoted supra , was only 3 that he conveyed the plea offer but appellant rejected it. This 4 statement is hardly equal to the “detailed affidavit from trial 5 counsel credibly describing the circumstances concerning 6 appellant’s failure to testify” that we found sufficient to deny 7 a full evidentiary hearing and to support dismissal of the § 2255 8 petition in Chang , 250 F.3d at 85. In particular, we do not know 9 what, if anything, was communicated to appellant regarding the 10 likelihood of a substantially more severe sentence as a result of 11 going to trial, what original counsel believed as to the plea 12 offer, or why original counsel did whatever he did. There is, 13 moreover, the fact that the court soon after disqualified 14 original counsel for a conflict of interest. 15 We acknowledge that the issues are close. Numerous 16 questions of fact or mixed fact and law must be resolved in 17 appellant’s favor if he is to prevail. These include: (i) what 18 would have been reasonable legal advice in the circumstances; 19 (ii) whether original counsel gave such advice; (iii) what the 20 considered basis for original counsel’s actions was; and (iv) 21 whether but for counsel’s alleged ineffectiveness, appellant 22 would have accepted the government’s plea offer and pled guilty. 23 There is sufficient chance of success, however, in our view to 24 justify a full hearing on remand. 2513 CONCLUSION 1 For the foregoing reasons, the judgment is vacated and the 2 matter is remanded for further proceedings in accordance with 3 this opinion. 4

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