Opinion
93 Cr 781 (SAS), 01 Civ. 2589 (SAS)
March 13, 2002
For the Government: Andrew L. Fish Assistant United States Attorney New York, New York 10007
Petitioner (Pro Se): Joseph Pierce #44627-054 U.S. Penitentiary Allenwood White Deer, Pennsylvania 17887
Petitioner's Former Counsel: Paul J. McAllister, Esq. Law Offices of Paul J. McAllister New York, New York 10013
MEMORANDUM OPINION ORDER
Joseph Pierce ("Pierce" or "petitioner"), proceeding pro se, moves under Title 28, United States Code, section 2255 ("section 2255") to vacate, set aside or correct the 121-month sentence he received on February 28, 2000. Pierce asserts, inter alia, that the attorney who represented him through the taking of his guilty plea was ineffective. In particular, Pierce's original petition, dated February 26, 2001, argues that his first court-appointed attorney, Frederick H. Cohn, was ineffective for failing to move to suppress a post-arrest statement. Pierce's supplemental petition, dated October 5, 2001, alleges that Cohn coerced him into pleading guilty. The Government argues that these claims are procedurally barred because Pierce was assigned new counsel, Paul J. McAllister, prior to sentencing. Before deciding whether petitioner's ineffective assistance of counsel claims are procedurally barred, an evidentiary hearing is needed to determine whether McAllister was apprised of the grounds for such claims before sentencing.
Petitioner also argues that the indictment by which he was charged was defective in that its overt acts section did not list a drug quantity and that his guilty plea was involuntary as he was not informed of the elements of the offense. These claims can be disposed of without the need for a hearing. Accordingly, these arguments will not be discussed further.
Before sentencing, this Court gave Pierce the option of withdrawing his guilty plea but, after consulting with McAllister and based on his advice, he chose not to. See 2/28/00 Sentencing Transcript at 5. Petitioner is not claiming that McAllister was in any way ineffective in his representation.
Pierce did not appeal his sentence or conviction. However, "[a] defendant is generally permitted to raise an ineffective assistance of counsel claim in a collateral attack, even when that claim was not raised on direct appeal." Amiel v. United States, 209 F.3d 195, 198 (2d Cir. 2000) (citing Billy-Rico v. United States, 8 F.3d 111, 114 (2d Cir. 1993), superseded by statute on other grounds as recognized in Triestman v. United States, 124 F.3d 361, 369 n. 8 (2d Cir. 1997)). As established in Billy-Rico, this rule is subject to the following exception:
[A]bsent a showing of cause for the procedural default and actual prejudice, a defendant may not raise an ineffective assistance claim for the first time on collateral attack if the defendant had new counsel on direct appeal and the claim is based solely on the record developed at trial.Amiel, 209 F.3d at 198 (emphasis added) (citing Billy-Rico, 8 F.3d at 115-16)
Of crucial importance, therefore, is whether the grounds for a particular ineffective assistance claim are discernible from the record. Where they are not, the Second Circuit has refused to find a procedural bar. See, e.g., Chang v. United States, 250 F.3d 79, 84 (2d Cir. 2001) (holding that petitioner's ineffective assistance claim based on counsel's refusal to allow him to testify was not procedurally barred by failure to raise the claim on direct appeal); Amiel, 209 F.3d at 198 (holding that petitioner's claim based on trial counsel's alleged off-the-record statements and alleged disloyal reasons for failing to pursue a reasonable trial strategy was not procedurally barred even though it was first raised on collateral attack).
In so holding, the court noted that petitioner's claim, which involved off-the-record interactions with his trial counsel, was not "so clearly bereft of merit as to be subject to dismissal on its face." Id. at 85.
Lower courts have reached similar conclusions when faced with claims based on events outside the trial record. See, e.g., Casso v. United States, No. 00 Civ. 6973, 2001 WL 1517537, at *2 (S.D.N.Y. Nov. 20, 2001) (holding that ineffective assistance claim based on off-the-record statements and alleged failure to pursue various strategies was preserved despite failure to bring it on direct appeal); Hurtado v. United States, No. 00 Civ. 409, 2001 WL 890189, at *3 (S.D.N.Y. July 5, 2000) (finding no procedural bar as to petitioner's ineffective assistance claim based on allegedly coercive statements made by his attorney to encourage him to accept the government's plea offer).
It could be argued that application of the "Billy-Rico exception" is even more appropriate here as petitioner "was provided with new counsel far earlier than any potential appellate stage of his proceedings." Williams v. United States, No. 01 Civ. 401, 2001 WL 915256, at *7 (S.D.N.Y. Aug. 14, 2001) (Gorenstein, M.J.), adopted by Williams v. United States, 2001 WL 1658190, at *1 (S.D.N.Y. Dec. 27, 2001). Before the Billy-Eko exception can properly be invoked by analogy, however, the grounds supporting Pierce's ineffective assistance of counsel claims must have been apparent to McAllister from the then existing record. See Williams, 2001 WL 1658190, at *4 ("Because Williams was represented by new counsel at his sentencing and each of the grounds he asserts to support his ineffective assistance of counsel claim was apparent from the record, Williams is procedurally barred from asserting his claim in the motion.")
Here, it is unknown whether McAllister could have reasonably known the basis for petitioner's ineffective assistance claims. Admittedly, Pierce's claims are not discernible by examining the plea colloquy or sentencing minutes. Moreover, Pierce's letter to this Court requesting new counsel does not shed much light on the matter. Pierce's letter begins by stating, in general terms, that he and Cohn "are not getting along at all." Pierce goes on to state that he has asked Cohn to submit motions on his behalf to no avail. Pierce does not, however, specifically mention a motion to suppress his post-arrest statement. And while Pierce's letter hints at coercion, it is directed to the Assistant United States Attorney and the arresting officer, not Cohn. Pierce's situation is therefore unlike that in Williams where the petitioner explicitly complained to the Court of promises allegedly broken by his first attorney. See Williams, 2001 WL 915256, at *7 (finding that "the record of alleged violation had already been made before the entry of judgment of conviction" given petitioner's detailed letter to the Court requesting new counsel)
Given the ambiguity over the source of Pierce's ineffective assistance claims, it would be premature to apply the Billy-Rico exception to procedurally bar these claims. If Pierce's claims are not readily apparent from the record as it existed prior to sentencing, it would be unfair to deem his claims waived. A hearing is therefore needed to determine the extent of McAllister's knowledge with regard to Pierce's post-arrest statement and Cohn's alleged coercion. Accordingly, a hearing is scheduled for April 8, 2002 at 10:00 a.m. The presence of Paul J. McAllister is required at this hearing but the presence of Frederick H. Cohn is not.
SO ORDERED: