Purdy v. U.S.

• Citation: 208 F.3d 41
• Decision Date: 19 October 1999
• Docket Number: Docket No. 99-2461
• Parties: (2nd Cir. 2000) JOHN M. PURDY, JR., Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee. August Term 1999
• Court: U.S. Court of Appeals — Second Circuit

Page 41

208 F.3d 41 (2nd Cir. 2000)

JOHN M. PURDY, JR., Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.

Docket No. 99-2461

August Term 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued October 19, 1999

Decided: March 27, 2000

Appeal from a judgment of the United States District Court for the District of Connecticut (Covello, Chief Judge), denying petitioner's application for a writ of habeas corpus on grounds of ineffective assistance of counsel. Petitioner has filed a motion for a certificate of appealability with this court.

Motion denied.

Mark G. Califano, Assistant United States Attorney (Stephen C. Robinson, United States Attorney for the District of Connecticut, on the brief), New Haven, CT, for Appellee.

John J.E. Markham, Esq., Boston, Mass., for Petitioner-Appellant.

Before: WALKER, SACK, and KATZMANN, Circuit Judges.

JOHN M. WALKER, JR., Circuit Judge:

John M. Purdy, Jr., has moved for a certificate of appealability in order to appeal from a July 27, 1999 judgment of the United States District Court for the District of Connecticut (Alfred V. Covello, Chief Judge) denying his petition for a writ of habeas corpus. In 1996, Purdy was convicted of conspiring to violate the Anti-Kickback Act, 41 U.S.C. 53, 54, in violation of 18 U.S.C. 371, and we affirmed his conviction, see United States v. Purdy, 144 F.3d 241 (2d Cir. 1998). In his habeas corpus petition, Purdy claims that he was denied effective assistance of counsel when his attorney at trial failed to communicate to him certain representations of the federal prosecutor and failed to specifically and explicitly advise him to accept a guilty plea. After denying his petition, the district court refused to grant Purdy's motion for a certificate of appealability under 28 U.S.C. 2253(c), prompting Purdy to move for one in this court. Because Purdy has failed to make a substantial showing of the denial of a constitutional right, see 28 U.S.C. 2253(c)(2), we deny the motion.

BACKGROUND

Unless otherwise indicated, the facts pertinent to the petition are substantially undisputed. In 1995, the government commenced an investigation into whether Purdy, along with other military parts suppliers, had paid kickbacks to federal contractors to obtain supply contracts. Purdy retained attorney Jacob Zeldes to represent him. The Assistant U.S. Attorney in charge of the investigation, Mark Califano, met with Zeldes on several occasions to discuss the possibility of a plea agreement and Purdy's cooperation. It was Zeldes's practice to record what transpired at these meetings and then to communicate to Purdy, verbally and often in writing, the substance of what was said. Purdy's principal objective was to avoid imprisonment, but the prosecutor made it clear to Zeldes that even if Purdy were to plead guilty and cooperate, the government would still seek a term of imprisonment in accordance with the sentencing guidelines. Throughout this period and continuing into the subsequent trial, Purdy proclaimed to Zeldes his innocence and his ignorance of matters as to which the government was seeking his cooperation. With this background, we turn to the alleged deficiencies in Zeldes's representation about which Purdy complains.

On April 26, 1995, Zeldes and Califano held one of their meetings to review the situation. Califano said that the case would probably be assigned to District Judge Burns and that he "didn't know of any case where a white collar criminal with those guidelines had gone to jail with Judge Burns or Judge Dorsey." Zeldes admits that he did not convey this particular remark to Purdy. Zeldes testified that he did not consider Califano's observation to be worth mentioning to Purdy because there was no certainty that the case would be assigned to Judge Burns, and because in a recent white collar case before Judge Dorsey, Zeldes's client had received a prison sentence of four and one-half years. Zeldes also testified that he was concerned about improperly coercing Purdy, a client who had consistently maintained his innocence, into pleading guilty.

Purdy also complains that Zeldes withheld from him a discussion with Califano concerning a possible sentence range of either 12 to 18 or 15 to 21 months, depending on Purdy's precise role in the kickback scheme. Zeldes disputes that the 12 to 18 month range was ever discussed, but admits that Califano discussed a range of 15 to 21 months, a proposal that Zeldes considered to be "in the nature of an offer," and maintains that he told Purdy of the government's position. Purdy denies that Zeldes communicated these ranges. Sometime thereafter, Zeldes informed Purdy, this time in writing, that his exposure to imprisonment after a trial would be 27 to 33 months, but upon a plea of guilty the government had offered between 18 and 24 months, "with the possibility, but not a certainty, for a lesser sentence."

On December 8, 1995, Purdy met with Zeldes and his associates, who grilled their client in a mock cross examination that was designed to highlight the strengths of the government's case. Afterwards, Zeldes again stressed the difficulty of the case from Purdy's perspective and Purdy's option of pleading guilty on the terms Zeldes had previously outlined. Purdy did not waver in his insistence on his innocence and his desire to go to trial.

On January 16, 1996, Zeldes again outlined to Purdy in writing an exposure of 27 to 33 months following a trial or one of 18 to 24 months upon a guilty plea. Zeldes also impressed upon Purdy the "troublesome" aspects of the case, taking care to advise Purdy and not pressure him to admit guilt, so long as he continued to maintain his innocence. On February 19, 1996, Zeldes wrote to his client again, urging him to "give very careful consideration" to the case and pointing out once more the strength of the case against him. He advised Purdy that "it will be difficult to convince the jury that [certain payments] were not made for purposes of kickbacks." Undeterred by these communications, Purdy maintained his innocence.

At trial, the jury found Purdy guilty and Judge Covello sentenced him to 37 months' imprisonment. After Purdy agreed to cooperate, his sentence was reduced to 18 months.

In denying Purdy's habeas petition after an evidentiary hearing, the district court concluded that it need not decide whether Zeldes's performance had fallen below an objective standard of professional reasonableness because nothing in Zeldes's representation had prejudiced Purdy in his defense, and that therefore the second part of the controlling test for ineffective assistance of counsel had not been met. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

The district court found that Zeldes had substantially communicated the government's plea offers to Purdy; had not prejudiced Purdy by keeping Califano's remark about Judge Burns and Judge Dorsey to himself, since his own experience cast those remarks into doubt; had adequately informed Purdy about the consequences of pleading guilty and cooperating with the government; had stressed the strength of the government's case; and had urged Purdy to carefully weigh his options of pleading guilty and going to trial. Critically, the district court refused to credit Purdy's post-conviction testimony that if only he had been aware of Califano's comments, he would have foregone the trial and pled guilty at that time. Judge Covello found that "[t]o the contrary, the record reflects that Purdy stoutly maintained his innocence of the alleged charges and his total lack of knowledge" of occurrences that the government sought to uncover by his cooperation. The district court therefore found that Purdy had failed to establish that Zeldes's alleged deficiencies had prejudiced him and thus that his ineffective assistance claim could not be maintained under Strickland.

The district court denied a certificate of appealability. Purdy now moves for one in this court.

DISCUSSION

Following the enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996, no appeal may be taken from a denial of a habeas corpus petition in the district court unless either the district court or the court of appeals grants a certificate of appealability. The certificate will be granted only if defendant has made a substantial showing of the denial of a constitutional right. See 28 U.S.C. 2253(c)(2). To demonstrate that he was denied his Sixth Amendment right to effective assistance of counsel, Purdy must show both that his counsel's performance was deficient as measured by objective professional standards, and that this deficiency prejudiced his defense. See Strickland, 466 U.S. at 687; McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999).

The performance inquiry is contextual; it asks whether defense counsel's actions were objectively reasonable considering all the circumstances. See Strickland, 466 U.S. at 688. In determining what constitutes objective reasonableness, courts look for guidance to "[p]revailing norms of practice as reflected in American Bar Association standards." Id. These standards provide at least two benchmarks for the representation of a client who is deciding whether to accept a plea offer.

On the one hand, defense counsel "'must give the client the benefit of counsel's professional advice on this crucial decision'" of whether to plead guilty. Boria v. Keane, 99 F.3d 492, 497 (2d Cir. 1996) (quoting Anthony G. Amsterdam, Trial Manual 5 for the Defense of Criminal Cases (1988)) (emphasis omitted); see also Cullen v. United States, 194 F.3d 401, 404 (2d Cir. 1999) ("Boria recognizes a lawyer's general duty to advise a defendant concerning acceptance of a plea bargain."); Model Rules of Professional Conduct Rule 1.4(b) (1995) ("A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."). As part of this advice, counse...