Chang v. U.S.

• Decision Date: 01 August 2000
• Docket Number: PETITIONER-APPELLANT,RESPONDENT-APPELLEE,Docket No. 99-2471
• Citation: 250 F.3d 79
• Parties: (2nd Cir. 2001) JOHN CHANG,, v. UNITED STATES OF AMERICA,
• Court: U.S. Court of Appeals — Second Circuit

Page 79

250 F.3d 79 (2nd Cir. 2001)

JOHN CHANG, PETITIONER-APPELLANT, v. UNITED STATES OF AMERICA, RESPONDENT-APPELLEE.

Docket No. 99-2471

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued October 26, 2000

May 4, 2001

Appeal from an order of the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge) denying appellant's petition for a writ of habeas corpus. Appellant argues that his petition, which alleged that defense counsel prohibited him from testifying at trial, should not have been denied without a full testimonial hearing. We conclude that appellant was entitled to a hearing but affirm on the ground that the district court's review of the submitted papers, including a detailed affidavit from trial counsel, satisfied that requirement.

Monica R. Jacobson, Alvy & Jacobson, New York, New York, for Petitioner-Appellant.

Margaret Giordano, Assistant United States Attorney, Brooklyn, New York (Loretta E. Lynch, United States Attorney for the Eastern District of New York, and Emily Berger, Assistant United States Attorney, of counsel), for Respondent-Appellee.

Before: Oakes, Winter, and Sack, Circuit Judges.

Winter, Circuit Judge

John Chang appeals from Judge Glasser's denial of his petition for a writ of habeas corpus challenging his conviction and sentence for various narcotics offenses involving heroin trafficking. See Chang v. United States, No. 98-CV-7354, 1999 WL 439097 (E.D.N.Y. May 3, 1999). Although the petition asserted several claims, we granted a certificate of appealability limited to Chang's claim of a denial of his right to the effective assistance of counsel. See Chang v. United States, No. 99-2471 (2d Cir. Oct. 20, 1999) (order). Chang's ineffective assistance claim is based on his allegations that his counsel prohibited him from testifying and that he would have testified had he known that counsel had no power to prevent him from doing so. At the request of the district court, Chang's trial counsel submitted a detailed affidavit contradicting Chang's version of the events. After reviewing the submitted papers, the district court denied Chang's motion. Chang claims that it was error not to hold a full testimonial hearing.

We agree that a hearing was required. However, we affirm on the ground that the district court's review of the submitted papers constituted a sufficient evidentiary hearing on the facts of this case.

BACKGROUND

Chang was convicted by a jury of five counts related to heroin trafficking, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i), 841(b)(1)(B)(i)-(ii)(II), 846, 952(a), 960(a)(1), and 960(b)(1)(A); and 18 U.S.C. §§ 2 and 3551 et seq. He was sentenced to a downwardly departed term of 144 months, 5 years' supervised release, a fine of $50,000, and a special assessment of $150.

On direct appeal from his conviction, Chang advanced various arguments, none of which are pertinent to the present appeal, and we affirmed by summary order. See United States v. Chang, 131 F.3d 132 (2d Cir. 1997) (unpublished table decision). In November 1998, Chang filed the present petition pro se. After he was granted leave to amend, the district court ordered the government to respond. See Chang v. United States, No. 98-CV-7354 (E.D.N.Y. Dec. 30, 1998) (order). Chang's amended petition alleged, seemingly based on United States v. Singleton, 144 F.3d 1343 (10th Cir.), vacated, 144 F.3d 1361 (1998), that based on United States v. Singleton, the government had purchased testimony against him, that the testimony of the government's case agent conflicted with that of one of the accomplices, and that Chang's counsel was ineffective because he failed to challenge the government's use of the allegedly bribed witnesses and refused to let Chang testify. See Petitioner's "Amendment to Petitioner's 28 U.S.C. Motion to Vacate Sentence; Request for Evidentiary Hearing." Chang also requested an evidentiary hearing on whether his counsel was constitutionally deficient in refusing to let him testify. See id. Chang later filed a supporting affidavit, stating that his trial counsel "prohibited" him from testifying, "did not at any time apprise [him] that the ultimate decision whether to testify or not was [his] to make," and had he "known at the time of trial that [counsel] . . . could not stop [him] from testifying, [he] would have done so." Petitioner's Affidavit, No. 98- CV-7354. Chang also stated in the affidavit that he would prove his claims by examining counsel under oath at an evidentiary hearing.

The district court invited Chang's trial counsel to respond to the ineffective assistance claim, and counsel thereafter filed an affidavit. With regard to the claim that counsel prohibited Chang from testifying, counsel stated, in part:

Petitioner chose not to testify after having extensive discussions with, and receiving advice from defense counsel. Specifically, petitioner was fully apprised, inter alia of all of his constitutional rights throughout his case and specifically at trial. Indeed, I counseled petitioner not only on his right to present a defense, but his absolute right to testify on his own behalf and that it would be his decision whether or not to exercise that right. I also advised petitioner that the court would instruct the jury, which it did, that no unfavorable inference could be drawn by the jury if he chose not to testify.

[] All of the foregoing occurred prior to the commencement of trial, and was discussed during the trial as well. . . . [M]uch focus was placed during trial on our discussions of whether petitioner would want to testify and be the sole witness in his defense.

[] After being advised of the potential issues that could and would be raised during such testimony, including the government's cross examination, petitioner chose not to testify. Specifically, tape recorded conversations introduced by the government regarding petitioner's alleged narcotics activities were difficult for petitioner to adequately and credibly explain. Other potential issues regarding unexplained wealth as to petitioner's extensive travel to China and Hong Kong were also discussed before and during trial. It was clear to petitioner and counsel that he could not withstand the scrutiny of cross examination without significantly prejudicing his defense.

[] Additionally, counsel advised petitioner to consider that if the jury viewed the defendant's testimony to be lacking credibility, his prospects of conviction would be greatly increased. This would be so, notwithstanding the otherwise effective cross examination of the government's two cooperating witnesses.

The district court denied Chang's petition. With regard to Chang's claim that he was prohibited by counsel from testifying, the district court found that trial counsel's affidavit "belie[d] Chang's claim." Chang, 1999 WL 439097, at *2. The court noted, "[o]ther than his own blanket statements, Chang provides no proof that [counsel] prevented him from testifying." Id. The court further held that, "because the submissions on this issue reflect that Chang is entitled to no relief, Chang's request for a[n] evidentiary hearing is denied." Id.

Chang submitted a motion for reconsideration, again requesting a full testimonial hearing and mentioning for the first time that he would present a witness at such a hearing -- an "acquaintance" who tutored Chang on demeanor in preparation for testifying -- to corroborate that Chang desired to testify. The district court denied the motion on the ground that Chang had failed to show that the court had overlooked controlling legal authority or relevant factual matters. See Chang v. United States, No. 98-CV-7354 (E.D.N.Y. June 25, 1999) (order).

The district court denied Chang a certificate of appealability ("COA"), finding that "no substantial showing has been made of a denial of a constitutional right." However, we granted a COA on Chang's claim that his counsel was constitutionally deficient in preventing him from testifying. See Chang, No. 99-2471. In so doing, we noted:

"[O]ur Circuit has not ruled, as other circuits have . . . that a defendant contending that his trial counsel has prevented him from testifying must object at trial or be deemed to have forfeited the claim, nor have we ruled, as other circuits have, . . . that a defendant's bare statement that his lawyer prohibited him from testifying is insufficient to warrant a hearing on the claim."

Id. It is to those issues that we now turn.

DISCUSSION

We review the district court's denial of a hearing under 28 U.S.C. § 2255 for abuse of discretion. See United States v. Russo, 801 F.2d 624, 627 (2d Cir. 1986). Further, in "the § 2255 context, this Court reviews factual findings for clear error and questions of law de novo. The question of whether a defendant's lawyer's representation violates the Sixth Amendment right to effective assistance of counsel is a mixed question of law and fact and is reviewed de novo." Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000) (internal quotation marks and citations omitted).

a) Waiver/Forfeiture

As we noted in granting the COA, we have not yet decided whether a defendant waives or forfeits a claim that counsel prevented him or her from testifying by not objecting at trial. A defendant in a criminal case has the right to testify on his own behalf. See Rock v. Arkansas, 483 U.S. 44, 49 (1987). We have held that the right to testify is "personal" and, therefore, can be waived only by the defendant. Brown v Artuz, 124 F.3d 73, 77 (2d Cir. 1997). Thus, "regardless of strategic considerations that his lawyer concludes weigh against such a decision," id., a defendant who wishes to testify must be permitted to do so.

In Brown, we declined to require that trial courts generally inform defendants of the right to testify and determine whether they intend to waive that right. However, we did impose on defense counsel the obligation to...