Cullen v. USA
| Citation | 194 F.3d 401 |
| Decision Date | 01 September 1999 |
| Docket Number | Docket No. 98-2329 |
| Parties | (2nd Cir. 1999) BERNARD CULLEN, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee. August Term 1999 Argued: |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Appeal from the March 25, 1998, order of the United States District Court for the District of Vermont (J. Garvan Murtha, Chief Judge), denying a motion to vacate a sentence under 28 U.S.C. 2255 because of ineffective assistance of counsel.
Vacated and remanded.
Cheryl J. Sturm, Westtown, Pa., for plaintiff-appellant.
Gregory L. Waples, Asst. U.S. Atty., Burlington, VT. (Charles T. Tetzlaff, U.S. Atty., David V. Kirby, Crim. Div., Burlington, VT., on the brief), for appellee.
Before: NEWMAN, CARDAMONE, and JACOBS, Circuit Judges.
This appeal primarily presents the issue of whether a district judge, considering a report and recommendation of a magistrate judge who observed a witness and credited the witness's key testimony, may reject that testimony on credibility grounds without holding a hearing and assessing the witness's credibility. Bernard Cullen appeals from the March 25, 1998, order of the United States District Court for the District of Vermont (J. Garvan Murtha, Chief Judge), denying his motion, filed pursuant to 28 U.S.C. 2255, to vacate a sentence imposed after a jury convicted him of drug distribution offenses. The motion alleged that his trial counsel rendered ineffective assistance by not informing him of the details of a plea bargain and not advising him whether to accept it. Magistrate Judge Jerome J. Niedermeier, after hearing Cullen's testimony and that of his trial counsel, concluded that defense counsel had rendered ineffective assistance that prejudiced Cullen and recommended granting the section 2255 motion. Without hearing any testimony, Chief Judge Murtha rejected the recommendation, ruling that Cullen would not have accepted the plea bargain and therefore was not prejudiced. We conclude that the District Judge was not entitled to reject the Magistrate Judge's proposed finding of prejudice without hearing Cullen's testimony and making a credibility determination. We therefore vacate the order and remand for a hearing.
Indictment, trial, and sentencing. A grand jury indicted Cullen on one count of conspiracy to distribute cocaine and four counts of distribution of cocaine. After a jury trial, Cullen was convicted on all five counts. District Judge Franklin S. Billings, Jr., sentenced him to concurrent terms of 136 months, determined as follows. The base offense level of 28 (3.06 kilograms of cocaine) was increased two levels for obstruction of justice because Judge Billings concluded that Cullen had lied in his trial testimony; an acceptance of responsibility reduction was denied; the resulting offense level of 30, combined with Criminal History Category III, yielded a sentencing range of 121 to 151 months. The 136-month sentence was the midpoint of this range. This Court affirmed by summary order. See United States v. Chase, 23 F.3d 396 (2d Cir. 1994) (table).
The section 2255 proceedings. Cullen filed a motion to vacate his sentence under section 2255, contending that his trial counsel had rendered ineffective assistance. The Magistrate Judge held a hearing, heard testimony from Cullen and his court-appointed defense counsel, and issued a Report and Recommendation with the following findings.
The defense counsel told Cullen, a year before the trial, that under the Sentencing Guidelines his sentencing exposure, based on his criminal history category and the weight of the cocaine, was approximately 57 to 71 months with a five-year mandatory minimum. This estimate was never revised. Three weeks before trial, the Government sent defense counsel an unsolicited written plea agreement under which Cullen would agree to plead guilty to the conspiracy count in exchange for the Government's promise (a) not to oppose a two-level downward adjustment for acceptance of responsibility and (b) to recommend a sentence at the bottom of the applicable Guidelines range. Defense counsel called Cullen and told him that the Government had sent him a plea agreement, but did not tell him the terms of the agreement. Defense counsel explained that he did not communicate the terms of the agreement nor advise Cullen whether to plead guilty because Cullen had adamantly professed his innocence and had never indicated any willingness to plead guilty, and because he believed that Cullen was innocent. Defense counsel did tell Cullen that one of the indicted co-conspirators and another (unindicted) co-conspirator would testify against him, that the Government would present two tapes of conversations between him and two other conspirators, and that Cullen could be found guilty. Defense counsel did not tell Cullen that, if he pled guilty under the plea bargain, his sentence, according to the Magistrate Judge, would be approximately 70-78 months1 and that if convicted after testifying at trial, his Guidelines range could be 121 to 151 months, his sentence could be enhanced if the sentencing judge concluded that his trial testimony was false, and he could lose a reduction for acceptance of responsibility. Instead, defense counsel led Cullen to believe that his sentence would be about the same whether he accepted the plea agreement or was convicted at trial.
The Magistrate Judge concluded that defense counsel had rendered ineffective assistance in failing to offer any advice as to whether to accept the plea bargain and in failing to explain the substantial difference between the likely sentencing ranges upon conviction after trial and upon a guilty plea. This deficiency, he ruled, satisfied the first prong of the test for a Sixth Amendment violation -- that "counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688 (1984). Turning to the second prong, whether there was "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, the Magistrate Judge noted that "Cullen testified that if [defense counsel] had discussed the sentencing guidelines he would have pleaded guilty and taken at least the five-year mandatory minimum instead of taking the chance on the possibility of a 121-151 months guideline range." Magistrate's Report and Recommendation 12.2 Crediting this testimony, the Magistrate Judge concluded that defense counsel's deficient representation had prejudiced Cullen. He therefore recommended that the District Court grant Cullen's motion to vacate his sentence and permit Cullen to replead to the indictment.3
The District Court, without taking testimony, rejected the recommendation of the Magistrate Judge, ruling that Cullen had "failed to show a reasonable probability that he would have ceased proclaiming his innocence and accepted a plea agreement which would have resulted in a certain, five-year sentence." District Court Order at 3. The Court pointed out that the Magistrate Judge had explicitly declined to credit Cullen's claims that his attorney had not mentioned the plea agreement to him and had not discussed the Sentencing Guidelines with him. The Court also relied on Cullen's insistence, both at trial and at the section 2255 hearing, that he was innocent. Thus concluding that the prejudice prong of Strickland had not been satisfied, the Court denied the section 2255 motion.
To be entitled to relief, Cullen must show that defense counsel's representation "fell below an objective standard of reasonableness," Strickland, 466 U.S. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694.
Deficient representation. Though the District Court did not disturb the findings of the Magistrate Judge concerning the deficiencies in defense counsel's representation, the Government contends that the duty of reasonable representation was not breached. The Government contends that counsel "communicated the Government's plea offer to Cullen, discussed with him the merits of the Government's case, and discussed alternatives to standing trial." Brief for Appellee at 20. This significantly overstates what occurred. Though defense counsel testified that he communicated the fact of an offered plea bargain, he acknowledged that he failed to inform his client of the terms of the bargain. Moreover, he estimated that the Guidelines range upon a guilty plea would be approximately the same as upon conviction after trial, whereas the range under the plea agreement would have been 78 to 97 months4 and upon conviction after trial would likely be (and was) 121 to 151 months. Finally, defense counsel offered no advice as to whether the plea bargain should be accepted.
We recently considered whether defense counsel renders ineffective assistance when he fails to give his client any advice as to the acceptance of a plea bargain offered by the prosecution. See Boria v. Keane, 99 F.3d 492, 496-97 (2d Cir. 1996), clarified with respect to another issue and reaff'd on reh'g, 90 F.3d 36 (2d Cir. 1996).5 In that case, the defendant had proclaimed his innocence to his lawyer, the prosecution had offered a plea bargain with a sentence of one to three years, and, without the plea bargain, the defendant faced sentencing for a Class A-I felony, see Boria, 99 F.3d at 494-95, for which the minimum term of imprisonment is 15 to 25 years and the maximum term is life (Boria received a sentence of 20 years to life, see id. at 494). See N.Y. Penal Law 70.00(2)(a), (3)(a)(1) (McKinney 1998). We ruled that failure to give any advice concerning acceptance of the plea bargain was below the standard of reasonable representation. See Boria, 99 F.3d at 496-97.
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