Forbes v. U.S.

• Decision Date: 30 July 2009
• Docket Number: Docket No. 07-3130-pr.
• Citation: 574 F.3d 101
• Parties: Dennis FORBES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.<SMALL><SUP>*</SUP></SMALL>
• Court: U.S. Court of Appeals — Second Circuit

574 F.3d 101

Dennis FORBES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.^*

Docket No. 07-3130-pr.

United States Court of Appeals, Second Circuit.

Argued: June 25, 2009.

Decided: July 30, 2009.

Eleanor Jackson Piel, New York, NY, for Petitioner-Appellant.

Frank H. Sherman, Assistant United States Attorney (Kathleen M. Mehltretter, Acting United States Attorney, of counsel), Office of the United States Attorney for the Western District of New York, Rochester, NY, for Respondent-Appellee.

Before PARKER and WESLEY, Circuit Judges, TSOUCALAS, Judge.^**

PER CURIAM:

Petitioner-appellant Dennis Forbes ("Forbes") appeals from an order of the United States District Court for the Western District of New York (Siragusa, J.), dismissing his petition to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 on the basis of ineffective assistance of appellate counsel on direct appeal. For the reasons stated below, the district court's order of dismissal is hereby AFFIRMED.

Background

Forbes was indicted on September 9, 1999 on one count of being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). United States v. Forbes, No. 99-CR-6084(CJS) (W.D.N.Y.). Forbes was also indicted in a separate instrument for possession of a firearm in furtherance of a crime of drug trafficking in violation of 18 U.S.C. § 924(c), as well as two other drug-related counts, based on the same set of events that led to the § 922(g)(1) charge. United States v. Forbes, No. 99-CR-6089 (CJS) (W.D.N.Y.).

After a jury trial, Forbes was convicted on all counts in the second indictment but the § 924(c) count, on which the jury could not reach a verdict. The initial § 922(g)(1) count, however, was not tried with the offenses alleged in the second indictment. On January 24, 2001, Forbes pleaded guilty to the § 922(g)(1) count, and in exchange the government agreed not to pursue the 18 U.S.C. § 924(c) count left open by the jury. On accepting Forbes's guilty plea, the district court tolled the requirements of the Speedy Trial Act, 18 U.S.C. § 3161, in relation to the § 924(c) count because Forbes specifically indicated that the reason for his plea on the § 922(g)(1) count was the government's promise to dismiss the § 924(c) "trafficking" charge.

Later in 2001, but prior to sentencing, Forbes wrote a letter to the district court indicating that he wanted to withdraw his guilty plea because it "was illegal due to the fact that [he] was not fingerprinted, photographed, booked, charged, or arraigned in 72 hours of [his] arrest which [was] a violation of [his] due process rights." Forbes's retained attorney, Michael P. Schiano, stated on the record that he had advised Forbes that in attempting to withdraw his guilty plea he would likely lose the two-point reduction in his sentencing offense level on the basis of acceptance of responsibility, as well as risk a two-point enhancement for perjury and obstruction of justice. Forbes insisted on pursuing the plea withdrawal and indicated to the court that he would discharge Schiano as his attorney. Schiano informed the district court that, for his part, he intended to withdraw as Forbes's counsel should Forbes pursue the plea withdrawal, because "one of [Forbes's] basis [sic] in wanting to withdraw his plea [was] his position that [Schiano] intimidated and forced him ... into taking the plea."

After extensive attempts on the record by defense counsel, the government, and the district court to explain to Forbes the status of the charges against him and the potential consequences of attempting to withdraw his plea at this stage of the proceeding, the district court stated:

Mr. Forbes, here's what I'm going to do. If you tell me this is what you want to do, I'm going to ask Mr. Schiano to make a formal motion to withdraw. I'll make it returnable for a day.

I'll examine you now. If I find you're entitled to assigned counsel, I'll have another counsel here, and I'll give you a chance to consult with that counsel to determine what you want to do; but I'm not going to keep assigning you lawyers.

Forbes indicated that he understood the district court's statement and insisted that he still wanted to withdraw his guilty plea. The district court then found Forbes eligible for assigned counsel.

On June 25, 2001, Jeffrey Wicks agreed to serve as Forbes's assigned counsel, provided he should conclude upon review of the record that Forbes had a nonfrivolous argument to withdraw his guilty plea. The district court informed Forbes that Wicks's review of the record would result in one of three possibilities: (1) Wicks might agree that attempting to withdraw the plea was Forbes's best legal option; (2) Wicks might inform Forbes that going forward with the attempt would be against Forbes's best interest but that a legal argument could be made in support of it; or (3) Wicks might determine any such attempt would be frivolous and that he would be unable to make the application to withdraw the plea. The district court then told Forbes:

If Mr. Wicks comes back to you after independently reviewing everything and says Mr. Forbes, you're crazy for trying to withdraw your plea, and secondly, there's no basis upon which I can in good faith ask the Court to withdraw the plea, that's the end of it. I'm not saying that's going to happen, but that would be the end of it. I'm not going to assign you another lawyer. It would be exceptionally foolish, but you can always represent yourself if you want; but I'm not going to assign you a string of lawyers until you somehow hit on one that is going to give you the advice you want.

Wicks ultimately decided that there was no good-faith basis for Forbes's motion to withdraw his plea, after which the district court concluded that Wicks was ethically obligated not to bring the motion on Forbes's behalf and allowed Wicks to withdraw as counsel. The district court informed Forbes that he would have to move for the plea withdrawal on his own and described the proper procedure and potential consequences. The district court explained that it would assign Forbes another attorney upon resolution of his motion to withdraw his plea, but again emphasized that it would not "put another lawyer in a situation where they're called upon by you [Forbes] as the client, despite what they tell you, to do something that they feel is unethical and really against your best interest."

In September 2001, Forbes filed the motion to vacate his guilty plea, arguing that his plea was not knowing, intelligent, and voluntary as required by Federal Rule of Criminal Procedure 11 because Schiano had "advised him that he would be pleading guilty to count two of indictment No. 99-CR-6089 [the § 924(c) count] and not to indictment No. 99-CR-6084 [the § 922(g) count]." In his papers, Forbes alleged that his counsel was ineffective for advising him to plead guilty to the § 922(g) count in spite of what he termed "jurisdictional defects," namely that the count should have been dismissed because the police did not have probable cause to search or arrest him and because he was not arraigned until more than 60 days after his arrest.

The district court denied the motion to vacate. The district court rejected Forbes's claim of ineffectiveness of counsel with respect to the plea, explaining to Forbes that pleading guilty to the § 922(g) charge did not result in any additional jail time and that the guilty plea eliminated the possibility of the government re-trying him on the remaining § 924(c) count. This, in turn, as the district court explained, eliminated the possibility of an additional five years of jail time being added to Forbes's sentence, as would have been required with a § 924(c) conviction. The district court further found that Forbes's factual allegations were clearly contradicted by the record and "inherently incredible."

At sentencing Forbes was represented by M. Kirk Okay of The Okay Law Firm. The district court calculated a total offense level of 26 with respect to the § 922(g) count, starting from a base level of 20 and adding two points because the pistol was stolen, U.S.S.G. § 2K2.1(b)(4), and four points for possession of the firearm while distributing cocaine, U.S.S.G. § 2K2.1(b)(5). The district court did not enhance Forbes's sentence for obstruction of justice with respect to his motion to vacate the guilty plea. Forbes was sentenced to life in prison on each of the two drug count jury convictions and a concurrent 120 months' imprisonment on the § 922(g) firearm possession conviction.

On appeal, Forbes was again represented by Okay, who argued that the district court erred in not allowing Forbes to withdraw his plea and that the record did not contain sufficient facts to support his plea. This Court rejected these arguments, concluding that, "[a]lthough Forbes now suggests that his plea was not knowing and voluntary because he was confused as to the charge he was pleading to during the allocution, our review of the transcript of the allocution discloses no such confusion[, n]or ... that the district court accepted Forbes' plea without determining that there was an adequate factual basis for the plea." United States v. Forbes, No. 02-1120-cr, 78 Fed.Appx. 164, 165 (2d Cir. 2003). Although we expressed "some doubt about the propriety of the district court relieving counsel of his representation of the defendant ... and then proceeding to deny the defendant's motion to withdraw his guilty plea while he was unrepresented," we declined to address this issue because it was not raised on appeal or pursued during questioning at oral argument. Id. Forbes, still represented by Okay, filed a petition for a writ of certiorari to the United States Supreme Court in which he raised this new Sixth Amendment right-to-counsel issue. The Supreme Court denied the petition. Forbes v. United States, 540 U.S. 1210, 124 S.Ct. 1488, 158 L.Ed.2d 137 (2004).

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