Locurto v. United States
| Decision Date | 11 August 2016 |
| Docket Number | 10-CV-4589 (NGG) (JO) |
| Parties | STEPHEN LOCURTO, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Petitioner Stephen LoCurto brings this proceeding pursuant to 28 U.S.C. § 2255, seeking to vacate his conviction and life sentence for racketeering conspiracy. (Mot. to Vacate ("Pet.") (Dkt. 1).) Petitioner alleges ineffective assistance of both trial and appellate counsel, as well as the improper suppression of exculpatory information. (Id.) On August 16, 2012, the court referred the Petition to Magistrate Judge James Orenstein for a Report and Recommendation ("R&R") pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b)(1). (Order (Dkt. 18).) Judge Orenstein then determined, on consent of the parties and with the court's approval, to bifurcate consideration of the Petition, addressing first the threshold issue of whether Petitioner received objectively unreasonable legal advice concerning a potential plea bargain before trial. (See Sept. 3, 2013, Min. Entry (Dkt. 51); Sept. 3, 2013, Tr. (Dkt. 64) at 5, 12-19.)
On January 29, 2016, Judge Orenstein issued an R&R concluding that it was objectively unreasonable for counsel to provide the legal advice at issue, and recommending that the court conduct—or refer to him—an evidentiary hearing to determine whether that advice had any cognizable prejudicial effect on the outcome of Petitioner's criminal case. (R&R (Dkt. 72) at 1.) Judge Orenstein further recommended that the court deny Petitioner's claim of ineffectiveness of appellate counsel and defer ruling on other claims pending litigation of an amended petition. (Id.) The Government has objected to the R&R , and Petitioner has responded to those objections . For the following reasons, the court OVERRULES the Government's objections and ADOPTS the R&R in full.
The court assumes familiarity with the underlying facts of Petitioner's criminal case. See United States v. Rizzuto, No. 03-CR-1382 (NGG); United States v. Amato, 306 F. App'x 630 (2d Cir. 2009), cert. denied, 558 U.S. 940 (2009). As explained in Judge Orenstein's R&R, the primary issue before the court at this stage of the bifurcated review of the Petition is whether Petitioner received objectively unreasonable legal advice when considering whether to pursue plea negotiations with the Government before trial. (See R&R at 2-5.)
In 1988, Congress increased—from 20 years to life—the maximum sentence that could be imposed on a defendant convicted of racketeering conspiracy, but only for cases in which "the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment[.]" 18 U.S.C. § 1963(a). As Judge Orenstein noted in the R&R, the only racketeering act attributed to Petitioner for which the maximum penalty included life imprisonment was the 1986 murder of Joseph Platia, which pre-dated the 1988 statutory amendment. (See R&R at 2-3.) Therefore, "LoCurto's participation in the charged racketeering conspiracy . . . was a so-called 'straddle offense,' meaning that it occurred over a period that straddled the effective date of the statute that increased the maximum penalty." (Id. at 3.) While it is now undisputed that Second Circuit case law allows for the imposition of a life sentence for such a straddle offense (see id. at 8), the question at issue here is "whether, during the pretrialproceedings, . . . competent counsel would have . . . advised a client that it was still an open question in this jurisdiction whether a life sentence in such circumstances would violate the Constitution's Ex Post Facto Clause" (id. at 3).
This question is relevant because on November 1, 2005, prosecutors sent a letter concerning plea negotiations to attorneys representing Petitioner and 10 of his codefendants. (Id. at 4.) The letter advised that the Government was not yet making a "formal" offer but that prosecutors were prepared to recommend dispositions providing for specified maximum sentences for each defendant, on the condition that at least 10 of those 11 defendants pleaded guilty by November 21, 2005. (Id.) The maximum sentence suggested for Petitioner was 20 years. (Id.)
The parties agree that Petitioner's trial attorney, Harry C. Batchelder, Jr., sought the legal advice of attorney Laura A. Oppenheim concerning the maximum possible sentence that Petitioner could face if convicted at trial. (Id. at 3.) The parties also agree that in a meeting between Petitioner and both attorneys, "Oppenheim expressed her opinion that the availability of a life sentence in the circumstances of this case was an open question in the Second Circuit, that application of the 1988 statutory amendment to the straddle offense in this case would violate the Ex Post Facto Clause, that the maximum allowable sentence for the charged offense was therefore twenty years, and that she believed LoCurto would prevail on that issue on appeal should he be convicted." (Id.)
Nine of the 11 defendants named in the Government's November 1, 2005, letter ultimately pleaded guilty, and each was sentenced to a prison term that was less than or equal to the maximum sentence that had been specified in the letter. (Id. at 4.) Petitioner and another codefendant, Anthony Basile, did not plead guilty; they were later convicted at trial andsentenced to life in prison. (Id.) Now, Petitioner maintains that he rejected an opportunity to plead guilty because he believed that the maximum sentence of 20 years, as specified in the letter, was the most that he would face if convicted at trial. (LoCurto Aff. (Mem. in Supp. of Mot. to Vacate ("Pet'r's Mem.") (Dkt. 2), Ex. B) ¶ 7.) He insists that had he been properly advised as to his sentencing exposure, he would have entered into a plea agreement with the Government and thus would not have received a life sentence. (Id. ¶¶ 6-9.)
Petitioner raises two additional grounds for relief. First, he claims that he was denied effective assistance of appellate counsel, on the basis of the fact that appellate counsel did not challenge the trial court's admission of testimony from three accomplice witnesses, each of whom conveyed a statement from non-party Gabe Infanti that Petitioner had committed the Platia murder. (See Pet. at 5; Pet'r's Mem. at 11-12; R&R at 5, 12.) Next, Petitioner claims that the Government unlawfully suppressed evidence that impeached the credibility of accomplice witness Frank Lino, thereby depriving Petitioner of his rights to due process and the effective assistance of trial counsel. (See Pet. at 6; Pet'r's Mem. at 12-14; R&R at 5, 12.)
In reviewing the R&R of a dispositive matter from a magistrate judge, the district court "may adopt those portions of the Report to which no objections have been made and which are not facially erroneous." La Torres v. Walker, 216 F. Supp. 2d 157, 159 (S.D.N.Y. 2000); see also Gesualdi v. Mack Excavation & Trailer Serv., Inc., No. 09-CV-2502 (KAM) (JO), 2010 WL 985294, at *1 (E.D.N.Y. Mar. 15, 2010) .
The district court must review de novo "those portions of the report . . . to which objection is made." 28 U.S.C. § 636(b)(1). However, to obtain this de novo review, an objecting party "must point out the specific portions of the report and recommendation to which they object." U.S. Flour Corp. v. Certified Bakery, Inc., No. 10-CV-2522 (JS) (WDW), 2012 WL 728227, at *2 (E.D.N.Y. Mar. 6, 2012); see also Fed. R. Civ. P. 72(b)(2) (). If a party "makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008) (citations omitted); see also Mario v. P&C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) (). "A decision is 'clearly erroneous' when the Court is, 'upon review of the entire record, left with the definite and firm conviction that a mistake has been committed.'" DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 339-40 (S.D.N.Y. 2009) (quoting United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006)). Finally, courts "ordinarily refuse to consider arguments, case law and/or evidentiary material which could have been, but was not, presented to the magistrate judge in the first instance." Kennedy v. Adamo, No. 02-CV-1776 (ENV) (RML), 2006 WL 3704784, at *1 (E.D.N.Y. Sept. 1, 2006) (internal quotation marks and citation omitted), aff'd, 323 F. App'x 34 (2d Cir. 2009) (summary order); see also Allen v. United Parcel Serv., Inc., 988 F. Supp. 2d 293, 299 (E.D.N.Y. 2013); Forman v. Artuz, 211 F. Supp. 2d 415, 418 (S.D.N.Y. 2000).
To prevail on a claim of ineffective assistance of counsel, a petitioner must satisfy the two-pronged test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See Williams v. Taylor, 529 U.S. 362, 390 (2000). First, under the "performance" prong, a petitioner must show that trial counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms." Strickland, 466 U.S. at 688. "Constitutionally effective counsel embraces a 'wide range of professionally competent assistance,' and 'counsel is strongly presumed to...
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