Michel v. United States
| Decision Date | 29 September 2016 |
| Docket Number | Case No. 09-CR-815 (KMK),Case No. 13-CV-4258 (KMK) |
| Parties | GARRY MICHEL, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Garry Michel
Middletown, NY
Benjamin R. Allee
U.S. Attorney's Office, White Plains
White Plains, NY
Garry Michel ("Petitioner"), proceeding pro se, brings a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence ("Petition"). For the reasons stated herein, the Petition is dismissed.
Petitioner was arrested on February 11, 2009 based on a criminal complaint (the "Criminal Complaint") charging him with money laundering and conspiracy to distribute ketamine. 1 On August 25, 2009, Petitioner was indicted in three counts. Count One charged Petitioner with conspiring to distribute and possess with intent todistribute ketamine between in or about March 2007 and May 2008, in violation of 21 U.S.C. § 846. (See Indictment (Dkt. No. 16).) Count Two charged Petitioner with laundering the proceeds of the narcotics distribution charged in Count One by structuring monetary transactions to avoid bank reporting requirements, also between March 2007 and May 2008, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(ii) and 2. (Id.) Count Three charged Petitioner with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). (Id.) The Indictment also included forfeiture allegations as to the ketamine conspiracy and money laundering counts. (Id.) On December 8, 2009, the Government filed a prior felony information, pursuant to 21 U.S.C. § 851, which increased the maximum sentence for Count One from five to ten years' imprisonment. To represent him, Petitioner retained two attorneys, Andrew Rubin, Esq. and Thomas Kenniff, Esq. (See, e.g., Dkt. (minute entry Aug. 28, 2009); Notice of Appearance (Dkt. No. 21).)
On January 27, 2010, Petitioner pled guilty to all three charges in the Indictment. (See Dkt. (minute entry Jan. 27, 2010).) Prior to his plea, Petitioner received from the Government a so-called Pimentel letter setting forth the Government's view regarding the sentencing exposure Petitioner faced if convicted of all three counts, including the applicable United States Sentencing Guidelines ("Guidelines") range.2 (Pet'r's Mem. of Law in Supp. of Pet. ("Pet'r's Mem.") Ex. 2 (Dkt. No. 2, 13-CV-4258 Dkt.).) In this letter, the Government calculated the base offense level to be 28, based on offense conduct involving between 400,000 to 700,000 units of ketamine. See U.S.S.G. § 2D1.1(c)(6). Because the offense level for the conduct charged inCount One was 28, pursuant to U.S.S.G. § 2S1.1(a)(1), the base offense level for the money laundering offense charged in Count Two also was 28. Two levels were added because the offense conduct involved a violation of 18 U.S.C. § 1956, yielding a total offense level of 30. The resulting Guidelines Range (after accounting for acceptance of responsibility and Petitioner's criminal history) was estimated to be 78 to 97 months.
At the plea, Petitioner stated, under oath, that he was satisfied with his legal representation, (Plea Hr'g Tr. 11 (Jan. 27, 2010 Hr'g)), and admitted that he was guilty of conspiring to distribute and possess with intent to distribute unspecified quantities of ketamine, (id. at 38-41), that he engaged in financial transactions designed to conceal the proceeds of the ketamine distribution conspiracy (id. at 41-46), and that he possessed a firearm and ammunition after being convicted of a felony, (id. at 46-49).
Petitioner was first sentenced on January 11, 2011.3 Prior to and during sentencing, counsel for Petitioner argued for a below-Guidelines sentence based on Petitioner's attempted cooperation, his family circumstances, his medical history, and his relative culpability. (Sentencing Hr'g Tr. 6-27 (Jan. 11, 2011 Hr'g).) Counsel also addressed the forfeiture issue. (Id. at 27-37.) In particular, counsel explained how he had convinced the Government not toforfeit Petitioner's house (where Petitioner had stored drug paraphernalia, drug proceeds, and ammunition). (Id. at 28-29.) In lieu of forfeiting Petitioner's house, the Government and Petitioner agreed to a forfeiture order in the amount of $752,000, which reflected the amount of narcotics proceeds that Petitioner helped to launder. (Id. at 29.) In the course of this discussion, counsel acknowledged that "using not a very sharp pencil, I can get to that number[, $752,000,] just by going or something close to that number by going over the deposit slips that the Government had provided me." (Id.)
The Court imposed a sentence of 78 months' imprisonment, to be followed by four years' supervised release (three years on Counts Two and Three; four years on Count One). (Id. at 67; see also Judgment (Dkt. No. 43).) In imposing this sentence, the Court acknowledged Petitioner's cooperation attempts, his family circumstances, his medical issues, and his relative culpability. (Sentencing Hr'g Tr. at 57-67.) The primary factor that led the Court to impose the sentence it did was Petitioner's repeat performance; to wit, that he had been convicted for selling ketamine soon after a previous conviction for the same conduct. (Id. at 61-62.) Regarding forfeiture, the Court deferred that decision to give counsel for both sides an opportunity to discuss the matter. Ultimately, the Government and Petitioner agreed on a forfeiture order in which the Government did not forfeit Petitioner's residence and in which the Government agreed to deduct from the outstanding money judgment the amount of the funds it recovered from Petitioner's residence and the value of a car the Government seized. Petitioner and his counsel signed the consent forfeiture order. (See Forfeiture Order (Dkt. No. 44).)
On March 14, 2011, the Second Circuit held that a prior driving while ability impaired ("DWAI") conviction does not necessarily count for purposes of calculating a defendant'scriminal history. United States v. Potes-Castillo, 638 F.3d 106, 110-13 (2d Cir. 2011). In the wake of this decision, and at the Court's request, counsel for Petitioner argued for a reduction in the sentence, because one of Petitioner's criminal history points arose from a DWAI conviction. (See Letter of Andrew A. Rubin, Esq. to the Court, Mar. 25, 2011 ("Mar. 25 Rubin Letter") (Dkt. No. 32); Letter of Andrew A. Rubin, Esq. to the Court, Apr. 15, 2011 (Dkt. No. 35).) During this time, counsel also advised the Court that Petitioner had complained about his legal representation. (See Mar. 25 Rubin Letter.)
On June 1, 2011, the Court granted the request of counsel to be relieved and appointed new counsel (Paul Rinaldo, Esq.) to represent Petitioner. (See Dkt. (minute entry May 16, 2011); Order (Dkt. No. 36).) New counsel appealed the sentence on, among other grounds, that Petitioner's criminal history category should have been lower in light of Potes-Castillo. (See Pet'r's Brief on Appeal (Dkt. No. 23, 11-3868 2d Cir. Dkt.).) On a motion from the Government, the Second Circuit remanded Petitioner's sentence to address what effect the Potes-Castillo decision had on Petitioner's criminal history category. (See Mot. To Vacate J. (Dkt. No. 35, 11-3868 2d Cir. Dkt.); Order (Dkt. No. 52, 11-3868 2d Cir. Dkt.).)
The Court re-sentenced Petitioner on October 9, 2012. Before the re-sentencing, Petitioner wrote the Court on July 12, 2012 to advise the Court about, among other things, the substandard medical treatment he claimed he had been receiving at FCI Fort Dix and the assault he suffered at the hands of another inmate and a corrections officer. (See Letter of Garry Michel to the Court, July 22, 2012 (Dkt. No. 62).) These same issues were discussed at the re-sentencing, where the Court made clear that it believed it had the discretion to consider the issues raised by Petitioner, and was not limited to consideration only of the impact of a re-calculatedcriminal history. (Re-Sentencing Hr'g Tr. 16-17, 22-23, 27 (Oct. 9, 2012 Hr'g) (Dkt. No. 79).) Indeed, Petitioner spoke on his own behalf at sentencing and raised his medical care while in prison. He did not say anything about the prior prison assault. (Id. at 19-20.) While the Court calculated Petitioner to be in Criminal History Category I as a result of Potes-Castillo, (id. at 21), the Court imposed the same 78-month sentence it previously imposed, (id. at 28). In doing that, the Court explicitly considered all the factors under 18 U.S.C. § 3553(a), including Petitioner's points about the assault and his medical issues, along with other claims he made and that were made on his behalf. (Id. at 25-27.)
Petitioner subsequently filed the instant Petition.
Petitioner seeks to be re-sentenced on the claim that all three of his trial lawyers were constitutionally ineffective because (i) they failed to argue that Petitioner did not launder at least $752,080 in ketamine distribution proceeds and did not sell at least 400,000 units of ketamine, (ii) they failed to ask for a below-Guidelines sentence due to Petitioner's pre-sentence confinement difficulties, and (iii) they erred in advising Petitioner to agree to the consent order of forfeiture. (See Pet'r's Mem. 18-25; Am. Pet. 2 (Dkt. No. 71).) Furthermore, Petitioner claims, for the first time in his Reply Memorandum, that his trial lawyers were ineffective for failing to move to suppress the fruits of the Government's use of a GPS tracking device on his car in 2008. (See Pet'r's Reply Mem. of Law in Supp. of Pet. ("Pet'r's Reply") 1-3 (Dkt. No. 76).)
A prisoner in federal custody may move to vacate, set aside or correct his sentence only "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court...
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