Purdy v. Zeldes

• Decision Date: 06 February 2003
• Docket Number: No. 02-7468.,02-7468.
• Citation: 337 F.3d 253
• Parties: John M. PURDY, Jr., Plaintiff-Appellant, v. Jacob D. ZELDES, and Zeldes Needle and Cooper, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

337 F.3d 253

John M. PURDY, Jr., Plaintiff-Appellant, v. Jacob D. ZELDES, and Zeldes Needle and Cooper, Defendants-Appellees.

No. 02-7468.

United States Court of Appeals, Second Circuit.

Argued December 20, 2002.

Decided February 6, 2003.

As Amended August 5, 2003.

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John J.E. Markham, II, Markham & Read, Boston, MA, for Plaintiff-Appellant.

Eric S. Miller, Sheehey Furlong & Behm P.C., Burlington, VT, for Defendants-Appellees.

Before: FEINBERG, MESKILL and CALABRESI, Circuit Judges.

FEINBERG, Circuit Judge.

Plaintiff John Purdy appeals from a judgment of the United States District Court for the District of Vermont in his malpractice action against his former attorneys, defendants Jacob D. Zeldes and the law firm of Zeldes, Needle & Cooper, for their alleged negligent representation of Purdy in a criminal case. The district court (Sessions, J.) granted summary judgment to defendants, holding that Purdy's malpractice claims were barred by the collateral estoppel effect of an earlier habeas proceeding brought by Purdy. In that habeas proceeding, Purdy's claim that defendants had provided ineffective assistance of counsel in the criminal case was rejected both by the district court and the Second Circuit. United States v. Purdy, 245 F.Supp.2d 411 (D.Conn.1999); Purdy v. United States, 208 F.3d 41 (2d Cir.2000). In this appeal, Purdy argues that his burden of proof in the habeas suit claiming ineffective assistance of counsel was greater than his burden of proof in his current malpractice claim so that the district court erred in applying the doctrine of collateral estoppel. For the reasons stated below, we affirm.

I. Background

A. Conviction

In May 1996, Purdy was convicted of conspiracy to pay kickbacks in violation of the Anti-Kickback Act, 41 U.S.C. § 51-58. As President and CEO of Purdy Corporation, a company that manufactures parts and components for military aircraft, Purdy fell into the practice, apparently widespread in the industry at the time, of paying bribes to purchasing agents in order to secure contracts. Upon learning of a government investigation into these practices, Purdy hired defendants Zeldes and his law firm to represent him. Purdy was eventually indicted and brought to trial in the United States District Court for the District of Connecticut. However, he steadfastly maintained his innocence of the charges both to prosecutors and his attorneys. Although there were discussions between Zeldes and prosecutor Mark Califano about a possible plea, Purdy made the decision to proceed to trial. After a jury found Purdy guilty, the court sentenced him to 37 months in prison in December 1996.¹ His sentence also included a fine of $250,000 and 400 hours of community service.

B. Habeas Proceeding

After his conviction and an unsuccessful appeal to this court, United States v. Purdy, 144 F.3d 241 (2d Cir.1998), Purdy discovered that during plea negotiations Califano had remarked to Zeldes that his case would probably be assigned to Judge Burns and that Califano "didn't know of any case where a white collar criminal with [Purdy's] guidelines had gone to jail with Judge Burns or Judge Dorsey." Zeldes, however, never told Purdy of the prosecutor's comment and informed Purdy instead that on a plea of guilty "the likely period of incarceration would be between 18 and 24 months, with the possibility, but not the certainty, of a lesser sentence." Purdy also alleges that as a result of the government's investigation, 29 other first-time offenders were charged with similar crimes. According to Purdy, each of the 29 defendants pled guilty and received probationary sentences and relatively small fines.

Based on this information, in March 1999 Purdy filed a petition for a writ of habeas corpus, 28 U.S.C. § 2255, in the District Court of Connecticut alleging ineffective assistance of counsel. Purdy argued that Zeldes's representation was constitutionally deficient because Zeldes failed to fully and adequately inform him about plea discussions with prosecutor Califano, and Zeldes did not provide Purdy with adequate advice about his plea options. Purdy also argued that had Zeldes fully informed him of the prosecutor's opinion and the results of the cases against the 29 other defendants, he would have pled guilty and his sentence would have been much less than the 37 months he received after trial. During the Connecticut habeas proceeding before Chief Judge Covello, Zeldes admitted that Califano made the above remarks to him and that he did not inform Purdy of the prosecutor's opinion.² However, Zeldes defended his decision not to inform Purdy of the prosecutor's statement on the grounds that there was no certainty that the case would be assigned to either Judge Burns or Judge Dorsey; that Zeldes had recently represented a client who was sentenced to 4½ years in prison by Judge Dorsey in a white collar case; and that he did not want to coerce a client who continued to maintain his innocence into making a guilty plea.

The habeas court analyzed Purdy's claims under the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The court held that in order to make out a claim for ineffective assistance of counsel under Strickland, Purdy had to show "that his counsel's performance was deficient" and "that this deficient performance prejudiced the defense." 245 F.Supp.2d at 414. The habeas court held that because Purdy was unable to show that Zeldes's representation prejudiced his defense, he was not entitled to habeas relief. The court stated that it did not "find credible Purdy's testimony that: 1) he would have pleaded guilty had he been advised of the speculative comments made by Califano; or 2) he would have cooperated had he been advised of the government's comments." Id. at 417.

On appeal, this court considered at length Strickland's first prong — whether Zeldes's representation was deficient. We held that the habeas court was correct in concluding that, "[b]ecause Zeldes did not place an absolute floor under the sentence of 18 months but suggested the `possibility, but not a certainty' of a lower term, ... Zeldes's communications adequately conveyed the government's position." 208 F.3d at 45. We also concluded that "it was reasonable for Zeldes not to have told Purdy of Califano's comment" and that Zeldes's decision not to explicitly advise Purdy whether or not to make a guilty plea was "within the range of professional reasonableness." Id. at 45-46. We also found no basis to "upset the [habeas] court's credibility determination of Purdy's post-conviction testimony" or its holding that Purdy failed to establish prejudice. Id. at 49.

C. Malpractice Action

After losing his appeal from denial of habeas relief, Purdy brought this malpractice action against Zeldes and his firm in the District Court of Vermont.³ In his complaint, Purdy alleged essentially the same deficiencies in defendants' representation of him in the criminal case.⁴ Purdy argued that Zeldes was negligent (1) by failing to discover and disclose that 29 other persons charged with the same offense as Purdy avoided any prison sentence by pleading guilty; (2) by failing to disclose Califano's statements; and (3) by failing to advise Purdy post-sentencing that he could still cooperate and receive a reduction in his sentence. Defendants moved for summary judgment, arguing that Purdy had a full and fair opportunity to litigate the first two issues before the habeas court and was therefore collaterally estopped from bringing them again in a malpractice action. As to the third claim, Zeldes argued that Purdy did not suffer any harm because he eventually did receive a reduced sentence for cooperating with the government. Judge Sessions agreed on the issue of collateral estoppel, holding:

[I]n the circumstances of this case, where both the district court and the Second Circuit found that Purdy had failed to establish prejudice under Strickland, Purdy is now collaterally estopped from re-litigating the issues presented in his habeas petition in this action.

Purdy v. Zeldes, 166 F.Supp.2d 935, 943 (D.Vt.2001).

However, the judge held that defendants were not entitled to summary judgment on Purdy's post-sentence claim of negligence. Id. This appeal followed.

II. Discussion

A. Jurisdiction

Prior to reviewing the Vermont district court's decision on collateral estoppel, we must consider whether we have jurisdiction over this appeal. The court granted summary judgment to defendants only on plaintiff Purdy's two claims arising from Zeldes's pre-sentencing representation. The court denied summary judgment without prejudice "with respect to Purdy's allegation that Zeldes failed to accurately inform or represent him regarding his post-sentence cooperation opportunities." 166 F.Supp.2d at 944. However, after some discovery, Purdy decided he did not wish to pursue this remaining claim by itself. He therefore moved to dismiss that claim without prejudice to refiling it if, but only if, the dismissal of his first two claims was reversed on appeal. The district court granted the motion and dismissed the case with that condition.

In Chappelle v. Beacon Communications Corp., 84 F.3d 652 (2d Cir.1996), we held that a plaintiff could not appeal an adverse decision on some of her claims by simply voluntarily dismissing her remaining claims without prejudice. We explained the reasoning behind such a rule as follows:

A plaintiff's attempt to appeal a prior adverse determination following the dismissal of his remaining claims without prejudice necessarily implicates the policies of the final judgment rule. Allowing such an appeal following a voluntary dismissal with prejudice ... furthers the goal of judicial economy by permitting a plaintiff to forgo litigation on the dismissed claims while accepting the risk that if the appeal is unsuccessful, the litigation will end. By contrast,...