Regis v. U.S., 08 CV 9904(CM).

• Decision Date: 01 October 2009
• Docket Number: No. 08 CV 9904(CM).,No. 05 CR 1331(CM).,08 CV 9904(CM).,05 CR 1331(CM).
• Citation: 665 F.Supp.2d 370
• Parties: Richard REGIS, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of New York

Page 370

665 F.Supp.2d 370

Richard REGIS, Petitioner, v. UNITED STATES of America, Respondent.

No. 08 CV 9904(CM).

No. 05 CR 1331(CM).

United States District Court, S.D. New York.

October 1, 2009.

Richard Regis, Otisville, NY, pro se.

DECISION AND ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

McMAHON, District Judge:

Information S 05 Cr. 1331(CM) (the "Information") was filed on June 28, 2006 against Regis. Specifically, the Information charged Regis with: (1) one count of conspiring to commit armed bank robbery and armed credit union robbery, in violation of Title 18, United States Code, Section 371; (2) one count of conspiring to violate the Hobbs Act, in violation of Title 18, United States Code, Section 1951; (3) one count of attempted armed bank robbery, in violation of Title 18, United States Code, Sections 2113(a) and 2; (4) one count of armed credit union robbery, in violation of Title 18, United States Code, Sections 2113(d) and 2; and (5) one count of possessing a firearm in furtherance of an attempted bank robbery, in violation of Title 18, United States Code, Section 924(c)(1)(A)(i) and 2.

On June 28, 2006, Regis pled guilty to all five counts of the Information pursuant to a written plea agreement in which he stipulated, inter alia, that he would not appeal or otherwise challenge a sentence that was within or below the range of 181 to 211 months' imprisonment. On November 13, 2006, this Court sentenced Regis to a term of 211 months' imprisonment, to be followed by a five-year term of supervised release, and ordered Regis to pay $301,900 in restitution as well as a mandatory $500 special assessment. Regis is currently serving his sentence.

On June 30, 2008, the Court of Appeals for the Second Circuit dismissed Regis's appeal as, inter alia, untimely filed.

On or about October 15, 2008, Regis filed the instant petition pursuant to 28 U.S.C. § 2255.¹ Regis contends that: (1) he received ineffective assistance of counsel from Gail Gray, Esq.; and (2) the evidence was not sufficient to establish his guilt on Count Three of the Information.

Ineffective Assistance of Counsel Claim

Regis argues that his attorney, Gail Gray, provided him with ineffective assistance.

To prevail on a claim of ineffective assistance of counsel, a defendant must (1) overcome a "strong presumption" that his attorney's conduct was reasonable and show that the representation "fell below an objective standard of reasonableness" under "prevailing professional norms"; and (2) "affirmatively prove prejudice," that is, show "a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-89, 693-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord, e.g., Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 513 U.S. 820, 115 S.Ct. 81, 130 L.Ed.2d 35 (1994).

To satisfy the first prong of Strickland, a defendant must show that his "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the Sixth Amendment." Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. 2052. "The benchmark for judging [a] claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987) (citing Strickland, 466 U.S. at 686, 104 S.Ct. 2052).

Even if an attorney's performance was objectively unreasonable, the defendant must also prove prejudice. The defendant "must show `that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). The reviewing court must assess "whether, absent counsel's deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different." Mayo v. Henderson, 13 F.3d at 534.

Regis alleges that Ms. Gray: (1) "induced" him to plead guilty to Count Three of the Information even though she "was fully aware that [Regis] had no involvement and/or knowledge of the use of the [f]irearms at the time of the offense . . . and did not explain to [him] that signing the plea agreement would waive [his] right to appeal the conviction and sentence on Count 3" (Pet. at 5); (2) "caused [him] to waive [his] right to appeal . . . [and] led [him] to believe that [he] would be allowed to appeal the gun conviction and sentence" (Pet. at 8); and (3) "mislead [him] into pleading guilty . . . [and] lead [him] to believe that [he] could not be sentenced to consecutive sentence [on the firearm count]" (Pet. at 9).

In her affidavit, Gray states that Regis "did not assert his innocence on the federal 924(c) count [Count Three of the Information] or any other count, and his authorization to secure a beneficial resolution of his case embraced negotiation of a plea to that count as well as others." (Exhibit D, Gray Aff. ¶ 6). She further states that Regis's contention that "he is not guilty on the 924(c) count is belied by their numerous conversations. . . ." (Gray Aff. ¶ 10).

According to Gray, Regis "read the agreement, listened carefully to [Gray's] explanations and fully participated in discussions regarding the plea provisions, his sentence exposure and the waiver of the his right to appeal." (Gray Aff. ¶ 8). At no time did Gray put "words in [Regis's] mouth nor did [she] suggest what words he should use or what answers he should give during the allocution." (Gray Aff. ¶ 14). She advised Regis "of the constraints imposed on his right to appeal [and] never stat[ed] or suggest[ed] he was free to somehow circumvent or overcome the explicit waiver." (Gray Aff. ¶ 16).

Finally, Gray states that she did not "mislead [Regis] into believing he would escape consecutive punishment for the agreed-upon use and possession of a firearm during a crime of violence." (Gray Aff. ¶ 20).² Nor, did Gray mislead Regis "into believing that he would be allowed to appeal the gun count (or any other count)." (Gray Aff. ¶ 19). Further, at "no time prior to the imposition of sentence did [Regis] express a desire or intention to appeal . . . not until after the sentence was imposed, and the deadline for timely filing of the notice of appeal had passed . . . [did Regis mention] an interest in appealing the conviction and ask[] that I file a notice of appeal on his behalf." (Gray Aff. ¶ 17-18).

Other than offering his own self-serving statements, there is simply no evidence to support Regis's unfounded allegations.

Moreover, the plea allocution and signed plea agreement contradict Regis's claims in the instant petition. During the plea allocution, Magistrate Judge Smith confirmed that Regis understood the charges against him and the maximum and mandatory minimum penalties he was facing; that he had discussed the charges with his attorney, Gail Gray, Esq.; and that he was satisfied with Ms. Gray's representation. (Exh. A at 3-15). Specifically, Magistrate Judge Smith advised Regis that by pleading guilty to Count Three of the Information—the Section 924(c) count—he "would be subject to a mandatory minimum five-year term to be imposed consecutively to any term imposed for Count 2." (Exh. A at 12).

Magistrate Judge Smith also directed Regis's attention to the Plea Agreement, and confirmed that no promises other than those contained in the Plea Agreement had been made to induce Regis to plead guilty. (Exh. A at 10). Magistrate Judge Smith similarly confirmed that no threats had been made to Regis to induce him to plead guilty, and that no one had forced him to sign the Plea Agreement. (Exh. A at 12).

Magistrate Judge Smith specifically asked Regis whether he understood the "waiver" provisions in the Plea Agreement by asking him:

Do you also understand that you would have the right to appeal any sentence that is greater than the guidelines range set forth in the Plea Agreement and that the government would have the right to appeal any sentence that is lower than the guidelines range set forth in the plea agreement, do you understand that? . . . . Do you understand that one effect of this Plea Agreement is that you are giving up other rights that you might have had to appeal the sentence imposed by the Court, do you understand that?

(Exh. A at 17-18). Regis answered each of these questions, "Yes, ma'am." (Exh. A at 18).

These statements "carry a strong presumption of verity," Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977), and are conclusive here, absent some compelling reason to believe that they were not true. See United States v. Gonzalez, 970 F.2d 1095, 1101 (2d Cir.1992): United States v. Napolitano, 212 F.Supp. 743, 747 (S.D.N.Y.1963) (Weinfeld, J.).

Further, the plea agreement—which he stated under oath that he understood and had signed freely and voluntarily—also stated, in relevant part:

the defendant is charged in Count Three with a violation of Title 18, United States Code, Section 924(c)(1)(A)(I), which requires a mandatory term of imprisonment of 60 months to be served consecutively to the term of imprisonment imposed on Count Two of the Indictment

* * *

the defendant will not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the Stipulated Guidelines Range set forth above

* * *

the defendant hereby acknowledges that he has accepted this Agreement and decided to plead guilty because he is in fact guilty.

(Exhibit B at 5-6) (emphasis added).

At sentencing, the Court confirmed with Regis that he was aware that under the Plea Agreement that he had waived his right to appeal a sentence of 211 months' imprisonment. (Exh. C at 20-21). Regis was shown a copy...