U.S. v. Leone

• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-1255
• Citation: 215 F.3d 253
• Court: U.S. Court of Appeals — Second Circuit
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. ANTHONY LEONE aka "Shaggy", aka Donovan Lindo, EVELINE HENRY, aka "Rose", JOSEPH DODD, aka "Mikey", ANN MARIE MURDOCK, WINSTON GEORGE WEIR, aka "Bushy", LYNDAL CHARLES SCOTT, aka "Scotty", ROBERTA JAMES, EUGENE GAYLE, Defendants, DANIEL THOMPSON, aka "Danny", Defendant Appellant

Page 253

215 F.3d 253 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. ANTHONY LEONE aka "Shaggy", aka Donovan Lindo, EVELINE HENRY, aka "Rose", JOSEPH DODD, aka "Mikey", ANN MARIE MURDOCK, WINSTON GEORGE WEIR, aka "Bushy", LYNDAL CHARLES SCOTT, aka "Scotty", ROBERTA JAMES, EUGENE GAYLE, Defendants, DANIEL THOMPSON, aka "Danny", Defendant Appellant

Docket No. 99-1255

August Term, 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Decided: June 14, 2000

The defendant, Daniel Thompson, moves for a remand to the district court so that an evidentiary hearing can be conducted concerning his claim of ineffective assistance of trial counsel. The government cross-moves for the dismissal of Thompson's appeal or, in the alternative, for summary affirmance.

We grant Thompson's motion and deny the government's cross-motion.

WILLIAM E. CRACO, Assistant United States Attorney for Mary Jo White, United States Attorney, Southern District of New York, for Appellee.

SANFORD M. KATZ, New York, N.Y., for Defendant-Appellant.

Before: WALKER, CALABRESI, KATZMANN, Circuit Judges.

CALABRESI, Circuit Judge:

BACKGROUND

Appellant Daniel Thompson was arrested on August 29, 1997 and charged with conspiring to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 846. Thompson retained Rudy Velez as counsel. The government offered Thompson a plea agreement, dated February 11, 1998 ("First Agreement"), which he rejected. Subsequently, however, the government offered a second plea agreement, dated June 16, 1998 ("Second Agreeement"), which Thompson accepted. The Second Agreement contained a stipulation providing that, because Thompson was an organizer, leader, manager, or supervisor in the conspiracy, a two-level increase in his offense level would be imposed pursuant to the Sentencing Guidelines § 3B1.1(c), and that his resulting sentencing range would be 78 to 97 months. This two-level increase was not included in the First Agreement.

Having waived his right to have his plea taken by the district judge (Preska, J.), Thompson appeared before Magistrate Judge James C. Francis on June 22, 1998 and pleaded guilty to conspiring to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841(b)(1)(B). When asked by Magistrate Judge Francis whether he was satisfied with his attorney, Thompson stated that he was unsure whether Velez had previously handled federal criminal cases, but he went on to affirm that this uncertainty did not affect the voluntariness of his plea. Judge Francis found that Thompson's plea was knowing and voluntary and recommended that the district court accept it.

On July 6, 1998, Thompson wrote a letter to Judge Preska stating that he wished to withdraw his guilty plea. By memo endorsement of that letter, the district court informed Thompson that any motions on Thompson's behalf needed to be made through his attorney. At a conference held before Judge Preska in August 1998, the district court relieved Velez at Thompson's request and, pursuant to the Criminal Justice Act, appointed Sanford M. Katz, who remains Thompson's attorney on appeal. Katz thereafter informed the district court that Thompson would not move to withdraw his plea.

Thompson was sentenced on April 15, 1999. Asking the district court to sentence Thompson to the bottom of the Guidelines range, Katz argued that the two-point increase in the Second Agreement had been absent from the First Agreement and that he thought that Thompson's failure to accept the more favorable offer resulted from "some terrible advice from an attorney who clearly was not familiar with either the sentencing guidelines or federal criminal procedure."¹ The district court sentenced Thompson to 78 months' incarceration, the bottom of his Guidelines range.

On April 23, 1999, Thompson filed, pro se, a timely notice of appeal. Katz subsequently filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that, after reviewing the record, he believed that there were no non-frivolous issues to be raised on appeal. The government, in turn, moved for dismissal of the appeal, or in the alternative for summary affirmance. We denied both motions and directed Katz to brief the issue of whether Velez was ineffective in failing to advise Thompson adequately concerning the First Agreement. Instead of doing so, Katz submitted a new motion asking us to hold further briefing in abeyance and to remand the case to the district court so that an evidentiary hearing could be conducted on the ineffective assistance issue. He argued that "the record is . . . bereft of any reference to the rejected, but obviously more beneficial, initial plea offer," and that "[i]t is therefore impossible for appellant's present counsel to meaningfully address" the issue of trial counsel's possible ineffective assistance in that regard without an evidentiary hearing to develop the record. The government opposes such a remand and cross-moves for the dismissal of Thompson's appeal or, in the alternative, for summary affirmance, arguing that we should not consider an ineffective assistance of counsel claim that cannot be decided by us on the existing record and that such claims should be made later in a 28 U.S.C. § 2255 habeas corpus petition.

DISCUSSION

In support of its position, the government cites Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993). The government contends that, under Billy-Eko and its progeny, this Court has repeatedly held that we "ordinarily will not review an ineffectiveness claim on direct appeal when the record on the issue is silent, and that the appropriate vehicle for raising the ineffectiveness argument is a [habeas] petition." In Billy-Eko, however, we did not hold that, as a categorical matter, we would not hear ineffective assistance claims on direct appeal. We held merely that ineffective assistance of counsel claims not raised on direct appeal may be brought as part of a § 2255 petition except when (1) the habeas petitioner was represented by new counsel on direct appeal and (2) the ineffective assistance claim was "based solely on the record developed at trial." Id. at 115.

In other words, Billy-Eko held that a defendant was not required to bring an ineffective assistance claim on direct appeal unless his claim fell within the "narrow category of cases" delineated by the two criteria. United States v. Salameh, 152 F.3d 88, 160 (2d Cir. 1998) (per curiam), cert. denied, 525 U.S. 1112 (1999). Billy-Eko did not hold that a defendant was precluded from bringing a claim for ineffective assistance in all other situations, or that we were prohibited from hearing such claims. Thus, in subsequent cases we have repeatedly emphasized "that the Billy-Eko doctrine is discretionary." United States v. Williams, 205 F.3d 23, 35 (2d Cir. 2000) (quoting Salameh, 152 F.3d at 160-61). Moreover, in Billy-Eko itself, we noted that in certain circumstances in which an appellant raised a claim for ineffective assistance on direct appeal that did not meet the two criteria, we might "remand the claim to the district court" for further fact-finding. Billy-Eko, 8 F.3d at 116; cf. United States v. Tarricone, 996 F.2d 1414, 1418-20 (2d Cir. 1993) (holding with respect to a claim for ineffective assistance on direct appeal that, because we could not determine whether trial counsel had acted...