UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________ ) UNITED STATES OF AMERICA, ) ) v. ) Criminal Action No. 02-475 (RWR) ) RAMENDRA BASU, ) ) Defendant. ) ____________________________ )

MEMORANDUM OPINION AND ORDER

Petitioner Ramendra Basu moved under

to

vacate his conviction or correct his sentence arguing that his

counsel provided ineffective assistance while Basu cooperated

with the government. His motion was denied, and he now has filed

an application for a certificate of appealability. Because Basu

has not made a substantial showing that he was denied a

constitutional right, his motion will be denied.

BACKGROUND

The background of this case is discussed fully in United

States v. Basu,

(D.D.C. 2008) and United

States v. Basu, Criminal Action No. 02-475 (RWR),

(D.D.C. June 18, 2012). Briefly, Basu was an

employee at the World Bank where he entered into an agreement

with a World Bank Task Manager and a Swedish consultant to award

business to the consultant with the understanding that the

consultant would pay kickbacks to the Task Manager. Basu,

. Basu pled guilty in 2002 to conspiracy to - 2 -

commit wire fraud in violation of

, and corruptly

using instrumentalities of interstate commerce in violation of

the Foreign Corrupt Practices Act, 15 U.S.C. § 78dd-3. Under the

terms of the plea agreement, Basu agreed to cooperate with the

government. Shortly after Basu pled guilty, Assistant Federal

Public Defender Greg Spencer took over Basu’s representation.

In 2005, a Swedish court sought Basu’s testimony at the

consultant’s trial in Sweden. “Basu hoped that Spencer would

travel to Sweden to learn details that could help his case and to

‘document and be witness to [his] cooperation[,]’” but Spencer

did not go. Id. (quoting Mot. to Vacate, Ex. 1, Basu Affidavit

¶ 6). “The testimony Basu heard during the trial in Sweden made

him question whether he had facilitated bribe payments as alleged

in the information to which he pled guilty.” Id. “When Basu

returned to the United States, he learned that a sentencing

hearing had been set, and he ‘went to see Mr. Spencer in his

office and tried to explain to him as best [he] could what had

occurred at the Swedish trial.’” Id. (quoting Mot. to Vacate,

Ex. 1, Basu Affidavit ¶ 9). Basu told Spencer that he wanted to

withdraw his plea. Spencer, though, successfully moved to

withdraw as Basu’s attorney citing Basu’s dissatisfaction with

the representation provided by the Federal Public Defender’s

Office, and new counsel was appointed. Id. (citing Mot. to

Withdraw at 2.) Basu reviewed the testimony from the Swedish - 3 -

trial and other pertinent details of the case with his new

attorney who filed a motion to withdraw Basu’s guilty plea. He

argued that Basu was innocent of the charges and that Basu’s plea

was coerced. Basu,

. The motion was denied

on the grounds that Basu had voluntarily entered the plea and

that his claim of innocence lacked evidentiary support. The

government declined to file a motion for a downward departure

since Basu had tried to withdraw his guilty plea, and Basu was

sentenced to fifteen months of incarceration. Basu,

.

Basu filed a motion to vacate his conviction on the ground

that he received ineffective assistance of counsel because

Spencer did not assist him during the term of his cooperation.

Id. at *3. Basu’s sole supporting factual assertion was that

Spencer did not accompany Basu when Basu testified in Sweden.

Id. (citing Mot. to Vacate at 15-17). That motion was denied

because the court found that “Basu’s counsel’s representation did

not fall below an objective level of reasonableness and Basu

suffered no prejudice[.]” Id. at *1. Basu filed a notice of

appeal and has filed with this court an application for a

certificate of appealability. The court of appeals is holding

Basu’s appeal in abeyance pending resolution of Basu’s

application for a certificate of appealability. - 4 -

DISCUSSION

A defendant cannot appeal a final order in a proceeding

under

unless a circuit justice or a judge issues

a certificate of appealability.

(c)(1)(B). “A

certificate of appealability may issue . . . only if the

applicant has made a substantial showing of the denial of a

constitutional right.”

(c)(2). In order to

satisfy this requirement, the petitioner must demonstrate that

“reasonable jurists could debate whether (or for that matter,

agree that) the petition should have been resolved in a different

manner or that the issues presented were ‘adequate to deserve

encouragement to proceed further.’” Slack v. McDaniel,

(2000) (quoting Barefoot v. Estelle,

, 893

& n.4 (1983)). In particular, where the petition under § 2255

has been denied by the district court on the merits, “[t]he

petitioner must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims

debatable or wrong.” Id.

Basu asserted constitutionally ineffective assistance of

counsel. In order to prove such a claim, a defendant must show

“(1) that counsel’s representation fell below an objective

standard of reasonableness, and (2) that there is a reasonable

probability that, but for counsel’s errors, the result of the

proceeding would have been different.” Basu,

, at - 5 -

*2 (citing Strickland v. Washington,

(1984)). When a defendant asserts an ineffective assistance of

counsel claim based on inadequate investigation, the appellant

must “‘show to the extent possible precisely what information

would have been discovered through further investigation[,]’”

United States v. Gwyn,

(D.C. Cir. 2007)

(quoting United States v. Askew,

(D.C. Cir.

1996)), and whether that information “would have produced a

different result.” Askew,

(citations omitted).

Basu’s habeas petition complained just that Spencer did not

accompany Basu to Sweden for his testimony in December 2005.

Now, in seeking a COA, Basu makes new allegations. He now says

that Spencer was ineffective also because Spencer did not in the

two years before that testimony accompany Basu to meetings

connected with his cooperation, or do more to investigate the

details of the charges to which he had pled guilty and the

information he learned in Sweden.

Basu pled guilty to conspiracy and violating the Foreign

Corrupt Practices Act. He pled knowingly and voluntarily and

under oath. He admitted in open court that he committed the

criminal acts that violated those statutes. He sets forth no

legal or factual reason that Spencer should have been on notice

before December 2005 that there was anything further to

investigate in Sweden or elsewhere about the criminal acts Basu - 6 -

admitted under oath committing. Nor does Basu make any showing

that meetings connected with his cooperation revealed any

exculpatory information that Spencer should have expected to

learn. Nothing in his current filing reflects the requisite

substantial showing of any act or omission by Spencer that fell

below an objective standard of reasonable professional

representation.

Nor does Basu’s application illustrate how Spencer’s further

investigation would have had an impact on the outcome of his

case. Basu had already pled guilty at the time he returned from

Sweden with the new details he deems important. The only

available recourse was pursuing his motion to withdraw the guilty

plea. Both Spencer and replacement counsel met with Basu about

his new details before his motion was filed. The motion was

denied on the merits. Basu provides no legal rationale or

alternative grounds for reasonable jurists to disagree about

whether any prejudice resulted from Spencer’s alleged failure to

investigate the crimes Basu had already admitted committing or

the information from the trial in Sweden.

CONCLUSION AND ORDER

Basu has not shown that reasonable jurists would disagree or

debate the finding that his counsel’s performance was not

deficient and that Basu did not suffer prejudice. Therefore, it

is hereby - 7 -

ORDERED that the petitioner’s application [75] for a

certificate of appealability be, and hereby is, DENIED.

SIGNED this 22nd day of October, 2012.

/s/ RICHARD W. ROBERTS United States District Judge