Kuchinski v. USA CV-95-548-M 07/11/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Steve Kuchinski, Petitioner,

v. Civil No. 95-548-M

United States of America, Respondent.

O R D E R

Based on his guilty pleas. Petitioner was convicted of two

counts of an information charging him with 1) unlawful

interference with commerce by a public official, in violation o

, and 2) wire fraud, in violation of

and 1346. He was subseguently sentenced to, inter alia

terms of imprisonment of 20 months on each count, to run

concurrently. The prison sentence imposed was below the

applicable Guideline range (30 to 37 months) due to the

prosecution's motion under U.S.S.G. § 5K1.1, which recognized

Petitioner's substantial assistance in the investigation and

prosecution of others. Petitioner was represented at his plea

hearing and at sentencing by James A. Connor, Esguire.

Petitioner now seeks a reduction in his sentence under

, which provides in relevant part: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

A motion for such relief may be made at any time.

While there is no automatic right to the appointment of

counsel in a proceeding brought under § 2255, and a hearing is

not reguired if a petitioner's allegations, accepted as true,

would not entitle him to relief (or if the allegations are

contradicted by the record, are inherently credible, or amount to

mere conclusions rather than statements of fact), nevertheless,

the court scheduled a hearing to give Petitioner a full

opportunity to supplement his rather conclusory assertions of

ineffective assistance of counsel during his plea hearing and

during sentencing. The court also appointed counsel to represent

Petitioner at that hearing.

Petitioner's original "Motion for Modification of Sentence"

(document no. 1) and his "Supplemental Motion 2255 for

2 Modification of Sentence" (document no. 3) taken together, raise

only one issue, that might warrant relief if his generalized

allegations are found to be meritorious: ineffective assistance

of counsel. See Order dated February 22, 1996 (document no. 2).

Otherwise, Petitioner's claims are entirely without merit.

For example. Petitioner challenges the "two level increase

for [his] receipt of more than one bribe," but offers no reason

why U.S.S.G. § 201.1(b)(1) should not have operated to increase

the applicable offense level by 2. He also claims that he was

denied a § 5K1.1 departure without explanation, when in fact he

received both a § 5K1.1 downward departure and an explanation.

During the hearing. Petitioner reorganized his varied claims

for relief and asserted basically one claim consisting of four

subparts. Petitioner argued that his sentence was imposed in

violation of the Constitution or laws of the United States

because he was denied effective assistance of counsel during the

sentencing phase, because his counsel:

1. Had a "conflict of interest" arising from the fact

that Attorney Connor, who was retained counsel, reduced his usual

fee, collected only a portion of that reduced fee, and had little

hope of actually recovering the balance owed. (Petitioner

argues, essentially, that Attorney Connor suffered from an

3 economic disincentive and was thus motivated to provide less than

adequate representation);

2. Failed to argue for, or present evidence to

support, a discretionary downward departure based upon

Petitioner's alleged "aberrant behavior;"

3. Failed to argue for, or present evidence to

support a discretionary downward departure based upon the

victims' roles in his offenses of conviction (U.S.S.G. § 5K2.10);

and

4. Failed to argue for, or present evidence to

support, a discretionary downward departure based upon his age,

his alleged health problems, his wife's alleged health problems,

and his family circumstances (U.S.S.G. § 5K2.0).

Petitioner abandoned his earlier claim that Attorney

Connor's representation was Constitutionally deficient during the

plea hearing.

Ineffective Assistance of Counsel

In order to obtain relief under § 2255 on grounds that he

was deprived of his right to effective assistance of counsel.

Petitioner must show, first, that his counsel's performance was

Constitutionally deficient and, second, that he was prejudiced by

4 that deficient performance. Strickland v. Washington,

(1984); Hill v. Lockhart,

(1985); United

States v. Mala,

(1st Cir. 1993) cert, denied,

(1994); United States v. Michaud,

(1st

Cir. 1991); Lopez-Nieves v. United States,

(1st Cir.

1990). As discussed below. Petitioner fails on each prong.

A. Conflict of Interest

Attorney Connor did not have a conflict of interest.

Mr. Connor testified credibly that he had known Petitioner for a

number of years, agreed to represent him knowing that Petitioner

was not a person of financial means, voluntarily reduced his

customary fee, and did so without regard to whether that reduced

fee would ever actually be paid. He also testified credibly that

he provided the same effort and brought to bear the same skills

and judgment that he would have employed had he charged his usual

fee (or no fee at all). There was no credible evidence that

Attorney Connor failed in any duty because he perceived his fee

arrangement with Petitioner to be inadeguate. Petitioner's

conclusory contrary implications were neither credible nor based

in fact, nor supported by any credible evidence.

5 B. Aberrant Behavior Departure

Attorney Connor did not argue for an aberrant behavior

departure at sentencing, but that fact hardly amounts to

Constitutionally deficient representation since the facts of

record would not have supported such an argument and, in any

event. Petitioner was not prejudiced because the court would not

have exercised its discretion to grant such a motion even if it

had been made. See e.g. United States v. Grandmaison,

(1st Cir. 1996). Petitioner was convicted of two separate

and unrelated offenses related to bribery and public corruption

while serving as an elected public official. He did not

establish at the § 2255 hearing that evidence existed of which

Attorney Connor was or should have been aware which could have

established either Petitioner's otherwise exemplary character, or

his exceptional charitable activities, such that either an

aberrant behavior departure or a departure based on extraordinary

offender characteristics would be warranted. Given that

Petitioner pled guilty to two offenses involving public

corruption and given the absence of any persuasive evidence of

Petitioner's otherwise exemplary character or extensive

charitable activities, and given the circumstances of the

offenses of conviction (influence peddling), the court would not

6 have exercised its discretion to depart downward on "aberrant

behavior" grounds, even if, legally, it could have done so.

Accordingly, Attorney Connor's performance in this regard was not

Constitutionally deficient, and, in any event. Petitioner was not

prej udiced.

C. Departure Based on Victims' Role in the Offense

Attorney Connor also did not argue for or present evidence

to support a discretionary downward departure under U.S.S.G.

§ 5K2.10, entitled "Victim's Conduct (Policy Statement)." But

that is also not surprising, since the facts of record would not

have supported that argument either. And, Petitioner was not

prejudiced in any event, because the court would not have

exercised its discretion to grant such a departure. Section

5K2.10 is generally intended to permit eguitable sentencing below

the applicable Guideline range where the victim of an offense

engaged in wrongful conduct which contributed significantly to

provoking the offense behavior. Section 5K2.10, by its terms,

"usually would not be relevant in the context of non-violent

offenses." Petitioner's offenses were non-violent. Furthermore,

that section would, in my judgment, have been particularly

inapplicable in Petitioner's case because his real victims were

7 not the people who paid him money for his influence or his vote,

but the citizens of Nashua who elected him to office and who he

was sworn to serve honestly and uprightly. Those victims did

nothing at all to provoke Petitioner's offenses beyond trusting

him to honestly represent their legitimate interests. Attorney

Connor's failure to argue for a downward departure based on

victim conduct was neither Constitutionally deficient, nor did it

prejudice Petitioner in any way.

D. Departure Based on Age, Health, and Family Circumstances

Finally, Petitioner argues that Attorney Connor's

representation was Constitutionally deficient because be failed

to argue for, or present evidence to support a discretionary

departure under U.S.S.G. § 5K2.0, based upon Petitioner's age,

his alleged physical infirmities, his wife's anxiety, his wife's

alleged physical infirmities, the absence of family support for

his wife, and general family and economic circumstances. Once

again, however, nothing presented in the pleadings or at the

hearing would support a departure on the grounds asserted. It

was not incumbent upon Attorney Connor to make such a motion

given the facts of record. Petitioner did not demonstrate that

he suffers from any extraordinary physical impairment or infirmity or illness. See U.S.S.G. § 5H1.4. Moreover,

Petitioner's age (67) would not have been particularly relevant

in determining whether a discretionary departure should have been

granted (§ 5K1.1), especially since Petitioner has not

demonstrated that he is either physically impaired or

particularly infirm. Besides general conclusory assertions,

nothing was presented at the hearing to suggest that Petitioner's

family circumstances or obligations are unigue, or that his

wife's anxiety or alleged health problems are particularly

noteworthy or unigue. In short. Petitioner did not show that

Attorney Connor either was aware or should have been aware of any

facts that, if presented and argued at sentencing, might have

resulted in a downward departure under § 5K2.0. Indeed, even if

Attorney Connor had argued all of the factors Petitioner alludes

to, and even if Attorney Connor had presented evidence at

sentencing to support Petitioner's current factual assertions,

the court would still not have granted a discretionary departure

downward, because of the absence of any unigue factors taking

this case out of the "heartland" carved out by the Guidelines.

Such a departure is, in the end, discretionary, and even if such

a departure might have been legally permissible in this case, I

would not have departed downward on such grounds given the Petitioner's arguments and evidence presented at the hearing (had

they been presented at sentencing). Accordingly, Attorney

Connor's failure to move for a departure under § 5K2.0 neither

constituted ineffective assistance, nor did it prejudice

Petitioner in any way.

Conclusion

Because Attorney Connor's representation of Petitioner was

neither Constitutionally defective nor prejudicial to Petitioner,

the relief under

is hereby denied. Attorney

Connor provided effective assistance to Petitioner which was

"well within the range of competence demanded in criminal cases,"

McMann v. Richardson,

(1970), and well "within

the wide range of reasonable professional assistance," Argencourt

v. United States,

(1st Cir. 1996) (guoting

Strickland,

). The Petition is dismissed.

10 SO ORDERED.

Steven J. McAuliffe United States District Judge

July 11, 1996

cc: Albert E. Scherr, Esq. Paul M. Gagnon, Esq.

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