Madhere v. United States
Madhere v. United States
Opinion of the Court
MEMORANDUM-DECISION and ORDER
I. BACKGROUND
Petitioner is currently serving a 33 (thirty-three) month sentence for conspiracy to distribute cocaine and possession with intent to distribute cocaine in violation of 21 U.S.C. § 846 and § 841(a)(1). Petitioner now moves for relief pursuant to 28 U.S.C. § 2255. Petitioner claims that he was denied effective assistance of counsel because his attorney, F. Stanton Ackerman, wrongly advised him to plead guilty and forego a suppression hearing and trial. He also contends that his attorney failed to represent him adequately during sentencing. Specifically, petitioner claims that his counsel failed to show him his pre-sentence report and failed to object to the enhancement of petitioner’s offense level by two points during sentencing. Additionally, petitioner claims that pursuant to 18 U. S.C. § 3568, he should receive credit for the time he spent out on bond before he began serving his sentence. Petitioner’s Memorandum of Law 05/01/92 at p. 4.
II. DISCUSSION
A. Ineffective Assistance of Counsel
A petitioner claiming ineffective assistance of counsel must establish (1) that his attorney’s performance was objectively unreasonable under “prevailing professional norms” and (2) that, but for this deficient performance, “the result of the proceeding would have been different.” U.S. v. Javino, 960 F.2d 1137, 1145 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 477, 121
L.Ed.2d 383 (1992) (quoting Strickland v. Washington, 466 U.S. 668, 688-94, 104 S.Ct. 2052, 2065-68, 80 L.Ed.2d 674, reh’g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984)). The reasonableness of counsel’s performance must be assessed from the perspective of the trial counsel, rather than through the distorted view of hindsight. Id. (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). Any acts or omissions made by counsel which “might be considered sound trial strategy” do not constitute ineffective assistance. Javino, 960 F.2d at 1145 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)).
Petitioner claims that he was denied effective assistance of counsel because his attorney convinced him to plead guilty and forgo the suppression hearing and trial, and that his counsel failed to represent him adequately during sentencing. Notwithstanding the fact that the record clearly indicates that petitioner voluntarily and knowingly entered a plea of guilty, and that he failed to object to the presentence report, his arguments would fail because he has not met the standard for an ineffective assistance of counsel claim set forth in Strickland v. Washington. The court agrees with respondents that petitioner’s representation was well within the wide range of professionally competent assistance. The advice that Ackerman gave to petitioner, to plead guilty rather than proceed with the suppression hearing and trial, was objectively reasonable advice under professional norms. As respondent correctly notes, these are the types of decisions that are made every day in criminal cases. Furthermore, even in hindsight, this proved to be a prudent and wise course for petitioner to take, for there is nothing to indicate that petitioner would have achieved a more favorable result at trial; in fact, the outcome may likely have been worse.
B. Credit for Time Out on Bond
Petitioner contends that he should receive credit towards his sentence for the time that he spent out on bail pursuant to 18 U.S.C. § 3568. That statute provides, in
III. CONCLUSION
For the foregoing reasons, petitioner’s motion pursuant to 28 U.S.C. § 2255 is hereby DENIED.
. Respondent notes that petitioner's co-defendant, who had the very evidence suppressed which petitioner sought to suppress, was convicted at trial and received a sentence of 188 months. Respondent's Letter 09/18/92 at p. 1.
Reference
- Full Case Name
- Reynald F. MADHERE v. United States
- Cited By
- 1 case
- Status
- Published