     13-3516
     Hamilton v. United States of America

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 6th day of February, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RICHARD C. WESLEY,
 8                SUSAN L. CARNEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       JEFFREY EARL HAMILTON,
13                Petitioner-Appellant,
14
15                    -v.-                                               13-3516
16
17       UNITED STATES OF AMERICA,
18                Respondent-Appellee.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        SALLY WASSERMAN, New York, New
22                                             York.
23
24       FOR APPELLEE:                         HIRAL D. MEHTA, with Susan
25                                             Corkery on the brief, Assistant
26                                             United States Attorneys (for
27                                             Loretta E. Lynch, United States
28                                             Attorney for the Eastern

                                                  1
 1                              District of New York), Brooklyn,
 2                              New York.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Eastern District of New York (Ross, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Jeffrey Earl Hamilton appeals from the judgment of the
12   United States District Court for the Eastern District of New
13   York (Ross, J.), denying his motion to vacate, set aside, or
14   correct his sentence pursuant to 28 U.S.C. § 2255. Hamilton
15   contends that his trial counsel was ineffective for
16   providing bad advice about whether to enter a guilty plea.
17   We assume the parties’ familiarity with the underlying
18   facts, the procedural history, and the issues presented for
19   review.
20
21        On “an appeal from the denial of a § 2255 motion, we
22   review the district court’s factual findings for clear error
23   and its legal conclusions de novo.” Rosario v. United
24   States, 164 F.3d 729, 735 (2d Cir. 1998).
25
26        “Section 2255 allows a federal prisoner to attack
27   collaterally his sentence on the grounds that it was
28   ‘imposed in violation of the Constitution.’” Morales v.
29   United States, 635 F.3d 39, 42-43 (2d Cir. 2011) (quoting 28
30   U.S.C. § 2255(a)). “Because the Sixth Amendment provides
31   criminal defendants with the right to effective assistance
32   of counsel, inadequate representation is a basis for relief
33   under section 2255.” Id. at 43 (internal citation and
34   emphasis omitted).
35
36        To prevail on a claim of ineffective assistance of
37   counsel, a defendant must demonstrate that (1) counsel’s
38   performance was “deficient” as measured by an “objective
39   standard of reasonableness,” and (2) actual prejudice
40   resulted. Strickland v. Washington, 466 U.S. 668, 687-88
41   (1984).
42
43        The Sixth Amendment right to effective counsel “extends
44   to the plea-bargaining process.” Lafler v. Cooper, 132 S.
45   Ct. 1376, 1384 (2012). “To establish Strickland prejudice
46   . . . [i]n the context of pleas[,] a defendant must show the
47   outcome of the plea process would have been different with

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 1   competent advice. Id. When the prejudice alleged is the
 2   rejection of a plea offer,
 3
 4            a defendant must show that but for the ineffective
 5            advice of counsel there is a reasonable
 6            probability that the plea offer would have been
 7            presented to the court (i.e., that the defendant
 8            would have accepted the plea and the prosecution
 9            would not have withdrawn it in light of
10            intervening circumstances), that the court would
11            have accepted its terms, and that the conviction
12            or sentence, or both, under the offer’s terms
13            would have been less severe than under the
14            judgment and sentence that in fact were imposed.
15
16   Id. at 1385.
17
18        At a lengthy evidentiary hearing, Hamilton testified
19   that--contrary to prior assertions in his written filings--
20   he was the one who decided to reject several plea offers
21   from the government before trial, over counsel’s strenuous
22   and repeated recommendations that he accept. Hamilton’s
23   trial counsel testified to the same effect. The district
24   court credited that testimony: “it is not reasonably
25   probable that Hamilton would have accepted any of the
26   government’s plea offers,” even if counsel had rendered
27   different advice.
28
29        The district court denied relief on the ground that
30   Hamilton cannot sustain his burden to show prejudice--even
31   assuming that counsel’s performance was constitutionally
32   deficient (an issue we need not and do not reach).
33
34        In finding an absence of prejudice, the district court
35   relied on material contradictions between Hamilton’s habeas
36   petition and his sworn testimony at the evidentiary hearing:
37
38            Ultimately, the court disbelieves petitioner’s
39            testimony that he would have pleaded guilty but
40            for [trial counsel’s] allegedly deficient plea
41            advice. Hamilton’s lack of veracity as to this
42            critical issue--and his willingness to
43            misrepresent the facts to secure habeas relief--is
44            reflected in the significant contradictions
45            between the statements in his petition and at the
46            hearing. Perhaps most strikingly, Hamilton
47            initially insisted that [counsel] had advised him

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 1            to reject the two written plea offers. Only after
 2            the government disclosed the tape recordings that
 3            clearly indicated otherwise did petitioner admit
 4            that [counsel] had, in fact, repeatedly urged him
 5            to accept the deals.
 6
 7   The district court did not clearly err in finding that
 8   Hamilton was not credible on the decisive question of why he
 9   rejected all of the government’s plea offers. Accordingly,
10   he cannot show prejudice stemming from the decision to
11   reject the government’s pre-trial plea offers.
12
13        Hamilton also claims that his attorney provided
14   deficient representation when Hamilton asked him mid-trial
15   whether Hamilton should consider pleading to the indictment,
16   and his attorney responded that such a course was not
17   advisable. As to this claim, Hamilton has not met his
18   burden to show prejudice because the prospect of an
19   acceptance-of-responsibility reduction at sentencing is far-
20   fetched given the facts of this case. See United States v.
21   Nouri, 711 F.3d 129, 146 (2d Cir.), cert denied, 134 S. Ct.
22   309 (2013).
23
24        For the foregoing reasons, and finding no merit in
25   Hamilton’s other arguments, we hereby AFFIRM the judgment of
26   the district court.
27
28                              FOR THE COURT:
29                              CATHERINE O’HAGAN WOLFE, CLERK
30




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