05-3182-pr
USA v. Pitcher


                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT
                                      _____________________

                                       August Term, 2008
(Argued: October 24, 2008                                               Decided: March 11, 2009)
                                      Docket No. 05-3182-cr

                                    _____________________

                                    United States of America,
                                                           Respondent-Appellant,

                                                -v.-

                                         Douglas Pitcher,
                                                        Petitioner-Appellee.
                                   _______________________

BEFORE:          WESLEY, HALL, Circuit Judges, and OBERDORFER, District Judge.*
                                ______________________

         Appeal from grant of Petitioner’s 28 U.S.C. § 2255 motion to vacate sentence entered in
the United States District Court for the Eastern District of New York (Trager, J.). Following a
jury trial, Petitioner was convicted of heroin trafficking related offenses. The district court
vacated Petitioner’s sentence, finding that trial counsel was ineffective for providing Petitioner
an unreasonably optimistic assessment of his chances of acquittal following trial. The district
court’s holding is contrary to our previous ruling on direct appeal that any error in counsel’s
advice to his client resulted from Petitioner’s own dishonesty in dealing with his attorney rather
than from ineffective assistance. We reverse the judgment of the district court and remand for
further proceedings consistent with this opinion.
                                     ______________________

FOR RESPONDENT-APPELLANT:                     JO ANN M. NAVICKAS, (DAVID C. JAMES, on the
                                              brief), Assistant United States Attorneys, for Benton
                                              J. Campbell, United States Attorney for the Eastern
                                              District of New York, New York, NY.

FOR DEFENDANT-APPELLEE:                       JOHN J.E. MARKHAM , II, Boston, MA.


        *
       The Honorable Louis F. Oberdorfer, United States District Judge for the District of
Columbia, sitting by designation.
                                    ______________________


PER CURIAM:

       The government appeals the order of the United States District Court for the Eastern

District of New York (Trager, J.) granting Petitioner Douglas Pitcher’s motion to vacate his

sentence, pursuant to 28 U.S.C. § 2255, due to defense counsel’s ineffective assistance. Pitcher

v. United States, 371 F. Supp. 2d 246, 258 (E.D.N.Y. 2005). On direct appeal, Pitcher raised,

inter alia, an ineffective assistance of counsel claim. We rejected this claim and affirmed his

conviction. United States v. Pitcher, 7 F. App’x 119, 2001 WL 356941 (2d Cir. 2001). We hold

that the district court’s finding in response to Petitioner’s 28 U.S.C. § 2255 petition—that trial

counsel provided ineffective assistance by giving Pitcher an unreasonably optimistic assessment

of Pitcher’s prospects at trial—is contrary to this Court’s prior ruling on direct appeal.

Accordingly, we reverse.

                                         BACKGROUND

       In May 1998, Petitioner-appellee Douglas Pitcher was indicted for conspiracy to import

heroin (21 U.S.C. § 963), conspiracy to possess heroin with intent to distribute (21 U.S.C. §

846), and importing heroin (21 U.S.C. § 952). Pitcher, who was not a newcomer to the criminal

justice system, was represented by John Jacobs. Pitcher maintained his innocence and refused

any government cooperation agreement that required him to plead guilty.1 Following a jury trial




       1
        According to defense counsel’s recollection of events, Pitcher “was not interested in
cooperation and was adamant about his innocence. He steadfastly maintained that he did not
commit the crimes for which he was indicted and absolutely refused to plead guilty.”

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in the Eastern District of New York, Pitcher was convicted in October 1998, of all three counts

charged in the indictment.

       After Pitcher’s conviction, but before sentencing, another coconspirator, Mauricio Saenz,

was arrested and began cooperating with the government. Saenz confirmed that Pitcher had been

an active and knowing participant in the conspiracy to import heroin into the United States.

Saenz’s cooperation was relayed to Pitcher, who then met with the government in March 1999,

and admitted to his involvement in the conspiracy.

       In an April 1999 status conference held prior to sentencing, the district court asked

Attorney Jacobs why Pitcher had gone to trial instead of pleading guilty. Jacobs explained that

his client had lied to him “about significant things” related to his involvement in the conspiracy.

He added, “Had I realized the defendant’s – the truth of what had actually occurred here before

we went to trial, I never would have went to trial.” Pitcher also explained to the court why he

had not “take[n] a shot at cooperation [with the government]”: “I just didn’t think that I was

guilty. I thought I had a very good chance at winning, because in my eyes, I didn’t see me being

guilty.” In June 1999 the district court appointed Susan Kellerman to replace Jacobs as

Petitioner’s attorney. The district court sentenced Pitcher, in March 2000, to 121 months’

imprisonment.

       On direct appeal, Pitcher admitted his participation in the charged offenses, but he argued

that he would have pursued a cooperation agreement with the government but for the

ineffectiveness of his counsel, who convinced him to spurn the government’s efforts to sign him

up as a cooperator. We rejected this argument in an April 10, 2001, summary order:




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               The government “was interested in trying to sign [Pitcher] up as a
               cooperator from the beginning, and [this] was made clear to the
               defendant at the moment of his arrest;” but Pitcher proceeded to
               trial because, in his words, he “didn't think [he] was guilty” and
               “thought [he] had a good chance of winning.” Any deficiency in
               counsel’s advice on this subject is properly attributable to Pitcher's
               own dishonesty in dealing with his lawyer; Pitcher's counsel
               admitted that, “Had [he] realized . . . the truth of what had actually
               occurred here before we went to trial, [he] never would have
               [gone] to trial.”


United States v. Pitcher, 7 F. App’x 119, 120-21, 2001 WL 356941 at *1 (2d Cir. 2001).

       Pitcher then filed his § 2255 petition in the district court, seeking to vacate his sentence

on the ground that he would have received a significantly shorter sentence had trial counsel not

misinformed him about the benefits of cooperation and the risks he faced by proceeding to trial.

The district court held an evidentiary hearing in July 2004. At the hearing Jacobs testified he

explored with Pitcher the possibility of cooperation but Pitcher had vigorously asserted his

innocence.

       In June 2005, the district court granted Pitcher’s motion, vacated his 121-month sentence,

and resentenced him to time served. Pitcher v. United States, 371 F. Supp. 2d 246, 265

(E.D.N.Y. 2005). The district court found that Jacobs had provided Pitcher an overly optimistic

assessment of his trial prospects. Id. at 262 (“[T]here appears to be no reasonable basis upon

which a competent defense attorney would have reached the conclusion that petitioner had a

‘winnable’ case.”). As a result, the district court concluded that Jacobs’s performance had been

constitutionally deficient and that this had prejudiced Pitcher’s defense. Id. at 262-63.




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        The district court acknowledged that Pitcher lied to Jacobs about his involvement in the

charged offenses, but the court found that this did not absolve Jacobs of his responsibility to

persuade Pitcher to accept the government’s offer:

               Although [Pitcher] did lie to his attorney, there is no basis for
               assuming he would have stuck to this story if Jacobs had provided
               reasonable advice concerning the serious danger of conviction and
               the comparative advantages of cooperation. Jacobs, by
               unreasonably telling [Pitcher] that his story was a good one, . . .
               and that the government’s case was weak, gave [Pitcher] precious
               little incentive to say anything else.
Id. at 263.

        The district court held that Pitcher’s ineffective assistance claim in his petition was not

procedurally barred by this Court’s summary order dispatching Pitcher’s direct appeal because

the specific ineffective assistance claim made in the petition was “analytically distinct” from the

claim brought on direct appeal. Id. at 264.

        The United States appeals.

                                           DISCUSSION

        We review a district court’s findings of fact for clear error, and its grant of a § 2255

petition de novo. Rega v. United States, 263 F.3d 18, 21 (2d Cir. 2001). A federal court may not

vacate a sentence of a prisoner in federal custody unless it “was imposed in violation of the

Constitution or laws of the United States, or . . . the court was without jurisdiction to impose

such sentence, or . . . the sentence was in excess of the maximum authorized by law, or is

otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). The Sixth Amendment right to

effective counsel attaches at all “critical stage[s]” of the case following the “formal initiation of



                                                  5
adversary judicial proceedings.” Moran v. Burbine, 475 U.S. 412, 429, 432 (1986). “It is well

settled that a defendant's Sixth Amendment right to counsel extends to plea negotiations.” Davis

v. Greiner, 428 F.3d 81, 87 (2d Cir. 2005). To prevail on a claim of ineffective assistance of

counsel, a petitioner must demonstrate that: (1) counsel’s representation fell below an objective

standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s errors,

the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S.

668, 694 (1984). “The reasonableness of counsel’s performance is to be evaluated from

counsel’s perspective at the time of the alleged error.” Kimmelman v. Morrison, 477 U.S. 365,

381 (1986).

       On appeal, the government argues that Petitioner’s claim of ineffective assistance of

counsel is barred by our previous finding on direct appeal that trial counsel was not ineffective.

We agree. “It is well established that a § 2255 petition cannot be used to ‘relitigate questions

which were raised and considered on direct appeal.’” United States v. Sanin, 252 F.3d 79, 83 (2d

Cir. 2001) (quoting Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992)); see also Douglas

v. United States, 13 F.3d 43, 46 (2d Cir. 1993) (“[A]ny claim raised by [petitioner] . . . that was

also raised . . . on direct appeal of his conviction is precluded from consideration by this Court.”).

A claim is not barred from being brought in a § 2255 motion where it rests upon a different legal

“ground” for relief than the one previously raised. See Williams v. United States, 731 F.2d 138,

141-42 (2d Cir. 1984).

       The Supreme Court has explained the meaning of “ground”:

               [W]e mean simply a sufficient legal basis for granting the relief
               sought by the applicant. For example, the contention that an


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               involuntary confession was admitted in evidence against him is a
               distinct ground for federal collateral relief. But a claim of
               involuntary confession predicated on alleged psychological
               coercion does not raise a different “ground” than does one
               predicated on alleged physical coercion. In other words, identical
               grounds may often be proved by different factual allegations. So
               also, identical grounds may often be supported by different legal
               arguments, or be couched in different language, or vary in
               immaterial respects. Should doubts arise in particular cases as to
               whether two grounds are different or the same, they should be
               resolved in favor of the applicant.


Sanders v. United States, 373 U.S. 1, 16 (1963) (internal citations omitted). The district court

concluded that Pitcher’s habeas claim rested on a separate legal ground, one that is “analytically

distinct,” from his ineffective assistance claim brought on direct appeal. Pitcher, 371 F. Supp. 2d

at 264. This determination was in error. In his § 2255 petition, Pitcher “may not now contend

that counsel was deficient . . . because that ground was substantially argued to, and rejected by,

this court on [Petitioner’s] direct appeal.” Riascos-Prado v. United States, 66 F.3d 30, 34 (2d

Cir. 1995). The ineffective assistance claim made in the § 2255 petition, premised on Jacobs

having provided Pitcher an overly optimistic assessment of his chances at trial (thus, encouraging

him to reject the government’s attempts to sign him up as a cooperator) is simply the inverse of

the argument Pitcher made on direct appeal—that Attorney Jacobs was ineffective for

discouraging his client from cooperating with the government. Both of these arguments are

premised on the same facts and rest on the same legal ground. At the very least, the argument

made in Pitcher’s § 2255 petition is precluded because it is “simply a slightly altered

rearticulation of a claim that was rejected on his direct appeal.” Riascos-Prado, 66 F.3d at 34.




                                                 7
       In reaching its decision that Petitioner’s claim rests upon a legal ground different from the

one brought on direct appeal, the district court found that Pitcher’s § 2255 claim: “could not have

been raised without an opportunity to gather evidence regarding the bases of Jacobs’ assessment

[of Pitcher’s prospects of winning at trial], which could only take place, and did only take place,

in conjunction with the instant habeas petition.” Pitcher, 371 F. Supp. 2d at 264. We disagree.

On direct appeal we dispatched Petitioner’s first claim of ineffective assistance because the facts

then available made resolution of his claim clear beyond any doubt. See United States v. Khedr,

343 F.3d 96, 99-100 (2d Cir. 2003) (noting that although “we have a baseline aversion to

resolving ineffectiveness claims on direct review,” we will resolve such claims brought for the

first time on direct appeal when “their resolution is beyond any doubt” or when doing so “would

be in the interest of justice.” (internal quotations omitted)). The same logic applies here. No

further fact-finding was necessary given that Jacobs explained to the court in an April 14, 1999

status conference held prior to sentencing that Pitcher, who had only recently admitted his

involvement in the conspiracy, had lied to him “about significant things” related to his

involvement in the conspiracy and “[h]ad I realized the defendant’s – the truth of what had

actually occurred here before we went to trial, I never would have went [sic] to trial.” At the

same status conference, Petitioner admitted to the court that he thought he had “a very good

chance at winning” because he “didn't think [he] was guilty.”

       These facts make clear that Jacobs would not have given Pitcher such a “positive

prognosis about his chances of winning at trial,” Pitcher, 371 F. Supp. 2d at 257, had Pitcher not

lied to him about his involvement in the charged offenses. Our holding on direct appeal—that

“[a]ny deficiency in counsel’s advice on this subject is properly attributable to Pitcher's own

                                                 8
dishonesty in dealing with his lawyer”—applies equally to the reiterated ineffective assistance

claim made here. Pitcher, 7 F. App’x at 120-21. Because this ground was already litigated and

resolved on direct appeal, it cannot be relitigated as part of Pitcher’s § 2255 petition. See Sanin,

252 F.3d at 83.

        Although we reverse on the grounds stated, we add that we are wary of endorsing any

precedent that could enable a defendant to benefit from lying to his defense counsel or that might

suggest a duty on the part of defense counsel to arm-twist a client who maintains his innocence

into pleading guilty. See Purdy v. United States, 208 F.3d 41, 45 (2d Cir. 2000) (“[T]he ultimate

decision whether to plead guilty must be made by the defendant. And a lawyer must take care

not to coerce a client into either accepting or rejecting a plea offer.”).




                                           CONCLUSION

        For the reasons stated herein, the judgment of the district court is reversed, and the case is

remanded for further proceedings consistent with this opinion.




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