     04-4834-pr
     Puglisi v. United States

 1                          UNITED STATES COURT OF APPEALS
 2
 3                              FOR THE SECOND CIRCUIT
 4
 5                                August Term, 2008
 6
 7   (Argued: November 24, 2008                     Decided: November 13, 2009)
 8
 9                              Docket No.       04-4834-pr
10
11   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
12
13   FREDERICK PUGLISI,
14
15               Petitioner-Appellant,
16
17                     v.
18
19   UNITED STATES OF AMERICA
20
21               Respondent-Appellee.
22
23   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
24
25   B e f o r e:      WINTER, WALKER, and CALABRESI, Circuit Judges.
26
27         Appeal from a denial by the United States District Court for

28   the Eastern District of New York (Joanna Seybert, Judge) of a 28

29   U.S.C. § 2255 motion to vacate conviction and sentence due to

30   ineffective assistance of counsel.            We hold that denial was

31   appropriate given that appellant failed to produce or identify

32   evidence of actual prejudice.       We therefore affirm.

33




                                             1
 1                               CHERYL J. STURM, Chadds Ford,
 2                               Pennsylvania, for Petitioner-Appellant.
 3
 4                               JO ANN M. NAVICKAS, Assistant United
 5                               States Attorney (Benton J. Campbell,
 6                               United States Attorney, Peter A.
 7                               Norling, Assistant United States
 8                               Attorney, of counsel, on the brief),
 9                               United States Attorney’s Office for the
10                               Eastern District of New York, Brooklyn,
11                               New York, for Respondent-Appellee.
12
13   WINTER, Circuit Judge:

14        Frederick Puglisi appeals from Judge Seybert’s order denying

15   his 28 U.S.C. § 2255 motion to vacate his conviction and sentence

16   due to ineffective assistance of counsel.     The basis for the

17   motion was a claim that appellant’s trial counsel misinformed him

18   as to whether the district court could consider conduct for which

19   he had not been convicted in determining his sentence.    It was

20   argued in supporting papers that appellant relied on such

21   misinformation in rejecting a plea agreement offered by the

22   government.   The district court concluded that appellant failed

23   to establish that he was actually prejudiced by the alleged

24   misinformation and denied the motion without holding an

25   evidentiary hearing.     On appeal, appellant contends that the

26   district court erred in denying his motion without first holding

27   a hearing.

28        We affirm.

29




                                        2
1                                  BACKGROUND

2         Appellant was tried with co-defendants Silverio Romano and

3    Anthony Basile.   Appellant had been charged with a myriad of

4    crimes, many quite serious:    racketeering, 18 U.S.C. § 1962(c),

5    racketeering conspiracy, id. § 1962(d), murder and conspiracy to

6    kidnap and murder in order to increase or maintain position in

7    the racketeering enterprise, id. § 1959(a)(1) & (5), conspiracy

8    to possess with intent to distribute cocaine and marijuana, 21

9    U.S.C. §§ 846, 841(a)(1), possession with intent to distribute

10   marijuana, id. § 841(a)(1), use of a communication device to

11   facilitate narcotics offenses, id. § 843(b), use and possession

12   of firearms in relation to crimes of violence and drug

13   trafficking crimes, 18 U.S.C. § 924(c)(1), and receiving or

14   possessing defaced firearms, id. § 922(k).   On February 14, 1995,

15   after a four and one-half month trial and seventeen days of

16   deliberation, the jury convicted appellant of racketeering,

17   racketeering conspiracy, conspiracy to possess with intent to

18   distribute marijuana, possession with intent to distribute

19   marijuana, and the use of a communication device to facilitate a

20   narcotics transaction.   The jury could not agree on a verdict as

21   to the remaining charges.

22        After several adjournments to allow present counsel, who was

23   retained after the trial but before sentencing, to supplement

24   trial counsel’s sentencing submissions with her own, the court


                                       3
1    held a series of sentence-related hearings in March and April of

2    1997.   At the beginning of the final sentencing hearing on April

3    25, 1997, appellant was represented both by trial counsel and

4    present counsel.   At that hearing, present counsel pressed a

5    claim, obliquely raised for the first time in an out-of-time

6    submission two days prior, that appellant was entitled to a

7    sentence reduction for acceptance of responsibility.     Her

8    argument was that trial counsel had misinformed appellant as to

9    the court’s power to consider at sentencing conduct that was not

10   the subject of conviction.   That misinformation, the argument

11   went, caused appellant to fail to plead guilty, thereby losing a

12   reduction in sentence for acceptance of responsibility.     See U.S.

13   Sentencing Guidelines (“U.S.S.G.”) § 3E1.1 (1991).    The

14   government immediately countered that it could disprove the

15   factual basis of the argument -- that it was an “outrageous

16   claim” and “utterly and completely false.”     Puglisi Sentencing

17   Trans., Apr. 25, 1997 (“Trans.”), at 42, 45.

18        The court inquired of trial counsel as to their position on

19   this issue, but they demurred on the ground of attorney-client

20   privilege.   Present counsel then invoked the privilege, thereby

21   blocking the court’s inquiry.   Trial counsel moved to withdraw as

22   counsel for appellant.

23        The court offered appellant’s present counsel an opportunity

24   to present evidence on the issue.    Counsel declined.   Rather, she


                                      4
1    responded that before pressing appellant’s claim at an

2    evidentiary hearing, she needed to speak with possible witnesses

3    who were alleged to have overheard statements by trial counsel

4    after the verdict.   After chiding present counsel for raising a

5    new point well after the scheduled deadline and without adequate

6    preparation, the judge then granted trial counsel’s motion to

7    withdraw and decided to proceed with the scheduled sentencing,

8    leaving the advice-of-trial-counsel issues to later proceedings.

9         Appellant then addressed the court.     He stated that he never

10   wanted to go to trial but that “[t]he circumstances dragged me to

11   trial.”   Trans. at 76.    He said that he “felt that [he] should

12   have cooperated with the government” but that there were “people

13   involved in the case that were killing witnesses.”     Trans. at 77.

14   He noted that if he had cooperated, his brother and brother-in-

15   law would lose their established businesses on Staten Island and

16   have to move, thereby “ruin[ing] their lives” and “destroy[ing]

17   their livelihood.”   Id.

18        The district court sentenced appellant to life imprisonment.

19   The court based its sentence on a total offense level of 42,

20   which warranted a range from 360 months to life, and imposed the

21   highest term in the range after considering appellant’s role in

22   the attempted murders and a murder, charges on which the jury had

23   reached a hung verdict.

24        Appellant appealed, making several claims, one of which is


                                        5
1    relevant to the present proceeding:      loss of the acceptance of

2    responsibility reduction in sentence because of constitutionally

3    ineffective assistance of trial counsel.      See United States v.

4    Silvestri, Nos. 97-1430, 97-1439, 1998 WL 777763, at *3 (2d Cir.

5    Oct. 29, 1998).   We affirmed appellant’s conviction and sentence

6    but declined to rule on his ineffective assistance of counsel

7    claim due to the sparse record.    Id.

8         On October 26, 1999, appellant timely filed the present

9    motion under 28 U.S.C. § 2255.    The motion raised a number of

10   claims, only one of which is before us:      trial counsel’s failure

11   to provide effective assistance in rendering pre-trial advice.

12   The memorandum of law accompanying the motion deviated in one

13   respect from the earlier claim on direct appeal concerning the

14   alleged erroneous advice.   The harm now alleged to have occurred

15   was not simply the loss of the acceptance of responsibility

16   reduction but rather the failure to accept a plea bargain offered

17   by the government.   The relief sought was the reversal of

18   conviction, or in the alternative, that the sentence be vacated.

19   No details were provided as to the plea bargain offered by the

20   government.   Appellant filed a declaration and an affidavit in

21   support of the motion, the former adopting counsel’s statements

22   of facts as set forth in the motion and memorandum of law and the

23   latter stating in relevant part that he had been misinformed by

24   trial counsel in the manner noted above.


                                       6
1         On November 2, 1999, the district court ordered the

2    government to show cause why appellant’s petition should not be

3    granted.    After both the government’s reply and appellant’s

4    traverse were filed, the government wrote to the court requesting

5    that it issue an order directing appellant’s counsel to provide

6    more detailed facts to enable the government to provide the court

7    with attorney affirmations that would respond to appellant’s

8    allegations.   Present counsel replied, suggesting that an

9    evidentiary hearing was the appropriate vehicle.    Thereafter,

10   without a hearing, the district court issued an order denying the

11   petition.   As to the ineffective assistance of counsel claim that

12   is the subject of this appeal, the district court concluded that

13   the appellant had failed to establish that counsel’s alleged

14   misinformation prejudiced the outcome of his case because (i) he

15   had persisted in his claims of innocence, (ii) he had exhibited

16   no intent to accept any offered plea agreement, and (iii) even

17   assuming that he would have accepted a plea offer, he remained

18   subject to the court’s consideration of any acquitted charges at

19   sentencing.

20        On February 28, 2009, we granted appellant a certificate of

21   appealability with respect to the ineffective assistance of

22   counsel claim relating to his rejection of a plea offer.

23                                DISCUSSION

24        Appellant’s claim on appeal is that the district court erred


                                       7
1    by not holding an evidentiary hearing on the ineffective

2    assistance of counsel claim asserted in his motion and presumably

3    (it is not explicitly argued) that he is entitled to the sentence

4    that he could have received had he accepted a plea agreement.

5         Under Section 2255 of Title 28, United States Code, a

6    federal prisoner may move the sentencing court to vacate, set

7    aside, or correct the sentence on the ground that such sentence

8    was illegally imposed.   28 U.S.C. § 2255(a).   The statute further

9    provides that “[u]nless the motion and the files and records of

10   the case conclusively show that the prisoner is entitled to no

11   relief, the court shall . . . grant a prompt hearing thereon,

12   determine the issues and make findings of fact and conclusions of

13   law with respect thereto.”    28 U.S.C. § 2255(b).   To warrant a

14   hearing on an ineffective assistance of counsel claim, the

15   defendant need establish only that he has a “plausible” claim of

16   ineffective assistance of counsel, not that “he will necessarily

17   succeed on the claim.”   Armienti v. United States, 234 F.3d 820,

18   823 (2d Cir. 2000) (quoting United States v. Tarricone, 996 F.2d

19   1414, 1418 (2d Cir. 1993)).    Rule 4(b) of the Rules Governing

20   § 2255 Proceedings further provides that “[i]f it plainly appears

21   from the motion, any attached exhibits, and the record of prior

22   proceedings that the moving party is not entitled to relief, the

23   judge must dismiss the motion.”    Rules Governing § 2255

24   Proceedings for the United States District Courts, Rule 4(b), 28


                                       8
1    U.S.C. foll. § 2255.

2         The procedure for determining whether a hearing is necessary

3    is in part analogous to, but in part different from, a summary

4    judgment proceeding.   The petitioner’s motion sets forth his or

5    her legal and factual claims, accompanied by relevant exhibits:

6    e.g., an affidavit from the petitioner or others asserting

7    relevant facts within their personal knowledge and/or identifying

8    other sources of relevant evidence.   Compare Rules Governing §

9    2255 Proceedings, Rules 2, 4(b), with Fed. R. Civ. P. 56(a)-(c);

10   see also Blackledge v. Allison, 431 U.S. 63, 80-83 (1977).    The

11   district court reviews those materials and relevant portions of

12   the record in the underlying criminal proceeding.   Compare Rules

13   Governing § 2255 Proceedings, Rules 4(b), 8(a) with Fed. R. Civ.

14   P. 56(c).   The court then determines whether, viewing the

15   evidentiary proffers, where credible, and record in the light

16   most favorable to the petitioner, the petitioner, who has the

17   burden, may be able to establish at a hearing a prima facie case

18   for relief.   If material facts are in dispute, a hearing should

19   usually be held, and relevant findings of facts made.   Compare

20   Armienti, 234 F.3d at 825 (remanding for a hearing where

21   appellant alleged several specified instances of attorney’s

22   deficiencies that were product of specific conflict of interest),

23   United States v. Aiello, 814 F.2d 109, 113 (2d Cir. 1987)

24   (holding that hearing is appropriate when application includes


                                      9
1    “assertions of fact that a petitioner is in a position to

2    establish by competent evidence”), and Newfield v. United States,

3    565 F.2d 203, 207 (2d Cir. 1977) (a motion supported by a

4    “sufficient” affidavit including detailed and controverted issues

5    of fact warrants a hearing, but “bald allegations” unsupported by

6    evidentiary facts do not), with Anderson v. Liberty Lobby, Inc.,

7    477 U.S. 242, 255 (1986) (requiring plaintiff present evidence

8    from which a jury might return a favorable verdict in order to

9    have survived summary judgment requirement that he provide “a

10   genuine issue of fact” for trial).

11        The analogy to summary judgment is not complete, however.

12   There is no pre-motion discovery in a Section 2255 case, as there

13   is in summary judgment proceedings in a civil case.   Therefore, a

14   petitioner may need only to identify available sources of

15   relevant evidence rather than obtain it as in civil cases or seek

16   a discovery order from the court under Rule 6 of the Rules

17   Governing Section 2255 Proceedings.   Compare Rules Governing

18   § 2255 Proceedings, Rules 4(b), 6(a) (discovery requires leave of

19   court), and Armienti, 234 F.3d at 823 with Fed. R. Civ. P. 56,

20   and Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir. 2008).

21        Moreover, a district court need not assume the credibility

22   of factual assertions, as it would in civil cases, where the

23   assertions are contradicted by the record in the underlying

24   proceeding.   Compare Contino v. United States, 535 F.3d 124, 127-


                                     10
1    28 (2d Cir. 2008) (per curiam) (defendant failed to make a

2    substantial showing that his plea was not voluntary or

3    intelligent or that he received ineffective assistance of counsel

4    where it was clear from the record, including the indictment, the

5    signed plea agreement, and the allocution at the plea proceeding

6    that he understood the nature of charges against him), Zhang v.

7    United States, 506 F.3d 162, 164, 169 (2d Cir. 2007) (defendant’s

8    claim that his guilty plea was involuntary because he was unaware

9    of the deportation consequences was insufficient where the judge

10   at the plea allocution put defendant on notice of the

11   consequences), Frederick v. Warden, Lewisburg Corr. Facility, 308

12   F.3d 192, 193, 196-98 (2d Cir. 2002) (defendant’s claim that he

13   received ineffective assistance of counsel because he did not

14   know the nature of the charges was insufficient where the

15   proceedings at the guilty plea hearing and the plea agreement

16   showed otherwise), Newfield, 565 F.2d at 208 (defendant was not

17   entitled to a hearing on his claims of incompetency at the time

18   of trial where there was no assertion of new information and the

19   trial judge reviewing the petition “had ample opportunity to

20   observe the appellant’s demeanor and behavior in the courtroom”),

21   and Accardi v. United States, 379 F.2d 312, 313 (2d Cir. 1967)

22   (per curiam) (defendant was not entitled to a hearing where he

23   claimed he was unable to understand the charges against him due

24   to his poor English language skills and that he was incompetent


                                    11
1    at the time of trial where the trial judge reviewing the petition

2    was familiar with the facts, the record showed that defendant did

3    not need an interpreter and had discussions with his trial

4    attorney in English, and there was no proof of the claimed

5    medical condition), with Cioffi v. Averill Park Cert. Sch. Dist.

6    Bd. of Ed., 444 F.3d 158, 162 (2d Cir. 2006) (when deciding a

7    summary judgment motion in a civil case, all factual ambiguities

8    must be resolved in the non-moving party’s favor and the court

9    may not weigh the evidence, but rather must only determine

10   whether a genuine issue of fact exists for trial).

11        Indeed, for this reason, we have also held that when the

12   judge that tried the underlying proceedings also presides over

13   the Section 2255 motion, a less-than full-fledged evidentiary

14   hearing may permissibly dispose of claims where the credibility

15   assessment would inevitably be adverse to the petitioner.

16        For example, we have so held in a case in which a petitioner

17   raised a claim generic to all defendants who have not taken the

18   stand in their defense at trial, namely, that trial counsel

19   prohibited him from taking the stand.    Chang v. United States,

20   250 F.3d 79, 84-86 (2d Cir. 2001).   In Chang, the district court

21   did not hold a full hearing.   Id. at 81-82.   Rather, it invited

22   trial counsel to respond to the claim.    Id. at 81.   Trial counsel

23   submitted a detailed affidavit contradicting the claim that the

24   petitioner was not advised of his right to testify, detailing


                                     12
1    conversations between counsel and the petitioner about the

2    advisability of testifying, and explaining why they agreed that

3    it was inadvisable for the petitioner to testify.   Id. at 81-82.

4    We affirmed on the ground that a sufficient hearing had been held

5    to reject the claim.   Id. at 85-86.

6          We held that in cases involving claims “that can be, and

7    [are] often, made in any case,” the judge may properly rely on

8    his or her knowledge of the record and may permissibly forgo a

9    full hearing and instead request letters, documentary evidence,

10   and affidavits to aid in its resolution of the claim.   Id. at 86.

11   The trial judge is intimately familiar with the proceedings and

12   the surrounding circumstances.   The trial judge is also in a

13   position, based on the knowledge gained in the underlying

14   criminal proceeding and on his or her role as a trier of fact in

15   the habeas proceeding, to hold that the particular petitioner had

16   no chance of overcoming counsel’s detailed explanation and

17   proving that counsel prohibited testimony in his or her defense.

18   Id.   The intermediate step –- between deciding the motion without

19   the benefit of any supplemental materials and a full hearing with

20   live witnesses –- “avoid[s] the delay, the needless expenditure

21   of judicial resources, [and] the burden on trial counsel and the

22   government.”   Id.

23         Finally, our standard of review with respect to a district

24   court’s decision to hold a hearing and if held, its sufficiency,


                                      13
1    also differs from summary judgment’s general de novo review.     See

2    Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 107 (2d

3    Cir. 2008).   In some cases, such as where the judge who tried the

4    case holds a limited hearing to decide a generic claim, the

5    determination of whether the hearing was sufficient is reviewed

6    for an abuse of discretion.   Chang, 250 F.3d at 82, 85-86.    In

7    the present case, in which the district court denied any form of

8    an evidentiary hearing, our review of the district court’s denial

9    of a hearing is for clear error as to issues of fact, such as a

10   district court’s determination that the record precludes the

11   claim, and de novo for issues of law.    Harris v. United States,

12   367 F.3d 74, 79 (2d Cir. 2004); Chang, 250 F.3d at 82.    Because

13   petitioner’s claim of ineffective assistance of counsel is a

14   question of mixed fact and law, our review is de novo.    See Pham

15   v. United States, 317 F.3d 178, 182 (2d Cir. 2003); Chang, 250

16   F.3d at 82. We turn now to the merits.

17        To establish an ineffective assistance of counsel claim, a

18   defendant must satisfy two requirements.   See Strickland v.

19   Washington, 466 U.S. 668, 687 (1984).    First, the defendant must

20   show that counsel’s performance was deficient.   Id.   Given the

21   procedural posture of this appeal, we will assume the deficiency

22   of the advice allegedly given, although the record of the

23   sentencing hearing suggests that trial counsel would, if allowed,

24   dispute the claim.   Second, the defendant must show that the


                                     14
1    deficient performance prejudiced the defense, that is, “there is

2    a reasonable probability that, but for counsel’s unprofessional

3    errors, the result of the proceeding below would have been

4    different.”   Id. at 694.   This prong of the Strickland test is

5    the subject of the present appeal.

6         With respect to a claim that counsel’s ineffective

7    assistance led to the rejection of a plea offer that, properly

8    informed, would have been accepted, a petitioner seeking a

9    hearing must proffer arguably credible evidence of a prima facie

10   case that, but for counsel’s improper advice, the petitioner

11   would have accepted the plea offer.    See Aeid v. Bennett, 296

12   F.3d 58, 63-64 (2d Cir. 2002).    This may be accomplished through

13   the petitioner’s own sworn statement if it is credible in light

14   of all the relevant circumstances.    See Cullen v. United States,

15   194 F.3d 401, 407-08 (2d Cir. 1999) (“Though a claim that he

16   would have accepted the plea would be self-serving . . . , it

17   ought not to be rejected solely on this account. . . .    The

18   credibility determination should be based on all relevant

19   circumstances.” (footnote omitted)); Dalli v. United States, 491

20   F.2d 758, 760 (2d Cir. 1974) (“[T]his court takes a dim view of

21   any summary rejection of a petition for post-conviction relief

22   when supported by a ‘sufficient affidavit.’    But we have,

23   consistently with that pronouncement, recognized that a judge is

24   well within his discretion in denying a petition when the


                                      15
1    supporting affidavit is insufficient on its face to warrant a

2    hearing.” (citations omitted)); see also Purdy v. Zeldes, 337

3    F.3d 253, 259 (2d Cir. 2003).   Thus, we have found that a

4    petitioner’s statement is sufficiently credible to warrant a

5    hearing where it is accompanied by some “objective evidence,”

6    such as a significant sentencing disparity, that he or she would

7    have accepted the proposed plea offer if properly advised.    See

8    Pham, 317 F.3d at 182-83; United States v. Gordon, 156 F.3d 376,

9    380-81 (2d Cir. 1998) (per curiam).

10        Here, appellant has failed to shoulder his burden to

11   establish actual prejudice under Strickland.   This is so for

12   several reasons.   First, unlike the petitioner in Pham, appellant

13   failed to provide any statement that he would have accepted the

14   government’s plea offer if properly advised.   While appellant did

15   submit an affidavit in support of his motion, he never stated

16   that he would have entered a plea had he received adequate legal

17   advice.   Rather, his affidavit states as follows:   “I was never

18   advised by my Lawyers that if the Jury was dead-locked on any

19   count(s), those count(s) could be use [sic] against me for

20   sentence.”   Puglisi Affidavit, Oct. 21, 1999, at ¶14.

21   Specifically, although represented by counsel on his § 2255

22   petition, appellant never states that he would have accepted a

23   particular plea offer had he known that the judge could consider

24   at sentencing conduct that was not the subject of a conviction.


                                     16
1    This is so even though the district court had repeatedly

2    expressed its skepticism at sentencing with respect to this

3    particular claim.   See, e.g., Trans. at 61:5-7 (“[The appellant]

4    hasn’t accepted responsibility for the crimes for which he was

5    convicted of and I doubt if he ever will.”); id. at 61:11-14

6    (“Mr. Puglisi wanted to plead guilty on his terms.    He wanted a

7    guarantee that he would get no more than X amount of years.      He

8    chose to go to trial.    He didn’t accept responsibility.”); id. at

9    94:16-21 (“And I must say up until today you’ve been respectful

10   of the Court.   You’ve never appeared to suborn perjury or

11   anything of that sort.   And you didn’t take the stand.   What

12   comes later on these other issues of acceptance of responsibility

13   is certainly something that I [have] no control over.”).

14        Instead, the sole statement asserting this critical fact is

15   in the memorandum of law written by counsel and filed in support

16   of the Section 2255 motion.    It states, without any citation to

17   the record or reference to the terms of any purported plea

18   agreement, “If [appellant] had been made aware of all relevant

19   facts, he would have accepted the plea agreement offered by the

20   prosecution.”   Memorandum of Law at 15, No. 9:99-cv-0689-JS

21   (E.D.N.Y. Oct. 26, 1999).     Appellant argues that this sentence is

22   the equivalent of a statement by him because in a declaration

23   attached to the memorandum he stated, under penalty of perjury,

24   that he read the motion and memorandum carefully and “[he]


                                       17
1    agree[s] with the facts set forth therein, and [he] adopt[s]

2    those statements of fact as [his] own.”    Id.

3         While the appellant did state that he adopted the statement

4    of facts of his lawyer as his own, we are not prepared to hold

5    that a petitioner’s declaration adopting a memorandum of law

6    written by counsel renders a statement describing the

7    petitioner’s intent a factual statement by the petitioner for

8    purposes of satisfying Strickland.     See, e.g., Aeid, 296 F.3d at

9    64 (failure to assert such intent was “critical omission”);

10   Gordon, 156 F.3d at 380.   See also Kulhawik v. Holder, 571 F.3d

11   296, 298 (2d Cir. 2009) (per curiam) (“[a]n attorney’s unsworn

12   statements in a brief are not evidence”).    There was no good

13   reason to put such a statement in the memorandum of law while

14   omitting it from petitioner’s affidavit.    In writing the

15   memorandum, counsel could not have had personal knowledge of the

16   factual truth of the statement.    Adopting wholesale the twenty-

17   eight page brief written by counsel here, which was devoted

18   almost exclusively to legal argument on multiple claims

19   marshalled in kitchen-sink style, is fundamentally different from

20   swearing to particular statements made in one’s own name.

21   Indeed, the adoption by a party of a brief in toto would be a

22   poor basis for a perjury prosecution.    A lay person is not

23   generally aware of the distinction between fact and law and is

24   unlikely to challenge favorable statements that his or her lawyer


                                       18
1    has written.   To a lay person, a brief is lawyer-talk.    Moreover,

2    a client is not likely to expect his or her lawyer to write

3    something that might expose the client to prosecution for

4    perjury.

5         We believe that a statement regarding intent must be

6    directly attributable to the habeas petitioner, whether it be

7    through sworn testimony in the main proceeding or by a sworn

8    affidavit in support of the motion.   See Dalli, 491 F.2d at 760;

9    Accardi, 379 F.2d at 313; cf. Herzog v. United States, 38 Fed.

10   App’x 672 (2d Cir. 2002) (summary order)(upholding district

11   court’s denial of an evidentiary hearing on § 2255 motion in part

12   because defendant failed to state in his supporting affidavit

13   that he would have accepted the government’s plea offer had he

14   been adequately advised); United States v. Perez Gomez, No.

15   3:98CR109 (JBA), 2003 WL 22119123, at *5-*6 (D. Conn. Aug. 29,

16   2003) (denying defendant’s § 2255 motion without a hearing

17   because he made no assertion that he would have accepted the

18   government’s plea offer had he known about it despite the

19   opportunity to make such assertion in numerous affidavits and pro

20   se filings).   Given the assistance of counsel and ample

21   opportunity to remedy this obvious evidentiary gap, the absence

22   of such a statement is particularly telling in the present

23   matter.

24        Second, even assuming arguendo that counsel’s statement


                                     19
1    equates to a statement by the appellant as to his intent to

2    accept the government’s plea offer, the appellant has failed to

3    proffer any objective evidence that he would have accepted the

4    plea offer had he received adequate pre-trial counseling.    We are

5    mindful that a significant disparity between the sentencing

6    exposure in the plea offer and the actual sentence imposed at

7    trial would constitute objective evidence.   See Pham, 317 F.3d at

8    182 (“[A] significant sentencing disparity in combination with

9    defendant’s statement of his intention [to accept the plea offer]

10   is sufficient to support a prejudice finding.”); id. at 183 (“We

11   have held that where the disparity in potential sentences is

12   great, a finder of fact may infer that defendants who profess

13   their innocence still will consider a plea.”); Gordon, 156 F.3d

14   at 381.   However, appellant in the present matter has not

15   produced or identified evidence sufficient to show, or permit an

16   inference of, a significant disparity between the terms of a plea

17   offer and his ultimate sentence exposure after a trial

18   conviction.

19        Although appellant’s memorandum of law includes the blanket

20   assertion that “Mr. Puglisi’s position is supported by the huge

21   disparity between the sentence imposed, and the sentence under

22   the plea agreement,”   Memorandum of Law, Oct. 26, 1999, at 15,

23   appellant’s affidavit is devoid of any factual specificity

24   regarding such an agreement, appellant’s supposed understanding


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1    of its terms, and whether it required cooperation.     Cf.

2    Machibroda v. United States, 368 U.S. at 487, 489-90 (1962)

3    (petitioner’s affidavit set out detailed factual allegations,

4    including a promised sentence of twenty years); Accardi, 379 F.2d

5    at 313.   Neither appellant’s affidavit nor the sentencing

6    memorandum provides any such details other than the conclusory

7    characterization of “huge disparity.”    This is so even though

8    present counsel represented the appellant, and first gave notice

9    of this agreement, at the sentencing hearing.     Despite filing

10   this motion over two years after the date of sentencing, no

11   objective evidence let alone one of a sentencing disparity was

12   proffered.   Moreover, the district court’s numerous statements

13   concerning the severity of the conduct at issue undermine any

14   assertion by the appellant that he would have received the

15   benefit of a lenient plea agreement.    See Trans. at 94:5-15

16   (“This sentence is justified based on what you did, what others

17   did for you.    It shows the drug business.    If you were presented

18   with violence, if you were truly fearful you had every

19   opportunity to walk away.    This is not simply a case of just

20   being a marijuana dealer.    You were armed.   You knew the

21   consequences.    And I simply can’t do anything less than give you

22   a just sentence, one that really reflects the seriousness of what

23   you have done no matter how you view it.”).

24        Third, the record evidence undermines the appellant’s


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1    assertion that trial counsel’s advice was a critical

2    consideration in his rejection of a plea offer.    In fact,

3    appellant made it clear in his sentencing colloquy that he had

4    not cooperated with the government because such cooperation would

5    have endangered members of his family and forced relatives to

6    give up established businesses upon moving away.    See Trans. at

7    76:18-23 (“I am sorry to put the courts through all that they've

8    been through because I know these have been lengthy things,

9    tremendous amounts of money spent here.    And I never wanted to go

10   to trial.   Believe me.   The last thing I wanted was to go to

11   trial.   The circumstances dragged me to trial."); id. at 77:13-16

12   ("I could have ruined [my relatives’] lives, destroy [sic] their

13   livelihood.   They would have to move.   You know, there's people

14   involved in the case that were killing witnesses.").    Appellant

15   made these statements even after present counsel had asserted the

16   argument that appellant was misinformed about the scope of

17   conduct the district court could consider for purposes of

18   sentencing.   Given appellant's own statements at sentencing, we

19   are unwilling to accept the conclusory statements he now makes in

20   support of his contention that he suffered actual prejudice in

21   satisfaction of Strickland.

22        On the present record, a hearing based on the proffers of

23   proof set forth in appellant's supporting papers would be

24   fruitless because the appellant has neither stated that he would


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1   have accepted a plea if properly advised by trial counsel nor

2   proffered objective evidence in support of such a statement.

3   Therefore, appellant has failed to establish that "there is a

4   reasonable probability that, but for counsel's unprofessional

5   errors the result of the proceeding would have been different,"

6   Strickland, 466 U.S. at 694, and thus, has failed to state a

7   "plausible" claim for relief under 28 U.S.C. § 2255.

8                              CONCLUSION

9        For the reasons discussed above, we affirm.




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