07-3543-pr
Sharpley v. U.S.A.

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE
32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER,
IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST
EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF
THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY
ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE
SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY
ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE
AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE
REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH
THE ORDER WAS ENTERED.

       At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 4th day of
December, two thousand nine.

Present:
           AMALYA L. KEARSE,
           ROBERT D. SACK,
           ROBERT A. KATZMANN,

                     Circuit Judges.
________________________________________________

ROD M. SHARPLEY,

           Petitioner-Appellant,

                  v.                                           No. 07-3543-pr

UNITED STATES OF AMERICA,

         Respondent-Appellee.
________________________________________________
For Appellant:                             SALLY WASSERMAN , New York, N.Y.

For Appellee:                              PAUL D. SILVER (Thomas Spina, Jr., on the brief),
                                           Assistant United States Attorneys, for Andrew T.
                                           Baxter, United States Attorney for the Northern District
                                           of New York, Albany, N.Y.



       Appeal from the United States District Court for the Northern District of New York

(Kahn, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the order of the district court is AFFIRMED.

       Petitioner-Appellant appeals from the district court’s denial of appellant’s habeas

petition. On December 6, 2007, this Court granted a certificate of appealability as to three

discrete issues, which we discuss seriatim. We assume the parties’ familiarity with the facts,

procedural history, and specification of issues on appeal.

       As an initial matter, though the underlying plea agreement’s waiver of appeal and

collateral attack would ordinarily preclude review, a defendant “who has not received reasonably

effective assistance from counsel in deciding to plead guilty cannot be bound by that plea.”

United States v. Couto, 311 F.3d 179, 187 (2d Cir. 2002) (quotation marks and citation omitted).

To the extent that the appellant’s claim here is based on allegedly defective advice from his

defense attorney to plead guilty, “it connects the alleged ineffectiveness of [defendant’s] attorney

with the voluntary nature of his plea.” Parisi v. United States, 529 F.3d 134, 139 (2d Cir. 2008),

cert. denied, ___ U.S. ___, 129 S. Ct. 1376 (2009). Since a plea is not valid if it is not, inter

alia, intelligent and voluntary, see Hill v. Lockhart, 474 U.S. 52, 56 (1985), this Court can,

therefore, properly adjudicate this appeal.


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       We review the district court’s denial of habeas relief de novo on its legal determinations

and for clear error on its factual determinations. Parisi, 529 F.3d at 137. Since a claim of

ineffective assistance of counsel is a mixed question of law and fact, this Court reviews the claim

de novo. LoCascio v. United States, 395 F.3d 51, 54 (2d Cir. 2005).

       As articulated in Strickland v. Washington, 466 U.S. 668 (1984), it is well established that

demonstrating constitutionally defective representation requires the appellant to satisfy an

extremely difficult standard. As this Court recently stated, “the great majority of habeas petitions

that allege constitutionally ineffective counsel founder on [this standard].” Parisi, 529 F.3d at

141 (internal quotation marks and citation omitted). Since there is a “strong presumption” in

favor of the reasonableness of defense counsel’s representation, Strickland, 466 U.S. at 689, this

Court is mindful of its obligation to avoid unduly second guessing defense counsel’s decisions

with the benefit of hindsight.

       As to appellant’s allegations of violations of the Speedy Trial Act, 18 U.S.C. §§ 3161-

3174, the Court’s recently-decided case, Parisi v. United States, is dispositive. The question

presented here – whether stipulated “ends-of-justice continuances” so-ordered by the district

judge constitute a violation of the Speedy Trial Act – is virtually identical to the question

presented in Parisi. See 529 F.3d at 136. Indeed, the stipulated continuances at issue1 are of the


       1
          They are: dated October 3, 2002 for 15 days (“The reason for said extension is because
the defense has not yet seen all the discovery material, such as the applications for the search
warrants, and other relevant material.”); October 17, 2002 for 90 days (“The purpose for said
exclusion is because the defendant is facing charges in two jurisdictions and additional time is
needed to review the evidence and to discuss a possible disposition of the charges against the
defendant.”); January 14, 2003 for 90 days (“[A]dditional time is needed because a new
indictment and a superceding [sic] indictment charging various firearms offenses have been
filed.”); April 17, 2003 for approximately 44 days (“The purpose for said exclusion is that
defendant has released his former attorney and a new attorney is scheduled to be appointed and
will need additional time to prepare for trial.”); and August 20, 2003 for 90 days (additional time

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same variety as those at issue in Parisi, see id. at 136-37, and were, in fact, issued by the same

district court. And, as in Parisi, see id. at 141, defense counsel here cannot be faulted for having

failed to anticipate the later-decided case, Zedner v. United States, 547 U.S. 489 (2006), which

held that parties cannot exclude time under the Speedy Trial Act through consent or waiver.

       Though we remain troubled by the uncertainties these continuances present, see Parisi,

529 F.3d at 140, because there are no substantively novel circumstances in this appeal that we

have not already considered in Parisi,2 we again find that we “need not resolve whether [the

problems posed by the continuances] are serious enough to constitute a violation of the [Speedy

Trial] Act.” Id. at 140. Rather, we determine in accordance with the rigorous standard in

Strickland, that appellant “has not demonstrated, from his attorney’s perspective at the time, that

it was objectively unreasonable not to bring a motion to dismiss on Speedy Trial Act grounds,”

id. at 141 (emphasis added). Indeed, this was the conclusion of the district court below, which

we now affirm. See Sharpley v. United States, 499 F. Supp. 2d 208, 212-13 (N.D.N.Y. 2007). In

light of Parisi, appellant cannot rest his ineffective assistance of counsel claim on an alleged

violation of the Speedy Trial Act.

       Appellant next argues that he received ineffective assistance of counsel because defense

counsel should have sought dismissal of the indictment on a theory that the Government had

“manufactured” jurisdiction over the pornography charges. We find, however, that the record


for evidence examination and trial preparation; exploration of plea options; examination of
potential impact of new state charges; exploration of possibility of cooperation with the
Government). A. 75-87.
       2
          The only difference – that the continuances excluding time here were entered post-
indictment while the continuances in Parisi were entered pre-indictment – is purely technical and
does not affect our analysis. See Parisi, 529 F.3d at 141 n.2 (“Even if we were to allow Parisi to
raise [claims based on post-indictment continuances], it would fail for the same reasons.”).

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more than adequately supports the district court’s finding that “the evidence of [Sharpley’s] guilt

is so great, there is no reasonable probability [he] would not have pled guilty.” Sharpley, 499 F.

Supp. 2d at 213. Appellant insists that the recorded conversations in which he arranges with the

confidential informant (“CI”) to surreptitiously film minor girls changing into bathing suits and

then film himself having sex on tape with the CI’s thirteen-year-old daughter reveal that, apart

from the CI’s ensnaring suggestions, nothing Sharpley himself was contemplating would have

triggered the statute at issue. The statute forbids sexual exploitation of children, see 18 U.S.C. §

2251(a), including “lascivious exhibition of the[ir] genitals or pubic area[s],” id. §

2256(2)(A)(v). This interpretation, however, requires us to adopt a distorted perspective on the

recorded exchanges. A less blinkered reading of the transcripts reveals that appellant is palpably

keen to secure his prized mise-en-scène as evidenced by his repeated admonitions to the CI not to

disturb the careful placement of the video camera, his reminders to “make sure that light is on”

and to turn the camera on “just before they start, coming in, changing,” his many admonitions to

the CI to remind the girls not to change into their bathing suits before arriving at the house where

Appellant was setting up the camera (see A. 115, 115-16, 117, 130, 141), and Appellant’s

statement that in replaying the tape he could “zoom in” as he wished. Appellant’s prurient

inquiries into what the CI “wants to see” hardly render him a passive figure. Indeed, taken within

the context of the overwhelmingly sexual nature of the exchanges as a whole, we cannot credit

appellant’s contention that he was merely a passive participant, goaded into criminal activity by

the CI. We conclude, therefore, that appellant cannot rest his claim of ineffective assistance of

counsel on an allegation of manufactured jurisdiction.

       Finally, with respect to the claim of actual innocence regarding the felon-in-possession

charge, we conclude that the Government has adequately demonstrated constructive possession

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of the firearms. A felon-in-possession conviction is sustainable under a theory of constructive

possession. United States v. Gaines, 295 F.3d 293, 300 (2d Cir. 2002). “[C]onstructive

possession ‘exists when a person has the power and intention to exercise dominion and control

over an object, [which] may be shown by direct or circumstantial evidence.’” Id. (quoting United

States v. Payton, 159 F.3d 49, 56 (2d Cir. 1998)). Moreover, such possession need not be

exclusive and can be proven by circumstantial evidence. Id., 295 F.3d at 300; see also United

States v. McCowan, 469 F.3d 386, 390 (5th Cir. 2006) (constructive possession demonstrated by

ownership, dominion and control of the firearm itself or dominion and control over the premises

in which the item is found, the evidence of which must support at least a plausible inference that

the defendant had knowledge of and access to the weapon).

       In the case at bar, there is sufficient evidence of dominion and control of the weapons

recovered from the residence in Troy, New York. The plea agreement states that these firearms

were found in appellant’s “home” in Troy and such statements were sworn to as factually

accurate. Moreover, this is the very residence in which the evidence supporting the conviction

for child pornography was also recovered from appellant’s computer equipment. That the home

was not used exclusively by appellant or that appellant’s mother owned the firearms are of no

moment since neither fact undermines the plausible inference that appellant had knowledge of,

access to, and control over the weapons in question. Where the Government has met its burden

to demonstrate constructive possession, there can be no claim of ineffective assistance of counsel

for failing to seek dismissal of the felony possession charges for actual innocence.

       For the foregoing reasons, the order of the district court is AFFIRMED.

                                                  FOR THE COURT:
                                                  CATHERINE O’HAGAN WOLFE, CLERK

                                                  By:_________________________________



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