     10-3794-pr
     Lake v. United States
                               UNITED STATES COURT OF APPEALS
 1                                 FOR THE SECOND CIRCUIT
 2
 3                                           SUMMARY ORDER
 4
 5   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
 6   CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
 7   PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
 8   PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1. WHEN CITING A
 9   SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
10   MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
11   DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING
12   A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
13   REPRESENTED BY COUNSEL.
14
15         At a stated term of the United States Court of Appeals for the Second Circuit, held at
16   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
17   York, on the 6th day of March, two thousand twelve.
18
19          PRESENT: AMALYA L. KEARSE,
20                   RAYMOND J. LOHIER, JR.,
21                   CHRISTOPHER F. DRONEY,
22                                  Circuit Judges,
23
24          ------------------------------------------------------------------
25
26          LONNIE LAKE,
27                                                   Petitioner-Appellant,
28
29                                   v.                                            No. 10-3794-pr
30
31          UNITED STATES OF AMERICA,
32                                  Respondent-Appellee.
33
34          --------------------------------------------------------------------
35
36          FOR APPELLANT:                   RANDOLPH Z. VOLKELL, Merrick, NY.
37
38          FOR APPELLEE:                    MICHAEL CANTY, Assistant United States Attorney (Jo
39                                           Ann M. Navickas and Richard P. Donoghue, Assistant
40                                           United States Attorneys, on the brief), for Loretta E.

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 1                                       Lynch, United States Attorney for the Eastern District of
 2                                       New York, Brooklyn, NY.
 3
 4          Appeal from a judgment of the United States District Court for the Eastern District of
 5   New York (Arthur D. Spatt, Judge).
 6          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
 7   AND DECREED that the judgment of the District Court is AFFIRMED.
 8          Lonnie Lake appeals from a judgment entered in the United States District Court
 9   for the Eastern District of New York denying his petition for vacatur of his sentence under
10   28 U.S.C. § 2255. On appeal, he challenges the District Court’s determination that his
11   petition could be denied without an evidentiary hearing. We assume the parties’
12   familiarity with the facts and record of the prior proceedings, which we reference only as
13   necessary to explain our decision to affirm.
14          Lake was indicted in July 2001 on seven counts, including conspiracy to distribute
15   fifty grams or more of cocaine base and various firearms-related offenses. In February
16   2002 his initial attorney, Paul Goldberger, advised him that the most favorable plea
17   agreement the Government was willing to enter would require a ten-year mandatory
18   minimum term of imprisonment. Lake suggests that, sometime prior to March 12, 2002,
19   he rejected that offer because a second attorney, Elizabeth Macedonio, advised him that he
20   could prevail at trial or obtain a more favorable plea offer by going to trial without
21   jeopardizing his chances for a ten-year sentence. Lake also claims that Macedonio assured
22   him he would not be held responsible at sentencing for offenses of which he was acquitted.
23          On March 12, 2002, after Lake rejected the plea offer, the Government filed a prior
24   felony information, premised on a prior felony drug conviction under New York law. The
25   filing of the prior felony information exposed Lake to an increased mandatory minimum
26   sentence of twenty years’ imprisonment. See 21 U.S.C. § 841(b)(1)(A).
27


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 1          Lake alleges that shortly before trial, contrary to her earlier advice, Macedonio
 2   informed him that he faced a life sentence if he was convicted at trial, that the Government
 3   had refused to renew its original plea offer, and that his sentence would reflect acquitted
 4   conduct. In March 2003, the District Court accepted Lake’s guilty plea to five counts and
 5   subsequently sentenced him to 252 months’ imprisonment – a term that was eventually
 6   reduced to 240 months.
 7          Arguing that Macedonio had rendered ineffective assistance of counsel, Lake filed
 8   a section 2255 petition to vacate his sentence and requested an evidentiary hearing. The
 9   District Court denied the request for a hearing and the petition, reasoning that Lake had
10   failed to “articulate” how Macedonio’s advice gave rise to an ineffective assistance claim.
11   Lake v. United States, 732 F. Supp. 2d 156, 161 (E.D.N.Y. 2010).
12          On appeal, Lake argues that an evidentiary hearing was required because he
13   established a prima facie claim that Macedonio was ineffective in advising him to reject
14   the Government’s plea offer and proceed to trial. We disagree. Although a District Court
15   must hold an evidentiary hearing when presented with any potentially meritorious claim
16   under section 2255, a hearing is not required when, “viewing the evidentiary proffers . . .
17   and record in the light most favorable to the petitioner,” it is clear that the petitioner has
18   failed to establish a “plausible claim of ineffective assistance of counsel.” Puglisi v.
19   United States, 586 F.3d 209, 213 (2d Cir. 2009) (quotation marks omitted); see also 28
20   U.S.C. § 2255(b). To demonstrate ineffective assistance of counsel, a petitioner must
21   establish both that “his attorney’s performance ‘fell below an objective standard of
22   reasonableness,’ and . . . that there is a ‘reasonable probability’ that but for counsel’s error,
23   the outcome would have been different.” Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.
24   1994) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)) (internal citation
25   omitted). “We review a district court’s denial of an evidentiary hearing for clear error as
26   to issues of fact and de novo as to issues of law.” Raysor v. United States, 647 F.3d 491,
27   494 (2d Cir. 2011).

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 1             Here, although Lake plausibly alleges that he relied to his detriment on
 2   Macedonio’s advice that he reject the Government’s plea offer, cf. id. at 495, he fails to
 3   allege any actionable professional lapse on Macedonio’s part, such as a deficient
 4   investigation, a legal error, or a complete failure to render advice, see Greiner v. Wells,
 5   417 F.3d 305, 325 (2d Cir. 2005). As alleged, Macedonio’s miscalculations regarding the
 6   Government’s willingness to negotiate a more favorable deal or restore its initial plea offer
 7   represent, at best, strategic errors that are “virtually unchallengeable,” Strickland, 466 U.S.
 8   at 690.
 9             Lake also fails to allege that he was prejudiced by Macedonio’s advice that he
10   would not be held responsible for acquitted conduct, even though that advice was
11   mistaken. See United States v. Watts, 519 U.S. 148, 156-57 (1997). Indeed, Lake could
12   not have been prejudiced by that advice because his twenty-year sentence is equal to the
13   statutory minimum sentence for a conviction under 21 U.S.C. § 841(b)(1)(A) after a prior
14   felony conviction. Because Lake failed to allege a prima facie case of ineffective
15   assistance of counsel, including an allegation that he was prejudiced by his counsel’s
16   advice regarding the affect of acquitted conduct on his sentence, the District Court
17   correctly declined to hold an evidentiary hearing.
18             We have considered all of Lake’s contentions on this appeal and have found them
19   to be without merit. For the foregoing reasons, we AFFIRM the District Court’s denial of
20   Lake’s petition.
21                                                FOR THE COURT:
22                                                Catherine O’Hagan Wolfe, Clerk of Court
23
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