     07-3130-pr
     Forbes v. United States of America

 1                     UNITED STATES COURT OF APPEALS
 2
 3                           F OR THE S ECOND C IRCUIT
 4
 5
 6
 7                            August Term, 2008
 8
 9   (Argued: June 25, 2009                          Decided: July 30, 2009)
10
11                          Docket No. 07-3130-pr
12
13
14                                D ENNIS F ORBES,
15
16                                                     Petitioner-Appellant,
17
18                                    –v.–
19
20                          U NITED S TATES OF A MERICA,
21
22                                                       Respondent-Appellee. *
23
24
25
26   Before:
27        P ARKER and W ESLEY, Circuit Judges, T SOUCALAS, Judge. **
28
29        Appeal from an order of the United States District
30   Court for the Western District of New York (Siragusa, J.),
31   entered on May 23, 2007, dismissing petitioner-appellant’s


          *
               We direct the Clerk of Court to amend the caption as
     noted.
          **
            The Honorable Nicholas Tsoucalas, Senior Judge of the
     United States Court of International Trade, sitting by
     designation.

                                    Page 1 of 14
 1   application to vacate, set aside, or correct his sentence
 2   pursuant to 28 U.S.C. § 2255.
 3
 4         A FFIRMED.
 5
 6
 7
 8               E LEANOR J ACKSON P IEL, New York, NY, for Petitioner-
 9                      Appellant.
10
11               F RANK H. S HERMAN, Assistant United States Attorney
12                      (Kathleen M. Mehltretter, Acting United States
13                      Attorney, of counsel), Office of the United
14                      States Attorney for the Western District of
15                      New York, Rochester, NY, for Respondent-
16                      Appellee.
17
18
19
20   P ER C URIAM:

21         Petitioner-appellant Dennis Forbes (“Forbes”) appeals

22   from an order of the United States District Court for the

23   Western District of New York (Siragusa, J.), dismissing his

24   petition to vacate, set aside, or correct his sentence under

25   28 U.S.C. § 2255 on the basis of ineffective assistance of

26   appellate counsel on direct appeal.           For the reasons stated

27   below, the district court’s order of dismissal is hereby

28   AFFIRMED.

29                                Background

30         Forbes was indicted on September 9, 1999 on one count

31   of being a convicted felon in possession of a firearm in

                                    Page 2 of 14
 1   violation of 18 U.S.C. § 922(g)(1).       United States v.

 2   Forbes, No. 99-CR-6084(CJS) (W.D.N.Y.).       Forbes was also

 3   indicted in a separate instrument for possession of a

 4   firearm in furtherance of a crime of drug trafficking in

 5   violation of 18 U.S.C. § 924(c), as well as two other drug-

 6   related counts, based on the same set of events that led to

 7   the § 922(g)(1) charge.   United States v. Forbes, No. 99-CR-

 8   6089(CJS) (W.D.N.Y.).

 9       After a jury trial, Forbes was convicted on all counts

10   in the second indictment but the § 924(c) count, on which

11   the jury could not reach a verdict.       The initial § 922(g)(1)

12   count, however, was not tried with the offenses alleged in

13   the second indictment.    On January 24, 2001, Forbes pleaded

14   guilty to the § 922(g)(1) count, and in exchange the

15   government agreed not to pursue the 8 U.S.C. § 924(c) count

16   left open by the jury.    On accepting Forbes’s guilty plea,

17   the district court tolled the requirements of the Speedy

18   Trial Act, 18 U.S.C. § 3161, in relation to the § 924(c)

19   count because Forbes specifically indicated that the reason

20   for his plea on the § 922(g)(1) count was the government’s

21   promise to dismiss the § 924(c) “trafficking” charge.



                                Page 3 of 14
 1       Later in 2001, but prior to sentencing, Forbes wrote a

 2   letter to the district court indicating that he wanted to

 3   withdraw his guilty plea because it “was illegal due to the

 4   fact that [he] was not fingerprinted, photographed, booked,

 5   charged, or arraigned in 72 hours of [his] arrest which

 6   [was] a violation of [his] due process rights.”   Forbes’s

 7   retained attorney, Michael P. Schiano, stated on the record

 8   that he had advised Forbes that in attempting to withdraw

 9   his guilty plea he would likely lose the two-point reduction

10   in his sentencing offense level on the basis of acceptance

11   of responsibility, as well as risk a two-point enhancement

12   for perjury and obstruction of justice.   Forbes insisted on

13   pursuing the plea withdrawal and indicated to the court that

14   he would discharge Schiano as his attorney.   Schiano

15   informed the district court that, for his part, he intended

16   to withdraw as Forbes’s counsel should Forbes pursue the

17   plea withdrawal, because “one of [Forbes’s] basis [sic] in

18   wanting to withdraw his plea [was] his position that

19   [Schiano] intimidated and forced him . . . into taking the

20   plea.”

21       After extensive attempts on the record by defense


                               Page 4 of 14
 1   counsel, the government, and the district court to explain

 2   to Forbes the status of the charges against him and the

 3   potential consequences of attempting to withdraw his plea at

 4   this stage of the proceeding, the district court stated:

 5            Mr. Forbes, here’s what I’m going to do. If
 6       you tell me this is what you want to do, I’m going
 7       to ask Mr. Schiano to make a formal motion to
 8       withdraw. I’ll make it returnable for a day.
 9            I’ll examine you now. If I find you’re
10       entitled to assigned counsel, I’ll have another
11       counsel here, and I’ll give you a chance to
12       consult with that counsel to determine what you
13       want to do; but I’m not going to keep assigning
14       you lawyers.
15

16   Forbes indicated that he understood the district court’s

17   statement and insisted that he still wanted to withdraw his

18   guilty plea.   The district court then found Forbes eligible

19   for assigned counsel.

20       On June 25, 2001, Jeffrey Wicks agreed to serve as

21   Forbes’s assigned counsel, provided he should conclude upon

22   review of the record that Forbes had a nonfrivolous argument

23   to withdraw his guilty plea.   The district court informed

24   Forbes that Wicks’s review of the record would result in one

25   of three possibilities: (1) Wicks might agree that

26   attempting to withdraw the plea was Forbes’s best legal



                               Page 5 of 14
 1   option; (2) Wicks might inform Forbes that going forward

 2   with the attempt would be against Forbes’s best interest but

 3   that a legal argument could be made in support of it; or (3)

 4   Wicks might determine any such attempt would be frivolous

 5   and that he would be unable to make the application to

 6   withdraw the plea.   The district court then told Forbes:

 7       If Mr. Wicks comes back to you after independently
 8       reviewing everything and says Mr. Forbes, you’re
 9       crazy for trying to withdraw your plea, and
10       secondly, there’s no basis upon which I can in
11       good faith ask the Court to withdraw the plea,
12       that’s the end of it. I’m not saying that’s going
13       to happen, but that would be the end of it. I’m
14       not going to assign you another lawyer. It would
15       be exceptionally foolish, but you can always
16       represent yourself if you want; but I’m not going
17       to assign you a string of lawyers until you
18       somehow hit on one that is going to give you the
19       advice you want.
20

21   Wicks ultimately decided that there was no good–faith basis

22   for Forbes’s motion to withdraw his plea, after which the

23   district court concluded that Wicks was ethically obligated

24   not to bring the motion on Forbes’s behalf and allowed Wicks

25   to withdraw as counsel.   The district court informed Forbes

26   that he would have to move for the plea withdrawal on his

27   own and described the proper procedure and potential

28   consequences.   The district court explained that it would

                               Page 6 of 14
 1   assign Forbes another attorney upon resolution of his motion

 2   to withdraw his plea, but again emphasized that it would not

 3   “put another lawyer in a situation where they’re called upon

 4   by you [Forbes] as the client, despite what they tell you,

 5   to do something that they feel is unethical and really

 6   against your best interest.”

 7       In September 2001, Forbes filed the motion to vacate

 8   his guilty plea, arguing that his plea was not knowing,

 9   intelligent, and voluntary as required by Federal Rule of

10   Criminal Procedure 11 because Schiano had “advised him that

11   he would be pleading guilty to count two of indictment No.

12   99-CR-6089 [the § 924(c) count] and not to indictment No.

13   99-CR-6084 [the § 922(g) count].”        In his papers, Forbes

14   alleged that his counsel was ineffective for advising him to

15   plead guilty to the § 922(g) count in spite of what he

16   termed “jurisdictional defects,” namely that the count

17   should have been dismissed because the police did not have

18   probable cause to search or arrest him and because he was

19   not arraigned until more than 60 days after his arrest.

20       The district court denied the motion to vacate.        The

21   district court rejected Forbes’s claim of ineffectiveness of


                               Page 7 of 14
 1   counsel with respect to the plea, explaining to Forbes that

 2   pleading guilty to the § 922(g) charge did not result in any

 3   additional jail time and    that the guilty plea eliminated

 4   the possibility of the government re-trying him on the

 5   remaining § 924(c) count.    This, in turn, as the district

 6   court explained, eliminated the possibility of an additional

 7   five years of jail time being added to Forbes’s sentence, as

 8   would have been required with a § 924(c) conviction.       The

 9   district court further found that Forbes’s factual

10   allegations were clearly contradicted by the record and

11   “inherently incredible.”

12       At sentencing Forbes was represented by M. Kirk Okay of

13   The Okay Law Firm.   The district court calculated a total

14   offense level of 26 with respect to the § 922(g) count,

15   starting from a base level of 20 and adding two points

16   because the pistol was stolen, U.S.S.G. § 2K2.1(b)(4), and

17   four points for possession of the firearm while distributing

18   cocaine, U.S.S.G. § 2K2.1(b)(5).       The district court did not

19   enhance Forbes’s sentence for obstruction of justice with

20   respect to his motion to vacate the guilty plea.       Forbes was

21   sentenced to life in prison on each of the two drug count



                                 Page 8 of 14
 1   jury convictions and a concurrent 120 months’ imprisonment

 2   on the § 922(g) firearm possession conviction.

 3       On appeal, Forbes was again represented by Okay, who

 4   argued that the district court erred in not allowing Forbes

 5   to withdraw his plea and that the record did not contain

 6   sufficient facts to support his plea.       This Court rejected

 7   these arguments, concluding that, “[a]lthough Forbes now

 8   suggests that his plea was not knowing and voluntary because

 9   he was confused as to the charge he was pleading to during

10   the allocution, our review of the transcript of the

11   allocution discloses no such confusion[, n]or . . . that the

12   district court accepted Forbes’ plea without determining

13   that there was an adequate factual basis for the plea.”

14   United States v. Forbes, No. 02-1120-cr, 78 Fed. App’x 164,

15   165 (2d Cir. 2003).   Although we expressed “some doubt about

16   the propriety of the district court relieving counsel of his

17   representation of the defendant . . . and then proceeding to

18   deny the defendant’s motion to withdraw his guilty plea

19   while he was unrepresented,” we declined to address this

20   issue because it was not raised on appeal or pursued during

21   questioning at oral argument.    Id.     Forbes, still



                               Page 9 of 14
 1   represented by Okay, filed a petition for a writ of

 2   certioriari to the United States Supreme Court in which he

 3   raised this new Sixth Amendment right-to-counsel issue.            The

 4   Supreme Court denied the petition.          Forbes v. United States,

 5   540 U.S. 1210 (2004).

 6       On October 13, 2004, Forbes filed a pro se petition to

 7   vacate, set aside, or correct his sentence under 28 U.S.C. §

 8   2255, contending that Schiano’s pre-trial representation was

 9   ineffective and that Schiano had coerced him into pleading

10   guilty to the § 922(g) charge.       Forbes also argued that Okay

11   was ineffective at sentencing for not challenging the

12   sentencing enhancements imposed and on appeal because he did

13   not raise the argument that Forbes was unconstitutionally

14   deprived of counsel with respect to his motion to withdraw

15   the guilty plea.     The district court dismissed the petition

16   without a hearing.

17       With respect to the allegations regarding Schiano, the

18   district court indicated that it had already considered and

19   rejected Forbes’s arguments in the motion to vacate the

20   plea, and that decision had been affirmed.          The district

21   court concluded that these issues were therefore



                                 Page 10 of 14
 1   procedurally barred.   See, e.g., United States v. Sanin, 252

 2   F.3d 79, 83 (2d Cir. 2001).

 3       The district court also found that Forbes’s allegations

 4   regarding Okay at sentencing were unsupported by the record.

 5   With respect to Okay’s effectiveness on appeal, the district

 6   court noted that appellate counsel was not obligated to

 7   raise every possible argument and that Forbes had not

 8   indicated that the arguments Okay raised were “significantly

 9   weaker,” Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994),

10   than Forbes’s right-to-counsel claim.      The district court

11   also noted that Forbes did not argue that he suffered

12   prejudice due to Okay’s failure to raise the right-to-

13   counsel issue on appeal.

14       Forbes subsequently moved for a certificate of

15   appealability on the basis of ineffectiveness of appellate

16   counsel.   This court granted the certificate and ordered

17   that counsel be appointed.

18                              Discussion

19       Forbes now argues that his motion to withdraw his

20   guilty plea constituted a “critical stage” of the criminal

21   proceeding, such that he was entitled to counsel unless he


                                Page 11 of 14
 1   waived the right, which he did not do.         See Hines v. Miller,

 2   318 F.3d 157, 164 (2d Cir. 2003) (Winter, J., dissenting).

 3   As the majority noted in Hines, federal courts have taken a

 4   variety of approaches with respect to habeas claims of

 5   denial of the right to counsel based on ineffective

 6   representation, or complete lack of representation, on

 7   motions to withdraw guilty pleas.         Id. at 163.   While the

 8   Hines court left open the question of the proper standard to

 9   apply in such situations, Forbes’s claim does not bring this

10   issue before us.   Rather, Forbes’s claim is once removed —

11   he contends his appellate counsel was ineffective for not

12   raising the issue on direct appeal.

13       Under Strickland v. Washington, 466 U.S. 668 (1984), to

14   establish ineffective assistance of appellate counsel,

15   Forbes must show that “counsel’s representation fell below

16   an objective standard of reasonableness,” id. at 688, and

17   that “there is a reasonable probability that, but for

18   counsel’s unprofessional errors, the result of the

19   proceeding would have been different,” id. at 694.          Although

20   there may be merit to Forbes’s unraised right-to-counsel

21   argument in the abstract, as indicated by the panel of this


                               Page 12 of 14
 1   Court that heard his direct appeal, this does not make

 2   counsel’s failure to raise the argument on appeal

 3   objectively unreasonable on the record before us.

 4       A motion to withdraw a guilty plea is a critical stage

 5   of a criminal proceeding, United States v. Davis, 239 F.3d

 6   283, 285-86 (2d Cir. 2001), meaning no showing of prejudice

 7   is necessary to establish a Sixth Amendment violation where

 8   a defendant is deprived of counsel in bringing it, see

 9   United States v. Cronic, 466 U.S. 648, 659 (1984).     However,

10   “the Sixth Amendment does not require that counsel do what

11   is impossible or unethical.”    Id. at 656 n.19.   It is well

12   established that “[t]he failure to include a meritless

13   argument does not fall outside the wide range of

14   professionally competent assistance to which [a defendant

15   is] entitled.”   Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir.

16   2001) (internal quotation marks omitted).    Two attorneys

17   withdrew as counsel to Forbes because he insisted on

18   pursuing what both attorneys considered to be a frivolous

19   motion to withdraw his plea.    A previous panel of this Court

20   conducted a thorough review of the record on direct appeal

21   and found no merit in any of the grounds Forbes raised as


                               Page 13 of 14
 1   possible bases for allowing him to withdraw his plea.     An

 2   independent review of the record reconfirms this conclusion.

 3   Moreover, Forbes would likely have ended up in a worse

 4   position than he now finds himself had he been allowed to

 5   withdraw his plea, because the government promised to pursue

 6   both the § 922(g) and § 924(c) charges if he succeeded.        A

 7   conviction on the § 924(c) count would have required the

 8   court to add a minimum of five years to Forbes’s sentence,

 9   to be served consecutively to the sentences for the two

10   other drug-related counts.

11         Forbes’s right to counsel at the critical plea-

12   withdrawal stage is not the issue before us, but rather

13   appellate counsel’s failure to raise that right-to-counsel

14   claim on direct appeal.   We cannot, on this record, conclude

15   that counsel’s failure to raise it was objectively

16   unreasonable or caused Forbes any prejudice.

17                             Conclusion

18         The district court’s order of May 23, 2007 dismissing

19   petitioner-appellant’s motion to vacate, set aside, or

20   correct his sentence under 28 U.S.C. § 2255 is hereby

21   A FFIRMED.



                               Page 14 of 14
