Petition for Writ of Certiorari — Marcel Malachowski, Petitioner v. United States

Supreme Court briefJul 18, 2019

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INAL

In The

Supreme Court Of The United States

FILED

JUL 1 8 2019

MARCEL MALACHOWSKI,

Petitioner,

UNITED STATES OF AMERICA

Respondant,

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

;

Marcel Malachowski

#15287-052

Great Plains Correctional

P.O. Box 400

Hinton, OK 73047

QUESTIONS PRESENTED

Did The Denial of COA Violate

Due Process Where The Second Circuit Court

of Appeals Denied Effective And Meaningful Review As A

Matter of Right

When A Clear Claim of Ineffective Assistance of Counsel

Was Deferred Tb

Habeas Proceedings. Ihe claim Presented On Direct Appeal

Was Grounded

Upon Government Misrepresentations Based Upon The Use of False

Evidence.

Which Influenced The Decision To Plead Guilty.

Was The Second Circuit Court of

Appeals Unreasonable In It's Threshold

Evaluation of Petitioner s Constitutional Claims Under The

Sixth Amendments Where The District

Fifth And

Court Held No Hearing In Resolution

of Motion Brought Under §2255.

Did The District Court Error In Denying Petitioner

Misrepresentations (Use of False

s Claim That Prosecutorial

Evidence) And Agent Misconduct (Evidence

Tampering) Rendered Plea Involuntary And Unknowing.

(i)

TABLE OF CONTENTS

Questions Presented..............................................

List of Parties In The Court of Appeals..............

Table of Contents..................................................

Table of Authorities.............................................

Opinion Below........................................................

Jurisdictional Statement......................................

Constitutional and Statutory Provisions Involved

I. Statement of Case.........................................................................

Relevant Background

Introduction....................................................... ...............................

Proposed Plea Agreement....................................................................

Motion For Counsel To Be Relieved...................................................

Re-assignment of Case.......................................................... .............

First Day of Trial

Trial Day Two and Change of Plea Hearing........................................

Pro Se Motions To Withdraw Guilty Plea...........................................

Sentencing.........................................................................................

Court of Appeals

Pro Se Motions Brought Under §2255

Petition For COA, Motion For Reconsideration and Panel Re-Hearing

II. Reasons For Granting The Writ.................................... ..........

Point I: THE DENIAL OF COA ON THE IS$UE COUNSEL WAS INEFFECTIVE

FOR FAILING TO WITHDRAW PETITIONER'S PLEA UPON

RE-APPOINTMENT VIOLATED DUE PROCESS..............................

Argument Presented On Direct

Claim Fortified Under §2255 Motion.................. ...........................

Counsel Was Aware of Further Brady Violations............................

Fifth Amendment Claim Demonstrates Ineffective Assistance

Of Trial and Appellate Counsel.......... ;......................................

Prosecutorial And Agent Conduct Demonstrates Denial of

Constitutional Right...................................................................

(iii)

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Pg-(ii)

pg.(iii)

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TABLE OF CONTENTS (con't)

Point II: THE SECOND CIRCUIT COURT OF APPEALS WAS UNREASONABLE

IN IT'S THRESHOLD EVALUATION OF PETITIONER'S CONSTITUTIONAL

CLAIMS UNDER THE SIXTH AMENDMENT WHERE THE DISTRICT

COURT HELD NO HEARING

A. The District Court Was Required To Hold A Hearing.........................

1. Petitioner Demonstrated Counsel Laboured Under Conflict

Of Interest........................................................................................ .

a.) Counsel's Sworn Admissions...................................... ..................... .

b.) Counsel Argued Contrary Positions In Favor of Prosecution........ .

c.) Counsel's Application To U.S. Attorney's Office..........................

i.) Counsel Ignores Petitioner's Specific Request To

Inform Court of Conflict.............................................................

d.) Material Facts Were In Dispute......................................................

e.) Petitioner Provided Sufficient Apprisal of Conflict

Establishing Reversable Error........................................................

2. Ineffective Assistance of Appellate Counsel Pertaining To

Rule 11 Violation.................................................................

a.) Procedural Error Identified.............................................

b.) Variance In Procedure Violates Rule 11...........................

c.) Standby Counsel Improperly Influenced Plea....................

d.) Second Circuit's Holding Violates Due Process.............

e.) "Most Logical Understanding".Still Warrants Relief.......

IIH CONCLUSION

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APPENDIX

Decision of the Second Circuit Court of Appeals

(iv)

(Al)

TABLE OF AUTHORITIES

Armienti v. United States, 313 F.3d 807, 810 (2d Cir. 2012)................. ■Pg.26

Brady v. United States, 397 U.S. 742 (1970)........................................

.pg.22

Brady v. Maryland, 373 U.S. 83 83 S.Ct. 1194, 10 L.Ed 2d 215 (1963)... -pg.20,22

Buck v. Davis, 2017 LEXIS 1429 ............................................................... •Pg.25

Ciak v. United States, 59 F.3d 296, 301 ()2d Cir. 1995).................... .

•pg.15

Cuyler v. Sullivan, 446 U.S. 335, (1980)............................ ................... ,pg.27

Harris v. Nelson, 394 U.S. 286, 300 (1969)............................................. pg.26

Harris v. Kemer, 404 U.S. 519, 529 (1972)............................................. .pg.22

Hill v. Lockart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed 2d (1985).... Pg-23

Holloway v. Arkansas, 435 U.S. 475.(1978)......................................

pg.27

Lassiler v. Turner, 423 F.2d 897, 900 (4th Cir. 1970)........................... pg.25

Leka v. Portuondo, 257 F.3d 32, 39 (2d Cir. 2001) ................................ Pg-17

Massaro v. United States, 538 U.S. 500, 504 (2003)................................ pg.16

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)..................................... Pg-1

Morris v. Slappy, 461 U.S. 1, 11 103 S.Ct. 1610, 75 L.Ed 2d (1983).... pg.19

Puckett v. United States, 566 U.S. 129 S.Ct. 1423, 173 L.Ed 266 (2009) • • pg.32

Phillips v. Smith, 632 F.2d 1019 (1980)............................ ........... ......... •pg.28

Puglisi v. United States, 566 F.3d 209 (2d Cir.2019)............................ .pg.26

Rivas v. Fischer, 687 F.3d 514, 539 (2d Cir. 2012)................................ ,pg.28

Slack v. McDaniels, 529 U.S. 473, 478 (2000)......................................... Pg-30

Strader v. Garrison, 611 F.2d 61 (4th Cir.1979).................................... pg-23

Strickland v. Washington, 466 U.S. 668, 687 (1984)............................... pg.22

Tollett v. Henderson, 411 U.S. 258 (1973) ........................................... Pg-23

Wood v. Georgia, 450 U.S. 261, 271 (1981)................................... .

.pg.27

United States v. Avellino, 136 F.3d 249 (2d Cir. 1997)......................... Pg-20

United States v. Bagley, 473 U.S. 667 (1985).......................................... pg.20,24

United States v. Correale, 479 F.2d .947 (4th Cir.1972)....................... . pg.24

United States v. Cook, 722 F.3d 477,: 482 (2d Cir. 2013)....................... Pg-34

United States v. Cronic, 466 U.S. 648 (1984)......................................... pg.27

United States v. Fisher, 2013 U.S. App. LEXIS 6515 ............................... ,pg.2l

United States v. Gribben, 984 F.2d 47, 48 (2d Cir. 1993)....................... Pg-25

United States V. Ferrara, 456 F.3d 291, 293 (4th Cir.2005).................... Pg-23

United States v. Harrison, 241 F.3d 289, 293 (2d Cir. 2001).................. Pg-36

United States v. Haymen, 342 U.S. 208. (1952).._....................................... Pg-26 .

United States v. Lloyd, 901 F.3d 111 (2d Cir. 2018)............................... Pg-36

(v)

TABLE OF AUTHORITIES (con't)

United States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003)

United States v. Nelson, U.S. Dist LEXIS 153420............

United States v. Nelson, U.S. Dist LEXIS 77008.............

United States v. Pattee, 820 F.3d 496 (2d Cir. 2016)...

United States v. Stewart, 590 F.3d 93 (2d Cir. 2008)...

United States v. Williams, 372 F.3d 96 (2d Cir. 2004)..

United States v.Wong, 78 F.3d 73, 79 (2d Cir. 1996)....

STATUTES

IS U.S.C. § 1254(1)

28 U.S.C. § 2253(c)

28 U.S.C. § 2255

FEDERAL RULES

Fed.R.Crim.P. Rule 11 (c)(1)

(b)(l)(I)

UNITED STATES CONSTITUTIONAL AMENDMENTS

FIFTH

SIXTH

(vi)

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In The

Supreme Court of The United States

2019

Marcel Malachowski,

Petitioner,

United States of America,

Respondant,

On Petition For a Writ of Certiorari To The United States

Court of Appeals For The Second Circuit

The Due Process violations exhibited by the seperate prosecutions are

extraordinary.

Resulting from a deliberate decision to delay a second indictment

in order to achieve tactical measures.

Review by the Supreme Court of The United

States is necessary to correct not only egregious misapplication of settled law.

But also, the lower courts demonstration of unwillingness to impugn their own

standards.

Opinion Below

The Second Circuit Court of Appeals held that M[u]pon due consideration,

it is hereby ordered that [] the appeal is DISMISSED because Appellant has not

'made a substantial showing of a denial of a constitutional right. f ft 28 U.S.C.

§ 2253 (c); see also Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). (A

)

Jurisdictional Statement

This Court has jurisdiction to review the judgement of the Court of Appeals

pursuant to 28 U.S.C. § 1254 (1).

The Court of Appeals issued an order denying

petitioner for certificate of appealability on December 19, 2018, the mandate

was issued on April 24, 2019. (A.l )

Constitutional and Statutory Provisions

The Constitutional provision involved is the Due Process Clause under

the Fifth Amendment to the United States Constitution.

The statutory provisions

involve 28 U.S.C. § 2253(a), and §2255.

STATEMENT OF THE CASE

Introduction

For nearly three years, the government withheld discovery while remaining

absolute that in order to reach a plea agreement.

Petitioner was required to

stipulate to an enhancement to which he had maintained innocence.

A week before trial began, Petitioner moved for attorney Fred Rench to be

relieved because counsel had failed to share discovery materials, obtain materials

to assist in defense, and operated under a conflict of interest.

Several months

leading up to trial, counsel ignored Petitioner's written requests that counsel

inform the court of these issues.

On June 4, 2013, the first day of trial, Petitioner informed the court that

he was in need of discovery material that was believed to have been withheld.

Specifically asserting "serious Brady violations" with both matters.

The govern

ment assured the District Court that all discovery had been disclosed.

Later in

the proceeding, Petitioner again attempted to pursue his discovery claim.

But,

the court stated that it would not hear anything further because the jury was

ready.

On the second day of trial Petitioner pled guilty out of desperation as

a result of previous experience (Uticaiproceeding), knowledge that he could not

adequately defend himself without time to prepare, without counsel, and that counsel

assigned to him utterly failed to examine discovery, qr formulate a defense.

RELEVANT BACKGROUND

As a consequence of the governments- bad faith and improprieties, Petitioner

has been subject to two tainted prosecutions and is currently serving 178 months

bom from misconduct. (240 months adjusted for time already served),

As a

plethora of previously withheld material now reveals, the previous picture painted

by the two seperate prosecutions of the Petitioner has been altered dramatically

worthy of consideration anew.

For starters, a cursory review of the Utica proceeding establishes that the

co-operating informant jumped from agency to agency, four in total when several

purported schemes to ensnare the Petitioner faltered.

Numerous attempts that

spanned 21 months, is how the investigation took the*appearance of a multifacited

endeavor.

Through the clever manipulation of both federal agents as well as the

Petitioner.

All while utilizing friendship, business partnership, and an invest

ment of nearly a million dollars as a trap and leverage in order to manipulate

a set of circumstances that led to a questionable arrest and later conviction.

During the course of trial, the government would Conceed that the Petitoner

had not been previously investigated for, or much less had any involvement with

firearms prior to the events created by the Cl.

In order to attain conviction,

the prosecution would need to engage in highly questionable tactics in efforts

to successfully prosecute the Petitioner.

Interestingly, in 2013', as a result of trial proceedings relative to the

instant matter.

Previously withheld evidence would reveal a bounty of material

exculpatory in nature,

Forensic evdience now establishes critical government

evidence utilized at Petitioners' trial, provides that agents of the government

deliberately tampered with recordings prior to submission as evidence.

Circumstances which involve lead DEA case, agent Mike Murphy. Moreover, material

also reveals three additional government co-operators directly involved in the

in the events on November 17, 2019', did not inculpate the Petitioner in anyway

to the relevant charges.

Forensic evidence also establishes that lead ATF case agent Melanie Kopf,

directly responsible for the circumstances surrounding evidence tampering,

provided perjured trial testimony pertaining to government recordings.

As the record provides, both prosecutions are inextricably linked by the

governments deliberate decision to delay a second indictment which led to two

seperate prosecutions stemming from a single multi-agency investigation.

As evidence suggests, the decision was premised upon unconstitutional conduct

known to investigators.

A second indictment occured in 2010’, relevant to the

instant matter.

Proposed Plea Agreement

From indictment in 2010', through 2012', Petitioner and the government

engaged in plea negotiations.

Throughout this period* the government offered

and had given the opportunity to plead guilty to Count One of the indictment,

conspiracy to distribute and possess1 with intent to distribute more than a

thousand kilograms of marijuanna in violation of 21 U.S.C. §§ 846 and 841 (b)(1)

(A).

The governments offer of a plea agreement to Count One, which carried a

ten-year mandatory minimum sentence, was favorable to the Petitioner, because

the top charge of the indictment, Count Three, carried a twenty-year mandatory

minimum sentence.

However, a plea agreement was never realized and plea negotiations fell

apart as a result of the governments' conditioning the plea agreement contain

a 2pt enhancement for possession of a firearm in furtherance. Premised upon the

ficticious claim that Petitioner had

witness Sean Herrmann at gun point.

threateried co-defendant and co-operating

The government relentlessly insisted on the

stipulation when the claim was in fact, false, and the government knew or should

have known the claim was concocted.

Further adding that there exists no. other

evidence or corroberation implicating the Petitioner to such conduct at any time.

Ultimately, the government was forced to go to trial because they made an

unreasonable demand upon Petitioner that was vindicated by the pre-sentence

report.

Counsel vividly recounted at sentencing that he and the Petitioner had

had heated, "nose-to-nose, red faced" arguments over Petitioners' refusal to

stipulate to threatening Herrmann with a gun.

[Petitions:} is ri^it. Ife refused to make a deal because ary dra! offered

by the government, prior to the date of trial, include[d] his havirg to

adiit that he placed a gun to the head of Sean tferrmann and he categorically

denied this from the beginning.

Rankly, Judge, I trusted the governments' position and the govecments'

evidence and [Petitioner] and I had sene nose-to-rose, rod faced arguments

at the Albany (binty jail as to whether or not be should be pleading guilty

and he absolutely refused to do so if accepting the — the accusation or

the allegation that he placed a gun to Herrmanns' head was gpirg to be

included, he would not do that.

Ife ultimately pleads guilty at trial, second day of trial. The pre-sentence

report is dene, and then [in] the presentence report the govermmt hacked

away from that allegation. So we find ourselves in the nominal position

here of where [itetiticner], who wanted to negotiate this case and plf^H

guilty, was prevented from doing so by the goverrnents' reluctance to give

up on this point.

(Trans pg. 36-37)

To date, the government has not credibly disputed Petitioners' description of

how plea negotiations fell apart.

However, due to Brady/Giglio violations, the

injury to the Petitioner went beyond missing out on an opportunity to plead

guilty, he was also deprived of his due process rights under the Fifth Amendment.

On May 21, 2013, two weeks before trial was set to begin, the government

disclosed hundreds of pages of discovery material to defense counsel.

The

discovery packet included the DEA-6 report, written by case agent Mike Murphy,

of Herrmanns' May 15, 2013, proffer in which he officially recanted his false

gun claim.

(Petitioner alleged in motion to' vacate his guilty plea that he

was not shown, nor did counsel tell him, of the recantation until after Petitioner

pled guilty.) Evidence indicates that there is strong proof that the government

knew even earlier than May 15, 2013, that Herrmann had made up the gun story.

The government violated it's obligations under Brady by failing to alert

Petitioner to the recantation of a crusial allegation by one of it's main

witnesses against Petitioner.

Receipt of the report evidencing Herrmanns'

recantation would have been pivitol to Petitioners' decision whether or not to

plead guilty had Petitioner received it prior to his guilty plea.

During the

pre-trial conference the district court had made inquiry into whether or not

complete discovery had been turned over to the defense.

What is not qualified

was that, in view of newly appointed pro se status, whether Jenks material had

been actually turned over to: the Petitioner, which is was not.

Moreover,

during the Court's inquiry, the government nor trial counsel disclosed the

pertainent fact that the government'had issued a non-disclosure letter.

Both

the Court and the Petitioner were kept in the dark about this critical

fact.

Although discovery had been provided to trial counsel, had counsel bothered

to thoroughly review the material or conduct basic investigation into Herrmanns'

claim in the early stages.

Arguably, counsel would have been able to persuade

the government to remove the possession of a firearm stipulation from the plea

agreement.

This was the stipulation that counsel had informed the Court that

he had fought with Petitioner to accept, thereby also confirming what the

government had represented throughout the plea bargaining stage.

To make matters worse, there is the strong likelyhood that Herrmann recanted

at least a year earlier, on March 26, 2012, in an interview with Agent Murphy

and AUSA Kelly.

Noting that both representatives of the government interviewed

Micheal Cook in early 2010, who throughout several debriefings not once corroberate

Herrmanns' claim.

Herrmann first made the phony gun threat claim on Febuary 20, 2009, long

before he signed his co-operation agreement on Febuary 12, 2012.

At his proffer

to the government on Febuary 18, 2009, Herrmann claimed that followihg the

seizure of marijuanna proceeds from him in 2007, by the DEA, Petitioner brought

him to a bam and directed other individuals to repeatedly threaten to kill him

with a firearm.

for the incident.

Herrmann claimed that co-defendant Micheal Cook was present

During any of Cooks' proffers, especially noting Febuary 28,

2013, Cook did not in anyway corroberate Herrmanns' claim, even when Cook

recounted the 2007 seizure and subsequent events.

In DEA agent notes from Herrmanns' March 26, 2012, interview with case agent

Murphy and AUSA Kelly, Herrmann again‘discussed the April 2007, cash seizure

in detail but. there was no mention in the notes of any gun threat.

Months after the March 26, 2012, interview, the government offered Petitioner

the plea agreement to Count One of the indictment, conspiracy to distribute

and possession with intent to distribute marijuanna in violation of 21 U.S.C. §

841 (b)(1)(B) with an enhancement for possession of a firearm in furtherance

of the criminal activity pursuant to Guideline 2D1.1 (b)(1).

Petitioner rejected

that plea offer, pleading with the government to remove the firearm stipulation

in order to come to an agreement.

The government refused to remove the stipulation.

Motion For Counsel To Be Relieved

A week before trial was to begin in this case, Petitioner moved for attorney

Rench to be relieved because Rench had failed to share discovery materials with

him, obtain materials to assist in his defense, did not meet with Petitioner

until just two weeks before trial to prepare for trial, counsel divulged defense

strategy to the government, and counsels' application for employment with the

very same U.S. Attorney's office months earlier demostrated conflict of interest.

It is important to note that the Petitioner was facing a likely life sentence

if convicted on the CCE count, which speaks volumes to the lack of diligence

demonstrated by counsel.

In specific regard to Rench, Petitioner had made at least two requests

directly to counsel via correspondance to inform the Court of the perceived

conflict, and acrimonious relationship months prior to trial.

Petitioner having

had two previous CJA attorneys' appointed during his case, made it unlikely the

Court would consider the request made by Petitioner himself. Consequently, the

District Court would not appoint another.

Noting that the prior attorneys

conduct was so egregious, that counsels' conduct had been recognized in other

cases by the Second Circuit Court of Appeals, and the State Supreme Court

Appellate Division.

Whereby, both Courts disciplined the attorney receiving

multiple suspensions.

Re-Assignment of Case

After three and a half years of proceedigns, the Petitioners' case was

re-assigned from the Honorable Judge Kahn, to the Honorable Judge McAvoy.

NO request or notification was made to the defense, notwithstanding the length

of time that had elapsed causing possible prejudice.

First Day of Trial

Conditioned by the experience of the Utica proceeding (government misconduct,

witness perjury, etc...), combined with the

mistrust developed from

appointed counsel conduct, the Petitioner moved to be permitted to proceed pro

se, inter; alia, the grounds specified in the preceeding paragraph.

Petitioner

informed the Court that he was in need of more discovery that he believed had

been withheld, as well as specifically asserting "serious Brady violations."

Petitioner asserted that he wished to resolve the case with the plea offer

made by the government, but one stipulation required by the plea agreement was

false; that Petitioner had threatened co-defendant Sean Herrmann with a gun.

Before denying the Petitioners' motion for additional time to prepare for

trial, and for further discovery, notwithstanding, newly appointed pro se status.

The Court directed the government to turn over previously withheld ATF reports

part of the investigation and a subject of controversy raised in the Utica

proceedings.

Conducting a cursory review that evening resulted in the discovery

of favorable material previously undisclosed relevant to both matters under

Brady law.

Trial Day Two and Change of Plea Hearing

On the second day of trial, June 5, 2013, Petitioner arrived to court

realizing that without discovery, or needed time to prepare, together presented

little chance to adequately defend himself.

Considering the options of proceeding

through trial under these conditions seemed illogical and defeating.

Especially

facing the likely possibility of receiving a life sentence as a result of a

guilty verdict to the CCE charge,

Armed with the ATF reports, and conclusory

evidence derived thereof, the Petitioner considered a second option of pleading

while pursuing a downward departure based upon mitigating, factors.

Alerting the Court to the possibilty of entering a plea should certain

conditions be met.

The Court granted the Petitioner forty-five minutes to

confer with stand-by counsel into the viabilty of this strategy.

was discussed in detail, seeking advice

The strategy

that if a plea was entered, could the

depart downward on mitigating circumstances.

The Petitioner was not only led

to believe that the Court had the authority to depart, but also the government agreed

to a sentencing hearing prior to entry of the plea.

The sentencing hearing was

a determinative factor in the Petitioners' decision to plea.

It would be at

this hearing where the Petitioner intended to establish deliberate government

misconduct, while evidencing legal argument of innocence relevant to the CCE

statute.

After discussing the matter with standby counsel, whereby Rench identified

the relevant section on mitigating factors located in the U.S.S.G. manual that

counsel had brought with him.

The Petitioner pled guilty to the indictment

without a plea agreement.

Pro Se Motions to Withdraw Guilty Plea

la August 2013, two months after trial, Petitioner was provided withheld

Jenks 3500 material.

Petitioner moved to withdraw his guilty plea by pro se

motions filed on September 3, 2013, October 28, 2013, and January 2, 2014,

which were all denied.

Noting, Petitioner called and notified Rench on June 6,

2013, of his desire to withdraw his plea to numerous counts. Also requesting

counsel to notify both the Court and the government.

In Petitioners' September 3, 2013, motion to set aside his guilty plea,

Petitioner alleged that although he wished to enter a plea agreement, he was

unable to reach an agreement with the government.

The only obsticle to an

agreement, it was alleged that the government had insisted that the Petitioner

stipulate to a two-level guideline increase for co-defendant Sean Herrmanns'

false claim that Petitioner had threatened him with a gun.

Petitioner explained that during plea negotiations, he had repeatedly denied

the claim that he had threatened Herrmann with a gun.

Petitioner explained that

he had suggested that his veracity be tested by a polygraph examiner on the issue.

While asserting that if not but for the governments' insistence that he stipulate

to Herrmanns' false claim, he would have accepted the governments' plea agreeWhich included a plea to a single count, Count One.

ment.

However, the governments'

position was intractible, and consequently, the plea was rejected and ultimately

pled guilty to the indictment.

As a means of disproving Herrmanns' false claim, it was requested that counsel

make inquiry into whether any. other co-defendants had corroberated Herrmanns'

claim.

Further requesting counsel to investigate issues pertaining to government

witnesses in order to prepare for trial.

In response, detailed in attorney

correspondence, counsel claimed that he "knew of no way to-investigate potential

witnesses."

Petitioner explained in the motion that after his guilty plea, Rench provided

him with DEA-6 statements that demonstrated that Herrmanns' claim was false, and

that Herrmann had recanted his claim in an interview with the government prior

to Petitioners' guilty plea.

In his May 15, 2013, proffer, Herrmann recanted his

story that Petitioner threatened him with a gun and confirmed that, "no one

put a gun to [his] head."

Petitioner alleged that Herrmanns' false claim forced him to reject the

governments' plea offer to Count One, having pled guilty to the indictment was

subject to a twenty-year statutory mandatory minimum sentence for Count Three,

which charged continual criminal enterprise. Petitioner argued that as a result

of the governments' adoption of Herrmanns' false claim as fact, he faced a

a mandatory minimum that carried double the sentence of what he would have faced

had the government not insisted that Herrmanns' false claim was true.

Arguably, with the changes in recent years, scoring would have resulted

to include the drugs minus to adjustment to the drug quantity table.

Thereby

reducing the Petitioners' sentence even further, considering that the Court applied

the low end of the guidelines.

The Petitioner would have been ultimately subject

to a guideline range of 135-165 months, providing a potential sentence disparity

of 105 months.

January 2, 2014', Pro Se Motion

In his final motion, Petitioner alleged, that it was not until his interview

with the Probation Officer that he learned that there was a twenty-year mandatory

minimum sentence for the CCE from which the District Court was not permitted to

depart.

Petitioner did not know that there was a mandatory minimum penalty applicable

to his guilty plea until after his decision to plead guilty, which divested the

Court of authority to depart absent a letter issued by the government for assistance.

It was the Petitioners' understanding that the Court "depart [] if warranted • • •

based upon mitigating factors," and that there was no truly mandatory minimum

sentence.

Petitioner alleged in his motion, that had he been fully informed, he

•would have elected to proceed to trial on the CCE Count."

January 3, Text Order

In response to Petitioners' motion filed on January 2, 2014, the District

Court issued a text order on January 3, 2014, stating that, inter alia, the

motion for "substantive relief from Petitioners' conviction" was denied.

The

Court referenced three prior orders that the Court had issued in the case that

addressed other grounds for relief, but those prior orders did not address

Petitioners' claim that he was not informed that the GCE count carried a twentyyear mandatory minimum sentence of imprisonment.

As a result, the District Court;

never addressed Petitioners' claim that he was misinformed as to the mandatory

minimum term of imprisonment and the statutory requirements. for the CCE charge.

Sentencing

On September 17, 2013, the District Court re-appointed Rench and modifed

counsels' representation from stand-by counsel to counsel of record.

Petitioner

made the request for appointment of counsel to assist with sentencing because

the Albany County jail had removed the federal law resources from its' library.

On January 7, 2014, Petitioner appeared at sentencing proceedings held

before Judge McAvoy, represented by Fred Rench.

Rench requested that the District

Court "depart" from the mandatory minimum sentence;

I've got a secondary point \frich [Itetitioner] asked me to add and Hats'

tine (hurt depart from a mandatory mininun sentence in this ca<¥> and

my reasons for tine departure below tine mandatory mininun, I dnould

say [Etetitioners' ] reason for tine departure below tine mandatory

mininun are set forth in sequence in tine pie-sentence report. Excuse

me. In ny sentencing mararandun and I heed not go throqgh then.

The district Court responded that the Court could not depart.

Pursuant to Guideline § 5G1.3(b)(1), the District Court adjusted Petitioners'

240-month sentence to credit the 62 months imprisonment that Petitioner had

already served.

Consequently on Counts 3, 5 through 13 and 16 through 24 of

the superceeding indictment, the Court sentenced Petitioner to 178 months'

imprisonment to run concurrently to his prior term.

A $1900 special assessment

was made and Petitioner forfeited his interest in all property listed in the

preliminary order of forfeiture.

Court of Appeals

On September 9, 2015, a panel of the Court issued a summary order affirming

Petitioners' conviction.

On appeal, the panel exercised it's baseline aversion

to reviewing ineffective assistance of counsel claims on direct.

Appellate counsel

Robin C. Smith, raised significant issue that upon re-appointment counsel was

ineffective for failing to withdraw Petitioners' plea relevant to the ficticious

Herrmann claim.

On Febuary 17, 2016, the Court of Appeals denied petition for panel

re-hearing, hearing en banc.

Pro Se Motion Brought Under § 2255

The Petitioners' brief asserted the following issues: (I) ineffective

assistance of counsel(s) and a decision by the Court denying a request for a

fourth resulted in a denial of a constitutional right to counsel under the Sixth

Amendment; (II) substantial Brady violations establish due process violations

under the Fifth Amendment^ (III) Petitioners' plea was improperly influenced

and coersed: in violation of the due process clause under the Fifth Amendment,

and; (IV) ineffective of appellate counsel established further violation under

the Sixth Amendment.

On June 11, 2018, the District Court denied the Petitioners' motion in

it's entirety.

Holding that "because Petitioners' § 2255 motion is denied

without the need for a hearing, Petitioners' motion to conduct discovery is

denied as moot.

The Court also found that the "Petitioner fails to present

viable issues upon which reasonable jurists coule debate..," thereby denying

Certificate of Appealability pursuant to 28 U.S.C. § 2253.

Petition For COA & Motion For Reconsideration

The Second Circuit Court of Appeals was provided notice that on August 27,

2018, Petitioner was placed in administrative segregation (S.H.U.) to await

transfer.

As result of suffering an unprovoked attack by four inmates.

Placement

in the S.H.U., for nearly one hundred days severly limited access to needed legal

resources.

During the pendancy of appeals for COA, Petitioner was only given

six hours of access to the electronic library, and was only twice granted access

to personal legal material placed in storage.

Arguably, these circumstances

severly hampered preparation of requests for COA.

Directly causing Petitioner

to overlook critical controlling law, and legal principles.

II.

REASONS FOR GRANTING THE WRIT

Brought under §2255 motion, Petitioner argued that because the Second Circuit

Court of Appeals exercised it's baseline aversion to reviewing an ineffective

assistance of counsel claim on direct.

Therefore, establishes any issue that

has some merit is considerably stronger and more likely to succeed,

In turn

demonstrating appellate counsel's performance fell below an objective standard

of reasonableness in opting not to pursue "Brady issues,

evidence that warranted review on direct.

supported by compelling

Petitioner was prejudiced by counsel's

performance "because requests for habeas relief are in tension with society's

strong interest in finality of criminal convictions, the courts have established

rules to make it more difficult for a defendant to upset a conviction by collateral

as opposed to direct attack." Ciak v. United States, 59 F.3d 296, 301 (2d Cir.

1995)

Alternatively, Petitioner's due process rights were violated by the Second

Circuit's denial of COA, when it had deferred review of the claim counsel was

ineffective for failing to withdraw plea upon re-appointment. Petitioner argued

that under motion for reconsideration, COA should have been granted because

where on the first appeal as a matter of right, an issue of ineffective assistance

is deferred to habeas proceedings. Then subsequent-denial of review of that

issue is not adjudicated in accord with due process of law.

POINT I

THE DENIAL OF 00A ON THE ISSUE COUNSEL

WAS INEFFECTIVE FOR FAILING TO WITHDRAW

PETITIONER'S PLEA UPON RE-APPOINTMENT

VIOLATED DUE PROCESS.

On direct the Second Circuit Court of Appeals held that, "[Petitioner's]

claim that counsel was ineffective for failing to withdraw his guilty plea []

is not cognizable on direct appeal." citing Massaro v. United States, 538 U.S.

500, 504 (2003)("In most cases a motion brought under §2255 is preferable to

direct appeal for deciding claims of ineffective assistance.");United States v.

Morris, 350 F.3d 32, 39 (2d Cir. 2003)(highlighting this Circuit's "baseline

aversion to resolving ineffective claims on direct review)(internal quotation

marks omitted)

Argument Presented On Direct

Appellate counsel argued that "[t]he Government's requirement that

[Petitioner] stipulate to a two level guideline increase based upon possession

of a firearm in furtherance of the conspiracy under U.S.S.G § 2D1.D1.1 (b)(1)

for the false claim that [Petitioner] allegedly threatened co-defendant Sean

Herrmann with a gun, violated [Petitioner'[s] rights under the Due Process Clause.

Alternatively, counsel was ineffective for failing to move to withdraw [Petit

ioner's] guilty plea on this ground." (See 14-023-cr, Br. pg.36-49)

At sentencing, counsel confirmed "from the onset of the case, [Petitioner]

wished to plead guilty, but refused to stipulate to threatening Herrmann with

a gun, because [he] inisted the allegation was false.

Rench admitted that he

had adopted, as truth, the governments position that the two-level enhancement

for possession of a firearm in furtherance of the conspiracy was proper, and

that as a consequence, he and Petitioner had had "some nose-to-nose, red faced

arguments at the Albany County Jail as to whether or not he should be pleading

guilty (A. 222-223)."(quoting App.Br. pg.37)

"[Petitioner] appended to ibis pro se motion to withdraw his guilty plea,

the DEA-6 reports and notes that he received after his guilty plea, which demon

strated Herrmann's false claim.

(A. 135-145)(Noting, Petitioner cited Leka v.

Portuondo, 257 F.3d 89 (2d Cir.2001)(precedent which establishes violation under

Brady attributable to knowledge of agents involved in the investigation) Appellate

counsel also argued that further written notes of Herrmann's interview occuring

on March 26, 2012, "raised serious question as to whether Herrmann recanted his

story even earlier.

As a result of Herrmann's lie, and government conduct when it knew or should

have know the claim was false, deprived Petitioner of the opportunity to plead

guilty to Count One of the indictment.

Claim Fortified Under §2255

Petitioner presented additional grounds to which established counsel was

ineffective for failing to withdraw plea upon re-appointment.

Counsel Was Aware of Rule 11 Violation

Providing fair and just reason to withdraw Petitioner's guilty plea,

counsel was fully aware that the plea had been entered in violation of Rule 11

(c)(1).

Entered while under the misinformed belief, that the court had autho

rity to depart below the minimum sentence.

During the change of plea hearing,

while in a stand-by capacity, counsel not only influenced the misinformed belief,

but remained mute while the error occured.

Counsel's knowledge can be implied from "extensive conversation...[],

culminating in a discussion just a few moments ago, perhaps the last hour...,"

where Petitioner consulted with Renoh.

(Change of Plea Trans, pg.36, In 25-26)

The misinformed belief should have been corrected by counsel or the court.

Furthermore, under Rule 11, it is up to the court to determine whether the

Petitioner understood the statutory restrictions. (See also; Point II, pg's 31-36)

Counsel Was Also Aware of Further Discovery Issues

An examination of both appointed counsels, Rench and Castillo would

indisputably provide that Petitioner had adamantly asserted innocence to the

Utica convictions, Herrmann's claim, and the CCE charge.

In addition to Herrmann's recantation contained in the withheld reports,

establishing a Fifth Amendment claim,

In a letter dated June 7, 2013, to

Petitioner, Rench declared that, "upon returning to my office on June 6, 2013,

(day after plea), I noticed a number of email messages directed to me from

AUSA Dan Gardner.

As I recall, much of the information was sent to me by Mr.

Gardner at your request.

I now enclose these materials herewith as I believe

they may bear upon your Utica case and Ultimately, upon the Albany case." (219

pg's of Jenks material that had been withheld from pro se litigant) Counsel's

statement confirms that in his own view that withheld information contained

value to both matters... /

Fifth Amendment Claim Demonstrated Ineffective

Assisstance of Both Trial And Appellate Counsel

Petitioner detailed that both, Rench and prosecutors withheld information

that a non-disclose letter had been issued.

Asserting that the government

circumvented due process by issuing it's own protective order with trial counsel.

Effectively leaving disclosure in the hands of appointed counsel, whom admitted

sypathies to the government had already prejudiced the Petitioner.

In the letter

the government instructed counsel that if upon evaluation there was .information

that Rench felt needed to be disclosed, counsel was to inform the government so

that an order could be sought from the court.

a government pdlveledga

Fed.R.Crim.P. 16, does not create

to issue a non-disclosure of evidence.

Under this rule

the district court must determine whether material is discoverable.

See United

States v. Stewart, 590 F.3d 93 (2d Cir. 2008) At no time did the government make

formal request to the court in order to restrict disclosure of Jenks 3500 material.

At the same time, the prosecution was not forthright, nor forthcoming in their

discovery obligations.

In the same vein, non-disclosure of crusial material

violated due process rights.

An issue that should have been arguably brought

forth on direct.

In view of pro se status

the district court did not qualify that Jenks

material had been provided to Petitioner. In resolution of this issue pre-trial,

the court assumed that counsel had shared discovery with the Petitioner.

While

being effectively denied reasonable opportunity to review discovery, Petitioner

also asserted that the court "unreasonably and arbitrarily" denied a continuance

in view of newly appointed pro se status,

citing Morris v. Slappy, 461 U.S. 1,

11 103 S.Ct. 1610, 75 L.Ed. 2d (1983)(denial of continuance may violate a

defendant's due process rights to a fair trial and present a defense.)

The provision of withheld material was described under §2255 motion as

"Brady material identified on it's face." (§2255 pg's 25-34) Transcripts of

recorded calls between two government witnesses lend to directly undercut a

critical element required by the CCE count.

The value of the withheld material

had been thoroughly detailed by appellate counsel brought under motion for an

indicative ruling (see Dkt 725), and previous petition for writ of certiorari

(see pg's 12-27).

Petitioner asserted that icounsel was ineffective for not

pursuing this issue that was significantly stronger than an issue that the

Second Circuit would decline to review on direct.

Counsel knew or should have

known of the court's aversion to reviewing ineffective assistance claims on direct.

Under his Brady v. Maryland,infra., claim, Petitioner asserted that because

there is no physical evidence meeting the

burden of proof in order to establish

needed elements required by the CCE count.

These circumstances establish that

the government would be reliant on witness testimony in order to meet the burden

of proof.

As such, the value of withheld impeachment material increases in

evaluation of constitutional claims.

See Bagley, infra.; United jStates v. Wong,

78 F.3d 73, 79 (2d Cir. 1996)("Evidence of impeachement material • • • where the

likely impact on the witness's credibility would have undermined a crusial element

of prosecutions case.")

Forensic evidence, Herrmann's fabrication, and the litany of impeachment

material further available through the withheld proffers would have thoroughly

undermined the credibility of key government witnesses.

Having detailed the

challenged credibilty of DEA agent Murphy and Sean Herrmann, evidence exists

that another key government witness (Selena Hopper) conspired in an attempt to

defraud a bank out of one hundred and fifty thousand dollars while "co-operating."

Furthermore, this same witness had engaged in an inappropriate intimate relation

ship with a DEA agent during the relative time period.

Utilized in combination with material evidencing that both Cook and Herrmann

worked independently of the Petitioner (establishing a buyer/seller relationship),

skilled counsel would have been able to instill reasonable doubt into the minds

of a jury.

Creating asreasonable probability that the outcome of the proceedings

would have been different.

See United States v. Nelson, 2014 U.S. Dist. LEXIS

77008 (A plea can be rendered legally involuntary by government misrepresentation)

"Because the prosecution suppressed exculpatory evidence before [Petitioner] pled

guilty, [Petitioner's] due process rights were violated to his prejudice and

his guilty plea was not voluntary and knowing." See Nelson, 2013 U.S. Dist.

LEXIS 153420, 2013 WL 5778318 at *9; United States v. Avellino, 136 F.3d 249

(2d Cir. 1997)

Prosecutorial And Agent Conduct Demonstrate

The Denial of A Constitutional Right

In pursuit of COA, the Petitioner contends that support is found under

United States v. Fisher, 2013 U.S. App. LEXIS 6515 (4th Cir. Md., April 1, 2013)

Where the district court granted defendant's motion for certificate of appealability

as to his Sixth Amendment ineffective assistance of counsel claim.

Thereafter,

the Fourth Circuit Court of Appeals granted Defendant's motion to expand the

certificate of appealability to include the issue of whether the belated

disclosure of [police] misconduct rendered defendant's plea invalid under the

Due Process Clause.

The Fourth Circuit Court of Appeals reversed the lower court's denial of

habeas relief hinging it's

decision on egregious impermissable conduct

(misrepresentation) antedat[ing] the entry of plea and because the misconduct

influenced the decision to plead guilty or, put another way, it was material to

that choice.

Supported by the United States Supreme Court holding that government

misrepresentations constitute impermissable conduct.

Fisher, at 2 (quotations

and citations omitted)

Petitioner argued that the circumstances presented by his case provide a

stronger argument for COA, than those found under Fisher♦ First, Petitioner

filed several pro se motions to withdraw his plea well in advance of sentencing.

Furthermore, withheld material actually strikes at a critical element required

by the CCE count.

While also presenting additional support that Petitioner was

not fully aware of the consequences of his plea.

However, like Fisher, the Petitioner's case presents extraordinary circum

stances.

Where law enforcement officers responsible for the investigation that

led to arrest and guilty plea have committed unconscionable acts.

In comparison,

DEA agent Murphy knew or should have known Herrmann's claim was false,

Moreover,

grand jury testimony along with withheld reports provide Murphy's presence and

participation in the arrest of Petitioner on November 17, 2008, relevant to the

Utica prosecution.

Forensic evidence now provides that critical bodywire recording exculpating

the Petitioner to the gun possession charges was tampered with at 6:41pm on

that day.

scene.

Occuring approximately fourteen minutes after the arrest while at the

Working closely alongside ATF agent Kopf, it is possible that agent

Murphy could have been responsible for deliberatley tampering with exculpatory

evidence.

By doing so, would have provided ATF agent's with deniable plausibility.

Agent Murphy stood in the best position to influence prosecutor's to delay a

second indictment to the marijuana offenses,

However, whether or not agent Murphy

was actually responsible is not a determantive factor under the cited precedent

found under Fisher, but is still important for consideration.

The Defendant in Fisher, essentially argued that his plea was constitutionally

infirm for two district reasons: (1) underlying pre-plea misconduct rendered his

plea involuntary under Brady v. United States, 397 U.S. 724, .90 S.Ct. 1463, 25

L.Ed. 2d 747 (1970); and (2) the government failed to meet it's evidentiary

disclosure obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,

10 L.Ed 2d 215 (1963). Id. In view of precedent found under Harris v. Kemer,

404 U.S. 519, 520 (1972), Petitioner's pro se motions submissions should have

been read'to'construe the strongest argument,

A claim under Brady v. Maryland,

had been articulated, and it had been argued that the government misrepresented

not only Herrmann's ficticious claim, but also that all discovery had been turned

over.

Which it had not as evidenced by the record in violation of due process.

"The long standing test for determining the validity of a guilty plea is

whether the plea represents a voluntary and intelligent choice among the

alternative courses of action open to the defendant." Hill v. Lockart,474 U.S.

52, 56 106 S.Ct. 366, 88 L.Ed.2d (1985)(citations and quotations omitted) To

set aside a plea as involuntary, [Petitioner] first must show that impermissable

government conduct occured.

Brady v. United States, 397 U.S. at 755.

But Brady

v. United States, does not limit government misrepresentations to prosecutorial

promises designed to elicit a guilty plea.

Consequently, the First Circuit has

held that the government may not make "plain []"and "inexcusable" misrepresent

ations not anchored to any permissble litigation strategy.

at 293.

Ferrara, 456 F.3d

The First Circuit held that the affirmative misstatements "plainly and

inexcusably misrepresented the true state of affairs" and constituted "blatent

misconduct" that was "sufficient to ground the petitioner's claim that his guilty ’

plea was involuntary." Id. (citation omitted) quoting Fisher at 5.

Similarly, even defense counsel's misrepresentations can undermine the

validity of a plea.

Tollett v. Henderson, 411 U.S. 258, 266-67, 93 S.Ct. 1602,

36 L.Ed 235 (1973), see also; Stader v. Garrison, 611 F.2d 61 (4th Cir. 1979)

(when [] grossly misinformed by [an attorney], and reli[ant] upon that misinfor

mation, [Petitioner] is deprived of his constitutional right to counsel.)

When the erroneous advice induces a-plea, permitting him to start over again

is the imperative remedy for the constitutional deprivation." Id. at 55. quoting

Fisher at 6.

Like Fisher, this is not a case where [Petitioner] sought to withdraw his

plea "merely because he discovered long after the plea ha[d] been accepted that

his calculus misapprehended the quality of the [government's] case or the likely

penalties attached to alternative courses of action." Brady v. United States,

397 U.S. at 757.

Rather, Petitioner's misapprehension stemmed from affirmative

government misrepresentations that "strikes at the integrity of the prosecution

as a whole." See Ferrara, 456 F.3d at 291 (staging that it is only when a

defendant's misapprehension of the strength of the government's case "results

from some particular pernicious form of impermissable conduct that due process

concerns are implicated."

(citations omitted)) quoting Fisher, at 6. Similarily,

counsel believed the government's case to be strong, and argued with Petitioner to

enter a plea.

See also Correale, 479 F.2d 947 (stating that prosecutorial

misrepresentation, though made in good faith, are not acceptable.)

Presenting a compelling argument similar to Fisher, establishing a

"reasonable probability that, but for the misconduct, [Petitioner] would not

have pleaded guilty and would have insisted on going to trial." Ferrara, 456

F.3d at 29 (citations omitted) Petitioner had already insisted on proceeding

to trial despite the overwhelming circumstances that existed.

It would also

be reasonable to conclude that, at a minimum a plea to a significantly lower

sentence would have been pursued.

Like Fisher, had discovery been provided in time for effective use, a

competant attorney would have advised Petitioner that a key consideration in

deciding whether to enter a guilty plea or proceed to trial was the role DEA

agent Murphy's credibility would play at trial.

of key government witness Sean Herrmann.

In addition to the credibility

Further similarity exists where the

district court held that "the purportedly edited audiotapes in NDNY 08-CR-701

(DNH), if discovered would have provided,[], impeachment material in the instant

case." (D&O pg.25)

See also United States v. Bagley, 473 U.S. 667 (1985)

("when reliability of a given witness may well be determinative of guilt or

innocence, non-disclosure falls within general rule of Brady.") The district

court has never considered the impact of impermissable conduct under the

aforementioned standards.

Nor has the court considered the likely outcome had

the misconduct been discovered prior to Petitioner's plea.

The similarily situated egregious circumstances, establish that Petitioner was

"deceived into making the plea, and government deceptions prevented his act from

being a true act of volition." Lassiler v. Turner, 423 F.2d 897, 900

'4th Cir.

1970)

Granting the writ would support the important interest of detering police

misconduct.

If a defendant cannot challenge the validity of a plea on subsequently

discovered police misconduct, officers may be more likely to engage in such

conduct, as well as more likely to conceal it to help elicit guilty pleas.

Petitioner should not be penalized because he did not discover agent misconduct

earlier.

To allow Petitioner's guilty plea to stand in view of such misconduct

through two prosecutions undermines public confidence in the judicial system.

When agents do not conduct themselves with truth, public confidence in the fair

administration of criminal justice inevitably is eroded." United States v.

Gribben, 984 F.2d 47, 48 (2d Cir. 1993) accord Fisher.

POINT II

THE SECOND CIRCUIT COURT OF APPEALS WAS UNREASONABLE IN IT'S

THRESHOLD EVALUATION OF PETITIONER'S CONSTITUTIONAL CLAIMS UNDER

UNDER THE SIXTH AMENDMENT WHERE THE DISTRICT COURT HELD NO HEARING

"The COA determination...requires.an overview of the claims in a habeas

petition and an general assessment of their merits." Miller-El, supra.

At the

COA stage, the only question is whether the district court's resolution of

constitutional claims or that jurists of reason could conclude the issues presented

are adequate to proceed further." See Buck v. Davis, 2017 LEXIS 1429.

The District Court Was Required To Hold An Evidentiary Hearing.

Under 28 U.S.C. §2255, when a [Petitioner] alleges facts that, if proven,

would entitle him to relief...,the district court is required to grant a hearing

to "determine the issue and make findings of fact and conclusions of law with

respect thereto" unless "the motion and files and records of the case conclusively

show that the prisoner is entitled to no relief." 28 U.S.C. §2255(b).

See e.g.

Harris v. Nelson, 394 U.S. 286, 300 (1969)([Petitioner] must provide specific

allegations that provide "reason to believe that • • • ,if the facts are fully

developed, be able to demonstrate that • • • he is entitled to relief.)

The district court, in determining whether summary dismissal is appropriate,

is not permitted to make findings of controverted issues of fact without a

hearing.

See United States v. Haymen, 342 U.S. 208, 219-20, 72 S.Ct. 263,

96 L.Ed 232 (1952); Puglisi v, United States, 566 F.3d 209

(2d Cir. 2019)("The

Court must determine whether, viewing the evidentiary proffers, where credible,

and record in light most favorable to the Petitioner.

The [Petitioner] who has

the burden, may be able to establish at a hearing a prima facie case for relief.

If material facts are in dispute, a hearing should usually be held, and relevant

findings of fact be made."); Armienti v. United States, 313 F.3d 807, 810 (2d

Cir. 2012)(remanding for a hearing where appellant alleged several specific

instances of attorney deficiencies that were product of specific conflict of

interest.)

Petitioner Demonstrated Counsel:Laboured Under A Conflict Of Interest

Through All Stages of Proceedings.

a.) Counsel's Sworn Admissions-* Under a threshold evaluation, Rench's open

declaration that counsel "trusted the government's position and evidence and

[Petitioner] and I had some nose-to-nose, red faced arguments • • • as to whether

or not he should be pleading guilty and he refused to do so if accepting the—

the accusation or allegation that he placed a gun to Herrmann's head was going

to be included, he would not do that."

(See Sent.Tran, pg.i 36-37) This

statement provides that counsel's sympathies and support of the government

existed pre-trial through sentencing (while also demonstrating that Herrmann's

ficticious claim prejudiced counsel's view of Petitioner affecting performance.)

Furthermore, this statement provides that "an actual conflict of interest

exist[ed] where, during the course of representation, the attorney's and

[Petitioner's] interest diverge with respect to a material factual or legal issue

or to a course of action." See Armienti, supra.; United States v. Cronic, 466

U.S. 648 (1984)("A defense attorney who abandons his duty and loyalty to his client

and effectively joins the [government] in efforts to attain conviction [or]

sentence suffers from an obvious conflict of interest.") The Sixth Amendment

right to counsel to include conflict free representation is well settled.

See

also; Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed 2d 220 (1981);

Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed 2d 333 (1980), and;

Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed. 2d 426 (1978)

b.) Counsel Argued Contrary Positions To That of Petitioner In Favor of

The Government.

Further evidencing counsel's affliction, Rench argued that, "I think out

of a sense of economy, and the government knew of [Petitioner's] identity as

they were proceeding with—the Utica case, they would have prosecuted him at

the same time.

I don't believe that the government intentionally seperated these

prosecutions in an attempt to malicously prosecute [Petitioner].

I think they

did not know or perhaps the Utica case had gotten so far advanced they could'nt

combine them." Counsel's statement directly in support of the prosecution

violates jurisprudence under the Sixth Amendment.

Not only are counsel's claims

categorically contradicted by the record (see §2255 pg.17-19), but evidence

tampering and bad faith conduct exhibited by the vise of false evidence in attempts

to convict Petitioner demonstrate counsel abandoned his client.

Under §2255 motion, Petitioner asserted that prejudice should be presumed

in view of counsel's statements made at sentencing.