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United States v. Mariano

United States District Court, D. Rhode Island

May 23, 2017



          Mary M. Lisi Senior United States District Judge

         Pending before the Court is a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. #164) (“Motion”) filed by Petitioner Ralph M. Mariano (“Petitioner” or “Mariano”). The Government has filed an opposition to the Motion (Doc. #167) (“Opposition”), to which Mariano filed a response (Doc. #169) (“Response”). No hearing is necessary.


         Mariano was arrested on February 7, 2011, pursuant to a Criminal Complaint (Doc. #3) charging him with bribery, in violation of 18 U.S.C. § 201. On April 26, 2012, a Grand Jury sitting in the District of Rhode Island returned a 37-count Indictment (Doc. #27) against Mariano and his father, charging Mariano with conspiracy, theft of government property, wire fraud, bribery, extortion under color of official right, and tax evasion, in violation of 18 U.S.C. §§ 371, 641 and 2, 1343 and 2, 201 and 2, 1951 and 2, and 26 U.S.C. § 7201, respectively. Mariano was arraigned on May 8, 2012. Subsequently, the Grand Jury returned a 41-count Superceding Indictment (Doc. #43), containing the same charges against Mariano, but adding a defendant, Mary O'Rourke. Mariano was arraigned on the Superceding Indictment on July 9, 2012.

         Following negotiations between the Government and defense counsel, Mariano appeared before the Court on May 30, 2013, and, pursuant to a written Plea Agreement (Doc. #88), pled guilty to three counts of the Superseding Indictment: conspiracy, theft of government property, and tax evasion. The Government agreed to dismiss the remaining counts. Mariano was sentenced on November 1, 2013, to concurrent sentences of 60 months, 120 months, and 60 months incarceration, to be followed by a term of supervised release of three years. He was also ordered to pay a mandatory special assessment of $300, a $10, 000 fine, and restitution in the amount of $17, 957, 000. Judgment (Doc. #134) (“D.R.I. Judgment”) entered that same day.

         Mariano appealed his sentence to the Court of Appeals for the First Circuit, arguing that the Court erred in determining that he was not entitled to a reduction in his offense level for acceptance of responsibility. The First Circuit affirmed the sentence in a Judgment (Doc. #162) (“First Circuit Judgment”) dated October 9, 2014. The Court of Appeals' Mandate (Doc. #163) issued on October 31, 2014. On February 23, 2015, the United States Supreme Court denied certiorari.

         Mariano filed the instant Motion, and memorandum in support thereof (“Mariano Mem.”), on February 23, 2016. He alleges ineffective assistance of both plea and sentencing counsel.


         I. Section 2255 and AEDPA

         Generally, the grounds justifying relief under 28 U.S.C. § 2255 are limited. A court may grant such relief only if it finds a lack of jurisdiction, a constitutional error, or a fundamental error of law. See United States v. Addonizio, 442 U.S. 178, 185 (1979)(“[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice.”)(internal quotation marks omitted).

         Section 2255 states that:

(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

         In 1996, Congress enacted the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), which “imposed significant new constraints on proceedings under section 2255.” Trenkler v. United States, 536 F.3d 85, 96 (1st Cir. 2008)(footnote omitted). “Some of these constraints were temporal; for example, AEDPA established a one-year statute of limitations for filing a section 2255 petition.” Id. (citing 28 U.S.C. § 2255(f)). Others were numerical, requiring a petitioner to obtain preclearance from the circuit court before filing a second or successive petition. Id. (citing 28 U.S. § 2255(h)).

         II. Strickland

         A defendant who claims that he was deprived of his Sixth Amendment right to the effective assistance of counsel must demonstrate:

(1) that his counsel's performance fell below an objective standard of reasonableness; and
(2) a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687-88 (1984); United States v. Manon, 608 F.3d 126, 131 (1st Cir. 2010)(same). In assessing the adequacy of counsel's performance, a defendant “‘must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment, ' and the court then determines whether, in the particular context, the identified conduct or inaction was ‘outside the wide range of professionally competent assistance.'” Manon, 608 F.3d at 131 (quoting Strickland, 466 U.S. at 690); see also Strickland, 466 U.S. at 689 (noting that the court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ...”). To show prejudice under Strickland, the defendant must demonstrate that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A reasonable probability is one “sufficient to undermine confidence in the outcome.” Id. In making the prejudice assessment, the court focuses on the “fundamental fairness of the proceeding.” Manon, 608 F.3d at 131; see also Strickland, 466 U.S. at 696. “Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland, 466 U.S. at 687; see also Reyes-Vejerano v. United States, 117 F.Supp.2d 103, 106 (D.P.R. 2000)(“The petitioner has the burden of proving both prongs of this test, and the burden is a heavy one.”). “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686.

         The same principles apply in the context of guilty pleas. See Hill v. Lockhart, 474 U.S. 52, 57 (1985). The Hill Court held that “the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.” Id. at 58; see also Padilla v. Kentucky, 559 U.S. 356, 371 n.12 (2010)(“In Hill, the Court recognized-for the first time-that Strickland applies to advice respecting a guilty plea.”). The first prong of the Strickland test is nothing more than a restatement of the standard of attorney competence described above. Hill, 474 U.S. at 58.

The second, or “prejudice” requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the “prejudice” requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.

Id. at 59; see also Lafler v. Cooper, 566 U.S. at 156, 163 (2012)(“In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice.”); id. at 164 (“In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.”). “To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.” Missouri v. Frye, 566 U.S. 133, 147 (2012). The Hill Court reiterated that, as stated in Strickland, “these predictions of the outcome at a possible trial, where necessary, should be made objectively ....” 474 U.S. at 59-60; see also Padilla, 559 U.S. at 372 (noting that “to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances”).

         III. Analysis

         A. Ineffective assistance of plea counsel

         Mariano claims that his plea counsel, Robert C. Corrente, was ineffective based on his failure to: (1) investigate prior to giving advice regarding a plea offer; (2) give proper advice in rejecting the initial plea offer; and (3) challenge the Government's case in any meaningful way. Motion at 4-6. Mariano argues that, “but for counsel's ineffective assistance, there was a reasonable probability that a different result would have occurred.” Motion at 4; see also id. at 5-6.

         In order to put Mariano's allegations in perspective, some additional background information is needed. In December, 2011, and again in March, 2012, an initial plea offer was made by the Government, under which Mariano would admit to one count of theft of government property of more than $2.5 million and one count of tax evasion of more than $200, 000. Mariano Mem. at 15;[1]see also id., Ex. A (Letter from Assistant United States Attorney to Attorney Corrente dated March 27, 2012 (“3/27/12 Letter”)) at 2 (summarizing terms of proposed plea offer). Mariano states that he “was told by Attorney Corrente that he would likely receive a three (3) point reduction for acceptance of responsibility and on the low end, if accepted by the court he would be looking at approximately 55 months to serve.” Mariano Mem. at 15. However, Mariano further states, “Attorney Corrente advised Petitioner to reject the aforementioned deal as ‘he didn't know what to tell [him] to plead to.'” Id. at 16 (alteration in original). At that time, Mariano's three co-defendants had pled guilty “and were being spared harsh sentences for their cooperation against Petitioner.” Id.

         Subsequent to Mariano's rejection of this initial offer, the Grand Jury on April 26, 2012, returned an Indictment which added charges of conspiracy, wire fraud, and extortion under color of official right against Mariano. Indictment at 1. The 3/27/12 Letter had warned of this possibility. 3/27/12 Letter at 2 (“This offer was conveyed to you with the understanding that in the event your client rejected the offer, he could be charged by way of indictment with more serious criminal violations.”). The Superceding Indictment followed on June 21, 2012. See Superceding Indictment. As noted above, Mariano ultimately pled guilty to three counts of the Superceding Indictment. See Plea Agreement.

         Mariano argues that:

Petitioner received ineffective assistance of counsel as Attorney Corrente never discharged his professional obligation to explain the plea and the consequences of rejecting the plea. Prior to advising Petitioner to reject the plea Attorney Corrente failed to conduct an objectively reasonable pre-trial investigation of both the facts and the law in relation to the charges and potential charges that the Petitioner was facing. Attorney Corrente's reliance upon an untested and un-researched legal theory regarding the sourcing of the money received by the Petitioner was objectively unreasonable. Moreover Attorney Corrente never properly explained and/or counseled Petition[er] as to the potential risks attendant to proceeding to trial. Attorney Corrente was not sufficiently informed with respect to the legal and factual issues relating to Petitioner's case so that he could give Petitioner sufficient advice so that Petitioner could have made a knowing and informed decision as to whether to accept or reject the Government's initial plea offer. Had Petitioner been given competent advice at the time that the original plea was offered, he would have accepted the initial plea agreement. Due to ineffective assistance of counsel he was not able to make an informed decision and the deal was rejected.

Mariano Mem. at 14; see also id. at 16 (“This first plea did not have Petitioner admitting to the more serious charges in the criminal complaint. The plea deal dealt with the receipt of money which he had admitted to from the beginning.”). Seventeen months later, Mariano states, counsel advised him “to take a worse plea on the eve of trial as he realized he had ‘oversold the sale.'” Id. at 19: see also id. at 14 (“In the end, Attorney Corrente would tell Petitioner he needed to plea[d] because he (Corrente) had ‘oversold the sale' and alleged that Petitioner was in danger of being convicted.”). Mariano concludes that “Attorney Corrente's poor judgment altered the outcome in that, had Petitioner been properly informed as to the likelihood of his exposure to more serious charges in an indictment as well as the likelihood of success or not at trial, the Petitioner would have taken the initial plea deal.” Id. at 31. Further, “the sentence he received by having to accept the second plea deal which included more charges carrying more serious penalties is evidence of prejudice satisfying the second prong of Strickland.” Id.

         The Government counters that:

[I]t cannot be said that Corrente's recommendation to reject the initial plea offer somehow failed to meet an objective standard of reasonableness. In March 2012, the case against Mariano was still at an early stage. The Grand Jury had yet to return an indictment and only a small portion of the discovery had been produced. It was eminently reasonable for Corrente to advise Mariano to hold off on entering a plea of guilty until he had the discovery available and could form a reasoned opinion of the evidence the Government had against Mariano. As Mariano points out, Corrente was working hard on Mariano's behalf on several arguments that could have mitigated Mariano's guilt, including an argument that some of the Navy money received by Mariano was insufficiently controlled by the Government to constitute “government funds” under 18 U.S.C. § 641. While the Government disagrees with this assertion, Attorney Corrente's decision to pursue this issue was not unreasonable, but rather a function of his zealous advocacy on behalf of his client.

Opposition at 8-9. Further, the Government states, Mariano cannot meet Strickland's prejudice prong:

Although more than a year passed between the initial plea offer in March 2012 and the change of plea hearing in May 2013, Corrente managed to secure essentially the same plea agreement for Mariano that Mariano rejected in March 2012. The March 2012 offer was for Mariano to plead guilty to a two count Information, charging him with theft of government funds and tax evasion. The May 2013 plea agreement similarly required Mariano to plead guilty to theft of government funds and to tax evasion. While a conspiracy charge was also included in the 2013 plea agreement, that charge had no effect on the Guideline range in this case. Through vigorous representation of his client, Corrente managed to convince the Government to dismiss the bribery and extortion counts, which would have significantly increased Mariano's exposure.

Id. at 9. Thus, the Government concludes, Mariano cannot establish that “the results of the proceedings would have been different but for the alleged errors of his attorney.” Id. at 10.

         Leaving aside the question of whether counsel's performance was deficient, the Court turns directly to Strickland's prejudice requirement. See Strickland, 466 U.S. at 697 (“[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. ... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”); Knight v. United States, 37 F.3d 769, 775 (1st Cir. 1994)(“Since Knight has not satisfied the second prong of Strickland, we need not address the first prong.”).

         To reiterate:

To show prejudice from ineffective assistance where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept, if they had the authority to exercise that discretion .... To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.

Frye, 566 U.S. at 147 (citation omitted)(emphasis added); see also Lafler, 566 U.S. at 164. “This further showing is of particular importance because a defendant has no right to be offered a plea nor a federal right that the judge accept it.” F ...

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