Mickens v. U.S., CV-97-2122.

333 F.Supp.2d 44

Thomas MICKENS, Petitioner, v. UNITED STATES of America, Respondent.

No. CV-97-2122.

United States District Court, E.D. New York.

August 25, 2004.

Robert N. Isseks, Middletown, NY, Merrill N. Rubin, Law Office of Merrill Rubin, LLC, New York, NY, for Plaintiff.

Cecil Carusi Scott, Brooklyn, NY, for Defendant.

MEMORANDUM AND ORDER

PLATT, District Judge.

Petitioner Thomas Mickens moves under Federal Rule of Civil Procedure 60 for relief from his conviction and sentence. For the following reasons, Mickens is GRANTED an evidentiary hearing pursuant to Rule 60.

Background

As this Court stated in an earlier proceeding, "Mickens orchestrated a profitable cocaine distribution network in Queens, New York over a five-year period," an activity that allowed him to engage "in a lifestyle of extravagant spending." Mickens v. United States, 53 F.Supp.2d 326, 329 (E.D.N.Y.1999). In 1989, a jury found Mickens guilty on seventeen counts of tax evasion, the filing of perjurious tax returns, money laundering, and the illegal structuring of transactions in relation to conspiracies to distribute and possess cocaine and to defraud the United States. See id. Upon conviction, Mickens received a sentence of 35 years imprisonment and a $1,000,000 fine. See id. His conviction was upheld upon direct appeal. United States v. Mickens, 926 F.2d 1323 (2d Cir.1991), cert. denied, 502 U.S. 1060, 112 S.Ct. 940, 117 L.Ed.2d 111 (1992). This Court also rejected habeas corpus challenges to Mickens' sentence, and declined to grant him a certificate of appealability in 1999. The Court of Appeals denied his application for such a certificate in 2000.

The basis of his current motion, also set forth in an earlier Section 2255 petition, is the claim that Robert M. Simels, Esq., failed to communicate to Mickens a plea bargain offer. Assistant United States Attorney Kirby A. Heller allegedly extended this offer to Mr. Simels in a conversation of October 27, 1988, memorialized in letter dated October 28, 1988. Mickens' five co-defendants received the plea bargain offers communicated in the same letter. But Mr. Simels, lead counsel for the defense, maintained that no such offer was made by the Government to Mickens.

AUSA Heller stated that she "probably" made a plea offer to Mickens, as offers had been extended to his co-defendants, and accepted by at least one of them. But a subsequent search of her records revealed no such offer to Mickens. A further, unsuccessful search by AUSA Stuart M. Altman resulted in his stating in 1999 that "despite an extensive review of files by the undersigned, no plea offer to Mickens has been found in the Government's files," and that there was "no merit" in Mickens' claim that a plea offer had been made but not communicated to him. Petitioner's Memorandum of Law at 3-4; Government's Memorandum of Law at 3-5.

After submitting multiple Freedom of Information Act ["FOIA"] requests over a period of years, on November 13, 2002 Mickens obtained what appears to be a true copy of a letter from AUSA Heller to Mr. Simels that "formalize[d] the plea offer communicated on October 27, 1988 to Robert Simels as lead counsel." [Hereinafter, "the Memorandum."] The Memorandum, docketed with the clerk of the court the next day, pertained to "all defendants" in the case of United States v. Mickens, et al., and offered Mickens a plea to an unspecified "Count 5" in satisfaction of his indictment. Mickens claims, although the original accusatory instruments are lost, that the fifth count was a money laundering charge. The Government does not dispute the authenticity of the Memorandum. Petitioner's Memorandum at 5; the Government's Memorandum, passim; see also the Memorandum, attached as Exhibit A.

The Court, however, questions the proposition that the Government offered that Mickens be allowed to plead only to one count containing only a money laundering charge.

An examination of the Court's copy of Mickens' Pre-Sentence Report ["PSR"] does not reveal what "Count 5" may have been, because Mickens' appears to have been acquitted on this particular count at trial (and therefore it did not factor into the computation of his sentence). However, the Court's recollection is that the second Defendant in this case, the "Number Two" man in the conspiracy, Anthony Jacobs, was required to plead guilty to drug and tax evasion conspiracy charges, and a drug possession charge on a small quantity of cocaine. The Court sentenced Jacobs to 27 years' imprisonment, taking into account all of the substantive counts in the indictment against him.¹ Jacobs' initial sentence of 27 years, subsequent to his plea, leads the Court to question whether his co-defendant, Mickens, was offered a plea to an offense for which he would have received a substantially lesser penalty than the sentences that either he or Jacobs actually received.

Be that as it may, Mickens received a sentence, after being found guilty at trial on 17 counts, of only 35 years of imprisonment and a $1,000,000 fine. The maximum statutory sentence for a single count of money laundering under 18 U.S.C. § 1956 is 20 years of imprisonment and a $500,000 fine — which was less than the sentence that Jacobs received originally. Nonetheless, assuming, as we must at the moment, a difference of 15 years in prison and a half-million dollars in fines between the sentence meted out after trial and the maximum sentence called for under the putatively offered plea agreement,² both the prejudice to Mickens, and the inference of ineffective assistance of counsel on the part Mr. Simels in not communicating that offer to Mickens, may be material. See Pham v. United States, 317 F.3d 178, 182 (2d Cir.2003) (stating that a "defendant suffers a Sixth Amendment injury where his attorney fails to convey a plea offer," citing Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

Mickens seeks a fresh review of his conviction and sentence by means of a Rule 60 motion. The parties finished exchanging memoranda of law on June 4, 2004. This decision follows.

Standards of Review

The parties substantively agree that Mickens' challenges to his conviction and sentence must be re-examined in light of the Memorandum, which suggests that Mickens received ineffective assistance from Mr. Simels, who may have failed in his duty to relay a plea offer to his client. The parties, however, disagree as to the proper procedure by which to proceed.

Mickens first proposes that the Court vacate his conviction and sentence under Federal Rule of Civil Procedure 60(b)(2), which states that "upon such terms as are just," a court may relieve a party from a judgment for the reason of "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial" (which is within 10 days of the entry of judgment, according to Rule 59), or Rule 60(b)(6), which provides such a remedy for "any other reasons justifying relief" from the judgment. Rule 60 provides that such motions "shall be made within a reasonable time" of "not more than one year after" the entry of judgment.

Alternatively, Mickens proposes, under Local Civil Rule 6.3, that the Court re-consider its 1999 Orders denying his earlier petitions for Section 2255 relief and his application for a certificate of appealability of those decisions. Rule 6.3 provides that such a motion be filed within 10 days of the entry of an order or judgment.

The Government proposes yet a third way to proceed, via 28 U.S.C. § 2244. This statute permits successive habeas corpus applications presenting a claim not made in a prior application where

the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2244(b)(2)(B)(i)-(ii).

Discussion

None of the three avenues pointed out by the parties offers, in the Court's view, a wholly appropriate route to reach Mickens' claim. Each suggestion has its drawbacks.

Rule 60 motions are to be made not more than one year after a judgment, and Local Rule 6.3 motions are to be made within 10 days after a judgment. Mickens was convicted and sentenced 15 years ago, and his Section 2255 petitions were denied 5 years ago. Section 2244 pertains to the appeal of State court convictions, and also to the discovery of facts that would show that the petitioner is not guilty of the underlying offense. Mickens was convicted in federal court, and there is no evidence that he is not guilty of the underlying offenses.

Still, as the gravamen of Mickens' petitions is that he was denied procedural due process in 1988 and 1989, and as documentary evidence has materialized demonstrating that this may well be the case, it might be said to be unreasonable to allow the lack of an ideal procedural remedy for Mickens' situation to prevent his claim from being addressed in 2004. Absolute rules serve certain useful purposes. But this particular instance may call for an exception to such rules, lest Mickens be caught in a procedural Catch-22 that prevents his claim from being heard, despite the discovery of new evidence, the existence of which was previously denied by the Government. Therefore, the Court will proceed under Rule 60, beginning with an evidentiary hearing, at which sworn testimony may be taken from AUSA Heller, Mr. Simels and Mickens, to determine what transpired.

A. Rule 60

The Government objects to taking this path. The Government argues that (i) the circumstances of this case are neither extraordinary nor present extreme hardship, (ii) Mickens' motion does not attack the integrity of his Section 2255 proceeding, (iii) Mickens'"own failings...