Ray v. United States

442 F.Supp.3d 545

Steven RAY, Plaintiff,

v.UNITED STATES of America, Defendant.

15-CR-6004L

18-CV-6144L

15-CR-6115L

18-CV-6145L

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

Filed March 4, 2020

Signed March 3, 2020

Craig R. Gestring, U.S. Attorney's Office, Rochester, NY, for Plaintiff.

William C. Dedes, Rochester, NY, for Defendant.

DECISION & ORDER

DAVID G. LARIMER, United States District Judge

BACKGROUND

In February 2015, defendant Steven Ray ("Ray") pleaded guilty pursuant to a Plea Agreement¹ to a two-count Information (15-CR-6004). Ray pleaded to mail fraud (Count 1) and forgery of United States Treasury checks (Count 2). The factual basis for the plea was set forth at Paragraph 5 of the Plea Agreement and during the plea colloquy before the Court, the prosecutor summarized in detail the facts supporting the plea.²

In sum, Ray fraudulently endorsed, passed and executed over 120 United States Treasury checks including Social Security payments, and federal tax refunds, and therefore obtained approximately $405,000. During the plea colloquy before United States Magistrate Judge Marian W. Payson, Ray agreed on the record that he had engaged in all of the conduct outlined by the prosecutor and as contained in the Plea Agreement (Exhibit 5, pp. 32-36). The matter was scheduled for sentencing on the two counts.

Sentencing was delayed, however, because Ray engaged in serious criminal conduct relating to sentencing. Ray falsified information submitted to the Court in sentencing materials and intimidated and threatened a witness. That conduct resulted in a new Indictment, 15-CR-6115. Ray was charged in Count 1 with intimidating a witness in violation of 18 U.S.C. § 1512(b)(1) and in Count 2 with obstructing an official proceeding pursuant to 18 U.S.C. § 1512(c)(2).

Because of serious health issues, Ray's retained counsel, William Dedes, was granted leave to withdraw from the case and the Court appointed new counsel, Jason Abbott, under the Criminal Justice Act on September 1, 2015.

Some months later, on December 17, 2015, Ray pleaded guilty to Count 2 of the new Indictment before this Court. Ray admitted contacting and intimidating a disabled individual to prepare and sign a false affidavit concerning Ray which was submitted to influence sentencing on the forgery charges. During the plea colloquy³ on the new charge, Ray admitted that he knew that the affidavit was false. Specifically, Ray acknowledged he contacted a disabled person and had him sign an affidavit that Ray knew contained false statements. Exhibit 6, p. 12.

After the plea to the new charge, a Presentence Report was prepared and the parties filed sentencing memoranda. Grouping the three charges contained in both cases, the Probation Office determined that the United States Sentencing Guidelines for the three counts was 57-71 months.

Sentencing occurred on September 1, 2016. After a lengthy sentencing hearing,⁴ the Court imposed an above-Guideline sentence of 84 months concurrent on each of the two counts in 15-CR-6004 and the single count in 15-CR-6115. The Court also imposed restitution to the Government for the forgery of $309,000.

Ray appealed the judgment focusing primarily on the Court's sentencing. By Summary Order, the United States Court of Appeals for the Second Circuit affirmed the judgment, specifically finding that the 84-month sentence was substantively reasonable. 713 Fed. App'x 20 (2017).⁵ The Second Circuit found that the above-Guideline sentence was not an abuse of discretion, noting that Ray was a key figure in "serious criminal activity" involving more than 100 fraudulent checks which totaled "more than a quarter million dollars." The Circuit noted that Ray repeatedly attempted to cover up his criminal activity by lying to investigators and that he submitted a forged document to the Court, and intimidated a disabled person in an effort to mask his deception. (Exhibit 4, p. 2).

2255 MOTION

As set forth above, Ray pleaded guilty on two separate dates to three serious crimes. He pleaded guilty to forgery and mail fraud pursuant to a detailed Plea Agreement before United States Magistrate Judge Marian W. Payson on February 27, 2015. He was represented then by attorney William Dedes. The plea proceeding (Exhibit 5) was exhaustive, covering 39 pages of transcript. Under oath, Ray admitted all the conduct outlined by the prosecutor.

Ray's criminal activities continued as he attempted to effect sentencing. As referenced above, in attempting to improperly influence sentencing, Ray intimidated a person and obtained a false and fraudulent affidavit which was submitted to the Court. With new counsel, Ray also pleaded to that charge approximately three months after new counsel (Abbott) had been appointed. The Plea Agreement was thoroughly discussed at this plea proceeding and Ray specifically acknowledged that he was "satisfied with the help and legal advice given to him by attorney Abbott." (Exhibit 6, p. 20).

Ray said precisely the same thing when he had pleaded previously before Judge Payson in February 2015. Judge Payson specifically asked Ray during the plea colloquy if he was "satisfied with the representation and advice that Mr. Dedes had given you." Ray replied that he was satisfied. (Exhibit 5, p. 14).

The plea proceedings before both Magistrate Judge Payson and this Court were lengthy and thorough, and Ray repeatedly advised both judges that he was guilty of the charged conduct and that he understood the potential consequences and that he agreed to waive his right to trial. Even a cursory review of the transcripts of the plea proceedings demonstrate that all aspects of Rule 11 were satisfied.

The Second Circuit's decision affirming the conviction rejected all of Ray's substantive and procedural claims. The Circuit found that Ray's claim that he should have received an acceptance-of-responsibility reduction "easily fails" and that his challenge to the above-Guideline sentence of 84 months was without merit. Ray's other arguments also were rejected. 713 Fed. App'x 20 ; Exhibit 4, p. 2.

All of his claims having been rejected on appeal, Ray has now filed this pro se motion under Section 2255, claiming that both of his lawyers, Dedes and Abbott, provided ineffective assistance of counsel. After reviewing the entire record and having been involved in the plea to the second Indictment and the sentencing, I find that there is no basis whatsoever to find ineffective assistance of counsel. Based on the strong, uncontested evidence against Ray, both lawyers fully represented Ray's interests in the proceedings.

In launching these claims against his lawyers, as the Government points out in its Answer, Ray faces a heavy burden of proof under well-established legal authority. In the leading case on the matter, Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established a two-part test for evaluating a claim that defense counsel provided ineffective assistance. There is both a "performance" and "prejudice" test which the defendant must establish. The defendant must demonstrate that his counsel's performance was deficient when measured objectively and that the deficient performance somehow resulted in prejudice. Defendant must establish both matters; if he fails to meet one test, then relief must be denied. In this case it is clear that Ray has failed to meet either prong of the required two-part test.

The burden is especially difficult in the context of a guilty plea. Defendant must establish that counsel's performance somehow undermined the voluntarily and intelligent nature of the defendant's decision to plead guilty. Ray must also establish that, but for the errors, the result of the proceeding would have been different. That is, he would not have pleaded guilty. It is clear beyond peradventure that Ray can meet neither of the two-pronged tests that are required here.

Ray makes general conclusory claims, e.g. that the plea was not voluntary, coupled with some specific claims concerning statements, are acts of his attorneys. A careful review of the claims on the record and Ray's statements during the plea proceedings completely refutes the claims made here and compels the conclusion that no relief is warranted.

Ray filed his original motion to vacate (Dkt. #96) on February 12, 2018. He later filed two amended motions (Dkt. #110 on May 3, 2018 and Dkt. #117 on June 8, 2018). The Government filed its Answer (Dkt. #175) on September 3, 2019, covering all of the several filings of Ray.

Ray has been a prolific filer of documents and has submitted numerous, what he describes as "supplements" to his 2255 motion, see, e.g. , Dkt. ##164, 165, 166, 169, 170, 177, 187, as well as least ten other peripheral motions seeking relief unrelated to the...