McMahon, J.
DECISION AND ORDER DENYING MOTION TO VACATE PURSUANT TO TITLE 28 U.S.C. § 2255 :
Paul Azzara has filed the instant Section 2255 motion, raising numerous challenges to his conviction and sentence - a number of which were previously raised by Azzara in this Court and on direct appeal: First, Azzara claims that he received ineffective assistance of counsel in violation of the Sixth Amendment. In support, Azzara argues that counsel failed to research and object to the appropriate definition of "wrongfulness." He also claims that counsel grossly miscalculated his potential sentencing exposure, and that, had the calculation been accurate, he would have accepted the Government's plea offer. Azzara also argues that counsel was constitutionally ineffective for failing to investigate Azzara's known mental health disorders and not ensuring that Azzara was properly medicated. He next claims that counsel failed to object to a constructive amendment of the indictment caused by the Court's jury instructions regarding the Hobbs Act charge. Finally, he claims that any arguments that were not raised on appeal constitute ineffective assistance of appellate counsel.
Second, Azzara claims that he was denied counsel for purposes of his post-trial motions, his sentencing and his re-sentencing. Third, Azzara argues that his sentence was unlawfully imposed. Fourth, Azzara asserts that this Court erroneously instructed the jury with respect to the requisite Hobbs Act interstate commerce nexus and the "wrongfulness" elements. Fifth and finally, Azzara claims that the cumulative errors constitute violations of his Sixth Amendment right to counsel and his Fifth Amendment right to due process.
Ancillary Motions to the Petition
As a threshold matter, the Court must resolve two ancillary motions defendant has filed while his petition has been pending: (1) a motion asking the Court to recues itself and (2) an order seeking the appointment of counsel.
(1) Recusal Motion
This is not the first time Azzara has asked the Court to recuse itself. Indeed, the Court denied Azzara's last recusal motion that was predicated on the same grounds advanced in the present motion—that the Court assisted the U.S. Attorney in an investigation of Azzara based on a letter he sent to the Court. (See Azzara Recusal Decision dated August 2, 2005). Addressed to "Dear Colleen," the letter reads, in part:
You killed my mother today. You put your personal opinion in the judgment in a criminal case that I need "extensive mental health therapy and the likelihood of resistance to it" so they send me to bum fuck Ayers Mass, too far for my sick mother to visit, and of course that was your personal opinion as it is not supported by any psychiatric evaluation. Then you lie and send me to prison under the false charge of "interference with commerce by threats of violence" when we all know that it should read "interference with commerce by threats of economic harm." But since your vindictive self wanted it that way, I also can't attend the funeral on Friday- so I'll never see my Mom again. . . . Because your maker knows I didn't mail any letter, knows my mom died because of this; knows that two years imprisonment and 3 felony convictions was more than adequate, and knows that you are a vindictive piece of shit that deserves to burn in hell. . . . I hope every holiday season, your maker strikes you with some misfortune. If he does around the holiday season,
think of me crying because my favorite person in the world was murdered by you, and think of my mom who is probably calling those shots from above, sending you the misfortune. No threats.
(Azzara letter dated 1/31/05).
In denying the 2005 motion, the Court pointed out that:
The Court's staff routinely forwards any communication that wishes me ill, or that contains the word "threat," to the Marshal's Service for professional assessment. We make no such assessment ourselves, although the fact that defendant thought to write "no threat" at the end of the letter suggests that even he believed the letter could be so interpreted. Our practice reflects prudence, not bias. Thus, there is no basis for recusal.
(Azzara Recusal Decision, supra at 2). Azzara's present recusal motion adds nothing to the argument the Court rejected in 2005.
Accordingly, Azzara's motion for the Court to recuse itself from adjudicating his petition is denied.
(2) Request for Appointment of Counsel
Azzara asks the Court to assign an attorney to represent him in connection with the instant petition. That request is denied.
Where an evidentiary hearing is not warranted, appointment of counsel in a habeas corpus proceeding is discretionary. See Wright v. West, 505 U.S. 277, 293 (1992) Rule 8(c) of the Rules Governing Section 2255 Cases in the United States District Courts (Rule 8(c)"). Indeed, "there is no requirement that an indigent litigant be appointed pro bono counsel in civil matters," see Burgos, 14 F.3d at 789; 28 U.S.C. § 1915(e) and, of course, a 2255 motion is a civil proceeding. Indeed, appointment of pro bono counsel must be done judiciously in order to preserve the "precious commodity" of volunteer lawyers for those litigants who truly need a lawyer's assistance. Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172-73 (2d Cir. 1989).
The standard outlined by the Second Circuit in Hodge governs a review of Petitioner's Application for the Court to Request Counsel. Under the Hodge standard, a court must first determine "whether the indigent's position seems likely to be of substance." Hodge, 802 F.2d at 61; Cooper, 877 F.2d at 172. The "merit" factor commands the most attention. Id. If an application meets this threshold requirement, the district court must further consider the plaintiff's ability and efforts to obtain counsel, as well as "his [or her] ability to handle the case without assistance in [] light of the required factual investigation, the complexity of the legal issues, and the need for expertly conducted cross-examination to test veracity." Cooper, 877 F.2d at 172; Hodge, 802 F.2d at 61-62; Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997)
The Court has reviewed Azzara's petition and has determined that his claims are without merit. Thus, Azzara fails to meet even the threshold requirement under the Hodge test. With respect to second Hodge factor, Azzara has made no showing that he attempted to obtain Counsel in connection with the instant petition. Regarding the third and final Hodge factor (an inability to handle the case without assistance), Azzara's numerous written submissions to the Court over the last decade demonstrate his competence to present and argue his legal positions.
Plaintiff's application for the Court to appoint counsel is denied.
Background
On November 24, 2003, this Court entered a judgment of conviction following a jury verdict finding Azzara guilty of one count of mailing a threatening communication in violation of 18 U.S.C. § 876(d) and two counts of attempted extortion, in violation of the Hobbs Act, 18 U.S.C. § 1951. See United States v. Azzara, No. 04-0809-cr, 2005 WL 1331273, at *1 (2d Cir. June 6, 2005) ("Azzara I"). The Court sentenced Azzara to 168 months' imprisonment to be followed by three years of supervised release, and a $300 special assessment. See id. On June 6, 2005, the Second Circuit affirmed Azzara's conviction but remanded for resentencing in light of the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). See id. at *3. Azzara was resentenced on December 21, 2005 to the same sentence. The Second Circuit affirmed that sentence on September 24, 2008. See United States v. Azzara, No. 06-0609-cr, 2008 WL 4376232 (2d Cir. Sept. 24, 2008) ("Azzara II"). The Supreme Court denied certiorari on October 13, 2009, and Azzara filed this 2255 motion on October 5, 2010.
The Trial
The Government's evidence established that Azzara had carried out a concerted plan, initiated around May 2001, to threaten and harass his ex-girlfriend, Cynthia Hubbard, and her family, in an effort to obtain a large sum of money. While they were dating in the early 1990s, Azzara and Ms. Hubbard made sexually explicit videotapes together. After Azzara and Ms. Hubbard's relationship ended, Azzara engaged in a practice of stalking, harassing and threatening Ms. Hubbard and her then boyfriend, Brad Hubbard. Azzara was eventually arrested and charged in state court with burglary and assault, and as a condition of his probation, he was ordered to destroy the tapes of Ms. Hubbard. Azzara did not do so, and, in May 2001, he threatened to display the tapes on a web site. Azzara sent faxes to co-workers of Ms. Hubbard's husband informing them of the existence of the web site.
In response, Ms. Hubbard commenced a lawsuit in federal court in Florida, seeking to enjoin Azzara from broadcasting the videotapes. A temporary injunction, and later a permanent injunction, was entered barring Azzara from broadcasting the videos. Nevertheless, on May 20, 2002, Azzara sent a letter to Ms. Hubbard's stepfather, Carl Greco, stating that he was planning on "possibly ruining your Daughter's career next month" by bringing the videotapes to the corporate office of Ms. Hubbard's employer, Estee Lauder, and offering them for sale for $3 million. Azzara also wrote that he planned first to offer the tapes to Estee Lauder, and to make Estee Lauder aware that Azzara intended to set up an Internet web site where the public could view the videos for a fee, if Estee Lauder did not purchase the tapes. Azzara wrote that he intended to broadcast one video per month, and estimated that the videos would be viewed by at least 10,000 people each month. He concluded by writing, "Thank you for your time as I thought you were owed . . . an explanation as to why [your daughter] and [son-in-law] will possibly no longer be employed in about a month or 2."
On June 23, 2003, after deliberating for less than one day, the jury returned a guilty verdict on three of the four counts of the Indictment. After the verdict, on or about June 30, 2003, Azzara filed post-trial motions seeking either a judgment of acquittal or a new trial. In the motions, Azzara challenged whether there was sufficient evidence to support several conclusions reached by the jury: that he knowingly caused the May 20, 2002 letter to be mailed; that he sought to extort, or sought any amount of money from, Carl Greco and Cindy Hubbard; that there was a sufficient nexus to interstate commerce; and the existence of venue. Azzara claimed that he had received ineffective assistance of trial counsel (Kerry A. Lawrence, Esq.), based in part on Azzara's assertion that counsel did not properly advise him of his potential sentencing guidelines exposure upon conviction.
Azzara was acquitted on the charge that he attempted to extort money from Ms. Hubbard's employer, Estee Lauder, in violation of 18 U.S.C. § 1951.
The Court denied Azzara's motions in a written opinion dated November 19, 2003. (Ex. C). The Court found that there was sufficient evidence that Azzara mailed or caused the May 20, 2002 letter to Carl Greco to be mailed from the Southern District of New York. (Ex. C, at 4). The Court stated that "There was overwhelming evidence to support the jury's conclusions that Azzara intended to extort money from Cindy Hubbard and Carl Greco." (Id.). The Court also rejected Azzara's argument that there was insufficient evidence regarding interstate commerce. (Id. at 5). With respect to Azzara's ineffective assistance of counsel claim, the Court noted that trial counsel "tried a brilliant case," id. at 9 and that, "Given the weight of the evidence against the defendant, the outcome would not have differed," had counsel pursued Azzara's preferred strategy, id. at 10. Moreover, the Court pointed to a June 5, 2003 letter from counsel that belied Azzara's claim that he had been misadvised regarding his potential sentencing exposure. (Id.). In that letter, counsel recommended that Azzara reconsider the Government's plea offer because, "As you know, the Government will take the position at sentencing that if you are convicted of the threat count and one or more extortion counts that you face a significantly longer jail sentence than 24-30 months." (Id.). The Court also noted that Azzara could not establish prejudice on this issue because Azzara had maintained his innocence throughout the trial and the Court would find incredible any after-the-fact claim that Azzara would have accepted a plea offer given Azzara's consistent behavior prior to and during trial. (Id.).
The letter is attached to the affirmation of Kerry Lawrence, Esq. (Ex. D to the Government's Memorandum of Law in Opposition to Defendant's Motion).
Post-trial, Azzara also sought to relieve his trial counsel, and on July 29, 2003 replacement counsel (Lawrence Sheehan, Esq.) was appointed. Azzara thereafter sought to fire replacement counsel and be permitted to represent himself. On October 22, 2003, the Court conducted a Faretta hearing and concluded that Azzara "made a knowing and informed decision to represent himself and that he is capable of doing so." (Docket, October 22, 2003 entry). Accordingly, Azzara's motion was granted. The Court also appointed standby counsel (Patrick Burke, Esq.). (Id.). Azzara subsequently requested a pre-sentencing evidentiary hearing, in part to assess his psychological condition. The Court rejected Azzara's request noting that, "The two psychiatric reports and the defendant's medical file from jail will provide sufficient basis for the Court to make a determination regarding the defendant's mental health." (Docket entry 115, November 12, 2003).
In preparation for sentencing, Azzara filed his objections related to the Presentence Investigation Report, as well as a sentencing memorandum with the Court. Nevertheless, on the day that sentencing was scheduled to occur, Azzara asserted that the Court could not go ahead with his sentencing because Azzara had filed a lawsuit against the Probation Office. When the Court stated that sentencing would go forward, Azzara refused to participate, demanded to leave, and told the Court that he did not want standby counsel to represent him. When standby counsel went to consult with Azzara in the cell area during the proceedings, Azzara told him to leave. (November 24, 2003 Sentencing Transcript (Ex. E), at 6). After ensuring that Azzara was able to hear the proceedings from the holding cell, the Court proceeded with sentencing. (Id. at 5-6, 10).
The Court sentenced Azzara to a sentence within the sentencing guidelines range of 168 months' imprisonment, followed by three years of supervised release, and imposed a mandatory special assessment of $300. In sentencing Azzara, the Court considered Azzara's motion for a downward departure based on his mental condition, pursuant to § 5K2.13, and under § 5K2.20, based on aberrant behavior. The Court found that Azzara did not suffer from a significantly reduced mental capacity, and that he had voluntarily used drugs and alcohol, which disqualified him from the departure. (Id. at 32-33). The Court also rejected Azzara's contention that he should receive a downward departure for "aberrant" behavior, both because Azzara had been engaging in similar behavior for a decade, and had too many criminal history points (more than one) to qualify for the departure. (Id. at 34). The Court determined that a two-point obstruction of justice enhancement applied based on Azzara's conduct before and during trial. (Id. at 21-25).
Direct Appeal
Azzara appealed his conviction to the Second Circuit. He was represented by Devlin McLaughlin, Esq. Azzara challenged his convictions and sentence on numerous grounds. He claimed that: (1) the Guidelines sentencing procedure was unconstitutional; (2) there was insufficient evidence of Azzara's specific intent; (3) the Government presented an improper interstate commerce theory; (4) the jury instructions on the "wrongfulness" of Azzara's threats improperly took the issue of wrongfulness from the jury; (5) the Court improperly held Azzara responsible for demanding $3 million in connection with his sentencing; (6) the Court failed to consider U.S.S.G. § 2X1.1 properly in its sentencing determination; (7) Postal Inspectors conducted an unconstitutional search of Azzara's home; and (8) the Court improperly admitted evidence of Azzara's past threats, harassment and abuse of Mr. and Mrs. Hubbard. (Ex. F, at i, 32). He submitted a separate pro se brief arguing: (9) there was insufficient evidence to prove that Azzara knowingly caused the letter dated March 20, 2002 to be mailed; (10) Azzara was improperly removed from his sentencing hearing; (11) Azzara was unlawfully precluded from showing videotapes to the jury; (12) certain jurors were improperly permitted to serve on the jury; (13) the Court constructively amended the indictment through its jury instructions regarding the necessary elements of a Hobbs Act violation; (14) Azzara was denied his right to self-representation; (15) Azzara was the victim of prosecutorial misconduct; (16) the trial court improperly refused to recuse herself; (17) the Court improperly instructed the jury on venue and the definition of "property"; and (18) the jury was improperly rushed in its deliberations. (Ex. G, at 1-2, 13-14).
The Second Circuit rejected Azzara's claims but remanded for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). Azzara I, 2005 WL 1331273. Azzara, appearing pro se with appointed standby counsel (Patrick Burke, Esq.), was resentenced at a hearing on December 21, 2005, and the Court again sentenced Azzara to 168 months' imprisonment, followed by three years of supervised release, and a special assessment of $300. The Court of Appeals subsequently affirmed Azzara's sentence.
In addition to challenging his sentence, on appeal from the resentencing, Azzara raised the following issues: (1) Azzara was denied counsel of his choosing at resentencing; (2) the indictment was constructively amended by evidence and jury instructions regarding "force, violence or fear of personal injury," whereas the indictment only charged non-violent conduct; (3) there was insufficient evidence of an interstate nexus; and (4) Azzara received ineffective assistance of counsel based on (a) an alleged conflict of interest and (b) erroneous sentencing advice. (Ex. H, at i-ii).
Azzara's Present 2255 Claims
On October 5, 2010, Azzara filed the instant Section 2255 motion, raising numerous challenges to his conviction and sentence - a number of which were previously raised by Azzara in this Court and on direct appeal: First, Azzara claims that he received ineffective assistance of counsel in violation of the Sixth Amendment. In support, Azzara argues that counsel failed to research and object to the appropriate definition of "wrongfulness." He also claims that counsel grossly miscalculated his potential sentencing exposure, and that, had the calculation been accurate, he would have accepted the Government's plea offer. Azzara also argues that counsel was constitutionally ineffective for failing to investigate Azzara's known mental health disorders and not ensuring that Azzara was properly medicated. He next claims that counsel failed to object to a constructive amendment of the indictment caused by the Court's jury instructions regarding the Hobbs Act charge. Finally, he claims that any arguments that were not raised on appeal constitute ineffective assistance of appellate counsel.
Second, Azzara claims that he was denied counsel for purposes of his post-trial motions, his sentencing and his re-sentencing. Third, Azzara argues that his sentence was unlawfully imposed. Fourth, Azzara asserts that this Court erroneously instructed the jury with respect to the requisite Hobbs Act interstate commerce nexus and the "wrongfulness" elements. Fifth and finally, Azzara claims that the cumulative errors constitute violations of his Sixth Amendment right to counsel and his Fifth Amendment right to due process.
Azzara's Ineffective Assistance Claims
Most of Azzara'a arguments are based on claims he pursued on direct appeal, repackaged here as ineffective assistance of counsel claims. Since those claims have already been rejected several times by this Court, and by the Second Circuit as well, they are procedurally barred. See United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001) (quoting Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992)); United States v. Pitcher, 559 F.3d 120, 123 (2d Cir. 2009).
Other claims presented here for the first time -- such as Azzara's claim that trial counsel provided ineffective assistance of counsel by failing to investigate his mental health disorders and use of psychiatric medications -- could have been brought on direct appeal. "In order to raise a claim that could have been raised on direct appeal, a § 2255 petitioner must show cause for failing to raise the claim at the appropriate time and prejudice from the alleged error." Marone v. United States, 10 F.3d 65, 67 (2d Cir. 1993). Thus, absent a showing of cause and prejudice, those claims are too procedurally barred. Yick Man Mui v. United States, 614 F.3d 50, 54 (2d Cir. 2010) (citations omitted).
In any event, the Court has considered each of Azzara's claims and finds all of his claims
Ineffective assistance of counsel claims are evaluated as follows:
To prevail on a claim of ineffective assistance of counsel, a defendant must (1) overcome a "strong presumption" that his attorney's conduct was reasonable and show that the representation "fell below an objective standard of reasonableness" under "prevailing professional norms"; and (2) "affirmatively prove prejudice," that is, show "a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different."
To satisfy the first prong of Strickland, a defendant must show that his "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." "The benchmark for judging [a] 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."
Regis v. United States, 665 F. Supp. 2d 370, 371 (S.D.N.Y. 2009) (McMahon, J.) (citations omitted) (quoting
Strickland v. Washington, 466 U.S. 668, 687-89, 693-94 (1984);
United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987)).
The Second Circuit has emphasized that, "In assessing the attorney's performance, a reviewing court must judge his conduct on the basis of the facts of the particular case, 'viewed as of the time of counsel's conduct,' and may not use hindsight to second-guess his strategy choices." Thus, a defendant cannot prevail on a claim of ineffective assistance merely because he believes that his counsel's strategy was inadequate.
Albanese v. United States, 415 F. Supp. 2d 244, 249 (S.D.N.Y. 2005) (McMahon, J.) (citations omitted) (quoting
Strickland v. Washington, 466 U.S. at 690;
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)).
Even if an attorney's performance was objectively unreasonable, the defendant must also prove prejudice. The defendant "must show 'that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" The reviewing court must assess "whether, absent counsel's deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different."
Regis v. United States, 665 F. Supp. 2d at 371 (citations omitted) (quoting
Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (quoting
Strickland, 466 U.S. at 687).
Azzara argues first that he received ineffective assistance of counsel because trial counsel did not "research controlling law applicable and essential" to the "wrongful" element of the Hobbs Act charges, because "the government was required to prove, not just that Azzara's alleged conduct was wrongful as a matter of law, but that Azzara 'knew' that his alleged conduct was wrongful." (Ex. A, at 2; Ex.B, at 3-5). Azzara's claims regarding the "wrongfulness" element of the Hobbs Act charges were raised and rejected in Azzara's Motion for Acquittal or New Trial, see Ex. C, at 5-6, and his first appeal, Ex. F, at 13-20 (arguing that there was insufficient evidence regarding Azzara's specific intent to extort); id. at 32-36 (objecting to the jury instructions regarding "wrongfulness" as impermissibly taking the issue from the jury). In affirming the conviction in relevant part, the Court of Appeals specifically noted that the jury instructions "permissibly define[d] 'wrongfulness,'" Azzara I, 2005 WL 1331273, at *2, and rejected Azzara's claims regarding the sufficiency of the evidence, id. at *1. With no legal or factual error committed, Azzara can point to nothing that counsel should have done differently. Regardless, any error could not be prejudicial. These claims are therefore both barred and meritless.
Specifically, Azzara's argues that his trial counsel was ineffective for failing to argue that his actions were not "wrongful," because any protective order was invalid for violating his copyright in the videos. (Ex.B, at 4). This argument is meritless. Even assuming that Azzara had exclusive ownership of a copyright, and that ownership of a copyright prevents any court-ordered restrictions on dissemination (a dubious presumption), the order existed. Azzara was free to attack that order in the appropriate forum; he was not free, however, to disregard it. See June 10. 2003 Decision on Pre-Trial Evidentiary Motions and Sundry Pro Se Motions (Ex. J), at 4 ("The defendant was ordered by the Florida courts to destroy the tapes. The defendant was not privileged to ignore that order. If he thought it was entered in error or was (as he now claims) unlawful, he could have appealed it and seen it overturned by a higher court. But as long as the order was operative, he was required to abide by it."). Failing to make a meritless argument cannot constitute ineffective assistance of counsel. See United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999). Accordingly, even if this argument were not waived, it cannot form the basis of a valid ineffective assistance claim.
Azzara next argues that he received ineffective assistance based on counsel's "gross miscalculation" and "affirmative misrepresentations" as to Azzara's sentencing exposure if he were to be convicted at trial. (Govt Memo Ex. A, at 3; Ex. B, at 6-7). He asserts that he would have accepted the Government's plea offer had he been aware of his actual sentencing exposure. Azzara raised this precise argument in his Motion for Acquittal and in his second appeal (Id. Ex. C, at 10; Ex. H, at 79-93). In rejecting this argument, this Court highlighted a letter from counsel to Azzara recommending that Azzara plead and noting that he faced a significantly longer sentence than the Government had offered in exchange for a plea. (Id. Ex. C, at 10). In addition, the Court held that Azzara would not be able to establish prejudice on the issue, because Azzara had insisted on his innocence throughout the trial, so "There is no indication . . . that he would ever have pled guilty, regardless of what advice he received regarding his potential guidelines range. Moreover, were Azzara to now assert that he would have taken a plea, [the Court] would find his statement incredible in the face of his consistent behavior prior to and during the trial." (Id.). Accordingly this claim is both procedurally barred and meritless.
While Mr. Lawrence acknowledges that the sentence was longer than what he had initially anticipated, (Ex. D, ¶ 9), it is important to note that Azzara's Guidelines range was ultimately increased based on an obstruction of justice enhancement, supported, in part, by the Court's determination that Azzara had perjured himself at trial. Azzara testified against the advice of Mr. Lawrence. (Id.). Finally, Mr. Lawrence's sentencing-based arguments to the Court related to severance were just that - arguments - not misrepresentations. See September 19, 2003 letter from Mr. Lawrence to Azzara. (Govt Memo Ex. D).
Azzara also argues that his counsel was constitutionally ineffective because counsel failed to object to a constructive amendment of the indictment. Specifically, Azzara claims that the jury instructions provided that the jury could convict "if the government proved beyond a reasonable doubt that Azzara used, or threatened to use, either force, violence, fear of physical injury, or fear of economic harm in an attempt to obtain property," whereas "the 'to wit' clause of the indictment . . . identified only fear of economic harm as the means of committing the offense." (Ex. A, at 4; Ex. B, at 9-11). Azzara raised a variant of this claim in his first appeal and lost. See Azzara I, 2005 WL 1331273, at *2 ("Azzara argues that the District Court constructively amended the indictment when it instructed the jury that it could find that the element of attempting to take property by actual or threatened force, violence, or fear . . . would be satisfied if the government proved beyond a reasonable doubt that Azzara attempted to take a victim's property 'by actual or threatened force, violence or fear of injury or economic harm, regardless of how that was done.' . . . We disagree. The District Court correctly charged the jury as to the elements of the Hobbs Act violations."). Azzara then raised the precise argument in this Court prior to resentencing and in his second appeal. (Ex. H, at 46-56; see id. at 53 (noting that Azzara, prior to resentencing, raised this issue with this Court)). This Court specifically rejected the claim, see Ex. I at 2, and the Second Circuit, in Azzara II, rejected the claim along with all of Azzara's other asserted errors, see 2008 WL 4376232, at *1. Accordingly, the claim has been raised and rejected on appeal and cannot be raised in a Section 2255 motion, whether directly, or in the form of an ineffective assistance of counsel claim.
"To demonstrate constructive amendment, a defendant must show that either the proof at trial or the district judge's instruction 'so altered an essential element of the charge that, upon review, it is uncertain whether the defendant was convicted of conduct that was the subject of the grand jury's indictment.'" United States v. Soerbotten, No. 09-4094-cr, 2010 WL 4251561, at *2 (2d Cir. Oct. 28, 2010) (quoting United States v. Milstein, 401 F.3d 53, 65 (2d Cir. 2005)). Here, the indictment specifically states that Azzara was indicted for "extortion, as that term is defined in Title 18 United States Code, Section 1951(b)(2)," and the jury instruction similarly tracks the statutory language of "extortion." See 18 U.S.C. § 1951(b)(2) ("The term 'extortion' means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right."). Accordingly, counsel cannot be faulted for failing to object on this basis, and the failure to make a meritless argument cannot constitute ineffective assistance of counsel. See United States v. Arena, 180 F.3d at 396.
More generally, Azzara specifically raised ineffective assistance claims both in this Court and on appeal. (Ex. C, at 7-10; Ex. G, at 7-8; Ex. H, at 73-93). In rejecting these claims, this Court noted that Azzara's trial counsel, Kerry Lawrence, "tried a brilliant case."
He made the appropriate pretrial motions and argued forcefully for the dismissal of the Hobbs Act counts based on the most recent precedent in the area. At trial, Mr. Lawrence succeeded in presenting defendant's case in the most favorable legal light possible, notwithstanding the overwhelming evidence of defendant's guilt. . . . The fact that defendant would have made different strategic choices than Mr. Lawrence does not make counsel's decisions unreasonable. . . . Given the
weight of the evidence against the defendant, the outcome would not have differed had counsel adopted Azzara's strategy.
(Ex. C, at 9-10 (footnote and citations omitted)). Accordingly, these claims are not suitable for Section 2255 review, and, in any event, are meritless.
Azzara raises other claims that were or could have been raised on direct appeal. These claims are also not appropriately reviewed on a Section 2255 motion.
First, in addition to his ineffective assistance claims, Azzara also asserts that he was denied counsel post-trial, during his original sentencing on November 24, 2003, and during his resentencing on December 21, 2005. Each of these claims was raised or could have been raised on direct review.
Azzara's first denial of counsel claim is that his counsel "abandoned" him immediately after trial, which resulted in no motions for post-trial relief being submitted by counsel. Although this claim has not been previously asserted, it could have been, as evidenced by the other denial of counsel claims that Azzara did raise on direct appeal. Azzara cannot demonstrate cause for failing to raise this claim or prejudice because it was not raised. See Yick Man Mui v. United States, 614 F.3d at 53-54. In particular, the fact that replacement counsel adopted Azzara's pro se post-trial briefs, undermines any claim of prejudice. See October 1, 2003 Memorandum Order (Govt Memo Ex. K), at 1 ("Mr. Sheehan is serving as the defendant's counsel. . . . After I granted the request of his trial counsel to be relieved, Mr. Azzara, acting pro se, filed a number of timely motions, which Mr. Sheehan subsequently adopted.").
Regardless, Azzara was not denied counsel post-trial. Contrary to Azzara's claim that trial counsel "abandoned" him, his counsel, Mr. Lawrence, was forced to ask to withdraw after Azzara asserted claims of misconduct against Mr. Lawrence. See June 24, 2003 Memorandum Order (Ex. M), at 3 ("Mr. Lawrence is quite correct that he must be relieved as defendant's counsel immediately, and I so relieve him, effective immediately."). In the Court's order relieving Mr. Lawrence, the Court appointed Lawrence Sheehan as replacement counsel. (Id.). Mr. Lawrence transferred the case file to Mr. Sheehan on June 27, 2003, three days after he was relieved. (Govt Memo Ex. D, ¶ 2). Azzara thereafter asked to represent himself, and after a Faretta hearing, the Court granted Azzara's motion to proceed pro se and appointed Patrick Burke as standby counsel. (Docket, October 22, 2003 entry). Accordingly, Azzara was at all times represented by counsel or had access to standby counsel. His claim that he was deprived counsel is without merit.
Notably, Azzara has previously asserted that the failure to remove Mr. Lawrence for another asserted conflict violated his Sixth Amendment right to counsel. (Ex. C, at 7; Ex. H, at 73-78).
Azzara also claims that he was denied counsel at his first sentencing hearing, because he was removed from the courtroom and standby counsel was not present. Azzara raised this claim on appeal, (Govt Memo Ex. G, at 5-7), and it was specifically rejected, see Azzara I, 2005 WL 1331273 at *3 ("We have considered Azzara's remaining pro se arguments, [including the argument] concerning his removal from the courtroom at sentencing . . . and find them to be without merit.").
Azzara next claims that he was denied counsel at the post-remand resentencing. He asserts that he notified the Court that "he was unable to retain counsel but would like the opportunity to do so," and that he "clearly and unequivocally asserted that he did not wish to proceed pro se." (Govt Memo Ex. A, at 6; Ex. B, at 13-14). He recognizes that he was given the option of being represented by standby counsel, but claims that he rejected that offer. (Govt Memo Ex. A, at 6; Ex. B, at 14). Azzara raised this precise claim in his resentencing appeal. (Ex. H, at 29-32). The Second Circuit, in Azzara II, held: "We have considered all of Azzara's arguments and find them to be without merit." 2008 WL 4376232, at *1. Accordingly, this claim cannot be relitigated and is meritless.
The docket is clear, however, that Patrick Burke was present as standby counsel. (Docket, December 21, 2005 entry).
As set forth in this Court's November 28, 2005 Memorandum Order Appointing Counsel for Resentencing, resentencing was postponed from August 3, 2005 to December 15, 2005 to allow defendant time to retain counsel. (Ex. L, at 1). Because no counsel entered an appearance by the November 21, 2005 deadline the Court had set, the Court appointed Patrick Burke to represent Azzara. The Court noted that "[i]f the defendant does not wish to avail himself of the excellent services of Mr. Burke, I will conduct yet another Faretta hearing to ascertain whether the defendant wishes to represent himself." (Id. at 2). Resentencing was eventually postponed until December 21, 2005 to give Azzara even more time to retain counsel. Given these circumstances, Azzara cannot claim that he was constitutionally deprived of counsel. See United States ex rel. Davis v. McMann, 386 F.2d 611, 618-19 (2d Cir. 1967) ("[T]he right to have counsel of one's own choice may be waived by a defendant who fails to retain counsel within a reasonable time when he is financially able to do so. . . . Though a defendant has a right to select his own counsel if he acts expeditiously to do so, he may not use this right to play a 'cat and mouse' game with the court, or by ruse or stratagem fraudulently seek to have the trial judge placed in a position where, in moving along the business of the court, the judge appears to be arbitrarily depriving the defendant of counsel." (citations omitted)); Morris v. Slappy, 461 U.S. 1, 11-12 (1983) ("[B]road discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel.").
Second, Azzara claims that his sentence is not procedurally reasonable because this Court did not correctly apply U.S.S.G §§ 1B1.2(a), 2X1.1, and 2B3.3. Azzara raised this claim in his appeal from his resentencing. (Govt Memo Ex. H, at 8-23). In affirming this Court's sentence, the Court of Appeals stated: "Azzara's sentence is procedurally reasonable because the district court correctly calculated the Guidelines range, considered the § 3553(a) factors, and was aware that the guidelines were not mandatory." Azzara II, 2008 WL 4376232, at *1. Thus this claim is without merit.
Finally, Azzara asserts that this Court erroneously instructed the jury regarding the Hobbs Act interstate commerce nexus and "wrongfulness" elements. With respect to the interstate commerce element, Azzara asserts that the jury instruction and the Government's summation "obviated proof that the alleged extortion would have affected Interstate Commerce." (Govt Memo Ex. A at 7; Ex. B, at 15-16). This claim was raised by counsel on appeal and is therefore barred. (Ex. F, at 28-32). In rejecting the argument, the Second Circuit found no reversible error in the Government's summation because the jury instruction, which this Court instructed controls any statement by the Government, correctly stated the law. Azzara I, 2005 WL 1331273, at *1; see Trial Transcript, June 23, 2003 (Govt Memo Ex. N), at 530 ("The third element that the Government must prove [is] that, if the extortion had been completed, interstate or foreign commerce would have been or potentially would have been affected in some way."). Accordingly, Azzara's claim has no merit.
With respect to the "wrongfulness" element, Azzara argues that this Court's instructions "unconstitutionally removed [the element] from the jury's consideration." (Govt Memo Ex. A, at 8-9; Ex. B, at 16-17). As discussed above (in connection with Azzara's ineffective assistance claim), see supra at 13-13 & fn. 4, this claim was previously raised on appeal and was specifically denied. See Azzara I, 2005 WL 1331273, at *2.
Ineffective Assistance Claims Not Previously Raised
In addition to the ineffectiveness assistance claims that have previously been raised and rejected, Azzara raises two additional ineffectiveness claims and also asserts that the cumulative errors constitute ineffective assistance of counsel. These claims are all meritless.
Investigation of Mental Health and Use of Medication
Azzara claims that trial counsel was constitutionally ineffective for failing to investigate his known mental health disorders and his use of psychiatric mediation. (Govt Memo Ex. A, at 3; Ex. B, at 7-9). He also asserts that counsel made misrepresentations to the Court regarding the utilization of funds granted for these purposes and that the Court relied on those misrepresentations. (Govt Memo Ex. B, at 8).
Contrary to Azzara's claims, Azzara's mental health and medication were very much an issue prior to and after trial. As an initial matter, because Azzara repeatedly equivocated as to whether he wanted to proceed pro se, this Court held multiple Faretta hearings and determined, inter alia, that Azzara was competent to represent himself. (Govt Memo Ex. C, at 7). More pointedly, although Azzara had previously been evaluated by Correction Mental Health Service, on April 4, 2003, two months before trial, the Court, at Azzara's insistence, ordered a reevaluation. (Govt Memo Ex. O). In that order, the Court noted that it was "concerned that defendant may not be in a position to represent himself in his present, unmedicated condition," and ordered "that Mr. Azzara receive an immediate and thorough psychiatric evaluation, so that his condition can be assessed and he can start receiving any medications that are medically indicated. . . . I hope this will not have an impact on the start date for the trial, but if it does, it does. Mr. Azzara's request for psychiatric attention cannot go unanswered." (Id. at 1-2).
Azzara thereafter sought to withdraw his motion requesting medical attention, claiming that "he no longer needs the Court's intervention" and that "he has been back on Prozac for over a week." (Govt Memo Ex. P). The Court, however, did not withdraw the order, noting that it "requires that defendant be evaluated, [to provide] expert advice about whether defendant was able to make a knowing and informed decision about self-representation at a time when he was not taking Prozac." (Govt Memo Ex. Q). On April 10, 2003, Dr. Santhi Ratakonda, the Medical Director (Psychiatry), from Correctional Health Services, responding to the Court's order, submitted a psychiatric evaluation. (Ex. R). Dr. Ratakonda first noted that on March 26, 2003, Azzara had been reevaluated at his own request and that he had been started on medication for symptoms of anxiety / depression. Azzara was evaluated again on April 8, 2003 per the Court's instruction, and Dr. Ratakonda noted that Azzara "was cooperative, in good behavioral control and showed no evidence of any psychosis or cognitive impairments. . . . [Azzara] is being continued on [his medication] to treat his symptoms of depression and anxiety. Correctional Health Services will continue to follow him during the remainder of his stay in this institution." (Id.).
Given this constant attention that was paid to Azzara's mental health and medication, and the Correction Health Services psychiatrist's evaluation and commitment to monitor him throughout his stay, it cannot be said that counsel "fail[ed] to ensure that Azzara was properly medicated" or otherwise failed to investigate Azzara's mental health disorders. (Govt Memo Ex. A, at 3). Accordingly, Azzara's claim of ineffective assistance of counsel on this basis must fail.
With respect to Azzara's claims regarding court-authorized funds for an expert witness, as indicated in Mr. Lawrence's affirmation and the June 5, 2003 letter to Azzara attached thereto, Mr. Lawrence made a considered decision that a psychiatric defense was not a viable strategy. (Govt Memo Ex. D, ¶¶ 5-7; June 5, 2003 letter from Kerry Lawrence, Esq. to Paul Azzara). Accordingly, Azzara can establish at best a disagreement over trial strategy. As such, Azzara's claim of ineffective assistance of counsel is without merit. Albanese v. United States, 415 F. Supp. 2d at 249 ("[A] defendant cannot prevail on a claim of ineffective assistance merely because he believes that his counsel's strategy was inadequate.").
Moreover, Mr. Lawrence did not make any misrepresentations to the Court regarding the use or potential use of such funds. (Govt Memo Ex. D, ¶ 6). Any adjournments were simply to allow Mr. Lawrence to explore the issue, which he clearly did. --------
Ineffective Assistance on Appeal
Azzara also claims that he received ineffective assistance of counsel on appeal. In support, Azzara offers no specific basis for his claim, and, in fact, concedes that it is entirely hypothetical: "To the extent that any issue could be deemed waived by the failure to raise it on direct appeal . . . that failure was due to ineffective assistance of appellate counsel." (Govt Memo Ex. A, at 10; Ex. B, at 18). Such unspecified allegations cannot form the basis for an ineffective assistance claim. See Banks v. United States, No. 5:08cvl62, 2010 WL 3854426, at *10 (N.D.W.Va. Sept. 29, 2010. In any event, Azzara was represented by appellate counsel who prepared thorough briefing and secured a partial remand for purposes of resentencing. Absent concrete claims to the contrary, Azzara cannot overcome the "'strong presumption' that his attorney's conduct was reasonable." Regis, 665 F. Supp. 2d at 371. Accordingly, Azzara's claim is without merit.
Cumulative Error
Azzara's final ineffective assistance claim is that the specified errors cumulatively establish ineffective assistance of counsel. Because Azzara has not established that any errors were made, he cannot establish cumulative error. Azzara also claims that the "cumulative errors" constitute a violation of his Fifth Amendment right to due process. Just as with his catch-all ineffective assistance claim, Azzara has demonstrated no due process violation.
For the foregoing reasons, Azzara's Section 2255 motion is denied in its entirety, without a hearing.
This Court declines to issue a certificate of appealability because there has been no "substantial showing of the denial of a constitutional right." 28 U.S.C. Section 2253(c)(2); see United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997). Further, the Court finds, pursuant to 28 U.S.C. Section 1915(a)(3), that any appeal from an order denying Azzara's motion would not be taken in good faith. See Feliz v. United States, 2002 WL 1964347, at *7 (S.D.N.Y. 2002).
This constitutes the decision and order of the court. Dated: October 20, 2011
/s/_________
U.S.D.J. BY ECF AND FIRST CLASS MAIL TO: Paul Azzara
ID#83640-054
L.S.C.I. Allenwood
Po Box 1000
White Deer, PA 17887 Daniel Ben Tehrani
United States Attorney Office, SDNY
One Saint Andrew's Plaza
New York, NY 10007