1 09-3871-pr Raysor v. United States UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4 August…

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09-3871-pr
Raysor v. United States
UNITED STATES COURT OF APPEALS 1
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FOR THE SECOND CIRCUIT 3
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August Term, 2010 5
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(Argued: November 23, 2010 Decided: July 27, 2011) 7
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Docket No. 09-3871-pr 9
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UMEME RAYSOR, 13
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Petitioner-Appellant, 15
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v. 17
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UNITED STATES OF AMERICA, 19
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Respondent-Appellee, 21
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B e f o r e: WINTER, CALABRESI, and KATZMANN, Circuit Judges. 25
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Appeal from a denial by the United States District Court for 27
the Eastern District of New York (Sandra Townes, Judge) of a 28
Section 2255 motion to vacate a sentence due to counsel’s failure 29
to advise appellant with regard to a plea offer by the 30
government. We vacate and remand for an evidentiary hearing on 31
the ineffective assistance of counsel claim. 32
SALLY WASSERMAN, New York, New York, for 33
Petitioner-Appellant. 34
35
WILLIAM D. SARRAT, Assistant United 36
States Attorney, of counsel (Jo Ann M. 37
Navickas, Assistant United States 38
Attorney, of counsel, on the brief), 39

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Loretta E. Lynch, United States 1
Attorney, United States Attorney’s 2
Office for the Eastern District of New 3
York, Brooklyn, New York, for 4
Respondent-Appellee. 5
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WINTER, Circuit Judge: 7
Umeme Raysor appeals from Judge Townes’s denial of his 8
petition for a writ of habeas corpus. Raysor v. United States, 9
No. 03-CV-5418, 2009 WL 2707307 (E.D.N.Y. Aug. 26, 2009). The 10
only issue on appeal is a claim of ineffective assistance of 11
counsel. Appellant alleges that trial counsel failed to advise 12
him as to whether appellant should accept or reject a particular 13
plea offer by the government. The district court concluded that 14
appellant failed to establish that he was actually prejudiced by 15
counsel’s alleged ineffectiveness and denied the motion without 16
holding a full evidentiary hearing. 17
We vacate and remand. 18
BACKGROUND 19
From approximately 1985 to 1996, appellant and his brother 20
ran a violent street gang that distributed large quantities of 21
drugs in New York and Virginia. On December 10, 1996, after 22
appellant was indicted, the government sent a letter to his 23
original counsel memorializing a plea offer. The offer involved 24
a government recommendation of 29 years’ incarceration. 25
According to the letter, the plea offer would expire on December 26
20, 1996, but the offer was briefly extended until after a 27

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meeting between appellant’s original counsel and the government 1
on February 3, 1997. Appellant rejected the government’s offer, 2
and no additional plea offers were made. 3
On February 27, 1997, the government moved to disqualify 4
original counsel on the basis of a conflict of interest resulting 5
from original counsel’s prior representation of a co-defendant. 6
On April 4, 1997, the motion was granted. 7
Appellant’s trial lasted approximately twelve weeks. The 8
government’s case consisted primarily of accomplice testimony; 9
nine former gang members testified against appellant, eight of 10
whom pled guilty prior to trial. The jury found appellant guilty 11
on four counts: (i) racketeering, in violation of 18 U.S.C. § 12
1962(c); (ii) racketeering conspiracy, in violation of 18 U.S.C. 13
§ 1962(d); (iii) operating a criminal enterprise, in violation of 14
21 U.S.C. § 848; and (iv) conspiracy to distribute and to possess 15
with the intent to distribute cocaine base, in violation of 21 16
U.S.C. § 846. Appellant was acquitted on eight counts, and, 17
despite the conviction on the racketeering count, the jury found 18
that 10 of the 13 predicate acts had not been proven. However, 19
the jury did find appellant guilty of a predicate act of murder. 20
On August 13, 1999, appellant was sentenced to multiple life 21
terms. 22
On direct appeal, appellant raised numerous claims of error, 23
none of which are pertinent to this appeal. After remanding for 24

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supplementation of the record, United States v. Raysor, 9 F. 1
App’x 33 (2d Cir. 2001), we vacated the conviction for conspiracy 2
to distribute narcotics under 21 U.S.C. § 846, but affirmed the 3
district court’s judgment in all other respects. United States 4
v. Raysor, No. 99-1503, 2001 WL 36037731 (2d Cir. Apr. 29, 2002). 5
On November 4, 2002, the Supreme Court denied appellant’s 6
petition for a writ of certiorari. Raysor v. United States, 537 7
U.S. 1012 (2002). 8
On October 20, 2003, appellant filed the instant petition 9
pro se pursuant to 28 U.S.C. § 2255, asserting, inter alia, 10
ineffective assistance of counsel. He alleged that he had been 11
deprived of adequate assistance of counsel because his original 12
counsel “failed to discuss with Raysor the advisability of 13
whether to accept or reject the government’s plea offer.” App. 14
51. Further, he submitted an affidavit stating that his original 15
counsel: 16
never conveyed to this affiant his ultimate 17
opinion as to the wisdom of the plea nor did 18
he give any suggestions as to how to deal 19
with the government’s plea offer. Affiant 20
asserts that if properly advised by counsel, 21
he would have accepted the plea bargain 22
instead of proceeding to trial. 23
Id. at 67. The district court also had before it original 24
counsel’s affirmation, submitted by the government, that “I 25
conveyed the government offer of 29 years to the defendant. The 26
defendant refused the offer.” Id. at 76. The district court 27

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dismissed the petition after concluding that, even if original 1
counsel had provided ineffective assistance, appellant had failed 2
to establish a reasonable probability that he would have accepted 3
the plea. Raysor, 2009 WL 2707307, at *2. 4
The district court denied a certificate of appealability. 5
Id. at *6. On February 19, 2010, we granted appellant a 6
certificate of appealability to review whether the district court 7
erred in not conducting an evidentiary hearing. 8
DISCUSSION 9
Section 2255 states that “[u]nless the motion and the files 10
and records of the case conclusively show that the prisoner is 11
entitled to no relief, the court shall . . . grant a prompt 12
hearing thereon, determine the issues and make findings of fact 13
and conclusions of law with respect thereto.” 28 U.S.C. § 14
2255(b). 15
A defendant seeking a hearing on an ineffective assistance 16
of counsel claim “need establish only that he has a ‘plausible’ 17
claim of ineffective assistance of counsel, not that he will 18
necessarily succeed on the claim.” Puglisi v. United States, 586 19
F.3d 209, 213 (2d Cir. 2009) (internal quotation marks omitted). 20
Moreover, “[t]he procedure for determining whether a hearing is 21
necessary is in part analogous to . . . a summary judgment 22
proceeding. . . . If material facts are in dispute, a hearing 23
should usually be held, and relevant findings of facts made.” 24
Id. 25

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“[O]ur standard of review with respect to a district court’s 1
decision to hold a hearing,” however, “differs from summary 2
judgment’s general de novo review.” Id. at 215. We review a 3
district court’s denial of an evidentiary hearing for clear error 4
as to issues of fact and de novo as to issues of law. Id. 5
It is within the district court’s discretion to determine 6
the scope and nature of a hearing. Chang v. United States, 250 7
F.3d 79, 85-86 (2d Cir. 2001). Thus, when the judge who tried 8
the underlying proceedings also presides over a § 2255 motion, a 9
full-blown evidentiary hearing may not be necessary. See 10
Puglisi, 586 F.3d at 214-15. Although “[o]ur precedent 11
disapproves of summary dismissal of petitions where factual 12
issues exist[], . . . it permits a ‘middle road’ of deciding 13
disputed facts on the basis of written submissions.” Pham v. 14
United States, 317 F.3d 178, 184 (2d Cir. 2003) (citing Chang, 15
250 F.3d at 86). 16
For example, in Chang, the district court did not hold a 17
full-blown testimonial hearing where the petitioner had alleged 18
ineffective assistance for counsel’s refusal to let petitioner 19
testify on his own behalf. 250 F.3d at 81-82. The district 20
court considered the petitioner’s affidavit’s blanket statements 21
that counsel had prohibited him from testifying as well as 22
counsel’s “detailed affidavit . . . credibly describing the 23
circumstances concerning appellant’s failure to testify.” Id. at 24
85. It denied the petition and the request for an evidentiary 25

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hearing because counsel’s affidavit “belied [petitioner’s] 1
claim." Id. at 82 (internal alteration omitted). We affirmed 2
the denial of the evidentiary hearing and concluded that a full- 3
fledged evidentiary hearing was unnecessary to flesh out the 4
petitioner’s § 2255 petition: 5
It was, therefore, within the district 6
court’s discretion to choose a middle road 7
that avoided the delay, the needless 8
expenditure of judicial resources, the burden 9
on trial counsel and the government, and 10
perhaps the encouragement of other prisoners 11
to make similar baseless claims that would 12
have resulted from a full testimonial 13
hearing. The district court reasonably 14
decided that the testimony of Chang and his 15
trial counsel would add little or nothing to 16
the written submissions. . . . [W]e cannot 17
say that it was an abuse of discretion on the 18
part of the district court to conclude that 19
such a hearing would not offer any reasonable 20
chance of altering its view of the facts. 21
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Id. at 86. 23
Turning to the merits, to be entitled to relief on a claim 24
of counsel’s ineffective assistance, a “defendant must show that 25
counsel’s performance was deficient” and “that the deficient 26
performance prejudiced the defense.” Strickland v. Washington, 27
466 U.S. 668, 687 (1984). The performance prong requires a 28
showing that defense counsel’s representation “fell below an 29
objective standard of reasonableness.” Id. at 688. When 30
analyzing counsel’s alleged deficiency, a court must “indulge a 31
strong presumption that counsel’s conduct falls within the wide 32
range of reasonable professional assistance.” Id. at 689. 33

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Moreover, “[t]he reasonableness of counsel’s performance is to be 1
evaluated from counsel’s perspective at the time of the alleged 2
error and in light of all the circumstances.” Kimmelman v. 3
Morrison, 477 U.S. 365, 381 (1986). As to prejudice, a defendant 4
must demonstrate “a reasonable probability that, but for 5
counsel’s unprofessional errors, the result of the proceeding 6
would have been different.” Strickland, 466 U.S. at 694. 7
The district court never addressed whether counsel’s 8
performance fell below an objective standard of reasonableness 9
under the first Strickland prong, but denied relief based on 10
appellant’s failure to show prejudice as the second prong 11
requires. See Raysor, 2009 WL 2707307, at *2 (“Even assuming, as 12
Raysor argues, that defense counsel failed to offer advice 13
regarding the desirability of the twenty-nine year plea offer, 14
Raysor has not established a reasonable probability that he would 15
have accepted the plea.”). 16
To show the requisite prejudice in the instant case, 17
appellant must demonstrate a reasonable probability that but for 18
counsel’s deficient performance, he would have pled guilty 19
instead of going to trial. See Purdy v. United States, 208 F.3d 20
41, 49 (2d Cir. 2000) (to show prejudice under Strickland, 21
defendant “must demonstrate a reasonable probability that but for 22
[defense counsel’s] deficiencies, [the defendant] would have pled 23
guilty”); Cullen v. United States, 194 F.3d 401, 405 (2d Cir. 24
1999) (evaluating the “likelihood that [the defendant] would have 25

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accepted the plea bargain if he had been fully informed of its 1
terms and accurately advised of the likely sentencing ranges 2
under the plea bargain and upon conviction after trial”). 3
Appellant’s burden was to proffer a prima facie case that, 4
but for counsel’s improper advice, the petitioner would have 5
accepted the plea offer. Puglisi, 586 F.3d at 215. Prima facie 6
evidence may include a petitioner’s own statement, as was offered 7
here; however, in order for the statement to be sufficiently 8
credible to justify a full hearing, it must be accompanied by 9
some “objective evidence,” such as a significant sentencing 10
disparity, that supports an inference that the petitioner would 11
have accepted the proposed plea offer if properly advised. Id. 12
at 215-16; see also United States v. Gordon, 156 F.3d 376, 381 13
(2d Cir. 1998) (finding that “such a disparity [between the 14
sentence imposed and the sentence that effective counsel would 15
have obtained for the defendant] provides sufficient objective 16
evidence -- when combined with a petitioner’s statement 17
concerning his intentions -- to support a finding of prejudice 18
under Strickland”). 19
The government contends that appellant’s post-conviction 20
assertion that, with the benefit of competent legal advice, he 21
would have accepted the government’s plea offer, is insufficient 22
by itself to establish a reasonable probability that appellant 23
would have pled guilty. The government also argues that the 24

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district court acted within its discretion in denying appellant’s 1
claim without holding a hearing. We disagree and conclude that 2
an evidentiary hearing is necessary to flesh out the sparse 3
record before us. 4
Appellant has asserted under oath that he would have 5
accepted the plea offer if properly advised by counsel. This 6
distinguishes Puglisi, where the petitioner failed to provide 7
such a personal sworn statement. See Puglisi, 586 F.3d at 216-17 8
(“We believe that a statement regarding intent must be directly 9
attributable to the habeas petitioner, whether it be through 10
sworn testimony in the main proceeding or a sworn affidavit in 11
support of the motion.”). 12
Moreover, the disparity between the sentence offered in the 13
plea agreement -- 29 years -- and the sentence he actually 14
received -- multiple life terms -- was substantial. Along with 15
appellant’s testimony, it may provide enough “objective evidence” 16
to support the inference appellant would have accepted the plea 17
offer if properly advised. See, e.g., id. at 216; Pham, 317 F.3d 18
at 182-83; Gordon, 156 F.3d at 380-81. Given appellant’s age of 19
25 at the time of the plea offer, a guilty plea would have led to 20
his release during his early fifties. The difference between 21
this and life imprisonment is sufficient to satisfy the prejudice 22
requirement. See, e.g., Pham, 317 F.3d at 182-83 (remanding for 23
an evidentiary hearing on ineffective assistance because 24

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prejudice could be found based on the “undisputed sentencing 1
disparity of at least 113 months between the high end of the 2
government plea offer [of 78 to 97 months] and Pham’s sentence 3
[of 210 months] after a trial conviction”); Gordon, 156 F.3d at 4
381 (finding the disparity between the 84 months offered in the 5
plea agreement and the actual sentencing range of 262 to 327 6
months as “sufficient objective evidence . . . to support a 7
finding of prejudice under Strickland”); see also Mask v. 8
McGinnis, 233 F.3d 132, 142 (2d Cir. 2000) (“[A] large disparity 9
between the defendant’s sentence exposure following a trial and 10
his potential exposure had a plea offer been made . . . . coupled 11
with [defendant’s] statements that he would have accepted a 12
reasonable offer as credited by the district court, satisfies the 13
prejudice requirement.”). Indeed, the government concedes in its 14
brief that “there is a potentially significant disparity between 15
the offered 29-year sentence and the life sentence Raysor 16
received.” 17
With regard to the reasonableness of original counsel’s 18
performance, it is clear that failure to advise a client as to a 19
plea offer is unreasonable performance. Cullen, 194 F.3d at 404 20
(“failure to give any advice concerning the acceptance of a plea 21
bargain [falls] below the standard of reasonable representation”) 22
(citing Boria v. Keene, 99 F.3d 492, 496-97 (2d Cir. 1996)). 23
Counsel must advise a client regarding a plea offer, although 24
“counsel’s choice of how to do so will be guided by many factors, 25

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including the duty to avoid coercing a plea from an unwilling 1
client.” Purdy, 208 F.3d at 47. 2
The statement by original counsel, quoted supra, was only 3
that he conveyed the plea offer but appellant rejected it. This 4
statement is hardly equal to the “detailed affidavit from trial 5
counsel credibly describing the circumstances concerning 6
appellant’s failure to testify” that we found sufficient to deny 7
a full evidentiary hearing and to support dismissal of the § 2255 8
petition in Chang, 250 F.3d at 85. In particular, we do not know 9
what, if anything, was communicated to appellant regarding the 10
likelihood of a substantially more severe sentence as a result of 11
going to trial, what original counsel believed as to the plea 12
offer, or why original counsel did whatever he did. There is, 13
moreover, the fact that the court soon after disqualified 14
original counsel for a conflict of interest. 15
We acknowledge that the issues are close. Numerous 16
questions of fact or mixed fact and law must be resolved in 17
appellant’s favor if he is to prevail. These include: (i) what 18
would have been reasonable legal advice in the circumstances; 19
(ii) whether original counsel gave such advice; (iii) what the 20
considered basis for original counsel’s actions was; and (iv) 21
whether but for counsel’s alleged ineffectiveness, appellant 22
would have accepted the government’s plea offer and pled guilty. 23
There is sufficient chance of success, however, in our view to 24
justify a full hearing on remand. 25

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CONCLUSION 1
For the foregoing reasons, the judgment is vacated and the 2
matter is remanded for further proceedings in accordance with 3
this opinion. 4
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