Kuchinski v. USA CV-95-548-M 07/11/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Steve Kuchinski, Petitioner,
v. Civil No. 95-548-M
United States of America, Respondent.
O R D E R
Based on his guilty pleas. Petitioner was convicted of two
counts of an information charging him with 1) unlawful
interference with commerce by a public official, in violation o
18 U.S.C. § 1951, and 2) wire fraud, in violation of 18 U.S.C.
§§ 1343 and 1346. He was subseguently sentenced to, inter alia
terms of imprisonment of 20 months on each count, to run
concurrently. The prison sentence imposed was below the
applicable Guideline range (30 to 37 months) due to the
prosecution's motion under U.S.S.G. § 5K1.1, which recognized
Petitioner's substantial assistance in the investigation and
prosecution of others. Petitioner was represented at his plea
hearing and at sentencing by James A. Connor, Esguire.
Petitioner now seeks a reduction in his sentence under
28 U.S.C. § 2255, which provides in relevant part: 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.
A motion for such relief may be made at any time.
While there is no automatic right to the appointment of
counsel in a proceeding brought under § 2255, and a hearing is
not reguired if a petitioner's allegations, accepted as true,
would not entitle him to relief (or if the allegations are
contradicted by the record, are inherently credible, or amount to
mere conclusions rather than statements of fact), nevertheless,
the court scheduled a hearing to give Petitioner a full
opportunity to supplement his rather conclusory assertions of
ineffective assistance of counsel during his plea hearing and
during sentencing. The court also appointed counsel to represent
Petitioner at that hearing.
Petitioner's original "Motion for Modification of Sentence"
(document no. 1) and his "Supplemental Motion 2255 for
2 Modification of Sentence" (document no. 3) taken together, raise
only one issue, that might warrant relief if his generalized
allegations are found to be meritorious: ineffective assistance
of counsel. See Order dated February 22, 1996 (document no. 2).
Otherwise, Petitioner's claims are entirely without merit.
For example. Petitioner challenges the "two level increase
for [his] receipt of more than one bribe," but offers no reason
why U.S.S.G. § 201.1(b)(1) should not have operated to increase
the applicable offense level by 2. He also claims that he was
denied a § 5K1.1 departure without explanation, when in fact he
received both a § 5K1.1 downward departure and an explanation.
During the hearing. Petitioner reorganized his varied claims
for relief and asserted basically one claim consisting of four
subparts. Petitioner argued that his sentence was imposed in
violation of the Constitution or laws of the United States
because he was denied effective assistance of counsel during the
sentencing phase, because his counsel:
1. Had a "conflict of interest" arising from the fact
that Attorney Connor, who was retained counsel, reduced his usual
fee, collected only a portion of that reduced fee, and had little
hope of actually recovering the balance owed. (Petitioner
argues, essentially, that Attorney Connor suffered from an
3 economic disincentive and was thus motivated to provide less than
adequate representation);
2. Failed to argue for, or present evidence to
support, a discretionary downward departure based upon
Petitioner's alleged "aberrant behavior;"
3. Failed to argue for, or present evidence to
support a discretionary downward departure based upon the
victims' roles in his offenses of conviction (U.S.S.G. § 5K2.10);
and
4. Failed to argue for, or present evidence to
support, a discretionary downward departure based upon his age,
his alleged health problems, his wife's alleged health problems,
and his family circumstances (U.S.S.G. § 5K2.0).
Petitioner abandoned his earlier claim that Attorney
Connor's representation was Constitutionally deficient during the
plea hearing.
Ineffective Assistance of Counsel
In order to obtain relief under § 2255 on grounds that he
was deprived of his right to effective assistance of counsel.
Petitioner must show, first, that his counsel's performance was
Constitutionally deficient and, second, that he was prejudiced by
4 that deficient performance. Strickland v. Washington, 466 U.S.
668, 687 (1984); Hill v. Lockhart, 474 U.S. 52, 57 (1985); United
States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) cert, denied,
114 S.Ct. 1839 (1994); United States v. Michaud, 925 F.2d 37 (1st
Cir. 1991); Lopez-Nieves v. United States, 917 F.2d 645 (1st Cir.
1990). As discussed below. Petitioner fails on each prong.
A. Conflict of Interest
Attorney Connor did not have a conflict of interest.
Mr. Connor testified credibly that he had known Petitioner for a
number of years, agreed to represent him knowing that Petitioner
was not a person of financial means, voluntarily reduced his
customary fee, and did so without regard to whether that reduced
fee would ever actually be paid. He also testified credibly that
he provided the same effort and brought to bear the same skills
and judgment that he would have employed had he charged his usual
fee (or no fee at all). There was no credible evidence that
Attorney Connor failed in any duty because he perceived his fee
arrangement with Petitioner to be inadeguate. Petitioner's
conclusory contrary implications were neither credible nor based
in fact, nor supported by any credible evidence.
5 B. Aberrant Behavior Departure
Attorney Connor did not argue for an aberrant behavior
departure at sentencing, but that fact hardly amounts to
Constitutionally deficient representation since the facts of
record would not have supported such an argument and, in any
event. Petitioner was not prejudiced because the court would not
have exercised its discretion to grant such a motion even if it
had been made. See e.g. United States v. Grandmaison, 77 F.3d
555 (1st Cir. 1996). Petitioner was convicted of two separate
and unrelated offenses related to bribery and public corruption
while serving as an elected public official.
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Kuchinski v. USA CV-95-548-M 07/11/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Steve Kuchinski, Petitioner,
v. Civil No. 95-548-M
United States of America, Respondent.
O R D E R
Based on his guilty pleas. Petitioner was convicted of two
counts of an information charging him with 1) unlawful
interference with commerce by a public official, in violation o
18 U.S.C. § 1951, and 2) wire fraud, in violation of 18 U.S.C.
§§ 1343 and 1346. He was subseguently sentenced to, inter alia
terms of imprisonment of 20 months on each count, to run
concurrently. The prison sentence imposed was below the
applicable Guideline range (30 to 37 months) due to the
prosecution's motion under U.S.S.G. § 5K1.1, which recognized
Petitioner's substantial assistance in the investigation and
prosecution of others. Petitioner was represented at his plea
hearing and at sentencing by James A. Connor, Esguire.
Petitioner now seeks a reduction in his sentence under
28 U.S.C. § 2255, which provides in relevant part: 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.
A motion for such relief may be made at any time.
While there is no automatic right to the appointment of
counsel in a proceeding brought under § 2255, and a hearing is
not reguired if a petitioner's allegations, accepted as true,
would not entitle him to relief (or if the allegations are
contradicted by the record, are inherently credible, or amount to
mere conclusions rather than statements of fact), nevertheless,
the court scheduled a hearing to give Petitioner a full
opportunity to supplement his rather conclusory assertions of
ineffective assistance of counsel during his plea hearing and
during sentencing. The court also appointed counsel to represent
Petitioner at that hearing.
Petitioner's original "Motion for Modification of Sentence"
(document no. 1) and his "Supplemental Motion 2255 for
2 Modification of Sentence" (document no. 3) taken together, raise
only one issue, that might warrant relief if his generalized
allegations are found to be meritorious: ineffective assistance
of counsel. See Order dated February 22, 1996 (document no. 2).
Otherwise, Petitioner's claims are entirely without merit.
For example. Petitioner challenges the "two level increase
for [his] receipt of more than one bribe," but offers no reason
why U.S.S.G. § 201.1(b)(1) should not have operated to increase
the applicable offense level by 2. He also claims that he was
denied a § 5K1.1 departure without explanation, when in fact he
received both a § 5K1.1 downward departure and an explanation.
During the hearing. Petitioner reorganized his varied claims
for relief and asserted basically one claim consisting of four
subparts. Petitioner argued that his sentence was imposed in
violation of the Constitution or laws of the United States
because he was denied effective assistance of counsel during the
sentencing phase, because his counsel:
1. Had a "conflict of interest" arising from the fact
that Attorney Connor, who was retained counsel, reduced his usual
fee, collected only a portion of that reduced fee, and had little
hope of actually recovering the balance owed. (Petitioner
argues, essentially, that Attorney Connor suffered from an
3 economic disincentive and was thus motivated to provide less than
adequate representation);
2. Failed to argue for, or present evidence to
support, a discretionary downward departure based upon
Petitioner's alleged "aberrant behavior;"
3. Failed to argue for, or present evidence to
support a discretionary downward departure based upon the
victims' roles in his offenses of conviction (U.S.S.G. § 5K2.10);
and
4. Failed to argue for, or present evidence to
support, a discretionary downward departure based upon his age,
his alleged health problems, his wife's alleged health problems,
and his family circumstances (U.S.S.G. § 5K2.0).
Petitioner abandoned his earlier claim that Attorney
Connor's representation was Constitutionally deficient during the
plea hearing.
Ineffective Assistance of Counsel
In order to obtain relief under § 2255 on grounds that he
was deprived of his right to effective assistance of counsel.
Petitioner must show, first, that his counsel's performance was
Constitutionally deficient and, second, that he was prejudiced by
4 that deficient performance. Strickland v. Washington, 466 U.S.
668, 687 (1984); Hill v. Lockhart, 474 U.S. 52, 57 (1985); United
States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) cert, denied,
114 S.Ct. 1839 (1994); United States v. Michaud, 925 F.2d 37 (1st
Cir. 1991); Lopez-Nieves v. United States, 917 F.2d 645 (1st Cir.
1990). As discussed below. Petitioner fails on each prong.
A. Conflict of Interest
Attorney Connor did not have a conflict of interest.
Mr. Connor testified credibly that he had known Petitioner for a
number of years, agreed to represent him knowing that Petitioner
was not a person of financial means, voluntarily reduced his
customary fee, and did so without regard to whether that reduced
fee would ever actually be paid. He also testified credibly that
he provided the same effort and brought to bear the same skills
and judgment that he would have employed had he charged his usual
fee (or no fee at all). There was no credible evidence that
Attorney Connor failed in any duty because he perceived his fee
arrangement with Petitioner to be inadeguate. Petitioner's
conclusory contrary implications were neither credible nor based
in fact, nor supported by any credible evidence.
5 B. Aberrant Behavior Departure
Attorney Connor did not argue for an aberrant behavior
departure at sentencing, but that fact hardly amounts to
Constitutionally deficient representation since the facts of
record would not have supported such an argument and, in any
event. Petitioner was not prejudiced because the court would not
have exercised its discretion to grant such a motion even if it
had been made. See e.g. United States v. Grandmaison, 77 F.3d
555 (1st Cir. 1996). Petitioner was convicted of two separate
and unrelated offenses related to bribery and public corruption
while serving as an elected public official. He did not
establish at the § 2255 hearing that evidence existed of which
Attorney Connor was or should have been aware which could have
established either Petitioner's otherwise exemplary character, or
his exceptional charitable activities, such that either an
aberrant behavior departure or a departure based on extraordinary
offender characteristics would be warranted. Given that
Petitioner pled guilty to two offenses involving public
corruption and given the absence of any persuasive evidence of
Petitioner's otherwise exemplary character or extensive
charitable activities, and given the circumstances of the
offenses of conviction (influence peddling), the court would not
6 have exercised its discretion to depart downward on "aberrant
behavior" grounds, even if, legally, it could have done so.
Accordingly, Attorney Connor's performance in this regard was not
Constitutionally deficient, and, in any event. Petitioner was not
prej udiced.
C. Departure Based on Victims' Role in the Offense
Attorney Connor also did not argue for or present evidence
to support a discretionary downward departure under U.S.S.G.
§ 5K2.10, entitled "Victim's Conduct (Policy Statement)." But
that is also not surprising, since the facts of record would not
have supported that argument either. And, Petitioner was not
prejudiced in any event, because the court would not have
exercised its discretion to grant such a departure. Section
5K2.10 is generally intended to permit eguitable sentencing below
the applicable Guideline range where the victim of an offense
engaged in wrongful conduct which contributed significantly to
provoking the offense behavior. Section 5K2.10, by its terms,
"usually would not be relevant in the context of non-violent
offenses." Petitioner's offenses were non-violent. Furthermore,
that section would, in my judgment, have been particularly
inapplicable in Petitioner's case because his real victims were
7 not the people who paid him money for his influence or his vote,
but the citizens of Nashua who elected him to office and who he
was sworn to serve honestly and uprightly. Those victims did
nothing at all to provoke Petitioner's offenses beyond trusting
him to honestly represent their legitimate interests. Attorney
Connor's failure to argue for a downward departure based on
victim conduct was neither Constitutionally deficient, nor did it
prejudice Petitioner in any way.
D. Departure Based on Age, Health, and Family Circumstances
Finally, Petitioner argues that Attorney Connor's
representation was Constitutionally deficient because be failed
to argue for, or present evidence to support a discretionary
departure under U.S.S.G. § 5K2.0, based upon Petitioner's age,
his alleged physical infirmities, his wife's anxiety, his wife's
alleged physical infirmities, the absence of family support for
his wife, and general family and economic circumstances. Once
again, however, nothing presented in the pleadings or at the
hearing would support a departure on the grounds asserted. It
was not incumbent upon Attorney Connor to make such a motion
given the facts of record. Petitioner did not demonstrate that
he suffers from any extraordinary physical impairment or infirmity or illness. See U.S.S.G. § 5H1.4. Moreover,
Petitioner's age (67) would not have been particularly relevant
in determining whether a discretionary departure should have been
granted (§ 5K1.1), especially since Petitioner has not
demonstrated that he is either physically impaired or
particularly infirm. Besides general conclusory assertions,
nothing was presented at the hearing to suggest that Petitioner's
family circumstances or obligations are unigue, or that his
wife's anxiety or alleged health problems are particularly
noteworthy or unigue. In short. Petitioner did not show that
Attorney Connor either was aware or should have been aware of any
facts that, if presented and argued at sentencing, might have
resulted in a downward departure under § 5K2.0. Indeed, even if
Attorney Connor had argued all of the factors Petitioner alludes
to, and even if Attorney Connor had presented evidence at
sentencing to support Petitioner's current factual assertions,
the court would still not have granted a discretionary departure
downward, because of the absence of any unigue factors taking
this case out of the "heartland" carved out by the Guidelines.
Such a departure is, in the end, discretionary, and even if such
a departure might have been legally permissible in this case, I
would not have departed downward on such grounds given the Petitioner's arguments and evidence presented at the hearing (had
they been presented at sentencing). Accordingly, Attorney
Connor's failure to move for a departure under § 5K2.0 neither
constituted ineffective assistance, nor did it prejudice
Petitioner in any way.
Conclusion
Because Attorney Connor's representation of Petitioner was
neither Constitutionally defective nor prejudicial to Petitioner,
the relief under 28 U.S.C. § 2255 is hereby denied. Attorney
Connor provided effective assistance to Petitioner which was
"well within the range of competence demanded in criminal cases,"
McMann v. Richardson, 397 U.S. 759, 771 (1970), and well "within
the wide range of reasonable professional assistance," Argencourt
v. United States, 78 F.3d 14, 16 (1st Cir. 1996) (guoting
Strickland, 466 U.S. at 689). The Petition is dismissed.
10 SO ORDERED.
Steven J. McAuliffe United States District Judge
July 11, 1996
cc: Albert E. Scherr, Esq. Paul M. Gagnon, Esq.