Flaquer v. U.S.
To prove that trial counsel provided ineffective assistance at sentencing, a petitioner may be required to prove that trial counsel's decision was unreasonable and that the petitioner suffered prejudice as a result. At sentencing, the District Court applied a two-level enhancement, because the petitioner, Miguel Flaquer, allegedly served as a leader. The pro se petitioner filed a habeas petition and argued that his attorney provided ineffective assistance, because she failed to call a co-defendant, Luis Noboa, to testify in response to the government's claim that the petitioner should receive a sentencing enhancement. Flaquer claimed that, if he had testified, Noboa would have denied that he was Flaquer's driver, for purposes of any criminal conspiracy, and that the District Court would not have found that Flaquer was a leader, organizer, manager or supervisor. Assuming, arguendo, that Flaquer's claim was not entirely barred, it lacked merit. The government proved, by a preponderance of the evidence, that the two-level enhancement applied. Flaquer failed to persuade the 2nd Circuit that trial counsel's decision not to call Noboa to testify, even if professionally unreasonable, prejudiced Flaquer. The 2nd Circuit affirmed the judgment of the District Court, Kravitz, J. Miguel Flaquer represented himself, pro se. David Fein, Felice Duffy and Robert Spector represented the government.