in legal malpractice, the judgment rule holds that an attorney may not be held liable for choices of strategy whether they turn out successful or not.  These choices may be in the selection of witnesses, in the selection of experts, in the choice of questions to ask witnesses, and, as we see in this criminal law case, in the choice of consessions made at trial. 

 Baston v. US, 10 CV 4344 (HB), NYLJ 1202514447306, at *1 (SDNY, NY, Decided September 8, 2011) ;District Judge Harold Baer;  Decided: September 8, 2011
"Pro se petitioner, Wilson J. Baston ("Petitioner"), brings this petition for a writ of habeas corpus to vacate, set aside, or correct his federal criminal sentence pursuant to 28 U.S.C. §2255. Petitioner is currently serving 17 concurrent prison terms of 135 months, after having pled guilty to multiple counts of mail and wire fraud. Petitioner has also requested an evidentiary hearing. For the reasons set forth below, the petition and request for an evidentiary hearing are denied."

"On March 5, 2008, Petitioner pled guilty pursuant to a plea agreement that contained a Stipulated Sentencing Guidelines Range of 87 to 108 months and indicated that the loss amount would be at least $7 million but less than $20 million, with the specific amount to be calculated prior to sentencing. These ranges were calculated based on data known to the U.S. Probation Department at the time. Additional victims continued to make themselves known to the Government and the loss amount grew. Before the sentencing hearing, the Probation "

In Petitioner’s sentencing memorandum, Petitioner’s attorney, Matthew Kluger ("Kluger"), acknowledged that the Final PSR’s calculation was a more accurate reflection of the actual loss attributable to Petitioner’s conduct, but requested that Petitioner be sentenced to serve 87 months — the minimum number of months specified in the plea agreement — or less. The Government’s sentencing memorandum noted the discrepancy between the recommendations in the Final PSR and the plea agreement, and requested a sentence of 108 months in order to comport with both. The Court also received a number of written victim impact statements prior to sentencing. The parties made the same arguments at the sentencing hearing as they did in their written submissions. I reminded the parties that the Court is not bound by the plea agreement and, after hearing testimony from several victims, I announced a sentence of 135 months and a final restitution order of $22,396,633.57.

Petitioner appealed, arguing that his sentence should be vacated on grounds that the Government breached the plea agreement, that his counsel provided constitutionally ineffective assistance, and that the restitution order was improper. See United States v. Baston, 355 F. App’x 530, 531-32 (2d Cir. 2009). The Second Circuit Court of Appeals affirmed the judgment below. Id. at 533. The Court of Appeals found that Petitioner forfeited his claim that the Government breached the plea agreement by having failed to raise it at the appropriate time. Id. at 533. It also found no plain error which would make the restitution order improper. Id. at 532. The Court of Appeals dismissed Petitioner’s claim for ineffective assistance of counsel without prejudice, on the grounds that the Supreme Court has stated a preference for resolving such claims in a habeas petition, id. (citing Massaro v. United States, 538 U.S. 500, 504 (2003)), and consequently that ground is asserted by Petitioner here.

On June 2, 2010, Petitioner brought this habeas corpus petition under 28 U.S.C. §2255. Petitioner alleges two grounds for relief. First, he claims to have received ineffective assistance of counsel at trial because his trial counsel (a) breached the plea agreement by conceding at sentencing that the loss and restitution amounts were accurate and (b) failed to investigate andcorrect errors in the loss and restitution amounts. Second, Petitioner claims that the calculation of the restitution order and loss amount were inaccurate."

"Courts have denied ineffective assistance claims in situations, where counsel conceded certain evidence at trial, because it was a strategic decision to make the concession. See id. at 699 (holding counsel’s decision not to present or investigate certain evidence was strategic and virtually unchallengeable); United States v. Gaskin, 364 F.3d 438, 468 (holding counsel’s stipulation to defendant’s signature on trial exhibits was a strategic choice and decisions to stipulate to evidence are strategic as a rule); United States v. Berkovich, 168 F.3d 64, 67-68 (2d Cir. 1999) (holding counsel’s decision to enter into a global stipulation was part of a "reasonable trial strategy").

Kluger’s concession of the loss amount, with which Petitioner takes issue, was a strategic choice, made to avoid the risk of an even higher loss amount and perhaps an even higher sentence."