Maximov v. USA

Filing 17

ORDER ACCEPTING REPORT AND RECOMMENDATION 15 . Petitioner's petition for writ of habeas corpus (Doc. 1 ) is denied. A certificate of appealability and leave to proceed in forma pauperis on appeal are denied because Petitioner has not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2). The Clerk shall terminate this action. (See document for further details). Signed by Judge David G Campbell on 8/7/15. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Eitan Maximov, No. CV-14-00636-PHX-DGC Petitioner, 10 11 v. 12 ORDER USA, 13 Respondent. 14 15 Petitioner objects to the Magistrate Judge’s Report and Recommendation 16 (“R&R”). Doc. 16. The R&R suggests that this Court dismiss the pro se petition brought 17 pursuant to 28 U.S.C. § 2255. Doc. 15. Specifically, the Magistrate Judge found that 18 Petitioner’s claims are procedurally barred. The matter is fully briefed, and no party has 19 requested oral argument. The Court will dismiss the petition. 20 I. 21 Background. Petitioner Eitan Maximov was convicted of one count of conspiracy to commit 22 wire or bank fraud and one count of bank fraud. At sentencing, the Court found 23 Maximov was “clearly an organizer,” and thus applied the Aggravating Role sentence 24 enhancement. Ultimately, the Court sentenced Maximov to 97 months in prison. 25 Maximov appealed his conviction, and, after counsel was appointed, requested an 26 international prison transfer to his home country of Israel. He later decided to dismiss his 27 appeal after he “learned that international prison transfer requests will not be considered 28 during the pendency of an appeal[.]” Doc. 15 at 2. Counsel warned, however, that 1 dismissing the appeal would preclude his ability to raise certain claims because “they 2 were not raised on direct appeal.” Id. Nonetheless, Maximov dismissed the appeal and 3 signed an affidavit acknowledging that dismissing his appeal would affect his right to 4 collaterally attack his conviction and sentence. 5 On March 28, 2014, Maximov filed a petition pursuant to 28 U.S.C. § 2255 6 arguing that the sentencing guidelines were applied incorrectly, that the indictment was 7 defective, and that he received ineffective assistance of both trial and appellate counsel. 8 On June 22, 2015, Magistrate Judge David Duncan issued an R&R recommending that 9 the Court dismiss Maximov’s claims because they are procedurally barred. Id. at 3. 10 Maximov filed objections to the R&R. Doc. 16. 11 II. Legal Standard. 12 A. 13 The Court may accept, reject, or modify, in whole or in part, the findings or Objections. 14 recommendations made by a magistrate judge in a habeas case. 15 § 636(b)(1). The Court must undertake a de novo review of those portions of the R&R to 16 which specific objections are made. See id.; Fed. R. Civ. P. 72(b)(3); United States v. 17 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). See 28 U.S.C. 18 B. 19 Generally, “claims not raised on direct appeal may not be raised on collateral 20 review[.]” Massaro v. United States, 538 U.S. 500, 504 (2003). In such a case, the 21 claims are procedurally defaulted and “may be raised in habeas only if the defendant can 22 first demonstrate either cause and actual prejudice, or that he is actually innocent.” 23 Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotation marks and 24 citations omitted). Claims for ineffective assistance of counsel, however, are not subject 25 to this rule, and therefore may be raised on collateral attack even if they were not directly 26 appealed. See Massaro, 538 U.S. at 509 (“We do hold that failure to raise an ineffective- 27 assistance-of-counsel claim on direct appeal does not bar the claim from being brought in 28 a later, appropriate proceeding under § 2255.”). Procedural Default. -2- 1 III. Analysis. 2 Maximov argues that (1) the Court applied the wrong sentencing guidelines 3 resulting in a higher sentence, (2) the Court improperly applied the Aggravating Role 4 enhancement, (3) his attorney was ineffective for failing to object to the application of the 5 guidelines, (4) his attorney was ineffective for failing to advise him of these issues on 6 appeal, and (5) the indictment was defective. Doc. 3. The Magistrate Judge found all of 7 these claims procedurally barred because Maximov failed to raise them on direct appeal. 8 Importantly, Maximov’s objections do not challenge any specific portion of the R&R. 9 Although this failure would preclude Maximov’s right to de novo review, see Howard v. 10 Sec’y of HHS, 932 F.2d 505, 509 (9th Cir. 1991) (failure to file specific objections to 11 R&R “has the same effect as would a failure to object”), the Court will address Judge 12 Duncan’s findings. 13 The Court agrees that Maximov’s claims relating to the application of the 14 sentencing guidelines, the sentencing enhancement, and the indictment are barred 15 because he failed to raise them on direct appeal. Maximov does not dispute that he failed 16 to raise these claims on direct appeal and that he executed an affidavit acknowledging 17 that by voluntarily dismissing his appeal he waived further review. The Court will not 18 address these claims. 19 Maximov’s ineffective assistance of counsel claims, however, are not procedurally 20 barred. See Massaro, 538 U.S. at 509. Although Judge Duncan found otherwise, this 21 does not change the outcome. 22 ineffective assistance of counsel claims in analyzing whether Maximov had demonstrated 23 sufficient cause to overcome the procedural bar rule. 24 have been sentenced under the 1998 guidelines, which would have resulted in a lesser 25 sentence. He argued his counsel was ineffective for failing to raise this claim on appeal. 26 But as Judge Duncan correctly noted, the conduct underlying Maximov’s conviction 27 occurred between 2006 at 2008. Doc. 10-4 at 4 (charging Maximov for a conspiracy to 28 commit several crimes that took place “[o]n or about July 2006 and continuing to and Judge Duncan addressed the merits of Maximov’s -3- Maximov argued that he should 1 including a date unknown to the grand jury, but at least until January 8, 2008”). 2 Maximov was sentenced for crimes charged in the indictment. There is no basis for 3 concluding that he was sentenced for crimes that occurred when the 1998 version of the 4 guidelines was in effect, and thus counsel was not ineffective in failing to raise this issue. 5 Maximov also argues his counsel was ineffective for failing to object to the 6 Aggravated Role enhancement. He claims there was no evidence that other participants 7 were “working” for him and that he had no control over their conduct. But as Judge 8 Duncan noted, counsel did object to the enhancement at sentencing, arguing that the 9 government failed to present evidence that any single participant in the conspiracy was 10 the leader. Doc. 10-1 at 48. The mere fact that the Court rejected the argument does not 11 render counsel’s performance objectively unreasonable under Strickland v. Washington, 12 466 U.S. 668 (1984). 13 Petitioner’s claims challenging his sentence and the validity of the indictment are 14 procedurally barred and his claims for ineffective assistance of counsel are meritless. 15 The petition will be denied. 16 IT IS ORDERED: 17 1. Petitioner’s petition for writ of habeas corpus (Doc. 1) is denied. 18 2. Magistrate Judge David K. Duncan’s R&R (Doc. 15) is accepted. 19 3. A certificate of appealability and leave to proceed in forma pauperis on 20 appeal are denied because Petitioner has not made a substantial showing of 21 the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2). 22 4. 23 Dated this 7th day of August, 2015. The Clerk shall terminate this action. 24 25 26 27 28 -4-

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