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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Eitan Maximov,

No. CV-14-00636-PHX-DGC
Petitioner,

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v.

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ORDER

USA,

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Respondent.

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Petitioner objects to the Magistrate Judge’s Report and Recommendation

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(“R&R”). Doc. 16. The R&R suggests that this Court dismiss the pro se petition brought

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pursuant to 28 U.S.C. § 2255. Doc. 15. Specifically, the Magistrate Judge found that

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Petitioner’s claims are procedurally barred. The matter is fully briefed, and no party has

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requested oral argument. The Court will dismiss the petition.

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I.

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Background.
Petitioner Eitan Maximov was convicted of one count of conspiracy to commit

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wire or bank fraud and one count of bank fraud.

At sentencing, the Court found

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Maximov was “clearly an organizer,” and thus applied the Aggravating Role sentence

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enhancement. Ultimately, the Court sentenced Maximov to 97 months in prison.

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Maximov appealed his conviction, and, after counsel was appointed, requested an

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international prison transfer to his home country of Israel. He later decided to dismiss his

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appeal after he “learned that international prison transfer requests will not be considered

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during the pendency of an appeal[.]” Doc. 15 at 2. Counsel warned, however, that

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dismissing the appeal would preclude his ability to raise certain claims because “they

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were not raised on direct appeal.” Id. Nonetheless, Maximov dismissed the appeal and

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signed an affidavit acknowledging that dismissing his appeal would affect his right to

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collaterally attack his conviction and sentence.

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On March 28, 2014, Maximov filed a petition pursuant to 28 U.S.C. § 2255

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arguing that the sentencing guidelines were applied incorrectly, that the indictment was

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defective, and that he received ineffective assistance of both trial and appellate counsel.

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On June 22, 2015, Magistrate Judge David Duncan issued an R&R recommending that

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the Court dismiss Maximov’s claims because they are procedurally barred. Id. at 3.

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Maximov filed objections to the R&R. Doc. 16.

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II.

Legal Standard.

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A.

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The Court may accept, reject, or modify, in whole or in part, the findings or

Objections.

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recommendations made by a magistrate judge in a habeas case.

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§ 636(b)(1). The Court must undertake a de novo review of those portions of the R&R to

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which specific objections are made. See id.; Fed. R. Civ. P. 72(b)(3); United States v.

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Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

See 28 U.S.C.

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B.

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Generally, “claims not raised on direct appeal may not be raised on collateral

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review[.]” Massaro v. United States, 538 U.S. 500, 504 (2003). In such a case, the

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claims are procedurally defaulted and “may be raised in habeas only if the defendant can

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first demonstrate either cause and actual prejudice, or that he is actually innocent.”

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Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotation marks and

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citations omitted). Claims for ineffective assistance of counsel, however, are not subject

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to this rule, and therefore may be raised on collateral attack even if they were not directly

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appealed. See Massaro, 538 U.S. at 509 (“We do hold that failure to raise an ineffective-

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assistance-of-counsel claim on direct appeal does not bar the claim from being brought in

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a later, appropriate proceeding under § 2255.”).

Procedural Default.

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III.

Analysis.

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Maximov argues that (1) the Court applied the wrong sentencing guidelines

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resulting in a higher sentence, (2) the Court improperly applied the Aggravating Role

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enhancement, (3) his attorney was ineffective for failing to object to the application of the

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guidelines, (4) his attorney was ineffective for failing to advise him of these issues on

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appeal, and (5) the indictment was defective. Doc. 3. The Magistrate Judge found all of

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these claims procedurally barred because Maximov failed to raise them on direct appeal.

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Importantly, Maximov’s objections do not challenge any specific portion of the R&R.

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Although this failure would preclude Maximov’s right to de novo review, see Howard v.

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Sec’y of HHS, 932 F.2d 505, 509 (9th Cir. 1991) (failure to file specific objections to

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R&R “has the same effect as would a failure to object”), the Court will address Judge

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Duncan’s findings.

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The Court agrees that Maximov’s claims relating to the application of the

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sentencing guidelines, the sentencing enhancement, and the indictment are barred

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because he failed to raise them on direct appeal. Maximov does not dispute that he failed

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to raise these claims on direct appeal and that he executed an affidavit acknowledging

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that by voluntarily dismissing his appeal he waived further review. The Court will not

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address these claims.

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Maximov’s ineffective assistance of counsel claims, however, are not procedurally

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barred. See Massaro, 538 U.S. at 509. Although Judge Duncan found otherwise, this

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does not change the outcome.

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ineffective assistance of counsel claims in analyzing whether Maximov had demonstrated

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sufficient cause to overcome the procedural bar rule.

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have been sentenced under the 1998 guidelines, which would have resulted in a lesser

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sentence. He argued his counsel was ineffective for failing to raise this claim on appeal.

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But as Judge Duncan correctly noted, the conduct underlying Maximov’s conviction

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occurred between 2006 at 2008. Doc. 10-4 at 4 (charging Maximov for a conspiracy to

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commit several crimes that took place “[o]n or about July 2006 and continuing to and

Judge Duncan addressed the merits of Maximov’s

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Maximov argued that he should

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including a date unknown to the grand jury, but at least until January 8, 2008”).

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Maximov was sentenced for crimes charged in the indictment. There is no basis for

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concluding that he was sentenced for crimes that occurred when the 1998 version of the

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guidelines was in effect, and thus counsel was not ineffective in failing to raise this issue.

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Maximov also argues his counsel was ineffective for failing to object to the

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Aggravated Role enhancement. He claims there was no evidence that other participants

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were “working” for him and that he had no control over their conduct. But as Judge

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Duncan noted, counsel did object to the enhancement at sentencing, arguing that the

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government failed to present evidence that any single participant in the conspiracy was

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the leader. Doc. 10-1 at 48. The mere fact that the Court rejected the argument does not

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render counsel’s performance objectively unreasonable under Strickland v. Washington,

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466 U.S. 668 (1984).

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Petitioner’s claims challenging his sentence and the validity of the indictment are

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procedurally barred and his claims for ineffective assistance of counsel are meritless.

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The petition will be denied.

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IT IS ORDERED:

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1.

Petitioner’s petition for writ of habeas corpus (Doc. 1) is denied.

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2.

Magistrate Judge David K. Duncan’s R&R (Doc. 15) is accepted.

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3.

A certificate of appealability and leave to proceed in forma pauperis on

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appeal are denied because Petitioner has not made a substantial showing of

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the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2).

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4.

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Dated this 7th day of August, 2015.

The Clerk shall terminate this action.

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