Sualim v. USA

Filing 16

ORDER ADOPTING 13 Report and Recommendation of Magistrate Judge. IT IS FURTHER ORDERED denying a Certificate of Appealability because Sualim has not made a substantial showing of the denial of a constitutional right. The Clerk shall enter judgment. Signed by Judge Susan R Bolton on 3/1/17. (LSP)

1

NOT FOR PUBLICATION

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Alex Sualim,
Movant/Defendant,

10
11

v.

12

No. CV-16-01018-PHX-SRB(JZB)
CR-13-01515-PHX-SRB
ORDER

United States of America

13

Respondent/Plaintiff.

14
15
16

Movant Alex Sualim filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside

17

or Correct Sentence raising three grounds for relief. In Ground One Sualim alleges

18
19

ineffective assistance of counsel asserting his counsel coerced and intimidated him into

20

pleading guilty. In Ground Two Sualim repeats his assertion of being coerced into

21

pleading guilty and also claims that he was not informed of essential elements of the

22

crime with which he was charged and of his right to appeal or collaterally attack his

23
24
25
26

sentencing and that the government committed constructive fraud on the court.

In

Ground Three Sualim alleges a Brady violation by the government.
The government filed a response in opposition to Sualim’s motion and Sualim

27
28

filed a reply. The Magistrate Judge issued a Report and Recommendation recommending

1
2

that Sualim’s Motion to Vacate, Set Aside, or Correct Sentence by a person in Federal
Custody pursuant to 28 U.S.C.§ 2255 be denied. Sualim filed timely written objections,

3
4
5
6

and the government has filed a response to those objections.
Sualim listed eight numbered objections to the Magistrate Judge’s Report and
Recommendation. His first objection is that the Magistrate Judge found or suggested that

7
8

coaching, coercing and intimidating a defendant into pleading guilty is not ineffective

9

assistance of counsel. The government responded and the Court agrees that this is an

10

“easily rejected strawman argument.” The Magistrate Judge never suggested that it was

11
12

permissible for defense attorneys to coach, coerce or intimidate their clients into pleading

13

guilty. The Magistrate Judge concluded that Sualim’s belated allegations of coercion and

14

intimidation were not credible and were also contradicted by the record. In his discussion

15

of Sualim’s allegation of ineffective assistance of counsel, the Magistrate Judge quotes

16
17
18
19

from the Rule 11 colloquy and the sentencing hearing and relates the cooperation efforts
and free talks between the guilty plea and sentencing which belie the claim of coercion
and intimidation. Sualim’s objection number one is overruled.

20
21

The second objection states that the Magistrate Judge found Sualim’s affidavits

22

inaccurate by examining a “fraudulent record” and that an expansion of the record is

23

necessary. It is unclear to the Court what is allegedly fraudulent about the record. The

24
25

Magistrate Judge’s conclusions were based on transcripts from Sualim’s Court

26

proceedings, including Sualim’s own statements and the affidavits submitted by his

27

former counsel. Sualim’s second objection is overruled.

28

-2-

1
2

Sualim’s third objection says that there is no record evidence to support his
conviction other than the plea colloquy that he again asserts was “coached, coerced, and

3
4
5
6

intimidated into existence.” Sualim again ignores the evidence of record cited by the
Magistrate Judge, including his own representation during the plea colloquy that the plea
was not the product of coercion and his failure to make any such claim in the

7
8
9
10
11
12

approximate seven months between his guilty plea and sentencing. Sualim’s third
objection is overruled.
In his fourth objection Sualim states that he “has alleged the promises and the
intimidation by defense counsel, when, where and by whom such promises were made”

13

and argues that this satisfies both prongs of the Strickland standard. As the government

14

notes in its response to the objections merely alleging ineffective assistance of counsel

15

does not satisfy the Strickland standard. The Magistrate Judge has cited clear record

16
17
18
19

evidence that he was not coached, coerced or intimidating into pleading guilty. Sualim’s
fourth objection is overruled.
Sualim’s fifth objection relates to the second filing of his counsel’s affidavit

20
21

alleging that it was filed in order to fit the prosecution’s response to his motion. As both

22

the government notes in its response to the objections and the Magistrate Judge notes in

23

the Report and Recommendation, the affidavit was filed after Sualim asked that his

24
25

counsel’s unsworn letter submitted as Exhibit M to the government’s response not be

26

considered. Subsequently, the government filed two affidavits from Sualim’s counsel.

27

The first merely affirms under penalty of perjury that the unsworn letter was true and

28

accurate. The second reiterates and elaborates on the plans to travel to Nigeria (Doc. 12).
-3-

1
2

This is neither evidence of fraud or as Sualim asserts a constitutional defect. Sualim’s
fifth objection is overruled.

3
4
5
6

Sualim’s sixth objection to the Report and Recommendation relates to the
Magistrate Judge’s finding that he failed to present any evidence that the government
withheld Brady material. He adds, “Where is the Blackberry with exculpatory evidence?

7
8

This Blackberry phone proved the movant’s innocence.” As the government notes, the

9

first mention of the Blackberry phone is in the objections. Sualim offers no evidence that

10

the Blackberry phone was ever in the government’s possession. The government had

11
12

indicated its intention to prove at trial that the Blackberry phone belonged to Sualim

13

based on the observation of a Customs and Boarder Protection official and would have

14

attempted to establish that Sualim was the true owner of one of the e-mail accounts

15

involved in the fraud that could be that could be traced to Sualim’s Blackberry. There is

16
17
18
19

no evidence that the government has or ever had possession of the Blackberry phone and,
therefore, a failure to turn it over was not a Brady violation. Sualim’s sixth objection is
overruled.

20
21

Sualim’s seventh objection appears to assert that he could never prove a Brady

22

violation because he would never be able to show that the government suppressed

23

exculpatory evidence. Sualim appears to rely on uncited Court of Appeal’s decisions that

24
25
26
27
28

purportedly state that Brady violations are “running amok throughout the judicial
system.” The seventh objection is overruled.
The eighth and final objection is to the recommendation that no evidentiary
hearing be ordered as Sualim had requested. The Magistrate Judge concluded that an
-4-

1
2

evidentiary hearing was not necessary because the Rule 11 violations and Brady
violations alleged in Grounds Two and Three respectively were conclusively decided on

3
4
5
6

the record. The allegations of coercion raised in Ground One did not warrant a hearing
because the issues of credibility could be conclusively decided on the basis of testimony
and evidence in the record. The Magistrate Judge noted that Sualim offered nothing than

7
8
9
10
11
12
13
14
15

his other claim of coercion and that the entire record belies these assertions. The Court
agrees that the Magistrate Judge correctly concluded that an evidentiary hearing was not
necessary in order to decide Sualim’s motion. Sualim’s eighth objection is overruled.
IT IS ORDERED overruling Sualim’s objections to the Report and
Recommendations of the Magistrate Judge.
IT IS FURTHER ORDERED adopting the Report and Recommendations of
Magistrate Judge as the Order of this Court. (Doc. 13)

16
17
18
19

IT IS FURTHER ORDERED denying a Certificate of Appealability because
Sualim has not made a substantial showing of the denial of a constitutional right.
IT IS FURTHER ORDERED directing the Clerk to enter judgment.

20
21

Dated this 1st day of March, 2017.

22
23
24
25
26
27
28

-5-