Holland v. USA
ORDER finding as moot 36 Motion ; denying 37 Motion for Order; denying 38 Motion to Appoint Counsel ; denying 16 Motion to Compel; denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255); denying 24 Motion ; denying 28 Motion to Compel; denying 29 Motion ; denying 33 Motion for Summary Judgment. Signed by Judge Janet Bond Arterton on 6/30/2014. (Morril, Gregory)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ALBERT E. HOLLAND, JR.,
UNITED STATES OF AMERICA,
Civil No. 3:11cv1868 (JBA)
June 30, 2014
RULING ON MOTION TO VACATE OR SET ASIDE CONVICTION AND
SENTENCE PURSUANT TO 28 U.S.C. § 2255
Petitioner Albert E. Holland, Jr. petitions [Doc. # 1] for a writ of habeas corpus
under 28 U.S.C. § 2255 on the basis of ineffective assistance of counsel.1 For the reasons
that follow, Mr. Holland’s petition will be denied.
On April 15, 2010, after a three-day trial, a jury found Petitioner Albert Holland
guilty of one count of willful tax evasion in violation of 26 U.S.C. § 7201 and two counts
of filing false tax returns in violation of 26 U.S.C. § 7206(1). On September 1, 2010, the
Court sentenced Mr. Holland to thirty-six months’ incarceration. (See United States v.
Holland, 09cr139 (JBA), Judgment [Doc. # 115].)
Mr. Holland was released from
incarceration in July 2013.
At trial, the jury found that the Government’s evidence showed that Mr. Holland
willfully evaded the payment of taxes, penalties, and interest for tax years 1994 through
Mr. Holland has filed numerous supplemental pleadings. While many of these
filings are duplicative of his Petition, to the extent that they expand upon or clarify claims
raised in Mr. Holland’s original Petition, the Court has considered his claims inclusive of
1996, 1998, and 2000 (as alleged in Count One of the Indictment) and willfully filed false
tax returns for 2002 and 2003 (Counts Two and Three) stating that he had no income
when, in fact, he earned more than $150,000 collectively in those two years. The trial
evidence showed that although Mr. Holland made numerous sworn submissions to the
IRS contending that he could not afford to pay his tax liability from prior years, he failed
to disclose that a partnership that he had formed called Real Estate Asset Recovery Service
(REARS) won a judgment in September 1999 of approximately $4.65 million for
compensation owed to it from its former partner Active Media Services (AMS). In order
to shelter this income, Mr. Holland transferred his shares in REARS to his four children
and backdated the documents associated with the transfer to make it appear as though the
transfer had occurred in 1998, before REARS won the judgment. Mr. Holland had his
children form a limited liability corporation, Jawbone, LLC, to receive this money which
was then used for Mr. Holland’s real estate and personal expenses.
To obtain collateral relief under 28 U.S.C. § 2255, a petitioner must show that his
sentence “was imposed in violation of the Constitution or laws of the United States.” 28
U.S.C. § 2255. Habeas corpus relief is an extraordinary remedy and should only be
granted where it is necessary to redress errors that, were they left intact, would
“inherently result in a complete miscarriage of justice.” Hill v. United States, 368 U.S. 424,
428 (1962). “[A] collateral attack on a final judgment in a federal criminal case is
generally available under § 2255 only for a constitutional error, a lack of jurisdiction in
the sentencing court, or an error of law or fact that constitutes a fundamental defect
which inherently results in a complete miscarriage of justice.” Sanders v. United States, 1
F. App’x 57, 58 (2d Cir. 2001) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir.
The availability of relief under § 2255 does “not purport to modify the basic
distinction between direct review and collateral review. It has, of course, long been
settled law that an error that may justify reversal on direct appeal will not necessarily
support a collateral attack on a final judgment.” United States v. Addonizio, 442 U.S. 178,
184 (1979). “The reasons for narrowly limiting the grounds for collateral attack on final
judgments are well known and basic to our adversary system of justice,” namely that
“[i]nroads on the concept of finality tend to undermine confidence in the integrity of our
procedures” and the “increased volume of judicial work associated with the processing of
collateral attacks inevitably impairs and delays the orderly administration of justice.” Id.
at 185 & n.11. A claim that “is neither jurisdictional nor constitutional in nature and does
not constitute a ‘fundamental defect which inherently resulted in a complete miscarriage
of justice’” is not cognizable under § 2255. Fiumara v. United States, 727 F.2d 209, 213
(2d Cir. 1984) (quoting Hill, 368 U.S. at 428).
Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel is assessed under the two–pronged
standard articulated in Strickland v. Washington, 466 U.S. 668 (1984). The first prong
considers whether counsel’s performance was objectively unreasonable “under prevailing
professional norms.” Id. at 688. To satisfy this element, an error must be “so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. at 687. Second, the petitioner must affirmatively prove prejudice by
showing that counsel’s errors were so serious that they “deprive[d] the defendant of a fair
trial” and that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 687, 694. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. Stated differently, an error by counsel does not warrant setting
aside a conviction unless it had an “effect on the judgment.” Id. at 692.
“Judicial scrutiny of counsel’s performance must be highly deferential,” and “a
court must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Id. at 689. An attorney’s performance
should not be viewed through the lens of hindsight, but rather assessed by “consider[ing]
the circumstances counsel faced at the time” of the proceedings and from “counsel’s point
of view.” Davis v. Greiner, 428 F.3d 81, 88 (2d Cir. 2005). Counsel’s “strategic choices . . .
are virtually unchallengeable.” Strickland, 466 U.S. at 690. A habeas petitioner will not
prevail on an ineffective assistance claim by second–guessing or disagreeing with
counsel’s strategy. Id. at 689. However, a constitutionally inadequate performance may
be established by a “show[ing] that counsel omitted significant and obvious issues while
pursuing issues that were clearly and significantly weaker,” keeping in mind that “counsel
does not have a duty to advance every nonfrivolous argument that could be made.” Mayo
v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Applying these principles results in an
ineffective assistance of counsel test that “is rigorous, and the great majority of habeas
petitions that allege constitutionally ineffective counsel founder on it.” Bell v. Miller, 500
F.3d 149, 155 (2d Cir. 2007).
Statute of Limitations Defense
Mr. Holland advances a number of claims of ineffective assistance of counsel.
Only one appears to present a potentially viable basis for relief: that trial counsel failed to
recognize that “there were Statute of Limitations issues regarding certain charges.”
(Pet’r’s Mem. Supp. [Doc. # 1] at 3–4.) Although Mr. Holland does not elaborate on the
basis for this claim, and the Government’s response is singularly unenlightening, the
Court’s review of the record has identified a potential claim for analysis.
A “section 7201 prosecution involving the failure to file income taxes is timely if
commenced within six years of the day of the last act of evasion, whether it is the failure
to file a return or some other act in furtherance of the crime.”2 United States v. DiPetto,
936 F.2d 96, 98 (2d Cir. 1991). The Indictment against Mr. Holland was returned on June
17, 2009, and thus prosecution of § 7201 violations occurring before June 17, 2003 would
be time barred. (See United States v. Holland, 09cr139 (JBA), Indictment [Doc. # 1] ¶ 15.)
Prosecution would be timely if Mr. Holland’s “last affirmative act of tax evasion”
occurred after June 17, 2003. DiPetto, 936 F.2d at 98.
The Indictment alleged and the jury was charged that seven different “affirmative
acts” of evasion formed the basis for Count One, two of which occurred outside the
limitations period: filing false Offers in Compromise (“OICs”) with the IRS on November
25, 1998 and January 2, 2001.
(See United States v. Holland, 09cr139 (JBA), Jury
“The elements of tax evasion under 26 U.S.C. § 7201 are (1) willfulness, (2) the
existence of a tax deficiency, and (3) an affirmative act constituting an evasion.” United
States v. Koskerides, 877 F.2d 1129, 1137 (2d Cir. 1989).
Instructions [Doc. # 61] at 14; Indictment [Doc. # 1] ¶¶ 11, 14.)3
The other five
affirmative acts charged in Count One occurred within the limitations period between
August 5, 2003 and November 9, 2004. (Indictment ¶¶ 15–17; Jury Instructions at 14–
The jury was further charged that “[t]he Government does not have to prove all of
these affirmative acts” and “only has to prove one affirmative act beyond a reasonable
doubt.” (Jury Instructions at 15.) While the jury was told that it “must unanimously
agree on which affirmative act the Defendant committed” (id.), no special interrogatories
were used and thus it cannot be determined which of these affirmative acts the jury found
proven (see United States v. Holland, 09cr139 (JBA), Jury Verdict [Doc. # 66]).4 Although
two of the affirmative acts identified in the Indictment occurred more than six years
before the Indictment was returned, the Government does not explain why there was no
potential statute of limitations issue, stating only that “it is likely that the movant is
In the OICs, Mr. Holland acknowledged his liability to the IRS for past due taxes,
but falsely contended that he was financially unable to pay such liabilities. (Indictment
¶¶ 5(b), 6, 11, 14, 19.)
At the charge conference, the Government objected to using special
interrogatories, contending that “the Second Circuit has said they have a general distaste
for special interrogatories.” (United States v. Holland, 09cr139 (JBA), Charge Conf. Tr.
[Doc. # 131] at 17.) Defense counsel acknowledged the Second Circuit’s “disfavor [for]
special verdicts” but suggested that interrogatories might be appropriate, because “the
jury does have to be unanimous as to the affirmative act committed by Mr. Holland, I
don’t know if those cases are different.” (Id. at 18.) Defense counsel did not pursue the
issue further, however, and stated that “if the Court rejects [using interrogatories], I have
no problem with [a simple jury verdict] form.” (Id. at 19.) The issue of statute of
limitations was not raised.
confusing the civil limitations period with the criminal limitations period.”5 (Gov.’t’s
Opp’n [Doc. # 9] at 10.) It is at least theoretically conceivable that the jury could have
returned a guilty verdict on Count One based on its finding that the Government had
only proved beyond a reasonable doubt one or both affirmative acts of evasion that
occurred outside the limitations period.
The Second Circuit has held that the failure of defense counsel to raise a statute of
limitations defense where it is a complete defense to a count falls “below an objective
standard of reasonableness,” and defense “counsel’s failure to object to the time-barred
counts is unaccountable in the circumstances, and cannot ‘be considered sound trial
strategy.’” United States v. Hansel, 70 F.3d 6, 8 (2d Cir. 1995) (quoting Strickland, 466
U.S. at 668, 689) (internal citations omitted)).
Mr. Holland’s civil liability to the IRS for tax years 1979 through 1985 expired
before the Indictment was returned (see Trial Tr. Vol. II [Doc. # 129] at 297; see also
Gov.’t’s Trial Motion in Limine [Doc. # 27] at 4), because 26 U.S.C. § 6502(a)(1) provides
that “[w]here the assessment of any tax imposed by this title has been made within the
period of limitation properly applicable thereto, such tax may be collected by levy or by a
proceeding in court, but only if the levy is made or the proceeding begun . . . within 10
years after the assessment of the tax.” Thus “if after 10 years from the date of assessment,
which itself must take place within three years after the tax return was filed, the IRS has
not moved to collect the tax by levying on the taxpayer’s property or wages or sued to
collect the tax, it usually has to give up.” Lantz v. C.I.R., 607 F.3d 479, 482 (7th Cir. 2010).
The Government contends that “[c]ertainly, trial counsel was aware of the statute
of limitations as his cross-examination of (then) RA Dragen demonstrated.” (Gov.’t’s
Opp’n at 10.) The Government does not cite to any portion of this testimony nor explain
the purported relevance of any testimony elicited during cross examination. A review of
defense counsel’s brief cross examination of Dragen does not demonstrate that defense
counsel explored any statute of limitations defenses. (See Trial Tr. Vol. II [Doc. # 129] at
311–14.) In any event, where there would be no strategic reason to not advance a statute
of limitations defense, it is unclear what relevance counsel’s “awareness” of this defense
would have to an ineffective assistance of counsel claim if that defense were not advanced.
Even if Mr. Holland has satisfied the first element of an ineffective assistance of
counsel claim, the second prong requires him to demonstrate prejudice. “In assessing
prejudice under Strickland, the question is not whether a court can be certain counsel’s
performance had no effect on the outcome or whether it is possible a reasonable doubt
might have been established if counsel acted differently. Instead, Strickland asks whether
it is ‘reasonably likely’ the result would have been different. This does not require a
showing that counsel’s actions ‘more likely than not altered the outcome,’ but the
difference between Strickland’s prejudice standard and a more-probable-than-not
standard is slight and matters ‘only in the rarest case.’ The likelihood of a different result
must be substantial, not just conceivable.” Harrington v. Richter, 131 S. Ct. 770, 791–92
(2011) (quoting Strickland, 466 U.S. at 693, 696). Prejudice results if Defendant has been
convicted of “time-barred counts that would have been dismissed, if his attorney had
acted competently.” Hansel, 70 F.3d at 8.
Here, however, Count One was not completely barred by the statute of
limitations, which under § 7201 barred prosecution for failure to file income taxes where
the last affirmative act of evasion occurred before June 17, 2003. For statute of limitations
purposes, the dates relevant to Count One are the affirmative acts of evasion rather than
the filing dates for the tax years for which payment was evaded. See DiPetto, 936 F.2d at
98. Count One alleged seven affirmative acts of evasion, each of which covered multiple
overlapping tax years, and collectively charged evasion for calendar years 1994 through
1996, 1998 and 2000.
The affirmative acts that occurred outside the limitations period were the filing of
OICs on November 25, 1998 and January 2, 2001 relating to tax years 1979–1985, 1987,
1991, 1994–1996, and 1998.6 (Indictment ¶¶ 11, 14.) Three of the five affirmative acts of
evasion that occurred within the limitations period also alleged that Mr. Holland made
false statements related to his ability to pay liabilities for the 1994–1996 and 1998 tax
years, and the other two (which both occurred on October 28, 2004) related to the income
evaded in connection with the false return filed for tax years 2002 and 2003 respectively,
which were also the subject of the charges in Counts Two and Three under § 7206(1),
Filing a False Return. (Id. ¶¶ 15–17; Jury Instructions at 15.)
As the last five affirmative acts occurred within the limitations period, there
would only be a potential statute of limitations issue if the jury determined that the
Tax years 1979–1985, 1987, and 1991 were not charged in the Indictment as
years for which payment was evaded, but the Indictment charges that Mr. Holland
submitted a single OIC on both November 25, 1998 and January 2, 2001 that related to
his tax liability for multiple tax years both within and outside the limitations period. (See
Indictment ¶¶ 11, 14, 19.) In a “Motion for Complete Innocence” filed in his criminal
case (see United States v. Holland, 09cr139 (JBA) [Doc. # 151]), Mr. Holland attaches
excerpts from an internal IRS memorandum from the IRS Criminal Tax Counsel to the
Special Agent in Charge of the Boston Field Office, dated September 27, 2006 (the “Tax
Counsel Memorandum”), in which the Tax Counsel wrote that it “concur[red] with the
proposed prosecution of Albert Holland” under § 7201 for tax years 1994 through 1996
but did not “concur with the recommended evasion of payment charges relating to
Holland’s tax years 1979 through 1985,” because the first affirmative act of evasion related
to those years did not occur until November 25, 1998 when the OIC was submitted. (Id.
at 2.) Because under § 6502(a)(1) taxes cannot be collected in a civil action more than ten
years after assessment, see supra Note 5, the Tax Counsel concluded that there could not
be criminal liability under § 7201 for evasion of payment where the first affirmative act of
evasion occurred at a time when the IRS would be unable to collect such taxes civilly. The
Tax Counsel noted that “[e]ven though Holland’s 1979 through 1985 liabilities are no
longer collectible, evidence of those liabilities should be presented to the jury as evidence
of willfulness, as a well as relevant conduct for sentencing purposes.” (Tax Counsel
Memorandum at 2.) The brief excerpt of the Tax Counsel Memorandum submitted to
the Court does not discuss the six-year criminal statute of limitations under § 7201.
Government only proved that Mr. Holland evaded payment of taxes due with his
November 25, 1998 and/or January 2, 2001 affirmative acts but not with any of the last
five acts alleged. However, the affirmative acts charged for November 25, 1998 and
January 2, 2001 were submitting OICs in which Mr. Holland falsely claimed that he could
not afford to pay his tax liability. The August 5, 2003 and November 9, 2004 affirmative
acts, both of which occurred within the limitations period, also alleged that Mr. Holland
falsely claimed in an IRS form that he could not afford to pay his tax liability in
connection with an OIC.7 (See Indictment ¶¶ 15, 17).
At trial, the Government contended that all four of these affirmative acts of
evasion stemmed from Mr. Holland’s failure to disclose to the IRS the existence of the
REARS-AMS lawsuit when claiming that he could not afford to pay his tax liability for
multiple years. While REARS did not prevail in the lawsuit until September 1999, which
is after the first affirmative act charged, the Government contended that by the time of
this first affirmative act, in November 1998, AMS did not dispute that it owed REARS
compensation and merely disputed the amount, meaning that Mr. Holland was aware
that the lawsuit was a substantially valuable asset and that he could afford to pay the IRS
even if he did not know the exact amount.8 (See, e.g., Trial Tr. Vol. IV [Doc. # 132] at
The October 28, 2004 affirmative acts related to a different set of facts: the 2002
and 2003 tax returns (Indictment ¶¶ 16–17) but, if the jury relied on only one or both of
these two affirmative acts to convict Mr. Holland, there is no statute of limitations issue
because these affirmative acts occurred within the limitations period.
Given that Mr. Holland had not yet received any payment at the time of the first
affirmative act of evasion alleged, the Government’s evidence was weakest as to this
affirmative act, and defense counsel argued in his summation that “there is no indication
in the record, nor should you speculate that Mr. Holland in the summer of ‘98 had any
715–16 (arguing in summation that Mr. Holland’s affirmation in the November 25, 1998
OIC that he couldn’t afford to pay $1.4 million owed was “simply not true,” because
“what he doesn’t tell them is that since 1997 he’s been part of a lawsuit that could bring in
millions of dollars.”).) The January 2, 2001, August 5, 2003 and November 9, 2004
affirmative acts occurred after REARS was awarded judgment and after Mr. Holland,
through Jawbone, purchased a new home, and were also based on Mr. Holland’s false
affirmation that he could not afford to pay his tax liability and his affirmation in financial
disclosure forms that he had not transferred anything of value in the past ten years
despite the transfer of his REARS shares to his children. (Indictment ¶¶ 13–17.)
Thus, the November 25, 1998 and January 2, 2001 affirmative acts outside the
limitations period and the August 5, 2003 and November 9, 2004 affirmative acts within
the limitations period all related to Mr. Holland’s statements offered in connection with
OICs in which he falsely asserted that he could not afford to pay his tax liability despite
the pending and actual REARS judgment. As a result, there is no “substantial” likelihood
that the outcome would have been different had defense counsel challenged the first two
affirmative acts. See Harrington, 131 S. Ct. at 792. That is, it is entirely unlikely that the
jury could have concluded that the Government proved only that Mr. Holland committed
affirmative acts of evasion on November 25, 1998 and/or January 2, 2001 but not also on
August 5, 2003 and November 9, 2004, because the same evidence supported the January
2, 2001 affirmative act as the August 5, 2003 and November 9, 2004: that at the time Mr.
idea this lawsuit was worth anything.” (Trial Tr. Vol. IV at 743.) Thus, it is highly
unlikely that the jury concluded that the Government proved only that Mr. Holland lied
in the November 1998 OIC, before the REARS judgment was received, but not in the
three affirmative acts charged after the judgment was obtained.
Holland claimed to the IRS that he could not afford to pay his accrued tax liability, he had
already received the REARS judgment. As discussed above, given that the Government’s
evidence was weakest as to the November 25, 1998 affirmative act, it is also unlikely that
the jury could have concluded that the Government only proved this affirmative act.
Because Mr. Holland has not demonstrated that he was prejudiced by any errors that his
counsel may have made in failing to raise a statute of limitations defense in light of the
strong evidence presented in support of the affirmative acts within the limitations period,
he has not shown entitlement to relief on this claim.9
Other Ineffective Assistance of Counsel Claims
Mr. Holland also contends that counsel “did not have the required technical
competency to represent him” as he “had NO significant criminal (or otherwise) TAX
As examples, Mr. Holland asserts that his counsel “failed to advance
evidence . . . . that would have demonstrated that the Movant relied upon the advice of his
professional and highly compensated tax advisors.” (Pet’r’s Mem. Supp. at 3–4.) The
trial record is to the contrary. At the close of the Government’s evidence, Petitioner’s
counsel moved for judgment of acquittal on the basis that “[t]he evidence in totality
showed that Mr. Holland’s state of mind is such that he did not willfully intend to evade
The statute of limitations for filing a false tax return (Counts Two and Three), 26
U.S.C. § 7206(1), is also six years. See 26 U.S.C. § 6531(5); United States v. LaSpina, 299
F.3d 165, 178 (2d Cir. 2002) (“The statute of limitations for tax offenses under Title 26 is
six years.”). As the Indictment alleged and the jury was charged, the false tax returns for
2002 and 2003 were filed on October 28, 2004. (See Jury Instructions [Doc. # 61] at 18–
19; Indictment ¶¶ 21, 23.) The offense of filing a false return is “committed at the time
the return is filed,” United States v. Habig, 390 U.S. 222, 223 (1968), and thus these counts
were not timed barred and counsel would have had no basis to raise a statute of
limitations defense as to Counts Two and Three.
taxes” and that his “actions . . . were the result of returns the accountant filed and signed
off on.” (Trial Tr. Vol. IV at 710.)
Mr. Holland also contends that his trial counsel “failed to properly investigate the
case; failed to interview potential Defense Witnesses; and failed [to] develop a Defense
Strategy prior to trial” and “failed to request and obtain necessary documents that would
have assisted [Mr. Holland] in establishing that he did not willfully evade the payment of
United States Income Tax and did not intentionally file two false tax returns.” (Pet’r’s
Mem. Supp. at 2.) As the Second Circuit has made clear, a petitioner cannot establish an
ineffective assistance of counsel claim under Strickland based on allegations that counsel
failed to conduct an adequate investigation that is “entirely conclusory” and “[a]bsent an
identification of the issues that should have been investigated and a showing that such
investigation would have led to” a different result. United States v. Herrera, 186 F. App’x
109, 112 (2d Cir. 2006).
Mr. Holland did not initially identify any particular subjects or documents that
counsel failed to investigate or pursue and never identifies the potential defense witnesses
that were not interviewed, but his subsequent filings focus his claim, at least partially, on
his counsel’s failure to review and utilize tax files that Petitioner’s tax counsel, Alan
Merkin, provided to him, which Petitioner contends “could have exonerated” him or “at
least  caused doubt in the jury’s mind.” (Pet’r’s July 31, 2013 Supplemental Br. [Doc.
# 15] at 1.) Identified among the documents in these files is an October 2004 letter
containing IRS Revenue Officer “Sara Davidson’s”10 authorization from her supervisor to
The referenced letter has not been included with Mr. Holland’s filings. No
witness named Sara Davidson testified at trial (see United States v. Holland, 09cr139
question Mr. Holland without Attorney Merkin’s presence, which Mr. Holland contends
contradicts her trial testimony that she had this permission before her August 2004
interview with him. (Id.) Additionally, Petitioner identifies an email from Attorney
Merkin to Mr. Holland asserting that IRS Agent Scorza made an unannounced visit to
Mr. Holland’s home “in violation of the attorney circumvention rule.”11 (Id. at 2.) Mr.
Holland also contends that a 2001 letter from the IRS shows that he owed approximately
$440,000 in taxes, but the Government later claimed $1.2 million due at that time,
allegedly demonstrating that the IRS made a “fraudulent” offer of settlement in 2001 “in
that no offer could be made if there existed taxes owed after the years encompassed by
the” offer in compromise and Mr. Holland’s amended returns for 1994 through 1996 will
show that the IRS owes him “a substantial amount of money.” (Id. at 1.)
Even if Mr. Holland’s attorney did fail to review such documents and such
documents reveal that Officer Lauriat’s and IRS Agent Scorza’s testimony was not
truthful, Mr. Holland has not shown how such documents would have been relevant to
his defense. The evidence at trial consisted principally of documentary evidence and
testimony showing that Mr. Holland backdated the documents transferring his shares of
REARS to his children and his use of the assets of Jawbone, LLC to pay his personal
expenses. Petitioner has not shown how this testimony bore upon anything other than
matters peripheral to his criminal liability. Thus, even if these documents show what
(JBA), Witness List [Doc. # 67]), and the Government’s opposition refers to the revenue
officer as Sarah Lauriat. (Gov.’t’s Opp’n at 16.) Accordingly, the Court will assume that
Mr. Holland intends to refer to Revenue Officer Sarah Lauriat, not Sara Davidson.
Mr. Holland also claims that Lauriat and Scorza committed perjury before the
grand jury, which is addressed infra pp. 17–20.
Petitioner claims they do, he has not demonstrated that he was constitutionally
prejudiced by counsel’s failure to utilize them.
Petitioner also faults counsel for not introducing a 433A tax form from 1997,
which showed the value of his REARS shares to be negative $150,000. (Id.) Significantly,
this document was from the year preceding the conclusion of the lawsuit in which REARS
recovered more than $4 million and thus it was not relevant to the charged conduct.
Mr. Holland also faults his attorney for not introducing Attorney Merkin’s
opinion on the legality of his tax filings. This opinion had been proffered in connection
with Mr. Holland’s OIC; it did not reference his transfers of REARS’ assets to Jawbone.
Because the Government’s cross examination of Attorney Merkin could have highlighted
the fact that Mr. Holland never informed Attorney Merkin, his tax attorney, that he had
backdated the documents transferring his REARS interest, thus undermining the defense
strategy that Mr. Holland did not act willfully, Petitioner’s counsel cannot be deemed
unprofessional for failing to offer Attorney Merkin’s testimony. Declining to adduce this
testimonial or documentary evidence was well within the area of trial strategy to which
counsel are afforded latitude and Petitioner has demonstrated neither deficient
performance nor prejudice by this claim.
Next, Mr. Holland contends that his attorney “failed to review [with him] the
discovery information he did receive from the government,” “failed to keep [him] advised
of important issues during the course of this case,” and “failed to follow up on
information provided [by Mr. Holland] that would have impeached the credibility of the
government’s witnesses.” (Pet’r’s Mem. Supp. at 2–3.) As Mr. Holland provides no
details regarding counsel’s purported failures here, his “self-serving, conclusory
allegations” are insufficient to establish an ineffective assistance claim.12 Rosenberger v.
United States, 133 F. App’x 799, 801 (2d Cir. 2005).
Mr. Holland further contends that his attorney was ineffective because he did not
file any pretrial motions. (Pet’r’s Mem. Supp. at 3.) Relatedly, he contends that counsel
“failed to address the Brady Violation in the Movant’s case,” but he does not specify any
basis for this assertion. (Id. at 4.) No specific pretrial motions are identified that he
believes counsel should have filed and there was no seizure of evidence from Mr. Holland
or inculpatory statements to law enforcement that could have formed the basis for a
motion to suppress. In fact, in the Court’s view, attorneys who reflexively file boiler-plate
motions in every criminal case maybe failing to “use ‘professional discretion in deciding
whether there are sufficient grounds’ for such a motion.” United States v. Aulet, 618 F.2d
182, 187–88 (2d Cir. 1980) (quoting LiPuma v. Comm’r, Dep’t of Corr., State of N. Y., 560
F.2d 84, 93 (2d Cir. 1977)).
“An examination of [the Second Circuit’s] decisions
concerning failure to make various pretrial motions or trial objections demonstrates that
we require a clear showing of inadequacy in counsel’s performance to justify overturning
a conviction” and have “emphasized that claims of ineffective assistance must be
premised on actual, not possible, prejudice to the client.” Id. at 188.
Mr. Holland further contends that his trial counsel failed to inform the
Government that he “would not have had any income taxes due and owing for tax years
Moreover, as the Government notes, there is some indication that Mr. Holland
was informed by his attorney of discovery received from the Government. The day after
the Government provided defense counsel with a summary of an interview with John
Camp, Mr. Holland called Mr. Camp and left him an uncordial voicemail referring to the
interview summary. (Gov.’t’s Opp’n at 9.)
2002 and 2003.” (Pet’r’s Mem. Supp. at 4.) The Government’s opposition represents that
counsel did advise it of Mr. Holland’s contention (see Gov.’t’s Opp’n at 12), and in any
event, defense counsel argued at trial that Mr. Holland believed that payments he received
in 2002 and 2003 were a loan rather than income (Trial Tr. Vol. IV at 747) despite the
Government’s contrary evidence (see id. at 720).
Mr. Holland also contends that his counsel “failed to make known to the
government and the Court that certain profit and Loss Statement[s] (here in K-1)
information provided to the Movant by third parties was evaluated and subsequently
determined to be erroneous.” (Pet’r’s Mem. Supp. at 4.) Petitioner does not explain the
relevance of this information, but presumably the reference to the “K-1 profit and Loss
Statement” refers to REARS’ partnership tax return. Since Mr. Holland was charged with
evading the payment of taxes on his personal income, the relevance of these partnership
returns is not apparent. Given that “counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment,” Strickland, 466 U.S. at 690, Petitioner has not shown that
counsel’s failure to advance these arguments was unreasonable, see id. (“[W]hen a
defendant has given counsel reason to believe that pursuing certain investigations would
be fruitless or even harmful, counsel’s failure to pursue those investigations may not later
be challenged as unreasonable.”).
Petitioner asserts a variety of other claims that are not cognizable on a § 2255
petition, because they do not allege constitutional error, lack of jurisdiction or error of
law constituting a fundamental defect. See Napoli, 32 F.3d at 35. Mr. Holland asserts that
he was “prejudiced as a result of bias and perjured testimony by government witnesses.”
(Pet’r’s Mem. Supp. at 3.) Bias of Government witnesses is an issue of witness credibility
for the jury, as the jury was charged, and is not generally cognizable on habeas review.
Even in a post-trial motion for acquittal, a court is not permitted “to substitute its own
determination of . . . the weight of the evidence and the reasonable inferences to be drawn
for that of the jury.’” United States v. Cote, 544 F.3d 88, 98 (2d Cir. 2008) (internal
quotation marks omitted) (alterations in original).
Similarly, Mr. Holland’s claims regarding the purportedly false grand jury
testimony of Lauriat and Scorza, not cast as ineffective assistance of counsel, constitute
direct challenges to the grand jury process, which are not cognizable on a § 2255 petition.
See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989). To the extent that Mr. Holland
challenges the false trial testimony of Lauriat, “a showing of perjury at trial does not in
itself establish a violation of due process warranting habeas relief.” Ortega v. Duncan, 333
F.3d 102, 108 (2d Cir. 2003). “Instead, when false testimony is provided by a government
witness without the prosecution’s knowledge, due process is violated only ‘if the
testimony was material and the court is left with a firm belief that but for the perjured
testimony, the defendant would most likely not have been convicted.’” Id. (quoting
United States v. Wallach, 935 F.2d 445, 456 (2d Cir. 1991)) (footnote and alterations
omitted). Where the Government “knew or should have known of the perjury, the
conviction must be set aside if there is any reasonable likelihood that the false testimony
could have affected the judgment of the jury.” Wallach, 935 F.2d at 456 (internal
quotation marks omitted); see also Ortega, 333 F.3d at 108 n.4 (“Although Wallach
involved a direct appeal from a federal district court conviction, rather than a collateral
attack on a state conviction through habeas, we find its reasoning applicable here.”);
Conteh v. United States, 226 F. Supp. 2d 514, 519 (S.D.N.Y. 2002) (applying Wallach to a
§ 2255 petition).
As discussed in regard to that portion of Mr. Holland’s ineffective assistance of
counsel claim relating to Lauriat’s testimony about her August 2004 meeting with Mr.
Holland (see Pet’r’s Mem. Supp. at 9), there is no showing that this testimony was
material to the jury verdict. Additionally, Petitioner has not shown that the Government
was aware of any potential perjury and a new trial would be warranted only if the
testimony were material and if there was “any reasonable likelihood” that absent the false
testimony Petitioner would not have been convicted. See Wallach, 935 F.2d at 456.
Absent a showing of the materiality or relevance of these statements to Petitioner’s guilt
or innocence, Petitioner fails to show entitlement to relief.
Petitioner describes a number of documents and other evidence not introduced at
trial, but is not clear if they are being claimed as relating to an ineffective assistance of
counsel claim or are instead attempts to relitigate his criminal liability on collateral
review. (See Pet’r’s Mem. Supp. at 4–5; Pet’r’s Reply [Doc. # 11] at 2.) For example,
Petitioner makes a number of arguments related to his taxes from 1979 through 1986.
(See Pet’r’s Mem. Supp. at 4–5.) Given that Petitioner was convicted for evading payment
in 1994 through 1996, 1998 and 2000, prior tax years have no apparent relevance. Thus,
even if their omission is framed as ineffective assistance of counsel, there is no indication
that counsel acted other than properly in failing to offer irrelevant evidence, or that
Petitioner could have been prejudiced by the absence of this evidence. Otherwise these
claims are not cognizable on collateral review. See United States v. Frady, 456 U.S. 152,
164 (1982) (“[W]e have long and consistently affirmed that a collateral challenge may not
do service for an appeal.”).
In Petitioner’s October 7, 2013 Supplemental Brief [Doc. # 27], he contends that
his amended tax returns for 1995 and 1996 “show the movant owes no tax or a greatly
reduced amount.” (Id. at 9.) Mr. Holland submits the original and amended returns
(which were submitted to the IRS in September 2013, well after his trial), (see
Supplemental Reply [Doc. # 29]), and contends that the Government had materials
forming the basis for these amended returns “since 2007, maybe  2005,” showing that
Mr. Holland “owes no tax or a greatly reduced amount” but did not turn them over to the
defense. (Supplemental Br. at 9.) Pursuant to Brady v. Maryland, 373 U.S. 83 (1963), the
“prosecution has a constitutional duty to disclose evidence favorable to an accused when
such evidence is material to guilt or punishment.” United States v. Coppa, 267 F.3d 132,
135 (2d Cir. 2001). “[E]vidence is material in the Brady context only if ‘its suppression
undermines confidence in the outcome of the trial.’” Id. (quoting United States v. Bagley,
473 U.S. 667, 678 (1985)). Given that Petitioner does not specify what materials were
allegedly withheld by the Government and their relevance, and he does not offer any nonconclusory facts showing that the Government was in possession of them before verdict,
he has not established a Brady claim.
On August 20, 2013, Petitioner filed a Motion [Doc. # 16] seeking an order that
the Government release to him “all records concerning Michael Berne, Atty. Hoffman,
the accountant for A-M Real Estate and all tax returns filed for that company,” which he
contends are required “to complete his 1040x filings for the two years [these] charges
were brought.”13 On September 19, 2013, the Court issued an Order [Doc. # 18] to Show
Cause, requiring the Government to respond by September 27, 2013. Although the
Government has still not responded, which could be grounds to grant the motion, as Mr.
Holland’s request for “all” records is overbroad and the relevance of these records to the
merits of this Petition is far from apparent, the motion will be denied.
On November 5, 2013, Petitioner filed a Motion [Doc. # 33] for Summary
Judgment on the ground that the Government failed to produce the documents that he
requested in his discovery motions. Because summary judgment is not authorized by the
Rules Governing Section 2255 Proceedings for the United States District Courts,
Petitioner’s motion is denied. See Ramos v. United States, No. 09cv7938 (SAS), 2010 WL
2670823, at *1 (S.D.N.Y. July 2, 2010) (“This Court is unaware of any case where
summary judgment was used to grant a section 2255 motion in the petitioner’s favor.”).
Petitioner has also moved [Doc. # 36] “for the Court to disregard the Government’s . . .
rebuttal of the Plaintiff’s previous motion for summary judgment,” which is denied as
moot in light of the Court’s denial of Mr. Holland’s motion for summary judgment.
Petitioner has filed two other motions [Doc. ## 29, 37], seeking these same
Upon his release from custody, Petitioner sought [Doc. # 24] to convert his § 2255
motion into a writ of coram nobis, which has been specifically abolished by Fed. R. Civ. P.
60(e), but has been held available under the All Writs Act where “no other remedy [is]
available and sound reasons exist for failure to seek appropriate earlier relief.” United
States v. Morgan, 346 U.S. 502, 512 (1954). Because relief is available under § 2255 even
though he has been released because his petition was filed before his release, Petitioner’s
motion for a writ of coram nobis is denied.
Petitioner has also filed [Doc. # 28] a motion requesting that “the Court instruct
[former] U.S. Attorney [Fein] to contact Attorney Cramer and compel him to send all the
material he has pertaining to [the] criminal case” to Petitioner. Rule 6 of the Rules
Governing Section 2255 Proceedings for the United States District Courts requires that a
party requesting discovery “provide reasons for the request” and permits a court to
authorize discovery for “good cause.” Absent any showing of good cause or that the
Government has authority over the Attorney Cramer with regard to the requested
documents purportedly in his custody, Petitioner’s motion is denied.
Finally, on May 28, 2014, Petitioner moved [Doc. # 38] for appointment of
counsel, contending that “it has become very clear to the movant that he does not have
the skills or legal expertise to adequately pursue these actions.” “[T]he Constitution
guarantees . . . no right to counsel on habeas” petitions. Wright v. West., 505 U.S. 277,
293 (1992). However, under the Criminal Justice Act, a court has discretion to appoint
counsel in a § 2255 proceeding if “the interests of justice so require.”
In determining whether “the interests of justice” require the
appointment of counsel pursuant to § 3006A(a)(2), courts in this Circuit consider several
factors: “the petitioner’s likelihood of success on the merits; the complexity of the legal
issues raised by the petition; and the petitioner’s ability to investigate and present the
case.” Toron v. United States, 281 F. Supp. 2d 591, 593 (E.D.N.Y. 2003) (citing Hodge v.
Police Officers, 802 F.2d 58, 61–62 (2d Cir. 1986)).14 The appointment of counsel may be
denied where the Court determines that a petition is without merit and, on that basis,
Petitioner’s motion for the appointment of counsel is denied.
“It is within the district court’s discretion to determine whether a hearing is
warranted.” Pham v. United States, 317 F.3d 178, 184 (2d Cir. 2003). An evidentiary
hearing is not required where the record, taken together with the moving papers and any
exhibits or affidavits submitted, plainly demonstrates that the moving party is not entitled
to relief and the court concludes that the petitioner’s claims are truly without merit. 28
U.S.C. § 2255(b); United States v. Aiello, 900 F.2d 528, 534 (2d Cir. 1990). If material facts
are in dispute, a hearing should be held. See, e.g., Newfield v. United States, 565 F.2d 203,
207 (2d Cir. 1977) (noting the difference between the movant making a “bald allegation
of mental incompetence” with no evidentiary facts alleged and the movant raising
“detailed and controverted issues of fact”).
Because it is plain to the Court after examination of the record and briefing that
Mr. Holland’s petition lacks any meritorious claim, and there are no material facts to be
resolved, no evidentiary hearing is necessary.
If a court holds an evidentiary hearing on a § 2255 petition, Rule 8(c) of the
Rules Governing Section 2255 Proceedings requires the appointment of counsel.
Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence, for relief pursuant
to 28 U.S.C. § 2255 [Doc. # 1] is DENIED. Because Mr. Holland has failed to make a
substantial showing of the denial of a constitutional right, a certificate of appealability will
Petitioner’s motions [Doc. ## 16, 29, 28, 37] to compel are DENIED. Petitioner’s
Motion [Doc. # 33] for Summary Judgment is DENIED and Motion [Doc. # 36] to strike
the Government’s response is DENIED as moot. Petitioner’s motion [Doc. # 24] for a
writ of coram nobis is DENIED. Petitioner’s Motion [Doc. # 38] for Appointment of
Counsel is DENIED.
The Clerk is directed to close this case.
IT IS SO ORDERED.
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 30th day of June, 2014.
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