Chibuko v. USA
Filing
16
ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255) for the reasons set forth in the attached Memorandum of Decision. The Clerk is directed to close this case. Signed by Judge Vanessa L. Bryant on 03/09/2020. (Nault, James)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOEY CHIBUKO
v.
UNITED STATES OF AMERICA
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CIVIL CASE NUMBER
3:16-cv-02098 (VLB)
MARCH 9, 2020
MEMORANDUM OF DECISION DENYING
PETITION FOR RELIEF UNDER 28 U.S.C. § 2255 [ECF NOS. 1, 7]
Petitioner Joey Chibuko (“Mr. Chibuko” or “Petitioner”) brings this pro se
petition for habeas relief under 28 U.S.C. § 2255, asserting six ineffective
assistance of counsel claims against his counsel who represented him at trial,
during sentencing, and on appeal. [ECF Nos. 1, 7]. For the reasons discussed
herein, Mr. Chibuko’s Motion to Vacate, Set Aside, or Correct Sentence is
DENIED.
Background
On October 6, 2010, a federal grand jury in New Haven returned a ninecount indictment against Mr. Chibuko, charging him with one count of making a
false statement in a United States passport application, in violation of 18 U.S.C. §
1542 (Count One); two counts of social security fraud, in violation of 42 U.S.C. §
408(a)(7)(B) (Counts Two and Seven); two counts of identity fraud, in violation of
18 U.S.C. §§ 1028(a)(4) and (b)(1)(A)(ii) (Counts Three and Eight); three counts of
aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (Counts Four, Six
and Nine); and one count of making a false claim to United States citizenship, in
violation of 18 U.S.C. § 911 (Count Five). United States v. Chibuko, No. 3:10-cr00204 (VLB), [ECF No. 14] (D. Conn. Oct. 6, 2010).
These charges arose from a long and diverse series of criminal acts
committed by Mr. Chibuko over a period of 17 years in Nigeria, California,
Massachusetts, Florida, Rhode Island and Connecticut beginning with his
fraudulent application for a tourist visa to travel from Nigeria to the United States
in 1993 to his arrest in Connecticut in 2010 which resulted in pecuniary harm
estimated to be $867,873.36.1
On March 4, 1993, Mr. Chibuko entered the United States on a fraudulent
tourist visa. Within months of his arrival, Mr. Chibuko fraudulently induced the
issuance of a social security card and a series of driver’s licenses. On December
31, 1993, feigning love, he fraudulently induced an American citizen to marry him
in order to remain in the country. On October 19, 1994, Mr. Chibuko submitted a
fraudulent birth certificate in support of his application for legal residency. On
October 31, 1996, Mr. Chibuko was arrested by the Oakland Police Department
and charged with credit card theft offenses stemming from his use of credit cards
issued in the names of California hospital patients whose identities he had stolen.
A warranted search of Mr. Chibuko’s residence yielded identification documents
of others, credit cards in other people’s names, social security cards, social
security numbers not assigned to Mr. Chibuko, and forged Nigerian identification
documents.
Notably, as discussed below, these are the types of documents
1
These facts are taken in part from an Order of the Court in Mr. Chibuko’s
criminal case, from whence this habeas appeal stems, United States v. Chibuko,
3:10-cr-00204 (VLB), [ECF No. 135 at 2-6] (D. Conn. Feb. 24, 2015). These facts are
reiterated here for completeness.
2
seized from Mr. Chibuko’s home incident to his arrest in Connecticut more than a
decade later.
In the face of these charges, Mr. Chibuko fled to Massachusetts in violation
of the conditions of his bond, abandoning his wife. Before leaving California Mr.
Chibuko fraudulently obtained a California identification card and created a
counterfeit social security card both in the name of a person whose identity he
had stolen.
Once in Massachusetts Mr. Chibuko embarked upon a new identity theft
scheme. He used the fraudulent California identity documents and exploited the
affections of another female victim to obtain a position where he again had
access to the identification documents of vulnerable individuals as an employee
of the Greater Lynn Mental Health and Retardation Association (“Greater Lynn
Mental Health”). To conceal his identity and the identity theft he was planning he
fraudulently obtained a Massachusetts identification card using a stolen identity
and two Massachusetts driver’s licenses using stolen identities.
One of the
identities stolen was that of a developmentally delayed man, Steven Raymond
Buckley, who was a resident of Greater Lynn Mental Health.
Mr. Chibuko relocated to Connecticut after committing an assault on his
second female victim and violating a restraining order in Massachusetts, for
which he was arrested under an assumed name. Beginning in January 2002, he
obtained jobs in Connecticut caring for vulnerable victims using multiple stolen
identities, fraudulently obtained identity information including social security
numbers, birth certificates, licenses, voter registration cards, and a United States
3
passport. Mr. Chibuko was terminated from one of these jobs for fraudulently
representing that he provided patient services he did not provide. In addition, he
voted and traveled internationally using the fraudulent identification documents.
Mr. Chibuko fraudulently purchased real estate with loans from federally
insured financial institutions in Connecticut, Rhode Island and Florida, leased an
apartment, obtained unemployment benefits including benefits while he was in
detention, and incurred debts, which he did not pay, in the name of the mentally
challenged former Massachusetts victim, Steven Raymond Buckley.
Mr. Chibuko used fraudulent identity documents to arrange for a woman to
enter the country illegally. After her arrival in the United States the woman gave
birth to children who are American citizens.
At the time of his arrest in
Connecticut, law enforcement seized a myriad of fraudulent and counterfeit
identity documents. The large number of identity documents seized together with
Mr. Chibuko’s prior conduct suggest that Mr. Chibuko was creating and
trafficking in counterfeit and stolen identity documents.
On September 9, 2010, Mr. Chibuko was arrested pursuant to a criminal
complaint charging him with making a false statement in a United States passport
application, in violation of 18 U.S.C. § 1542. United States v. Chibuko, No. 3:10-cr00204 (VLB), [ECF No. 1] (D. Conn. Sept. 9, 2010).
On October 6, 2010, a federal grand jury returned a nine-count indictment
against Mr. Chibuko, charging him with one count of making a false statement in
a United States passport application, in violation of 18 U.S.C. §1542; two counts
of social security fraud, in violation of 42 U.S.C. § 408(a)(7)(B); two counts of
4
identity fraud, in violation of 18 U.S.C. §§ 1028(a)(4) and (b)(1)(A)(ii); one count of
making a false claim, in violation of 18 U.S.C. § 911; and three counts of
aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). Id., [ECF No. 14].
A jury trial commenced on May 19, 2011.
Id., [ECF No. 72].
Notwithstanding an abundance of overwhelming unimpeachable evidence to the
contrary, Mr. Chibuko persisted in his charade throughout trial proceedings,
including at sentencing, insisting that he was the person whose identity he had
assumed when he fled Massachusetts, Steven Raymond Buckley.
The defendant’s three primary victims appeared and testified to the harm
they suffered. They were the disabled resident of Greater Lynn Mental Health
whose identity he had stolen and whose credit he all but destroyed, his
abandoned wife who traveled from California and testified that she truly believed
he married her for love, and his former girlfriend from Massachusetts who he
used to secure his position at Greater Lynn Mental Health and whom he assaulted
and abandoned. Each testified passionately about the emotional pain and anxiety
they suffered as a result of the defendant’s conduct while the defendant looked
on passively.
On May 24, 2011, the jury returned a unanimous verdict of guilty on all nine
counts. Id., [ECF No. 81].
Mr. Chibuko’s sentencing hearing was held on December 20, 2011.
Id.,
[ECF No. 108]. The Court imposed the following sentence: concurrent 96-month
terms on the counts of making a false statement in a passport application (count
one) and identity fraud (counts three and eight); concurrent 36-month terms on
5
the counts of Social Security fraud (counts two and seven) and making a false
claim to U.S. citizenship (count five); and consecutive 24-month terms on each of
the three counts of aggravated identity theft (counts four, six, and nine). This
resulted in a total sentence of imprisonment of 168 months. Mr. Chibuko was
also sentenced to a term of supervised release of three years, and to a $25,000
fine that was to be suspended unless Mr. Chibuko entered the United States
illegally after serving his sentence and being deported. Id., [ECF No. 110].
At sentencing, the court calculated Mr. Chibuko’s total offense level as 28.
This calculation included a base offense level of 6, a fourteen-level enhancement
for the loss amount a two-level enhancement for relocation of the fraudulent
scheme, a two-level enhancement for a vulnerable victim, a two-level
enhancement for an abuse of a position of trust, and a two-level enhancement for
obstruction of justice, in that Mr. Chibuko continued his identity charade when
being interviewed by the Probation Office prior to sentencing. Id., [ECF No. 115
(Sentencing Transcript) at 1-16].
Mr. Chibuko appealed to the Second Circuit on a number of grounds,
including some of the grounds presented in the instant Petition. The Second
Circuit reversed the sentence because the Court did not discuss the groupability
of two of Mr. Chibuko’s offenses. United States v. Chibuko, 744 F.3d 259, 267 (2d
Cir. 2014).
It found the remainder of Mr. Chibuko’s numerous claims, both
counseled and pro se, to be “without merit.”
Id.
On remand, the Court
considered groupability and resentenced Mr. Chibuko to the same sentence.
United States v. Chibuko, 3:10-CR-00204 (VLB), [ECF No. 135] (Feb. 24, 2015). On
6
July 17, 2015, the Second Circuit affirmed the judgment of the Court. United
States v. Chibuko, 617 F. App’x 82 (2d Cir. 2015).
On December 19, 2016, Mr. Chibuko petitioned pursuant to 18 U.S.C. § 2255
to vacate, set aside, or correct his conviction and sentence. Chibuko v. United
States, No. 3:16-cv-2098, [ECF No. 1] (D. Conn. Dec. 19, 2016). On December 5,
2017, Mr. Chibuko moved to supplement his Petition to Vacate, Set Aside or
Correct Sentence.
[ECF No. 7].2
On February 21, 2018, the Government
responded to Mr. Chibuko’s original and supplemental petitions. [ECF No. 10].
Mr. Chibuko filed a response to the Government’s Opposition on April 11, 2018.
[ECF No. 12].
Mr. Chibuko’s petition and supplement raise six ineffective assistance of
counsel claims: (1) trial counsel was ineffective for failing to object to the
impaneling of Juror Number 13, [ECF No. 1 at 2-6]; (2) sentencing counsel was
ineffective for failing to object to the obstruction of justice sentencing
enhancement, id. at 6-11; (3) appellate counsel was ineffective for failing to argue
that the sophisticated means enhancement should not have been applied, id. at
11-16; (4) trial counsel was ineffective for failing to introduce documents that
would show that Mr. Chibuko really was Steven Raymond Buckley, not Joey
Chibuko, id. at 16-18; (5) trial counsel was ineffective for not calling Mr. Chibuko
to testify in his defense, [ECF No. 7 at 4-6]; and (6) sentencing counsel was
ineffective for not requesting a below-guidelines range sentence. Id. at 6-7.
The Court granted Mr. Chibuko’s Motion to Supplement his Petition on February
19, 2019. [ECF No. 14].
2
7
Legal Standard
Section 2255 enables a prisoner in federal custody to petition a federal
court to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). Relief
under Section 2255 is generally available to rectify three irregularities, namely
“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 complete miscarriage of justice.” Graziano v. United States, 83 F.3d 587, 590
(2d Cir. 1996) (internal quotation marks and citation omitted). The strictness of
this standard embodies the recognition that collateral attack upon criminal
convictions is “in tension with society’s strong interest in [their] finality.” Ciak v.
United States, 59 F.3d 296, 301 (2d Cir. 1995).
Claims for ineffective assistance of counsel are analyzed under the twopart test established in Strickland v. Washington, 466 U.S. 668 (1984). To prevail,
a movant must both allege facts demonstrating that “counsel’s representation fell
below an objective standard of reasonableness” 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 687–88, 694.
As to the first
showing, a movant must demonstrate that counsel’s performance “amounted to
incompetence under ‘prevailing professional norms’” rather than demonstrating
that the performance “deviated from best practices or most common custom.”
Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 690).
As to the second showing, a movant must demonstrate “a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
8
The Strickland standard “is rigorous, and the great majority of habeas
petitions that allege constitutionally ineffective counsel founder on that
standard.” Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007) (quoting Linstadt v.
Keane, 239 F.3d 191, 199 (2d Cir. 2001)). “The court’s central concern is not with
‘grad[ing] counsel’s performance,’ but with discerning ‘whether, despite the
strong presumption of reliability, the result of the particular proceeding is
unreliable because of a breakdown in the adversarial process that our system
counts on to produce just results.’” United States v. Aguirre, 912 F.2d 555, 561
(2d Cir. 1990) (quoting Strickland, 466 U.S. at 696-97) (internal citations omitted).
The Supreme Court has cautioned courts about the application of the
Strickland test:
Surmounting Strickland’s high bar is never an easy task. An
ineffective-assistance claim can function as a way to escape rules of
waiver and forfeiture and raise issues not presented at trial, and so
the Strickland standard must be applied with scrupulous care, lest
intrusive post-trial inquiry threaten the integrity of the very adversary
process the right to counsel is meant to serve. . . . [T]he standard for
judging counsel’s representation is a most deferential one. Unlike a
later reviewing court, the attorney observed the relevant
proceedings, knew of materials outside the record, and interacted
with the client, with opposing counsel, and with the judge. It is all too
tempting to second-guess counsel’s assistance after conviction or
adverse sentence. . . . The question is whether an attorney’s
representation amounted to incompetence under prevailing
professional norms, not whether it deviated from best practices or
most common custom.
Harrington v. Richter, 562 U.S. 86, 105 (2011) (internal citations and
quotation marks omitted); see also Cullen v. Pinholster, 563 U.S. 170, 195 (2011)
(holding that lower court had “misapplied” Strickland, failed to apply the “strong
presumption of competence that Strickland mandates,” and “overlooked the
9
constitutionally protected independence of counsel and the wide latitude counsel
must have in making tactical decisions.”) (internal quotation marks and ellipse
omitted).
Furthermore, a habeas petitioner generally may obtain review of his claims
only if he has raised them at trial and on direct appeal. See Zhang v. United
States, 506 F.3d 162, 166 (2d Cir. 2007) (“In general, a claim may not be presented
in a habeas petition where the petitioner failed to properly raise the claim on
direct review.”); Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992)
(“[F]ailure to raise a claim on direct appeal is itself a default of normal appellate
procedure, which a defendant can overcome only by showing cause and
prejudice.”). This rule is rooted in several core concerns: the finality of
judgments, the accuracy and integrity of prior proceedings, and the interests of
judicial economy. Id. As the Second Circuit noted, “collateral review of
convictions ‘places a heavy burden on scarce judicial resources, may give
litigants incentives to withhold claims for manipulative purposes, and may create
disincentives to present claims when evidence is fresh.’” Id. (quoting Keeney v.
Tamayo Reyes, 504 U.S. 1, 7 (1992)).
“Cause under the cause and prejudice test must be something external to
the petitioner, something that cannot fairly be attributed to him.” Coleman v.
Thompson, 501 U.S. 722, 753 (1991) (emphasis in original). “[T]he existence of
cause for a procedural default must ordinarily turn on whether the prisoner can
show that some objective factor external to the defense impeded counsel’s
10
efforts to comply with the . . . procedural rule.” Id. (quotation marks omitted)
(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).
Any sentencing claim, which is raised for the first time on habeas review,
should be denied on the grounds of procedural default. For a court to review a
procedurally defaulted claim, the petitioner must show both “cause” for the
default of each claim and “prejudice” that resulted from the alleged violation. See
Ciak, 59 F.3d at 302. A writ of habeas corpus will not be allowed to do service for
an appeal. See Reed v. Farley, 512 U.S. 339, 354 (1994) (“[w]here the petitionerwhether a state or federal prisoner-failed properly to raise his claim on direct
review, the writ is available only if the petitioner establishes ‘cause’ for the waiver
and shows ‘actual prejudice from the alleged . . . violation’”) (quoting Wainwright
v. Sykes, 433 U.S. 72, 84 (1977)).
“A [petition for habeas relief] may not relitigate issues that were raised and
considered on direct appeal.” United States v. Perez, 129 F.3d 255, 260 (2d Cir.
1997) (declining to review plea withdrawal claim that had already been argued on
appeal because petitioner was “rehash[ing] the same arguments here.”); RiascosPrado v. United States, 66 F.3d 30, 33 (2d Cir. 1995) (“It is clear that ‘section 2255
may not be employed to relitigate questions which were raised and considered on
direct appeal.’”) (quoting Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992)).
This “so-called mandate rule bars re-litigation of issues already decided on direct
appeal.” Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010). “The mandate rule
prevents re-litigation in the district court not only of matters expressly decided by
the appellate court, but also precludes re-litigation of issues impliedly resolved
11
by the appellate court’s mandate.” Id.; see also United States v. Ben Zvi, 242 F.3d
89, 95 (2d Cir. 2001).
“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) (holding that
even where factual issues may exist, Second Circuit precedent permits a “middle
road” of deciding disputed facts on the basis of written submissions); see also
Johnson v. Fogg, 653 F.2d 750, 753 (2d Cir. 1981) (holding that district court was
not required to provide a hearing to a pro se litigant who did not raise issues
sufficient to warrant a hearing).
Analysis
Mr. Chibuko brings six ineffective assistance of counsel claims arising out
of his counsel’s actions during trial, sentencing, and appeal.
The Court
addresses each claim in turn.
I.
Trial Counsel’s Failure to Object to the Impaneling of Juror Number 13
Mr. Chibuko first argues that his trial counsel was ineffective for failing to
object to the impaneling of Juror No. 13 because this juror “expressed an inability
to objectively determine guilt and innocence in cases where the defendant did not
testify.” [ECF No. 1 at 4]. “At best,” according to Mr. Chibuko, “the juror stated
that he ‘probably’ would be able to follow an instruction regarding the
defendant’s failure to testify.” Id. Mr. Chibuko claims that his trial counsel’s
failure to object to this juror “was objectively unreasonable” because the juror in
question “was quite clear in his inability of [sic] issue judgment free of prejudice
and bias should the Petitioner exercise his constitutional right not to testify.” Id.
12
at 5-6. Mr. Chibuko argues that this prejudiced him because his “conviction, at
least as to juror number 13, rested not upon the evidence presented at trial, but
upon the pre-disposition of the juror to find the Petitioner guilty.” Id. at 6.
The Government argues that the mandate rule bars the Court from even
considering Mr. Chibuko’s argument regarding Juror No. 13 because Mr. Chibuko
raised this issue on appeal and the Second Circuit found the argument meritless.
[ECF No. 10 at 13].
On direct appeal, in his supplemental pro se appeal brief, Mr. Chibuko
argued that because Juror No. 13 stated that he “would be inclined to
‘automatically vote guilty’ if [Mr. Chibuko] did not take the stand,” the Court
“erred in bowing to the government’s argument to have [Juror No. 13] seated.”
Supplemental Pro Se Brief of Appellant at 3-6, United States v. Chibuko, No. 1239, [ECF No. 92] (2d Cir. Apr. 4, 2013). In ruling on Mr. Chibuko’s appeal, the
Second Circuit, as discussed, reversed so that the Court could consider the
groupability of Mr. Chibuko’s individual sentences. In discussing Mr. Chibuko’s
other arguments for reversal, the Second Circuit stated: “We have considered all
of Chibuko’s arguments, both counseled and pro se, and except as indicated
above, find them to be without merit.”
Chibuko, 744 F.3d at 267 (emphasis
added).
Thus, because the Second Circuit already ruled on Mr. Chibuko’s first claim
for relief regarding Juror No. 13, denying it, the Court must follow the mandate
rule and deny this claim as well. Mui, 614 F.3d at 53-54 (“In the context of Section
2255 proceedings involving claims of ineffective assistance of counsel, we have
13
applied the mandate rule to bar claims raised and resolved on direct appeal
[including] when the factual predicates of those claims . . . were . . rejected by the
appellate court mandate.”). In short, Mr. Chibuko’s trial counsel could not have
been ineffective for failing to object to Juror No. 13 when the Second Circuit
found no fault with the impaneling of this juror.
Moreover, as the cases Mr. Chibuko cites in his supplemental pro se appeal
brief make clear, “once the proper questions have been asked at voir dire, ‘the
trial court, when impaneling a jury, has broad discretion on challenges therefor.’”
United States v. Torres, 128 F.3d 38, 44 (2d Cir. 1997) (quoting United States v.
Haynes, 398 F.2d 980, 984 (2d Cir. 1968)). This is because the “determinations of
demeanor and credibility . . . are peculiarly within a trial judge’s province,” and a
trial judge is “in the best position to evaluate the juror’s demeanor and to
determine, by the juror’s answers to the judge’s questions, whether he could
fairly and impartially hear the case and return a verdict based solely on the
evidence presented in court.” Id. (quoting Wainwright v. Witt, 469 U.S. 412, 428
(1985) and United States v. Ploof, 464 F.2d 116, 118 (2d Cir. 1972)). “There are few
aspects of a jury trial where we would be less inclined to disturb a trial judge’s
exercise of discretion, absent clear abuse, than in ruling on challenges for cause
in the empanelling of a jury.” Id. (quoting Ploof, 464 F.2d at 118-19 n.4).
Here, Mr. Chibuko concedes that the “proper questions” were asked at voir
dire but takes issue with the Court’s exercise of discretion in seating Juror No.
13. Because the Court was satisfied that Juror No. 13 could fairly and impartially
hear the case and return a verdict based solely on the evidence presented in
14
court, Mr. Chibuko’s argument that his trial counsel was ineffective for failing to
object to Juror No. 13’s impaneling is meritless. This is especially so given Juror
No. 13’s assurance, after having the defendant’s right not to testify explained to
him, that he could be impartial:
THE COURT: Yes. But if that thought came to your mind, if you’re
sitting there and you’re saying to yourself, you know, why didn’t he
testify, would the little voice then say to you I can’t consider that.
The only thing I can consider is whether the evidence presented
proves him guilty beyond a reasonable doubt. And can you put that
aside, can you assure us that even though you may feel that way,
you can put it aside and follow the instruction?
JUROR #13: Yeah, I think I could. When you put it like that, when
you explain it that way, yeah, I think I could.
[Defense Counsel]: I have no other questions.
United States v. Chibuko, No. 3:10-cr-00204 (VLB), [ECF No. 128 (Jury Selection
Transcript at 46)].
The Court assumes the jury follows the court’s instructions.
Weeks v.
Angelone, 528 U.S. 225, 234 (2000) (“A jury is presumed to follow its
instructions.”); United States v. Stewart, 590 F.3d 93, 124 (2d Cir. 2009) (“Juries
are presumed to follow their instructions.”) (quoting United States v. Salemeh,
152 F.3d 88, 116 (2d Cir. 1998)). The Court clearly instructed the juror he could
not allow the fact that Mr. Chibuko did not testify to affect his thinking, and there
is nothing in the record which suggests the juror did not follow the Court’s
instruction. The Court therefore assumes he did follow the Court’s instructions
and therefore there is no basis to challenge seating Juror 13.
In light of Juror No. 13’s professed impartiality it was not ineffective for
defense counsel to fail to object to his presence on the jury. Even if it were,
15
seating Juror 13 does not undermine confidence in Chibuko’s conviction because
there is no basis to suggest he did not follow the court’s instruction.
Mr. Chibuko’s first ineffective assistance of counsel claim is DENIED.
II.
Sentencing Counsel’s Failure to Object to the Obstruction of Justice
Sentencing Enhancement
Mr. Chibuko next asserts that his sentencing counsel should have objected
to the obstruction of justice sentencing enhancement because Mr. Chibuko
“maintained his version of events as presented at trial when interviewed by the
Probation Office” prior to sentencing, which “did not impede sentencing in any
way,” and because “imposition of the enhancement was for the exact same
conduct for which the base offense level had been issued.” [ECF No. 1 at 8]. Mr.
Chibuko also argues that because he did not testify at trial, “it can not now be
stated that the Petitioner committed perjury in testifying, or that maintaining
[before the Probation Office] the version of events put forth at trial some how
impeded the administration of justice.” Id. at 10. Because of this, according to
Mr. Chibuko, his sentencing counsel was ineffective for failing to object to the
obstruction of justice sentencing enhancement, and he was prejudiced “in that he
was denied the opportunity to receive a sentence based only upon the fair
application of the Sentencing Guidelines.” Id. at 10-11.
The Government argues, as before, that because Mr. Chibuko’s claim
regarding the impropriety of the obstruction of justice sentencing enhancement
was raised on direct appeal, and denied, the Court must follow the mandate rule
and deny Mr. Chibuko’s claim. [ECF No. 10 at 13]. The Court agrees with the
Government.
16
In his pro se appeal brief, Mr. Chibuko argued that the Court “treated his
denial of guilt as tantamount to obstruction of justice,” which, according to Mr.
Chibuko, was “reversible error under Dunnigan.” Pro Se Supplemental Brief of
Appellant at 20, United States v. Chibuko, No. 12-39, [ECF No. 73] (2d Cir. Feb. 28,
2013) (citing United States v. Dunnigan, 507 U.S. 87 (1993)). As noted, other than
the groupability of Mr. Chibuko’s claims, all of Mr. Chibuko’s issues raised on his
direct appeal were denied.
“We have considered all of Chibuko’s arguments,
both counseled and pro se, and except as indicated above, find them to be
without merit.” Chibuko, 744 F.3d at 267 (emphasis added).
Thus, because the Second Circuit already ruled on Mr. Chibuko’s second
claim for relief regarding the obstruction of justice sentencing enhancement,
denying it, the Court must follow the mandate rule and deny this claim as well.
Mui, 614 F.3d at 53-54. In short, Mr. Chibuko’s sentencing counsel could not have
been ineffective for failing to object to the obstruction of justice sentencing
enhancement when the Second Circuit found no fault with the Court applying it.
Moreover, Mr. Chibuko’s argument that he was simply “maintain[ing] his
version of events as presented at trial when interviewed by the Probation Office,”
which “did not impede sentencing in any way,” [ECF No. 1 at 8], is meritless. Mr.
Chibuko lied to the Probation Office when he was interviewed pre-sentencing,
maintaining the charade that he was Steven Raymond Buckley, in an apparent
attempt to have his sentence reduced or eliminated. That is classic obstruction
of justice, and as Mr. Chibuko’s cited Dunnigan case makes clear, “a defendant’s
17
right to testify does not include a right to commit perjury.” Dunnigan, 507 U.S. at
96.
Mr. Chibuko’s second ineffective assistance of counsel claim is DENIED.
III.
Appellate Counsel’s Failure to Object to the Sophisticated Means
Sentencing Enhancement
Mr. Chibuko argues that his appellate counsel was ineffective because he
failed to argue on appeal that the sophisticated means sentencing enhancement
should not have issued.
That enhancement was improper, according to Mr.
Chibuko, because it was based on Mr. Chibuko “fle[eing] from several
jurisdictions while continuing to engage in fraudulent activity, us[ing] several
social security numbers, and l[ying] while assuming multiple identities,” which
were “facts that simply do not meet the standard as being ‘sophisticated.’” [ECF
No. 1 at 13]. He also notes that he was “so unsophisticated that he attempted to
assume the identity of a white U.S. citizen, while he was a black Nigerian citizen,”
and that he “was so un-sophisticated as to believe that American citizens simply
chose their social security number.” Id. Mr. Chibuko states that courts applying
this enhancement normally do so for sophisticated criminal activities such as
“the practice of hiding assets through the use of fictitious entities or offshore
accounts.” Id. at 14. Mr. Chibuko argues that in failing to argue the impropriety
of the sophisticated means enhancement on appeal, and instead raising “more
supported enhancements,” Mr. Chibuko’s appellate counsel was ineffective.
The Government responds that this ineffective assistance of counsel claim
is not properly before this Court because it was raised and denied on appeal; the
mandate rule thus dictates that the Court deny it as well.
18
In addition, the
Government argues that the Court did not apply the sophisticated means
enhancement.
Rather, according to the government, the Court applied the
“enhancement for relocation of the fraud scheme.” [ECF No. 10 at 13 n.3].
The Court first notes that Mr. Chibuko’s argument that his appellate
counsel was ineffective for failing to raise Mr. Chibuko’s sophisticated means
enhancement is meritless because Mr. Chibuko himself raised the sophisticated
means sentencing enhancement’s impropriety on appeal.
See Pro Se
Supplemental Brief of Appellant at 20, United States v. Chibuko, No. 12-39, [ECF
No. 73] (2d Cir. Feb. 28, 2013):
THE DISTRICT COURT ERRED IN APPLYING AN ENHANCEMENT
UNDER U.S.S.G. § 2B1.1(b)(10)(C) FOR SOPHISTICATED MEANS.
Appellant’s alleged offenses were not especially complex when
compared with the, way these crimes are usually committed. The
commentary to § 2B1.1(b)(1)(C) defines sophisticated means as
‘especially complex or especially intricate offense conduct
pertaining the execution or concealment of an offense.’
§
2B1.1(b)(10)(C) cmt, n. 8. Absolutely no such sophistication was
employed here. See United States v. Cole, 496 F.3d 188 (2nd Cir.
2007).
Id.
Thus, his argument that he deserves relief because his counsel did not
object to the obstruction of justice sentencing enhancement is a red herring
because Mr. Chibuko’s appellate counsel could not have been ineffective for
failing to raise an issue on appeal that Mr. Chibuko himself raised.
In addition, the Court also agrees with the Government that the mandate
rule requires the Court to deny this claim because it was raised and denied on
appeal. In his pro se supplemental appeal brief, as quoted above, Mr. Chibuko
argued that the sophisticated means sentencing enhancement was improperly
19
applied. Id. And, as noted, other than the groupability of Mr. Chibuko’s claims,
all of Mr. Chibuko’s issues raised on appeal were denied. “We have considered
all of Chibuko’s arguments, both counseled and pro se, and except as indicated
above, find them to be without merit.”
Chibuko, 744 F.3d at 267 (emphasis
added).
Thus, because the Second Circuit already ruled on Mr. Chibuko’s third
claim for relief regarding the sophisticated means sentencing enhancement,
denying it, the Court must follow the mandate rule and deny this claim as well.
Mui, 614 F.3d at 53-54. In short, Mr. Chibuko’s appellate counsel could not have
been ineffective for failing to object to the sophisticated means sentencing
enhancement when the Second Circuit found no fault with applying it.
Moreover,
Mr.
Chibuko’s
argument
that
the
sophisticated
means
sentencing enhancement was improperly applied is meritless because, as the
Government
argues,
the
sentencing enhancement
applied was
not
for
sophisticated means but was, rather, for relocation of the fraudulent scheme to
evade law enforcement. [ECF No. 10 at 13 n.3].
The Supplemental PSR had the following language: “Specific Offense
Characteristics: Because the defendant relocated the fraudulent scheme to evade
law enforcement, and because the offense otherwise involved sophisticated
means, two levels are added pursuant to §2B1.1(b)(10).” Supplemental PSR at 2,
[ECF No. 106], 3:10-cr-00204 (VLB). Thus, it is clear that the enhancement was
applied primarily because of part A of the associated guideline, which reads that
the enhancement applies “If the defendant relocated, or participated in relocating,
20
a fraudulent scheme to another jurisdiction to evade law enforcement or
regulatory officials,” U.S. Sentencing Guidelines Manual § 2B1.1(b)(10)(A) (2011).
Part C provides an alternate route to applying the enhancement, namely, if the
defendant used “sophisticated means.” Id. § 2B1.1(b)(10)(C). Here, it was clear
that Mr. Chibuko did relocate his fraudulent scheme from California to
Massachusetts to Connecticut, each time to evade law enforcement.
Thus,
application of the enhancement was proper under Part A., and Mr. Chibuko’s
appellate counsel could not have been ineffective for not raising a challenge it on
appeal, because Mr. Chibuko did raise such a challenge on appeal, and doing so
would not likely have been successful.
Mr. Chibuko’s third ineffective assistance of counsel claim is DENIED.
IV.
Trial Counsel’s Failure to Introduce Documentation Demonstrating
that Mr. Chibuko did not Commit Aggravated Identity Theft
Mr. Chibuko argues that his trial counsel was ineffective because he failed
to introduce into evidence a copy of Mr. Chibuko’s “Nigerian passport listing his
name as ‘Stephen Buckley’” and “a 1986 document from Nigeria regarding a
declaration of age for the Petitioner.”
[ECF No. 1 at 18].
This was deficient
performance by Mr. Chibuko’s trial counsel, according to Mr. Chibuko, because
“[t]hese documents indicate that the Petitioner is who he purports to be, and did
not engage in a knowing theft of another’s identification.” Id. Thus, “counsel’s
failure to introduce such evidence rendered his performance below any objective
standard of reasonableness” because he “failed to introduce evidence that would
have demonstrated [Mr. Chibuko’s] innocence.”
21
Id.
Mr. Chibuko argues that
counsel’s failure was prejudicial because Mr. Chibuko was as a result “found
guilty of a crime that he did not commit.” Id.
The Government argues that Mr. Chibuko cannot show prejudice because
even if his trial counsel refused to offer into evidence the two documents Mr.
Chibuko describes, as explained by this Court at sentencing, the evidence at trial
that Chibuko was guilty of aggravated identity theft was overwhelming. [ECF No.
10 at 12 n.2].
Even if trial counsel had offered these documents into evidence, the other
evidence adduced at trial would have been more than sufficient to overcome their
probity and permit a prudent jury to find Mr. Chibuko guilty of aggravated identity
theft.
This is especially true because the credibility of those documents was
easily impeachable. The jury heard unrefuted testimony and saw visual evidence
that at the time of his arrest, Mr. Chibuko was in constructive, if not actual,
possession of forged identity documents. They also heard testimony he used
varying identity documents on a trip to Nigeria, as well as saw the passport he
used to enter the country and the different passport he used to leave the country.
Mr. Chibuko’s trial counsel’s allegedly deficient performance could not have been
prejudicial to Mr. Chibuko, which is the second requirement under Strickland.
Moreover, Mr. Chibuko concedes that he was guilty of aggravated identity
theft in his habeas Petition.
In arguing that the “sophisticated means”
sentencing enhancement was improper, Mr. Chibuko argues that evidence of the
simplistic nature of his crimes is demonstrated, in part, by him being “so
unsophisticated that he attempted to assume the identity of a white U.S. citizen,
22
while he was a black Nigerian citizen.” [ECF No. 1 at 13]. In short, Mr. Chibuko
admits in the instant Petition that he committed identity theft; thus, his trial
counsel could not have been ineffective for not introducing documents that
allegedly show that he did not.
Mr. Chibuko misconstrues the import of sophisticated means. It does not
mean a brilliantly conceived offense as he assumes. Were that its connotation
the enhancement would never be applied because the perpetrator would never be
caught.
In the same context presented here, the Seventh Circuit explained
sophisticated does not mean intelligent. The sophisticated means enhancement
applies when there is a greater level of planning or concealment than the usual
tax evasion case. United States v. Kontny, 238 F.3d 815, 821 (7th Cir. 2001) (“In
light of its purpose and context, we think ‘sophistication’ must refer not to the
elegance, the ‘class,’ the ‘style’ of the defrauder-the degree to which he
approximates Cary Grant-but to the presence of efforts at concealment that go
beyond . . . the concealment inherent in tax fraud.”) Here, Chibuko’s identity theft
scheme spanned from Nigeria to California, Massachusetts, Connecticut and
back to Nigeria. It involved multiple victims, including a vulnerable victim and
impressionable women, as well as state and federal governments, financial
institutions, and healthcare employers. It persisted for many years and included
immigration fraud, financial fraud, and social security fraud. Its duration, scope
and depth was far greater than the typical identity theft offence. Mr. Chibuko
repeatedly identified victims, exploited their vulnerabilities, and executed plans to
23
take advantage of them to conceal his true identity and assume that of others to
avoid detection.
Mr. Chibuko’s fourth ineffective assistance of counsel claim is DENIED.
V.
Trial Counsel’s Failure to Call Mr. Chibuko to Testify in His Own Defense
Mr. Chibuko argues that his trial counsel was ineffective because he failed
to call Mr. Chibuko to testify in his own defense. Such testimony would have
“created a reasonable doubt in the mind of the jury as to the government theory
of the case as to whether Mr. Chibuko knew that the name ‘Stephen Buckley’ was
not his real name since he was also known by that name, and the name Stephen
Buckley was recognized in [an] official Nigerian government document.” [ECF
No. 7 at 4].
Mr. Chibuko acknowledges that the Second Circuit has followed the lead of
other circuits in holding that “absent something in the record suggesting a
knowing waiver [of the right to testify], silence alone cannot support an inference
of such a waiver.” [ECF No. 12 at 3-4 (quoting Chung v. United States, 250 F.3d
79 (2d Cir. 2000))]. Thus, Mr. Chibuko asserts his ineffective assistance claim is
not procedurally defaulted. Id.
As an initial matter, the Government argues that this claim is procedurally
barred because Mr. Chibuko fails to explain why he did not raise this claim on
direct appeal.
[ECF No. 10 at 11].
On this basis alone the claim could be
dismissed. However, another stronger basis exists as well.
Mr. Chibuko knowingly and intelligently waived his right to testify. Id. at 12
n.2 (citing May 23, 2011 Trial Transcript at 3-4). Mr. Chibuko’s decision not to
24
testify at trial was made after thoughtful deliberation and was his alone. At trial,
the following colloquy occurred:
THE COURT: Okay. Then is Mr. Chibuko going to testify.
MR. RICCIO3: Your Honor, after meeting with Mr. -- with Defendant
over the weekend at Wyatt yesterday, we spoke for three hours.
After that consultation, the Defendant has elected not to testify[.]
THE COURT: Will the Defense be offering any other evidence?
MR. RICCIO: The Defense will not be offering any other evidence.
THE COURT: All right.
MR. MATTEI: And, Your Honor, if I may, I would just request that -whether it be now or at some recess, that the Court personally
canvas the Defendant and make sure that he understands that the
decision to testify is his, so that the record is clear that this decision
is being voluntarily made by him.
THE COURT: Mr. Chibuko.
THE DEFENDANT: Yes, Your Honor?
THE COURT: Is it your intent not to testify, sir?
THE DEFENDANT: Yes, Your Honor.
...
THE COURT: And have you discussed this with your attorney?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you have any questions or concerns about this
decision? Do you need more time to consider it?
THE DEFENDANT: No, Your Honor.
THE COURT: Are you satisfied with the legal advice you received
concerning this decision?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You understand that you have the right to testify?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And you do understand that if you choose not to it
testify, I will instruct the jury that they cannot hold against you, the
fact that you did not testify, and assume that you’re guilty simply
because you didn't testify?
THE DEFENDANT: Yes, Your Honor.
MR. MATTEI: Thank you, Your Honor.
THE COURT: You're welcome.
No. 3:10-cr-00204 (VLB), [ECF No. 121 at 3-5].
3
Attorney Riccio was defense counsel and Attorney Mattei was counsel for the
Government.
25
Thus, it is clear that trial counsel did not fail to call Mr. Chibuko to testify.
After being advised of his rights by his attorney, canvased by the court, and after
representing to the court he had sufficient time to consider his options, Mr.
Chibuko stated on the record he and he alone made the decision not to testify.
Mr. Chibuko’s fifth ineffective assistance of counsel claim is DENIED.
VI.
Sentencing Counsel’s Failure to Request a Below-Guidelines Sentence
Mr. Chibuko argues that his base offense level was 6, and that his loss
enhancement of 14, which raised his offense level to 20, caused “a more than
three-fold increase” in offense level. [ECF No. 7 at 6-7]. Mr. Chibuko argues that
“where the sentencing commission assigned a rather low base offense level to a
crime and then increases it significantly by a loss enhancement, that combination
of circumstances entitles a sentencing judge to consider a non-guidelines
sentence.” Id. at 7 (emphasis in original). Therefore, Mr. Chibuko argues, his
sentencing counsel was ineffective for failing to request the Court to consider
reducing his sentence to a non-guidelines sentence. Id.
The Government responds that is this claim is procedurally barred because
Mr. Chibuko fails to explain why he did not raise this claim on direct appeal. [ECF
No. 10 at 11].
Moreover, the Government argues that “as to his argument
regarding a non-guideline sentence, this Court explained that, even if it had
imposed a non-guidelines sentence, the court still would have imposed the same
sentence and thus [Mr.] Chibuko cannot show prejudice. Id. at 12 n.2.
Mr. Chibuko replies that “[b]ut for counsel’s lack of objection and appeal, it
is highly unlikely to know whether the district court would have varied
26
downwardly and applied a non-guideline sentence, especially given cumulative
enhancement applied in this case.” [ECF No. 12 at 11-13]. The Court agrees with
the Government.
First, Mr. Chibuko has not explained what prevented him from arguing on
appeal that his sentencing counsel was ineffective by not requesting a nonguideline sentence, especially given that Mr. Chibuko filed two supplemental pro
se appeal briefs. See No. 12-39, [ECF Nos. 73, 92] (2d Cir.).
Moreover, the Court made clear at sentencing that the reason it was
adopting consecutive sentences resulting in Mr. Chibuko’s sentence of 168
months’ imprisonment was due to the “utterly vile and unthinkable” nature of his
crimes involving “persistent deception” and “dishonesty,” and involving taking
advantage of developmentally disabled victims.4 No. 3:10-cr-00204 (VLB), [ECF
No. 115 at 37, 40]. Under those circumstances, there is no question that the Court
would have denied any request to reduce Mr. Chibuko’s sentence by departing
downwardly to a below guidelines sentence. In case there was any doubt the
Court made this explicit, explaining that “[t]he Court further notes that even if the
Court were to impose a non-guideline sentence, the Court would have imposed
the same sentence.” Id. at 50.
Thus, it is clear that Mr. Chibuko’s sentencing counsel’s decision to not
request a non-guideline sentence cannot have been ineffective when doing so
4
Although he only assumed the identity of Mr. Buckley, Mr. Chibuko used false
identity documents and other credentials to obtain positions for which he was
unqualified which required him to care for vulnerable disabled individuals.
27
would have been utterly futile; his decision resulted in no prejudice to Mr.
Chibuko.
Mr. Chibuko’s sixth ineffective assistance of counsel claim is DENIED.
Conclusion
There is no need for this Court to conduct a hearing on this habeas
petition. Although courts generally “look with disfavor on summary rejection of a
habeas petition,” United States v. Aiello, 900 F.2d 528, 534 (2d Cir.1990)
(quotation omitted), the text of § 2255 provides that the Court need not conduct a
hearing where “the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b) (2014); see
also Aiello, 900 F.2d at 534 (finding no reversible error in the failure to conduct a
hearing where the district court had presided over the trial and was therefore
“intimately familiar with the detailed factual record” and where petition’s
“allegations were patently meritless.”); see also Johnson v. Fogg, 653 F.2d at 753
(holding that district court was not required to provide a hearing to a pro se
litigant who did not raise issues sufficient to warrant a hearing). Mr. Chibuko is
not entitled to relief on his claims. Therefore, this Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED. The Court denies a
certificate of appealability because jurists of reason would not find this
procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 478 (2000). The
Court CERTIFIES under 28 U.S.C. § 1915(a)(3) that any appeal would not be taken
in good faith.
28
IT IS SO ORDERED.
_______/s/________________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 9, 2020
29
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