MIR v. UNITED STATES OF AMERICA
Filing
20
OPINION. Signed by Judge Jose L. Linares on 02/07/2017. (ek)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
AMER MIR,
Civil Action No. 14-3627 (JLL)
Petitioner,
v.
OPINION
U1’JITED STATES OF AMERICA,
Respondent.
LINARES, District Judge:
Currently before the Court is the amended motion of Amer Mir (“Petitioner”) to vacate, set
aside, or correct his sentence brought pursuant to 28 U.S.C.
§ 2255. (ECF No 4). Following
several extensions, the Government filed a response to the motion (ECF No. 16), to which
Petitioner has replied. (ECF No. 18). for the following reasons, this Court will deny Petitioner’s
motion and deny him a certificate of appealability.
I. BACKGROUND
Because of the nature of the claims Petitioner presents in his amended motion, only a brief
recitation of the background of this matter is necessary to provide context for this Court’s
resolution of his claims. The Third Circuit Court of Appeals provided the following summary of
the basic facts underpinning the convictions of Petitioner and his co-defendant Frederick Ugwu in
the opinion affirming the convictions and sentences of both men:
Ugwu and [Petitioner, Amer Mir,] were charged in a ten-count
Superseding Indictment with conspiracy to commit wire fraud, wire
fraud, conspiracy to commit money laundering, and money
laundering. Also charged were, among others, Michael Eliasof, a
real estate agent, and Jerry Carti, a loan officer and part owner of
U.S. Mortgage[, both of whom pled guilty.] The charges arose out
of a scheme to sell two and three-family homes in the Paterson, New
Jersey[,] area at grossly inflated prices to unqualified buyers.
Specifically, Ugwu, an experienced real estate investor, purchased
properties in poor condition for an average purchase price of
$85,000. He made minimal, if any, repairs to the homes to make
them appear habitable to appraisers and prospective tenants. Eliasof
introduced potential buyers to [Petitioner], a loan officer at United
Home Mortgage. The prospective purchasers were told that Eliasof
would manage the properties and that the mortgage payments would
be covered by rental payments. [Petitioner] and Carti falsified loan
applications so that unqualified buyers were approved. Once the
unqualified buyers were approved, closings would take place at the
law office of William Colacino, an attorney and municipal judge.
At closing, the conspirators prepared false RESPA settlement
statements that misrepresented moneys due from the buyers and
payable to the sellers. The buyers signed these documents without
reviewing them and left without keys to the properties.
Ugwu appeared at the closings with his attorney, generally after the
buyers had left. Ugwu’s attorney typically reviewed the documents
containing false information regarding buyer payments. Ugwu
falsely assured his attorney that he had already received fictitious
deposits reflected on the closing documents prior to signing. The
conspirators split the proceeds of the fraudulently obtained
mortgage loans.
Throughout the life of the scheme, Ugwu received almost $4 million
for his role, and was responsible for losses totaling more than S 1.6
million. [Petitioner] received at least $210,000, and was responsible
for more than $2.3 million in losses.
United States v. Ugwu, 539 F. App’x 35,38 (3d Cir. 2013), cert. denied, 134$. Ct. 970 (2014).
Following several continuances granted at the request of all parties based on the complexity
of this case, and several motions, Petitioner’s and his co-defendant’s trial began in November
2009. (Docket No. 08-561 at ECF Nos. 70-114). On December 17, 2009, thejury found Petitioner
guilty of four of the counts of the indictment including one count of conspiracy to commit wire
fraud and three counts of wire fraud, but acquitted him of additional wire fraud and money
2
laundering charges. (Docket no. 02-561 at ECF No. 116). On May 2, 2011, this Court sentenced
Petitioner to seventy months imprisomrtent for each count on which he was convicted to run
concurrently, and to a three year term of supervised release following Petitioner’s release from
prison. (Docket No. 08-561 at ECF No. 173, 175). Petitioner ultimately chose to appeal his
conviction and sentence, and the Third Circuit affirmed this Court’s judgment in September 2013.
Ugwu, 539 F. App’x at 35. Petitioner’s petition for a writ of certiorari was thereafier denied by
the Supreme Court on January 13, 2014. Mir, 134 5. Ct. at 970. Petitioner then filed his amended
motion to vacate his sentence. (ECF Nos. 1, 4).
II. DISCUSSION
A. Legal Standard
A prisoner in federal custody may file a motion pursuant to 28 U.S.C.
§ 2255 challenging
the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:
A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.
2$ U.S.C.
§ 2255. Unless the moving party claims a jurisdictional defect or a constitutional
violation, to be entitled to relief the moving party must show that an error of law or fact constitutes
“a fundamental defect which inherently results in a complete miscarriage of justice, [or] an
omission inconsistent with the rudimentary demands of fair procedure.” United States v. Horsley,
599 F.2d 1265, 1268 (3d Cir. 1979) (quoting Hit/v. United States, 368 U.S. 424,429 (1962)), cert.
denied 444 U.S. $65 (1979); see also Morelli v. United States, 225 F. Supp. 2d 454,458-59 (D.N.J.
2003).
3
B. An evidentiary hearing is not required in this matter
28 U.S.C.
§ 2255(b) requires an evidentiary hearing for all motions brought pursuant to the
statute “[u]nless the motion and the files and records of the case conclusively show that the prisoner
is entitled to no relief.” 2$ U.S.C.
§ 2255(b); United States v. Booth, 432 f.3d 542, 545 (3d Cir.
2005); United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992). “Where the record, supplemented
by the trial judge’s personal knowledge, conclusively negates the factual predicates asserted by
the petitioner or indicate{s] that petitioner is not entitled to relief as a matter of law, no hearing is
required.” Judge v. United States, 119 F. Supp. 3d 270, 280 (D.N.J. 2015); see also Government
of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); see also Booth, 432 F.3d at 546.
For the reasons set forth below, all of Petitioner’s ineffective assistance claims are clearly without
merit based on the information in the record, and therefore no hearing is required for the resolution
of Petitioner’s amended motion to vacate his sentence.
C. Petitioner’s Ineffective Assistance Claims
In his motion to vacate his sentence, Petitioner asserts several claims, all of which are based
on his allegation that his trial counsel was constitutionally ineffective. The legal standard which
applies to ineffective assistance of counsel claims is well established:
[c]laims of ineffective assistance are governed by the two-prong test
set forth in the Supreme Court’s opinion in Strickland v.
Washington, 466 U.S. 668 (1984). To make out such a claim under
Strickland, a petitioner must first show that “counsel’s performance
was deficient. This requires [the petitioner to show] that counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed by the Sixth Amendment.” Id. at 6$7, see also
United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). To
succeed on an ineffective assistance claim, a petitioner must also
show that counsel’s allegedly deficient performance prejudiced his
defense such that the petitioner was “deprive[d] of a fair trial
whose result is reliable.” Strickland, 466 U.S. at 687; Shedrick, 493
F.3d at 299.
.
4
.
In evaluating whether counsel was deficient, the “proper
standard for attorney perfonnance is that of ‘reasonably effective
assistance.” Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A
petitioner asserting ineffective assistance must therefore show that
counsel’s representation “fell below an objective standard of
reasonableness” under the circumstances. Id. The reasonableness
of counsel’s representation must be determined based on the
particular facts of a petitioner’s case, viewed as of the time of the
challenged conduct of counsel. Id. In scrutinizing counsel’s
a court must
performance, courts “must be highly deferential
indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466
U.S. at 629.
.
.
.
Even where a petitioner is able to show that counsel’s
representation was deficient, he must still affirmatively demonstrate
that counsel’s deficient performance prejudiced the petitioner’s
defense. Id. at 692-93. “It is not enough for the defendant to show
that the errors had some conceivable effect on the outcome of the
proceeding.” Id. at 693. The petitioner must demonstrate that “there
is a reasonable probability, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694; see also Shedrick, 493 F.3d at 299. Where a
“petition contains no factual matter regarding Strickland’s prejudice
unadorned legal conclusion[s]
prong, and [only provides]
without supporting factual allegations,” that petition is insufficient
to warrant an evidentiary hearing, and the petitioner has not shown
his entitlement to habeas relief. See Palmer v. Hendricks, 592 F.3d
386, 395 (3d Cir. 2010). “Because failure to satisfy either prong
defeats an ineffective assistance claim, and because it is preferable
to avoid passing judgment on counsel’s performance when possible,
[Strickland, 466 U.S. at 697-98],” courts should address the
prejudice prong first where it is dispositive of a petitioner’s claims.
United States v Cross, 308 F.3d 308, 315 (3d Cir. 2002).
.
.
.
Judge, 119 F. Supp. 3d at 280-8 1. This Court will address each of Petitioner’s allegations of
ineffective assistance of counsel in turn.
1. Petitioner’s Speedy Trial Act ineffective assistance claim
Petitioner argues that his trial counsel was constitutionally ineffective in failing to move
for a dismissal of Petitioner’s indictment pursuant to the Speedy Trial Act. In order to establish
5
Strickland prejudice for the failure to make a Speedy Trial Act motion, “it is not enough to show
that the indictment would have been dismissed, Petitioner is instead required to show that, more
likely than not, the motion would have resulted in a dismissal with prejudice.” christie v. United
States, No. 12-988, 2015 WL 240004$, at *16 (D.N.J. May 20, 2015); see also United States v.
Zahir, 404 F. App’x 585, 588 (3d Cir. 2010). Pursuant to the Act, a trial in a criminal case “shall
commence within seventy days from the filing date.
.
.
of the.
.
.
indictment, or from the date the
defendant has appeared before a judicial officer of the court in which such charge is pending,
whichever date last occurs.” 18 U.S.C.
§ 3161(c)(1). The Act, however, creates several classes
of time which are excluded from the seventy day statutory period including delays resulting from
the filing of pretrial motions, see United States v. Tinklenberg, 563 U.S. 647, 656-60 (2011) (all
pretrial motions automatically toll the running of the Speedy Trial clock through the hearing on or
other prompt disposition of the motions), and any period of delay which results from the grant of
a continuance which the trial court finds to be in the interests of justice.
3161(h)(l)-(7).
See 18 U.S.C.
§
The statute also provides that any excludable period which applies to one
defendant in a multi-defendant case will also be excludable from the Speedy Trial clock of his co
defendants. See United States
V.
Novak, 715 F.2d 810, 821 (3d Cir. 1983), abrogation on other
grounds recognized, United States v. felton, 811 F.2d 190, 195 (3d Cir. 1987); see also 1$ U.S.C.
§ 3161(h)(6). Where a Speedy Trial violation does occur, the Act requires the Court to determine
whether a dismissal should be with or without prejudice given consideration of factors including
“the seriousness of the offense; the facts and circumstances of the case which led to the dismissal;
and the impact of a reprosecution on the administration of [the Speedy Trial Act] and on the
administration ofjustice.” 1$ U.S.C.
§ 3162(a)(l).
6
In this matter, Petitioner cannot show that he suffered a violation of the Act sufficient to
require the dismissal of his indictment with prejudice, and thus cannot show that he was prejudiced
by counsel’s failure to make a Speedy Trial motion. Following his indictment, Petitioner initially
appeared before this Court on August 22, 2008. (Docket No. 08-561 at ECF No. 20).
Twenty
five days later, on September 16, 2008, this Court entered an order, with the consent of all counsel,
finding that Petitioner’s case was a complex case which required considerable preparation, and
thus found that it would be in the interests of justice to delay trial until May 4, 2009, and
specifically excluding all time between September 16 and May 4 from the Speedy Trial Act period.
(Docket No. 08-56 1 at ECF No. 27). On April 3, 2009, this Court entered a second complex case
order, again with the agreement of counsel, again finding it would be in the interests ofjustice to
delay trial until June 8, 2009, and thus excluded the period between May 4, 2009 and June 8, 2009,
from the Speedy Trial clock. (Docket No. 08-56 1 at ECF No. 38).
Prior to the conclusion of those excluded periods, in April 2009, the Government filed a
pre-trial motion. (Docket No. 08-561 at ECF No. 39). That motion was not decided until August
26, 2009. See Tinklenberg, 563 U.S. at 656-60. (Docket No. 08-561 at ECF No. 56). Thus, the
period between June 8, 2009, and August 26, 2009, was also excluded from the Speedy Trial clock.
Likewise, Petitioner and his co-defendant also filed a pre-trial motion on June 29, 2009, which
was not decided until August 25, 2009, providing a further reason for excluding that period of
time. (See Docket No. 08-561 at ECF Nos. 50, 55). Once the Speedy Trial clock resumed, thirty
three more days passed before the Government and one of Petitioner’s co-defendants filed motions
in limine on September 29, 2009. (Docket No. 08-56 1 at ECF No. 58). Those motions were not
fully briefed until October 15, 2009, and this Court decided those motions on October 19, 2009,
and thus the period between September 29 and October 19, 2009, was likewise excluded from the
7
speedy trial clock. Tinklenbetg, 563 U.S. at 656-60. (See also Docket No. 08-561 at ECF Nos.
61, 62, 64, 65-67). Petitioner’s trial began sixteen days later on November 4, 2009. (Docket No.
08-561 at ECF No. 70).
Thus, twenty five days passed between Petitioner’s initial appearance and when the first
excludable period began. Petitioner’s Speedy Trial clock did not begin to run once again until
after August 26, 2009. At that point, thirty-three more days passed before an excludable period
once again began. The Speedy Trial clock once again began after October 19, 2009, and sixteen
days passed from there before Petitioner’s trial began.
Thus, in the best possible case for
Petitioner, his prosecution exceeded the seventy day Speedy Trial clock by four days.
What this best case calculation ignores, however, is the fact that this Court rescheduled the
trial in this matter from June 2009 until October 2009 at a hearing in June 2009 because Petitioner’s
own counsel would not be available for the scheduled trial date and no date prior to October 2009
was otherwise acceptable for remaining counsel and the Court. (See Document 1 attached to ECF
No. 16 at 41-51). Thus, for Petitioner to assert that he was prejudiced by any delay between June
and October 2009 is at best disingenuous. See United States v. fields, 39 F.3d 439, 443 (3d Cir.
1994) (defendants are not free to abuse the Speedy Trial Act to their own benefit and cannot benefit
by way of dismissal from continuances they themselves request). Were it not for the unavailability
of Petitioner’s counsel of choice, this matter could have proceeded to trial at an earlier date.
Because this Court did not enter a formal order finding the interests ofjustice warranted a cessation
of the Speedy Trial clock until October 2009, however, this Court cannot categorically hold that
no Speedy Trial violation, however slight, occurred in this case.
Ignoring the trial date rescheduling discussed above, the best possible reading of
Petitioner’s case for the purposes of his motion to vacate results in his trial beginning four days
8
afler the seventy day Speedy Trial Act period had elapsed. Even under that reading, however,
Petitioner cannot show that he was prejudiced by counsel’s failure to move for a dismissal under
the Speedy Trial Act. As stated above, a petitioner can only show prejudice from a failure to make
a Speedy Trial motion where he shows that such a motion would have resulted in the dismissal of
his indictment with prejudice. Christie, 2015 WL 2400048 at *16; see also Zahir, 404 F. App’x
at 588. Petitioner cannot do so here. Turning to the first factor used to determine whether a
dismissal with prejudice is appropriate, it is clear that Petitioner’s fraud charges were serious,
which cuts in favor of a dismissal without prejudice. Likewise, the facts in this case indicate that
the largest period of not-excluded delay in this matter was the result of the unavailability of
Petitioner’s own counsel of choice for a trial date prior to October 2009. Absent counsel’s
unavailability and Petitioner’s choice to proceed with that counsel, no Speedy Trial violation
would have occurred, which cuts strongly in favor of a without-prejudice dismissal at most.
Likewise, the impact of a re-prosecution on the administration of justice and the Act would have
been slight, because the violation alleged in this matter only exceeded seventy days by four days
and was largely the result of Petitioner’s own choices, which also cuts in favor of a dismissal
without prejudice at most. Thus, all of the statutory factors in this matter indicate that the best
case result that Petitioner could have received from a Speedy Trial motion would have been a
dismissal without prejudice due to a technical violation of the Act for which Petitioner and his
counsel of choice were largely responsible, and Petitioner therefore cannot establish that he
suffered Strickland prejudice from counsel’s failure to make such a motion. Christie, 2015 WL
2400048 at *16; see also Zahir, 404 F. App’x at 588. As Petitioner cannot establish prejudice, he
is not entitled to relief on his Speedy Trial Act ineffective assistance of counsel claim. Id.
9
2. Petitioner’s severance motion ineffective assistance of counsel claim
Petitioner next argues that his trial counsel was ineffective in not moving to sever his case
from that of one of his co-conspirators prior to trial. In order to make out the prejudice prong of
the Strickland test on the basis of a claim that counsel failed to make a severance motion, a
petitioner must not only show that, had the motion been made, severance would have been granted,
but also that the granting of severance would have led to a different ultimate result at trial. See,
e.g., Rainey v. Sec y Pennsylvania Dep ‘t of Corr., 658 F. App’x 142, 153 (3d Cir. 2016). Where
two defendants are properly joined for trial, a district court should only grant a motion for
severance where there is “a serious risk that a joint trial would compromise a specific trial right of
one of the defendants, or prevent the jury from making a reliable judgment about guilt or
innocence.” United States v. Voigt, 89 F.3d 1050, 1094 (3d Cir. 1996) (quoting Zafiro v. United
States, 506 U.S. 534, 539 (1993)). Joint trials are especially favored, and severance in turn
disfavored, in cases involving multiple individuals charged in a single conspiracy, as a joint trial
aids the jury in determining the frill extent of the conspiracy and prevents the Government from
being disadvantaged through the disclosure of its case to as of yet untried co-conspirators. Id.
In this matter, although Petitioner admits that he and Ugwu were properly joined for trial,
Petitioner asserts that his counsel should have moved for severance because Petitioner alleges that
he did not know his co-defendant and co-conspirator, Ugwu; because most of the evidence
admitted at trial was directed at Ugwu rather than at Petitioner; and because this resulted in a longer
than usual trial for Petitioner. As to Petitioner’s assertion that he did not know Ugwu, that assertion
is immaterial; there is no requirement that all of the co-conspirators in a single enterprise know
one another, either for the purposes of being tried jointly or for purposes of being found guilty of
engaging in the conspiracy in question. See, e.g., Granada v. United States, 51 F.3d 82, 85 (7th
10
Cir. 1995). Likewise that some of the evidence admitted at trial was only applicable to the actions
of Ugwu rather than Petitioner, would not warrant severance. See, e.g., United States v. McGloiy,
96$ F.2d 309, 340 (3d Cir. 1992). As Petitioner was also not entitled to a short trial, Petitioner has
presented nothing in his amended motion to vacate which would indicate that he was prejudiced
by the joinder of his case to Ugwu’s for trial. Petitioner has failed to establish in any way that any
right of his was subject to a serious risk of compromise from the combined trial, nor that the
combined trial had the capacity to mislead or confuse the jury which convicted him. That the jury
convicted Petitioner of some counts of his superseding indictment but not of others suggests that
the jury was able to parse and consider the various facts presented at trial, and that neither the long
trial nor the joinder of Ugwu deprived Petitioner of a fair trial including a reliable determination
as to his guilt or innocence. As a result, Petitioner has failed to show that any motion to sever
would have been successful, and cannot establish that he suffered prejudice as a result of counsel’s
failure to make such a motion. Voigt, $9 F.3d at 1094; Rainey, 658 F. App’x at 153. Petitioner’s
severance related claim provides no basis to amend or vacate Petitioner’s sentence.
3. Petitioner’s plea advice ineffective assistance claim
Petitioner contends in his amended motion and in his reply brief that his trial counsel was
constitutionally ineffective in failing to negotiate a plea agreement and in suggesting that Petitioner
would be successful at trial. The Third Circuit has provided the following guidance in dealing
with ineffective assistance claims arising out of the plea negotiation stage:
The Court has []emphasized that “[d]efendants have a Sixth
Amendment right to counsel, a right that extends to the plea
132 S.Ct. 1376,
U.S.
bargaining process.” Lafler v. Cooper,
(2012).
1384[J
---
11
---,
When addressing a guilty plea, counsel is required to give a
defendant enough information “to make a reasonably informed
decision whether to accept a plea offer.” Shotts v. Wetzel, 724 F.3d
364, 376 (3d Cir. 2013) (quoting United States v. Day’, 969 f.2d 39,
134 S.Ct. 1340[] (2014).
U.S.
43 (3d Cir. 1992)), cert. denied,
We have identified potential sentencing exposure as an important
factor in the decisionmaking process, stating that “[k]nowledge of
the comparative sentence exposure between standing trial and
accepting a plea offer will often be crucial to the decision whether
to plead guilty.” Day, 969 F.2d at 43. In order to provide this
necessary advice, counsel is required “to know the Guidelines and
the relevant Circuit precedent....” United States v. Smack, 347 f.3d
533, 538 (3d Cir. 2003).
---
---,
United States v. Bid, 795 F.3d 363, 367 (3d Cir. 2015).
Even where a petitioner is able to show that counsel’s deficient performance deprived him
of the ability to make an informed decision to plead guilty rather than proceed to trial, the petitioner
must still show that he was prejudiced by that alleged failure. To establish prejudice for such a
claim, a petitioner must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different
.
.
.
[which i]n the
context of pleas [requires] a [petitioner to] show the outcome of the plea process would have been
different with competent advice.” Lafler v. Cooper,
---
U.S.
---,
---,
132 S. Ct. 1376, 1384-85
(2012). Such a showing requires that the petitioner establish that he would have accepted a plea
deal, that the deal in question was offered and would not have been withdrawn by the Government,
that the Court would have accepted that plea, and that the sentence received from the plea
agreement would ultimately have been less severe than the sentence the petitioner received after
trial. Id. at 1385. If the petitioner cannot show that a plea offer was made, however, “this issue
‘simply does not arise,’ and the [petitioner] cannot demonstrate [Strickland] prejudice.” Herrera
Genao v. United States, 641 F. App’x 190, 192 (3d Cir. 2016) (quoting Lafler, 132 S. Ct. at 1387);
see also Kingsberiy v. United States, 202 F.3d 1030, 1032 (8th Cir. 2000) (“to establish
12
.
prejudice, the petitioner must begin by proving that a plea agreement was formally offered by the
government”).
In this matter, there is no evidence that Petitioner was ever formally offered a plea
agreement by the Government. Indeed, according to the Government, Petitioner never expressed
any interest in negotiating or pursuing a plea deal, and no formal offer was ever discussed let alone
reduced to writing. (See ECF No. 16 at 25). Petitioner in his filings fails to state that there is any
plea deal to which he would have pled guilty had one been offered, and has certainly not shown
that there was a deal to which he would have pled which would have been acceptable to the
Government and this Court, or that such an entirely theoretical plea deal would have resulted in a
lesser sentence. Petitioner’s ineffective assistance claim is thus entirely speculative and expresses
little more than Petitioner’s latter day regret as to the outcome of his trial. Because Petitioner
cannot show that he was ever offered a plea agreement, and because Petitioner does not even allege
that there was an agreement to which he would have pled guilty had he been given proper advice,
Petitioner’s claim fails to allege, let alone prove, that he was prejudiced by counsel’s alleged
failures, and Petitioner’s plea related Strickland claim must therefore fail. Lafter, 132 S. Ct. at
1387; Herrera-Genao, 641 F. App’x at 192; Kingsberry, 202 F.3d at 1032.
4. Petitioner’s witness based ineffective assistance of counsel claim
Petitioner next asserts that his trial counsel was ineffective for failing to call certain
witnesses at trial. Where a petitioner challenges counsel’s decisions as to which witnesses to call
at trial, courts are required not simply to give the attorney the benefit of the doubt, but to
affirmatively entertain the range of possible reasons that the petitioner’s counsel may have had for
proceeding as he did. See Branch v. Sweeney, 75$ F.3d 226, 235 (3d Cir. 2014). To succeed on
such a claim, a Petitioner must “overcome the presumption that, under the circumstances, the
13
challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689. Even if
a petitioner can show that his counsel’s failure to call a certain witness was not sound strategy and
was instead the result of deficient performance, he must still show that, had counsel called the
witness in question, the result of his trial would have been different. Id. at 693-94. The failure of
a petitioner “to include a sworn statement regarding the nature of [a witness’s] proposed testimony
is fatal to his making a prima Icicle showing of [Strickland] prejudice.” See Tolentino v. United
States, No. 13—4168, 2014 WL 3844807, at *3 (D.N.J. July 31, 2014); Judge, 119 F. Supp. 3d at
285; see also Duncan v. Morton, 256 f.3d 189, 201-02 (3d Cir. 2001).
Here, Petitioner claims that counsel was deficient in failing to call as a witness at trial one
of his co-conspirators, Eliasof, who had been a cooperating witness for the Government but whom
the Government chose not to call at trial. In raising this claim, Petitioner fails to provide even an
allegation as to what testimony Eliasof would have given, instead simply presuming that his
testimony would have implicated Ugwu but not Petitioner, and has certainly failed to provide a
sworn affidavit setting forth what testimony Eliasof would have provided at trial. Because Plaintiff
has failed to provide such a sworn statement, and indeed has failed to provide any argument as to
what testimony Eliasof would have provided had counsel called him, Petitioner cannot establish
even aprimafacie case of Strickland prejudice.’ Duncan, 256 F.3d at 201-02; Judge, 119 F. Supp.
3d at 285.
In his memorandum in support of his motion to vacate sentence, Petitioner suggests that there
may have been other witnesses that counsel failed to call. (See Document 1 attached to ECF No.
4 at 2). Petitioner does not identify who these proposed witnesses are, nor does he provide any
documentation, let alone sworn statements, setting forth what those witnesses would have testified
to had they been called at trial. Because Petitioner has failed to identify any witnesses other than
Eliasof or provide any clue as to their proposed testimony, he cannot show Strickland prejudice,
and any claim of ineffective assistance of counsel on such a ground must fail to the extent
Petitioner wished to raise it. Duncan, 256 F.3d at 201-02; Judge, 119 F. Supp. 3d at 285.
14
While Petitioner’s failure to provide a sworn statement as to how Eliasof would have
testified at trial is fatal to his ineffective assistance of counsel claim, the Court must note that this
is not a case in which the alleged witness’s testimony is left solely to speculation. Because Eliasof
was, prior to trial, a cooperating witness for the Government that the Government chose not to call
as a witness at trial, there are memoranda of interviews with Eliasof in the record of this case. (See
Document 1 attached to ECF No. 16 at 2-6). The memoranda of these interviews indicate that
Eliasof told the Government that he was aware that many of the victims of the conspiracy in this
matter received fraudulent loans, that Petitioner was the loan officer who was used to secure these
fraudulent loans with the help of Carti, and that Eliasof had offered to provide Petitioner with any
paperwork he needed to secure these fraudulent loans in furtherance of their conspiracy. (Id. at 4).
Eliasof further told investigators that Mir had had other members of the conspiracy provide him
with falsified letters of good credit for the investor victims. (Id. at 5). Thus, even if the Court were
to put aside the failure of Petitioner to provide sworn affidavits, had counsel chosen to call Eliasof
even though Eliasof had refused to speak with Mr. Ugwu’s lawyer previously, it appears that
Eliasofs testimony at trial would have run directly counter to Petitioner’s interests. Thus, to call
Eliasof based on these memoranda, without having been able to speak to him after Eliasofdecliñed
to speak with the other defense counsel in this matter, would have been a poor choice indeed. It
is therefore clear that Petitioner has failed to show any prejudice resulting from counsel’s “failure”
to call Eliasof as a defense witness, and Petitioner has not shown ineffective assistance of counsel
on that basis. Strickland, 466 U.s. at 689-94.
5. Petitioner’s sentencing ineffective assistance of counsel claim
Petitioner’s final claim in this matter is that counsel was ineffective at sentencing in
withdrawing his objection to the loss calculation in his presentence report (“PSR”), and in failing
15
to object to the abuse of trust enhancement applied to his sentence based on his being a loan officer.
In order to establish Strickland prejudice for such a claim, Petitioner must show that, but for
counsel’s withdrawal of his objection to the loss amount or failure to object to the abuse of trust
enhancement, the outcome of this matter would have been different and Petitioner would have
received a less onerous sentence. See, e.g., Glover v. United States, 531 U.S. 198, 203-04 (2001)
(Strickland prejudice results from failure to object to an alleged sentencing error where Petitioner
receives a harsher sentence as a result). This Court will turn first to Petitioner’s allegation that
counsel should have objected to the abuse of trust enhancement before addressing Petitioner’s loss
amount claim.
Petitioner asserts that counsel should have objected to the addition of an abuse of trust
enhancement to his sentence under the sentencing guidelines. The Third Circuit addressed the
propriety of an abuse of trust enhancement in cases dealing with loan officers in affirming
Petitioner’s sentence on direct appeal:
To detennine if the “abuse of trust” enhancement is applicable, the
District Court will consider whether the defendant has abused a
“position of public or private trust, or used a special skill, in a
manner that significantly facilitated the commission or concealment
of the offense.” U.S.S.G. § 331.3. If the District Court finds such
abuse, the sentencing guidelines “require the sentencing court to
increase the offense level by two.” United States v. McMullen, 917
F.2d 773, 775 (3d Cir. 1990).
The District Court must first determine whether a defendant
occupied a position of trust. Three factors govern the District
Court’s determination of this threshold issue: “(1) whether the
position allows the defendant to commit a difficult-to-detect wrong;
(2) the degree of authority which the position vests in the defendant
vis-ã-vis the object of the wrongful act; and (3) whether there has
been reliance on the integrity of the person occupying the position.”
United States v. Thomas, 315 F.3d 190, 204 (3d Cir. 2002) (citing
United States v. lannone, 184 F.3d 214, 223 (3d Cir. 1999)).
16
Mir was employed as a licensed mortgage loan officer by
United Home Mortgage. In that capacity, he acted as a “middleman”
between buyers and lenders in return for a commission,
predominantly completing loan applications for two specific
lenders. Although we have not decided in a precedential opinion
whether or not mortgage brokers necessarily occupy a position of
trust with respect to their client lenders, the Courts of Appeals for
the Fifth and Eighth Circuits have held that mortgage brokers plainly
hold positions of trust with respect to their client lenders, because
those lenders depend on them to provide accurate information about
prospective borrowers. United States v. Septon, 557 F.3d 934, 937—
38 (8th Cir. 2009); United States v. Wright, 496 f.3d 371, 377 (5th
Cir. 2007). In United States v. Fuchs, 635 F.3d 929 (7th Cir. 2011),
by way of contrast, the Seventh Circuit, while refusing “to say that
a mortgage broker can never occupy a position of trust with respect
to his lenders,” id. at 937, found that the evidence did not establish
“a special relationship of trust outside of the ordinary arms-length,
commercial relationship between [the broker] and the lenders.” Id.
In this case, the Presentence Report accurately stated that
[Petitioner] repeatedly falsified information on loan applications to
make it appear that borrowers qualified for financing when in fact
they did not. Unlike in Fuchs, the evidence in this case was not
limited to generalities concerning the structure of the mortgage
financing industry. Instead, there was evidence that [Petitioner], as
a licensed mortgage loan officer, used phony verifications of
employment, earnings and credit history to induce lenders who
reposed trust in him to extend more than $2 million in credit over a
period of time exceeding three years. It is evident that {Petitioner]’s
position made the fraud more difficult to detect, considerable
authority to make the transactions was accorded Mir, and there was
substantial reliance upon his integrity. Under the circumstances, the
District Court did not plainly err in finding that Mir both occupied a
position of trust vis a vis the lenders, and abused that trust to
facilitate and conceal the crime.
Ugwu, 539 F. App’x at 40-41.
In this matter there is no doubt that any objection counsel could have raised to the abuse of
trust enhancement would have been rejected as meritless, and that Petitioner therefore suffered no
prejudice as a result of counsel’s failure to raise such an objection. As the Third Circuit explained,
during the course of the conspiracy at issue in this case, the loan-making institutions Petitioner
17
deceived relied upon him to provide accurate information as to the investor-victims who sought
those loans. Petitioner abused that trust and reliance by filing fraudulent documents with those
institutions repeatedly, and through his fraudulent abuse of the reliance of those institutions
secured loans which harmed not only the loan institutions but also the investors who “received”
those fraudulently obtained loans in the hopes of securing some measure of financial security.
Both sides of the transaction relied upon Petitioner, and Petitioner ultimately used that reliance to
defraud them and obscure the wrongdoing of his co-conspirators, ultimately making their fraud
harder to detect. There is thus no doubt that this Court would have rejected any objection as to an
abuse of trust, and Petitioner cannot show that the failure to raise such an objection resulted in him
receiving a harsher sentence. Id.
Finally, Petitioner asserts that counsel proved ineffective when he withdrew his objection
to the loss amount calculation contained in the PSR in this matter. In support of this contention,
Petitioner only offers the following
—
that his counsel filed his sentencing memorandum late
resulting in it receiving little consideration from this Court,2 and that “the loss amount was
challengeable if counsel would have investigate[d] the law in a timely manner.” (ECF No. 4 at 8).
Under
§ 2Bl.1(b)(1), a sentencing court must take into account the amount of the loss caused by
the criminal actions of certain defendants in sentencing them. Pursuant to that Guideline, the
sentences of these defendants, including those engaged in fraud offenses such as Petitioner, are
increased by a certain amount based on the amount of losses inflicted by the defendant’s crime.
To the extent Petitioner contends that this Court did not consider his counsel’s late filed
sentencing memorandum, that statement is patently false and is directly contravened by the
record. (Document 1 attached to ECF No. 16 at 155-57). As the Sentencing Transcript makes
clear, while this Court did not appreciate the late nature of the filing, Petitioner’s sentencing
submission was read and considered in full by this Court, and was not in any way given short
shrift. (Id.).
2
18
Id. F or the purposes of this calculation, the “loss” involved in an offense is the “greater of [the]
actual loss or intended loss.” United States v. Nagle, 803 F.3d 167, 179 (3d Cir. 2015) (internal
quotations omitted). Actual loss in this context means “the reasonably foreseeable pecuniary han-n
that resulted from the offense,” while intended loss instead encompasses “the pecuniary harm that
was intended to result from the offense.”
Id. (quoting U.S.$.G.
§ 231.1 crnt. 3(a)(i)-(ii)).
Pecuniary harm under the Guideline is any “han-n that is monetary or that otherwise is readily
measurable in money.” U.$.$.G.
§ 2B1.1 cmt. 3(a)(iii). The Guideline requires the sentencing
court to take into account the available evidence in determining the loss amount and requisite
sentencing enhancement, but in considering that evidence the court “need only make a reasonable
estimate of the loss.” Id. at cmt. 3(c).
While the Government bears the initial burden of
establishing the loss amount by the preponderance of the evidence, once it has done so the burden
of production shifts to the defendant, who must “provide evidence that [shows that] the
Government’s evidence is incomplete or inaccurate.” United States v. Fumo, 655 F.3d 288, 210
(3d Cir. 2011).
In this matter, the loss amount used at sentencing was derived from the PSR. The PSR
calculation was in turn based on the value of the fraudulently obtained loans on which the investor
victims defaulted, minus the funds which were recouped by the lenders through the sale of the
properties after default and minus a $100,000 credit per property which was the subject of a
defaulted loan which had not yet been resold. (PSR at
¶ 94). Based on this calculation, the PSR
attributed over $2.3 million of the loss resulting from the conspiracy in this matter to Petitioner
based on twenty loans which the Government had shown Petitioner helped to secure through
fraudulent means.
19
In his current motion to vacate sentence, Petitioner provides no evidence to rebut the loss
calculation used at sentencing, and Petitioner fails to present any information which would suggest
that this loss calculation
—
which the Government asserts did not include all of the loans Petitioner
secured during the course of the conspiracy
overestimated the amount of loss he caused through
his criminal actions. At sentencing, based on the $2.3 million loss amount, this Court applied an
enhancement of sixteen levels based on loss amount. Pursuant to the Guideline as it existed at the
time of sentencing, to establish that he should have received a lesser loss enhancement, Petitioner’s
counsel would have had to show that Petitioner was responsible for less than one million dollars
of losses.3 See U.S.S.G.
§ 2B1.1(b)(1)(I) (2009); U.S.$.G. § 2B1.1(b)(1)(I) (2010).
Nothing Petitioner has submitted, which in this matter amounts to little more than a bald
allegation that the loss amount was incorrect, suggests to this Court that a loss calculation less than
that contained in the PSR would have been appropriate in this matter, and Petitioner has certainly
failed to provide any evidence sufficient to suggest that, absent counsel’s withdrawal of his
objection, this Court would have found a loss amount of well over a million dollars less than that
calculated by the PSR. As such, Petitioner’s assertion that an objection would have resulted in a
lesser enhancement and in turn a lesser sentence is belied by the record and is insufficient to
support a finding of Strickland prejudice in this matter. Because Petitioner has failed to show that
he would have received a lesser sentence had counsel not withdrawn his objection to the loss
calculation in this matter, he has failed to show prejudice and his final ineffective assistance claim
is also without merit. Glover, 531 U.S. at 203-04. As such, Petitioner’s amended motion to vacate
his sentence must be denied.
Indeed, even under the amended guideline in effect today, a sixteen level enhancement would be
appropriate so long as the loss amount was greater than S1.5 million. U.S.S.G. § 2B1.1(b)(1)(I)
(2015).
20
_______
III. CERTIFICATE OF APPEALABILITY
Pursuant to 2$ U.S.C.
§ 2253(c), the petitioner in a § 2255 proceeding may not appeal from
the final order in that proceeding unless he makes “a substantial showing of the denial of a
constitutional right.” “A petitioner satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed further.” MillerEl v. Cockrell, 537 U.S. 322, 327 (2003). for the reasons expressed above, Petitioner has failed
to show prejudice as to any of his claims of ineffective assistance of counsel in this matter, and all
of his claims are therefore without merit. Because all of Petitioner’s claims are clearly without
merit, he has failed to make a substantial showing of the denial of his constitutional rights, and his
claims do not deserve encouragement to proceed further. A certificate of appealability is therefore
not warranted in this matter. Id.
IV. CONCLUSION
For the reasons set forth above, Petitioner’s amended motion to vacate his sentence (ECF
No. 4) is DENIED, and Petitioner is DENIED a certificate of appealability. An appropriate order
follows.
Jose L. Linares,
States District Judge
Dated: February
,
2017
21
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