AWE v. UNITED STATES OF AMERICA

Filing 14

OPINION. Signed by Judge Jose L. Linares on 3/27/2017. (ld, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HAKEEM AWE,
Civil Action No. 15-8 155 (JLL)
Petitioner,
v.

OPINION

UISTITED STATES OF AMERICA,
Respondent.

LINARES, District Judge:
Presently before the Court is the amended motion of Hakeem Awe (“Petitioner”) to vacate,
set aside, or correct his sentence brought pursuant to 28 U.S.C.

§

2255. (ECF No. 5). following

an order to answer, the Govenrnient filed a response to the amended motion. (ECF No. 10).
Although provided ample time to do so, Petitioner failed to file a reply brief. (See ECF No. 13).
for the following reasons, this Court will deny Petitioner’s amended motion to vacate sentence
and will deny Petitioner a certificate of appealability.

I. BACKGROUND

On March 25, 2014, Petitioner Hakeem Awe pled guilty to mail fraud in violation of 18
U.S.C.

§ 1341 and aggravated identity theft in violation of 18 U.S.C. § 1028A pursuant to a

negotiated plea agreement. (Document 1 attached to ECF No. 10, Document 2 attached to ECF
No. 10 at 4). These charges arose out of Petitioner’s having engaged in a scheme to defraud the
federal government by filing false tax returns on behalf of numerous individuals in order to obtain
fraudulent tax refund checks from the IRS which he ultimately deposited in his various bank
accounts. (See Document 1 attached to ECf No. 10 at 19-21). Pursuant to his plea agreement,

Petitioner pled guilty to these two charges in exchange for the dismissal of the two remaining
counts in his indictment. (Docket No. 13-86 at ECF Nos. 15, 29). Under the agreement, Petitioner
and the Government also agreed to several sentencing stipulations, including the following: 1) that
Petitioner’s base offense level for mail fraud was seven; 2) that he would receive a fourteen level
upward adjustment reflecting a stipulated loss amount between $400,000 and $1,000,000 for the
purposes of the sentencing guidelines resulting in a preliminary offense level of 21 for the fraud
count; 3) that Petitioner had shown acceptance of responsibility and should receive a three level
downward adjustment for that acceptance under U.$.S.G.

§ 3E1 .1; 4) that Petitioner’s total offense

level for the fraud count should therefore be 18; and 5) that the identity fraud count was subject to
a mandatory two year imprisonment term to run consecutive to any sentence on the mail fraud
charge. (Docket No. 13-86 at ECF No. 29 at 3, 7-9).
following Petitioner’s entry of a guilty plea on those two counts, Probation produced a
pre-sentence report for Petitioner which included a substantially different guidelines calculation.
(See Document 2 attached to ECF No. 10 at 6). In the view of the officer who prepared the PSR,

Petitioner’s loss amount should have been calculated as approximately 1.2 million dollars based
on information provided by the IRS, and Petitioner should therefore receive a 16, as opposed to
14, level increase for his fraud count. (Id.). Probation also recommended a four level increase
because Petitioner’s scheme had included fifty or more victims, which had not been accounted for
in the plea agreement’s stipulations. (Id.). Finally, Probation also recommended that Petitioner
not receive an acceptance of responsibility reduction because Petitioner had not fully cooperated
with the financial investigation undertaken as part of the PSR process to determine the actual loss
and restitution amounts. (Id.). These differences would have resulted in Petitioner’s offense level
being nine levels higher than that recommended in the plea agreement, which would have resulted

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in a substantially higher guidelines sentencing range. (Id. at 7).
Petitioner appeared for sentencing in this matter on November 18, 2014.

(Id. at 1).

Petitioner’s counsel did not submit a sentencing memorandum in advance of sentencing. (Id. at 45).

At sentencing, the Government contended that the Court should sentence Petitioner in

accordance with the plea agreement rather than follow the recommendations in the pre-sentence
report, and explained the basis for the stipulations contained in the agreement. (Id. at 6-12).
Petitioner’s attorney likewise argued that the Court should follow the agreement, specifically
noting that he believed Petitioner had complied with the Government, pled guilty, and attempted
to aid their investigations thereafier, and argued that Petitioner should therefore receive the benefit
of his acceptance ofresponsibility. (Id. at 12-14). Based on the arguments ofboth the Government
and Petitioner’s counsel, this Court concluded that it would accept the lower guidelines range
contained in the plea agreement, rather than the higher range recommended in the PSR, although
the Court noted that the PSR was not incorrect and that, absent the plea agreement and the
contentions of counsel, a sentence in the range recommended by the PSR would not be improper.
(Id. at 16-17).

At sentencing, Petitioner’s counsel argued for a sentence at the low end of the plea
agreement guidelines range. (Id. at 19-25). Counsel argued that this Court should take into
account that Petitioner was just a part of a much larger scheme, and was not the masternind behind
that scheme. Further, Counsel avers that Petitioner had complied with all of the rules of his house
arrest during the lengthy pre-trial period, and that Petitioner had a wife who was unwell and young
children, for whom he was the chief source of support thus indicating that a long sentence would
be a severe hardship on Petitioner and his family. (Id.).

Counsel also argued that the Court

should take into consideration Petitioner’s attempts at cooperating with the Government in

3

investigating the scheme in which he was involved, which, although insufficient to earn a letter
for a downward departure from the Government, had been considerable. (Id. at 24-25). Based on
these arguments, including Petitioner’s attempted cooperation with the Government, this Court
concluded that a sentence within the plea agreement guideline range was appropriate, and therefore
sentenced Petitioner to a total of 57 months, including a 33 month sentence on the fraud count and
the required two year consecutive sentence on the identity theft count of the indictment. (Id. at
3 1-36). Although this Court gave Petitioner a sentence within the range recommended by the plea
agreement, Petitioner was ordered to pay restitution based on the information contained in the
P$R, requiring total restitution in the amount of $1,242,047.20. (Id. at 34).

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 a 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

4

V.

Horsley,

599 F.2d 1265, 1268 (3d Cir. 1979) (quotingHillv. United States, 368 U.S. 424,429(1962)), cert.
denied 444 U.S. 865 (1979); see also Morel/i v. United States, 285 F. Supp. 2d 454, 45 8-59 (D.N.J.
2003).

B. Petitioner is not entitled to an evidentiary hearing

2$ U.S.C.

§ 2255(b) requires an evidentiary hearing for alt motions brought pursuant to the

statute “unless the motion and files and records of the case conclusively show that the prisoner is
entitled to no relief.” 28 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.” Jttdge 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 United States v. Thyen
Qttang Plzam, 587 F. App’x 6, 8 (3d Cir. 2014); Booth, 432 F.3d at 546. For the reasons set forth
below, both of Petitioner’s claims are clearly without merit based on the record before the Court,
and Petitioner is therefore not entitled to an evidentiary hearing.

C. Petitioner’s Ineffective Assistance of Counsel Claims

In his motion to vacate sentence, Petitioner raises two claims, both of which assert that his
trial counsel was constitutionally ineffective at sentencing. The standard applicable to ineffective
assistance 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
5

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 687; 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.
In evaluating whether counsel was deficient, the “proper
standard for attorney performance 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 689.
.

.

.

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, 30$ f.3d 308, 315 (3d Cir. 2002).
.

.

.

.

6

Judge, 119 F. Supp. 3d at 280-8 1.
In his first claim, Petitioner asserts that his trial counsel was ineffective insomuch as
counsel did not file a sentencing memorandum and because Petitioner believes he did not
adequately argue for a lesser sentence than the one Petitioner ultimately received. There is only
one argument that Petitioner contends counsel should have, but did not, raise

—

that Petitioner’s

history of drug and alcohol abuse should have been raised as a mitigating factor. Petitioner
presents little in the way of argument in support of this contention. It is clear, however, that had
counsel raised that argument at sentencing, it would not have reduced Petitioner’s resulting
sentence.
In this matter, counsel secured for Petitioner an extremely favorable plea agreement in
which the Government was prevented from arguing in favor of the significantly higher guideline
range recommended in the PSR. In addition to securing that agreement, counsel for Petitioner
argued persuasively that this Court should provide Petitioner with leniency based on the hardship
Petitioner’s family would suffer as a result of his incarceration and based on Petitioner’s attempts
at cooperating with the Government.

Absent the favorable plea agreement and counsel’s

arguments on Petitioner’s behalf, Petitioner almost certainly would have received a much harsher
sentence than the one he ultimately received, and even had counsel raised the substance abuse
argument Petitioner now presents, this Court would not have sentenced Petitioner to less than the
fifly-seven months he did receive. As a result, Petitioner cannot show that he was prejudiced by
counsel’s representation at sentencing. Jztdge, 119 F. Supp. 3d at 280-81. There is no reasonable
likelihood that Petitioner would have received a lesser sentence had counsel raised Petitioner’s
history of alcohol abuse at sentencing, and as a result Petitioner can establish neither Strickland
prejudice nor ineffective assistance of counsel, and Petitioner is therefore not entitled to relief on

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his sentencing related claim. Id.; see also United States v. Hankerson, 496 F.3d 303, 3 11-12 (3d
Cir. 2007) (a petitioner fails to establish Strickland prejudice based on an alleged failure to make
mitigating arguments where Petitioner cannot show that, but for the failure to present those
arguments, he would have received a lesser sentence).
In his final claim, Petitioner attempts to assert that his trial counsel failed to adequately
challenge the amount of restitution he was ordered to pay following his conviction. “The plain
and unambiguous language of
custody.

.

.

§ 2255 indicates that the statute only applies to ‘[a] prisoner in

claiming the right to be released.” United States v. Trimble, 12 F. Supp. 3d 742, 745

(E.D. Pa. 2014). Restitution orders, however, do not present a sufficient restraint on a petitioner’s
liberty to constitute “custody” for habeas purposes. Id.; see also Obado v. New Jersey, 32$ F.3d
716, 71$ (3d Cir. 2003); United States v. Ross, $01 F.3d 374, 380-81 (3d Cir. 2015). Because

§

2255 permits only challenges to custody and restitution orders do not qualify as “custody,” the
statute does not provide petitioners with an avenue for relief from such orders, and a petitioner
may therefore not challenge an order of restitution through a

§ 2255 motion. See Ridley v. Smith,

179 F. App’x 109, 111 (3d Cir. 2006) (quoting United States v Kramer, 195 F.3d 1129, 1130 (9th
Cir. 1999) (collecting cases)); see also Kaminski v. United States, 339 F.3d $4, 87-89 (2d Cir.
2003).

The caselaw is also clear that such a claim challenging restitution does not become

cognizable under

§ 2255 merely because it is bundled within a motion which also presents

cognizable habeas claims challenging the petitioner’s physical custody. Trimble, 12 F. Supp. 3d
at 745-46; Kaminski, 339 F.3d at $9. As the Second Circuit explained in Kaminski:
Habeas lies to allow attacks on wrongful custodies. There is
therefore no reason why the presence of a plausible claim against a
custodial punishment should make a noncustodial punishment more
amenable to collateral review than it otherwise might be.
Collateral relief from noncustodial punishments is not made more
readily available to a petitioner just because that petitioner happens
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at the time to be subject also to custodial penalties. And, the mere
fact that the sentencing court chose to impose incarceration on a
defendant in addition to restitution does not, as to the restitution
order, distinguish that defendant from someone who, having been
convicted, received a punishnient that did not inctude any custodial
element
339 F.3d at $9. Likewise, that the challenge to the restitution order is presented as an ineffective
assistance of counsel claim does not change this result. Trimble, 12 F. Supp. 3d at 746; see also
Shephardv. United States, 735 F.3d 797, 798 (8th Cir. 2013); Karninski, 339 F.3d at 85 n. 1; United
States v Thiele, 314 F.3d 399, 402 (9th Cir. 2002); Smullen v. United States, 94 F.3d 20,26 (1st
Cir. 1996); United States v. Segler, 37 F.3d 1131, 1137 (5th Cir. 1994); but see Weinberger v.
united States, 268 F.3d 346, 351 n. 1 (6th Cir. 2001). As Petitioner’s restitution based ineffective
assistance of counsel claim challenges only the restitution order levied against Petitioner, and does
not in any way address his physical custody, it does not present a cognizable habeas claim and
must be dismissed as such. Trimble, 12 F. Supp. 3d at 746; Kaminski, 339 F.3d at 89.

III. CERTIFICATE Of APPEALABILITY

Pursuant to 28 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 that the issues presented here are adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

For the reasons expressed above, all of

Petitioner’s claims are without merit and Petitioner has therefore failed to make a substantial
showing of the denial of a constitutional right. As jurists of reason would therefore not disagree
with this Court’s denial of Petitioner’s claims, this Court will deny Petitioner a certificate of
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appealability.

IV. CONCLUSION
for the reasons set forth above, Petitioner’s amended motion to vacate sentence (ECF No.
5) is DENIED and Petitioner is DENIED a certificate of appealability. An appropriate order

follows.

onyThse L. Linares,
ited States District Judge

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