Alexeev v. United States of America
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2255 -- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, Petitioner's request for relief pursuant to 28 U.S.C. § 2255 is denied in its enti rety. Petitioner is further denied a certificate of appealability as he fails to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Fed. R. App. P. 22(b); Miller-El v. Cockrell, 5 37 U.S. 322, 336 (2003); Lucidore v. New York State Div. of Parole, 209 F. 3d 107, 112 (2d Cir. 2000). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and, therefor e, in forma pauperis status is denied for purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 44445 (1962). The Clerk of the Court is directed to mail to pro se petitioner a copy of this Electronic Order and the Attached Written Memorandum and Order and to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 3/27/2014. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
BORIS ALEXEEV, pro se,
UNITED STATES OF AMERICA,
MEMORANDUM AND ORDER
DORA L. IRIZARRY, United States District Judge:
Boris Alexeev (“Petitioner”) was convicted, upon his plea of guilty, of Hobbs Act
robbery and conspiracy to obstruct justice. On March 19, 2008, this Court sentenced him to 168
months of incarceration, followed by three years of supervised release. (Sentencing Tr. at 43,
Docket No. 04-cr-1041, 1 Doc. Entry No. 415.) Petitioner timely appealed. On May 29, 2009,
the Second Circuit Court of Appeals (“Second Circuit”) affirmed the judgment of this Court. See
United States v. Grabsky, 330 F. App’x. 259 (2d Cir. 2009). A writ of certiorari to the Supreme
Court was denied on October 13, 2009. Alexeev v. United States, 558 U.S. 957 (2009).
On October 12, 2010, Petitioner, proceeding pro se, 2 filed the instant Petition
challenging his sentence pursuant to 28 U.S.C. § 2255.
(See generally Petition (“Pet.”), Doc.
Entry No. 1; Memorandum of Points and Authorities in Support of Petition (“Mem.”), Doc.
All references to “Docket No. 04-cr-1041” are to the criminal case docket underlying the
In reviewing the Petition, the court is mindful that, “[a] document filed pro se is to be liberally
construed and a pro se [pleading], however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007). Accordingly, the court interprets the Petition “to raise the strongest arguments that [it]
suggest[s].” Triestman v. Fed. Bureau of Prisons, 470 F. 3d 471, 474 (2d Cir. 2006) (emphasis
Entry No. 2.) Petitioner contends that he received ineffective assistance of counsel during his
plea allocution, sentencing, and appeal. (Mem. at 3-4.) Petitioner seeks an evidentiary hearing
and resentencing. (Mem. at 5, 33.)
For the reasons stated below, Petitioner’s Section 2255 Petition is denied in its entirety.
Indictment and Plea Hearing 3
On December 21, 2005, Petitioner pled guilty before the Honorable Sandra L. Townes,
pursuant to a plea agreement, to Counts Ten and Twelve of the Tenth Superseding Indictment.
Counts Ten and Twelve charged Petitioner and other members of the “Passage Crew” criminal
enterprise with the commission of Hobbs Act robbery and conspiracy to obstruct justice in
January 2003. (Plea Transcript (“Plea Tr.”) at 10, 15-17, 19, Docket No. 04-cr-1041, Doc. Entry
No. 339; Indictment ¶¶ 119, 121, Docket No. 04-cr-1041, Doc. Entry No. 256.) At the time of
his plea allocution, Petitioner was represented by Thomas J. Sullivan, Esq. (“Sullivan”). (Pet. at
The Tenth Superseding Indictment also charged Petitioner with several crimes to which he
did not plead guilty, including, in relevant part, racketeering (Count One) and racketeering
conspiracy (Count Two). (Indictment ¶¶ 8-9, 108-109.) Among the predicate acts alleged in
support of Counts One and Two was the attempted extortion of Jane Doe #1 (id. ¶¶ 13-15), for
which Petitioner had already completed a 30-month sentence of imprisonment (the “prior
conviction”). (Mem. at 2.)
The Honorable Sandra L. Townes, United States District Judge, originally presided over the
underlying criminal action, sentencing Petitioner to 168 months of incarceration, followed by
three years of supervised release. (See Judgment, Docket No. 04-cr-1041, Doc. Entry No. 321.)
This matter was subsequently remanded to this Court by the Second Circuit for resentencing
when the government admitted error for having advocated a particular sentence in violation of
the plea agreement. (See Mandate, Docket No. 04-cr-1041, Doc. Entry No. 366.)
The plea agreement indicated, inter alia, that Petitioner would be subject to an estimated
United States Sentencing Guidelines (“Guidelines”) sentence range of 121 to 151 months’
imprisonment, based upon an adjusted offense level of 31, and assuming Petitioner fell within
Criminal History Category II. (Plea Agreement ¶ 2.) The plea agreement also provided that the
estimated Guidelines range contained in the agreement was not binding on the government, the
Probation Department (“Probation”), or the Court, and Petitioner would not be entitled to
withdraw his guilty plea if the Court’s determination of the Guidelines range was different than
that provided by the plea agreement. (Id. ¶ 3.)
During the change of plea hearing, Petitioner, who had been placed under oath, confirmed
that he had read and reviewed the plea agreement with his attorney and that he understood all of
its terms. (Plea Tr. at 3-4.) When the court advised Petitioner that the court was not bound by
the Guidelines range estimate contained in the plea agreement and that he would not be
permitted to withdraw his plea if the estimate was incorrect, Petitioner affirmed that he
understood. (Id. at 12.) Petitioner also confirmed he understood that he could be deported from
the United States as a result of his guilty plea. (Id.) Additionally, Petitioner stated that he was
satisfied with his attorney’s representation. (Id. at 13-14). The court found that Petitioner fully
understood his rights and the consequences of his plea, that Petitioner was acting voluntarily, and
that there was a factual basis for the plea. (Id. at 18, 20.) Accordingly, the court accepted
Petitioner’s plea of guilty to Counts Ten and Twelve of the Tenth Superseding Indictment. (Id.)
Sentencing and Direct Appeal
On January 9, 2008, Probation disclosed the Presentence Investigation Report (“PSR”), in
which Probation calculated a Guidelines sentencing range of 168 to 210 months, based on a total
offense level of 34 and Criminal History Category II. By letter dated January 23, 2008, defense
counsel objected to the Guidelines range as calculated by Probation. (1/23/08 Let., Docket No.
04-cr-1014, Doc. Entry No. 387.) Specifically, defense counsel argued that a Criminal History
Category of II was unreasonable because Petitioner’s prior conviction was related to the crimes
to which he had pled guilty in the underlying criminal case. (1/23/08 Let at 3.) Mr. Sullivan
argued that Probation’s estimated Guidelines range was incorrect because “the advisory
guidelines contained [in the PSR] did not credit the 30 months of imprisonment [Petitioner]
already served in connection with this case.” (Id.)
Defense counsel also submitted a sentencing memorandum on March 12, 2008 in which
he again argued that the Court should “credit the amount of imprisonment [Petitioner] . . . served
in connection with [the prior conviction].” (Sentencing Mem. at 2, 12-16, 18, 25-27, Docket No.
10-cr-1014, Doc. Entry No. 394.) Defense counsel argued at length that the version of the
Guidelines in place when Petitioner committed the crimes for which he was convicted in the
underlying criminal case should be applied instead of the version of the Guidelines in place at the
time of sentencing.
(Id. at 34-52.)
Specifically, Mr. Sullivan discussed, inter alia, the
application to Petitioner’s case of Section 5G1.3 of the Guidelines, which addresses when prior
sentences must run concurrently with later sentences. (Id. at 48-52.)
At the March 19, 2008 sentencing hearing, Petitioner’s attorney reiterated his argument
that Petitioner’s Criminal History Category calculation should not include his prior conviction
for attempted extortion because it was relevant conduct under the Guidelines. (Sentencing Tr. at
25-26.) Mr. Sullivan also argued that it would be “unfair” not to factor the time Petitioner had
already served for attempted extortion into his sentence. (Sentencing Tr. at 26.) After hearing
arguments from the parties as to Petitioner’s sentencing objections, the court found that
Petitioner’s attempted extortion conviction was not related to the crimes to which Petitioner had
pled guilty, because “[t]he prior offense did not occur during, in preparation for, or in attempting
to avoid responsibility for the instant offense of commission. There is no connection between
the two offenses.” (Sentencing Tr. at 23-29.)
The court concluded that a total offense level of 32 and a Criminal History Category of II
applied. (Sentencing Tr. at 23, 32.) Based on its consideration of the advisory Guidelines, the
3553(a) factors, and all of the facts and circumstances of this case, the Court imposed a term of
imprisonment of 168 months, three years’ supervised release, ordered restitution in the amount
of $215,264.61, and imposed a $200 special assessment. (Id. at 43-44.)
Petitioner, represented on appeal by Marsha R. Taubenhaus, Esq. (“Taubenhaus”) (Pet. at
7), raised several claims, including, inter alia, that Petitioner’s sentence was substantively
unreasonable because the district court failed to reduce his sentence to account for the time he
had served for his prior conviction as relevant conduct. See Grabsky, 330 Fed. App’x at 262-63.
On May 29, 2009, the Second Circuit rejected all of Petitioner’s claims by summary order and
affirmed the sentencing court’s judgment. See id. The Supreme Court denied Petitioner’s
application for a writ of certiorari on October 13, 2009. Alexeev, 558 U.S. 957.
I. Ineffective Assistance of Counsel
The court must evaluate Petitioner’s claim of ineffective assistance of counsel under the
two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, Petitioner
“must show that counsel’s representation fell below an objective standard of reasonableness . . .
under prevailing professional norms.” Id. at 687-88. “[C]ounsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Id. at 690. Second, 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.” Id. at 694. In the context of a guilty plea, the second prong of the Strickland test
is satisfied upon a showing by the defendant “that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Here, Petitioner claims that he received ineffective assistance of counsel because: (1)
Mr. Sullivan and Ms. Taubenhaus failed to argue that application of the Guidelines version in
effect at the time of sentencing violated the Ex Post Facto Clause of the United States
Constitution (Mem. at 3-4, 9-29); (2) Mr. Sullivan failed to advise Petitioner that he could be
subject to deportation by pleading guilty (Mem. at 30-31); and (3) Mr. Sullivan failed to advise
Petitioner of his right to contact the Russian Consulate. (Mem. at 31-32.)
Failure to Argue Ex Post Facto Violation
Generally, “a sentencing court should apply the version of the Sentencing Guidelines in
effect as of the date of sentencing.” United States v. Boyle, 283 Fed. App’x 825, 826 (2d Cir.
2007) (citing United States v. Keigue, 318 F. 3d 437, 442 (2d Cir. 2003)). However, the
Supreme Court has held that the “Ex Post Facto Clause is violated when a defendant is sentenced
under Guidelines promulgated after he committed his criminal acts and the new version provides
a higher sentencing range than the version in place at the time of the offense.” Peugh v. United
, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013). In such situations, the Ex Post Facto
Clause demands the use of the version of the Guidelines in place at the time the criminal acts
were committed. See United States v. Boyle, 283 Fed. App’x at 826 (citing United States v.
Kilkenny, 493 F. 3d 122, 126-27 (2d Cir. 2007)).
Petitioner contends that both Mr. Sullivan and Ms. Taubenhaus were ineffective for
failing to argue that Petitioner should have been sentenced under the version of the Guidelines in
effect at the time he committed the offenses to which he pled guilty (the “2002 Guidelines”), 4
rather than under the version in effect at the time of sentencing (the “2007 Guidelines”). 5
Specifically, Petitioner argues that application of Section 5G1.3 of the 2007 Guidelines resulted
in a higher sentence than would have resulted from application of the 2002 Guidelines. (Pet. at
4.) Petitioner also argues that “application note 7” of the 2002 Guidelines allowed the court to
“credit” the time he had already served in connection with the prior conviction towards his
sentence in the underlying case. (Id.)
For the reasons stated below, Petitioner has failed to show that application of the 2002
Guidelines would have provided a lower sentence than the 2007 Guidelines.
Petitioner has not shown that counsels’ alleged failure to make the above arguments prejudiced
him, as required by the second prong of the Strickland standard.
Section 5G1.3 of the 2002 Guidelines provides for concurrent sentencing with an
undischarged term of imprisonment “[i]f . . . the undischarged term of imprisonment resulted
from offense(s) that have been fully taken into account in the determination of the offense level
for the instant offense . . . .” U.S.S.G. § 5G1.3(b) (2002). Similarly, Section 5G1.3 of the 2007
Guidelines requires concurrent sentencing with an undischarged term of imprisonment if that
term of imprisonment “resulted from another offense that is relevant conduct to the instant
offense.” U.S.S.G. § 5G1.3(b). It is undisputed that Petitioner’s term of imprisonment for the
The 2002 Guidelines, promulgated on November 1, 2002, were in effect in January 2003, when
Petitioner committed the offenses to which he pled guilty in the underlying criminal case.
The 2007 Guidelines, promulgated on November 1, 2007, were in effect at the time of
Petitioner’s sentencing before this Court on March 19, 2008.
prior conviction was already discharged before he was arrested for the crimes of conviction in
the underlying case. Thus, under either Guidelines version, Section 5G1.3 was inapplicable by
its express terms.
Petitioner cites application note 7 6 of the 2002 version of 5G1.3, which provides that
courts are permitted to downwardly departure if a defendant’s prior term of imprisonment has
been discharged, but would otherwise have met the requirements of 5G1.3(b). See U.S.S.G. §
5G1.3 app. note 7 (2002). However, application note 4 of the 2007 version of Section 5G1.3
provides the Court with the same discretion.
See U.S.S.G. § 5G1.3 app. note 4 (2007).
Additionally, Section 5K2.23 of the 2007 Guidelines allows for a downward departure where:
(1) a defendant has completed serving a term of imprisonment and (2) Section 5G1.3(b) “would
have provided an adjustment had the completed term of imprisonment been undischarged.”
U.S.S.G. § 5K2.23 (2007).
Since the 2007 Guidelines provide the Court with the same
discretion to downwardly departure as the 2002 Guidelines, the court’s application of the 2007
Guidelines did not prejudice Petitioner.
Moreover, a downward departure under both application note 7 and application note 4 is
available only if the requirements of Section 5G1.3, other than the requirement that the prior
term of imprisonment be undischarged, are met.
In this case, Section 5G1.3’s remaining
requirements were not satisfied under either version of the Guidelines. First, as noted above,
under the 2002 Guidelines, a downward departure is available if the prior offense has been “fully
taken into account in the determination of the offense level for the instant offense.” U.S.S.G.
The commentary accompanying the 2002 Guidelines, including application notes, does not
have the force of law, but should be “treated as the legal equivalent of a policy statement.”
U.S.S.G. § 1B1.7 (2002). “Failure to follow such commentary could constitute an incorrect
application of the guidelines, subjecting the sentence to possible reversal on appeal.” Id. The
same language is present in U.S.S.G. § 1B1.7 (2007).
5G1.3 (2002). To be “fully taken into account,” “the prior offense must have been actually
accounted for by the district court in calculating the defendant’s offense level.” United States v
Williams, 260 F. 3d 160, 167 (2d Cir. 2001). Here, the prior offense was not considered in
calculating Petitioner’s offense level.
(See PSR ¶¶ 26-47.)
Although Petitioner’s prior
conviction was alleged as a predicate to Counts One and Two of the Tenth Superseding
Indictment, Petitioner did not plead guilty to either of these charges, and the Court found that
Petitioner’s prior conviction was unrelated to the charges to which he pled guilty. (Sentencing
Tr. at 23-29.) Additionally, although Petitioner’s Criminal History Category was increased from
I to II as a result of his prior conviction, the Second Circuit has found that an increase in a
defendant’s Criminal History Category does not qualify as “fully taking into account” a prior
conviction. See United States v. Garcia-Hernandez, 237 F. 3d 105, 108-09 (2d Cir. 2000).
Thus, Petitioner’s prior conviction was not “fully taken into account” by the Court in
determining offense level for the instant offenses. In other words, Section 5G1.3 of the 2002
Guidelines would have been inapplicable to Petitioner’s case, even in light of application note 7.
Similarly, under the 2007 Guidelines, Section 5G1.3(b) provides for a downward
departure where a prior conviction is “relevant conduct” to the instant offense. U.S.S.G. § 5G1.3
(2007). “Relevant conduct” is defined to include acts “that occurred during the commission of
the offense of conviction, in preparation for that offense, or in the course of attempting to avoid
detection or responsibility for that offense.” U.S.S.G § 1B1.3(a)(1)(A). The Court found that
Petitioner’s prior attempted extortion conviction was not relevant conduct to his instant offenses
of robbery and conspiracy to obstruct justice. (Sentencing Tr. at 29.)
In sum, application of the 2002 Guidelines would not have resulted in a lower sentence in
the underlying criminal matter.
Under both Guidelines versions, the downward departure
provided by Section 5G1.3 was unavailable in Petitioner’s case. Neither Mr. Sullivan nor Ms.
Taubenhaus were ineffective for failing to make this meritless argument. See United States v.
Regalado, 518 F.3d 143, 150 (2d Cir. 2008) (finding that “failure to make a meritless argument
does not amount to ineffective assistance”). Thus, Petitioner has failed to meet either prong of
the Strickland standard.
Accordingly, Petitioner’s claim that counsel was ineffective for failing to argue that the
Court should have applied the 2002 Guidelines in sentencing the Petitioner is denied as
Failure to Advise about Deportation
Petitioner’s claim that Mr. Sullivan was ineffective for failing to inform him that he could
be deported as a result of pleading guilty to the instant offenses is unavailing.
Regardless of the content of any communications between Petitioner and Mr. Sullivan,
Petitioner made clear, under oath, at his plea allocution that he was aware of the possibility of
deportation based upon his instant convictions upon being so advised by the court. (Plea Tr. at
12.) See United States v. Juncal, 245 F. 3d 166, 171 (2d Cir. 2001) (recognizing that plea
allocution testimony “carries such a strong presumption of accuracy that a district court does not,
absent a substantial reason to find otherwise, abuse its discretion in discrediting later self-serving
and contradictory testimony as to whether a plea was knowingly and intelligently made”); see
also United States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005) (holding that, where a Petitioner’s
“specific claim is that counsel has misled him as to the possible sentence which might result
from a plea of guilty, . . . the issue is whether [Petitioner] was aware of actual sentencing
possibilities”); Wang v. United States, 2011 WL 73327, at *5 (E.D.N.Y. Jan. 10, 2011), aff’d,
458 F. App’x 44 (2d Cir. 2012) (finding that the prejudice prong of the Strickland standard could
not be established where the court advised the defendant of the consequences of his plea). Thus,
Petitioner has not shown that but for Mr. Sullivan’s alleged failure to mention the possibility of
deportation, Petitioner would not have pled guilty and would have insisted on going to trial.
Therefore, Petitioner did not suffer any prejudice, as required by the second prong of the
Strickland standard, from Mr. Sullivan’s alleged omission.
Accordingly, Petitioner’s claim that counsel was ineffective for failing to advise him of
the possibility of deportation is denied.
Failure to Advise Petitioner of his Right to Contact the Russian Consulate
Petitioner’s claim that counsel was ineffective for failing to inform him of his right to
contact the Russian Consulate under Article 36 of the Vienna Convention (“Article 36”) is
similarly without merit.
Article 36 “addresses communication between an individual and his consular officers
when the individual is detained by authorities in a foreign country.” Sanchez-Llamas v Oregon,
548 U.S. 331, 337 (2006). Since “the purpose of [the] privileges and immunities [created by the
Vienna Convention] is not to benefit individuals but to ensure the efficient performance by
consular posts,” United States v. De La Pava, 268 F. 3d 157, 164 (2d Cir. 2001), it is unclear
whether Article 36 is the source of any individually enforceable right. Moreover, the text of
Article 36 does not place any obligation on an attorney to inform his client of his right to contact
his consulate. See Vienna Convention on Consular Relations, Art. 36, 1969 WL 97928.
Courts in this Circuit routinely have found that failure to inform a client of his rights
under Article 36 does not constitute ineffective assistance of counsel under the first prong of
Strickland. See James v. United States, 2006 WL 2850193, at *4 (S.D.N.Y. Oct. 5, 2006)
(finding that because a petitioner was represented by counsel, he “received all of the benefits that
he claims consular notification would have provided him”); Alcantara v. United States, 2003 WL
102873, at *3 (S.D.N.Y. Jan. 10, 2003) (noting that Article 36 is intended to “ensure that a
foreign national charged with a violation of American law is visited by an official representative
of his native country who can explain to him his rights as a criminal defendant in the United
States, most notably his right to legal counsel”); United States v. Arango, 1999 WL 1495422, at
*3 (E.D.N.Y. Dec. 29, 1999) (finding that “a defense attorney cannot be labeled ineffective for
failing to advise his client of the right to speak to a diplomatic official who could do no more to
protect his rights than counsel himself”).
Moreover, even assuming, arguendo, that counsel’s failure to inform Petitioner of Article
36 could be considered unreasonable, Petitioner has failed to show prejudice. Petitioner has not
demonstrated that, had he been informed of his right to contact the Russian Consulate, there is a
reasonable probability that he would have contacted the Russian Consulate and that the Russian
Consulate could have rendered assistance beyond that provided by Petitioner’s attorney. As
such, Petitioner fails to meet the second prong of Strickland.
Accordingly, Petitioner’s claim that counsel was ineffective for failing to inform him of
his rights under Article 36 is denied.
For the reasons set forth above, Petitioner’s request for relief pursuant to 28 U.S.C. §
2255 is denied in its entirety. Petitioner is further denied a certificate of appealability as he fails
to make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2);
see Fed. R. App. P. 22(b); Miller–El v. Cockrell, 537 U.S. 322, 336 (2003); Lucidore v. New
York State Div. of Parole, 209 F. 3d 107, 112 (2d Cir. 2000). The Court certifies pursuant to
28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and,
therefore, in forma pauperis status is denied for purpose of any appeal. See Coppedge v. United
States, 369 U.S. 438, 444–45 (1962).
Dated: Brooklyn, New York
March 27, 2014
DORA L. IRIZARRY
United States District Judge
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