Reisman v. United States of America

Filing 37

MEMORANDUM AND OPINION: For the reasons discussed in the attached Memorandum & Order, petitioner's Section 2255 motion to vacate, set aside, or correct his sentence is denied and dismissed with prejudice, and the application to remove petitioner from "refuse-to-pay" status is denied and dismissed. The Clerk of the Court is respectfully requested to dismiss the petition, enter judgment in favor of respondent, and close this case. Respondent shall serve a copy of this Memorandum and Order upon petitioner and file a declaration of service within two days of the date of this Memorandum and Order. Ordered by Judge Kiyo A. Matsumoto on 10/24/2013. (Tsai, Denise)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
MITCHELL REISMAN,
Petitioner,

NOT FOR PRINT OR
ELECTRONIC PUBLICATION

-againstUNITED STATES OF AMERICA,
MEMORANDUM & ORDER
Respondent.
12-CV-2913 (KAM)
---------------------------------X
KIYO A. MATSUMOTO, UNITED STATES DISTRICT JUDGE:

Petitioner Mitchell Reisman (“petitioner”) was
sentenced to 51 months of incarceration pursuant to a judgment
of conviction imposed on October 12, 2010 in the United States
District Court for the Eastern District of New York.

Alleging

that his federal and constitutional rights were violated due to
the ineffective assistance of his trial counsel and because he
was prevented from testifying at his trial, petitioner seeks
relief pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
correct his sentence.

(ECF No. 1, Motion (“Mot.”) filed 6/8/12;

ECF No. 2, Memorandum of Law in Support of Motion to Vacate, Set
Aside, or Correct Sentence dated June 8, 2012 (“Pet. Mem.”) at
1, 3-4.)

Petitioner also challenges the evidence presented at

trial and prosecutorial statements made at sentencing.
Mem. at 3-4.)

(Pet.

In a separate letter motion, petitioner

additionally seeks to be removed from “refuse-to-pay” status at
the Federal Correctional Institution in Cumberland, Maryland,

1

where he is incarcerated.

(ECF No. 12, Pet. Letter dated

9/11/12 (“Pet. 9/11/12 Ltr.”) at 2.)
For the reasons set forth below, the petition, in its
entirety, and his request to be removed from “refuse-to-pay”
status are denied.
BACKGROUND
I.

Petitioner’s 2010 Trial
Petitioner’s criminal convictions arise from a jury

trial in the district court for the Eastern District of New
York, on the charges of Conspiracy to Commit Mail and Wire
Fraud, Wire Fraud, and Mail Fraud.

Between 2003 and 2008,

petitioner and three co-defendants fraudulently solicited
investors and lenders for B.I.M. Mining Corporation (“B.I.M.”),
a Nevada-based corporation.

United States v. Kahale, 09-CR-159

(KAM), 2010 WL 3851987, *2-13 (E.D.N.Y. Sept. 27, 2010).
Petitioner and co-defendants falsely represented to investors
that B.I.M. was a large corporation with substantial assets,
consisting in large part of millions of dollars’ worth of
precious metals or the rights to such metals.

Id. at *2, *4.

The defendants solicited investments or loans from
victims by stating, in sum and substance, that B.I.M. would use
the money to extract and refine gold from gold mines, to recover
other resources, and to repatriate gold from the Philippines,
claiming that they had access to World War II deposits.
2

Id. at

*2-4.

When a victim loaned or invested money with B.I.M., the

defendants issued Gold Delivery Certificates guaranteeing a
return on investment in six months or less as collateral for
loans or as a proof of investment.

See id.

In reality, B.I.M.

obtained income only when the defendants induced victims to
invest or loan money.

Id. at *2-12.

After victims were induced

into loaning or investing, the defendants sent fraudulent update
letters and e-mails explaining why the aforementioned Gold
Delivery Certificates could not be redeemed.

Id. at *3-5.

Petitioner specifically induced a $100,000 investment by one
victim, Vernon Wetmore, by fraudulently representing that B.I.M.
was “asset-rich.”

Id. at *2.

Petitioner was also able to

obtain a $50,000 loan from another victim, Dr. Amankwah, in the
same manner.

Id. at *3-4.

Petitioner was first indicted along with his three codefendants on March 19, 2009, and a superseding indictment was
filed on September 3, 2009.

The superseding indictment charged

petitioner and his co-defendants with five counts of mail fraud
in violation of 18 U.S.C. §§ 1341 and 1342, one count of wire
fraud in violation of 18 U.S.C §§ 1342 and 1343, and one count
of conspiracy to commit mail and wire fraud in violation of 18
U.S.C. § 1349.

The trial began on February 5, 2010, and the

government introduced evidence establishing petitioner’s role in
the fraud, as well as testimony from victims.
3

The petitioner

did not testify, and defense counsel did not introduce witnesses
on his behalf.

On February 19, 2010, the jury found petitioner

and his co-defendants guilty on all counts.

Kahale, 2010 WL

3851987, at *1.
Petitioner subsequently filed a motion for judgment of
acquittal pursuant to Federal Rule of Criminal Procedure 29, as
well as a motion for a new trial under Federal Rule of Criminal
Procedure 33, arguing that his trial attorney had rendered
ineffective assistance and that the evidence introduced at trial
was legally insufficient to warrant his conviction.

On

September 27, 2010, this Court denied all of petitioner’s posttrial motions in a Memorandum and Order.

See Kahale, 2010 WL

3851987.
Prior to sentencing, petitioner filed a letter
objecting to certain portions of his presentence report (“PSR”),
prepared by the Probation Department.

(See Kahale, 2010 WL

3851987; Docket No. 09-CR-159, ECF No. 350, Letter to Judge
Matsumoto (“Sentencing Ltr.”) dated and filed 8/25/10 at 1-2.)
The report contained information regarding his “Independent
Schemes,” aside from the schemes of conviction, which were
alleged to have resulted in an additional $2,000,000 in losses
to victims.

PSR ¶¶ 21-23.

Petitioner’s letter specifically

objected to the inclusion of this information in the PSR.
(Sentencing Ltr. at 1-2.)

The government responded to his
4

objections on September 16, 2010, including additional details
and arguing that his “independent schemes” should be factored
into his sentence.

(See Kahale, 2010 WL 3851987; Docket No. 09-

CR-159, ECF No. 370, U.S.A. Sentencing Memorandum (“U.S.
Sentencing Mem.”) dated 9/16/10 at 7.)
petitioner appeared for sentencing.

On October 12, 2010,

At the hearing, petitioner

and the government both made arguments regarding the
“independent schemes” detailed in the PSR.

This court

acknowledged the parties’ arguments and stated from the bench
that it would not consider these allegations in determining
petitioner’s sentence.

Petitioner was sentenced to 51 months

imprisonment on the counts of conviction, to be served
concurrently, with credit for time served, and three years’
supervised release.

This court also ordered petitioner and co-

defendants to pay restitution of $1,019,000 and $700 in special
assessments, and held them jointly and severally liable for
forfeiture in the amount of $1,069,000.
II.

Post-Conviction Proceedings Before the Second Circuit
On October 20, 2010, petitioner timely filed a notice

of appeal with the Second Circuit.

Petitioner argued that he

received ineffective assistance from his trial counsel and that
his jury verdict was based on insufficient evidence.

United

States v. Graham, 477 F. App’x 818, 824, 826-27 (2d Cir. 2012)

5

(upholding petitioner’s convictions as proper); cert. denied,
133 S. Ct. 349 (2012).
was unreasonable.

Petitioner also argued that his sentence

The Second Circuit held that petitioner’s

sentence was reasonable and that his claims regarding the
sufficiency of the evidence were unfounded.

Id. at 825-26.

The

Second Circuit did not reach the merits of petitioner’s argument
regarding ineffective assistance of counsel, concluding that the
record on appeal was “insufficient for us to resolve [the]
claim.”
III.

Id. at 827.

The Instant Motion
On June 8, 2012, petitioner filed the instant motion

pursuant to 28 U.S.C. § 2255.

(See Mot.)

The petition was

filed within one year of the date on which judgment became final
and so is timely.

See 28 U.S.C. § 2255(f)(1).
STANDARD OF REVIEW

A § 2255 motion is made once a prisoner is in custody
and sentence has been imposed.

See 28 U.S.C. § 2255(a).

motions are distinct from habeas petitions.
v. Hayman, 342 U.S. 205, 219 (1952).

Such

See United States

Motions under this section

are appropriate for prisoners to challenge the imposition of a
sentence.

See Adams v. United States, 372 F.3d 132 (2d Cir.

2004) (holding that petitioner’s habeas petition challenging the
district court’s jurisdiction was barred by section 2255, which

6

governs motions to vacate, set aside, or correct a sentence).

A

prisoner making a § 2255 motion alleges that his sentence was
unconstitutional or violated the laws of the United States; that
the sentencing court lacked jurisdiction; that the sentence was
“in excess of the maximum authorized by law,” and/or that the
sentence is otherwise subject to collateral attack.
U.S.C § 2255(a).

See 28

However, a proceeding under this section

cannot be used to review a federal court of appeals decision to
dismiss an appeal.

Rivera v. United States, 477 F.2d 927 (3d

Cir. 1973) (dismissing § 2255 motion because pro se petitioner
sought to review appellate court decision).

Additionally, in

most cases, an issue that has been decided adversely to a
defendant on direct appeal cannot be litigated under this
section.

United States v. Natelli, 553 F.2d 5 (2d Cir. 1977),

cert. denied, 434 U.S. 819 (1977); Henkel v. United States, 367
F. Supp. 1144 (W.D. Pa. 1973), aff’d without op., 503 F.2d 1398
(3d Cir. 1974), cert. denied, 420 U.S. 978 (1975); Stephan v.
United States, 496 F.2d 527 (6th Cir. 1974), cert. denied, 423
U.S. 861 (1975); Jackson v. United States, 495 F.2d 349 (8th
Cir. 1974).
DISCUSSION
Jurisdiction is not in dispute in this proceeding, and
the petitioner filed his motion timely.

Petitioner’s claims

include (1) the sufficiency of evidence at trial, (2)
7

ineffective assistance of counsel, (3) the court’s consideration
of prosecutorial statements at sentencing, and (4) petitioner’s
request to be removed from “refuse-to-pay” status at the Federal
Correctional Institution in Cumberland, Maryland.
I.

Petitioner’s Evidentiary Claim
Under the doctrine of collateral estoppel, a litigant

who has had a full and fair opportunity to actually litigate an
issue cannot relitigate the same issue.

Issues that have been

raised and considered on direct review cannot be relitigated by
a motion under § 2255.

United States v. Jones, 918 F.2d 9, 10-

11 (2d Cir. 1990) (quoting Barton v. United States, 791 F.2d
265, 267 (2d Cir. 1986)); Krutikov v. United States, 324 F.
Supp. 2d 369 (E.D.N.Y. 2004) (holding that because petitioner’s
sufficiency of evidence claim had been decided on appeal to the
Second Circuit, the claim was barred); Sherbicki v. United
States, 366 F. Supp. 1290 (S.D.N.Y. 1973) (holding that because
petitioner’s evidentiary claims had been heard on appeal, the
claim was barred).
Petitioner raises evidentiary issues regarding his
trial, alleging that there was “[i]nsufficient evidence, [sic]
presented material falls short of the standard for reasonable
doubt.”

(Pet. Mem. at 9.) He further alleges that “[a]

conviction cannot be based on inferences piled upon inferences.”
(Pet. Mem. at 10.) Petitioner specifically states that “[to]
8

prove guilt[], in a conspiracy, the government must show a
defendant ‘knowingly associated himself with and participated in
the criminal venture,’” and cites to United States v. Burgos, 94
F. 3d 849, 873 (4th Cir. 1996).
2.)

(See ECF No. 25, Pet. Rep. at

He further states that the government must show that a

defendant shares “‘in the principals [sic] criminal intent,’”
and that the defendant has to have participated “‘at some stage’
in the venture, although participation in every stage is not
required.’”

(Pet. Rep. at 2) (emphasis added).

In his post-trial motion and on direct appeal of his
conviction to the Second Circuit, petitioner raised the same
legal and evidentiary issues that he now raises in the instant
petition.

The Second Circuit denied his appeal, stating that

“[w]e reject Reisman's arguments, as well, for the reasons
stated by the District Court. Reisman's argument that he was a
victim of his co-defendants is audacious, inasmuch as he kept
most of the money he took from the victims of the scheme. . . .
[W]e agree with the District Court that there was sufficient
evidence from which a rational jury could find both Scarlato and
Reisman guilty of the charges beyond a reasonable doubt.”
United States v. Graham, 477 F. App’x 818, 825 (2d Cir. May 1,
2012) (upholding petitioner’s convictions as proper); cert.
denied, 133 S. Ct. 349 (2012).

9

For the foregoing reasons, petitioner is barred from
re-litigating these evidentiary issues in the instant petition,
as he has already had the opportunity to fully and fairly be
heard.

United States v. Becker, 502 F.3d 122, 127 (2d Cir.

2007); United States v. Pitcher, 559 F.3d 120, 125 (2d Cir.
2009) (citing United States v. Sanin, 252 F.3d 79, 83 (2d Cir.
2001)).
II.

Ineffective Assistance of Counsel
In Strickland v. Washington, 466 U.S. 668 (1984), the

Supreme Court articulated a two-prong test in determining if an
attorney has provided ineffective assistance of counsel.

Under

Strickland, the inquiry is whether petitioner received
“reasonably effective assistance” of counsel, such that
counsel’s actions neither: (1) fell below an objective standard
of reasonableness (the “performance prong”); or (2) caused a
reasonable probability that the result of the trial would have
been different but for counsel’s unprofessional conduct (the
“prejudice prong”).
demanding.”

Id. at 687-96.

This standard is “highly

Kimmelman v. Morrison, 477 U.S. 365 (1986).

In considering the performance prong, a court must
“indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689.

Therefore, any “defendant must

overcome the presumption that, under the circumstances, the
10

challenged action ‘might be considered sound trial strategy.’”
Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101
(1955).
Next, under the prejudice prong, the reviewing
standard is “whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.”

Id. at 686.

In

establishing prejudice, “the question to be asked . . . is
whether there is a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt
respecting guilt.”

Henry v. Poole, 409 F.3d 48, 63-64 (2d Cir.

2005) (quoting Strickland, 466 U.S. at 695).

“A reasonable

probability is a probability sufficient to undermine confidence
in the outcome.”

Strickland, 466 U.S. at 694.
Application

A.

Strickland’s Performance Prong
Petitioner claims that his trial counsel provided

ineffective assistance of counsel for three reasons.

First,

petitioner alleges that his attorney failed to present the
testimony of fifteen witnesses that petitioner states had agreed
to testify on his behalf.

(Pet. Mem. at 3.)

Second, petitioner

asserts that his attorney chose not to submit “hundreds of
exculpatory evidence documents” (id. at 15.), or to use an “8
hour powerpoint presentation” at trial (id. at 13).
11

Third,

petitioner claims that his trial counsel did not allow him to
take the stand, contravening his constitutional right to
testify.

(Id. at 6.)

Without specification or explanation,

petitioner argues that the witnesses and evidence would have
established that he did not work for B.I.M., that he performed
due diligence before entering into a business arrangement with
B.I.M., and that any defrauding of victims was committed by his
co-defendants.
1.

(Id. at 4-15.)
Counsel’s Use of Witnesses

The Second Circuit has repeatedly held that the
decision on whether or not to call any witnesses “is a tactical
decision of the sort engaged in by defense attorneys in almost
every trial.”

United States v. Nersesian, 824 F.2d 1294, 1321

(2d Cir. 1987); accord United States v. Eyman, 313 F.3d 741, 743
(2d Cir. 2002); Corines v. Superintendent, Otisville
Correctional Facility, 621 F. Supp. 2d. 26, 42 (E.D.N.Y. 2008).
A lawyer’s decision not to call defense witnesses, “if
reasonably made, will not constitute a basis for an ineffective
assistance claim.”

Nersesian, 824 F.2d at 1321.

This is

consistent with Strickland’s statement that “strategic choices
made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.”

Henry v.

Poole, 409 F.3d 48, 63 (2d Cir. 2005) (quoting Strickland, 488
U.S. at 690).

The decision whether to call “particular
12

witnesses is peculiarly a question of trial strategy which
courts will practically never guess.”

United States ex rel.

Walker v. Henderson, 492 F.2d 1311, 1314 (2d Cir. 1974).
Here, petitioner states fifteen witnesses had agreed
to testify in his case, but only names four witnesses that his
trial counsel allegedly failed to call: Robert Cleary, Dr. Alan
Cohler, Francois Kamalenga, and Ingo Rohloff.
6.)

(Pet. Mem. at 5-

Ms. Jane Murray, petitioner’s attorney at trial, submitted

a declaration to this court explaining her decisions regarding
the use of witnesses at trial.

(See ECF No. 21, Declaration of

Jane Anne Murray (“Murray Decl.”) filed 11/13/12 at 5-8.)
In her declaration, Ms. Murray explains that she met
with Mr. Cleary on January 27, 2010, at which point Mr. Cleary
“confirmed that he knew little or nothing of Mr. Reisman’s
dealings with investors.”

(Id. at 5.)

Additionally, Mr. Cleary

stated that he did not wish to testify, and if subpoenaed, would
assert his Fifth Amendment rights.

(Id. at 5.)

Ms. Murray

therefore made the determination not to call Mr. Cleary as a
witness.
Ms. Murray had several telephone conversations with
Dr. Alan Cohler, and went so far as to serve him with a subpoena
and make arrangements to have him fly to New York to testify.
(Id. at 6.)

However, during a conversation on February 8, 2010,

Dr. Cohler stated that he was unaware “of any money Mr. Reisman
13

received from investors” and denied agreeing to assist with one
of the investments at issue.

(Id. at 6.)

Moreover, Ms. Murray

notes that through her communications with Dr. Cohler, it
appeared that his primary motivation in testifying was to
introduce documents at trial evidencing his alleged ownership of
buried assets in the Philippines and have the documents admitted
as court exhibits with an official court stamp, thereby
obtaining “some kind of judicial imprimatur to help market
investment opportunities in his repatriation scheme.”
6.)

(Id. at

Mr. Murray was therefore reluctant to use Dr. Cohler as a

witness, given his eagerness to “advance a personal, and likely
fraudulent, agenda.”

(Id.)

Ms. Murray further explained that

“to the extent Cohler did not simply taint Reisman by
association, Cohler’s testimony would likely portray Mr. Reisman
as an opportunist, a thief, and a liar.”

(Id.)

Regarding Francois Kamalenga and Ingo Rohloff, Ms.
Murray states that petitioner advised her that they would be
arriving in New York on February 1, 2010, in order to testify at
trial, but neither man showed up. (Id. at 6-7.)

Petitioner

attaches to his petition an unsigned letter purportedly from Mr.
Kamalenga in which Mr. Kamalenga asserts that Ms. Murray advised
him not to fly to New York for trial because he was “not
needed,” but Ms. Murray states under oath that she has no
recollection of ever speaking with Mr. Kamalenga.
14

(Pet. Mem. at

27; Murray Decl. at 6.)

Moreover, Ms. Murray states that her

investigation had led her to believe that calling Mr. Kamalenga
and Mr. Rohloff to the stand would ultimately be
counterproductive, as neither had any personal knowledge of the
trial issues.

(Murray Decl. at 7.)

Finally, Ms. Murray states that she spoke with Buzz
Potamkin, a possible witness, over the phone, and he confirmed
that he supported one of petitioner’s projects, Dinozine, that
was not the subject of any criminal charges.

Moreover, Mr.

Potamkin stated that he had never given petitioner any funds for
the project, and was not aware of petitioner’s fundraising
activities for the project.

(Id. at 7.)

his reluctance to testify.

(Id. at 7-8.)

He further indicated
Ms. Murray made the

determination that, in light of Mr. Potamkin’s reluctance to
testify and lack of personal knowledge regarding petitioner’s
charged activities, combined with the potential that his
testimony would open an inquiry into petitioner’s other business
ventures, she decided that he should not be called to testify as
a witness.

(Id. at 7-8.)

This was in part because she

“believed [his testimony] was likely to prejudice the jury
against Mr. Reisman.”

(Id. at 8.)

In her declaration, Ms. Murray also states that she
made efforts to track down other witnesses, but “to the extent
that these investigations uncovered individuals with any
15

personal knowledge of the transactions at issue, their
statements were not helpful to Mr. Reisman.”

(Id. at 8.)

Thus, it is clear that Ms. Murray carefully considered
the named witnesses and explored other possible witnesses, and
made reasonable determinations “after thorough investigation of
law and facts” that their testimony would not have assisted
petitioner at trial.
466 U.S. at 690).

Henry, 409 F.3d at 63 (quoting Strickland,

Counsel’s decision not to call these

witnesses thus satisfies the objective standard of
reasonableness.
Petitioner cites Justice v. Hoke, 90 F.3d 43 (2d Cir.
1996), to support his argument that defense counsel’s exclusion
of testimony violates his Sixth Amendment right to defense.
(Pet. Mem. at 14.)

Justice is distinguishable for two reasons.

First, in Justice, testimony was excluded by the presiding judge
at trial, not as part of defense counsel’s strategic decisionmaking as in this case.

Justice, 90 F.3d at 45-47.

Second, the

witnesses in Justice potentially could “create a reasonable
doubt that did not otherwise exist,” id. at 47 (quoting United
States v. Agurs, 427 U.S. 97, 112 (1976)), whereas the witnesses
discussed in the present case could not provide exculpatory
evidence.

See United States v. White, 174 F.3d 290, 296-97(2d.

Cir. 1999) (affirming petitioner’s conviction and denying
petition on the grounds that counsel acted reasonably in not
16

calling a particular witness to the stand and using certain
evidence); Greiner v. Wells, 417 F.3d 305, 323-25 (2d Cir. 2005)
(holding that counsel’s decision not to call unfriendly
witnesses was not deficient), cert. denied, 546 U.S. 1184
(2006).
Accordingly, petitioner’s counsel at trial did not act
unreasonably in deciding not to call witnesses to the stand.
2.

Counsel’s Use of Evidence

The Second Circuit has held that decisions relating to
the use of evidence are a matter of trial strategy and are
waivable by defense counsel on the defendant’s behalf, including
decisions regarding the “selective introduction of evidence,
stipulations, objections, and pre-trial motions.”

United States

v. Plitman, 194 F.3d 59, 63-64 (2d Cir. 1999) (holding that
defense counsel had validly waived client’s Sixth Amendment
confrontation right when counsel stipulated to admission of
hearsay testimony); see also White, 174 F.3d at 296-97
(affirming district court in dismissing Strickland ineffective
counsel claim); Greiner, 417 F.3d at 320-22 (holding that
defense counsel’s decision not to present evidence of a
particular incident was proper).

Here, petitioner baldly claims

that Ms. Murray failed to present “hundreds of exculpatory
evidence documents,” but does not describe or explain how the
documents could exculpate him.

(Pet. Mem. at 15.)
17

He claims

that these documents “clearly indicate [he] was not guilty of
the crimes charged.”

(Pet. Mem. at 4 (emphasis in original).)

In her declaration, Ms. Murray states that she is
“unaware of any documents exculpating Mr. Reisman of the charges
in the indictment.”

(Murray Decl. at 2.)

Specifically, Ms.

Murray states that she did not, after an eleven month
investigation, uncover any documents establishing the legitimacy
of any of petitioner’s business ventures.

(Id.)

Ms. Murray

further testifies that most of the documents related to
petitioner’s ventures suggested that petitioner was in fact
guilty.

(Id.)

Ms. Murray also states that the documents that

Mr. Reisman has provided to the court to support the instant
motion were also provided to her prior to trial, and that she
did not consider them to be exculpatory.

(Id. at 3.)

She

states that the documents
contain the hallmarks of so many of the
documents underlying Mr. Reisman’s various
business ventures: amateurish letterhead;
typographical and grammatical errors that
should not be made by the document’s
allegedly sophisticated author; similar
errors in documents from ostensibly
unrelated ventures, suggesting that the same
individual had authored them; [and] legal
documents that did not appear to have been
drafted by qualified lawyers.

(Id. at 3.) (emphasis added).

Thus, upon review of the

documents, Ms. Murray “concluded that a jury may find it

18

objectively unreasonable that a former CPA would continually
vouch – and seek funds – for ventures that were supported by
such documents.”

(Id. at 4.)

As a result, Ms. Murray states

that she chose, from the beginning of petitioner’s criminal
case, to exclude evidence of petitioner’s other business
ventures at trial.

(Id. at 4.)

Undercutting petitioner’s

arguments is Ms. Murray’s declaration that she did this “in
consultation with Mr. Reisman and with his full knowledge.”
(Id. at 4.)
Petitioner also contends that he provided to Ms.
Murray documentation of his alleged due diligence into the deal
between B.I.M., Sierra Mining and Weaver Petroleum that proved
the deal’s legitimacy, and that Ms. Murray refused to present
these documents at trial.

(Pet. Mem. at 4-5.)

In response, Ms.

Murray states that her colleague, Jane Byrialsen, Esq., and an
investigator, Ron Dwyer, extensively researched the alleged
deal.

(Murray Decl. at 4.)

After Ms. Byrialsen and Mr. Dwyer

spoke at length with various individuals and business
representatives associated with the alleged deal, who stated in
substance that they viewed the alleged deal as a fraud, Ms.
Murray concluded that the deal for which petitioner claimed to
have conducted due diligence was most likely fraudulent.

(Id.)

Ms. Murray states that “I also concluded that the documents Mr.
Reisman provided to me . . . would in fact undermine his claim
19

of due diligence, and would contradict express statements” that
petitioner had made to one of the victims to induce the victim’s
investment in the deal.

(Id.)

Petitioner’s counsel at trial extensively investigated
the evidence discussed above and cited by petitioner as
exculpatory.

Petitioner’s counsel determined that the evidence

may have in fact incriminated petitioner, and chose not to
introduce the documents.

In choosing not to introduce this

evidence, petitioner’s counsel acted in a substantially similar
fashion to counsel in prior Strickland cases in which the Second
Circuit found effective assistance.

See, e.g., Plitman, 194

F.3d at 63-64; White, 174 F.3d at 296-97; Greiner, 417 F.3d at
320-22.

Accordingly, petitioner’s counsel at trial acted

reasonably and strategically in choosing not to present the
evidence raised by petitioner.
3.

Petitioner’s Testimony

Finally, Petitioner alleges that he was not allowed to
testify, which violated his constitutional right to testify at
trial.

(Pet. Mem. at 6.)

A criminal defendant has the

constitutional right to testify on his or her own behalf, and
trial counsel has the duty to inform a defendant of that right.
Rega v. United States, 263 F.3d 18, 21 (2d Cir. 2001) (citing
Rock v. Arkansas, 483 U.S. 44, 49-51 (1987)).

As such, a

defendant who wishes to testify must be permitted to do so, even
20

if his or her trial counsel concludes that strategic interests
weigh against that choice.

See Chang v. United States, 250 F.3d

79, 82-83 (2d Cir. 2001).
A review of the evidence casts serious doubt on
petitioner’s claim that he was not allowed to testify.

Ms.

Murray states in her declaration that she counseled petitioner
regarding testifying and arranged for petitioner to engage in a
mock direct and cross-examination, and at the end of the
session, asked petitioner if he wished to testify.
Decl. at 9.)

(Murray

Petitioner advised Ms. Murray that he did not wish

to do so, and Ms. Murray states that she “communicated this
decision to the Court on the record in [petitioner’s] presence
on the following day.”

(Id.)

Petitioner at no point raised any

objection or interjected when Ms. Murray indicated to the court
that he did not want to testify.

(Id.)

Ms. Murray also states

that she and Ms. Byrialsen, co-counsel for petitioner,
repeatedly advised petitioner, both in writing and in person, of
his right to testify and that the decision whether to testify
was his alone.

(Murray Decl. at 8, 10-17.)

Ms. Murray explains

that although she and co-counsel counseled petitioner against
testifying, they “made it clear that [they] could not make the
decision about whether he testified or not” and “assured him
that [they] would respect whatever decision he made.”

(Id.)

addition, Ms. Murray attached to her declaration redacted e21

In

mails to petitioner in which she stated the foregoing in
writing.

(See ECF No. 21-1, Emails to Reisman, at 10-17

(“Whether or not to testify is your decision. . . . In the end,
it’s your decision and yours alone.

We will abide by any

decision you make.”).)
Accordingly, upon review of the evidence, it is clear
that petitioner was not prohibited by counsel from testifying at
trial, and that he made the decision not to testify.

In

addition, Ms. Murray’s declaration and the documents submitted
by petitioner indicate that Ms. Murray made considered strategic
decisions regarding whether to call witnesses to testify and
whether to present certain documentary evidence at trial.

When

an attorney’s strategic decisions are reasonably made, they
cannot constitute the basis for an ineffective assistance of
counsel claim.

See Nersesian, 824 F.2d at 1321.

As such, Ms.

Murray’s decisions clearly fall within the accepted parameters
of reasonable conduct.
B.

See Strickland, 466 U.S. at 689.

Strickland Probability Prong
Even assuming, arguendo, that petitioner could meet

the performance prong of Strickland, petitioner’s ineffective
assistance claim still fails because petitioner has not
established that he was prejudiced by showing that there is a
“reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
22

Lynn v. Bliden, 443 F.3d 238, 247 (2d Cir. 2006) (citing
Strickland, 466 U.S. at 694).
Here, petitioner fails to explain how either the
witnesses or the documentary evidence he references could
counter the government’s overwhelming evidence at trial,
including that he solicited a victim’s first $100,000 investment
to B.I.M. and kept that entire amount for himself.

Petitioner

asserts that if defense witnesses had testified, they “would
have confirmed” various facts and would have “verified . . .
hundreds of documental exculpatory documents.”

(ECF No. 25,

“Reply to Government Response to Petition Filed Under 28 U.S.C.
§ 2255” (“Pet. Rep.”) filed 12/18/12 at 3).

However, petitioner

fails to show how any of his alleged facts, if proven by
witnesses or evidence at trial, could create a reasonable
probability that the jury would have returned a verdict of not
guilty.

Indeed, it is more likely that the evidence

petitioner’s counsel strategically chose to exclude from trial
would have hurt petitioner’s defense if introduced, by casting
suspicion on the legitimacy of petitioner’s business ventures
and confusing the jury.
This court and the Second Circuit found there was
sufficient evidence at trial from which a rational jury could
find beyond a reasonable doubt that petitioner was guilty of the
charges.

Graham, 477 F. App’x at 825 (“Reisman[] . . . kept
23

most of the money he took from the victims of the scheme.

His

solicitation of $100,000 from Vernon Wetmore is itself
sufficient to sustain the jury’s verdict.

Reisman did not

forward any of this investment to B.I.M., instead using it for
his own personal expenses, including the purchase of a house.”);
Kahale, 2010 WL 3851987, at *26 (“There was ample evidence for
the jury to conclude beyond a reasonable doubt that Reisman
possessed the requisite intent to defraud.”).

Additionally, it

does not appear that the excluded evidence could have created a
reasonable doubt that petitioner lacked fraudulent intent to
defraud his victims, especially considering the countervailing
trial testimony of one of the victims, Vernon Wetmore.
Kahale, 2010 WL 3851987, at *26.

See

Accordingly, this court does

not find that petitioner has shown a “reasonable probability”
that any alleged errors by trial counsel can “undermine
confidence in the outcome” of his trial.
at 694.

Strickland, 466 U.S.

Therefore, plaintiff’s § 2255 motion to vacate, set

aside, or correct his sentence based on claims of ineffective
assistance of counsel is denied.
III. Prosecutorial Statements
Petitioner also alleges that false prosecutorial
statements at sentencing prejudiced the court against him.

The

statements were made in the context of two projects petitioner
had been engaging in and their viability.
24

(Pet. Mem. at 16.)

Petitioner alleges that the prosecution’s remarks were “falsely
said” and intended to “influence an unjust sentence.”

(Id.)

A

review of the sentencing proceedings makes it clear that this
court did not consider the allegedly false prosecutorial
statements in setting petitioner’s sentence.
Under Federal Rule of Criminal Procedure 32, a
district court preparing to issue a sentence “must – for any
disputed portion of the presentence report or other controverted
matter – rule on the dispute or determine that a ruling is
unnecessary either because the matter will not affect
sentencing, or because the court will not consider the matter in
sentencing.”

Fed. R. Crim. P. 32(i)(3)(B); United States v.

Arevalo, 628 F.3d 93, 96 (2d Cir. 2010).

Additionally, a

district court has broad discretion to decide how it will
resolve disputed issues at sentencing, provided that the
defendant is given a fair opportunity to rebut the government’s
allegations.

United States v. Eisen, 974 F.2d 246, 269 (2d Cir.

1992).
This court gave petitioner ample time and opportunity
to raise objections to the prosecutorial statements.

Petitioner

filed objections via letter and made verbal objections during
the course of the October 12, 2010 sentencing hearing.

At that

time, this court ruled in petitioner’s favor pursuant to Rule
32(i)(3)(4).

(See ECF No. 20, Memorandum of Law in Opposition
25

to Petition (“Gov’t Mem.”) dated 11/15/12 at 26).

This court

stated on the record that there was insufficient evidence to
determine if petitioner’s “independent schemes” raised by the
government were legitimate or fraudulent, and that it would
therefore not rely on the conduct in issuing petitioner’s
sentence.

Id.

Petitioner’s argument that the court was

prejudiced by prosecutorial statements is not grounded in the
factual record and, accordingly, fails.
III. Refuse-to-Pay Status
Finally, petitioner requests that the court remove him
from “refuse-to-pay” status at the Federal Correctional
Institution in Cumberland, Maryland.

Petitioner sent a letter

to this court dated September 11, 2012, stating that he was
unable to keep up with the $50 quarterly payments of courtordered restitution, and was subsequently put on “refuse-to-pay”
status “as punishment for being out of compliance.”
9/11/12 Ltr. at 2.)

(Pet.

Although petitioner does not specifically

explain why he fell behind on his quarterly restitution
payments, he states that a friend deposits money in his account,
which he uses “to stay in touch and to work on my case, buy
stamps, paper etc.”

(Id.)

According to the government,

petitioner made one restitution payment “[o]n or about December
2011,” and has made no payments since, despite having received
more than $1000 from outside sources.
26

(ECF No. 17, Gov’t

Memorandum (“Gov’t 10/5/12 Mem.”) dated 10/5/12 at 1-2.)

On or

about March 2012, he was placed on “refuse-to-pay” status for
failing to comply with his restitution obligation.

(Id. at 2.)

While on refuse-to-pay status, a prisoner’s wages are capped at
$5.25 per month.

(Id.)

During a six-month period from

approximately April 2012 to October 2012, petitioner received
$1,136.86 from outside sources, but did not make any more
restitution payments.

(Id.)

In addition, during the first four

months of that six-month period, petitioner worked only one hour
per month, earning $0.12 per hour.

(Id.)

Petitioner made $5.25

per month during the final two months of the six-month period,
capped by his refuse-to-pay status.

(Id.)

Petitioner argues that the court should take him off
refuse-to-pay status (see Pet. 9/11/12 Ltr.), and also requests
the court to garnish his kitchen wages to satisfy his
restitution obligations (see ECF No. 19, Pet. Letter regarding
Restitution Order (“Pet. 10/11/12 Ltr.”) dated 10/11/12 at 1.).
The government opposes both requests, noting that petitioner
could pay his restitution obligations by using the funds
received from outside sources.

(Gov’t 10/5/12 Mem. at 3.)

The court notes, at the outset, that the legal basis
for petitioner’s request regarding his refuse-to-pay status is
unclear.

To the extent that petitioner asks the court to take

him off refuse-to-pay status under federal law, the Prison
27

Litigation Reform Act requires all inmates bringing suit to
redress any circumstances or occurrences occurring in “any jail,
prison, or other correctional facility” to first exhaust their
administrative remedies.

42 U.S.C. § 1997e(a); see Porter v.

Nussle, 534 U.S. 516 (2002) (holding that exhaustion requirement
applies to all prisoners, whether or not claim involves a
specific occurrence or general conditions); Woodford v. Ngo, 548
U.S. 81, 89-92 (2006) (concluding that the Prison Litigation
Reform Act requires “proper exhaustion” as meant in
administrative law); Guida v. Nelson, 603 F.2d 261, 262 (2d Cir.
1979) (per curiam) (holding that a petitioner must exhaust
administrative remedies before pursuing a claim in federal
habeas court).
Here, petitioner has failed to exhaust his
administrative remedies, despite a clear method of redress.
generally 28 C.F.R. §§ 542.10 - 542.19. 1

See

Petitioner is required

to exhaust his administrative appeals in this manner before
bringing the claim before a court.

1

See also Noguera v. Hasty,

Under the Administrative Remedy Program, petitioner must first
“present an issue of concern informally to staff,” who must attempt to
informally resolve the issue before petitioner is allowed to submit a
Request for Administrative Remedy. 28 C.F.R. § 542.13. If informal
resolution does not occur, petitioner must then submit the Request
pursuant to initial filing requirements. 28 C.F.R. § 542.14. If the
warden denies petitioner’s request or petitioner is otherwise
dissatisfied, petitioner may then bring an appeal to the “appropriate
regional director.” 28 C.F.R. § 542.15. Petitioner is allowed to
appeal a rejection by the regional director to the next level. 28
C.F.R. 542.17.
28

No. 99 Civ. 8786, 2000 WL 1011563, at *12 (S.D.N.Y. July 1,
2000) (holding that plaintiff’s efforts were sufficient to
exhaust administrative remedies).

In addition, unlike the

petitioner in Odumosu v. Keller, 205 F.3d 1324 (2d Cir. 2000),
who was excused from the exhaustion requirement because
administrative remedies were not available for his particular
claim, here, an administrative action brought by petitioner
would afford him meaningful review and the opportunity to obtain
an appropriate remedy.

Notwithstanding petitioner’s failure to

exhaust, the court further notes that Mr. Reisman has a legal
obligation to compensate his victims for the losses they
suffered due to his fraudulent acts.
Had petitioner exhausted his administrative appeals
and brought suit pursuant to the PLRA, his request to be taken
off of refuse-to-pay status would be denied in any event.

The

Bureau of Prisons made the determination to place petitioner on
refuse-to-pay status because of his failure to obey his legal
obligation of restitution.

Courts generally give deference to

such administrative decisions by prison officials.

See, e.g.,

Block v. Rutherford, 468 U.S. 576, 591 (1984) (affirming that
prison officials be accorded deference in reconciling the
conflicting claims of prison security, prison staff welfare, and
detainee property rights); Barber v. Perdue, No. 11-CV-0127,
2012 WL 5996342, at *9 (N.D.N.Y. Nov. 9, 2012) (“[C]ourts
29

typically afford considerable deference to decisions made by
[the BOP]. It is neither appropriate nor desirable for a court
to micromanage that decisionmaking process. . . .”).

Thus, the

Bureau of Prison’s decision would be accorded deference, and in
light of the evidence presented by the government, this court
would deny petitioner’s request on the merits.
As such, petitioner’s claim is denied, as he has not
exhausted his administrative appeals to the Bureau of Prisons,
and the court respectfully defers to the Bureau of Prisons’
policy of putting a prisoner on refuse-to-pay status for failing
to comply with restitution obligations.

CONCLUSION
For the foregoing reasons, petitioner’s application
to vacate his sentence is denied and dismissed with prejudice,
and the application to remove petitioner from “refuse-to-pay”
status is denied and dismissed.

The Clerk of the Court is

respectfully requested to dismiss the petition, enter judgment
in favor of respondent, and close this case.
30

Respondent shall

serve a copy of this Memorandum and Order upon petitioner and
file a declaration of service within two days of the date of
this Memorandum and Order.

SO ORDERED.
Dated:

Brooklyn, New York
October 24, 2013
________/s/_________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

31