Perez v. USA

Filing 21

MEMORANDUM & OPINION: For the foregoing reasons, I conclude that Perez was not deprived of her Sixth Amendment right to counsel, and the motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255, (Doc. 73; No. 14-CV-3995, Doc. 1), is DENIED. Because there has been no substantial showing of the denial of a constitutional right, no certificate of appealability shall issue. See Krantz v. United States, 224 F.3d 125, 127 (2d Cir. 2000); 28 U.S.C. § 2253(c)(2). The Clerk of Court is respectfully directed to terminate the pending motion and to close Case No. 14-CV-3995. (As further set forth in this Memorandum & Opinion.) (Signed by Judge Vernon S. Broderick on 5/1/2017) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------- X
:
CLOVER A. PEREZ,
:
:
Movant,
:
:
- against :
:
UNITED STATES OF AMERICA,
:
:
Respondent. :
:
--------------------------------------------------------- X

5/1/2017

14-CV-3995 (VSB)
09-CR-1153 (MEA)
MEMORANDUM & OPINION

Appearances:
Samuel M. Braverman
Fasulo Braverman & Di Maggio, LLP
Bronx, New York
Counsel for Movant
Niketh Varadaraj Velamoor
Assistant United States Attorney
Southern District of New York
New York, New York
Counsel for Respondent
VERNON S. BRODERICK, United States District Judge:
Before me is the motion of Clover A. Perez, pursuant to 28 U.S.C. § 2255, to vacate, set
aside, or correct her sentence on the basis that she was denied the effective assistance of counsel
before trial, at trial, and during sentencing. Because the record conclusively establishes that
Plaintiff’s Sixth Amendment rights were not violated, the motion is denied.
Background and Procedural History
Perez was initially charged by criminal complaint filed on November 2, 2009 with one
count of knowingly making false statements in an application for legal permanent residency, and
one count of failing to disclose her preparation of a false application for immigration benefits.

(See Doc. 1.)1 On December 3, 2009, a grand jury returned a three count indictment charging
Perez with mail fraud in violation of 18 U.S.C. § 1341, knowingly making false statements in an
application for legal permanent residency in violation of 18 U.S.C. § 1546(a), and “failing to
disclose her role in preparing baseless applications for lawful United States resident status, in
violation of Title 8, United States Code, Section 1324c(e)(1).” (See Doc. 7 at 6.) A superseding
indictment was returned on April 15, 2010, and added two charges against Perez: bank fraud in
violation of 18 U.S.C. § 1344 and aggravated identity theft in violation of 18 U.S.C. § 1028A.
(See Doc. 14.) At that point, Perez was represented by retained counsel Bernard Udell. (See
Dkt. Entry Nov. 5, 2009.) At the Government’s request, (see Doc. 23), a Curcio hearing was
held before the Honorable Richard M. Berman in October 2010, (see Dkt. Entry Oct. 19, 2010),
after which Udell was relieved and Perez retained Xavier R. Donaldson as defense counsel. (See
Doc. 26.)
The case proceeded to jury trial before the Honorable Marvin E. Aspen in April 2011.2
The evidence presented at trial proved that Perez owned and operated Reliable Immigration
Services (“Reliable”). (See Gov’t Opp. 1.)3 Perez would tell clients of Reliable that they were
eligible for lawful permanent resident status regardless of their actual eligibility. (See id. 2.)
With the assistance of an employee, Sophia McIntosh, Perez filed fraudulent applications for
permanent residency on clients’ behalf, without their knowledge, sometimes forging their
signatures, while charging clients up-front and monthly fees. (See id. 2–3.) Perez also used the
name and identifying information of Eugenia Scott, a client, without Scott’s permission, to

1

For convenience, unless otherwise noted, all citations to the docket are to the docket in Case No. 09-CR-1153,
which includes documents from the underlying criminal case as well as those pertaining to Perez’s § 2255 motion.
2

Judge Aspen was visiting from the Northern District of Illinois.

3

“Gov’t Opp.” refers to the Memorandum of Law of the United States of America in Opposition to Clover A.
Perez’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Her Sentence. (Doc. 77.)

2

obtain credit cards and loans, which Perez used for personal expenses. (See id. 5.)
Among the witnesses at trial were three victims who testified that Perez, without their
knowledge, falsified information about them and forged their signatures in applications for legal
permanent residency under an amnesty program for which they were ineligible. (Trial Tr. 182–
242, 248–316, 518–68.)4 This amnesty program was the so-called “LULAC program,” which
was the result of the settlement of a class action brought by the League of Latin American
Citizens and was open only to class members who had entered the United States before January
1, 1982. (Id. 36–37.) The three victims for whom Perez prepared fraudulent LULAC
applications had all entered the United States in the late 1980s or 1990s and were plainly
ineligible for such relief. (Id. 183, 248, 519.) Each victim paid Perez several thousand dollars to
prepare these futile applications. (Id. 188–90, 288, 531.) McIntosh also testified as a
cooperating witness about her own role in preparing fraudulent applications on Perez’s behalf.
(Id. 317–447.) Scott testified that Perez prepared a false application on her behalf and opened
bank accounts in her name without authorization. (Id. 447–511.)
The sole defense witness was a Government agent who was called briefly to impeach
McIntosh’s testimony. (Id. 584–88.) The defense’s general theme was to attack the credibility
of the Government’s witnesses. Defense counsel argued that the purported victims provided the
false information contained in their applications, that McIntosh bore responsibility for any forged
signatures, and that Scott had consented to Perez’s use of her name to obtain credit. (See id.
621–52.) On April 25, 2011, the jury convicted Perez on all five counts of the superseding
indictment. (Dkt. Entry Apr. 25, 2011.)
On January 27, 2012, Judge Aspen sentenced Perez to 121 months’ imprisonment

4

“Trial Tr.” refers to the transcript of jury trial, not filed on ECF.

3

followed by five years of supervised release and ordered that she pay $541,191 in restitution.
(Doc. 66.) Perez timely appealed, arguing that the jury was improperly instructed and that Judge
Aspen erred in applying certain sentencing enhancements, calculating the amount of loss, and
ordering restitution. On May 28, 2013, the Second Circuit affirmed the conviction and sentence
in all respects in a summary order. (See Doc. 72.) Perez is presently serving her sentence and
has an estimated release date of February 5, 2020. (Gov’t Opp. 12 n.5.)
On May 28, 2014, Perez filed a pro se motion to vacate her sentence pursuant to 28
U.S.C. § 2255. (Doc. 73.) In her motion, Perez asserts that Donaldson provided ineffective
representation on various grounds, including by: (1) failing to investigate or challenge Perez’s
competency to stand trial or her inability to appreciate her a plea offer; (2) failing to pursue a
plea agreement; (3) preventing Perez from testifying; (4) failing to call additional Reliable clients
as defense witnesses or present certain documentary evidence purportedly favorable to Perez; (5)
failing to request a Fatico hearing to establish the amount of loss at sentencing; and (6) failing to
argue for a sentencing variance based upon Perez’s allegedly diminished competency and mental
state. (See id.) By Order filed on June 12, 2014, I directed the Government to respond to
Perez’s motion, (see Doc. 74), and it did so on September 15, 2014, (see Doc. 77). I then
ordered Perez to sign a waiver of the attorney-client privilege so that Donaldson could provide
an affidavit in response to Perez’s allegations of ineffective assistance of counsel. (See No. 14CV-3995, Doc. 8.) Perez timely provided a waiver on October 20, 2014, (No. 14-CV-3995, Doc.
11), and Donaldson thereafter submitted a sworn affidavit responding to Perez’s allegations,
(Doc. 81-1). After I denied Perez’s request for court-appointed counsel, (No. 14-CV-3995, Doc.
12), Perez retained counsel and ultimately filed a reply memorandum of law along with
seventeen new evidentiary exhibits, including affidavits from Perez, her mother, and her son,

4

(No. 14-CV-3995, Doc. 17).
Legal Standard
A.

28 U.S.C. § 2255 Proceedings and Evidentiary Hearings

28 U.S.C. § 2255 authorizes any prisoner in custody under sentence of a federal court
“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 . . . [to] move the court which imposed the sentence
to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). Unless the motion, case files,
and record “conclusively show that the prisoner is entitled to no relief,” I must “grant a prompt
hearing” and make findings of fact and reach conclusions of law regarding the issues raised in
the motion. Id. § 2255(b). “To warrant a hearing, the motion must set forth specific facts
supported by competent evidence, raising detailed and controverted issues of fact that, if proved
at a hearing, would entitle [the movant] to relief.” Gonzalez v. United States, 722 F.3d 118, 131
(2d Cir. 2013). Where the asserted basis for relief is ineffective assistance of counsel, a hearing
is required “in cases where the petitioner has made a ‘plausible claim.’” Morales v. United
States, 635 F.3d 39, 45 (2d Cir. 2011) (internal quotation marks omitted). The movant’s
assertions in support of the motion need not be assumed credible if they are contradicted by the
record. See Puglisi v. United States, 586 F.3d 209, 214 (2d Cir. 2009).
The statute does not require that the “movant must always be allowed to appear in a
district court for a full hearing if the record does not conclusively and expressly belie his claim,
no matter how vague, conclusory, or palpably incredible his allegations may be.” Machibroda v.
United States, 368 U.S. 487, 495 (1962). Therefore, if a § 2255 motion is “not so clearly bereft
of merit as to be subject to dismissal on its face,” I retain the discretion to supplement the factual
record as necessary through an appropriate procedure, whether by a full-fledged evidentiary

5

hearing with live testimony or through limited written submissions. Chang v. United States, 250
F.3d 79, 85 (2d Cir. 2001). A testimonial hearing is not necessary when it would not succeed in
proving additional material facts. See Fermin v. United States, 859 F. Supp. 2d 590, 602
(S.D.N.Y. 2012). Where the movant alleges ineffective assistance of counsel, the submission of
a responsive affidavit from trial counsel may suffice to satisfy the hearing requirement of §
2255(b) if the presentation of additional evidence “would not offer any reasonable chance of
altering [the court’s] view of the facts.” Chang, 250 F.3d at 86.
B.

Ineffective Assistance of Counsel

“A defendant in criminal proceedings has a right under the Sixth Amendment to effective
assistance from his attorney at all critical stages in the proceedings, which include entry of a plea
of guilty and sentencing.” Gonzalez, 722 F.3d at 130 (citations omitted). “The question of
ineffective assistance is determined by a two-part test. A defendant must demonstrate ‘(1) that
counsel’s performance was so unreasonable under prevailing professional norms that counsel
was not functioning as the counsel guaranteed the defendant by the Sixth Amendment; and
(2) that counsel’s ineffectiveness prejudiced the defendant such that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.’” United States v. Habbas, 527 F.3d 266, 273 (2d Cir. 2008) (quoting United
States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004)).
With respect to the first prong—deficient performance—the inquiry is “highly
deferential” and requires that “every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” Strickland v. Washington, 466 U.S. 688, 699
(1984). The petitioner seeking relief must overcome the “strong presumption” that counsel’s

6

performance fell “within the wide range of reasonable professional assistance,” i.e., that
counsel’s conduct reflected reasonable strategic choices. Id.
With regard to the second prong—prejudice—a reasonable probability of a different
outcome means a “probability sufficient to undermine confidence in the outcome.” Id. at 694. If
the ineffective claim is made after a trial, a court should consider the totality of the evidence
presented at trial. See id. at 695. “With respect to a claim of ineffective assistance in sentencing,
the defendant must show a reasonable probability that, but for counsel’s substandard
performance, he would have received a less severe sentence.” Gonzalez, 722 F.3d at 130.
Second Circuit precedent generally “requires some objective evidence other than defendant’s
assertions to establish prejudice.” Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003).
Discussion
A.

Competency

For a defendant to be considered competent to stand trial, the defendant must have
“(1) ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding’ and (2) ‘a rational as well as factual understanding of the proceedings against
him.’” United States v. Morrison, 153 F.3d 34, 46 (2d Cir. 1998) (quoting United States v.
Nichols, 56 F.3d 403, 411 (2d Cir. 1995)). The trial court is required to grant a hearing on the
defendant’s competency if there “is reasonable cause to believe that the defendant may presently
be suffering from a mental disease or defect rendering him mentally incompetent to the extent
that he is unable to understand the nature and consequences of the proceedings against him or to
assist properly in his defense.” 18 U.S.C. § 4241(a). “[T]he question of competency and
reasonable cause to doubt it must focus upon the defendant’s abilities at the time of trial, not any
conduct discovered or analyzed after the fact.” United States v. Gabb, 80 F. App’x 142, 145 (2d

7

Cir. 2003) (summary order). The touchstone of an inquiry into a claim of mental incompetence
is “an inability to assist in the preparation of a defense or rationally to comprehend the nature of
the proceedings,” and “failure by trial counsel to indicate the presence of such difficulties
provides substantial evidence of the defendant’s competence.” United States v. Vamos, 797 F.2d
1146, 1150 (2d Cir. 1986). Further, “[i]t is well-established that some degree of mental illness,”
including depression, “cannot be equated with incompetence to stand trial.” Id. at 1151; accord
Nichols, 56 F.3d at 412; Gluzman v. United States, 124 F. Supp. 2d 171, 175 (S.D.N.Y. 2000).
To establish that she was prejudiced by counsel’s failure to investigate her competency or
to move for a competency hearing, Perez must show that there is a reasonable probability that
she would have been found incompetent to stand trial if counsel had pursued the issue. See
Strickland, 466 U.S. at 694; Gluzman, 124 F. Supp. 2d at 175–76. The record before me
conclusively establishes that there was no reasonable probability that the trial court would have
found that Perez lacked either the ability to consult meaningfully with her lawyer or a rational
and factual understanding of the proceedings against her. Even if counsel was ineffective in not
investigating Perez’s competence and/or not requesting a competency hearing, Perez cannot
establish that she suffered any prejudice.
Perez claims that she suffered from depression as a result of the shooting death of one of
her sons, Andre Scott, Jr., during a robbery in 2008. (Mot. Attachment D.)5 She also states that
her grandmother, who raised her, died approximately a month before the beginning of trial. (Id.)
As purported proof of her incompetency, Perez points to her own remarks at the sentencing
hearing, in which she apologized for “wasting the court’s time in allowing this case to go to trial”

5
“Mot.” refers to the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody. (Doc. 73.)

8

as a result of the “severe depression” she had been experiencing as a result of Andre’s death.
(Mot. Attachment B.) In support of her reply memorandum, in her affidavit, Perez further claims
that, while on pre-trial release, she was “so ‘non-functioning’ that she had to be accompanied
nearly everywhere by close friends and family members, even to the attorney/client meetings
with Donaldson,” because she was taking medication that prevented her from driving and needed
the assistance of a note-taker to understand the content of the meetings. (Perez Aff. ¶ 6.)6 Perez
also states that she engaged in self-harm by cutting herself for approximately one year during an
unspecified period of time. (Id. ¶ 6a.) Perez’s son also claims in an affidavit that after Andre’s
death, Perez became withdrawn, experienced feelings of paranoia, and engaged in selfmutilation. (No. 14-CV-3995, Doc. 17 Ex. B.) Perez’s mother similarly avers in an affidavit
that “right after Andre’s death [Perez] would use a knife to pierce her skin deeply so she could
identify with the pain she thought Andre felt from the bullet that ended his life.” (Id. Ex. C.)
Perez’s mother also states that, in the period leading up to her trial, Perez was an emotionally
devastated “shell just waiting to be ‘punished’ so she could identify with her son’s ‘pain.’” (Id.)
Perez further provided three pages of counseling records from the Metropolitan Detention
Center, which state that Perez participated in grief counseling after being remanded into custody
and while awaiting sentencing, and which document the psychologist’s opinion that Perez had
“much unresolved grief” regarding Andre’s death. (Id. Ex. S.) The records also reflect that
Perez was tearful and depressed upon receiving a longer than expected sentence in January 2012.
(Id.)
As an initial matter, Perez’s self-serving assertions of incompetence warrant skepticism.
See Puglisi, 586 F.3d at 214 (movant’s credibility need not be presumed where contradicted by

6

“Perez Aff.” refers to the Affidavit of Clover A. Perez. (No. 14-CV-3995, Doc. 17 Ex. A.)

9

the record); Brown v. United States, Nos. 03 CV 3909(RJD), 03 CV 4371(RJD), 2010 WL
2594640, at *11 (E.D.N.Y. June 23, 2010) (same). Perez’s initial motion asserted a laundry list
of claims and included fourteen type-written pages of material, yet did not include any mention
of self-harm or a need for assistance by family members during meetings with counsel. (See
generally Mot.) Furthermore, although Perez attempts to use her statement at sentencing that she
could not remember what happened at trial as evidence of incompetence, (see Mot. Attachment
B), the record belies the veracity of this contention. Indeed, Perez now has a clear memory of
the trial and the events preceding the trial, including that she had five meetings with Donaldson,
(Perez Aff. ¶ 4), that she allegedly presented Donaldson with files evidently pertaining to
mortgage fraud by a third party in an effort to cooperate with the Government, (id.), and that
Donaldson allegedly told her not to testify because she was too “emotional,” (Mot. Attachment
C). Perez’s allegations of incompetence are also undercut by her claim that counsel wrongly
prevented her from testifying. If Perez believes she should have testified at trial, then surely she
must also believe that she understood what was happening at trial well enough to testify in a
manner that would have helped her cause. In short, Perez’s claim that she should have testified
is not entirely compatible with her proffered reasons as to why she was not competent.
However, even if all of the evidence Perez presents is fully credited and accepted as true,
the trial record conclusively establishes that Perez’s emotional problems and purported mental
illness did not prevent her from consulting with counsel to a reasonable degree of rational
understanding or from having a rational and factual understanding of the proceedings against her.
See Morrison, 153 F.3d at 46. Perez’s profound grief at the tragic death of her son is entirely
understandable, but it does not equate to incompetence to stand trial. Depression, suicidal
ideation, or even a suicide attempt, by themselves, do not constitute incompetence. See United

10

States v. Ioulevitch, 508 F. App’x 73, 75 (2d Cir. 2013) (summary order); United States v. Pope,
146 F. App’x 536, 539 (2d Cir. 2005) (summary order); Vamos, 797 F.2d at 1150–51; Quail v.
Farrell, 550 F. Supp. 2d 470, 478–79 (S.D.N.Y. 2008). Rather, as the cases cited make clear, a
defendant is incompetent to stand trial only if depression (or another mental condition) impairs
her cognitive functioning to the point that she is unable to consult with her lawyer or understand
the proceedings.
As an initial matter, during the trial, Donaldson never expressed any difficulty
communicating with Perez or indicated that she did not understand what was going on during the
proceedings. Vamos, 797 F.2d at 1150. In addition, the record amply establishes that Perez
played an active role in her defense and understood the nature of the proceedings. For instance,
Perez states that, shortly before trial, she encouraged Donaldson to negotiate a cooperation
agreement on the basis of certain “mortgage files Perez had on” a third party. (Perez Aff. ¶ 4.)
Although this effort did not succeed, it reflects Perez’s participation in her own defense such that
she understood the concept of cooperation and her ability to develop rational strategies in an
effort to minimize her criminal exposure. See, e.g., United States v. Wolfson, 616 F. Supp. 2d
398, 417 (S.D.N.Y. 2008) (participation in strategic decision to attempt to cooperate was
evidence of defendant’s competency). Furthermore, Perez also states that before or during trial,
she encouraged Donaldson to present evidence of a purported contract between Perez and Scott,
which, according to Perez, would have established that Scott consented to Perez’s use of her
personal information. (See Perez Aff. ¶¶ 7-7c.) By doing so, Perez attempted to provide counsel
with reasonable assistance and demonstrated her understanding of the fact that she had been
charged with stealing Scott’s identity and misusing it for personal gain. Similarly, during the
final charge conference, Perez sought an opportunity to address the court to discuss Judge

11

Aspen’s ruling on a pretrial motion in limine that prevented Perez from introducing so-called
“good acts” evidence to establish that she had not defrauded certain of her clients. (See Trial Tr.
594–95.) As counsel explained, Perez disagreed with that ruling and apparently had some
difficulty accepting counsel’s explanation for it. (See id. at 595:8–13 (“I explained that to my
client. She wanted to address the court. I told her that was the Court’s order. . . . She wanted to
hear the court say that.”).) Perez’s awareness of the court’s pretrial ruling on a legal matter, her
substantive disagreement with it, and her dialogue with counsel on the issue all demonstrate her
understanding of the proceedings at the time and her ability to contribute to her own defense in a
rational manner. Cf. United States v. Garcia, 282 F. App’x 14, 17–18 (2d Cir. 2008) (summary
order) (affirming finding of competency although defendant’s ability to comprehend disputed
legal issues was limited).
For these reasons, Perez cannot have suffered any prejudice from counsel’s failure to
investigate her competency to stand trial or move for a competency hearing. Perez has failed to
set forth a plausible claim of ineffective assistance of counsel on this basis, and no further
proceedings are required to conclude that she is not entitled to relief. See, e.g., Chang, 250 F.3d
at 85; Fermin, 859 F. Supp. 2d at 602.
B.

Plea

The Sixth Amendment right to the effective assistance of counsel extends to deciding
whether to plead guilty. See Padilla v. Kentucky, 559 U.S. 356, 364 (2010). Counsel performs
deficiently if he fails to communicate to his client “formal offers from the prosecution to accept a
plea on terms and conditions that may be favorable to the accused,” Missouri v. Frye, 566 U.S.
133, 145 (2012), or if he provides incompetent advice to his client about whether to accept or
reject a plea offer, see Lafler v. Cooper, 566 U.S. 156, 163 (2012). To establish prejudice, the

12

defendant must prove that “the outcome of the plea process would have been different with
competent advice” or with adequate communication. Id. at 163. Where the defendant has been
convicted after trial and alleges ineffective assistance in connection with her non-acceptance of a
plea, she must establish that “but for the ineffective advice of counsel there is a reasonable
probability that the plea offer would have been presented to the court (i.e., that the defendant
would have accepted the plea and the prosecution would not have withdrawn it in light of
intervening circumstances), that the court would have accepted its terms, and that the conviction
or sentence, or both, under the offer’s terms would have been less severe than under the
judgment and sentence that in fact were imposed.” Id. at 164. Thus, to establish deficient
performance and prejudice with regard to an unaccepted plea on a § 2255 motion, Perez must
provide credible, objective evidence showing that counsel failed to provide competent advice
and that, but for counsel’s failure, there is a reasonable probability that she would have pleaded
guilty and received a lesser sentence. See Pham, 317 F.3d at 194; United States v. Gordon, 156
F.3d 376, 380–81 (2d Cir. 1998).
Here, Perez does not assert that Donaldson failed to communicate a plea offer or that he
failed to provide competent advice about a plea offer, but rather states that he failed to pursue a
plea at all. Perez alleges in her motion that Donaldson “never consulted [her] as to a possible
plea and . . . never advised [her] as to the effects of entering a plea and demonstrating
Acceptance of Responsibility.” (Mot. Attachment B.) Perez also alleges that Donaldson “never
spoke to [the] government regarding a plea agreement and, if he did so, he never discussed the
terms with Movant.” (Mot. Attachment C.) In response, Donaldson avers that, after replacing
Bernard Udell as counsel, he “reviewed the extensive documentary and other evidence provided
by the Government and . . . discussed with [Perez], at length, her options in the case.”

13

(Donaldson Aff. ¶ 4.)7 Donaldson also states that he “suggested that [Perez] consider pleading
guilty pursuant to an agreement with the Government” in “several discussions” with her, during
which Donaldson “advised Ms. Perez about the benefits of pleading guilty including, among
other things, the benefits under the Sentencing Guidelines for acceptance of responsibility.” (Id.)
Donaldson explains that Perez “made it clear to me that she understood” these points, but
“remained adamant about her innocence and her intention to go trial” and did not authorize
Donaldson to discuss the terms of a guilty plea with the Government. (Id. ¶ 5.) In her reply,
Perez claims that she had asked Donaldson to negotiate with the Government on the basis of
certain “mortgage files” Perez “had on” a third party. (Perez Aff. ¶ 4.) In support of this
assertion, Perez points to post-conviction emails she sent to Donaldson requesting her case files,
in which she refers to the mortgage files “which you said you spoke to the prosecutor about and
they were not interested.” (No. 14-CV-3995, Doc. 17-5; see also Docs. 17-6, 17-7, 17-8.) Perez
also asserts that she sent Donaldson a text message in which she said “Please work out a deal,
I’m scared to go to trial,” and Donaldson replied, “You have no choice, you must go to trial.”
(Perez Aff. ¶ 8.)
Perez has failed to provide credible, objective evidence of deficient performance. See
Pham, 317 F.3d at 194. Perez does not provide any substantive testimony that counsel failed to
advise her of the benefits of pleading guilty. To the contrary, after having claimed in her motion
that she was never told the benefits of pleading guilty, (see Mot. Attachment B), Perez asserts in
her affidavit that she actually wanted to plead guilty but was denied the opportunity to do so,
thus implying that she understood the benefits of a plea, (see Perez Aff. ¶¶ 4, 5, 5a, 8).
Donaldson credibly explains in his affidavit that he advised Perez of the benefits of a plea,

7

“Donaldson Aff.” refers to the Affidavit of Xavier R. Donaldson, Esq. (Doc. 81-1.)

14

including a reduction in offense level for acceptance of responsibility, on numerous occasions.
(See Donaldson Aff. ¶ 4.) Perez’s assertion that counsel denied her the ability to plead guilty or
refused to negotiate a plea is similarly unsupported by credible evidence. As an initial matter,
Perez’s assertion that she texted her lawyer, “Please work out a deal,” and he replied, “You have
no choice, you must go to trial,” is wholly implausible on its face. (See Perez Aff. ¶ 8.) Perez
did not raise the issue in her direct appeal or mention it in her voluminous initial submission.
Furthermore, the Government’s lack of interest in Perez’s attempt to cooperate against a third
party with mortgage documents of some kind is not inconsistent with Donaldson’s statement that
Perez did not authorize him to discuss the terms of a plea.8 Once the Government made clear
that it had no interest in Perez’s cooperation about the mortgage documents she “had on” a third
party, Perez could have attempted to negotiate a plea agreement without cooperation.
Donaldson, however, specifically states that Perez “remained adamant about her innocence and
her intention to go to trial,” and never authorized him to negotiate a plea agreement. (Donaldson
Aff. ¶ 5.) For these reasons, Perez has not provided any credible evidence that counsel failed to
competently advise her in connection with a possible plea. See Lafler, 566 U.S. at 163; Pham,
317 F.3d at 194.
Even if counsel gave advice that was unreasonable under prevailing professional norms,
the record establishes that Perez was committed to going to trial and therefore suffered no
prejudice from any deficient performance. See Lafler, 566 U.S. at 163. In Perez’s own remarks
at sentencing, she apologized for “wasting the court’s time in allowing this case to go to trial.”
(Mot. Attachment B.) Perez also apologized for her conduct toward the Government at the

8
Neither Donaldson nor the Government directly addressed the mortgage document issue because Perez raised it for
the first time on reply.

15

reverse proffer, the details of which are outside the record but at which it can reasonably be
inferred that Perez asserted her innocence. (See id.; Gov’t Opp. 27.) Furthermore, Donaldson
claims that Perez was “adamant” about her desire to go to trial. (Donaldson Aff. ¶ 5.) Other
than Perez’s belated assertions that she desired to plead guilty, there is no credible evidence that
there is a reasonable probability Perez would have accepted a plea. See Pham, 317 F.3d at 194.
For these reasons, Perez has not established that she was denied the effective assistance of
counsel on the basis of counsel’s alleged failure to negotiate a plea agreement.
C.

Perez’s Testimony

In her motion, Perez asserts that Donaldson did not permit her to testify because she was
too “emotional” to do so. (See Mot. Attachments A, C.) Perez provides no additional detail on
this point in her affidavit. (See Perez Aff.) This statement does not suffice to set forth a
plausible claim of ineffective assistance of counsel. See Dominguez-Gabriel v. United States,
No. 09-CR-157 RPP, 2014 WL 4159981, at *6 (S.D.N.Y. Aug. 21, 2014) (“In the case of an
ineffective assistance claim based on trial counsel’s alleged failure to allow a defendant to
testify, courts have recognized that a self-serving affidavit, alleging such a failure, is insufficient
to establish that counsel was ineffective.”); see also United States v. Castillo, 14 F.3d 802, 804–
05 (2d Cir. 1994) (given that defendant had been advised in open court regarding his right to
testify, even accepting as true that he informed counsel that he wished to testify and counsel
refused to call him to the stand, defendant’s affidavit was insufficient).
Counsel was permitted—indeed, encouraged—to offer candid strategic advice to his
client about whether it was advisable to take the stand. In an on-the-record colloquy with Judge
Aspen, Perez confirmed that she was aware that she had the right to testify if she wanted to do
so. (See Trial Tr. 594:5-16.) Therefore, Perez has failed to offer any evidence that Donaldson

16

performed deficiently in this regard. Furthermore, Perez has not described what she would have
said if she had testified and has provided no reason to believe that her testimony would have had
a reasonable probability of affecting the outcome of the proceedings. See Brown v. Artuz, 124
F.3d 73, 81 (2d Cir. 1997) (finding, notwithstanding Brown’s statement that he would have
testified to certain facts had he taken the stand, that there was “no reasonable probability that the
verdict would have been different”). For these reasons, Perez has not set forth a plausible claim
of ineffective assistance of counsel on the basis that counsel allegedly prevented her from
testifying.
D.

Additional Witnesses and Evidence

The Government presented testimony at trial from only a handful of Perez’s dozens of
victims. Perez argues that counsel was ineffective in failing to call as witnesses other persons
identified as victims of Perez’s fraud, who, in Perez’s view, had either exaggerated their losses or
were not victims at all. (See Mot. Attachment A.) Perez identifies only one specific witness
whom she believes Donaldson should have called: Sharon Richards, a client and the cousin of a
victim. (See Perez Aff. ¶ 8.) Perez asserts that Richards was allegedly in possession of the
original version of a document that the Government incorrectly introduced at trial as forged.
(See id.) Perez does not identify any other witnesses who should have been called to testify on
her behalf or explain what testimony these witnesses could have provided. She also asserts that
counsel should have sought to introduce evidence of the alleged contract between Perez and
Scott, which purportedly would have established that Scott consented to Perez’s use of credit
cards in Scott’s name to purchase a car, among other things. (See Reply Ex. L; Perez Aff. ¶¶ 77c.)
Donaldson explains the reasons for the choices he made during the trial. With regard to

17

witnesses, Donaldson states that he did not think it would have been wise to call additional
victims of the fraud as witnesses for Perez, and that he interviewed one client and found her
testimony unhelpful.9 (Donaldson Aff. ¶ 8.) With regard to the contract, Donaldson stated that
he doubted its authenticity and declined to offer it as evidence on both strategic and ethical
grounds when a handwriting expert could not verify the authenticity of Scott’s signature. (See
id. ¶¶ 7–8.)
Plaintiff’s vague and unsupported assertions that unnamed witnesses would have
provided unspecified helpful testimony are wholly insufficient to make out a prima facie case
that counsel performed deficiently in failing to call these witnesses. See, e.g., Chang, 250 F.3d
at 85. In any event, counsel offered a reasoned strategic rationale for the decision not to call
these witnesses, as he believed the testimony of one would have been unhelpful and the
testimony of satisfied clients had been precluded by the court. See Ryan v. Rivera, 21 F. App’x
33, 34 (2d Cir. 2001) (summary order) (“[W]hen a party challenges matters of trial strategy, such
as the decision not to call a witness, even greater deference is generally warranted.”); United
States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998) (“The decision not to call a particular
witness is typically a question of trial strategy that appellate courts are ill-suited to secondguess.”); Krutikov v. United States, 324 F. Supp. 2d 369, 371 (E.D.N.Y. 2004) (“The decision
not to call a witness is strategic, and it is rarely, if ever, the proper basis of an ineffective
assistance of counsel claim.”). With respect to Richards in particular, Donaldson’s strategic
decision that her testimony would not have been helpful was reasonable, as counsel could have
found Richards not credible, calculated that the risk of her testimony outweighed its benefit, or
simply found that Richards’s actual testimony differed from Perez’s characterization of it. See

9

Perez states that Richards is the client whom Donaldson interviewed. (Perez Aff. ¶ 8.)

18

Pena-Martinez v. Duncan, 112 F. App’x 113, 115 (2d Cir. 2004) (summary order) (concluding
that counsel did not perform deficiently in declining to call a witness based upon counsel’s
affidavit explaining that he interviewed a witness and determined, contrary to client’s
representations, that she would not provide helpful testimony). “In this case, there is no evidence
in the record to suggest that counsel’s decision[] not to call [Richards was] anything other than
[a] strategic choice[] made after thorough investigation.” Ortiz v. Barkley, 558 F. Supp. 2d 444,
453 (S.D.N.Y. 2008). Furthermore, even if Donaldson’s decision not to call Richards as a
witness constituted deficient performance—which it did not—Perez has not made a showing of
possible prejudice.
Finally, Donaldson’s decision not to introduce into evidence a document he believed was
forged, on both ethical and strategic grounds, was wholly reasonable and in conformity with
prevailing professional norms. See N.Y. R. Prof’l Conduct 3.3(a)(3) (“A lawyer may refuse to
offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer
reasonably believes is false.”). Even if I assume that Donaldson’s assessment of the document
was incorrect, in light of the overwhelming evidence presented at trial of Perez’s sustained fraud
involving numerous clients over the course of several years, including detailed testimony by a
cooperating witness, there is no reasonable probability that the outcome of the proceedings
would have been different if Perez had succeeded in merely demonstrating that a single
document was not forged. See Strickland, 466 U.S. at 694.
For these reasons, Perez was not denied the effective assistance of counsel when counsel
declined to present certain evidence in her defense.
E.

Fatico

Perez argues that counsel was ineffective for failing to request a Fatico hearing to present

19

evidence regarding the amount of loss caused by Perez’s conduct. (Mot. 9; id. Attachment C at
2; id. Attachment E at 4.) However, Donaldson requested a Fatico hearing when he challenged
the Government’s estimate of loss in his sentencing submission. (See Doc. 61 at 4 (“These
undocumented and unreliable losses coupled with the defendant’s contesting the amounts clearly
call into question whether the total amount exceeds $400,000 and a hearing is requested to fully
explore the reliability of these ‘victims’ statements of loss.”).) In addition, Perez challenged
Judge Aspen’s calculation of the loss amount in her direct appeal and lost. United States v.
Perez, 523 F. App’x 842, 844 (2d Cir. 2013) (“The district court's findings as to loss amount
were not clearly erroneous.”) Perez cannot have been denied the effective assistance of counsel
on this basis.
F.

Variance

Perez also argues that Donaldson was ineffective in failing to argue for a variance based
upon her mental state as a result of the murder of her son Andre. (See Mot. 9; id. Attachment D;
Reply 10.) This argument must be rejected.
As an initial matter, this assertion appears to be part of a larger claim that counsel failed
to understand that the Sentencing Guidelines are nonbinding after Booker v. United States, 543
U.S. 220 (2005), and failed to identify any potential grounds for a variance. (See Mot.
Attachment D.) This argument is contradicted by the record. The point of counsel’s oral
sentencing argument was to advocate for a sentence of 60 months, (see Sentencing Tr. 16:2317:11),10 which was significantly below the applicable Guideline range of 97-121 months
concurrent on Counts One through Four plus twenty-four months consecutively on Count Five,
(see id. at 10:18–23). Counsel’s written sentencing submission argued for leniency under the

10

“Sentencing Tr.” refers to the transcript of the sentencing hearing of January 27, 2012. (Doc. 77-2.)

20

factors set forth in 18 U.S.C. § 3553(a) based upon Perez’s personal history as an immigrant, a
productive worker, a victim of domestic abuse, and a loving provider for her children and
grandchildren. (See Doc. 61 at 6–9.) Although counsel did not expressly use the word
“variance,” the substance of his written and oral presentations leaves no doubt that he understood
that Judge Aspen had the discretion to impose a below-Guidelines (or above-Guidelines)
sentence based upon an individualized assessment of Plaintiff’s culpability and personal
characteristics, and Donaldson argued that Judge Aspen should exercise that discretion to
sentence Perez to below the Guidelines range.
Furthermore, counsel did argue for sentencing leniency on the basis of Andre’s murder.
In his written submission, counsel explained:
Ms. Perez was very close to Andre and tried to instill in him fatherly
qualities that were absent in her own father and her own husband, Andre
Scott, Sr. Andre Jr, ultimately had two (2) children of his own, Treyvon
and Kayla Scott. While the birth of these two children were blessings, their
mothers were absent and of course Ms. Perez[] treated them as if they were
her own children. Unfortunately, her commitment to her grandchildren
proved insightful as Andre was gunned down and murdered in 2008 while
being robbed. Andre’s death caused an irreparable hole in Ms. Perez as no
mother wishes to outlive her children. After Andre’s death, Ms. Perez did
what she has always done when it came to family, she immediately assumed
primary care responsibilities of Andre’s two children: Trayvon and Kayla.
Indeed, from 2008 until she was incarcerated related to this case, Ms. Perez
had provided all care for Treyvon and Kayla. After her incarceration,
Trayvon has suffered immensely and accordingly [sic] to Ms. Perez “rarely
speaks to anyone.”
(Doc. 61 at 7–8.) Counsel also discussed Perez’s loss of her son in his oral presentation, albeit
briefly. (See Sentencing Tr. 15.)
Donaldson did not expressly link Andre’s murder with Perez’s level of culpability. That
is, counsel did not argue, as Perez apparently believes he should have, that Perez bore diminished
responsibility for her criminal conduct because she was depressed and grieving as a result of her

21

son’s murder. However, declining to make such an argument was entirely reasonable and did
not constitute deficient performance under Strickland. In general, counsel’s strategic choice of
which sentencing arguments to emphasize is owed deference and may not be second-guessed in
hindsight. See, e.g., Strickland, 466 U.S. at 689. Here, the argument Perez believes counsel
should have made would have stood little chance of success. The evidence presented at trial
focused largely upon Perez’s preparation of fraudulent applications for the LULAC visa
program, which only accepted applications from May 2004 through September 2005. (See Trial
Tr. 36:14–37:6, 76:5-7.) Similarly, Perez’s fraudulent use of a client’s stolen identity to obtain
banking credit and buy a car occurred in 2006. (See Reply Exs. M-Q.) Perez’s son was
murdered in 2008. (Doc. 61 at 7–8.) It would have been illogical to argue that Perez’s grief
diminished her culpability for criminal conduct that mainly took place while her son was alive.
Measured against an objective standard of reasonableness, counsel did not perform deficiently by
not presenting this argument. See, e.g., United States v. Herrera, 186 F. App’x 109, 112 (2d Cir.
2006) (summary order) (no deficient performance in not making an argument that “experienced
counsel could well have concluded . . . was hardly likely to result in a more lenient sentence”);
Rodriguez v. United States, 663 F. Supp. 2d 220, 223 (S.D.N.Y. 2009) (“Plausibly, recognition
of the shaky factual support for the argument may have prompted a strategic decision by counsel
not to press the issue further at sentencing.”); Santiago-Diaz v. United States, 299 F. Supp. 2d
293, 301 (S.D.N.Y. 2004) (counsel’s failure to present sentencing argument of “doubtful” merit
was not deficient performance). And, even if the argument were not unsound, it easily could
have undercut Perez’s own effort to take responsibility for her actions at sentencing. (See
Sentencing Tr. 35-37.) See Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) (“We will not
normally fault counsel for foregoing a potentially fruitful course of conduct if that choice also

22

entails a ‘significant potential downside.’”).
Conclusion
For the foregoing reasons, I conclude that Perez was not deprived of her Sixth
Amendment right to counsel, and the motion to vacate, set aside, or correct her sentence pursuant
to 28 U.S.C. § 2255, (Doc. 73; No. 14-CV-3995, Doc. 1), is DENIED. Because there has been
no substantial showing of the denial of a constitutional right, no certificate of appealability shall
issue. See Krantz v. United States, 224 F.3d 125, 127 (2d Cir. 2000); 28 U.S.C. § 2253(c)(2).
The Clerk of Court is respectfully directed to terminate the pending motion and to close Case
No. 14-CV-3995.
SO ORDERED.

Dated: May 1, 2017
New York, New York

______________________
Vernon S. Broderick
United States District Judge

23