Cavounis v. USA
MEMORANDUM OPINION AND ORDER re: 13 MOTION for Reconsideration re; 10 Memorandum & Opinion filed by Christopher Cavounis. For the reasons set forth above, Petitioner's Motion is denied. The Court certifies pursuant to 28 U.S.C. § ; 1915(a)(3) that any appeal from this ruling would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of the Court is respectfully directed to mail a copy of this opinion to Plaintiff, to note service on the docket, to close docket entry thirteen, and to terminate the case. (As further set forth in this Order.) (Signed by Judge Valerie E. Caproni on 2/19/2016) (adc) (Main Document 20 replaced on 2/19/2016) (adc).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
OPINION & ORDER
VALERIE CAPRONI, United States District Judge:
Christopher Cavounis moves pro se pursuant to Federal Rule of Civil Procedure 59(e) to
alter the Court’s July 24, 2015 Order denying his petition for relief under 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence (the “Motion”). Upon careful review of Petitioner’s
arguments and the record, the Court finds that Petitioner’s arguments are procedurally barred and
lack merit. Accordingly, Petitioner’s Motion is DENIED.
On December 22, 2011, Petitioner signed a plea agreement that included an appeal
waiver (“Plea Agreement”) and pled guilty to charges of conspiracy to commit bank fraud, bank
fraud, and bribery. On June 14, 2012, Petitioner was sentenced to ninety-seven months of
imprisonment, two years of supervised release, the forfeiture of approximately $7.9 million,
restitution of $8.2 million, and a $700 mandatory special assessment. On July 6, 2012, Petitioner
filed a notice of appeal, challenging the validity of the appeal waiver contained in the Plea
Agreement. On March 27, 2013, the Second Circuit granted the Government’s motion to
dismiss the appeal. The Supreme Court denied the Petitioner’s petition for writ of certiorari.
On June 24, 2014, Petitioner filed a motion under 28 U.S.C. § 2255 to vacate, set aside,
or correct his sentence (the “Petition”) (Dkt. 1). Petitioner argued that he had not knowingly and
voluntarily agreed to the appellate waiver in the Plea Agreement, that the District Court had
violated Federal Rule of Criminal Procedure 32(i)(1)(A) during his sentencing, and that he had
received ineffective assistance of counsel. On July 24, 2015, the Court denied Petitioner’s
motion, holding that his claims were barred by the waiver provision in the Plea Agreement and
lacked merit (the “Order”) (Dkt. 10).
Petitioner asks the Court to reconsider its July 24, 2015 Order pursuant to Rule 59(e) of
the Federal Rules of Civil Procedure and Rule 6.3 of the Local Civil Rules. “The standards
governing a motion for reconsideration under Local Rule 6.3 are the same as those under Federal
Rule of Civil Procedure 59(e).” Abrahamson v. Bd. of Educ. of Wappingers Cent. Sch. Dist., 237
F. Supp. 2d 507, 510 (S.D.N.Y. 2002) (citation omitted). A petitioner may bring a motion under
Federal Rule of Civil Procedure 59(e) to amend or correct an order denying relief under 28
U.S.C. § 2255. See Fed. R. Civ. P. 59(e); Beras v. United States, No. 05-CIV-2678 (SAS) 2013
WL 2420748, at *1 (S.D.N.Y. June 4, 2013). “The standard for granting a motion for
reconsideration ‘is strict, and reconsideration will generally be denied unless the moving party
can point to controlling decisions or data that the court overlooked—matters, in other words, that
might reasonably be expected to alter the conclusion reached by the court.’” Boyd v. United
States, No. 12-CV-474 (JSR) 2015 WL 1345809, at *2 (S.D.N.Y. Mar. 20, 2015) (quoting
Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). This strict standard is not to be
taken lightly; “Rule 59(e) is ‘an extraordinary remedy to be employed sparingly in the interests
of finality and conservation of scarce judicial resources.’” Wallace Wood Properties v. Wood,
No. 14-CV-8597 (LTS) 2015 WL 7779282, at *2 (S.D.N.Y. Dec. 2, 2015) (quoting In re Health
Mgmt. Sys., Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000)).
Petitioner’s Arguments Are Procedurally Barred1
“A motion to reconsider . . . is an improper means to raise new grounds for habeas relief
that could have been presented in the earlier habeas proceeding.” Negron v. United States, 394
F. App’x 788, 793 (2d Cir. 2010) (quoting Gitten v. United States, 311 F.3d 529, 534 (2d Cir.
2002)). A Rule 59(e) motion “is not intended as a vehicle for a party dissatisfied with the Court's
ruling to advance new theories that the movant failed to advance in connection with the
underlying motion . . . .” Parrish v. Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003); see
also Seinfeld v. Worldcom, Inc., No. 06-CV-13274 (DLC) 2007 WL 1573870, at *1 (S.D.N.Y.
May 31, 2007) (“A motion for reconsideration may not treat the court’s initial decision as the
opening of a dialogue in which that party may then use such a motion to advance new theories or
adduce new evidence in response to the court's rulings.” (internal quotation omitted)); Weiss v.
El Al Israel Airlines, Ltd., 471 F. Supp. 2d 356, 358 (S.D.N.Y. 2006) (“A motion for
reconsideration is not an opportunity for a losing party to advance new arguments to supplant
those that failed in the prior briefing of the issue.”).
Petitioner’s Motion for Reconsideration is procedurally barred because it impermissibly
advances “new . . . arguments not previously presented to the Court.” Nat'l Union Fire Ins. Co.
of Pittsburgh, PA. v. Stroh Companies, Inc., 265 F.3d 97, 115 (2d Cir. 2001) (quoting Polsby v.
St. Martin's Press, No. 97-CV-690 (MBM) 2000 WL 98057, at *1 (S.D.N.Y. Jan.18, 2000)).
First, Petitioner argues that the Court, in ruling on his Petition, failed to consider Parisi v. United
The Court cites to the original Petition filed on June 24, 2014 (Dkt. 1) as “Pet.” and to Petitioner’s Motion
for Reconsideration (Dkt. 13) as “Recons.”
States, 529 F.3d 134 (2d Cir. 2008), and that, under Parisi, an ineffective assistance of counsel
claim survives an appellate waiver where the ineffective assistance of counsel claim connects the
allegedly ineffective advice to the voluntariness of the plea. Recons. 3. Petitioner argues that his
ineffective assistance of counsel claim should survive the waiver because counsel did not advise
him to contest the loss amount provided in the Plea Agreement, and, if counsel had given such
advice, Petitioner would have presented evidence demonstrating that the loss amount was less
than what his Plea Agreement stipulated. Id. at 3-7. In his Petition, Petitioner neither cited
Parisi nor argued that his counsel should have advised him to contest the loss amount. See Pet.
10-16. Instead, Petitioner only argued in his Petition that his counsel failed to discuss with him
the contents of the Presentence Investigation Report (“PSR”) and to object to the loss amount in
the PSR. Id.
Second, Petitioner asserts that the Court did not consider an October 2014 Department of
Justice memorandum directing federal prosecutors not to enforce an appeal waiver when: (1)
defense counsel provided ineffective assistance resulting in prejudice, or (2) a defendant’s
ineffective assistance claim raises serious debatable issues that a court should resolve.
Recons. 8. Petitioner asserts that, in light of the Department’s policy memorandum, Circuit
Courts have vacated judgments that denied 28 U.S.C. § 2255 petitions because of appeal
waivers. Id. Nowhere, however, did Petitioner argue in his original Petition that the Court
should consider the October 2014 Department of Justice memorandum in deciding his Petition.
See Pet. 3-17.
Finally, Petitioner argues that during sentencing the Court abdicated its judicial duty to
inquire into the purported conflict of interest between Petitioner and his counsel, which,
according to Petitioner, is a basis to void Petitioner’s appeal waiver under United States v. Riggi,
649 F.3d. 143, 147 (2d Cir. 2011). Recons. 9-15. Petitioner did not previously argue that the
Court had failed to inquire into a potential conflict of interest during sentencing or that such a
conflict would be a basis to void his appeal waiver. Pet. 3-17. In contrast, with respect to the
Court’s actions, Petitioner only argued that the Court violated Federal Rule of Criminal
Procedure 32(i)(1)(A) by not independently verifying that Petitioner had personally reviewed the
PSR and that the Court should have sua sponte recalculated the loss amount set forth in the PSR.
Id. at 2-9.
In sum, Petitioner’s arguments are procedurally barred.
Even if Not Procedurally Barred, Petitioner’s Claims on Reconsideration Are
Petitioner’s Counsel Were Not Ineffective
Petitioner, relying on Parisi v. United States, 529 F.3d at 138, contends that his
ineffective assistance of counsel claim survives the appeal waiver in his plea agreement because
his ineffective assistance of counsel claim concerns advice from counsel regarding the plea.
Petitioner’s claim is that his attorney was ineffective in advising him to accept the plea
agreement because the stipulated loss amount was higher than the actual loss amount. Id. at 3.
Petitioner asserts that his attorney should have conducted a reasonable investigation to determine
the actual loss amount and should have advised him to continue negotiating until the
Government reflected the lower loss amount in the Plea Agreement. Id. at 4, 6. Petitioner
claims that he accepted the plea agreement on the basis of his attorney’s representation that the
stipulated loss amounts were correct and on his attorney’s advice to accept the plea. Id. at 7.
Finally, Petitioner maintains that if his attorney had properly advised him regarding the loss
amount, Petitioner would have either persuaded the Government to stipulate to the lower loss
amount or would have asked for a Fatico hearing in which he would have proven the lower loss
amount. Id. Ultimately, Petitioner argues, there was a reasonable probability that the Court
would have imposed a sentence at the low end of the guidelines range—seventy-eight months
instead of the ninety-seven he received. Id.
Parisi held that to raise an ineffective assistance of counsel claim in the face of an appeal
waiver a petitioner must show that the plea agreement was not knowing and voluntary because of
the advice received from counsel. 529 F.3d at 138 (citations omitted). “[C]hallenging the
attorney’s advice about th[e] bargaining position, by connecting the knowing and voluntary
nature of the defendant’s plea decision with the attorney’s conduct” can overcome an appeal
waiver. Id. at 139. In contrast, “a purported failure to enhance the defendant’s case,” such as
“the attorney’s role in shaping the defendant’s bargaining position” is not sufficient by itself to
overcome an appellate waiver. Id. at 138-39.
While Parisi establishes a narrow window through which a habeas petitioner can
overcome an appeal waiver in order to press an ineffective assistance of counsel claim, Parisi
also recognizes that any such claim must adhere to the strict requirements of Strickland v.
Washington, 466 U.S. 668 (1984). See id. at 140 (citations omitted). To successfully raise an
ineffective assistance of counsel claim, a defendant must “‘(1) demonstrate that his counsel’s
performance ‘fell below an objective standard of reasonableness’ in light of ‘prevailing
professional norms;’ and (2) ‘affirmatively prove prejudice’ arising from counsel’s allegedly
deficient representation.’” Id. at 140 (quoting United States v. Cohen, 427 F.3d 164, 167 (2d Cir.
2005)). “This test ‘is rigorous,’ and the great majority of habeas petitions that allege
constitutionally ineffective [assistance of] counsel founder on it.” Id. at 140-41 (quoting Bell v.
Miller, 500 F.3d 149, 155 (2d Cir. 2007)).
This Court already denied the merits of Petitioner’s ineffective assistance of counsel
claim, insofar as his counsel allegedly failed to show Petitioner the PSR and to object to the loss
amount used in calculating his sentencing guidelines range. Order at 3-4, 13-14. The Court
found that counsel’s failure to object to the loss amount in the PSR was not unreasonable
because Petitioner stipulated to that loss when he signed the Plea Agreement. Id. at 14.
Furthermore, this Court found that even if counsel’s failure to object to the loss amount in the
PSR was unreasonable, the Petitioner could not establish prejudice from that failure. Id. The
Parisi decision cited by Petitioner and his related arguments do not alter the conclusion already
reached by the Court because counsel’s purported failure to enhance Petitioner’s bargaining
position vis-à-vis the loss amount was not unreasonable and did not prejudice the Petitioner.
Counsel’s failure to advise Petitioner to continue negotiating with the Government about
the loss amount was not unreasonable. See Ma v. United States, No. 97 CR489 (JSM) 2000 WL
375241, at *1 (S.D.N.Y. Apr. 12, 2000) (concluding that “Petitioner . . . failed to demonstrate
how he was prejudiced by counsel’s failure to provide him with information concerning the loss
calculation” where Petitioner “acknowledged reading the presentence report” and “the loss
calculation that petitioner stipulated to . . . was the result of negotiation between the Government
and [petitioner’s] counsel.”). Petitioner allocuted that he reviewed the Plea Agreement with his
attorney and understood that the Plea Agreement contained a stipulated guideline range of
ninety-seven to 121 months. Order at 6. The Petitioner reviewed the Plea Agreement which
included a loss calculation of $8.2 million and did not contest the amount. Order at 6.
Reviewing counsel’s performance deferentially, Petitioner cannot establish that counsel’s failure
to object to the loss amount was unreasonable. See Strickland, 466 U.S. at 689 (“Judicial
scrutiny of counsel's performance must be highly deferential.”). Because Petitioner knowingly
and voluntarily stipulated to the loss amount by signing the Plea Agreement, counsel had no
reason to press for further negotiation with the Government.
In addition, Petitioner has not shown that the alleged errors resulted in prejudice. To
demonstrate prejudice, 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. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at
694. Petitioner has not demonstrated a reasonable probability that but for his counsel’s failure to
negotiate further with the Government, the district court would have sentenced Petitioner
differently. See Matos v. United States, 907 F. Supp. 2d 378, 384 (S.D.N.Y. 2012) (“[T]he
assertion of weak negotiation skills cannot sustain an ineffective assistance claim.” (citation
omitted)). Even if counsel had attempted to continue negotiations with the Government
concerning the loss amount, it is uncertain whether the Government would have agreed to a
lesser amount, especially in the absence of any contradictory evidence. See Johnson v. United
States, No. 10-CR-973 (SAS) 2015 WL 7169589, at *6 (S.D.N.Y. Nov. 12, 2015) (concluding
that an attorney was not ineffective “because he failed to object to the government’s loss
calculation found in the PSR” where the government provided a clear loss calculation and where
the Petitioner did not provide “a specific factual or legal basis for challenging this calculation.”).
It is even more uncertain whether Petitioner would have succeeded in proving the lower loss
amount in a Fatico hearing, let alone that the district court would have sentenced Petitioner to
the low end of the new guidelines range instead of the ninety-seven months he received, given
that ninety-seven months was the low end of the guidelines under which he was sentenced and
the high end of the guidelines range corresponding to the lower loss amount that Petitioner now
asserts is correct.
Moreover, despite Petitioner’s claim that he would have proven to the Court that the
actual loss was less than the amount stipulated, Petitioner does not present any evidence of the
lower amount. See United States v. Glum, 272 F. App'x 124, 126-27 (2d Cir. 2008) (holding that
the district court did not err “in accepting the stipulated loss amount” where the defendant’s
stipulation was knowing and voluntary, and “the record as a whole contained more than enough
evidence . . . to conclude that the stipulated amount reflected the actual fraud loss amount”
(citation omitted)). Petitioner erroneously relies on the PSR’s restitution provision as evidence
of the lower loss amount. See Recons. 6. The PSR provision on which Petitioner relies specifies
an amount for restitution that equals the lower loss amount pressed by Petitioner, but it explicitly
provides that amount is only a fraction of the total restitution due, stating “[w]e are awaiting the
bank addresses and loss amounts of the remaining victims from the Government,” see id., Ex. 1
In short, even if this argument were not waived, Petitioner’s ineffective assistance of
counsel claim is meritless.
The Department of Justice Memorandum Is Not Binding on the Court
Petitioner contends that this Court failed to consider an October 14, 2014 Department of
Justice memorandum instructing prosecutors not to enforce a waiver when (1) defense counsel
rendered ineffective assistance resulting in prejudice or (2) an ineffective assistance claim raises
a serious debatable issue that a court should resolve.2 Recons. 8-9. Petitioner’s reliance on the
Justice Department’s memorandum is misplaced because the Justice Department’s policy
The October 14, 2014 memorandum specifically addresses the Department’s commitment to supporting
effective defense of indigent defendants. See Mem. from James M. Cole, Deputy Attorney Gen., Dep’t of Justice
(Oct. 14, 2014), http://www.justice.gov/sites/default/files/press-releases/attachments/2014/10/15/dept-policy-onwaivers-of-claims-of-ineffective-assistance-of-counsel.pdf. Here, the Petitioner privately retained five different
attorneys to aid in his defense at trial. United States v. Cavounis, 11-CR-297-1 (VEC) (S.D.N.Y. filed Nov. 27,
2010). Thus, Petitioner is not the type of defendant whom the Department was primarily aiming to benefit with this
statement is not controlling law and does not bind this Court. See United States v. Reed, 576 F.
App’x 60, 61-62 (2d Cir. 2014) (holding that Department of Justice “policy statements and
guidance [do] not legally bind prosecutors or . . . the courts” (citing United States v. Canori, 737
F.3d 181, 183–84 (2d Cir. 2013)). Moreover, the Justice Department’s memorandum instructs
prosecutors not to enforce waivers in only two specific circumstances, neither of which is present
in Petitioner’s case. As discussed above, the alleged ineffective assistance of counsel neither
resulted in prejudice nor raises a serious debatable issue. Thus, the Department of Justice
memorandum could not have reasonably altered the Court’s earlier decision not to vacate or
correct Petitioner’s sentence.
The Court Did Not Abdicate Its Duty To Inquire into a Possible Conflict of
Interest Between Petitioner and Counsel
Finally, Petitioner argues that because the sentencing court abdicated its judicial duty by
failing to inquire into an alleged conflict of interest between Petitioner and his counsel, the
appeal waiver should be voided. Recons. 9. Petitioner states the alleged conflict of interest
arose at the sentencing hearing when Petitioner’s counsel advised the district court that Petitioner
had reviewed the PSR. Id. at 10. Petitioner asserts that he could not have reviewed the PSR
prior to the sentencing hearing because he heard for the first time during the sentencing hearing
that the PSR alleged violent behavior. Id. Petitioner told the district court during the hearing
that it was the first time that he had heard the violence allegations. Id. According to Petitioner,
the district court should have known “that Petitioner’s statements had placed the veracity of
counsel’s prior representations to the Court in question, creating an actual conflict of interest.”
Id. Petitioner reasons that defense counsel could not concede that Petitioner did not know about
the allegations of violence because “[it] would require counsel admitting serious ethical
violations and possibly subject him to sancations [sic] for having previously misrepresented to
the Court that [counsel] . . . had reviewed the [PSR] . . . with Petitioner.” Id. at 11.
Petitioner relies on United States v. Riggi in support of his position that the district
court’s purported abdication of its judicial duty to inquire into a possible conflict of interest
between Petitioner and defense counsel voids the appeal waiver. Id. at 9. Petitioner quotes
Riggi, stating “the Second Circuit explained that it has ‘voided waivers where a sentencing court
abdicat[ed] [its] judicial duty.’” Id. (quoting 649 F.3d at 147). This quote misconstrues Riggi.
Riggi states that “we have voided waivers where a sentencing court ‘failed to enunciate any
rationale for the defendant's sentence,’ and thus ‘abdicat[ed] [its] judicial responsibility.’” Riggi,
649 F.3d at 147 (quoting United States v. Woltmann, 610 F.3d 37, 40 (2d Cir. 2010)). Here, the
district court did not fail to “enunciate any rationale for the defendant’s sentence.” Id.
Moreover, this Court has previously concluded that, based on defense counsel’s response to the
Court’s questions at the plea hearing, it was reasonable to infer that Petitioner had reviewed and
discussed the PSR with his counsel. Order at 11. Therefore, this argument is without merit and
does not alter the Court’s original conclusion.
For the reasons set forth above, Petitioner’s Motion is denied. The Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this ruling would not be taken in good
faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of the Court is
respectfully directed to mail a copy of this opinion to Plaintiff, to note service on the docket, to
close docket entry thirteen, and to terminate the case.
United States District Judge
Date: February 19, 2016
New York, NY
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