King v. USA

Filing 46

MEMORANDUM OPINION AND ORDER: The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the foregoing reasons, the petitioner's motion p ursuant to 28 U.S.C. § 2255 is denied. The Clerk is directed to enter judgment dismissing the Petition and closing this case. The Court declines to issue a certificate of appealability because the petitioner has failed to make a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). (Signed by Judge John G. Koeltl on 4/25/2017) (ap)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------MELISSA G. KING,
Petitioner,

10-cr-122 (JGK)
14-cv-7962

- against –
UNITED STATES OF AMERICA,

MEMORANDUM OPINION
AND ORDER

Respondent.
-----------------------------------JOHN G. KOELTL, District Judge:
The petitioner, Melissa G. King, moves pro se pursuant to
28 U.S.C. § 2255 to vacate and set aside her 72-month sentence
of imprisonment, which was entered following her guilty plea to
one count of embezzlement from employee benefit plans, in
violation of 18 U.S.C. §§ 664 & 2, and to one count of
subscribing to false United States individual tax returns, in
violation of 26 U.S.C. § 7206(1). The petition and its
supporting memorandum (collectively, the “Petition”) --- which
were filed over a year after the statute of limitations expired
--- raise a host of claims: among others, that the guilty plea
was not knowing, intelligent, or voluntary; ineffective
assistance of counsel; prosecutorial misconduct; actual
innocence; and violation of the Cruel and Unusual Punishments
Clause of the Eighth Amendment.
In response to the request of this Court, see Civ. Dkt. 26,
the attorneys that represented the petitioner in the underlying

criminal proceedings have submitted declarations and an
affidavit to address the ineffective assistance of counsel
claims. See Civ. Dkt. 32 (Fontier Declaration); Civ. Dkt. 33
(Schachter Affidavit); Civ. Dkt. 34 (Handwerker Declaration)
(collectively, the “Attorney Affidavits”).
For the reasons explained below, the Petition is dismissed.
I.
A.
On February 17, 2010, the petitioner was charged in an
Indictment with one count of embezzlement from employee benefit
plans, in violation of 18 U.S.C. §§ 664 & 2, and with eleven
counts of money laundering, in violation of 18 U.S.C. §§ 1957 &
2. See Cr. Dkt. 12. The Indictment alleged that the petitioner
served as the third-party administrator for the employee benefit
plans of a union, the Compressed Air and Free Air Foundations,
Tunnels, Caissons, Subways, Cofferdams, Sewer Construction
Workers Local 147 of New York, New Jersey States and Vicinity
AFL-CIO (“Local 147”). The Indictment alleged that the
petitioner embezzled approximately $40 million from three of
Local 147’s employee benefit plans through King Care LLC (“King
Care”), a company the petitioner controlled, which served as the
fund manager for the funds pursuant to an administrative
agreement, and that the petitioner then laundered the embezzled

2

funds through a series of bank accounts. See Cr. Dkt. 12 at 4-5.
The petitioner pleaded not guilty.
At the time the Indictment was filed, the petitioner was
represented by retained counsel, Peter William Till (“Till”) of
the Law Offices of Peter W. Till. 1 See Cr. Dkt. 3. The petitioner
retained two additional lawyers, Michael Handwerker
(“Handwerker”) of Goldstein & Handwerker, LLP, who appeared on
behalf of the petitioner in March 2010, and Ronald K. Smith
(“Smith”), a solo practitioner, who appeared on behalf of the
petitioner in June 2010. See Cr. Dkts. 21, 23, 25, 30. On June
15, 2010, Till moved to withdraw as the petitioner’s attorney.
See Cr. Dkts. 28-29. The petitioner --- citing “irreconcilable
differences” and a “breakdown in communications” with Till, as
well as her belief that Handwerker could adequately represent
her in the matter --- did not oppose Till’s motion, see Cr. Dkt.
32, which was granted on July, 2, 2010, see Cr. Dkt. 34.
On June 30, 2010, a Superseding Indictment was filed,
adding one count of mail fraud, in violation of 18 U.S.C.
§§ 1341 & 2, and four counts of tax evasion, in violation of 26
U.S.C. § 7201. See Cr. Dkt. 35. Over the next year, in numerous
filings, the Government and counsel for the petitioner battled
over a series of dispositive and non-dispositive issues, ranging
1

Till also represented the petitioner in a civil action brought
by the trustees for Local 147’s funds against the petitioner.
See Fitzsimmons v. King Care, LLC, 09-cv-05506 (PAE) (S.D.N.Y.).
3

from the post-indictment restraint and preservation of the
petitioner’s assets, to the dismissal of the superseding
indictment, to the suppression of post-arrest statements. See
United States v. King, No. 10 CR. 122 (JGK), 2011 WL 1630676
(S.D.N.Y. Apr. 27, 2011); United States v. King, No. 10 CR. 122
(JGK), 2010 WL 4739791 (S.D.N.Y. Nov. 12, 2010). 2
Due in part to the post-indictment freeze of the
petitioner’s assets, the petitioner lost the ability to pay for
Smith and Handwerker. See Cr. Dkt. 128. On March 14, 2011, at
the request of the petitioner, Michael S. Schachter
(“Schachter”) of Willkie Farr & Gallagher LLP (“WFG”) was
appointed to represent the petitioner pursuant to the Criminal
Justice Act (the “CJA”), 18 U.S.C. § 3006A. See Cr. Dkt. 130.
Because the petitioner could no longer pay for retained counsel,
on March 23, 2011, Handwerker was temporarily appointed to the
CJA Panel so that Handwerker could continue representing the
petitioner pursuant to the CJA. Cr. Dkt. 136. The purpose of the
dual representation was to provide the petitioner with the
benefit of her choice of counsel, Handwerker, and the experience

2

On January 24, 2011, “a second superseding indictment was
filed. The primary effect of the second superseding indictment
was to amend the ‘to wit’ clause of Count One, to replace an
allegation that the defendant ‘embezzled tens of millions of
dollars’ to one that the defendant ‘embezzled, stole, abstracted
and converted tens of millions of dollars.’” King, 2011 WL
1630676, at *1.
4

of Schachter, along with the resources of a larger firm, WFG,
that could review the immense amount of discovery in the case.
As counsel for the petitioner, Handwerker and Schachter
continued to contest issues in the case, including by moving in
limine to exclude certain evidence. See, e.g., Cr. Dkts. 192,
209. While preparing for the possibility of a trial, the
petitioner also negotiated with the Government regarding the
possibility of a disposition short of trial.
On October 21, 2011, the petitioner waived her right to be
indicted by a grand jury, and consented to being charged in a
Superseding Information S3 10 Cr. 122 (JGK) (the “Information”).
See Cr. Dkt. 218. The Information charged the petitioner with
one count of embezzlement from employee benefit plans, in
violation of 18 U.S.C. §§ 664 & 2 (“Count I”), and with one
count of subscribing to false United States individual tax
returns, in violation of 26 U.S.C. § 7206(1) (“Count II”).
On the same date, the petitioner appeared before this
Court, and pleaded guilty to both Counts in the Information
pursuant to a plea agreement dated October 20, 2011 (the “Plea
Agreement”) with the Government. The Plea Agreement contained a
waiver by the petitioner of any direct appeal or collateral
challenge of any sentence of or below the Stipulated Guidelines
Range of 96 months’ imprisonment. Plea Agr. at 8-9. The Plea
Agreement also noted that, for the purposes of calculating the
5

Sentencing Guidelines offense level, the petitioner and the
Government disputed the loss amount attributable to the
petitioner’s conduct: the petitioner contended that the loss
amount was between $7 million and $20 million, while the
Government contended that the loss amount was between $20
million and $50 million. Plea Agr. at 7. This was a sentencing
issue that did not affect the petitioner’s ability to plead
guilty to Counts I and II of the Information. Indeed, the
Stipulated Guidelines Range of 96 months’ imprisonment was based
on the statutory maximum sentence for the two Counts of
conviction. Under both the Government’s calculations and the
petitioner’s calculations, the Guideline Sentencing Range would
have been higher if it were not capped by the statutory maximum
sentence.
At the petitioner’s guilty plea, this Court conducted an
allocution in conformity with Rule 11 of the Federal Rules of
Criminal Procedure. The petitioner was placed under oath and
then answered a series of questions establishing that she was
competent to enter a guilty plea. Plea Tr. at 9-13. For example,
the petitioner explained that she was highly educated: she had a
master’s degree, and had nearly completed a Ph.D. Plea Tr. at
10.
The petitioner also explained that she had had psychiatric
treatment for post-traumatic stress “a couple of years ago” and
6

that she was separately being treated for several physical
ailments --- namely, back problems and “a chronic infection.”
She swore that her past psychiatric condition and treatment
“[a]bsolutely [did] not” affect her ability to understand the
proceedings and to consult with her lawyer. Plea Tr. at 10-12.
She also swore that her physical condition did not interfere
with her ability to understand the proceedings and to consult
with her lawyer. Plea Tr. at 12. The petitioner swore that her
mind was clear; that she wanted to proceed with the plea
allocution; and that she had not taken any drugs, medicine,
pills, or alcohol in the preceding 24 hours. Plea Tr. at 12-13.
Counsel for the petitioner, and the petitioner herself,
confirmed that “nothing about [the petitioner’s] physical
condition in any way impact[ed] her ability to proceed with the
guilty plea.” Plea Tr. at 5-8. The guilty plea allocution
occurred in the afternoon at 4:35 p.m. The petitioner’s counsel
confirmed that the petitioner had refrained from taking her
medication so that she could participate in the guilty plea
allocution that afternoon. Plea Tr. at 6.
The petitioner also swore that she had “extensive
discussion” with her counsel regarding her case, and the
consequences of waiving indictment, proceeding by information,
and entering a guilty plea. Plea Tr. at 14. The petitioner swore

7

that she was satisfied with Schachter’s representation of her
--- “very much so.” Plea Tr. at 14.
On the basis of the petitioner’s responses to this Court’s
questions, and the Court’s observations of her demeanor, this
Court found that the petitioner was “fully competent to waive
indictment, agree to proceed by information, and enter an
informed plea.” Plea Tr. at 14.
The petitioner acknowledged the various rights that she was
giving up by pleading guilty. Plea Tr. at 14-17. The petitioner
acknowledged that she consented to being charged by information
rather than indictment. Plea Tr. at 17-19. The petitioner was
advised of the nature of the charges to which she was pleading
guilty, Plea Tr. at 20-23, the maximum penalties for those
charges (including restitution), the possibility of forfeiture,
and the implications of any term of supervised release. Plea Tr.
at 21-28.
As to the Plea Agreement, the petitioner acknowledged that
she signed it, that she discussed it with her counsel before
signing it, and that she fully understood it before signing it.
Plea Tr. at 28-29. She affirmed under oath that no one had
offered her any inducements, or threatened her, or forced her to
plead guilty or to enter into the Plea Agreement. Plea Tr. at
29. The Court discussed with the petitioner the provision of the
Plea Agreement in which the petitioner agreed to waive her right
8

to file an appeal or collateral challenge of any sentence of or
below the Stipulated Guidelines Range. Plea Tr. at 29-30. The
petitioner swore that she understood the provision:
THE COURT: So, do you understand that if I sentence
you to any sentence of 96 months’ imprisonment or
less, you have given up your right to appeal any such
sentence or challenge any such sentence in any
proceeding including any habeas corpus proceeding?
Do you understand that?
THE DEFENDANT: I understand that.
Plea Tr. at 30. The Court ensured that there was an
adequate factual basis for the petitioner’s guilty plea, that
the petitioner was aware that her actions were illegal, and that
venue was proper. Plea Tr. at 32-38. Regarding Count I, the
petitioner explained that, between 2002 and 2008, she served as
a third-party administrator for three of Local 147’s employee
benefit retirement funds. Plea Tr. at 32-33. The petitioner
swore that she “caused to be transferred a substantial amount of
money from the bank accounts for those funds into King Care” and
then “caused that money to be transferred for [her] own use
rather than for the benefit of the funds for the participants of
the funds.” Plea Tr. at 33. The petitioner swore that she “knew
[she] was not entitled to the money and [she] knew that [what]
[she] was doing [was] wrong, unlawful, and unauthorized,” and
that she “was aware that those funds were governed by ERISA at
the time.” Plea Tr. at 33. She affirmed in response to a

9

question by the Court that she “knew that [she] [was] not
entitled to those funds . . . .” Plea Tr. at 33.
Regarding Count II, the petitioner swore:
I also willfully and knowingly subscribed and filed
personal tax returns between 2004 and 2007 that were
false as to material matters. I knew that the tax
returns were false because they did not report a
substantial amount of income I received from King
Care. I verified the false tax returns by written
declaration that they were made under penalties of
perjury.
Plea Tr. at 33. The petitioner swore that she knew that
what she was doing was wrong and illegal. Plea Tr. at 34.
In addition, the petitioner swore: “I accept full
responsibility for my actions which I deeply regret and I am
sorry for the harm that my actions caused to others, especially
to the participants of the funds.” Plea Tr. at 33.
The Government summarized the evidence against the
petitioner that would have been introduced at trial. The
evidence would have included “law enforcement and lay testimony,
bank records and other financial records, records of the
[petitioner’s] purchases, records of Local 147 funds including
statements mailed to participants, board of directors’ minutes,
forms filed with the Department of Labor, tax returns and
accounting records for the [petitioner] including [the
petitioner’s] personal tax returns.” Plea Tr. at 35. The
Government explained that the evidence would show that the

10

petitioner was a third-party administrator for three of Local
147’s funds; “that between 2002 and 2008 she took over $40
million from the [funds’] account and placed it into her
personal account”; that “[s]he spent a substantial portion of
that [money] on many personal expenses including horses,
jewelry, travel and private jets, luxury hotels, her home in
Irvington, credit card bills for additional personal expenses
and two Park Avenue apartments in Manhattan”; and that “[n]one
of these expenses were justified by her contracts, nor were
those expenses authorized by the trustees of the Local 147
funds.” Plea Tr. at 35-36. The Government also explained that
the evidence would show that, for “the tax years 2004 through
2007[,] [the petitioner] filed tax returns . . . that were
signed under penalty of perjury[,] [which] failed to declare her
income from the embezzlement[,] understating her income by
millions of dollars” even though the petitioner knew “that those
returns contained material misstatements.” Plea Tr. at 36. The
Government stated that the evidence would establish the elements
of each of the crimes beyond a reasonable doubt. Plea Tr. at 36.
The petitioner pleaded guilty to both Counts I and II. Plea
Tr. at 36-37. The petitioner also noted that she disputed the
$40 million loss amount proffered by the Government. Plea Tr. at
36-37. This Court noted that the disagreement over the loss
amount was reflected in the Plea Agreement, and that the exact
11

amount of money embezzled was not an element of any offense.
Plea Tr. at 37; see also Plea Agr. at 7. In response, the
petitioner twice affirmed that she was knowingly and voluntarily
pleading guilty to Count I even though she would be disputing
the ultimate loss amount for sentencing purposes. Plea Tr. at
37, 39. The petitioner swore that she was pleading guilty to
both Counts because she was in fact guilty, and that she was
pleading guilty voluntarily and of her own free will. Plea Tr.
at 37. Neither counsel for the petitioner nor the Government
could offer a reason for this Court not to accept the
petitioner’s guilty plea. Plea Tr. at 37-38.
At the conclusion of the proceeding, the Court found that
the petitioner understood the rights that she was giving up by
pleading guilty and the consequences of her plea, and that she
did so knowingly and voluntarily. The Court further found that
the petitioner acknowledged her guilt, that the plea was entered
knowingly and voluntarily, and that the plea was supported by an
independent basis in fact containing each of the essential
elements of the offenses. Plea Tr. at 38. The Court also entered
a consent order of forfeiture. Plea Tr. at 41; see also Cr. Dkt.
216. The Court set February 17, 2012 as the date for sentencing.
Plea Tr. at 40.

12

B.
Handwerker and Schachter began preparing for sentencing,
including by engaging experts to advocate a low loss amount to
mitigate the severity of the petitioner’s conduct. During this
period, the relationship between the petitioner and Schachter
quickly frayed and splintered. While preparing for sentencing,
the petitioner came to the belief that Schachter had given her
incorrect legal advice by advising her to plead guilty to
charges for which (she believed) the Government could not have
proven her guilt at a trial. See Petition at 263; Petition, Ex.
2H; Schachter Aff. ¶ 5; Schachter Aff., Ex. 3.
Around November 31, 2011, the petitioner informed Schachter
that she would like to withdraw her guilty plea. Schachter Aff.,
Ex. 3. Schachter vehemently disagreed with the petitioner’s
proposal because he did not believe that there was a
nonfrivolous basis for withdrawal. Schachter Aff. ¶ 29. In an email to the petitioner dated December 1, 2011, an associate of
Schachter at WFG told the petitioner that, “after hundreds of
hours sifting through documents and evidence and speaking to
you, as well as your statement to us that you were guilty and
your statement under oath in Court that you are guilty, we
believe that you are guilty.” Schachter Aff., Ex. 3. The e-mail
informed the petitioner that she should explore her options with
Handwerker, and recommended that she focus on sentencing, but
13

also explained that, if she insisted on filing a motion to
withdraw the guilty plea, Schachter would likely have to
withdraw as counsel. Schachter Aff., Ex. 3.
The differences between the petitioner and Schachter had
indeed become irreconcilable. At a conference on February 2,
2012, Schachter and the petitioner jointly asked this Court to
relieve Schachter as counsel. See Cr. Dkt. 244 at 2-3. On
February 6, 2012, Schachter was terminated as counsel for the
petitioner, and Alice L. Fontier (“Fontier”) of the Law Offices
of Joshua L. Dratel, P.C., was appointed as replacement counsel
pursuant to the CJA. Cr. Dkt. 236. Handwerker continued his
representation of the petitioner.
The petitioner continued to raise the issue of withdrawing
her guilty plea with Fontier. See Fontier Decl. ¶ 4. Like
Schachter, Fontier believed that withdrawal would be frivolous.
Fontier Decl. ¶ 4. In e-mail and letter correspondence, Fontier
strongly advised the petitioner against withdrawal, informing
the petitioner that the evidence in the case was sufficient for
a reasonable jury to convict her, and warning that an attempted
withdrawal could result in the original terms of the Plea
Agreement being imposed on the petitioner, while also exposing
the petitioner to far greater liability because the Government
would pursue a trial on the other 15 Counts. See Petition, Exs.
2H, 5; Fontier Decl. ¶ 4. Fontier told the petitioner that she
14

would not make the motion on the petitioner’s behalf; however,
Fontier informed the petitioner of the petitioner’s right to
represent herself. Petition, Ex. 5. The petitioner did not move
to withdraw the guilty plea.
The Government and the petitioner each submitted extensive
sentencing submissions, which included expert reports and
documentary evidence. The petitioner’s revised sentencing
memorandum relied on two expert reports, the “EisnerAmper
Report,” Cr. Dkt. 284, and the “Vasil Report,” Cr. Dkt. 286. See
Cr. Dkt. 280 at 31-38, 49. In essence, the EisnerAmper and Vasil
Reports argued that the loss amount attributable to the
petitioner’s conduct was far less even than the $7 million that
the petitioner had conceded in the Plea Agreement. The Reports
even suggested that the loss amount might be $0, meaning (if
true) that there might be no factual basis for the petitioner’s
guilty plea to Counts I and II. The revised sentencing
memorandum also tended to cast the petitioner as the victim in
the case while blaming others, such as the trustees of the funds
and the petitioner’s accountants. The revised sentencing
memorandum suggested that the petitioner was actually innocent
of the crimes to which she had pleaded guilty because the
petitioner was legally entitled to any money that she had
received from the funds. Far from underreporting her personal
income in her tax returns, the revised sentencing memorandum
15

argued that the petitioner had actually overreported her income,
meaning that she should be entitled to a tax refund. See Cr.
Dkt. 280 at 23-31, 38-40.
The Government disagreed with the methodologies and
underlying assumptions (and thus the conclusions) of the
EisnerAmper and Vasil Reports because both Reports were based on
faulty assumptions. Both Reports relied upon statements by the
petitioner to the exclusion of other, more credible evidence
from the documents and fact witnesses. See, e.g., Cr. Dkt. 277
at 7. For example, both Reports accepted the petitioner’s
statement that she did not control King Care because the
petitioner’s elderly parents were listed as the members of the
LLC in King Care’s operating agreement, see Cr. Dkt. 284 at 4;
Cr. Dkt. 286 at 6, even though there was substantial evidence
that the petitioner controlled King Care. The EisnerAmper Report
indicated that the loss amount with respect to Count I was far
less than that asserted by the Government, and might be even
less based on the petitioner’s statements that adequate
documentation justifying all of the allegedly embezzled monies
existed (documentation that neither the petitioner nor anyone
else could produce or locate). See Cr. Dkt. 277 at 2-3, 11 n.2;
Cr. Dkt. 280 at 32-39; Cr. Dkt. 284 at 1-2, 19, 24; Schachter
Aff. ¶ 11. However, in her revised sentencing memorandum, the

16

petitioner accepted a loss amount of slightly more than $7
million. Cr. Dkt. 280 at 38.
Likewise, with respect to Count II, the Vasil Report
concluded (among other implausible things) that expenses for
grooming the petitioner’s pets were properly considered business
expenses, rather than personal expenses, and that expenses
associated with the petitioner’s horses were properly considered
deductible business expenses. See, e.g., Cr. Dkt. 277 at 22-24;
Cr. Dkt. 277-10 ¶ 14; Cr. Dkt. 286 at 5-6. The Vasil Report also
accepted that the petitioner’s elderly parents owned the
petitioner’s horses, and that they were thus responsible for any
taxes on those horses, see Cr. Dkt. 286 at 2-3, even though this
Court, after a hearing, concluded that the petitioner in fact
owned the horses. See King, 2010 WL 4739791, at *4-5. With
respect to the owner of the horses, this Court rejected the very
argument that the Vasil Report accepted: that an entity
purportedly controlled by the petitioner’s parents owned the
horses, because there was no evidence to support the claim. See
id. at *4 & nn. 3-4.
To rebut the petitioner’s claims, the Government submitted
(among other things) the administrative agreement between King
Care and the funds, which was signed by the petitioner on behalf
of King Care, see Cr. Dkt. 277-1; affidavits from fund trustees,
investigative reports (including notes of investigative
17

interviews with King Care’s employees), and other materials that
showed that the petitioner controlled King Care and negated the
assertion that the petitioner was entitled to the additional
monies that she had received, see Cr. Dkts. 277-2, 277-4-8; King
Care invoices to show that the petitioner was overbilling Local
147’s funds for work-performed, see Cr. Dkt. 277-9; and a
declaration from an Internal Revenue Service Grand Jury Revenue
Agent who had reviewed various tax and accounting documents, and
concluded that the petitioner had failed to report at least $12
million in personal income during the relevant period, see Cr.
Dkt. 277-10 at 1-2.
After several adjournments, the parties appeared before
this Court for sentencing on June 21, 2012. This Court noted
that it had reviewed the extensive submissions by the petitioner
and the Government, as well as victim impact statements. Sent.
Tr. at 9-10. The parties agreed that, for purposes of
sentencing, this Court could consider $7 million and one cent as
the loss amount in the case, and thus defer the resolution of
the precise loss amount, because any Guideline Sentence based on
losses in excess of $7 million would already be in excess of the
maximum term of 96 months’ imprisonment that the Court could
impose under the violated statutes. Sent. Tr. at 16, 35, 57.
Counsel for the petitioner argued that the petitioner
should receive a non-custodial sentence based on her age and
18

poor health; and the health of her family members; and the
theory that others who had not been charged with any crimes,
such as the trustees of Local 147’s funds, were complicit in the
petitioner’s embezzlement. Sent. Tr. at 26-27, 29-30, 32. In
arguing for a sentence of 96 months’ imprisonment, the
Government again summarized the evidence against the petitioner,
including by cataloguing the petitioner’s use of employee
retirement funds for personal expenses. Sent. Tr. at 40-48. This
Court also heard statements from victims: union workers who had
had their retirement savings diminished or completely wiped out
as a result of the petitioner’s conduct. Sent. Tr. at 49-56.
The petitioner swore that she had reviewed and discussed
with her counsel the Pre-Sentence Report (the “PSR”), its
recommendation, and its addendum. Sent. Tr. at 33. The
petitioner raised several objections to the PSR that sought to
absolve or minimize the petitioner’s responsibility for the
crimes to which she had pleaded guilty. Sent. Tr. at 12-13, 1823. In particular, this Court overruled objections to the effect
that the petitioner had not attempted to disguise the
embezzlement; that the petitioner did not have control over King
Care; that King Care was legally entitled to any monies
received; and that the petitioner did not knowingly pay for
personal expenses using money from the retirement funds; but

19

sustained objections related to the precise loss amount, which
had yet to be established. Sent. Tr. at 61-63.
The Government also objected to affording the petitioner
any credit for acceptance of responsibility in light of her
sentencing submissions, an objection this Court overruled
because the petitioner had accepted responsibility at the time
of her guilty plea. Sent. Tr. at 35-36, 63-64. The Court noted
that whether she had since ceased accepting responsibility was
an issue that could be considered in determining an appropriate
sentence.
This Court found that there could be no question that the
Guideline Sentence was the statutory maximum of 96 months’
imprisonment because, under any formulation, the sentence under
the Guidelines based on the actual losses was in excess of 96
months’ imprisonment. Sent. Tr. at 56-58.
After a careful review of the sentencing submissions, this
Court concluded that the EisnerAmper and Vasil Reports were not
credible, and found that the petitioner’s arguments seeking to
minimize her role in the crimes to which she had pleaded guilty
were without merit. With respect to Count I, this Court noted
that the petitioner had argued in her sentencing submissions,
including through the EisnerAmper Report, that she was “guilty
of embezzlement only because she caused the benefit funds to pay
for expenses that were properly charged to other entities such
20

as the welfare fund and the union itself and, therefore,
charging those expenses to the benefit funds was improper.”
Sent. Tr. at 59. The petitioner “contend[ed] that she did, in
fact, do this work and was compensated appropriately for it
although . . . the money should not have come out of the benefit
funds[,] [which] was the nature of the embezzlement. She also
contend[ed] that some of the money that was paid and otherwise
unaccounted for was for past compensation that was deferred and
not previously paid.” Sent. Tr. at 59-60.
This Court found that the petitioner’s arguments were not
credible. This Court noted that there was no documentation for
any deferred compensation, or “extra” work that the petitioner
claimed she was authorized to do, or to explain the low loss
amount that the petitioner urged. Sent. Tr. at 60. The Court
found more credible the explanation that the petitioner “was
able to control the expenditures from the funds; that she caused
these expenditures to be paid to King Care[,] which she
controlled; and that these expenses were for unjustified
expenses; and that she used the accounts of King Care to pay for
extravagant personal expenses.” Sent. Tr. at 60.
With respect to Count II, this Court noted that the
petitioner contended that, “while she subscribed to false tax
returns, when additional deductions are counted she, in fact,
overpaid her taxes.” Sent. Tr. at 62. This Court found the
21

argument, and the Vasil Report on which the argument was based,
unpersuasive because, among other reasons, the petitioner and
the Vasil Report had failed to account for millions of dollars
in income that the petitioner had admitted to embezzling. Sent.
Tr. at 62.
With respect to both Counts, this Court noted that the
petitioner’s post-guilty plea arguments had contradicted her
sworn statements under oath during the plea allocution, which
this Court credited. Sent. Tr. at 60-62.
This Court determined the appropriate sentence for the
petitioner in light of the factors set forth in 18 U.S.C.
§ 3553(a). Sent. Tr. at 64-67. Among other findings, this Court
found that the petitioner had failed to accept responsibility or
express remorse for her actions, noting that she had instead
sought to blame numerous other parties, such as fund trustees,
other professionals, and her former husband. Sent. Tr. at 65. On
the other hand, this Court found that there were significant
mitigating factors in the case, most importantly related to the
petitioner’s health. Sent. Tr. at 66.
Accordingly, this Court varied downwardly and imposed a
sentence of a term of 72 months’ imprisonment --- 60 months on
Count I and 36 months on Count II, with twelve months on Count
II to run consecutively, and 24 months to run concurrently, to
the sentence on Count I --- to be followed by 36 months of
22

supervised release. Sent. Tr. at 67, 71. The Court also imposed
a $200 mandatory special assessment and entered an Order of
Forfeiture as to specific property, while allowing the amount of
the money judgment of forfeiture, and the amount of restitution,
to be determined at a later time. Sent. Tr. at 68, 71, 74.
The Court confirmed that the petitioner understood that she
had waived her right to appeal the sentence as part of the Plea
Agreement. Sent. Tr. at 75. The Court nonetheless advised the
petitioner that a notice of appeal must be filed within ten days
after the entry of the judgment of conviction. 3 Sent. Tr. at 75.
The judgment of conviction was signed on July 18, 2012, and
entered on the docket on July 25, 2012. See Cr. Dkt. 296. The
parties thereafter stipulated to a loss amount of $21 million.
Cr. Dkts. 305-08. A final forfeiture order was filed on March
3

Although the petitioner does not raise the issue, the deadline
for filing the notice of appeal was actually 14 days after the
entry of the judgment at the time of the petitioner’s sentence
in 2012. See Amendment to Fed. R. App. P. 4(b)(1)(A) (effective
December 1, 2009) (changing the deadline to file a notice of
appeal from 10 days to 14 days). The difference is harmless in
this case. See Notes of Advisory Committee on the 2009
Amendments, Note to Fed. R. App. P. 26(b)(1)(A) (noting that the
2009 amendments to the time computation rules were usually
irrelevant to most cases: “a 10-day period and a 14-day period
that started on the same day usually ended on the same day”
because, before the 2009 amendments, Saturdays and Sundays were
not counted for periods of less than 11 days). The petitioner
never attempted to file a notice of appeal. Moreover, as
addressed below, the petitioner waived any challenges to her
sentence, and there is no basis to conclude that any purported
ineffective assistance of counsel with respect to her attorneys’
advice on her ability to file an appeal prevented her from
timely filing an appeal within the applicable time period.
23

14, 2013, and an amended judgment, specifying $21 million in
restitution owed, was entered on the docket on March 28, 2013.
Cr. Dkts. 326, 328.
The petitioner did not file a direct appeal.
C.
On June 20, 2013, and June 22, 2013, respectively, this
Court received two letters from the petitioner’s daughter (the
“June 2013 Letters”) requesting that the Court vacate the
judgment of conviction against the petitioner, or, in the
alternative, appoint counsel to aid the petitioner in
“present[ing] the following information in a formal motion.” 4 See
Cr. Dkt. 330. The 31-page June 2013 Letters, along with the
attached exhibits, raised two purported claims on behalf of the
petitioner: (1) ineffective assistance of counsel based
primarily on Schachter’s advice to plead guilty, and the refusal
by Schachter and later Fontier to withdraw the guilty plea; and
(2) prosecutorial misconduct based primarily on the Government’s
prosecution of the petitioner for crimes that she did not
commit. Cr. Dkt. 330
By Order dated June 27, 2013, this Court found that the
June 2013 Letters did not constitute a basis for the petitioner
to seek habeas relief pursuant to 28 U.S.C. § 2255 because they

4

One copy of the June 22, 2013 letter included a bulky set of
exhibits. See Cr. Dkt. 329.
24

were jurisdictionally defective. See Cr. Dkt. 329. Specifically,
the petitioner’s daughter had “no right to represent [the
petitioner] or to seek relief on [the petitioner’s] behalf”
because a “petition to vacate a conviction must be brought by
the defendant or an attorney for the defendant.” Cr. Dkt. 329.
As this Court noted, a “next friend” could have brought “such an
application only if there [wa]s an adequate explanation,” but
the June 2013 Letters offered “no adequate explanation why the
[the petitioner] [could not] bring her own petition.” Cr. Dkt.
329.
On July 22, 2013, this Court received another letter from
the petitioner’s daughter (the “July 2013 Letter”) “with a
purported unsigned memo from [the petitioner] . . . seeking the
appointment of counsel for [the petitioner] and an extension of
time to file a section 2255 motion.” Cr. Dkt. 332. By Order
dated July 24, 2013, this Court denied the request for the
appointment of counsel without prejudice because there had been
“no showing at this point that the defendant ha[d] any
meritorious claim.” Cr. Dkt. 332.
In response to the request by the petitioner’s daughter,
this Court extended the time to file a petition pursuant to 28
U.S.C. § 2255 to September 20, 2013 “[t]o the extent that the
Court ha[d] jurisdiction” to do so. Cr. Dkt. 331. In fact, the
Court did not have jurisdiction to extend the petitioner’s time
25

to file a § 2255 petition. See Green v. United States, 260 F.3d
78, 82 (2d Cir. 2001) (“[A] district court may grant an
extension of time to file a motion pursuant to section 2255 only
if . . . the moving party requests the extension upon or after
filing an actual section 2255 motion . . . .”); Barton-Nachamie
v. United States, No. 04 CIV. 5764(SAS), 2005 WL 356811, at *1
n.1 (S.D.N.Y. Feb. 15, 2005). In any event, as noted below, the
Court never purported to extend the time for the petitioner to
file a petition (even if the Court had jurisdiction to do so)
beyond October 25, 2013, and the petitioner did not file her
Petition until September 2014, almost a year later.
On or around September 16, 2013, this Court received a
letter from the petitioner dated September 9, 2013 (the
“September 2013 Letter”), along with separately filed exhibits.
See Cr. Dkt. 336. The September 2013 Letter stated that the
petitioner’s guilty plea was not knowing and voluntary, that the
Government was responsible for prosecutorial misconduct, and
that the petitioner’s sentence was a cruel and unusual
punishment. Cr. Dkt. 336. The 21-page September 2013 Letter
stated: “I am asking the Court to take this letter and vacate
the judgment of conviction, and dismiss this case, as it is
clear that this case never should have been brought . . . .” Cr.
Dkt. 336 at 23.

26

The September 2013 Letter specified that it was not a
formal motion. The September 2013 Letter stated that the
petitioner was “very concerned about filing the motion without
an attorney,” and thus requested the appointment of “an attorney
[to] help [the petitioner] put together all of the relevant
information to file a formal petition,” as well as the opportunity
to present evidence. Cr. Dkt. 336 at 23-24.

By Order dated September 17, 2013, this Court denied the
petitioner’s request for the appointment of counsel because the
petitioner had not made a sufficient showing that an appointment
was warranted. Cr. Dkt. 336 at 1-2. This Court also noted that,
“It [was] plain that the present submission [was] not a motion
pursuant to 28 U.S.C. § 2255. Indeed, the [petitioner]
affirmatively state[d] that she [was] reluctant to file such a
motion. However, the Court would not vacate a conviction based
on a letter.” Cr. Dkt. 336 at 2. This Court nonetheless extended
the time to file a petition pursuant to 28 U.S.C. § 2255 to
October 25, 2013, “[t]o the extent that [it] [had] jurisdiction
to do so.” Cr. Dkt. 336 at 3.
The petitioner submitted the current Petition approximately
one year later, on or around September 24, 2014. 5 Fairly read,

5

“Under the prison mailbox rule, ‘a pro se prisoner’s habeas
petition is deemed filed at the moment he gives it to prison
officials.’” Khawar v. United States, No. 10-CR-01082, 2016 WL
6270732, at *3 (S.D.N.Y. Oct. 26, 2016) (citation omitted). The
27

the sprawling 290-page Petition alleges: (1) that the guilty
plea was not knowing, intelligent, or voluntary, in particular
because the petitioner had a “compromised” medical condition;
(2) ineffective assistance of counsel related to advice that led
the petitioner to plead guilty, and counsel’s later failure to
file a motion to withdraw the guilty plea; (3) prosecutorial
misconduct, including the Government’s alleged interference with
the petitioner’s choice of counsel, and failure to investigate
the case (which would have informed the Government that the
petitioner was actually innocent); (4) actual innocence; and (5)
that the petitioner’s sentence violated the Cruel and Unusual
Punishments Clause of the Eighth Amendment because she is
actually innocent.
II.
A.
The Petition must be dismissed because it is untimely. The
Anti–Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
imposes a one-year statute of limitations on an application for

petitioner asserts that she filed the Petition on or around
September 24, 2014. Petitioner’s Reply at 5. The docket reflects
that the Petition was filed on ECF on September 30, 2014, which
the Government argues was the date of filing. Gov. Br. at 13.
While the record is otherwise unclear as to when the petitioner
gave the prison officials the Petition, the Government offers no
basis to dispute the petitioner’s version of events, which the
Court credits. See Khawar, 2016 WL 6270732, at *3. The six-day
delay between giving the Petition to the prison officials and
the Petition’s entry on the docket is plausible.
28

a writ of habeas corpus under Section 2255. 28 U.S.C. § 2255(f).
The limitations period for such a claim begins to run from the
date on which the judgment of conviction becomes final. Because
the petitioner did not file a direct appeal, the judgment of
conviction in this case became final fourteen days after its
entry on July 25, 2012. 6 See Fed. R. App. P. 4(b)(1)(A). The
petitioner filed the Petition on or about September 24, 2014,
over one year after the applicable one-year limitations period
had ended. 7 See 28 U.S.C. § 2255(f). Therefore, the Petition is
time-barred under Section 2255.

6

The Government contends that the statute of limitations began
running 14 days after July 19, 2012, the day the physical
judgment was stamped “filed.” Cr. Dkt. 296. However, the docket
reflects that the judgment was “entered” on the docket on July
25, 2012. The statute of limitations thus began running 14 days
after the latter date. See Houston v. Greiner, 174 F.3d 287, 288
(2d Cir. 1999) (“‘Entry of judgment,’ . . . is the act of
recording in a docket maintained by the clerk of a court the
fact that a judgment has been rendered.”); Salas v. United
States, No. 14-CV-1915 (SLT), 2015 WL 260574, at *1 (E.D.N.Y.
Jan. 20, 2015) (“A judgment or order is ‘entered’ under [Federal
Rule of Appellate Procedure 4(b)(1)(A)(i)] when it is entered on
the docket.” (citing Fed. R. App. P. 4(b)(6)).
7
While neither the petitioner nor the Government raises this
issue, it is possible that the statute of limitations to file a
§ 2255 motion should be deemed to run from 14 days after the
date of the amended judgment, which included the restitution
amount and which was entered on the docket on March 28, 2013.
The Court of Appeals has not addressed this precise issue. In
Kaminski v. United States, 339 F.3d 84, 87 (2d Cir. 2003), the
Court of Appeals left open the possibility that an order of
restitution could be sufficiently custodial in nature to be
collaterally challengeable. And in Gonzalez v. United States,
792 F.3d 232 (2d Cir. 2015) (per curiam), the Court of Appeals
held that, when an appellate court affirms an order of
conviction but remands to the trial court for recalculation of
29

The petitioner argues that that the documents that she and
her daughter sent to the Court before September 24, 2014,
somehow tolled the statute of limitations, but the argument is
without merit. See Sanchez-Butriago v. United States, Nos.
00Civ8820 (JFK) & 89cr644-2 (JFK), 2003 WL 354977, at *3
(S.D.N.Y. Feb. 14, 2003) (“The limitation period is not tolled
whenever a petitioner files any sort of motion. Were it tolled
so easily, a petitioner could repeatedly file motions, ones with
little to no chance of success, and effectively eviscerate
AEDPA’s statute of limitations.”); Csanadi v. United States, No.
restitution, “the limitations period [for AEDPA purposes] begins
to run only when the revised restitution order becomes final.”
Id. at 233. In such circumstances, there are two different timebars for AEDPA purposes: one from when the original judgment is
entered, and one from when the amended judgment is entered. Id.
at 238. Otherwise, “situations could arise where defendants
could not collaterally attack an order of restitution that
severely restrained their liberty.” Id. It is possible to
interpret these cases as standing for the proposition that an
amended judgment that contains a substantially changed
restitution order starts the time clock anew for AEDPA purposes.
The petitioner does not raise any direct challenges against
the restitution order beyond the general challenges to her
sentence. Ultimately, however, a later deadline measured from 14
days after March 28, 2013 would not aid the petitioner. The
Petition would still be untimely by approximately six months.
Accordingly, it is unnecessary to decide whether the AEDPA
statute of limitations began to run anew 14 days after the date
the amended judgment with the final restitution order was
entered. See Castilo v. United States, No. 13 CIV. 4298
(PGG)(JLC), 2012 WL 9500631, at *3 n.10 (S.D.N.Y. Nov. 12, 2012)
(“[B]ecause [the] petition is time-barred under either scenario,
it is of no consequence whether his amended judgment altered the
date his conviction became final.”), report and recommendation
adopted, No. 13CIV4298 (PGG)(JLC), 2016 WL 1610609 (S.D.N.Y.
Apr. 20, 2016). Moreover, as explained below, the petitioner’s
claims are without merit regardless of the time-bar.
30

3:15CV1459 (JBA), 2016 WL 2588162, at *6-7 (D. Conn. May 4,
2016) (finding that motions seeking the appointment of counsel
and an extension of time do not toll the statute of
limitations). For the reasons discussed in this Court’s Orders,
see Cr. Dkts. 329, 332, 336, these submissions did not
constitute “bare-bones” petitions filed within the time
limitation that could later be fleshed out through amendment.
See Csanadi, 2016 WL 2588162, at *6-7.
The June 2013 Letters from the petitioner’s daughter were
properly rejected because they were jurisdictionally defective.
See Cr. Dkt. 329 (citing Ross ex rel. Dunham v. Lantz, 408 F.3d
121, 123 (2d Cir. 2005) (per curiam)). The Supreme Court has
established two requirements that must be met in order to
qualify for “next friend” standing: first, a next friend must
“provide an adequate explanation, such as inaccessibility,
mental incompetence or other disability-why the real party in
interest cannot appear on his own behalf to prosecute the
action,” and second, the next friend must be “truly dedicated to
the best interests of the person on whose behalf he seeks to
litigate.” Whitmore v. Arkansas, 495 U.S. 149, 163-64 (1990);
see also Ross ex rel. Dunham, 408 F.3d at 123; Smith v. Conway,
No. 07 CIV.7174 (JGK), 2008 WL 2531194, at *3 (S.D.N.Y. June 24,
2008).

31

The June 2013 Letters contained “no adequate explanation
why the defendant [could] not bring her own petition.” Cr. Dkt.
329; see also Smith, 2008 WL 2531194, at *4 (explanation that
filing a petition was “impossibly hard” for the convict was
inadequate); Clark v. Burge, No. 06CV658, 2007 WL 1199475, at *2
(W.D.N.Y. Apr. 19, 2007) (“Courts have held that a father lacked
standing in his son’s habeas proceeding where there was no
finding that the son was unable to prosecute that action.”
(citations omitted)). The fact that the petitioner submitted the
September 2013 Letter to this Court three months later --- as
well as the current Petition --- belies the claim that the
petitioner was incapable of prosecuting this action. Moreover,
in asking for the appointment of counsel, the petitioner’s
daughter explicitly disclaimed that the September 2013 Letter
was a “formal motion” because the petitioner’s daughter did “not
want to cause further harm to [the petitioner],” Cr. Dkt. 330 at
1, which reflected an apparent desire to avoid filing a petition
pursuant to 28 U.S.C. § 2255 without the assistance of an
attorney. In her own September 2013 Letter, the petitioner
expressed her own concern “about filing the motion without an
attorney.” Dkt. 336 at 23-24.
Indeed, the remaining 2013 submissions could not be
construed as habeas petitions. These submissions each requested
relief other than habeas relief (for example, an extension of
32

time to seek such relief, the appointment of counsel, and the
opportunity to present evidence). Moreover, the July 2013 Letter
was submitted by the petitioner’s daughter, who did not have
standing to seek relief on behalf of the petitioner. Likewise,
the September 2013 Letter submitted by the petitioner explicitly
disclaimed that it was seeking habeas relief.
Accordingly, none of the 2013 submissions can be considered
petitions under 28 U.S.C. § 2255, nor did they toll the statute
of limitations.
The petitioner also argues for equitable tolling. A court
may consider an otherwise time-barred petition under the
doctrine of equitable tolling, but only in “rare and exceptional
circumstance[s].” Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.
2000) (per curiam); see also Carbone v. Cunningham, No. 06 Civ.
5710 (JGK), 2007 WL 4205821, at *2 (S.D.N.Y. Nov. 28, 2007). To
qualify for equitable tolling, the petitioner must establish
“(1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way.” Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005). To show that
extraordinary circumstances “prevented” timely filing, the
petitioner must “demonstrate a causal relationship between the
extraordinary circumstances on which the claim for equitable
tolling rests and the lateness of his filing, a demonstration
that cannot be made if the petitioner, acting with reasonable
33

diligence, could have filed on time notwithstanding the
extraordinary circumstances.” Hizbullahankhamon v. Walker, 255
F.3d 65, 75 (2d Cir. 2001) (quoting Valverde v. Stinson, 224
F.3d 129, 134 (2d Cir. 2000)). The Supreme Court recently
reaffirmed that the extraordinary circumstances “prong of the
equitable tolling test is met only where the circumstances that
caused a litigant’s delay are both extraordinary and beyond its
control.” Menominee Indian Tribe of Wis. v. United States, 136
S. Ct. 750, 756 & n.2 (2016); see also Bolarinwa v. Williams,
593 F.3d 226, 231–32 (2d Cir. 2010) (mental illness constituted
extraordinary circumstances); Baldayaque v. United States, 338
F.3d 145, 152–53 (2d Cir. 2003) (“sufficiently egregious”
attorney conduct); Valverde, 224 F.3d at 133–34 (prison
officials intentionally preventing the petitioner from filing a
petition). Where extraordinary circumstances exist, the
petitioner still must “establish that he acted diligently . . .
throughout the time he seeks to have tolled” for the doctrine of
equitable tolling to apply. Rivas v. Fischer, 687 F.3d 514, 539
(2d Cir. 2012); see also Atkins v. Gonyea, No. 12 CIV. 9186
(JGK), 2014 WL 199513, at *2 (S.D.N.Y. Jan. 17, 2014).
The petitioner has failed to meet either prong of the
equitable tolling test. It is plain that the petitioner was
capable of filing a petition before the statutory time-bar in

34

the same way that she filed the current Petition, only
substantially late.
There are no extraordinary circumstances in this case. Any
possible mistake in the law that led the petitioner’s daughter
to submit the jurisdictionally defective June 2013 Letters is
not extraordinary; “a pro se petitioner’s ignorance of the law”
is “insufficient to create the extraordinary circumstances
required for equitable tolling of AEDPA.” Carbone, 2007 WL
4205821, at *3 (collecting cases). Filing a jurisdictionally
compliant petition was well-within the petitioner’s control.
Moreover, none of the 2013 submissions purported to be § 2255
motions.
The petitioner indicates that she sent her daughter
documents that the petitioner otherwise needed to draft a
petition herself, which lengthened the drafting process. This
was a self-created obstacle, and the decision to send the
documents to her daughter was not outside of the petitioner’s
control, nor did it bar the petitioner from submitting a barebones petition. See Smith, 2008 WL 2531194, at *4. Furthermore,
the purported unavailability of the documents did not prevent
the petitioner from sending the September 2013 Letter to the
Court, along with exhibits. See id.
The petitioner points to a number of medical conditions
that she claims prevented her from timely filing the Petition,
35

but the standard for extraordinary circumstances is whether
those conditions prevented the petitioner from filing the
Petition within the statutory time period. The petitioner does
nothing to establish that any conditions prevented her from
filing the Petition in a timely fashion. See Jones v. Walsh, No.
06 CIV. 225 (JGK), 2007 WL 4563443, at *4 (S.D.N.Y. Dec. 27,
2007) (collecting cases); Thomas v. Unger, No. 06CV6578 (NG),
2007 WL 539039, at *2-3 (E.D.N.Y. Feb. 15, 2007).
In addition, the petitioner has failed to demonstrate that
she acted with due diligence. On two occasions, this Court
extended the deadline for the petitioner to file a petition to
the extent it had jurisdiction. While the Court lacked
jurisdiction to do so, see Green, 260 F.3d at 82, those
deadlines nevertheless served as warnings to the petitioner to
file a petition no later than October 25, 2013 to at least meet
the due diligence prong of the equitable tolling test.
The petitioner ignored those deadlines (and, more
significantly, the statutory deadline). She finally filed the
Petition in September 2014, well after AEDPA’s deadline had run
under any test. The Petition did not simply cure minor
procedural defects in the prior submissions, but instead added
myriad new allegations. The petitioner’s conduct does not
evidence due diligence. See Mears v. Graham, No. 13-CV-8737

36

(AJN), 2014 WL 4060022, at *12 (S.D.N.Y. Aug. 14, 2014);
Csanadi, 2016 WL 2588162, at *6-7.
The petitioner cites Socha v. Boughton, 763 F.3d 674 (7th
Cir. 2014), but that case is not on point. In that case, the
petitioner faced “nearly insurmountable” barriers to filing his
petition by the statutory deadline because the petitioner’s
attorney on direct appeal ignored the petitioner’s repeated
requests to turn over the petitioner’s legal file. Id. at 686.
In this case, the petitioner faced nothing resembling
insurmountable barriers to filing her Petition. 8 See also
Carpenter v. Douma, 840 F.3d 867, 873 (7th Cir. 2016)
(distinguishing Socha).
Finally, the petitioner cannot rely on Section 2255(f)(4),
which provides that the one-year limitations period shall run
from “the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.” 28 U.S.C. § 2255(f)(4). Any challenge to the
effectiveness of the petitioner’s defense counsel could have
been raised at any time after the plea allocution. See Chowdhary
v. United States, No. 11 CR. 859 (JGK), 2015 WL 273728, at *5

8

The equitable tolling analysis would be no different if the
time-bar began running from 14 days after the date of the
amended judgment. The Petition would still be about six months
late, and there is no evidence of due diligence or extraordinary
circumstances during that six month period.
37

(S.D.N.Y. Jan. 22, 2015), reconsideration denied, No. 11 CR. 859
(JGK), 2015 WL 1065063 (S.D.N.Y. Mar. 10, 2015).
Accordingly, the Petition under 28 U.S.C. § 2255 is timebarred.
B.
The petitioner argues that she is actually innocent of the
crimes to which she pleaded guilty. In exceptional cases, the
actual innocence doctrine provides petitioners a gateway to
present an otherwise untimely habeas petition. See McQuiggin v.
Perkins, 133 S. Ct. 1924, 1932 (2013); see also Williams v.
Racette, No. 13 CV. 7779 (JGK), 2014 WL 5285472, at *4 (S.D.N.Y.
Oct. 15, 2014). “It is the combination of the two claims—that
the petitioner is likely innocent and that his conviction was
likely the result of nonharmless constitutional error-that
permits a habeas court to review the petition notwithstanding
procedural obstacles in order to avoid a miscarriage of
justice.” Rivas, 687 F.3d at 540–41; see also Anderson v. United
States, 612 F. App’x 45, 46 n.1 (2d Cir. 2015) (summary order)
(noting that the reasoning of McQuiggin and Rivas applies in the
28 U.S.C. § 2255 context).
“To establish actual innocence, [the] petitioner must
demonstrate that, in light of all the evidence, it is more
likely than not that no reasonable juror would have convicted
him.” Bousley v. United States, 523 U.S. 614, 623 (1998)
38

(citations and internal quotation marks omitted); see also
Rivas, 687 F.3d at 539–41 (noting that the evidence must
constitute “new reliable evidence . . . that was not presented
at trial” (citation and internal quotation marks omitted));
Freeman v. United States, Nos. 09 Civ. 4087, 02 Cr. 150, 2010 WL
4026067, at *2 (S.D.N.Y. Oct. 14, 2010). “‘[A]ctual innocence’
means factual innocence, not mere legal insufficiency.” Bousley,
523 U.S. at 623; see, e.g., Rosario v. United States, 164 F.3d
729, 733 (2d Cir. 1998). This is a “demanding” standard “and
permits review only in the extraordinary case.” House v. Bell,
547 U.S. 518, 538 (2006) (citation and internal quotation marks
omitted); see also Garafola v. United States, 909 F. Supp. 2d
313, 326 (S.D.N.Y. 2012).
This is not an exceptional case, and the petitioner’s claim
that she is actually innocent is neither credible nor
compelling. See Qadar v. United States, No. 13-CV-2967 (ARR),
2014 WL 3921360, at *7 (E.D.N.Y. Aug. 11, 2014). A review of the
record makes clear that the claim is without merit.
The petitioner’s detailed sworn testimony in support of her
guilty plea to Counts I and II is sufficient to reject the
petitioner’s claim of actual innocence. See Puglisi v. United
States, 586 F.3d 209, 214 (2d Cir. 2009) (observing that “a
district court need not assume the credibility of factual
assertions . . . where the assertions are contradicted by the
39

record in the underlying proceeding” and collecting cases).
Beyond the guilty plea, the extensive evidence submitted in
connection with sentencing negates the petitioner’s claim of
actual innocence. There is more than a reasonable likelihood
that a jury would have found the petitioner guilty beyond a
reasonable doubt of both Count I and Count II had the case
proceeded to a trial.
The petitioner points to the EisnerAmper and Vasil Reports.
She argues that she did not control King Care, that she was owed
deferred compensation for her work with Local 147’s funds, that
any expenses were justified, that the loss amount was $0, and
that other individuals were complicit in any embezzlement. This
Court already rejected these arguments, as well as the
credibility of the EisnerAmper and Vasil Reports, at sentencing.
See Castilo v. United States, No. 13CIV4298 (PGG), 2016 WL
1610609, at *3 (S.D.N.Y. Apr. 20, 2016) (“[The petitioner] has
not offered any new evidence that casts doubt on the factual
allocution he gave at the time of his guilty plea.”).
The petitioner insists that she could have established that
she was not a fiduciary of Local 147’s funds, which she argues
would have negated an element of Count I. The Court already
rejected that argument as meritless in denying a motion to
dismiss Count I filed by her attorneys in the underlying
proceedings. See King, 2011 WL 1630676, at *2. Nothing that the
40

petitioner has submitted changes the conclusion that there was a
sufficient factual predicate to support her conviction in this
case. Indeed, in correspondence with her attorneys prior to the
guilty plea, the petitioner admitted her guilt, although she
challenged the magnitude of the loss amount attributable to her
conduct, just as she did during the plea allocution. See
Schachter Aff., Ex. 2 (October 19, 2011 e-mail from the
petitioner to Schachter stating: “I need to be able to accept
responsibility for what I did not an open ended millions of
dollars”). Despite the Petition’s rhetoric, the petitioner’s
choices not to move to withdraw her guilty plea even after being
explicitly informed of her right to represent herself, and to
agree to a $21 million loss amount instead of challenging the
loss amount at a Fatico hearing, further support the veracity of
her guilty plea. See Gilliam v. Superintendent, No. 9:13-CV0788, 2015 WL 114344, at *11 (N.D.N.Y. Jan. 8, 2015).
The petitioner raises several self-serving arguments in an
effort to cast doubt on the probative value of her sworn
admissions of guilt. Regardless of any challenge to the guilty
plea, there was plainly sufficient evidence beyond the guilty
plea to convict the petitioner. Moreover, these arguments
implicate claims that attack the process that led to the guilty
plea, which are distinct from the claim for actual innocence.
These claims are untimely, and moreover, procedurally barred
41

because they were not raised in a direct appeal or through a
motion to withdraw the guilty plea. See Morales v. United
States, No. 04 CR 290 (SAS), 2008 WL 4761705, at *5 (S.D.N.Y.
Oct. 29, 2008) (citing United States v. Munoz, 143 F.3d 632, 637
(2d Cir. 1998)).
Nevertheless, the petitioner has raised these claims in an
effort to show that she was actually innocent, and they will be
addressed here. The claims are meritless. The Court of Appeals
has advised that “sworn testimony given during a plea colloquy
‘carries such a strong presumption of accuracy that a district
court does not, absent a substantial reason to find otherwise,
abuse its discretion in discrediting later self-serving and
contradictory testimony as to whether a plea was knowingly and
intelligently made.’” United States v. Rivernider, 828 F.3d 91,
105 (2d Cir. 2016) (quoting United States v. Juncal, 245 F.3d
166, 171 (2d Cir. 2001)). The petitioner has not offered any
substantial reason to doubt her sworn testimony at her guilty
plea.
The petitioner argues that her medical condition prevented
her from giving an intelligent and knowing guilty plea. This
Court asked multiple questions of the petitioner at different
points in the plea allocution --- including regarding her mental
status, her medical condition, and any medical treatments --- to
ascertain that she was competent to plead guilty. The
42

petitioner, and her counsel, repeatedly assured this Court that
she was competent to do so. 9 “Nothing more was required, and the
questions and answers, as well as the overall record of the plea
colloquy, amply support the . . . conclusion that the plea was
entered knowingly and voluntarily.” United States v. Pattee, 820
F.3d 496, 508 (2d Cir. 2016) (rejecting argument that a recent
suicide attempt undercut a guilty plea). This Court’s
observations of the petitioner, and the content of her sworn
testimony --- including her clarification that she was not
stipulating to a loss amount of $40 million --- establish that
no medical condition prevented the petitioner from giving a
knowing and intelligent guilty plea. See Morales, 2008 WL
4761705, at *5. 10

9

Schachter swears: “Ms. King claims that I permitted her to
plead guilty despite her being physically ill and incompetent to
do so. In my interactions with Ms. King, I had no reason to
believe that she was not competent to accept the plea agreement
and plead guilty. Nor did Ms. King ever express such a sentiment
to me. Ms. King testified herself under oath at the plea hearing
that there was nothing, including her health, preventing her
from being competent to enter a guilty plea. Additionally, I was
in contact with Ms. King’s physician, Dr. Tindel, in connection
with efforts to postpone Ms. King’s court appearances in light
of her health. Dr. Tindel provided his assessment of Ms. King’s
medical condition and never indicated that he believed her
medical condition or medication was interfering with her
competency.” Schachter Aff. ¶ 28
10
The petitioner claims that she had in fact taken pain
medication the day before the plea allocution, and that
therefore her sworn testimony at the plea allocution (which took
place in the afternoon) that she had not taken any pain
medication in the last 24 hours was not accurate. But there is
no evidence that any pain medication taken the day before the
43

The petitioner also argues that her attorneys coerced her
into agreeing to plead guilty. The petitioner’s claim is refuted
by her repeated statements at the plea allocution that her plea
was voluntary. See, e.g., Garcia-Giraldo v. United States, 691
F. Supp. 2d 500, 512 (S.D.N.Y. 2010); Kellam v. Hunt, No. 06 CIV
4395 (JGK), 2007 WL 2005544, at *4 n.2 (S.D.N.Y. July 10, 2007).
This Court informed the petitioner several times that she was
free to end the plea allocution at any time. The petitioner
voluntarily chose to plead guilty, and expressed her
satisfaction with her attorneys under oath. A review of the
correspondence between the petitioner and her counsel submitted
with the Petition, along with the Attorney Affidavits, reveal no
coercion. See Schachter Aff., ¶¶ 23-25. It is plain that, “The
ultimate choices were appropriately the petitioner’s, but they
were freely and voluntarily made after thorough and considered
advice by [her] trial counsel.” Garcia-Giraldo, 691 F. Supp. 2d
at 512.
The petitioner further contends that her guilty plea was
the product of ineffective assistance of counsel. To establish a
claim of ineffective assistance of counsel, the petitioner must
show both that: (1) her counsel’s performance was deficient in

plea allocution interfered with the knowing and voluntary nature
of the petitioner’s plea the following afternoon. The petitioner
is a highly educated woman who affirmed that her mind was clear
at the time of the plea. Plea Tr. at 12.
44

that it was objectively unreasonable under professional
standards prevailing at the time, and (2) that her counsel's
deficient performance was prejudicial to her case. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); Bunkley v.
Meachum, 68 F.3d 1518, 1521 (2d Cir. 1995); see also Diaz v.
United States, No. 11-CR-474 (JGK), 2016 WL 205432, at *5
(S.D.N.Y. Jan. 15, 2016).
The petitioner cannot meet the first prong of this test
merely by showing that her counsel employed poor strategy or
made a wrong decision. Instead, the petitioner must show that
“counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed . . . by the Sixth Amendment.”
Strickland, 466 U.S. at 687. In fact, there is a “strong
presumption” that defense counsel’s performance fell within the
wide range of reasonable professional assistance, and “the
defendant bears the burden of proving that counsel’s
representation was unreasonable under prevailing professional
norms and that the challenged action was not sound strategy.”
Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (citing
Strickland, 466 U.S. at 688–89). To meet the second prong of the
Strickland test, the 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
45

undermine confidence in the outcome.” Strickland, 466 U.S. at
694. Where a petitioner challenges a guilty plea on the basis of
alleged ineffective assistance of counsel, “the [petitioner]
must show that ‘there is a reasonable probability that, but for
counsel's errors, [the petitioner] would not have pleaded guilty
and would have insisted on going to trial.’” United States v.
Hernandez, 242 F.3d 110, 112 (2d Cir. 2001) (per curiam)
(quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)); see also
Ottenwarde v. United States, No. 12-cv-6537 (JGK), 2013 WL
1242632, at *6-7 (S.D.N.Y. Mar. 28, 2013); Diaz, 2016 WL 205432,
at *5.
The petitioner argues that the evidence could not support a
conviction, and that her lawyers gave her bad advice by advising
her to plead guilty. The argument is without merit. There was an
ample factual predicate for the petitioner’s guilty plea. See
Diaz, 2016 WL 205432, at *5.
The petitioner contends that, at sentencing, this Court
discredited Schachter’s legal advice that there was a sufficient
factual predicate for her guilty plea, but this Court did
nothing of the sort. The petitioner argues that she received
erroneous legal advice from Schachter to the effect that if she
did work for Local 147, but charged the funds for that work,
that would still be embezzlement from the funds. She claims that
the Court rejected that theory at sentencing. The Court in fact
46

did not reject such a theory, but rather found that what the
petitioner did was much worse --- she charged the funds for work
that was not done, and used the funds for extravagant personal
expenses. That was in fact what the petitioner admitted under
oath to doing.
A review of the record establishes that there was no
ineffective assistance of counsel that led the petitioner to
plead guilty. See Oklu v. United States, No. 12CR177 (WHP), 2016
WL 1383530, at *3 (S.D.N.Y. Apr. 7, 2016). The guilty plea was a
calculated choice by the petitioner: the petitioner was facing
the prospect of a trial on a 17-count indictment that exposed
the petitioner to a potential term of imprisonment that, given
her age, would have effectively functioned as a life sentence.
The advice to plead guilty represented a strategic choice to
reduce the petitioner’s potential exposure in light of the
copious amount of evidence against her to a maximum of 96
months’ imprisonment, which was in fact less than the Sentencing
Guidelines would have provided had it not been for the statutory
maximum limiting the sentence. See Petition, Exs. 2A, 2B, 2D;
Schachter Aff. ¶¶ 12-18; Schachter Aff., Ex. 2. There is no
showing that the advice was objectively unreasonable or that the
petitioner would have been willing to face the possible
consequences of a guilty verdict on 17 counts at a trial. See
Morales, 2008 WL 4761705, at *5.
47

Finally, the petitioner argues that the “poor” advice to
plead guilty resulted from the failure by her attorneys to
investigate her case. The duty to investigate “requires counsel
to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.”
Greiner v. Wells, 417 F.3d 305, 320-21 (2d Cir. 2005) (citation
and internal quotation marks omitted). “It does not, however,
compel defense counsel to investigate comprehensively every lead
or possible defense.” Id. at 321.
There is no basis for the petitioner’s claim. The
petitioner faults her counsel for not engaging an ERISA expert,
and for purportedly failing to locate certain documents or
interview several witnesses that the petitioner claims would
have exonerated her. The allegations are conclusory and,
moreover, contradicted by the record. See, e.g., Schachter Aff.
¶ 22. Schachter swears that he and six litigation associates at
WFG “devoted over 2,200 hours of work to [the petitioner’s] case
in a span of less than one year” during which time they reviewed
“thousands of documents” and thoroughly researched the relevant
legal issues in the petitioner’s case. Schachter Aff. ¶¶ 4, 9,
20. WFG engaged outside forensic accountants and investigators,
and incurred approximately $30,000 in costs in prosecuting the
case. Schachter Aff. ¶¶ 9-10, 20-21; see also Handwerker Decl.
¶¶ 3, 5. These averments are consistent with the conduct of the
48

petitioner’s attorneys in the underlying proceedings, where they
ultimately negotiated a favorable guilty plea for the petitioner
given the circumstances. See Oklu, 2016 WL 1383530, at *2 (the
“Petition fails to overcome the ‘strong presumption’ that
counsel exercised reasonable judgment in his investigation of
[the petitioner’s] case”).
The petitioner’s team of attorneys cannot be faulted for
failing to locate documentation that did not exist. Schachter
swears that:
[WFG’s] investigation and the work of the forensic
accountants was hampered by severely deficient and/or
non-existent King Care records. The King Care records
failed to show what services were provided by King
Care to the Benefits Funds, how those services were
valued, and how those services related to the payments
received
by
King
Care.
[The
petitioner]
was
responsible
for
maintaining
those
records
and
repeatedly insisted that they existed and that they
would explain and justify the payments from the
Benefits Funds. Despite multiple requests by us,
however,
[the
petitioner]
failed
to
identify
documentation supporting the full amounts paid from
the Benefit Funds to King Care. WFG’s own independent
review was also unable to identify any King Care
records that substantiated [the petitioner’s] claims
or that would provide her with a defense.
Schachter Aff. ¶ 11. Likewise, the decision to not engage
an ERISA expert was a considered strategic choice. See Petition,
Ex. 2B (E-mail from Schachter to the petitioner dated October 5,
2011 stating: “Imagine what an expert would say about using fund
assets for union expenses or taking fees with no invoices and no
records [that] show exactly what is owed. It seems to me that
49

any expert in the duties of a fund administrator would convict
you through his testimony.”). It is apparent that the
petitioner’s attorneys worked zealously on her behalf.
Indeed, when asked at the plea allocution whether she was
satisfied with Schachter and his representation, the petitioner
responded: “Yes, very much so.” Plea Tr. at 14. And, in addition
to Schachter, the petitioner was represented throughout the
proceedings by Handwerker, whom the petitioner never sought to
discharge.
Therefore, the Petition is time-barred, and there is no
exception or tolling provision that applies in this case. The
petitioner has no plausible argument of actual innocence to
provide a basis to consider her Petition.
III.
While it is unnecessary to discuss any of the remaining
claims in the Petition because they are time-barred, the claims
will be addressed for the purposes of completeness.
A.
The petitioner’s arguments challenging her guilty plea
based on her medical condition, coercion, counsel’s advice to
plead guilty, and the purported failure to investigate have
already been addressed. None of these arguments have merit. The
record discloses that the plea was knowing and voluntary.

50

The petitioner also claims that her attorneys failed to
advise her properly about her appellate rights (she does not
claim that she instructed Fontier or Handwerker to file an
appeal on her behalf). See Almonte v. United States, No. 06 CR.
460 (DC), 2008 WL 2755818, at *3 n.2 (S.D.N.Y. July 14, 2008).
The two-part Strickland test applies to ineffective assistance
claims that allegedly forfeited a defendant the chance to
appeal. See Sarroca v. United States, 250 F.3d 785, 787 (2d Cir.
2001). With respect to the reasonableness of counsel’s
representation, a petitioner can either show that there are nonfrivolous grounds for appeal that would give “a rational
defendant” reasons to want to appeal, or that the petitioner
“reasonably demonstrated to counsel” her desire to appeal. Id.
(quoting Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000)). “[T]o
show prejudice, a [petitioner] must demonstrate that there is a
reasonable probability that, but for counsel’s deficient failure
to consult with [her] about an appeal, [s]he would have timely
appealed.” Id. (quoting Flores-Ortega, 528 U.S. at 484). “The
‘would have appealed’ standard considers all of the
circumstances, including whether there were nonfrivolous issues
to appeal.” Id. (quoting Flores-Ortega, 528 U.S. at 485).
Factors to consider in assessing counsel’s representation
include “whether the conviction follows a trial or a guilty
plea,” “whether the defendant received the sentence bargained
51

for as part of the plea,” and “whether the plea expressly
reserved or waived some or all appeal rights.” Id. at 788
(quoting Flores-Ortega, 528 U.S. at 480).
The Plea Agreement contained a provision pursuant to which
the petitioner waived any right to appeal or to bring a
collateral challenge of any sentence of or below the Stipulated
Guidelines Range of 96 months’ imprisonment. Plea Agr. at 9. The
petitioner argues that Schachter did not explain, or incorrectly
advised her about, the provisions of the Plea Agreement,
including the waiver provision. However, Schachter swears that
he reviewed the Plea Agreement with the petitioner on at least
eight separate occasions. Schachter Aff. ¶¶ 8, 25. And the
petitioner’s own e-mail correspondence indicates that she was
aware that she could not appeal any sentence of or below 96
months’ imprisonment. See Petition, Ex. 2M. The Court carefully
reviewed that appeal waiver with the petitioner during the plea
allocution, and the petitioner swore that she understood the
waiver. Plea Tr. at 29-30. She also swore that she had read the
Plea Agreement, discussed it with her lawyers, and that she
understood it. Plea Tr. at 29. When the Court sentenced the
petitioner principally to 72 months’ imprisonment, the Court
reiterated that the petitioner had waived any right to appeal
the sentence, but urged the petitioner to discuss the issue with
her lawyers. Sent. Tr. at 75. Fontier swears that she discussed
52

the appeal waiver with the petitioner and her family on multiple
occasions. Fontier Decl. ¶ 6.
While it is true, as the petitioner argues, that the appeal
waiver could not foreclose an appeal regarding the knowing and
voluntary nature of the plea, Petition at 193, even though
Fontier states that the petitioner had “agreed to waive her
right to appeal,” Fontier Decl. ¶ 6, there are no plausible
allegations that the petitioner would have wanted to file an
appeal that was not directed against her sentence (the right to
which she had waived), but rather that was directed against the
guilty plea. See Song Ping Tian v. United States, No. 03 CR. 567
(DC), 2005 WL 1713056, at *7 (S.D.N.Y. July 22, 2005).
Moreover, the petitioner cannot show that her attorneys
should have thought that the petitioner wanted to file a notice
of appeal challenging her guilty plea. See Scott v. United
States, No. 07-CV-4039 (CBA), 2011 WL 115087, at *5 (E.D.N.Y.
Jan. 13, 2011). No rational defendant in the petitioner’s
situation would have wanted to file such an appeal. As the
petitioner’s attorneys correctly explained to her in advising
against moving to withdraw the guilty plea, there were no
nonfrivolous bases to contest the guilty plea. See Pena-Rosario
v. United States, No. 07 CIV. 1830 (DLC), 2008 WL 754289, at *2
(S.D.N.Y. Mar. 20, 2008) (finding that the petitioner’s
inability to identify “non-frivolous issues that would have
53

warranted an appeal . . . [was] unsurprising because his
conviction rested on a plea of guilty and he was sentenced at
the bottom of the guidelines range to which he had stipulated in
his plea agreement” (citation omitted)). An appeal could have
only successfully challenged the agreement to plead guilty, and
if successful, resulted in the vacatur of a favorable, below
Guidelines sentence, while exposing the petitioner to the far
greater liability that she avoided by pleading guilty.
Similarly, the petitioner has failed to demonstrate that
she expressed a desire to appeal to her attorneys within the
time period to file an appeal from her sentence. The conviction
followed a guilty plea, the petitioner received a below
Guidelines sentence, and she expressly waived her rights to
appeal the sentence of imprisonment, which was below the
Stipulated Guidelines Range. See Sarroca, 250 F.3d at 788;
United States v. Neal, 27 F. Supp. 3d 302, 309 (N.D.N.Y. 2014).
Based on her failure to file a motion to withdraw her guilty
plea, her attorneys could reasonably conclude that she would not
want to file an appeal that could only result in the same
relief: ripping up the Plea Agreement, and thus exposing the
petitioner to far greater liability. See Plea Agr. at 10
(tolling the statute of limitations in the event that the
petitioner’s conviction was vacated). The petitioner’s decision
to negotiate a loss amount for purposes of forfeiture and
54

restitution with the Government after sentencing, rather than
dispute the issue at a Factico hearing, further indicates that
the petitioner “wanted to end the judicial proceedings, not to
file an appeal.” Scott, 2011 WL 115087, at *5.
For similar reasons, the petitioner cannot demonstrate
prejudice because there is no reasonable probability that the
petitioner would have filed an appeal had counsel advised her of
the limited bases to file an appeal following the guilty plea.
See, e.g., Sarroca, 250 F.3d at 789; Song Ping Tian, 2005 WL
1713056, at *7; Scott, 2011 WL 115087, at *6; Neal, 27 F. Supp.
3d at 309. In particular, the failure to move to withdraw the
guilty plea before sentencing leads to the conclusion that the
petitioner would not have chosen to seek functionally the same
relief from the Court of Appeals after sentencing (where the
petitioner had received a below Guidelines sentence).
B.
The petitioner argues that her attorneys were ineffective
for refusing to file a motion to withdraw the guilty plea on her
behalf. “[T]he proper question, where a defendant’s lawyer
declines to move on the defendant’s behalf to withdraw a guilty
plea, is whether the lawyer’s judgment fell outside the bounds
of professional competence, so as to constitute ineffective
assistance of counsel.” United States v. Rivernider, 828 F.3d
91, 108 (2d Cir. 2016). The attorneys’ refusal to make the
55

motion on her behalf was well-within the bounds of professional
competence because any such motion would have been frivolous. As
explained above, there were no nonfrivolous grounds for
withdrawing the guilty plea. The sworn plea allocution showed
that the plea was knowing and voluntary, and the petitioner has
presented no evidence to suggest otherwise. The petitioner’s
attorneys correctly recognized that the withdrawal could have
undone a favorable plea agreement, and exposed the petitioner to
far greater liability. Fontier Decl. ¶ 4.
The petitioner’s attorneys fulfilled their duties to the
petitioner by advising her that she could represent herself if
she so chose. The petitioner’s ultimate refusal to represent
herself demonstrates that she suffered no prejudice from her
attorneys’ refusal to make a frivolous motion to withdraw the
plea.
C.
The claim that the petitioner’s sentence violated the
Eighth Amendment’s Cruel and Unusual Punishments Clause, as well
as many of the claims for prosecutorial misconduct (such as the
claim challenging the decision to prosecute the petitioner in
the first place), are predicated on the claim for actual
innocence. Because the claim for actual innocence is without
merit, it follows that these claims are also without merit.

56

It should be noted that the petitioner’s challenge to her
sentence is barred by the Plea Agreement, in which she agreed
not to challenge a sentence of or below 96 months’ imprisonment.
It is also inconsistent with the petitioner’s comment elsewhere
in her papers that she is “not challenging the sentence imposed
by the Court at the sentencing hearing in this petition.”
Petition at 284. Indeed, any such challenge would be frivolous.
The petitioner received a sentence that was more than two years
below the statutory maximum, which also became the Stipulated
Guidelines Range. See Karimu v. United States, No. 10 CR. 422
(PKC), 2013 WL 4017168, at *4 (S.D.N.Y. Aug. 6, 2013) (“The
waiver of the right to collaterally attack a sentence dooms [the
petitioner’s] claims that . . . his sentence amounts to cruel
and unusual punishment.”).
The remaining claims of prosecutorial misconduct are
unfounded. The Government had a legal basis to restrain the
petitioner’s assets subject to forfeiture before her conviction.
See King, WL 2010 4739791, at *1-2. The restraint of the
petitioner’s assets did not deprive the petitioner of her choice
of counsel in violation of the Sixth Amendment. See Kaley v.
United States, 134 S. Ct. 1090, 1103, 1105 (2014). Moreover, the
restraint on the petitioner’s assets did not affect the
petitioner’s choice of counsel: her retained counsel,

57

Handwerker, continued to represent her pursuant to the CJA after
she lost the ability to pay his fees.
There is no basis to conclude that the Government
fabricated inculpatory evidence against the petitioner,
concealed exculpatory evidence from the petitioner, or otherwise
acted improperly in the underlying proceedings. The rest of the
petitioner’s allegations are conclusory, unsubstantiated, and
lack merit.
D.
In an unsigned letter dated February 27, 2017 (purportedly
written by the petitioner but sent to the Court by the
petitioner’s daughter), the petitioner purportedly challenges
the sentence calculation by this Court. See Civ. Dkt. 41. For
the reasons already discussed, the petitioner’s daughter cannot
seek relief on the petitioner’s behalf. Nonetheless, the
argument is obliquely referenced in the Petition, see Petition
at 56, and, though not a distinct claim in the Petition, will be
addressed here.
The argument is of course barred by the Plea Agreement in
which the petitioner agreed not to attack collaterally her
sentence. See Garcia–Santos v. United States, 273 F.3d 506, 508
(2d Cir. 2001) (per curiam). As explained above, there is no
plausible argument that the petitioner did not knowingly and

58

voluntarily enter into the Plea Agreement. In any event, the
petitioner’s argument is without merit.
The petitioner alleges that this Court, in fashioning the
petitioner’s sentence, failed to consider the correct amount of
time that the petitioner had been on “strict restrictive home
confinement” while she was on bail, and before she began serving
her term of imprisonment. The petitioner claims that the Court
credited the petitioner with only 16 months of home confinement,
see Sent. Tr. at 67, when it should have credited her with 32
months of home confinement.
The petitioner was arrested on November 30, 2009, and was
released on the same date subject to meeting certain bail
conditions. On December 14, 2009, after failing to meet those
conditions, the petitioner appeared before Magistrate Judge
Francis at a bond revocation hearing, and the Magistrate Judge
imposed home detention (among other conditions) on the
petitioner as a condition of her bail. On March 15, 2011 --after approximately sixteen months of home confinement --- this
Court modified the conditions of the petitioner’s bail,
including by relieving the petitioner “of any requirement of
home confinement.” Cr. Dkt. 133. While the petitioner now seeks
credit for the full 32 months she was on bail, this Court
correctly calculated the period of home confinement in
determining an appropriate sentence.
59

In addition, the petitioner’s claim is based on a
misapprehension of the law. The period of home confinement was
only a factor for the Court to consider in determining her
sentence. The Court was not required to afford the petitioner
any credit for the time that she had spent in home confinement:
“The time spent by [the petitioner] on home confinement with
electronic monitoring as part of [her] bail conditions does not
qualify as ‘official detention,’ and [s]he is not entitled to
credit toward [her] federal sentence for that time.” United
States v. Pjetri, No. S4 08 CR. 65-02 (CM), 2014 WL 6851280, at
*1 (S.D.N.Y. Dec. 2, 2014) (citing Reno v. Koray, 515 U.S. 50
(1995)).
IV.
The petitioner requests an evidentiary hearing to review
her claims. However, because the motion and the files and
records of the case conclusively show that the petitioner is
entitled to no relief, no hearing is required. See Ochoa-Suarez
v. United States, Nos. 07 Civ. 9275, 03 Cr. 747, 2008 WL
2220637, at *4 (S.D.N.Y. May 27, 2008) (citing 28 U.S.C. §
2255(b)); see also Chang v. United States, 250 F.3d 79, 86 (2d
Cir. 2001) (a district court has discretion to rely on
documentary evidence in deciding habeas petition, and need not
conduct a “full-blown testimonial hearing” when in-court
testimony “would not offer any reasonable chance of altering
60

[the court’s] view of the facts”); Perez v. United States, No.
07 CIV. 11179 (JGK), 2008 WL 2775856, at *5 (S.D.N.Y. July 1,
2008). No hearing or additional discovery can change the fact
that the petitioner’s claims are time-barred. Moreover, the
record is sufficient to conclude that all of the Petition’s
claims are without merit.
CONCLUSION
The Court has considered all of the arguments raised by the
parties. To the extent not specifically addressed, the arguments
are either moot or without merit. For the foregoing reasons, the
petitioner’s motion pursuant to 28 U.S.C. § 2255 is denied. The
Clerk is directed to enter judgment dismissing the Petition and
closing this case. The Court declines to issue a certificate of
appealability because the petitioner has failed to make a
substantial showing of the denial of a constitutional right
pursuant to 28 U.S.C. § 2253(c)(2).
SO ORDERED.
Dated:

New York, New York
April 25, 2017

_____________/s/______________
John G. Koeltl
United States District Judge

61