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Syed v. United States

United States District Court, M.D. Tennessee, Nashville Division

May 22, 2018

ZEESHAN SYED, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM

          ALETA A. TRAUGER JUDGE

         The movant, Zeeshan Syed, a federal prisoner presently housed at FCI Oakdale II in Oakdale, Louisiana, brings this action pursuant to 28 U.S.C. § 2255 to set aside, vacate and correct an allegedly illegal sentence imposed by another judge of this court on December 4, 2015. (Crim. Case. No. 3:11-cr-0083(1), ECF Nos. 1062, 1137).[1] Judgment was entered on December 7, 2015. (ECF No. 1064.) On July 10, 2017, the movant filed a pro se Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Motion”) raising claims for ineffective assistance of counsel. (ECF No. 1.) The respondent filed an opposition to the movant's Motion (ECF No. 9), and the movant filed a reply (ECF No. 17.). For the reasons set forth herein, the court finds that an evidentiary hearing is not required and that the record establishes that the movant is not entitled to relief.

         I. BACKGROUND

         On April 20, 2011, the movant was indicted and charged with one count of violation of 21 U.S.C. § 846, conspiracy to distribute 5 kilograms or more of cocaine and 100 kilograms or more of marijuana. (ECF No. 45-1.) On October 31, 2012, a superseding indictment was filed, charging the movant with the conspiracy count (Count One) and one count of violation of 18 U.S.C. § 1956(h), conspiracy to launder money (Count Two). (ECF No. 457-1.)

         Prior to the plea hearing, the movant sent two letters to his counsel, Lawrence Arnkoff. On August 4, 2012, the movant wrote to Mr. Arnkoff telling him that “people used to tell me all the time that I am lucky. I just feel like trying my luck and I want you as my attorney to go along with me.” (No. 3:17-cv-1019, ECF No. 17 at Page ID# 97.) Several months later, on October 28, 2012, the movant wrote to Mr. Arnkoff stating, “I want to plead guilty in a manner that you can argue about quantity, leader role, everything on final sentencing.” (Id. at Page ID# 93.)

         On November 5, 2012, the movant entered into a plea agreement with the United States under the provisions of Fed. R. Crim. P. 11, and, in conjunction therewith, submitted to the court a petition to enter a guilty plea to Counts One and Two of the superseding indictment, which the court accepted. (ECF No. 472.) In the plea agreement, the movant admitted to the facts underlying the charges in the superseding indictment and agreed that the facts established his guilt beyond a reasonable doubt. (Id. at Page ID## 2133-37.) He also acknowledged that he had read the plea agreement, he had reviewed it with his attorney, he understood his rights with respect to the superseding indictment, he understood the penalties associated with the crimes to which he was pleading guilty and the applicable sentencing guidelines. (ECF No. 472 at Page ID# 2147.) He also acknowledged that he voluntarily agreed to enter the plea agreement. (Id.)

         At the plea hearing, the movant testified that he read the recitation of facts set forth in the plea agreement and that the facts stated therein were true. (ECF No. 1125 at Page ID# 7193.) He also testified that the facts were accurate and that he had nothing to add. (Id.) Additionally, the movant acknowledged that he understood the penalties associated with the charges to which he had agreed to plead guilty. (Id. at Page ID# 7182-85, 7187-89.) The movant testified that he understood the terms of the plea agreement, that he had gone over the plea petition and plea agreement with his attorney and that there was not any part of either the plea petition or plea agreement that he did not understand. (Id. at Page ID# 7190-91.) The movant testified that he had no questions about any part of the plea petition or plea agreement and that he understood the rights he was giving up in entering the plea agreement. (Id. at Page ID## 7183-86, 7191.) The movant also testified that his lawyer was not making him waive his rights and plead guilty, that the decision to do so was his own decision, and that he made the decision freely with the benefit of his lawyer's advice. (Id. at Page ID# 7193.)

         After the plea agreement was accepted by the court, a presentence report was prepared. The movant's presentence report calculated his final adjusted offence level at 43 and his Criminal History Category at Category 1, which placed the movant's guideline range at life imprisonment. (ECF 1137 at Page ID## 7305-06.)

         Although the movant accepted the government's plea agreement, he did not accept the government's offer regarding sentencing. The movant alleges that “a month before sentencing [he] received a message to call his counsel and was informed about the offer of 180 months which was given by the government on [the] condition [that the movant's] counsel will not argue or ask [for] anything less than that on sentencing.” (ECF No. 1 at Page ID# 4.) The movant alleges that he asked Mr. Arnkoff, to “see if you can get 168 months, ” but learned that the government was unwilling to agree to a sentence less than 180 months. (Id.) The movant alleges that, when he asked Mr. Arnkoff what he should do, Mr. Arnkoff suggested that the movant “gamble.” (Id.) The movant alleges that Mr. Arnkoff told the movant that he would argue that the movant should be sentenced to 144 months, that the government would seek 216 months, and that “most likely [the] judge will meet us in the middle and sentence you to 180 months.” (Id.)

         On December 4, 2015, the court held a sentencing hearing. Prior to the hearing, the government filed a Motion for Downward Departure, as it had agreed to do, and requested that the court impose a 216-month sentence. (Id. at Page ID## 7308-09.) At sentencing, the court agreed that a downward departure was appropriate. (Id. at 7310.) As such, the argument at the hearing focused on determining the appropriate sentence for the movant. At the conclusion of the hearing, the movant was sentenced to a 216-month term of imprisonment. (ECF No. 1137 at Page ID# 7329.) Judgment was entered on November 20, 2015. (ECF No. 43.)

         II. THE CURRENT MOTION

         The movant asserts three ineffective assistance of counsel claims: (1) that trial counsel was ineffective for failing to encourage him to accept the government's offer to request a sentence of 180 months if the movant's counsel requested the same sentence; (2) that trial counsel was ineffective for failing to advise the movant that pleading to the money laundering count would increase his offense level by 2 levels under U.S.S.G § 2S1.1(b)(2)(B) and (3) that trial counsel was ineffective for failing to object to the 2-level enhancement for possession of a firearm under U.S.S.B. § 2D1.1(b)(1). In its response, the government argues that the movant's counsel's performance was not deficient, and, even if it was, the movant has not established prejudice. In his reply, the movant reargues his claims.

         III. STANDARD OF REVIEW

         Federal prisoners must file any motion to vacate within one year of the date on which: (1) the judgment of conviction becomes final; (2) a governmental impediment to making the motion is removed; (3) a right was initially recognized by the Supreme Court, if that right was newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the facts supporting the claim could have been discovered with due diligence. 28 U.S.C. § 2255(f)(1)-(4). To prevail upon a motion for habeas relief under 28 U.S.C. § 2255, prisoners must allege that: (1) their conviction resulted from an error of constitutional magnitude; (2) their sentence was imposed outside the statutory limits; or (3) an error of fact or law occurred that was so fundamental as to render the entire proceedings invalid. Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003); see also Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003). Prisoners must sustain their allegations by a preponderance of the evidence. See Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006); United States v. Campbell, 224 F.Supp. 549, 553 (E.D. Ky. 2016).

         The court should hold an evidentiary hearing in a Section 2255 proceeding where a factual dispute arises, unless the petitioner's allegations “‘cannot be accepted as true because they are contradicted by the record, inherently incredible, or [are] conclusions rather than statements of fact.' ” Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013)(quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). In addition, no hearing is required where “the record conclusively shows that the petitioner is entitled to no relief.” Arredondo, 178 F.3d at 782 (quoting Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996)). See also Fifer v. United States, 660 F.App'x. 358, 359 (6th Cir. Aug. 22, 2016).

         Having reviewed the pleadings, briefs and records filed in the movant's underlying criminal case, as well as the pleadings, briefs and records filed in this case, the court finds that it need not hold an evidentiary hearing in this case to resolve the movant's claims. The record conclusively establishes that the movant is not entitled to relief on his claims for the reasons set forth herein.

         IV. DISCUSSION

         A. Ineffective Assistance of Counsel: Legal Standard

         In Strickland v. Washington, 466 U.S. 668, 687-88 (1984), the Supreme Court established a two-prong test by which to evaluate claims of ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel, the petitioner must prove: (1) that counsel's performance fell below an objective standard of reasonableness; and (2) that counsel's deficient performance prejudiced the defendant, resulting in an unreliable or fundamentally unfair outcome. The two-part Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). Regarding the first prong, the court applies the same standard articulated in Strickland for determining whether counsel's performance fell below an objective standard of reasonableness. Id. In analyzing the prejudice prong, the focus is on whether counsel's constitutionally deficient performance affected the outcome of the plea process. “[I]n order to satisfy the ‘prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59.

         1. Rejection of Government Offer

         The movant argues that his trial counsel, Lawrence Arnkoff, should have encouraged him to accept the government's offer to recommend a 180-month sentence and should not have suggested that he “gamble” on obtaining a shorter sentence. In support of this argument, the movant cites to a letter written by Mr. Arnkoff on February 20, 2016, that states, in pertinent part:

I was upset for weeks that I was not able to convince the Judge to give you a lesser sentence. After he sentenced [two of the movant's co-defendants, one who received a life sentence and one who received a 20-year sentence], it became more apparent that my perspective was generated more by hope than by reality.

(Case No. 3:17-cv-1019, ECF No. 1 at Page ID# 26.) The movant suggests that the statement “my perspective was generated more by hope than by reality” amounts to an admission by Mr. Arnkoff that he told the movant to gamble on getting a better sentence than the government was offering. However, nothing in Mr. Arnkoff's statement establishes that he encouraged the movant to gamble at sentencing. Rather, it suggests only that Mr. Arnkoff's perspective on the movant's chances of obtaining a sentence less than 180 months was based more on hope than reality. Mr. Arnkoff's statement sheds no light on the movant's argument that it was Mr. Arnkoff who suggested that the movant “gamble” and ...


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