UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
August 19, 2008
STEPHEN SHERMAN, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Charles P. Sifton (electronically signed) United States District Judge
MEMORANDUM OPINION AND ORDER
SIFTON, Senior Judge.
Now before this Court is petitioner Stephen Sherman's application to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, petitioner's application is denied.
On December 14, 2005, petitioner pleaded guilty to aiding in the fraudulent filing of Eric Hagerbrant's 2001 tax return, in violation of 26 U.S.C. § 7206(2).*fn1 At petitioner's plea proceeding, he was asked if the tax return he assisted in preparing "falsely reported taxable income of around $470,000, when it should have reported a taxable income in excess of $2,270,000 and a substantially larger tax due." Petitioner replied affirmatively. Dec. 14, 2005, Plea Tr. at 7. Petitioner further stated that "the tax income of $472,000 was willfully under reported because due to the distribution of income from [Hagerbrant's] corporations which was [sic] sub S corporations, so we took the -- we understated -- we overstated the expenses and understated the income on the corporation so as to lower Mr. Hagerbrand's [sic] tax burden." Id. at 7-8.
On December 14, 2006, petitioner was sentenced to a term of imprisonment of 36 months, the maximum allowed by statute, see 26 U.S.C. § 7206, and ordered to pay $702,714.00 in restitution.*fn2
On May 28, 2008, petitioner filed a petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Thereafter, this Court issued an Order to Show Cause, directing the government to respond to petitioner's application on or before July 3, 2008, and petitioner to file any reply within 20 days of the government's response. The government responded on June 30, 2008. Petitioner did not file any reply.
Petitioner's sole argument in support of his application reads:
Supreme Court recently changed legal standard by which this specific tax crime is prosecuted. The conduct complained of is no longer a crime; the conduct committed is no longer within the purview of the statute. Counsel failed to preserve or forward this argument. It is manifest injustice. A MEMORANDUM OF LAW WILL FOLLOW.
May 28, 2008, Petition, at 2 (capitalization in original). Petitioner never filed the promised Memorandum of Law or named the Supreme Court case to which he referred. Nevertheless, reading petitioner's application liberally, he argues that he is entitled to relief because the conduct for which he was convicted is no longer criminal and because he was denied effective assistance of counsel.
This Court is not aware of any recent Supreme Court decision that would render petitioner's conduct "no longer a crime." As the government notes, however, petitioner may be referring to Boulware v. United States, --- U.S. ---, 128 S.Ct. 1168 (2008). See Gov't Resp. at 2.
Boulware holds that a defendant accused of criminal tax evasion under 26 U.S.C. § 7201 may raise, as a defense, return-of-capital treatment*fn3 without producing evidence that either he or the corporation intended a capital return when the distribution occurred. Id. at 1172-3.*fn4 The Court assumed, but did not decide that Boulware's related conviction under § 7206(1) stood or fell with his § 7201 conviction. Id. at 1178, n.9.
Unlike Boulware, there is no dispute in this case that there is a tax deficiency. Petitioner admitted that he overstated the expenses and understated the income of Hagerbrant's various corporations and that these actions meant that the taxable income on Hagerbrant's 2001 return was significantly under-reported. Boulware's holding, assuming it is applicable to 26 U.S.C. § 7206(2), does not take petitioner's conduct outside the scope of the statute to which he pleaded guilty nor does it render his conduct non-criminal.
To prevail on a claim of ineffective assistance of counsel, petitioner must demonstrate both that his counsel's performance
(1) "fell below an objective standard of reasonableness", and (2) "that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88 (1984); see also United States v. Campbell, 300 F.3d 202, 214 (2d Cir. 2002). To satisfy the "prejudice" requirement in the context of guilty pleas, petitioner 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. Hill v. Lockhart, 474 U.S. 52, 59 (1985). Since Boulware did not render petitioner's conduct non-criminal, counsel made no error in not advising petitioner of the approach taken by the defendant in that case.*fn5
For the reasons set forth above, petitioner's application is denied. Further, petitioner is denied a certificate of appealability because he has not made "a substantial showing of the denial of a constitutional right." Reyes v. Keane, 90 F.3d 676, 680 (2d Cir. 1996).