The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
Pending before the Court is a motion by petitioner Scott Geise to vacate his sentence pursuant to 28 U.S.C. § 2255. In support of his motion, petitioner submits two ways in which he received ineffective assistance of counsel in violation of his Sixth Amendment rights. First, petitioner argues that his trial counsel failed to challenge Count One of the superseding indictment as untimely. Second, petitioner argues that his trial counsel failed to take advantage of alleged violations of the Speedy Trial Act. Respondent counters that petitioner voluntarily stopped the trial that had begun, and then knowingly and voluntarily entered a plea agreement that waived his right to collateral attack on any sentence falling within the advisory guidelines range. In the alternative, respondent contends that the two counts that formed the factual basis of the plea agreement were timely, and that none of the exclusions of speedy trial time were improper.
The Court has deemed the motion submitted on papers pursuant to Rule 78(b) of the Federal Rules of Civil Procedure. For the reasons below, the Court denies the motion.
This case concerned allegations that petitioner, a dentist who practiced in Newfane, New York, billed insurance companies for services that he did not perform and hid the resulting income from the Internal Revenue Service. Respondent filed the original indictment on June 26, 2007. The original indictment charged petitioner with one count of embezzlement from an employee welfare benefit plan, in violation of 18 U.S.C. § 664; and eight counts of false statements relating to health care matters, in violation of 18 U.S.C. § 1035(a)(2). The original indictment came several months after petitioner, his trial counsel, and respondent all signed a written agreement dated December 6, 2006 concerning the possibility of a defense on limitations grounds. (See Dkt. No. 101-1.) In the agreement, petitioner agreed to waive any limitations defenses for a one-year period running from June 30, 2006, in exchange for continued discussions about a possible pre-indictment disposition. The agreement stated that during such discussions, petitioner would remain "fully cognizant that such a settlement is not a certainty, nor is it a condition of the statute of limitations waiver previously mentioned." (Id. at 1.)
Respondent subsequently replaced the original indictment with a superseding indictment that it filed on December 18, 2007. Count One, alleging embezzlement in violation of 18 U.S.C. § 664, did not change. The eight counts from the original indictment alleging false statements in violation of 18 U.S.C. § 1035(a)(2) also did not change, though they were renumbered. As for changes in the superseding indictment, respondent added 49 more counts of false statements in violation of 18 U.S.C. § 1035(a)(2). Each of these 57 counts constituted one alleged instance of a claim that petitioner submitted to an insurer for a service that he did not perform. The superseding indictment also contained seven new counts of willfully filing a false tax return in violation of 26 U.S.C. § 7206(1).
From the filing of the original indictment, petitioner's case proceeded through a course of pretrial proceedings and motion practice, with corresponding exclusions of time under 18 U.S.C. § 3161. One part of this course warrants specific mention because it forms part of the basis for petitioner's motion. On December 11, 2007, petitioner filed an amended omnibus motion (Dkt. No. 11) that included a motion to sever Count One of the original indictment from other counts and a motion for a bill of particulars for all counts, including Count One. After respondent filed the superseding indictment, petitioner supplemented his pending omnibus motion (Dkt. No. 15) to account for the new indictment. Magistrate Judge Hugh B. Scott issued an order on July 8, 2008 (Dkt. No. 21) granting in part and denying in part the relief requested in the original and supplemental omnibus motions. While these motions were pending, Magistrate Judge Scott*fn1 excluded time pursuant to 18 U.S.C. § 3161(h)(1)(F).*fn2 On the issue of severance and other issues relating directly to trial, Magistrate Judge Scott deferred to this Court. (See Dkt. No. 21 at 2 n.3 (noting that these issues would be "better addressed by the District Court Judge presiding over the trial in this case").) This Court granted the motion for severance on January 20, 2009. (Dkt. No. 33.)
The Court presided over jury selection on March 2, 2010 and began petitioner's trial on March 3, 2010. On March 5, 2010, before respondent's first witness had finished testifying, petitioner decided to stop the trial and to enter a plea agreement. In paragraph 1 of the plea agreement, petitioner agreed to plead guilty to Count Three and Count 63 of the superseding indictment. In paragraph 15, the parties agreed that petitioner's criminal history category would be I and that his total offense level would be 14. The parties agreed further that the advisory sentencing range would be a term of imprisonment of 15 to 21 months, a fine of $4,000 to $40,000, and a period of supervised release of 2 to 3 years. In paragraph 22, petitioner agreed to waive his right to appeal and collaterally attack any component of a sentence that the Court imposed that fell within or below the advisory sentencing range. In paragraph 23, petitioner agreed that his waiver of his rights to a collateral attack included a waiver of "the right to challenge the sentence in the event that in the future the defendant becomes aware of previously unknown facts or a change in the law which the defendant believes would justify a decrease in the defendant's sentence." (Dkt. No. 85 at 15.) In the last paragraph, above his signature, petitioner agreed that he understood all of the consequences of his guilty plea, that he agreed fully with the contents of the agreement, and that he was signing the agreement voluntarily and of his own free will. During the plea colloquy on March 5, 2010, the Court had respondent review the paragraphs of the plea agreement noted above and asked petitioner whether he had any questions about the agreement. Petitioner said no. (Dkt. No. 97 at 40.) Upon further questioning by the Court, petitioner indicated that no one was forcing him to plead guilty, that no one threatened him in any way, and that he understood that he was waiving his right to appeal the conviction. (See id. at 42--43.) Before formally entering his plea of guilty, petitioner stated one more time that he understood all the possible consequences of his plea and that he had no questions. (Id. at 45.)
The Court sentenced petitioner on July 19, 2010. The Court sentenced petitioner to a term of imprisonment of 15 months on Count Three and of 15 months on Count 63, with both terms to run concurrently; a term of supervised release of three years on Count Three and of one year on Count 63, with both terms to run concurrently; and restitution in the amount of $127,804.82 with no fine. Petitioner's sentence thus fell within the range that the parties had contemplated in the plea agreement.
On April 28, 2011, petitioner filed the pending motion to vacate. Petitioner raises two grounds for relief based on ineffective assistance of counsel. First, petitioner argues that Count One of the original and superseding indictments was untimely. According to petitioner, the factual basis for Count One ended by January 9, 2002, while he was not originally indicted until June 26, 2007. Because more than five years passed between the events underlying Count One and his original indictment, petitioner believes that his trial counsel should have moved to dismiss Count One on limitations grounds and then moved to dismiss the rest of the superseding indictment as too dependent on Count One. Second, petitioner argues in essence that every exclusion of speedy trial time that occurred in his case violated the Speedy Trial Act because they caused his trial to begin far more than 70 days after his initial indictment.
Respondent counters that the waiver provisions of the plea agreement bar petitioner's motion because he was sentenced within the advisory guidelines range. Alternatively, respondent considers the argument about limitations periods groundless because petitioner knowingly and voluntarily signed a one-year waiver of that defense and because the original indictment was filed before the waiver expired. Respondent's response to the argument about speedy trial time is somewhat puzzling. Respondent contends that all but one exclusion of speedy trial time occurred after a proper finding that the exclusion would serve the interests of justice. As for the time between January 10, 2008 and April 30, 2008, however, respondent apparently overlooks the omnibus motion that was pending as of December 11, 2007 and concedes that any time excluded for the preparation of the supplemental omnibus motion was not accompanied by any findings in the interest of justice. Respondent then advances two reasons why petitioner's argument should be rejected anyway. First, respondent contends that the exclusion of time for motion preparation without a finding in the interest of justice occurred while such an exclusion was still proper under U.S. v. Oberoi, 547 F.3d 436 (2d Cir. 2008), abrogated by Bloate v. U.S., ___ U.S. ___, 130 S. Ct. 1345 (2010). In this context, respondent essentially is asking the Court to uphold the provision of the plea agreement concerning future changes in the law and not to make Bloate retroactive. Second, respondent argues that any speedy trial error that occurred between January 10, 2008 and April 30, 2008 would not have prejudiced petitioner because the worst penalty for such an error would be dismissal without prejudice.
A. Section 2255 and Pro Se Papers ...