The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
On March 21, 2011, Petitioner Maurice McDowall ("McDowall"), pro se, filed a motion pursuant to 28 U.S.C. section 2255 to vacate, set aside, or correct his sentence for one count of conspiracy to commit bank fraud and wire fraud in violation of 18 U.S.C. section 1349. Petitioner seeks to vacate his sentence on the ground that he was denied effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution. 11 Civ. 2095 (RPP)
On November 19, 2007, an indictment (the "Indictment") was filed against Petitioner and five co-defendants, charging them with conspiracy to commit bank and wire fraud, in violation of 18 U.S.C. section 1349; five counts of wire fraud, in violation of 18 U.S.C. sections 1343 and 1342; and one count of bank fraud, in violation of 18 U.S.C. sections 1344 and 1342. The Indictment also contained a forfeiture allegation seeking the forfeiture of $20 million. The Indictment alleged that McDowall and his co-defendants operated a large-scale fraud through a company called Lost and Found Recovery, a so-called foreclosure rescue specialist. The Indictment further alleged that during the course of the conspiracy, the defendants and their co- conspirators defrauded numerous lending institutions of in excess of $2.5 million, and over ten victims of their equity and ownership interest in their homes-leaving some of the homeowners homeless.
On June 3, 2008, Petitioner, represented by trial counsel, pled guilty pursuant to a plea agreement (the "Plea Agreement") with the Government to Count One of the Indictment, which charged him with conspiracy to commit bank and wire fraud. The Plea Agreement contained stipulations concerning the application of the United States Sentencing Guidelines and stipulated to a Guidelines sentencing range of 78 to 97 months imprisonment (the "Stipulated Guidelines Range"). (See Govt.'s Resp. to Maurice McDowall's Mot. to Vacate, Set Aside, and Correct a Sentence ("Govt.'s Resp.") Ex. A at 3.) The Plea Agreement also provided that:
The parties agree that neither a downward nor an upward adjustment or departure from the Stipulated Guidelines Range . . . is warranted. Accordingly, neither party will seek a departure or seek any adjustment not set forth herein. Nor will either party suggest that the Probation Department consider such a departure or adjustment, or suggest that the Court sua sponte consider a departure or adjustment.
* * * However, the parties agree that either party may seek a sentence outside of the Stipulated Guidelines Range, suggest that the Probation Department consider a sentence outside of the Stipulated Guidelines Range, and suggest that the court sua sponte consider a sentence outside of the Stipulated Guidelines Range, based upon the factors to be considered in imposing a sentence pursuant to Title 18, United States Code, Section 3553(a). (Id.) Before accepting McDowall's guilty plea, the Court conducted an allocution in full compliance with Rule 11 of the Federal Rules of Criminal Procedure. After hearing McDowall's statement to the Court, his guilty plea was accepted.
On October 1, 2008, the District Court held a sentencing hearing. The Court first heard from McDowall's counsel, who asked that he be sentenced at the lower end of the Stipulated Guidelines Range based on his inability to get adequate treatment for his medical condition while incarcerated, and his likely deportation as a result of the conviction. (Govt.'s Resp. Ex. B at 5-8.) The Court then heard from six homeowners who were victims of McDowall's fraudulent scheme. (Id. at 9-20.) McDowall himself then addressed the Court. (Id. at 20-22.) After both sides were heard, the Court stated:
I've considered both the guidelines and the 3553(a) factors. I think in this case it's important to impose a sentence that should afford to act a [sic] deterrence to this kind of conduct. That's the primary purpose of sentencing. And people should know what - - other people engage in this kind of conduct should be warned against it. I've heard the victims and read the victims' letters. And I depart upward from the guidelines sentence. And I sentence the defendant to ten years in jail. (Id. at 40.) The Court also issued an order of forfeiture in the amount of $2.5 million and imposed a $100 mandatory special assessment.
On October 7, 2008, the Government wrote the Court to request that it "clarify a possible ambiguity in its explanation for imposing a sentence above the applicable Sentencing Guidelines range." (Govt.'s Resp. Ex. C.) The Government stated in its letter that it understood the sentence to include an above-Guidelines variance based on the Court's explanation of its reasons for the 120-month sentence, rather than an upward departure. (Id.) The Court granted the Government's request for clarification, and on October 8, 2008, wrote:
The Court's "departure" was not intended to be a departure upward under the Sentencing Guidelines, but rather, after consideration of 18 U.S.C. § 3353(a), it determined that section 3353(a)(2)(B) required a sentence higher than the Guidelines calculation to provide adequate deterrence to persons who might use fraud, not just to obtain money illegally, but also to deprive persons of their homes. (Id.)
Following his conviction, Petitioner filed an appeal to challenge his 120-month sentence as substantively and procedurally unreasonable. On January 5, 2010, the Second Circuit, in a summary order, affirmed the District Court's judgment in all respects. See United States v. McDowall, 359 Fed. App'x 214 (2d Cir. 2010).
McDowall, proceeding pro se, has petitioned the Court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. section 2255. In his petition, Petitioner asserts three separate grounds for relief based on ineffective assistance of counsel in violation of the Sixth Amendment: (1) trial counsel failed to object to the Government's alleged breach of the Plea Agreement by calling victims to testify at the sentencing hearing; (2) trial counsel failed to object to the Court's alleged upward departure under the Sentencing Guidelines without having previously given notice to the Defendant; and (3) appellate counsel failed to challenge on direct appeal the Government's October 7, 2008 submission to the Court in which the Government asked the Court to clarify whether it intended to depart from the ...