The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.
On July 26, 2010, a ten count Superseding Indictment was filed, charging petitioner Ravi Persaud - then a practicing attorney - with the following: conspiracy to commit bank and wire fraud (Count One);*fn1 bank fraud in connection with a property located at 958 East 108th Street, Brooklyn, New York (Count Three);*fn2 bank fraud in connection with a property located at 104-36 134th Street, South Richmond Hills, New York (Count Four);*fn3 and bank fraud in connection with a property located at 104-03 51st Avenue, Coronoa, New York (Count Six).*fn4 For Counts Three, Four and Six, Persaud was also charged with aiding and abetting the offenses charged in those counts.*fn5
On August 26, 2010, the jury convicted Persaud on all four counts. On February 25, 2011, Persaud was sentenced to time served, to be followed by three years of supervised release. The judgment of conviction was docketed on March 4, 2011. Persaud did not appeal his conviction or sentence. Persaud, represented by counsel, filed the instant motion to vacate, set aside or correct his sentence pursuant to Title 28, United States Code, section 2255 on March 20, 2012.*fn6 In his Petition, Persaud argues that: (1) the evidence did not support the jury's verdict and he is "actually innocent" of the crimes for which he was convicted; (2) his post-conviction waiver of the right to appeal and bring a collateral challenge under section 2255 is unenforceable because the agreement waiving those rights was entered into without effective assistance of counsel and was otherwise not knowing, intelligent and voluntary; and (3) his attorney rendered ineffective assistance of counsel at trial. For the following reasons, Persaud's section 2255 motion is denied in its entirety and no certificate of appealability will be issued by this Court.
On February 18, 2011, just days away from his sentencing, Persaud and his trial attorney, David Louis Cohen, signed a post-conviction agreement (the "Agreement") with the United States Attorney's Office.*fn7 The Agreement states as follows:
In consideration of the defendant's agreement to waive the right to
appeal, or litigate under Title 28, United States Code, Sections 2255
and/or 2241, any and all possible issues arising from the
above-mentioned trial and pretrial proceedings relating thereto, the
parties agree to enter into the sentencing stipulations set forth
below.*fn8 The Agreement limited the amount of
forfeiture owed by Persaud to $57,430, capped the amount of
restitution to less than or equal to $1,000,000.00, and provided for a
stipulated Guidelines range of 46 to 57 months in custody.*fn9
In exchange for these benefits, it was understood that the
defendant will have no right to challenge the jury's verdict (or any
of the related pretrial proceedings) either on appeal, or under Title
28, United States Code, Section 2255 and/or Section 2241, should the
sentence imposed by the Court be outside the Guidelines range set
It is therefore agreed (i) that the defendant will not file a direct appeal; nor bring a collateral challenge, including but not limited to an application under Title 28, United States Code, Section 2255 and/or Section 2241; nor seek a sentence modification pursuant to Title 18, United States Code, Section 3582(c), of any sentence within or below the Stipulated Guidelines Range of 46 to 57 months' imprisonment and (ii) that the Government will not appeal any sentence within or above the Stipulated Guidelines Range.*fn10
The Agreement was also discussed among the parties at Persaud's sentencing on February 25, 2011.
THE COURT: Now as I understand the terms of the February 11th agreement that was signed on February 18th, defendant has waived his right to appeal his conviction or his sentence in return for the government's agreement with respect to forfeiture and restitution, so I don't think I [will] advise him of his right to appeal. Is that your view, Ms. Apps?
MS. APPS: Correct, your Honor. He has an agreement.
THE COURT: Mr. Cohen, you agree?
MR. COHEN: I do, your Honor.*fn11
Furthermore, when he was given the opportunity to speak at his sentencing, Persaud did not indicate that he did not understand the terms of the Agreement nor did he state that he did not knowingly and voluntarily enter into the Agreement.*fn12
In his Declaration, Persaud now states that his trial counsel reminded him "that there are no grounds for an appeal and that an appeal would not be successful."*fn13 Trial counsel further advised Persaud "that to preserve an appeal that had no merit at the cost of losing the certainty of a more favorable sentence would be unwise."*fn14 Trial counsel "repeatedly advised [Persaud] to enter an agreement with the government waiving my right to appeal in exchange for a stipulated loss, forfeiture, and restitution amount."*fn15 ...