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Persaud v. United States


October 22, 2012


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 forth above.

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 According to Persaud, but for his trial counsel's advice that he had no grounds for appeal, he would have filed a notice of appeal.*fn16


A. Section 2255

Section 2255 permits a convicted person held in federal custody to petition the sentencing court to vacate, set aside, or correct a sentence. A properly filed motion under section 2255 must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.*fn17

Accordingly, collateral relief under section 2255 is permitted "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes 'a fundamental defect which inherently results in a complete miscarriage of justice.'"*fn18 Finally, in a section 2255 proceeding, "the petitioner bears the burden of proof by a preponderance of the evidence."*fn19

B. Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")*fn20 introduced a one-year statute of limitations with respect to the filing of habeas corpus petitions.*fn21 Pursuant to the AEDPA, an application for a writ of habeas corpus is subject to a one-year period of limitation which runs from the latest of:

(1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.*fn22

Effective December 1, 2009, a notice of appeal "must be filed in the district court within fourteen days after the later of: (i) the entry of either judgment or the order being appealed; or (ii) the filing of the government's notice of appeal."*fn23 Where there is no waiver of appeal, a conviction from which no appeal is taken becomes final when the time for filing a notice of appeal expires.*fn24 In such cases, the fourteen-day period begins to run once the judgment of conviction has been docketed.*fn25 Where there is a waiver of appeal, a conviction arguably becomes final the day sentence is imposed.*fn26

C. Waiver of Direct Appeal and Collateral Attack Rights

The Second Circuit has repeatedly held that waivers of the right to directly appeal and/or collaterally attack a sentence under section 2255 are typically valid and enforceable.*fn27 Such waivers are typically found in plea agreements but post-conviction agreements can contain them as well.*fn28 "When construing an appellate waiver, [courts] apply 'well-established contract principles' and examine the plain language of the [post-conviction] agreement."*fn29 Such waivers are strictly construed and "any ambiguities in these agreements are read against the Government and in favor of a defendant's appellate rights." *fn30 Thus, the scope of a waiver is governed by the express language of the agreement in which it is found and the Government, as drafter, must be held to the literal terms of that agreement.*fn31

"'[W]aivers of the right to appeal a sentence, like waivers of constitutional rights, are invalid unless they are voluntary and knowing.'"*fn32 An agreement to waive appellate/collateral attack rights "is not enforceable 'unless the record "clearly demonstrates" that the waiver was both knowing (in the sense that the defendant fully understood the potential consequences of his waiver) and voluntary.'"*fn33 Accordingly, a defendant's knowing and voluntary waiver of his right to appeal and/or collaterally attack his sentence pursuant to section 2255 is generally enforceable.*fn34

"To raise a claim despite a guilty plea or appeal waiver, the petitioner must show that the plea agreement was not knowing and voluntary because "the advice he received from counsel was not within acceptable standards[.]"*fn35 "In challenging the ineffectiveness of counsel in connection with a [waiver] agreement, a defendant is challenging 'the constitutionality of the process by which he waived [his right to appeal].'"*fn36 Therefore, "a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been procured . . . ."*fn37

D. Ineffective Assistance of Counsel

A petitioner seeking to attack his sentence based on ineffective assistance of counsel must: (1) show that counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms," and (2) "affirmatively prove prejudice," namely, demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."*fn38

When analyzing a claim that counsel's performance did not meet constitutional standards, "judicial scrutiny of counsel's performance must be highly deferential."*fn39 The court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."*fn40 "In assessing the attorney's performance, a reviewing court must judge his conduct on the basis of the facts of the particular case, 'viewed as of the time of counsel's conduct,' and may not use hindsight to second-guess his strategy choices."*fn41

Finally, even if an attorney's performance was objectively unreasonable and unprofessional, a petitioner must still prove prejudice.*fn42 As explained by the Supreme Court, the order of analysis of the two Strickland prongs -- performance and prejudice -- is at the discretion of the court.*fn43 In other words, if the court finds that there is no prejudice, it need not reach the performance prong.*fn44


A. Time Bar

Sentence was imposed on February 25, 2011, and the judgment of conviction was docketed on March 4, 2011. Assuming, arguendo, that the limitations period runs from the latter date, petitioner's conviction became final fourteen days later, on Friday, March 18, 2011. One year from this date falls on Sunday, March 18, 2012. Because this date falls on a weekend, petitioner's deadline for filing a timely habeas motion was Monday, March 19, 2012. From a review of the docket sheet, petitioner's habeas counsel attempted to file the instant motion electronically, on March 18, 2012. On March 19, 2012, petitioner's attorney was notified that his attempted electronic filing was rejected and that he had to manually re-file the motion. Counsel, however, did not re-file the motion until the next day, March 20, 2012.

The Supreme Court has held "that district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition."*fn45 The Supreme Court explained further:

[i]f, as this Court has held, "[d]istrict judges have no obligation to act as counsel or paralegal to pro se litigants," then, by the same token, they surely have no obligation to assist attorneys representing the State. Nevertheless, if a judge does detect a clear computation error, no Rule, statute, or constitutional provision commands the judge to suppress that knowledge.*fn46

The Supreme Court cautioned, however, that "before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions."*fn47

Here, Persaud's motion was filed one day after the one-year limitations period expired. As such, the motion could be dismissed by this Court, sua sponte, as time-barred despite respondent's failure to raise the statute of limitations as an affirmative defense. However, in light of this de minimis delay and the fact that the parties were not put on notice that this Court would be considering the timeliness issue, I will not dismiss the instant motion as time-barred. Rather than rely on so slender a supporting reed, this Court finds petitioner's section 2255 motion to be foreclosed by the waiver of appellate/collateral attack rights provision in the post-conviction Agreement.

B. Enforceable Waiver

As stated earlier, whether the waiver to which petitioner agreed is enforceable "turns on 'whether the ineffective assistance tainted the voluntariness of the . . . waiver agreement itself.'"*fn48 Here, Persaud's trial attorney advised him that he would be better off if he agreed to waive his right to appeal/collaterally attack in exchange for stipulated loss, forfeiture and restitution amounts. Because Persaud received clear and significant benefits in agreeing to the waiver, it cannot be said that his attorney rendered ineffective assistance when he counseled in its favor. Persaud was given a non-custodial, non-Guidelines sentence which rendered the concessions he made in the Agreement unnecessary. But this fact does not make his attorney's advice, viewed contemporaneously without the benefit of hindsight, constitutionally inadequate. I therefore find that counsel's performance did not fall below an objective standard of reasonableness when he recommended that Persaud agree to the waiver.

Nor is the waiver unknowing and involuntary. Persaud argues that Federal Rule of Criminal Procedure 11 "mandates that the court personally address the defendant, inform him of and determine that he understand any waiver of his right to appeal."*fn49 But Rule 11 specifically applies to guilty pleas. Here, petitioner elected to go to trial and was convicted by a jury. Rule 11 is therefore inapplicable. Equally without merit is Persaud's argument that this Court should have personally addressed him with regard to the waiver.*fn50 The waiver was raised at Persaud's sentencing where he was given the opportunity to address the Court, which he did. Moreover, Persaud is an attorney who clearly has the capacity to understand the plain terms of the waiver without judicial assistance. As such, it is reasonable to presume that Persaud understood and willingly agreed to the terms of the waiver.*fn51 Accordingly, I conclude that petitioner's waiver of his appeal/collateral attack rights was knowing and voluntary.

Finally, Persaud's reliance on Campusano v. United States *fn52 is misplaced. In Campusano, the question addressed by the appellate court was whether the presumption of prejudice described in Roe v. Flores Ortega*fn53 "applies to a defendant who has waived appeal in a plea agreement."*fn54 The Second Circuit held that it does, stating as follows:

The question presented in this case is whether an attorney who fails to file a notice of appeal requested by his client is constitutionally ineffective when the client waived appeal in his plea agreement. We hold that even after a waiver, a lawyer who believes the requested appeal would be frivolous is bound to file the notice of appeal and submit a brief pursuant to Anders v. California, 386 U.S. 738 (1967). When counsel fails to do so, we will presume prejudice, as required by Roe v. Flores--Ortega, 528 U.S. 470 (2000), and the defendant will be entitled to a direct appeal without any showing on collateral review that his appeal will likely have merit.*fn55

Thus, "where counsel does not file a requested notice of appeal and fails to file an adequate Anders brief, courts may not dismiss the hypothetical appeal as frivolous on collateral review."*fn56 The Circuit "decline[d] to adopt a rule that would allow courts to review hypothetical appeals as a substitute for real appeals that have been blocked by attorney error."*fn57 Instead, [w]hen a defendant claims that his attorney failed to file a requested notice of appeal, the following proceedings will ensue: (1) a hearing before the district court pursuant to § 2255 to determine whether the client requested the appeal; (2) an appeal from the district court's ruling, should either party seek one; and (3) a direct appeal if the defendant did in fact request that a notice of appeal be filed.*fn58

Campusano is distinguishable because the defendant there twice requested that his attorney file a notice of appeal, which his attorney refused to do. Nowhere in Persaud's Declaration does he state that he expressly asked his trial attorney to file a notice of appeal on his behalf. Thus, a Campusano hearing is not warranted here. Furthermore, in Campusano, the defendant was an unsophisticated lay person with no legal education whatsoever whose waiver was included as part of his plea agreement. Here, Persaud is a sophisticated attorney who decided to waive his appeal/collateral attack rights post-conviction, shortly before sentencing. Accordingly, there is no reason to extend the protections afforded in Campusano to the factually distinguishable case sub judice. Because Persaud's waiver of his appellate/habeas rights is enforceable, that waiver precludes him from bringing the instant section 2255 motion, which must therefore be dismissed.


For the foregoing reasons, Persaud's section 2255 motion is summarily dismissed because he knowingly and voluntarily waived the right to bring such a motion. Because I have not considered the merits of Persaud's motion, I decline to issue a Certificate of Appealability as to all issues raised therein. The Clerk of the Court is directed to close this motion in both the criminal case (unnumbered but dated March 30, 2012) and in the civil case (Docket Entry #

1). The Clerk of the Court is further directed to close the criminal and civil cases.


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