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Wolfson v. United States

United States District Court, S.D. New York

November 13, 2012

Allen WOLFSON, Petitioner,
v.
UNITED STATES of America, Respondent.

Page 419

[Copyrighted Material Omitted]

Page 420

Allen Wolfson, New York, NY, pro se.

MEMORANDUM OPINION AND ORDER

JOHN G. KOELTL, District Judge.

The petitioner, Allen Wolfson, proceeding pro se, seeks to vacate or set aside his convictions pursuant to 28 U.S.C. § 2255. On May 26, 2010, this Court sentenced the petitioner to 100 months imprisonment after a jury convicted him of one count of conspiracy to commit securities fraud, wire fraud, and a violation of the Travel Act involving commercial bribery, in violation of 18 U.S.C. § 371; six counts of securities

Page 421

fraud, in violation of 15 U.S.C. §§ 78j(b) and 78ff, 17 C.F.R. § 240.10b-5, and 18 U.S.C. § 2; and two counts of wire fraud in violation of 18 U.S.C. §§ 1343, 1346, and 2. This Court also sentenced the petitioner to a term of 104 months imprisonment, to run concurrently with the 100-month sentence, based on the petitioner's guilty plea to two counts contained in a separate indictment: one count of conspiracy to commit securities fraud, in violation of 18 U.S.C. § 371; and one count of securities fraud, in violation of 15 U.S.C. §§ 78j(b) and 78ff, 17 C.F.R. § 240.10b-5, and 18 U.S.C. § 2.

The petitioner's convictions after his jury trial arises from a scheme in which he participated to manipulate the price of five stocks through various means, and to reward stock brokers with exorbitant commissions for having sold the stock. Some of the brokers failed to disclose the commissions to their customers while others made misrepresentations about the size of the commissions. United States v. Wolfson, 642 F.3d 293, 294 (2d Cir.2011) (per curiam). The petitioner in his guilty plea admitted to manipulating the stock of a different company in order to defraud investors. Id.

The petitioner appealed his convictions and the Court of Appeals for the Second Circuit affirmed the convictions. Id. The petitioner has completed his term of imprisonment and is now in the process of completing his term of supervised release. He has filed the current petition for habeas corpus seeking to vacate his convictions on several bases. For the reasons explained, the petition is denied.

I.

Where a habeas petitioner is a pro se litigant, the Court shall " read his supporting papers liberally, and will interpret them to raise the strongest arguments [that] they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994) (citation omitted). The petitioner's papers appear to raise five claims. First, the petitioner argues that the Indictment and jury charge at trial were defective because he never owed a fiduciary duty to anyone. Second, he argues that his trial counsel was ineffective. Third, the petitioner argues that, at trial, the Government withheld twenty-five tapes, in violation of its Brady obligations. Fourth, he asserts that the Government failed to establish that any investors lost money. Fifth, the petitioner argues that his convictions should be vacated because he was incompetent at the time of his trial and plea.

Because each of the petitioner's arguments is without merit, the petitioner's motion pursuant to 28 U.S.C. § 2255 is denied.

1.

First, the petitioner argues that the Indictment and jury charge at trial were defective because he never owed a fiduciary duty to anyone. The petitioner argues in particular that the commercial bribery statute in New York did not apply to him because he was never a stockbroker but a stock promoter. He alleges that he never owed a fiduciary duty to anyone. (Mot. Vacate at 5-6, 11 Civ. 7922, Nov. 4, 2011, ECF No. 1.) This argument is procedurally barred and is without merit.

Under 28 U.S.C. § 2255, a federal court can entertain an application for a writ of habeas corpus brought by " a prisoner in custody under sentence of a [federal] court ... claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ...." 28 U.S.C. § 2255(a). Therefore, collateral relief from a final criminal judgment is available " only for a ...


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