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Theoharis v. United States of

March 8, 2013

THEOHARIS TOUMAZATOS, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.

MEMORANDUM AND ORDER

Presently before the Court is Theoharis Toumazatos's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Toumazatos claims that his trial counsel rendered ineffective assistance during the sentencing phase of his criminal proceeding. For the following reasons, the motion is DENIED.

BACKGROUND

On February 19, 2010, Toumazatos pled guilty to a one-count information alleging mail fraud. (Ex. B to Gov't Br. in Opp'n (Doc. No. 4-2) ("Plea Tr.").) Toumazatos pled guilty pursuant to the terms of a plea agreement, which provided that, "The defendant will not file an appeal or otherwise challenge, by petition pursuant to 28 U.S.C. § 2255 or any other provision, the conviction or sentence in the event that the Court imposes a term of imprisonment of 57 months or below." (Ex. A to Gov't Br. in Opp'n (Doc. No. 4-1) ("Plea Agr.") at ¶ 4.)

The assigned magistrate judge, Judge Azrack, took Toumazatos's plea. During that proceeding, Judge Azrack asked Toumazatos whether he understood every term that was in his plea agreement. Toumazatos answered yes. Judge Azrack continued:

Do you agree to the terms that are contained in it?

The Defendant: Yes, your Honor.

The Court: Did you sign it at the end to show your agreement?

The Defendant: Yes, your Honor.

The Court: Is that your signature on the last page?

The Defendant: Yes, your Honor.

The Court: Mr. Toumazatos, has anybody made any promises to you about this case that aren't contained in the written plea agreement?

The Defendant: No, your Honor. (Plea Tr. at 9.)

Judge Azrack then discussed Toumazatos's right to appeal. She explained that "under limited circumstances, you can appeal your sentence." (Id. at 13.) She continued, "I see in your plea agreement in paragraph four, you've agreed not to appeal your sentence ...


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