UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
May 14, 2013
ALEXANDER NOSOV, PETITIONER-APPELLANT,
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE.
Appeal from an October 12, 2011 order of the United States District Court for the Southern District of New York (Alvin K. Hellerstein, Judge).
Nosov v. United States
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of May, two thousand thirteen.
PRESENT: RALPH K. WINTER, JOSE A. CABRANES, BARRINGTON D. PARKER, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the October 12, 2011 order of the District Court be AFFIRMED.
On December 5, 2001, a jury found petitioner-appellant Alexander Nosov guilty of (1) murdering Sergei Kobozev in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1); (2) kidnapping Kobozev in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1); and (3) conspiring to kidnap Kobozev, in violation of 18 U.S.C. § 1201(a)(1). We affirmed Nosov's conviction on direct appeal. United States v. Nosov, 119 F. App'x 311, 316 (2d Cir. 2004). Nosov subsequently moved in the District Court to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255.*fn1 Nosov now appeals the District Court's denial of that motion. We assume familiarity with the underlying facts and procedural history of this case.
A brief summary of the facts of Nosov's case is in order. On November 5, 1995, Nosov spent the evening at a nightclub, where he proceeded to get into a fight with the singer of the band because the band refused to play songs requested by Nosov. Kobozev, a "bouncer" at the club, broke up the fight. Several days later, Kobosev brought his car to an auto-repair shop, which happened to be a meeting place for Nosov and his associates. In retaliation for Kobosev's breaking up the fight, Nosov and his friends forced Kobozev into a stockroom at the auto shop, where Nosov shot Kobozev in the back. Nosov and his associates then drove Kobozev to another acquaintance's house, broke his neck, and buried him in a shallow grave.
After a trial by jury, Nosov was convicted of kidnapping and murdering Kobozev in aid of racketeering, and of conspiracy to kidnap Kobozev. The District Court (Robert L. Carter, Judge)*fn2 sentenced Nosov to life in prison. Nosov now seeks to set aside that sentence.
"On appeal from a district court's denial of habeas relief under 28 U.S.C. § 2255, we review factual findings for clear error and conclusions of law de novo." Harrington v. United States, 689 F.3d 124, 129 (2d Cir. 2012). In order to prevail on an ineffective assistance of counsel claim, Nosov must demonstrate both that his counsel's performance was unreasonably deficient under prevailing professional standards and that, but for his counsel's unprofessional errors, there exists a reasonable probability that the result below would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).
Nosov claims that his trial counsel, Alexei Schacht, was ineffective
for failing to investigate and present an alibi defense.*fn3
Nosov points to various affidavits from family members and
others, which, he claims, establish that he was not in the United
States at the time of Kobosev's murder. Although Nosov may, strictly
speaking, be correct when he asserts that he "has provided five
affidavits from witnesses who could have testified that he was out of
the country at the time the crime was committed," Appellant Br. 6, he
has not provided five affidavits of witnesses who could have testified
to any consistent or plausible account of his whereabouts at the time
of the murder.
As Judge Hellerstein observed, the statements identified by Nosov are "internally conflicting between and amongst themselves." Appellant's App'x 8. Notably, two of the affidavits submitted by Nosov attest that he lived in Dortmund, Germany, when the murder occurred, while two others place Nosov's residence in Zhitomer, Ukraine, at the same time. Compare id. at 54 ("I lived with my brother Alexander [Nosov] in Dortmund . . . and, therefore, I have seen him nearly daily during this time"), and id. at 57 ("I have seen my son Alexander, who regularly visited me every weekend in my house in Dortmund"), with id. at 60 ("Nosov, Alexandr Anatolevich resided in apartment No1(one), own[ed] by me, located at: Velikiy Berdychivskiy St, #39(thirty nine), City of Zhitomir, Ukraine"), and id. at 62 ("Nosov . . . was treated from October 30, 1995 until November 10, 1995 in the Surgical Department of Polyclinic #1 due to of right hand phlegmon" at the Central City Hospital in Zhitomir). Still another affidavit describes Nosov as living at a different address in Zhitomer during this time. Pro se Supp. App'x 91 (stating that Nosov "resided in the City of Zhitomer at: Dombrovskogo St., #14a, apt. 6").
Indeed, in a sworn affidavit, Schacht explains that he did investigate Nosov's claimed alibi by speaking to Nosov's relatives and reviewing their passports, plane tickets, and photographs. Schacht concluded, not surprisingly, that Kobosev did not leave for Germany until after the murder. Schacht made a strategic decision not to present evidence that was easily discredited and suggestive of dishonesty. See Strickland, 466 U.S. at 690 ("[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable."). As we have noted, "failure to make a meritless argument does not amount to ineffective assistance." United States v. Regalado, 518 F.3d 143, 149 n.3 (2d Cir. 2008) (quotation marks and alteration omitted). In short, we find no merit in Nosov's claim of ineffective assistance of counsel.
We have reviewed the record and the parties' arguments on appeal. For the reasons set out above, we AFFIRM the October 12, 2011 order the District Court.
FOR THE COURT,
Catherine O'Hagan Wolfe, Clerk of Court