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Clark v. United States

United States District Court, Second Circuit

October 29, 2013

STEPHEN CLARK, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

OPINION & ORDER

KATHERINE B. FORREST, District Judge.

Stephen Clark, presently incarcerated in FCI Coleman Low, brings this petition for a writ of habeas corpus under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (ECF No. 1.[1]) He was sentenced on June 15, 2007 by United States District Judge Thomas Griesa to 135 months' imprisonment, three years' supervised release, and a $200 special assessment. For the reasons set forth below, his petition is DENIED.

I. BACKGROUND

On August 3, 2006, Clark was charged in a 20-count superseding indictment-one count of conspiracy to commit wire fraud and mail fraud in violation of 18 U.S.C. § 1349; five counts of wire fraud in violation of 18 U.S.C. § 1343; eleven counts of money laundering in violation of 18 U.S.C. § 1956; and three counts of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956 (the "Indictment"). (Colson Decl. Ex. A, ECF No. 17.) The charges stemmed from a telemarketing fraud scheme run by Clark and his co-defendants whereby salespeople who worked for the company they operated cold-called individuals and offered them "guaranteed" credit cards, for a fee of several hundred dollars, that they knew would ultimately not be provided. (Id. Ex. A ¶¶ 9-19.) The Government alleged that the company initiated electronic debit transfers from bank accounts in the United States totaling approximately $30 million from approximately 100, 000 victims of the scheme. (Gov't Opp. GX1 ¶ 9, ECF No. 22.)

On September 1, 2006, Clark executed a written plea agreement in which he agreed to plead guilty to Count One (conspiracy to commit mail and wire fraud) and Count Nine (money laundering) of the Indictment (the "Plea Agreement"). The Plea Agreement was addressed to Robert Kalina, Clark's attorney. The Plea Agreement provided that, in exchange for Clark's guilty plea, the Government would to drop the remaining 18 counts against Clark and not to prosecute him further for this conduct. (Id. GX2 at 2.) The Plea Agreement provided for a "Stipulated Guidelines Range" of 135 to 168 months' imprisonment, with a total maximum sentence of 40 years. (Id. GX2 at 2, 4.) The offense level used to calculate the Stipulated Guidelines Range was reduced by three levels in light of Clark's acceptance of responsibility. (Id. GX2 at 4.) The parties agreed that a sentence within the Stipulated Guidelines Range "would constitute a reasonable sentence in light of all the factors set forth in Title 18, United States Code, Section 3553(a), " though the parties were permitted to seek a sentence outside of this range based on these factors. (Id. GX2 at 4-5.)

The Plea Agreement also contained the following waiver:

It is agreed (i) that the defendant will not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the Stipulated Guidelines Range set forth above (135-168 months' imprisonment) and (ii) that the Government will not appeal any sentence within or above the Stipulated Guidelines Range.

(Id. GX2 at 5.) Finally, the Plea Agreement states that, "kilo additional understandings, promises, or conditions have been entered into other than those set forth in this Agreement, and none will be entered into unless in writing and signed by all parties." (Id. GX2 at 7.)

Clark pleaded guilty on September 1, 2006. During his plea allocution before Judge Griesa, he specifically acknowledged, among other things:

• That he was represented by counsel (Kalina) and was satisfied with his representation and advice (id. GX3 at 2:21-3:1);
• That he had signed the Plea Agreement (id. GX3 at 3:8-11);
• That, before signing the Plea Agreement, counsel reviewed it with him (id. GX3 at 3:14-16);
• That he understood the Plea Agreement (id. GX3 at 3:17-18);
• That no promises had been made to him "with regard to the sentence over and above what may be included in the plea agreement" (id. GX3 at 8:8-11);
• That he was not required to plead guilty and had the right to go to trial (id. GX3 at 8:12-16);
• That he understood the constitutional rights he was foregoing by not going to trial (id. GX3 at 8:17-9:22);
• That he had committed the crimes to which he was pleading guilty (id. GX3 at 9:23-12:10);
• That, as part of the Plea Agreement, he was waiving his right to appeal any sentence within or below a Guidelines range of 135 to 168 months' ...

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