United States District Court, E.D. New York
MEMORANDUM AND ORDER
DORA L. IRIZARRY, District Judge.
Boris Alexeev ("Petitioner") was convicted, upon his plea of guilty, of Hobbs Act robbery and conspiracy to obstruct justice. On March 19, 2008, this Court sentenced him to 168 months of incarceration, followed by three years of supervised release. (Sentencing Tr. at 43, Docket No. 04-cr-1041,  Doc. Entry No. 415.) Petitioner timely appealed. On May 29, 2009, the Second Circuit Court of Appeals ("Second Circuit") affirmed the judgment of this Court. See United States v. Grabsky, 330 F.Appx. 259 (2d Cir. 2009). A writ of certiorari to the Supreme Court was denied on October 13, 2009. Alexeev v. United States, 558 U.S. 957 (2009).
On October 12, 2010, Petitioner, proceeding pro se,  filed the instant Petition challenging his sentence pursuant to 28 U.S.C. § 2255. ( See generally Petition ("Pet."), Doc. Entry No. 1; Memorandum of Points and Authorities in Support of Petition ("Mem."), Doc. Entry No. 2.) Petitioner contends that he received ineffective assistance of counsel during his plea allocution, sentencing, and appeal. (Mem. at 3-4.) Petitioner seeks an evidentiary hearing and resentencing. (Mem. at 5, 33.)
For the reasons stated below, Petitioner's Section 2255 Petition is denied in its entirety.
I. Indictment and Plea Hearing
On December 21, 2005, Petitioner pled guilty before the Honorable Sandra L. Townes, pursuant to a plea agreement, to Counts Ten and Twelve of the Tenth Superseding Indictment. Counts Ten and Twelve charged Petitioner and other members of the "Passage Crew" criminal enterprise with the commission of Hobbs Act robbery and conspiracy to obstruct justice in January 2003. (Plea Transcript ("Plea Tr.") at 10, 15-17, 19, Docket No. 04-cr-1041, Doc. Entry No. 339; Indictment ¶¶ 119, 121, Docket No. 04-cr-1041, Doc. Entry No. 256.) At the time of his plea allocution, Petitioner was represented by Thomas J. Sullivan, Esq. ("Sullivan"). (Pet. at 6.)
The Tenth Superseding Indictment also charged Petitioner with several crimes to which he did not plead guilty, including, in relevant part, racketeering (Count One) and racketeering conspiracy (Count Two). (Indictment ¶¶ 8-9, 108-109.) Among the predicate acts alleged in support of Counts One and Two was the attempted extortion of Jane Doe #1 ( id. ¶¶ 13-15), for which Petitioner had already completed a 30-month sentence of imprisonment (the "prior conviction"). (Mem. at 2.)
The plea agreement indicated, inter alia, that Petitioner would be subject to an estimated United States Sentencing Guidelines ("Guidelines") sentence range of 121 to 151 months' imprisonment, based upon an adjusted offense level of 31, and assuming Petitioner fell within Criminal History Category II. (Plea Agreement ¶ 2.) The plea agreement also provided that the estimated Guidelines range contained in the agreement was not binding on the government, the Probation Department ("Probation"), or the Court, and Petitioner would not be entitled to withdraw his guilty plea if the Court's determination of the Guidelines range was different than that provided by the plea agreement. ( Id. ¶ 3.)
During the change of plea hearing, Petitioner, who had been placed under oath, confirmed that he had read and reviewed the plea agreement with his attorney and that he understood all of its terms. (Plea Tr. at 3-4.) When the court advised Petitioner that the court was not bound by the Guidelines range estimate contained in the plea agreement and that he would not be permitted to withdraw his plea if the estimate was incorrect, Petitioner affirmed that he understood. ( Id. at 12.) Petitioner also confirmed he understood that he could be deported from the United States as a result of his guilty plea. ( Id. ) Additionally, Petitioner stated that he was satisfied with his attorney's representation. ( Id. at 13-14). The court found that Petitioner fully understood his rights and the consequences of his plea, that Petitioner was acting voluntarily, and that there was a factual basis for the plea. ( Id. at 18, 20.) Accordingly, the court accepted Petitioner's plea of guilty to Counts Ten and Twelve of the Tenth Superseding Indictment. ( Id. )
II. Sentencing and Direct Appeal
On January 9, 2008, Probation disclosed the Presentence Investigation Report ("PSR"), in which Probation calculated a Guidelines sentencing range of 168 to 210 months, based on a total offense level of 34 and Criminal History Category II. By letter dated January 23, 2008, defense counsel objected to the Guidelines range as calculated by Probation. (1/23/08 Let., Docket No. 04-cr-1014, Doc. Entry No. 387.) Specifically, defense counsel argued that a Criminal History Category of II was unreasonable because Petitioner's prior conviction was related to the crimes to which he had pled guilty in the underlying criminal case. (1/23/08 Let at 3.) Mr. Sullivan argued that Probation's estimated Guidelines range was incorrect because "the advisory guidelines contained [in the PSR] did not credit the 30 months of imprisonment [Petitioner] already served in connection with this case." ( Id. )
Defense counsel also submitted a sentencing memorandum on March 12, 2008 in which he again argued that the Court should "credit the amount of imprisonment [Petitioner]... served in connection with [the prior conviction]." (Sentencing Mem. at 2, 12-16, 18, 25-27, Docket No. 10-cr-1014, Doc. Entry No. 394.) Defense counsel argued at length that the version of the Guidelines in place when Petitioner committed the crimes for which he was convicted in the underlying criminal case should be applied instead of the version of the Guidelines in place at the time of sentencing. ( Id. at 34-52.) Specifically, Mr. Sullivan discussed, inter alia, the application to Petitioner's case of Section 5G1.3 of the Guidelines, which addresses when prior sentences must run concurrently with later sentences. ( Id. at 48-52.)
At the March 19, 2008 sentencing hearing, Petitioner's attorney reiterated his argument that Petitioner's Criminal History Category calculation should not include his prior conviction for attempted extortion because it was relevant conduct under the Guidelines. (Sentencing Tr. at 25-26.) Mr. Sullivan also argued that it would be "unfair" not to factor the time Petitioner had already served for attempted extortion into his sentence. (Sentencing Tr. at 26.) After hearing arguments from the parties as to Petitioner's sentencing objections, the court found that Petitioner's attempted extortion conviction was not related to the crimes to which Petitioner had pled guilty, because "[t]he prior offense did not occur ...