United States District Court, S.D. New York
LAURA TAYLOR SWAIN, District Judge.
On July 31, 2013, pro se Petitioner Christopher Fardella ("Fardella" or "Petitioner") moved, pursuant to 28 U.S.C. § 2255, to vacate his plea, sentence and convictions for conspiracy to commit securities fraud and mail fraud and for substantive securities fraud (the "Petition"). In his Petition, Fardella argues that his defense counsel, James S. Benjamin, Esq. ("Benjamin"), was constitutionally ineffective for: (i) failing to file a notice of appeal after sentencing; (ii) for preventing Fardella from raising meritorious defenses; (iii) for failing to research the applicable statute of limitations and argue that the charges against him were time-barred and that tolling agreements should not be applied; and (iv) for failing to address deficiencies and waivers in the plea agreement. Fardella also argues that his conviction should be vacated because the statute of limitations had already expired when the Information was filed and that the plea agreement should be void because the tolling agreements that Fardella signed to extend the statute of limitations were defective. Respondent opposes Fardella's motion, arguing that Fardella waived his right to challenge his sentence and his claims are meritless. The Court has considered carefully the parties' submissions and arguments and, for the following reasons, the Court finds that a full evidentiary hearing is not warranted and denies Fardella's Petition in its entirety.
Fardella and his co-defendant Michael Katz, along with others, were charged and convicted of conspiring to operate, and obtaining money through, a Ponzi scheme run through a purported hedge fund known as KMFG International, LLC ("KMFG"), by making false and fraudulent claims to investors that KMFG was operated by experienced managers with a track record when, in fact, Fardella and his co-conspirators had no experience running a hedge fund. (Presentence Report ¶¶ 14-15.) On October 12, 2011, Fardella waived his right to have the Grand Jury return an indictment against him and consented to the filing of an Information, which charged him in Count One with conspiracy to commit securities fraud and mail fraud in violation of 18 U.S.C. § 371 and in Count Two with securities fraud in violation of 15 U.S.C. §§ 78j(b), 78ff, 17 C.F.R. § 240.10b-5 and 18 U.S.C. § 2. (See Gov. Ex. A, Information.)
On October 12, 2011, Fardella pleaded guilty to Counts One and Two of the Information pursuant to a written plea agreement (the "Agreement"). (See Gov. Ex. B, Agreement at 6.) In the Agreement, Fardella stipulated that he "w[ould] not file a direct appeal; nor bring a collateral challenge, including, but not limited to an application under Title 28, United States Code, Section 2255 and/or 2241... of any sentence within or below the Stipulated Guidelines Range of 51 to 63 months' imprisonment." ( Id. at 4.) During the plea allocution, the Court confirmed that Fardella was competent to enter a plea of guilty; was aware of the charges against him as well as the maximum penalties associated with those charges, fully understood the Agreement; was aware of the constitutional rights that he was waiving by entering a plea of guilty, including the right to a trial; and that a factual basis existed for the plea. (See Gov. Ex. C, Plea Tr. at 19-44.) Fardella stated that he was satisfied with Benjamin's representation of him and that he had spoken to Benjamin regarding the charges to which he planned to plead guilty and possible defenses to those charges. ( Id. at 19:9-12.) The Court also confirmed that Fardella understood that he was "giving up, or waiving [his] right to appeal or to litigate or challenge [his] sentence under Sections 2255 and/or 2241 of Title 18" if he was sentenced to 63 or fewer months of imprisonment. ( Id. Tr. at 43:3-7.) Fardella then admitted to knowingly and willfully participating in a conspiracy to defraud KMFG's investors and to actually defrauding them, and acknowledged that he knew that what he was doing was wrong and illegal when he was doing it. ( Id. at 54-55.)
Following Fardella's guilty plea, the Probation Office prepared a Presentence Report that included a Guidelines calculation identical to that set forth in the Agreement and recommended a sentence of 60 months of imprisonment on Count One and a sentence of 63 months on Count Two, to run concurrently. (Pre-Sentence Report at 21-22.) Benjamin submitted a sentencing memorandum on Fardella's behalf in which he asked the Court to impose a sentence less than the applicable Guidelines range of 51 to 63 months based on the presence of mitigating factors under 18 U.S.C. § 3553(a). (See Gov. Ex. D, Def Sent. Mem.) The Court sentenced Fardella to 36 months of imprisonment on each of Counts One and Two, to run concurrently.
Whether Petitioner Waived his Right to Collaterally Challenge His Sentence
Respondent first argues that Fardella's Petition should be dismissed because Fardella was sentenced to 36 months of imprisonment and he knowingly, voluntarily and expressly waived his right to collaterally challenge his sentence under Section 2255 if his sentence fell within or below the stipulated Guidelines range of 51 to 63 months. "Waivers of the right to appeal a sentence are presumptively enforceable." United States v. Arevalo , 628 F.3d 93, 98 (2d Cir. 2010). "In no circumstance... may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement [or] [s]uch a remedy would render the plea bargaining process and the resulting agreement meaningless." United States v. Salcido-Contreras , 990 F.2d 51, 53 (2d Cir. 1993). The only way to overcome the rebuttable presumption of enforceability is to show that: "(1) the waiver was not knowing, voluntary, and competent; (2) the sentence imposed was based on impermissible factors, such as race or other biases; (3) the Government breached the plea agreement; or (4) the sentencing court failed to enunciate a rationale for the sentence." Santiago-Diaz v. United States , 299 F.Supp.2d 293, 298 (S.D.N.Y. 2004) (citation omitted).
Here, Fardella confirmed under oath that: (1) he was aware of the charges against him as well as the maximum penalties associated with those charges; (2) he was aware of the constitutional rights that he was waiving by entering a plea of guilty, including the right to a trial; (3) he was satisfied with Benjamin's representation of him; (4) he had fully discussed with Benjamin the charges to which he planned to plead guilty and any defenses that he might have had to those charges; (5) he fully understood the Agreement, discussed it with his attorney and signed it; (6) and he understood that, under the Agreement, he waived his right to file a collateral attack and appeal in certain circumstances. (See Gov. Ex. C., Plea Tr. at 19-44.) The record demonstrates that the waiver was knowing, voluntary and competent and Fardella does not argue that the sentence imposed was based upon impermissible factors, that the Government breached the Agreement or that the sentencing court failed to enunciate a rationale for his sentence. Accordingly, the Court finds that Fardella waived his right to collaterally challenge his sentence and is procedurally barred from making this motion.
Petitioner's Ineffective Assistance of Counsel Claims
Even had Fardella not waived his right to collaterally attack his sentence, he would still have to establish "a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact... constitut[ing] a fundamental defect which inherently results in a complete miscarriage of justice, '" in order to obtain relief under Section 2255. United States v. Bokun , 73 F.3d 8, 12 (2d Cir. 1995). Fardella argues that his attorney, Benjamin, was constitutionally ineffective because he: (i) failed to file a notice of appeal after sentencing; (ii) prevented Fardella from raising meritorious defenses; and (iii) failed to research the applicable statute of limitations and argue that the charges against Fardella were time-barred and that tolling agreements should not be applied; and (iv) failed to address deficiencies in the plea agreement and waivers in the plea agreement. In Strickland v. Washington , 466 U.S. 668 (1984), the Supreme Court established a two-part test to determine whether a lawyer's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment, " and is to be judged against an objective standard of reasonableness. Id. at 687-88. The court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, bearing in mind that [t]here are countless ways to provide effective assistance in any given case and [e]ven the best criminal defense attorneys would not defend a particular client in the same way." United States v. Aguirre , 912 F.2d 555, 560 (2d Cir. 1990) (internal quotation marks and citations omitted, alteration in original). Second, the defendant must show prejudice from the counsel's performance. Strickland , 466 U.S. at 687. The "question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Mayo v. Henderson , 13 F.3d 528, 534 (2d Cir. 1994) (internal quotation marks and citation omitted).
Whether Defense Counsel Failed to File a Notice of Appeal After Sentencing
Failure to file a notice of appeal when asked to do so would constitute ineffective assistance of counsel. See Campusano v. United States , 442 F.3d 770, 776-77 (2d Cir. 2006). Here, however, Benjamin, Fardella's attorney, has submitted an affidavit representing he went over Fardella's rights with him after the hearing, and that Fardella never directed or instructed Benjamin to file a notice of appeal. (See Benjamin Aff. ¶ 6.) Benjamin also states that he had numerous conversations with Fardella before the date of Fardella's original surrender and that, at no time, did Fardella direct or request that Benjamin file an appeal, or raise the subject of an appeal in any way. ( Id. ¶ 7.) According to Benjamin, months after Fardella surrendered and was serving his prison sentence, Fardella contacted Benjamin to request copies of various tolling agreements and Benjamin supplied those agreements, but again, never during those conversations, nor any other communications with Fardella, was the subject of an appeal raised by Fardella. ( Id. ¶ 9.) Petitioner does not proffer any explanation as to the grounds for the appeal that he allegedly had wished to file, or ...