United States District Court, S.D. New York
Werner Brudi, Plaintiff, Pro se, Philipsburg, PA.
For United States of America, Defendant: Arlo Devlin-Brown, U.S. Attorney's Office, S.D.N.Y. (Chambers Street), New York, NY.
OPINION AND ORDER
J. PAUL OETKEN, United States District Judge.
Werner Brudi petitions this Court pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. (Dkt. No. 1 (" Pet.").) Brudi challenges the legality of his sentence entered in United States v. Brudi, No. 11 Cr. 858 (JPO) (S.D.N.Y. Nov. 27, 2012) (amended judgment filed March 20, 2013), aff'd, 536 F.App'x 131 (2d Cir. 2013), following his plea of guilty to charges of mail and wire fraud. Brudi contends that his counsel provided ineffective assistance at both the guilt and sentencing stages of the proceedings. For the reasons that follow, Brudi's petition is denied.
Werner Brudi was charged by information with two counts of wire fraud pursuant to 18 U.S.C. § 1343, and two counts of mail fraud pursuant to 18 U.S.C. § 1341. (Information, United States v. Brudi, No. 11 Cr. 858 (JPO) (" Brudi I "), Dkt. No. 11 (Oct. 7, 2011).) The information describes the underlying illegal conduct:
From September 2004 to August 2010, Brudi engaged in a scheme to defraud members of the investing public. (Id. ¶ 1.) He made false representations to potential investors to induce them to give him money to invest in the stock market on their behalf. These false representations included, for example, claims that he would earn an above-market rate of return, and that the investments would remain liquid owing to his day-trading strategy. Brudi made these false representations orally and in letters mailed to investors. (Id. ¶ 2.)
Brudi raised at least $726, 000 through his fraudulent statements, some of which he received by wire transfer. (Id. ¶ ¶ 3-4.) He deposited only a fraction of the money into a brokerage account; he used the remaining funds for personal expenses such as monthly rent and dental bills. (Id. ¶ 3.) To conceal his scheme, Brudi provided " account statements" to the victim investors in which he described market conditions and set forth fictitious inflated balances of the victims' investment accounts. (Id. ¶ 5.) He also made small " lulling payments" to the victims to induce them to invest additional funds. (Id. ¶ 6.) In late 2009, Brudi began refusing requests by investors to withdraw their money; soon thereafter, he began informing investors that all of their money was gone. (Id. ¶ 7.)
Brudi pleaded guilty to all four counts. (Transcript of Plea, Brudi I, Dkt. No. 15 (May 10, 2012).) The Probation Office prepared a Presentence Investigation Report (" PSR") recommending a Sentencing Guidelines range of 33-41 months' imprisonment and three years' supervised release. (PSR ¶ 6, 63.) The Court agreed with the PSR's Guidelines calculation and imposed a below-Guidelines sentence of 24 months' imprisonment and two years' supervised release. ( Brudi I, Dkt. No. 21 (Nov. 27, 2012).) Brudi appealed his sentence on the grounds that it was procedurally and substantively unreasonable. The Second Circuit affirmed in an unpublished summary order. See United States v. Brudi, 536 F.App'x 131 (2d Cir. 2013).
Brudi now seeks post-conviction relief under 28 U.S.C. § 2255. He contends that defense counsel was ineffective during both the guilt and sentencing stages of the proceedings. First, Brudi argues that counsel was ineffective when, prior to Brudi's guilty plea, he did not instruct Brudi, who is not a United States citizen, that he would be deported as a result of his conviction. (Pet. at 5.) Second, he contends that counsel was ineffective in failing to provide him the Government's sentencing submission until the day before sentencing and in not giving him the defense's submission until a week before sentencing. (Id. at 6.) Third, he argues that counsel was ineffective in failing to raise various objections to the Government's position at the sentencing hearing--objections that Brudi alleges counsel " avowed" he would make. (Id. at 8-13; Dkt. No. 7 (" Reply") at 1.)
II. Legal Standard
A. 28 U.S.C. § 2255
A prisoner in federal custody may bring a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the grounds that it is in violation of the Constitution or United States law, was imposed without jurisdiction, exceeds the maximum penalty, or is otherwise subject to collateral attack.
In ruling on a § 2255 motion, the court must hold a hearing " [u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). " However, the filing of a motion pursuant to § 2255 does not automatically entitle the movant to a hearing; that section does not imply that there must be a hearing where the allegations are 'vague, conclusory, or palpably incredible.'" Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir. 2013) (quoting Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962)). To warrant a hearing, a petitioner's " application must contain assertions of fact that [the] petitioner is in a position to establish by competent evidence." United States v. Aiello, 814 F.2d 109, 113 (2d Cir. 1987). " Whether there is a genuine issue of material fact depends on the sufficiency of those ...