United States District Court, S.D. New York
CLOVER A. PEREZ, Movant,
UNITED STATES OF AMERICA, Respondent.
M. Braverman Fasulo Braverman & Di Maggio, LLP Bronx, New
York Counsel for Movant.
Varadaraj Velamoor Assistant United States Attorney Southern
District of New York New York, New York Counsel for
MEMORANDUM & OPINION
S. BRODERICK UNITED STATES DISTRICT JUDGE.
me is the motion of Clover A. Perez, pursuant to 28 U.S.C.
§ 2255, to vacate, set aside, or correct her sentence on
the basis that she was denied the effective assistance of
counsel before trial, at trial, and during sentencing.
Because the record conclusively establishes that Plaintiffs
Sixth Amendment rights were not violated, the motion is
Background and Procedural History
was initially charged by criminal complaint filed on November
2, 2009 with one count of knowingly making false statements
in an application for legal permanent residency, and one
count of failing to disclose her preparation of a false
application for immigration benefits. (See Doc.
On December 3, 2009, a grand jury returned a three count
indictment charging Perez with mail fraud in violation of 18
U.S.C. § 1341, knowingly making false statements in an
application for legal permanent residency in violation of 18
U.S.C. § 1546(a), and “failing to disclose her
role in preparing baseless applications for lawful United
States resident status, in violation of Title 8, United
States Code, Section 1324c(e)(1).” (See Doc. 7
at 6.) A superseding indictment was returned on April 15,
2010, and added two charges against Perez: bank fraud in
violation of 18 U.S.C. § 1344 and aggravated identity
theft in violation of 18 U.S.C. § 1028A. (See
Doc. 14.) At that point, Perez was represented by retained
counsel Bernard Udell. (See Dkt. Entry Nov. 5,
2009.) At the Government's request, (see Doc.
23), a Curcio hearing was held before the Honorable
Richard M. Berman in October 2010, (see Dkt. Entry
Oct. 19, 2010), after which Udell was relieved and Perez
retained Xavier R. Donaldson as defense counsel.
(See Doc. 26.)
case proceeded to jury trial before the Honorable Marvin E.
Aspen in April 2011.The evidence presented at trial proved that
Perez owned and operated Reliable Immigration Services
(“Reliable”). (See Gov't Opp.
Perez would tell clients of Reliable that they were eligible
for lawful permanent resident status regardless of their
actual eligibility. (See Id. 2.) With the assistance
of an employee, Sophia McIntosh, Perez filed fraudulent
applications for permanent residency on clients' behalf,
without their knowledge, sometimes forging their signatures,
while charging clients up-front and monthly fees. (See
Id. 2-3.) Perez also used the name and identifying
information of Eugenia Scott, a client, without Scott's
permission, to obtain credit cards and loans, which Perez
used for personal expenses. (See Id. 5.)
the witnesses at trial were three victims who testified that
Perez, without their knowledge, falsified information about
them and forged their signatures in applications for legal
permanent residency under an amnesty program for which they
were ineligible. (Trial Tr. 182- 242, 248-316,
518-68.) This amnesty program was the so-called
“LULAC program, ” which was the result of the
settlement of a class action brought by the League of Latin
American Citizens and was open only to class members who had
entered the United States before January 1, 1982.
(Id. 36-37.) The three victims for whom Perez
prepared fraudulent LULAC applications had all entered the
United States in the late 1980s or 1990s and were plainly
ineligible for such relief. (Id. 183, 248, 519.)
Each victim paid Perez several thousand dollars to prepare
these futile applications. (Id. 188-90, 288, 531.)
McIntosh also testified as a cooperating witness about her
own role in preparing fraudulent applications on Perez's
behalf. (Id. 317-447.) Scott testified that Perez
prepared a false application on her behalf and opened bank
accounts in her name without authorization. (Id.
sole defense witness was a Government agent who was called
briefly to impeach McIntosh's testimony. (Id.
584-88.) The defense's general theme was to attack the
credibility of the Government's witnesses. Defense
counsel argued that the purported victims provided the false
information contained in their applications, that McIntosh
bore responsibility for any forged signatures, and that Scott
had consented to Perez's use of her name to obtain
credit. (See Id. 621-52.) On April 25, 2011, the
jury convicted Perez on all five counts of the superseding
indictment. (Dkt. Entry Apr. 25, 2011.)
January 27, 2012, Judge Aspen sentenced Perez to 121
months' imprisonment followed by five years of supervised
release and ordered that she pay $541, 191 in restitution.
(Doc. 66.) Perez timely appealed, arguing that the jury was
improperly instructed and that Judge Aspen erred in applying
certain sentencing enhancements, calculating the amount of
loss, and ordering restitution. On May 28, 2013, the Second
Circuit affirmed the conviction and sentence in all respects
in a summary order. (See Doc. 72.) Perez is
presently serving her sentence and has an estimated release
date of February 5, 2020. (Gov't Opp. 12 n.5.)
28, 2014, Perez filed a pro se motion to vacate her sentence
pursuant to 28 U.S.C. § 2255. (Doc. 73.) In her motion,
Perez asserts that Donaldson provided ineffective
representation on various grounds, including by: (1) failing
to investigate or challenge Perez's competency to stand
trial or her inability to appreciate her a plea offer; (2)
failing to pursue a plea agreement; (3) preventing Perez from
testifying; (4) failing to call additional Reliable clients
as defense witnesses or present certain documentary evidence
purportedly favorable to Perez; (5) failing to request a
Fatico hearing to establish the amount of loss at
sentencing; and (6) failing to argue for a sentencing
variance based upon Perez's allegedly diminished
competency and mental state. (See id.) By Order
filed on June 12, 2014, I directed the Government to respond
to Perez's motion, (see Doc. 74), and it did so
on September 15, 2014, (see Doc. 77). I then ordered
Perez to sign a waiver of the attorney-client privilege so
that Donaldson could provide an affidavit in response to
Perez's allegations of ineffective assistance of counsel.
(See No. 14-CV-3995, Doc. 8.) Perez timely provided
a waiver on October 20, 2014, (No. 14-CV-3995, Doc. 11), and
Donaldson thereafter submitted a sworn affidavit responding
to Perez's allegations, (Doc. 81-1). After I denied
Perez's request for court-appointed counsel, (No.
14-CV-3995, Doc. 12), Perez retained counsel and ultimately
filed a reply memorandum of law along with seventeen new
evidentiary exhibits, including affidavits from Perez, her
mother, and her son, (No. 14-CV-3995, Doc. 17).
28 U.S.C. § 2255 Proceedings and Evidentiary
U.S.C. § 2255 authorizes any prisoner in custody under
sentence of a federal court “claiming the right to be
released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States .
. . [to] move the court which imposed the sentence to vacate,
set aside or correct the sentence.” 28 U.S.C. §
2255(a). Unless the motion, case files, and record
“conclusively show that the prisoner is entitled to no
relief, ” I must “grant a prompt hearing”
and make findings of fact and reach conclusions of law
regarding the issues raised in the motion. Id.
§ 2255(b). “To warrant a hearing, the motion must
set forth specific facts supported by competent evidence,
raising detailed and controverted issues of fact that, if
proved at a hearing, would entitle [the movant] to
relief.” Gonzalez v. United States, 722 F.3d
118, 131 (2d Cir. 2013). Where the asserted basis for relief
is ineffective assistance of counsel, a hearing is required
“in cases where the petitioner has made a
‘plausible claim.'” Morales v. United
States, 635 F.3d 39, 45 (2d Cir. 2011) (internal
quotation marks omitted). The movant's assertions in
support of the motion need not be assumed credible if they
are contradicted by the record. See Puglisi v. United
States, 586 F.3d 209, 214 (2d Cir. 2009).
statute does not require that the “movant must always
be allowed to appear in a district court for a full hearing
if the record does not conclusively and expressly belie his
claim, no matter how vague, conclusory, or palpably
incredible his allegations may be.” Machibroda v.
United States, 368 U.S. 487, 495 (1962). Therefore, if a
§ 2255 motion is “not so clearly bereft of merit
as to be subject to dismissal on its face, ” I retain
the discretion to supplement the factual record as necessary
through an appropriate procedure, whether by a full-fledged
evidentiary hearing with live testimony or through limited
written submissions. Chang v. United States, 250
F.3d 79, 85 (2d Cir. 2001). A testimonial hearing is not
necessary when it would not succeed in proving additional
material facts. See Fermin v. United States, 859
F.Supp.2d 590, 602 (S.D.N.Y. 2012). Where the movant alleges
ineffective assistance of counsel, the submission of a
responsive affidavit from trial counsel may suffice to
satisfy the hearing requirement of § 2255(b) if the
presentation of additional evidence “would not offer
any reasonable chance of altering [the court's] view of
the facts.” Chang, 250 F.3d at 86.
Ineffective Assistance of Counsel
defendant in criminal proceedings has a right under the Sixth
Amendment to effective assistance from his attorney at all
critical stages in the proceedings, which include entry of a
plea of guilty and sentencing.” Gonzalez, 722
F.3d at 130 (citations omitted). “The question of
ineffective assistance is determined by a two-part test. A
defendant must demonstrate ‘(1) that counsel's
performance was so unreasonable under prevailing professional
norms that counsel was not functioning as the counsel
guaranteed the defendant by the Sixth Amendment; and (2) that
counsel's ineffectiveness prejudiced the defendant such
that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.'” United
States v. Habbas, 527 F.3d 266, 273 (2d Cir. 2008)
(quoting United States v. Gaskin, 364 F.3d 438, 468
(2d Cir. 2004)).
respect to the first prong-deficient performance-the inquiry
is “highly deferential” and requires that
“every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct
from counsel's perspective at the time.”
Strickland v. Washington, 466 U.S. 688, 699 (1984).
The petitioner seeking relief must overcome the “strong
presumption” that counsel's performance fell
“within the wide range of reasonable professional
assistance, ” i.e., that counsel's conduct
reflected reasonable strategic choices. Id.
regard to the second prong-prejudice-a reasonable probability
of a different outcome means a “probability sufficient
to undermine confidence in the outcome.” Id.
at 694. If the ineffective claim is made after a trial, a
court should consider the totality of the evidence presented
at trial. See Id. at 695. “With respect to a
claim of ineffective assistance in sentencing, the defendant
must show a reasonable probability that, but for
counsel's substandard performance, he would have received
a less severe sentence.” Gonzalez, 722 F.3d at
130. Second Circuit precedent generally ...