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Perez v. United States

United States District Court, S.D. New York

May 1, 2017


          Samuel M. Braverman Fasulo Braverman & Di Maggio, LLP Bronx, New York Counsel for Movant.

          Niketh Varadaraj Velamoor Assistant United States Attorney Southern District of New York New York, New York Counsel for Respondent



         Before 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 denied.

         I. Background and Procedural History

         Perez 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. 1.)[1] 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.)

         The case proceeded to jury trial before the Honorable Marvin E. Aspen in April 2011.[2]The evidence presented at trial proved that Perez owned and operated Reliable Immigration Services (“Reliable”). (See Gov't Opp. 1.)[3] 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.)

         Among 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.)[4] 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. 447-511.)

         The 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.)

         On 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.)

         On May 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).

         IL Legal Standard

         A. 28 U.S.C. § 2255 Proceedings and Evidentiary Hearings

         28 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).

         The 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.

         B. Ineffective Assistance of Counsel

         “A 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)).

         With 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.

         With 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 ...

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