United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE.
petitioner, James Soha, who is proceeding pro se,
and is a prisoner in custody, has moved pursuant to 28 U.S.C.
§ 2255(a) to vacate and set aside his sentence.
Petitioner Soha alleges that he received ineffective
assistance of appellate counsel, and that he is innocent of
some of the crimes of which he stands convicted. For the
reasons stated below, the petition is denied.
jury trial, petitioner Soha was convicted of three counts of
Hobbs Act extortion in violation of 18 U.S.C. § 1951,
one count of using fire to further one of the Hobbs Act
offenses in violation of 18 U.S.C. § 844(h), and one
count of conspiring with his cousins David Cain, Jr., and
Chris Cain, to participate in the affairs of a racketeering
enterprise through a pattern of racketeering activity in
violation of 18 U.S.C. § 1962(d) (“RICO
conspiracy”). In 2009, the Court sentenced petitioner
to approximately 12 years imprisonment and three years of
Second Circuit affirmed petitioner Soha's convictions.
United States v. Cain, 671 F.3d 271 (2d Cir. 2012).
The Court assumes the parties' familiarity with the facts
and prior proceedings as summarized by the Second Circuit.
The Supreme Court denied petitioner's petition for a writ
of certiorari. See 132 S.Ct. 655 (April 2, 2012).
Petitioner then filed this timely habeas corpus petition
pursuant to 28 U.S.C. § 2255(a). Dkt. No. 440.
Petitioner alleges two grounds for relief: First, he alleges
that his appellate counsel “was ineffective for failing
to raise on direct appeal that the Court constructively
amended the [I]ndictment in charging the jury that
‘property' for the purposes of a Hobbs Act
violation can be an intangible thing of value, such as the
right to pursue lawful business and the right to solicit
customers”; and second, that he is actually innocent of
the Hobbs Act and RICO conspiracy charges of which he stands
convicted. Dkt. No. 440 at p. 5.
prisoner in federal custody may move to vacate, set aside, or
correct his sentence on grounds the “sentence was
imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to
impose such a sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack.” 28 U.S.C. § 2255(a). To
prevail with such a collateral attack of a final judgment
under § 2255, a defendant must demonstrate either the
existence of a “constitutional error . . . or an error
of law or fact that constitutes a fundamental defect which
inherently results in a complete miscarriage of
justice.” U.S. v. Bokun, 73 F.3d 8, 12 (2d
Cir. 1995) (internal quotation marks omitted).
petitioner Soha is proceeding pro se, “[his]
submissions should . . . be held to less stringent standards
than formal pleadings drafted by lawyers . . . . [T]he Court
therefore construes [his] pro se pleadings liberally
and should interpret them to raise the strongest arguments
that they suggest. Still, pro se status does not
exempt a party from compliance with relevant rules of
procedural and substantive law.” Rotblut v. Ben Hur
Moving & Storage, Inc., 585 F.Supp.2d 557, 559
(S.D.N.Y. 2008) (internal quotation marks and citations
Ineffective Assistance of Appellate Counsel.
Soha first alleges that his appellate counsel was ineffective
for failing to raise on direct appeal that this Court
constructively amended the indictment in its instruction to
the jury. (Dkt. No. 440 at p. 5). To prevail on an
ineffective assistance of counsel claim, a petitioner must
satisfy the two-prong test set forth in Strickland v.
Washington, 466 U.S. 668, 687-88, 691-93 (1984), and
demonstrate that: (1) counsel's performance was
objectively deficient, and (2) the defendant was actually
prejudiced as a result. See also Bennett v. U.S.,
663 F.3d 71, 84 (2d Cir. 2011). Claims of ineffectiveness at
both the trial and appellate stages of litigation are
evaluated under the same Strickland standard.
Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001)
(“Although it was born in the context of ineffective
assistance of trial counsel, Strickland[‘s]
two-prong test applies equally to claims of ineffective
assistance of appellate counsel on a defendant's first
appeal as of right.”) (citing Evitts v. Lucey,
469 U.S. 387, 396-97 (1985)).
well-settled that counsel's “[f]ailure to make a
meritless argument does not amount to ineffective
assistance.” U.S. v. Regalado, 518 F.3d 143,
149 n. 3 (2d Cir. 2008) (alteration in original) (quoting
U.S. v. Arena, 180 F.3d 380, 396 (2d Cir. 1999)).
And “strategic choices made after thorough
investigation of law and facts relevant to plausible options
are virtually unchallengeable.” DeLuca v.
Lord, 77 F.3d 578, 588 (2d Cir. 1996) (quoting
Strickland, 466 U.S. at 690).
evaluating petitioner Soha's constructive amendment
claim, the Court finds that petitioner fails to show that his
appellate attorney's performance was deficient, such that
it fell “‘below an objective standard of
reasonableness, ' as determined by reference to
‘prevailing professional norms.'” Morales
v. U.S., 635 F.3d 39, 43 (2d Cir. 2011) (quoting
Strickland, 466 U.S. at 688). Nor has he shown that
there was “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Hill v.
Lockhart, 474 U.S. 52, 57 (1985) (quoting
Strickland, 466 U.S. at 694)
of background, “[a] constructive amendment [of the
indictment] occurs” when the evidence presented at
trial and “the district court's jury instructions
combine to ‘modify essential elements of the offense
charged to the point that there is a substantial likelihood
that the defendant may have been convicted of an offense
other than one charged by the grand jury.'”
U.S. v. Vebeliunas, 76 F.3d 1283, 1290 (2d Cir.
1996) (quoting U.S. v. Clemente, 22 F.3d 477, 482
(2d Cir. 1994)). Such amendments “are per se
violations of the fifth amendment that require reversal even
without a showing of prejudice to the defendant.”
Soha alleges the Court constructively amended the Third
Superseding Indictment in violation of the Fifth Amendment by
instructing the jury, for purposes of the Hobbs Act counts,
that “property also includes the right to pursue lawful
business, including solicitation of customers necessary to