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United States v. Soha

United States District Court, W.D. New York

May 22, 2017

UNITED STATES OF AMERICA,
v.
JAMES SOHA, a/k/a JAMIE SOHA, Defendant.

          DECISION AND ORDER

          HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE.

         The 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.

         BACKGROUND

         After a 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 supervised release.

         The 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.

         DISCUSSION

         A 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).

         Because 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 omitted).

         I. Ineffective Assistance of Appellate Counsel.

         Petitioner 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)).

         It is 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).

         After 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)

         By way 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.” Id.

         Petitioner 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 conduct ...


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