United States District Court, S.D. New York
OPINION & ORDER
KATHERINE B. FORREST UNITED STATES DISTRICT JUDGE
Fazio, Jr., currently incarcerated at F.C.I. Fort Dix, brings
a petition under 28 U.S.C. § 2255 to vacate, set aside,
or correct his sentence. Fazio was sentenced on September 13,
2012 to 135 months of incarceration and $2.5 million in
restitution and forfeiture for racketeering conspiracy under
18 U.S.C. § 1962(d); racketeering under 18 U.S.C. §
1962(c); extortion conspiracy in violation of the Hobbs Act,
18 U.S.C. § 1951; receiving unlawful labor payments in
violation of 29 U.S.C. § 186(b)(1) and (d)(2); and
conspiracy to commit money laundering in violation of the
Hobbs Act, 18 U.S.C. § 1956(b). Fazio's petition
asserts ineffective assistance of counsel at sentencing with
respect to the loss calculation as well as the restitution
and forfeiture penalties.
reasons set forth below, the petition is DENIED.
2012, John Fazio, Jr., (“Fazio” or
“petitioner”) was convicted of a number of crimes
relating to misconduct as vice president and, later,
secretary treasurer of a labor union. As the facts of this
case are laid out extensively elsewhere, (see, e.g.,
ECF Nos. 125-30, Trial Tr.; ECF No. 15, Mem. of Law of the
United States of America in Opp'n to Pet'r John
Fazio's Pet. Pursuant to 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct His Sentence, at 3-5), the Court
provides only an overview of those aspects most relevant to
this § 2255 petition.
his uncle, Anthony Fazio, Sr., and cousin, Anthony Fazio,
Jr., petitioner used his position as the leader of a union to
extort payoffs and secure illegal kickbacks from union
employers. (Presentence Investigation Report
(“PSR”) ¶ 32.) To secure these payments,
Fazio threatened employers with labor disruptions and/or
physical harm. (Id. ¶¶ 32, 39.) The
defendants also participated in a money laundering scheme to
hide these payments. (Id. ¶ 33.) The loss to
the union membership was approximately $2.5 million, and the
value of the prohibited payments and theft of union funds
exceeded that amount. (Id. ¶¶ 40, 48.)
trial, Fazio was represented Gerald McMahon and Mathew Mari.
At sentencing, he was represented by Ronald Fischetti. The
Court imposed a sentence of incarceration for 135 months, as
well as restitution and forfeiture of $2, 500, 000. On his
direct appeal to the Second Circuit, Fazio challenged,
inter alia, this Court's sentence-including its
calculation of the loss amount-as procedurally unreasonable.
The Second Circuit rejected the appeal on all grounds.
United States v. Fazio, 770 F.3d 160, 170 (2d Cir.
asserts that ineffective assistance of counsel resulted in a
longer sentence than he would have otherwise received.
(See ECF No. 9, Am. Mot. to Vacate Sentence by
Person in Fed. Custody Pursuant to 28 U.S.C. § 2255.) To
prevail on an ineffective assistance claim, Fazio “must
[first] show that counsel's representation fell below an
objective standard of reasonableness, ” as measured
against “prevailing professional norms.”
Strickland v. Washington, 466 U.S. 668, 688 (1984).
In addition, he must demonstrate that counsel's
“deficient performance prejudiced the defense, ”
id. at 687, meaning that “there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different, ” id. at 694.
section 2255 petition cannot be used to ‘relitigate
questions which were raised and considered on direct
appeal.'” Reese v. United States, 329
Fed.Appx. 324, 326 (2d Cir. 2009) (quoting United States
v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001)). The law of
the case doctrine requires, inter alia, a trial
court to “follow an appellate court's previous
ruling on an issue in the same case.” United States
v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002) (citing
United States v. Uccio, 940 F.2d 753, 757 (2d Cir.
1991)). This rule-commonly referred to as the
“mandate rule”-“compels compliance on
remand with the dictates of the superior court and forecloses
relitigation of issues expressly or impliedly
decided by the appellate court.” United States v.
Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001) (emphasis in
original) (quoting United States v. Bell, 5 F.3d 64, 66 (4th
“restitution orders cannot be challenged through a
habeas petition because a monetary fine is not a sufficient
restraint on liberty to meet the ‘in custody'
requirement [of 28 U.S.C. § 2255(a)], even if raised in
conjunction with a challenge to a sentence of
imprisonment.” United States v. Boyd, 407
Fed.App'x 559, 560 (2d Cir. 2011) (internal quotation
omitted). The same goes for orders of forfeiture.
Kaminski v. United States, 339 F.3d 84, 87 (2d Cir.
2003) (“§ 2255 may not be used to bring collateral
challenges addressed solely to noncustodial punishments . . .
because the language of § 2255 is best read as requiring
a challenge to custody . . . [and] collateral challenges have
historically been permitted through habeas only when an
interest as compelling as freedom from custody is at
stake.”) This is the case whether or not these claims
are brought in conjunction to a challenge to a custodial
sentence. Id. at 89 (“Habeas lies to allow
attacks on wrongful custodies. There is therefore no reason
why the presence of a plausible claim against a custodial
punishment should make a noncustodial punishment more
amenable to collateral review than it otherwise might
petitioner argues that his counsel failed to contest the
entirety of the loss calculation and certain forfeiture and
restitution issues at his sentencing. (Am. Mot. at 2.)
Petitioner's claim fails under the first prong of
Strickland: the record amply demonstrates that his
counsel's conduct was within the range of reasonableness.
Even if that were not the case, the claim would fail under
the second prong of Strickland because petitioner
has failed to demonstrate that his counsel's alleged
failure resulted in prejudice.
the loss calculation argument, Fazio says his counsel was
ineffective for failing to: (1) challenge the
Government's documentary evidence; (2) seek a
Fatico hearing; and (3) seek a Studley
determination as to when Fazio's participation in the
conspiracy began. However, on appeal, Fazio challenged the
procedural reasonableness of the Court's loss
calculation. The Second Circuit ruled that this argument had
no merit. United States v. Fazio, 770 F.3d 160, 170
(2d Cir. 2014). Additionally, this Court recently adjudicated
a habeas claim by Fazio's uncle and co-defendant, Anthony
Fazio, Sr., and ruled that the same money laundering loss
calculation was accurate-the “two-point enhancement for
the obstruction of justice charge [the subject of Fazio's
petition] was lawfully applied.” Fazio v. United
States, 2017 WL 4232574, at *6 (S.D.N.Y. Sept. 22,
2017). The law of the case doctrine thus bars this Court from
entertaining relitigation of the loss calculation's
accuracy. As such, it could not have been unreasonable for
Fazio's counsel to fail to take the steps Fazio outlines
in response to the loss calculation. “The failure to
include a meritless argument does not ...