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Pinhasov v. United States

United States District Court, S.D. New York

January 22, 2018

ALIK PINHASOV, Petitioner,

          OPINION & ORDER


         The Court has reviewed petitioner Alik Pinhasov's pro se petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on grounds of ineffective assistance of counsel.[1] (ECF No. 30; 16-cv-7349, ECF No. 1.) On September 1, 2015, petitioner pled guilty to one count of wire fraud in violation of 18 U.S.C. § 1343. (Plea Tr. at 30:24.) On January 22, 2016, the Court sentenced petitioner to a term of 48 months' imprisonment to be followed by three years of supervised release, and on April 11, 2016, the Court ordered petitioner to pay $2, 314, 438.40 in restitution to the victims of his offense.

         On January 26, 2016, petitioner appealed his conviction. On June 7, 2016, while his appeal was still pending, petitioner filed a pro se § 2255 petition. On June 10, 2016, this Court denied that petition as premature and directed petitioner to “re-file an appropriate § 2255 petition following the adjudication of his direct appeal, within the time prescribed by 28 U.S.C. § 2255(f). (ECF No. 29 at 2.) On August 31, 2016, petitioner moved to stay his appeal pending this Court's determination of his § 2255 petition. (16-cv-7349, ECF No. 3 at 3.) The Second Circuit granted that motion on September 1, 2016 and petitioner filed the instant § 2255 petition with this Court on September 20, 2016. (ECF No. 30).

         Petitioner argues that he received ineffective assistance of counsel because his counsel (1) misinformed him about his sentencing exposure and (2) failed to investigate the evidence against petitioner with regards to the loss amount. These arguments are wholly without merit, and for the reasons set forth below, the petition is DENIED.

         I. BACKGROUND

         Between 2012 and October 2014, petitioner perpetrated a fraud scheme against diamond wholesalers in New York, NY. (Presentence Investigation Report (“PSR”) ¶ 7.) Petitioner would obtain diamonds on consignment, assuring sellers that he had a buyer and would return in a matter of hours or days with the money or, if the sale fell through, the diamonds themselves. (Id. ¶ 8.) Most often, petitioner returned neither the diamonds nor any payment. (Id.) If a seller pressed petitioner for money, he wrote checks on bank accounts with insufficient funds- and, in some cases, when his victims went to cash those checks, they not only received no money, they were also fined by the bank for the bounced check. (Id. ¶ 8; ECF No. 22, Sen. Tr. at 39:1-5.) Petitioner pawned some diamonds and used the money to make small, partial payments on debts he owed. (PSR ¶ 9.) In at least a few cases, he also used that money to initiate additional fraudulent transactions by making “down payments” to wholesalers in an effort to obtain more diamonds. (Id.) Moreover, when wholesalers demanded payment, petitioner fraudulently represented that he himself was being defrauded and was the victim of nonpayment by others. (Id.) All told, petitioner caused eight diamond sellers to suffer losses totaling $2, 610, 071; at least one of his victims lost his business due to petitioner's fraud. (Id. at ¶ 13.)

         On March 16, 2015, petitioner was arrested; on March 26, 2018, he was released on bail. He was assigned an attorney from the Criminal Justice Act Panel, Ms. Julia Gatto. On September 1, 2015, petitioner pled guilty pursuant to a plea agreement to one count of wire fraud. (Plea Tr. at 30:24.) During the plea allocution, the Court informed petitioner of his rights, such as, inter alia, the right to a trial by a jury of twelve people and to representation by an attorney at that trial. (Id. at 9-10.) As particularly relevant here, the Court spent some time discussing petitioner's sentencing exposure. Petitioner represented-under oath- that he understood that nobody, including his lawyer, could know what his sentence would be, because that decision was left to the Court. (Id. at 26:18-25.) Petitioner stated that he understood that the statutory maximum for his offense was twenty years, (id. at 15:4-7), and that the Court was not bound by the plea agreement's guidelines sentence stipulation to 33-41 months, (id. at 17:11-20:21). Additionally, the Court confirmed that petitioner signed the plea agreement voluntarily, and that he was not forced or coerced into doing so. (Id. at 25:23-25.)

         Between petitioner's plea hearing and sentencing, he violated the terms of his release several times; as a result, the Court warned him that it was considering immediate remand if a period of incarceration were imposed. (ECF No. 16, Jan. 18, 2016 Order.) His violations included three curfew violations and a positive test for marijuana; pretrial services also received a report that he attempted to conduct business in the diamond district. (Sen. Tr. at 23:5-17.) At sentencing on January 22, 2016, the Court explained that its own guidelines calculation was also 33-41 months, but-early in the hearing and citing United States v. Cavera, 550 F.3d 180 (2d Cir. 2008)-it informed the parties that it was “seriously consider[ing] an upwards variance from the guidelines” and was “not actually thinking of a guidelines sentence.” (Sen. Tr. at 4:9-11; id. at 13:12-15.)

         This Court sentenced petitioner to 48 months' incarceration, followed by three years of supervised release. (Id. at 44:13-16.) The Court acknowledged the upward variance, and explained that while the loss amount drives a guidelines calculation, the Court considered a number of factors under § 3553(a), including: the duration of petitioner's illegal activity; the number of diamonds involved; the violation of his victims' trust; the disastrous impact of his fraud on his victims, including one who lost his business; the Court's perceived risk of petitioner reoffending; and petitioner's high number of bail violations, (id. at 32-36; id. at 45). The Court focused in particular on the brazenness and deliberateness of petitioner's crime, and it went through each step of his fraud in detail. (Id. at 37-45.) On April 11, 2016, this Court entered an Order of Restitution in the amount of $2, 341, 438.40 payable to petitioner's victims. (ECF No. 24, Order of Restitution.)


         No evidentiary hearing is necessary in this action. The combined submissions of the parties provide a sufficient basis upon which to deny the petition, and the Court concludes that a full testimonial evidentiary hearing would not offer any reasonable chance of altering its views on the facts alleged by Pinhasov, including the details added in his petition. See Chang v. United States, 250 F.3d 79, 86 (2d Cir. 2001) (noting that the court need not hold an evidentiary hearing where the combined submissions of the parties provide a sufficient basis to deny the petition).

         A. Pro Se Petitions

         The Court applies a “liberal construction of [pro se] pleadings, which should be read ‘to raise the strongest arguments that they suggest.'” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)). Nevertheless, a Court may dismiss a petition under § 2255 without holding an evidentiary hearing if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir. 2013) (quoting 28 U.S.C. § 2255); see also Fed. R. Governing Sec. 2255 Proceedings for the U.S.D.C. 4(b) (“If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.”).

         B. Ineffective ...

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