United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE
Kevin Szura seeks relief pursuant to 28 U.S.C. § 2255.
For the reasons stated below, Petitioner's motion is
September 14, 2016, Petitioner pled guilty to one count of
conspiracy to possess with intent to distribute, and to
distribute, controlled substances, in violation of 21 U.S.C.
§ 846; and one count of money laundering conspiracy, in
violation of 18 U.S.C. § 1956(h). Several months later,
the Court sentenced Petitioner to concurrent sentences of 34
months' imprisonment on each count. Petitioner did not
file a notice of appeal.
now seeks to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. Docket No. 103. Petitioner
makes two claims for relief. First, he argues that his
attorney failed to “either file a sentencing memorandum
or place on the record objections to the enhancement
Petitioner received for conduct that constitutes the
Operation of a Money Transmitting Business (i.e., the use of
Bitcion [sic]).” Id. at 1. Second, Petitioner
argues that his attorney failed “to file a direct
appeal as directed.” Id.
response to Petitioner's second claim, the Court directed
Petitioner's former counsel, Dominic Saraceno, Esq., to
file an affidavit stating, among other things, whether
Petitioner asked him to file a notice of appeal. Mr. Saraceno
has filed an affidavit stating that he has “no
correspondence from the [Petitioner] asking [him] to file an
appeal”; that he “received no telephone calls
from the [Petitioner] or his family members asking [Mr.
Saraceno] to file an appeal”; that “there are no
notes [in counsel's file] indicating that the
[Petitioner] wanted to file an appeal”; that Petitioner
“did not make any inquiries to [Mr. Saraceno] about
filing an appeal”; and that, had Petitioner directed
Mr. Saraceno to file a notice of appeal, he would have done
so. Docket No. 107 ¶¶ 3-7.
Court considers each of Petitioner's arguments in
Petitioner's sentencing-related arguments
support a claim for ineffective assistance of counsel,
[P]etitioner must demonstrate that his trial counsel's
performance ‘fell below an objective standard of
reasonableness,' and that he was prejudiced by
counsel's deficient acts or omissions.” Johnson
v. United States, 313 F.3d 815, 817-18 (2d Cir. 2002)
(quoting Strickland v. Washington, 466 U.S. 668.
has not demonstrated that his counsel was in any way
deficient. Petitioner contends that counsel should have
objected to “the enhancement Petitioner received for
conduct that constitutes the Operation of a Money
Transmitting Business, (i.e., the use of Bitcoin).”
Docket No. 103 at 1. But Petitioner's Guidelines
calculation did not include such an enhancement. To be sure,
Petitioner's base offense level was enhanced two levels,
pursuant to Guideline § 2S1.1(b)(2)(B), because
Petitioner was convicted of a money laundering offense-that
is, a violation of 18 U.S.C. § 1956. That enhancement,
however, would have applied to Petitioner's Guidelines
calculation regardless of whether counsel objected. Counsel
could not, then, have been deficient for failing to object to
this enhancement because any such objection would have been
frivolous. See United States v. Caputo, 808 F.2d
963, 967 (2d Cir. 1987) (holding that counsel
“exercised sound professional discretion by declining
to make a plainly frivolous suppression motion”).
Petitioner's argument that counsel failed to file a
sentencing memorandum has no support in the record. Counsel
did file a sentencing memorandum (Docket No. 89), as well as
objections to the Pre-Sentence Investigation Report (Docket
first claim of ineffective assistance of counsel is,
therefore, without merit.
Petitioner's claim ...