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Szura v. United States

United States District Court, W.D. New York

June 26, 2018

KEVIN SZURA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          DECISION AND ORDER

          HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE

         Petitioner Kevin Szura seeks relief pursuant to 28 U.S.C. § 2255. For the reasons stated below, Petitioner's motion is denied.

         BACKGROUND

         On 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.

         Petitioner 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.

         In 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.[1]

         DISCUSSION

         The Court considers each of Petitioner's arguments in turn.[2]

         1. Petitioner's sentencing-related arguments

         “To 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. 687-90 (1984)).[3]

         Petitioner 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”).

         Further, 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 No. 88).

         Petitioner's first claim of ineffective assistance of counsel is, therefore, without merit.

         2. Petitioner's claim ...


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