United States District Court, W.D. New York
JAMES F. LAGONA, Petitioner,
UNITED STATES OF AMERICA, Respondent.
DECISION AND ORDER
WILLIAM M. SKRETNY, UNITED STATES DISTRICT JUDGE.
before this Court is pro se petitioner James F. Lagona's
Motion to Vacate, Set Aside, or Correct his Sentence under 28
U.S.C. § 2255. (Docket No. 302.) For the reasons discussed
below, Lagona's motion is denied.
February 23, 2011, after an 11-day trial, a jury returned a
guilty verdict against Lagona on 26 counts of mail fraud and
aiding and abetting mail fraud, in violation of 18 U.S.C.
§§ 2, 1341; and one count of conspiracy to commit
mail fraud, in violation of 18 U.S.C. § 1349. (Docket
Nos. 76, 81.)
and others were involved in a scheme to sell debentures under
the names Watermark Financial Services Group and Watermark
M-One Holdings, Inc. Beginning in January 2006, commissioned
sales staff offered investment opportunities in one- or
two-year debentures that promised 10% annual interest. Among
other representations, investors were told that their
investments would fund real estate development in Maine and a
health insurance network for religious institutions. What
individuals were not told, however, was that the
“convertible debentures” they were purchasing
were unsecured loans to the Watermark entities which, before
the due date for repayment, could be converted into shares of
common stock in the company. Individuals who testified at
trial explained that, based on representations made to them,
they believed they were making a safe, guaranteed investment
with little to no risk. Between January 2006 and May 2008,
this scheme realized $6, 758, 027, but only $241, 000 was
actually invested, and only $545, 064 in principal and
interest was returned to investors.
March 20, 2013, this Court sentenced Lagona to 9 years'
imprisonment on the mail fraud counts (to run concurrent) and
1 year of imprisonment on the conspiracy count (to run
consecutive). (Docket No. 218.)
appealed his conviction and sentence to the United States
Court of Appeals for the Second Circuit, which, on October
24, 2014, denied the appeal in a consolidated summary order.
See Gane v. United States, 592 Fed.App'x 4 (2d
Cir. 2014). The Second Circuit rejected Lagona's
arguments (1) that there was insufficient evidence presented
at trial that he intended to defraud or knew about the
scheme, (2) that there was an unacceptable risk that
speculative legal theories led to his convictions, (3) that
this Court admitted impermissible hearsay evidence, (4) that
this Court erroneously instructed the jury, and (5) that his
sentence was procedurally and substantively unreasonable.
See id. at *1-8. The Second Circuit consequently
affirmed Lagona's conviction and sentence. See
id. at *8.
United States Supreme Court denied Lagona's petition for
writ of certiorari on June 8, 2015. See Lagona v. United
States, 135 S.Ct. 2828, 192 L.Ed.2d 864 (2015). Less
than one year later, on May 27, 2016, Lagona timely filed the
instant § 2255 motion, which the government
opposes. (Docket Nos. 302, 307, 310, 335.)
§ 2255 Proceedings
U.S.C. § 2255 allows federal prisoners to challenge the
legality of their sentences. That section provides, in
pertinent part, that:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that 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 sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255 (a).
a § 2255 motion is not a substitute for an appeal.
See Bousley v. United States, 523 U.S. 614, 621, 118
S.Ct. 1604, 140 L.Ed.2d 828 (1998) (“Habeas review is
an extraordinary remedy and ‘will not be allowed to do
service for an appeal.'”) (quoting Reed v.
Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 2300, 129
L.Ed. 2D 277 (1994)). Relief under § 2255 is therefore
narrowly limited, with collateral attack on a final criminal
judgment available “only for a constitutional error, a
lack of jurisdiction in the sentencing court, or an error of
law or fact that constitutes a fundamental defect which
inherently results in complete miscarriage of justice.”
Graziano v. United States, 83 F.3d 587, 589-90 (2d
Cir. 1996) (per curiam) (quoting United States v.
Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (internal quotation
marks omitted)). This narrow limitation preserves respect for
finality, allows for the efficient allocation of judicial
resources, and recognizes an aversion to retrying issues long
after they occur. See Bokun, 73 F.3d at 12
shape the narrow relief available under § 2255, two
procedural rules apply to make it more difficult for a
defendant to upset a final criminal judgment on collateral
review. See Yick Man Mui v. United States, 614 F.3d
50, 53 (2d Cir. 2010). First, the “mandate rule”
bars re-litigation of issues already decided on direct
appeal. See id.; see also Burrell v. United
States, 467 F.3d 160, 165 (2d Cir. 2006); United
States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997)
(“[I]t is well-established that issues decided on
direct appeal may not be re-litigated in the context of a
petition under § 2255.”) This includes “not
only . . . matters expressly decided by the appellate court,
but also . . . re-litigation of issues impliedly resolved by
the appellate court's mandate.” Yick Man
Mui, 614 F.3d at 53 (citing United States v. Ben
Zvi, 242 F.3d 89, 95 (2d Cir. 2001)). This rule also
bars ineffective-assistance-of-counsel claims that were
raised and resolved on direct appeal, as well as those
involving factual predicates that while not explicitly raised
on direct appeal, were impliedly rejected by the appellate
court mandate. See id. at 53-54 (citations omitted).
An exception to this rule exists for cases involving
intervening changes in the law, in which case the petitioner
“must show that there is new law which, when applied to
their claims, would result in a different disposition.”
Chin v. United States, 622 F.2d 1090, 1092 (2d Cir.
1980) (“Reconsideration [of claims previously raised on
direct appeal] is permitted only where there has been an
intervening change in the law and the new law would have
exonerated a defendant had it been in force before the
conviction was affirmed on direct appeal.”) (citing
United States v. Loschiavo, 531 F.2d 659, 664 (2d
the “procedural default” rule bars the collateral
review of claims that could have been raised on direct
appeal, unless the petitioner shows cause for failing to
raise the claims on direct review and actual
“prejudice” or actual innocence. See
Bousley, 523 U.S. at 622-23 (citations omitted); see
also Marone v. United States, 10 F.3d 65, 67 (2d Cir.
1993) (“In order to raise a claim that could have been
raised on direct appeal, a § 2255 petitioner must show
cause for failing to raise the claim at the appropriate time
and prejudice from the alleged error.”) This rule does
not apply to ineffective-assistance-of-counsel claims, which
may be brought in a § 2255 motion regardless of whether
they could have been raised, or were raised, on direct
appeal. See Massaro v. United States, 538 U.S. 500,
508-09, 123 S.Ct. 1690, 1696, 155 L.Ed.2d 714 (2003).
in § 2255 proceedings is governed by Rule 6 of the Rules
Governing Section 2255 Proceedings for the United States
District Courts. Leave of court is required to engage in
discovery, which may be granted for good cause. See
Rule 6 (a). Such discovery is conducted under the Federal
Rules of Criminal or Civil Procedure, or “in accordance
with the practices and principles of
law.” Id. The party requesting
discovery must provide reasons for the request, which must
“include any proposed interrogatories and requests for
admission, and must specify any requested documents.”
Rule 6 (b).
petitioner may also be entitled to an evidentiary hearing.
Section 2255 provides that a court shall hold an evidentiary
hearing “[u]nless the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief.” To determine whether a hearing is
necessary, the court “must review the answer, any
transcripts and records of prior proceedings, and any
[additional materials submitted by the parties].” Rule
8 (a). If a hearing is necessary, the court must appoint an
attorney to any moving party who qualifies for the
appointment of counsel under 18 U.S.C. § 3006A.
See Rule 8 (c). A hearing is generally warranted
only where the petitioner establishes a plausible claim.
See Puglisi v. United States, 586 F.3d 209, 213 (2d
Second Circuit has further described the standard for holding
a § 2255 evidentiary hearing as follows:
In ruling on a motion under § 2255, the district court
is required to hold a hearing “[u]nless the motion and
the files and records of the case conclusively show that the
prisoner is entitled to no relief.” 28 U.S.C. §
2255; see, e.g., Pham v. United States, 317
F.3d 178, 185 (2d Cir. 2003) (§ 2255 does not permit
summary dismissals of motions that present facially valid
claims). However, the filing of a motion pursuant to §
2255 does not automatically entitle the movant to a hearing;
that section does not imply that there must be a hearing
where the allegations are “vague, conclusory, or
palpably incredible.” Machibroda v. United
States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473
(1962); see, e.g., Chang v. United States,
250 F.3d 79, 85 (2d Cir. 2001). To warrant a hearing, the
motion must set forth specific facts supported by competent
evidence, raising detailed and controverted issues of fact
that, if proved at a hearing, would entitle him to relief.
See, e.g., Machibroda, 368 U.S at 494, 82
S.Ct. 510; United States v. Aiello, 814 F.2d 109,
113-14 (2d Cir. 1987).
Gonzalez v. United States, 722 F.3d 118, 130-31 (2d
petitioner bears the burden of proving entitlement to relief
under § 2255 by a preponderance of the evidence. See
Galviz Zapata v. United States, 431 F.3d 395, 399 (2d
Cir. 2005) (citing Williams v. United States, 481
F.2d 339, 346 (2d Cir. 1973)); see also Triana v. United
States, 205 F.3d 36, 30 (2d Cir. 2000).
asserts two grounds in his petition: (1) ineffective
assistance of trial counsel (id. at ¶¶
10-63); and (2) “movant's state of mind at the time
of the alleged crimes and during the trial is in question,
” which this Court interprets as challenging the
sufficiency of the evidence of Lagona's intent (Docket
No. 302, ¶¶ 64, 65). These claims are addressed
Lagona's ineffective-assistance-of-counsel claims
maintains that his trial counsel was ineffective. He claims
that trial counsel (1) failed to meet with and interview
certain witnesses (Docket No. 302, ¶¶ 12-14); (2)
failed to file a motion in limine to preclude reference to or
evidence of his religion or religious practices (id.
at ¶¶ 15-16); (3) failed to properly handle
evidence concerning Konstantinos “Kostas”
Samouilidis (id. at ¶¶ 17-23); (4) failed
to investigate Guy Gane's background (id. at
¶¶ 24-30); (5) failed to investigate or secure
documents relating to his daughter's hospitalization
(id. at ¶¶ 31-33); and (6) failed to
advise him of the government's plea offer (id.
at ¶¶ 34-38).
Sixth Amendment provides, in pertinent part, that "[i]n
all criminal prosecutions, the accused shall . . . have the
Assistance of Counsel for his defence." U.S. CONST.
amend VI. It is well established that "the right to
counsel is the right to the effective assistance of
counsel." Eze v. Senkowski, 321 F.3d 110, 124
(2d Cir. 2003) (quoting McMann v. Richardson, 397
U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed. 2D 763 (1970)).
ineffective-assistance-of-counsel claims may be brought in
this collateral proceeding under § 2255 regardless of
whether they could have been raised, or were raised, on
direct appeal. See Massaro, 538 U.S. at 508-09.
To succeed on his ineffective-assistance-of-counsel claims
and to secure reversal of his conviction on the ground of
inadequate legal representation, Lagona must satisfy both
prongs of the two-part test from Strickland v.
Washington: (1) that his counsel's performance
“fell below an objective standard of
reasonableness;” and (2) that “the deficient
performance prejudiced” him. 466 U.S. 668, 687-88, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984).
satisfy the first prong of the Strickland test,
Lagona must establish that his counsel's conduct fell
below “an objective standard of reasonableness”
under “prevailing professional norms” such that
it was “outside the wide range of professionally
competent assistance.” Id. at 688, 690. Under
this prong, the court “must ‘indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance' and be
watchful ‘to eliminate the distorting effects of
hindsight.'” Aparicio v. Artuz, 269 F.3d
78, 95 (2d Cir. 2001) (quoting Strickland, 466 U.S.
at 689). This is because “[t]here are countless ways to
provide effective assistance in any given case” and
“[e]ven the best criminal defense attorneys would not
defend a particular client in the same way.”
Strickland, 466 U.S. at 689 (internal citation
omitted). The question is ultimately “whether an
attorney's representation amounted to incompetence under
prevailing professional norms, not whether it deviated from
best practices or most common custom.” Harrington
v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 178 L.Ed.2d
satisfy the second prong of the Strickland test,
Lagona must establish that his attorney's
“deficient performance prejudiced the defense”
such that “there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different.” See
Strickland, 466 U.S. at 687, 694. The Second Circuit
normally “requires some objective evidence other than
defendant's assertions to establish prejudice, ”
Pham v. United States, 317 F.3d 182, 182 (2d Cir.
2003), because “not every error that conceivably could
have influenced the outcome undermines the reliability of the