ERIC F. MELGREN, District Judge.
In 2013, Defendant Manjur Alam pleaded guilty to one count of conspiracy to commit wire and bank fraud for his involvement in a mortgage-fraud scheme. The Court sentenced him to a prison term of 72 months, to be followed by five years of supervisory release, and ordered him to pay $258,309.21 in restitution. Alam seeks to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (Doc. 176). He asserts that his sentence is unlawful because (1) he received ineffective assistance of trial counsel in violation of the Sixth Amendment, (2) he received ineffective assistance of appellate counsel in violation of the Sixth Amendment, and (3) his right to a fair trial under the due process clause of the Fifth Amendment was violated as a result of the Government's failure to disclose victim statements under 18 U.S.C. § 3664.
Upon review, Alam's motion is denied in part, as identified below. The Court orders the parties to submit briefing on Alam's allegation that trial counsel withheld evidence from the Government.
In 2006, Alam was convicted of conspiracy to defraud the U.S. Department of Housing and Urban Development and received 12 months' probation. Between 2006 and April 2008, including while on probation, Alam developed a new fraudulent scheme. Under the scheme, unqualified buyers submitted home-loan applications containing false representations and Alam provided false supporting documentation, including letters of credit and verifications of rent. Foreclosure proceedings commenced after the buyers defaulted. The lenders bid on the properties at the sheriff's sales and then sold the properties for less than the outstanding balances.
Alam was originally indicted on March 26, 2013. On April 23, 2013, Alam and six co-defendants were charged by a ten-count superseding indictment. Roger Falk and James McIntyre with the Law Office of Roger L. Falk, P.A. represented Alam in the criminal proceedings before the Court.
Trial counsel submitted 35 objections to the draft presentence investigation report ("PSR") prepared by the United States Probation Officer ("USPO") assigned to Alam's case.
The Court held an evidentiary hearing on April 21, 2014, regarding determination of the proper amount of loss. In the briefing and at the hearing, defense counsel objected to the losses as computed in the PSR, the loss calculation method advanced by the Government, the evidence submitted by the Government in support of its calculations, and the allegedly improper inclusion of certain homes in the loss calculation.
Following Tenth Circuit precedent, the Court determined "that actual loss is the amount of money owed to each lending institution as of the dates the borrowers defaulted on their payments" and the "credit against loss is the amount each property ultimately sold for."
After reviewing the parties' arguments and evidence, the Court adopted the figures summarized by the Government in Doc. 130-1, with two reductions reflecting Alam's objections that were sustained. It determined the total amount of loss as $485,192.70 and the total offense level as 22. The Court found the amount of loss associated with each property as follows:
Amount of loss for properties considered as relevant conduct:
The Court also informed the parties that it was considering an upward variance, and directed that any objections to its memorandum include no more than five double-spaced pages and be filed by July 30, 2014. Defense counsel timely submitted a five-page response, incorporating by reference the issues raised in prior objections, memoranda, responses, and replies, and offering new arguments against a sentence above the recommended range.
On August 11, 2014, the Court held a sentencing hearing and exercised its discretion to sentence Alam to a 72-month term of imprisonment, above the Guidelines' recommended range of 46-57 months, and five years of supervisory release. The Court also ordered restitution in the total amount of $258,309.21.
David Moses of Moses & Pate, L.L.C. represented Alam in his appeal. On appeal, counsel argued that the Court utilized an erroneous loss determination methodology that resulted in a higher loss, total offense level, and recommended sentencing range, and that the Court abused its discretion in varying upward from the recommended range.
On August 14, 2015, the United States Court of Appeals for the Tenth Circuit affirmed Alam's sentence. The Tenth Circuit relied on United States v. Washington,
Proceeding pro se, Alam filed the current motion under 28 U.S.C. § 2255 on March 30, 2017. Alam's motion alleges that he received ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and that the Government violated his due process rights by failing to disclose victim statements under 18 U.S.C. § 3664. Alam attached 166 pages of background and legal argument to his motion, filed a 74-page reply to the Government's response, and filed over 100 pages of exhibits.
Title 28 U.S.C. § 2255 allows a "prisoner in custody . . . claiming the right to be released" to petition the court to vacate, set aside, or correct a sentence on various grounds, including where "the sentence was imposed in violation of the Constitution or laws of the United States."
"The Sixth Amendment guarantees a defendant the effective assistance of counsel at `critical stages of a criminal proceeding.'"
In evaluating whether counsel's representation fell below an objective standard of reasonableness, "substantial deference must be accorded to counsel's judgment."
Alam's § 2255 motion argues that he received ineffective assistance of trial counsel, he received ineffective assistance of appellate counsel, and the Government failed to disclose victim statements pursuant to 18 U.S.C. § 3664. The Court addresses each argument below.
Alam dedicates the bulk of his motion to arguing that he did not receive effective assistance from trial counsel. Generally, his allegations either attack his decision to plead guilty or counsel's actions or inactions relating to sentencing. He further contends that the cumulative effect of the representation constitutes ineffective assistance of counsel.
Several of Alam's arguments require the Court to ignore prior representations that Alam made under oath. Thus, as a preliminary matter, the Court first addresses Alam's contention that he did not voluntarily enter into the plea agreement and his request that we ignore his prior representations and statements made in connection with the plea agreement, petition to enter the plea agreement, and change of plea hearing.
"The longstanding test for determining the validity of a guilty plea is `whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'"
Alam claims that counsel threatened that Alam's wife would be indicted if he did not plead guilty, and that counsel advised him to plead guilty based on impermissible factors and without learning the facts of the case. These allegations conflict with Alam's prior representations and affirmations under oath, which he has failed to sufficiently contest.
The "colloquy between a judge and a defendant before accepting a guilty plea is not pro forma and without legal significance. Rather, it is an important safeguard that protects defendants from incompetent counsel or misunderstandings."
Until this motion, Alam repeatedly represented that he voluntarily chose to plead guilty after consultation with his attorney regarding the facts of the case. His current assertions are conclusory, unsubstantiated, and wholly incredible in light of the record. Nothing in the briefing, record, or files in this case supports Alam's claims and there is no valid, believable reason to justify a departure from his prior representations.
Alam's brief alleges that trial counsel threatened that Alam's wife would be indicted if he did not plead guilty, that pleading guilty "was an act singularly aimed at minimizing the `damage'" to his wife, and that "[b]ut for the coercion, it is a reasonable probability, if not a certainty," that he "would not have agreed to the terms of the plea agreement."
Alam's prior representations plainly state that he was not threatened or coerced. The plea agreement, signed by Alam, explicitly "acknowledges that he has read the plea agreement, understands it and agrees it is true and accurate and not the result of any threats, duress or coercion," and that he "is entering into this agreement and is pleading guilty because [he] is guilty and is doing so freely and voluntarily."
Not only do Alam's recent allegations contradict his sworn statements, but they also conflict with other allegations he makes in the same brief. Alam claims that he "agreed to plea guilty" in May 2013, and instructed counsel to negotiate a plea agreement at that time.
Alam contends that counsel failed to properly investigate the charges, review discovery, or interview him regarding the facts of the case before advising him to plead guilty. Instead, he contends that counsel advised him to plead guilty on the day he was retained based on conviction rates for federal indictments, Alam's prior conviction for similar conduct, and the potential consequences if found guilty at trial. Alam claims that but for this advice, it is reasonably probable that he would not have pleaded guilty and would have insisted on going to trial.
Alam's sworn statements, as well as the briefing and oral argument in this case, demonstrate the wholly incredible nature of his assertion that counsel never interviewed him about the facts of the case.
Alam's contention that trial counsel did not review discovery is similarly contradictory and unsupported by the briefing, record, and files in this case. Alam sometimes claims that counsel never reviewed any discovery, but at other times alleges that while counsel reviewed some discovery, he did not spend enough time reviewing discovery. The attachments submitted by Alam show, at a minimum, that his counsel reviewed at least some discovery, reviewed at least some witness statements, and obtained information relating to at least one co-defendant before Alam pleaded guilty.
Alam unpersuasively argues that his decision to plead guilty should be set aside because counsel advised that Alam likely would be found guilty at trial because of his prior conviction for similar conduct and the high conviction rate for federal crimes. Counsel also advised that Alam would likely receive a harsher sentence if found guilty at trial. Alam contends that he decided to plead guilty based on these impermissible factors. The Federal Rules of Evidence allow the presentation of evidence of prior crimes under certain circumstances; accordingly, it is reasonable to consider past crimes of a similar nature.
Alam claims that he "would likely not have agreed to the terms of the plea agreement regarding the amount of loss" had trial counsel provided him effective assistance of counsel. He cites numerous actions counsel should have taken to obtain a more favorable plea agreement.
Additionally, Alam has not alleged any "facts that would suggest that his attorney could have successfully negotiated a plea agreement" on more favorable terms, or what those terms would have been.
Alam argues that his counsel did not require the Government to prove its allegations before Alam pleaded guilty.
Alam contends that counsel advised him to plead guilty to a sentence equal to or higher than a sentence he could have received if he had gone to trial and lost. First, Alam did not plead guilty to a specific sentence.
Alam makes numerous allegations against trial counsel that he claims support his ineffective assistance of counsel claim. The briefing, files, and records in this case conclusively show that Alam is not entitled to relief on the issues decided below.
Alam claims that trial counsel allowed false allegations from the indictment to be repeated in the plea agreement, the PSR, and the Court's Sentencing Memorandum and Rule 32(h) notice. His allegations do not support a claim for ineffective assistance of counsel.
With regard to the plea agreement, Alam pleaded guilty to the allegations contained in the plea agreement and swore that the facts contained in the plea agreement are true. As discussed above, Alam cannot overcome the presumption of truth attached to these statements. His contentions relating to the PSR and Court's memorandum are discussed below.
Alam's contentions regarding allegedly false statements in the PSR are meritless. Counsel did not have control over which allegations the USPO included in the report. Still, counsel submitted 35 objections to the draft report, and filed 13 objections with the Court after the report was filed.
The defense's 30-page brief objecting to the PSR argued that the total offense level should be lower than reflected in the PSR, which included a base offense level of seven, with two upward adjustments.
Alam faults counsel for not also challenging the four-point adjustment and now denies the factual basis for the adjustment—that he recruited co-conspirators or served as a ring leader. Alam, however, admitted under oath to recruiting his co-conspirators, and co-defendants Ginyard, Dykes, Young, Pearson, Sr., and Pelz had previously represented that Alam recruited them.
That the Court quoted statements from the PSR that Alam now alleges are false similarly does not amount to ineffective assistance of counsel. In its Rule 32(h) notification, the Court identified reasons for a potential upward variance, including: (1) the seriousness of the offense, (2) the nine additional counts relating to the fraudulent scheme, (3) Alam's action in recruiting others, and (4) the fact that the offense "was committed while defendant was on probation from a conviction in this court of essentially the same conduct."
Litigants do not control the contents of the Court's orders. There are prescribed ways to communicate disagreements to the Court, and in this case, trial counsel followed the Court's instruction that objections to its memorandum be filed by July 30, 2014, and contain no more than five, double-spaced pages. Rather than rehash prior arguments, counsel incorporated the defense's prior objections and arguments by reference and utilized the limited space allowed to argue against an upward variance. Counsel's failure to object to the inclusion of immaterial facts that did not affect the total offense level or to facts Alam previously represented as true does not fall below an objective level of reasonableness.
On pages 55-67 of his brief, Alam identifies numerous alleged failures of the Court. He asserts that the Court did not rule on certain arguments and objections and that counsel failed to object to the Court's "remarkably faulty," "arbitrary," and "trivial" rulings. Much of his brief is spent arguing why the Court utilized the wrong method for calculating loss or incorrectly calculated the amount of loss. The purpose of this proceeding is not to reexamine the Court's rulings on these issues,
Trial counsel repeatedly objected to the method of calculation as well as to the amount of loss determined for each property included in the total amount of loss.
Alam argues that counsel failed to recognize and correct the Court's allegedly incorrect calculation of the amount of restitution, and due to these errors, Alam received a higher adjustment and total offense level under the Guidelines. Counsel did not act unreasonably.
Loss and restitution are not always equivalent. The calculation of total loss under the Guidelines includes consideration of losses caused not only by the conduct underlying the offense of conviction but also other "relevant conduct."
In his briefing, Alam incorrectly assumes that the amount of restitution ordered, $258,309.21, governs how many "points" are added for purposes of determining the applicable sentencing range, and attacks the calculations allegedly utilized to arrive at this number. But, it is the amount of total loss that governs the adjustment to the base offense level for purposes of sentencing—not the amount of restitution ultimately ordered.
At the time of Alam's sentencing, U.S.S.G. § 2B1.1 called for a 12-point adjustment for a loss between $200,000 and $400,000, and a 14-point adjustment for a loss between $400,000 and $1,000,000.
As discussed above, Alam's counsel objected to the specific loss calculations for each of the 13 properties included in the calculation, and made clear that Alam did not waive any of his arguments regarding sentencing. Nothing in the briefing, record, or files of this case supports Alam's claim that counsel acted unreasonably or failed to object to the Court's calculations.
A § 2255 motion provides relief to a prisoner in custody "claiming the right to be released"—it does not allow parties to challenge the proper calculation of restitution where the calculation of restitution did not also affect the prison sentence.
Alam argues that trial counsel failed to craft a more detailed argument under K.S.A. § 60-2414(k) regarding the disposition of property under Kansas law and the proper method for calculating loss. Again, much of Alam's argument seems more geared toward re-litigating the Court's findings as opposed to his counsel's failure to pursue arguments. Indeed, trial counsel repeatedly asserted arguments based on the disposition of the subject houses after the buyers defaulted, including citing directly to K.S.A. § 60-2414(k).
Alam also faults counsel for not objecting to the Government's characterization that the lenders were "required" to bid on the properties at the sheriff's sale. The record shows that the Government did not represent that the lenders were legally mandated to bid. In context, it appears that use of the term "required" by the Government meant that in order to protect their interests, the lenders needed to control the subsequent disposition of the collateral. Alam cannot show that counsel's failure to object on this ground was unreasonable.
In addition to advocating for the application of K.S.A. § 60-2414(k), counsel presented alternative arguments that would have resulted in much lower loss calculations and retained an expert to prepare a report to support one alternate argument. Ultimately, the Court adopted the Government's approach, supported by Tenth Circuit precedent,
Alam's arguments that his counsel acted unreasonably in allowing the Government to submit inadmissible hearsay to establish the amount of loss and allowing Alam's confrontation clause rights to be violated at the sentencing hearing lack merit. The Federal Rules of Evidence do not apply in sentencing, and "[t]he Supreme Court has made clear that the constitutional requirements mandated in a criminal trial as to confrontation and cross-examination do not apply at non-capital sentencing proceedings."
Alam also argues that trial counsel unreasonably agreed with the Government that neither party would be required to call their respective witnesses to the stand. According to Alam, if the Government's witness had testified, the Court would have learned that the Government's proof regarding loss relied on out-of-court statements, that these statements were unreliable (missing dates and other important details), and that no victims had submitted any claims of loss. This, according to Alam, proves that the Government's claim of total loss lacked legal foundation.
First, whether the Government's proof relied on out-of-court statements is irrelevant as the Federal Rules of Evidence do not apply at sentencing.
Third, Alam's contention that cross-examining the Government's witness would have revealed "the absence of any claim of loss submitted by the victims," rendering the Government's claim regarding the amount of loss without "legal foundation," relies upon a misunderstanding of the law. As discussed below, victims are not required to submit any "statement" or "affidavit" for purposes of determining loss, and the absence of an affidavit from the lenders does not mean that no loss occurred.
Counsel's agreement with the Government not to call their respective witnesses to the stand is a tactical decision entitled to substantial deference.
Alam alleges his right to a fair trial was violated by the Government's improper withholding of victim statements in the sentencing proceedings in violation of Brady v. Maryland,
Alam's argument that the Government withheld evidence rests on the faulty premise that the lenders had a duty to provide victim statements. Citing paragraph 10 of the plea petition, Alam asserts that the Government had an obligation to obtain victim impact statements. Paragraph 10, however, states that Alam was "informed that the court may order [him] to make restitution in compliance with 18 U.S.C. § 3663 and § 3664."
Further, nothing in the record reflects that any statements were withheld. Instead, the record suggests that the Government produced the evidence relating to loss.
Alam's assertion that the Government's failure to produce witness statements under § 3664 violates his due process rights similarly fails. "To establish a Brady violation, the defense must prove that the prosecution suppressed the evidence, the evidence would have been favorable to the accused, and the suppressed evidence was material."
Alam contends that trial counsel unreasonably and unilaterally requested continuances of the sentencing hearing. He argues that because a court may not engage in an upward variance without providing a Rule 32(h) notice, and because no Rule 32(h) notice had been issued at the time of the requests, he would not have received an upward variance had the sentencing hearing occurred as scheduled. In evaluating claims of ineffective assistance of counsel, courts must "eliminate the distorting effects of hindsight" and must view an attorney's actions "from counsel's perspective at the time."
Counsel sought two continuances. Counsel requested the first extension on January 10, 2014, 17 days before the sentencing hearing, in order to obtain an expert to dispute the amount of loss included in the draft PSR, to submit objections to the draft report, and because counsel had a previously scheduled trial on the same day as the sentencing hearing. In granting the motion, the Court found that the motion was "not made for the purpose of delay, or for any other improper motive, but [was] instead made based upon a good faith belief by defense counsel that such a continuance is necessary," and that "failure to continue the sentencing . . . would greatly prejudice[] the Defendant."
The USPO submitted the final PSR to the Court on March 28, 2014. On April 2, 2014, the Court cancelled the sentencing hearing, and after receiving the parties' briefing regarding the defense's objections to the PSR, scheduled an evidentiary hearing relating to the PSR. After ruling on the defense's objections, the Court issued a Rule 32(h) notice.
Defense counsel sought continuances to develop arguments that would reduce Alam's prison sentence and to try to obtain an agreement favorable to his client. That such an agreement did not materialize does not mean that counsel acted unreasonably in requesting continuances. Viewing counsel's actions at the time of the requests shows that counsel acted reasonably.
Further, nothing in the record suggests that the Court would not have issued a Rule 32(h) notice if the sentencing hearing had occurred as scheduled. The reasons the Court provided for varying from the sentencing guidelines were known at the time of the first request for a continuance, and Alam cannot identify any subsequent development to support his claim that the Court would not have issued a Rule 32(h) notice and engaged in an upward variance. Rather, the record and files in this case conclusively show that the result would not have been different.
The USPO reported that Alam was born in Bangladesh, has family members residing in Bangladesh, lived in Bangladesh until he moved to Wichita for college, and that his primary language is Bangla, but he is fluent in English. The report also stated that "Alam recruited sellers from his homeland of Bangladesh" as part of the fraudulent scheme.
Alam does not identify how revealing this information to the Court prejudiced him, and nothing in the Court's memorandum or in the record and files of this case suggests that Alam suffered any bias or prejudice because his ethnicity was included in the PSR. The only mention of his ethnicity by the Court appeared in a section of the Court's opinion that quoted nine paragraphs from the PSR verbatim.
Alam also faults his counsel for not objecting to the Court's reference to Alam's studies of criminal justice in college or the fact that he took Chapter 13 bankruptcy.
The Court cannot see and Alam does not explain how the Government's alleged failure to comply with Fed. R. Crim. P. 12.4 had any influence on Alam's decision to plead guilty or on the sentence he received. The purpose of Rule 12.4 "is to alert the court to the fact that a possible ground for disqualification might exist" and "to assist judges in determining whether they must recuse themselves because of a `financial interest in the subject matter in controversy.'"
The plea agreement incorrectly stated that supervisory release would be no more than three years. The PSR, however correctly identified the maximum supervisory release term to be no more than five years. Alam argues that counsel's failure to object to the inclusion of a five year term of supervisory release in the PSR constitutes ineffective assistance of counsel.
Alam does not allege that he did not knowingly enter the plea agreement on this ground. Indeed, Alam explicitly challenges his decision to plead guilty, but does not suggest that the incorrect recitation of the maximum supervisory release term in the plea agreement renders his plea invalid. Nor does he allege that he would not have pleaded guilty had the plea agreement correctly identified the maximum term of supervisory release. And, he does not allege that he wished to withdraw his guilty plea before sentencing after learning of the correct maximum supervisory release term. As Alam has not alleged that but for his counsel's alleged error he would not have pleaded guilty, he cannot satisfy the prejudice requirement of Strickland. Likewise, since Alam does not allege that he would have changed his decision to plead guilty, any error by the Court in failing to properly inform Alam of the maximum term of supervisory release is harmless.
Alam argues that even if no specific deficiency constitutes ineffective assistance of counsel, that the cumulative effect of his counsel's representation constitutes ineffective assistance of counsel. In support, he cites various alleged miscalculations relating to the amount of restitution.
Alam argues that trial counsel withheld material evidence from the Government by failing to timely provide an expert report to the Government.
Although it is referenced at the evidentiary hearing and by the Government in its response to the defendant's objections to the PSR,
The Government did not respond to this argument, and the Court is not prepared to grant, deny, or hold an evidentiary hearing on this motion until this issue is fully briefed. Accordingly, the Government has 21 days from the date of this Memorandum and Order to submit a response to this argument. Its response is limited to 10 double-spaced pages. Alam may file a reply to the Government's response within 21 days of receiving the Government's response. Alam's reply is limited to 10 double-spaced pages. Excluding evidence attached to and discussed in the parties' briefs, the Court will not consider any content extending beyond the tenth page of either party's brief.
The standard enunciated in Strickland also applies to claims of ineffective assistance of appellate counsel. Accordingly, Alam must show appellate counsel acted "objectively unreasonable" and that there is "a reasonable probability that, but for his counsel's unreasonable [actions], he would have prevailed on his appeal."
An appellate attorney "need not advance every argument, regardless of merit, urged by the appellant," but must "be available to assist in preparing and submitting a brief to the appellate court . . . and must play the role of an active advocate, rather than a mere friend of the court."
Alam's criticisms of appellate counsel predominately relate to counsel's alleged failure to pursue certain arguments. He alleges counsel should have: (1) included legal arguments based on Kansas foreclosure law, specifically K.S.A. § 60-2414(k); (2) objected to the inclusion of certain houses in the loss calculation based on incorrect facts; (3) contested the Court's consideration of inadmissible hearsay and unreliable documents in calculating the amount of loss, and pointed to other factual inaccuracies in the record that affected the loss calculation; (4) argued that Alam's confrontation clause rights were violated by the Court's reliance on documents submitted by the Government to prove the amount of loss; and (5) argued that the Court's consideration of his college classes and bankruptcy were improper.
Appellate counsel focused the appellate brief on key issues affecting Alam's prison sentence, including whether the Court adopted an incorrect loss calculation methodology, and whether the Court improperly applied an upward variance. Counsel did not unreasonably fail to pursue the arguments identified by Alam.
Alam claims that he directed appellate counsel to include an argument specifically relating to K.S.A. § 60-2414(k)'s prohibition on "second sales," and his counsel unreasonably failed to follow his instruction. A review of the attachments to Alam's motion, however, reveals that Alam told counsel that he would defer to counsel's opinion regarding what to argue on appeal.
A review of Alam's allegations confirms that counsel acted strategically in deciding not to refer to § 2414(k).
Although counsel did not cite directly to § 2414(k), counsel asserted an argument based on Kansas foreclosure law. Counsel argued that "K.S.A. 60-2401 et seq. requires that once a foreclosure judgment is granted, the collateral must be disposed of through a Sheriff's Auction in a commercially reasonable manner," that the "`Credit against Loss' is determined by the purchase price at the Sheriff's sale," which Kansas requires to be "commercially reasonable," and the "Court erred when it failed to use the foreclosure sale price, replacing it with a severely discounted price solely controlled by and unilaterally manipulated by the lending institution."
Additionally, Alam's proposed arguments appear meritless in light of Supreme Court and Tenth Circuit precedent.
Shortly before his appeal, the Supreme Court rejected an argument similar to Alam's regarding restitution under 18 U.S.C. §§ 3663A-3664. In Robers, the appellant argued for a lower restitution determination on the basis of state mortgage law principles.
In light of caselaw regarding K.S.A. § 60-2414(k), Washington, Robers, and the records and files in this case, it is clear that counsel did not act unreasonably in declining to argue that K.S.A. § 60-2414(k) prohibits a federal district court from considering a lender's disposition of property after acquiring it at a sheriff's sale.
Alam argues that several properties should not have been included in the total loss calculation because he did not act fraudulently in relation to these properties, and criticizes appellate counsel for not objecting to the inclusion of the properties in the total loss amount.
With regard to the properties that Alam admitted under oath were part of his fraudulent scheme, appellate counsel did not act unreasonably in not contesting their inclusion in the loss calculation. As discussed above, Alam has not asserted facts sufficient to overcome the "formidable barrier" and "strong presumption of verity" clothing his prior sworn statements. Further, he does not allege that he told appellate counsel that he pleaded guilty involuntarily, or otherwise provided counsel with reason to question the accuracy of his prior sworn statements.
Alam also claims that the Classen property should not have been included in the loss calculation because the co-defendant securing the loan for Classen resided at this property. The Court rejected trial counsel's argument that since a co-defendant resided at one of the several properties purchased pursuant to the fraudulent scheme that the house should be excluded from the total loss calculation. Even if the Court had accepted this argument, however, removing the loss attributed to the Classen property would not have resulted in a lower point adjustment for purposes of sentencing.
Alam faults appellate counsel for not arguing that the Court relied on inadmissible hearsay and unreliable documents in calculating the amount of loss and that the PSR contained inaccurate information regarding the proper restitution amount. As discussed above, the Federal Rules of Evidence do not apply in sentencing, and Alam's arguments regarding the proper amount of restitution are unsupported by the record or would not change the total offense level determined by the Court. As the calculation of restitution is not a proper subject for a § 2255 motion unless it also affects the total offense level, Alam cannot pursue arguments only directed at the calculation of restitution. Alam's allegations regarding the evidence submitted by the Government to support the total loss calculation are discussed in more detail above, and the Court's analysis of these issues with regard to trial counsel equally applies here.
The standard of review applicable on appeal further supports the Court's finding that appellate counsel did not act unreasonably. Unlike the standard of review for analyzing whether the Court applied the correct loss calculation method, which is subject to de novo review, the Tenth Circuit reviews a district court's factual findings under a clearly erroneous standard. Thus, the standard of review for evaluating the Court's calculation of loss is less favorable to an appellant than is the standard of review for evaluating whether the Court utilized the proper loss calculation method.
Application Note 3 to U.S.S.G. § 2B1.1 (2013) recognizes that district courts are "in a unique position to assess the evidence and estimate the loss based upon that evidence" and "need only make a reasonable estimate of the loss." It is not unreasonable for appellate counsel to focus on the issues that an appellate court is more likely to reverse, especially in light of the apparent lack of "clear error" in the record. Given the standard of review and deference afforded to the district court to make a reasonable estimate of the loss, counsel did not act unreasonably in focusing on the proper loss calculation methodology, rather than attempting to rehash objections to the Court's calculation of loss.
Alam also contends that appellate counsel failed to review one of the briefs filed by trial counsel objecting to the specific calculations of loss, and claims this is evidence of ineffective assistance of counsel.
As discussed above, Alam did not have a right to confront witnesses in conjunction with the sentencing hearing. The Court properly denied trial counsel's objection on this ground and appellate counsel acted reasonably in not contesting that ruling.
Appellate counsel considered Alam's contention that the Court improperly considered Alam's prior college classes in criminal justice and bankruptcy but disagreed that the Court improperly considered these facts. Rather, he properly informed Alam that these facts were fair for consideration.
Alam alleges that appellate counsel should have filed a reply to contest the Government's statements that the lenders were "forced to bid and outlay funds at the sheriff's sale" and to point out that the Government misquoted Robers. Alam cannot overcome appellate counsel's tactical decision that there was "no need to do a reply brief" as the "key points" had been addressed.
Counsel did not unreasonably fail to address the Government's statement that the lenders were "forced to bid" on the properties, and regardless, Alam did not suffer prejudice. Alam argues that the Government had the "burden to substantiate its claims by showing who or what `forced' the lenders to purchase the collaterals," and counsel "had a duty to hold the government to that burden."
The Court also disagrees with Alam's contention that the "government misquoted" Robers. Although the Government cited to Robers in making its argument, it did not "misquote" Robers. Appellate counsel's decision not to file a reply on this issue was not unreasonable as counsel addressed Robers in the appeal brief. Further, nothing in the Tenth Circuit's opinion or record in this case suggests Alam was prejudiced by counsel's failure to file a reply on this point as the Tenth Circuit did not rely upon or even mention Robers in its decision.
Alam's claim that he received ineffective assistance of counsel due to his counsel's alleged failure to inform him of the Tenth Circuit's denial of his appeal and failure to assist him in filing a petition for an en banc hearing is meritless. Alam admits that he received news of the Tenth Circuit's decision from another source on the day the Tenth Circuit issued its decision and that he immediately e-mailed appellate counsel regarding the decision. In response, appellate counsel e-mailed Alam stating, "[a]s I previously advised you and Asif, I am no longer in private practice," recommending Alam retain new counsel and noting that he previously "suggested some names," and apprising Alam of the next steps if he wished to request a "rehearing/hearing en banc" or seek review by the Supreme Court.
Appeal from a final decision on a motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255 is not permitted unless a circuit or district judge issues a certificate of appealability in accordance with 28 U.S.C. § 2253(c).
Alam's claims of ineffective assistance of trial counsel and appellate counsel are largely conclusory, unsupported, meritless, irrelevant, or wholly incredible in light of the record. Accordingly, Alam's motion to vacate is denied as to all claims of ineffective assistance of counsel except Alam's claim that trial counsel withheld evidence from the Government. The Court reserves judgment on Alam's claim that trial counsel acted unreasonably in withholding evidence from the Government, resulting in prejudice to Alam, and orders the parties to submit briefing on this issue. The Government is given 21 days from the entry of this Memorandum and Order to file a response on this issue. Alam is given 21 days after receipt of the Government's response to file a reply to the Government's response. Neither party's brief may exceed 10 double-spaced pages, excluding evidence attached as exhibits in support of the parties' briefs. The Court will not consider any argument or briefing extending beyond the tenth page of the parties briefs, whether included in the body of the brief or as an attachment.
Alam's claim that the Government violated his due process rights by withholding evidence in violation of Brady is predicated on a faulty understanding of the law. Further, Alam cannot satisfy any of the requirements to establish a Brady violation. Accordingly, this claim is dismissed.
