Opinion
99-CV-0862E(F), 95-CR-156E
August 11, 2000
ATTORNEY for Nasser Gholi Solimany: Pro Se, Germantown, MD 20874.
ATTORNEYS for the USA; Joel Louis Violanti, Esq., Asst. United States Attorney, 138 Delaware Ave., Buffalo, N.Y. 14202.
MEMORANDUM and ORDER
Petitioner Nasser Gholi Solimany was convicted by a jury August 1, 1996 of having attempted to smuggle three rugs into the United States in violation of 18 U.S.C. § 545 and of having made a false statement to United States Customs Inspectors in violation of 18 U.S.C. § 1001. After resentencing and modification thereof by this Court, Solimany was sentenced to five years probation and a special assessment of $100. Presently before this Court is petitioner's motion to vacate and set aside or to correct his sentence pursuant to 28 U.S.C. § 2255. This motion will be denied.
Petitioner had appealed his original sentence of 5 years' probation, a $100 special assessment and a $2,000 fine. The appeal was dismissed by stipulation of the parties and the petitioner received the same sentence when he was re-sentenced by this Court November 5, 1998. On June 8, 1999, this Court modified the sentence so as to remit the $2,000 fine in light of petitioner's financial difficulties.
While familiarity with the facts is presumed, the relevant facts are presented herein. Petitioner attempted to cross from Canada into the United States via the Rainbow Bridge on June 12, 1995 with three rugs that he had previously purchased at a Customs auction in the United States on an export-only basis. He also made false statements to the inspectors as to the contents of his vehicle. The rugs were covered by some T-shirts that petitioner had also purchased at the auction.
Section 2255 allows a convicted federal defendant to challenge the legality of his sentence on the ground that the sentencing court was "without jurisdiction to impose [the] sentence" or that the sentence itself" was imposed in violation of the Constitution or laws of the United States, " was in excess of the maximum authorized by law" or is "otherwise subject to collateral attack." 28 U.S.C. § 2255. Although the statute refers primarily to the prisoner's "sentence" rather than to his conviction, challenges may be made under section 2255 both to sentences and to convictions. See Davis v. United States, 417 U.S. 333, 343-344 (1974).
A court can dismiss a section 2255 petition without conducting a hearing if the petition and record "conclusively show" that the petitioner is not entitled to relief. 28 U.S.C. § 2255. However, if the petition and underlying record reveal that the petitioner may be entitled to some form of relief, this Court must hold an evidentiary hearing on all of petitioner's potentially meritorious arguments. See Ciak v. United States, 59 F.3d 296, 297 (2d Cir. 1995). Inasmuch as petitioner is proceeding pro se, this Court will construe his petition liberally. See Billy-Eko v. United States, 8 F.3d 111, 117 (2d Cir. 1993) (recognizing a "judicial interest in interpreting pro se pleadings liberally").
Although prisoners file motions rather than petitions to initiate section 2255 proceedings, their motion papers are generally referred to as petitions. In the interests of conformity and convenience, this Court will refer to Solimany as "petitioner" and to his papers as a "petition.
Petitioner bases his challenge on two grounds: failure of the prosecution to turn over exculpatory material and ineffective assistance of counsel. First, petitioner argues that the prosecution failed to disclose evidence favorable to case — viz., a letter he had sent to Customs officials in Washington asking for a refund, the fact that the rugs were "[wrapped] with black plastic roll" and therefore not concealed by the T-shirts, evidence of petitioner's "prior misfortunes" with Customs auctions and statements by government agents. Brady v. Maryland, 373 U.S. 83 (1963), and its progeny hold that due process is violated if a prosecutor suppresses or otherwise withholds evidence favorable to a defendant regardless of whether the prosecutor acted in bad faith. The general focus of a Brady inquiry is whether a defendant received a fundamentally fair trial. See U.S. v. Maniktala, 934 F.2d 25, 28 (2d Cir. 1991). The first item — correspondence to and from Customs officials — could have quite easily been maintained by petitioner as a part of his business records. He has not alleged with particularity what documents respondent had that might have been favorable to his defense and how such would tend to show his innocence. A defendant alleging a Brady violation must demonstrate that the evidence was material. See LeRoy, at 618. The second item within this general claim — evidence that the contraband rugs were wrapped in black plastic — is a but awry inasmuch as plaintiff himself was able to testify as to their physical appearance and to cross-examine the prosecution's witnesses regarding such. The third item — evidence of petitioner's prior dealings and problems with Customs auctions — is not relevant to the incidents on June 12, 1995 when petitioner attempted to cross the border with the rugs in his vehicle and therefore would in no way tend to show that petitioner was innocent of smuggling and/or making false statements at that time. Again, any such would have been well known to petitioner. Finally, the statements of the government agents to which petitioner has pointed are not precise enough to show how they disaffected his right to a fair trial. Petitioner excerpts testimony from his trial before this Court and a suppression hearing before Magistrate Judge Leslie G. Foschio which he alleges shows contradictory testimony. See Motion to Vacate at 2-4. Taken out of context, the statements are perhaps somewhat unclear but under no circumstances do they show that the prosecution had withheld evidence that would be favorable to petitioner. Therefore and as regards the claim of failure to disclose exculpatory evidence, the record conclusively shows that petitioner is not entitled to relief and that his conviction was not obtained in violation of the law.
The motion to vacate was filed November 1, 1999. An Order of this Court on November 15, 1999 set the deadline for the respondent's answer as December 24, 1999. In filing its answer on January 10, 2000, the respondent was seventeen days late with neither explanation nor permission from this Court. In response petitioner filed a motion to dismiss respondent's answer based upon such tardiness. Due to the extraordinary nature of a section 2255 proceeding — and despite the seriousness and firmness of deadlines imposed by this Court —, the tardy response will be considered and this petition will be resolved on its merits.
Inherent in his Brady argument is a claim that petitioner had not properly been given his Miranda rights after he had been detained at the Rainbow Bridge. This is wholly unsupported by the evidence, has not been previously raised and this Court need not ideate some ground upon which such claim may be supported.
Evidence is not "suppressed" if the defendant "either knew" or "should have known" of the essential facts underlying the documents. See U.S. v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982). In that petitioner was the author or recipient of the documents, it is clear that he knew or should have known the facts underlying such.
Petitioner's second set of claims involves ineffective assistance of counsel. The two-part test for ineffective assistance of counsel claims is well established. First, petitioner must show that his attorney failed to provide "reasonably effective assistance" under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687 (1984). Second, petitioner must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the outcome of the case would have been different. Id. at 694. There is a strong presumption that an attorney's conduct satisfied the constitutional minimum. See United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990).
In the instant case, petitioner has claimed that his counsel, John J. Molloy, Esq., was ineffective and has pointed to a minor inconsistency in the testimony of a prosecution witness to show that witnesses had changed their testimony between the suppression hearing and the trial and also alleges that his conviction was based on testimony obtained through the use of the prosecutor's leading questions. He apparently argues that his counsel was ineffective for failing to object to the leading questions and for failing to recognize and confront the witness whose testimony at trial was slightly different from that at the suppression hearing. See Motion to Vacate at 5. At the suppression hearing before the magistrate judge, Special Agent Michael J. Szrama referred to the intent of petitioner to give the contraband carpets to Kayhan, Inc., but noted that, while he presumed it was a company, he was aware that there was also an individual named Kayhan involved. See Supression Hearing, Nov. 28, 1995, at 69. At trial, Szrama testified that petitioner had indicated that he was to give the carpets to a friend named Kayhan. Inasmuch as it appears that there is an individual and a related business entity with a similar name, there would be little reason for defense counsel to question the witness on this discrepancy. Further, the issue is tangential to those before the jury at trial — viz., did Solimany try to smuggle the carpets across the border and/or make false statements to the Customs officials? Petitioner has not pointed to a specific leading question used by the prosecution in violation of the rules of evidence. The allowance of such testimony — and the failure to object to such by counsel — would clearly be at most harmless error. This Court clearly instructed the jury that anything an attorney says in not evidence, so anything he said in the form of a leading question is not evidence. See, e.g., Trial Transcript at 571 ("I've told you, you do not get evidence from the attorney. . . .") (charge to jury). Similar instructions were given to the jurors before opening statements. Id. at 83. Petitioner has not presented any evidence that the conduct of his counsel fell below the standard of reasonably effective assistance. Even if it had, petitioner also fails the second prong of the conjunctive Strickland test inasmuch as there is not a reasonable probability that the outcome of the case would have been different had there been objections to leading questions and had the status of Kayhan as a business entity, individual or both had been clarified for the jury. In sum, the record conclusively shows that petitioner is not entitled to relief on his claims of ineffective assistance of counsel.
A section 2255 motion is an extraordinary remedy that is generally 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 a complete miscarriage of justice.'" Graziano v. United States, 83 F.3d 587, 589-590 (2d Cir. 1996) (quoting United States v. Bokin, 73 F.3d 8, 12 (2d Cir. 1995)). The alleged failure to object to the use of a leading question would have a minimal effect on a proceeding — i.e., it would not constitute a "complete miscarriage of justice.
Accordingly, this Court finds that the petition and the record conclusively show that petitioner is not entitled to relief based upon his claims and it is hereby ORDERED that petitioner's motion is denied, that his petition is dismissed and that this action shall be closed. (Furthermore, as petitioner has not made a substantial showing of the denial of a constitutional right, this Court declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253 and certifies that any appeal taken from this Order would not be taken in good faith such that an appeal taken could be in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3).)