The opinion of the court was delivered by: Simandle, Chief District Judge:
This matter comes before the Court on Petitioner John Sgarlat's petition to vacate, set aside, or correct sentence, filed pursuant to 28 U.S.C. § 2255, on the grounds of ineffective assistance of counsel and new exonerating evidence. [Docket Item 1.] Petitioner, a federal prisoner who pled guilty to conspiracy to commit securities and wire fraud ("Count One"), and money laundering ("Count Two"), argues that his successive attorneys, Harold Shapiro, Esq., and Simon Kogan, Esq., were ineffective in myriad ways, including "abandon[ing] the possibility of a defense" at an early stage [Pet. ¶ 22 at 11.], failing to bring material facts to the attention to the Court in various proceedings [id. ¶ 17 at 15, ¶ 3 at 25, ¶ 5 at 26], and failing to recognize a Statute of Limitations defense. [Id. ¶¶ 75-77 at 25.] Petitioner also asserts that recordings within the possession of the FBI will exonerate him as to the conspiracy count. [Id. ¶ 33 at 17.] Respondents argue that counsel was not ineffective and the evidence Petitioner describes is not exonerating. [Answer at 5, 9-10.] For the reasons explained below, the Court denies Petitioner's motion to vacate, set aside, or correct sentence.
The facts of this case have been described in previous opinions of this Court. See United States v. Sgarlat, 705 F. Supp. 2d 347, 349-50 (D.N.J. 2010). The Court will recount only those facts relevant to the present petition.
On September 28, 2005, Petitioner Sgarlat, who was under investigation for securities fraud, wire fraud and tax evasion, supplied a written confession to agents of the FBI and began cooperating with the government.*fn1 Because Petitioner was the target of an ongoing investigation and claimed indigence, in December 2005, the Court appointed Mr. Shapiro as his counsel. Petitioner and Mr. Shapiro met for the first time in early January 2006,*fn2 and they quickly set up a proffer session with prosecutors for January 18, 2006. [Pet. ¶ 3 at 9.] Soon thereafter, Petitioner was arrested and charged, and eventually pled guilty to both counts on September 8, 2006, on the advice of Mr. Shapiro. [Pet. ¶ 9 at 20, ¶ 39 at 12.] Prior to sentencing, Mr. Sgarlat retained a new attorney, Simon Kogan, a member of the New York bar, who had previously assisted Mr. Sgarlat in securities matters, in place of Mr. Shapiro.
Later, Petitioner, with Mr. Kogan as his attorney, moved to withdraw his guilty plea on the grounds of (1) ineffective assistance of counsel by Mr. Shapiro, (2) detrimental reliance on advice of counsel, (3) a statute of limitations defense, (4) his conduct did not constitute a violation of the statutes, and (5) exculpatory evidence. The Court conducted an evidentiary hearing and found that Petitioner's guilty plea was knowing and voluntary, see Sgarlat, 705 F. Supp. 2d at 353, that counsel was not ineffective, id. at 355-57, that counsel was correct not to press a statute of limitations defense, id. at 356, and that Petitioner did not present facts or evidence that was exculpatory or that his conduct did not constitute a violation of the statutes, id. at 357-60. The Court denied Petitioner's motion to withdraw his guilty plea. Id. at 361.
Petitioner was sentenced on August 5, 2010. [Cr. No. 06-0723, Docket Item 91.] At sentencing, Sgarlat fully accepted responsibility for his crimes in Counts One and Two and presented a case for extraordinary acceptance of responsibility through post-conviction rehabilitation. He laid out, in detail, his remorse for committing the crimes he pled guilty to, apologized profusely to his victims, and demonstrated a firm resolve to amend his life through helping others to overcome addiction, to which numerous witnesses on his behalf also attested. Because of his seemingly extraordinary remorse and rehabilitative efforts, this Court granted a substantial variance at sentencing. The advisory Sentencing Guideline range, determined by Offense Level 30, Criminal History Category I, was 97 - 121 months. The Court's variance of four levels reduced this range to 63 - 78 months, and the Court imposed concurrent sentences of 60 months on Count One (the statutory maximum) and 66 months on Count Two. Petitioner did not directly appeal the denial of his motion to withdraw his guilty plea, nor his conviction, nor his sentence.
Petitioner timely brought the current action, alleging five grounds that he argues entitle him to relief. [Civ. No. 11-4441, Docket Item 1.] First, Petitioner argues that Mr. Shapiro too hastily concluded that Petitioner was guilty and never explored a defense strategy for him ("Ground One"). [Pet. ¶¶ 37-42 at 12.] Second, Petitioner argues that his confession to the FBI was involuntary, that the FBI withheld facts concerning the confession and Petitioner's counsel was ineffective for failing to bring these facts to the attention of the Court ("Ground Two"). [Id. ¶¶ 14-17 at 14-15.] Third, Petitioner asserts the government possesses recordings of Petitioner declining to engage in securities fraud or implicating himself in a conspiracy, which Petitioner says exonerates him of Count One ("Ground Three"). [Id. at ¶ 33 at 17, ¶ 41 at 18.] Fourth, Petitioner asserts actual innocence of Count One,*fn3 and alleges that the FBI "fabricated . . . lie[s]" and filed "fraudulent" information to circumvent a statute of limitations defense, and his attorneys were negligent and ineffective for not recognizing this before instructing him to plead guilty and for not bringing this information to the attention of the Court ("Ground Four"). [Id. ¶¶ 1, 4-5 at 19.] Fifth, Petitioner argues that Mr. Kogan was ineffective for not providing the Court facts supporting Grounds One or Four ("Ground Five"). [Id. ¶ 3 at 25, ¶ 5 at 26.] In his reply brief, Petitioner appears to add a sixth ground, that the involuntary confession to the FBI in 2005 poisoned the rest of the FBI's case, and his sentence should be vacated because of the constitutional violation. [P.R. Br. at 51.]
Under § 2255(a), a federal prisoner may move to vacate, set aside or correct a sentence on the ground that the sentence was imposed in violation of the Constitution or federal law, the sentencing court was without jurisdiction, or the sentence is in excess of the maximum authorized by law or is otherwise subject to collateral attack. If the motion, files and records of the case conclusively show that the prisoner is not entitled to relief, the petition will be denied. § 2255(b). Otherwise, the court shall grant a hearing to determine the issues and make findings of fact and conclusions of law. Id.
Not every asserted error of law may be raised on a § 2255 motion. See Davis v. United States, 417 U.S. 333, 346 (1974). The appropriate inquiry is whether the claimed error is a "fundamental defect which inherently results in a complete miscarriage of justice" and whether it presents "exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent." Id., quoting Hill v. United States, 368 U.S. 424, 429 (1962).
To prevail on a claim of ineffective assistance of counsel, Petitioner must demonstrate that (1) counsel's performance was so deficient as to deprive him of the representation guaranteed to him under the Sixth Amendment of the United States Constitution, and (2) the deficient performance prejudiced the defense by depriving the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984). The Sixth Amendment right to counsel also extends to the plea-bargaining process. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012). To show prejudice under Strickland, Petitioner must demonstrate that there is a "reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Gov't of the V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989) (quoting Strickland, 466 U.S. at 694).
The Court will consider Petitioner's ...