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Bigica v. United States

United States District Court, D. New Jersey

September 14, 2017

JOSEPH BIGICA, Petitioner,


          ARLEO. United States District Judge


         This matter has been opened to the Court by Petitioner Joseph Bigica's filing of a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Pursuant to Fed.R.Civ.P. 78, upon review of all submissions, this matter is decided without oral argument, and for the reasons stated below, the Court will dismiss the motion and deny a certificate of appealability.


         On May 9, 2012, Petitioner pled guilty to a two-count Information charging him with corruptly interfering with the due administration of the internal revenue laws, in violation of 26 U.S.C. § 7212(a), and conspiring to violate the Federal Election Campaign Act through the use of straw contributors to a federal election campaign, in violation of 18 U.S.C. § 371. Those charges were the result of two things: first, Petitioner's failure to pay any of the approximately $1, 488, 020 in federal taxes he owed for 1999 through 2006, despite his having earned $5, 801, 888 in gross income during that time, and, second, his contribution from 2006 to 2009 through straw donors of $98, 600 to various federal election campaigns.

         In Petitioner's plea agreement, the parties noted their positions on certain issues related to the calculations necessary under the United States Sentencing Guidelines ("U.S.S.G."). In particular, they stipulated to a total offense level of 22 for his tax offense and to a total offense level of 22 for his illegal campaign contribution offense. The government did not believe that the counts should be grouped for sentencing purposes, but Petitioner reserved the right to argue that they should be grouped. The parties also stipulated that Petitioner had demonstrated acceptance of responsibility and he thus qualified for a 3-level reduction in his offense level calculation.

         The United States Probation Office prepared a presentence investigation report ("PSR") which accepted Petitioner's offense level for the tax evasion count as 22 and his offense level for the illegal campaign contributions count as 22. It added a 2-level enhancement because the counts were not grouped, but it "marginally afforded" Petitioner a 3-level offense-level reduction for acceptance of responsibility. (PSR ¶ 80.) That resulted in an adjusted offense level of 21. With Petitioner's Criminal History Category of I, the PSR provided his final Guidelines range as 37 to 46 month's imprisonment.

         In his written response, Petitioner did not question the calculation, but did object to the analysis of his financial ability to pay restitution. Specifically, the PSR explained that

[w]hile the defendant unquestionably suffers from various financial shortcomings, we submit he has not proven an inability to pay a fine. Bigica failed to submit complete financial statements, and the documentation and information that was otherwise submitted is, in parts, contradictory if not altogether absent. The defendant continues to flagrantly disregard his legal responsibilities and clearly lives way above his financial means, even in light of the instant criminal prosecution and inherent sanctions the Court may impose. While a cursory review of the financial statement submitted by the defendant in August 2012 would make him appear nearly destitute, any assets are directly attributable to the defendant's income as Mrs. Bigica is not employed outside the home. The expenditures and liabilities proffered by the defendant consist largely of unnecessary living expenses, those which exceed the income Bigica reports, or are debts resulting from the defendant's criminal conduct.

(Id. ¶ 232.) The PSR summarized Petitioner's objection, stating that he contended he made a "good faith effort" to provide the requested documentation, but explained that his financial situation was "complex." (Id. at 63.) Petitioner also claimed that he failed to provide complete financial statements because he was "somewhat disorganized" with respect to his financial documentation. (Id.) He also claimed that he was attempting to pay "pre-existing financial responsibilities, " which apparently prevented him from beginning to pay his back-taxes. (Id.) The day before sentencing, the District Court ordered Petitioner to submit his 2011 tax return and other required financial information to the Probation Office. He complied with that order.

         At sentencing, Petitioner argued that his two counts should have been grouped pursuant to U.S.S.G. § 3Dl.2(d), which would have resulted in an offense level of 22 before any acceptance of responsibility reduction was granted. The District Court disagreed and concluded that the two counts should not be grouped because they involved different harms and were not of the same general type of conduct. Thus, at the stage of analysis before the "acceptance of responsibility" issue was addressed, the Court adopted an adjusted offense level of 24.[1]

         After hearing arguments, the sentencing court denied Petitioner the three-point reduction for "acceptance of responsibility." The court observed that it has "serious questions about it in this case" and that "[i]n 13 years on the bench I have never denied acceptance of responsibility, " but "[i]n this case I'm inclined to." (ECF No. 12-2, Answer to Motion, Exhibit B ("Sentencing Transcript") 19:10-11; 12-13.) In reaching its decision, the sentencing court observed that in the time since Petitioner's plea, he had not paid any of the restitution owed to the IRS while continuing to live an extravagant lifestyle and that Petitioner had not been forthcoming with the Probation Office's requests for financial documentation. The sentencing court calculated Petitioner's Guidelines range as 51 to 63 months, and, after considering the factors set forth in 18 U.S.C. § 3553(a), sentenced Petitioner to 60 months' imprisonment.[2]

         Petitioner filed a timely notice of appeal on December 19, 2012. On appeal, Petitioner argued that the sentencing court erred by failing to group his two offenses for sentencing purposes and by not holding an evidentiary hearing pursuant to Federal Rule of Criminal Procedure 32 regarding his objection to the PSR's analysis of his financial status and statements that Petitioner had not been fully compliant with the Probation Office's requests. The Court of Appeals for the Third Circuit rejected Petitioner's arguments and affirmed the sentence. United States v. Bigica, 543 F.App'x 239, 242-44 (3d Cir. 2013). On March 13, 2014, Petitioner filed the present and timely motion pursuant to Section 2255. On March 19, 2014, this Court issued an order directing the Clerk of the Court to terminate the Petition and to send Petitioner a blank Section 2255 form, which Petitioner was to complete and submit within 30 days of the date of the order. Petitioner filed an amended motion on July 16, 2014. The Government filed its Response on October 14, 2014.

         III. ANALYSIS

         Title 28, United States Code, Section 2255 permits a court to vacate, correct, or set aside a sentence

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 a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack....

28U.S.C. §2255.

         A criminal defendant bears the burden of establishing his entitlement to § 2255 relief. See United States v. Davies, 394 F.3d 182, 189 (3d Cir. 2005). Moreover, as a § 2255 motion to vacate is a collateral attack on a sentence, a criminal defendant "must clear a significantly higher hurdle than would exist on direct appeal." United States v. Travillion, 759 F.3d 281, 288 (3d Cir. 2014) (citing United States v. Frady, 456 U.S. 152, 166 (1982)). In considering a motion to vacate a defendant's sentence, "the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record." United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (internal quotation marks and citation omitted). "It is the policy of the courts to give a liberal construction to pro se habeas petitions." Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010). The Court may dismiss the motion without holding an evidentiary hearing if the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. See 28 U.S.C. § 2255(b); Liu v. United States, No. 11-4646, 2013 WL 4538293, at *9 (D.N.J. Aug. 26, 2013) (citing Booth, 432 F.3d at 545-16).

         Petitioner identifies the sole ground for relief in his motion as follows:


(ECF No. 4-1, Amended Motion Pt. 2 ("Mot. Br.") at 10.) Though Petitioner enumerates only this single ground for relief, he later asserts that his appellate counsel "was also grossly ineffective" by failing to raise this Rule 32 argument on appeal, "while instead making the obviously erroneous argument that Rule 32 required the sentencing judge to hold an evidentiary hearing separate from the sentencing hearing to resolve the controverted PSR issues of 'fact.'" (Id.) Petitioner further states that appellate counsel was ineffective for failing to challenge the sentencing court's refusal to grant Petitioner the three-point reduction for acceptance of responsibility that was agreed to in his plea agreement. (Id.) The Court therefore construes Plaintiff to challenge (1) his trial counsel's performance in connection with Petitioner's sentencing, and (2) his appellate counsel's performance in pursuing his direct appeal. The Court addresses his claims in order as separate grounds for relief.

         The Sixth Amendment guarantees the accused the "right... to have the Assistance of Counsel for his defense." U.S. Const, amend. VI. The right to counsel is the right to the effective assistance of counsel, and counsel can deprive a defendant of the right by failing to render adequate legal assistance. See Strickland v. Washington, 466 U.S. 668, 686 (1984). A federal prisoner's claim for ineffective assistance of counsel is properly raised for the first time in federal district court as a § 2255 motion rather than on direct appeal. See United States v. Garth, 188 F.3d 99, 107 n. 11 (3d Cir. 1999); United States v. Cocivera, 104 F.3d 566, 570 (3d Cir. 1996). The clearly established Supreme Court precedent governing ineffective assistance of counsel claims in the sentencing context is the two-pronged standard enunciated in Strickland. Under the first Strickland prong, a movant must demonstrate that "counsel's representation fell below an objective standard of reasonableness, " with reasonableness being judged under professional norms prevailing at the time counsel rendered assistance. Strickland, 466 U.S. at 688. Under the second Strickland prong, a movant must demonstrate a reasonable probability that, but for counsel's error, the result of the sentencing hearing would have been different. Id. at 694. In order to sustain an ineffective assistance of counsel claim, the movant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal. See Wells v. Petsock, 941 F.2d 253, 259-260 (3d Cir. 1991); Dooley v. Petsock, 816 F.2d 885, 891-92 (3d Cir. 1987). The Strickland standard is highly demanding and leads to a "strong presumption that the representation was professionally reasonable." Strickland, 466 U.S. at 689. Furthermore, "[b]ecause failure to satisfy either prong defeats an ineffective assistance claim, and because it is preferable to avoid passing judgment on counsel's performance when possible, [Strickland, 466 U.S. at 697-98], " courts should address the prejudice prong first where it is dispositive of a petitioner's claims. United Slates v. Cross, 308 F.3d 308, 315 (3d Cir. 2002).

         A. Trial Counsel's Representation in Connection with Petitioner's Sentencing

         Petitioner alleges that his trial counsel rendered ineffective assistance by failing to compel the sentencing court to resolve certain factual disputes contained in the final PSR in accordance with Federal Rule of Criminal Procedure 32. Petitioner further argues that trial counsel's efforts to secure a three-point reduction for acceptance of responsibility were constitutionally ineffective. As discussed below, even if trial counsel's representation could be deemed objectively unreasonable (which it was not), Petitioner cannot demonstrate that but for the alleged errors, the result of his sentencing hearing would have been different. These contentions therefore are without merit.

         1. Petitioner's Rule 32 Claims

         Petitioner first challenges counsel's representation with respect to certain disputed facts contained in the final PSR. According to Petitioner, trial counsel should have moved the sentencing court to resolve these disputes as required by Federal Rule of Criminal Procedure 32, which provides:

At sentencing, the court . . . must-for any disputed portion of the presentence report or other controverted matter-rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.

Fed. R. Crim. P. 32(i)(3). Contrary to Petitioner's assertions, however, the record - as well as the ruling by the Court of Appeals for the Third Circuit - demonstrates that the sentencing court did comply with Rule 32 either by resolving the pertinent disputes or stating that resolution was unnecessary for purposes of determining Petitioner's sentence. In any event, Petitioner has not made concrete and substantiated allegations showing how any further discussion or resolution of these matters would have altered the outcome of his sentencing hearing and therefore has failed to satisfy Strickland's prejudice prong.

         Petitioner alleges that trial counsel should have compelled the sentencing court to resolve seven disputed facts reported in the PSR: (1) that Petitioner was involved in illegal local campaign contributions "totaling at least $250, 000" (PSR ¶ 218); (2) that Petitioner "made multiple jewelry purchases in the amount of $70, 725" between 2006 and 2010 (PSR ¶ 225); (3) that the Probation Officer was unable to find an active sale listing for Petitioner's house, which Petitioner had reported as being listed for sale (PSR ¶ 181); (4) that Petitioner had not been fully compliant with the Probation Office's requests for financial information necessary to prepare the PSR (PSR ¶ 232); (5) that Petitioner owned or was associated with certain real estate (PSR ¶ 121); (6) that Petitioner was associated with multiple social security numbers (PSR at 2); and (7) that Petitioner was associated with certain "aliases" (id). As discussed below, the sentencing court resolved the majority of these issues and did not rely on any of them for the purposes of determining Petitioner's sentence. Petitioner's claim of ineffective assistance therefore cannot succeed.

         a. Local Campaign Contributions

         Petitioner states that, even after his written objection pointing out the inaccuracy, the final PSR included a statement that Petitioner had made "at least $250, 000" in illegal local campaign contributions. (Mot. Br. at 22.) Petitioner's counsel did in fact raise a written objection to this allegation in his letter to the Probation Office, stating:

I again object to your statement that "Bigica was engaged in a similar political contribution scheme on a local government level, between 1998 and 2011, which resulted in payment totaling at least $250, 000.00." This allegation and conclusion is not contained in the information my client pled to, nor have any reports, documentation, statements, etc., been provided by either you or any other agency in support of his claim. This paragraph should be deleted in its entirety.

(ECF No. 4-2, Amended Motion, Exhibit A at 4.) Trial counsel also raised the issue at the sentencing hearing and, as at least partially acknowledged by Petitioner (Mot. Br. at 22), the sentencing court made a correction to the paragraph in question:

MR. FLOOD: It's the paragraph, Judge, where they - there's an allegation that he made political contributions, local government level, between 1998 and 2011, resulting in a total - in a payment totaling at least 250, 000.
THE COURT: Yes. I see, right. Paragraph 218 further states that information developed by the Government in their investigation of this offense reveals that Mr. Bigica was engaged in a similar political contribution scheme on a local government level between 1998 and 2011, which resulted in payments totaling at least $250, 000. And what of that is not factually accurate?
MR. FLOOD: I believe the total payment that's listed of at least $250, 000 is incorrect, Your Honor.
THE COURT: And what should the number be?
MR. FLOOD: I think that the Government would be in a better position to indicate. I think they've indicated to me that the number is less than that, and that this number includes the $98, 000 that's the subject of the contributions that were made that are alleged in the Information.
MR. QURAISHI: Your Honor, I agree with Mr. Flood. We talked after the final PSR came out. The $250, 000 number includes what could be legitimate contributions by the defendant. I don't have a hard number, but I agreed with Mr. Flood that the $250, 000 number for that, the local contributions, is inflated, that the actual amount of illegal contributions to local government or state government officials is less than that amount.
THE COURT: So why - would it be accurate to say, to change the language of paragraph 218 to say - to change that number to say, which resulted in substantial ...

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