United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS.
475 & 486]
Y. Pearson United States District Judge.
before the Court are two motions filed by Petitioner Tarek
Elkafrawi:(1) Motion to Vacate, Set Aside or Correct Sentence
by a Person in Federal Custody pursuant to 28 U.S.C. §
2255 (ECF No. 475) and (2) Motion for Consideration
of Post-Sentencing Rehabilitation (ECF No. 486). The
Government has responded to both motions. ECF No.
478 & ECF No. 487. For the following
reasons, the Court denies both motions.
3, 2014, Petitioner pled guilty to fifty three charges,
including money laundering, conspiracy to commit alien
harboring, mail fraud, wire fraud, arson, identity theft, and
health care fraud. ECF No. 401 at PageID #: 2823.
Subsequently, the Court sentenced Petitioner to 96 months
incarceration, two years supervised release supervision, a
$5, 300 special assessment, and restitution. ECF No.
431 at PageID #: 3079-81.
filed a notice of appeal on November 6, 2014. ECF No.
416. The Sixth Circuit Court of Appeals subsequently
granted Petitioner's motion for voluntary dismissal.
ECF No. 465.
January 15, 2016, Petitioner filed a motion to vacate,
arguing that his Sixth Amendment right to counsel was
violated when his counsel advised him to plead guilty,
because the advice allegedly contained an incorrect statement
of law. ECF No. 475. On August 21, 2017, Petitioner
filed a motion for consideration of post-sentencing
rehabilitation, in which he rehashes the arguments from his
motion to vacate and argues that he merits a two point
reduction in his sentence because he purportedly was
substantially less culpable than the other perpetrators.
ECF No. 486.
Standard of Review
2255 of Title 28, United States Code, provides:
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
order to prevail upon a Section 2255 motion, the movant must
allege as a basis for relief: “(1) an error of
constitutional magnitude; (2) a sentence imposed outside the
statutory limits; or (3) an error of fact or law that was so
fundamental as to render the entire proceeding
invalid.” Mallett v. United States, 334 F.3d
491, 496-97 (6th Cir. 2003) (quoting Weinberger v. United
States, 268 F.3d 346, 351 (6th Cir. 2001)).
Motion to Vacate
offers one contention to support his motion to vacate: that
his decision to plead guilty was the result of ineffective
assistance of counsel.
assistance of counsel may be a proper basis for relief under
28 U.S.C. § 2255, provided that the petitioner can
demonstrate counsel's ineffectiveness by a preponderance
of the evidence. Pough v. United States, 442 F.3d
959, 964 (6th Cir. 2006); McQueen v. United States,
58 F. App'x. 73, 76 (6th Cir. 2003). To establish
ineffective assistance of counsel, a petitioner must first
demonstrate that counsel's performance was deficient.
Strickland v. Washington,466 U.S. 668, 687 (1984).
“This requires showing that counsel made errors so
serious that counsel was not functioning as the
‘counsel' guaranteed the defendant by the Sixth
Amendment.” Id. Next, the petitioner must show
that counsel's deficient performance prejudiced the
defense. Id. “This requires showing that
counsel's errors were so serious as to deprive [the
petitioner] of a ...