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Elkafrawi v. United States

United States District Court, N.D. Ohio, Eastern Division

October 18, 2017

TAREK ELKAFRAWI, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS. 475 & 486]

          Benita Y. Pearson United States District Judge.

         Pending 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.

         I. Background

         On July 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.

         Petitioner 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.

         On 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.

         II. Standard of Review

         Section 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 the sentence.

         In 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)).

         III. Discussion

         A. Motion to Vacate

         Petitioner offers one contention to support his motion to vacate: that his decision to plead guilty was the result of ineffective assistance of counsel.

         Ineffective 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. ‚ÄúThis requires showing that counsel's errors were so serious as to deprive [the petitioner] of a ...


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