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United States of America v. Habeeb Malik

May 11, 2012


The opinion of the court was delivered by: Surrick, J.


Presently before the Court is Petitioner Habeeb Malik pro se*fn1 Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence. (ECF No. 203.) For the following reasons, Petitioner's Motion will be denied.


Petitioner was indicted by a federal grand jury on sixteen counts related to his participation in a conspiracy to provide fraudulent naturalization documents for aspiring United States citizens. On July 20, 2009, Petitioner was convicted by a jury on one count of conspiracy to commit naturalization fraud, in violation of 18 U.S.C. § 371, ten counts of naturalization fraud, in violation of 18 U.S.C. §§ 1425, and four counts of filing false tax returns, in violation of 26 U.S.C. § 7601(1). (Judgment 1, ECF No. 151.) Petitioner's motions for a new trial and for judgment of acquittal were denied. (Mem. on Post-Trial Mots., ECF No. 145.) On December 8, 2009, Petitioner was sentenced to fifty months in prison to be followed by three years of supervised release, a $15,000 fine and $1,500 in special assessments. (Judgment 2-5.)

Petitioner appealed his conviction and sentence. On April 21, 2011, the Third Circuit affirmed. United States v. Malik, 424 F. App'x 122 (3d Cir. 2011). Petitioner did not seek certiorari in the United States Supreme Court. On May 31, 2011, Petitioner filed a "Motion to Reduce Sentence" which included ineffective assistance of counsel claims. We granted Petitioner leave to file an amended petition seeking relief under 28 U.S.C. § 2255. (ECF No. 202.) Petitioner filed a Petition pursuant to § 2255 on March 27, 2012. (Pet. & Pet'r's Mem., ECF No. 203.) The Government informed the Court on April 11, 2012 (ECF No. 205) that it incorporates its earlier response to Petitioner's motion to reduce sentence as its response to this Petition. (Gov't Resp., ECF No. 201.)


Pursuant to 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside or correct 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 sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Relief under § 2255 is generally available "to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989).

While the court may in its discretion hold an evidentiary hearing on a Section 2255 petition, Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989), such a hearing need not be held if the "motion and the files and records conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992).


Petitioner argues that he was denied the effective assistance of trial counsel. Petitioner claims that counsel was ineffective for: 1) failing to reach a plea bargain agreement with the Government; 2) mis-advising Petitioner of the probable outcome of his trial; 3) failing to investigate the law and facts of Petitioner's case; 4) failing to solicit letters attesting to Petitioner's good character prior to sentencing; and 5) failing to effectively cross-examine Government witness Murshed Haj.

A. Legal Standard

To establish ineffective assistance of counsel in violation of the Sixth Amendment, a defendant must show that: 1) his or her attorney's performance was deficient, and 2) the deficient performance prejudiced his or her defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish deficient representation, a defendant must show that counsel's performance "fell below an objective standard of reasonableness under prevailing professional norms." Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999) (citing Strickland, 466 U.S. at 688). To establish prejudice, a defendant must show that "counsel's errors were so serious as to deprive him of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 694. Rather, "the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 695. Under Strickland, counsel is presumed to have acted within the range of "reasonable professional assistance," and the defendant bears the burden of "overcoming the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (citation omitted). While a defendant has the right to effective assistance of counsel, courts have explained that the Constitution does not guarantee the right to a perfect trial. See Marshall v. Hendricks, 307 F.3d 36, 85 (3d Cir. 2002) ("[T]he court is not engaging in a prophylactic exercise to guarantee each defendant a perfect trial with optimally proficient counsel, but [] to guarantee each defendant a fair trial, with constitutionally competent counsel."). "Judicial scrutiny of counsel's performance must be highly deferential" as "there are countless ways to provide effective assistance in any given case." Strickland, 466 U.S. at 689.

In Thomas v. Varner, 428 F.3d 491 (3d Cir. 2005), the Third Circuit addressed how district courts should proceed in assessing whether an attorney's performance was constitutionally deficient under the first prong of Strickland. In Thomas, the Court stated, inter alia, that:

[s]imilar to instances in which a court disposes of an ineffective assistance of counsel claim by analyzing the prejudice prong without considering whether counsel's performance was deficient, it is appropriate for a court to dispose of a case in which conduct is objectively reasonable without considering counsel's strategy. . . . Put differently, no hearings as to counsel's strategy are necessary in cases in which the ...

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