United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION AND ORDER
J. Schwab United States District Judge
(“Makozy”) has filed a Motion to Vacate under 28
U.S.C. § 2255 to vacate, set aside or correct his
sentence. See doc. no. 97. In addition to the Motion to Vacate,
Makozy also filed his third Motion to Stay
Sentence. See doc nos. 63, 91, and 99. The
Government has filed a singular Response to the two pending
Motions - the § 2255 Motion and the Motion to Stay
Sentence. Doc. no. 103. Defendant has filed a singular Reply.
Doc. no. 107. These matters are now ripe for adjudication.
Defendant's § 2255 Motion
Standard of Review 1. Evidentiary
Petitioner brings a motion to vacate sentence pursuant to
Section 2255, the District Court has discretion whether to
conduct an evidentiary hearing. United States v.
Lilly, 536 F.3d 190, 195 (3d Cir. 2008) (citing
United States v. Booth, 432 F.3d 542, 545 (3d Cir.
2005)). However, the District Court is required to hold an
evidentiary hearing on a motion to vacate sentence unless the
motion and files and records of the case show conclusively
that the movant is not entitled to relief. Id.
(citing Gov't of Virgin Islands v. Forte, 865
F.2d 59, 62 (3d Cir. 1989)). This is not a high bar for a
movant to meet, especially since the Court, in considering a
Section 2255 claim, “‘must accept the truth of
the movant's factual allegations unless they are clearly
frivolous on the basis of the existing record.'”
Id. (quoting Forte, 865 F.2d at 62); see
also Rules Governing § 2255 Proceedings, Rules 4 and 8.
Section 2255 Motion “‘can be dismissed without a
hearing [only] if: (1) the [movant's] allegations,
accepted as true, would not entitle the [movant] to relief,
or (2) the allegations cannot be accepted as true because
they are contradicted by the record, inherently incredible,
or conclusions rather than statements of fact.'”
United States v. McCoy, 410 F.3d 124, 134 (3d Cir.
2005) (quoting Engelen v. United States, 68 F.3d
238, 240 (8th Cir. 1995)). A district court's decision
not to hold an evidentiary hearing may be reversed for abuse
of discretion if “the files and records of the case are
inconclusive on the issue of whether [the] movant is entitled
to relief.” Id. at 131 (citing Solis v.
United States, 252 F.3d 289, 294-95 (3d Cir. 2001)).
2255 of Title 28 of the United States Code provides that:
(a) 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.
28 U.S.C. § 2255(a).
and as noted above, Section 2255 provides that the Court
shall grant a prompt hearing unless Petitioner's Motion
to Vacate, the files, and the records in this case
“conclusively show that the prisoner is entitled to no
relief[.]” See 28 U.S.C. § 2255(b).
the above, it is important to note that “a motion
pursuant to 28 U.S.C. § 2255 is reviewed much less
favorably than a direct appeal of the sentence.”
United States v. Travillion, 759 F.3d 281, 288 (3d
Cir. 2014). “Indeed, relief under § 2255 is
available only when the claimed error of law was ‘a
fundamental defect which inherently results in a complete
miscarriage of justice, ' and ... ‘present[s]
exceptional circumstances where the need for the remedy
afforded by the writ ... is apparent.' ”
Id., (quoting Davis v. United States, 417
U.S. 333, 346, (1974) (quoting Hill v. United
States, 368 U.S. 424, 428, (1962)).
Ineffective Assistance of Counsel
standard of review for ineffective assistance of counsel is a
familiar one. It occurs when an attorney's performance
falls below “an objective standard of reasonableness,
” and there is “a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different.”
Luparella v. U.S., 335 Fed.Appx. 212, 214 (3d Cir.
2009) citing Strickland v. Washington, 466 U.S. 668,
prevail on a claim of ineffective assistance of counsel, a
petitioner must demonstrate “(1) that his counsel's
performance was deficient; and (2) that he was prejudiced by
it.” Brennan v. U.S., 322 Fed.Appx. 246,
246-247 (3d Cir. 2009) citing, Lilly, 536 F.3d at
195 and Strickland, 466 U.S. at 687.
order to meet the first part of the two-part
Strickland test, an attorney's performance may
be deemed deficient when “‘counsel made errors so
serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment.'” U.S. v. Hankerson, 496 F.3d
303, 301 (3d Cir. 2007), citing Strickland at 687.
“In assessing counsel's performance, the conduct
falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.'”
United States Court of Appeals for the Third Circuit in
Hankerson further explained that in order to meet
the second part of the two-part Strickland test:
. . . If a defendant succeeds in satisfying the first
component, he must then also show prejudice, that is,
“a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at
694, 104 S.Ct. 2052. A reasonable probability is “a
probability sufficient to undermine confidence in the
outcome.” Id. In the sentencing context,
prejudice exists where the deficient performance affected a
defendant's sentence. See, e.g., Glover v. United
States, 531 U.S. 198, 203-04, 121 S.Ct. 696, 148 L.Ed.2d
604 (2001) (holding that any increase in sentence resulting
from deficient performance can constitute prejudice).
Hankerson, 496 F.3d at 310-11.
Court has considered Petitioner's § 2255 Motion
according to these standards.
Factual and Procedural Background
a very sophisticated business person, has engaged in a
lifetime of fraudulent activities - his latest series of
fraudulent acts (described in detail below) - led to a
was indicted on August 25, 2015 in a 10-count indictment
which included one count of bankruptcy fraud, six counts of
concealment of bankruptcy assets, one count of false
bankruptcy declaration, one count of false statement under
oath, and one count of money laundering. Each of the counts
set forth in the indictment related to Makozy's Chapter 7
Bankruptcy Petition, filed in 2013. This Chapter 7 Bankruptcy
Petition was originally filed in the United States Bankruptcy
Court For The Southern District Of Florida, but was
subsequently transferred to the United States Bankruptcy
Court for the Western District Of Pennsylvania.
records from the bankruptcy proceedings and the instant case
show that the investigation conducted by the bankruptcy
Trustee, and later by federal investigators, determined that
Makozy concealed and secretly transferred hundreds of
thousands of dollars in real and personal property prior to
filing his 2013 Chapter 7 Bankruptcy Petition, as well as
during the pendency of his Petition. Simply put, the records
show that as part of his scheme to defraud, Makozy attempted
to divest himself of his assets.
January 7, 2016, the Court held a change of plea hearing
during which Makozy pled guilty to Count 6 of the indictment
charging him with concealment of assets on or about June 21,
2012. Makozy's plea agreement indicates that
he acknowledged his responsibility for his conduct which had
been charged in counts one through five, and seven through
ten, of the indictment. His plea agreement also indicates
that Makozy had stipulated that this Court could consider his
conduct charged in those other counts when determining an
appropriate sentence. At the conclusion of the plea hearing
this Court asked Makozy if he was satisfied with his
attorney's “advice and representation” and if
his attorney had done, or had not done, anything Makozy
thought he should or should not have done. Makozy indicated
his satisfaction and even stated, “[h]e represented me
properly.” See doc. no. 65.
Makozy pled guilty, he was released on bond, and this Court
scheduled a sentencing hearing. During the sentencing
hearing, the Court, again, asked Makozy if he was satisfied
with the advice and representation of his attorney, and
Makozy indicated that he was satisfied. At this hearing the
Court also noted that Defendant's correct guideline range
given his criminal history category of III, and his offense
level of 17, was 30 to 37 months of imprisonment. The Court
heard oral argument and testimony from Makozy himself, as to
whether an upward or downward variance should be given.
Ultimately, the Court applied all of the Section 3553 factors
and noted that, Makozy's prior crimes - which were fraud
crimes - caused him to arrive at a Criminal History Category
of III. The Court, considering the other Section 3553
factors, took special note that Makozy had used his own son
to perpetrate his fraud on the United States through his
pre-petition transfer of real estate, and thereby put his son
at risk of criminal prosecution. At the end of the hearing,
Makozy was again released on bond, and permitted to
self-report to prison. See doc. no. 66.
days of his sentencing, Makozy began to file pro se
numerous documents with this Court and the United States
Court of Appeal for the Third Circuit (despite the fact that
he waived his right to do so in his plea agreement),
primarily seeking a stay of his term of imprisonment. See
doc. nos. 60, 62, 63, 72, 74, 75, 80, 82, 83, and 86. He also
filed untimely collaterals attacks. See doc. nos. 88 and 93.
As noted his current Section 2255 Motion is timely but again,
he seeks a “stay” of his prison
records in this case show conclusively that Makozy is not
entitled to an evidentiary hearing. As noted above, this
Court must accept the truth of Makozy's factual
allegations unless they are clearly frivolous on the basis of
the existing record. As discussed below in greater detail,
this Court cannot accept as true the factual allegations
asserted by Makozy because most of them are contradicted by
the record, and/or are inherently incredible and/or are
conclusory rather than statements of fact.
Makozy's Section 2255 Ineffective Assistance
Section 2255 Petition lists 14 “claims” of
ineffective assistance of counsel. Each of those
“claims” will be addressed either separately or
as a collective.
alleges that his attorney was ineffective for his failure to:
(1) call his bankruptcy attorneys as witnesses, and (2)
proffer transcripts from the bankruptcy proceedings as
evidence in this case. According to Makozy, had the testimony
and transcripts been proffered in this case, this Court would
have concluded that Makozy did not understand what he was
doing when he filed (pro se) his bankruptcy
documents and that his Florida and Pennsylvania bankruptcy
attorneys would have supported his contention that he
“did not know what he was doing” when he filed
his bankruptcy documents and then made several material
misrepresentations to the Trustee(s) about his assets during
the 341 proceedings. Makozy's theory in this regard is