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United States v. Makozy

United States District Court, W.D. Pennsylvania

May 10, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
GREGORY M. MAKOZY, SR., Defendant.

          MEMORANDUM OPINION AND ORDER

          Arthur J. Schwab United States District Judge

         Defendant (“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.[1] In addition to the Motion to Vacate, Makozy also filed his third Motion to Stay Sentence.[2] 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.

         I. Defendant's § 2255 Motion

         A. Standard of Review 1. Evidentiary Hearing

         When a 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.

         Thus, a 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)).

         2. Section 2255

         Section 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).

         Further, 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).

         Notwithstanding 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)).

         3. Ineffective Assistance of Counsel

         The 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, 688 (1984).

         To 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.

         In 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.'” Ibid.

         The 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.

         This Court has considered Petitioner's § 2255 Motion according to these standards.

         B. Factual and Procedural Background

         Makozy, 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 ten-count indictment.

         Makozy 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.

         The 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.

         On 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.[3] 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.

         After 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.

         Within 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 sentence.[4]

         C. Discussion

         1. Evidentiary Hearing

         The 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.

         2. Makozy's Section 2255 Ineffective Assistance Claims

         Makozy's Section 2255 Petition lists 14 “claims” of ineffective assistance of counsel. Each of those “claims” will be addressed either separately or as a collective.

         Claim 1:

         Makozy 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 that ...


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