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United States v. Persaud

United States District Court, M.D. Pennsylvania

December 15, 2017

UNITED STATES OF AMERICA
v.
ANDREW PERSAUD

          MEMORANDUM

          SYLVIA H. RAMBO UNITED STATES DISTRICT JUDGE

         Presently before the court is Andrew Persaud's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons that follow, the court will grant his motion.

         I. Background

         On October 14, 2015, a grand jury returned a six-count Indictment charging Defendant Andrew Persaud (“Persaud”) with three counts of violating 18 U.S.C. § 1001(a)(2)(3) for making false statements, and three counts of wire fraud under 18 U.S.C. § 1343. (Doc. 1.) At some point prior to his initial appearance, Persaud retained Joshua Lock, Esquire to represent him. On February 23, 2016, pursuant to a plea agreement (Doc. 16), Persaud pleaded guilty to Count Two of the Indictment, which charged Persaud with falsely certifying that he paid his subcontractors on a multi-million dollar construction project at a United States Navy warehouse complex in Mechanicsburg, Pennsylvania in 2012 (see Doc. 1). The plea agreement originally contained Paragraph 30, titled “Appeal Waiver - Direct, ” which provided that Persaud knowingly waived his right to appeal his conviction and sentence. (Doc. 16, ¶ 30.) However, Paragraph 30 was stricken from the agreement in pen and the change was initialed by Attorney Lock, Persaud, and Assistant United States Attorney Kim Douglas Daniel prior to the filing of the plea agreement. (Id.)

         Persaud was sentenced on October 24, 2016, to twenty-one months imprisonment, three years supervised release to run concurrent with the term previously imposed by the Eastern District of Virginia, $100.00 special assessment, and $1, 206, 470.00 in restitution. (Doc. 39.) An appeal was not filed with the United States Court of Appeals for the Third Circuit. On May 1, 2017, Persaud filed a counseled motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on the basis that his legal counsel was ineffective. (Doc. 42.) After the motion was fully briefed, an evidentiary hearing was held on October 10, 2017. (Docs. 47-49.)

         At the hearing, Attorney Lock testified regarding the scope of his representation of Persaud, including that his fee agreement did not cover trial or an appeal. Because Persaud was previously prosecuted in the Eastern District of Virginia for crimes that were substantially similar to those in the Middle District of Pennsylvania Indictment, Attorney Lock explored the theory that the prior prosecution would bar or limit the Middle District matter. Ultimately, Attorney Lock advised Persaud that the theory would not be successful. Regarding the plea agreement, Attorney Lock stated that it is his common practice to strike appeal waivers, such as the one contained in Paragraph 30, due to his aversion to them, but that he does not recall whether Persaud specifically requested that the appeal waiver be stricken in this instance.

         Attorney Lock further testified that it is his usual practice to spend time with his clients following sentencing, but that he does not recall the specifics of his post-sentencing meeting with Persaud. While he suspects that they discussed Persaud's sentence and good time credits, he is confident that Persaud did not ask him to file an appeal. He also recalls speaking with Persaud by telephone on one or two occasions following sentencing, and although he does not remember what they discussed, he stated Persaud did not ask him to file an appeal during these calls. When asked if Persaud asked him to file an appeal at any point following sentencing, Attorney Lock testified as follows:

He may have at some point, but I can tell you what I always do, particularly in cases like this, since I have very little interest at any time, but particularly at this point in my career, in standing in front of the United States Court of Appeals like a penny waiting for change.
I just don't file appeals in cases where I don't believe there's any merit, number one. In cases where there's money, I refer them to a colleague . . . from the Philadelphia area, Peter Goldberger. And in cases where there's not, I advise that, pursuant to general instructions, I don't remember them being given in this case specifically, provided by the sentencing court to Defendants at the time of sentencing, to submit a letter to the Clerk of Courts, at which time it's then considered the notice of appeal, at which time they'll make an appointment of counsel.

         Later in his testimony, Attorney Lock stated that, at some point, he suggested that Persaud write a letter to the Clerk of Courts to pursue an appeal, but could not say if that conversation occurred before or after sentencing.

         Next, Persaud testified that he discussed filing an appeal with Attorney Lock at the time he signed the plea agreement. During their post-sentencing meeting, Persaud insisted that an appeal be filed and does not recall, at any point, Attorney Lock instructing him to request an appeal by filing a letter with the Clerk of Courts. Persaud testified, and presented supportive telephone records, that he exchanged several telephone calls with Attorney Lock in the weeks following his sentencing but prior to his surrender on November 21, 2017.[1] (Def. Ex. D-2.) Specifically, the telephone records indicate that five outgoing calls were placed to Attorney Lock, and three incoming calls were received from Attorney Lock during this time period.[2] (Id.) Persaud testified that, during one such call on October 28, 2016, they discussed filing an appeal to preserve his rights, and Attorney Lock stated that he would “look into it, ” but that Persaud did “not have a good chance [on appeal].”

         Lastly, Marina Persaud, Defendant's wife, testified that she called Attorney Lock multiple times after her husband was incarcerated to discuss her husband's appeal, and that she left several voicemails regarding the appeal but never received a response.[3] Due to the lack of communication, Mrs. Persaud contacted her husband's current counsel, Todd Mosser, Esquire, in early 2017.

         II. Discussion

         In the instant motion to vacate his sentence, Persaud argues that his counsel was ineffective because he failed to file an ...


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