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Case 7:19-cr-00844-CS Document 159 Filed 01/27/25 Page 1 of 30
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------x
AMEET GOYAL,
Petitioner,
ORDER
-against-
19-CR-844 (CS)
UNITED STATES OF AMERICA, 23-CV-1516 (CS)
Respondent.
----------------------------------------------------- x
Seibel, J.
Petitioner Ameet Goyal has filed a petition under 28 U.S.C. § 2255 alleging that he
received ineffective assistance of counsel. (ECF No. 123; see ECF Nos. 135, 140-42, 154.) 1
The Government has opposed. (ECF Nos. 136, 152; see ECF No. 155.) Familiarity with the
Petition, prior proceedings in the case, the general legal standards governing Section 2255
petitions, and the special solicitude due to pro se litigants is presumed.
On September 13, 2021, pursuant to a plea agreement with the Government, Petitioner
pleaded guilty to health care fraud, in violation of 18 U.S.C. § 1347; wire fraud, in violation of
18 U.S.C. § 1343; and false statements related to health care benefit programs, in violation of 18
U.S.C. § 1035. Petitioner was an ophthalmologist and oculoplastic surgeon, and all three counts
related to his scheme to defraud the Medicare program, private insurers and patients by
submitting false claims that misrepresented the services provided – usually by “upcoding” a
simpler procedure, such as the removal of a chalazion (a bump on the eyelid), by billing it as a
more complex one, such as an orbitotomy (a surgery within the orbit of the eye). He also
1
All docket references are to No. 19-CR-844.
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pleaded guilty to bank fraud, in violation of 18 U.S.C. § 1344; false statements to a bank, in
violation of 18 U.S.C. § 1014; and false statements in a matter within the jurisdiction of the
executive branch of the United States government, in violation of 18 U.S.C. § 1001. Those
three counts related to a scheme whereby Petitioner obtained two Paycheck Protection Program
(“PPP”) loans to which he was not entitled by, among other things, falsely stating that he had
sought only one such loan and that he was not under indictment. Because he committed the PPP
fraud while under indictment, those counts were subject to enhanced penalties pursuant to 18
U.S.C. § 3147. (ECF Nos. 21, 112.) Petitioner admitted that between 2010 and 2017, he
willfully and intentionally made false statements to insurers and the Medicare program, and
caused his employees to do so, in order to get reimbursed for medical services at a higher rate
than that to which he was entitled. (ECF No. 112 (“Plea Tr.”) at 31:15-25.) He further
admitted that in April 2020, while he was out on bail on the health care fraud charges, he
knowingly and intentionally applied for loans without truthfully disclosing that he was under
indictment, because he knew that that fact would disqualify him from receiving the loans. (Id.
at 32:1-8.)
On March 3, 2022, Petitioner was sentenced principally to 60 months’ imprisonment on
the three health care fraud counts, to run concurrently with one another, and 36 months’
imprisonment on the PPP fraud counts, to run concurrently with one another but consecutively to
the health care fraud counts, for a total of 96 months’ imprisonment. (ECF No. 108; see ECF
No. 134 (“Sent. Tr.”) at 56:6-10.)
On February 23, 2023, Petitioner filed a petition under § 2255 alleging that he had turned
down an early plea offer based on ineffective assistance of counsel and that his acceptance of the
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offer he ultimately took was also based on ineffective assistance of counsel. (ECF No. 123.)
After the Government responded, (ECF No. 136), Petitioner replied, raising numerous new
arguments, (ECF Nos. 140-41). The court treated the reply as an amended petition, (see ECF
Nos. 143-45, 147), and allowed the Government to submit a supplemental opposition, (ECF No.
152), and Petitioner to submit a supplemental reply, (ECF No. 154).
I. Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, a petitioner must affirmatively show that
“1) counsel’s performance fell below an objective standard of reasonableness according to
prevailing professional norms, and 2) it is reasonably likely that prejudice occurred – i.e., that
but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
United States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005) (citing Strickland v. Washington, 466
U.S. 668, 687-96 (1984)). 2
When evaluating counsel’s performance under the first prong of the test, a reviewing
court applies a strong presumption that counsel “rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S.
at 690.
Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to second-guess
counsel’s assistance after conviction or adverse sentence, and it is
all too easy for a court, examining counsel’s defense after it has
proved unsuccessful, to conclude that a particular act or omission
of counsel was unreasonable. A fair assessment of attorney
performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from
2
Unless otherwise indicated, all case quotations omit internal quotation marks, citations,
alterations and footnotes.
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counsel’s perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a strong
presumption that counsel’s 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. There
are countless ways to provide effective assistance in any given
case. Even the best criminal defense attorneys would not defend a
particular client in the same way.
Strickland, 466 U.S. at 689.
A defendant is entitled to effective assistance in connection with plea negotiations, Lafler
v. Cooper, 566 U.S. 156, 162 (2012), but counsel fails in that regard only if he or she fails to
communicate a plea offer or provides objectively unreasonable advice about it, United States v.
Gordon, 156 F.3d 376, 380 (2d Cir. 1998). “Counsel’s advice about whether to accept or reject
a plea . . . constitutes strategic advice that should not be second-guessed by the court.” United
States v. Peterson, 896 F. Supp. 2d 305, 315 (S.D.N.Y. 2012). Indeed, “strategic choices made
after thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the limitations on
investigation.” Strickland, 466 U.S. at 690-91.
Ineffective assistance during plea negotiations can invalidate a guilty plea to the extent it
undermines the voluntary and intelligent nature of the decision to plead guilty, Arteca, 411 F.3d
at 320, but “[t]he Second Circuit has noted the difficulty of challenging counsel’s strategic
decisions after having pleaded guilty: to raise a claim despite a guilty plea . . . , the petitioner
must show that the plea agreement was not knowing and voluntary, because the advice he
received from counsel was not within acceptable standards.” Yalincak v. United States, No. 08-
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CV-1453, 2011 WL 4502817, at *9 (D. Conn. Sept. 28, 2011), reconsideration denied, 2013 WL
2467922 (D. Conn. June 7, 2013). 3 “Counsel’s conclusion as to how best to advise a client in
order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea enjoys a
wide range of reasonableness because representation is an art, and there are countless ways to
provide effective assistance in any given case.” Purdy v. United States, 208 F.3d 41, 45 (2d Cir.
2000).
Under Strickland’s second prong, the reviewing court must determine “whether, absent
counsel’s deficient performance, there is a reasonable probability that the outcome of the
proceeding would have been different.” Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir. 1994).
This analysis requires more than “mere outcome determination,” but also mandates “attention to
whether the result of the proceeding was fundamentally unfair or unreliable.” Lockhart v.
Fretwell, 506 U.S. 364, 369 (1993). Prejudice cannot be shown “if the claim or objection that
an attorney failed to pursue lacks merit.” Harrington v. United States, 689 F.3d 124, 130 (2d
Cir. 2012). “Counsel certainly is not required to engage in the filing of futile or frivolous
motions.” United States v. Nersesian, 824 F.2d 1294, 1322 (2d Cir. 1987).
In the context of a rejected plea offer, to prove prejudice the petitioner must show a
reasonable probability that but for counsel’s errors, he would have accepted the offer and been
better off. Lafler, 566 U.S. at 164. Courts are “skeptical of accepting a defendant’s self-
serving, post-conviction statements that he would have pleaded guilty if properly advised of the
3
Copies of all unreported cases cited in this Decision and Order will be provided to
Petitioner.
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consequences by his attorney.” Gluzman v. United States, 124 F. Supp. 2d 171, 177 (S.D.N.Y.
2000).
In the context of an accepted guilty plea, the prejudice prong is met if Petitioner
demonstrates “a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
“[W]hen the defendant’s decision about going to trial turns on his prospects of success and those
are affected by the attorney’s error,” he “must also show that he would have been better off
going to trial” – that is, that he had a “viable defense.” Lee v. United States, 582 U.S. 357, 365-
66 (2017). Thus, the inquiry turns “in large part” on whether a defense “likely would have
succeeded at trial” – in other words, whether the defendant “would have been acquitted or, if
convicted, would nevertheless have been given a shorter sentence than he actually received.”
Hill, 474 U.S. at 59
Petitioner bears the burden of establishing both constitutionally deficient performance
and prejudice. United States v. Birkin, 366 F.3d 95, 100 (2d Cir. 2004).
II. Discussion
The Court has tried to extract from Petitioner’s voluminous papers the key allegations on
which he relies for his claims of ineffective assistance of counsel. 4 There is some tension in his
position, in that he seems to argue both that he would have pleaded guilty early on but for bad
4
Petitioner was advised that his supplemental reply, (ECF No. 154), had to be limited to
responding to matters raised in the Government’s supplemental opposition, (ECF No. 152).
(ECF No. 153.) His supplemental reply was not so confined, but in light of his pro se status I
have considered anything even arguably responsive.
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advice and that he is not guilty and only pleaded later based on bad advice. The Court will
address each allegation separately.
A. Pre-indictment Plea Offer
Petitioner alleges, and the Government agrees, that the Government extended a pre-
indictment plea offer pursuant to which the parties would have stipulated to a Sentencing
Guidelines range of 51-63 months’ imprisonment. (ECF No. 136-3.) At that time, Petitioner
had obtained advice from several attorneys: Kerry Lawrence, who advised him to accept the
offer because it “was the best he could do and [] the risk of a conviction after trial was extremely
high,” (ECF No. 142 ¶ 8); Foley & Lardner (including attorney Torrey Young), which had
negotiated with the Government on Petitioner’s behalf along with Mr. Lawrence, (id. ¶ 5; ECF
No. 141 (“P’s Reply”) at 3); and Marc Mukasey, who Petitioner had retained “for a second
opinion,” (P’s Reply at 3; see ECF No. 136-1 (“MM Decl.”) ¶ 11). 5 The plea agreement was
addressed to Mr. Mukasey, and both his partner and Petitioner signed it on October 10, 2019, the
day the Government had stated the offer would expire. (ECF No. 136-3.) 6 According to
Petitioner, in subsequent conversations Mr. Mukasey questioned whether Petitioner thought he
was guilty, assured Petitioner that Mr. Mukasey could win at trial even though it was a tough
case, and made Petitioner doubt the advice of all the other lawyers that Petitioner should plead
guilty. (P’s Reply at 4.) Petitioner claims that but for Mr. Mukasey’s advice that he could win
5
In March 2020, Ms. Young left Foley & Lardner to become a partner in Mr. Mukasey’s
firm. (ECF No. 136-2 (“TY Decl.”) ¶¶ 6-7.)
6
Mr. Mukasey’s partner Jeffrey Sklaroff signed Mr. Mukasey’s name to the agreement,
with his own initials after a slash. (ECF No. 136-3 at 6.) There is no suggestion that Mr.
Sklaroff acted without Mr. Mukasey’s authorization. (See P’s Reply at 5 (complimenting Mr.
Sklaroff)).
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the case, he would have pleaded guilty pursuant to the agreement, and that Mr. Mukasey
rendered that advice without having “fully familiarized himself with discovery” or undertaken “a
comparative sentencing analysis.” (ECF No. 123 (“Pet.”) at 4-5.) 7
Petitioner’s claims are meritless. First, his assertions about Mr. Mukasey’s failure to
prepare are wholly conclusory. See Russell v. Rock, No. 08–CV–1894(BMC)(RER), 2009 WL
1024714, at *3 (E.D.N.Y. Apr. 15, 2009) (“[C]onclusory allegations regarding counsel’s failure
to prepare a defense are insufficient in support of an ineffective assistance claim.”); Powers v.
Lord, 462 F. Supp. 2d 371, 381 (W.D.N.Y. 2008) (“[U]ndetailed and unsubstantiated assertions
that counsel failed to conduct a proper investigation have consistently been held insufficient to
satisfy either Strickland prong.”) (collecting cases). Second, they are contradicted by detailed
declarations from Mr. Mukasey, (MM Decl.), and Ms. Young, (TY Decl.). Both describe the
substantial discovery review and analysis they jointly undertook, (MM Decl. ¶¶ 12-13; TY Decl.
¶¶ 11-12, 14); their conversations with Petitioner about the Sentencing Guidelines, his options,
and possible outcomes on a plea or after trial (including that the range of 51-63 months in the
plea agreement would get much higher if the offer were not accepted); and Petitioner’s initial
agreement to the offer, the scheduling of the plea, and his subsequent change of heart and
decision to go to trial. (MM Decl. ¶¶ 15-22; TY Decl. ¶¶ 15-21.)
Nor has Petititoner established, or even raised a genuine dispute, that Mr. Mukasey
assured him of a win at trial. Both Mr. Mukasey and Ms. Young deny having made any such
guarantee or promise, or having told Petitioner that the plea was not in his best interest, and both
7
As ECF No. 123 is not paginated, citations to that document use the page numbers
assigned by the Courts’ Electronic Case Filing system.
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contend they advised Petitioner of the difficulties he would face at trial. (MM Decl. ¶¶ 15, 22,
50; TY Decl. ¶¶ 15, 21, 49.) “I do not find [Petitioner’s claim] credible, for I am confident that
[his] experienced defense counsel would not have made any such promises.” Ramirez v. United
States, No. 00-CV-4561, 2000 WL 1028573, at *1 (S.D.N.Y. July 26, 2000). It is simply not
plausible that experienced federal defense counsel would guarantee an outcome to any client.
Moreover, that Mr. Mukasey talked Petitioner out of accepting the 51-63 month offer is belied
not only by counsel’s signature on the plea agreement, (ECF No. 136-3), but by Petitioner’s
statement, when he ultimately did plead, that he was satisfied with his counsel’s representation,
(Plea Tr. at 4:22-5:5.) – a statement he would not have made, when pleading to an agreement
with a stipulated Guidelines range of 151-188 months (and would not have repeated at his
sentencing, (Sent. Tr. at 2:25-3:2)), if his counsel had talked or strong-armed him into passing up
an offer of 51-63 months. 8 Finally, that the decision to turn down the 51-63 month offer was
Petitioner’s alone is further demonstrated by the undisputed fact that in November 2020, after the
indictment had been superseded to add the PPP fraud charges to the original health care fraud
8
“A federal habeas court is entitled to rely on statements made during an allocution even
in the face of a later, contrary claim.” Papetti v. United States, No. 09-CV-3626, 2010 WL
3516245, at *8 (E.D.N.Y. Aug. 31, 2010); see, e.g., United States v. Hernandez, 242 F.3d 110,
112 (2d Cir. 2001) (in rejecting ineffective assistance claim, district court entitled to rely upon
defendant’s sworn statements in open court that contradicted claim); Salerno v. Berbary, 389 F.
Supp. 2d 480, 484-85 (W.D.N.Y. 2005) (rejecting challenge to validity of plea where petitioner’s
allegations in habeas proceeding were contradicted by his sworn statements at plea; “[a] trial
court may fairly rely upon a [petitioner’s] sworn statements made in open court”); France v.
Strack, No. 99-CV-2510, 2001 WL 135744, at *4 (E.D.N.Y. Jan. 30, 2001) (“Where a
petitioner’s claims of mistake and coercion find no support in the record and are contradicted by
the statements made under oath at the plea proceeding, they do not entitle him to relief.”).
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charges, Petitioner turned down an offer of 78-97 months that Mr. Mukasey and Ms. Young
urged him to take. (MM Decl. ¶¶ 39-40; TY Decl. ¶¶ 38-39.) 9
In short, Petitioner has not shown that he received substandard advice regarding the
initial plea offer. Nor has Petitioner shown prejudice. “To demonstrate prejudice, a defendant
may not rely solely on his own, self-serving statement post-verdict that he would have accepted a
more favorable plea deal.” United States v. Bent, 654 F. App’x 11, 13 (2d Cir. 2016). “Rather,
the statement must be accompanied by some objective evidence that supports an inference that
the petitioner would have accepted the proposed plea offer if properly advised.” Id. “This
objective evidence can be a large disparity between the defendant’s advised and actual
sentencing exposure,” but “[e]ven with such a disparity . . . the district court must still find the
defendant’s evidence to the effect that he would have made a different decision but for his
counsel’s deficient advice to be credible.” United States v. Frederick, 526 F. App’x 91, 93 (2d
Cir. 2013); see Arteca, 411 F.3d at 321 (no “mechanistic rules for determining whether an
adequate showing of prejudice has been made”; decision rests on record as a whole); Meszaros v.
United States, 201 F. Supp. 3d 251, 269 (E.D.N.Y. 2016) (significant disparity does not mandate
finding of prejudice). Where, as here, the record evidence strongly undermines Petitioner’s self-
serving, threadbare assertion that he would have accepted the plea, he has not shown prejudice.
See Chang v. United States, 250 F.3d 79, 86 (2d Cir. 2001) (affirming rejection of “generic claim
. . . based solely on [Petitioner’s] own highly self-serving and improbable assertions” in face of
counsel’s “detailed description of events [that] was eminently credible”). The same is true of
9
To the extent Petitioner’s complaint is that Mr. Mukasey informed him that he should
not plead if he could not do so truthfully, (see P’s Reply at 4, 6), the claim is frivolous.
Petitioner cannot seriously contend that advice against committing perjury was improper.
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conclusory claims of failure to prepare, which do not establish either substandard performance or
prejudice. See Encarnacion v. McGinnis, No. 01-CV-586, 2008 WL 795000, at *13 (N.D.N.Y.
Mar. 24, 2008) (collecting cases); Jones v. Fischer, No. 05-CV-24, 2006 WL 2583206, at *7
(E.D.N.Y. Sept. 6, 2006); Brown v. Duncan, No. 00-CV-290, 2006 WL 1977469, at *13
(N.D.N.Y. July 11, 2006).
Nor is hearing necessary.
Although the Circuit’s precedent disapproves of summary
dismissal of petitions where factual issues exist . . . it permits a
middle road of deciding disputed facts on the basis of written
submissions. Indeed, in Raysor [v. United States, 647 F.3d 491,
494 (2d Cir. 2011)], where the Court reversed the district court for
failing to hold a hearing, the Circuit nevertheless re-affirmed the
Circuit’s earlier holding in Chang v. United States, 250 F.3d 79, 86
(2d Cir. 2001), where the Court had concluded that it was within
the district court’s discretion to choose a middle road that avoided
the delay, the needless expenditure of judicial resources, and the
burden on trial counsel and the government[,] and that the district
court reasonably decided that live testimony of the defendant and
his trial counsel would add little or nothing to the written
submissions.
Williams v. United States, No. 07-CV-1804, 2012 WL 1116403, at *5 (E.D.N.Y. Mar. 30, 2012);
see Crisci v. United States, 108 F. App’x 25, 27 (2d Cir. 2004) (summary order) (within court’s
discretion to decide petitioner’s ineffective assistance claim based on affidavits of petitioner and
counsel).
Here, live testimony from counsel and Petitioner would add little or nothing to the written
submissions. In Chang, “the record was supplemented by a detailed affidavit from trial counsel
credibly describing the circumstances,” and that “record was sufficient to support dismissal of
the petition.” 250 F.3d at 85. The same is true here. Also as in Chang, Petitioner’s claim is
based “solely on his own highly self-serving and improbable assertions,” in contrast to the
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“eminently credible” version of events from two of his lawyers, and thus it is “within [my]
discretion to determine that more [is] not needed.” Id. at 86; see, e.g., Wang v. United States,
458 F. App’x 44, 46 (2d Cir. 2012) (summary order) (reasonable for court to decide petition on
written record where petitioner’s allegations were “incredible in and of themselves” and were
contradicted by other affidavits and transcript of plea colloquy); Puglisi v. United States, 586
F.3d 209, 214 (2d Cir. 2009) (for purpose of determining whether live hearing necessary, “a
district court need not assume the credibility of factual assertions, as it would in civil cases,
where the assertions are contradicted by the record in the underlying proceeding”); Lu v. United
States, No. 04-CV-8856, 2006 WL 1663283 at *4 (S.D.N.Y. June 14, 2006) (testimonial hearing
not necessary where uncorroborated allegations in petition were contradicted by affirmations of
petitioner’s two trial attorneys). Accepting Petitioner’s word over that of two of his lawyers
would require the Court to disregard both the absence of any indication of ethical blemishes on
counsel’s part and the fact that Petitioner admittedly committed two separate frauds involving
false statements.
In short, Petitioner’s claims regarding counsel’s advice regarding the 51-63 month plea
offer are without merit.
B. Post-Indictment Claims
Petitioner originally claimed that his counsel were ineffective in connection with the plea
he eventually accepted, because they told Petitioner that there was no defense to the charges and
that he would receive a thirty-year sentence if convicted after trial. (Pet. at 6-10.) After the
Government opposed, Petitioner in reply added a grab-bag of additional claims of alleged
ineffectiveness.
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1. Pre-Plea Issues
Petitioner seems to contend that his agreement with Mr. Mukasey for a flat fee amounted
to a conflict of interest. He is incorrect. “[C]ourts have consistently held that there is nothing
improper about an up-front flat fee payment scheme.” Quinones v. United States, No. 12-CV-
6000, 2014 WL 5141551, at *3 (E.D.N.Y. Oct. 14, 2014), vacated and remanded on other
grounds, 637 F. App’x 42 (2d Cir. 2016); see Kleinberg v. United States, No. 00-CV-3621, 2000
WL 686213, at *2 (S.D.N.Y. May 25, 2000) (“This Court disagrees with [Petitioner’s]
assessment that the payment of a flat fee – a common arrangement – created an actual and
impermissible conflict of interest.”). Nor is there any evidence (as opposed to speculation) that
that arrangement influenced counsel’s decisionmaking (and Mr. Mukasey and Ms. Young deny
that it did, (see ECF No. 152-1 (“MM Supp. Decl.”) ¶ 8(a) (“flat-out false” that Mukasey
counseled Petitioner based on “financial considerations”) (emphasis in original); ECF No. 152-2
(“TY Supp. Decl.”) ¶ 9(a) (Mukasey and Young counseled Petitioner based on strength of case,
review of facts, exploration of potential defenses, discussions with team, and experience, not on
financial rewards))).10
10
To the extent Petitioner complains of Mr. Mukasey asking for an additional payment
once the PPP fraud claims were added, (P’s Reply at 11), he does not explain why such a request
was unreasonable, given that the scope of the case was enlarged to encompass a separate fraud
scheme. Indeed, Petitioner does not dispute that he acknowledged to Mr. Mukasey that the
request was fair. (MM Supp. Decl. ¶ 9.) Nor does he explain how the request amounted to
ineffective assistance.
Petitioner also seems to object to Mr. Mukasey’s firm billing him for funds to pay for a
Relativity database. (P’s Reply at 11-12.) Given that his retainer agreement with the firm
provided that he would be responsible for reasonable and necessary expenses, (ECF No. 141-1);
that Relativity or a similar electronic-discovery system is practically a must in today’s white-
collar litigation; and that his case involved a large volume of discovery, (see MM Supp. Decl. ¶
21; TY Supp. Decl. ¶ 23), the Court cannot discern how Petitioner’s payment for Relativity
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Petitioner further contends that Mr. Mukasey did not pay sufficient attention to his case,
leaving Petitioner to deal primarily with Ms. Young and associates of the firm. Lead counsel
delegating tasks to colleagues does not come close to constituting substandard performance. A
complex case such as Petitioner’s often requires a team approach, and Petitioner cannot have
expected Mr. Mukasey to devote all of his time to Petitioner’s case. “Attorneys regularly utilize
associate attorneys in the course of their representation of clients. Without proof that the
delegation of work to another attorney was unreasonable and prejudiced [Petitioner], a habeas
petition based upon such a claim must fail.” Marrero v. McCoy, No. 98-CV-1403, 2002 WL
975308, at *4 (N.D.N.Y. Feb. 22, 2002); cf. United States v. Mittal, No. 98-CR-1302, 2000 WL
1610799, at *6 (S.D.N.Y. Oct. 27, 2000) (counsel’s delegation of certain witness interviews to
non-lawyer investigator not substandard performance).11
Moreover, Petitioner’s claims of inattention are contradicted not only by counsel, again in
detail, (MM Decl. ¶¶ 12-13, 15-22, 27-29, 35-36, 39-41, 45-48; TY Decl. ¶¶ 11, 14-21, 38-40,
43-47); MM Supp. Decl. ¶¶ 8(b), 9-10, 13-14; TY Supp. Decl. ¶¶ 11(b), 13-16), but by Petitioner
himself, who, for example, summarizes numerous requests he made of Mr. Mukasey and the
latter’s responses, (P’s Reply at 8-9),12 complains that after he declined the 78-97 month offer in
contributes to his claim of ineffective assistance of counsel. Indeed, in a high-volume paper
case, it would almost be ineffective assistance not to use an e-discovery platform.
11
To the extent Petitioner’s complaint is that the associates on the team assembled by Mr.
Mukasey did not have experience with health-care cases, (see P’s Reply at 8), the assertion is
puzzling, as Ms. Young, the second-most senior lawyer on the team, had a health-care
background, (id.; TY Supp. Decl. ¶ 11(a)), and there is no indication that Mr. Mukasey did.
12
Petitioner complains that Mr. Mukasey declined some in-person meetings as an
unnecessary distraction from trial preparation. (P’s Reply at 8.) He supplies no reason to doubt
that that was the case, and indeed his prior counsel at Foley & Lardner cautioned him that the
regular evening “all-hands” calls that Petitioner convened were of low value. (See ECF No.
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December 2020, Mr. Mukasey repeatedly tried to persuade him to reconsider, (id. at 11), and
describes information for which Mr. Mukasey repeatedly asked him, (id. at 19). In any event, it
is evident that Petitioner had ample communication with lead and other counsel and was
informed of all significant developments. Beyond that, the extent to which additional client
conferences are necessary is a matter committed to counsel’s discretion. See Ordenes v. United
States, No. 05-CV-8968, 2007 WL 1766772, at *11 (S.D.N.Y. June 9, 2007) (“[T]o require a
particular number of meetings between counsel and his client, absent anything more, would
effectively impose the sort of mechanical rule governing counsel’s behavior that the Strickland
Court disfavored.”); Byas v. Keane, No. 97-CV-2789, 1999 WL 608787, at *5 (S.D.N.Y. Aug.
12, 1999) (“To require that counsel meet with petitioner a specific number of times would
effectively establish a mechanical rule in defiance of Strickland.”).
Petitioner also criticizes the quality of the pretrial preparation by his defense team. He
does not undermine counsel’s showing of a thorough legal and factual investigation, (MM Supp.
Decl. ¶¶ 8-9, 12-13, 18; TY Supp. Decl. ¶¶ 8-10, 14-17, 20), nor does he dispute that they made
numerous substantive motions on his behalf, (ECF Nos. 16-18, 29-31, 41, 46, 52, 62-63, 73),
managed to keep him from getting detained after he committed the PPP fraud while out on bail,
(see ECF Nos. 19, 23-24), and obtained a sentence well below his Guidelines range (and in line
with the November 2020 offer he declined), (see ECF Nos. 104-115). Instead he focuses on a
few specific items.
141-2.) It is not substandard performance, and indeed is an efficient use of lead counsel’s time,
to have more junior attorneys handle day-to-day interactions with high-maintenance clients.
15
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First, he asserts that Mr. Mukasey and Ms. Young refused without explanation to obtain
information from a New York State database called SPARCS, which contains information about
surgeries done in hospitals and ambulatory surgery centers and which he contends would have
shown that he was not the highest biller of orbitotomies in the state and that the time spent on his
procedures was longer than would have been necessary for a simple chalazion removal. (P’s
Reply at 8-9; ECF No. 154 (“P’s Supp. Reply’) at 3.) Counsel’s declarations show that Ms.
Young did investigate and consider the SPARCS data but determined that it was not exculpatory
or strategically beneficial, and that this determination was communicated to Petitioner. (MM
Supp. Decl. ¶ 15; TY Supp. Decl. ¶ 17.) Petitioner responds that Ms. Young in her
supplemental declaration was vague about why she so concluded, (P’s Supp, Reply at 3),13 but a
reviewing court may not “insist counsel confirm every aspect of the strategic basis for his or her
actions,” and “[t]here is a strong presumption that counsel’s attention to certain issues to the
exclusion of others reflects trial tactics rather than sheer neglect,” Harrington v. Richter, 562
U.S. 86, 109 (2011). In any event, in this instance it is easy to see why counsel reached that
conclusion. Even assuming that the records would show that Petitioner was not the highest-
volume biller of orbitotomies done in hospitals or ambulatory surgery centers in the state,14 that
13
Counsel’s reluctance to explain why the SPARCS data did not help Petitioner’s case
was no doubt influenced by her ethical obligation to say no more than reasonably necessary to
respond to Petitioner’s allegations. (See TY Supp. Decl. ¶ 4.)
14
Nor has Petitioner shown prejudice, as evidence regarding hospital and ambulatory
care center orbitotomies in New York would not have undermined the Government’s allegation
that Petitioner was the tristate area’s highest biller to Medicare of complex conjunctivoplasties
with buccal grafting, billing for that procedure seven times more than all other doctors combined,
or that he similarly was ranked first or second in billing codes for orbitotomy, flap repair with large
defect, and eyelid reconstruction. (ECF No. 115 (“PSR”) ¶ 28.) In other words, he has not
explained how, even if the procedures done at the facilities captured by SPARCS were
legitimate, that would undermine the Government’s allegation – to which Petitioner admitted –
16
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would not undermine the evidence that he routinely and intentionally billed simple procedures –
many of which would have been done in his offices – as orbitotomies. That evidence included
testimony from several doctors who worked for him, observed the upcoding and were pressured
into doing the same thing; testimony from Petitioner’s staff about his instructions to upcode;
expert testimony that only 2% of Petitioner’s billed orbitotomies and only 3% of his billed
conjuctivoplasties were supported by the patient chart, with the vast majority of those procedures
clearly upcoded; and patient testimony. (See Plea Tr. at 26:17-30:9; PSR ¶¶ 15-59; ECF No.
105 at 2-34; Sent. Tr. at 14:2-23:21, 29:15-30:12.)15 Given the “strong presumption” that a
lawyer’s conduct “falls within the wide range of reasonable professional assistance,” Strickland,
466 U.S. at 689, Petitioner has not “overcome the presumption that, under the circumstances, the
challenged action, might be considered sound trial strategy,” id.; see Hernandez v. Uhler, No.
15-CV-6684, 2017 WL 3670031, at *7 (E.D.N.Y. Aug. 25, 2017) (“In fact, depending on the
circumstances, even an attorney’s decision not to call witnesses that might offer exculpatory
evidence is ordinarily not viewed as a lapse in professional representation.”).
Petitioner further criticizes counsel for not obtaining video of a tear duct procedure
performed at Greenwich Hospital. (P’s Reply at 13-17.) Both counsel and the Government
represent that counsel did obtain that video. (TY Supp. Decl. ¶ 22; ECF No. 152 at 4, 15.)
Even if they had not, Petitioner has not carried his burden to show prejudice, as he has not shown
that he made false claims to obtain reimbursements to which he was not entitled.
15
This sentence greatly abbreviates both the quantity and quality of the evidence as to the
health care fraud counts. The cited documents describe the overwhelming evidence on which
the court does not further elaborate in the interest of brevity.
17
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that that video would have convinced a factfinder to ignore the testimony of two doctors who
later treated the patient and saw no evidence that the billed-for procedure had been done, let
alone how it would have undermined the massive other proof of Petitioner’s upcoding scheme.
Indeed, the patient in question was apparently not even going to be a subject of Government
proof at trial, (ECF No. 152 at 17), so even if the video showed an appropriately performed and
billed procedure, it would have been inadmissible, see United States v. Walker, 191 F.3d 326,
336 (2d Cir. 1999) (that some of defendant’s actions were not fraudulent “simply irrelevant” to
whether charged acts were fraudulent); United States v. Scarpa, 897 F.2d 63, 70 (2d Cir. 1990)
(defendant may not seek to establish innocence through proof of absence of criminal acts on
specific occasions).
Petitioner further suggests that counsel did not consider a surgical assistant and patient
who he alleges would have been exculpatory witnesses. (P’s Reply at 9-10.) But counsel
interviewed “[Petitioner’s] front office staff, billing and coding staff, surgical technicians,
physicians with whom he worked, patients, [and his] accountant,” apparently including the two
witnesses to whom Petitioner refers. (MM Supp. Decl. ¶ 13; TY Supp. Decl. ¶ 15.) That
counsel concluded that the witnesses would not suffice to overcome the Government’s evidence
hardly shows substandard performance. Cf. Greiner v. Wells, 417 F.3d 305, 323 (2d Cir. 2005)
(“[C]ounsel’s decision as to whether to call specific witnesses – even ones that might offer
exculpatory evidence – is ordinarily not viewed as a lapse in professional representation.”);
United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998) (per curiam) (“The decision not to
call a particular witness is typically a question of trial strategy that [reviewing] courts are ill-
suited to second-guess.”); U. S. ex rel. Walker v. Henderson, 492 F.2d 1311, 1314 (2d Cir. 1974)
18
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(“[T]he decision to call or bypass particular witnesses is peculiarly a question of trial strategy,
which courts will practically never second-guess.”).16 And even if counsel had not interviewed
the witnesses, Petitioner does not show prejudice, as he does not allege what evidence regarding
billing these witnesses could have provided. Nor does he confront the fact that counsel retained
an expert, who informed them that he would not be able to contradict the Government’s evidence
as to several of the patients on whom the Government intended to focus at trial. (MM Supp.
Decl. ¶ 12; TY Supp. Decl. ¶ 14.)17
“Defendant’s criticism of counsel’s pretrial preparation, including the lack of attorney-
client meetings to discuss the case [and] insufficient investigation of potential evidence . . .
reflect defendant’s frustration with the end result of the trial rather than any legitimate defect in
the quality of representation he was given.” United States v. Lohm, No. 90-CR-301, 1993 WL
488635, at *15 (N.D.N.Y. Nov. 26, 1993), aff’d, 47 F.3d 1157 (2d Cir. 1995).
16
In his supplemental reply, in contravention of the Court’s order that it not include new
material, (ECF No. 147), Petitioner named additional witnesses. I disregard them except as to
Edward Broccoli, who counsel’s supplemental declarations had already addressed. Counsel
interviewed this individual at Petitioner’s request and concluded that he would not be a credible
witness on the relevant issues. (MM Supp. Decl. ¶ 14; TY Supp. Decl. ¶ 16.) Not only is this a
strategic issue as to which counsel’s judgment should not be second-guessed, but their
assessment as to how a jury might view Dr. Broccoli is unsurprising if one reviews a document
authored by him and submitted by Petitioner as part of a bail application. (ECF No. 145-2.)
17
The only effort in this regard appears in Petitioner’s supplemental reply, when he
seems to argue that because counsel wanted to ensure that the expert was paid, it must not be true
that he could not support all of Petitioner’s billings. (P’s Supp. Reply at 2.) Needless to say, it
hardly follows, from the fact that counsel wanted the expert paid so that he would be available if
needed, that the expert would have successfully countered all of the Government’s proof.
19
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2. Plea Issues
Moreover, Petitioner makes no effort to reconcile his claims regarding “exculpatory”
evidence with his guilty pleas, except to claim that he would have gone to trial were it not for
counsel’s bad advice. Petitioner claims that he pleaded guilty only because counsel advised that
he had no defense and that he would surely get a thirty-year sentence if convicted after trial. He
further alleges that he had good defenses because the charges were defective. Neither argument
has merit.
a. Alleged Promise as to Sentence After Trial
Both Mr. Mukasey and Ms. Young aver that Petitioner decided to plead after some
adverse rulings on motions in limine and that they never guaranteed that he would get a
particular sentence after trial. (MM Decl. ¶¶ 42-50; TY Decl. ¶¶ 41-49.) And it simply defies
credulity that counsel would have made any kind of promise regarding what the sentence would
be. It is inconceivable that two experienced defense lawyers could both have so egregiously
misstated the basic rule of criminal practice that the sentence is up to the judge and there are no
guarantees. Nor is it credible that Petitioner, who had already reviewed (and turned down) two
previous plea agreements that explained that sentencing is wholly up to the court, who saw the
same language in the agreement to which he ultimately agreed, and who was informed by the
court before entering his plea that nobody could give any assurance as to sentence, (Plea Tr. at
21:23-22:8), could have actually thought that his (or any) lawyer could know for sure what a
Court would do.18
18
These facts belie Petitioner’s claim that he was “[u]ntil recently . . . unaware that
counsel was incapable of determining or advising (with certainty) what sentence would be
imposed if Defendant were convicted after a jury trial.” (Pet. at 7.) And, contrary to
20
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Counsel did advise Petitioner that the Government’s proof was overwhelming and that he
would likely get a longer sentence if convicted after trial. (MM Decl. ¶¶ 47-48; TY Decl. ¶¶ 46-
47.) Such “strong advice from counsel to accept a plea does not rise to the level of coercion that
would render such a plea involuntary. Rather, it merely reflects counsel’s truthful, if
unwelcome, advice regarding the strength of the [Government’s] case and the advisability of
accepting the plea bargain.” Proctor v. McCarthy, No. 19-CV-2988, 2020 WL 1149660, at *14
(S.D.N.Y. Mar. 10, 2020), report and recommendation adopted, 2023 WL 4562405 (S.D.N.Y.
July 17, 2023). This advice may have been disheartening, but it was not wrong. See United
States v. Juncal, 245 F.3d 166, 172 (2d Cir. 2001) (attorney’s “blunt rendering of an honest but
negative assessment of [Petitioner’s] chances at trial, combined with advice to enter the plea,”
does not “constitute improper behavior or coercion that would suffice to invalidate a plea”).
“Absent any indication that the [advice] was inaccurate, [Petitioner’s] attorney’s decision to
advise his client to plead guilty must be accorded the presumption of reasonableness.” Gonzalez
v. United States, No. 12-CV-8261, 2013 WL 3305324, at *5 (S.D.N.Y. July 1, 2013).
b. Lack of Viable Defenses
Petitioner’s arguments regarding the purported legal insufficiency of the indictment, and
thus his claims that his lawyers were ineffective for failing to move to dismiss it on the grounds
he sets forth, are simply wrong, for two reasons. One is that counsel did move to dismiss both
the health care-related counts and the PPP-related counts, although on different grounds than
Petitioner’s claim that the “assur[ance] . . . that a conviction after trial would mean a thirty year
term of imprisonment at sentencing” was “undoubtedly[] designed to induce a guilty plea, and it
worked,” (id.), Petitioner stated at the plea that aside from the Government’s promises in the plea
agreement, nobody had promised him anything or offered him any inducement to plead guilty,
(Plea Tr. at 24:6-9).
21
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those Petitioner suggests, (see ECF Nos. 16-18, 29-31), and counsel’s decisions about what
motions are worth making are not ones that a reviewing court may second-guess, see Harrington,
562 U.S. at 107 (“Counsel was entitled to formulate a strategy that was reasonable at the time
and to balance limited resources in accord with effective trial tactics and strategies.”); Nersesian,
824 F.2d at 1322 (“[F]or purposes of effective assistance, not every possible motion need be
filed, but rather, only those having a solid foundation.”); United States v. Sierra, 372 F. Supp. 3d
187, 194 (S.D.N.Y. 2019) (Sixth Amendment does not obligate defense counsel to file every
motion the facts may superficially support; “[t]he law accords counsel reasonable latitude within
which to make strategic choices regarding which motions the circumstances may sufficiently
warrant, and it treats those professional calls with substantial deference.”); DiMattina v. United
States, 949 F. Supp. 2d 387, 411 (E.D.N.Y. 2013) (“It is reasonable to infer that experienced trial
counsel chose to allocate resources to pursue more promising defenses rather than one with a low
probability of success.”); Guidice v. United States, No. 03-CV-4983, 2007 WL 1987746, at *3
(E.D.N.Y. July 3, 2007) (decisions concerning what motions to make “fall squarely within the
ambit of trial strategy and, if reasonably made, cannot support an ineffective assistance claim”).
The other is that the purported defects in the indictment that Petitioner regards as winning
defenses are not defects or winning at all. He first claims that Count One, charging health care
fraud, was duplicitous in that it grouped distinct violations into a single count. (Pet. at 2.) But
the statute, 18 U.S.C. § 1347, permits “the government to charge a single scheme consisting of
several transactions in one count of health care fraud.” United States v. Mermelstein, 487 F.
Supp. 2d 242, 255 (E.D.N.Y. 2007).19 He contends that Count Two, charging wire fraud, was
19
Petitioner also seems to protest that the description of the health care fraud scheme
22
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defective because it did not specify particular wirings. (Pet. at 2.) But “[c]ontrary to the
defendant[’s] argument[] . . ., a count of . . . wire fraud need not contain specific uses of the . . .
wires in furtherance of the scheme.” United States v. Almaleh, No. 17-CR-25, 2022 WL
602069, at *5 n.6 (S.D.N.Y. Feb. 28, 2022); see United States v. Zandstra, No. 00-CR-209, 2000
WL 1368050, at *4 (S.D.N.Y. Sept. 20, 2000) (wire fraud indictment need not identify specific
wirings) (collecting cases). He argues that Count Three, charging false statements in relation to
health care in violation of 18 U.S.C. § 1035, also charged distinct offenses in a single count, (Pet.
at 3), but again, a violation of that statute may be charged, as it was here, “in one count with a
scheme comprised of several acts of falsification or concealment.” Mermelstein, 487 F. Supp.
2d at 256 (emphasis in original).
Petitioner also contends that because portions of the health care fraud schemes occurred
more than five years before he was indicted, Counts One, Two and Three were barred by the
statute of limitations. (Pet. at 2-3.) He is again incorrect, as each of those counts alleged
conduct lasting into 2017, within five years of his indictment, and each is properly charged as a
continuing offense. See United States v. Rutigliano, 790 F.3d 389, 396 (2d Cir. 2015) (wire
fraud and health care fraud are continuing offenses); Mermelstein, 487 F. Supp. 2d at 255, 256
(health care fraud and health care false statements properly charged as continuing offenses).
Continuing offenses “are not barred by the statute of limitations if the alleged conduct continues
mentioned the fact that Petitioner defrauded his patients as well as their insurers, and defrauding
patients does not violate § 1347. (Pet. at 2.) That description, however, was incorporated into
Count Two, charging wire fraud in violation of 18 U.S.C. § 1343, and defrauding patients plainly
falls within that charge. To the extent the reference to patients did not support Count One, it
“was mere harmless surplusage.” United States v. Rodriguez, 556 F.2d 638, 641 (2d Cir. 1977).
23
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to a date within the limitations period,” Mermelstein, 487 F. Supp. 2d at 253, as was charged
here.20
Thus, none of the purported defects in the indictment regarding the health care counts
would have provided any sort of defense for Petitioner, and if counsel had indeed told him that
he had no defense (as opposed to what they say they told him, which was the Government’s case
was very strong and he was likely to be convicted), that unwelcome advice would have been
accurate. For the same reasons, none of the motions that Petitioner thinks counsel should have
made with respect to the health care counts would have succeeded. Counsel cannot be said to
have performed below professional standards in not making a meritless motion, nor can
Petitioner be said to have been prejudiced by counsel not doing so. See Harrington, 689 F.3d at
130; United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995); Beniquez v. Johnson, No. 21-
CV-1467, 2023 WL 3948738, at *17 (S.D.N.Y. June 12, 2023).
Petitioner’s arguments related to the PPP counts fare no better. He first seems to
contend that Counts 4-6 are somehow invalid because they charged crimes committed while on
pretrial release for Counts 1-3, which he contends were time-barred. (Pet. at 3.) Not only is
that not the case, as discussed above, but even if it were, it is impossible to discern any effect that
would have on the propriety of the PPP counts, and Petitioner points to none. He also contends
that those counts improperly invoked 18 U.S.C. § 3147, which provides for enhanced penalties
20
Although Petitioner’s attorneys reached the same conclusion, (MM Decl. ¶ 31; TY
Decl. ¶ 28-30), Petitioner protests that Ms. Young stated that she did not do the statute of
limitations research herself, (P’s Reply at 17). That is not accurate, as Ms. Young avers that she
reviewed the case law apparently assembled by a colleague, (TY Decl. ¶ 28), and in any event
irrelevant, not only because lawyers are permitted to delegate tasks to their colleagues, but
because the conclusion Ms. Young drew was correct.
24
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for crimes committed while on bail, because he was never warned that offenses committed while
on release would be subject to such enhancement. (Id.) This claim is false. The Magistrate
Judge who arraigned Petitioner on the original indictment gave him that warning, (ECF No. 110
at 11:4-12), and it appears on the “Advice of Penalties and Sanctions” form he signed as part of
his appearance bond, (ECF No. 5 at 3). Petitioner further challenges the bank fraud charge in
Count Four by arguing that the funds sought by the false loan application belonged to the United
States, not the bank. (Pet. at 3.) Even if that were true – and it is not, as the Government does
not make PPP loans, but simply guarantees them, see, e.g., Springfield Hosp., Inc. v. Guzman, 28
F.4th 403, 408 (2d Cir. 2022); Pharaohs GC, Inc. v. United States Small Bus. Admin., 990 F.3d
217, 224 (2d Cir. 2021) – the fact remains that the funds were under the “custody or control” of
the bank, as encompassed by 18 U.S.C. § 1344, see, e.g., United States v. $1,037,449.63 Seized
from One Bank of Am. Acct., No. 22-CV-7459, 2023 WL 9420837, at *3 (C.D. Cal. June 6,
2023). Petitioner also attempts to fault Citibank for setting up two different loans for him, (P’s
Reply at 19-22), but even if that could somehow excuse his submitting the same payroll report
for both loans or his stating in two separate applications that he had not sought another PPP loan,
it would not excuse his statement in the loan applications that he was not under indictment.
Unsurprisingly, Petitioner offers no argument that could have gotten him out from under that
particular lie, which he admitted he made intentionally to get a loan for which he would
otherwise be disqualified. (Plea Tr. at 32:1-8.)21
21
Petitioner complains that counsel did not challenge the Government’s sentencing
allegation that, based on first-in/first out accounting principles, Petitioner spent the PPP money
on personal expenses. (P’s Reply at 22-23.) But the Pre-Sentence Report notes, in connection
with that allegation, (PSR ¶ 71), that counsel had objected on the grounds that the account in
question already had enough, before the loan proceeds were deposited, to cover the personal
25
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Accordingly, the “defenses” that Petitioner believes renders substandard the advice that
he had no defenses are not defenses at all. Counsel’s advice that a plea was his best option did
not fall below professional standards, nor did counsel’s failure to make the meritless motions
Petitioner suggests. See United States v. Abad, 514 F.3d 271, 276 (2d Cir. 2008) (counsel
could not have been ineffective “for failing to make a motion that would have been futile”);
Fabre v. Taylor, No. 08-CV-5883, 2009 WL 162881, at *11 (S.D.N.Y. Jan. 20, 2009) (“Since
[Petitioner’s] claim that the [Government] could not have proven the [charges] is meritless,
counsel cannot be found ineffective for not pursuing a strategy doomed to failure.”), report and
recommendation adopted, 2009 WL 1457169 (S.D.N.Y. May 26, 2009). Nor can the failure to
make meritless motions have prejudiced Petitioner. See Whaley v. United States, No. 09-CR-
619, 2024 WL 2847141, at *11 (E.D.N.Y. June 5, 2024) (“counsel were not ineffective for
failing to bring meritless motions or arguments without a reasonable chance of success, and, in
any event, because any such motions were futile, Petitioner was also not prejudiced as a result by
counsel’s failure to pursue [them]”); United States v. Perez-Luna, No. 07-CV-5533, 2008 WL
5170179, at *4 (S.D.N.Y. Dec. 10, 2008) (where motion would have been meritless, no prejudice
from failure to file it).
Finally, even if counsel’s advice that Petitioner should plead was substandard, Petitioner
has not shown that he otherwise would have insisted on going to trial, or that doing so would
have left him better off. See Lee, 582 U.S. at 364-65 (“when the defendant’s decision about
expenditures, (PSR at 21 n.6). Counsel also objected to the Government’s assertion that
Petitioner never sought to return the funds, which were later clawed back by Citibank, (PSR ¶
72), by noting that the PPP funds were still in the account at the time of the clawback, (PSR at 21
n.7). In other words, counsel made the arguments Petitioner accuses them of omitting.
26
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going to trial turns on his prospects of success and those are affected by the attorney’s error,” he
must show both that he otherwise would have insisted on going to trial and that he would have
been better off doing so). As counsel – and apparently Petitioner – appreciated, the odds of the
Government failing to prove the case were slim, and the plea afforded him substantial benefits.22
In September 2021, less than two weeks before trial, the Government estimated that Petitioner’s
sentencing range on a plea without an agreement would be 235-293 months’ imprisonment, (MM
Decl. ¶ 43; TY Decl. ¶ 42), and it follows that a conviction after trial (in other words, without a
two-level reduction in offense level for acceptance of responsibility) would have increased that
estimate to 292-365 months. The Government at that time also offered a plea agreement with a
stipulated range of 168-210 months, which counsel convinced the Government to reduce to 151-
188 months. (MM Decl. ¶ 44; TY Decl. ¶ 43.) By accepting that offer, Petitioner reduced his
Guidelines exposure by almost half. In light of the meritlessness of his defenses and the great
disparity in the Guidelines ranges on the plea versus trial, Petitioner has not shown either that he
22
Petitioner also argues that his plea was invalid. To the extent he argues that the plea
proceeding violated Federal Rule of Criminal Procedure 11, the transcript reveals that all
portions of that statute were honored, but even if they were not, any such violation would not be
cognizable via § 2255, which provides relief for constitutional, not statutory, violations. See
Mallard v. United States, No. 95-CR-379, 2009 WL 1873665, at *3 (E.D.N.Y. June 29, 2009).
Petitioner also claims that counsel did not consult with him about appealing, (Pet. at 4), a
contention belied by the declarations of Mr. Mukasey and Ms. Young, (MM Decl. ¶ 52; TY
Decl. ¶ 51). In any event, Petitioner was aware of his right to appeal because the court told him
of it at sentencing, (Sent. Tr. at 60:19-61:1), and he does not claim he asked counsel to file an
appeal. Further, there is no indication that any appeal would not have been barred by the waiver
in his plea agreement or that he had any grounds that would have succeeded on appeal.
Petitioner has thus not shown either substandard performance or prejudice. See, e.g., Garcia v.
United States, 199 F.3d 1322 (2d Cir. 1999); Abreu v. United States, No. 20-CR-52, 2024 WL
4007823, at *4 (S.D.N.Y. Aug. 29, 2024); Garrison v. United States, No. 22-CR-613, 2024 WL
3784456, at *2 (S.D.N.Y. Aug. 13, 2024); Lopez v. United States, No. 16-CR-403, 2021 WL
4820620, at *5 (E.D.N.Y. Oct. 15, 2021).
27
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“‘would have been acquitted or, if convicted, would nevertheless have been given a shorter
sentence than he actually received.’” Hill, 474 U.S. at 59 (quoting Evans v. Meyer, 742 F.2d 371,
375 (7th Cir. 1984)). His “self-serving statement that he . . . would have rejected the plea
agreement does not suffice.” United States v. Gali, 708 F. Supp. 3d 271, 281 (E.D.N.Y. 2023.)
No hearing is necessary on Petitioner’s post-indictment claims is necessary, for
essentially the same reasons one was not required for his pre-indictment claims. Live testimony
will add little to nothing to the written submissions, and would cause delay, needless expenditure
of judicial resources and an unnecessary burden on the attorneys. See Crisci, 108 F. App’x at
27; Williams, 2012 WL 1116403, at *5. Having presided over the case and observed both
Petitioner and his counsel throughout, including at the time of the plea and sentencing, I
conclude that the “intermediate step [] between deciding the motion without the benefit of any
supplemental materials and a full hearing with live witnesses,” Puglisi, 586 F.3d at 215, is
appropriate here. In light of Petitioner’s “highly self-serving and improbable assertions,” in
contrast to his counsel’s “eminently credible” version of events, a live “hearing would not offer
any reasonable chance of altering [my] view of the facts.” Chang, 250 F.3d at 86.
I have considered all of Petitioner’s arguments, and they do not, singly or in combination,
establish ineffective assistance of counsel or the need for a hearing. To extent Petitioner seeks
bail pending decision on this 2255, that application is denied as moot. To the extent he seeks
bail pending a possible appeal of this ruling, that application is also denied. See Illarramendi v.
United States, 906 F.3d 268, 271 (2d Cir. 2018); Mapp v. Reno, 241 F.3d 221, 226 (2d Cir.
2001); United States v. Williams, 734 F. Supp. 3d 203, 204 (E.D.N.Y. 2024).23
23
On November 4, 2024, the court received an application for bail pending decision on
28
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***
In sum, Petitioner cannot show that his counsel provided substandard assistance or that
anything they did caused him prejudice. Rather, the record is clear that his lawyers put in a
thorough and professional effort on behalf of a client whose goose was cooked by the large
amount of evidence of his criminal conduct assembled by the Government. Counsel undertook
a comprehensive review of documents, interviewed many witnesses, analyzed the relevant
factual and legal issues, made numerous motions, (both procedural, (see, e.g., ECF Nos. 27, 33,
48, 53, 59, 98, 119), and substantive, (see, e.g., ECF Nos. 16-18, 29-31, 41, 46, 52, 62-63, 73)),
got the Government to reduce its final plea offer, and made a superb sentencing presentation,
(Sent. Tr. at 32:3-44:2), that persuaded the Court to impose a sentence of 96 months’
imprisonment, well below the stipulated Guidelines range of 151-188 months. Petitioner lost
the benefit of the Government’s initial offer because of his own decision, not because of any
guarantee of an acquittal by his lawyers, and then made matters worse by committing new crimes
while on release – conduct that made the case essentially unwinnable. There was no defense
that would have succeeded, and his allocutions confirm that he committed both frauds simply to
get money to which he knew he was not entitled. (See Plea Tr. at 31:15-32:14.) Petitioner’s fix
is of his own making, not his lawyers’.
Petitioner’s § 2255 petition. It contains medical information so the court has not filed it
publicly, but will provide a copy to the Government and file it under seal. The application for
bail pending decision on the Petition is denied as moot. The application could be construed as a
motion for reduction of sentence under 18 U.S.C. § 3582(c)(1)(A), although it does not address
exhaustion required under that statute. If Petitioner intends it as such, he may so advise the
Court, and in that event the Court will set a date for the Government to respond.
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Case 7:19-cr-00844-CS Document 159 Filed 01/27/25 Page 30 of 30
Conclusion
In light of the foregoing, the motion under Section 2255 is denied and the Petition is
dismissed. The Clerk of Court is respectfully directed to: 1) docket this Order in both of the
above-captioned cases; 2) close No. 23-CV-1516; and 3) provide a copy of this Order to
Petitioner by mail at the following address: Ameet Goyal, No. 87508-054, USP Canaan, U.S.
Penitentiary, Satellite Camp, P.O. Box 200, Waymart, PA 18472. As the Petition makes no
substantial showing of a denial of a constitutional right, a certificate of appealability will not
issue. See 28 U.S.C. § 2253; Matthews v. United States, 682 F.3d 180, 185 (2d Cir. 2012).
SO ORDERED.
Dated: January 27, 2025
White Plains, New York
___________________________
CATHY SEIBEL, U.S.D.J.
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