United States District Court, D. Connecticut
SYED A. BABAR, Petitioner,
UNITED STATES OF AMERICA, Respondent.
RULING ON MOTION TO VACATE, SET ASIDE OR CORRECT
W. THOMPSON, UNITED STATES DISTRICT JUDGE
Syed A. Babar (“Babar”), proceeding pro se, filed
a motion pursuant to 28 U.S.C. § 2255 to vacate, set
aside or correct his sentence. He makes two claims: (1) that
his attorney's advice to reject an initial plea agreement
constituted constitutionally ineffective assistance of
counsel, and (2) that Alleyne v. United States, 133
S.Ct. 2151 (2013), rendered his plea invalid. The court
concluded that a hearing was necessary and appointed counsel
for Babar. For the reasons set forth below, the motion is
being denied after that hearing.
FACTUAL AND PROCEDURAL BACKGROUND
2006 to 2010, Babar was the ring leader of a mortgage fraud
ring that obtained millions of dollars in residential real
estate loans through the use of sham sales contracts, false
loan applications and fraudulent property appraisals. The
scheme involved nearly 30 properties in Connecticut, most of
which ended up in foreclosure. Babar's conduct, and that
of his co-defendants, resulted in a loss of over $4 million
to various private lenders and to the Federal Housing
Administration, which insured many of the loans that were
was charged in a Second Superseding Indictment on July 29,
2010. He had been arrested on the initial Indictment on May
10, 2010. Jury selection was scheduled for March 14, 2011. On
February 1, 2011, Babar changed his plea to guilty on all
fourteen counts charged against him in the Second Superseding
argued in his sentencing memorandum that the recommended
sentencing guidelines range of 108 to 135 months in the
Presentence Report was “harsher than the sentences
received by all the other co-defendants” and created a
“sentencing disparity” with “co-defendants
who had significant roles during the conspiracy.”
Def.'s Sentencing Mem. at 31. Babar also argued in his
sentencing memorandum that a downward departure was necessary
to mitigate the allegedly cumulative effects of overlapping
sentencing enhancements pursuant to United States v.
Lauersen, 348 F.3d 329 (2d Cir. 2003), and United
States v. Jackson, 346 F.3d 22 (2d Cir. 2003).
court sentenced Babar to 120 months of imprisonment. He
appealed his sentence. U.S. v. Babar, 512 Fed.Appx.
78 (2 Cir. 2013). In his appeal, Babar made five arguments.
First, Babar argued that the leadership role enhancement
imposed at his sentencing was not supported by sufficient
factual findings. Second, Babar claimed that his sentence was
grossly disproportionate to the lesser sentences received by
his co-defendants. Third, he contended that the district
court should have given him an additional one-point reduction
for his acceptance of responsibility. Fourth, he argued that
he should have received a downward departure for overlapping
sentencing enhancements. Finally, he maintained that his
sentence was substantively unreasonable. The Second Circuit
found all of Babar's arguments unpersuasive and upheld
prisoners can challenge a criminal sentence pursuant to 28
U.S.C. § 2255 “only for a constitutional error, a
lack of jurisdiction in the sentencing court, or an error of
law or fact that constitutes a fundamental defect which
inherently results in complete miscarriage of justice.”
Graziano v. United States, 83 F.3d 587, 590 (2d Cir.
1996) (internal citation and quotation marks omitted). A
petitioner may obtain review of his claims if he has raised
them at trial or on direct appeal; if not, such a procedural
default can be overcome by a showing of “cause”
and “prejudice”, Ciak v. United States,
59 F.3d 296, 302 (2d Cir. 1995) abrogated on other grounds
by Mickens v. Taylor, 535 U.S. 162 (2002) (quoting
Wainwright v. Sykes, 433 U.S. 72, 87 (1977)), or a
showing of constitutionally ineffective assistance of
counsel, see Murray v. Carrier, 477 U.S. 478, 487-88
(1986); Johnson v. United States, 313 F.3d 815, 817
(2d Cir. 2002).
prevail on an ineffective assistance of counsel claim, the
petitioner must show that his “counsel's
representation fell below an objective standard of
reasonableness” and that “there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S.
668, 688, 694 (1984). “The court ‘must indulge a
strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance, '
bearing in mind that ‘[t]here are countless ways to
provide effective assistance in any given case' and that
‘[e]ven the best criminal defense attorneys would not
defend a particular client in the same way.'”
United States v. Aguirre, 912 F.2d 555, 560 (2d Cir.
1990) (quoting Strickland, 466 U.S. at 689). Courts should
not second-guess the decisions made by defense counsel on
tactical and strategic matters. See United States v.
Luciano, 158 F.3d 655, 660 (2d Cir. 1998). “The
court's central concern is not with ‘grad[ing]
counsel's performance, ' but with discerning
‘whether, despite the strong presumption of
reliability, the result of the particular proceeding is
unreliable because of a breakdown in the adversarial process
that our system counts on to produce just
results.'” Aguirre, 912 F.2d at 561 (quoting
Strickland, 466 U.S. at 696-67) (internal citations
Ineffective Assistance of Counsel
Ground One Babar alleges that
Counsel rendered ineffective assistance when he advised Babar
to reject the government's plea offer and later advised
him to plead guilty in open Court to the 14 Counts in the
indictment which resulted in a longer sentence.
Sec. 2255 Mot., Mem. in Supp., Doc. No. 1-2, at 2
(“Doc. No. 1-2”). Babar also alleges that he
would have accepted the initial plea ...