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Babar v. United States

United States District Court, D. Connecticut

March 31, 2017

SYED A. BABAR, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RULING ON MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE

          ALVIN W. THOMPSON, UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         From 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 fraudulently obtained.

         Babar 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 Indictment.

         Babar 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).

         The 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 the sentence.

         II. LEGAL STANDARD

         Federal 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).

         To 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 omitted)).

         III. DISCUSSION

         A. Ineffective Assistance of Counsel

         In 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 ...


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