United States District Court, E.D. North Carolina, Southern Division
C. DEVER III CHIEF UNITED STATES DISTRICT JUDGE.
14, 2016, Julian Marie Breslow ("Breslow") moved
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
correct her 30-month sentence [D.E. 86]. On December 5, 2016,
the government moved to dismiss Breslow's section 2255
motion [D.E. 90] and filed a memorandum in support [D.E. 91].
On January 3, 2017, Breslow responded in opposition to the
government's motion to dismiss [D.E. 93]. On March 2,
2017, Breslow filed a motion to recommend halfway house
placement [D.E. 94]. As explained below, the court grants the
government's motion to dismiss, dismisses Breslow's
section 2255 motion, and denies Breslow's motion to
recommend halfway house placement.
February 11, 2014, a federal grand jury charged Breslow in a
twenty-count indictment with major fraud in violation of 18
U.S.C. §§ 1031 and2 (counts one and twelve), false
statements to the United States in violation of 18 U.S.C.
§§1001 and 2 (counts two through six), wire fraud
in violation of 18 U.S.C. §§ 1343 and 2 (counts
seven through eleven, fifteen, and sixteen), false statements
to the United States violation of 18 U.S.C. §§1001
and 2 (counts thirteen and fourteen), mail fraud violation of
18 U.S.C. §§ 1341 and 2 (counts seventeen and
nineteen), and aggravated identity theft in violation of 18
U.S.C. §§ 1028A and 2 (counts eighteen and twenty).
See [D.E. 1] 12-20. On September 17, 2014, pursuant to a plea
agreement [D.E. 30], Breslow pleaded guilty to count three,
and the government agreed to dismiss the remaining nineteen
counts at sentencing. See id.; Rule 11 Tr. [D.E. 33] 13-34.
During Breslow's Rule 11 hearing, Breslow swore that she
understood the charge to which she was pleading guilty and
understood the maximum penalties provided for that charge.
See Rule 11 Tr. 19-20. Breslow also swore that she understood
all the trial rights that she had and that she would be
waiving if she pleaded guilty as well as the direct and
collateral consequences of pleading guilty. See Id.
at 20-26. Breslow also swore that she understood the
sentencing process, that any estimate of her sentence or the
advisory guideline range from any source was not binding on
the court, that any erroneous prediction of her advisory
guideline range or sentence would not allow her to withdraw
her guilty plea, and that the court could sentence her up to
the statutory maximum of 60 months on count three. See
Id. at 20-21. Breslow also swore that no one had
threatened her or anyone else or made any promise to her or
anyone else that made her decide to plead guilty.
Id. at 21-22. Breslow also swore that she had
reviewed her plea agreement with her counsel and understood
the appellate waiver in her plea agreement. Id. at
end of her Rule 11 hearing, Breslow pleaded guilty to count
three, and the government provided a factual basis for the
guilty plea. See Id. at 26-31. The court then
accepted Breslow's guilty plea to count three. See
Id. at 31-32.
16, 2015, at Breslow's sentencing hearing, the court
calculated Breslow's advisory guideline range as 60
months' imprisonment on count three. See Sent. Tr. [D.E.
67] 5. After considering all relevant factors under 18 U.S.C.
§ 3553(a), the arguments of counsel, and Breslow's
allocution, the court varied down and sentenced Breslowto 30
months' imprisonment on count three. See id. 3
8-43. Pursuant to the plea agreement, the court dismissed
counts one, two, and four through twenty. See Id.
appealed. On March 3, 2016, the United States Court of
Appeals for the Fourth Circuit affirmed Breslow's
conviction, enforced the appellate waiver in her plea
agreement, and dismissed the appeal of her downward variant
sentence. See United States v. Breslow, 63 5
F.App'x 121, 122 (4th Cir. 2016) (per curiam)
14, 2016, Breslow filed her section 2255 motion, asserting
five claims. See [D.E. 86]. First, that Breslow's former
government-contracts attorney David J. Valdini was
constitutionally ineffective because he provided information
to the grand jury, that the Assistant U.S. Attorney who
handled the case was overly aggressive and presented
non-credible testimony to the grand jury, and that the grand
jury erroneously indicted Breslow. Id. at 4. Second,
that Breslow's criminal-defense attorneys were
constitutionally ineffective because they used "strong
arm tactics" to compel Breslow to plead guilty and
failed properly to review or dispute Breslow's PSR.
Id. Third, that Breslow's criminal-defense
attorneys were constitutionally ineffective because they
failed to review tax filings and to call her accountant
testify at Breslow's sentencing hearing. Id. at
6-7. Fourth, that Breslow's criminal-defense attorneys
were constitutionally ineffective because they failed to
recognize that Breslow was merely a figurehead in Pompano
Masonry Corporation. See id. at 8. Fifth, that
Breslow's criminal-defense attorneys were
constitutionally ineffective because they failed to
investigate where Breslow was during certain events relevant
to the charges in the indictment. See id. at 9.
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for "failure to state a claim upon which
relief can be granted" tests the legal and factual
sufficiency of a complaint. See Ashcroft v. Iqbal,
556 U.S. 662, 677-78 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-63, 570 (2007); Coleman
v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir.
2010), affd. 566U.S. 30 (2012); Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008); accord
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per
curiam). In considering a motion to dismiss, a court need not
accept a complaint's legal conclusions. See,
e.g., Iqbal, 556 U.S. at 678. Similarly, a
court "need not accept as true unwarranted inferences,
unreasonable conclusions, or arguments."
Giarratano, 521 F.3d at 302 (quotation omitted); see
Iqbal. 556 U.S. at 677-79. Moreover, a court may
take judicial notice of public records without converting a
motion to dismiss into a motion for summary judgment.
See, e.g., Fed.R.Evid. 201; Tellabs. Inc. v.
Makor Issues & Rights. Ltd., 551 U.S. 308, 322
(2007); Philips v. Pitt Ctv. Mem'l Hosp., 572
F.3d 176, 180 (4th Cir. 2009). In reviewing a section 2255
motion, the court is not limited to the motion itself. The
court also may consider "the files and records of the
case." 28 U.S.C. § 2255(b); see United States
v. McGill, 11 F.3d 223, 225 (1st Cir. 1993).
Breslow's claim that Breslow's former
government-contracts attorney David J. Valdini was
constitutionally ineffective because he provided information
to the grand jury in response to a grand jury subpoena served
on his law firm,  that the Assistant U.S. Attorney who
handled Breslow's criminal prosecution was overly
aggressive and presented non-credible testimony to the grand
jury, and that the grand jury erroneously indicted Breslow,
Breslow failed to raise the issues in this claim on direct
appeal. The general rule of procedural default, however, bars
a petitioner from presenting a claim under section 2255 that
was not raised on direct appeal unless the petitioner can
establish "actual innocence" or "cause and
prejudice" for the failure to raise the issue on direct
appeal. See, e.g., Massaro v. United
States, 538 U.S. 500, 504 (2003); Bousley v. United
States, 523 U.S. 614, 621 (1998); United States v.
Fugit, 703 F.3d 248, 253 (4th Cir, 2012); United
States v. Sanders, 247 F.3d 139, 144 (4th Cir. 2001).
Breslow has not plausibly alleged "actual
innocence" or "cause and prejudice" resulting
from the alleged errors about which she now complains. See
Bousley, 523 U.S. at 622-24; Coleman v.
Thompson, 501 U.S. 722, 753 (1991); Frady, 756
U.S. at 170; United States v. Pettiford, 612 F.3d
270, 280-85 (4th Cir. 2010); United States v.
Mikalajunas, 186 F.3d 490, 492-95 (4th Cir. 1999). Thus,
the claim fails.
Breslow's claims that her criminal-defense counsel
provided ineffective assistance, "[t]he Sixth Amendment
entitles criminal defendants to the effective assistance of
counsel-that is, representation that does not fall below an
objective standard of reasonableness in light of prevailing
professional norms." Bobby v. Van Hook, 558
U.S. 4, 7 (2009) (per curiam) (quotations omitted). The Sixth
Amendment right to counsel extends to all critical stages of
a criminal proceeding. See. e.g., Missouri v.
Frye, 566 U.S. 133, 140 (2012); Lafler v.
Cooper. 566 U.S. 156, 164 (2012). "[S]entencing is
a critical stage of trial at which a defendant is entitled to
effective assistance of counsel, and a sentence imposed
without effective assistance must be vacated and reimposed to
permit facts in mitigation of punishment to be fully and
freely developed." United States v.
Breckenridge. 93 F.3d 132, 135 (4th Cir. 1996); see
Glover v. United States, 531 U.S. 198, 203-04
(2001). To state a claim of ineffective assistance of counsel
in violation of the Sixth Amendment, Breslow must show that
her attorneys' performance fell below an objective
standard of reasonableness and that she suffered prejudice as
a result. See Strickland v. Washington, 466 U.S.
668, 687-91 (1984).
determining whether counsel's representation was
objectively unreasonable, a court must be "highly
deferential" to counsel's performance and must
attempt to "eliminate the distorting effects of
hindsight." Strickland, 466 U.S. at 689.
Therefore, the "court must indulge a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance." Id. A
party also must show that counsel's deficient performance
prejudiced the party. See id. at 691-96. A party
does so by showing that there is a "reasonable
probability" that, but for the deficiency, "the
result of the proceeding would have been different."
Id. at 694.
Breslow claims that her criminal-defense counsel used
"strong arm tactics" to compel her to plead guilty
and failed to review properly the PSR. During Breslow's
Rule 11 hearing, however, Breslow swore under oath that no
one had threatened her or anyone else concerning her
guiltyplea. See Rule 11 Tr. 21-22. Moreover, during
Breslow's sentencing hearing, Breslow swore that she had
discussed her PSR with her lawyers. See Sentencing Tr. 4.
Breslow's sworn statements at her Rule 11 proceeding and
sentencing hearing bind her and defeat her first claim of
ineffective assistance of counsel. See, e.g., Blackledge
v. Allison, 431 U.S. 63, 74 (1977); United States v.
Moussaoui, 591 F.3d 263, 299-300 (4th Cir. 2010);
United States v. LeMaster, 403 F.3d 216, 221-23 (4th
Breslow contends that her criminal-defense counsel were
constitutionally ineffective because they failed to use
Breslow's accountant to review tax filings and testify at
Breslow's sentencing hearing, failed to recognize that
Breslow was merely a figurehead in Pompano Masonry
Corporation, and failed to investigate where Breslow was
during certain events relevant to the charges in the
indictment. Breslow's contentions fail for at least three
reasons. First, Breslow cannot use section 2255 to
retroactively contest her advisory guideline range.
See, e.g., United States v. Foote, 784 F.3d
931.935-36 (4th Cir. 2015); United States v.
Pregent,190 F.3d 279.283-84 (4th Cir. 1999); see also
Whiteside v. United States, 775 F.3d 180, 183-87
(4th Cir. 2014) (en banc); Mikalajunas, 186 F.3d at
495-96. Second, the advice of Breslow's criminal-defense
counsel concerning pleading guilty to count three falls
comfortably within the wide range of professionally competent
representation due to the overwhelming evidence against
Breslow (see PSR ¶¶ 9-31) and the
favorable terms of the plea agreement. See, e.g.,
Premo v. Moore, 562 U.S. 115, 123-32 (2011);
Knowles v. Mirzayance, 556 U.S. 111, 127-28 (2009);
Strickland, 466 U.S. at 689-700; Morva v.
Zook,821 F.3d 517, 528-32 (4th Cir. 2016); Powell
v. Kelly, 562 F.3d 656, 670 (4th Cir. 2009). Third,
Breslow received a downward variant sentence on count three,