Nabe v. United States, 11-CV-05526 (CBA)
| Decision Date | 19 August 2014 |
| Docket Number | 11-CV-05526 (CBA),12-CV-5042 (CBA) |
| Parties | MOHAMED NABE, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
NOT FOR PUBLICATION
Pro se petitioner Mohamed Nabe, a citizen of Guinea who was granted asylum in the United States prior to his conviction, filed two habeas petitions, the first pursuant to 28 U.S.C. § 2255 and the second pursuant to 28 U.S.C. § 2241. Nabe pleaded guilty, without a plea agreement, to one count of the use and conspiracy to use fraudulently obtained credit cards to obtain money, goods, services, and other things of value aggregating $1,000 or more within a one-year period, in violation of 15 U.S.C. § 1644(a). Because the loss in the case exceeded $100,000, the Department of Homeland Security ("DHS") has moved to reopen Nabe's immigration proceeding and to terminate his asylum status. Nabe's § 2255 habeas raises several claims of ineffective assistance of counsel against the attorney who represented him at his plea hearing, Martin Geduldig, and the attorney who represented him at his Fatico hearing and sentencing hearing, Susan Kellman. Nabe's § 2241 petition seeks a reduction of his supervised release due to amendments to the United States Sentencing Guidelines Manual ("USSG") made after his sentencing. This Court finds all of Nabe's claims meritless and dismisses his petitions in their entireties.
Nabe was arrested on September 11, 2008, for his involvement in a conspiracy to use fraudulently-obtained credit cards. His arrest was a result of an investigation commenced in the spring of 2008 by the United States Postal Inspection Service into the fraudulent procurement and use of credit cards issued by Chase Bank. (Fatico Tr. at 11.) As part of this scheme, at least 28 credit cards were applied for under the identities of real individuals. (Id. at 12-13.) After the applications were approved, many of the cards were re-routed to one of three Queens addresses after Chase would receive a telephone call, ostensibly from the credit card customers, asking that the credit cards be sent to those addresses instead of the addresses on the applications. (Id. at 12-15.) After these cards were sent to these addresses, they were used at various retail locations to purchase, among other things, luxury items. (E.g. id. at 22, 33, 39-40, 46.) All of the purchases made on these newly-issued credit cards were disputed by the named holders of the credit cards and were eventually determined by Chase to be unauthorized. (Id. at 14.) In total, over $250,000 in fraudulent charges were made on the cards sent to the Queens addresses. (See Sentencing Tr. at 6-7.)
Nabe was connected to this scheme in a variety of ways. Surveillance footage and store personnel at retail stores identified him using several of these credit cards. (Fatico Tr. at 22-25, 34.) Telephone conversations recorded by Chase in the normal course of business captured Nabe on three occasions identifying himself as the true cardholder and requesting that the newly-issued cards be sent to the Queens addresses, (Id. at 16-17, 62-63, 85-87.) The cellular telephone number Nabe used to call Chase was also used in numerous other instances to reroute credit cards to the Queens addresses. (E.g. id. at 18-19.) In addition, while conductingsurveillance, a postal inspector observed Nabe entering and exiting at least one of these Queens addresses. (Id. at 29.) At one address, an individual residing in the house told a postal inspector that Nabe no longer lived at the residence but that he frequently returned to receive mail in other people's names. (Id. at 20-21.) At another address ("the Highland address"), the landlord told investigators that Nabe lived at the location but that he knew him as "Alexis Taylor." (Id. at 29.) Several of the credit cards at issue were applied for over the internet using the IP address that was registered to Nabe's apartment at the Highland address. (Id. at 28, 60-61, 64, 75.)
Following his arrest at the Highland address on September 11, 2008, Nabe told postal inspectors that he allowed others to use his address and internet connection to obtain fraudulent credit cards. He further stated that he would then provide these individuals with the fraudulent cards that came to his address and eventually gave them the keys to his apartment so that they could retrieve the cards themselves. Nabe estimated that between 2007 and 2008, approximately 30-40 cards were sent to the two different addresses at which he resided. (Id. at 91-92.) A search of Nabe's residence executed pursuant to a warrant uncovered luxury clothing items and high-priced electronic equipment, some of which were the same brands and types as those purchased with the credit cards sent to the Queens addresses. (Id. at 45-47, 87-89, 106-07.)
A grand jury indicted the defendant on October 10, 2008, charging him with one count of using and conspiring to use fraudulently-obtained credit cards to obtain money, goods, services, and other things of value aggregating $1,000 or more within a one-year period, in violation of 15 U.S.C. § 1644(a).
In December 2008, Nabe pleaded guilty, without a plea agreement, to the sole count in the indictment and indicated that he would challenge the loss amount at a Fatico hearing. Both the Government and Nabe's counsel, Mr. Geduldig, agreed that challenging the loss amount at a Fatico hearing would not automatically result in the loss of two points for acceptance of responsibility. The Government further indicated that it was premature to indicate whether or not it would recommend granting a third point for acceptance of responsibility. (Plea Tr. at 3-4.)
To take the plea, the Court placed Nabe under oath. (Id. at 6.) Nabe indicated that he discussed pleading guilty with his attorney and was satisfied with his attorney's representation. (Id. at 8.) The Court reviewed the elements of the crime to which Nabe was pleading, including the interstate commerce requirement (id. at 10-11), reviewed the maximum penalty for the offense, including the terms and conditions of supervised release (id. at 13-14), and indicated that the imposition of restitution was mandatory (id. at 15). The Court explained that at sentencing it would determine the proper guideline range. (Id. at 17-18.) The Court also informed Nabe that he could face deportation as a result of the plea. (Id. at 16.) Nabe indicated that he did not believe he was eligible for deportation because of his asylum status. The Court responded that it did not know the details of Nabe's particular situation, but that generally an individual without United States citizenship who pleads guilty to certain types of felonies is very likely going to be deported. (Id. at 16-17.)
Finally, after ascertaining that Nabe was pleading guilty voluntarily, and not in exchange for any promises, the Court heard Nabe's allocution. (Id. at 22-23.) Nabe testified that since 2004 he never personally applied for a credit card. He stated that other people with whom he was associated applied for the credit cards and if he wanted to use the cards he would purchasethe right to do so. (Id. at 23.) Nabe explained that he knew that the people he was associated with were fraudulently applying for cards and that he allowed the cards to be shipped to his address. (Id. at 23-24.) He admitted to using the fraudulently obtained cards, but claimed that he would only make small purchases with them. (Id. at 23, 25.)
The Government expressed concern that Nabe's plea, although meeting the elements of the crime, did not accurately portray his level of involvement in the charged offense and indicated that it would seek to enhance his sentencing guideline range for obstruction of justice if the allocution was false. (Id. at 25-27.) Nabe then explained that he worked with someone inside Chase and had offered to cooperate with the Government against that individual. (Id. at 28-29.)
After Nabe and the Government spoke, this Court cautioned that Nabe should "straighten out" his facts and advised that "if you made a mistake . . . you should get that squared away." Nabe's counsel indicated that Nabe did not wish to alter his allocution that he was not the one who applied for the credit cards (id. at 29-31) and this Court accepted Nabe's plea (id. at 31).
A two-day Fatico hearing to determine the monetary amount of the fraud was held from July 7, 2009 to July 8, 2009. That Fatico hearing revealed Nabe's extensive role in the charged conspiracy. On July 29, 2009, following the Fatico hearing, the Court sentenced Nabe to 48 months' incarceration, followed by a supervised release term of three years, and ordered payment of restitution in the amount of $252,981. Nabe's appeal to the Second Circuit was rejected and a mandate issued on November 5, 2010. On January 11, 2011, Nabe filed a petition for a writ of certiorari with the Supreme Court, which was denied on February 22, 2011. On November 4, 2011, Nabe filed a § 2255 petition seeking to vacate, set aside, or correct hissentence. On September 28, 2012, Nabe filed a § 2241 petition seeking a reduction of his supervised release
I. Ineffective Assistance Standard
This Court first turns to the claims raised in the § 2255 petition. Ineffective assistance of counsel claims are governed by the framework articulated in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on an ineffective assistance of counsel claim under Strickland, the petitioner must demonstrate "(1) that his counsel's performance was deficient, and (2) 'that the deficient performance prejudiced the defense.'" Hemstreet v. Greiner, 491 F.3d 84, 89 (2d Cir. 2007) (quoting Strickland, 466 U.S. at 687)).
Under Strickland's deficiency prong, the petitioner must show that counsel's representation "fell below an objective standard of reasonableness" as...
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