Roseboro v. United States
| Decision Date | 25 July 2012 |
| Docket Number | Nos. 11 Civ. 9375(VM), 08 Cr. 0660(VM).,s. 11 Civ. 9375(VM), 08 Cr. 0660(VM). |
| Citation | 882 F.Supp.2d 566 |
| Parties | Michael ROSEBORO, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Southern District of New York |
OPINION TEXT STARTS HERE
Michael A. Roseboro, Three Rivers, TX, pro se.
DECISION AND ORDER
Petitioner Michael Roseboro (“Roseboro”) brought this pro se motion pursuant to 28 U.S.C. § 2255 (“ § 2255”) to vacate, set aside, or otherwise correct his sentence. Roseboro claims he was denied his Sixth Amendment right to the effective assistance of counsel, and requests that his guilty plea be withdrawn and/or that his case be remanded for evidentiary hearings. For the reasons discussed below, the Court DENIES Roseboro's petition in its entirety.
Between October 2005 and August 12, 2008, Roseboro orchestrated a credit card fraud scheme in which he made unauthorized purchases on the credit cards of at least 176 cardholders, most of them dentists, throughout the United States. Misrepresenting himself as an employee of a credit card company, Roseboro contacted cardholders about supposedly fraudulent charges on their credit cards to obtain their card numbers and identifying information such as dates of birth and Social Security numbers. Roseboro used this information to buy luxury items on his victims' credit card accounts; by these means, he succeeded in stealing $1,749,065 in merchandise and attempted to steal an additional $633,674.
On September 5, 2008, the Government indicted Roseboro, alleging one count of actual and attempted use of an access device during a one-year period to receive at least $1,000 (“Count 2”), see18 U.S.C. §§ 1029(a)(5), 1029(b)(1), one count of conspiracy to do the same (“Count 1”), see id. § 1029(b)(2), and one count of aggravated identity theft (“Count 4”), see id. § 1028A (“ § 1028A”). On June 29, 2009, Roseboro entered a guilty plea on Counts 1, 2, and 4. During the plea colloquy, Magistrate Judge Kevin N. Fox informed Roseboro of the consequences that the plea could have on his sentence, including: a statutory maximum of 7.5 years' imprisonment on Count 1, a statutory maximum of 15 years' imprisonment on Count 2, and a two-year mandatory imprisonment term on Count 4 to run consecutively to any other imprisonment term; up to $250,000 in fines; and the imposition of special assessments and conditions of supervised release. During the colloquy with Magistrate Judge Fox, Roseboro stated that he was satisfied with the representation of his attorney Howard Lester Jacobs (“Jacobs”) and that he had had sufficient opportunity to discuss the case with Jacobs. Magistrate Judge Fox did not inform Roseboro of the possible imposition of restitution.
In its Presentence Investigation Report (“PSR”), the United States Probation Office (“Probation Office”) calculated that under the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”), Roseboro's base offense level was 23 and his Criminal History Category was VI, based on a Criminal History Score of 14. This combination yielded an advisory Guidelines range of 92 to 115 months' imprisonment 2 on Counts 1 and 2, to be followed by a term of 24 months' imprisonment on Count 4, which was imposed consecutively under § 1028A. Roseboro's Criminal History Score of 14 was calculated based on seven prior convictions: two points for a second-degree menacing conviction in 1992; two points for a third-degree menacing convictions in 1996; two points for a fourth-degree criminal mischief conviction in 1999; two points each for two 1996 convictions for illegal use of a telecommunication access device; and two points each for two second-degree aggravated harassment convictions in 2000. The Probation Office recommended that Roseboro be sentenced to 92 months' imprisonment to run concurrently on Counts 1 and 2, and 24 months to run consecutively on Count 4.
The PSR also included a discussion of restitution. The report listed the restitution amounts owed to Roseboro's victims, Bank of America, American Express, and their respective credit card merchants, and contained the names and accompanying losses for each individual American Express merchant victim; however, the report did not contain individualized restitution information for each of the Bank of America merchants victimized by the scheme.
On November 29, 2009, the Court sentenced Roseboro to 92 months on Counts 1 and 2 to run concurrently and 24 months on Count 4 to run consecutively, for a total of 116 months' incarceration. The Court denied Roseboro's application for a downward departure from his Guidelines range. Additionally, Roseboro was mandated to pay a $300 special assessment and $1,749,065 in restitution to his victims. At sentencing, the Court did not provide Roseboro with the restitution information missing from the PSR—the names and losses of the individual Bank of America merchants.
On December 8, 2010, represented by attorney Jonathan Svetkey, Roseboro appealed his sentence to the United States Court of Appeals for the Second Circuit (“the Second Circuit”), which affirmed this Court's ruling. See United States v. Roseboro, 402 Fed.Appx. 657, 658 (2d Cir.2010). On appeal, Roseboro advanced three theories of error. First, he asserted, and the Government conceded, that this Court miscalculated his Criminal History Category by treating his 50–day sentence for a menacing conviction from 1992 as a “prior sentence” as defined by U.S.S.G. §§ 4A1.2(e)(2) and 4A1.2(k)(2)(C); this resulted in an elevated Guidelines range on all counts of 116–139 months, rather than 108–129 months. Second, Roseboro requested a reversal of this Court's denial of a downward departure from his Guidelines range as determined in the PSR. Id. Third, Roseboro claimed that his age, upbringing, drug use, and conditions of pretrial confinement justified a reduced sentence. Id. (internal citation omitted).
On December 8, 2011, just over two years after he was sentenced and exactly one year after he appealed, Roseboro timely filed the instant motion in this Court under § 2255. Roseboro asserts that he was denied his Sixth Amendment right to effective assistance of counsel insofar as his lawyers during both the trial and the appeal were deficient in failing to: (1) object or argue that Magistrate Judge Fox neglected to warn Roseboro when he pled guilty of the potential imposition of restitution, as mandated by Fed.R.Crim.P. 11(b)(1)(K); (2) object or argue that the Probation Office defied the mandate set forth in 18 U.S.C. § 3664(a) that the Probation Office promptly provide the names and losses of the Bank of America credit card merchant victims; (3) object or argue that his 92–month sentence for Count 1 exceeded the statutory maximum; and (4) object or argue that this Court miscalculated his Criminal History Category as it related to the Guidelines range on Count 2. Fifth and finally, Roseboro argues that he would have maintained a plea of not guilty and proceeded to trial if he were properly notified of the statutory maximum for Count 1 and of the potential restitution order, and that counsel deprived him of the benefits of this argument on appeal by failing to raise it before the Second Circuit.
The Court denies Roseboro's § 2255 motion and his motion for an evidentiary hearing because Roseboro's ineffective assistance of counsel claim is based on five substantive arguments, which are procedurally defaulted. Because he has suffered no discernible prejudice from his attorneys' performance, Roseboro cannot succeed on his claim of ineffective assistance.
A. LEGAL STANDARD FOR PRO SE LITIGANTS
At the outset, the Court notes that Roseboro is a pro se litigant. As such, his submission must be held “to less stringent standards than formal pleadings drafted by lawyers.” Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir.1993) (internal citation omitted). The Court must construe Roseboro's submissions “liberally and interpret them to raise the strongest arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (citation omitted). A pro se litigant, however, is not exempt “from compliance with relevant rules of procedural and substantive law.” Boddie v. N.Y. State Div. of Parole, 285 F.Supp.2d 421, 426 (S.D.N.Y.2003) (citation omitted).
A person in federal custody may move to vacate, set aside, or correct his sentence if it was imposed in violation of “the Constitution or laws of the United States, or the court was without jurisdiction to impose such a sentence, or ... the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack....” 28 U.S.C. § 2255(a). As a form of collateral review, a § 2255 motion may not be used as a substitute for a direct appeal. United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Accordingly, where a petitioner does not bring a claim on direct appeal, the doctrine of procedural default bars him from raising that claim in a subsequent § 2255 proceeding “unless he can establish both cause for the procedural default and actual prejudice resulting therefrom.” Rosa v. United States, 170 F.Supp.2d 388, 396 (S.D.N.Y.2001) (internal citation omitted).
In the instant case, because Roseboro presents his five substantive claims for the first time in his § 2255 motion, he has procedurally defaulted them. However, procedural default does not apply to claims of ineffective assistance of counsel. See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). If, in a § 2255 motion, a petitioner raises issues not brought up on direct appeal but makes a bona fide claim that counsel was ineffective, he can still obtain § 2255 relief “on the theory that ineffective assistance of counsel itself provides the ‘cause’ for the failure to appeal the issue.” Rosa, 170 F.Supp.2d at 396.
The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. See ...
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