Sevim v. United States

• Decision Date: 28 September 2018
• Docket Number: CAUSE NO. A-18-CV-426-SS,No. A-16-CR-266-SS,A-16-CR-266-SS
• Parties: RIDVAN SEVIM, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Western District of Texas

RIDVAN SEVIM, Movant, v. UNITED STATES OF AMERICA, Respondent.

CAUSE NO. A-18-CV-426-SS

No. A-16-CR-266-SS

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

FILED: October 1, 2018

September 28, 2018

ORDER

BE IT REMEMBERED on this day, the Court reviewed the file in the above-styled cause, and specifically Movant Ridvan Sevim's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (ECF No. 77), his Amended Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (ECF No. 83), the Government's responses (ECF Nos. 88 & 89), and Sevim's motion seeking the appointment of counsel (ECF No. 90). Having considered the motions, the governing law, and the file as a whole, the Court now enters the following opinion and order denying relief.

Background

Sevim was charged by a superseding information with one count of conspiracy to distribute steroids and human growth hormones, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count of money laundering in violation of 18 U.S.C. § 1957; the information included a demand for forfeiture. (ECF No. 38). On January 18, 2017, pursuant to a sealed plea agreement and at the conclusion of a Rule 11 hearing, Sevim pleaded guilty to both charges. (ECF No. 39). The written plea agreement included a waiver of Sevim's rights to appeal and collaterally attack his conviction and sentence, other than to assert a claim of ineffective assistance of counsel or prosecutorial misconduct. (Id.). The plea agreement also included an extensive and detailed factual basis for Sevim's guilty pleas. (Id.).

A Presentence Investigation Report ("PSR") calculated a Guideline range of 70 to 87 months' imprisonment. (ECF No. 60). The PSR concluded Sevim was not entitled to a downward adjustment of his offense level for acceptance of responsibility. (Id.). The PSR also determined Sevim was an organizer, leader, manager, or supervisor of this offense and, accordingly, applied a two-level upward adjustment to his offense level. (Id.). The PSR also added two points to Sevim's offense level for obstruction of justice. (Id.) Defense counsel filed numerous objections to the PSR, which were all overruled at sentencing. (ECF No. 60-2; ECF No. 75).

On April 13, 2017, the Court sentenced Sevim to concurrent terms of 72 months imprisonment on each count of conviction. The Court ordered the sentences be followed by three years of supervised release, ordered Sevim to pay a fine of $3,600, and further ordered him to pay $100 on each count as a mandatory assessment fee. (ECF No. 67).

On April 26, 2017, Sevim's counsel filed a timely notice of appeal. (ECF No. 66). On May 3, 2017, counsel filed a motion to dismiss the appeal, stating: "Appellant voluntarily wishes to dismiss the appeal for the above styled cause; Fed. R. App. P. 42.1. Attorney for Appellant has verified with the Appellant that he opposes moving forward with the appeal process with the Fifth Circuit Court of Appeals." United States v. Sevim, No. 17-50369, at Docket Entry No. 6. The appeal was dismissed on Sevim's unopposed motion on May 4, 2017. (ECF No. 70).

On May 16, 2018, Sevim executed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, and on June 6, 2018, he executed an amended § 2255 motion. In his amended motion Sevim asserts he was denied the effective assistance of counsel. He asks the Court to vacate his conviction for money laundering and to reduce his sentence for conspiracy todistribute steroids. Sevim seeks an evidentiary hearing and further moves the Court to appoint counsel. (ECF No. 90).

Analysis

I. Section 2255—Legal Standard

Generally, there are four grounds upon which a defendant may move to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255: (1) the imposition of a sentence in violation of the Constitution or the laws of the United States; (2) a lack of jurisdiction of the district court that imposed the sentence; (3) the imposition of a sentence in excess of the maximum authorized by law; and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996).

II. Application

All of Sevim's claims for relief take issue with the performance of his counsel. In his amended § 2255 motion, Sevim asserts counsel failed to investigate his case. He further alleges counsel failed to assert insufficiency of the evidence as to the charge of money laundering and failed to file a motion to suppress unspecified evidence. (ECF No. 83 at 3). These claims were not waived by Sevim's guilty plea. The plea agreement specifically excepted claims of ineffective assistance of counsel from the waiver of Sevim's right to collaterally attack his conviction and sentence. Additionally, even if a defendant waives his right to collaterally attack his conviction and sentence, he can avoid those waivers based on ineffective assistance of counsel if he establishes "the claimed assistance directly affected the validity of that waiver or the plea itself." United States v. White, 307 F.3d 336, 343 (5th Cir. 2002); Blancas v. United States, 344 F. Supp. 2d 507, 528 (W.D. Tex. 2004).

The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel, including the effective assistance of counsel when entering a guilty plea. Lee v. United States, 137 S. Ct. 1958, 1964 (2017). An ineffective assistance of counsel claim in the context of a guilty plea is subject to the same standard as any other ineffective assistance claim, i.e., the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). To successfully state a claim of ineffective assistance of counsel under Strickland, a section 2255 movant must demonstrate counsel's performance was deficient and the deficient performance prejudiced his defense. Id. at 687. Unless a movant establishes both deficient performance and prejudice, his ineffective assistance of counsel claim fails. United States v. Bass, 310 F.3d 321, 325 (5th Cir. 2002). The burden of proof is on the movant who is alleging ineffective assistance of counsel. United States v. Chavez, 193 F.3d 375, 378 (5th Cir. 1999). To show deficient performance, a movant must establish his counsel's performance fell below an objective standard of reasonable competence. Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993). To establish prejudice in a case wherein the movant pleaded guilty, the movant must demonstrate "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).

A. Counsel's failure to investigate and to move to suppress evidence

Sevim alleges his counsel failed to "investigate and gather evidence that I pointed out to her for my defense proving my innocence to the money laundering charge, based upon a third party laying claim to the forfeited property and demonstrating its legality." (ECF No. 83 at 3). He further alleges his counsel failed to "suppress evidence and authenticate the recording used against me." (Id.). However, Sevim does not clearly allege he would not have pleaded guilty but for counsel's alleged errors, nor does he specifically allege his guilty plea was unknowing or involuntary as aresult of counsel's alleged errors. To establish prejudice arising from the defective assistance of counsel in a case wherein the defendant pleaded guilty, he must demonstrate "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59.

Additionally, these claims are not supported by the record in this matter. At Sevim's Rule 11 hearing he acknowledged he had discussed the facts and circumstances of his case with his counsel, including the terms of his plea agreement and the factual basis for his guilty plea. (ECF No. 85 at 7, 9-10, 12-14, 28-29). In the written plea agreement Sevim acknowledged he had discussed with his counsel the charges against him, the evidence against him, and any possible defenses to the charges. (ECF No. 39 at 12). In his written plea agreement Sevim acknowledged he was waiving his right to move to suppress evidence and to challenge the sufficiency of the Government's evidence against him. (ECF No. 39 at 3). Sevim stated he was knowingly and voluntarily pleading guilty, and stated he was pleading guilty because he was guilty and for no other reason. (ECF No. 85 at 26-27). Sevim acknowledged he was satisfied with his counsel's representation in his written plea agreement and at the Rule 11 hearing. (ECF No. 39 at 13; ECF No. 85 at 7).

Furthermore, Sevim's counsel states in an affidavit:

I spent over a week reviewing the evidence, file, notes and researching the weights and methods used to obtain the steroids in question. I researched case law and reviewed the information with my paralegal as we got it organized. I went to Bastrop, Texas on various occasions to review evidence and discuss the case with Mr. Sevim. He expressed gratitude on every occasion for the thorough job I was doing on his case. I negotiated a Plea Agreement with [the AUSA] that prevented further charges and was very much in his favor in that Counts were dismissed against him. The agreement put Mr. Sevim in a substantially better situation than he was when I entered the case and gave him an opportunity to reduce his sentence with further cooperation.

I arranged a debrief and Mr. Sevim gave information on various topics, but maintained that his girlfriend at the time had no knowledge of the illegal nature of his steroid business. The lack of truthfulness about his girlfriend's relative conduct resulted in less points reduced than initially hoped for by Mr. Sevim.

(ECF No. 89-1 at 1).

Sevim's allegations regarding counsel's failure to investigate his case and to assert meritorious claims is belied by the record in this matter, including ...