Yelizarov v. United States
| Docket Number | CRIMINAL ELH-15-0261,Related Civil ELH-17-1012 |
| Decision Date | 03 June 2022 |
| Parties | STANISLAV YELIZAROV, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of Maryland |
Stanislav “Steven” Yelizarov, Petitioner, has filed a motion under 28 U.S.C. § 2255, through appointed counsel. The Petition implicates two separate cases in which Yelizarov was a defendant. One is the underlying case ELH-15-0261, which concerns an armed robbery, kidnapping carjacking, and related offenses.[1] The second is case RDB-16-0309, which pertains to a murder.[2] In keeping with the approach adopted by Yelizarov (ECF 421 at 2, 4), I shall sometimes refer to case ELH-15-261 as the “robbery case” and to case RDB-16-309 as the “murder case.” Yelizarov received a total sentence of 30 years for the robbery case, and a consecutive term of 20 years for the murder case. Thus, he is serving a combined sentence of 50 years of imprisonment.
In this case, Yelizarov alleges ineffective assistance of counsel, in violation of the Sixth Amendment to the Constitution, with respect to his convictions for conspiracy to affect commerce by robbery, in violation of 18 U.S.C. § 1951(a) (Count One); kidnapping, in violation of 18 U.S.C. § 1201(a) (Count Four); and brandishing a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Six). ECF 243; ECF 293; ECF 421. The convictions followed Yelizarov's entry of a guilty plea on February 24, 2016 (ECF 174) to those three offenses, pursuant to a Plea Agreement (ECF 175).[3]
Yelizarov contends that his trial counsel in the robbery case rendered constitutionally ineffective assistance because he failed to advise Yelizarow adequately as to the government's ongoing murder investigation in an unrelated matter. That led to defendant's subsequent prosecution in RDB-16-0309 after defendant had already pleaded guilty in this case. ECF 421 at 9-13. Ultimately, Yelizarov also pleaded guilty in the murder case. But, he claims that defense counsel failed to investigate the murder case after learning about it, and failed to seek a combined plea agreement as to both this case and the murder case. Id. at 14; ECF 506 at 2. According to Yelizarov, this alleged failure deprived him of information necessary to make an informed decision as to the Plea Agreement that he accepted in this case. He adds that if defense counsel had informed him of the likelihood of a subsequent prosecution stemming from the murder investigation, there is a reasonable probability that he would have rejected the Plea Agreement in this case. ECF 421 at 13-17. Instead, he either would have insisted on an agreement addressing the murder, or proceeded to trial in this case. Id.
Yelizarov's trial attorney in the murder case filed his initial § 2255 petition in this case on April 12, 2017, and then he withdrew. ECF 240; ECF 291; ECF 292. Thereafter, Yelizarov pro se, supplemented his petition. ECF 293. New counsel was appointed to represent Yelizarov in December 2019, pursuant to the Criminal Justice Act (“CJA”). ECF 352. On October 16, 2020, counsel filed another memorandum of law in support of the petition. ECF 421. In addition, two exhibits were submitted, including the Affidavit of Yelizarov. ECF 421-1 (Yelizarov Aff.); ECF 421-2. I shall refer to ECF 243, ECF 293, and ECF 421 collectively as the “Petition.”
The government vigorously opposes Yelizarov's Petition. ECF 442 (the “Opposition”). It has also submitted several exhibits (ECF 442-1 to ECF 442-8).[4] And, Yelizarov has replied. ECF 445 (the “Reply”).
In a supplemental § 2255 motion, filed by the Office of the Federal Public Defender (“FPD”), Yelizarov also challenged his conviction in Count Six under 18 U.S.C. § 924(c). ECF 308. He claimed that the conspiracy offense and the kidnapping offense were not proper predicate offenses for a § 924(c) conviction. I vacated the § 924(c) conviction on May 11, 2020, in light of the decisions in United States v. Davis, __ U.S. __, 139 S.Ct. 2319 (2019); United States v. Walker, 934 F.3d 375 (4th Cir. 2019); and United States v. Simms, 914 F.3d 229 (4th Cir. 2019) (en banc). ECF 394; see also ECF 408. In Davis, the Court determined that the “residual clause” in 18 U.S.C. § 924(c) is unconstitutionally vague. And, Walker and Simms held that Hobbs Act conspiracy and kidnapping are not categorically crimes of violence under the “force clause” in § 924(c). However, both sides “are in agreement that resentencing in count 6 [i.e., the § 924(c) conviction] should be stayed while Yelizarov's ineffective assistance of counsel claim remains outstanding.” ECF 409 at 2 (alteration added).
The Court held evidentiary post-conviction hearings on January 27, 2022 (ECF 483) and February 22, 2022. ECF 496. At the hearings, the Court heard testimony from Yelizarov's trial counsel, Robert Waldman; Joseph Murtha, an attorney with whom Yelizarov briefly consulted before he pleaded guilty; and Mr. Yelizarov. See also ECF 488 (1/27/2022 Hearing Tr.); ECF 504 (2/22/2022 Hearing Tr.).[5]
After the hearing, the Court ordered supplemental briefing. ECF 498. Yelizarov's posthearing brief is docketed at ECF 506, and the government's submission is at ECF 510. In addition, both parties replied. See ECF 512 (government); ECF 513 (Yelizarov).
For the reasons that follow, I shall deny the Petition.
In the robbery case, Yelizarov and five others were indicted on May 12, 2015. ECF 1. A superseding indictment was filed on July 28, 2015, naming seven defendants. ECF 77. Yelizarov was charged with conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count One); Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count Two); conspiracy to commit kidnapping, in violation of 18 U.S.C. § 1201(a) (Count Three); kidnapping, in violation of 18 U.S.C. § 1201(a) (Count Four); carjacking, in violation of 18 U.S.C. § 2119(1) (Count Five); and brandishing a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Six). At a proceeding on February 24, 2016, at which Judge J. Frederick Motz presided, defendant pleaded guilty to Counts One, Four, and Six of the Superseding Indictment. ECF 174. The Plea Agreement (ECF 175) contained a stipulation of facts. Id. at 12-15.
As the stipulated facts reflect, the case is rooted in a “conspiracy to commit the armed robbery of Antony Jewelers” on January 16, 2013. Id. at 12. The store was located in Owings Mills, Maryland. Id. at 12-15. To effectuate the heist, the defendant and others committed an armed carjacking and armed kidnapping of the teenaged son of the store owner. Id. at 14. But, as the stipulated facts indicate, that was not defendant's only criminal conduct.
The first criminal episode occurred in July 2012, prior to the jewelry store heist. Yelizarov and others committed an “armed home invasion robbery designed to obtain firearms” that were then used in the commission of the crimes in the robbery case. Id. at 12. In addition, defendant and others burglarized another home in December 2012, in which firearms were also stolen. ECF 175 at 13.
In particular, on July 22, 2012, at approximately 2:30 a.m., Yelizarov and four others travelled to the residence of “Z.R.” in Reisterstown, Maryland, and entered the home through the unlocked garage door. Id. at 12.[7] Yelizarov was armed with a handgun and all were dressed in black, wearing ski masks and latex gloves. Id. Four of the assailants entered the residence and “grabbed long guns from the residence and carried them throughout the home.” Id. The group “ransacked the home looking for firearms and other valuables.” Id.
Yelizarov and his coconspirators entered the bedroom of “R.D., ” who was asleep at that time. Id. at 12. Yelizarov “struck R.D. repeatedly with the handgun, ” while a coconspirator tied him up. Id. “R.D. was told that they would ‘put one in him' if he continued to resist, ” and he was “forced to lay face down while bound.” Id. Shortly after the men left the residence, R.D. was able to free himself and he called 911. Emergency personnel found him bleeding from the mouth and the back of the head. Id.
The items that were stolen included ten long guns, a crossbow, a laptop, and jewelry, valued at approximately $10, 000. Id. In addition, “[n]umerous electronic devices” were destroyed during the home invasion. Id.
The second criminal incident occurred on December 25, 2012, when Yelizarov and others committed a burglary of a residence in Baltimore. Id. at 13.[8] During this burglary, a shotgun and semiautomatic handgun were stolen. The handgun was later used in the heist at Antony Jewelers. ECF 175 at 13.
The central offense occurred largely in the early morning hours of January 16, 2013. After extensive preparation, Yelizarov and others abducted an employee of Antony Jewelers, as part of a scheme to steal from the store. Id. at 13-14.[9] The employee was actually the son of the owner of the jewelry store; he was only 19 years old at the time. ECF 442 at 1.
Yelizarov “was the leader of the conspiracy, and had final decision making authority over the execution of the scheme.” ECF 175 at 13. He instructed mutual friends of the employee of Antony Jewelers to learn details regarding the business for use to execute the heist. Id.[10]
Petitioner purchased and installed a global positioning (“GPS”) device on the employee's car to monitor the movement of his vehicle. Id. And, as part of the scheme, on January 15, 2013, one of Yelizarov's coconspirators “enticed” the victim to come over for a social visit, as a means to be able “to alert” the other...
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