The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Defendant Neeran Zaia filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Dkt. # 213]*fn1 and a Motion to Reduce Sentence Under Rule 35 [Dkt. # 217]. As explained below, the pleadings and the record conclusively demonstrate that Ms. Zaia is not entitled to the relief she seeks. Accordingly, the motions will be denied.
A grand jury returned a thirty-two count indictment against Ms. Zaia on September 3, 2004. The indictment charged Ms. Zaia with violations of 18 U.S.C. § 371 (Conspiracy to Commit Offenses Against the United States); 8 U.S.C. § 1324(a)(2)(B)(ii) (Bringing Unauthorized Aliens to the United States for Commercial Advantage or Private Financial Gain); 8 U.S.C. § 1327 (Aiding and Abetting Certain Aliens to Enter the United States); 18 U.S.C. § 1512(b) (Tampering with a Witness by Misleading Conduct); and 18 U.S.C. §§ 2(a) & (b) (Aiding and Abetting, Causing an Act to Be Done). Superseding Indictment [Dkt. # 79].
Over the course of two days, September 4 and 5, 2007, a jury was selected for trial.*fn2
During this two-day period, the parties also held plea negotiations. The Government first made a plea offer under Federal Rule of Criminal Procedure 11(c)(1)(C) that called for a ten-year sentence and that would require Ms. Zaia to forfeit her citizenship. Ms. Zaia discussed this with her attorney (assisted by an interpreter) and declined the offer. The Government made a second Rule 11(c)(1)(C) offer, requiring Ms. Zaia to plead to eight counts of the Superseding Indictment, called for a fifteen-year sentence, required that she waive her right to appeal, and permitted her to retain her citizenship. Plea Agreement [Dkt. # 167]. Ms. Zaia accepted this plea offer. On September 6, 2007, the Court conducted a lengthy Rule 11 colloquy, ordered a presentence investigation report, and set the sentencing date. On November 19, 2007, the Court formally accepted the Plea Agreement and imposed a sentence of fifteen years as set out in the Plea Agreement. Tr. 11/19/07 at 52; Judgment [Dkt. # 185].*fn3
Despite Ms. Zaia's waiver of the right to appeal, via trial counsel, Reita Pendry, Ms. Zaia filed a notice of appeal. Notice of Appeal [Dkt. # 187].*fn4 Appellate counsel, Edward Sussman, later moved to dismiss the appeal because he could find no non-frivolous issues to present to the Circuit. He also moved to withdraw as counsel. The Circuit granted the motion, dismissed the appeal, and issued the mandate. See Mandate [Dkt. # 205]. Subsequently, the Government filed a motion for downward departure under Federal Rule of Criminal Procedure 35, and the Court reduced Ms. Zaia's sentence to a total term of imprisonment of 144 months. See Minute Entry (Apr. 7, 2009); 2d Am. Judgment [Dkt. # 206].
Ms. Zaia now seeks a further reduction of her sentence via a motion under Federal Rule of Criminal Procedure 35 and a motion under 28 U.S.C. § 2255. The Government opposes.
A. Motion to Reduce Sentence under Rule 35
Ms. Zaia claims that she has provided substantial assistance to the Government with regard to approximately five cases and that her sentence should be reduced due to such assistance. Federal courts do not have inherent authority to modify a sentence, but may when authorized by statute. United States v. Mendoza, 118 F.3d 707, 709 (10th Cir. 1997). Such authority is provided by 18 U.S.C. § 3582(c). United States v. Morris, 116 F.3d 501, 504 (D.C. Cir. 1997). Section 3582(c) sets forth three limited circumstances under which a district court can modify a term of imprisonment: (1) upon motion of the Director of the Bureau of Prisons for extraordinary and compelling reasons; (2) where the sentencing range has been subsequently lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o); and (3) to the extent provided by Rule 35 of the Federal Rules of Criminal Procedure. See 18 U.S.C. § 3582(c). Rule 35 enumerates two circumstances where a court may modify a sentence: (1) where there is a need to correct a sentence due to an arithmetical, technical, or other clear error within seven days after the imposition of the sentence; and (2) where the government files a motion seeking a sentence reduction due to a defendant's subsequent substantial assistance. Fed. R. Crim. P. 35(a) & (b).
These circumstances do not exist here. The Director of the Bureau of Prisons has not filed a motion, and the guideline range applicable to Ms. Zaia's sentence has not been lowered. Further, there was no request to modify any alleged arithmetical, technical or clear error, and the government has not requested a sentence reduction due to substantial assistance. Without one of these necessary predicates, the Court has no authority to reduce Ms. Zaia's sentence. Ms. Zaia's motion to reduce her sentence [Dkt. # 217] must be denied.
B. Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255
As the basis for her motion under Section 2255, Ms. Zaia claims ineffective assistance of trial and appellate counsel and prosecutorial misconduct. Under Section 2255, a prisoner sentenced in federal court may move to vacate, set aside, or correct his sentence if the sentence was imposed "in violation of the Constitution or laws of the United States, or... the court was without jurisdiction to impose such sentence, or... the sentence was in excess of the maximum authorized by law, or [the sentence] is otherwise subject to collateral attack." 28 U.S.C. § 2255. A district court may deny a Section 2255 motion without a hearing when "the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." United States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996). Ms. Zaia's motion does not require a hearing because the record conclusively shows that she is not entitled to relief.
1. Ineffective Assistance of Counsel
The Supreme Court has articulated two separate standards for evaluating the effectiveness of trial counsel in a criminal case. Under United States v. Cronic, 466 U.S. 648 (1984), courts will presume a per se violation of the Sixth Amendment right to counsel only "'if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing.'" Bell v. Cone, 535 U.S. 685, 697 (2002) (quoting Cronic, 466 U.S. at 659) (emphasis in original). Ms. Zaia has made no showing in support of a claim under Cronic.
Except in those rare circumstances where Cronic applies, courts evaluate claims of ineffective assistance of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984), which requires (1) showing that counsel's representation fell below an objective standard of reasonableness; and (2) demonstrating that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. United States v. Hughes, 514 F.3d 15, 17 (D.C. Cir. 2008) (quoting Strickland, 466 U.S. at 687-88, 694) (quotation marks omitted). The burden of proof rests on the defendant to show that her lawyer made errors "so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment and that counsel's deficient performance was prejudicial." United States v. Geraldo, 271 F.3d 1112, 1116 (D.C. Cir. 2001) (quoting Strickland, 466 U.S. at 687). In other words, to prevail on a claim of ineffective assistance of counsel, a defendant must prove both incompetence and prejudice. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Strickland, 466 U.S. at 700. Performance of appellate counsel is measured by the same standards that apply to trial counsel. Smith v. Robbins, 528 U.S. 259, 289 (2000).
A court's evaluation of an attorney's performance should be highly deferential, i.e., there is a strong presumption that an attorney's conduct fell within the wide range of reasonable professional assistance. United States v. Toms, 396 F.3d 427, 432 (D.C. Cir. 2005) (quoting Strickland, 466 U.S. at 689). The fact that a particular litigation strategy failed does not mean that it had no chance of success or that counsel was ineffective by employing it. "It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689.
To set aside a guilty plea pursuant to a Section 2255 motion, a defendant "must show that the plea proceeding was tainted by a 'fundamental defect which inherently results in a complete miscarriage of justice' or 'an omission inconsistent with the rudimentary demands of fair procedure.'" United States v. Weaver, 265 F.3d 1074, 1077 (D.C. Cir. 2001). Further, to establish prejudice in the context of a plea proceeding, the defendant must show that there is a reasonable probability that, but for plea counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Ms. Zaia alleges that her trial counsel, Ms. Pendry, was ineffective for six reasons:
(1) she failed to subject the prosecution to meaningful adversarial challenge by failing to challenge the prosecutors' statements regarding Ms. Zaia's past criminal activity; (2) she lacked experience in immigration law, could not provide advice regarding how the plea or sentence would effect Ms. Zaia's citizenship, and recommended the "safer" offer to preserve citizenship; (3) she failed to explain the Plea Agreement; (4) she was afraid to go to trial and was intimidated by the prosecutor; (5) she failed to file an appeal to remove five year's imprisonment from Ms. Zaia's sentence; and (6) she failed to prepare adequately for trial. Ms. Zaia also claims ineffective assistance of appellate counsel, i.e., that Mr. Sussman moved to dismiss the appeal because he "did not have sufficient understanding of the case." Mot. to Vacate, Set Aside or Correct Sentence [Dkt. # 213] at 8.
(a) Allegation that Trial Counsel Failed to Present Meaningful Challenge
First, Ms. Zaia asserts that Ms. Pendry failed to subject the prosecution to meaningful challenge by not objecting to the prosecutor's representations to the Court when he accused Ms. Zaia of "past illegal activities" that he "had heard" earlier. Def.'s Supp. at 4. Ms. Zaia refers to the Government's allegation, as part of the first plea offer, that Ms. Zaia made false statements when she applied for naturalization many years before. But the first plea offer was never accepted by Ms. Zaia or the Court. Ms. Zaia repeatedly indicated that she wanted to plead guilty, but she disagreed with and would not admit to the proffer in support of the first plea offer. Ms. Zaia, her counsel, and the Court engaged in a long colloquy:
Court: The only decision right now...
Court: Is whether you want to go ...