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Laloudakis v. United States,

United States District Court, Fourth Circuit

November 13, 2013

GEORGE LALOUDAKIS
v.
UNITED STATES OF AMERICA. UNITED STATES OF AMERICA
v.
GEORGE LALOUDAKIS Criminal No. RDB-09-0608

MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

The pro se petitioner George Laloudakis (hereinafter "Petitioner") has filed a Motion to Vacate, Set Aside, or Correct Sentence (ECF No. 265), pursuant to 28 U.S.C. § 2255. Petitioner challenges his sentence on the grounds that he received ineffective assistance of counsel in violation of the Sixth Amendment. In his supporting memorandum (ECF No. 265-2), Petitioner alleges that his counsel was ineffective on three grounds: that counsel (1) lied to Petitioner and members of Petitioner's family about the length of the sentence that petitioner would receive in order to compel him to sign the plea agreement, (2) failed to negotiate a better plea agreement in light of the lack of evidence against him, and (3) failed to move to dismiss the Second Superseding Indictment on the grounds that the robberies did not interfere with interstate commerce and were thus not subject to a charge of Conspiracy to Commit Hobbs Act Robbery, in violation of 18 U.S.C. § 1951.

Petitioner also requests in his supporting memorandum (ECF No. 265-2) that new counsel be appointed to represent him at an evidentiary hearing on the merits of his § 2255 Motion to Vacate. Pursuant to a review of Petitioner's motion and attached documents, as well as the Government's response (ECF No. 267), this Court finds that no hearing is necessary. See Local Rule 105.6 (D. Md. 2011). Because Petitioner's claim of ineffective assistance of counsel fails to show either that counsel was deficient or that this deficiency prejudiced petitioner's defense, Petitioner's Motion to Vacate is DENIED. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Furthermore, because Petitioner is unable to demonstrate any extraordinary circumstances that would negate Petitioner's sworn statements during the Rule 11 colloquy at his arraignment (ECF No. 144), Petitioner's requests for an evidentiary hearing and the appointment of new counsel are DENIED.

BACKGROUND

Petitioner has acknowledged under oath that he participated in both the planning and commission of a series of armed commercial and home invasion robberies between July and November 2009. Plea Agreement, 10, ECF No. 143. In the weeks preceding September 2, 2009, Petitioner and his co-defendants began surveillance of the residence of Larry Pozenak (hereinafter "Pozenak"), the former owner of Citizens Pharmacy Services. Petitioner and his codefendants believed that Pozenak kept proceeds of his business at his residence. Id. On September 2, 2009, Petitioner and his co-defendant Daniel Chase (hereinafter "Chase") drove to the security gate of Pozenak's residential neighborhood in a gold Kia that Chase rented from Enterprise Rental. Id. Upon arrival at the security gate, Chase called Pozenak and impersonated a police officer in order to gain access to Pozenak's home. Id. Petitioner remained inside the gold Kia in Pozenak's driveway as Chase entered the home, sat down with Pozenak and his wife, and retrieved a firearm from a briefcase. Id.

Chase pointed the firearm at Pozenak and his wife and ordered them to lie on the floor. Id. Petitioner then entered the residence wearing a black ski mask. Id. Petitioner and Chase bound and physically restrained Pozenak, his wife, and three female maids who entered the residence during the armed robbery. Id. Pozenak's wife was forced to open the safe in the bedroom closet for Petitioner. Chase and Petitioner left the residence with jewelry and currency, including proceeds from Citizens Pharmacy Services. Id. Chase advised Enterprise Rental that the car "might have been used in a crime" when he returned the vehicle. Id.

Following the commission of the armed robbery of Pozenak's residence on September 2, 2009, Petitioner and his co-defendants participated in the planning and surveillance of the residence of Mr. Makris (hereinafter "Makris"), the owner of Sparrows Point Restaurant. Id. at 11. Petitioner himself followed Makris from the restaurant to his residence on at least two separate occasions. Id. Following a disagreement with his co-defendants, Petitioner returned to Greece and did not participate in the commission of the September 29, 2009 home invasion and armed robbery of Makris' residence. Id. Antowan Bell replaced Petitioner as the "muscle" during the commission of the September 29, 2009 robbery. Id. State authorities received wiretap authorizations for the cellular phones of co-defendants Chase and Nikolaos Mamalis (hereinafter "Mamalis") in November 2009. Id. Authorities overheard numerous phone calls between Chase and Mamalis that mentioned the disagreement with Petitioner and their plans to kill Petitioner and deny him proceeds from the September 2, 2009, robbery. Id.

On March 2, 2010, a Federal Grand Jury for the District Court of Maryland returned a Second Superseding Indictment charging Petitioner with Conspiracy to Commit Hobbs Act Robbery in violation of 18 U.S.C. § 1951(a) (Count One), Using a Firearm During and in Relation to a Crime of Violence, that is conspiracy to interfere with interstate commerce by robbery as alleged in count one in violation of 18 U.S.C. § 2 and 18 U.S.C. § 924(c) (Count Two), Using a Firearm During and in Relation to a Crime of Violence, that is conspiracy to interfere with interstate commerce by robbery as alleged in count one in violation of 18 U.S.C. § 2 and 18 U.S.C. § 924(c) (Count Three). 4-7, ECF No. 67. On December 2, 2010, Petitioner and his attorney both signed a plea agreement offered by the United States Attorney's Office for the District of Maryland, agreeing that Petitioner would plead guilty to Count One and Count Three of the Second Superseding Indictment. Plea Agreement, 9, 13, ECF No. 143. The signature page on this plea agreement also stipulated that Petitioner had read, reviewed, and understood the agreement, including the Advisory Guidelines Stipulation, and did not wish to make any changes. Id. at 9. Furthermore, the signature page stated that Petitioner was satisfied with the representation of his attorney. Id.

The Petitioner entered his plea of guilty pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure with the agreed range of a total aggregate sentence for Count one and count Three of between, on the low end, 60 months (should the Court find that 18 U.S.C. § 924(c)(1)(A)(I) applies) or 84 months (should the Court find that 18 U.S.C. § 924 (c)(1)(A)(ii) applies)and, on the high end, of the advisory sentencing guideline range found applicable by the court plus the consecutive sentence required for Count Three. Plea Agreement, 5-6, ECF No. 143. Petitioner received an aggregate sentence of 117 months in custody. On April 21, 2011, Petitioner was sentenced to 33 months of imprisonment on Count One and 84 months of imprisonment on Count Three, to run consecutive to the sentence for Count One. Petitioner's sentence included 3 years of supervised release for Count One and 3 years of supervised release for Count Three, to run concurrently. Transcript of Sentencing, 65:3-7, ECF No. 240. Petitioner filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody on February 13, 2013. Motion to Vacate, ECF No. 265.

STANDARD OF REVIEW

Documents filed pro se are "liberally construed" and are "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted). In order to establish a claim for ineffective assistance of counsel, a petitioner must prove both elements set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 671 (1984). First, a petitioner must show that his counsel's performance was so deficient as to fall below an "objective standard of reasonableness." Id. at 688. In assessing whether counsel's performance was unconstitutionally deficient, courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Second, a petitioner must show that his counsel's performance was so prejudicial as to "deprive the defendant of a fair trial." Id. at 687. In order to establish this level of prejudice, the petitioner must demonstrate that there is a "reasonable probability that, but for counsel's [alleged] unprofessional errors, the result of the proceeding would have been different." Id. at 694. Satisfying either of the two parts of the test alone is insufficient; rather, the petitioner must meet both prongs of the Strickland test in order to be entitled to relief. See id. at 687. ("Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.").

ANALYSIS

In his Motion to Vacate, Petitioner makes three arguments, specifically, that his attorneys (1) lied to Petitioner and members of Petitioner's family about the length of the sentence that Petitioner would receive in order to compel him to sign the plea agreement, (2) failed to negotiate a better plea agreement in light of the lack of evidence against him, and (3) failed to move to dismiss the Second Superseding Indictment on the grounds that the robberies did not interfere with interstate commerce and were thus not subject to a charge of Conspiracy to Commit Hobbs Act Robbery, in violation of 18 U.S.C. § 1951. Finding that none of Petitioner's claims have any merit, this Court denies Petitioner's Motion to Vacate. Similarly, this Court denies Petitioner's request for an evidentiary hearing and the appointment of new counsel.

I. Petitioner's Motion to Vacate

A. Petitioner's Claim that his Attorneys Lied to Him and his Family Regarding the Length of his Sentence in order to Elicit a Guilty Plea.

Petitioner claims that his attorneys "lied to [the] petitioner and his family to convince him to sign a plea agreement and enter a guilty plea despite his innocence." Pet'r's Mot., 2, ECF No. 265-2. Petitioner's claim fails to satisfy either the "deficiency" or the "prejudice" prong of Strickland. The appropriate standard for effective representation by counsel is "reasonableness under prevailing professional norms." Id. at 688. Thus, in order to show that counsel's representation was "deficient, " Petitioner must show that counsel's performance was below "the range of competence normally demanded of attorneys in criminal cases." Id. at 687. Furthermore, Petitioner carries the burden of proving that not only was counsel "deficient" but also that "prejudice" resulted from such "deficient" representation. Fields v. Att'y Gen. of MD., 956 F.2d 1290, 1297 (4th Cir. 1992).

In U.S. v. Foster, 68 F.3d 86, 88 (4th Cir. 1995), Petitioner attempted to establish prejudice in a Motion to Vacate by claiming that, if he had been correctly informed that he would be sentenced as a career offender, he would have proceeded to trial.[1] The trial court in Foster conducted a proper Rule 11 colloquy at sentencing. Id. Thus, the Fourth Circuit did not look into whether Foster's attorney's performed below a normal range of competency because the court found that "Foster was clearly not prejudiced by any misstatements made by his attorney." Id. The Fourth Circuit held that "if the trial court ...


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