United States District Court, E.D. Michigan, Southern Division
PRESENT Honorable Gerald E. Rosen United States District
OPINION AND ORDER (1) DENYING DEFENDANT'S §
2255 MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE, (2)
DENYING CERTIFICATE OF APPEALABILITY, AND (3) DENYING LEAVE
TO APPEAL IN FORMA PAUPERIS
E. Rosen United States District Judge
Zahir Yousafzai was indicted, along with 15 co-defendants, on
charges of conspiracy to commit health care fraud in
violation of 18 U.S.C. § 1349. The First Superseding
Indictment also charged Yousafzai with one count of
conspiracy to pay and receive kickbacks and two counts of
7, 2012, Yousafzai pleaded guilty, pursuant to a Rule 11 Plea
Agreement, to one count of healthcare fraud conspiracy and
one count of money laundering. Under the Plea Agreement,
Defendant agreed to a Guidelines sentencing range of 108-135
months. Contemporaneously with the Plea Agreement, Yousafzai
also entered into a Cooperation Agreement with the Government
that was incorporated into and made part of his Plea
Agreement. Pursuant to the Cooperation Agreement, Yousafzai
agreed to provide active cooperation in ongoing
investigations of the FBI, Department of Justice, and the HHS
Office of the Inspector General. The Government, on its part,
agreed that if it determined that Defendant provided
substantial assistance, it would either seek a downward
departure at sentencing under U.S.S.G. § 5K1.1 or move
for a reduction of sentence pursuant to Fed. R. Crim. P. 35,
accordance with the Cooperation Agreement, on May 16, 2014,
the Government filed a Rule 35 Motion to Reduce Sentence
asking the Court to impose a sentence of 81 months'
imprisonment, which was 25% below the low end of the
guideline range agreed to in the Rule 11 Plea Agreement.
22, 2015, after a one-day sentencing hearing, the Court
sentenced Defendant Yousafzai to a term of 72 months'
imprisonment, to be followed by 3 years of supervised
release, and ordered to pay $4, 131, 135 in restitution.
Judgment was entered on May 27, 2014. Yousafzai did not
appeal his sentence or conviction.
November 2, 2015, Yousafzai filed the instant Motion pursuant
to 28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence. As grounds for § 2255 relief, Defendant claims
(1) that his counsel was ineffective because (a) he failed to
inform him of a potential defense to the money laundering
charge and (b) failed to file an appeal; (2) that the
Government violated the Cooperation Agreement by not filing a
motion for reduction in sentence; (3) that the Court
unconstitutionally found facts enhancing his sentence by a
preponderance-of-the-evidence; and (4) that his guilty plea
was not knowingly made because counsel failed to inform him
of the potential penalty and consequences of waiving his
right to a trial by jury and ability to appeal.
reasons set forth below, the Court concludes that it need not
address the merits of any of Defendant's claims because
his § 2255 Motion is time-barred.
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) establishes that state and federal
prisoners have a one-year limitations period within which to
file a habeas corpus petition or § 2255 motion.
See 28 U.S.C. § 2255(f); Mayle v.
Felix, 545 U.S. 644, 655, 125 S.Ct. 2562, 2569 (2005).
The limitation period runs from the latest of:
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively