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United States v. Yousafzai

United States District Court, E.D. Michigan, Southern Division

November 16, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
ZAHIR YOUSAFZAI, Defendant. Civ. No. 15-cv-13882

          PRESENT Honorable Gerald E. Rosen United States District Judge.

          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

          Gerald E. Rosen United States District Judge

         I. INTRODUCTION

         Defendant 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 money laundering.

         On May 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, as appropriate.

         In 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.

         On May 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.[1]

         On 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.

         For the 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.

         II. DISCUSSION

         The 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 final;
(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 governmental action;
(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 ...

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