United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER'S §
2255 MOTION FOR RELIEF FROM JUDGMENT 
G. Edmunds United States District Judge
Xhafer Laho was convicted of three counts of making a false
statement to a federal officer in violation of 18 U.S.C.
§ 1001. Laho was sentenced to 48 months of
incarceration. Shortly after withdrawing his direct appeal,
Laho filed the instant motion for relief from judgment under
28 U.S.C. § 2255. In essence, Laho argues that his trial
counsel "provided ineffective assistance . . . when he
advised Petitioner that his guideline range would be 0-6
months even if Petitioner were convicted of all counts at
trial and this erroneous information led Petitioner to reject
the Government's plea offer." (Laho's Mot.
November 8, 2016, the Court conducted an evidentiary hearing
to consider the veracity of Laho's claim. At the hearing,
the Court heard testimony from three witnesses:
former counsel, Richard Shulman, co-defendant John Goci, and
Laho himself. In the end, the Court finds that Shulman's
testimony was clear, confident, and credible. Accordingly,
for the reasons specified more thoroughly below, the Court
DENIES Laho's petition for post-conviction relief. 
28 U.S.C. § 2255, "[a] prisoner in custody under
sentence of a [federal] court . . . claiming the right to be
released . . . may move the court which imposed the sentence
to vacate, set aside or correct the sentence." To
prevail on a § 2255 motion, the petitioner must allege:
"(1) an error of constitutional magnitude; (2) a
sentence imposed outside the statutory limits; or (3) an
error of fact or law that was so fundamental as to render the
entire proceeding invalid." Mallett v. United
States, 334 F.3d 491, 496-97 (6th Cir. 2003) (internal
prevail on an ineffective assistance claim, Laho must show
that his counsel's performance was both deficient and
prejudicial to his defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Deficient
performance requires a showing that "counsel made errors
so serious that counsel was not functioning as the
'counsel' guaranteed by the Sixth Amendment."
Id. In other words, Laho must show that his
counsel's representation "fell below an objective
standard of reasonableness." Id. at 688.
"This standard is highly deferential, and there is a
'strong presumption that counsel's conduct falls
within the wide range of reasonable professional
assistance.' " Mallett, 334 F.3d at 497
(quoting id. at 689).
to Laho, the "heart of the issue before the Court . . .
is whether trial counsel properly advised [him] of the
sentencing guideline risks of going to trial . . . ."
(Laho Supp. Br. 2). Indeed, this question formed the very
basis of the Court's decision to grant Laho's request
for an evidentiary hearing. The first Strickland
prong, then, turns entirely on the comparative credibility of
Laho and John Goci in one corner-both of whom were convicted
of making false statements to federal authorities-and
Laho's former counsel, Richard Shulman, in the other.
evidentiary hearing, Laho testified that he discussed the
Government's final plea offer with Shulman during a brief
recess at the pretrial conference on April 17, 2014. (Dkt.
224, November 16, 2016 Hr'g Part I, Tr. 16) It was at
that time, Laho maintains, that Shulman "told me . . .
the Government is offering zero to six months. I said, I
don't feel I did anything wrong. He said my opinion is
even if we go to the trial we're going to be zero to six,
same thing. I said if it's going to be zero to six then I
take the risk." (Id. at Tr. 16-17). Goci
likewise testified that he overheard Shulman advise Laho
"that [he] was  facing six months if he los[t]."
(Id. at 31:7-7). According to Laho, this was the
first time he "talked numbers" with Shulman prior
to the trial. (Id. at 8:7-15).
for his part, has a very different memory of the events
leading up to the so-called pivotal conversation in the
courthouse corridor. Indeed, Shulman testified that he
"specifically recalled" meeting with Laho prior to
the pretrial conference to discuss "the fact that if he
was convicted of the charges . . . all of them or some of
them . . . his exposure would be much greater than
zero to six months which was being offered at the
time by the government." (Dkt. 223, November 16,
2016 Hr'g Part II, Tr. 17-18) (emphasis added). In other
words, the pretrial conference was not the first
time the Government offered Laho a plea of 0-6 months. And
the record is clear on this point. See Id . (Part
II, Tr. 49) ("Q. Did you eventually receive a plea offer
from the Government? A. Yes. Q. What was the Government's
offer? A. They offered him to plead guilty to a single count
of making a false statement."); see also (Gov.
Ex. 2). For that reason, Shulman explained, "[w]e
[previously] looked at different scenarios. We looked at
scenarios if he was convicted on one count, two counts, the
primary [extortion] count . . . we talked about  the
exposure with different scenarios if he's convicted of
different counts." (Part I, Tr. 52: 13-21). And so, when
the Government presented essentially the same offer, from a
sentencing perspective, at the final pretrial conference,
Shulman was not the least bit surprised that Laho was
uninterested, because: "at th[at] time . . . our
position had become somewhat entrenched. Barring being able
to get a misdemeanor, I don't think [Laho] was wanting to
take, entertain any offers at that point." (Part II, Tr.
24:13-20). All of this significantly undercuts Laho's
claim that Shulman, for reasons that no one can adequately
explain, dramatically changed his opinion of the potential
sentencing exposure on the day of the pretrial conference.
the Court has reason to doubt the veracity of Laho's
testimony for a host of reasons. First, his argument is
premised on one isolated conversation during a brief recess
at the final pretrial conference. But that is hardly the
universe of relevant background--much of which Laho
conveniently ignores in his petition. Indeed, as discussed,
despite the best efforts of Laho's counsel, Shulman
remained confident and consistent in his position that Laho
"faced some serious exposure to the crimes in which he
was charged, and I can tell you with certainty that the
exposure to which I had counseled him was much greater than
zero to six months." (Id. Tr. 7:20-24).
Shulman's testimony is bolstered by two
"acknowledgment of indictment" forms-signed by both
Shulman and Laho-indicating that Laho faced up to five
years' imprisonment for each of the counts in the
indictment. See (Dkt. 71, 124). Furthermore, just
months before trial, Laho confirmed that he understood the
"maximum sentence [was] five years . . . ." (Dkt.
194, Initial Appearance, Tr. 3-4).
that's hardly the most problematic aspect of Laho's
claim. According to Shulman, while the two were walking
around the courthouse discussing the Government's final
plea offer, Laho "indicated to me that under no
uncertain terms that he didn't feel he was guilty of what
was being alleged and he wanted to go to trial." (Part
1, Tr. 53:8-13). Laho confirmed this, testifying in reference
to the same conversation that, "I said I don't feel
like I did anything wrong." (Id. at Tr.
17:23-25). In fact, Laho steadfastly maintained his innocence
when questioned by the Government on cross-examination about
the truthfulness of the statements leading to his conviction.
See (Id. Tr. 28:8-13) ("Q. So it's
your testimony today that you were truthful to the best of
your ability with the FBI. A. Yes. Q. And you never lied to
them. A. No, . . . ."). To prevail on the second, or
prejudice, prong of the Strickland standard, a
petitioner "must show there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." 466 U.S.
at 694, 104 S.Ct. 2052. But here, even assuming Shulman did
advise Laho that his post-trial sentencing exposure was 0-6
months-which is flatly contradicted by the record-Laho was
never in a position to tender a factual basis in support of a
guilty plea. And this is critical; the Supreme Court has
cautioned "that pleas coupled with claims of innocence
should not be accepted unless there is a factual basis for
the plea[.]" North Carolina v. Alford, 400 U.S.
25, 38 n. 10, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); see
also Fed. R. Crim. P. 11 ("Before entering judgment
on a guilty plea, the court must determine that there is a
factual basis for the plea."). In other words, even if
Laho could win the credibility contest, he still cannot prove
that he was prejudiced by Shulman's purportedly improper
does Goci's testimony move Laho's claim any closer to
the goalpost. Indeed, contrary to Goci's representation,
Shulman testified that was he was alone with Laho when they
discussed the Government's final offer. (Part I, Tr.
53:15-17). And even assuming Goci did manage to overhear part
of their conversation, there is no question that he was not
present for any prior conversations between the two--
suggesting, at a minimum, that he was missing some important
context. Moreover, the Court has reason to be skeptical about
Goci's credibility; he pled guilty to making false
statements at the direction of a co-defendant in this very
case. In Goci's own words: "they asked me did
anybody tell me what to say, I said, no, that was my sin.
That was my crime." (Id. Tr. 41:16-17). In this
way, crediting Goci's testimony requires the ...