Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Laho

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

December 28, 2016

XHAFER LAHO, Petitioner.


          Nancy G. Edmunds United States District Judge

         Petitioner-Defendant 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. 7).[1]

         On 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:

         Laho's 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. [207]

         I. ANALYSIS

         Under 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 quotations omitted).

         To 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).

         A. Sentencing Exposure

         According 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.

         At the 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).

         Shulman, 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.

         Furthermore, 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).

         And 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 conduct.

         Nor 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.