United States v. Savino

NOT FOR PUBLICATION

OPINION^[1]

STANLEY R. CHESLER United States District Judge

This matter comes before the Court upon the motion filed by Petitioner Thomas Savino ("Petitioner") to vacate, set aside, and correct his sentence pursuant to 28 U.S.C. § 2255. The United States of America (the "Government") has opposed the motion. The Court has considered the written submissions and determined that oral argument is not necessary. For the reasons that follow, the petition will be denied.

I. BACKGROUND

In late 2016, a grand jury charged Petitioner with ten counts: one count for conspiracy to violate the federal Anti-Kickback Statute and Travel Act and to defraud patients of honest services, three counts of illegal renumeration in violation of the federal Anti-Kickback Statute, three counts of use of the mail and facilities in interstate commerce and interstate travel to promote, carry on, and facilitate commercial bribery, and three counts of a scheme to defraud patients of honest services by accepting concealed bribes. All these charges arose out of Petitioner's alleged

participation with a bribery scheme involving Biodiagnostic Laboratory Services ("BLS"), a clinical blood laboratory headquartered in New Jersey. Before he was arrested, Petitioner operated his own medical practice in a New York office building that he owned. This building also had an additional suite, which Petitioner claimed he rented out to BLS. Prior to trial, Petitioner moved to dismiss all counts, arguing, among other things, that as a doctor practicing medicine solely in New York, he was not subject to New Jersey's Commercial Bribery statute (the "NJCBS"), N.J.S.A. §2C:21-10. (16-cr-00582, ECF No. 80, at 3-19.) The Court denied Petitioner's motion on April 18, 2017. (16-cr-00582, ECF No. 18.) A jury found Petitioner guilty on all ten counts and the Court sentenced Petitioner to 48 months imprisonment on each count, to run concurrently. (16- cr-00582, ECF No. 68.) Petitioner appealed to the Third Circuit which, in September of 2019, rejected Petitioner's arguments and affirmed this Court's judgment and Petitioner's sentence. United States v. Savino, 788 Fed.Appx. 869, 873 (3d Cir. 2019).^[2]

II. DISCUSSION

A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence

28 U.S.C. § 2255. Unless the moving party claims a jurisdictional defect or a constitutional violation, to be entitled to relief the moving party must show that an error of law or fact constitutes "a fundamental defect which inherently results in a complete miscarriage of justice, [or] an omission inconsistent with the rudimentary demands of fair procedure." United States v. Horsley, 599 F.2d 1265, l268(3dCir. 1979) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)), cert. denied 444 U.S. 865 (1979); see also Morelli v. United States, 285 F.Supp.2d 454, 458-59 (D.N.J. 2003).

Petitioner asserts that his trial counsel was constitutionally ineffective. The standard which applies to such claims is well established:

Claims of ineffective assistance are governed by the two-prong test set forth in the Supreme Court's opinion in Strickland v. Washington, 466 U.S. 668 (1984). To make out such a claim under Strickland, a petitioner must first show that "counsel's performance was deficient. This requires [the petitioner to show] that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Id. at 687; see also United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). To succeed on an ineffective assistance claim, a petitioner must also show that counsel's allegedly deficient performance prejudiced his defense such that the petitioner was "deprive[d] of a fair trial... whose result is reliable." Strickland, 466 U.S. at 687; Shedrick, 493 F.3d at 299.

In evaluating whether counsel was deficient, the "proper standard for attorney performance is that of 'reasonably effective assistance.'" Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A petitioner asserting ineffective assistance must therefore show that counsel's representation "fell below an objective standard of reasonableness" under the circumstances. Id. The reasonableness of counsel's representation must be determined based on the particular facts of a petitioner's case, viewed as of the time of the challenged conduct of counsel. Id. In scrutinizing counsel's performance, courts "must be highly deferential ... a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.

Even where a petitioner is able to show that counsel's representation was deficient, he must still affirmatively demonstrate that counsel's deficient

performance prejudiced the petitioner's defense. Id. at 692-93. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. The petitioner must demonstrate that "there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694; see also Shedrick, 493 F.3d at 299. Where a "petition contains no factual matter regarding Strickland's prejudice prong, and [only provides] . . . unadorned legal conclusion[s] . . . without supporting factual allegations," that petition is insufficient to warrant an evidentiary hearing, and the petitioner has not shown his entitlement to habeas relief. See Palmer v. Hendricks, 592 F.3d 386, 395 (3dCir. 2010).

Judge, 119F.Supp.3d at 280-81.

Petitioner identifies four ways in which his counsel's performance was constitutionally defective. First, he claims his counsel was ineffective when counsel failed to present evidence that BLS was licensed in New York which, if it had been used at trial, would have exonerated Petitioner. Second, he claims that his appellate counsel was ineffective by its failure to appeal the Court's denial of Petitioner's pre-trial motions to dismiss the charges against him, where the pretrial motions argued that New York law, rather than New Jersey law, controlled. Third, he claims that trial counsel's failure to call witnesses demonstrating that Petitioner could have legally rented the office space at issue amounted to ineffective assistance. Fourth, Petitioner claims that his counsel provided ineffective assistance where it failed to "properly and timely" object to the Probation Office's calculation of the improper benefit subject to sentencing.^[3]

A. Petitioner's Trial and Appellate Counsel Provided Constitutionally Sufficient Representation.

Petitioner lodges several challenges concerning his counsel's performance at trial and related challenges to his appellate counsel's failure to appeal those deficiencies. These challenges fail to demonstrate that either Petitioner's trial counsel's or appellate counsel's performance fell below an objective standard of reasonableness as required by Strickland, nor has he established any prejudice from any such ineffective representation.

1. BLS's New York Licensure was Irrelevant as a Matter of Law and Fact.

Petitioner first claims that his trial counsel failed to review evidence which, if it had been used at trial, would have exonerated Petitioner. Specifically, Petitioner claims that, in discovery, the Government produced evidence demonstrating that BLS was in possession of an active New York license at the time. (Pet. at 5.) According to Petitioner, this evidence demonstrates that New Jersey law did not apply to BLS's rental of the suite, rather that New York law applied. (Id.) Under this theory, Petitioner's actions with BLS would only be regulated under New York law and cannot be subjected to federal law or the NJCBS. While the Government provided Petitioner this evidence in pre-trial discovery, his counsel did not use it to support his arguments for dismissal in his pretrial motions.

Despite the great weight that Petitioner places on this piece of evidence-claiming that "no reasonable fact finder would have found [him] guilty" considering the New York licensure-it was irrelevant. According to Petitioner, the fact that BLS is licensed in New York is sufficient to

relieve him of liability under the Travel Act as a matter of law, but it does no such thing.^[4] The evidence presented at trial demonstrated that Petitioner received bribes from BLS, a New Jersey company, the cash used to bribe Petitioner originated in New Jersey, in exchange for the bribes, Petitioner knowingly referred his patients' blood to New Jersey, and BLS analyzed the blood in New Jersey. (ECF No. 1, at ¶¶l(a), 6, 10(h), 11(b), (f), (h), (j), (m), (p)). As the Third Circuit explained when it found that this evidence was more than sufficient to sustain the conviction against Petitioner, out-of-state conduct under the NJCBS can serve as a predicate offense under the Travel Act. United States v. Savino, 788 Fed.Appx. 869, 873-74 (3d Cir. 2019)...