United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Petitioner Alfredo
Sararo's (Sararo or petitioner) pro se Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr.
Doc. #220) and Memorandum of Law in Support (Cv. Doc.
#4; Cr. Doc. #221) filed on November 16, 2015. After the
Court issued an Order to Show Cause as to why relief should
not be granted (Cv. Doc. #6), the government filed its
Response in Opposition (Cv. Doc. #8) on January 15, 2016.
Thereafter, on January 21, 2016, Attorney Douglas Molloy
entered his appearance as counsel on behalf of
petitioner. (Cv. Doc. #9; Cr. Doc. #223). On January
29, 2016, petitioner, through counsel, filed an Amended
§ 2255 Motion and Objections to the Government's
Response and moved for an evidentiary hearing. (Cv. Doc. #10;
Cr. Doc. #224). Petitioner's Amended § 2255 Motion
(Cv. Doc. #10; Cr. Doc. #224) does not raise any additional
grounds for relief.
reasons set forth below, Sararo's Motion for an
Evidentiary Hearing is granted as to Grounds One and
March 15, 2011, a federal grand jury in Pittsburgh,
Pennsylvania returned a four-count Indictment charging Sararo
with filing a false tax return by failing to disclose his
true adjusted gross income for 2004 and 2005 in violation of
26 U.S.C. § 7206(1). (Cr. Doc. #2).
April 7, 2011, Sararo pled not guilty. (Cr. Doc. #1-11). On
that same day, Assistant United States Attorney, Brendan
Conway, and defense counsel, Robert Rosenblatt, discussed a
plea offer. (Cv. Doc. #8-5, p. 2). On May 3, 2011, Conway
provided Rosenblatt with a written plea agreement reflecting
their oral communications. (Cv. Doc. #4-3). The agreement
required Sararo to plead guilty to Count One of the
Indictment, charging him with violating 26 U.S.C. §
7206(1). (Cv. Doc. #10-1, p. 2-3; Cr. Doc. 224-1, p. 2-3). In
exchange, Sararo would receive a maximum of three years
imprisonment and three years of supervised release and be
required to pay $250, 000 in fines and a $100 special
assessment. (Id., p. 5). The agreement also
specified that Sararo was the target of a criminal
investigation for fraud and, as a condition of the agreement,
the government would not seek criminal charges on those
allegations. (Id.). Sararo ultimately rejected the
government's offer. (Cv. Doc. #8-5, p. 3).
at this point that the parties' accounts conflict. Sararo
maintains that Rosenblatt failed to inform him: (1) that he
was under investigation for real estate fraud and (2) a
rejection of the plea deal would result in a Superseding
Indictment with additional charges. (Cv. Doc. #10, pp. 5-8;
Cr. Doc. #224, pp. 5-8). Sararo asserts that he did not
receive a copy of the written plea agreement until after his
sentencing. (Cv. Doc. #10, p. 6; Cr. Doc. #224, p. 6). In
addition, Sararo maintains that he rejected the offer because
Rosenblatt misrepresented his sentencing exposure and success
at trial. (Id., pp. 8-11). The government denies
Sararo's allegations. (Cv. Doc. #8, pp. 9, 14, 16).
on August 18, 2011, a federal grand jury in Pittsburgh,
Pennsylvania returned an eleven-count Superseding Indictment
(Cr. Doc. #5) charging Sararo with seven counts of wire fraud
in violation of 18 U.S.C. § 1343 and four counts of
filing a false tax return in violation of 26 U.S.C. §
August 23, 2011, Sararo waived his right to appear at his
arraignment and pled not guilty to all counts of the
Superseding Indictment. (Cr. Doc. #1-32). Upon Sararo's
Motion for Change of Venue, the Western District of
Pennsylvania transferred the instant action to the Middle
District of Florida on September 2, 2011. (Cr. Doc. #1).
Sararo proceeded to trial before this Court on July 25, 2012
(Cr. Doc. #59), and on August 17, 2012, he was convicted of
Counts One through Five and Eight through Eleven (Cr. Doc.
January 7, 2013, the Court sentenced Sararo to a term of
imprisonment of 108 months for Counts One through Five and 36
months for Counts Eight through Eleven, to be served
concurrently, followed by a term of three years of supervised
release, a $500 special assessment, and restitution in the
amount of $2, 054, 563.00. (Cr. Doc. #153).
filed a Notice of Appeal (Cr. Doc. #158) on January 11, 2013.
On appeal, he raised several challenges to his convictions.
First, he argued that the prosecutor engaged in misconduct
by: (1) knowingly presenting perjured testimony, (2)
commenting on his right not to testify, and (3) attempting to
improperly shift the burden of proof to the defense. See
United States v. Sararo, 579 Fed.Appx. 983 (11th Cir.
2014). Next, he argued that the district court: (1) erred in
denying his motion for judgment of acquittal; (2) abused its
discretion in excluding, as self-serving hearsay,
Sararo's statements to his tax preparer; and (3) abused
its discretion in denying his motion for a new trial.
Id. at 983-84. Lastly, he claimed that the
cumulative error deprived him of his right to a fair trial.
Id. at 984. On September 23, 2014, the Eleventh
Circuit affirmed Sararo's convictions. (Cr. Doc. #218.)
Id. Sararo filed for a writ of certiorari, which was
denied on February 23, 2015. See Sararo v. United
States, 135 S.Ct. 1449 (2015).
government concedes that petitioner's original §
2255 motion was timely filed, and the Court agrees. (Cv. Doc.
#8, p. 5).
Evidentiary Hearing Standard
district court shall hold an evidentiary hearing on a habeas
corpus petition “unless the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief[.]” 28 U.S.C. § 2255(b).
“[I]f the petitioner alleges facts that, if true, would
entitle him to relief, then the district court should order
an evidentiary hearing and rule on the merits of his
claim.” Aron v. United States, 291 F.3d 708,
714-15 (11th Cir. 2002) (citation omitted). However, a
district court is not required to hold an evidentiary hearing
where the petitioner's allegations are patently
frivolous, based upon unsupported generalizations, or
affirmatively contradicted by the record. Id. at
715. To establish entitlement to an evidentiary hearing,
petitioner must “allege facts that would prove both
that his counsel performed deficiently and that he was
prejudiced by his counsel's ...