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Sararo v. United States

United States District Court, M.D. Florida, Fort Myers Division

June 19, 2018

ALFREDO SARARO, III, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          JOHN E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE.

         This 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)[1] 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.[2] (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.[3]

         For the reasons set forth below, Sararo's Motion for an Evidentiary Hearing is granted as to Grounds One and Two.[4]

         I. Procedural Background

         On 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).

         On 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).

         It is 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).

         Thereafter, 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. § 7206(1).

         On 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. #92).[5]

         On 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).

         Sararo 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).

         The government concedes that petitioner's original § 2255 motion was timely filed, and the Court agrees. (Cv. Doc. #8, p. 5).

         II. Evidentiary Hearing Standard

         A 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 ÔÇťallege facts that would prove both that his counsel performed deficiently and that he was prejudiced by his counsel's ...


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