UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
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UNITED STATES OF AMERICA, )
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v. ) Criminal No. 09-54 (EGS)
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ANTHONY J. FARERI, )
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Defendant. )
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MEMORANDUM OPINION
Pending before the Court is Anthony Fareri’s motion for a
certificate of appealability. For the reasons explained below, a
certificate of appealability is not required in view of the
claim the Mr. Fareri wants to appeal. However, given the unusual
posture of the case, and upon consideration of the motion, the
government’s response, the relevant caselaw, the entire history
in this case, and for the reasons explained below, the Court
will grant the motion and issue a certificate of appealability.
I. Background
In September 2010, Mr. Fareri pleaded guilty to mail fraud
in violation of 18 U.S.C. § 1341. In October 2011, he was
sentenced to 105 months incarceration followed by three years
supervised release and was ordered to pay restitution to his
victims. Thereafter, Mr. Fareri filed a direct appeal.
On direct appeal, Mr. Fareri argued that his counsel
provided ineffective assistance in three ways: (1) his counsel
told Mr. Fareri that the Plea Agreement would allow him to
challenge (at the sentencing hearing) the amount of loss
underlying his Sentencing Guidelines calculation in order to
lower his Guidelines level and range; (2) his counsel failed to
obtain and present evidence at his sentencing of additional
payments made to victims that were not credited to him in the
Presentence Investigation (“PSI”) Report or by the District
Court (also argued in the Section 2255 motion); and (3) his
counsel failed to adequately investigate the amount of loss
resulting from Mr. Fareri’s crime (also argued in the Section
2255 motion). Br. for Appellant, USCA Case No. 11-3098, Doc.
No. 139915 at 32-40. In its response to that appeal, the Court
of Appeals for the District of Columbia Circuit (“D.C.
Circuit”): (1) upheld this Court’s application of the vulnerable
victim enhancement pursuant to Section 3A1.1 of the U.S. SENTENCING
GUIDELINES MANUAL; (2) remanded Mr. Fareri’s claim that he received
ineffective assistance of trial counsel to the District Court to
consider in the first instance; and (3) remanded for the
District Court to correct the specific amounts owed in
restitution to each of Mr. Fareri’s victims so that they add up
to a total the Court’s oral sentence. United States v. Fareri,
712 F.3d at 593, 596 (D.C. Cir. 2013).
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Following the remand, the Court ordered Mr. Fareri to set
forth all of his claims for relief regardless of whether they
were contemplated in the remand. See Docket for Civil Action No.
09-54, Minute Order, Nov. 22, 2013. Thereafter, Mr. Fareri filed
a Motion to Vacate, Set Aside, or Correct Sentence Under 28
U.S.C. § 2255. See § 2255 Motion, ECF No. 92. In that motion,
Mr. Fareri asserted that his counsel provided ineffective
assistance in two additional ways: (4) his counsel informed Mr.
Fareri that any restitution credit would offset the amount of
loss; and (5) his counsel “was either unaware of Mr. Harary’s
continuing criminal conduct or despite knowledge of it proceeded
to convince Mr. Fareri to plead nonetheless.” Id. at 5-6. Mr.
Fareri also asserted that the government committed a Brady
violation. Id. at 6.
Following a multi-day evidentiary hearing on his
ineffective assistance of counsel claim, this Court issued a
Memorandum Opinion addressing all of Mr. Fareri’s claims as set
forth in the remand and his Section 2255 motion. The Court
denied his Section 2255 motion and adjusted the allocation of
restitution among the victims pursuant to the remand from the
D.C. Circuit. See generally Mem. Op., ECF No. 162. Mr. Fareri
then sought reconsideration of the Court’s Memorandum Opinion,
which the Court granted in part and denied in part. See
generally Mem. Op., ECF No. 203. Thereafter, Mr. Fareri filed a
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notice of appeal, see ECF No. 205, and the D.C. Circuit referred
to this Court the determination of whether a certificate of
appealability is warranted, see ECF No. 207.
II. Legal Standard for Issuance of a Certificate of
Appealability
A certificate of appealability must be issued for an
appellate court to hear an appeal from a “final order in a
proceeding under section 2255.” 28 U.S.C. § 2253(c)(1)(B). The
federal district court judge who rendered the judgment for which
appellate review is sought must either issue the certificate of
appealability or explain why it should not be issued. Fed. R.
App. P. 22(b)(1). A certificate of appealability may issue “only
if the petitioner has made a substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2). To make this
showing, the petitioner “need not show that he should prevail on
the merits.... Rather, he must demonstrate that the issues are
debatable among jurists of reason; that a court could resolve
the issues [in a different manner]; or that the questions are
adequate to deserve encouragement to proceed further.” United
States v. Mitchell, 216 F.3d 1126, 1130 (D.C. Cir. 2000)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
If the court issues the certificate of appealability, it
must specify which issues satisfy the substantial showing
requirement. United States v. Mitchell, 216 F.3d 1126, 1130
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(D.C. Cir. 2000). If a district court judge denies a request for
a certificate of appealability, a petitioner may request one
from the circuit court judge. Fed. R. App. P. 22(b)(1).
III. Analysis
A. A Certificate of Appealability is not required.
As a preliminary matter, Mr. Fareri and the government
agree that a certificate of appealability is not required
because Mr. Fareri seeks to appeal an issue arising from his
direct appeal rather than an issue raised in his Section 2255
motion. See Def.’s Mot. for Certificate of Appealability
(“Def.’s Mot.”), ECF No. 214 at 1; Gov’t’s Resp. to Def.’s Mot.
for a Certificate of Appealability (“Gov’t’s Resp.”), ECF No.
220 at 2. Mr. Fareri seeks appellate review of whether he
received ineffective assistance of counsel regarding the consent
order of forfeiture he entered into as part of his plea
agreement with the government, Def.’s Mot.”, ECF No. 214 at 1,
and he claims that he raised this issue in his direct appeal,
id. at 3.
The Court agrees with Mr. Fareri and the government that
Mr. Fareri raised the issue for which he now seeks appellate
review in his direct appeal. In his appeal, Mr. Fareri alleged
that his counsel provided ineffective assistance because he
failed to adequately investigate the loss amount, noting in a
footnote that the loss amount impacted his forfeiture amount.
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See Br. of Appellant at 36 n.14, Reply Br. of Appellant at 22
n.13. However, Mr. Fareri requests that the Court issue a
certificate of appealability “out of an abundance of caution” in
case the D.C. Circuit determines that one is required, Def.’s
Mot., ECF No. 214 at 3, and the government does not object,
Gov’t’s Resp., ECF No. 220 at 2. Given the unusual posture of
this case – a remand and a Section 2255 motion – and in an
abundance of caution, the Court will consider the motion for a
certificate of appealability.
B. It is debatable and reasonable jurists could disagree
about whether Mr. Fareri was provided ineffective
assistance of counsel.
Mr. Fareri moves for a certificate of appealability for his
claim that he “received ineffective assistance of counsel with
respect to the consent order of forfeiture entered as part of
his plea agreement with the government,” Def.’s Mot. for
Certificate of Appealability, ECF No. 214 at 1, and the
government does not oppose the issuance of the Certificate of
Appealability, Gov’t’s Resp., ECF No. 220 at 2.
The Sixth Amendment to the United States Constitution
guarantees “the right to the effective assistance of counsel.”
Strickland v. Washington, 466 U.S. 668, 686 (1984) (internal
quotation marks omitted). To demonstrate that he received
ineffective assistance of counsel, Mr. Fareri must show that:
(1) “counsel’s performance was deficient,” and (2) “the
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deficient performance prejudiced the defense.” Strickland, 466
U.S. at 687. “‘Failure to make the required showing of either
deficient performance or sufficient prejudice defeats the
ineffectiveness claim.’” United States v. Rivera-Niebla, 37 F.
Supp. 3d 374, 376 (D.D.C. 2014) (quoting Strickland, 466 U.S. at
700). “‘Surmounting Strickland’s high bar is never an easy
task.’” United States v. Brinson-Scott, 714 F.3d 616, 623 (D.C.
Cir. 2013) (quoting Padilla v. Kentucky, 559 U.S. 356, 371
(2010)).
“The Court’s review of counsel’s performance is ‘highly
deferential.’” Aljaff, 987 F. Supp. 2d at 67 (quoting
Strickland, 466 U.S. at 689). “To prove deficient performance,
[a petitioner] must ‘identify the acts or omissions of counsel
that are alleged not to have been the result of reasonable
professional judgment.’” Id. (quoting Strickland, 466 U.S. at
690). “In determining whether counsel’s representation fell
below an objective standard of reasonableness, ‘every effort
[must] be made to eliminate the distorting effects of
hindsight[.]’ ‘[A] court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance . . . [since] [e]ven the best criminal
defense attorneys would not defend a particular client in the
same way.’” United States v. King, 4 F. Supp. 3d 114, 121
(D.D.C. 2013) (quoting Strickland, 466 U.S. at 689).
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To show prejudice, the Court must find a “reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland,
466 U.S. at 694 (defining “reasonable probability” as “a
probability sufficient to undermine confidence in the outcome”).
The defendant must affirmatively prove prejudice. Id. at 693.
Mr. Fareri argues that his former counsel was ineffective
because he “fail[ed] to investigate and/or understand the law as
it pertains to criminal forfeiture” and as a result, Mr. Fareri
was prejudiced because there are “two monetary judgments against
him for the very same conduct based on the very same legal
theory of recovery.” Def.’s Mot., ECF No. 214 at 5. Mr. Fareri
contends that he should be permitted to appeal this Court’s
denial of his ineffective assistance of counsel claim regarding
forfeiture so that the forfeiture order can be vacated or
corrected. Id. at 5.
While the Court stands by its analysis that Mr. Fareri did
not satisfy his burden of showing that his former counsel was
deficient and that the deficient performance prejudiced him, it
concludes that reasonable jurists could disagree. Regarding
whether counsel was deficient with respect to the consent order
of forfeiture Mr. Fareri entered into as part of his plea
agreement with the government, Mr. Fareri’s former counsel could
have “asked the government to withdraw its forfeiture allegation
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or requested that any payments made toward one order offset the
other to avoid double collection by the government.” Def.’s
Mot., ECF No. 214 at 12. Furthermore, reasonable jurists could
disagree over whether the failure to make either request
prejudiced Mr. Fareri. Accordingly, Mr. Fareri has “made a
substantial showing of the denial of a constitutional right” on
this claim. 28 U.S.C. § 2253(c)(2).
IV. Conclusion
Accordingly, Mr. Fareri’s motion for a certificate of
appealability is GRANTED. An appropriate order accompanies this
memorandum opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
August 8, 2019
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