18-2902
Shapiro v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 5th day of November, two thousand twenty.
PRESENT: REENA RAGGI,
RICHARD J. SULLIVAN,
JOSEPH F. BIANCO,
Circuit Judges.
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MARK ALAN SHAPIRO,
Petitioner-Appellant,
v. No. 18-2902
UNITED STATES OF AMERICA
Respondent-Appellee.
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FOR APPELLANT: STEPHEN H. LOCHER, Belin
McCormick, P.C., Des Moines, IA.
FOR APPELLEE: JILAN KAMAL (Karl Metzner, on the
brief), Assistant United States
Attorneys, for Audrey Strauss, Acting
United States Attorney for the
Southern District of New York, New
York, NY.
Appeal from the United States District Court for the Southern District of
New York (Kimba M. Wood, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the August 7, 2018 order of the district court
is AFFIRMED.
Mark Alan Shapiro appeals from an order of the district court denying his
motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his judgment of
conviction and sentence. Shapiro was convicted in 2010 on conspiratorial and
substantive counts of securities fraud, wire fraud, and mail fraud under 15 U.S.C.
§§ 78j(b), 78ff; 18 U.S.C. §§ 371, 1341, and 1343 in connection with the sale of
securities (the “Units”) in Cobalt Capital Partners I, LLC and associated entities
(“Cobalt”). This Court previously affirmed Shapiro’s conviction and sentencing
on direct appeal. United States v. Stitsky, 536 F. App’x 98 (2d Cir. 2013).
In his § 2255 motion, Shapiro argued that his counsel was ineffective at his
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sentencing. He now contends that the district court erred in concluding that his
motion was barred by the “mandate rule,” and reiterates that his counsel provided
constitutionally ineffective assistance during sentencing. We assume the parties’
familiarity with the underlying facts, procedural history, and issues on appeal.
When reviewing a district court’s denial of relief under § 2255, we review
legal conclusions de novo while deferring to the district court’s findings of fact
unless clearly erroneous. Rivera v. United States, 716 F.3d 685, 687 (2d Cir. 2013).
Ineffective assistance claims present mixed questions of law and fact, which are
reviewed de novo. Bennett v. United States, 663 F.3d 71, 85 (2d Cir. 2011). It is well
settled that an appellate court may affirm a district court’s decision on any ground
appearing in the record, including one “different from that adopted by the district
court.” Gonzalez v. United States, 722 F.3d 118, 131 (2d Cir. 2013).
While the district court denied relief because it found that Shapiro’s claims
were barred by the mandate rule, we need not rely on that rule to affirm because
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Shapiro clearly cannot demonstrate that he received ineffective assistance of
counsel. 1
Defendants bringing ineffective assistance of counsel claims must
demonstrate, first, that “in light of all the circumstances,” counsel’s actions or
inactions “‘were outside the wide range of professionally competent assistance,’
and second, that ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different’” –
in other words, that the defendant was prejudiced by the unprofessional conduct.
United States v. Nolan, 956 F.3d 71, 79 (2d Cir. 2020) (quoting Strickland v.
Washington, 466 U.S. 668, 690, 694 (1984)).
Without addressing Strickland’s first prong, we conclude that Shapiro
cannot demonstrate prejudice resulting from his counsel’s alleged deficiencies at
sentencing. Shapiro’s argument that he was prejudiced by his counsel’s failure to
present the proper legal authority is belied by the record, which reflects that the
1 Although there are undoubtedly similarities between a court’s analysis under the
mandate rule and the prejudice prong of an ineffective assistance of counsel claim, see
Rodriguez v. United States, 767 F. App’x 160, 164 (2d Cir. 2019) (finding that “the mandate
rule foreclose[d] any argument that [p]etitioners were prejudiced by counsel’s failure to”
address the barred issues); Jones v. United States, 543 F. App’x 67, 71 (2d Cir. 2013), we
remain convinced that the better course for a district court confronted with an ineffective
assistance claim in a § 2255 motion is to engage in the traditional two-pronged analysis
under Strickland v. Washington, 466 U.S. 668, 687 (1984).
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court was well aware of United States v. Leonard, 529 F.3d 83 (2d Cir. 2008), when it
sentenced Shapiro and his co-defendant, Irving Stitsky. See Shapiro v. United States,
No. 15-cv-7891 (KMW), 2018 WL 9801182, at *4 (S.D.N.Y. Aug. 7, 2018); Stitsky, 536
F. App’x at 111. Put simply, there can be no prejudice for a failure to request that
the court consider specific precedent when “the court rule[s] as if such a request
had been made.” United States v. Patasnik, 89 F.3d 63, 67 (2d Cir. 1996).
As for Shapiro’s argument that his counsel was ineffective because he failed
to present the sort of expert testimony now offered as part of his § 2255 motion,
this Court already explained on direct appeal that presentation of such evidence
would not have made a difference. Specifically, we held that a real estate appraisal
similar to the one Shapiro now proffers “would not have proved that the Units had
value, even if it could have demonstrated that the properties had value.” Stitsky,
536 F. App’x at 111 n.8. We stated further that the district court reasonably
concluded that the Units had no value because “there was no realistic possibility
that Cobalt would be able to generate a positive return for investors” despite any
value remaining in the properties. Id. at 111; see also id. at 110 (upholding as
reasonable the district court’s reliance on the total amount invested by victims to
estimate loss). Because we have already determined that the expert testimony now
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deemed crucial by Shapiro would not have been helpful for proving a different
loss calculation, Shapiro cannot show a reasonable probability that, but for his
counsel’s conduct, the result of his sentencing would have been different. See
United States v. O’Neil, 118 F.3d 65, 73 (2d Cir. 1997) (holding that a failure to object
to a presentencing report was not prejudicial because the objections that the
defendant claimed should have been raised were “without merit and therefore
would not have altered his sentence”).
We have considered all of Shapiro’s remaining arguments and find them to
be without merit. Accordingly, we AFFIRM the district court’s judgment.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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