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govinfo:USCOURTS-nyed-1_17-cr-00372-7
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
RONALD HARDY,
Petitioner,
MEMORANDUM AND ORDER
-against- 17-CR-0372(JS)
UNITED STATES OF AMERICA,
Respondent.
---------------------------------X
APPEARANCES
For Petitioner: Ronald Hardy, Pro se
#90282-053
USP Canaan
U.S. Penitentiary
Satellite Camp
P.O. Box 200
Waymart, Pennsylvania 18472
For Respondent : Whitman G.S. Knapp, Esq.
Kaitlin Farrell, Esq.
United States Attorney’s Office
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201
SEYBERT, District Judge:
Presently before the Court is the pro se Section 2255
habeas petition of Ronald Hardy (“Petitioner” or “Hardy”), seeking
to vacate his conviction and sentence (hereafter, the “Petition”),
as well as requesting his interim release on bond pending a final
determination on the Petition (hereafter, the “Bond Motion”). (See
Petition, ECF No. 1240; see also Suppl. Bond Motion, ECF No. 1270;
Reply, ECF No. 1285; Suppl. Reply, ECF No. 1286.) The Government
opposes the Petition and Bond Motion. (See Omnibus Opp’n, ECF No.
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1281.) For the following reasons, the Petition and Bond Motion
are DENIED in their entireties.
BACKGROUND
The Court presumes the parties’ familiarity with the
facts of this case. See generally United States v. Chartier, No.
17-CR-0373, 2021 WL 3795352 (E.D.N.Y. Aug. 26, 2021) (denying
co-defendants’ motions for acquittal or, alternatively, new
trials1), aff’d, Nos. 22-3125 (L), 23-6080 (CON), 2024 WL 3617023
(2d Cir. Aug. 1, 2024) (summary order). For the reader’s
convenience, the Court states summarily that Petitioner helped run
a so-called pump -and-dump boiler room operation which involved
aggressively pushing penny stocks upon primarily elderly
investors. See id. at *2; see also Chartier, 2024 WL 3617023, at
*1. Said operation was a fraudulent scheme structured to
artificially inflate the prices of such penny stocks so their
owners profited from their sales.
On July 11, 2017, Hardy was charged with eight counts
under a nine-count Indictment, to wit: Counts 1, 2, 3, 5, 6, 7, 8,
and 9. (See ECF No. 1.) On July 12, 2017, Hardy entered a plea
of not guilty. (See ECF No. 13.) After an initial temporary
1 More accurately, the Court granted, in part, Chartier’s motion
to the extent it vacated his conviction as to Count Sixteen of the
subject superseding indictment. See Chartier, 2021 WL 3795352, at
*1, *26-29. In all other respects, Chartier’s motion was denied.
See id. at *18, *52.
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detention (see ECF Nos. 14, 63), on July 19, 2017, Petitioner was
released on a $1 million secured bond with conditions. (See ECF
Nos. 80, 82.) Among other conditions, Petitioner was placed under
the supervision of Pretrial Services and subject to random visits
by a Pretrial Services officer and was required to report to
Pretrial Services as directed; he was also required to turn over
his passport and was restricted from traveling outside of New York
City and Long Island. (See Order Setting Conditions of Release
and Appearance Bond, ECF No. 82 (sealed).)
A little more than a year later, on August 22, 2018,
Petitioner entered a change of plea, pleading guilty to all the
counts brought against him; however, said plea was not pursuant to
a plea agreement with the Government. (See ECF No. 265; see also
Sent’g Hr’g Tr. 48.) Approximately a month later, on September
28, 2018, the Court entered an order modifying the terms of Hardy’s
bond, removing “the condition of a location restriction program,
including location monitoring, house detention, and a curfew” in
part to facilitate Defendant’s working as an Uber driver. (See
ECF No. 275.) All other conditions remained unchanged.
On September 12, 2019, Petitioner was sentenced on
Counts 1-3, and 5-9; other than Count 1, for which he received a
60-month sentence of incarceration, Petitioner was sentenced to
120 months’ incarceration on each Count, with all sentences to run
concurrently. (See Judgment, ECF No. 527.) A three-year sentence
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of supervised release was also imposed, as well as orders of
forfeiture and restitution, 2 with the restitution amount being
approximately $15.4 million and for which Petitioner was jointly
and severally liable. (See id.) Upon Petitioner’s request, his
surrender date was extended to January 6, 2020; he remained on
bond pending his surrender. (See Sent’g Hr’g Tr. 48; see also
Sent’g Hr’g Minute Entry, ECF No. 526.) Because there was no plea
agreement, Petitioner was advised of his right to appeal. (See
Sent’g Hr’g Tr. 48-49.)
Via counsel, Petitioner filed a Notice of Appeal on
September 24, 2019. (See ECF No. 533.) On November 13, 2019, the
Second Circuit issued an order informing Petitioner his appeal was
in default for failure to pay the required filing fee and that
said appeal would be dismissed effective December 4, 2019 unless
either the required fee was paid or Petitioner sought to proceed
in forma pauperis. See Hardy v. United States, No. 19-3067, slip
order (2d Cir. Nov. 13, 2019). On February 22, 2021, after
Petitioner failed to cure his appeal default, the Second Circuit
issued a Mandate dismissing Petitioner’s appeal. (See 2d Cir.
Mandate, ECF No. 934.)
2 In accordance with the original Judgment, a subsequent Amended
Judgment with an Order of Restitution was entered. (See Judgment
at 8; see also Am. Judgment, ECF No. 1426.) Pursuant to the Order
of Restitution, Petitioner is jointly and severally liable for the
$15.4 million restitution amount. (See Am. Judgment at 9-12.)
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Of further relevance, in addition to originally
extending Petitioner’s surrender date to allow Petitioner “to
spend one last holiday with his family and his children” (Sent’g
Hr’g Tr. 48:8-9), the Court granted nine additional extensions of
time for Petitioner to surrender to the Bureau of Prisons (“BOP”).
(See ECF Nos. 628, 770, 830, 898, 921, 964, 980, 1085, 1201.)
Petitioner’s extension requests, which where all counseled
requests, were based primarily upon medical reasons and,
relatedly, the COVID-19 Pandemic. (See, e.g., Gov’t Opp’n to 10th
Surrender Extension Request (the “Redacted Opp’n”), ECF No. 1234
(redacted), at 1 (delineating Petitioner’s nine prior surrender
extension requests).) However, after three years, nine granted
extensions, and for reasons filed under seal, in the Fall of 2022,
the Government opposed Petitioner’s tenth surrender extension
request, which was also a counseled request. (See Gov’t Opp’n to
10th Surrender Extension Request, ECF No. 1235 (sealed).) Among
other things, it persuasively argued:
The defendant’s sentence has now been
adjourned nine times over approximately three
years based on various purported health
issues. There is no reason he cannot receive
treatment for his latest purported illness
while serving his sentence. This, alone, is
sufficient reason for the Court to deny
Hardy’s tenth request to adjourn his surrender
date.
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(Redacted Opp’n at 2.) Agreeing with the Government, the Court
denied Petitioner’s tenth surrender extension request and
directed:
The defendant shall surrender for the service
of the sentence as previously ordered, before
2:00 PM on 10/24/2022, at the institution
designated by the Federal Bureau of Prisons.
It is further ordered that the Federal Bureau
of Prisons ensure that the defendant
receive[s] all necessary medications
prescribed by the defendant’s physicians while
in custody.
(Oct. 20, 2022 Elec. Order.) Petitioner complied and
self-surrendered; thereafter, 17 days later, on November 9, 2022,
he proceeded to file his pro se Petition.
DISCUSSION
I. Applicable Law: The Section 2255 Standard
“The writ of habeas corpus stands as a safeguard against
imprisonment of those held in violation of the law.” Harrington
v. Richter, 562 U.S. 86, 91, 131 S. Ct. 770, 780, 178 L. Ed. 2d
624 (2011). To obtain relief under Section 2255, a petitioner
must show “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 sentence, or that the sentence
was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack.” 28 U.S.C. § 2255(a); see also
United States v. Hoskins, 905 F.3d 97, 102 (2d Cir. 2018).
Therefore, a collateral attack on a conviction or sentence is
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available “for a constitutional error, a lack of jurisdiction in
the sentencing court, or an error of law or fact that constitutes
‘a fundamental defect which inherently results in a complete
miscarriage of justice.’” United States v. Bokun, 73 F.3d 8, 12
(2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428
(1962)); accord Cuoco v. United States, 208 F.3d 27, 30 (2d Cir.
2000); Rodriguez v. United States, No. 11-CV-2957, 2013 WL 6171618,
at *3 (S.D.N.Y. Nov. 25, 2013), aff’d, 679 F. App’x 41 (2d Cir.
Feb. 15, 2017).
When determining whether to grant relief, Second Circuit
precedent “instructs that § 2255 review is ‘narrowly limited in
order to preserve the finality of criminal sentences and to effect
the efficient allocation of judicial resources.’” Hoskins, 905
F.3d at 102 (quoting Graziano v. United States, 83 F.3d 587, 590
(2d Cir. 1996) (internal quotation marks omitted)). Additionally,
in advancing a federal habeas corpus writ, the petitioner has the
burden of proving his claims by a preponderance of the evidence.
See Negron v. United States, 520 F. Supp. 3d 296, 301 (E.D.N.Y.
2021) (“A § 2255 movant bears the burden to prove the claims in
his § 2255 motion by a preponderance of the evidence.” (citing
Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000) (further
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citation omitted)); accord Skaftouros v. United States, 667 F.3d
144, 158 (2d Cir. 2011).
As Petitioner’s submissions were filed pro se, the Court
has liberally construed them “‘to raise the strongest arguments
that they suggest.’” Kirkland v. Cablevision Sys., 760 F.3d 223,
224 (2d Cir. 2014) (quoting Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994)). Nonetheless, this does not excuse Petitioner
“‘from comply[ing] with relevant rules of procedural and
substantive law.’” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)
(quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)).
II. Application
A. The Petition
1. Petitioner’s Position
Initially, Petition asserts his Petition, filed some
three years after he was sentenced, is timely. Indeed, while
recognizing the one-year limitation period within which to file a
Section 2255 habeas petition, Petitioner also highlights “a
defendant must be ‘in custody’ in order to file such a motion.”
(Petition at ECF p.4.) He relies upon Abimbola v. United States,
369 F. Supp. 2d 249, 252 (E.D.N.Y. 2005), in support of this habeas
maxim: “To do this, the petitioner must be in custody pursuant to
the challenged sentence when the petition for collateral review is
filed.” (Id. (quoting Abimbola).) He claims: “[D]espite having
been sentenced more than one year ago, and his appeal having been
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dismissed more than one year ago, [he] was not ‘in custody’ until
his recent surrender” and, therefore, “he could not have sought
Section 2255 relief until after his self-surrender for service of
his sentence.” (Id.)
Substantively, in seeking to have his sentence vacated,
Petitioner raises one claim of ineffective assistance of counsel.
(See Petition § II(B).) In a conclusory manner, Petitioner
contends his retained defense counsel advised him cooperating with
the Government was not in his best interest. (See id. at ECF
pp.4-5.) Relatedly, Petition baldly claims: “Had Defendant been
given an opportunity to cooperate, he would have provided
substantial assistance resulting in the filing of a U.S.S.G. 5K1.1
motion by the Government that the Court would almost certainly
have viewed favorably at sentencing.” (Id. at ECF p.5.)
Petitioner also complains his defense counsel advised
him against accepting the Government’s plea offer, which would
have required Petitioner to plea guilty to less counts of the
Indictment, since accepting the offer “would require the
relinquishment of [Petitioner’s] appellate rights.” (Id.)
Instead, “[a]ccepting counsel’s advice, Defendant rejected the
more favorable plea offer, only to be subsequently advised by the
same counsel to enter an open plea of guilty.” (Id.) Petitioner
speculates his counsel’s advice to not pursue a cooperation
agreement or counsel’s advice to not accept the Government’s plea
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agreement “was motivated by his [counsel’s] financial interests.”
(Id. at ECF p.7 (arguing further that “counsel stood to gain
considerably more if this case proceeded to trial”).)
2. The Government’s Position
In a cursory manner, the Government maintains the
Petition is untimely and is otherwise without merit. (See Opp’n
at 1-2.)
3. Petitioner’s Reply
In reply, Petitioner would have the Court rebuke the
Government’s statute of limitations defense, arguing “a defendant
cannot seek relief under 28 USC 2255 unless he is in custody
serving out the sentence under attack.” (Reply at ECF p.1
(emphasis in original).) In that vein, Petitioner argues his
“sentence was not being served, and he was not in custody for
purposes of seeking relief under 28 USC 2255, until after his
self-surrender in October 2022.” (Id. (emphasis in original).)
Petitioner also summarily and generally contends he did not become
aware of his “constitutional claim”, i.e., his ineffective-
assistance-of-counsel claim, until after he began serving his
sentence, thereby making his November 9, 2022 Petition timely
pursuant to Section 2255(f)(4). (See id. at ECF p.2.)
[Remainder of page intentionally left blank.]
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B. The Court’s Ruling
1. Petitioner’s “In Custody” Argument Fails
In relevant part, Section 2255(a) provides: “A prisoner
in custody under sentence of a court established by Act of Congress
claiming the right to be released . . . may move the court which
imposed the sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a). “A district court may not entertain a
collateral attack on a sentence imposed by a federal court unless
the petitioner satisfies the jurisdictional ‘in custody’
requirement of 28 U.S.C. § 2255.” Abimobola, 369 F. Supp. 2d at
252; see also, e.g., Cardenas v. United States, No. 20-CV-4509,
2022 WL 1213338, at *3 n.2 (S.D.N.Y. Apr. 25, 2022) (noting
“[c]ustody is a prerequisite to the Court’s [habeas] jurisdiction”
(citing Maleng v. Cook, 490 U.S. 488, 490 (1989))).
The phrase “in custody” is not defined in the statue.
Yet, the Supreme Court has instructed “we have very liberally
construed the ‘in custody’ requirement for purposes of federal
habeas.” Maleng, 490 U.S. at 492. The Court further implicitly
instructs that “in custody” requires a present degree of “restraint
from a conviction.” See id. (explaining “we have never extended
[the ‘in custody’ requirement] to the situation where a habeas
petitioner suffers no present restraint from a conviction”). With
that guidance, this Court is compelled to find Petitioner’s “in
custody” argument without merit.
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As stated, relying upon Abimbola, Petitioner asserts
that to avail himself of Section 2255, he must be “in custody
serving out the sentence under attack.” (Reply at ECF p.1
(underline emphasis added.) According to Petitioner’s logic, it
was only once he had both self-surrendered to the BOP and was
actively serving his sentence, that he was actually “in custody”
and, thus, Section 2255 was triggered permitting him to seek habeas
relief. Not so.
While it is true “[a] district court may not entertain
a collateral attack on a sentence imposed by a federal court unless
the petitioner satisfies the jurisdictional ‘in custody’
requirement of 28 U.S.C. § 2255”, the Abimbola Court further
clarified “[p]hysical confinement is not necessary to satisfy the
‘in custody’ requirement.” 369 F. Supp. 2d at 252.Id. By way of
example, it explained, “a petitioner who is on parole or serving
a term of supervised release is ‘in custody’ for the purposes of
the federal habeas corpus statue.” Id.; cf., e.g., Green v. United
States, 415 F. Supp. 3d 338, 341 (W.D.N.Y. 2019) (“[C]ourts have
uniformly held that petitioners still in state custody who have
yet to begin serving a consecutive federal sentence may
nevertheless challenge that federal sentence and thus are subject
to the § 2255 statute of limitations.” (citing Perry v. Warden
Fort DIX FCI, 609 F. App’x 725, 727 (3d Cir. 2015)); Ospina v.
United States, 386 F.3d 750, 752 (6th Cir. 2004) (“A prisoner is
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in custody for the purposes of § 2255 when he is incarcerated in
either federal or state prison, provided that a federal court has
sentenced him.” (citations omitted)) (emphasis added).
Similarly, other courts have found criminal defendants
who had been sentenced, but who are not yet incarcerated, to be
“in custody” for habeas purposes. See, e.g., Carroll v. United
States, No. 23-CV-0963, 2025 WL 2430562, at *5 (N.D. Ill. Aug. 22,
2025) (“Although the court has extended Carroll’s report date
pending disposition of his § 2255 motion, meaning that he is not
yet incarcerated, he is nevertheless ‘in custody’ for purposes of
§ 2255.”); United States v. Saleh, No. 15-CR-11552, 2016 WL
2766305, at *3 (N.D. Ill. May 13, 2016) (rejecting petitioner’s
“not ‘in custody’” argument advanced in support of alleged
timeliness of a Section 2255 petition where “petitioner was
originally sentenced on March 26, 2014, at which time the court
ordered that he surrender to the BOP on May 20, 2014” and which
“surrender date was subsequently extended numerous times”, and
finding, instead, petitioner’s
“incarceration lay in the future,
allowing him to seek relief pursuant to § 2255”); United States v.
Bradley, No. 13-CR-20622, 2016 WL 5799341, at *2 (E.D. Mich. Oct.
5, 2016) (adopting, over objection of the Government, magistrate
judge’s recommendation that “[d]efendant under sentence released
on bond pending execution of his sentence [] satisfied § 2255’s
‘in custody’ requirement”; relying upon Supreme Court’s analysis
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of “in custody” requirement in context of Section 2254 habeas in
making ruling (discussing Hensley v. Municipal Court, 411 U.S. 345
(1973)).
The determination of the Bradley Court is equally
applicable here; under the facts of this case, for purposes of
Section 2255, Petitioner was “in custody” before his self-
surrender. The Bradley Court’s discussion of the Hensley case
elucidates this Court’s similar “in custody” finding. In Bradley,
the court explained:
The Supreme Court expressly addressed the
question of whether a defendant on bond
awaiting the execution of his sentence can
satisfy the “in custody” requirement in the
context of a state court prisoner seeking
habeas relief pursuant to 28 U.S.C. § 2254 in
Hensley v. Municipal Court, 411 U.S. 345
(1973). In Hensley the petitioner was
sentenced in state court to one year of
imprisonment. After exhausting his available
state court remedies the petitioner filed his
§ 2254 petition in federal district court.
Id. at 346. At the time of the filing the
petitioner had not begun to serve his
sentence, and remained on bond. Id. at
346-347. As a condition of his bond, the
petitioner could be rearrested if he failed to
appear when required to. Id. at 247.
The Supreme Court was faced with the
question of whether the petitioner satisfied
the “in custody” requirement as used in the
habeas corpus statute. Noting that “[t]he
custody requirement of the habeas corpus
statute is designed to preserve the writ of
habeas corpus as a remedy for severe
restraints on individual liberty[,]” the
Supreme Court determined that he did. Id. at
349. Underlying this holding was a finding
that the petitioner was “subject to restraints
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not shared by the public generally,” namely,
the obligation to appear at all times and
places as ordered by the Court. Id. at 351.
The Court also emphasized that the petitioner
remained at large only by the grace of a stay
entered by the sentencing court, and that his
incarceration was not a speculative
possibility depending on any contingencies.
Id. at 351-52. The Supreme Court expressly
limited its holding to cases in which a
petitioner was under sentence and had
satisfied all exhaustion requirements. Id. at
353.
Bradley, 2016 WL 5799341, at *2-3 (emphasis added). The Bradley
Court further expounded that, relying upon Hensley, in Lawrence v.
48th District Court, the Sixth Circuit Court of Appeals distilled
a three-part “in custody” test to determine if that component of
the Section 2254 habeas jurisdiction requirement is met. See id.
at *3 (citing Lawrence v. 48th Dist. Court, 560 F.3d 475 (6th Cir.
2009)). Said test requires a petitioner to demonstrate: “(1) his
personal recognizance bond subjected him to restraints not shared
by the public generally; (2) the sentence that had been stayed
involved incarceration; and (3) he had exhausted his state
remedies.” Id. (citing Lawrence, 560 F.3d at 480). The Bradley
Court found the rationale of both Hensley and Lawrence applicable
to Bradley’s Section 2255 habeas “in custody” inquiry, since
“Bradley [wa]s subject to bond conditions requiring him to appear
at any time and his forthcoming imprisonment [wa]s not speculative
or based on any contingencies.” Id. (further collecting cases
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reaching the same conclusion). Accordingly, under such a scenario,
a petitioner is “in custody” for purposes of Section 2255.
Here, applying the relevant components of the “in
custody” test identified by the Lawrence Court, and as applied by
the Bradley Court, there can be no doubt Petitioner was: (a) “under
sentence”; (b) subject to restraints not shared by the public
generally, i.e., subject to bond conditions requiring him to appear
at any time; and (c) facing forthcoming incarceration, which
incarceration was neither speculative nor based upon any
contingencies. Given this combination of factors, notwithstanding
he was not yet incarcerated, i.e., physically detained, Petitioner
was “in custody” for purposes of Section 2255.
Given this determination that Petition was “in custody”,
the Court observes that for Petitioner to have commenced a timely
habeas petition, under a generous construction, at the very latest,
he would have had to have done so by no later than February 22,
2022, one year after the Second Circuit issued its February 22,
2021 Mandate, which dismissed Petitioner’s appeal.3 (See Mandate,
ECF No. 934); see also 28 U.S.C. § 2255(f)(1). Petitioner’s
3 The Court recognized the Government takes the position that,
although Petitioner “filed a notice of appeal on September 27,
2019, he never perfected it.” (Opp’n at ECF p.2 n.1.) Further,
“[o]n February 1, 2021, the Second Circuit Court of Appeals entered
an order dismissing it effective December 4, 2019.” (Id. (citation
omitted).) The Court does not disagree, but, in addressing this
issue, it construes the Petition to raise the strongest argument
possible, even if it is only theoretical.
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November 9, 2022 Petition is well outside this one-year limitation
period, making it untimely.
Moreover, Petitioner has not made any claim of equitable
tolling. Nor is the Court able to discern any basis upon which
such a claim would lie given the record before it. See, e.g.,
Baldayaque v. United States, 338 F.3d 145, 151 (2d Cir. 2003)
(“Equitable tolling . . . is only appropriate in rare and
exceptional circumstances. To merit application of equitable
tolling, the petitioner must demonstrate that he acted with
reasonable diligence during the period he wishes to have tolled,
but that despite his efforts, extraordinary circumstances beyond
his control prevented successful filing during that time.”
(citation omitted)). And, even if the Court were to find
exceptional circumstances beyond Petitioner’s control, which it
does not, there is absolutely no indication Petitioner acted with
reasonable diligence during the period he could claim should be
tolled. See, e.g., Rabbani v. United States, 156 F. Supp. 3d 396,
404 (W.D.N.Y. 2016) (instructing it is petitioner’s burden “to
establish the entitlement to equitable tolling” (citing Sorce v.
Artuz, 73 F. Supp. 2d 292, 299 (E.D.N.Y. 1999)).
At bottom: “A person whose incarceration lies in the
future is in custody and has full access to § 2255.” Godoski v.
United States, 304 F.3d 761, 762–63 (7th Cir. 2002) (citing Hensley
v. Municipal Court, 411 U.S. 345 (1973); Maleng, 490 U.S. at 493).
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That is the case here; thus, even if the Court were to determine
“the date on which [Petitioner’s] judgment of conviction became
final”, 28 U.S.C. § 2255(f)(1), to have been February 21, 2021,
the date when the Second Circuit issued its Mandate regarding the
dismissal of Petitioner’s appeal, Petitioner had full access to
seeking Section 2255 relief until February 21, 2022. See 28 U.S.C.
§ 2255(f). Because Petitioner waited until November 9, 2022, after
the theoretical applicable one-year period of limitation to file
his Petition, he is foreclosed from seeking Section 2255 habeas
relief. Hence, on tardiness alone, the Petition is DENIED.
2. Petitioner’s Section 2255(f)(4) Argument Fails
As an apparent throwaway argument, Petitioner also
asserts in a conclusory fashion that his Petition is timely
pursuant to Section 2255(f)(4) because he “did not become aware of
the facts upon which this motion is based—i.e., counsel’s material
misrepresentations and ineffectiveness—until after his self
surrender.” (Petition at ECF p.4.) He provides no further
argument, factual details, or proffered evidence supporting this
contention. However, given that a due-diligence inquiry is
fact-specific, see generally Wims v. United States, 225 F.3d 186
(2d Cir. 2000), and Petitioner has failed to delineate any facts
regarding his alleged post-surrender discovery of counsel’s
supposed ineffectiveness, Petitioner’s bald claim of late
discovery is unavailing.
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To begin, “[a]lthough [courts] accord filings from pro
se litigants a high degree of solicitude, even a litigant
representing himself is obliged to set out ‘identifiable
arguments’ in his principal brief.” United States v. Cabral, No.
12-CR-0336, 2025 WL 3628402, at *6 (E.D.N.Y. Dec. 12, 2025)
(quoting Terry v. Inc. Vill. of Patchogue, 826 F.3d 631, 632–33
(2d Cir. 2016); internal quotations omitted; further citation
omitted). Yet, Petitioner has failed to do so as to his Section
2255(f)(4) contention. In the absence of any developed argument
regarding Petitioner’s exercise of due diligence, and finding
nothing further in the record supporting Petitioner’s Section
2255(f)(4) position, the Court finds Petitioner’s reliance upon
Section 2255(f)(4) unavailing to establish his Petition is timely.
Moreover, and in any event, Section 2255(f)(4) provides
a one-year limitation period to seek Section 2255 relief which
runs from “the date on which the facts supporting the claim or
claims presented could have been discovered through the exercise
of due diligence.” (Emphasis added.) As stated, supra, Petitioner
wholly fails to explain why, through the exercise of due diligence,
he could not have discovered his ineffective-assistance-of-counsel
claims sooner than when he self-surrendered. Given the expanse of
time Petitioner remained at liberty, albeit on bond, together with
the fact that he also remained represented throughout that period,
although by different counsel, it defies credulity that Petitioner
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could not have exercised due diligence to uncover this purported
claim. See, e.g., United States v. Wright, No. 21-CV-6496, 2025
WL 2163338, at *7-8 (W.D.N.Y. July 30, 2025) (finding incredible
petitioner’s explanation regarding alleged ineffective assistance
and further finding petitioner did not exercise reasonable
diligence, over a three-year period, in investigating his
ineffective assistance claim). It is highly likely that a duly
diligent person in a scenario such as that of Petitioner could
have discovered this ineffective-assistance claim well before the
time Petitioner asserts he discovered the claim. Indeed, at a
minimum, in today’s world and given the ubiquitous nature of the
internet (as well as artificial intelligence), the Court is hard
pressed to conclude that a basic search (or prompt) would not have
identified ineffective-assistance-of-counsel as a possible basis
for Petitioner to seek Section 2255 habeas relief and, thereby,
trigger some due diligence, i.e., investigating further whether
the facts of Petitioner’s case presented ineffective-assistance-
of-counsel grounds for habeas relief. And, Petitioner had more
than three years to investigate any types of claims which would
support a habeas petition, including claims of ineffective-
assistance-of-counsel. Moreover, in that time span, Petitioner
had other counsel with whom he could have discussed grounds to
seek habeas relief. (Indeed, as indicated, supra, all of
Petitioner’s ten surrender extension requests were submitted by
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counsel.) At bottom, an ineffective-assistance claim is not such
an elusive basis that, with due diligence, it could not have been
discovered, whether a petitioner is counseled or not; it certainly
is not the case here, given its unique facts. Therefore, the
Petition is also DENIED as untimely pursuant to Section 2255(f)(4).
3. Petitioner’s Ineffective-Assistance Claim Need Not
be Considered
Because his Petition is time-barred, the Court need not
consider Petitioner’s ineffective-assistance claim. See, e.g.,
United States v. Fernandez, 795 F. Supp. 3d 457, 461 (S.D.N.Y.
2025) (declining to discuss petitioner’s ineffective-assistance-
of-counsel claim where petition was time-barred pursuant to
Section 2255(f)(4)). However, if said claim were to be considered,
on their face, Petitioner’s arguments regarding defense counsel’s
advice not to pursue a cooperation agreement and not to enter into
a plea agreement would fail to meet the strictures of the
well-known, applicable Strickland test.
Claims of ineffective assistance of counsel
are evaluated under the framework set forth in
Strickland v. Washington, 466 U.S. 668 (1984).
“First, the [petitioner] must show that
counsel’s performance was deficient.”
Strickland, 466 U.S. at 687. “Second, the
[petitioner] must show that the deficient
performance prejudiced the defense.” Id.
Herring v. United States, No. 20-CV-9752, 2025 WL 3124678, at *4
(S.D.N.Y. Nov. 6, 2025). As to the first, “performance” prong, a
petitioner must: (a) “show that his counsel’s performance fell
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below an objective standard of reasonableness under prevailing
professional norms”, with the court’s review being highly
deferential and indulging in a “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance”; and (b) “overcome the presumption that, under the
circumstances, the challenged action might be considered sound
trial strategy.” United States v. Peterson, 896 F. Supp. 2d 305,
312 (S.D.N.Y. 2012) (quoting Strickland; internal quotation marks
omitted). As to the second, “prejudice” prong, a petitioner “must
demonstrate that, ‘but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’” Id. (quoting
Stickland). Further, “[w]here a petitioner’s conviction resulted
from his own guilty plea, he must show that ‘there is a reasonable
probability that were it not for counsel’s errors, he would not
have pled guilty and would have proceeded to trial.’” Id. (quoting
United States v. Arteca, 411 F.3d 315, 320 (2d Cir.2005) (citing
Hill v. Lockhart, 474 U.S. 52, 59 (1985)). “Because both parts of
the Strickland test must be satisfied for a petitioner to establish
ineffective assistance of counsel, failure to satisfy one part of
the test frees a district court from assessing whether the
petitioner satisfied the other part of the test.” Velez v. United
States, No. 05-CV-0537, 2006 WL 1952191, at *4 (S.D.N.Y. July 10,
2006) (citing Strickland, 466 U.S. at 699 (instructing a court
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need not “address both components of the [two-part Strickland]
inquiry if the defendant makes an insufficient showing on one”)).
Here, Petitioner’s ineffective-assistance claims would
fail for various reasons. First, they are little more than
conclusory allegations, devoid of any support; such vague,
unsubstantiated “Monday-morning quarterbacking” claims of
ineffective-assistance-of-counsel would not withstand the
strictures of a Strickland analysis, especially given the strong
presumption of competence afforded to counsel. See, e.g., Herring,
2025 WL 3124678, at *4; see also Norville v. United States, 151 F.
Supp. 3d 329, 336 (S.D.N.Y. 2015) (“An attorney’s performance is
given a strong presumption of effectiveness, as courts recognize
a ‘wide range of professional assistance.’” (quoting Strickland,
466 at 689)). Moreover, where, as here, a petitioner follows
counsel’s advice and pleads without the benefit of an agreement
with the Government, such decision “constitutes strategic advice
that should not be second-guessed by the court.” Peterson, 896 F.
Supp. 2d at 315 (citing, by way of example, Purdy v. United States,
208 F.3d 41, 48 (2d Cir.2000) (finding attorney “acted reasonably”
when he told client about an offer “without specifically advising
[defendant] to take the plea”), and Lake v. United States, 465 F.
App’x 33, 35 (2d Cir.2012) (summary order) (counsel’s
“miscalculations regarding the Government’s willingness to
negotiate a more favorable deal or restore its initial plea offer
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represent, at best, strategic errors that are ‘virtually
unchallengeable’” (quoting Strickland, 466 U.S. at 690)).
Continuing, Petitioner’s claim that, but for his defense
counsel’s advice, he would have “secur[ed] a substantially shorter
term of imprisonment, and potentially a time- served sentence”
(Petition at ECF p.5) is purely speculative and belied by what
transpired at Petitioner’s sentencing. During sentencing, it
became apparent this Court was not considering a shorter, five-year
sentence advocated by defense counsel, let alone a time-served
one. (Compare, e.g., Sent’g Hr’g Tr. 15, 19-21, with id. at 43-
45.) Further and significantly, at his sentencing, this Court
inquired whether Petitioner was satisfied with defense counsel, to
which Petitioner responded he was. (See id. at 5.) Such a
statement carries a strong presumption of truth, see Blackledge v.
Allison, 431 U.S. 63, 74–76 (1977) (“Solemn declarations in open
court carry a strong presumption of verity.”); thus, without more,
Petitioner would not now be heard to complain of ineffective
assistance of counsel. See, e.g., United States v. Logan, 845 F.
Supp. 2d 499, 511-12 (E.D.N.Y. 2012) (rejecting ineffective
assistance claim where petitioner claimed he was pressured to plead
guilty by counsel, but sush claim was contradicted by petitioner’s
sworn statement, including at sentencing, where petitioner stated
he was satisfied with counsel’s legal representation) (collecting
cases); cf. Oklu v. United States, No. 12-CR-0177, 2016 WL 1383530,
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at *3 (S.D.N.Y. Apr. 7, 2016) (“It is well-established that
‘allegations a defendant makes in a Section 2255 petition cannot
overcome his contrary statements under oath during a plea
allocution, which must be given presumptive force of truth.’”
(quoting Norville, 151 F. Supp. 3d at 336; further citation
omitted) (citation modified).
Petitioner does not meaningfully address the prejudice
prong of the Strickland test. Nor does he indicate that, but for
defense counsel’s alleged ineffective assistance of counsel,
Petitioner would have proceeded to trial. See Peterson, 896 F.
Supp. 2d at 312. Likewise, other than his bald assertions,
Petitioner has failed to proffer any objective evidence
demonstrating prejudice. See Norville, 151 F. Supp. 3d at 336
(addressing prejudice prong of the Strickland test; instructing a
petitioner must affirmatively prove prejudice by showing “there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different”
and “some objective evidence other than [petitioner’s] assertions
is required to establish prejudice” (quoting Pham v. United States,
317 F.3d 178, 182 (2d Cir.2003)) (citation modified). In the
absence of establishing prejudice, Petitioner’s claim of
ineffective-assistance-of-counsel would fail. Therefore, even if
timely, which the Petition is not, the Court would DENY Petitioner
habeas relief.
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4. Petitioner’s Motion for Bond is Moot and Meritless
“[F]ederal courts have the authority to grant bail to
habeas petitioners,” Macaluso v. Keyser, No. 18-CV-4830, 2020 WL
8455536, at *1 (E.D.N.Y. Apr. 17, 2020), but that “power is a
limited one, to be exercised in special cases only.” Mapp v. Reno,
241 F.3d 221, 226 (2d. Cir. 2001). As former Chief Judge Roslynn
R. Mauskopf of this District explained:
A habeas petitioner’s bail request “must
demonstrate that ‘the habeas petition raise[s]
substantial claims and that extraordinary
circumstances exist[ ] that make the grant of
bail necessary to make the habeas remedy
effective.’” Grune v. Coughlin, 913 F.2d 41,
44 (2d Cir. 1990) (quoting Iuteri v. Nardoza,
662 F.2d 159, 161 (2d Cir. 1981)). “[C]ourts
in this district have reasoned that ‘there
must be a demonstrated likelihood that the
petition will prevail, based upon claims of a
substantial nature upon which the petitioner
has a high probability of success, and
demonstrating merits that are more than
slightly in petitioner’s favor, so that
victory for petitioner can be predicted with
confidence.’” Muja v. United States, No. 10-
CV-2770 (NGG), 2011 WL 1870290, at *1
(E.D.N.Y. May 16, 2011) (quoting Beras v.
United States, No. 05-CV-2678 (SWK), 2007 U.S.
Dist. LEXIS 5273 at *3, 2007 WL 195352
(S.D.N.Y. Jan. 24, 2007)).
Macaluso, 2020 WL 8455536, at *1.
Because the Court has already denied the Petition,
Petitioner’s motion for bond is DENIED as moot. Even if that was
not the case, because the instance case is not a special one, it
would not warrant the granting of bond. For the reasons discussed,
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supra, there is little probability Petitioner’s substantive claim
of ineffective-assistance-of-counsel would succeed. Given the
Court’s lack of confidence as to Petitioner’s success regarding
his untimely ineffective assistance claim, Petitioner would fail
to meet the demanding standard warranting the issuance of a bond.
See Hayon v. Reardon, No. 20-CV-4668, 2021 WL 25365, at *4
(E.D.N.Y. Jan. 4, 2021) (“The standard for bail pending habeas
litigation is a difficult one to meet.”); see also, e.g., Moore v.
Vann, 20-CV-0012, 2020 WL 2315694, at *1 (N.D.N.Y. May 11, 2020)
(“The fact that petitioner is incarcerated in alleged violation of
his constitutional rights does not constitute an extraordinary
circumstance.”). Accordingly, if not already mooted by the Court’s
determination on the Petition, Petitioner’s request for release on
bond would be DENIED.
-*-*-*-
To the extent not explicitly stated herein, the Court
has considered Petitioner’s remaining arguments and finds them to
be without merit. At bottom, given the record of this case, and
having considered the relevant case law, the Court finds: (i) the
Petition is untimely, barring this Court’s consideration of it;
and, (ii) even if, assuming argundo, the Petition were timely,
Petitioner would be unable to satisfy the applicable Stickland
test, thereby warranting the denial of habeas relief.
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CONCLUSION
Accordingly, for the foregoing reasons, IT IS HEREBY
ORDERED that Petitioner’s Petition seeking to vacate, set aside,
or correct his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 1240)
is DENIED in its entirety;
Relatedly, IT IS FURTHER ORDERED, Petitioner’s Motion
for Bond (ECF No. 1270) is DENIED as moot;
IT IS FURTHER ORDERED, because there can be no debate
among reasonable jurists that Petitioner is not entitled to relief,
the Court does not issue a Certificate of Appealability. See
28 U.S.C. § 2253(c); see also Middleton v. Att’ys Gen., 396 F.3d
207, 209 (2d Cir. 2005); Baker v. United States, No. 97-CR-0877,
2022 WL 2803556, at *2 (E.D.N.Y. July 18, 2022) (“On the whole,
Petitioner has not made a substantial showing of the denial of his
constitutional rights, and the [court’s decision] thus does not
warrant a Certificate of Appealability.”); and
IT IS FURTHER ORDERED, the Clerk of the Court is directed
to mail a copy of this Memorandum and Order to Petitioner at his
address of record, including the notation “LEGAL MAIL” on the
mailing envelope, and mark as “CLOSED” the corresponding civil
case, Case No. 22-CV-6924.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: January 30, 2026
Central Islip, New York
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