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Menaged v. United States

United States District Court, D. Arizona

September 30, 2019

Yomtov Scott Menaged, Movant,
v.
United States of America, Respondent.

          ORDER

          G. Murray Snow Chief United States District Judge.

         Pending before the Court is a Report and Recommendation (“R&R”) (Doc. 19) issued by Magistrate Judge Camille D. Bibles recommending that Movant Yomtov Scott Menaged's (“Movant”) Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) be denied. Also pending is a request by Movant for leave to amend his § 2255 motion. (Doc. 20.) For the following reasons, the Court accepts the R&R, denies Movant's request for leave to amend and denies the request for an evidentiary hearing.

         BACKGROUND

         In the underlying criminal matter, Movant plead guilty to one count of conspiracy to commit bank fraud, one count of aggravated identity theft, and one count of conspiracy to commit money laundering in violation of § 18 U.S.C. § 1956(h). Movant was sentenced to 204 months imprisonment, followed by 36 months of supervised release.

         The essential terms of Movant's plea agreement are as follows: (1) Movant and the Government stipulated that the loss associated with Movant's unlawful conduct as it relates to money laundering conspiracy is $34 million; (2) Movant agreed to a restitution obligation not to exceed $34 million; and (3) the Government stipulated that Movant's sentence of imprisonment shall not exceed 204 months. At both the change of plea hearing and sentencing, Movant proclaimed, under oath, that he understood the terms of his plea agreement and voluntarily entered into the plea agreement. The R&R sets forth a more detailed procedural and factual background to this case; the court adopts this background and does not repeat it here.[1]

         Movant filed the present § 2255 motion on July 30, 2018. Movant asserts his counsel was ineffective for failing to: (1) investigate the loss amount; (2) investigate the restitution amount; (3) object to a sentence enhancement for substantial financial hardship to one or more victims; (4) object to the presentence report; (5) object to a sentence enhancement for substantial jeopardizing the soundness of a financial institution; and (6) properly advise him of the right to file a motion for modification of sentence that was waived by pleading guilty. Magistrate Judge Bibles found that Movant's “claims regarding his counsel's alleged deficiencies are without support in the record, and do not provide a basis for habeas relief.” (Doc. 19 at 26.) The R&R recommends that the Court dismiss Movant's § 2255 Motion in full.

         Movant requested leave to supplement his § 2255 motion with an additional claim for ineffective assistance of counsel, or in the alternative prosecutorial misconduct. Movant also timely filed objections to the R&R. Movant objects to the Magistrate Judge's recommendation that Movant failed to establish a claim for ineffective assistance of counsel with respect to (1) counsel's investigation of the loss amount; (2) counsel's investigation of the restitution amount; and (2) counsel's failure to object to application of the substantial financial hardship sentencing enhancement.

         DISCUSSION

         Because review of the R&R is only appropriate at this time if Movant's § 2255 motion is not amended, Movant's Request for Leave to Amend is addressed first.

         I. Leave to Amend

         Writs of habeas corpus “may be amended or supplemented as provided in the rules of procedure applicable to civil actions.” 28 U.S.C. § 2242. Rule 15(a) dictates that leave to amend “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). “However, the Ninth Circuit has found that a district court was correct in denying leave to amend a habeas petition where allowing amendments would be futile because the amendments were late, duplicative, or patently frivolous.” Wilson v. United States, CV 06-2376-PCT-JAT, 2007 WL 2237673, at *2 (D. Ariz. Aug. 3, 2007) (citing Bonin v. Calderon, 59 F.3d 815, 846 (9th Cir. 1995)). “[A] proposed amendment is futile only if no set of facts can be proved under the amendment” that constitute a valid claim or defense. Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) overruled on other grounds by Ashcroft v. Iqbal, 556 U.S. 662 (2009).

         In his amended petition, Movant alleges that the government induced him to enter his plea agreement by promising not to prosecute Movant's father. Movant argues this promise was breached when his father was indicted in April 2019. This alleged promise, however, is not mentioned in Movant's written plea agreement. In the written plea agreement, Movant certified that the agreement “contain[ed] all the terms and conditions of the plea.” (United States v. Menaged, 2:17-cr-0680-GMS, Doc. 192 at 13.) Movant made the same acknowledgement under oath at his change of plea hearing on October 17, 2017.[2] (United States v. Menaged, 2:17-cr-0680-GMS, Doc. 254 at 14-16.) Movant now claims that he interpreted his prior declarations regarding his plea agreement “to relate to promises made regarding my sentence and my case.” (Doc. 21 at 7.) Movant seemingly implies that he did not understand his prior declarations to include promises made about his father's case. However, the written plea agreement also included the following provision:

I further agree that promises, including any predictions as to the Sentencing Guideline range or to any Sentencing Guideline factors that will apply, made by anyone (including my attorney) that are not contained within this written plea ...

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