United States District Court, D. Arizona
Murray Snow Chief United States District Judge.
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.
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.
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.
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.
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
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.
Leave to Amend
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).
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. (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