United States District Court, E.D. Virginia, Richmond Division
RAZA H. SIKANDAR, Petitioner,
HAROLD CLARKE, Respondent.
JAMES R. SPENSCR, District Judge.
Raza H. Sikandar, a Virginia prisoner proceeding pro se, brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254. Sikandar challenges his convictions in the Circuit Court of the County of Fauquier ("Circuit Court") for five counts of obtaining money by false pretenses and five counts of uttering a bad check. In his Amended § 2254 Petition ("§ 2254 Petition, " ECF No. 8), Sikandar demands relief upon the following grounds of ineffective assistance of counsel:
Claim 1 Sikandar received ineffective assistance at sentencing.
(i) The prosecutor misrepresented that the Plea Agreement required Sikandar to pay the full of restitution amount prior to sentencing. The Plea Agreement allowed Sikandar to pay restitution at sentencing. (§ 2254 Pet. at 3; see id at 5.)
(ii) Counsel "failed to determine whether [Sikandar] was ready and willing to make the restitution payment at sentencing." ( Id. at 5.)
(iii) Counsel "failed to coordinate payment of [restitution] with [Sikandar's] family." ( Id. )
(iv) Counsel "failed to notify the [Circuit Court] of [Sikandar's] readiness and willingness to pay [the full amount of restitution]." ( Id. )
Claim 2 Sikandar "WAS PREJUDICED BY TRIAL COUNSEL'S DEFICIENT PERFORMANCE IN ADVISING [Sikandar] TO ACCEPT A PLEA BARGAIN WHEN [Sikandar] HAD AN AVAILABLE DEFENSE THAT WOULD HAVE FOUND HIM INNOCENT OF THE CHARGES AGAINST HIM." ( Id. at 5-6 (emphasis omitted).)
Claim 3 Sikandar "WAS PREJUDICED BY APPELLANT COUNSEL'S DEFICIENT PERFORMANCE IN FAILING TO APPEAL THE ERRONEOUS CALCULATION OF HIS SENTENCING GUIDELINES UNDER VIRGINIA LAW..." ( Id. at 7 (emphasis omitted).)
Respondent has moved to dismiss on the grounds that, inter alia, Sikandar's claims lack merit. Sikandar has responded. For the reasons set forth below, the Motion to Dismiss (ECF No. 15) will be granted.
I. PROCEDURAL HISTORY
Pursuant to a plea agreement, Sikandar pled guilty to five counts of obtaining money by false pretenses and five counts of uttering a bad check. Sikandar v. Dir. of the Dep't of Corr., at 1-2, No. 120625 (Va. Dec. 17, 2012) ("State Habeas Op."). During his plea colloquy, Sikandar admitted that the prosecution's evidence would show that between December 3, 2008 and December 8, 2008 he cashed 5 separate checks, each of which exceeded $2, 000, and that he knew he lacked sufficient funds to cover those checks when he presented those checks. (June 22, 2009 Tr. 17-22.) Sikandar further admitted that he told the police that "he knew the SunTrust and BB&T accounts in question lacked the funds to cover those checks [and] said that he knew that they would bounce but intended to pay the bank[s] back when he had the money." (June 22, 2009 Tr. 22.) Pursuant to the Plea Agreement, Sikandar agreed "that on or prior to the date the Court sets for sentencing he will pay restitution as follows: $6, 300 to Fauquier Bank and $4, 100 to BB&T (Branch Banking and Trust)." Plea Agreement ¶ 3, Commonwealth v. Sikandar, No. CR09-99, CR 09-100, CR09-128 through CR09-139 (Va. Cir. Ct. filed June 22, 2009). Upon Sikandar's payment of restitution, the prosecution agreed to recommend that Sikandar receive a total term of imprisonment of ten years for the ten charges to which he pled guilty and "all but two (2) years and two (2) months of said sentence be suspended." ( Id. ¶ 5.) The Plea Agreement further provided that "if the defendant fails to make full and complete restitution.. on or before the sentencing date the Commonwealth is free to argue for any sentence it deems appropriate." ( Id. )
On January 25, 2010, at the beginning of the sentencing hearing, Sikandar moved to withdraw his guilty plea. (Jan. 25, 2010 Tr. 5.) Sikandar then personally addressed the Circuit Court explaining that he did not think his attorney had done a good job and that Sikandar now believed that he was innocent. (Jan. 25, 2010 Tr. 5-6.) The Circuit Court denied the motion, observing, "I'm very unimpressed. I think you're guilty as sin...." (Jan. 25, 2010 Tr. 9.)
Prior to sentencing, Sikandar failed to pay the required restitution. (Jan. 25, 2010 Tr. 10.) Counsel for Sikandar represented that, "Mr. Sikandar's intention was to pay the restitution on or before his sentencing date." (Jan. 25, 2010 Tr. 11.) However, Sikandar's wife left him, Sikandar was incarcerated, and thus "he has not been able to come up with the funds to pay, to make the restitution." (Jan. 25, 2010 Tr. 11.) Counsel further informed the Circuit Court that Sikandar's family "had been willing to come up with some [of the restitution amount], but because the full amount couldn't be had, the plea agreement would have been breached either way." (Jan. 25, 2010 Tr. 11.)
Before imposing a sentence, the Circuit Court provided Sikandar with an opportunity to speak. (Jan. 25, 2010 Tr. 34.) Sikandar addressed the Circuit Court at length. (Jan. 25, 2010 Tr. 34-42.) Sikandar, however, never mentioned during that statement that he or his family had the funds to pay restitution. The Circuit Court then sentenced Sikandar to ten years of imprisonment with all but three years and six months suspended. (Jan. 25, 2010 Tr. 44.)
On September 28, 2010, the Court of Appeals of Virginia denied Sikandar's petition for appeal. Sikandar v. Commonwealth, 0457-10-4, at 1 (Va. Ct. App. July 28, 2010). On April 6, 2011, the Supreme Court of Virginia refused Sikandar's petition for appeal. Sikandar v. Commonwealth, No. 102147, at 1 (Va. Apr. 6, 2011).
On April 6, 2012, Sikandar filed a petition for a writ of habeas corpus with the Supreme Court of Virginia, wherein he raised many of the same claims he raises in his § 2254 petition. Petition for Writ of Habeas Corpus at 1, Sikandar v. Dir. of the Dep't of Corr., No. 120625 (Va. filed Apr. 6, 2012). On December 17, 2012, the Supreme ...