United States District Court, E.D. Virginia, Alexandria Division
of Manassas, Interested Party, represented by Martin R. Crim,
Smith & Davenport.
Inc., Interested Party, represented by Levi Earl Jones,
Schnader Harrison Segal & Lewis LLP.
Plaintiff, represented by Jack Hanly, U.S. Attorney's
Office, Karen Ledbetter Taylor, United States Attorney's
Office & Marla Tusk, United States Attorney's Office.
O'GRADY, District Judge.
Sadr, an inmate proceeding pro se, has filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. Â§
2255. She claims that she received ineffective assistance of
counsel during the plea negotiations that led to her
incarceration. She now seeks to vacate, set aside, or amend
her sentence. The Government has filed its response in
opposition, to which Ms. Sadr replied. Ms. Sadr also filed an
amendment to her initial petitionand an addendum to her
reply. For the reasons stated below, the motion is DENIED.
BACKGROUND AND PROCEDURAL HISTORY
2010, the government was investigating Ms. Sadrfor
participating in a fraudulent mortgage scheme that began as
early as 2004. Under this scheme, Ms. Sadr obtained clients
by telling them that she could help eliminate their
mortgages. She falsely told these clients that she had
successfully eliminated mortgages in the past and that she
had a high success rate. By collecting fees and advance
mortgage payments from a few individuals, Ms. Sadr was able
to completely pay off the real estate debt for select
clients, and she used the stories from those clients to
gather others. In reality, Ms. Sadr was not able to eliminate
mortgages as she had claimed, and banks subsequently
foreclosed on most of her clients' properties. The
victims of this Ponzi scheme lost more than $9.6 million.
in 2010 and throughout the relevant time period, Ms. Sadr was
represented by Assistant Public Defender Kevin Brehm. His
counterpart for the government was Assistant United States
Attorney Maria Tusk. In October 2010, Ms. Tusk and Mr. Brehm
began to discuss the possibility of a plea agreement. Ms.
Tusk sent Mr. Brehm a draft agreement that included a
pre-indictment guilty plea to one count of wire fraud and a
stipulated statement of facts to which Ms. Sadr would need to
agree in order to accept the plea. Through October and
November of 2010, Mr. Brehm and Ms. Tusk exchanged emails and
negotiated the applicable terms of the plea agreement and the
statement of facts.
November 12, 2010, Mr. Brehm sent Ms. Tusk an email informing
her: "I met with Ms. Sadr at length on Wednesday
afternoon, and she followed up with me earlier today. The
plea agreement looks fine and she will sign it. There remain
some concerns with the latest [statement of facts] you sent,
in that Ms. Sadr wants to plead guilty but does not want to
admit certain allegations that she firmly believes are
incorrect." Gov't Opp'n Br., Ex. 6 at 2 (Dkt.
No. 94-6). Mr. Brehm attached a revised statement of facts to
the email and stated: "Please let us know if these
changes can be agreed to. If not, then I anticipate that at
the arraignment on the indictment, I will indicate to the
court that Ms. Sadr wants to settle the case and plead guilty
and not go to trial, but that we are unable to agree on the
SOF language..." Id. Ms. Tusk replied the next
day informing Mr. Brehm that the changes were not acceptable.
After this email exchange, the plea negotiations broke down
and the government proceeded to an indictment, which was
returned against Ms. Sadr on November 23, 2010. At her
arraignment on December 3, 2010, she pleaded not guilty to
all charges and demanded a jury trial. The Court set her bond
at $500, 000.
January 6, 2011, Ms. Sadr again appeared before the Court,
this time to change her plea from "not guilty" to
"guilty." At the beginning of the hearing, the
Court informed Ms. Sadr of her constitutional rights and
asked whether she was satisfied with her counsel. Tr. of Plea
Hrg., 3-8, Jan. 1, 2011 (Dkt. No. 14). Ms. Sadr indicated
that she was. Id. The Court then proceeded to
discuss each of the eight counts against Ms. Sadr. For each
count, the Court confirmed that she went over the evidence
against her with Mr. Brehm. Ms. Sadr responded that she had
done so and that she understood the charges against her and
the evidence supporting those charges. Id at 14-18.
Court also explained how the Sentencing Guidelines work. It
noted that "there may be disagreement among the parties
as to what the proper Guideline range is, and that [the
Court] will ultimately determine [your sentence] on the day
of sentencing." Id. at 8. Importantly, the
Court asked: "Have you gone over those Sentencing
Guidelines with Mr. Mr. Brehm, " to which Defendant
replied: "Yes, your honor." Id. The Court
also noted that part of sentencing included "look[ing]
at the various factors under Section 3553 of our code"
and asked if Ms. Sadr had "gone over those different
factors." Id. Ms. Sadr responded: "Yes,
Your Honor." After this initial colloquy, she pleaded
guilty to all counts against her. Id. at 14.
this initial plea, however, the Court expressed some concerns
that Ms. Sadr might not fully understand "what the
Government believes you did and why it's unlawful."
Id at 17. The concern came from a dispute in the
statement of facts that accompanied the plea. In advance of
the hearing, Ms. Sadr had submitted a statement of facts that
she agreed to as part of her guilty plea. The government
believed this statement was insufficient to support a guilty
plea and therefore proffered additional evidence that it
intended to prove if the case was to proceed to trial. This
evidence included the names of victims, dates of money
transfers, and evidence of victims who would be called to
testify against Ms. Sadr.
light of the different versions of the statement of facts,
the Court engaged in a detailed discussion of the facts as
presented by both sides. At first, when Ms. Sadr returned to
the podium, she disputed some of the facts as presented by
the government. She agreed with all of the dates and names of
the victims but indicated that she had not intended to
defraud the victims in the earlier part of the scheme. The
Court explored this further:
THE DEFENDANT: Your Honor, the reason why the guilty plea is
because throughout this, after a few years in '07 as I
talked to people, I needed to be more clear. And I had
information they didn't have. And in '05 and '061
could have represented more clearly to not- It ...