United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski Chief United States District Judge
Anjay Patel filed a motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255 on two
grounds. First, Patel claims the court's 2013 ruling
denying release of forfeited substitute assets to pay his
retained counsel is undone by the 2016 Supreme Court decision
in Luis v. United States, 136 S.Ct. 1083 (2016).
Second, Patel claims the government withheld discovery of an
Office of Inspector General (OIG) Report in violation of the
rule in Brady v. Maryland, 373 U.S. 83 (1963). ECF
No. 871. The government moved to dismiss Patel's §
2255 motion on the basis of timeliness, ECF No. 877, and
Patel responded, ECF No. 878. On January 18, 2018, Patel's
counsel write a letter providing more recent information
concerning his Brady claim. ECF No. 893. For the
reasons set forth in this opinion, the government's
motion to dismiss will be granted as the petition, as
pleaded, is untimely. However, as explained herein, Patel
will be granted leave to amend his second claim to raise
Brady violations, if any, beyond those he could have
asserted based on the 2013 OIG Report.
October 6, 2011, a federal grand jury named Patel and others
in an 180-count indictment charging violation of the
Contraband Cigarette Trafficking Act ("CCTA"),
various forms of money laundering, conspiracy to commit money
laundering, conspiracy to traffic in contraband cigarettes,
and trafficking in contraband cigarettes and counterfeit
state tax stamps. The indictment followed a lengthy
undercover sting operation conducted by agents from the
Bureau of Alcohol, Tobacco, and Firearms ("ATF"),
who sold untaxed cigarettes to the defendants. The notice of
forfeiture attached to the indictment identified that certain
of Patel's property was directly forfeitable under
various criminal forfeiture statutes, including 18 U.S.C.
§ 981(a)(1)(C), 18 U.S.C. § 982(a)(1), 28 U.S.C.
§ 2461, and 49 U.S.C. § 8030. The government
alleged the forfeitable assets included a $20.9 million money
judgment, several business entities, bank accounts, and real
and personal property. However, the government could not
locate directly forfeitable assets of Patel sufficient to
reach that figure, and therefore sought forfeiture of
substitute assets pursuant to 21 U.S.C. § 853(p).
October 26, 2011, the court issued several protective orders
to prevent Patel from alienating, encumbering, or wasting
forfeitable property and substitute assets. ECF Nos. 27, 221,
222, and 223. On May 11, 2012, Patel moved to modify the
pretrial protective orders, asserting that the orders
rendered him unable to fully pay his counsel of choice in
violation of the Sixth Amendment. ECF No. 334. Patel
requested modification of the protective orders to release
sufficient substitute assets to pay his legal fees, as he was
in arrears under his fee agreement with retained
counsel. In connection with this motion, Patel
urged the court to conduct a hearing pursuant to United
States v. Farmer, 274 F.3d 800 (4th Cir. 2001), which
requires a pretrial hearing when "a defendant claims
that a portion of the assets restrained pursuant to criminal
forfeiture statutes are untainted and that he has no other
funds from which to secure the counsel of his choice."
Id. at 803-04.
court held the Farmer hearing on October 16, 2012.
After reviewing the evidence presented, the court denied
Patel's motion to release his substitute assets in a
memorandum opinion dated January 11, 2013. ECF No. 481. The
court found that the government had demonstrated the
existence of probable cause sufficient for the issuance of a
protective order restraining up to $20.9 million in proceeds
from contraband cigarette trafficking. Despite the exercise
of due diligence, the government could not locate tainted
assets of Patel's to reach that figure. Thus, after
reviewing both civil and criminal forfeiture statutes, the
court concluded that the government could seek forfeiture of
Patel's substitute assets up to $20.9 million, pursuant
to 21 U.S.C. § 853(p). The court concluded that Patel
had paid counsel more than sufficient funds to defend his
case, and that given the amount of paid fees, "there
[was] no credible argument that Patel's Sixth Amendment
rights [were] in danger of being infringed." United
States v. Patel, 949 F.Supp.2d 642, 663 (W.D. Va. 2013).
January 17, 2013, Patel filed a notice of interlocutory
appeal in the United States Court of Appeals for the Fourth
Circuit, appealing the court's decision denying
modification of the pretrial protective orders. ECF No. 483.
February 15, 2013, Patel and the government entered into a
written plea agreement, in which Patel agreed to plead guilty
to six counts: Count One charging him with conspiring to
distribute contraband cigarettes, in violation of 18 U.S.C.
§ 371; Count Two charging him with conspiring to commit
money laundering, in violation of 18 U.S.C. § 1956(h);
Count 56 charging him with trafficking in contraband
cigarettes, in violation of 18 U.S.C. § 2342(a); Count
133 charging him with money laundering to promote
distribution of contraband cigarettes, in violation of 18
U.S.C. § 1956(a)(1)(A)(i); Count 156 charging him with
money laundering related to the proceeds from die sale of
contraband cigarettes, in violation of 18 U.S.C. §
1956(a)(3)(A)-(B);and Count 169 charging him with engaging in
a monetary transaction in criminally derived funds greater
than $10, 000, in violation of 18 U.S.C. § 1957. Plea
Agree., ECF No. 492; see Judgment at 2-3, ECF No. 654.
pleading guilty, Patel moved to withdraw his January 17, 2013
interlocutory appeal to the Fourth Circuit. On March 8, 2013,
the Fourth Circuit dismissed Patel's appeal pursuant to
Local Rule 42(b) of the Federal Rules of Appellate Procedure.
United States v. Patel, No. 13-4045 (4th Cir. Mar.
8, 2013), op. at 1, ECF No. 502; see Fed. R. App. P. 42(b).
August 29, 2013, a criminal judgment was entered sentencing
Patel to 84 months of imprisonment followed by two years of
supervised release. Judgment at 3-4, ECF No. 654. Patel did
not file a direct appeal, and his judgment became final on
September 28, 2013.
March 30, 2017, Patel filed the present § 2255 motion
seeking vacatur of his guilty plea and release of his
substitute assets claiming retroactive application of
Luis and recent discovery of the claimed
Brady violation. In his first claim, Patel alleges
the district court violated his Sixth Amendment right to
counsel of choice by preserving the pretrial protective
orders restraining Patel's substitute assets.
second claim, Patel asserts that the government violated
Patel's constitutional due process rights under Brady
v. Maryland, 373 U.S. 83 (1963), when it failed to
disclose that the Office of the Inspector General
("OIG") in the U.S. Department of Justice was
engaged in an ongoing audit of the ATF's procedures and
conduct during the investigation underlying Patel's
charged criminal activity. Patel asserts that he requested
discovery on ATF investigatory improprieties by letter July
31, 2012, ECF No. 871, Ex. C, but apart from an emailed
request for further specificity, no discovery related to the
OIG audit and report was produced. Patel claims that he would
not have entered a guilty plea had proper discovery been
provided apprising him of the myriad ATF improprieties
revealed in the OIG Report. The audit and investigatory field
work, which predates Patel's guilty plea, led to the OIG
publishing a report in September 2013 (the "OIG
Report"), a month after Patel was sentenced. OIG Report,
ECF No. 871, Ex. B. The OIG Report identified certain ATF
misconduct, concluding that the ATF had failed to authorize
several contraband cigarette investigations and comply with
accounting procedures for seized assets. The September 16,
2013 ATF response to the OIG Report states that "[a]s
early as March 2011, ATF recognized issues with the manner in
which income-generating undercover operations were being
conducted." ECF No. 871, Ex. B, Audit of the Bureau of
Alcohol, Tobacco, Firearms and Explosives' Use of
Income-Generating, Undercover Operations, App. II, at 54.
Appendix 1 to the ATF's September 16, 2013 response to
the OIG Report is entitied "Timeline of Churning
Remedial Measures," and this chronology of agency
activity makes clear that the ATF was aware of problems with
its undercover tobacco operations and was taking steps to
correct them in 2011 and 2012, when Patel's discovery
requests were pending. Patel's discovery letter of July
31, 2012 sought specific information regarding inappropriate
conduct by ATF agents in conducting these operations. ECF No.
871, Ex. C. Indeed, Patel claims that Operation Alpha
highlighted in the OIG Report is the investigation refers to
his case. Patel's petition alleges that that the OIG
report was the subject of a September 25, 2013 Washington
Post article. Sari Horwitz, ATF lost track of 2.1 million
cartons of cigarettes in sting operations, report finds,
WASH. POST, Sept. 25, 2013. ECF No. 871, at 3 n.2.
the filing of the present § 2255 motion, Patel's
counsel sent a letter to the court on January 18, 2018,
raising "recent developments and admissions from the
Bureau of Alcohol, Tobacco and Firearms." ECF No. 893.
In the letter, Patel's counsel asserts he has discovered
new information regarding his Brady claim. Patel
cites to articles published by the New York Times in 2017,
which he claims reveal improprieties beyond those contained
in the OIG Report. Patel's counsel's letter focuses,
as do the New York Times articles, on an ATF "management
account" used to fund undercover operations associated
with Big South, a tobacco warehouse in Bristol, Virginia.
Counsel's letter refers to the ATF's use of this bank
account and alleged dealings between Patel's
co-conspirators and Big South, noting that the Bristol
warehouse was expressly mentioned in Patel's indictment.
Indictment, ECF No. 3, ¶¶ 36, 70. On February 16,
2018, the government responded to the letter, contending that
it sets forth improper and untimely arguments. ECF No. 894.
state a viable claim for relief under § 2255, a
petitioner must prove: (1) that his sentence was
"imposed in violation of the Constitution or laws of the
United States;" (2) that "the court was without
jurisdiction to impose such a sentence;" or (3) 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). Patel bears the burden of proving
grounds for a collateral attack by a preponderance of the
evidence. Jacobs v. United States, 350 F.2d 571, 574
(4th Cir. 1965).
threshold issue for the court is whether Patel's §
2255 petition is timely. Under 28 U.S.C. § 2255(f)(1), a
petitioner has one year from the date that his judgment of
conviction becomes final to attack the corresponding
sentence. Patel's criminal judgment, entered on August
29, 2013, became final on September 28, 2013. See Clay v.
United States, 537 U.S. 522, 524-25 (2003) (stating a
conviction becomes final once the availability of direct
review is exhausted). Patel concedes that his § 2255
petition was not filed within one year of his conviction
becoming final. Because Patel's judgment of conviction
was final for more than three years before he filed this
§ 2255 petition, he must satisfy one of §
2255(f)'s other conditions for renewing the limitations
first claim, asserting violation of his Sixth Amendment right
to counsel of choice, Patel relies on § 2255(f)(3),
which allows the limitations period to begin on "the
date on which the right asserted was initially recognized by
the Supreme Court, if that right has been newly recognized by
the Supreme Court and made retroactively applicable to cases
on collateral review." 28 U.S.C. § 2255(f)(3). The
§ 2255(f)(3) limitation period runs from the date on
which the Supreme Court recognizes the new right, not the
date on which the new right was "made
retroactive[.]" Dodd v. United States, 545 U.S.
353, 357-60 (2005). "A petitioner who collaterally
attacks his conviction must establish that the change applies
retroactively." Miller v. United States, 735
F.3d 141, 145 (4th Cir. 2013).
argues his claim was filed within one year of the Supreme
Court's decision in Luis, which held that
"the pretrial restraint of legitimate, untainted assets
needed to retain counsel of choice violates the Sixth
Amendment." 136 S.Ct. at 1088-1092. Specifically, Patel
argues that the decision in Luis constitutes a new
right that was initially recognized by the ...