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United States v. Biyiklioglu

United States District Court, E.D. Louisiana

November 14, 2019

UNITED STATES OF AMERICA
v.
GIRAY BIYIKLIOGLU

         SECTION: "A" (5)

          ORDER AND REASONS

          JAY C. ZAINEY UNITED STATES DISTRICT JUDGE

         Before the Court is a Motion to Vacate Pursuant to 28 U.S.C. § 2255 (Rec. Doc. 201)[1]filed by the Defendant Giray Biyiklioglu. The United States of America (“the Government”) opposes the motion (Rec. Doc. 211). Having considered the pro se motion, the opposition, the record, and the applicable law, the Court finds that the Defendant's Motion to Vacate Pursuant to 28 U.S.C. § 2255 (Rec. Doc. 201) is DENIED for the reasons set forth below.

         I. Background

         On August 19, 2014, the Court sentenced Biyiklioglu to a total term of 192 months after a jury found him guilty of thirteen counts of wire fraud, six counts of aggravated identity theft, two counts of tax evasion, and nineteen counts of money laundering. (Rec. Doc. 139). This conviction stems “from a scheme in which Biyiklioglu transferred money online among his bank accounts and numerous fraudulent PayPal accounts and then disputed certain transactions so as to cause double payments to his bank accounts and corresponding losses to PayPal.” United States v. Biyiklioglu, 652 Fed.Appx. 274, 278 (5th Cir. 2016).

         Biyiklioglu then filed a Notice of Appeal on August 22, 2014, and the Fifth Circuit subsequently reversed Biyiklioglu's conviction with respect to counts 1, 3, 6, 7, 11, 14, 21, and 22 of the indictment but affirmed his conviction as to counts 2, 4, 5, 8-10, 12, 13, 15, 17-20, and 23-41. (Rec. Doc. 175, p. 25, Fifth Circuit's Judgment). The case was then remanded to this Court where he was re-sentenced to the same sentence of 192 months, (Rec. Doc. 190, p. 2, Amended Judgment), which the Fifth Circuit subsequently affirmed. United States v. Biyiklioglu, 716 Fed.Appx. 270, 274 (5th Cir. 2017). Biyiklioglu now brings the instant pro se motion to vacate the sentence alleging ineffective assistance of counsel. (Rec. Doc. 201, Biyiklioglu's Motion to Vacate).

         II. Legal Standard

         28 U.S.C. § 2255 “provides the federal prisoner with a post-conviction remedy to test the legality of his detention by filing a motion to vacate judgment and sentence in his trial court.” United States v. Grammas, 376 F.3d 433, 436 (5th Cir. 2004) (quoting Kuhn v. United States, 432 F.2d 82, 83 (5th Cir. 1970)). The statute states that a prisoner in custody under a sentence of a federal court “may move the court which imposed the sentence to vacate, set aside or correct the sentence.” Id. (quoting 28 U.S.C. § 2255). Where there has been a “denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” Id. However, “[r]elief under 28 U.S.C. § 2255 is [only] reserved for violations of constitutional rights and for a narrow range of injuries in federal criminal cases that could not have been raised on direct appeal and would result in a fundamental miscarriage of justice.” United States v. Petrus, 44 F.3d 1004, 1012 (5th Cir. 1994).

         Further, a district court may deny a § 2255 motion without conducting any type of evidentiary hearing if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” United States v. Arguellas, 78 Fed.Appx. 984, 986 (5th Cir. 2003) (quoting 28 U.S.C. § 2255; United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992)). Conversely, if the record does not conclusively negate a prisoner's entitlement to relief, contested issues of fact may not be decided on affidavits alone. Id. (citing Owens v. United States, 551 F.2d 1053, 1054 (5th Cir. 1977)). Lastly, no hearing is necessary when the issues raised by the prisoner were previously decided on direct appeal, contain no constitutional violations, or lack any support in the record. United States v. McCollom, 664 F.2d 56, 59 (5th Cir. 1981) (citing Buckelew v. United States, 575 F.2d 515 (5th Cir. 1978)).

         III. Discussion

         In his motion, Biyiklioglu argues that his sentence should be vacated because of the ineffective assistance of counsel he received at his trial. (Rec. Doc. 199, p. 1, Biyiklioglu's Memorandum in Support). In order to prevail on an ineffective assistance of counsel claim, the petitioner must satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668 (1984). First, the petitioner must establish that his counsel's performance fell below an objective standard of reasonableness, which is defined as “research[ing] relevant facts and law, or mak[ing] an informed decision that certain avenues will not be fruitful.” United States v. Grammas, 376 F.3d 433, 436 (5th Cir. 2004) (quoting United States v. Conley, 349 F.3d 837, 841 (5th Cir. 2003)).

         Second, the petitioner must then show that he was prejudiced by his counsel's substandard performance. Grammas, 376 F.3d at 436. “To prove prejudice, the defendant must show that there [was] a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. (quoting Conley, 349 F.3d at 841-42). The Fifth Circuit “consider[s] such factors as the defendant's actual sentence, the potential minimum and maximum sentences that could have been received, the placement of the actual sentence within the range of potential sentences, and any relevant mitigating or aggravating circumstances.” United States v. Seglar, 37 F.3d 1131, 1136 (5th Cir. 1994). Lastly, if a defendant makes an insufficient showing on either of the two Strickland prongs, the Court need not address the other. Powell v. Owens, 43 F.3d 670 (5th Cir. 1994) (citing Strickland, 466 U.S. at 697).

         Here, Biyiklioglu argues that his counsel's assistance was ineffective because his counsel failed to: (1) conduct an investigation that would have revealed exculpatory invoices and emails; (2) depict the invisible and inaccessible nature of certain incriminating files on Biyiklioglu's laptop computer; (3) present particular PayPal phone recordings in their entirety, instead of just short snippets; and (4) object to his ex-wife's testimony about their marital communications. (Rec. Doc. 201, p. 4-8). The Court will now address each of Biyiklioglu's four contentions in order.

         A. Failure to Investigate Sales ...


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