United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE
the Court is a Motion to Vacate Pursuant to 28 U.S.C. §
2255 (Rec. Doc. 201)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.
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).
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).
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).
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.
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)).
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).
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.
Failure to Investigate Sales ...