UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) UNITED STATES OF AMERICA, ) ) ) v. ) Criminal No. 09-54 (EGS) ) ANTHONY J. FARERI, ) ) Defendant. ) )

MEMORANDUM OPINION

Pending before the Court is Anthony Fareri’s motion for a

certificate of appealability. For the reasons explained below, a

certificate of appealability is not required in view of the

claim the Mr. Fareri wants to appeal. However, given the unusual

posture of the case, and upon consideration of the motion, the

government’s response, the relevant caselaw, the entire history

in this case, and for the reasons explained below, the Court

will grant the motion and issue a certificate of appealability.

I. Background

In September 2010, Mr. Fareri pleaded guilty to mail fraud

in violation of

. In October 2011, he was

sentenced to 105 months incarceration followed by three years

supervised release and was ordered to pay restitution to his

victims. Thereafter, Mr. Fareri filed a direct appeal. On direct appeal, Mr. Fareri argued that his counsel

provided ineffective assistance in three ways: (1) his counsel

told Mr. Fareri that the Plea Agreement would allow him to

challenge (at the sentencing hearing) the amount of loss

underlying his Sentencing Guidelines calculation in order to

lower his Guidelines level and range; (2) his counsel failed to

obtain and present evidence at his sentencing of additional

payments made to victims that were not credited to him in the

Presentence Investigation (“PSI”) Report or by the District

Court (also argued in the Section 2255 motion); and (3) his

counsel failed to adequately investigate the amount of loss

resulting from Mr. Fareri’s crime (also argued in the Section

2255 motion). Br. for Appellant, USCA Case No. 11-3098, Doc.

No. 139915 at 32-40. In its response to that appeal, the Court

of Appeals for the District of Columbia Circuit (“D.C.

Circuit”): (1) upheld this Court’s application of the vulnerable

victim enhancement pursuant to Section 3A1.1 of the U.S. SENTENCING

GUIDELINES MANUAL; (2) remanded Mr. Fareri’s claim that he received

ineffective assistance of trial counsel to the District Court to

consider in the first instance; and (3) remanded for the

District Court to correct the specific amounts owed in

restitution to each of Mr. Fareri’s victims so that they add up

to a total the Court’s oral sentence. United States v. Fareri,

712 F.3d at 593, 596 (D.C. Cir. 2013).

2 Following the remand, the Court ordered Mr. Fareri to set

forth all of his claims for relief regardless of whether they

were contemplated in the remand. See Docket for Civil Action No.

09-54, Minute Order, Nov. 22, 2013. Thereafter, Mr. Fareri filed

a Motion to Vacate, Set Aside, or Correct Sentence Under

. See § 2255 Motion, ECF No. 92. In that motion,

Mr. Fareri asserted that his counsel provided ineffective

assistance in two additional ways: (4) his counsel informed Mr.

Fareri that any restitution credit would offset the amount of

loss; and (5) his counsel “was either unaware of Mr. Harary’s

continuing criminal conduct or despite knowledge of it proceeded

to convince Mr. Fareri to plead nonetheless.” Id. at 5-6. Mr.

Fareri also asserted that the government committed a Brady

violation. Id. at 6.

Following a multi-day evidentiary hearing on his

ineffective assistance of counsel claim, this Court issued a

Memorandum Opinion addressing all of Mr. Fareri’s claims as set

forth in the remand and his Section 2255 motion. The Court

denied his Section 2255 motion and adjusted the allocation of

restitution among the victims pursuant to the remand from the

D.C. Circuit. See generally Mem. Op., ECF No. 162. Mr. Fareri

then sought reconsideration of the Court’s Memorandum Opinion,

which the Court granted in part and denied in part. See

generally Mem. Op., ECF No. 203. Thereafter, Mr. Fareri filed a

3 notice of appeal, see ECF No. 205, and the D.C. Circuit referred

to this Court the determination of whether a certificate of

appealability is warranted, see ECF No. 207.

II. Legal Standard for Issuance of a Certificate of Appealability

A certificate of appealability must be issued for an

appellate court to hear an appeal from a “final order in a

proceeding under section 2255.”

(c)(1)(B). The

federal district court judge who rendered the judgment for which

appellate review is sought must either issue the certificate of

appealability or explain why it should not be issued. Fed. R.

App. P. 22(b)(1). A certificate of appealability may issue “only

if the petitioner has made a substantial showing of the denial

of a constitutional right."

(c)(2). To make this

showing, the petitioner “need not show that he should prevail on

the merits.... Rather, he must demonstrate that the issues are

debatable among jurists of reason; that a court could resolve

the issues [in a different manner]; or that the questions are

adequate to deserve encouragement to proceed further.” United

States v. Mitchell,

(D.C. Cir. 2000)

(quoting Barefoot v. Estelle,

(1983)).

If the court issues the certificate of appealability, it

must specify which issues satisfy the substantial showing

requirement. United States v. Mitchell,

, 1130

4 (D.C. Cir. 2000). If a district court judge denies a request for

a certificate of appealability, a petitioner may request one

from the circuit court judge. Fed. R. App. P. 22(b)(1).

III. Analysis

A. A Certificate of Appealability is not required.

As a preliminary matter, Mr. Fareri and the government

agree that a certificate of appealability is not required

because Mr. Fareri seeks to appeal an issue arising from his

direct appeal rather than an issue raised in his Section 2255

motion. See Def.’s Mot. for Certificate of Appealability

(“Def.’s Mot.”), ECF No. 214 at 1; Gov’t’s Resp. to Def.’s Mot.

for a Certificate of Appealability (“Gov’t’s Resp.”), ECF No.

220 at 2. Mr. Fareri seeks appellate review of whether he

received ineffective assistance of counsel regarding the consent

order of forfeiture he entered into as part of his plea

agreement with the government, Def.’s Mot.”, ECF No. 214 at 1,

and he claims that he raised this issue in his direct appeal,

id. at 3.

The Court agrees with Mr. Fareri and the government that

Mr. Fareri raised the issue for which he now seeks appellate

review in his direct appeal. In his appeal, Mr. Fareri alleged

that his counsel provided ineffective assistance because he

failed to adequately investigate the loss amount, noting in a

footnote that the loss amount impacted his forfeiture amount.

5 See Br. of Appellant at 36 n.14, Reply Br. of Appellant at 22

n.13. However, Mr. Fareri requests that the Court issue a

certificate of appealability “out of an abundance of caution” in

case the D.C. Circuit determines that one is required, Def.’s

Mot., ECF No. 214 at 3, and the government does not object,

Gov’t’s Resp., ECF No. 220 at 2. Given the unusual posture of

this case – a remand and a Section 2255 motion – and in an

abundance of caution, the Court will consider the motion for a

certificate of appealability.

B. It is debatable and reasonable jurists could disagree about whether Mr. Fareri was provided ineffective assistance of counsel.

Mr. Fareri moves for a certificate of appealability for his

claim that he “received ineffective assistance of counsel with

respect to the consent order of forfeiture entered as part of

his plea agreement with the government,” Def.’s Mot. for

Certificate of Appealability, ECF No. 214 at 1, and the

government does not oppose the issuance of the Certificate of

Appealability, Gov’t’s Resp., ECF No. 220 at 2.

The Sixth Amendment to the United States Constitution

guarantees “the right to the effective assistance of counsel.”

Strickland v. Washington,

(1984) (internal

quotation marks omitted). To demonstrate that he received

ineffective assistance of counsel, Mr. Fareri must show that:

(1) “counsel’s performance was deficient,” and (2) “the

6 deficient performance prejudiced the defense.” Strickland,

. “‘Failure to make the required showing of either

deficient performance or sufficient prejudice defeats the

ineffectiveness claim.’” United States v. Rivera-Niebla,

(D.D.C. 2014) (quoting Strickland,

). “‘Surmounting Strickland’s high bar is never an easy

task.’” United States v. Brinson-Scott,

(D.C.

Cir. 2013) (quoting Padilla v. Kentucky,

(2010)).

“The Court’s review of counsel’s performance is ‘highly

deferential.’” Aljaff, 987 F. Supp. 2d at 67 (quoting

Strickland,

). “To prove deficient performance,

[a petitioner] must ‘identify the acts or omissions of counsel

that are alleged not to have been the result of reasonable

professional judgment.’”

(quoting Strickland,

). “In determining whether counsel’s representation fell

below an objective standard of reasonableness, ‘every effort

[must] be made to eliminate the distorting effects of

hindsight[.]’ ‘[A] court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance . . . [since] [e]ven the best criminal

defense attorneys would not defend a particular client in the

same way.’” United States v. King,

(D.D.C. 2013) (quoting Strickland,

).

7 To show prejudice, the Court must find a “reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland,

(defining “reasonable probability” as “a

probability sufficient to undermine confidence in the outcome”).

The defendant must affirmatively prove prejudice.

.

Mr. Fareri argues that his former counsel was ineffective

because he “fail[ed] to investigate and/or understand the law as

it pertains to criminal forfeiture” and as a result, Mr. Fareri

was prejudiced because there are “two monetary judgments against

him for the very same conduct based on the very same legal

theory of recovery.” Def.’s Mot., ECF No. 214 at 5. Mr. Fareri

contends that he should be permitted to appeal this Court’s

denial of his ineffective assistance of counsel claim regarding

forfeiture so that the forfeiture order can be vacated or

corrected. Id. at 5.

While the Court stands by its analysis that Mr. Fareri did

not satisfy his burden of showing that his former counsel was

deficient and that the deficient performance prejudiced him, it

concludes that reasonable jurists could disagree. Regarding

whether counsel was deficient with respect to the consent order

of forfeiture Mr. Fareri entered into as part of his plea

agreement with the government, Mr. Fareri’s former counsel could

have “asked the government to withdraw its forfeiture allegation

8 or requested that any payments made toward one order offset the

other to avoid double collection by the government.” Def.’s

Mot., ECF No. 214 at 12. Furthermore, reasonable jurists could

disagree over whether the failure to make either request

prejudiced Mr. Fareri. Accordingly, Mr. Fareri has “made a

substantial showing of the denial of a constitutional right” on

this claim.

(c)(2).

IV. Conclusion Accordingly, Mr. Fareri’s motion for a certificate of

appealability is GRANTED. An appropriate order accompanies this

memorandum opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge August 8, 2019

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