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Persky v. United States

United States District Court, D. Idaho

September 1, 2016

MICHAEL ROBERT PERSKY, Petitioner (Defendant),
UNITED STATES OF AMERICA, Respondent (Plaintiff).



         Pending before the Court in the above entitled matter is Petitioner Michael Robert Persky's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Dkt. 1 in civil case, Dkt. 189 in criminal case). The Government filed its answer to the motion on April 14, 2014 (Dkt. 22). Without leave of the Court, Persky filed a supplemental memorandums (Dkt. 9, 12, 16, 28, 30). The Court stayed the case pending a decision by the United States Supreme Court in 2016 relating to recalling a jury after the jury is discharged. The Court allowed supplemental briefing after the Supreme Court's ruling in Dietz v. Bouldin, __ U.S. __, 136 S.Ct. 1885 (2016). The motion is now ripe for the Court's consideration and the Court finds Persky's § 2255 motion should be denied.


         A jury convicted Persky of eighteen counts of mail and wire fraud on October 19, 2012. Dkt. 101.After the verdict was accepted by the Court, it was discovered that the jury did not have all pages of one exhibit when they deliberated. Within 35 minutes of the verdict being received by the Court and the jurors excused, counsel for the government discovered the exhibit issue. The Court immediately directed the jury commissioner to call all jurors and advise them that an issue had come up and further deliberations maybe be required. See Minutes, Dkt. 95. The jurors were instructed not to discuss the case with anyone, to heed the admonitions of the Court previously given and to report back to the courthouse the next time the Court was in Coeur d'Alene, Idaho the first week of November. Id.[1]

         Counsel for Persky moved for a mistrial. The Court requested briefing. Defendant's brief was filed on October 29, 2012 and the Government's response was filed on November 1, 2012. Dkts. 103 and 105. The Court issued its ruling denying the motion for a mistrial on November 2, 2012. Dkt. 106. Due to the unavailability of some of the jurors in early November, the Court continued the matter to December 3, 2012, the next time the Court was in Coeur d'Alene. Dkt. 106.

         On December 3, 2012, the jurors returned to the courthouse and the Court confirmed no juror had discussed the case since they were excused on October 13, 2012 and there were no reasons which prevented any juror from continuing to sit as a qualified juror in this matter. Transcript, Dkt. 164. The Court instructed the jury on the situation, read one additional jury instruction and allowed argument by counsel. Id. The jury deliberated and after an hour and 25 minutes, returned a new verdict finding Persky guilty on the same 18 counts (Counts 1-12 and 13-20). Id., Minutes, Dkt. 115[2], and Second Verdict, Dkt. 116.

         On February 4, 2013, Persky was sentenced to 24 imprisonment on each count to run concurrently and three years of supervised release on each count to run concurrently, $100 special assessment on each count as well as a $1, 000 fine on each count plus restitution in the amount of $92, 636.61. Judgment, Dkt. 139, Amended Judgment dated March 7, 2013, Dkt. 153. A Final Order of Forfeiture was entered by the Court. Dkt. 172.

         Petitioner did not file a direct appeal. Petitioner timely filed his § 2255 motion on December 30, 2013. In his motion, he claims ineffective assistance of counsel because his counsel failed to file a direct appeal, failed to move the Court to sever his trial from the trial of his co-defendant, failed to renew his motion for a mistrial. Persky claims his rights under the Double Jeopardy clause were violated when the jury deliberated a second time.


         Pursuant to 28 U.S.C. § 2255, the Court recognizes that a response from the government and a hearing are required “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief....” Furthermore, a hearing must be granted unless the movant's allegations, “when viewed against the record, either fail to state a claim for relief or are ‘so palpably incredible or patently frivolous as to warrant summary dismissal.” United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.); Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985). However, a district court may summarily dismiss a Section 2255 motion “[i]f it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief....” Rule 4(b), Rules Governing Section 2255 Proceedings in the United States District Court. Thus in order to withstand summary dismissal of his motion for relief under Section 2255, defendant “must make specific factual allegations which, if true, would entitle him to relief on his claim.” United States v. Keller, 902 F.2d 1391, 1395 (9th Cir. 1990). In the present case, the legal issues do not require an evidentiary hearing.


         1. Ineffective Assistance of Counsel Claims.

         A Petitioner claiming ineffective assistance of counsel must allege specific facts which, if proved, would demonstrate that (1) counsel's actions were “outside the wide range of professionally competent assistance, ” and (2) “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687-690 (1984). Mere conclusory allegations do not prove that counsel was ineffective. See Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989). A defendant fails to state a claim for ineffective assistance if he fails to allege facts sufficient to meet either the “performance” or “prejudice” standard, and the district court may summarily dismiss his claim.

         The Court has reviewed the Petitioner's motion, and the entire record herein, and concludes that even assuming the Petitioner has alleged facts sufficient to state a claim of ineffective assistance of counsel, the Petitioner has failed to allege facts sufficient to satisfy the “prejudice” prong of the two part test of ineffective assistance of counsel. Specifically, the Petitioner has failed to demonstrate there is a reasonable ...

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