Ajemian v. United States

171 F. Supp. 3d 206, 2016 WL 1319103
CourtDistrict Court, S.D. New York
DecidedMarch 18, 2016
Docket11-CR-1091 (VM); 15-CV-9351 (VM)
StatusPublished
Cited by6 cases

This text of 171 F. Supp. 3d 206 (Ajemian v. United States) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ajemian v. United States, 171 F. Supp. 3d 206, 2016 WL 1319103 (S.D.N.Y. 2016).

Opinion

DECISION AND ORDER

VICTOR MARRERO, United States District Judge.

Petitioner Peter Ajemian (“Ajemian”) filed this pro se motion pursuant to 28 U.S.C. Section 2255 (“Section 2255”) to vacate, set aside, or otherwise correct his conviction and sentence. (“Section 2255 Motion,” Dkt. No. 830.) Ajemian is currently serving a sentence of ninety-six (96) months of imprisonment to be followed by three (3) years of supervised release after he pled guilty to two counts in connection with his participation in a longstanding and widespread scheme among Long Island Railroad (“LIRR”) workers to obtain disability benefits from the United States Railroad Retirement Board (“RRB”) through fraud. (See Dkt. Minute Entries for Jan. 18, 2013 and May 24, 2013; Dkt. No. 401.) In addition, Ajemian was ordered to pay $116,500,000 in restitution and forfeiture. (Dkt.Nos.398, 401.)

For the reasons discussed below, Ajemi-an’s Section 2255 Motion is DENIED in part. A hearing is ordered as to Ajemian’s sentence to answer substantial questions raised in Ajemian’s Section 2255 Motion regarding the amount of loss suffered by the LIRR as a result of his fraudulent actions and in light of the alleged newly discovered evidence.

I. BACKGROUND1

Ajemian, a board certified orthopedic surgeon, participated in a longstanding scheme in which LIRR employees conspired to fraudulently obtain federal disability benefits from the RRB.

By Indictment, the Government charged Ajemian with the following criminal offenses: (a) conspiracy to commit mail fraud, wire fraud, and health care fraud, in violation of 18 U.S.C. Section 1349 (“Count One”); (b) conspiracy to defraud the RRB, in violation of 18 U.S.C. Section 371 (“Count Two”); (c) making false claims in violation of 18 U.S.C. Section 287 and 2 (“Count Three”); and (d) health care fraud in violation of 18 U.S.C. Section 1347 and 2 (“Count Four”). Counts 5, 6, 7, 8, 10, 11, 12, 13, 15, 16, 17, and 18 charged Ajemian with mail fraud in violation of 18 U.S.C. Sections 1341 and 2. Count 19 charged Ajemian with wire fraud in violation of 18 U.S.C. Sections 1343 and 2.2

[210]*210On January 18, 2013, Ajemian pled guilty to Counts 1 and 4 of the Indictment pursuant to a plea agreement with the Government (“Plea Agreement”). (See Dkt. Minute Entry for Jan. 18, 2013.) As part of the Plea Agreement, the parties agreed that the Guidelines range applicable to Ajemian’s conduct was 121 to 151 months imprisonment. Ajemian also expressly agreed to “not file a direct appeal; bring a collateral challenge, including but not limited to an application under Title 28, United States Code, Section 2255 and/or Section 2241 ... of any sentence within or below the Stipulated Guidelines Range of 121-151 months’ imprisonment.” (Dkt. No. 842, Ex. A at 5.) Ajemian specifically acknowledged that he “accepted the [Plea Agreement] and decided to plead guilty because he is in fact guilty.” (Id) The Court conducted a thorough hearing in advance of accepting Ajemian’s guilty plea. (See Dkt. No. 396.)

The Court sentenced Ajemian on May 24, 2013 to concurrent terms of ninety-six (96) months imprisonment on Count 1 (conspiracy) and Count 4 (health care fraud) followed by three (3) years of supervised release. (See Dkt. Minute Entry for May 24, 2013; Dkt. Nos. 398, 401.) In addition, the Court imposed restitution and forfeiture in the amount of $116,500,000 and a $200 special assessment. (Id.) The Government thereafter moved to dismiss the remaining fifteen (15) open counts against Ajemian. Ajemian is currently serving his sentence at FCI Otisville Satellite Camp.

On November 25, 2015, Ajemian filed the instant Section 2255 Motion to vacate, set aside, or otherwise correct his conviction and sentence on the following grounds: (1) actual innocence; (2) ineffective assistance of counsel; (3) evidence that the government executed his Plea Agreement in bad faith; (4) that he was coerced into pleading guilty; and (5) that based on newly discovered evidence, his sentence was incorrectly calculated. (Dkt. No. 830.)

The Government filed an Opposition to Ajemian’s Section 2255 Motion arguing that with the exception of Ajemian’s claims based on newly discovered evidence, his Section 2255 Motion is time barred because Ajemian’s sentence became final on June 11, 2013, and therefore, Ajemian was required to file the instant Section 2255 Motion by June 11, 2014. (“Gov’t Opp.,” Dkt. No. 842.) Ajemian filed his Section 2255 Motion on November 25, 2015, almost a year and a half later. In addition, the Government contends that even if the majority of Ajemian’s claims were not time-barred, they should be denied as waived by his Plea Agreement with the Government. (Id.) Ajemian subsequently filed his Reply. (“Ajemian’s Reply,” Dkt. No. 847.)

II. DISCUSSION

At the outset, the Court notes that Ajemian is a pro se litigant. As such, his submission must be held to “less stringent standards than formal pleadings drafted by lawyers.” Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir.1993) (internal citation omitted). The Court must construe Ajemian’s submissions “liberally and interpret them to raise the strongest arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (internal quotation marks and citation omitted). A pro se litigant, however, is not exempt “from compliance with relevant rules of procedural and substantive law.” Boddie v. N.Y. State Div. of Parole, 285 F.Supp.2d 421, 426 (S.D.N.Y.2003) (quoting Traguth v. Zuck, 710 F.2d 90, 96 (2d Cir.1983)).

A person in federal custody may move to vacate, set aside, or correct his sentence if it was imposed in violation of “the Constitution or laws of the United States,” “the [211]*211court was without jurisdiction to impose such sentence,” or “the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. Section 2255(a).

“[N]ew evidence in a Section 2255 proceeding ... is evidence that is discovered after the original hearing, and which could not, with due diligence of counsel, have been discovered sooner.” Giacalone v. United States, 739 F.2d 40

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171 F. Supp. 3d 206, 2016 WL 1319103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ajemian-v-united-states-nysd-2016.