Genovese v. United States

Background

Nicholas J. Genovese pleaded guilty to one count of securities fraud and was sentenced on February 11, 2020, to 140 months in prison by District Judge William H. Pauley. Genovese later filed a motion under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a sentence imposed in violation of federal law or the Constitution. He claimed that his sentencing lawyer, Alexander Eisemann, provided ineffective assistance of counsel.

To establish ineffective assistance, Genovese had to show both that counsel’s performance was seriously deficient and that the deficiency probably affected the result. The court could deny the motion without a hearing because the motion and case records showed that Genovese was not entitled to relief.

Claims and analysis

Genovese first argued that Eisemann failed to give him a copy of the presentence investigation report for review before sentencing. The court said that appeared to be true as to Eisemann, but noted that Eisemann told Judge Pauley that prior counsel had represented that Genovese had the report and had reviewed it. Genovese did not dispute that representation at sentencing or in the current motion. The court therefore rejected this claim.

Second, Genovese argued that Eisemann failed to object to four entries in the report that listed cases as open or having unknown status even though Genovese said they had been resolved through time served or dismissal. The court found that Eisemann had made numerous objections and corrections to the report and had submitted substantial briefing about Genovese’s criminal history. It concluded that Genovese had not shown deficient performance. It also found no prejudice, meaning no reasonable probability that correcting those entries would have changed the sentence. Judge Pauley did not mention the four cases, and the court found that his assessment of Genovese’s history of fraud was not dependent on them.

Third, Genovese argued that counsel failed to request or object to an “Undisclosed Victim Letter.” The court found that the letter was from counsel for Colony Hills Capital, LLC, and had been docketed nearly a year before sentencing. The presentence report quoted it, so it had been disclosed to the defense. At sentencing, Eisemann objected to treating Colony Hills Capital as a victim, and Judge Pauley struck the report’s paragraphs quoting the letter. The judge declined to strike a separate statement that Colony Hills Capital had submitted a victim-impact statement because the statement that its law firm had sent a letter was accurate.

Ruling

The court denied Genovese’s § 2255 motion in its entirety. The Government had also argued that a waiver in Genovese’s plea agreement barred his challenge, while Genovese argued that the agreement excluded ineffective-assistance claims. The court said Genovese appeared to have the better argument but did not decide whether the waiver applied because the claims failed on their merits.

The court further ruled that no certificate of appealability would issue because Genovese had not made a substantial showing that a constitutional right was denied. It certified that an appeal would not be taken in good faith and denied permission to appeal without paying filing fees. The clerk was directed to terminate the specified filing in the criminal case and close the civil case.