Stasiv v. United States

Background

Marko Stasiv moved under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a conviction or sentence, to vacate, set aside, or correct his conviction and sentence. He proceeded without a lawyer in this matter. Following a jury trial at which he represented himself, he was convicted of conspiracy to commit bank fraud and wire fraud, wire fraud, and aggravated identity theft. The court imposed 60 months’ imprisonment on the conspiracy and wire-fraud counts and 24 consecutive months on the aggravated-identity-theft count. The Court of Appeals for the Second Circuit affirmed the judgment.

Before trial, the court questioned Stasiv about his decision to represent himself. The court found that he was competent, understood the charges and possible punishments, understood the consequences of giving up his right to a lawyer, and knowingly and voluntarily waived that right. The court also explained that standby, or “shadow,” counsel could not interfere with his strategic decisions or take over questioning or argument. Stasiv conducted his opening statement, cross-examined witnesses, and gave the closing argument.

Claims and analysis

Stasiv raised three grounds. First, he argued that his standby counsel was constitutionally ineffective for failing to object to jury instructions that allegedly reduced the government’s burden to prove guilt beyond a reasonable doubt. Second, he argued that the indictment and jury instructions for the wire-fraud count charged two separate offenses—wire fraud and aiding and abetting. Third, he argued that the aggravated-identity-theft count failed to charge a crime.

The court held that the second and third grounds were procedurally barred. A procedural bar prevents a defendant from using a later sentence challenge to raise claims that could have been raised on direct appeal, unless the defendant shows a legally sufficient reason for the omission and actual harm, or shows actual innocence. The court found that Stasiv could have raised his challenges to the indictment and the wire-fraud jury instructions before trial, after trial, or on direct appeal. It also found that he had not alleged a sufficient reason for failing to raise them on appeal.

The court reached the merits of the ineffective-assistance claim and rejected it. Citing Second Circuit precedent, the court explained that a defendant who represents himself generally has no constitutional right to standby counsel and ordinarily cannot establish that standby counsel was constitutionally ineffective. Because Stasiv retained control of his defense, the court concluded that he could not assign responsibility for his conviction to standby counsel.

Disposition

The court found all of Stasiv’s arguments without merit and denied his motion to vacate, set aside, or correct his conviction and sentence. The Clerk was directed to terminate the motion in the criminal docket and close the civil case. The court also ruled that Stasiv had not made the required substantial showing of a constitutional violation, so a certificate of appealability would not issue. It certified that an appeal would not be taken in good faith and denied permission to appeal without paying filing fees.