The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Petitioner Saleem Shirazi entered a plea of guilty to participating in a conspiracy to possess and utter counterfeit traveler's checks, pursuant to a plea agreement. This Court sentenced him to sixty months imprisonment. A federal court in Texas also sentenced Petitioner to a consecutive thirty-three month term of imprisonment for his role in an unrelated credit card conspiracy. See United States v. Saleem Agajani, No. 4:97-CR-56 (E.D. Tex.). Shirazi directly appealed his sentence, alleging that the District Court erred in finding that he played a managerial role in the conspiracy. The Seventh Circuit affirmed his sentence in 2002. United States v. Shirazi, 47 Fed. Appx. 765 (7th Cir. 2002). Shirazi now files a collateral attack against his conviction and sentence pursuant to 28 U.S.C. § 2255.
Saleem Shirazi (also known as "Khaleel Mohammad") entered a plea agreement by which he admitted that from August to October 2000, he conspired with his co-defendants and with others to make, utter, and possess counterfeit Visa traveler's checks, with the intent to deceive other persons and organizations. According to the facts admitted in the plea agreement, two of Shirazi's co-defendants went to a bank in Lincolnwood, Illinois in August 2000, where they purchased valid Visa traveler's checks. Co-defendant Rajiv Saneja took possession of the checks. Saneja, who did not drive, then rode with Shirazi to California. While in California, Shirazi and Saneja made counterfeit traveler's checks, which they brought back to Chicago.
Saneja recruited additional co-defendants and others to pass the counterfeit traveler's checks at various stores in the Chicago area. Shirazi generally kept the counterfeit checks in his possession until Saneja was ready to distribute them. The co-defendants used false names and counterfeit identification to conceal their acts, the purpose of their acts, and the conspiracy. After receiving the counterfeit checks, the check casher co-defendants drove to various businesses in the greater Chicago area, where they made small purchases and paid with the fraudulent checks. The check cashers passed at least 432 counterfeit traveler's checks in this manner. Each check casher kept 60% of the proceeds of the fraud. The remainder went to Saneja, who evenly split the proceeds with Shirazi.
On October 17, 2000, Shirazi and Saneja left a Motel 6 in Glenview, Illinois, where they had been living. They drove out of the parking lot in their van, and were quickly pulled over by Glenview police officers for a traffic stop. Earlier that day, the Glenview Police Department had received an anonymous call, notifying them that two individuals involved in credit card fraud were staying at the Glenview Motel 6, and providing a description of the van the individuals were driving. According to the Glenview police, Shirazi, who was driving, changed lanes without signaling and failed to display a front license plate on the van in violation of Illinois law.
Shirazi identified himself as Khaleel Mohammad*fn1 of Los Angeles, California, with a birthday of September 17, 1970. A check of that name and birth date revealed an expired and suspended California drivers' license. Shirazi, as Khaleel Mohammad, signed a consent to search form for the van. Inside the van, officers discovered drug paraphernalia, a magazine for a semi-automatic handgun, and a large amount of cash.
Shirazi told the police that he and Saneja, who was using the name Jasvir Kumar, had checked out of their room, number 105, at the Motel 6 and were leaving the area. The police wished to examine the room in which they had stayed, and Shirazi and Saneja drove the van back to the hotel, accompanied by the police. At the hotel manager's office, the police learned that Shirazi had checked out of room 105 a few days earlier, but had moved into room 107, where he was still registered. Shirazi denied knowledge of room 107. No one answered when police knocked on the door. The hotel manager opened the door to the room, and the police, the manager, and Shirazi entered. Eight or nine pieces of luggage were in the room, but had no identifying information on their exteriors. A Glenview Police Officer asked Shirazi if a medium sized black suitcase belonged to him. Shirazi denied ownership. The officer opened the bag and saw an unaddressed Federal Express mailing envelope sitting on top of the items in the bag. The envelope contained several stacks of Visa traveler's checks with almost identical serial numbers. Also in the bag was stock paper printed with three Visa traveler's checks per sheet, a shaving kit containing several bottles containing a clear liquid and labeled "Ketamine," and several large green disks in a bag, which the police suspected were cannabis or hashish. In addition, several pieces of mail addressed to Khaleel Mohammad and Roll and Stone Productions were also visible in the bag. At that point, the Glenview police took both Shirazi and Saneja into custody and informed them of their Miranda rights. After additional search, the police discovered a small caliber semi-automatic handgun in the bag and multiple bottles and containers of suspected illicit drugs. In Petitioner's room at the Motel 6, police also found well more than fifteen counterfeit and unauthorized credit cards. In addition, agents found approximately 886 counterfeit Visa traveler's checks in Shirazi's bags, several forms of false identification, a magnetic card reader, a desk top computer, and a laptop computer.
At the Glenview police station, Glenview police officers advised both Saneja and Shirazi of their Miranda rights and interviewed them. Shirazi refused to make a statement. By this time, the FBI had identified Saneja and advised the Glenview police that there was an outstanding federal warrant for him out of Missouri. Some time on October 18, 2000, the FBI identified Shirazi's fingerprints as those of Saleem Agazani Shirazi. After being informed of the identification, Shirazi acknowledged that he was Saleem Shirazi.
During the evening of October 17, 2000, Shirazi complained of chest pain and was taken by the Glenview Fire Department to Glenbrook Hospital. After an examination, the doctor on call reportedly prescribed two medications, Gaviscon and Prevacid, and released Shirazi back to the Glenview Police Department's custody.
The FBI interviewed Shirazi at the Glenview Police Station and obtained his signature on a consent to search form for "any electronic storage media" found in the hotel room for evidence relating to credit card and traveler's check counterfeiting and fraud. The search was conducted with the aid of a file recovery program called EnCase, which enables a user to retrieve files that have been deleted but remain on a computer's media storage device such as a hard drive. While examining the desk top computer, FBI agents discovered files containing hundreds of stolen credit card numbers. In addition, they asserted that they inadvertently discovered a file containing a pornographic image involving a child. The FBI sought and received a warrant to search the computers and seventy-four floppy disks recovered from Room 107. The search identified several dozen images of child pornography.
At the time of his arrest in October 2000, Shirazi had approximately 886 counterfeit traveler's checks in his possession. The total amount of the actual and intended loss stemming from the counterfeit checks possessed and passed by Shirazi and his co-defendants was found to be approximately $131,800. American Express, which was the issuer of at least three of the unauthorized and counterfeit credit cards, incurred losses in the amount of at least $39,499.17.
In early 2001, Shirazi was indicted by a federal grand jury. Ultimately, all of the co-defendants pleaded guilty to conspiracy to make, utter, and possess counterfeit Visa traveler's checks in violation of 18 U.S.C. § 371, which was Count One of the superseding indictment. In his plea agreement, Shirazi acknowledged as relevant conduct his possession of stolen credit card numbers, counterfeit credit cards, and unauthorized credit cards found in his motel room. Shirazi additionally stipulated to possession of child pornography, an uncharged offense, for the purpose of computing his sentence.
This Court held a change of plea hearing on November 15, 2001. During the plea colloquy, Shirazi indicated that he had read and understood the plea agreement, that he was satisfied with the efforts and advice provided by his appointed counsel, and that he understood that pleading guilty would waive his trial rights and the right to appeal the determination of guilty. ...