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Pira v. United States

April 23, 2009


The opinion of the court was delivered by: Wayne R. Andersen District Judge


This case is before the court on the petition of Yousif Pira ("Pira"), as a prisoner in federal custody, for a writ of habeas corpus to vacate or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the petition is denied.


On November 22, 2002, Judge Sidney Schenkier approved a criminal complaint that charged Pira with access device fraud in violation of 18 U.S.C. § 1029(a)(3). The allegations in the complaint against Pira stemmed from various unauthorized access devices that were found in Pira's home during the execution of a search warrant. On January 23, 2003, Pira was indicted by a federal grand jury. The indictment charged Pira with four counts relating to unauthorized access devices. On that same date, Pira's co-defendant Zach Costinos ("Costinos") was indicated on three counts of bank fraud in violation of 18 U.S.C. § 1344 in case 02 CR 1052. The charges against Costinos stemmed from a series of checks that Pira and Costinos had presented or caused to be presented to various financial institutions. Both cases were assigned to this court.

On December 15, 2003, a jury trial commenced on the four counts against Pira. However, on the following day, prior to examination of the first witness, Pira, represented by his attorney, Scott J. Frankel ("Frankel"), pled guilty to all four counts. During the plea colloquy Pira admitted that he violated the statutes cited in each of the four counts and that he made the decision to plead guilty voluntarily.

Pira's sentencing hearing was originally set for March 25, 2004, but was continued several times at the request of the parties. On April 15, 2005, prior to the sentencing hearing, Pira filed a motion to withdraw his guilty plea (the motion is part of the record as Document No. 62 in case 02 CR 1052). The basis for Pira's motion was his claim that the government failed to produce reports and recordings relating to Pira's cooperation with the United States Secret Service during the summer of 2002. Pira claimed that these materials constituted Brady material and that his guilty plea should be vacated for the government's alleged failure to turn the materials over. The government responded with a memorandum and an affidavit from Special Agent Michael Bush of the Secret Service. Agent Bush's affidavit indicated that Pira participated in two controlled transactions for the Secret Service in August 2002 and that Pira was paid for his cooperation, but was not satisfied with the amount. Bush affidavit ¶¶ 4-12. The affidavit also stated that all of the reports regarding Pira's cooperation had been provided to the government prior to the trial, and that Agent Bush had personally assisted the government in faxing those reports to Frankel prior to trial. Bush affidavit ¶¶ 15-16. On June 2, 2005, we denied Pira's motion to withdraw his guilty plea.

On that same date Pira requested that the court appoint new counsel. We granted Pira's request and Steven Hunter ("Hunter") replaced Frankel as Pira's counsel. Hunter then filed a successive motion to withdraw Pira's guilty plea on behalf of Pira based upon the same alleged Brady violation. We denied his motion on September 19, 2005 (reflected as Document No. 73 in case 02 CR 1052).

Pira's sentencing hearing began on July 19, 2006, at which time several witnesses were presented and the court heard evidence and argument regarding the proposed guideline calculations set forth in the Presentence Investigation Report ("PSI"). Throughout the course of the hearing Pira's counsel questioned several of the witnesses extensively regarding the nature of Pira's cooperation with the Secret Service. Both Agent Bush and Agent Matthew McCloskey of the Secret Service testified that Pira's cooperation was limited to the August 2002 transactions and that Pira was not authorized to have any of the access devices at issue in the case. Transcript of Sentencing Hearing at 67, 72-74, 102-03 (July 19, 2006); Transcript of Sentencing Hearing at 193-222, 313-322 (July 24, 2006).

At the sentencing hearing Pira also raised the Brady evidentiary issue that was the subject of his motions to withdraw his guilty plea. Pira asserted that there were videotapes depicting his debriefings at the offices of the Secret Service during the course of his cooperation and that those tapes proved that he was acting as an agent of the government at the time of the criminal conduct at issue. The Court questioned Agent Bush about these alleged recordings, and Agent Bush testified that all information related to Pira's cooperation with the Secret Service had been turned over to the government. Transcript of Sentencing Hearing at 5-6 (July 19, 2006). The government then represented to this court that all of that information had, in turn, been turned over to Pira's counsel. Id. at 7. Finally, Agent Bush testified that it was the Secret Service's policy not to record interviews and, therefore, any allegations by Pira of recorded debriefings by the Secret Service must be false. Id. at 8-11.

On November 15, 2006, this court sentenced Pira to 78 months imprisonment, which fell at the low-end of the advisory guideline range of 78 to 87 months. Judgment was entered on December 12, 2006.

On December 13, 2006, Pira filed a timely notice of appeal. Hunter then filed a brief before the Seventh Circuit raising issues related to Pira's sentence. However, Pira then filed a pro se motion to dismiss Hunter and "dispose" of the motion that Hunter had filed on his behalf on May 3, 2007. Pira claims that he did so because the brief filed by Hunter did not raise all of the issues Pira wished to raise on appeal. Pet. at 11. The Seventh Circuit denied Pira's motion. On June 25, 2007, Pira filed a pro se motion for leave to file a supplemental brief. The brief raised several issues, including the alleged Brady violation. The Seventh Circuit also denied that motion. On July 31, 2008, the Court of Appeals affirmed this court's sentence.

Pira filed the instant petition for habeas corpus on January 26, 2009. In his petition Pira claims that he is entitled to relief for six reasons. Specifically, Pira alleges: (1) his trial counsel, Frankel, provided him with ineffective assistance, (2) the government committed a Brady violation by failing to produce reports and recordings related to his cooperation with the Secret Service, (3) the government withheld exculpatory evidence from him, (4) his counsel at sentencing and on appeal, Hunter, provided him with ineffective assistance, (5) the Seventh Circuit violated his rights by denying his motions and forcing him to accept Hunter as his attorney; (6) his Fourth Amendment rights were violated in obtaining and executing the search warrant, his Fifth Amendment rights were violated because of the deprivation of liberty, and his Sixth Amendment rights were violated because of the ineffectiveness of both Frankel and Hunter. Based on these allegations, Pira requests that the court vacate, set aside or correct his sentence.


The federal habeas corpus statute, 28 U.S.C. ยง 2255, provides that: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise ...

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