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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

United States of America, 

Plaintiff, 

v. Case No. 15-20382 

Honorable Victoria A. Roberts 

Paul Nicoletti, 

Defendant. 

/

ORDER DENYING DEFENDANT’S THIRD 

MOTION TO VACATE, SET ASIDE, OR 

CORRECT SENTENCE [ECF No. 247]. 

I. INTRODUCTION 

Paul Nicoletti, a licensed attorney for 14 years before his conviction for 

bank fraud, brings this motion to vacate, set aside, or correct his sentence. 

He argues that his trial, sentencing, and appellate attorneys engaged in 

ineffective assistance of counsel in violation of the Sixth Amendment. 

Because Nicoletti fails to establish that his counsel's errors were so 

serious that they deprived him of a fair trial, the Court DENIES Nicoletti’s 

motion with prejudice. 

II. FACTUAL BACKGROUND 

In 2005, Nicoletti participated in a conspiracy to fraudulently obtain 

high-value mortgage loans from Fifth Third Mortgage Michigan using straw 

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buyers and falsified records. The scheme involved a Fifth Third Mortgage 

Michigan loan officer, real estate developers, and one of Nicoletti’s former 

business partners. They sought out people with strong credit scores to be 

straw buyers, paid them to use their names and credit history to obtain 

mortgages, and promised them part of the expected profit from their 

“investment” in the property. Nicoletti’s co-conspirators falsified documents 

to inflate the straw buyers’ assets and income so they would qualify for higher 

mortgage loans. The loan applications falsely stated that the straw buyers 

planned to use the purchased properties as primary residences. 

Nicoletti played several roles in the scheme. He brought an individual 

in as a straw buyer, served as the title agent on six fraudulent transactions, 

helped coordinate and close real estate closings, prepared fraudulent HUD1 

settlement statements, and received and disbursed the proceeds of the 

mortgage loans through a checking account at Fifth Third Bank Michigan. 

Once proceeds from each respective fraudulent loan entered the 

checking account, Nicoletti used the money to purchase cashier’s checks 

from Fifth Third Bank Michigan in the name of the straw buyer of that 

transaction. Nicoletti deposited the cashier’s checks back into the checking 

account to give the appearance of the straw buyer’s down payment. When 

the conspiracy unraveled, Nicoletti advised a co-conspirator to destroy 

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evidence by wiping the laptop used to forge fraudulent loan documents. 

This Court sentenced Nicoletti to 70 months, well below the 108-135-

month guideline range. Nicoletti appealed, claiming the Court did not have 

jurisdiction to hear his case. While Nicoletti’s appeal was pending, he filed 

two motions to vacate, set aside, or correct his sentence. The Court 

dismissed both motions as premature. Ultimately, the Sixth Circuit rejected 

Nicoletti’s jurisdiction argument and affirmed the trial judgment. 

Nicoletti now files his third motion to vacate, alleging errors of 

constitutional magnitude as a basis for relief. Nicoletti makes 24 individual 

claims of ineffective assistance of counsel. He alleges ineffective assistance 

of trial counsel, James Howarth, sentencing counsel, Paul Stablein, and 

appellate counsel, Tyler Yarbro. Because Nicoletti alleges 24 separate 

grounds for ineffective assistance (none of which has any bearing on the 

following analysis), the Court will not list each ground. However, the Court 

specifically addresses two bases for ineffective assistance: failure to argue 

lack of subject matter jurisdiction and failure to assert a statute of limitations 

defense. 

III. LEGAL STANDARD 

An incarcerated person in custody under sentence of a federal court 

may move to vacate, correct, or set aside the sentence on grounds that “the 

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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 subject to collateral attack.” 28 U.S.C. § 2255(a). 

To prevail on a section 2255 motion, “a petitioner must demonstrate 

the existence of an error of constitutional magnitude which had a substantial 

and injurious effect or influence on the guilty plea or the jury's verdict.” 

Humphress v. United States, 398 F.3d 858 (6th Cir. 2005) (quoting Griffin v. 

United States, 330 F.3d 733, 736 (6th Cir. 2003)). Conclusive allegations of 

wrongdoing, without credible facts to support them, are insufficient to entitle 

a petitioner to relief under section 2255. See Blackledge v. Allison, 431 U.S. 

63, 74 (1977). When a motion is made to vacate or set aside a judgment 

under Section 2255, the movant must set forth facts which entitle him to 

relief. Conclusions, not substantiated by allegations of fact with some 

probability of verity, are not sufficient to warrant relief. O'Malley v. United 

States, 285 F.2d 733, 735 (6th Cir. 1961). 

IV. ANALYSIS 

Nicoletti cannot prove an error of constitutional magnitude to support 

his § 2255 motion. To prevail on a Sixth Amendment ineffective assistance 

of counsel claim, a defendant must demonstrate that (1) his attorney's 

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performance was deficient, and (2) he was prejudiced because of the alleged 

deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). 

To satisfy the deficiency prong, the defendant must show that 

counsel's representation fell below an objective standard of reasonableness. 

Id. at 687–88. He must show that “counsel made errors so serious that 

counsel was not functioning as the “counsel” guaranteed the defendant by 

the Sixth Amendment.” Id. at 687. 

To satisfy the prejudice prong, the defendant must show that there is 

a reasonable probability that, but for counsel's errors, the result would have 

been different. Id. at 694. “This requires showing that counsel's errors were 

so serious as to deprive the defendant of a fair trial, a trial whose result is 

reliable.” Id. 

There is “a strong presumption that counsel's conduct falls within the 

wide range of reasonable professional assistance.” Id. at 689. The defendant 

must overcome the presumption that, under the circumstances, the 

challenged action might be considered sound strategy. Id. 

A. Nicoletti failed to establish that he was prejudiced 

because of counsel’s alleged deficient performance. 

Each of Nicoletti’s 24 ineffective assistance claims fails the Strickland

test because he cannot satisfy the prejudice prong in any of his claims. 

A court need not determine whether counsel's performance was 

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deficient before examining the prejudice suffered by the defendant as a result 

of the alleged deficiencies. Id. at 697. The object of an ineffectiveness claim 

is not to grade counsel's performance; if it is easier to dispose of an 

ineffectiveness claim on the ground of lack of sufficient prejudice, that course 

should be followed. Id. (“There is no reason for a court deciding an ineffective 

assistance claim . . . to address both components of the inquiry if the 

defendant makes an insufficient showing on one.”). 

To satisfy the prejudice prong, Strickland required Nicoletti to 

demonstrate a “reasonable probability” that, but for counsel's unprofessional 

errors, the result of his trial would have been different. Id. at 694. A 

reasonable probability is a probability sufficient to undermine confidence in 

the outcome. Id. In other words, Nicoletti was required to show that counsel's 

errors were “so serious as to deprive [him] of a fair trial.” Id. at 687. A court 

must also consider the totality of the evidence before the jury. Id. at 695. The 

defendant must “affirmatively prove” prejudice. Id. at 693. 

Looking at the totality of the evidence presented against Nicoletti, he 

cannot prove prejudice. Nicoletti does not establish that there was any 

probability, let alone a reasonable one, that the result of his trial would have 

differed had his counsel not “erred” as he says they did. In none of Nicoletti’s 

24 claims of ineffective assistance does he allege that there is a reasonable 

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probability that but for counsel’s errors, the result of his trial and/or sentence 

would have been different. This alone is enough to deny his motion in full. 

But there is more. As Strickland articulates, “a verdict or conclusion 

only weakly supported by the record is more likely to have been affected by 

errors than one with overwhelming record support.” Id. at 696. But there is 

“overwhelming record support” for Nicoletti’s conviction; the Government 

presented substantial evidence of guilt. For example: 

 Nicoletti admitted on the stand that he intended to fraudulently 

obtain bank property from Fifth Third Bank Michigan or Fifth 

Third Bank Ohio; 

 Three separate co-conspirators testified against Nicoletti, 

outlining his involvement in the scheme; 

 Much of Nicoletti’s mortgage fraud was documented by his own 

signatures on false documents and false checks issued from his 

own title company; 

 Nicoletti was caught on tape admitting that he knew the straw 

buyers were not bringing money to closing; 

 Recorded statements of Nicoletti exist of him saying that he was 

destroying electronic documents and shredding paper 

documents relating to Fifth Third Bank; and 

 Nicoletti instructed a co-conspirator to take his Fifth Third laptop, 

which he knew contained false documents related to the 

mortgage loan fraud, to another co-conspirator who owned a 

computer repair shop to have the laptop hard-drive erased. 

This evidence is sufficient to demonstrate that Nicoletti was guilty 

beyond a reasonable doubt. Even if the Court entertained a theory that 

Nicoletti’s counsel was deficient, the evidence of his guilt supports that 

Nicoletti was not prejudiced; his conviction was supported by the record. 

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Nicoletti fails to show that counsel's alleged errors were “so serious as to 

deprive [him] of a fair trial.” To the contrary, Nicoletti’s trial was fair and 

reliable. 

"An error by counsel, even if professionally unreasonable, does not 

warrant setting aside the judgment of a criminal proceeding if the error had 

no effect on the judgment.” Id. at 691. Nicoletti’s claims asserting failure to 

subpoena records, failure to object to certain evidence, and failure to engage 

in more aggressive cross-examination, among other assertions, had no 

effect on his judgment of conviction. 

Moreover, "the ultimate focus of inquiry must be on the fundamental 

fairness of the proceeding whose result is being challenged.” Id. at 696. 

Despite Nicoletti’s many arguments for ineffective assistance, his trial and 

sentence were fundamentally fair. Overwhelming evidence of Nicoletti’s guilt 

notwithstanding, this Court still gave him a significant reduction in his 

sentence. Even though Nicoletti’s guideline range was 108-135 months, the 

Court only sentenced him to 70 months—a term well below his applicable 

range. Nicoletti cannot say, in good faith, that he was deprived of a fair trial 

given the abundant evidence against him and the moderate sentence he 

received. Nicoletti’s trial and resulting sentence were fundamentally fair. 

A discussion of two of Nicoletti’s ineffective assistance arguments is 

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warranted. First, to the extent that Nicoletti argues he was prejudiced due to 

counsel’s failure to argue that his conduct did not constitute a federally 

actionable offense under 18 U.S.C. 1344, this claim is baseless. This issue 

of subject matter jurisdiction has been litigated and relitigated at length 

before the Court. Nicoletti argued the issue in a pre-trial motion to dismiss, 

and again during trial. Both times, the Court denied his motion. After trial, 

Nicoletti moved for acquittal, raising the same argument. For the third time, 

this Court rejected his argument. 

Nicoletti brought the same subject matter jurisdiction argument to the 

Sixth Circuit on appeal; it also rejected it and affirmed his conviction. 

Second, to the extent that Nicoletti argues he was prejudiced due to 

trial counsel’s failure to argue that his charges were barred by a 5-year 

statute of limitations, this claim is also baseless. 18 U.S.C. § 3282(a) sets a 

five-year statute of limitations for any offense not capital—“except as 

otherwise expressly provided by law.” 18 U.S.C. § 3282(a). 18 U.S.C. § 3293 

expressly provides a ten-year statute of limitations for bank fraud in violation 

of 18 U.S.C. § 1344, which is Nicoletti’s offense of conviction. See 18 U.S.C. 

§ 3293. The substantive crime he stands convicted of is bank fraud, for which 

the statute of limitations is ten years. Nicoletti was not prejudiced by any 

failure to raise a statute of limitations defense. 

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Throughout his motion, Nicoletti merely states that his counsel was 

ineffective without substantiating these claims with concrete reasons why the 

result of his trial would have differed had counsel done what Nicoletti asserts 

they should have. A motion which merely states general conclusions of law, 

without corroborating factual allegations, is without legal merit. See O'Malley, 

285 F.2d at 735. 

Because Nicoletti cannot establish Strickland’s prejudice prong, there 

is no need to address the deficiency prong. 

V. CONCLUSION 

The Court DENIES Nicoletti’s third section 2255 motion with 

prejudice. 

Nicoletti must obtain a certificate of appealability from this Court 

before appealing. 28 U.S.C. § 2253(c)(1)(B). A certificate of 

appealability may issue “only if the applicant has made a substantial 

showing of the denial of a constitutional right.” Id. at 2253(c)(2). Nicoletti 

makes no such showing, and the Court declines to grant a certificate of 

appealability. 

IT IS ORDERED. 

s/ Victoria A. Roberts 

 Victoria A. Roberts 

 United States District Judge 

Dated: November 22, 2022 

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