16-3154 Sehgal v. United States

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRON IC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 2 1 st day of December, two thousand seventeen. 3

4 Present: ROSEMARY S. POOLER, 5 RICHARD C. WESLEY, 6 PETER W. HALL, 7 Circuit Judges

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10 SHASHIBALA SEHGAL, 11

12 Movant-Appellant

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14 v. 16-3154 15

16 UNITED STATES OF AMERICA, 17

18 Respondent-Appellee

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21 Appearing for Appellant: Florian Miedel, Mi edel & Mysliwiec LLP, New York, N.Y. 22

23 Appearing for Appellee: Jason M. Manning, A ssistant United States Attorney (Jo Ann M. 24 Navickas, Assistant United States Attorney, on the brief ), for 25 Bridget M. Rohde, Acting United St ates Attorney for the Eastern 26 District of New York, Brooklyn, N.Y. 27

28 Appeal from the United States Di strict Court for the Eastern Dist rict of New York (Feuerstein, 29 J. ). 30

312 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 1 AND DECREED that the order of said Dist rict Court be and it hereby is AFFIRMED

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3 Appellant Shashibala Sehgal appeals from the August 19, 2016 opinion and order of the 4 District Court for the Eastern Di strict of New York (Feuerstein J .) denying, without a full-blown 5 evidentiary hearing, her habeas motion to vaca te, set aside or correct her sentence of 6 imprisonment on the ground that she received ineffec tive assistance of counsel. We assume the 7 parties’ familiarity with the underlying facts, pr ocedural history, and specification of issues for 8 review. 9

10 “We review the district c ourt’s denial of a hearing under 28 U.S.C. § 2255 for abuse of 11 discretion.” Chang v. United States , 250 F.3d 79, 82 (2d Cir. 2001) (citing United States v. 12 Russo , 801 F.2d 624, 627 (2d Cir. 1986)). In a Sec tion 2255 case, “[u]nless the motion and the 13 files and records of the case conclusively show that the prisoner is entitled to no relief, the court 14 shall . . . grant a prompt hearing thereon, determ ine the issues and make findings of fact and 15 conclusions of law with respect thereto.” 28 U. S.C. § 2255(b). However, “[i]t is within the 16 district court’s discretion to determin e the scope and nature of a hearing.” Raysor v. United 17 States , 647 F.3d 491, 494 (2d Cir. 2011). “[W]hen the judge who tried the underlying 18 proceedings also presides over a § 2255 motion, a full-blown evidentiar y hearing may not be 19 necessary.” Id. ; see also Blackledge v. Allison , 431 U.S. 63, 81-82 (1977) (“[A]s is now 20 expressly provided in the Rules Governing Habe as Corpus Cases, the district judge ... may 21 employ a variety of measures in an effort to avoi d the need for an evidentiary hearing ... In short, 22 it may turn out ... that a full evidentiary heari ng is not required.”). “Although our precedent 23 disapproves of summary dismissal of petitions where f actual issues exist, it permits a middle 24 road of deciding disputed facts on the basis of written submissions.” Raysor , 647 F.3d at 494 25 (citations and alterations omitted). 26

27 Here, the district court, which presided over the trial and sentencing, did not exceed its 28 discretion in declining to hold a full-blown evidentiary hear ing. Sehgal’s written submissions in 29 her motion regarding her decision not to testify we re contradicted by her prior statements to the 30 court, both in a letter and at her sentencing he aring. Under these circumst ances, the district court 31 was not required to hold a testim onial hearing, and properly resolved factual issues on the basis 32 of written submissions alone. See Puglisi v. United States , 586 F.3d 209, 214 (2d Cir. 2009) 33 (district court need not “assume the credibility of [a movant’s] factual assertions ... where the 34 assertions are contradicted by the record in the underlying [criminal] proceeding.”). As a result, 35 there was no error in the dist rict court’s decision to deny th e petition without a full-blown 36 evidentiary hearing. 37

38 We have considered the remainder of Sehga l’s arguments and find them to be without 39 merit. Accordingly, the order of the district court hereby is AFFIRMED. 40

41 FOR THE COURT: 42 Catherine O’Hagan Wolfe, Clerk 43

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