CLOSED

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY

______________________________

:

SOHAIL CHAUDHRY, : CIVIL ACTION NO: 10-3119 (FSH)

:

Petitioner, :

:

v. : OPINION & ORDER

:

UNITED STATES OF AMERICA, : October 5, 2011

:

Respondent. :

______________________________:

Petitioner Sohail Chaudhry submitted a motion to vacate, set aside or correct his

sentence, pursuant to 28 U.S.C. § 2255. After carefully reviewing the submissions of the 1

parties, the Court denies the motion.

 Petitioner has also filed two motions: 1) for appointment of counsel; and 2) to compel 1

discovery. Petitioner seeks discovery yet again on matters relating to his continued and

unsubstantiated belief that there are more Yahoo! instant message chats (hereinafter “IM”). This

motion will be denied because this issue has been litigated over and over and over again from the

very outset of the case, with the Court having taken exhaustive measures to ensure that all

discovery on this issue was diligently pursued, and which yielded nothing remotely useful to the

defense. Therefore, the Court finds that good cause does not exist to authorize even more

discovery now. See Rule 6(a) of the Rules Governing Section 2255 Proceedings (“A judge may,

for good cause, authorize a party to conduct discovery under the Federal Rules of Criminal

Procedure or Civil Procedure, or in accordance with the practices and principles of law. If

necessary for effective discovery, the judge must appoint an attorney for a moving party who

qualifies to have counsel appointed under 18 U.S.C. § 3006A.”). No “good cause” has been set

forth. 

Petitioner’s motion for appointment of counsel is also denied because the Court finds the

interests of justice do not require the appointment of counsel as Petitioner simply raises the same

claims that he has raised throughout each and every phase of his criminal case. See 18 U.S.C. §

3006A(a)(2)(B) (“Whenever ... the court determines that the interests of justice so require,

representation may be provided for any financially eligible person who ... is seeking relief under

section ... 2255 of title 28.”).

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I. Factual and Procedural History

On September 21, 2006, a federal grand jury indicted Sohail Chaudhry on two counts. 

2

The first count of the Indictment alleged that Chaudhry traveled interstate with the intent to

engage in criminal sexual activity with a minor, in violation of 18 U.S.C. § 2423(b). The second

count alleged that Chaudhry used an interstate facility to entice a minor to engage in sexual

activity, in violation of 18 U.S.C. § 2422(b). On June 4, 2007, a jury trial in this matter was

commenced. The evidence presented at trial consisted primarily of transcripts of approximately

six months of sexually explicit internet chats between Defendant and an undercover law

enforcement officer posing on-line as a 14-year-old girl using the moniker “cheergrlsam,” as well

as the recording of phone conversations between the Defendant and a female police officer

posing as “cheergrlsam.” Defendant drove from Philadelphia, Pennsylvania to South

Hackensack, New Jersey to meet “Sam” at a McDonald’s in South Hackensack on January 4,

2006. Defendant was arrested when he arrived at the designated McDonald’s. At trial,

Defendant’s defense included his own testimony as well as two expert witnesses, including an

expert in linguistics. On June 13, 2007, the jury returned guilty verdicts on both counts. 

On June 27, 2007, Chaudhry filed a motion for a new trial pursuant to Federal Rules of

Criminal Procedure 29 and 33. This Court denied the motion for a new trial on September 12,

2007. On November 28, 2007, this Court sentenced Chaudhry to an 84-month term of

imprisonment. Chaudhry filed a notice of appeal on November, 30, 2007. On December 5,

 Originally, Chaudhry was represented by Michael Chazen, Esq., until new counsel, 2

Stephen Weinstein, Esq., was substituted. On January 23, 2007, Mr. Weinstein withdrew as

counsel and Hamdi Rifai, Esq. was substituted. Mr. Rifai represented him during extensive pretrial proceedings, trial and sentencing, along with Anthony Iacullo, Esq.

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2007, Chaudhry filed another motion for a new trial; this Court stayed the motion pending

disposition of Chaudhry’s appeal. This Court denied Chaudhry’s pending motion for a new trial

on March 18, 2008. On March 13, 2009, the United States Court of Appeals for the Third

Circuit denied Chaudhry’s appeal and affirmed the judgment of this Court in all respects. On

October 5, 2009, the United States Supreme Court denied Chaudhry’s petition for a writ of

certiorari. 

On June 18, 2010, Chaudhry filed the instant motion to vacate, set aside or correct his

conviction and sentence, pursuant to 28 U.S.C. § 2255, claiming that he was convicted due to

prosecutorial misconduct and because he was denied the effective assistance of trial counsel.

II. Legal Standard

28 U.S.C. § 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 ... may move the court which imposed the sentence to

vacate, set aside or correct the sentence. Unless the motion and the files

and the records of the case conclusively show that the prisoner is entitled

to no relief, the court shall cause notice thereof to be served upon the

United States attorney, grant a prompt hearing thereon, determine the

issues and make findings of fact and conclusions of law with respect

thereto.

28 U.S.C. § 2255; see also Daniels v. United States, 532 U.S. 374, 377 (2001). Section 2255 is

intended to remedy only “fundamental defect[s] which inherently result[] in a complete

miscarriage of justice” or “omission[s] inconsistent with the rudimentary demands of fair

procedure.” Hill v. U.S., 368 U.S. 424, 428 (1962). Thus, the grounds for collateral attacks on

final judgments are “narrowly limit[ed],” so that “an error that may justify reversal on direct

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appeal will not necessarily support a collateral attack on a final judgment.” United States v.

Addonizio, 442 U.S. 178, 184 (1979), superseded on other grounds by statute. “Section 2255

generally may not be employed to relitigate questions which were raised and considered on direct

appeal.” United States v. DeRewal, 10 F.3d 100, 105 n. 4 (3d Cir. 1993) (internal quotations

omitted). 

When a prisoner has failed to raise a claim at sentencing and on direct appeal, the

prisoner may not obtain collateral review for that claim unless he meets his burden under the

cause and actual prejudice standard. United States v. Frady, 456 U.S. 152, 167-68 (1982); see

also United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993). Under this standard, the prisoner

“must show both (1) ‘cause’ excusing his double procedural default, and (2) ‘actual prejudice’

resulting from the errors of which he complains.” Frady, 456 U.S. at 168.

To show that cause existed for his double procedural default, a prisoner must show that

“some objective factor external to the defense impeded counsel’s efforts to raise the claim.”

United States v. Pelullo, 399 F.3d 197, 223 (3d Cir. 2005) (quoting McCleskey v. Zant, 499 U.S.

467, 493 (1991)). “It is now well established that a successful claim of ineffective assistance of

counsel under Strickland v. Washington . . . satisfies the ‘cause’ prong of a procedural default

inquiry.” United States v. Garth, 188 F.3d 99, 107 (3d Cir. 1999). 

Under the two-prong test established in Strickland for evaluating ineffective assistance of

counsel claims, the petitioner has the burden of showing (1) that his counsel's performance was

deficient and (2) that the deficient performance prejudiced the defense. 466 U.S. 668, 687

(1984). To show that his counsel’s performance was deficient, the petitioner must demonstrate

that “counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. 

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There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. at 689. To show prejudice, the petitioner must demonstrate that

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694.

Finally, § 2255 provides that “[u]nless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief,” a court must “grant a prompt hearing

thereon, determine the issues and make findings of fact and conclusions of law with respect

thereto.” However, the prisoner is not entitled to a hearing “if his allegations [are] contradicted

conclusively by the record, or if the allegations [are] patently frivolous.” Solis v. United States,

252 F.3d 289, 295 (3d Cir. 2001); see also 28 U.S.C. § 2255.

III. Discussion

Chaudhry argues that his conviction and sentence should be set aside because there were

“numerous, cumulative errors affecting his right to fair proceedings,” stemming from the “perfect

storm” created by trial counsel’s ineffective assistance and “the deliberate sequestration,

suppression, and destruction of exculpatory evidence by agents of the prosecution and the receipt

of perjured testimony at trial by the Government’s chief witness as it related to the guilt or

innocence of [Petitioner].” Specifically, Chaudhry alleges that: (1) the Government committed

prosecutorial misconduct because it suborned perjury and used false testimony because Officer

Agar testified falsely regarding the opening IMs between himself and Chaudhry; (2) the

Government committed prosecutorial misconduct because it knowingly made misrepresentations

to the Court; and (3) “government induced” ineffective assistance of trial counsel.

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Chaudhry alleges that the Government suborned perjury because Officer Agar, who posed

as “cheergrlsam,” testified falsely regarding the opening IMs between himself and Chaudhry. 

Ignoring the six months of highly inculpatory IM chats, Chaudhry again perseverates on the

purported first 2 lines of these reams of chats. Presenting nothing that has not been argued and

re-argued endlessly throughout the long history of this case, Petitioner claims the Government

purportedly used “false testimony” because Officer Agar testified that the Yahoo! software does

not archive the first line of every chat conversation initiated by another user. Chaudhry contends

that is “disingeneously [sic] incomplete.” Chaudhry claims that the Government misrepresented

to the Court that Officer Agar’s perception of Chaudhry as a middle-easterner was “not an issue.”

That is purportedly because Officer Agar had come “into near personal contact” with at least

three of the 9/11 terrorists and perhaps blamed himself for failing to prevent what later happened,

with no factual basis for this gross supposition by Chaudhry. Chaudhry supports this argument

by alleging that of the at least 17 internet decoy investigations initiated by Officer Agar, his was

the only one in which the Department of Homeland Security was contacted.3

Chaudhry also claims that his Sixth Amendment rights were violated as a result of

“Government induced” ineffective assistance of counsel. Trial counsel for Chaudhry is now 4

 The Court finds that there is simply no basis, nor supporting evidence, for Chaudhry’s 3

belief that Officer Agar was somehow biased against men of middle eastern descent, or that such

alleged bias affected the trial’s outcome in any manner whatsoever. This case is and was always

about sexually explicit IM chats between the Defendant and an undercover officer posing as a 14-

year old cheerleader. It had zero to do with a security issue or 9/11/2001.

 All of Petitioner’s claims regarding the ineffective assistance of counsel claims stem 4

from Petitioner’s unsubstantiated position, that has been unsuccessful at every stage of this

litigation, that exculpatory evidence existed in the form of instant message chats that the

government failed to turn over that would have somehow changed the result of his trial. 

However, counsel cannot be ineffective for failing to either investigate or reveal evidence that

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claimed to be ineffective because he relied on representations by the Government, which are

claimed to involve misconduct, as described above. Chaudhry also claims that because Hamdi

Rifai, Esq., had only 5 months to prepare for trial, “no competent attorney could have rendered

effective assistance of counsel.” Exculpatory evidence could have been presented, Chaudhry 5

argues, if counsel had had sufficient time to prepare.

Hamdi Rifai is now argued to have been ineffective for many reasons, including failure

to: 1) investigate adequately pre-trial relevant documentary evidence regarding Yahoo!

Messenger records related to instant message chat conversations; 2) obtain Yahoo! records in a

timely fashion; 3) familiarize himself with the Yahoo! Messenger design construct prior to

sentencing; 4) subpoena an Internet chat room behavior expert who could testify regarding chat

logs; 5) retain a police policies and procedure expert who could testify regarding the undercover

agent’s conduct in the IM chats; 6) justify the request for a “spoliation of evidence” jury

does not exist. Petitioner’s claim has been ruled on ad nauseum and Petitioner’s newest way of

raising his claim fails because Petitioner is unable to demonstrate that his counsel’s performance

was deficient. Indeed, this is nothing more than a new way of claiming prosecutorial

misconduct; in its essence, Chaudhry claims that his counsel was ineffective because prosecutors

denied him evidence. 

 Both the voluminous record of pretrial motions and trial proceedings, as well as Hamdi 5

Rifai’s Certification, filed in support of Petitioner’s Petition, reveals just how well prepared Rifai

was and how zealously he advocated on Chaudhry’s behalf. Mr. Rifai diligently, relentlessly,

and repeatedly made an extraordinary number of pre-trial motions on behalf of Petitioner

(including multiple motions to suppress and compel), prepared “core defenses,” sought a

‘spoliation of evidence’ jury instruction at trial because such an argument was essential to

making these Yahoo! IM chat arguments before the jury, and successfully argued for an

entrapment jury instruction. In his 5 months of trial preparation, Mr. Rifai worked zealously to

ensure that Petitioner was afforded a fair trial. Petitioner cannot establish that counsel’s conduct

fell outside the range of acceptable reasonable professional assistance nor that he was prejudiced

as a result of counsel’s performance. Rifai’s Certification shows that he is still trying his utmost

to help Chaudhry, claiming now to have been ineffective because of purported Government

misconduct. 

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instruction; and 7) investigate the age requirement for who may participate in Yahoo! chat

rooms. 

The Government argues in response to Chaudhry’s § 2255 motion that it clearly and

unequivocally satisfied its Brady obligations. The Government also correctly observes that 6

“petitioner’s latest motion is replete with arguments that have already been addressed and denied. 

To the extent Petitioner claims ineffective assistance of counsel, any such claims are contradicted

by the Rifai Cert. which outlines exactly what steps he took in zealously advocating on

Petitioner’s behalf.” Answer, at 4-5.

The Government’s points are clear, fully supported by the record, and true. It is clear

beyond peradventure that Petitioner’s eight separate grounds in support of his § 2255 motion are

all nothing more than an attempt to re-litigate that which has already been decided by this Court

and the Third Circuit Court of Appeals. All have already been raised and re-raised by Petitioner

in pre-trial motions, during trial, in post-trial motions, on appeal to the United States Court of

Appeals for the Third Circuit and finally in a writ of certiorari to the United States Supreme

Court. More ink has been addressed to those mere 2 lines of chat than is humanly conceivable. 

These 2 lines were followed by 6 months of explicit text, which proved guilt beyond any doubt.

The record of the voluminous and exhaustive pretrial proceedings since the beginning of this

case are replete with endless hours of time, investigation, argument, expert forensic analysis, and

 Petitioner’s claim regarding the Government’s failure to comply with its Brady 6

obligations is denied. Petitioner has failed to identify any exculpatory evidence that the

Government failed to produce and therefore, the Court finds that the Government complied with

its Brady obligations. Again, this is a claim that has been litigated and re-litigated and this Court

still finds it unavailing.

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testimony about the very same argument, again made in this motion. While Chaudhry has

continued to make these unfounded claims over and over and over again, nothing has ever

supported those claims and nothing new is shown now. As this Court has ruled after giving

extraordinary pretrial discovery and investigative opportunities to defense counsel, there has

never been an iota of a whiff of prosecutorial misconduct nor a scintilla of exculpatory evidence. 

By contrast, the inculpatory evidence was voluminous and powerful. 

On March 20, 2007, Chaudhry filed a motion to compel the production of instant message

chats prior to the date of June 20, 2005 and the initial chats between Chaudhry and

“cheergrlsam.” Defendant argued at that time that there were instant message chats over a month

prior to what had been provided by the Government. The Government opposed this motion, 7

arguing vehemently that the government had provided all IM chats in its possession and that

“Defendant’s unsubstantiated beliefs that additional chats exist are just that. . . unsubstantiated

beliefs.” Brief of the United States in Opposition to Defendant Sohail Chaudhry’s Omnibus

Pretrial Motions, filed March 27, 2007, p. 20. After exhaustive briefing, testimony from both

Defendant and Officer Agar, a Court-ordered thorough examination of Officer Agar’s computer

and oral argument on the motion to compel prior IM chats, this Court denied Defendant’s motion

to compel, finding that there was absolutely no evidence that there were any conversations

between Defendant and “cheergrlsam” before June 20, 2005, which Officer Agar testified was

 Chaudhry also claimed that he could not produce his own computer with the earlier 7

(fictitious) chats with “cheergrlsam” because the computer he was using when “cheergrlsam”

initiated the chats had been thrown away after it had become “non-functional” and was

somewhere in a Pennsylvania landfill; yet, he accused the Government of a Brady violation for

not producing them.

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the date of the creation of “cheergrlsam” as a Yahoo! account. Defendant raised this issue again

during trial as part of his defense, and testified about a fictitious 2 months of “destroyed” chats

that preceded the six months of actual, highly damaging IM chats. The Government called

Yahoo! on its rebuttal case, with evidence that put the lie to Chaudhry’s testimony about 2

months of chats that occurred earlier than the six months of actual chats, by proving that there

was no “cheergrlsam” in existence before June 20, 2005. The jury, in finding Chaudhry guilty on

both counts, clearly rejected Chaudhry’s defense.

After trial, Chaudhry filed motions under Rule 29 and 33 of the Federal Rules of Criminal

Procedure, raising these same points yet again. Both motions were denied by Opinion and Order

dated September 11, 2007. At Defendant’s sentencing hearing, Defendant’s former attorney

made statements that formed the basis of a renewed Rule 33 motion. In this renewed Rule 33

motion for a new trial, Chaudhry argued that his trial attorney learned during the trial of the

inculpatory nature of cheergrlsam’s Yahoo Account Management Tool (“YAMT”)and that trial

counsel chose not to accept the YAMT from Yahoo in response to a trial subpoena to Yahoo,

without telling Chaudhry the full details of the inculpatory information in the YAMT. This

Court rejected Chaudhry’s motion for a new trial, finding that a new trial was not required by the

interests of justice because their was simply no new evidence provided by the use of the YAMT

and the battle over the first few lines of the chat was immaterial in light of the weight of the

evidence against him.

On appeal to the United States Court of Appeals for the Third Circuit, Chaudhry again

raised the issue regarding the alleged “prior” IM chats. Specifically, Chaudhry presented a claim

on appeal regarding the ineffective assistance of trial counsel which resulted from his belief that

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the Government had failed to preserve and/or produce exculpatory evidence which was allegedly

contained in the so-called “initial conversations” with “cheergrlsam” and that trial counsel’s

performance was somehow deficient due to his failure to present a successful defense based on

this argument. Although the Third Circuit noted that claims of ineffective assistance of trial

counsel should be raised in collateral proceedings, the Circuit Court of Appeals nonetheless

rejected the factual premise of Chaudhry’s argument regarding the “initial” chats, stating:

Chaudhry argues that he was denied his right to a fair trial because the

Government failed to preserve exculpatory evidence allegedly contained in his

“initial conversations” with Cheergrlsam. Appellant Br. at 47. We reject this

argument. As discussed in Section IV.A., supra, the Government was able to

refute the defense that earlier, exculpatory communications between Chaudhry

and Cheergrlsam existed, and thus was under no obligation to “preserve” such

communications. 

United States of America v. Sohail Chaudhry, No. 07-4540, at 11 (3d Cir. filed April 6, 2009). 

Here, Chaudhry has failed to demonstrate any error on the part of his former counsel. A

review the of the entire record establishes that Petitioner’s counsel put on a very rigorous defense

in support of Chaudhry and raised the issue of the supposed “other” IM chats multiple times

during every phase of the litigation, albeit unsuccessfully. Though counsel’s arguments on this

issue did not succeed, it cannot be said that counsel was deficient. Defense counsel repeatedly

argued that there were “other” “exculpatory” IM chats, a position that this Court and the Third

Circuit Court of Appeals found entirely meritless. Because Mr. Rifai vigorously contested the

Government’s position that there were no additional Yahoo! IM chats, Chaudhry cannot establish

that counsel was deficient or that he was prejudiced as a result. In fact, Mr. Rifai, always such a

zealous advocate for Chaudhry, now submits a certification stating that there was “government

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induced” ineffective assistance (on the same meritless basis) but at the same time clearly

outlining all of the steps he took in ardently representing Chaudhry.

“Government induced” ineffective assistance of counsel is nothing more than a dressedup claim of prosecutorial misconduct. At its core, Rifai claims that he would have been more

effective if the Government had given him these other chats, which this Court and the Third

Circuit found non-existent. The Strickland test is not met where the arguments that Petitioner

insists should have been presented by his counsel are meritless, and baseless, arguments. See

Parrish v. Fulcomer, 150 F.3d 326, 328-29 (3d Cir. 1998). In other words, “[a]n attorney cannot

be ineffective for failing to raise a claim that lacks merit.” Singletary v. Blaine, 89 Fed. Appx.

790, 794 (3d Cir. 2004); Moore v. Deputy Commissioner of SCI-Huntingdon, 946 F.2d 236, 245

(3d Cir. 1991). Accordingly, even though this Court has determined that Chaudhry’s claim does

not satisfy the Strickland standard, Chaurdhry’s claim is also denied because the essential factual

underpinnings of this claim have already been previously litigated and found baseless by both

this Court and the Third Circuit. See DeRewal, 10 F.3d at 105 n. 4. 8

THEREFORE, IT IS on this 5th day of October, 2011, hereby

ORDERED that Petitioner’s motion is DENIED; and it is further 

ORDERED that Petitioner’s motion to compel discovery is DENIED; and it is further

ORDERED that Petitioner’s motion for appointment of counsel is DENIED; and it is

further

 A litigant may not attempt to circumvent this rule “by clothing a previously-litigated 8

substantive claim in ineffective assistance garb.” United States of America v. McKines-El, 2005

WL 1215953, *5 (M.D. Pa. April 26, 2005). 

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ORDERED that because Petitioner has not made a substantial showing of the denial of a

constitutional right, as required by Section 102 of the AEDPA, 28 U.S.C. §2253(c), a Certificate

of Appealability should NOT issue; and it is further 

ORDERED that this case is CLOSED.

s/ Faith S. Hochberg 

Hon. Faith S. Hochberg, U.S.D.J.

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