United States District Court, D. Massachusetts
MEMORANDUM & ORDER
NATHANIEL M. GORTON, District Judge.
In October, 2009, Arthur Gianelli ("Gianelli" or "petitioner" was sentenced to 271 months in prison and 36 months of supervised release after being convicted of RICO, gambling offenses, money laundering, extortion, attempted arson and related conspiracy offenses. Gianelli contends that his lawyers rendered ineffective assistance prior to and during trial and moves 1) to vacate his sentence pursuant to 28 U.S.C. § 2255 and 2) for discovery in connection with his habeas petition. For the reasons that follow, both motions will be denied.
A. Criminal investigation
Gianelli's prosecution resulted from an investigation of an extensive illegal gambling operation by the Massachusetts State Police ("the MSP") in 2003. The MSP obtained orders to intercept telephone conversations of Gianelli, the head of the group, and co-defendant Dennis Albertelli ("Albertelli"), the second-in-command, between late October, 2003 and mid-January, 2004.
The intercepted calls revealed that Gianelli and Albertelli were involved in a dispute with Mark Colangelo ("Colangelo") over ownership of the Big Dog Sports Bar in Lynnfield, Massachusetts. Gianelli and Albertelli intended to pressure Colangelo to settle on terms favorable to themselves by burning down Romeo's Pizza, the pizza shop in North Reading, Massachusetts owned by Colangelo.
On November 13, 2003, officers set up surveillance at Romeo's Pizza and arrested two men attempting to set fire to the building. The men had been recruited by co-defendant Deeb Homsi.
B. Indictments, arrest and jury trial
In January, 2005, Gianelli and four co-defendants were arrested and indicted on five counts of illegal gambling, extortion, arson and related conspiracy offenses. The first superseding indictment returned in April, 2005 charged Gianelli on 311 counts. A second superseding indictment returned in September, 2006 charged Gianelli on 330 counts. That indictment also charged Gianelli's wife, Mary Ann Gianelli, with 160 felony counts including RICO, gambling, money laundering and tax offenses. Generally, the prosecution advanced the theory that Gianelli served as the leader of a criminal organization that ran illegal gambling operations, collected debts through extortionate means and conspired to commit arson.
A seven-week jury trial was held in March and April, 2009. Gianelli was convicted on 328 counts of RICO, gambling offenses, money laundering, extortion, attempted arson and related conspiracy offenses. He was acquitted on one gambling count and one count of interstate travel in aid of racketeering. The government subsequently dismissed four money laundering counts, leaving Gianelli with 324 felony convictions.
C. Procedural History
In October, 2009, the Court sentenced Gianelli to 271 months in prison and 36 months of supervised release. Gianelli timely appealed his conviction on grounds that the Court erred in denying his motion to suppress wiretap evidence and in permitting a case agent to interpret ordinary words and phrases in an intercepted call based on his knowledge of a far-reaching investigation. In June, 2012, the First Circuit Court of Appeals affirmed Gianelli's conviction and the United States Supreme Court denied his petition for writ of certiorari in May, 2013.
In May, 2014, Gianelli timely moved for habeas relief under 28 U.S.C. § 2255. He claims that he was the victim of ineffective assistance of counsel from two of his trial lawyers, the late Richard Egbert ("Attorney Egbert") and Robert L. Sheketoff ("Attorney Sheketoff"). Gianelli claims that Attorney Egbert was ineffective in: 1) failing to conduct a prompt examination of the case, 2) proceeding based on a misunderstanding of the law, 3) not providing Gianelli with sufficient advice relating to a "swift plea, " 4) rendering incompetent representation during plea negotiations, 5) failing to investigate Gianelli's defenses, 6) failing to abide by Gianelli's wishes to accept a plea offer of 12 years incarceration and 7) not adhering to ABA standards.
Moreover, Gianelli claims Attorney Sheketoff was ineffective after the death of Attorney Egbert in: 1) instructing Gianelli to turn down a 14-year plea offer, 2) proceeding based on a misunderstanding of the law, 3) failing to investigate the government's case adequately, 4) failing to advise Gianelli on how the government could change its prosecution theory at trial, 5) misunderstanding the strength of the government's case and 6) not adhering to ABA standards.
Gianelli contends that but for the errors of Attorney Egbert he would have been sentenced to 12 years in prison, and in the alternative, that but for the errors of Attorney Sheketoff he would have been sentenced to 14 years in prison. He now moves to correct his sentence.
II. Motion to ...