Petition for Writ of Certiorari — Poppi Metaxas, Petitioner v. United States

Supreme Court briefJan 9, 2021

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CASE No.

In The Supreme Court of the United States

POPPI METAXAS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

to the

United States Court of Appeals

for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

Brandon Sample

Brandon Sample PLC

P.O. BOX 250

Rutland, Vermont 05702

Tel: 802-444-4357

Fax: 802-779-9590

Email: Brandon@brandonsample.com

Counsel for Petitioner

QUESTIONS PRESENTED

Whether the petitioner was denied effective

assistance of counsel with respect to the plea

process by counsel’s failure to discuss with and

inform the petitioner of possible defenses to

petitioner’s charges? If counsel had done so, there

was a “reasonable probability” the petitioner

would have insisted on going to trial instead of

pleading guilty.

Did the district court and court of appeals

fail to comply with the applicable standard when

denying the petitioner a certificate of appealability

(“COA”).

II. TABLE OF

CONTENTS

I. QUESTIONS PRESENTED ..................... I

II. TABLE OF CONTENTS ........................... I

III. TABLE OF AUTHORITIES ................. III

IV. PETITION FOR A WRIT OF

CERTIORARI ................................................ 1

OPINIONS BELOW .............................. 1

VI. JURISDICTION .................................... 1

VII. CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ............................ 2

VIII. STATEMENT OF THE CASE .............. 4

IX. REASONS FOR GRANTING THE

PETITION...................................................... 9

A. PETITIONER IN ENTITLED TO

VACATUR OF HER PLEA AND SENTENCE

ON THE GROUND OF INEFFECTIVE

ASSISTANCE OF COUNSEL ...................... 9

1. Ineffective Assistance Standard. ........ 10

2. Petitioner Received Ineffective

Assistance During the Plea Process. ........ 15

B. THE DISTRICT COURT AND COURT

OF APPEALS ERRED IN NOT GRANTING

COA .............................................................. 25

CONCLUSION .................................... 26

INDEX OF APPENDICES

APPENDIX A - District Court’s Order &

Judgment Denying 28

U.S.C. § 2255 Relief

APPENDIX B - Second Circuit Order

Denying a Certificate of

Appealability

iii

III. TABLE OF

AUTHORITIES

Cases

Boria v. Keane,

99 F.3d 492 (2d Cir. 1996) ..................... 11

Henry v. Poole,

409 F.3d 48 (2d Cir. 2005) ................. 9, 13

Hill v. Lockhart,

474 U.S. 52 (1985) ....................... 10, 11, 17

Keys v. United States,

545 F.3d 644 (8th Cir. 2008) .................. 20

Lafler v. Cooper,

132 S.Ct. 1376 (2012) ............................. 10

Lindstadt v. Keane,

239 F. 3d 191 (2d Cir. 2001) .................. 13

Lockhart v. Fretwell,

506 U.S. 364 (1993) ................................ 14

Miller-El v. Cockrell,

537 US 322 (2003) .................................. 25

iii

Muniz v. United States,

360 F. Supp. 2d 574 (S.D.N.Y. 2005) ..... 16

Ouber v. Guarino,

293 F.3d 19 (1st Cir. 2002) .................... 14

Padilla v Kentucky,

559 U.S. 356 (2010) ........................... 11-12

Purdy v. United States,

208 F.3d 41 (2d Cir. 2000) ..................... 11

Riggs v. Fairman,

399 F 3d 1179 (9th Cir. 2005) ................ 13

Rosario v. Ercole,

601 F.3d 1 (2d Cir. 2010) .................... 9-10

Rosario v. Ercole,

617 F.3d 683 (2d Cir. 2010) ................... 10

Shaw v. United States,

137 S. Ct. 462 (2016) ......................... 15-16

Strickland v. Washington,

466 U.S. 668 (1984) .......................... 10, 13

United States v. Berryman,

322 Fed. Appx. 216 (3d Cir. 2009) ......... 14

United States v. Bowie,

198 F.3d 905 (D.C. Cir. 1999) ................ 14

United States v. Calabrese,

660 Fed. Appx. 97 (2d Cir. 2016) ........... 15

United States v. Rodriguez,

140 F.3d 163 (2d Cir. 1998) ................... 15

United States v. Vargas,

709 F. Supp. 2d 48 (D.D.C. 2010) .......... 14

Statutes

18 U.S.C. § 3553 ........................................... 8

28 U.S.C. § 1254 ........................................... 1

28 U.S.C. § 1254 .1 ....................................... 1

28 U.S.C. § 2253 ........................................... 3

28 U.S.C. § 2255 .................................. vi, 1, 2

Other

U.S. Const. Amend. VI ................................. 2

IV. PETITION FOR A WRIT OF CERTIORARI

Poppi Metaxas respectfully petitions for a

writ of certiorari to review the e Second Circuit

Court of Appeals judgment denying a Certificate of

Appealability (“COA”).

OPINIONS BELOW

The district court’s denial of Petitioner’s §

2255 Motion and the Second Circuit’s decision

denying a Certificate of Appealability are included

in the Appendix.

VI. JURISDICTION

The order of the court of appeals denying

Petitioner a COA was entered September 17, 2020.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).1

____________________________________

Petitioner’s term of supervised release

expired prior to the filing of this petition for writ

of certiorari. Although this Court has jurisdiction

under 28 U.S.C. § 1254(1), these 28 U.S.C. § 2255

proceedings now appear to be moot because

Petitioner is no longer “in custody” for § 2255

purposes. Because Petitioner is not able to

complete the appeals process tied to her § 2255

motion, a motion requesting this Court dismiss the

petition for writ of certiorari as moot, along with

instructions for the lower courts to do so as well

will be submitted.

VII. CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. Amend. VI

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the state and district wherein the

crime shall have been committed, which district

shall have been previously ascertained by law, and

to be informed of the nature and cause of the

accusation; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.

28 U.S.C. § 2255(a)

(a) 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 subject to collateral

attack, may move the court which imposed the

sentence to vacate, set aside or correct the

sentence.

28 U.S.C. § 2253(c)

(c)

(1) Unless a circuit justice or judge issues

a certificate of appealability, an appeal may

not be taken to the court of appeals from—

(A) the final order in a habeas corpus

proceeding in which the detention complained

of arises out of process issued by a State court;

(B) the final order in a proceeding under

section 2255.

(2) A certificate of appealability may issue

under paragraph (1) only if the applicant has

made a substantial showing of the denial of a

constitutional right.

(3) The certificate of appealability under

paragraph (1) shall indicate which specific

issue or issues satisfy the showing required by

paragraph (2).

VIII. STATEMENT OF THE CASE

Petitioner Poppi Metaxas is the former

president of Gateway Bank (“Gateway”), a

minority-owned thrift institution with its

headquarters in Oakland, California. Gateway’s

primary business involved “warehouse lending,”

i.e., providing financing to retail mortgage lenders.

The Indictment in this case arose from

Gateway’s difficulties following the economic

downturn of 2008. In the wake of the Great

Recession, the Office of Thrift Supervision (“OTS”)

became concerned about the volume of nonperforming loans and real estate owned assets,

which it described as “toxic assets,” on Gateway’s

books. As a result of meetings with OTS, Gateway

began looking for buyers of its non-performing

assets.

During February and March 2009, a series of

transactions, dubbed the “round trip” in the

Indictment against Metaxas, took place with

respect to the non-performing assets. Specifically,

Gateway made a $3.64 million loan to Ideal

Mortgage Bankers, Ltd. (“Ideal”), which was then

Gateway’s largest warehouse lending client. Ideal,

in turn, lent the $3.64 million to three other

corporations owned by the associates of its chief

strategist Michael Ashley (“the Purchasers”) via

promissory notes providing 6 percent interest over

a five-year term. The Purchasers then entered into

an agreement with Gateway to purchase the

assets. This money formed the bulk of the

Purchasers’ $3 million down payment to Gateway,

which represented 25 percent of the $15.3 million

purchase price. Six bulk sales transactions

followed which effectuated the sale of the assets.

As carefully documented in a recent report by

banking expert Joseph Anastasi in connection with

related civil litigation, Gateway’s agreement with

the Purchasers was carefully structured to avoid

any possibility of loss to Gateway. In particular,

Gateway did not transfer title to the assets at the

time of closing, resulting in the Purchasers “not

bear[ing] the risks or rewards associated with

actually owning these assets.”(Statement of

Gateway CFO Tim Green). “In summary, after

entering into the Troubled Asset Sale, Gateway

Bank continued to service the [assets] and . . . [pay]

the costs of servicing these assets.” (Green, supra).

The non-transfer of title appears to have been by

mutual

agreement

with

the

Purchasers

themselves refusing to take title as well as

Gateway declining to transfer it. (CFO Tim Green

Statement id.).

In addition to the down payment, the

Purchasers made approximately $468,752 in

payments to Gateway before defaulting. Ideal, too,

defaulted on its loan to Gateway due to a series of

events in late 2009 and early 2010 in which it was

sued with respect to abusive lending practices (in

which Ms. Metaxas was not alleged to be involved)

and ultimately ceased operations and lost its

license. The total amount paid by Ideal on the loan

was $164,543, and Gateway was able to collect

further assets totaling $1,809.970 via seizure of

funds in various Ideal accounts.

However, because Gateway Bank never

actually transferred title to the assets that were

ostensibly “sold,” there was nothing Gateway had

to do to regain title after the default. Gateway was

instead able to resell all the assets as if the sale to

the Purchasers had never happened, and to keep

the payments previously made by the Purchasers

and Ideal as well as the full proceeds of the new

sales. This resulted in Gateway receiving a total of

$6,586,649 in ultimate proceeds with respect to

the assets at issue.

Mr. Anastasi noted that, at the time of the

agreement with the Purchasers, Gateway had

received an offer from Waterfall Asset

Management, LLC (“Waterfall”) to purchase the

troubled assets for $5 million, which represented

the assets’ market value at the time. Consequently,

the proceeds ultimately realized by Gateway were

more than $2.0 million greater than if it had never

made the sale to the Purchasers and had accepted

the Waterfall offer instead. Had the sale to the

Purchasers never taken place, Gateway would

have continued to attempt to liquidate these assets

in the same manner that it actually did, resulting

in no loss from the ultimate disposition of the

assets in arm’s-length transactions with third

parties.

On March 31, 2014 some five years after the

asset sale — the Government lodged a three-count

Indictment against petitioner (Doc. 1) charging

conspiracy to commit bank fraud, bank fraud, and

perjury. It was not alleged in the Indictment that

the “round trip” transaction was facially illegal.

Instead, the Government alleged that Ms.

Metaxas defrauded her own board by not

disclosing to them that the transaction was a

“round trip” and that the loan to Ideal was related

to the funds used by the Purchasers to make the

$3.85 million down payment. Notably, in a recent

deposition taken during related civil litigation, the

then-board chairman, Laurence Wang, testified

that he did not have the opinion that Ms. Metaxas

misled the board regarding the true nature of the

transactions.

The perjury charge related to testimony

given by Ms. Metaxas to the OTS on or about

October 21, 2009, in which she stated that “one of

the things that we did not do is verify source of

down-payment [sic].”

Ms. Metaxas retained Cooley, LLP (“Cooley”),

which had represented her in connection with the

OTS investigation, to represent her on the instant

charges. A total of seven (7) attorneys from

Cooley’s San Francisco offices were involved in the

case, with the lead counsel being Laura Grossfield

Birger, Esq., of the New York office.

On April 30, 2015, Ms. Metaxas entered into

a plea agreement with the Government. . Under

the agreement, petitioner agreed to plead guilty to

Count One of the Indictment charging conspiracy

to commit bank fraud. The parties stipulated to a

Sentencing Guideline loss calculation of

$1,840,000, but petitioner “reserve[d] the right to

argue for a downward departure under the

Guidelines or lesser sentence pursuant to 18

U.S.C. § 3553 based on the claim that the loss

amount substantially overstates the seriousness of

the offense.”

The agreement contained a waiver of the

right to appeal and/or collaterally attack the

conviction and sentence, but it further provided

that “[nlothing in the foregoing waiver . . . shall

preclude the defendant from raising a claim of

ineffective assistance of counsel in an appropriate

forum.” On the same date, petitioner entered a

plea of guilty before this Court.

Subsequently, counsel did file a sentencing

memorandum (Doc. 59) which, inter alia, argued

persuasively that Gateway had sustained no loss

from the troubled asset sale. On December 2, 2015,

the district court imposed a below-Guideline

sentence of 18 months’ imprisonment followed by

three years of supervised release.

On May 16, 2016, judgment was entered

against Ms. Metaxas (Doc. 81). No notice of appeal

was filed from the judgment; accordingly,

Petitioner’s conviction became final 14 days later

on May 30, 2016.

IX. REASONS

PETITION

FOR

GRANTING

THE

PETITIONER

ENTITLED

VACATUR OF HER PLEA AND

SENTENCE ON THE GROUND OF

INEFFECTIVE

ASSISTANCE

COUNSEL

Petitioner submits that she did not enter a

knowing, voluntary and intelligent plea in this

case because she was misadvised by her attorneys,

and that had she been properly advised, she would

have declined to plead guilty and would have

contested her guilt at trial. It is acknowledged that

counsel and the other attorneys who worked on the

case performed admirably in many aspects,

especially with respect to sentencing. But it is well

settled that counsel’s creditable performance in

certain areas does not excuse its errors in others,

and that even a single error that rises to the

requisite level of prejudice results in ineffective

assistance even if counsel’s representation was

“competent in all other respects.” Henry v. Poole,

409 F.3d 48, 61 (2d Cir. 2005); see also Rosario v.

Ercole, 601 F.3d 1, 18, 126 (2d Cir. 2010)

(“look[ing] past a prejudicial error as long as

counsel conducted himself in a way that bespoke

of general competency throughout the trial . . .

would produce an absurd result inconsistent with

. . . the mandates of Strickland ”); Rosario v.

Ercole, 617 F.3d 683, 685, 687-88 (2d Cir. 2010).

Here, as set forth below, Ms. Metaxas’

counsel did err in failing to inform her that, under

Second Circuit law at the time of her plea and

sentencing, she had a complete defense to bank

fraud, and in failing to develop exculpatory

evidence and/or inform her accurately about the

strength of the evidence they had developed as well

as the strengths and weaknesses of the

Government’s case.

Ineffective Assistance Standard.

It is beyond doubt that the Sixth Amendment

entitles criminal defendants the right to effective

assistance of counsel at all critical stages of the

proceedings. See Strickland v. Washington, 466

U.S. 668, 686 (1984). Under Strickland and its

progeny, a defendant who claims that he or she

was denied the effective assistance of counsel must

show two things: (1) counsel performed deficiently

and (2) prejudice flowing from the deficient

performance.

The critical stages at which effective

assistance is constitutionally mandated include

the plea process. See Hill v. Lockhart, 474 U.S. 52,

56-59 (1985); see also Lafler v. Cooper, 132 S.Ct.

1376, 1384 (2012) (“During plea negotiations

defendants are 'entitled to the effective assistance

of competent counsel”). “Where, as here, a

defendant is represented by counsel during the

plea process and enters his plea upon the advice of

counsel, the voluntariness of the plea depends on

whether counsel’s advice was within the range of

competence demanded of attorneys in criminal

cases.” Hill, 474 U.S. at 56.

The accepted professional standards for

defense counsel during the pre-plea stage the

‘range of competence” referred to in Hill — requires

that "[a]s part of [his or her] advice, counsel must

communicate to the defendant the terms of the

plea offer, and should usually inform the

defendant of the strengths and weaknesses of the

case against him, as well as the alternative

sentences to which he will most likely be exposed."

Purdy v. United States, 208 F.3d 41, 45 (2d Cir.

2000). It is counsel’s duty to make “an independent

examination of the facts, circumstances, pleadings

and laws involved and then ... offer his informed

opinion as to what plea should be entered." Boria

v. Keane, 99 F.3d 492, 497 (2d Cir. 1996). In

addition, counsel should inform the defendant of

possible defenses that can be invoked against the

charges in the indictment. See Hill, 474 U.S. at 5960.

Notably, Strickland and its progeny have

indicated that the ABA Criminal Justice

Standards for the Defense Function are relevant

to whether an attorney’s conduct falls within

acceptable professional norms. See, e.g., Padilla v

Kentucky, 559 U.S. 356, 367 (2010) (discussing

ABA standards in connection with effective

assistance during plea process for non- citizen

defendants).

These standards provide, inter alia:

Defense counsel should ensure that the client

understands any proposed disposition agreement,

including its direct and possible collateral

consequences.

Defense counsel should not recommend to a

defendant acceptance of’ a disposition without

appropriate investigation. Before accepting or

advising a disposition, defense counsel should

request that the prosecution disclose any

information that tends to negate guilt, mitigates

the offense or is likely to reduce punishment.

Defense counsel may make a recommendation to

the client regarding disposition proposals, but

should not unduly pressure the client to make any

particular decision. See Defense Function

Standard 4-6.2(c)-(e) (emphasis added).

Further,

defense counsel should consider the individual

circumstances of the case and of the client, and

should not recommend to a client acceptance of a

disposition offer unless and until appropriate

investigation and study of the matter has been

completed. Such study should include discussion

with the client and an analysis of relevant law, the

prosecution’s evidence, and potential dispositions

and relevant collateral consequences.

Standard 4-6.1(b).

The second prong of Strickland, prejudice, is

satisfied where there is a “reasonable probability”

that “counsel’s errors . . . ‘undermine[d] the

confidence in the outcome”’ of the proceeding.

Lindstadt v. Keane, 239 F. 3d 191, 204 (2d Cir.

2001), quoting Strickland, 466 U.S at 694. In the

plea context, this means that the "defendant must

show the outcome of the plea process would have

been different with competent advice." Lafler, 132

S.Ct at 1354.

However, to satisfy the prejudice standard, a

defendant need not show that counsel’s deficient

conduct more likely than not altered the outcome

in the case. Henry v. Poole. 409 F. 3d 48, 63 (2d Cir.

2005) (quoting Strickland, 466 U.S. at 693

(emphasis added). Moreover, “[the result of a

proceeding can be rendered unreliable, and hence

the proceeding itself unfair, even if the errors of

counsel cannot be shown by a preponderance of the

evidence to have determined the outcome.”' ld. at

64 (quoting Strickland 466 U.S. at 694 (emphasis

added).

Notably, a reasonable probability is “a fairly

low threshold.” Riggs v. Fairman, 399 F 3d 1179

(9th Cir. 2005). In particular, the reasonable

probability standard does not require that

prejudice be demonstrated by a preponderance of

the evidence. Kyles v. Whitley, 514 U.S. 419, 434

(1995). Courts have accordingly held that a

reasonable probability may be less than fifty

percent.” Ouber v. Guarino, 293 F.3d 19, 26 (1st

Cir. 2002); United States v. Bowie, 198 F.3d 905,

908-09 (D.C. Cir. 1999) (same); United States v.

Vargas, 709 F. Supp. 2d 48, 50 (D.D.C. 2010)

(same); United States v. Nelson, 921 F. Supp. 105,

120 (E.D.N.Y. 1996) (finding that 33 percent

chance amounted to a reasonable probability).

Indeed, it has been held that a reasonable

probability exists whenever the chances of a

different outcome are “better than negligible,”

United States ex. rel. Hampton v. Leibach, 347

F.3d 219, 246 (7th Cir. 2003), or put another way,

if they are “more than mere speculation.” United

States v. Berryman, 322 Fed. Appx. 216, 222 (3d

Cir. 2009).

Thus, a defendant need not show that she

certainly would have gone to trial and/or been

acquitted had her counsel not erred, but only

that her counsel’s performance undermines

confidence in the outcome when considered as part

of the entire case. Moreover, the prejudice prong of

Strickland, as opposed to the deficientrepresentation prong, may be adjudicated with the

benefit of hindsight. Lockhart v. Fretwell, 506 U.S.

364, 372 (1993).

Petitioner

Received

Ineffective

Assistance During the Plea Process.

Under the above standard, petitioner

submits that her plea was the result of ineffective

assistance by Cooley in several respects. The

foremost of these is that Cooley did not inform her

that, under Second Circuit law at the time, she had

a complete defense to the bank fraud charge

because the ostensible round trip” transaction was

carefully structured to prevent not only loss to

Gateway but even the potential for loss.

At the time of the plea — and at the time that

any trial would have been held— the elements of

bank fraud in the Second Circuit were as defined

in United States v. Rodriguez, 140 F.3d 163 (2d Cir.

1998). In Rodriguez, the Second Circuit held that

no proof of actual loss was required to sustain a

bank fraud conviction, but that nevertheless, more

than deception alone was necessary; instead, there

must be “intent to victimize the institution by

exposing it to actual or potential loss.” Id. at 167

(emphasis added). Where “there was no evidence

presented at trial that Rodriguez intended to

victimize Chemical Bank by exposing it to an

actual or potential loss,” reversal was required.

United States v. Calabrese, 660 Fed. Appx. 97, 102

(2d Cir. 2016) (describing elements of bank fraud

as stated in Rodriguez).

Concededly, on December 12, 2016, this

Court held in Shaw v. United States, 137 S. Ct.

462, 464 (2016), that the bank fraud statute

“demands neither a showing that the bank

suffered ultimate financial loss nor a showing that

the defendant intended to cause such loss.” The

Shaw decision did not decide, however, whether an

intent to at least expose a bank to potential loss

was required, so it is debatable whether Shaw

actually overruled Rodriguez and its progeny. But

even if Shaw did overrule Rodriguez, the fact

remains that under well-settled precedent,

ineffective assistance is evaluated based on the

law as it existed at the time of the representation

rather than any changes to the law that might

occur at a later date. See, e.g., Duarte v. United

States, 137 Fed. Appx. 423 (2005) (evaluating

ineffective assistance “[g]iven the state of the law

at the time” of counsel’s alleged deficiency”);

Muniz v. United States, 360 F. Supp. 2d 574, 580

(S.D.N.Y. 2005) (weighing claim of ineffective

assistance at sentencing “[u]nder the governing

law at the time”).

At the time of Ms. Metaxas’ guilty plea trial

was soon to begin, with a pretrial conference set

for May 12, 2015 (see Doc. 42). The trial would

have been held under Rodriguez and the jurors

would have been instructed under Rodriguez, and

thus, the jury would perforce have had to acquit

Ms. Metaxas if it determined that she did not

intend to expose the bank to potential loss. Indeed,

it is likely that even an appeal, in the event that

Ms. Metaxas were convicted, would have been

litigated and decided under Rodriguez.

To be sure, under Hill an attorney’s failure

to advise a defendant concerning a complete

defense prior to a guilty plea constitutes

ineffective assistance only if such defense would

have had a reasonable probability of succeeding at

trial. See Hill, 474 U.S. at 59-60. All this means,

however, is that there is a reasonable probability

that a jury would have found reasonable doubt,

and such a probability — and indeed far more —

plainly exists here. As noted above, the “sale” of

the troubled assets was highly unusual in that

Gateway did not transfer title at the time of

closing, and indeed kept title throughout the

period between the closing and the Purchasers’

default. This unusual condition of sale could have

been proposed and implemented for only one

reason: to protect Gateway from even the potential

of loss by allowing it. In the event of default, to resell the assets as if the sale to the Purchasers had

never occurred. Indeed, Gateway was doubly

protected because, in the event of default, it could

not only re-sell the assets but keep the payments

that had been made by the Purchasers and Ideal

prior to defaulting.

In fact, that is precisely what happened.

When the Purchasers and Ideal defaulted,

Gateway did not have to take any steps to regain

title to the assets, because it had never transferred

title in the first place and thus still owned them. It

was able to put the assets on the market as if the

prior sale had never happened, and between the

proceeds of the re-sale and the proceeds it retained

from the Purchasers’ pre-default payments,

Gateway in fact realized $2.0 million more than it

would have obtained in proceeds if it had accepted

the alternative offer from Waterfall. In other

words, the retention of title worked exactly as it

was supposed to, and shielded Gateway from even

the potential that it might have lost money on the

sale.

Had a jury been presented with the facts and

circumstances of the sale, there is far more than a

reasonable probability that it would have found,

as required under Rodriquez, that Ms. Metaxas

did not intend to expose Gateway to either actual

or potential loss. Such a finding would be even

more likely given that, as the president of

Gateway, Ms. Metaxas had no motive to defraud

her own bank. This is not a case where a bank

president diverted the bank’s funds to her personal

use; instead, it is undisputed that Ms. Metaxas

never sought or obtained a dime over and above

her own salary. Moreover, in addition to being the

president, Ms. Metaxas was also a significant

shareholder and, just 30 days prior to the alleged

fraud, she had borrowed $500,000 against her

house and made a capital contribution to Gateway

with the loan proceeds. What possible reason

would a bank president have to expose her own

bank, in which she was a shareholder, to financial

loss without any corresponding prospect of gain to

herself. A jury asked this question, and confronted

with the way the transaction was structured to

protect Gateway from even the possibility of loss,

could only answer it in one way, and accordingly, it

was ineffective assistance for Cooley not to advise

Ms. Metaxas of this complete defense prior to her

entering her plea.

Indeed, Petitioner submits that the

ineffective assistance in this regard was so

egregious that it requires dismissal of the bank

fraud and bank-fraud conspiracy charges rather

than merely a new trial. A remedy for ineffective

assistance should restore the movant to the

position she would have been in had the ineffective

assistance never occurred.

To be sure, Rodriguez would have provided

a defense only to Counts One and Two of the

indictment and not to Count Three charging

perjury. However, it was already known that she

had a good defense to that charge, for the reasons

stated in her motion to dismiss (Doc. 36). Her

statement that Gateway didn’t verify the source

of the Purchasers’ funding is not tantamount to

a denial of knowledge concerning that source,

and was indeed literally truthful given that

Gateway did not conduct a verification process

concerning the source of funding. Thus, there is

a reasonable probability that Ms. Metaxas would

have secured an acquittal had she gone to trial

on the perjury charge. Had she known that she

had a complete defense to the bank fraud

charges as well, she would have gone to trial

and defended herself against the entirety of the

indictment. See, Keys v. United States, 545 F.3d

644, 648 (8th Cir. 2008) (remedy should “restore[]

the defendant to the position he would havoc

occupied had he been competently counseled”); see

generally Lafler, 566 U.S. at 170-74 (discussing

remedies for ineffective assistance in the plea

process and observing that the remedy should

“neutralize the taint of the constitutional

violation”).

Now because of Shaw Ms. Metaxas can never

be put in the position she was in had she not

received ineffective assistance from Cooley. Even

if her plea is vacated at this time, she will not be

able to assert a trial defense under Rodriquez as

she would have been able to do in 2015. Given the

overwhelming likelihood that such a defense

would have succeeded, her loss of the defense due

to a subsequent change in decisional law is

irreparable. This Court should accordingly find,

not only that Ms. Metaxas’ plea should be vacated,

but that Counts One and Two of the indictment

should be dismissed and a trial scheduled on

Count Three only.

Additionally, as a separate and independent

ground of ineffective assistance of counsel, Ms.

Metaxas contends that Cooley failed to properly

inform her of the strengths and weaknesses of the

Government’s case as well as the strengths and

weaknesses of her own case. In particular, counsel

overstated the strength of the Government’s proof,

failed to discover certain exculpatory evidence that

could have supported Ms. Metaxas’ defense, and

underestimated the strength of the exculpatory

evidence that it did develop.

At the outset of the case, the Government’s

claim that petitioner intended to defraud her own

bank relied strongly on two sets of documents.

First, it claimed that Ms. Metaxas entered into an

alleged

“confidential

understanding”

with

cooperating witness Ashley (the principal of Ideal)

promising favorable treatment to Ideal in exchange

for services rendered in regard to the nonperforming assets. Between the original draft of

the March 26, 2009 Gateway board meeting at

which the asset sale and the Ideal loan were

approved and a subsequent final draft, claiming

that these differences were proof that Ms. Metaxas

had a guilty conscience and was attempting to

cover her tracks.

However, the IRS conducted a forensic

analysis of the “confidential understanding” which

proved that it was a forgery. In particular, Ms.

Metaxas’ fingerprints appeared nowhere on the

document while the fingerprints of Robert

Savitsky, Esq., an attorney for Ashley who

subsequently pled guilty before Judge Feuerstein

to inter alia forging signatures, were all over it.

Moreover, the IRS forensic examiner could not

conclude that Ms. Metaxas’ purported signature

was in fact written by her, and concluded instead

that it was likely the product of Mr. Savitsky

attempting to imitate her writing style. And, just

as notably, despite threats of litigation between

Ideal and Gateway during September 2009, at no

time did Ideal’s attorneys ever allege a breach of

this “understanding” which they would have done

had it in fact existed.

Likewise, the original draft of the March 26,

2009 board meeting was prepared by an

inexperienced individual and contained errors.

The corrected draft was circulated to the Board for

approval in early April 2009 and was at the April

board meeting. While the Government still

contended, as late as the time of sentencing, that

Ms. Metaxas had doctored the March 26 minutes

to cover her tracks, what are the odds that the

entire board, many of whom were attorneys, CPAs

or both, and at least one of whom was an

experienced auditor, would have approved the

revisions so soon after the meeting and without a

single murmur if this were so? Any jury would

understand that, if the final draft of the minutes

had in fact been doctored and if the Board had in

fact been deceived about the relationship between

the Ideal loan and the troubled-asset purchase

money (which, though not explicitly stated in the

final draft, is strongly suggested), then at least one

of the directors would have made a fuss.

The existence of this exculpatory evidence

was known to counsel, but nevertheless, counsel

continued to minimize its significance and

characterize

the

Government’s

case

overwhelming. In fact, it was anything but.

Without the documents in question, the

Government’s case against Ms. Metaxas would

have consisted primarily of the testimony of

Ashley, who was the only one who could testify to

her alleged knowledge of the 'round trip” (the

Board members might have testified that they

were not informed of the round trip but not that

Ms. Metaxas knew of it and/or had helped set it

up), and Mr. Ashley was a very unreliable witness.

His unreliability stemmed not merely from the fact

that he was a cooperator, but from (a) the fact that

he had initially told the Government that Ms.

Metaxas was not aware of the round trip, and (b)

the fact that his associate, Robert Savitsky, had

probably created a document that falsely

implicated Ms. Metaxas. A jury would certainly

have understood that Mr. Savitsky would not have

created such a document on behalf of Ideal without

checking with Mr. Ashley. and therefore, would

have understood that Mr. Ashley’s testimony was

part and parcel of a scheme to gain favorable

treatment by blaming Ms. Metaxas for his own

crimes.

Furthermore, there is additional exculpatory

evidence that Cooley could have developed,

including evidence that the Gateway Board was

strongly pushing for both the Ideal loan and asset

sale to be closed and the fact that the Executive

Loan Committee of the Board had “extensive

discussions” regarding both. A board consisting of

CPAs, attorneys and auditors could hardly have

failed to grasp the significance of a loan being

granted in tandem with a sale that called for a

down payment of a similar amount which

included, among the Purchasers, entities owned

by an individual whose been developed through

CFO Tim Green and directors Jessica Wang, and

James E. Baxter II, as well as through former

Gateway employee Eileen Doherty who could have

provided evidence concerning the approval of the

revised set of minutes and the Board’s knowledge

of the relationship between the Ideal loan and the

asset sale. Moreover, former Board Chair

Laurence Wong testified that he did not believe

Ms. Metaxas misled the Board, and there is no

reason to believe that he would have stated

differently had Cooley held discussions with him

before the plea.

Accordingly, this Court should find that,

however commendable Cooley’s representation

was in other respects, it failed in its duty to

discover and develop exculpatory evidence and to

accurately inform Ms. Metaxas of the strengths

and weaknesses of both the Government’s case

and her own. Simply put, Cooley treated this case

from its inception as one that was likely to result

in a guilty plea and advised petitioner accordingly.

Had petitioner been properly advised, she would

not have pled guilty. Hence, this Court should find

that she received ineffective assistance and that

her plea must be vacated.

Here, petitioner’s allegations are of precisely

the kind referenced in Pham, Chang and Armienti,

i.e., facially valid claims that hinge on off-the-

record interactions with trial counsel. The case

docket does not permit the Court to determine,

much less “conclusively” determine, that

petitioner is not entitled to relief.

THE DISTRICT COURT AND COURT

OF APPEALS

ERRED

NOT

GRANTING COA

This claim is easily resolved. As this Court

has opined:

Under the controlling standard, a petitioner must

sho[w] that reasonable jurists could debate

whether (or, for that matter, agree that) the

petition should have been resolved in a different

manner or that the issues presented were

adequate to deserve encouragement to proceed

further. Miller-El v. Cockrell, 537 US 322, 336

(2003) (citations omitted, internal quotations

omitted).

“Reasonable jurist” could have resolved this

matter in a different matter, for example, by

applying Rodriguez differently. In addition,

considering the tension that seemingly exists

between Rodriguez and this Court’s opinion in

Shaw, “the issues presented were adequate to

deserve encouragement to proceed further.” Id.

CONCLUSION

WHEREFORE, Poppi Metaxas respectfully

asks this Court to grant this Petition for Writ of

Certiorari, vacate the denial of a COA by the court

of appeals and district court and remand this case

to the Second Circuit for further proceedings.

Respectfully submitted,

/s/Brandon Sample