Petition for Writ of Certiorari — Artur Gilowski, Petitioner v. United States

SHORT APPENDIX

Appendix A

Fifth Circuit Court of Appeals

Judgment and Opinion

Case: 24-10693

Document: 31-1

Page: 1

Date Filed: 04/04/2025

®nitel) States: Court of Appeals!

for tlje jfiftlj Circuit

United States Court of Appeals

Fifth Circuit

FILED

No. 24-10693

February 10, 2025

Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Ap Settee,

versus

Artur Gilowski,

Defendant—Appellant.

Application for Certificate of Appealability

the United States District Court

for the Northern District of Texas

USDC No. 3:24-CV-307

USDC No. 3:19-CR-51-20

ORDER:

Artur Gilowski, federal prisoner # 54577-424, moves for a certificate

of appealability (COA) to appeal the district court’s denial of his 28 L .S.C. N

§ 2255 motion in which he attacked his convictions for conspiracy to commit

interstate transportation of stolen property and conspiracy to commit mail

fraud. He argues that his trial counsel was ineffective for not requesting a

jury instruction pertaining to the defense that there was only a buyer-seller

relationship among him and his alleged coconspirators.

Case: 24-10693

Document: 31-1

Page: 2

Date Filed: 04/04/2025

No. 24-10693

A COA may be issued “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see

Miller-El v. Cockrell, 537 U.S. 322,336 (2003). If the district court’s denial is

on the merits, as in this case, the prisoner “must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong. ” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Gilowski has not made the required showing. See id. Accordingly, his

motion for a COA is DENIED.

Edith H.

United States Circuit Judge

z^z

Certified as a true copy and issued

as the mandate on Apr C4, 2025

A,,est: dtX w. Cuhu

Clerk, U.S. Court of Appeal, Fifth Circuit

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APPENDIX B

District Court Judgment and Opinion

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ARTUR GILOWSKI,

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NO. 3:24-CV-307-M

(NO. 3:19-CR-0451-M-20)

Respondent.

FINAL JUDGMENT

Consistent with the memorandum opinion and order signed this date, the motion of Artur

Gilowski under 28 U.S.C. § 2255 is DENIED.

SO ORDERED on this 10th day of June, 2024.

BARA M. G. EYNN Q

IOR UNITED STATES DISTRICT JUDGE

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T

STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ARTUR GILOWSKI,

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Movant,

UNITED STATES OF AMERICA,

Respondent

NO. 3:24-CV-307-M

(NO. 3:19-CR-‘»S1-M-2<D

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MEMORANDUM OPINION AND ORDER

Came on for consideration die motion of Artur Gilowski under 28 U.S.C. § 2255 to vacate,

set aside, or correct sentence by a person in federal custody. The Court, having considered the

motion, the response, the reply, the record, and applicable authorities, concludes that the motion

must be DENIED.

I.

BACKGROUND

On June 22,2021, Movant was named in a two-count superseding indictment charging him

in count one with conspiracy to commit interstate transportation of stolen property, in violation of

18 U.S.C. § 371, and in count two with conspiracy to commit mail fraud, in violation of 18 U.S.C.

§ 1349. CR ECF No.1 188. Movant waived arraignment and entered a plea of not guilty, CR ECF

No. 218, which the Court accepted. CR ECF No. 219. The case was tried to a jury, which convicted

Movant on both counts. CR ECF No. 324.

The probation officer prepared the presentence report (“PSR”), which reflected that

Movant’s base offense level was 31. CR ECF No. 369, U 54. He received a four-level adjustment

' The “CR ECF No.

reference is to die number of the item on die docket m the underlying cnnunal case,

3.19-CR-451-M.

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for his role in the offense. Id.

57. Following objections to the PSR. the probation officer

determined that Movant should receive an additional two-level adjustment for obstruction of

justice because Movant gave false testimony at trial. CR ECF No. 393. Based on a

level of 37 and a criminal history category of I, Movant s guideline impris

ntence for count two was 20 -ears, so the

to 262 months; however, the statutory maximum sentence

guiddip. imprisonment range beram. 2.0 »

„dicing bearing. Ke Court consider Movan.’s objections to the enhancements

and ousted them, finding Uta. Movant testified Kiseiy a. .rial and Kat the aggravating role

enhancement was proper. CR ECF No. 401 at 21-22. The Court detetmined that the loss amount

should be set at Id million dollar; making the guideline imprisonment range 168 to 210 months.

Id at 24. In imposing the sentence, the Court noted that the case concerned a “very broad, far-

ranging scheme in which [Movant] was substantially involved and the most involved of any of the

defendants.” Id. at 32. Specifically,

I believe that the juty was fully justified in concluding that he engaged in a

substantial conspiracy to commit interstate transportation of stolen property and to

commit mail fraud.

I believe that the —that there is a substantial loss in this case but that the

Government was hampered in proving transaction by transaction becaui of the

vast scope of the conspiracy and the number of conspirators.

I find that [Movant] testified falsely, as I have already found, but I also find

that his testimony was not credible with respect to his role in these conspiracies.

I find, from my observations of [Movant] during trial, that he was very

involved in his own defense. And I find it very convenient that at this juncture he

is arguing that his own lawyers were ineffective in representing him which I am not

crediting.

I conclude, as the jury did, that [Movant] was either the head or right near

the top of a substantial theft ring comprised principally of Polish nationals who

were stealing goods all over the country, often at big box stores, and [Movant] was

reselling those products on the Internet

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id at 33-34. The Court

sentenced Movant to a term of imprisonment of 60 month® m to count one

°fthc suPefseding indictment and a term of imprisonment of 180 months as to count two, to fun

°°ncuirrent|y. CR ECF No. 399. Movant appealed. CR ECF No. 402. The United States Court of

Appeals for the Fifth Circuit affirmed, noting that Movant'» conviction “stems from high-level

involvement in a crime ring which sent group, of thieves to national retailer, to steal small

electronics that a smaller number of individuals in Chicago would then resell on the internet

United Stales v. Giiowski, No. 22-10887,2023 WL 4837879 (5th Cir. July 28,2023). The appellate

court reviewed the sentencing enhancements and determined that they were properly applied and

also determined that there was sufficient evidence to support the convictions.

II-

GROUND OF THE MOTION

Movant alleges that he received ineffective assistance due to counsel’s fail x to request a

jury instruction on a buyer seller relationship. ECF No.2 2 at 4?

HL

APPLICABLE LEGAL STANDARDS

A. 28 U.S.C. § 2255

After conviction and exhaustion, or waiver, of any right to appeal, courts are entitled to

P^ume that a defendant stands faidy and finally convicted. United States v. Frady, 456 U.S. 152,

wwm

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9}7 F.2d 228. 231.32 (5th Cir 1M1) a

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system and is used because the ^ewSn n.2 * ff nght1.p°rtion of the document the Cour, j electronic filing

typewritten page numbers on the form are not the actual page numbers ofthe document

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ithout showing both “cause” for his procedural default and “actual prejudice” resulting from the

errors. Shaid, 937 F.2d at 232.

Section 2255 does not offer recourse to all who suffer trial errors. It is rescrv

tt Ansgressions of constitutional rights and other narrow injuries that could no h

direct appeal and would, if condoned, result in a complete miscarriage j

Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A Sept 1981). In other words, a writ of abeas corp

will not be allowed to do service for an appeal. Davis v. United Sates, 417 U.S. 333, 345 (19 ).

United Sum v. Piacente, 81 F.3d 555, 558 (Sth Cir. 1996). Further, if issued -are raised and

considered on direct appeal, a defendant is thereafter precluded from urging the same issues ’

later collateral attack." Moore v. United States, 598 F.2d 439,441 (5th Cir. 1979) (citing Buckelew

v. United States, 575 F.2d 515, 517-18 (5th Cir. 1978)).

B. Ineffective Assistance of Counsel

To prevail on an ineffective assistance of counsel claim, movant must show that (1)

counsel’s performance fell below an objective standard of reasonableness and (2) there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings

would have been different. Strickland v. Washington, 466 U.S. 668,687 (1984); see also Missouri

v. Frye, 566 U.S. 133, 147 (2012). “[A] court need not determine whether counsel’s performance

was deficient before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies."Strickland, 466 U.S. at 697; see also United States v. Stewart, 207 F.3d 750, 751

(5th Cir. 2000). The likelihood of a different result must be substantial, not just conceivable,”

Harrington v. Richter, 562 U.S. 86,112 (2011), and a movant must prove that counsel’s errors “so

undermined the proper functioning of the adversarial process that the trial cannot be relied on as

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having produced a just result.” Cullen v. Pinholster, 563 U;S. 170,189 (2011) (quoting Strickland,

6 U.S. at 686). Judicial scrutiny of this type ofclaim must be highly deferential and the defendant

must overcome a strong presumption that his counsel’s conduct fells within die wide range of

reasonable professional assistance. Strickland, 466 U.S. at 689. Simply making conclusory

allegations of deficient performance and prejudice is not sufficient to meet the Strickland

Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000).

IV.

ANALYSIS

bi support of the sole ground of his motion, Movant argues that counsel was ineffective in

failing to request a special jury instruction about the “buyer-seller relationship.” ECF No. 3 at 5.

He says that the majority of circuits have found that if the evidence was such that a reasonable

juror could have found that the defendant was merely a buyer from a conspiracy, the failure to give

such an instruction is error. Id He rites only cases from the Seventh Circuit and one Fifth Circuit

case that does not appear to be pertinent. See United States v. Wyly, 193 F.3d 289 (5th Cir. 1999).

Under Fifth Circuit precedent, an adequate instruction on the law of conspiracy precludes

the necessity of giving a buyer-seller instruction even when the evidence supports the defense.

Unta SUM, V.

491 F.3d 237.241 (5,h Cir. 2007); U„l,ed State v. Asibor. 109 F 3d 1023

etemOTB „crasa„. „

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would result.’” Mdfa 401 pidgin a~> ,

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qUOt,ng United States v. Maseratti, 1 F.3d 330,336 (5th

C' 1993)). Here, the Court used the F.m, r>- ■

Ah Circuit pattern jury charge and instructions for

conspiracy. CR ECF No. 3233. Where

u

Where th.

the charge

tracks the Fifth Circuit Pattern Jury Instruction

W ofcolBpjracy, , mo0.on to

ob

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has been correctly stated. Mata, 491 F.3dat242;^/<fri</ge v. UnitedStates, No. MO-.12-CV-00015,

2014 WL 12819625, at *7 (W.D. Tex. May 1,2014); UnitedStates v. Johnson, No. 08-1434,2011

WL 4443309, at *11 (W.D. Tex. Sept. 22, 2011). Thus, counsel cannot have been meffecti

v- i

167 F 3d 889, 893 (5th Cir. 1999). And,

failing to raise a frivolous issue. United States v. Kinder,

in any event, given that the evidence supported the jury’s finding, Movant cannot show, an

not shown, prejudice.

V.

CONCLUSION

For the reasons discussed herein, the Court DENIES the relief sought in the motion.

Further, pursuant to 28 U.S.C. § 2253(c), for the reasons discussed herein, a certificate of

appealability is DENIED.

SO ORDERED on this 10J1 day of June, 2024.

AR4M.G.

NN

or united States district judge

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