United States v. Fareri, Criminal No. 2009-0054

In Sept. 2010 Anthony Fareri pleaded guilty to mail fraud; in Oct. 2011 he was sentenced to 105 months, three years supervised release, and ordered to pay restitution. He appealed.
On direct appeal the D.C. Circuit affirmed a vulnerable-victim enhancement, remanded ineffective-assistance claims to the district court, and remanded to correct restitution allocations. United States v. Fareri controlled the remand.
On remand Fareri filed a §2255 motion alleging multiple ineffective-assistance theories (including failing to investigate loss, failing to credit victim payments, and counsel’s handling of a consent forfeiture order) and a Brady claim; the district court held an evidentiary hearing and denied relief while adjusting restitution allocations per the remand.
Fareri appealed the denial of his §2255 motion and also sought to appeal an ineffective-assistance claim related to the consent forfeiture in his plea agreement; the D.C. Circuit referred the certificate-of-appealability determination to the district court.
The district court concluded that, although a COA technically was not required because the issue arises from the direct appeal, it would issue a certificate out of caution given the case’s unusual posture and because reasonable jurists could disagree that counsel was ineffective concerning the forfeiture consent order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a certificate of appealability (COA) is required for appeal of forfeiture-related ineffective-assistance claim	Fareri contends he raised the forfeiture-related IAC claim on direct appeal and seeks appellate review	Government agrees a COA is not required but does not oppose issuing one out of caution	Court: COA not required but will grant one out of caution given the procedural posture
Whether counsel was ineffective regarding the consent forfeiture agreement	Fareri: counsel failed to investigate forfeiture law, did not request government withdraw forfeiture allegation, and failed to seek offset to avoid double recovery	Government: court previously found Fareri did not meet Strickland’s deficiency and prejudice prongs	Court: Although it found Fareri failed to meet Strickland, reasonable jurists could disagree; substantial showing made, COA granted

Strickland v. Washington, 466 U.S. 668 (1984) (establishes two-part test for ineffective assistance of counsel)
Barefoot v. Estelle, 463 U.S. 880 (1983) (standards for making a substantial showing of a constitutional violation)
United States v. Mitchell, 216 F.3d 1126 (D.C. Cir. 2000) (district court must specify issues satisfying COA standard)
United States v. Brinson-Scott, 714 F.3d 616 (D.C. Cir. 2013) (discusses difficulty of meeting Strickland standard)
Padilla v. Kentucky, 559 U.S. 356 (2010) (addresses ineffective-assistance principles)
United States v. Fareri, 712 F.3d 1 (D.C. Cir. 2013) (direct-appeal decision remanding ineffective-assistance and restitution allocation issues)