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United States v. Sulik

United States District Court, E.D. Kentucky, Central Division, Lexington

January 16, 2020

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
SCOTT W. SULIK, Defendant/Movant.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves, Chief Judge.

         Defendant Scott Sulik pleaded guilty to one count of cyberstalking in violation of 18 U.S.C. § 2261A(2) and was sentenced to 48 months' imprisonment. The United States Court of Appeals for the Sixth Circuit affirmed Sulik's sentence on appeal. United States v. Sulik, 929 F.3d 335 (6th Cir. 2019). Sulik has now filed a motion to vacate, correct, or set aside his sentence under 28 U.S.C. § 2255 based on the argument that his attorney was constitutionally ineffective. [Record No. 46] The motion will be denied because Sulik has not established that counsel's performance fell below an objective standard of reasonableness or that he was prejudiced by his attorney's performance.

         I.

         On February 22, 2018, a federal grand jury in Lexington, Kentucky indicted Sulik on one count of cyberstalking in violation of 18 U.S.C. § 2261A(2), and one count of being a fugitive from justice in possession of a firearm in violation of 18 U.S.C. § 922(g)(2). Regarding the cyberstalking charge, the grand jury found that, from September 2017 to December 2017, with the intent to injure, harass, and intimidate the victim L.G., Sulik used electronic mail to engage in a course of conduct that would reasonably be expected to cause substantial emotional distress to L.G. [Record No. 1] Attorney Rachel Yavelak was appointed to represent Sulik under the Criminal Justice Act pursuant to 18 U.S.C. § 3006A. Sulik entered a plea of not guilty and the matter was scheduled for a jury trial.

         Sulik filed a motion for re-arraignment on May 30, 2018, and appeared before the undersigned for a change-of-plea hearing on June 8, 2018. Sulik pleaded guilty to the cyberstalking charge with the understanding that the government would move to dismiss the firearm charge at the time of the sentencing hearing. The parties' written plea agreement provided, in part:

a. Beginning on a date in September 2017 and continuing through a date in December 2017, the Defendant sent a series of threatening emails to an email account associated with L.G., a member of the United States Congress. The Defendant sent these emails from the address stealthvadertrader@gmail.com, through Gmail, an electronic communication service and electronic communication system of interstate commerce. The Defendant resided in Mesa, Arizona when he began this course of contact and moved to Versailles, Kentucky in November 2017. The Defendant continued to send emails to L.G. from his Versailles residence, which is in Woodford County, in the Eastern District of Kentucky.
b. The Defendant intended to harass and intimidate L.G. through the emails that he sent. Among numerous other emails, the Defendant made the following statements to L.G.: “You put your family at risk . . .”; “. . . I'm threating you.”; “What are you going to do before I erase you?”; and “Show me anyone who is going to protect you against me. . . .” The Defendant understood that these and other emails that he sent were of a nature that would reasonably be expected to cause substantial emotional distress to the recipient.

         Sulik waived the right to appeal his guilty plea and conviction. He also waived the right to collaterally attack the guilty plea, conviction, and sentence, with the exception of claims of ineffective assistance of counsel. Sulik was sentenced to 48 months' imprisonment, with credit for time spent in federal custody. [Record No. 31] The Sixth Circuit affirmed Sulik's sentence on appeal. Sulik, 929 F.3d 335. Sulik now claims that Yavelak “repeatedly lied and ineptly represented” him during the proceedings. [Record No. 46, p. 4]

         Sulik makes the following allegations in support of these claims:

1) Defendant was told repeatedly that the Sen. Rand Paul/Rene Boucher case was State not Federal, therefore not applicable. This was false.
2) Defendant was told for 11 months that all Unified Market Theory information was not included in Discovery, subsequent Counsel revealed that it was [included].
3) Ms. Yavelak disclosed privileged information to Judge Bunning during a hearing in which Defendant was assigned new counsel.
4) Ms. Yavelak said Defendant had no right to face accuser in a Trial and could not wear dress blues.
5) Ms. Yavelak said all jail time served by Defendant in Woodford County Jail would count as Time Served toward Federal sentence. Subsequent counsel said this was not true and therefore over 20 months in jail did NOT count towards serving of Federal sentence.
6) Ms. Yavelak appeared at a Hearing seemingly incapacitated, with pupils dilated, and unable to follow proceedings nor turn pages, relying on Defendant to do so.

         The United States has filed a response in opposition to Sulik's motion, which includes an affidavit from Yavelak. [Record No. 54] Sulik was permitted to tender a reply within 30 days of the United States' response. ...


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