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U.S. v. Cleary

filed: January 27, 1995.

UNITED STATES OF AMERICA,
v.
THOMAS J. CLEARY, THOMAS JAMES CLEARY, APPELLANT



Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Criminal No. 82-cr-00133).

Before: Becker, Cowen And Roth, Circuit Judges

Author: Roth

Opinion OF THE COURT

ROTH, Circuit Judge :

I. INTRODUCTION

Thomas James Cleary ("Cleary") appeals from an order of the district court entered on May 24, 1994, denying Cleary's motion to vacate or correct an illegal sentence pursuant to 28 U.S.C. § 2255. Cleary asserts that the district court violated Rule 11(c)(1) of the Federal Rules of Criminal Procedure by failing, at his change of plea hearing, to adequately inform him and determine that he understood the maximum penalty he could receive. In particular, Cleary contends that the court erred by failing to explain the effects of a term of special parole. Because of the court's alleged error, Cleary seeks a reduction of his special parole term from ten years to two, or, in the alternative, a vacatur of his guilty plea. For the reasons stated herein, we find that the district court's error did not rise to the level required to permit collateral relief under section 2255.

II. BACKGROUND AND FACTS

On September 8, 1982, a grand jury sitting in the Western District of Pennsylvania returned a two count indictment against Cleary, charging him with: (1) Count One - conspiracy to violate federal narcotics laws in violation of 21 U.S.C. § 846; and (2) Count Two - manufacturing and distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On December 7, 1982, pursuant to an oral plea agreement, Cleary pled guilty to Count Two of the indictment. In exchange, the Government agreed to dismiss Count One of the indictment. On January 10, 1983, the district court Judge sentenced Cleary to three years imprisonment to be followed by a special parole term of ten years on Count Two. Count One was dismissed. Cleary appealed his sentence, but because he became a fugitive pending appeal, this Court dismissed his appeal. See United States v. Cleary, No. 83-5044 (3d Cir. June 6, 1983).

On June 24, 1985, Cleary filed his first habeas motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Acting pro se, Cleary advanced several arguments in support of his motion, including: (1) the presentence investigation report was factually inaccurate;*fn1 (2) the government illegally searched his car without a warrant and illegally seized money therefrom; (3) the prosecution withheld information favorable to the defense; and (4) the district court denied him the opportunity to present evidence on his behalf. The court appointed counsel for Cleary and, with the assistance of that counsel, Cleary amended his habeas motion to allege that the district court had violated Federal Rule of Criminal Procedure 32 by failing to: (1) determine whether or not the defendant and his counsel had an opportunity to read and discuss the presentence report; (2) afford counsel an opportunity to speak on behalf of the defendant prior to the imposition of sentence; and (3) address the defendant personally and ask him if he wished to make a statement on his own behalf and present information in mitigation of punishment.

By order dated January 17, 1986, the district court denied Cleary's motion. Cleary appealed, and on August 19, 1986, this Court affirmed the decision of the district court. See United States v. Cleary, Nos. 86-3083 and 86-3097 (3d Cir. August 19, 1986). Cleary subsequently petitioned the United States Supreme Court for a writ of certiorari, which was denied on November 3, 1986.

Cleary was released from prison on February 2, 1987, after serving his original three year sentence plus an additional year on an escape charge. He began serving his special parole term on January 14, 1989, after finishing a term of regular parole, and was to remain on special parole for ten years, until January 13, 1999. Supplemental Appendix ("S. App.") 9. However, on April 15, 1993, the United States Parole Commission ("Parole Commission") revoked Cleary's special parole term because Cleary, while on special parole, had been indicted for: (1) conspiracy to manufacture methamphetamine; (2) possession of methamphetamine for sale; and (3) manufacture of methamphetamine. S. App. 2. In addition, Cleary had been charged with reckless driving and associating with a person engaged in criminal activity. Id. The Parole Commission directed that Cleary was to be imprisoned until the expiration of his ten-year special parole term without credit for the time that he had already spent on special parole. Id. Cleary appealed the decision of the Parole Commission. The Commission, however, affirmed its prior decision.

On January 12, 1994, Cleary filed the present motion to correct or vacate his sentence pursuant to 28 U.S.C. § 2255. In this motion, Cleary asserts that his sentence is illegal and should be reduced or vacated because at his change of plea hearing the district court failed to properly explain to him the effects of special parole as required by Federal Rule of Criminal Procedure 11(c)(1). The following exchange, at Cleary's change of plea hearing on December 7, 1982, is central to his present allegations:

ASSISTANT UNITED STATES ATTORNEY ("AUSA"): . . . The penalty is five years and/or $15,000, with a special parole term of two years.

COURT: All right. Now, that means by entering this guilty plea you could be sentenced to prison for up to five years and/or fined up to $15,000. And if the Judge decides that you are to go to jail for any period of time, he must also place you on special parole for a minimum of two years and for whatever maximum period the Judge believes to be appropriate. That means if I decide to send you to jail for any period of time, when you are released from that institution you will be on a special parole term of at least two years and for whatever maximum I think is appropriate. And you will be supervised by people such as this man seated in the jury box who works for the Probation Office, and you will be required to adhere to certain rather stringent requirements: That ...


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