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United States District Court, E.D. Pennsylvania

December 31, 2003.


The opinion of the court was delivered by: RICHARD B. SURRICK, District Judge


Presently before this Court is Petitioner, Maurice Hudson's, Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody for ineffective assistance of counsel. For the following reasons, Petitioner's Motion is denied.


  On June 30, 1997, Petitioner entered a plea of guilty to the crimes of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, intent to deliver cocaine, in violation of 21 U.S.C. § 841(a)(1), use of a telephone to facilitate a drug felony in violation of 21 U.S.C. § 843(b), and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). See United States v. Hudson, No. 97-1859, Mem. Op. at 2 (3d Cir. filed June 5, 1998). On October 16, 1997, the Honorable Louis C. Bechtle sentenced Petitioner to a term of 151 months in prison.*fn1 Id. On June 5, 1998, the United States Court of Appeals for the Third Circuit affirmed the judgment of sentence. Id. at 1, 5.

  On September 27, 1999, Petitioner filed the instant Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel in connection with his guilty plea.*fn2 Petitioner failed to file this Motion before the running of the one-year statute of limitations under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). However, the Government's answer filed January 19, 2000, failed to raise the statute of limitations defense. (Government's Answer to Def.'s Mot. to Vacate, Set Aside or Correct Sentence, at ¶ 2 (admitting Petitioner's assertion that the Government raised no affirmative defenses in its answer to Petitioner's Motion to Vacate, Set Aside, or Correct).) Because Petitioner had missed the one-year deadline by twenty-five days, and relying on the belief that the statute of limitations defense was not waivable, the Magistrate Judge raised the statute of limitations issue sua sponte and found Petitioner's petition to be untimely. (Criminal No. 97-22-4, Doc. No. 261.) On May 3, 2000, citing Congress's "desire to curb the abuses of delayed and repetitive filings and to accelerate the federal habeas process," the Court approved the Magistrate Judge's finding. (Criminal No. 97-22-4, Doc. No. 262.) On May 31, 2000, Petitioner filed a Motion to Vacate Order Dismissing Defendant's Motion Under 28 U.S.C. § 2255. (Criminal No. 97-22-4, Doc. No. 263.) On July 11, 2000, Petitioner's Motion to Vacate was granted, allowing Petitioner ten days to file objections to the Report and Recommendation of March 14, 2000. (Criminal No. 97-22-4, Doc. No. 271.) On March 8, 2001, the Report and Recommendation of March 14, 2000 was approved and Petitioner's request for an evidentiary hearing was denied. No certificate of appealability was issued. (Criminal No. 97-22-4, Doc. No. 277.) On March 20, 2002, Petitioner filed a Motion for Relief from Memorandum Order, requesting this Court to vacate its Order of March 8, 2001. (Criminal No. 97-22-4, Doc. No. 284.) On October 29, 2001, the Third Circuit handed down its decision in Robinson v. Johnson, which held that it was possible for the Government to waive the one-year statute of limitations in the AEDPA, if the Government did not raise the issue in a timely manner. 313 F.3d 128, 137 (3d Cir. 2002). Pursuant to the decision in Robinson, we vacated the Order of March 8, 2001, and granted Petitioner a hearing on the ineffective assistance of counsel issue. Petitioner was represented by counsel at that hearing and Petitioner along with guilty plea counsel both testified at the hearing.


  In 1997, Petitioner retained Attorney Brian McMonagle to represent him in the criminal matter that forms the basis for the present Motion. McMonagle advised Petitioner that the Government had a strong case against him and he would be best served by entering a guilty plea.*fn3 Petitioner agreed, and instructed McMonagle to seek a plea agreement. However, Petitioner did not want to plead to charges involving a mandatory minimum ten-year sentence. The assistant United States Attorney who was handling the case for the Government was Francis C. Barbieri, Jr., Esquire.

  McMonagle had two options in pursuing Petitioner's plea. First, McMonagle could have instructed Petitioner to plead in a timely manner so as to receive the three level reduction for acceptance of responsibility under Section 3E1.1 of the sentencing guidelines. This would reduce Petitioner's total offense level from thirty-two to twenty-nine, thereby bringing Petitioner within the 97 to 121-month sentencing guideline range if he had no prior criminal record. However, under this approach Petitioner would still face a sentence at the top end of the guideline range because the mandatory minimum for Petitioner's offense was ten years, 21 U.S.C. § 841(b)(viii), and the U.S. Federal Sentencing Guidelines ("Guidelines") require that, when there is a conflict, a statutory minimum requirement trumps the Guidelines. U.S. SENTENCING GUIDELINES MANUAL § 5G1.1 (1999). Faced with this reality, and attempting to obtain a sentence of less than the ten-year mandatory, McMonagle pursued two paths simultaneously. McMonagle attempted to negotiate a plea with the Government that involved an amount of drugs that would not carry a mandatory minimum ten year sentence. McMonagle tried to bring Petitioner out from under the ten-year mandatory minimum by negotiating the weight of the cocaine that Petitioner was charged with conspiring to distribute. McMonagle argued that while Petitioner had agreed to contribute $63,000 to the distribution scheme, "he did not intend to produce, nor was he capable of producing that amount of U.S. currency." (Def. Maurice Hudson's Sentencing Mem. at unnumbered 1-2.) McMonagle's intent was to limit Petitioner's involvement to two or three kilograms of cocaine, well below the five kilograms that triggers the ten-year statutory minimum. McMonagle also pursued what is referred to as the "safety valve".*fn4 The safety valve creates an exception to the general rule that the Guidelines do not permit a lessor sentence than a mandatory minimum. By its terms, the safety valve "enables a person otherwise subject to a statutory mandatory minimum sentence, but lacking significant prior criminal history, to be sentenced under the otherwise-applicable Guideline range if [he] meet[s] all five criteria," Sepulveda v. U.S., 69 F. Supp.2d 633, 639 (D.N.J. 1999), under section 5C1.2 of the Guidelines.

  Problems arose in obtaining a plea agreement when Petitioner would not accept the terms that the Government offered. It appears that it was not until close to the date of the scheduled trial that Petitioner finally agreed to plead guilty knowing that the plea would include a mandatory minimum sentence. On June 26, 1997, McMonagle sent Barbieri a letter informing him of Petitioner's decision to enter a guilty plea to the charges.*fn5 The trial was scheduled for June 30, 1997, and Petitioner entered his plea on that date.

  Because Petitioner did not finalize his decision to enter a guilty plea until four days before the schedule trial, he was not eligible for the one-point reduction for timely notification of an intent to plea under the Guidelines.*fn6 Had Petitioner received this additional one-point reduction and assuming no prior criminal history, his total offense level as above indicated would have been twenty-nine, thereby placing Petitioner in a 97 to 121-month guideline range. If Petitioner had received the one point reduction, then with a Criminal History Category III, which is what was ultimately determined by the probation office, his guideline range would have been 108 to 135 months. As it turned out, Petitioner did not receive the one point reduction, and the total offense level remained at thirty. With the Criminal History Category III, Petitioner faced a sentencing range of 121-151 months. Judge Bechtel sentenced Petitioner to 151 months, the top of the sentencing range. The failure to secure the one-point reduction forms the basis for Petitioner's present claim of ineffective assistance of counsel.

  McMonagle also faced obstacles in his representation in pursuing the safety valve. At the time that Petitioner entered his guilty plea on June 30, 1997, McMonagle believed that Petitioner had no prior criminal record. It was based on this belief that McMonagle had been pursuing the safety valve for Petitioner. However, the September 12, 1997, Presentence Investigation Report ("PSI"), revealed Petitioner's juvenile and adult offenses. Overall, the document classified Petitioner as having five criminal history points, placing Petitioner in a Criminal History Category III, and precluding the possibility of safety valve relief. (Presentence Investigation Report at 5-7.) It is unclear precisely when McMonagle learned of Petitioner's criminal history. Petitioner had led his counsel to believe he had no criminal record and was therefore eligible for the safety valve. For the purposes of our analysis, it is unnecessary to determine why Petitioner led McMonagle to believe that he had no criminal history. Regardless of the motivation, the fact remains that McMonagle did not have this crucial information until receipt of the presentence report, several months after Petitioner entered his plea of guilty.

  The second requirement under the safety valve, that Petitioner meet with the Government and disclose all information related to the crime and those crimes that were part of the same scheme or common plan, also created difficulty in reaching an agreement. At the time McMonagle was pursuing the safety valve, the Commonwealth of Pennsylvania had charged Petitioner with homicide. The federal Government believed the homicide case was part of the same scheme as the federal drug charges. For this reason the Government required that Petitioner disclose all information related to the state charges in order to qualify for the safety valve. (Hearing of 12/2/03 at 19, 40-41.) Petitioner refused. The homicide charges were later dropped, however, this conflict also contributed to the delay in Petitioner ultimately accepting the plea with a ten-year minimum.


  Petitioner bears the burden of establishing the ineffective assistance of counsel claim asserted in his Motion under § 2255. See Virgin Islands v. Nicholas, 759 F.2d 1073, 1081 (3d Cir. 1985); United States v. Abbott, 975 F. Supp. 703, 705 (E.D. Pa. 1997). The federal law with respect to ineffective counsel is firmly established. In 1984, the Supreme Court announced a two-prong test for determining ineffective performance by counsel. See Strickland v. Washington, 466 U.S. 668, 700 (1984). The first prong requires that, "the defendant show that his counsel's performance was so deficient that it fell below an objective standard of reasonableness under prevailing professional norms." Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999). "This requires showing that counsel made errors so serious that counsel did not function as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. In evaluating the reasonableness of counsel's performances, courts must consider "counsel's perspective at the time of the alleged error . . . in light of all the circumstances, and the standard of review is highly deferential." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).

  The second prong requires that the defendant show that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. To prove this requirement of "prejudice" it must be shown that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Unless a defendant makes both showings, "it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687.

  The Strickland Court "did not intend the Strickland analysis to be a total barrier to relief," but the "range of reasonable professional judgments is wide and courts must take care to avoid illegitimate second-guessing from the superior vantage point of hindsight." United States v. Gray, 878 F.2d 702, 711-12 (3d Cir. 1989) (citing Strickland, 466 U.S. at 689). Accordingly, counsel is generally given the benefit of the doubt, and ineffectiveness can only be found where deficiencies in counsel's performance "are severe and cannot be characterized as the product of strategic judgment." Gray, 878 F.2d at 711. Further, "[t]here is a strong presumption that counsel's performance falls within the `wide range of professional assistance,' [and] the defendant bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms. . . ." 477 U.S. at 381 (quoting Strickland, 466 U.S. at 689).


  We held a hearing in the instant case to give Petitioner a full opportunity to present evidence in support of his claim. After the hearing and a review of the record, we are satisfied that Petitioner has not met his burden of proving ineffective assistance of counsel under the Strickland standard.

  Petitioner's Motion presents three grounds for his claim of ineffective assistance of counsel. (Criminal No. 97-22-4, Doc. No. 249.) First, Petitioner argues that he informed counsel of his intent "to plead guilty to all charges several weeks before trial" and that counsel failed to inform the Government "until it was too late for the prosecutor to avoid preparing for trial." (Mot. to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody at 4.) Petitioner claims that had counsel informed the Government of his intent in a timely manner, his guideline range would have been different and he would have received the lesser sentence. We are not persuaded. While it is undisputed that, on June 26, 1997, McMonagle sent Barbieri a letter indicating Petitioner's intent to plea, the record indicates that McMonagle had informed Barbieri that this would probably be a guilty plea long before the letter. In fact, McMonagle had been working with Barbieri attempting to secure a deal for Petitioner. The facts suggest that McMonagle did not send the letter until June 26, 1997, because Petitioner had refused to enter a guilty plea that included a ten-year mandatory minimum. (Hearing of 12/2/03 at 10 ("[A]lthough the defendant wanted to plea[d] . . . he would not plea[d] to the ten-year mandatory sentence.").)

  We are also unconvinced that a significant amount of time passed between Petitioner's ultimate acceptance of the fact that he would receive a mandatory ten-year minimum and the drafting of the June 26th letter. There is nothing to indicate that McMonagle delayed in relaying this information to the Government. In fact, McMonagle testified to the contrary: "I have a recollection of trying to notify you [Barbieri] as early as I could to avoid you preparing for trial. . . ." (Hearing of 12/2/03 at 8.) We conclude that McMonagle was not dilatory in contacting the Government concerning Petitioner's intent to plead.

  The second basis for Petitioner's ineffective assistance of counsel claim is that "[t]rial counsel erroneously advised Petitioner that he could only obtain the additional one-level reduction in his base offense level if he provided the government with information concerning his involvement in a separate case that was pending in state court," (Mot. to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody at 4.) Essentially, Petitioner claims that McMonagle made a legal error in interpreting section 3E1.1(b) of the Guidelines, which, unlike the safety valve section, does not require criminal defendants to discuss charges outside of the present offense. Again, we are unpersuaded. The testimony and the record do not establish that McMonagle advised Petitioner that he was legally required to discuss the state charges in order to qualify for the one-point acceptance of responsibility reduction. Moreover, there is nothing in the record to indicate that McMonagle failed to understand the requirements of section 3E1.1(b). The only mention of the state charges arose in the context of the safety valve.

  Petitioner's understanding of the difference in his obligation to talk to the Government under the one point acceptance of responsibility guideline on the one hand, and under the safety valve provision on the other, is demonstrated in his response to a question at the hearing:

Q. And you just mentioned the word safety valve yourself, what is your understanding of how the safety valve operated?
A. In — I don't really know, he told me just he was going to try to-try to get, but he's [McMonagle] saying that I just needed to tell my role in the [federal] indictment. But when he came back he said that Mr. Barbieri and them was asking about the state case . . . So I said, just give me a plea, I don't know nothing about the state cases."
(Hearing of 12/2/03 at 28.) It is clear that Petitioner knew that with the safety valve he had to discuss the state case with the Government, and without the safety valve he needed to talk to the Government only about his role in the federal indictment. We are satisfied that Petitioner has not met his burden of establishing that McMonagle misinformed him as to his obligations regarding discussions with the Government about the pending charges in state court.

  Petitioner's third claim of ineffective counsel is that "[t]rial counsel failed to advise Petitioner that he could obtain an additional one-level reduction in his base offense level [under section 3E1.1(b)(2)] if he timely notified authorities of his intention to plead guilty to all charges." (Mot. to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody at 5.) Petitioner states that as a result of this counsel error, "he only received a two-level reduction in his base offense level for acceptance of responsibility as opposed to the three-level reduction that he would have received had counsel provided adequate advice." (Id.) In United States v. Day, the Third Circuit addressed the standard that attorneys must use in advising clients about their options under the Guidelines:

We cannot state precisely what standard defense counsel must meet when advising their clients about the desirability of a plea bargain. . . . Because the Sentencing Guidelines have become a critical, and in many cases, dominant facet of federal criminal proceedings, we can say, however, that familiarity with the structure and the basic content of the Guidelines . . . has become a necessity for counsel who seek to give effective representation. . . . We do not suggest that . . . counsel must give each defendant anything approaching a detailed exegesis of the myriad arguably relevant nuances of the Guidelines. Nevertheless, a defendant has the right to make a reasonably informed decision whether to accept a plea offer,
969 F.2d 39, 43 (3d Cir. 1992). McMonagle more than met the standard discussed in Day, McMonagle testified that he does not have a specific recollection of discussing the implications of the Guidelines and the one-point reduction with Petitioner, but it is his general practice to do so with all of his clients. McMonagle is an experienced criminal attorney and there is no reason to believe that he failed to discuss the one point reduction with Petitioner. In fact, the record affirmatively indicates otherwise. In the question and answer recited above, Petitioner indicates that he understood that if the safely valve did not apply, he would only have to discuss with the Government his role in the charges in the indictment. This is, of course, the requirement of Section 3E1. l(b)(1). We reject Petitioner's assertion that counsel failed to tell him about the possibility of receiving a one point reduction for acceptance of responsibility in return for discussing his role the indictment with the Government.

  At the hearing Petitioner made an additional assertion of ineffectiveness. Petitioner testified that upon receiving the PSI, he contacted McMonagle to voice his concern because the report indicated that Petitioner's guideline sentencing range was 121 to 151 months. He testified: "I said, the guideline range is not what [Barbieri] said, it's not 97 to 121 months, it was 121 to 151. And [McMonagle] said — you know, he told me don't worry about it, that I was going to get the bottom of the Guidelines." (Hearing of 12/2/03 at 32.) Even accepting these allegations true, Petitioner has failed to demonstrate the requisite prejudice under Strickland: "Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. . . . Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another." 466 U.S. at 693.

  In the instant case, such a statement from McMonagle, if made, would have been inappropriate. In most circumstances, it is not proper for counsel to advise a client as to what sentence he will receive. However, even assuming that Petitioner's statement is accurate, there was nothing McMonagle could have done to change the sentencing range at that stage of the proceedings. The guilty plea had been entered months before and Petitioner was not eligible for the one-point reduction for timely notification under section 3E1.1. In addition, Petitioner's criminal history made him ineligible for the safety valve, and McMonagle's attempts to reduce the weight of cocaine for which Petitioner was responsible had failed. Any representation by McMonagle as to where the judge might sentence within the guidelines, although ill advised, was not prejudicial.

  Petitioner appears to be assessing counsel performance with the benefit of hindsight. This is not appropriate. Strickland 466 U.S. at 698 ("A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight. . . . ") McMonagle was attempting to represent his clients interests with instructions to avoid a mandatory minimum sentence and with faulty information. In reality, the circumstance in which Petitioner found himself at the time of sentencing was not the result of ineffective assistance of counsel. Rather, it was of Petitioners own making. McMonagle advised Petitioner from the outset that a plea of guilty was in his best interest. Petitioner did not disagree with this advice, however, he told counsel that he did not want to enter a plea of guilty that would result in a mandatory minimum ten year jail sentence. Because of this, counsel spent significant time trying to convince the Government to accept a plea to an amount of drugs that would not carry a mandatory minimum sentence, and trying to get the benefit of the safety valve. By the time Petitioner finally agreed to enter the plea it was too late for him to get the benefit of Section

  In addition, Petitioner mislead his counsel, the Government, and the Court concerning his prior criminal record. Counsel believed that he could ultimately avoid a mandatory minimum sentence for Petitioner by means of the safety valve provision of Section 5C 1.2 of the guidelines. This belief was reinforced at the Change of Plea Hearing where the following exchange occurred concerning the sentencing guidelines after Judge Bechtel had advised Petitioner that if the plea were accepted he would face a mandatory minimum sentence often years:

MR. BARBIERI: Your Honor, by my calculation, if the defendant were found liable or responsible for quantities of cocaine between five and 15 kilograms, that would be a level 32. It is the government's position there would be a two level decrease for acceptance of responsibility, which would be a level 30. And the defendant has, as far as I know, no prior convictions. So I believe that range is 97 to 121 months.
THE COURT: What we are saying, Mr. Hudson, is this, we don't know all the facts that went into your participation here exactly. We are not sure about that. The government has a lot of information but in order to be sure, the Court insists not only on getting the government's version but your version and the version from others and the probation department will do that.
For that reason, I can't tell you exactly what the offense level will be. Mr. Barbieri believes that if the range and quantity here was between five and 15 kilograms, if that is what is shown in the investigation, then on this scale of offense levels, that would rise to a level of 32. The highest level is 43. Of course, the lowest level is one. So if that would be 32, there's also a provision in the guidelines that provides if someone accepts responsibility for their conduct by pleading guilty, for example, then there's a decrease, that's an improvement, if you will, from 32 down to 30 offense level. So if the facts that are developed, as Mr. Barbieri believes they will be, that would be a level 30. Then we turn to you, yourself, where you fit in this picture. Sometimes the persons who are found guilty of these charges or plead guilty, they have a prior history or other criminal convictions or contracts or whatever. Sometimes persons are on probation or parole, they commit these crimes, if that happens, then their standing worsens, if you will, that level 32 blends together with a so-called criminal history score and the level would be higher. Mr. Barbieri believes — if you have to be in a category, the best is one and he believes you are in that category. He doesn't believe you have any prior history of criminal conduct or he doesn't believe there's any other aggravating circumstance. Now, if that is so, if you are in criminal history category one and the level is a level 30, that would mean the Court would then consider the extent to which you should be imprisoned between 97 and 121 months. There's a range in there and we will hear from you and your counsel and the government as to where the Court should put that. Is there anything that you know of, Mr. Barbieri, that would allow the government to suggest there should be a downward departure at this time?
MR. BARBIERI: No, your Honor."
(Hearing of 6/30/1997 at 14-17.)

  At no time during the Change of Plea Hearing did Petitioner tell Judge Bechtel, the Assistant United States Attorney or his counsel that he did, in fact, have a prior criminal record. When the Presentence Report was completed by the Probation Office and submitted to the Court and counsel it became apparent that because of his prior criminal record, the guideline range discussed at the Change of Plea Hearing was incorrect. Moreover, Petitioner's prior criminal record made him ineligible for safety value consideration even if he agreed to talk to the Government. At that point the plea had been accepted and there was nothing that counsel could do but wait to see where within the sentencing guidelines range Judge Bechtle would go. Unfortunately for Petitioner he went to the top.

  Under the circumstances, Petitioner is entitled to no relief. His allegations of ineffective assistance of counsel are devoid of merit, and his Motion to Vacate, Set Aside or Correct Sentence will be denied.

  An appropriate Order follows. ORDER

  AND NOW, this 31st day of December, 2003, upon consideration of Petitioner's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. No. 249), and all documents submitted in support thereof and in opposition thereto, it is ORDERED that Petitioner's Motion is DENIED.


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