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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 ...

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