United States District Court, M.D. Pennsylvania
May 17, 2005.
UNITED STATES OF AMERICA
MICHAEL WALKER, Defendant/Movant.
The opinion of the court was delivered by: JAMES McCLURE, Senior District Judge
On April 14, 1999, Michael Walker was initially indicted on
federal drug possession with intent to distribute charges. A
superseding indictment was returned on May 12, 1999, charging
Walker, and others, with additional drug charges. On June 9,
1999, Walker and two co-defendants were charged in a second
On December 3, 1999, Walker entered a guilty plea to the second
superseding indictment. On July 6, 2000, the court granted
Walker's motion to withdraw his first guilty plea, with which the
government concurred, because of the Supreme Court's ruling in
Apprendi v. New Jersey, 530 U.S. 466 (2000). (Rec. Doc. No.
On March 1, 2001, Walker again entered into a plea agreement.
In keeping with the second plea agreement, Walker pled guilty to count two
of the second superseding indictment. Count two of the second
superseding indictment charged Walker with possession with intent
to distribute in excess of five (5) grams of crack cocaine on or
about March 15, 1999, in violation of Title
21 U.S.C. §§ 841(a)(1) & 841(b)(1)(B)(iii) and Title 18 U.S.C. § 2.
On November 6, 2001, through his trial counsel Douglas B.
Chester, Esquire, Walker moved the court to withdraw his guilty
plea. (Rec. Doc. No. 328.) We denied that motion on December 10,
2001. (Rec. Doc. No. 343.) Next, Walker filed a pro se motion
and supporting brief for reconsideration of our December 10, 2001
order (Rec. Doc. Nos. 352 & 357), which was denied on March 5,
2002. (Order, Rec. Doc. No. 365.)
On September 17, 2002, a sentencing hearing was held before
this court. Walker was sentenced, as a career offender, to 262
months imprisonment, 4 years supervised release, and $100 special
On July 11, 2003, the United States Court of Appeals for the
Third Circuit affirmed Walker's conviction and sentence. United
States v. Walker, 69 Fed.Appx. 546 (3d Cir. 2003).
On January 24, 2004, Walker filed pro se his first motion under
28 U.S.C. § 2255 to vacate, set aside, or correct the sentence.
Then, on July 6, 2004, Walker filed a "supplemental motion under 28 U.S.C. § 2255" seeking to
amend his motion to include a Blakely claim. On December 16,
2004, we directed the government to obtain and file an affidavit
from Walker's trial counsel Douglas B. Chester, Esquire, that
would address allegations made by Walker in his § 2255 motion. On
February 7, 2005, we again directed government to obtain and file
an affidavit from Douglas B. Chester, Esquire. We received that
affidavit on February 22, 2005. On March 7, 2005, Walker filed a
second supplemental motion seeking to amend his motion to include
a Booker claim.
For the following reasons we will deny several grounds raised
in Walker's motion and schedule a hearing on the remaining issue,
i.e., attorney Chester's advice to Walker regarding his ability
to withdraw his guilty plea.
Walker's January 20, 2004 motion under 28 U.S.C. § 2255
challenges his conviction and sentence on two grounds:
ineffective assistance of counsel and "illegal confinement." In
his July 6, 2004 motion, Walker raises a Blakely claim. In his
March 7, 2005 motion, Walker raises a Booker claim. Due to
Walker's pro se status we shall consider his supplemental
motions as amendments to his original motion.
I. Standard of Review A prisoner who is in custody pursuant to a sentence imposed by
a federal court who believes "that the sentence was imposed in
violation of the Constitution or laws of the United States, or
that the court was without jurisdiction to impose such sentence,
or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack, may move the
court which imposed the sentence to vacate, set aside or correct
the sentence." 28 U.S.C. § 2255, ¶ 1; see United States v.
Eakman, 378 F.3d 294, 297-98 (3d Cir. 2004).
It is within the court's discretion whether to hold an
evidentiary hearing on a § 2255 motion. See Gov't of the
Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989); United
States v. Abbott, 975 F.Supp. 703, 712 (E.D. Pa. 1997). "[T]he
district court must accept the truth of the movant's factual
allegations unless they are clearly frivolous on the basis of the
existing record." Abbott, 975 F.Supp. at 712 (quoting Gov't of
the Virgin Islands v. Bradshaw, 726 F.2d 115, 117 (3d Cir.
1984)). The court need not hold a hearing if the "motion and the
files and records conclusively show that the prisoner is entitled
to no relief." 28 U.S.C. § 2255, ¶ 2; see Rule 8(a) of the
Rules Governing Section 2255 Proceedings for the United States
District Courts; United States v. Day, 969 F.2d 39, 41-42 (3d
Cir. 1992). If the prisoner's claim presents a close question,
"[t]he district court need only supplement the factual record
when the merits of the section 2255 motion may turn on the truth of a non-frivolous allegation." Abbott,
975 F.Supp. at 712 (quoting Bradshaw, 726 F.2d at 117). Based on
the following analysis, the court will conduct a hearing only on
Walker's ineffective assistance claim that asserts Chester
advised Walker that he could always withdraw his plea.
II. Ground One: Ineffective Assistance of Counsel
In ground one of his § 2255 motion, Walker advances several
theories as to how he was denied effective assistance of counsel.
Walker asserts that trial counsel was ineffective for (1) not
interviewing potential witnesses, (2) failing to make motions to
suppress evidence, (3) failing to hire a private investigator,
and (4) advising Walker that a plea could always be withdrawn.
(Rec. Doc. No. 408, Ex. 1, at 8-11.)
By pleading guilty at trial, Walker waived his right to
challenge his conviction on any non-jurisdictional grounds other
than the voluntariness of the plea. United States v. Broce,
488 U.S. 563, 569 (1989). Thus, the court will limit its ineffective
assistance of counsel review to claims addressing advice given to
Walker prior to the entry of his guilty plea, i.e., his claim
that trial counsel advised Walker "we can always take back our
plea." (Rec. Doc. No. 408, Ex. 1, at 10.) At this time we must
consider whether Walker's counsel was ineffective in advising
defendant about entering his plea of guilty, and whether the plea
was knowing and voluntary. The two prong Strickland ineffectiveness standard applies to
post-conviction challenges of guilty pleas. Hill v. Lockhart,
474 U.S. 52, 57 (1985). The defendant must demonstrate (1) that
counsel's performance was objectively unreasonable and (2) that
counsel's deficient performance prejudiced the defendant.
Strickland v. Washington, 466 U.S. 668, 687-688 (1984). In
order for a defendant challenging a guilty plea on
ineffectiveness grounds to establish prejudice, he must
demonstrate that "there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial." Hill, 474 U.S. at 59.
Walker claims that it was counsel's "unprofessional advice . . .
that made him (petitioner) accept the second plea." (Mot.
Vacate, Rec. Doc. No. 408, ex. 1, at 8.) Walker asserts that his
attorney, Douglas B. Chester, Esquire, informed him that "we can
always take back our plea." (Rec. Doc. No. 408, Ex. 1, at 10.)
On December 16, 2004, pursuant to Rule 7 of the Rules Governing
Section 2255 Proceedings for the United States District Courts,
we directed the government to expand the record on this issue by
obtaining an affidavit from attorney Chester addressing: (1) his
best recollection of any and all advice he gave Walker regarding
his March 1, 2001 guilty plea and the circumstances under which
it was given; (2) whether he told Walker he could always withdraw
his guilty plea at a later time or that `we can always take back our plea'; (3) any other
information Chester could recollect regarding his representation
of Michael Walker as it pertained to the entry of his guilty plea
on March 1, 2001. (Rec. Doc. No. 445.)
On February 22, 2005, after again directing the government to
respond to our December 16, 2004 order we received Chester's
affidavit. The affidavit described Chester's advice regarding
withdrawing a guilty plea before sentencing as follows:
I explained that prior to sentencing we could file a
motion to withdraw his guilty plea, if he so chose. I
told him the courts are fairly liberal about granting
a motion to withdraw a guilty plea prior to
sentencing. I explained that, even prior to
sentencing, there is no guarantee it would be granted
and that it was up to the judge. I told him that it
was very likely that any motion to withdraw his
guilty plea would be opposed by the U.S. Attorney.
(Aff., Rec. Doc. No. 447, at 2, ¶ 4.)
Walker states that he pled guilty as part of a compromise in
strategies with his attorney. He asserts that "Chester's plan was
to take the plea, motion what I asked, then take the plea back . . .
Under that misleading, brilliant idea is why I agreed with
him to take the plea . . . Chester never said taking the plea
back would be difficult . . . [What] Chester said ? he explained
to me about withdrawing a plea is a lie." (Pet's Affirmation
Resp. To Douglas B. Chester's Resp., Rec. Doc. No. 450, at 2.) It
is worth noting that our plea colloquy did not address Walker's
ability to withdraw his guilty plea before sentencing, and Walker had
already successfully withdrawn a guilty plea in this case. We
find that Walker's factual allegations merit a hearing on the
III. Ground Two: Illegal Confinement
Walker's other ground in his motion is that he is illegally
confined because the statutes to which he pled guilty are not a
part of positive law, and that "Title 21 is an unconstitutional
statute in whole." (Rec. Doc. No. 408, Ex. 1, at 2.) On March 1,
2002, Walker pled guilty to count two of the second superseding
indictment charging Walker with violations of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii) and 18 U.S.C. § 2.
The collateral review that post-conviction relief provides is
not a substitute for the appeals process. There must be respect
for the finality of judgments, particularly in the context of a
guilty plea. United States v. Timmreck, 441 U.S. 780, 784
(1979); United States v. Cleary, 46 F.3d 307, 310 (3d Cir.
1995). On direct appeal, Walker did not challenge the
constitutionality of the statutes, nor did he do so when he pled
guilty to them. We choose to adhere to the doctrine of procedural
default which instructs that as a "general rule claims not raised
on direct appeal may not be raised on collateral review unless
the petitioner shows cause and prejudice." Massaro v. United
States, 538 U.S. 500, 504 (2003) (citing United States v. Frady, 456 U.S. 152,167-68 (1982); Bousley v. United
States, 523 U.S. 614, 621-22 (1998)). This is not a case that
warrants departure from this principle just because Walker has
characterized his claim as a constitutional challenge to the
statutes. Walker has not demonstrated why he did not raise this
claim earlier before this court, when he knowingly and
voluntarily pled guilty to the offense, or on appeal.
IV. Amended Ground (Three): Blakely Claim
In his first supplemental motion, Walker claims his sentence
violates the holding of Blakely v. Washington, ___ U.S. ___,
124 S.Ct. 2531 (2004). He is incorrect.
Blakely addressed the Washington State sentencing scheme and
held that a defendant may not be sentenced above the maximum the
court could impose "solely on the basis of facts reflected in
the jury verdict or admitted by the defendant. . . . without any
additional findings." Blakely, 124 S.Ct. at 2537 (citations
omitted) (emphasis in original). In United States v. Booker,
___ U.S. ___, 125 S.Ct. 738, (Jan. 12, 2005), the United States
Supreme Court held that "the Sixth Amendment as applied in
Blakely does apply to the [Federal] sentencing guidelines."
United States v. Ordaz, 398 F.3d 236, 238 (3d Cir. 2005)
(quoting Booker, ___ U.S. at ___, 125 S.Ct. at 746 (Stevens,
J.)). In light of our discussion of Booker in the proceeding section, we need not separately
address Walker's Blakely argument.
V. Amended Ground (Four): Claim under Booker
On March 7, 2005, Walker filed another supplemental motion to
add a claim under United States v. Booker, ___ U.S. ___,
125 S.Ct. 738 (2005). Booker did not expressly state whether it was
retroactively applicable to cases that became final before
Booker was decided. Several Courts of Appeals have addressed
the issue and have concluded that Booker does not retroactively
apply to cases in collateral proceedings. Guzman v. United
States, 404 F.3d 139, 144 (2d Cir. 2005) ("Booker is not
retroactive, i.e., it does not apply to cases on collateral
review where the defendant's conviction was final as of January
12, 2005, the date that Booker was issued."); Humphress v.
United States, 398 F.3d 855, 857 (6th Cir. 2005) ("Booker . . .
does not apply retroactively to cases already final on direct
review."); McReynolds v. United States, 397 F.3d 479, 481 (7th
Cir. 2005) ("Booker does not apply retroactively to criminal
cases that became final before its release on January 12,
2005."); Varela v. United States, 400 F.3d 864, 868 (11th Cir.
2005) ("Booker's constitutional rule falls squarely under the
category of new rules of criminal procedure that do not apply
retroactively to § 2255 cases on collateral review."). The Third Circuit, in the context of denying a second or
successive motion under § 2255 brought by a prisoner seeking to
apply Booker retroactively,*fn1 stated that "there is no
combination of Supreme Court decisions that `dictates' that
Booker has retroactive force on collateral review." In re
Olopade, 404 F.3d 159, 163 (3d Cir. 2005). The circuit court
went on to discuss how the most analogous Supreme Court precedent
strongly suggests Booker is not retroactive. Id. (discussing
Schriro v. Summerlin, 542 U.S. ___, 124 S.Ct. 2519 (2004)).
Therefore, Booker is not retroactively applicable to cases on
collateral review that were final before the January 12, 2005
decision. See United States v. Wheeler, (M.D. Pa. Apr. 14,
2005) (No. CR-97-094) (Muir, J.). Consequently, Walker's Booker
claim is denied. CONCLUSION:
For the reasons stated above, we will deny Walker's motion
under 28 U.S.C. § 2255 in all respects except for his claim of
ineffective assistance of counsel in advising him to plead
guilty. A hearing will be scheduled on the ineffective assistance
claim and we will issue a final order on Walker's petition after
receiving evidence on the matter. ORDER
For the reasons set forth in the accompanying memorandum,
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. All grounds in Walker's motion under 28 U.S.C. § 2255 are
denied except for his claim that Chester gave ineffective
assistance in advising him on his ability to withdraw his guilty
plea. (Rec. Doc. No. 408.) This is not a final order, and
therefore is not appealable. We will issue a final order after we
conduct a hearing on Walker's remaining claim.
2. An accompanying order will schedule the hearing date and
direct the appointment of counsel to represent Walker at the