United States District Court, W.D. Pennsylvania
November 14, 2005.
FRANK TODD McCLELLAN a/k/a Frank Neeszy, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: TERRENCE McVERRY, District Judge
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER OF COURT
Before the Court for disposition is a PETITION UNDER
28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN
FEDERAL CUSTODY ("Petition") filed by Frank Todd McClellan
(Crim. Doc. No. 48). The matter has been fully briefed. See
GOVERNMENT'S RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION FILED
PURSUANT TO 28 U.S.C. § 2255 ("Response") (Crim. Doc. No. 50)
and PETITIONER'S BRIEF IN SUPPORT OF PETITION TO VACATE SENTENCE
PURSUANT TO 28 U.S.C. § 2255 ("Brief") (Crim. Doc. No. 67).
The Court conducted an evidentiary hearing on the Petition on
June 27, 2005. Petitioner Frank Todd McClellan ("McClellan") was
represented by James W. Krause, Esquire at the hearing. McClellan
and Thomas Patton, Assistant Federal Public Defender ("Mr.
Patton"), testified at the hearing. No other witnesses testified.
The central issues at the hearing were whether Mr. Patton, who
represented McClellan after he entered a plea of guilty and
during the sentencing phase of the underlying criminal
proceeding, rendered ineffective assistance of counsel due to his
alleged failure to: 1) adequately prepare for the sentencing
hearing, 2) challenge the application of the career offender
guideline, 3) argue in favor of a downward departure from the
career offender guideline, and 4) file a notice of appeal after
the sentencing hearing, contrary to the constitutional
protections afforded by Strickland v. Washington, 466 U.S. 668
(1984) and Roe v. Flores-Ortega, 528 U.S. 470 (2000). The testimony from the § 2255 hearing has been transcribed. The
Court will discuss primarily those basic facts which are relevant
to the subject motion. Based on the testimony and evidence
presented at the hearing and the applicable law, the Court enters
the following findings of fact and conclusions of law.
FINDINGS OF FACT
1. On January 8, 2003, a Grand Jury returned an Indictment
which charged McClellan with five counts of possession with
intent to distribute and distribution of heroin, in violation of
Title 21, United States Code, section 841(a)(1) and 841(b)(1)(C).
McClellan pled not guilty to the charges and was detained at the
Allegheny County Jail.
2. McClellan was initially represented by Crystina M.
Kowalczyk, Assistant Federal Public Defender ("Ms. Kowalczyk"),
but later privately retained the services of Attorney Warner
Mariani ("Attorney Mariani"). On May 7, 2003, while represented
by Attorney Mariani, McClellan pled guilty to Count Two of the
Indictment pursuant to a written plea agreement. The plea
agreement did not require McClellan to waive his appellate or
section 2255 rights.
3. Shortly thereafter, the relationship between McClellan and
Attorney Mariani deteriorated, and Attorney Mariani sought to
withdraw his appearance. On May 29, 2003, the Court permitted
Attorney Mariani to withdraw his appearance and appointed the
Federal Public Defender to represent McClellan. The Federal
Public Defender assigned Mr. Patton*fn1 to represent
McClellan. Mr. Patton works primarily out of the Erie branch
office of the Federal Public Defender's Office, and was required
to travel to Pittsburgh to meet with McClellan. Hrg. Tr. at 6.
4. On or about May 27, 2003, McClellan, acting pro se, sent
two letters to the Court in which he expressed, inter alia, his
desire to withdraw his plea of guilty. See Crim. Doc. No. 29.
On October 23, 2003, the Court conducted a status conference with
the attorneys regarding McClellan's letters.*fn2 The Court held a second status
conference with counsel and Mr. McClellan on November 14, 2003.
At the second status conference McClellan represented on the
record that based on the advice of counsel*fn3 he did not
wish to withdraw his guilty plea, that he wished to proceed with
the sentencing hearing as scheduled, and that he was satisfied
with Mr. Patton's representation. See Crim. Doc. No. 63 at
15-16. An apparent primary consideration in McClellan's decision
not to seek to withdraw his guilty plea was the government's
discretion to file an "Information to establish prior conviction"
pursuant to Title 21, United States Code, section 851. See Hrg.
Tr. at 12-13. If convicted, the pre-trial filing of said
Information would have substantially increased McClellan's
potential sentence. See id. at 12.
5. Mr. Patton was assisted in his representation of McClellan
by W. Penn Hackney ("Mr. Hackney") and Jay J. Finkelstein ("Mr.
Finkelstein"), Assistant Federal Public Defenders, as well as
Richard Villa ("Mr. Villa"), an investigator for the Federal
Public Defender's Office. Hrg. Tr. at 35, 39, 58. Mr. Hackney
attended the November 14, 2003 status conference and the
sentencing hearing. See Crim. Doc. Nos. 47 & 63.
6. Mr. Patton thoroughly researched McClellan's case and the
potential arguments available to him prior to sentencing. First,
Mr. Patton obtained and reviewed Mr. Mariani's file. Hrg. Tr. at
11. Mr. Patton also met with McClellan after the Presentence
Investigation Report ("PSI") was produced, but prior to
sentencing, "to go over it with him to determine if we would file
any objections." Hrg. Tr. at 13; see also id. at 14. Based on
his review of the PSI, Mr. Patton did not believe "that there
were any objections that could be filed to the calculation of the
offense level and criminal history calculations under the [PSI]." Id.
7. Mr. Patton obtained the records of McClellan's prior
convictions and determined whether said convictions could be used
to qualify McClellan for career offender status. Hrg. Tr. at 16,
18-19. Based upon his investigation, Mr. Patton concluded that
"[t]he PSI correctly calculates Mr. McClellan's guideline
imprisonment range as 151-188 months." Defendant's Position with
Respect to Sentencing Factors at unnumbered 1 (Crim. Doc. No.
41). Mr. Patton also met with McClellan and discussed the
application of the career offender guideline with him "on
numerous occasions" prior to sentencing. Hrg. Tr. at 19.
8. United States Sentencing Guidelines § 4A1.3(b)(1) provides
that "[i]f reliable information indicates that the defendant's
criminal history category substantially over-represents the
seriousness of the defendant's criminal history or the likelihood
that the defendant will commit other crimes, a downward departure
may be warranted." Mr. Patton did not argue at sentencing that
McClellan's prior criminal history overstated the seriousness of
his criminal history.
9. Mr. Patton was well aware of the availability of a downward
departure under section 4A1.3(b)(1), but "did not argue it
because [he] did not feel . . . that it would be something we
could be successful on." Hrg. Tr. at 17. A review of the PSI
confirms that such an argument would have been exceedingly weak
at best, and frivolous at worst.
10. The PSI reflects that McClellan was adjudicated delinquent
three times as a juvenile. See PSI at ¶¶ 24-26. At age 16,
McClellan stabbed an individual on his side and hand with a
butcher knife, which caused serious bodily injury. Id. at ¶ 24.
Accordingly, McClellan was adjudicated delinquent. Id. At age
17, McClellan was found in possession of three bags of marijuana
after having verbally attempted to terrorize the principal and
vice principal of McKeesport High School. Id. at ¶ 25. As a result, he was again
adjudicated delinquent and committed to The Academy. Id. While
at The Academy, McClellan and an accomplice stole items of
personal property from automobiles on two separate occasions. PSI
at ¶ 26. He was again adjudicated delinquent. Id.
11. The PSI also reflects that McClellan did not stray from his
criminal career path after becoming an adult. At age 19,
McClellan was convicted of two counts of possession of a
controlled substance, possession with intent to deliver, and two
counts of disorderly conduct. Id. at ¶¶ 28-30. At age 21,
McClellan was convicted of a multitude of felony narcotics
offenses filed at three separate criminal cases. Id. at ¶
32-34. The common denominator of the three cases was the repeated
sale of heroin. See id. At age 28, McClellan was again
convicted of disorderly conduct. Id. at ¶ 35. The PSI also
reflects other criminal convictions and multiple arrests. PSI at
¶ 27, 37, 39-41.
12. McClellan's criminal history, taken as a whole, reflects
that he was a long-time narcotics dealer who is prone to commit
acts of violence. Mr. Patton's decision not to argue for a
downward departure pursuant to USSG § 4A1.3(b)(1) was entirely
sensible and reasonable under the circumstances. Indeed, based on
McClellan's lengthy and serious criminal record, the argument
that McClellan should receive a downward departure pursuant to
USSG § 4A1.3(b)(1) would have had no reasonable basis in fact or
13. Mr. Patton also declined to argue at sentencing that the
career offender guideline should not be applied to McClellan. The
career offender guideline provides as follows:
A defendant is a career offender if (1) the defendant
was at least eighteen years old at the time the
defendant committed the instant offense of
conviction; (2) the instant offense of conviction is
a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant
has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.
USSG § 4B1.1(a).
14. Mr. Patton did not, and indeed could not, challenge the
accuracy of the PSI as to McClellan's prior criminal history at
sentencing, and there is neither an allegation nor evidence that
the PSI does not accurately reflect his criminal history. It is
undisputed that McClellan has five prior felony convictions for
controlled substance offenses. PSI at ¶ 28, 32-34, 36. Additionally, McClellan was over 18 years old when he committed
the felony controlled substance offense charged in Count II of
the federal Indictment. Thus, all elements of career offender
status under the Guidelines are obviously present. Mr. Patton
clearly had no basis in fact or law to challenge McClellan's
status as a career offender.
15. On December 4, 2003, McClellan was sentenced to a term of
imprisonment of 162 months, to be followed by a term of
supervised release of 3 years. See Sent. Hrg. Tr. at 9-10.
McClellan's guideline range was 151 to 188 months, which was
based on a criminal history category of 6 and a total offense
level of 29. See PSI at ¶¶ 23, 38. McClellan did not receive the
shortest possible sentence under the Guidelines, but nevertheless
was sentenced below what could be called the "middle" of the
16. Mr. Patton testified that after the sentencing hearing he
discussed with McClellan whether an appeal should be filed.
McClellan did not wish to appeal at that time, and he told Mr.
Patton that he did not wish to appeal. Hrg. Tr. at 44, 53-55,
71-72, 76-77; Movant's Exh. 1. Mr. Patton testified at the § 2255
hearing that there was no basis to appeal because 1) due to the
guilty plea, the issue of guilt could not be raised on appeal, 2)
no appealable issues existed as to McClellan's offense level or
criminal history category, and 3) the sentence was within the
guideline range, and therefore the appropriateness of the Court's
sentence would not be reviewed by the court of appeals. Hrg. Tr.
at 54. Mr. Patton's testimony in that regard accurately
summarizes the post-sentencing situation faced by McClellan.
17. McClellan testified that he did not know that he could
appeal his sentence until he was placed with the Bureau of
Prisons and conducted some legal research. Hrg. Tr. at 77-78, 81.
The Court does not credit McClellan's testimony in that regard.
McClellan's testimony is belied by the fact that he was fully
informed of his right to appeal by the Court at the sentencing
hearing. Hrg. Tr. at 90-92. Additionally, as stated above, Mr.
Patton discussed McClellan's appellate rights with him after the
sentencing hearing. Hrg. Tr. at 44, 53-55, 71-72, 76-77; Movant's
Exh. 1. Finally, McClellan was well aware that he had appellate
rights from his prior convictions in the state system, and he had
actually appealed one of his numerous prior state court
convictions. Hrg. Tr. at 83-84. 18. McClellan testified that he decided that he wanted to
appeal his conviction/sentence approximately eight to ten months
after he was placed with the Federal Bureau of Prisons. Hrg. Tr.
CONCLUSIONS OF LAW
1. In a proceeding under 28 U.S.C. § 2255, a petitioner bears
the burden of proving that he or she is entitled to relief. U.S.
v. Davies, 394 F.3d 182, 189-90 (3d Cir. 2005); U.S. v.
Nahodil, 36 F.3d 323, 329 (3d Cir. 1994); U.S. v. Hollis,
569 F.2d 199, 205-06 (3d Cir. 1977).
2. In Strickland v. Washington, supra, the United States
Supreme Court set forth the "general" test for determining
whether a criminal defendant was afforded his or her Sixth
Amendment right to effective assistance of counsel. The
Strickland court summarized its holding as follows:
A convicted defendant's claim that counsel's
assistance was so defective as to require reversal of
a conviction or death sentence has two components.
First, the defendant must show that counsel's
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed the defendant
by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors
were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that
the conviction or death sentence resulted from a
breakdown in the adversary process that renders the
Strickland, 466 U.S. at 687. See also U.S. v. Davies, supra.
3. With respect to the "performance" prong of the test, the
Strickland court observed that "the defendant must show that
counsel's representation fell below an objective standard of
reasonableness," that "[t]he proper measure of attorney
performance remains simply reasonableness under prevailing
professional norms," and that "the performance inquiry must be
whether counsel's assistance was reasonable considering all the
circumstances." Id. at 688.
4. With respect to the "prejudice" prong of the test, a
defendant must show that counsel's deficient performance
"actually had an adverse affect on the defense." Id. at 693.
The Strickland court provided further guidance with respect to
the "prejudice" prong by holding that "[t]he defendant must show
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.
5. In Roe v. Flores-Ortega, supra., The United States Supreme
Court considered the application of Strickland v. Washington to
the situation in which counsel does not file a notice of appeal.
Specifically, the Court considered the legal effect of failure to
file a notice of appeal "when the defendant has not clearly
conveyed his wishes one way or the other." Flores-Ortega,
528 U.S. at 477.*fn5 The Court described the proper inquiry into
effectiveness of counsel under such circumstances as follows:
In those cases where the defendant neither instructs
counsel to file an appeal nor asks that an appeal not
be taken, we believe the question whether counsel has
performed deficiently by not filing a notice of
appeal is best answered by first asking a separate,
but antecedent, question: whether counsel in fact
consulted with the defendant about an appeal. We
employ the term "consult" to convey a specific
meaning advising the defendant about the advantages
and disadvantages of taking an appeal, and making a
reasonable effort to discover the defendant's wishes.
If counsel has consulted with the defendant, the
question of deficient performance is easily answered:
Counsel performs in a professionally unreasonable
manner only by failing to follow the defendant's
express instructions with respect to an appeal. . . .
If counsel has not consulted with the defendant,
the court must in turn ask a second, and subsidiary,
question: whether counsel's failure to consult with
the defendant itself constitutes deficient
Flores-Ortega, 528 U.S. at 478 (emphasis added). See also
Lewis v. Johnson, 359 F.3d 646
, 654 (3d Cir. 2004).
6. The Flores-Ortega Court addressed the circumstances under
which "counsel's failure to consult with the defendant itself
constitutes deficient performance." The Court observed that "the
better practice is for counsel routinely to consult with the
defendant regarding the possibility of an appeal," but
nevertheless declined to impose "a bright-line rule that counsel
must always consult with the defendant regarding an appeal."
Id. at 479-80. With respect to whether failure to consult is
deficient performance, the Court held as follows: We . . . hold that counsel has a constitutionally
imposed duty to consult with the defendant about an
appeal when there is reason to think either (1) that
a rational defendant would want to appeal (for
example, because there are nonfrivolous grounds for
appeal), or (2) that this particular defendant
reasonably demonstrated to counsel that he was
interested in appealing. In making this
determination, courts must take into account all the
information counsel knew or should have known. . . .
Although not determinative, a highly relevant factor
in this inquiry will be whether the conviction
follows a trial or a guilty plea, both because a
guilty plea reduces the scope of potentially
appealable issues and because such a plea may
indicate that the defendant seeks an end to judicial
proceedings. Even in cases when the defendant pleads
guilty, the court must consider such factors as
whether the defendant received the sentence bargained
for as part of the plea and whether the plea
expressly reserved or waived some or all appeal
rights. Only by considering all relevant factors in a
given case can a court properly determine whether a
rational defendant would have desired an appeal or
that the particular defendant sufficiently
demonstrated to counsel an interest in an appeal.
Id. at 480.
7. To demonstrate the "actual prejudice" required by
Strickland, "a defendant must demonstrate that there is a
reasonable probability that, but for counsel's deficient failure
to consult with him about an appeal, he would have timely
appealed." Flores-Ortega, 528 U.S. at 484. The Court observed
that "[i]f the defendant cannot demonstrate that, but for
counsel's deficient performance, he would have appealed,
counsel's deficient performance has not deprived him of anything,
and he is not entitled to relief." Id. The Court also stated
that "evidence that there were nonfrivolous grounds for appeal or
that the defendant in question promptly expressed a desire to
appeal will often be highly relevant in making this
determination," that "a defendant can rely on evidence that he
sufficiently demonstrated to counsel his interest in an appeal,"
and that "a defendant's inability to `specify the points he would
raise were his right to appeal reinstated' will not foreclose the
possibility that he can satisfy the prejudice requirement where
there are other substantial reasons to believe that he would have
appealed." Id. at 485-86.
8. The Court finds and rules that Mr. Patton was not deficient
in his preparation for the sentencing hearing, i.e., his
preparation for the hearing did not fall below an objective
standard of reasonableness. Strickland, 466 U.S. at 688. The
evidence of record reflects that Mr. Patton, as well as other
representatives of the Federal Public Defender's Office,
thoroughly researched and reviewed McClellan's case with him
prior to sentencing. The evidence of record also reflects that
Mr. Patton met with McClellan prior to the sentencing hearing
and, at the very least, advised Mr. McClellan of what to expect at the hearing.
9. The Court finds and rules that Mr. Patton was not deficient
in his failure to argue that McClellan was not a career offender
pursuant to section 4B1.1 of the Guidelines. As stated above, Mr.
Patton clearly had no basis in fact or law to challenge the
application of USSG § 4B1.1 to McClellan. Moreover, even if Mr.
Patton were deficient in failing to so argue, McClellan has not
demonstrated actual prejudice because the argument surely would
not have prevailed.
10. The Court finds and rules that Mr. Patton was not deficient
in his failure to argue that McClellan's criminal history
category substantially over-represented the seriousness of his
criminal history or the likelihood that he would commit other
crimes. As stated above, Mr. Patton clearly had no reasonable
basis in fact or law to argue that McClellan should receive a
downward departure pursuant to USSG § 4A1.3(b)(1). Moreover, even
if Mr. Patton were somehow deficient in failing to so argue,
McClellan has not demonstrated actual prejudice because the
failure to raise the issue had no adverse effect on McClellan's
defense, i.e., the argument would not have prevailed. See
Strickland, 466 U.S. at 693.
11. The Court finds and rules that McClellan has not
demonstrated that Mr. Patton was deficient due to his failure to
file a notice of appeal. The credible evidence of record reflects
that Mr. Patton consulted with McClellan about an appeal and
McClellan indicated that he did not wish to appeal. Under these
circumstances Mr. Patton was clearly not deficient in failing to
file a notice of appeal. See Flores-Ortega, 528 U.S. at 478
("If counsel has consulted with the defendant, the question of
deficient performance is easily answered: Counsel performs in a
professionally unreasonable manner only by failing to follow the
defendant's express instructions with respect to an appeal.").
12. Assuming, arguendo, that Mr. Patton did not consult with
McClellan after sentencing about whether to appeal, McClellan has
nevertheless failed to demonstrate that Mr. Patton's performance
was deficient. Significantly, McClellan entered a plea of guilty
to the charges, was apprised of his guidelines range prior to the
sentencing proceeding, has not identified a non-frivolous ground
for appeal, did not express his desire to appeal to Mr. Patton,
and decided that he wanted to appeal approximately eight to ten
months after he was placed with the Bureau of Prisons. In addition, the Court specifically asked McClellan at
the sentencing hearing whether he wanted the Clerk of Court to
file an appeal on his behalf, to which he responded "no." Sent.
Hrg. Tr. at 13. Under these circumstances there was no reason for
Mr. Patton to have thought that either a rational defendant in
McClellan's position would want to appeal, or that McClellan
reasonably demonstrated that he was interested in appealing.
Flores-Ortega, 528 U.S. at 480.
13. Assuming, arguendo, that Mr. Patton actually was
deficient in failing to consult with McClellan about his
appellate rights, the Court finds and rules that McClellan has
not demonstrated the "actual prejudice" required by Strickland
and Flores-Ortega. McClellan was well aware of his right to
appeal at and immediately after sentencing, and he consciously
decided to appeal his sentence approximately eight to ten months
later, after having conducted some legal research while in
prison. Under these circumstances McClellan has not demonstrated
"that there is a reasonable probability that, but for counsel's
deficient failure to consult with him about an appeal, he would
have timely appealed." Flores-Ortega, 528 U.S. at 484. Instead,
because McClellan did not want to appeal immediately after
sentencing, and decided to appeal after many months of
imprisonment, this is a situation where "counsel's deficient
performance has not deprived him of anything, and he is not
entitled to relief." Id.
14. Finally, McClellan contends in his Petition that "counsel
was ineffective for failing to conduct an adequate pretrial
investigation, that a reasonably competent attorney would have
discovered the specific piece or body of evidence to alter the
outcome of his plea arrangement, and length of incarceration."
Petition at 5. Counsel did not introduce any evidence germane to
this issue at the hearing. See Hrg. Tr. at 4-5. However, in his
brief counsel for McClellan observes that "certain of the
testimony at the hearing of June 23, 2005 may have implicated
that issue with respect to either Mr. Mariani or Mr. Patton."
Brief at 3 n. 1.
15. The Court has thoroughly reviewed the record for any
evidence to support the foregoing argument. The Court has found
no evidence that either Mr. Mariani or Mr. Patton failed to
conduct an adequate pretrial investigation or inappropriately
advised McClellan regarding his guilty plea and/or his decision
to maintain his guilty plea. Therefore, the Court finds and rules
that McClellan has not demonstrated that Mr. Mariani and/or Mr.
Patton were deficient in their investigation of the charges against him. The Court also finds
and rules that McClellan has not demonstrated that said attorneys
were deficient in their advice to McClellan regarding the entry
of his guilty plea or his decision to maintain his guilty plea.
For the reasons hereinabove stated, the Petition to Vacate, Set
Aside or Correct Sentence filed by petitioner Frank Todd
McClellan will be denied. An appropriate Order follows. ORDER OF COURT
AND NOW, this 14th day of November, 2005, upon consideration of
petitioner Frank Todd McClellan's Petition Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody (Document No. 48), and after an evidentiary hearing
followed by oral argument of counsel and Petitioner's Brief in
Support of Petition to Vacate Sentence Pursuant to
28 U.S.C. § 2255, the Court enters the foregoing Findings of Fact and
Conclusions of Law.
NOW THEREFORE, it is hereby ORDERED, ADJUDGED, and DECREED as
1. Frank Todd McClellan's Petition Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (Document No. 48) is
2. A certificate of appealability is DENIED as
Frank Todd McClellan has not made a substantial
showing of a denial of a constitutional right; and
3. Judgment in favor of respondent United States of
America will be entered and the Clerk shall docket
this case as closed.
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