United States District Court, M.D. Pennsylvania
December 1, 2005.
UNITED STATES OF AMERICA
JEFFREY DAVID WASHINGTON, Petitioner.
The opinion of the court was delivered by: WILLIAM NEALON JR., Senior District Judge
MEMORANDUM and ORDER
Presently before the court is a motion to vacate, set aside, or
correct sentence by a person in federal custody pursuant to
28 U.S.C. § 2255, filed by Defendant on May 23, 2005. (Doc. 73).
Following a guilty plea in this court to possession with the
intent to distribute in excess of five grams of cocaine base
(crack), Petitioner was sentenced 262 months incarceration on
June 13, 2002.*fn1
After the present petition was filed, on May 31, 2005, the
court advised the Petitioner that he could have the motion ruled on as filed, have
his motion recharacterized as a § 2255 motion and heard as such,
but in that event lose his ability to file a second or successive
petition absent certification by the court of appeals, or
withdraw his petition and file one all-inclusive § 2255 petition
within the one-year statue of limitations period prescribed by
the Antiterrorism and Effective Death Penalty Act. Id. at 646.
(Doc. 74). Moreover, he was advised that if he dismissed the
instant petition in order to file one all-inclusive petition, the
AEDPA's statute of limitations might bar the filing of any such
successive petition. Because no Notice of Election was filed with
the court, on July 15, 2005, the court determined that the motion
would be ruled upon as filed, and directed service on the
Government. After a Response to the petition was filed by the
Government on September 16, 2005 (Doc. 78), the Defendant filed a
Reply thereto on October 4, 2005. (Doc. 79).*fn2 The matter
is now ripe for disposition. For the reasons that follow, the motion will be dismissed.
On July 17, 2001, Washington was indicted by a federal grand
jury on one (1) count of possession with the intent to distribute
in excess of five grams of cocaine base (crack). He subsequently
entered a plea of guilty on December 5, 2001, and was sentenced
on June 13, 2002 to a 262 month term of incarceration. A direct
appeal to the Court of Appeals for the Third Circuit was filed by
way of a Notice of Appeal to the district court on June 13, 2002.
(Doc. 58). On June 2, 2004, the Court of Appeals affirmed his
conviction and sentence, finding that it lacked jurisdiction over
a direct appeal inasmuch as Washington had knowingly and
voluntarily waived his appellate rights in the plea agreement.
(Docs. 69-70). The present motion followed.
A federal criminal defendant's sentence is subject to
collateral attack in a proceeding before the sentencing court
pursuant to 28 U.S.C. § 2255. See, e.g., United States v.
Adonizio, 442 U.S. 178, 185 (1979). When a petitioner fails to
properly raise his claims on direct review, a motion to vacate
can only offer relief if the petitioner establishes "cause" for
the waiver and further shows actual prejudice resulting from the
alleged violation. Reed v. Farley, 512 U.S. 339, 354 (1994). Additionally, a post-conviction motion to vacate can not
properly be used to re-litigate questions that were raised and
answered on direct appeal. United States v. DeRewal,
10 F.3d 100, 105, n. 4 (3d. Cir. 1993). Petitioner makes the following
contentions regarding his conviction and sentence:
(1) that he received ineffective assistance of
counsel when counsel failed to object to the
government's breach of the plea agreement and
misinformed his as to the possibility of withdrawing
a guilty plea once it had been entered and the plea
(2) that the Government breached the plea agreement;
(3) that his sentence was illegal in light of United
States v. Booker, 128 S. Ct. 738 (2005).
The Government contends that this court lacks jurisdiction over
the present motion inasmuch as Washington waived, as part of the
plea agreement, not only his right to pursue a direct appeal but
also his right to collaterally attack his sentence. Waivers of
appeal are permissible and enforceable. U.S. v. Khattak,
273 F.3d 557
(3d Cir. 2001). See also United States v. Teeter,
257 F.3d 14
(1st Cir. 2001); United States v. Fisher,
232 F.3d 301
(2d Cir. 2000); United States v. Brown, 232 F.3d 399
Cir. 2000); United States v. Branam, 231 F.3d 932 (5th Cir. 2000); United States v. Fleming, 239 F.3d 761
2001); United States v. Jemison, 237 F.3d 911
(7th Cir. 2000);
United States v. Estrada-Bahena, 201 F.3d 1070
(8th Cir. 2000);
United States v. Nguyen, 235 F.3d 1179
(9th Cir. 2000); United
States v. Rubio, 231 F.3d 709
(10th Cir. 2000); Unites States
v. Howle, 166 F.3d 1166
(11th Cir. 1999). In examining the
legality of waiver-of-appeals provisions in guilty plea
agreements, the Third Circuit Court of Appeals has held that such
waivers are valid if entered into knowingly and voluntarily,
unless enforcing the waiver would work a miscarriage of justice.
Khattak, 273 F.3d at 562-63. In determining whether the waiver
was knowing and voluntary, the Court of Appeals considered
whether the sentencing judge complied with the requirements of
Federal Rule of Criminal Procedure 11, which requires that,
before accepting a guilty plea, the court address the defendant
and determine that the defendant understands, among other things,
the terms of any provision in a plea agreement waiving the right
to appeal or collaterally attack the sentence. Id. at 563;
In dismissing his appeal, the Third Circuit observed that
Washington's plea agreement provided that he "waive[d] [his]
right to challenge any sentence or the manner in which his
sentence was determined in any collateral proceeding, including
but not limited to a motion brought under Title 18, United States
Code, Section 2255." (Docs. 28, 69). The decision further concluded
that the Statement of the Defendant also reflected that he
understood, as part of the plea agreement, that he waived his
right "to appeal and/or challenge [his] conviction and sentence."
(Docs. 29, 69). Further, the Court of Appeals noted:
[The] District Court specifically questioned
Washington's understanding of his waiver. The Court
asked: if he had signed, read and understood the plea
agreement; if he had discussed it with his counsel;
if he had had enough time to discuss it with his
counsel; if his counsel had explained everything in
it; and, if everything in it was true and correct.
Washington replied, "Yes." The Court then explained
the effect of the waiver on his rights to appeal and
to collaterally attack the proceedings and the
sentence imposed, and asked whether he understood of
[sic] all this. Again, Washington replied, "Yes." The
Court concluded, on the basis of this thorough
colloquy, that Washington had waived his rights of
appeal knowingly and voluntarily. We agree.
(Doc. 69, p. 3). Additionally, this court had previously
addressed whether Washington knowingly and voluntarily entered
his guilty plea in denying his motion to withdraw his guilty
plea, wherein it stated:
In the course of the plea colloquy, the Defendant was
asked questions to confirm that he was competent to
plead guilty and that his plea was knowing, voluntary
and intelligent. The Defendant was also informed of
his right not to plead guilty and to go to trial, his
right to exercise his constitutional right not to
testify and his presumption of innocence at trial. At
the plea proceedings, the Defendant was asked
specifically whether he was satisfied with his counsel's representation and whether Defendant had
sufficient time and opportunity to discuss the case
with him. The court further ensured that the
defendant understood the elements of the offenses to
which he was pleading guilty as well as the mandatory
minimum and maximum penalties for the offense.
Based on the plea colloquy, the court is absolutely
satisfied that Defendant understood every inquiry and
that his plea was entered knowingly and voluntarily.
He was given every opportunity to make any inquiry
during the colloquy. There was no contradiction or
confusion, doubt or misunderstanding. He has
completely failed to advance a fair and just reason
for withdrawing his guilty plea. United States v.
Martinez, supra. Under the circumstances outlined
above, to allow the defendant to withdraw his
voluntary plea of guilty by advancing reasons
contrary to his statements under oath at the plea
proceedings would make a mockery of Rule 11 and the
See Doc. 40 (March 7, 2002 Order denying motion to withdraw
Based on these facts, it is concluded that Washington's waiver
of his right to pursue a collateral attack of his conviction and
sentence was knowing and voluntary. The court finds, therefore,
that it is without jurisdiction over the present motion based on
his waiver of his right to file a collateral attack of his
sentence. However, assuming, arguendo, that he had not waived
his rights to file such a motion, the arguments raised would be
denied on their merits.
In United States v. Lockett, 406 F.3d 207, 214 (3d Cir.
2005), the court of Appeals for the Third Circuit specifically
held that enforcement of a waiver of appellate rights regarding possible Booker claims does not
constitute a miscarriage of justice. Noting the Supreme Court's
decision in Brady v. United States, 397 U.S. 742, 757 (1970),
which held that changes in the law benefitting the defendant
subsequent to a plea agreement do not make the agreement less
binding, the Third Circuit stated that the "possibility of a
favorable change in the law occurring after a plea agreement is
merely one of the risks that accompanies a guilty plea."
Lockett, 406 F.3d at 214. In the present case, Washington faced
a similar risk when he entered his guilty plea and waived his
right to collaterally attack his sentence. Therefore, enforcing
Petitioner's waiver regarding his potential Blakely/Booker
claims does not constitute a miscarriage of justice.*fn3
Ineffective Assistance of Counsel
In Strickland v. Washington, 466 U.S. 668 (1984), reh'g
denied, 467 U.S. 1267 (1984), the Supreme Court set forth "the
two components of an ineffective-assistance of counsel claim" as
"(1) deficient performance; and (2) prejudice." Lockhart v.
Fretwell, 506 U.S. 364, 369 (1993) citing Strickland. The test for judging a claim of ineffectiveness of counsel is whether
the counsel's conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied upon as
having produced a just result. See Strickland v. Washington,
466 U.S. 668, 684 (1984), reh'g denied, 467 U.S. 1267 (1984).
The Court developed a two-prong test requiring the criminal
defendant to show that: (1) counsel performance fell below an
objective standard of reasonableness and, (2) the deficient
performance prejudiced the defense. Id. See also Deputy v.
Taylor, 19 F.3d 1485, 1493 (3d Cir.), cert. denied,
512 U.S. 1230 (1994). Prejudice has been defined as a "showing that
counsel's errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable." Id. at 687. See
also Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992), cert.
denied, 507 U.S. 954 (1993) ("[A] petitioner must demonstrate a
reasonable probability that, but for the unprofessional errors,
the result would have been different . . . [.]").
Moreover, there is a presumption that the attorney's conduct
comes within "the wide range of reasonable professional
assistance." Strickland at 689. The petitioner "must overcome a
strong presumption that counsel's conduct falls within a wide
range of reasonable professional assistance." Reinert v.
Larkin, 211 F. Supp. 2d 589, 595 (E.D.Pa. 2002) citing
Strickland. The standard for ineffectiveness is a demanding one
under which a habeas petitioner must prove the "gross incompetence" of his counsel. Kimmelman v. Morisson,
477 U.S. 365, 382, 106 S.Ct. 2574 (1986). Thus, "[j]udicial scrutiny
of counsel's performance must be highly deferential."
Strickland, supra, at 689.
In the instant petition, Washington maintains that he received
ineffective assistance of counsel during the plea process. Walter
Lesnevich, Esquire, an attorney privately retained to represent
Washington, was counsel of record from shortly after his initial
appearance through the change of plea. Mr Lenevich was allowed to
withdraw his representation due, in large measure, to Mr.
Lesnevich's averments that Washington would not communicate with
him nor would his family respond to Mr. Lesnevich's inquiries.
Moreover, the sentence Petitioner received, a term of 262 months,
is far less severe than the potential sentence of 325 moths he
would have faced under the guidelines, or a possible term of life
in prison had he proceeded to trial and been convicted.
Consequently, one could conclude that counsel was quite effective
in representing him by avoiding a sentence far greater that than
he ultimately received. It cannot be concluded either that
counsel performance was deficient or that Washington was
prejudiced by counsel's performance.
Additionally, the court has determined that his plea colloquy
sufficiently advised him of his rights and that he was
well-informed as to the knowing and voluntary nature of the plea. Therefore, it will not now conclude
that counsel was ineffective in failing to properly advise him of
the plea's implications when he stated, under oath, that he had
sufficient time to review the plea agreement, that he had
sufficient time to discuss the matter with his counsel and that
he understood not only that his ultimate sentence may be
different from that called for in the plea agreement, but also
that he could not later move to withdraw the plea if his sentence
turned out to be more sever than he anticipated. Most
importantly, he admitted he was guilty as charged in the
indictment. His argument, therefore, lacks merit. A failure to
raise a meritless argument is not grounds for finding ineffective
assistance of counsel. See Sistrunk v. Vaughn, 96 F.3d 666,
671 (3d Cir. 1996) (failure to raise arguments that would be
overruled under prevailing law is not ineffective assistance).
Consequently, this argument will be rejected. A claim that
counsel failed to object to the Government's purported breach of
the plea agreement is an argument that is likewise without merit,
for the reasons set forth below.*fn4 Breach of Plea Agreement by Government
Finally, Washington maintains that the Government breached the
plea agreement when it failed to recommend a three (3) level
downward departure for acceptance of responsibility. Washington
avers that the Government offered to recommend a sentence of
188-235 months in exchange for his guilty plea but, at
sentencing, it advocated a sentence of 262-327 months.*fn5
The Government's position is that Washington, in maintaining his
innocence of the charges, did not warrant a downward departure
for acceptance of responsibility. It further notes that if
Washington had been so entitled and received such a reduction,
his exposure would have been in the range of 188-235 months.
Consequently, the Government asserts that it is the actions of
the Defendant, by denying responsibility and professing his
innocence at sentencing, which took him out of the lower range,
despite having earlier admitted his guilt under oath. The court
agrees, and finds this argument by Washington to be meritless.
Motion to Amend
Petitioner also filed a Motion to Amend (Doc. 82) on October
20, 2005. However, inasmuch as the court permitted Petitioner until
November 13, 2005 to execute a Notice of Election, which allowed
him to withdraw his motion to file an all-inclusive motion within
the applicable statute of limitation, the court finds this motion
For the reasons set forth herein above, the motion to vacate,
set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Doc.
73) will be dismissed. An appropriate order follows.
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