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United States v. George

December 6, 2006

UNITED STATES OF AMERICA
v.
STEPHEN GEORGE



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

MEMORANDUM OPINION

Electronically Filed

Before the Court is defendant Stephen George's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person In Federal Custody ("Motion to Vacate") (doc. no. 37). On February 2, 2006, this Court sentenced defendant to a term of imprisonment of 71 months, three years supervised release, and a $100.00 special assessment, based upon his conviction, pursuant to his guilty plea, for being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

Motion to Vacate

Defendant asserts that his sentence should be vacated or put aside because there "were never any laboratory findings on the firearm to see if the firearm was operable." Motion to Vacate, ¶12, Ground One. Defendant also asserts that his attorney asked the government for all the "Local Criminal Rule 16.1 material" that the government "had against me and I never received any material stating that there were tests done on the firearm or any information that the firearm worked or existed." Motion to Vacate, ¶ 12, Ground Two.

In a supplemental "Motion for Habeas Corpus and Section 2255 Proceedings (doc. no. 37 at 13-14), defendant asserts that "if firearm is not operable than [sic] it's not a firearm . . . " and, therefore, "argues the Government does not have Prima Facie evidence, prosecutorial suspicion and conjecture is not evidence, and is unacceptable, the Government must show the presence of every element necessary to constitute each offense charged and the defendants complicity in each offense." Id. at ¶¶ 6-7. On these grounds, defendant moves the Court to "set aside defendant's sentence and plea to attack Government's collateral." Motion to Vacate, Request for Relief, at 13 (doc. no. 37 at 12).

Under 28 U.S.C. § 2255, a judge must determine whether to summarily dismiss the petition under Rule 4(b) of the Rules Governing § 2255 Proceedings ("If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party."), or to order an evidentiary hearing under Rule 8 of the Rules Governing § 2255 Proceedings.

A district court should hold an evidentiary hearing in section 2255 cases unless "the motion, files and records show conclusively that the movant is not entitled to relief." United States v. Nahodil, 36 F.3d 323 (3d Cir. 1994). In deciding whether to hold a hearing, a judge may draw upon personal knowledge and recollection of the events that occurred in his or her presence. See Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1077 (3d Cir. 1985).

Thus, a section 2255 motion may be denied summarily pursuant to section 2255 and Rule 4(b) of the Rules Governing § 2255 Proceedings if the movant's allegations, accepted as true, do not state a claim for relief. Accepting defendant George's allegations as true, the motion and the files and records of the case conclusively show that he is not entitled to relief, and under Rule 4(b), this Court "must dismiss the motion."

First, a counseled and voluntary guilty plea may not be collaterally attacked in a habeas corpus action. Lesko v. Lehman, 925 F.2d 1527, 1537 (3d Cir. 1991), citing Mabry v. Johnson, 467 U.S. 504, 508 (1984). A plea of guilty and the ensuing conviction "comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary." United States v. Broce, 488 U.S. 563, 569 (1989). If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack.

Defendant was ably counseled when he entered his general plea of guilty in open court before another member of this Court on September 19, 2005, who found, after an extensive colloquy, that defendant was competent to plead guilty, that he fully understood the nature of the proceedings, the consequences of and the factual basis for the plea, and that he entered his plea knowingly and voluntarily. The Court also found that defendant understood the elements of the offense charged and the government's burden of proving each of those elements if the case would go to trial, that he agreed with the government's factual recitation supporting the offense charged, and that he admitted to being a convicted felon in possession of a firearm.

Accordingly, defendant cannot collaterally attack his voluntary, counseled guilty plea by motion to vacate or set aside under 28 U.S.C. § 2255.

Second, his argument that his plea should be set aside and his sentence vacated because he never saw the laboratory report and because the government "does not have Prima Facie evidence" is doomed from the outset. Defendant pleaded guilty to one count of being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Section 922(g)(1) provides: "It shall be unlawful for any person -- (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to possess in or affecting commerce, any firearm or ammunition . . . ." In order to establish a violation of § 922(g)(1), the government must prove each of the following elements beyond a reasonable doubt:

(1) that the defendant previously was convicted of a crime punishable by a term of imprisonment exceeding one year; (2) that the defendant knowingly possessed a firearm; and, (3) that the defendant's possession of the firearm was in or affecting interstate commerce. United States v. Dodd, 225 F.2d 340, 344 (3d Cir. 2000). "Firearm" excludes antique firearms, but otherwise "means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the ...


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