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United States v. Dwumaah

December 5, 2007

UNITED STATES OF AMERICA
v.
KWAME DWUMAAH



The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

MEMORANDUM

Presently before the court is defendant's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 Defendant asserts multiple theories in support of his motion to vacate. Specifically, defendant argues that:

(1) he received ineffective assistance of counsel in violation of his Sixth Amendment rights, (2) the court did not advise him of all of the consequences of a guilty plea in violation of his due process rights, and (3) a number of non-jurisdictional defects surrounded his guilty plea and sentencing proceedings. (See Docs. 84, 91.) Because the record contradicts these claims, the court will deny defendant's motion.

I. Procedural History

On April 27, 2005, defendant was indicted by a federal grand jury on fifteen counts of mail fraud under 18 U.S.C. § 1343 and thirteen counts of higher education resources fraud under 20 U.S.C. § 1097(a). (Doc. 1.) On August 30, 2005, pursuant to a written plea agreement, defendant entered a plea of guilty to a misdemeanor information charge of theft of public monies under 18 U.S.C. § 641. (See Docs. 33, 37.) Defendant was sentenced to five months imprisonment followed by one year of supervised release on January 19, 2006, and judgment was entered. (Docs. 43, 59.)

Defendant appealed his sentence to the United States Court of Appeals for the Third Circuit on January 26, 2006. (See Doc. 45.) On May 31, 2006, the Third Circuit affirmed defendant's sentence and dismissed without prejudice his ineffective assistance of counsel claims. (Doc. 60.) On September 18, 2006, defendant filed a motion for a writ of error coram nobis under 28 U.S.C. § 1651 (Doc. 71), which this court denied without prejudice to defendant's right to file a motion under 22 U.S.C. § 2255. (See Doc. 79.) Defendant filed the instant motion to vacate his sentence (Doc. 84) under § 2255 on February 26, 2007. The motion has been fully briefed and is ripe for disposition.

II. Discussion

As a threshold matter, the court must decide whether defendant's § 2255 motion (Doc. 84) is moot. The court recognizes that defendant's supervised release term expired on June 19, 2007 (see Doc. 92); therefore, defendant is no longer "in custody" as defined by § 2255. See 28 U.S.C. § 2255; United States v. Essig, 10 F.3d 968, 970 n.3 (3d Cir. 1993) (writing that for purposes of § 2255, a petitioner is "in custody" if the petitioner is incarcerated or is serving a period of supervised release). This court has held that a defendant's motion to vacate a sentence under § 2255 is moot where the defendant is neither in custody nor under supervision at the time a § 2255 motion is filed. See United States v. Griffith, No. Crim. 3-CR-040004, 2005 WL 2648340, at *3-4 (M.D. Pa. Oct. 17, 2005); see also United States v. Stuler, No. Crim. 01-35, 2006 WL 1425693, at *2 (W.D. Pa. May 18, 2006) (same). However, the matter sub judice involves a different factual situation than the Griffith and Stuler decisions because defendant's term of supervised release ended subsequent to his filing the instant § 2255 motion.

Having determined that the Griffith and Stuler are inapposite, the court will apply the principle enunciated by the Third Circuit in Defoy v. McCullough, 393 F.3d 439 (3d Cir. 2005), which stated that "a petition for habeas corpus relief generally becomes moot when a prisoner is released from custody before the court has addressed the merits of the petition." Id. at 441 (citing Lane v. Williams, 455 U.S. 624, 631 (1982)).*fn2 In Defoy, the Third Circuit also recognized an exception to the general mootness rule, referred to as the collateral consequences doctrine, which "applies where a former prisoner can demonstrate he will suffer some collateral consequences if his conviction is allowed to stand." Id. at 442 n.3; see also United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988) (holding that a defendant's motion to vacate his conviction under § 2255 was not rendered moot when he was released from custody because he faced potential deportation as a collateral consequence of the conviction). In the instant case, defendant does not specifically mention the collateral consequences doctrine, but alleges that he is involved in both an immigration proceeding and a disciplinary action regarding his occupational license. (See Doc. 91 at 1-2.) In an abundance of caution, the court will construe these allegations as a collateral consequences argument and will hold that defendant's § 2255 motion is not moot.*fn3 With the foregoing in mind, the court will address defendant's arguments seriatim.

A. Ineffective Assistance of Counsel Claim

Defendant's primary argument in the instant matter is that he received ineffective assistance of counsel, which led him to plead guilty instead of proceeding to trial. (See Doc. 91.) Defendant alleges that counsel committed a number of errors, including: (1) providing defendant with false information that led him to plead guilty (id. at 1-2); (2) tricking defendant into pleading guilty (id. at 1); (3) failing to advise defendant that he was not guilty based upon the facts of the case (id. at 5); and (4) failing to provide defendant with sufficient information to make a voluntary plea (id. at 6). A defendant claiming ineffective assistance of counsel in violation of the Sixth Amendment must show that: (1) counsel's representation was objectively unreasonable,*fn4 and (2) counsel's deficient performance was prejudicial.*fn5 See Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000) (citing Strickland v. Washington, 466 U.S. 668 (1984)).

At the outset, the court recognizes that a guilty plea "constitute[s] a formidable barrier in any subsequent collateral proceedings" because "[s]olemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977). To overcome this presumption, defendant essentially argues that because of counsel's errors, his guilty plea was not voluntary and intelligent.*fn6 See Bousley v. United States, 523 U.S. 614, 618 (1998) ("A plea of guilty is constitutionally valid only to the extent it is 'voluntary' and 'intelligent.'") (citation omitted). The Third Circuit has not directly addressed the question of "whether counsel's error in advising a client regarding the collateral consequences of a guilty plea . . . is fundamental to that conviction such that it can constitute objectively unreasonable representation under the first prong of Strickland." United States v. Babalola, No. 06-3887, 2007 WL2745769, at *4 (3d Cir. Sept. 21, 2007). The court need not decide this unsettled question, however, because defendant cannot establish the second Strickland prong. See id.

Assuming arguendo that defendant can demonstrate that counsel's performance was objectively unreasonable under the first prong of the test enunciated in Strickland,*fn7 the court finds that defendant cannot satisfy the second prong by establishing prejudice. When a defendant pleads guilty and subsequently claims ineffective assistance of counsel, the Third Circuit has interpreted the prejudice prong to require the defendant to show a reasonable probability both that: (1) but for counsel's errors he would not have pled guilty but would have instead proceeded to trial, ...


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