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Scales v. United States

November 25, 2008

STEVEN EDWARD SCALES STEVEN SCALES, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM OPINION

Pending 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 ("petitioner's motion") (Doc. No. 356) filed by petitioner Steven Edward Scales ("petitioner"). After reviewing petitioner's motion and the government's brief in opposition and the proposed findings of fact and conclusions of law submitted by each party, the court will deny petitioner's motion for the reasons set forth herein.

I. Background

On October 28, 2003, a federal grand jury returned a one-count indictment charging, among others, petitioner and Rebekah Crux ("Crux" and together with petitioner, "defendants") with conspiracy to distribute and possession with intent to distribute five (5) kilograms or more of cocaine from in or around January 2000 to May 23, 2002 in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 846. (Doc. No. 1.) A superseding indictment was filed on December 4, 2003, charging defendants with one count of conspiracy to distribute and possession with the intent to distribute five (5) kilograms or more of cocaine from in or around January 2000 to May 23, 2002 in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 846, and one count of possession with intent to distribute five hundred (500) grams or more of cocaine on or about April 29, 2002, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), and 18 U.S.C. § 2. (Doc. No. 6.)

On February 24, 2004, petitioner pled not guilty at his arraignment. On July 12, 2005, the government filed an information to establish a prior conviction of petitioner. (Doc. No. 306.) On July 13, 2005, petitioner withdrew his plea of not guilty and pled guilty to count one of the superseding indictment. (Doc. No. 310.) During the hearing held with respect to petitioner's entry of a guilty plea, the plea agreement was entered into evidence. (Doc. No. 311.) On October 13, 2005, petitioner was sentenced to imprisonment for a term of 262 months to be followed by supervised release for a term of four years. (Doc. No. 334.) Although petitioner did not appeal his sentence, "there is no procedural default for failure to raise an ineffective assistance claim on direct appeal." Massaro v. United States,538 U.S. 500, 503-04 (2003).*fn1

On August 25, 2006, the clerk of court received and filed petitioner's motion. In the motion, petitioner listed five grounds for his claim that he is being held in violation of the Constitution, laws, or treaties of the United States and his prayer for relief that the court vacate, set aside, or correct his sentence. Specifically, petitioner alleged (1) the court was without jurisdiction to impose an enhanced sentence because the information required by 21 U.S.C. § 851 and the service of notice relating to this information were made after petitioner pled guilty; (2) petitioner was denied the effective assistance of counsel in violation of the Sixth Amendment because his counsel, James DePasquale, Esq. ("DePasquale"), failed to object to the defect in the government's section 851(a)(1) information, (3) petitioner was denied the effective assistance of counsel in violation of the Sixth Amendment because his defense counsel failed to object to the designation of petitioner as a career offender; (4) petitioner was denied the effective assistance of counsel in violation of the Sixth Amendment because his counsel induced him to enter a guilty plea based upon false promises; and (5) petitioner was denied the effective assistance of counsel in violation of the Sixth Amendment because his counsel declined to pursue an appeal as requested by petitioner.

On August 29, 2006, the court issued a notice that the petitioner's motion was filed and directed the government to file a response and a brief in opposition on or before September 18, 2006. On September 18, 2006, the government filed its response in opposition. (Doc. No. 359.) Petitioner was appointed counsel to represent him in connection with his motion. An evidentiary hearing was held on May 1, 2008. (Doc. No. 382.) At the hearing, petitioner was represented by counsel. Petitioner and his former counsel testified.

On this 25th day of November 2008, the court makes the following findings of fact and conclusions of law with respect to petitioner's motion.

II. Standard of Review

A district court is required to hold an evidentiary hearing on a motion to vacate sentence filed pursuant to 28 U.S.C. § 2255 unless the motion and files and records of the case show conclusively that the movant is not entitled to relief. 28 U.S.C. § 2255 ("Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto."); United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005).

Under 28 U.S.C. § 2255, a federal prisoner in custody may move the court which imposed the sentence to vacate, set aside, or correct the sentence upon the ground 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." The Supreme Court recognizes that the statute provides four grounds upon which relief can be granted:

(1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" and (4) that the sentence "is otherwise subject to collateral attack." 3 CHARLES A. WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 593 at 695 (3d ed. 2004)

(quoting Hill v. United States, 368 U.S. 424, 426-27 (1962)). The statute provides as a remedy for a sentence imposed in violation of law that "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255. In this motion only the first two grounds -- that the sentence was imposed in violation of the Constitution or laws of the United States and that the court was without jurisdiction to impose the sentence -- are implicated.

III. Findings of Fact

A. Petitioner's Arrest and the Government's 21 U.S.C. § 851 Information

1. Petitioner was arrested on state charges on April 29, 2002. The state charges were based upon the same conduct charged in the instant case. Petitioner was released on bond for the state charges. (Evid. Hr'g Tr. 5/1/2008 at 8-9.)

2. On December 4, 2003, petitioner was indicted in a superseding indictment for the instant offense. (Petitioner's proposed findings of fact ("Pet'r's Facts") ¶ 1.)

3. On or about January 26, 2004, petitioner was arrested in Kansas in relation to the instant offense. He was then extradited to the Western District of Pennsylvania. (Pet'r's Facts ¶ 2.)

4. DePasquale was initially hired by petitioner to represent him with respect to the state charges. (Evid. Hr'g Tr. 5/1/2008 at 8.) Petitioner retained DePasquale to represent him in the instant case. (Pet'r's Facts ¶ 3.) DePasquale spent more time with petitioner than any other client DePasquale ever had. (Evid. Hr'g Tr. 5/1/2008 at 84-85.) Petitioner would call DePasquale a couple times each week, and DePasquale would go to see petitioner at least once a month and often once a week while petitioner was incarcerated at the Allegheny County Jail. (Evid. Hr'g Tr. 5/1/2008 at 85, 92.)

5. Petitioner asked DePasquale many questions. Often the questions were not pertinent, but DePasquale would nonetheless answer them. (Evid. Hr'g Tr. 5/1/2008 at 92.) Petitioner also would frequently repeat the same questions, and DePasquale continuously gave consistent answers. (Evid. Hr'g Tr. 5/1/2008 at 105.) DePasquale spoke to petitioner in as plain language as possible. DePasquale did not at any time have difficulty communicating with petitioner. (Evid. Hr'g Tr. 5/1/2008 at 106.)

6. On February 24, 2004, petitioner entered a plea of not guilty at his arraignment for the instant offense. (Pet'r's Facts ¶ 4.)

7. Petitioner filed several motions to suppress evidence in instant case. Shortly before the suppression hearing, Assistant United States Attorney Mr. Gregory Nescott, Esq. ("Nescott") communicated a plea offer to DePasquale. DePasquale communicated the plea offer to petitioner. (Evid. Hr'g Tr. 5/1/2008 at 85.) Nescott offered to seek a term of imprisonment of a mandatory twenty years as opposed to mandatory life, in addition to withdrawing charges pending against petitioner in Kansas for which petitioner could have also faced a term of imprisonment of mandatory life. (Evid. Hr'g Tr. 5/1/2008 at 85-86.) Kurt Kearns ("Kearns") was petitioner's attorney in Kansas. After Nescott made the offer, petitioner, DePasquale, and Kearns participated in a conference call. During the call, DePasquale and Kearns recommended that petitioner accept the plea offer. Kearns was particularly forceful in his recommendation. Despite the advice, petitioner refused to accept the plea offer, because he personally thought he could obtain favorable outcomes in both cases. (Evid. Hr'g Tr. 5/1/2008 at 88.) DePasquale sent a letter dated October 11, 2004 to petitioner confirming the conference call and the government's offer. (Evid. Hr'g Tr. 5/1/2008 at 86; Evid. Hr'g 5/1/2008 Gov't Ex. 2.)

8. Petitioner rejected the plea offer, and the suppression hearing was held on December 8, 2004. After the hearing, the motions to suppress were denied. (Evid. Hr'g Tr. 5/1/2008 at 84; Mem. Op. (Doc. No. 236).)

9. After several months, certain other individuals indicted in the instant case agreed to cooperate with the government and accepted plea arrangements. Petitioner decided to reconsider the government's plea offer. (Evid. Hr'g Tr. 5/1/2008 at 89.) Under the plea offer, petitioner would acknowledge that he dealt 50 to 150 kilograms of cocaine. Petitioner thought the government could only prove that he dealt 8 kilograms of cocaine, but DePasquale advised him that the only way to contest the quantity of drugs would be to reject the plea offer. DePasquale told petitioner that rejecting the offer would be self-defeating, since he would then face mandatory life imprisonment. (Evid. Hr'g Tr. 5/1/2008 at 93.) Petitioner decided to accept a plea offer from the government. (Evid. Hr'g Tr. 5/1/2008 at 89.)

10. On July 12, 2005, an information was filed by the government under 21 U.S.C. § 851 to establish a prior conviction of a felony drug offense. (Pet'r's Facts ¶ 41; Respondent's proposed findings of fact ("Resp't's Facts") ¶ 18.) DePasquale received a copy of the section 851 information on July 13, 2005, at petitioner's change of plea hearing, prior to the entry of the guilty plea. (Evid. Hr'g Tr. 5/1/2008 at 106-07.)

11. On July 13, 2005, petitioner waived his right to a jury trial and pled guilty to count one of the superseding indictment, pursuant to the plea agreement. (Pet'r's Facts ¶¶ 9, 10, 66; Resp't's Facts ¶ 1.)

12. This court credits the testimony of petitioner's counsel, DePasquale, that DePasquale did not assure petitioner that an information would not be filed, that DePasquale received a copy of the 21 U.S.C. § 851 information at the hearing on his waiver of his right to a jury trial and entry of a guilty plea, and that petitioner was aware the information was filed before the July 13, 2005 change of plea hearing. (Evid. Hr'g Tr. 5/1/2008 at 106-07.)

13. During the hearing on petitioner's waiver of jury trial and entry of guilty plea, the court informed petitioner about the following:

The government has filed an information with the Court stating in writing a previous conviction to be relied upon during sentencing. The Government has informed the Court that it seeks an enhancement for reasons of a prior conviction on August 13, 1990, in the Court of Common Pleas of Allegheny County for a violation of the Controlled Substance, Drug and Device Act, possession with the intent to deliver cocaine, and violation of 35 Purdons Statutes, Section 780-113 (a)(30). (Plea Hr'g Tr. 7/13/2005 at 11.)

14. Prior to the waiver of jury trial and entry of guilty plea, petitioner was aware of the terms of the plea agreement. DePasquale visited petitioner at the Allegheny County Jail prior to the hearing, explained the contents of the plea agreement, had petitioner read the agreement, and then answered petitioner's questions with respect to the agreement. (Evid. Hr'g Tr. at 91-92, 101-02.)

15. During the hearing on petitioner's waiver of jury trial and entry of guilty plea, Nescott reviewed the terms of the plea agreement and stated that "[t]he Government in the plea letter reserves the right to file a Section 851 information which, as the Court noted, it has filed in this case." (Plea Hr'g Tr. 7/13/2005 at 14.) The court asked DePasquale, "do you agree that Mr. Nescott has correctly stated the terms of the plea agreement?" DePasquale answered "[y]es." The court also asked petitioner, "[d]o you agree that Mr. Nescott has correctly stated the terms of the plea agreement as you understand them?" Petitioner answered "[y]es, I understand them." The court further asked petitioner, "[d]id he state them the way that you understand them?" Petitioner answered "[y]es, he stated like I understand." (Id. at 14-16.)

16. The record clearly reflects that petitioner and his counsel were aware the 21 U.S.C. § 851 information was filed prior to the time petitioner waived his right to a jury trial and entered a guilty plea. (Resp't's Facts ¶ 17; Plea Hr'g Tr. 7/13/2005 at 11-12; Evid. Hr'g Tr. 5/1/2008 at 106-07.)

B. Designation of Petitioner as a Career Offender

17. On the date of the hearing on petitioner's waiver of right to jury trial and entry of guilty plea, petitioner had three prior felony drug convictions: (1) on August 13, 1990, petitioner pled guilty in the Allegheny County Court of Common Pleas to Violation of the Controlled Substance, Drug, Device, and Cosmetic Act: Possession of Cocaine; (2) on January 17, 1990, petitioner pled guilty in the Westmoreland County Court of Common Pleas to Violation of the Controlled Substance, Drug, Device, and Cosmetic Act: Possession With Intent to Deliver Crack Cocaine, Possession of a Small Amount of Marijuana; and (3) on April 7, 1994, petitioner was found guilty in the Westmoreland County Court of Common Pleas to Violation of the Controlled Substance, Drug, Device, and Cosmetic Act: Possession With Intent to Deliver Cocaine, Possession of Cocaine, Possession of Drug Paraphernalia. (Presentence Investigation Report ("PIR") ¶¶ 42-44.)

C. Petitioner's Plea Agreement and Entry of Guilty Plea

18. This court credits the testimony of DePasquale that petitioner always knew he was facing a mandatory twenty-year sentence, and that there was a possible mandatory life sentence. DePasquale reviewed the sentencing guidelines with petitioner. DePasquale told petitioner that he was facing a mandatory twenty-year sentence, and that the best he could hope for was a downward departure from the advisory guideline range, which at the low end was 262 months, to the mandatory minimum of 240 months. (Resp't's Facts ¶ 17; Evid. Hr'g Tr. 5/1/2008 at 103-07.)

19. At the time of the change of plea hearing, petitioner was 36 years old. (Plea Hr'g Tr. 7/13/2005 at 4.) Petitioner had appeared before judges for either a change of plea hearing or trial on at least five previous occasions. (Resp't's Facts ¶ 8; Evid. Hr'g Tr. 5/1/2008 at 35-37.) DePasquale never advised petitioner to answer untruthfully questions asked by the court at the change of plea hearing. (Evid. Hr'g Tr. 5/1/2008 at 108.)

20. Petitioner entered a guilty plea to count one of the indictment pursuant to a written plea agreement, which was signed on July 13, 2005, and made part of the record. The plea agreement was accepted by the court. (Pet'r's Facts ¶ 10.)

21. At the beginning of petitioner's change of plea hearing, petitioner requested the opportunity to review the plea agreement as follows:

MR. NESCOTT: Your Honor, there is a change of plea letter that we have gone over previously, but Mr. Scales wanted to read it again before he signed it.

THE COURT: Sure. Take your time; don't be put under any pressure. (Mr. Scales reads and signs plea agreement.)

MR. DePASQUALE: Thank you, Your Honor.

(Resp't's Facts ¶ 9; Plea Hr'g Tr. 7/13/2005 at 2.)

22. The written plea agreement, among other things, required petitioner to "acknowledge[] his responsibility for the conduct charged in Count Four of the Superseding Indictment," forfeit to the United States all property subject to forfeiture under 21 U.S.C. § 853 including but not limited to $243,313.00, pay a special assessment to the clerk of court, waive former jeopardy or double jeopardy claims, waive his appeal rights, subject to certain exceptions, and waive the right to attack collaterally his sentence under 28 U.S.C. § 2255. (Plea Agreement (Doc. No. 311) at 2; Plea Hr'g Tr. 7/13/2005 at 14-15.)

23. The written plea agreement provided that petitioner "understands that the United States Attorney reserves the right to file an information, pursuant to 21 U.S.C. § 851, stating prior convictions as a basis for increased punishment." (Plea Agreement (Doc. No. 311) at 2; Plea Hr'g Tr. 7/13/2005 at 14.)

24. With regard to his appellate and collateral attack rights, petitioner specifically agreed to: waive[] the right to take a direct appeal from his conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742, subject to the following exceptions:

(a) If the United States appeals from the sentence, Steven Edward Scales may take a direct appeal from the sentence.

(b) If (1) the sentence exceeds the applicable statutory limits set forth in the United States Code, or (2) the sentence unreasonably exceeds the guideline range determined by the Court under the Sentencing Guidelines, Steven Edward Scales may take a direct appeal from the sentence.

The foregoing reservations of the right to appeal on the basis of specified issues do not include the right to raise issues other than those specified.

Steven Edward Scales further waives the right to file a motion to vacate sentence, under 28 U.S.C. § 2255, attacking his conviction or sentence, and the right to file any other collateral proceeding attacking his conviction or sentence. (Plea Agreement (Doc. No. 311) at 2-3; Plea Hr'g Tr. 7/13/2005 at 14-15.)

25. Petitioner signed his initials at the bottom of each page of the plea agreement in the presence of his attorney DePasquale.*fn2 (Resp't's Facts ¶ 10; Evid. Hr'g Tr. 5/1/2008 at 73-75.) DePasquale instructed petitioner on more than one occasion that by entering into the plea agreement, he was waiving his appellate rights. (Evid. Hr'g Tr. 5/1/2008 at 117, 121-22.)

26. Petitioner also signed his initials on the page of the plea agreement that attributed to him 50 to 150 kilograms of cocaine.*fn3 (Resp't's Facts ¶¶ 10, 19; Evid. Hr'g Tr. 5/1/2008 at 75.)

27. Petitioner executed the acknowledgment on the final page of the plea agreement, which provided that he read the agreement, discussed the agreement with counsel, and accepted the agreement. DePasquale witnessed petitioner's execution of the acknowledgment. (Plea Agreement (Doc. No. 311) at 5.)

28. During the change of plea hearing, petitioner told the court he graduated from high school. (Plea Hr'g Tr. 7/13/2005 at 4.) After attending Lawton High School in Lawton, Oklahoma for eight months, petitioner graduated with a grade point average of 3.0.*fn4 (Evid. Hr'g Tr. 5/1/2008 at 27-28.) The court asked petitioner whether he had any problems communicating in English, to which he responded "No, ma'am, no problems." The court then asked DePasquale "Mr. DePasquale, have you had any problems communicating with the Defendant?" DePasquale answered "[n]ever, Your Honor." (Plea Hr'g Tr. 7/13/2005 at 4.)

29. During the change of plea hearing, this court questioned petitioner concerning his counsel's performance:

BY THE COURT:

Q: Do you -- have you had ample opportunity to discuss your case with your attorney?

A: Yes, I have.

Q: Are you satisfied with the job he has done for you?

A: Yes, I am. (Resp't's Facts ¶ 12; Plea Hr'g Tr. 7/13/2005 at 5.)

30. During the colloquy with respect to petitioner's understanding about the written plea agreement, the court inquired about the petitioner's understanding concerning the right to appeal as follows:

BY THE COURT:

Q: Do you also understand that after it has been determined what guideline range applies to your case, that the Court in certain circumstances may have the authority to impose a sentence that is more severe ...


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