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United States v. McNamara

April 14, 2009


The opinion of the court was delivered by: Yohn, J.


James McNamara pleaded guilty to an eight count indictment charging conspiracy to possess stolen firearms in violation of 18 U.S.C. § 371, possession of stolen firearms in violation of 18 U.S.C. § 922(j), two counts of armed carjacking in violation of 18 U.S.C. § 2119, two counts of carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c), and two counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). At sentencing, the court granted the government's § 5K1.1 motion, departed downward from the relevant sentencing guideline range, and sentenced defendant to the statutory mandatory minimum of thirty-two years*fn1 and, in addition, one month of incarceration, five years of supervised release, a fine of $3,500, and an $800 special assessment.

Defendant moves to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 because the government allegedly broke a promise to file a Rule 35*fn2 motion to reduce defendant's sentence below the statutory mandatory minimum term of imprisonment*fn3 and because his counsel was allegedly ineffective in pursuing the Rule 35 motion. The court will deny his motion for three reasons: (1) the majority of defendant's asserted claims are both untimely and covered by a valid collateral-attack waiver, (2) defendant was never promised a Rule 35 motion, and (3) his counsel was not ineffective in pursuing a Rule 35 motion.


After his arrest and indictment, McNamara provided information in a number of proffer sessions that led to the guilty pleas of Shawn Dunleavy, Patricia Branconi, and Anthony Henagan. McNamara also provided information to the government regarding an unsolved triple homicide, illegal trafficking in firearms, and police corruption. The information about the triple homicides was hearsay evidence that McNamara learned from Victor Enrique Soto while in prison awaiting trial. (Evidentiary Hr'g Tr. 14, Apr. 7, 2008 ("Evidentiary Hr'g Tr.").)

On August 8, 2003, prior to his guilty plea, McNamara met with the government, including Assistant United States Attorney Thomas P. Hogan, Jr. and two FBI agents-Pamelia Stratton and Michael Robinson. (Id. at 118.) McNamara's attorney, Thomas Ramsay, sought a sentence below the mandatory minimum. The government agreed to submit a § 5K1.1 motion but refused to go below the statutory mandatory minimum level because of the strength of its case against McNamara, the seriousness of the crimes, and McNamara's significant criminal record. (Id. at 13.) The government refused to consider a § 3553(e) departure based on the information McNamara provided, and Hogan stated he was prepared to go to trial if McNamara did not sign the plea agreement the government had proposed. (Id. at 16-17, 122.) McNamara initially refused to sign the agreement because he wanted a term of imprisonment below the mandatory minimum of thirty-two years. (Id. at 53.) McNamara claims that he was promised a Rule 35 motion if he agreed to plead guilty. Hogan testified, however, that he told McNamara only that the government would follow up on the leads McNamara provided and that, if they resulted in a prosecution (e.g., if they "hit"), the government would file a Rule 35 motion. (Id.) Ramsay likewise testified that the government represented that a future Rule 35 motion would depend on additional developments in the cases for which McNamara had provided information or in which McNamara might testify. (Evidentiary Hr'g Tr. 55-58, 111-12, April 3, 2008 ("Ramsay Test.").)

Numerous letters that Ramsay wrote, some of which he sent to McNamara and some of which he sent to Hogan, confirm that the future prospect of a Rule 35 motion depended on additional developments in the government's investigations. (See, e.g., Def. Exs. 7, 10, 17, 19.*fn4

The letters also confirm that Ramsay advised McNamara that a Rule 35 motion was not guaranteed; rather, any such motion was to be conditioned on future developments. (See, e.g., Def. Ex. 7, 12, 13.*fn5 ) On Ramsay's advice and after a telephone conversation with his parents, McNamara signed the guilty plea agreement. (Evidentiary Hr'g Tr. 124.)

The plea agreement required McNamara to cooperate fully and completely with the government's investigation of crimes of which he had knowledge. (Plea Agreement ¶ 5.) The plea agreement notified McNamara that "as of the date of this agreement, the government does not intend to move for departure from any statutory mandatory minimum term of imprisonment" and that McNamara would "be required to serve at least the 32-year mandatory minimum term of imprisonment." (Id. ¶ 6.b.) McNamara also "voluntarily and expressly waive[d] all rights to appeal or collaterally attack the defendant's conviction, sentence, or any other matter relating to this prosecution, whether such a right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law."*fn6 (Id. ¶ 11.)

On September 4, 2003, McNamara pleaded guilty to eight counts pursuant to the plea agreement. McNamara had expressed hesitation to Ramsay prior to the change of plea hearing. (Def. Ex. 9; Ramsay Test. 47-48.) Ramsay advised McNamara that he could receive a sentence greater than the mandatory minimum if the case went to trial. (Ramsay Test. 46-47.) Ramsay also told McNamara that if he mentioned the discussion about a Rule 35 motion, the government might not file it. (Evidentiary Hr'g Tr. at 130-32.) During the plea colloquy, McNamara did not mention any agreement regarding a Rule 35 motion to the court.*fn7 The court assured itself that McNamara understood he was facing a minimum sentence of thirty-two years in prison and that the court had no flexibility in that matter. (Id. at 132.) McNamara was sentenced on March 19, 2004. The court accepted the government's § 5K1.1 motion and sentenced McNamara to thirty-two years and one month of incarceration. The government's § 5K1.1 motion was based on McNamara's cooperation, up to the date of sentencing, in the multiple criminal investigations discussed above. The court entered judgment of sentence on March 22, 2004, and without appeal, it became final on April 6, 2004.*fn8

After the change of plea hearing and after sentencing, Ramsay continued to ask Hogan about the status of the investigations. Hogan informed Ramsay that the investigations were ongoing. (Def. Exs. 13, 17, 19.) Hogan personally followed up on the investigations. (Evidentiary Hr'g Tr. 19, 60-62.) For example, Hogan referred the triple homicide information to the Philadelphia Police Department and discussed it with the department's homicide unit. Hogan, along with Agent Stratton, also personally interviewed the source of McNamara's information. (Id. at 19.)

Hogan also told Ramsay that, out of fairness to McNamara and conditioned on the court's acceptance, the one-year window to file a Rule 35 motion would not be an impediment to the filing of a motion by the government after the one-year window elapsed. (Id. at 64.) In January 2005, Hogan notified Ramsay that "the matter is not ripe for a Rule 35 motion." (Ramsay Test. 95.) By mid-August 2005, however, the triple homicide and police corruption investigations had ended without success, and Hogan informed Ramsay that the government would not file a Rule 35 motion. (Ramsay Test. 105; Evidentiary Hr'g Tr. 142.) McNamara then prepared and filed his present motion on August 2, 2006. The court held hearings on the motion on April 3 and 7, 2008, followed by supplemental briefing by both parties.


A. Timeliness

In his motion, McNamara raises multiple claims of ineffective assistance of counsel as well as a claim for prosecutorial misconduct/breach of promise to file a Rule 35 motion. The motion is timely as to the claim for prosecutorial misconduct/breach of promise and as to one ineffective assistance claim that relates to the prosecutorial misconduct claim. McNamara's motion is untimely as to his other ineffective assistance of counsel claims.

The government argues that McNamara's entire motion is untimely under 28 U.S.C. § 2255(f), which provides:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-(1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on ...

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