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United States v. Solomon

November 18, 2009

UNITED STATES OF AMERICA, RESPONDENT,
v.
JAMAL SOLOMON, PETITIONER.



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

MEMORANDUM RE: MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

Pending before the Court is Petitioner Jamal Solomon's pro se Habeas Corpus Motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (Case No. 07-184, Docket No. 24; Case No. 07-683, Docket No. 13), and the Government's Motion to Dismiss 2255 Motion (Case No. 07-184, Docket No. 27; Case No. 07-683, Docket No. 16). Solomon was convicted for various charges respecting several bank robberies in two criminal cases, which were consolidated for guilty plea and sentencing purposes.*fn1 For the reasons detailed below, Solomon's 2255 Motion will be denied and the Government's Motion to Dismiss will be granted.

I. Factual and Procedural Background

On September 18, 2007, after pleading guilty pursuant to a plea agreement entered into on December 3, 2006, Solomon was convicted of various counts relating to eight armed or attempted bank robberies.*fn2 On May 15, 2008, Solomon was sentenced to a total of 181 months' imprisonment, restitution in the sum of $177,979, and a special assessment fee of $1000. (Case No. 07-184, Docket No. 21; Case No. 07-683, Docket No. 12.) Solomon did not file a direct appeal.

II. The Parties' Contentions

On May 14, 2009, Solomon filed the instant motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 on the basis that trial counsel rendered ineffective assistance at sentencing by failing to adequately request a downward departure under United States Sentencing Guideline (U.S.S.G.) § 5K2.16 for Solomon's voluntary disclosure of his involvement in several bank robberies. (2255 Mot. 5-6.) The government contends that the Motion should be dismissed because Solomon waived any right to file a Section 2255 motion, and that even if he had not, his Motion should be denied because his claim is frivolous. (Gov't Resp. 1-2)

III. Legal Standard

The Third Circuit has clarified that "[w]aivers of appeals, if entered into knowingly and voluntarily, are valid." United States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001). The Third Circuit, however, "decline[d] to adopt a blanket rule prohibiting all review of certain otherwise valid waivers of appeals," because "[t]here may be an unusual circumstance where an error amounting to a miscarriage of justice may invalidate the waiver." Id. The Third Circuit refrained from "earmark[ing] specific situations" in which enforcing appellate waivers would amount to a "miscarriage of justice," instead directing courts in this circuit consider the following factors to determine whether "miscarriage of justice" has occurred: "the clarity of the error, its gravity, its character (e.g., whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact of the error on the defendant, the impact of correcting the error on the government, and the extent to which the defendant acquiesced in the result." Id. at 563 (quotation marks omitted).

IV. Discussion

The first question the Court must address is whether Solomon knowingly and voluntarily waived his right to appeal or collaterally attack his sentence under Section 2255. If the Court answers this question in the affirmative, it must then examine whether a "miscarriage of justice" invalidates the waiver.

A. Knowing and Voluntary Waiver

Paragraph 8 of Solomon's plea agreement provides as follows:

In exchange for the undertakings made by the government in entering this plea agreement, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant's conviction, sentence, or any other matter relating to this prosecution, both with respect to the charges in the information and the charges in the indictment in Criminal No. 07-184 to which the defendant pled guilty on September 18, 2007, whether such right of 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.

(Plea Agreement ¶ 8, Case No. 07-683, Docket No. 8.) The plea agreement therefore includes an express waiver of Solomon's right to appeal his sentence.

During the guilty plea colloquy on December 3, 2007, Solomon indicated that his attorney explained the terms of the plea agreement to him, that he understood the maximum statutory penalty of 130 years' imprisonment that he could receive, and that ...


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