The opinion of the court was delivered by: Sean J. McLaughlin United States District Judge
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendant Wayne Falciglia's Motion to Vacate Judgment pursuant to 28 U.S.C. § 2255.
On July 13, 2005, a grand jury in the Western District of Pennsylvania returned a one-count indictment charging the defendant, Wayne Falciglia ("Falciglia"), with stealing firearms from a federally licensed firearms dealer in violation of 18 U.S.C. Sections 922(u) and 924(i)(1). Following a jury trial, Falciglia was found guilty and sentenced to 102 months of imprisonment.
Falciglia's arrest and indictment stemmed from a burglary of Baldini's Gun Shop in Erie, Pennsylvania, on August 14, 2000. Police officers responding to the break-in found several broken display cases and determined that 26 firearms had been stolen. Officers also discovered what appeared to be a small amount of blood, a sample of which they sent to the Pennsylvania State Police Bureau of Forensic Services for examination.
Several months later, officers of the city of Cheektowaga, New York, found three of the stolen firearms in Falciglia's possession while executing an arrest warrant for an unrelated matter. DNA taken from Falciglia in conjunction with that arrest was matched to the blood found in Baldini's gun shop. In order to confirm the match, a search warrant was executed authorizing the seizure of a second sample of Falciglia's blood. The warrant was supported by an affidavit from Special Agent Thomas Truchanowicz of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"). Following the execution of this warrant, Falciglia waived his Miranda rights and admitted to Agent Truchanowicz and two other federal agents that he had stolen firearms from Baldini's Gun Shop. Subsequently, the Bureau of Forensic Services confirmed the match between Falciglia's blood and the DNA profile developed from the blood sample found at the crime scene.
Prior to trial, Falciglia moved to suppress the statements that he made to federal agents following the execution of the warrant to obtain his blood. Following a hearing, this Court denied the motion to suppress.
On the eve of trial, the government produced a recorded telephone conversation between Falciglia and his wife that took place while he was in prison. In the recorded conversation, Falciglia told his wife:
Well, I got a charge coming up from Erie County, no, from Erie, Pennsylvania. Probably going to be breaking into the gun store. 'Cause they came here with a court order for DNA which means that I must have cut myself. But I'm not worried about that one because that one I can get out of because they want me to give up fucking Carl, and Tony, and fucking Chris. I said I would do that for free. [Laughter]. They looked at me like I was crazy and I said, listen, I'm sitting here because of them three ass holes, I said, so you can have them for free, you ain't even gotta give me a fucking deal.
Falciglia moved to suppress this recording and for reconsideration of his previous motion to suppress, arguing that the conversation demonstrated that he had been promised a deal by law enforcement in return for his assistance. This Court denied reconsideration of the prior motion to suppress but granted the motion to suppress the recording. The latter ruling, however, allowed the government to introduce the recorded conversation for impeachment purposes if Falciglia elected to testify in his defense.
Following his trial and conviction, Falciglia appealed to the Third Circuit. See United States v. Falciglia, 2008 WL 2428411 (3rd Cir. 2008). Falciglia raised three issues on appeal: (1) that his Miranda waiver was not voluntary and knowing because the interrogating agents had misled him by promising a lenient sentence for his assistance; (2) that the trial court denied him his constitutional right to a defense by ruling that the incriminating statements contained in the recorded telephone conversation between Falciglia and his wife could be used for impeachment purposes; and (3) that the sentencing court misinterpreted the Sentencing Guidelines in declining to grand a downward departure. The Third Circuit rejected each of these arguments and affirmed Falciglia's judgment and sentence. Id. at *2.
Falciglia filed the instant motion for relief pursuant to 28 U.S.C. § 2255 on May 26, 2009. On June 19, 2009, the government filed a response in opposition. This matter is ripe for review.
Pursuant to 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside or correct a 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." 28 U.S.C. § 2255. When a motion is made under 28 U.S.C. § 2255, the question of whether to order a hearing is committed to the sound discretion of the district court. In exercising that discretion, the court must accept the truth of the petitioner's factual allegations unless they are clearly frivolous on the basis of the existing record. United States v. Day, 969 F.2d 39, 41-42 (3rd Cir. 1992). A motion pursuant to Section 2255 can be dismissed without a hearing only if (1) its allegations, accepted as true, would not entitle the Petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. United States v. Askew, 2010 WL 1409657 (W.D. Pa. 2010) (citing United States v. McCoy, 410 F.3d 124, 134 (3rd Cir. 2005)).
Upon consideration of Falciglia's motion for relief, the government's response thereto, and the pleadings and documents of record, I conclude that no hearing is necessary and that Falciglia's ...