The opinion of the court was delivered by: (Chief Judge Kane)
Pending before the Court is Petitioner Kevin Judas Coleman, Sr.'s ("Coleman") motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. (Doc. No. 43.) The petition is accompanied by an application to proceed in forma pauperis. (Doc. No. 55.) For the reasons that follow, Coleman will be granted in forma pauperis status for the sole purpose of the filing of this petition, and his § 2255 motion will be denied.
On March 12, 2008, the Government filed a criminal information ("the Information") against Coleman, charging him with impeding the due administration of justice in violation of 18 U.S.C. § 1503. (Doc. No. 1 at 6.) The charge against Coleman, who at the time was a member of the Pennsylvania State Police, alleged that he passed information to pimps and prostitutes who were the subject of an ongoing federal investigation of a nationwide prostitution ring that victimized minors and young adult women. (Id. ¶¶ 1-3.) The investigation involved numerous pimps, primarily from Toledo, Ohio, who were operating a nationwide prostitution ring out of the Gables Truck Stop in Harrisburg, Pennsylvania, one of the places where Coleman was to conduct anti-prostitution patrols. (Id. ¶ 4.) In exchange for sexual favors from women being prostituted by the pimps, Coleman would warn the women and their pimps about undercover law enforcement activity, law enforcement wiretaps, and law enforcement arrests, and would provide them with his work schedule so they would know when they could work without fear of law enforcement activity. (Id. ¶ 5, 14.) The charge also alleged that, in exchange for sexual favors, Coleman failed to arrest certain women who were being prostituted at the Gables Truck Stop and would selectively arrest women who were being prostituted by pimps who were rivals of the pimp who was supplying Coleman with women for sexual favors. (Id. ¶¶ 8-13.)
Coleman pleaded guilty to the Information pursuant to a plea agreement with the Government. (Doc. No. 3.) The plea agreement provided, inter alia, that the United States would bring no further charges against Coleman and that he agreed to waive his right to appeal the conviction and sentence imposed.*fn1 (Id. at 2, 11.) The agreement contained an acknowledgment signed by Coleman indicating that he had "read the agreement and carefully reviewed every part of it" with counsel, and that he "fully underst[ood] it" and "voluntarily agree[d] to it." (Id. at 14.) On April 1, 2008, Coleman appeared before the Court and entered his his guilty plea. After the Court engaged Coleman in a colloquy to ensure that he was entering his plea knowingly, voluntarily, and intelligently, the Court accepted the plea. (Doc. No. 15 at 5-23.) The Court held sentencing hearings on October 21, 2008, and November 21, 2008. At these hearings, Coleman, through his counsel, raised several objections to the presentencing report ("PSR") and the Court heard argument and testimony on the objections from both sides. (Sentencing Tr., October 21, 2008, at 3-39; Sentencing Tr., November 21, 2008, at 44-98.) At the November 21, 2008 hearing, the Court ruled on Coleman's objections and sentenced him to 97 months imprisonment. (Sentencing Tr., November 21, 2008, at 99-100, 111.)
On December 15, 2009, Coleman filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Coleman filed a notice of election on January 26, 2010, choosing to proceed with his § 2255 motion. (Doc. No. 47.) On March 19, 2010, the United States filed a brief in opposition to Coleman's motion. (Doc. No. 53.) Coleman filed a motion to proceed in forma pauperis on May 11, 2010. (Doc. No. 55.) The Court granted Coleman an extension of time to file a reply brief (Doc. No. 56), but no reply brief was filed. The motion is now ripe for disposition.
Under 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct the prisoner's sentence on the grounds 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. In evaluating a § 2255 motion, "the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record." United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005).
Morever, the decision whether to hold a hearing when a prisoner moves to vacate a judgment under § 2255 is left to the sound discretion of the district court. Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). Where the record affirmatively indicates that a petitioner's claim for relief is without merit, the claim may be decided on the record without a hearing. See Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); Page v. United States, 462 F.2d 932, 933 (3d Cir. 1972). Thus, if the record, supplemented by the trial judge's personal knowledge, conclusively negates the factual predicates asserted in support of a § 2255 motion, or if the movant would not be entitled to relief as a matter of law even if the factual predicates as alleged in the motion are true, it is not an abuse of discretion to elect not to conduct an evidentiary hearing. See Nicholas, 759 F.2d at 1075. "[B]ald assertions and conclusory allegations do not afford a sufficient ground for an evidentiary hearing." Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir. 1987).
In his motion, Coleman argues that he was denied due process of law because the Court sentenced him on the basis of inaccurate information. (Doc. No. 43 at 5.) Next, Coleman argues that he is actually innocent of violating 18 U.S.C. § 1503 and therefore his incarceration violates due process. (Id. at 8.) Coleman also submits that he received ineffective assistance of counsel when his attorney failed to negotiate a limited right to appeal the Court's factual findings that impacted the sentence. (Id. at 6.) Finally, Coleman asserts that he received ineffective assistance of counsel when his attorney advised him to waive indictment and enter a plea of guilty to the information. (Id. at 9.) The Court will address each of these contentions in turn.
A. Coleman's Waiver of Right to Appeal or File a § 2255 Motion
The Court must first consider whether Coleman has waived his right to bring a collateral attack, such as a § 2255 motion. See United States v. Mabry, 536 F.3d 231, 236-30 (3d Cir. 2008). The Government argues that Coleman's petition is barred by the appellate-waiver provision contained his plea agreement. (Doc No. 53 at 8-11.) Coleman responds that he did not knowingly and voluntarily agree to the waiver because during the colloquy at his guilty plea hearing the Court failed to adequately inform him of the waiver's terms and to ensure his understanding of those terms as required by Federal Rule of Civil Procedure 11(b)(1)(N). (Doc No. 42 at 3-5.)
The Third Circuit Court of Appeals has found that "waivers of appeals, if entered into knowingly and voluntarily, are valid." United States v. Khattak, 273 F.3d 557, 562 (2001). While a defendant bears the burden of presenting an argument that would render the waiver unknowing or involuntary, the Court has an affirmative duty to examine the knowing and voluntary nature of the waiver and to assure itself that the enforcement works no miscarriage of justice. Id. at 237-38. Whether a waiver is knowing and voluntary depends on the sentencing judge's compliance with Federal Rule of Criminal Procedure 11. Khattak, 273 F.3d at 563. Under Federal Rule of Criminal Procedure 11(b), the Court must "inform the defendant of, and determine that the defendant understands . . . the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence." Fed. R. Crim. P. 11(b)(1)(N).
At the plea hearing, Coleman testified that: he signed the plea agreement (Guilty Pl. Tr. 11); he had signed the agreement willingly (id.); he had "full opportunity to discuss the charges with [plea counsel]" (id. at 6); he was satisfied with the representation given by plea counsel (id.); and he understood the finality of the agreement (id. at 18). Moreover, the Assistant United States Attorney highlighted the fact that Coleman agreed "to waive his right to appeal as specifically defined in [the] plea agreement." (Id. at 4.) The Court does not doubt that Coleman entered into the plea agreement knowingly and voluntarily. However, the record is not so clear as to whether Coleman knowingly and voluntarily waived his appeal rights. The Court did not personally discuss the appellate waiver with Coleman. Additionally, the Third Circuit has held that a district court may not rely on the Government to inform the defendant of the terms of the appellate waiver. See United States v. Goodson, 544 F.3d 529, 540 (3d Cir. 2008). Even if the Court were permitted to rely on the Government to inform Coleman of his waiver of appellate rights, the Government's brief mention of Coleman's waiver of his right to appeal "as specifically defined in [the] plea agreement" was insufficient. See United States v. Corso, 549 F.3d 921, 929-31 (3d Cir. 2008) (finding that the prosecutor's "cursory aside" regarding the appellate waiver was "plainly insufficient"). The Court notes that Coleman did sign an acknowledgment in the plea agreement, confirming that he had read the agreement and discussed it with counsel. (Doc. No. 3 at 14.) However, "[t]he point of Rule 11(b)(1)(N) is that a signed piece of paper is not enough." Corso, 549 F.3d at 930 (quoting United States v. Sura, 511 F.3d 654, 662 (7th Cir. 2007)).
The record of the plea hearing is unfortunately unclear as to Coleman's knowledge of the ramifications of the appellate waiver. For these reasons, the Court finds that Coleman did not effect a valid waiver of his right to appeal or file a § 2255 motion because any waiver was unknowing and involuntary. Thus, the waiver will ...