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United States of America v. James Raymond Zwick

February 14, 2011

UNITED STATES OF AMERICA,
v.
JAMES RAYMOND ZWICK, DEFENDANT.



The opinion of the court was delivered by: Nora Barry Fischer United States District Judge

MEMORANDUM OPINION

I. INTRODUCTION

Presently before the Court is a motion to vacate, correct or set aside sentence under 28 U.S.C. § 2255 filed by Defendant James Raymond Zwick. (Docket No. 59). Defendant maintains that he was sentenced in violation of his due process rights and that his trial counsel provided ineffective assistance of counsel to him by failing to move to dismiss the charge against him under the Interstate Agreement on Detainers Act, 18 U.S.C. App. 2, § 2, and by failing to raise certain arguments at sentencing. (Docket Nos. 59, 60, 66). The Government opposes Defendant's motion; arguing that Defendant's claims are procedurally defaulted and otherwise lack merit. (Docket No. 65). Upon consideration of the parties' submissions, and for the following reasons, Defendant's motion [59] is denied.

II. BACKGROUND

As set forth in the Presentence Investigation Report, Defendant has an extensive criminal history including numerous criminal convictions in the state courts of both Pennsylvania and Florida. (PIR at ¶¶ 24-61). These convictions resulted in the assessment of 30 criminal history points and the assignment of Defendant to criminal history category VI. (PIR at ¶ 62). Two of these state matters are pertinent here: (1) a conviction for robbery-bodily injury at CC200705412 in the Court of Common Pleas of Allegheny County arising from events which occurred on December 27, 2006; and, (2) convictions for habitual offenders, possession of a controlled substance, possession of drug paraphernalia, careless driving, driving while operating privileges suspended at CC200703956, also in the Court of Common Pleas of Allegheny County arising from events which occurred on February 19, 2007. (PIR at ¶¶ 59, 60). Defendant was released on bond at both of these cases. (Docket No. 59 at ¶ 4; Docket No. 65 at ¶ 5).

On November 26, 2007, Defendant robbed a Citizens Bank branch located at 495 Lincoln Avenue, Bellevue, Allegheny County, Pennsylvania. (PIR at ¶ 4). He handed the teller at the bank a demand note which stated that he was in possession of a firearm. (PIR at ¶ 4). The teller turned over $850.00 and a dye pack to Defendant. (PIR at ¶ 5). He then exited the bank and the dye pack exploded. (PIR at ¶ 5). Defendant was later apprehended by local police while running through neighborhood back yards. (PIR at ¶ 5). His jacket, stained with red dye, was recovered by the officers. (PIR at ¶ 5). Defendant was charged with state robbery charges by local police and was detained at the Allegheny County Jail. See Docket Reports at Magisterial District Court No. 05-2-01; Docket No. CR-473-07. Defendant made bail on November 30, 2007. (Id.).

However, at this time, Defendant remained on bond from the two prior state cases, CC200705412 and CC200703956. (Docket No. 59 at ¶ 4; Docket No. 65 at ¶ 5). The state court dockets reflect that bail pieces and body receipts were filed at both cases on December 3, 2007. (Id.). Accordingly, he remained detained at the Allegheny County Jail.

On December 4, 2007, a federal grand jury returned a one count indictment against Defendant, charging him with bank robbery in violation of 18 U.S.C. § 2113(a), arising from the Citizens Bank robbery on November 26, 2007. (Docket No. 1). A warrant was issued for Defendant's arrest on December 5, 2007. (Docket No. 3). On December 6, 2007, the Government moved the Court for a writ of habeas corpus ad prosequendum, and said motion was granted. (Docket Nos. 5, 6). The writ was issued and a hold was placed on Defendant by the U.S. Marshal Service at the Allegheny County Jail. (Docket No. 7; Docket No. 59 at ¶ 5).

Defendant appeared before Judge Jeffrey Manning on December 12, 2007 in reference to the aforementioned state cases at docket numbers CC200705412 and CC200703956. (Docket No. 59 at ¶¶ 10, 11). He pled nolo contendre to the charges at both cases. (PIR at ¶¶ 59, 60). At case number CC200705412, he was sentenced to "12 to 24 months imprisonment concurrent to any other sentences currently serving or will serve." (PIR at ¶ 59). At case number CC200703956, Defendant was sentenced to 2 years probation to be served consecutive to the sentence imposed at CC200705412 at count one and no further penalty at the remaining counts. (PIR at ¶ 60).

Thereafter, on December 28, 2007, Defendant made his initial appearance in federal court before Magistrate Judge Francis X. Caiazza. (Docket Nos. 7, 8). Judge Caiazza also issued an order of temporary detention on that date, which specified that Defendant shall remain in the custody of the federal government pending arraignment and detention proceedings on January 3, 2008. (Docket No. 11).

After his initial appearance in federal court, on January 2, 2008, Defendant was transported by the Allegheny County Sheriff or other state officials to the State Correctional Institution in Greene County, Pennsylvania, despite Judge Caiazza's Order that he remain in federal custody. (Docket No. 59 at ¶ 13; Docket No. 65 at ¶ 5; Docket No. 50 at 3). Because of Defendant's transfer to SCI-Greene, his arraignment was continued and rescheduled for January 17, 2008. (Docket No. 59 at ¶ 14; Docket No. 65 at ¶ 5). Then, on January 8, 2008, Defendant was returned to the Allegheny County Jail. (Docket No. 59 at ¶ 13; Docket No. 65 at ¶ 5).

Defendant was arraigned on January 17, 2008 before Magistrate Judge Robert C. Mitchell. (Docket No. 15). At the arraignment, Defendant pled not guilty to count one. (Id.). He also waived his right to a detention hearing, and Judge Mitchell accepted the waiver. (Docket No. 17).

Defendant pled guilty to count one of the Indictment before this Court on May 9, 2008. (Docket No. 25, 26). There was no plea agreement between the parties. (Docket No. 26). The Court found that Defendant's plea was knowingly and voluntarily made and accepted his plea. (Docket No. 46). A presentence order was issued wherein pre-sentence deadlines were established and the matter was set for sentencing on September 30, 2008. (Docket No. 27).

After considering the positions with respect to sentencing factors filed by both parties and the Government's reply to Defendant's position, the Court issued its Tentative Findings and Rulings on September 23, 2008. (Docket Nos. 29, 32, 34, 35). In their filings, the parties did not object to the advisory guideline range calculated by the Probation Office. (Docket Nos. 29, 32, 34). Therefore, after ruling on some tangential factual disputes, the Court tentatively ruled that, based on a total offense level of 21 and a criminal history category of VI, the advisory guideline range for imprisonment was 77-96 months. (Docket No. 35). The Court also noted that Defendant was subject to a maximum term of imprisonment of twenty years pursuant to 18 U.S.C. § 2113(a). (Id.).

Prior to sentencing, Defendant, through his trial counsel, filed a Sentencing Memorandum, wherein he argued that the Court should vary from the advisory guideline range and sentence him to a term of imprisonment below the range of 77-96 months. (Docket No. 36). His argument relied primarily on his personal history and characteristics, including his physical health ailments, substance abuse problems -- for which he was in need of treatment, and gainful employment as a boilermaker. (Id.).

The sentencing hearing was held on September 30, 2008. (Docket No. 37). Defendant's trial counsel reiterated the arguments set forth in the Sentencing Memorandum and argued for a variance from the advisory guideline range at sentencing. (Docket No. 44 at 17-22, 29-36, 37-42). In contrast, Government counsel argued that a sentence at the high end of the guidelines range was appropriate after considering all of the section 3553(a) factors. (Docket No. 44 at 22-29, 35-37). Counsel for both parties offered argument concerning Defendant's prior criminal history and the weight to be afforded to same by the Court in imposing Defendant's sentence. The Court questioned Defendant regarding the length of the state sentence that he was serving at that time. (Docket No. 44 at 46). Consistent with the presentence investigation report, Defendant testified that he was subject to a 1-2 year sentence. (Id.). Despite the argument regarding Defendant's prior criminal history and the acknowledgment that he was then serving a state sentence, neither counsel specifically raised whether the Defendant's federal sentence should run concurrently or consecutively to the federal sentence at the proceeding. (See Docket No. 44).

After hearing the parties' arguments, the Court denied Defendant's motion for variance and sentenced Defendant to 77 months in prison, to be followed by 3 years of supervised release, ordered that Defendant pay restitution in the amount of $1,143 and a special assessment in the amount of $100, but waived any fine. (Docket No. 44 at 47-51). The Court further ordered that Defendant's "sentence shall be served concurrently to the one being served in the state court." (Docket No. 44 at 47). In so ordering, the Court made no recommendations to the Bureau of Prisons that Defendant should be granted "credit" for time served on his state sentence.

On October 8, 2008, Defendant appealed his sentence to the United States Court of Appeals for the Third Circuit. (Docket No. 40). On appeal, he argued that this Court improperly lengthened his sentence for the purpose of rehabilitation contrary to the Court of Appeals' holding in United States v. Manzella, 475 F.3d 152 (3d Cir. 2007). The Court of Appeals rejected Defendant's arguments and affirmed his sentence in a non-precedential opinion issued on November 3, 2009. United States v. Zwick, 350 Fed.Appx. 747 (3d Cir. 2009) (nonprecedential). The Court of Appeals then issued a mandate consistent with this opinion on November 27, 2009. (Docket No. 48).

Subsequent to imposition of the federal sentence on September 30, 2008, Defendant "was transferred to a state correctional facility and was released from the state sentence imposed by Judge Manning on October 22, 2008." (Docket No. 59 at ¶ 19; Docket No. 62). He has remained in federal custody since that date. (Id.).

After his appeal was denied, in March and July of 2010, Defendant submitted a series of letters to the Court, wherein he stated that his federal sentence was being improperly executed by the Bureau of Prisons. (Docket Nos. 49, 50, 52). His chief complaint was that his federal and state sentences were not run concurrently by the Bureau of Prisons, despite the fact that Judge Manning had ordered that his state sentence should run "concurrent to any other sentences currently serving or will serve" and this Court had also ordered that his sentence run concurrently to the state sentence to which he was subject. (Id.). He further pointed out that this Court's judgment entered on September 30, 2008 did not reflect that his sentence should run concurrently to the state sentence, as was stated orally by the Court at sentencing. (Id.).

In response to Defendant's pro se submissions, the Court reviewed Defendant's file and then issued the following order:

AND NOW, this 9th day of July, 2010, upon consideration of the Defendant's Notice of Petition [50] filed in the above captioned matter on March 25, 2010, and the Defendant's Motion to Appoint Counsel [52] and the Court having reviewed the Transcript of the Sentencing Hearing held September 30, 2008, the Court finds that:

1. The Transcript of the Sentencing Hearing held September 30, 2008 indicates that the Court did order the Defendant's federal sentence to be served concurrently with his state sentence. (Docket No. 44 at 47).

2. The Judgment (Docket No. 38) did not reflect the Court's oral order that the Defendant's federal sentence to be served concurrently with his state sentence.

Accordingly, IT IS HEREBY ORDERED THAT, pursuant to Federal Rule of Criminal Procedure 36, the Judgment including Sentence under the Sentencing Reform Act imposed by this Court and entered on the docket on September 30, 2008 [38], is AMENDED as follows:

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of seventy-seven (77) months. This sentence shall be served concurrently with the one being served in state court.

In all other respects, the Sentence imposed by this Court and entered on the docket on September 30, 2008 shall remain in FULL FORCE AND EFFECT. (Docket No. 53).*fn1

Defendant also moved the Court for counsel to be appointed to represent him, the Court granted his motion and his present counsel was appointed on July 9, 2010. (Docket No. 54, 55). Defendant's appointed counsel then requested that the Court hold a status conference on the matter, and two status conferences were held, the first of which was held on September 28, 2010 and the second, on October 13, 2010. (Docket Nos. 56, 57). After discussion at the second conference, defense counsel indicated that he would be filing a motion to vacate under section 2255 on Defendant's behalf and the Court set a briefing schedule related to same. (Docket No. 57).

Defendant filed the pending motion to vacate and his brief in support on November 1, 2010. (Docket Nos. 59, 60). His counsel later filed a letter on November 15, 2010, wherein he corrected one of the factual statements set forth in the initial motion. (Docket No. 62). In support of his motion, Defendant has submitted two exhibits: (1) a Sentence Monitoring Computation Data as of 07-15-10, prepared by the Bureau of Prisons; and (2) a letter dated October 12, 2010 from Jose A. Santana, Chief, U.S. Department of Justice, Federal Bureau of Prisons, Designation and Sentence Computation Center. (Docket Nos. 59-1, 59-2).

The Computation Data Sheet states that Defendant was released from his state sentence on October 22, 2008, and that his federal sentence commenced as of that date.*fn2 (Docket No. 59-1). According to this document, the Bureau of Prisons projects that Defendant will be released from incarceration on April 12, 2014. (Id.). In his letter, Mr. Santana writes that Defendant "has received all applicable jail credit" and that his "sentence computation has been calculated and certified by the Designation and Sentence Computation Center and is correct." (Docket No. 59-2). However, he further writes that if Defendant is dissatisfied with this calculation, "he may appeal through the established administrative remedy procedures." (Id.).*fn3

After receiving an extension of time from the Court, the Government filed its opposition to Defendant's motion on November 30, 2010. (Docket No. 65). Finally, Defendant filed his reply brief on December 3, 2010. (Docket No. 66). As all ...


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