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United States of America v. Martel Kirkland

June 24, 2011


The opinion of the court was delivered by: Paul S. Diamond, J.



On July 31, 2008, the grand jury charged Petitioner Martel Kirkland and three co-conspirators with mail fraud (Count 2); aggravated identity theft (Counts 3, 5, 7, 10, and 12); credit card fraud (Counts 4, 6, 9, 11, and 12); wire fraud (Count 8); uttering a forged security (Count 13); conspiracy to commit these offenses (Count 1); and aiding and abetting. (Doc. No. 1); see also 18 U.S.C. § 371 (conspiracy); id. § 1341 (mail fraud); id. §§ 1029(a)(2), (b)(1) (credit card fraud); id. §§ 1028A(a)(1), (c)(4), (c)(5) (aggravated identity theft); id. § 1343 (wire fraud); id. § 513(a) (uttering a forged security); id. § 2 (aiding and abetting).

On March 19, 2009, Petitioner pled guilty to all thirteen Counts of the Indictment pursuant to a written Plea Agreement that included an extensive appellate and collateral attack waiver. (See generally Change of Plea Hr'g Tr., Mar. 19, 2009.) Petitioner was represented at the Change of Plea Hearing by Martin Isenberg, Esq. (Id.) I conducted the plea colloquy and accepted Petitioner‟s guilty plea. (Id.)

On July 30, 2009, the grand jury returned a Superseding Indictment. (Doc. No. 97.) At Petitioner‟s February 1, 2010 sentencing hearing, I granted the Government‟s Motion to Dismiss Counts 1-13 of the Superseding Indictment and sentenced Petitioner based on his guilty plea to the Original Indictment. (See Sentencing Hr'g Tr. 28:10-17, Feb. 1, 2010.)

I imposed a total term of 180 months incarceration, consisting of 60 months imprisonment on each of Counts 1, 2, 4, 6, 8, 9, 11, and 13, to be served concurrently; and 24 months on each of Counts 3, 5, 7, 10, and 12, to be served consecutively with each other and with the 60-month term, with the total 180 months to run consecutively to the term of imprisonment imposed on Petitioner in an unrelated matter by the Eastern District of Michigan (Crim. No. 06-20337-1). (Doc. No. 162.) I also imposed five years of supervised release, and ordered Petitioner to pay $30,616.30 in restitution plus interest, and a $1,300 special assessment. (Doc. No. 162.)

On February 22, 2010, Petitioner, still represented by counsel, took a direct appeal. (Doc. No. 174.) On May 6, 2010, the Third Circuit granted the Government‟s Motion to Enforce the Appellate Waiver and for Summary Affirmance. (Doc. No. 190.) On June 30, 2010, Petitioner moved for a Panel Rehearing or a Rehearing en Banc, arguing, inter alia, that the appellate waiver "did not exclude [him] from filing an appeal if the Court imposed an unreasonable sentence above the final sentencing Guideline range." (Case No. 10-1458, Doc. No. 003110200545 at 3.) Petitioner alleged that I "imposed a sentence of 180 months and then tacked on another 19 months to run consecutive to the 180 months." (Id. at 2.) On July 12, 2010, the Third Circuit denied Petitioner‟s Rehearing Petition. (Id., Doc. No. 003110213214.)

On May 17, 2010, Petitioner filed a pro se Motion, alleging ineffective assistance of counsel, but did not request any relief. (Doc. No. 192.) On May 18, 2010, I nonetheless ordered the Clerk of Court to furnish Petitioner with blank copies of this Court‟s standard § 2255 and in forma pauperis forms. (Doc. No. 193.)

On July 28, 2010, Petitioner asked me to appoint counsel to help him prepare a § 2255 Motion and a Writ of Certiorari to the Supreme Court. (Doc. No. 200.) Because Petitioner apparently was still represented by Mr. Isenberg, I denied his request. (Doc. No. 201.)

On November 22, 2010, Petitioner filed a pro se § 2255 Motion. (Doc. No. 202.) On December 1, 2010, the Government moved to dismiss. (Doc. No. 204.) Although I ordered Petitioner to respond to the Government‟s Motion by January 3, 2011, he has not done so. (See Doc. No. 205.)

II.Petitioner's pro se § 2255 Motion

Petitioner apparently seeks relief on two grounds. First, he argues that I sentenced him to a term of imprisonment that exceeded the Guidelines range. Petitioner alleges that his Guidelines range was 81-191 months, but that he has "a total of 256 months." (Doc. No. 202.) Petitioner‟s second argument is almost unintelligible. He states: "In the very beginning of the fraud it [the "dollar amount"] was $266,000 but when it came time to start building the case, the dollar amount came to $30,000."

III.The Government's Motion to Dismiss

The Government argues that I should dismiss Petitioner‟s § 2255 Motion because Petitioner knowingly and voluntarily waived his right to collateral attack. (Doc. No. 204.) The Government further argues that enforcing the waiver would not result in a miscarriage of justice because I imposed a Guidelines sentence and Petitioner does not allege "an ...

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