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United States of America v. Steven Allen Schwartz

February 20, 2013

UNITED STATES OF AMERICA
v.
STEVEN ALLEN SCHWARTZ
STEVEN ALLEN SCHWARTZ
v.
UNITED STATES OF AMERICA



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

MEMORANDUM

On April 22, 2005, one year after Steven Allen Schwartz waived his Sixth Amendment right, assumed full responsibility for his defense, and concluded his self-representation at a fifteen day trial, a jury convicted him of conspiracy to commit wire and bank fraud and identity theft (18 U.S.C. § 371). The jury also found him guilty of five counts of wire fraud (18 U.S.C. § 1343), nine counts of bank fraud (18 U.S.C. § 1344), and one count of use of a fictitious name for mailing (18 U.S.C. § 1342).

On July 26, 2005, we imposed upon Schwartz a 225-month sentence. This sentence varied above the Sentencing Guidelines' advisory range for reasons we explained at length in United States v. Schwartz, 379 F. Supp. 2d 716 (E.D. Pa. 2005).*fn1 Schwartz again represented himself at the sentencing hearing. Our Court of Appeals affirmed his conviction and sentence in United States v. Schwartz, 315 F. App'x 412 (3d Cir. 2009), along with Schwartz's conviction and sentence in Criminal No. 04-231 that had proceeded before our colleague, Judge Bartle.

Schwartz petitioned the United States Supreme Court for a writ of certiorari. The Supreme Court obliged the Government to respond, and the Solicitor General's office filed a twenty-two page brief concluding that Schwartz's claims warranted no review. The Court denied Schwartz's petition for writ of certiorari on April 26, 2010. Schwartz v. United States, 130 S. Ct. 2371 (2010).

Schwartz filed his timely sixty-five page motion for habeas corpus relief pursuant to 28 U.S.C. § 2255, to which the Government responded with one-hundred-seventy-two pages of opposition. After affording Schwartz three hundred days to file a reply, we denied his twelfth hour request for a second one-hundred-twenty day extension to file that reply.

For the reasons set forth at length below we will deny Schwartz's § 2255 motion for habeas corpus relief without convening a hearing. His ineffective assistance of trial and appellate counsel and actual innocence claims fail on the merits. His trial process and Government abuse claims fail for procedural reasons. We will decline to issue a certificate of appealability as none is warranted on such a clear and (to risk understatement) fully-developed record.

Table of Contents

I. The Contours of Schwartz's § 2255 Motion ................... 6

II. The Standard for Evaluating a Pro Se § 2255 Motion ......... 6

III. Background Facts: Schwartz's Legal Representation

During the Pre-Trial, Trial, Sentencing, and Direct Appeal Phases of Criminal Action No. 03-35 .......... 8

IV. Schwartz's Ineffective Assistance of Trial Counsel Claims . 19

A. The Ineffective Assistance of Trial Counsel Standard ...... 20

B. Threshold Matter: Schwartz's Sixth Amendment Right to Trial Counsel Waiver ...................................... 23

C. Schwartz's Pre- and Post-Sixth Amendment Waiver Ineffective Assistance of Counsel Claims .................. 26

1. Pre-Waiver Claims ........................................ 26

2. Post-Waiver Claims ....................................... 34

D. Schwartz's Ineffective Assistance of Counsel Claims Arising From Alleged Breach of the Attorney-Client Privilege ...... 36

V. Schwartz's Claims of Ineffective Assistance of Appellate Counsel, Trial Process Abuse and Government Misconduct, and Actual Innocence .......................................... 42

A. Ineffective Assistance of Appellate Counsel ............... 42

1. The Due Process Right to Effective Assistance of Appellate Counsel ............... 43

2. Application: Three Reasons Why The Ineffective Appellate Counsel Claims Fail ............... 45

a) The Appellate Proceedings Were Fair .................... 46

b) Appellate Counsel's Conduct Was Neither Deficient Nor Prejudicial ........................................ 53

c) Schwartz's Claims Fail As a

Matter of Legal Pleading Sufficiency ................... 57

B. Schwartz's Trial Process and Government Misconduct Claims .............................. 60

1. The Standard ............................................. 61

2. Background Facts: Schwartz's Trial Process and Government Abuse Arguments in his § 2255 Motion ..... 62

3. Application: The Prior Decisions Will Not Be Disturbed And Any New Claims Are Procedurally Barred .... 63

C. Schwartz's Actual Innocence Claim ......................... 66

VI. No Hearing Is Required .................................... 68

VII. We Will Deny Schwartz's Request For Leave to Amend His Petition ........................... 69

VIII. No Certificate of Appealability Is Warranted ............. 70

IX. Conclusion ................................................ 71

I. The Contours of Schwartz's § 2255 Motion

Schwartz's pro se § 2255 motion raises four distinct

issues comprised of many sub-issues. First, he asserts what we will treat as four different categories of ineffective assistance of counsel claims. Specifically, he alleges that his counsel provided ineffective assistance: (1) before Schwartz decided to represent himself pro se; (2) during the trial and sentencing proceedings at which Schwartz represented himself; and (3) on direct appeal. Since his fourth claim avers that counsel rendered ineffective assistance by violating the attorney-client privilege -- at times that appear to traverse more than one of these temporal categories -- we will treat this claim separately.

Second, Schwartz claims that "the process employed by Judge Dalzell [in conducting his criminal trial] violated Schwartz'[s] Due Process rights and was lacking in fundamental fairness". Pet. 44. Third, he claims that "the government's outrageous conduct in this case reaches the extraordinary mark of prosecutorial misconduct." Id. at 54. And fourth, he contends that he is actually innocent. Id. at 63.

II. The Standard for Evaluating a Pro Se § 2255 Motion

We must "accept the truth of [a § 2255 petitioner'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) (citations omitted). Importantly, "vague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the District Court". United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000); see also United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008).

Though we are to liberally construe pro se litigant pleadings, see Mala v. Crown Bay Marina, Inc., --- F.3d --- , No. 10--4710, 2013 WL 57895, at *3-*4 (3d Cir. Jan. 7, 2013), this "pro se practice is a shield against the technical requirements of a past age", Theriault v. Silber, 579 F.2d 302, 303 (5th Cir. 1978), and has its limits. Our Court of Appeals just last month re-affirmed that we "need not provide substantive legal advice to pro se litigants." Mala, 2013 WL 57895, at *3; id. at *4 ("Nonassistance is the rule"). Indeed, our Court of Appeals acknowledged in Mala that "there are limits to our procedural flexibility. For example, pro se litigants still must allege sufficient facts in their complaints to support a claim. . . . At the end of the day, they cannot flout procedural rules -- they must abide by the same rules that apply to all other litigants." Id. And an experienced pro se litigator "has less reason to complain than the neophyte pro se litigant" because "[h]is experiences have made him well acquainted with the courts." See Davidson v. Flynn, 32 F.3d 27, 31 (2d Cir. 1994) (refusing to be flexible when interpreting a complaint because the plaintiff was 'an extremely litigious inmate who [was] quite familiar with the legal system and with pleading requirements'); Cusamano v. Sobek, 604 F. Supp. 2d 416, 445--46 (N.D.N.Y. 2009)." Mala, 2013 WL 57895, at *5.

III. Background Facts: Schwartz's Legal Representation During the Pre-Trial, Trial, Sentencing, and Direct Appeal Phases of Criminal Action No. 03-35

On January 16, 2003, a Grand Jury returned a twenty-seven count Indictment against Schwartz and his mother, co-defendant Ilene Schwartz.*fn2 A week later the matter was assigned to our docket, and the next day Mark E. Cedrone, Esq., entered his appearance on Schwartz's behalf. At that time Schwartz was released on bail conditions.

By letter dated and faxed to chambers on March 12, 2004, Schwartz, in no uncertain terms, informed us that he was "taking over [his] defense." March 12, 2004 Letter (Chambers Files, Attached as Exhibit). He also made it clear that "[n]othing in this request should be construed to reflect negatively on Mr. Cedrone." Id. Schwartz did not cite any complaint about Cedrone's representation up through that time. He only took issue with the Government's "fail[ure] to produce 'thousands' of documents" and its conduct in relation to a then-potential Government witness. Id.

On March 23, 2004, the Government responded to Schwartz's letter expressing its concern that Schwartz had not clearly and unequivocally requested to represent himself under Supreme Court and Third Circuit jurisprudence. The Government noted that Schwartz's "letter . . . cites no complaint regarding his representation thus far by his counsel". Docket Entry # 54 at

1. We had already scheduled for March 25, 2004 a hearing on Schwartz's desire to represent himself before receiving the Government's response, docket entry # 52.

But before we could convene that hearing, the Government filed a motion to revoke Schwartz's bail. After a hearing on the matter on March 25, 2004, we granted the Government's motion and ordered Schwartz detained. March 25, 2004 Tr. 36:3-5 (Docket Entry # 57); (Docket Entry # 72).*fn3 We had originally intended to hear argument that day on Schwartz's request to represent himself, but chose to address the Government's bail revocation motion instead because "it immediately concern[ed Schwartz's] liberty" and, thus, "[could have an] impact on the matter" of his decision to represent himself. March 25, 2004 Tr. 3:13-19. We declined to entertain Schwartz's "adamant . . . desire to represent himself . . . in connection with his bail revocation proceeding" expressed on the record that day, id. 10:10-12, because the Government's motion could "change the ballgame" since Schwartz's freedom was in jeopardy and confinement would complicate his efforts to represent himself and prepare for trial. Id. 10:17-19.

After we ordered Schwartz to be detained, we recessed the question of Schwartz's self-representation for a few days because, in light of his pre-trial detention, "it . . . is . . . highly material . . . on the issue of representation and his ability to represent himself. Just a physical difficulty of representing himself from 7th and Arch", the intersection of the Philadelphia Federal Detention Center. Id. 36:17-21.

On April 1, 2004, we held a hearing on Schwartz's request to represent himself and engaged in an extensive on-the- record colloquy to ascertain whether he understood the grave risks he faced if he were to proceed pro se. April 1, 2004 Tr. at pgs. 10-33 (Docket Entry # 416). Since Schwartz was now in custody, we stressed the challenges he would face representing himself and preparing his defense from the Federal Detention Center. To drive home the point, we told Schwartz that "Mr. Cedrone could walk over to the public library to look up things. You can't do that." Id. 19:18-21. We cautioned him: "you're going to have, just physically, physically, much more difficulty in investigating your case and in composing pretrial motions than you would have if you weren't in jail." Id. 20:1-4. We told him that "[n]ow that ...


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