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United States v. Zellous

United States District Court, Third Circuit

October 24, 2013




DONETTA W. AMBROSE, Senior District Judge.

In this action, Defendant entered a plea of guilty to one count of violating 21 U.S.C. §§ 846 and 841. On January 9, 2013, he was sentenced to a term of imprisonment of 120 months, followed by eight years of supervised release. On appeal, the Court of Appeals granted the Government's Motion to enforce Defendant's waiver of appellate rights present in his plea agreement. Defendant filed a Motion pursuant to 28 U.S.C. § 2255, which I denied by Order dated October 16, 2013. Presently, he has filed a Request for Certificate of Appealability. For the following reasons, the Request will be denied.



A. Certificate of Appealability

Under 28 U.S.C. § 2253(c)(2), a "certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right." Because this inquiry rests on the outcome of Defendant's Section 2255 Motion, and my October 16 Order was brief, I take this opportunity to more thoroughly set forth the grounds for that Order.

B. Section 2255

Relief is available under Section 2255 only under exceptional circumstances, when the claimed errors of law are "a fundamental defect which inherently results in a complete miscarriage of justice, " or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States , 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). A district court need not hold an evidentiary hearing on a Section 2255 motion if the motion, files, and records show conclusively that the defendant is not entitled to relief. United States v.Ritter , 93 Fed.Appx. 402 (3d Cir. 2004). Under these standards, a hearing is unnecessary in this case, and the Motion will be disposed of on the record.

Finally, a pro se pleading is held to less stringent standards than pleadings drafted by attorneys. Estelle v. Gamble , 429 U.S. 97, 106, 97, 97 S.Ct. 285, 50 L.Ed.2d 251 s. ct. 285, 429 U.S. 97 , 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Haines v. Kerner , 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Thus, a pro se habeas petition should be construed liberally. See Royce v. Hahn , 151 F.3d 116, 118 (3d Cir. 1998). I have considered Defendant's Motion according to these standards.

C. Ineffective Assistance of Counsel

Under applicable standards, Defendant must meet a two-pronged test: "(1) that counsel's representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's error, the result would have been different." Rolan v. Vaughn , 445 F.3d 671, 681 (3d Cir. 2006). To meet the first prong, a defendant must first show that counsel's performance fell below "the wide range of professionally competent assistance." Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. Counsel's conduct must be assessed according to the facts of the particular case, viewed as of the time of counsel's conduct. Id. at 689. To meet the prejudice prong, the pertinent question is "whether there is a reasonable probability that, absent the errors, " the result would have been different. Id. at 695; see also United States v. Gray , 878 F.2d 702, 709-13 (3d Cir. 1989). The prejudice prong of Strickland rests on "whether counsel's deficient performance renders the result of the... proceeding fundamentally unfair, " or strips the defendant of a "substantive or procedural right to which the law entitles him." Id. at 844.


In this case, Defendant entered into a plea agreement that waived his right to file a motion to vacate sentence. Generally, waivers of the right to appeal and to collateral attack are valid if entered into knowingly and voluntarily, and will divest the district court of jurisdiction over a collateral attack. United States v. Khattak , 273 F.3d 557, 558 (3d Cir. 2001); United States v. Whitaker, No. 02 90 03 , 2005 U.S. Dist. LEXIS 23884, at **5 6 (E.D. Pa. Oct. 18, 2005). Claims challenging the voluntariness of the waiver, or the effectiveness of counsel with respect to the waiver itself, however, may survive. Whitaker, 2005 U.S. Dist. LEXIS at **5 6. Similarly, courts will consider an ineffectiveness claim that relates directly to the negotiation of the waiver itself. United States v. Fagan, No. 04 2176 , 2004 U.S. Dist. LEXIS 22456, at **9 11 (E.D. Pa. Oct. 4, 2004). In assessing the record, I am mindful that "absent clear ...

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