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United States v. Nelson

United States District Court, Third Circuit

December 12, 2013

UNITED STATES OF AMERICA
v.
ROBERT L. NELSON.

MEMORANDUM

CHRISTOPHER C. CONNER, Chief District Judge.

Presently before the court is defendant Robert L. Nelson's ("Nelson") pro se motion (Doc. 288) to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255[1] and his motion (Doc. 289) to proceed in forma pauperis. For the reasons that follow, the court will deny Nelson's § 2255 motion and deny his motion to proceed in forma pauperis as moot.

I. Factual and Procedural Background

On July 1, 2009, Nelson and co-defendant Steven Ray Moreland ("Moreland") were indicted for possession with intent to distribute and conspiracy to distribute cocaine and cocaine base. (Doc. 1). On September 23, 2009, Nelson was charged in a three-count superseding indictment (Doc. 28) with: (1) possession with intent to distribute 50 grams and more of cocaine base and cocaine, in violation of 21 U.S.C. § 841(a)(1); (2) conspiracy to distribute 50 grams and more of cocaine base and cocaine, in violation of 21 U.S.C. § 846; and (3) being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).[2]

During the course of post-arrest proceedings, the court provided Nelson with three different court-appointed trial attorneys and one appellate attorney. (See Docs. 55, 76, 220). Nelson's first trial attorney was Attorney Thomas Thornton ("Attorney Thornton"). Nelson filed a motion to remove Attorney Thornton on October 6, 2009. (Doc. 46). The court granted the motion and appointed a second trial attorney, John Yaninek ("Attorney Yaninek"). (See Doc. 55). On December 1, 2009, Nelson filed a motion to remove Attorney Yaninek. (Doc. 64). On January 12, 2010, the court held a hearing and appointed Attorney Jeffrey A. Conrad ("Attorney Conrad") to represent Nelson. (Doc. 76).

Nelson, both pro se and through counsel, filed numerous letters and motions prior to his ultimate guilty plea. (Docs. 69, 94, 100, 104, 106, 112, 121, 122, 124, 145, 146, 147, 148, 161, 162, 171, 175, 179, 180, 181, 182, 185, 186, 187). Ultimately, at Nelson's request, the court removed Attorney Conrad and permitted Nelson to proceed with self-representation. Attorney Conrad was designated as standby counsel. (See Doc. 166). On the morning of December 6, 2010, immediately prior to the start of jury selection, the court reinstated Attorney Conrad as defense counsel, again at Nelson's request. (See Doc. 210). That same day, Nelson entered a guilty plea to all of the offenses in the superseding indictment. (Doc. 195).

On December 16, 2010, Nelson sought to withdraw his guilty plea. (See Doc. 202). The court denied this motion after a hearing. (See Doc. 219). Attorney Laurence C. Kress ("Attorney Kress") was thereafter appointed for sentencing purposes. (See Doc. 220). On September 30, 2011, the court imposed a sentence of 235 months of imprisonment, a $2, 000 fine, $300 in special assessments, and five years of supervised release. (See Doc. 280).

Nelson appealed his sentence. See United States v. Nelson, 488 F.App'x 552, 554 (3d Cir. 2012). Attorney Kress represented Nelson in his appeal. See id. Attorney Kress filed an Anders brief which identified the issues that Nelson could raise on appeal and concluded that all lacked merit. Id . The Third Circuit permitted Nelson to file two pro se briefs to raise additional grounds for appeal. Id. at 553-554. The Third Circuit concluded that all issues raised by Attorney Kress and Nelson lacked merit and affirmed the court's judgment of sentence. Id. at 554.

On April 8, 2013, Nelson filed a motion to vacate under 28 U.S.C. § 2255.[3] (Doc. 288). The motion is fully briefed and ripe for disposition.

II. Legal Standard

Generally, a defendant may not use a § 2255 motion to relitigate questions previously raised and considered on direct appeal. United States v. DeRewal , 10 F.3d 100, 105 n.4 (3d Cir. 1993); United States v. Orejuela , 639 F.2d 1055, 1057 (3d Cir. 1981). Further, a district court is not required to hold a hearing when the record conclusively shows that a movant is not entitled to relief. United States v. Lilly , 536 F.3d 190, 195 (3d Cir. 2008); see also United States v. Thomas , 221 F.3d 430, 437 (3d Cir. 2000) ("Vague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the District Court.").

III. Discussion

Nelson argues that his sentence should be vacated on seven grounds. Nelson alleges (1) judicial misconduct; (2) ineffective assistance of trial counsel; (3) prosecutorial misconduct; (4) that his guilty plea (Doc. 195) was not knowingly and intelligently entered; (5) ineffective assistance of direct appeal counsel; (6) the denial of his Sixth Amendment right to a speedy trial; and (7) the denial of his right to be present at a suppression hearing. (Doc. 291 at iv).

As a threshold matter, the court notes that it previously disposed of Nelson's challenge to his guilty plea. (See Doc. 219). The Third Circuit specifically affirmed this court's denial of Nelson's motion to withdraw his guilty plea. Nelson, 488 F.App'x at 554 ("In particular, we see no error in the District Court's denial of Nelson's request to withdraw his plea of guilty."). The court ...


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