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United States v. Cidone

United States District Court, Third Circuit

December 19, 2013

UNITED STATES OF AMERICA,
v.
PIERRE CIDONE,

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

Presently before the Court is Pierre Cidone's ("Cidone") Motion Pursuant to 28 U.S.C. § 2255. (Doc. 245.) Because the record demonstrates that Cidone was not deprived of the effective assistance of counsel and that he is not entitled to the relief requested, the motion will be denied without a hearing.

I. Background

On May 4, 2005, a cooperating witness contacted the Scranton Police and stated that Cidone was traveling to New Jersey to purchase crack cocaine. The cooperating witness described the vehicle in which they would be traveling, the passengers in the vehicle, its destination, and the estimated time of arrival. After the vehicle arrived in Scranton, Pennsylvania, police officers verified the descriptions provided by the cooperating witness.

Police officers approached the parked vehicle on the 1300 block of Washburn Street in Scranton. As they approached, the doors to the vehicle were being opened. The officers shined flashlights into the vehicle and one of the passengers yelled. At the same time, Cidone, while sitting in the backseat behind the driver's seat, put his hands down towards the floor and made furtive movements. He was asked to put his hands up, but he initially refused. Cidone was then removed from the vehicle, and the officers observed in plain view, where Cidone had been sitting, a clear plastic bag that appeared to contain crack cocaine. Cidone was advised of his Miranda rights. Cidone denied that he owned the drugs.

Cidone was subsequently searched. The search resulted in the discovery and seizure of a razor blade and a large quantity of miniature ziplock baggies.

On February 14, 2006, a federal grand jury returned an indictment against Cidone, charging him with conspiracy to distribute in excess of 50 grams of cocaine base, in violation of 21 U.S.C. § 846 (Count 1), possession with intent to distribute in excess of five grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count 2), and possession of more than five grams of cocaine base, in violation of 21 U.S.C. § 844 (Count 3).

On December 20, 2006, a plea agreement and "Statement of Defendant" signed by Cidone were filed with the Court, and a plea date was scheduled. On the date of the scheduled guilty plea, Cidone informed the Court that he did not wish to plead guilty. Thereafter, a motion for new counsel was filed by Cidone's attorney, Frederick W. Ulrich. The motion was granted, and Deborah Albert-Heise was appointed to represent Cidone. Then, on July 27, 2007, Deborah Albert-Heise was replaced as counsel by Gino A. Bartolai, Jr.

On January 23, 2008, a hearing was held on Cidone's motion to suppress evidence. The motion was denied on the record.

On May 1, 2008, a plea agreement signed by Cidone was filed with the Court. Agents also took a signed, counseled statement from Cidone in which he admitted to possessing with the intent to distribute between five and eighteen grams of cocaine base as reflected in Count 2 of the indictment.

On June 4, 2008, Cidone pled guilty to possession with intent to distribute in excess of five grams of cocaine base (Count 2). The plea agreement originally contained a provision in which the parties agreed to recommend that Cidone be sentenced to 120 months in prison. At the plea hearing, however, the agreement was amended to remove the recommended sentence term. Also filed with the Court was an Amended Statement of Defendant. After conducting a colloquy and finding that he was knowingly and voluntarily pleading guilty, Cidone's guilty plea was accepted. Cidone subsequently filed a motion to withdraw his guilty plea, which was denied.

On October 21, 2008, Gino A. Bartolai, Jr. was replaced by Paul Ackourey as counsel for Cidone. Paul Ackourey subsequently filed a motion to withdraw, and the motion was granted on January 8, 2009. And, on November 13, 2009, Gino A. Bartolai, Jr. was again appointed to represent Cidone. Thereafter, on January 19, 2010, Cidone was sentenced to 120 months of imprisonment.

Cidone next filed an appeal in the United States Court of Appeals for the Third Circuit. On February 11, 2010, Gino A. Bartolai, Jr. filed a motion for leave to withdraw as counsel on appeal, and the Third Circuit granted the motion on March 15, 2010. On July 12, 2010, Cidone filed a pro se "Brief in Support for Review" in the Third Circuit. On August 20, 2010, Walter S. Batty, Jr. was appointed as appellate counsel.

Cidone's appellate counsel filed an exhaustive and extensive Anders brief addressing Cidone's possible claims on appeal, including those raised by Cidone in his pro se brief. Cidone's appellate ...


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