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United States v. Burnett

United States District Court, Third Circuit

January 14, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
DENNIS BURNETT, Defendant. CRIMINAL ACTION No. 08-201

MEMORANDUM

GENE E.K. PRATTER United States District Judge

Following his decision to enter a guilty plea pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) (hereinafter “Rule 11”) to two counts of robbery, one count of conspiracy to commit robbery, and one count of using or carrying a firearm during and in relation to a violent crime, Petitioner Dennis Burnett filed a pro se petition for a writ of habeas corpus [Doc. No. 247] under 28 U.S.C. § 2255. For the reasons discussed below, Mr. Burnett’s petition will be denied.

I. Background

On May 12, 2009, Mr. Burnett was charged in a third superseding indictment [Doc. No. 90] with one count of conspiracy to commit Hobbs Act robberies, in violation of 18 U.S.C. 1951(a) (Count 1); two counts of Hobbs Act robbery, and aiding and abetting the commission of Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2 (Counts 2 and 4); and two counts of using and carrying a firearm, and aiding and abetting the using and carrying of a firearm, during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1) and 2 (Counts 3 and 5). These charges were brought after Mr. Burnett conspired with others to rob a number of pharmacies in Pennsylvania and Maryland to obtain prescription drugs for resale on the street [Doc. No. 90].

Mr. Burnett proceeded to trial on these charges on July 13, 2009. The next day, during jury selection for his trial, Mr. Burnett chose to enter into a plea agreement pursuant to Rule 11(c)(1)(C). After extensive negotiations, and in consultation with his attorney, Mr. Burnett decided to plead guilty to the conspiracy count, the two Hobbs Act robbery counts, and one of the § 924(c) offenses. July 14, 2009 Tr. at 13:19-24 (hereinafter “Plea Tr.”). To that end, Mr. Burnett entered into a plea agreement with the Government, in which the parties stipulated to a sentence that included 25-years’ imprisonment. Plea Tr. at 14:18-21. By entering into this agreement, Mr. Burnett avoided a mandatory sentence of an additional, consecutive 25-year prison term for conviction of the second § 924(c) offense with which he was charged. 18 U.S.C. § 924(c)(1)(C)(i); see Plea Tr. at 58:18-24. The parties also stipulated that “as of the date of th[e] agreement, [Mr. Burnett] has demonstrated acceptance of responsibility for his offense making the defendant eligible for a 2-level adjustment under U.S.S.G. § 3E1.1(a).” See Plea Agreement at ¶ 4.

Following the plea hearing, Mr. Burnett’s counsel withdrew from the case [Doc. No. 174], and Mr. Burnett filed a pro se motion to withdraw his guilty plea on October 7, 2009 [Doc. No. 184]. After a hearing, the Court dismissed the motion to withdraw the plea without prejudice on October 14, 2009 [Doc. No. 191] and appointed new counsel.

On December 23, 2009, Mr. Burnett’s new counsel moved to withdraw the guilty plea, arguing that the plea was not knowing and voluntary because he was emotionally distraught at the time of the plea hearing [Doc. No. 202]. After a hearing, the Court denied the motion [Doc. No. 217] and imposed the agreed-upon sentence of 25 years’ imprisonment [Doc. No. 223]. The Court did not factor in a 2-point adjustment for acceptance of responsibility when sentencing Mr. Burnett. Mr. Burnett appealed this sentence [Doc. No. 224] for the same reasons put forth in his motion to withdraw his guilty plea, and the Court of Appeals for the Third Circuit affirmed the denial of his motion to withdraw his plea. United States v. Burnett, 452 F. App’x 81 (3d Cir. 2011).

On April 26, 2013, Mr. Burnett filed the instant motion for habeas corpus relief under 28 U.S.C. § 2255 [Doc. No. 247].[1] Mr. Burnett also moved [Doc. No. 246] for recusal of this Court from presiding over the habeas corpus proceeding, arguing that comments by the Court during the plea colloquy implicated § 455(a) of the federal recusal statute. The Court declined to recuse from consideration of the habeas petition, and the Third Circuit Court of Appeals upheld the Court’s denial of Mr. Burnett’s recusal motion. See In re Burnett, No. 13-3418, 2013 WL 5540128, at *2 (3d Cir. Oct. 9, 2013).

Mr. Burnett’s request for habeas relief targets the same four statements expressed by the Court during the lengthy guilty plea proceeding[2] that argued demonstrated the Court’s supposed partiality towards his plea and plea agreement in his recusal motion, namely:

“Let me interrupt at this point, just so there’s no misunderstanding here. Mr. Burnett, I’m aware of discussions between Mr. Cannon and Ms. Marston[3] and the proposed agreed-upon sentence. If I thought that was not a sentence I could get comfortable with, I would tell you now. Okay?” (Plea Tr. at 15:17-24)
“Just to remind Mr. Burnett [of] the value of his negotiated deal here, would you, Ms. Marston, take a moment and remind him of the maximum penalties it could have been?” (Plea Tr. at 57:9-12)
“The reason why I ask that, Mr. Burnett, is it’s obvious that there is a significant sentence here. But if you have a background that included some serious prior convictions, I would want to know that before I told you that I was comfortable with the sentence, with the deal that’s been crafted for you, because it is a significant savings for you on the sentence.” (Plea Tr. at 62:9-17).
“I don’t know if it may be worth anything to you, but I think that the deal that was negotiated for you is a pretty darn good one from your perspective, okay?” (Plea Tr. at 72:22-25).

These comments were made during a plea colloquy conducted pursuant to Rule 11, which requires, before a court may accept a guilty plea, that the court “inform the defendant of, and determine that the defendant understands, ” a number of considerations relating to the plea and its consequences, including but not limited to “any maximum possible penalty, including imprisonment, fine, and term of supervised release.” Fed. R. Crim. P. 11(b)(1)(H). Mr. Burnett claims that these comments violated Rule 11(c)(1), in that they reflect impermissible Court participation in plea negotiations. In addition, he faults his trial and appellate counsel for not raising this issue at the plea hearing or on direct appeal, respectively. Finally, he seeks to withdraw his plea because he claims that the Court declined to follow the stipulation in his plea agreement regarding a downward departure for acceptance of responsibility and, again, that counsel was ineffective for failing to raise this issue earlier. Thus, Mr. Burnett in essence presents ...


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