United States District Court, W.D. Pennsylvania
MEMORANDUM AND ORDER
CATHY BISSOON, District Judge.
Pending before the court is a motion to vacate, set aside or correct sentence by a person in federal custody pursuant to 28 U.S.C. § 2255 ("Section 2255 motion") filed by Timothy Milton Vales ("Petitioner") (Doc. 106). Because the record demonstrates that Petitioner's motion is procedurally barred and that his sentence was not imposed in violation of the United States Constitution or laws of the United States, the Section 2255 motion will be denied without a hearing.
The parties are familiar with the background in this case; therefore, the Court will recount only the essential facts. On January 14, 2003, a federal grand jury in this district returned a two-count indictment charging Petitioner with bank fraud in violation of 18 U.S.C. § 1344. On September 29, 2003, Petitioner entered a plea of guilty, and on March 8, 2004, was sentenced by the Honorable Judge Gary M. Lancaster to 27 months of imprisonment followed by a five-year term of supervised release (Doc. 37). Petitioner filed a timely appeal. Because Petitioner's direct appeal was pending at the time United States v. Booker was decided, the Court of Appeals, as was then customary, remanded Petitioner's case for re-sentencing (Doc. 47).
On July 15, 2006, Petitioner was re-sentenced to 27 months of imprisonment followed by a five-year term of supervised release (Doc. 65). Petitioner again appealed his sentence, and on April 28, 2008, the Court of Appeals affirmed the judgment of sentence (Doc. 85). Petitioner was released to supervision on March 18, 2009, and on or about November 15, 2010, was arrested and later convicted on state charges, including theft and forgery (Doc. 87).
On November 2, 2012, a Supplemental Supervised Release Violation (Doc. 96) was filed asserting violations based on the aforementioned state charges and other technical violations, including failure to report to probation, failure to make restitution and failure to truthfully answer inquiries by the probation office. Petitioner motioned for, and was appointed, counsel to represent him at the supervised release hearing (Doc. 97).
Prior to the hearing, Petitioner's counsel filed a Memorandum in Mitigation of Sentence (Doc. 103) in which counsel argued that since Petitioner had been in state custody since November 15, 2010, Petitioner should be sentenced to a term "wholly and substantially concurrent to his state sentences." In essence, counsel argued that Petitioner's federal sentence for violation of supervised release should run concurrently to his state sentences for theft and forgery. The sentencing court denied the request and sentenced Petitioner to 27 months of incarceration with no supervised release to follow (Doc. 105).
Petitioner's pro se Section 2255 motion raises one primary argument. Specifically, Petitioner argues that he was denied due process of law because the sentencing court failed to consider his argument in mitigation of sentence. In briefing, Petitioner makes clear that he in "no way [is] dissatisfied with or disputes" his 27 month sentence, but instead takes issue with, as he describes, the sentencing court's "silence" with regard to his mitigation request. Petitioner argues that this silence resulted in "ambiguity" and a denial of due process. For the reasons stated herein, Petitioner's claims are procedurally defaulted, and even if not defaulted, are meritless.
B. Procedural Default
Pursuant to Section 2255, a federal prisoner in custody may move the court that imposed the sentence to vacate, set aside or correct the sentence upon the ground that:
[T]he sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.
28 U.S.C. § 2255(a).
It is well settled that Section 2255 petitions are not substitutes for direct appeals and serve only as a collateral attack to protect a defendant from a violation of the United States Constitution or from some statutory defect so fundamental that a complete miscarriage of justice has occurred. United States v. Frady , 456 U.S. 152 (1982). Section 2255 petitions come also with certain procedural limitations and a petitioner has procedurally defaulted all claims that he neglected to raise on direct appeal. Id . Procedural default forecloses collateral review unless the prisoner can show cause excusing the default and demonstrate actual prejudice resulting from the errors. See Bousley v. United States , 523 U.S. 614, 622 (1998) ("[W]here a defendant has procedurally defaulted a claim by failing to ...