United States District Court, E.D. Pennsylvania
ANITA B. BRODY, District Judge.
Currently before me is Anthony Trimble's prose Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. For the reasons set forth below, I will deny Trimble's § 2255 motion.
On April 24, 2007, a grand jury in the Eastern District of Pennsylvania returned a superseding indictment charging several individuals, including Trimble, with conspiracy to defraud the Internal Revenue Service ("IRS"), as well as corruptly endeavoring to obstruct the administration of the tax laws. These charges stemmed from the individuals involvement in an organization known as the Commonwealth Trust Company ("CTC"), a company that sold domestic and foreign trusts. CTC advised clients that they could escape paying federal income tax by diverting their income through CTC trusts, and instructed clients to transfer assets they already had into these trusts to protect the assets from IRS liens and seizures.
On January 2, 2008, Trimble pled guilty to one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and one count of corruptly endeavoring to obstruct and impede the due administration of the Internal Revenue laws, in violation of 18 U.S.C. § 7212(a). Trimble was sentenced to 65 months of imprisonment, three years of supervised release, a fine of $1, 000, a $100 special assessment, and restitution in the amount of $5, 736, 562.80 to be paid jointly and severally with his co-defendants.
Trimble appealed his sentence to the Third Circuit. On November 15, 2011, the Third Circuit affirmed Trimble's sentence. Trimble filed a motion for rehearing, which the Third Circuit denied on February 6, 2012.
On January 4, 2013, while incarcerated, Trimble filed his habeas corpus petition. Trimble was released from prison on September 12, 2013.
II. STANDARD OF REVIEW
Section 2255 empowers a court to "vacate, set aside or correct" a sentence that "was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). If a party is entitled to relief under§ 2255(a), "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id. § 2255(b). A petitioner is entitled to an evidentiary hearing unless the motion, files, and records of the case show conclusively that the petitioner is not entitled to relief. Id.
Trimble challenges both the length of his sentence and the order ofrestitution. Trimble cannot succeed on his habeas corpus petition because the challenges to the length of his sentence are moot and the challenges to the restitution order are not cognizable under§ 2255.
A. Length of Sentence
Trimble argues that counsel rendered ineffective assistance of counsel in two instances: (1) at sentencing when counsel failed to argue for a downward departure on the basis that Trimble was a minimal or minor participant in the conspiracy; and (2) on appeal when counsel failed to argue that Trimble received a disproportionately higher sentence than one of his co-defendants. Trimble contends that there is a reasonable probability that the length of his sentence would have been reduced if counsel had raised these arguments.
Although Trimble was incarcerated at the time he filed his habeas corpus petition, he has since been released from custody. Under Article III of the Constitution, a federal court may decide "only actual, ongoing cases or controversies." Lewis v. Cont'! Bank Corp., 494 U.S. 472, 477 (1990). "The case or controversy requirement continues through all stages of federal judicial proceedings, trial and appellate, and requires that parties have a personal stake in the outcome." Burkey v. Marberry, 556 F.3d 142, 147 (3d Cir. 2009). "This means that, throughout the litigation, the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.'" Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis, 494 U.S. at 477). While incarceration satisfies the case or controversy requirement, "[o]nce a sentence has expired, however, some continuing injury, also referred to as a collateral consequence, must exist for the action to continue." Burkey, 556 F.3d at 147. When a petitioner "is attacking a sentence that has already been served, collateral consequences will not be presumed, but must be proven." Id. at 148. A habeas corpus petition will be denied as moot if the petitioner who has been released from custody only challenges the length of his completed ...