United States District Court, Eastern District of Pennsylvania
R. BARCLAY SURRICK, J.
Presently before the Court is Petitioner Michele Quigley’s Motion to Vacate/Set Aside/ Correct Sentence under 28 U.S.C. § 2255 (ECF No. 276). For the following reasons, the Motion will be denied.
A. Procedural Background
On February 10, 2011, a federal grand jury returned a fourteen-count Indictment charging Petitioner with conspiracy, in violation of 18 U.S.C. § 371 (Count 1); operating an illegal money transmission business, in violation of 18 U.S.C. § 1960 (Count 2); operating an illegal gambling business, in violation of 18 U.S.C. § 1955 (Count 3); transmission of wages and wagering information, in violation of 18 U.S.C. § 1084 (Counts 4 through 11); and international money laundering, in violation of 18 U.S.C. § 1956 (a)(2)(A) (Counts 12 through 14). (Indictment, ECF No. 1.) Also charged in the Indictment were co-defendants Donald Hellinger (“Hellinger”), Ronald Hellinger, Michael Weisberg, Randy Trost, and Jami Pearlman (“Pearlman”). (Id.)
Petitioner entered into a plea agreement with the Government. (Min. Entry, ECF No. 113; Plea Doc., ECF No. 114.) The plea agreement provided that Petitioner would plead guilty to Count 2 of the Indictment and in exchange the Government would move to dismiss the remaining counts. A violation of 18 U.S.C § 1960 charged in Count 2 has a statutory maximum sentence of 60 months. On March 2, 2012, Petitioner entered a plea of guilty pursuant to the plea agreement. On September 28, 2012, a sentencing hearing was held. (Sept. 28, 2012 Hr’g Tr., ECF No. 274.) The Sentencing Guidelines called for a sentence above the statutory maximum. After considering all of the relevant circumstances, a sentence well below the statutory maximum was imposed. Petitioner was sentenced to 18 months incarceration followed by a two-year period of supervised release. (Sept. 28 Hr’g Tr. 29.) Petitioner was represented by Robert E. Welsh, Jr., Esquire (“Welsh”) from the time of Indictment through the time of sentencing.
On August 12, 2013, Petitioner filed a pro se motion to vacate/set aside/correct sentence under 28 U.S.C. § 2255. (ECF No. 271.) On August 27, 2013, Petitioner’s motion was stayed pending the filing of an amended motion on the appropriate forms. (ECF No. 273.) Petitioner filed an Amended Motion on September 16, 2013. (Pet’r’s Am. Mot., ECF No. 276.) On September 27, 2013, the Government filed a Response. (ECF No. 278.) Benjamin B. Cooper, Esquire was appointed to represent Petitioner. (ECF No. 285.) On February 11, 2014, Petitioner filed a Memorandum of Law in Support of the Petition to Vacate/Set Aside/Correct Sentence. (Pet’r’s Mem., ECF No. 294.) An evidentiary hearing was held on February 18, 2014 and February 19, 2014. (ECF Nos. 296, 297.)
B. Factual Background
On or about December 14, 2011, the Government, through Assistant United States Attorney Joel Sweet (“AUSA Sweet”), made a collective or “linked plea offer” (“Linked Offer”) to all six defendants. (See Feb. 18, 2014 Hr’g Tr. 6-7.) The Linked Offer was made to Donald Hellinger’s attorney, Fortunato Perri, Esquire. (Id. at 10, 23.) The Government understood that Perri was going to communicate the Linked Offer to all other defense counsel. (Id. at 10.) On January 6, 2012, AUSA Sweet sent a follow-up email to all defense counsel reiterating the terms of the Linked Offer. (Feb. 18 Hr’g Tr. 15-16; Pet’r’s Hr’g Ex. 1.)
The Linked Offer required that all defendants plead guilty to one count of illegal gambling, in violation of 18 U.S.C. § 1955, and one count of illegal transmission of wagering information, in violation of 18 U.S.C. § 1084. (Feb. 18 Hr’g Tr. 7-8; Pet’r’s Hr’g Ex. 1.) If the Linked Offer was accepted by all defendants by January 10, 2012, each defendant would receive a three-level reduction for timely acceptance of responsibility. (Pet’r’s Hr’g Ex. 1.) If any defendant rejected the Linked Offer, the offer was withdrawn as to all defendants. (Feb. 18 Hr’g Tr. 13; Pet’r’s Hr’g Ex. 1.)
On January 9, 2012, Pearlman’s attorney, Jeffrey Miller, Esquire, sent an e-mail to AUSA Sweet stating that “for a variety of reasons, my client respectfully declines the current plea offer.” (Feb. 18 Hr’g Tr. 11-12, 17, 26; Gov’t’s Hr’g Ex. 1.) Ten minutes later, AUSA Sweet “forwarded the e-mail to all of defense counsel and explained that the offer was terminated because it had been rejected by one of the defendants.” (Feb. 18 Hr’g Tr. 17; Gov’t’s Hr’g Ex. 1.) AUSA Sweet testified that, although Welsh subsequently requested additional time to consider the Linked Offer, he did not respond because the offer had been terminated and he did not have “authority to make another offer or to accept an offer on behalf of anybody.” (Feb. 18 Hr’g Tr. 27-28.)
A. Hearing Testimony
At the evidentiary hearing, Petitioner testified that Welsh provided ineffective assistance because he failed to inform her of the Linked Offer, which was potentially more favorable than the plea agreement into which she entered. (Pet’r’s Am. Mot. 7; Pet’r’s Mem. 2.) Petitioner contends that, had she accepted the Linked Offer, she would have had an offense level of 12 (Feb. 18 Hr’g Tr. 8-9), and would have faced a Sentencing Guidelines range of 6 to 12 months with an option for the Court to order a non-custodial prison sentence and impose home confinement (Pet’r’s Mem. 3). Instead, Petitioner entered a plea of ...