United States District Court, Eastern District of Pennsylvania
GENE E.K. PRATTER UNITED STATES DISTRICT JUDGE
David Lee Spikes pled guilty on December 2, 2008, to three counts of aiding and abetting substantive Hobbs Act robberies, in violation of 18 U.S.C. § 1951(a)(2), and to two counts of aiding and abetting the use or carrying of firearms in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c). Proceeding pro se, Mr. Spikes moved to vacate, set aside, or correct his sentence under 18 U.S.C. § 2255. (Doc. Nos. 233, 238, 241, 244). The Government moved to dismiss Mr. Spikes’s petition, primarily on the grounds that Mr. Spikes waived his right to seek collateral review of his conviction or sentence when he entered into his written Plea Agreement and pled guilty. Mr. Spikes opposes (at Doc. Nos. 238, 241) the Government’s Motion to Dismiss (Doc. No. 235) and the Government’s Supplemental Motion (Doc. No. 239). The Court requested supplemental briefing (Doc. No. 270), which the parties have since submitted. (Doc. Nos. 271, 272).
After careful consideration of Mr. Spikes’s § 2255 Motion and the parties’ extensive briefing, and after detailed review of the Plea Agreement as well as the transcript of the December 2, 2008 change of plea hearing, for the reasons discussed below, the Government’s Motion to Dismiss, Supplemental Motion (Doc. No. 239), and Second Supplemental Motion (Doc. No. 271) will be granted, and Mr. Spikes’s § 2255 Motion (Doc. No. 233) will be denied.
I. Factual and Procedural Background
A Grand Jury’s Superseding Indictment charged Mr. Spikes with three counts of violating, and aiding and abetting a violation of, 18 U.S.C. § 1951(a) (interference with commerce by robbery), and three counts of violating, and aiding and abetting a violation of, 18 U.S.C. § 924(c)(1) (using and carrying a firearm during and in relation to a crime of violence). These charges arose from armed robberies at three pharmacies. On December 2, 2008, Mr. Spikes pleaded guilty to five of the six charges pursuant to a written Plea Agreement.
On September 3, 2009, the Court imposed a sentence of 204 months’ imprisonment and ordered Mr. Spikes to pay $41, 781 in restitution. Specifically, Mr. Spikes was sentenced to 84 months on Counts 1, 3, and 5 (aiding and abetting robbery), to be followed by two successive 60-month sentences on Counts 2 and 4 (brandishing a gun during a crime of violence). Mr. Spikes was also sentenced to three years of supervised release on Counts 1, 3, and 5, and five years of supervised release on Counts 2 and 4, all to run concurrently. See Judgment, Doc. No. 161.
Mr. Spikes filed his 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence on September 17, 2010. He argues that he merits relief under § 2255 for (a) his defense counsel’s supposed ineffective assistance, (b) the prosecution’s misconduct, and (c) the Government’s alleged unlawful inducement of his guilty plea. Specifically, Mr. Spikes first alleges that his counsel failed to investigate the Government’s case and failed to procure so-called Brady material prior to advising him to participate in proffer sessions and to plead guilty—conduct which, Mr. Spikes asserts, left undiscovered critical discrepancies in the Government’s case and thus fell below an objective standard of reasonableness. Mr. Spikes further asserts that his counsel “was deficient in his knowledge and understanding of the Sentencing Guidelines;” that this ignorance resulted in a higher base offense level and the Court’s consideration of uncharged conduct as “charged conduct” at sentencing; and that his counsel also failed to correct problems in the Presentence Investigation Report. Spikes’s § 2255 Mot. Addendum 1-4. Second, Mr. Spikes alleges that the prosecutor engaged in prejudicial misconduct. Mr. Spikes asserts that the Government submitted false information to the Court at the change of plea hearing; relied upon evidence it did not possess at that same hearing; used uncharged crimes as relevant conduct in calculating a recommended offense level for sentencing; used statements by co-defendants against Mr. Spikes at sentencing when the Court had already limited the use of such statements; and made an incorrect and prejudicial reference to a nonexistent third superseding indictment. Id. Finally, Mr. Spikes contends, he relied on the advice of counsel in entering the guilty plea, which he would not have entered but for counsel’s ineffective assistance. Id.
The Government filed its opposition, styled as a Motion to Dismiss. In its opposition, the Government argues that Mr. Spikes’s Motion must be dismissed because he had entered into his Plea Agreement knowingly and voluntarily, that this Plea Agreement contains a waiver of direct and indirect appellate rights, and no part of Mr. Spikes’s Motion proceeds down the limited avenues for appeal left available, given Mr. Spikes’s agreement to the waiver provision in his Plea Agreement. Mot. Dismiss 13-15, Doc. No. 235.
In response Mr. Spikes argues that, based on his claims stated in his Motion, enforcing the waiver would constitute a miscarriage of justice. Spikes’s Resp. 3-4, Doc. No. 238. While his response essentially reiterated the claims contained in his Motion, Mr. Spikes expanded on his arguments. He contends that the Government, at the plea hearing, intentionally misstated his role in the robbery by falsely stating that he was identified as the individual who robbed a Rite Aid on December 2, 2007. Id . at 9-11. He also argues that his counsel was ineffective for failing to object to these false statements of identification. Id. at 11. He further asserts that Counsel’s not objecting to the Court’s consideration of uncharged conduct in departing from the Guidelines allowed for punishment for conduct irrelevant to actual conviction, thereby defeating the reasonable sentencing expectations that the parties contemplated in entering into the Plea Agreement. Id. at 14. Finally, Mr. Spikes appears to argue that the Government improperly relied upon the statements of co-defendant, Dennis Burnett, when it argued that the uncharged “relevant conduct” should be added to the Presentence Investigation Report. Id. at 15-17.
In Mr. Spikes’s Response to the Government’s Supplemental Motion to Dismiss (Doc. No. 241), he clarifies that the basis for his constitutional claims, and for his argument that enforcement of the waiver would work a miscarriage of justice, is the Court’s supposed reliance during sentencing upon “relevant conduct” to which he did not plead and which was not included in his original Presentence Investigation Report. Spikes’s Resp. Supp. Mot. Dismiss, Doc. No. 241. In particular, Mr. Spikes argues that uncharged offenses were used to increase his base offense level, and that the treatment of these uncharged offenses as “relevant conduct” violated both the terms of his Plea Agreement and his substantive rights. Mr. Spikes contends that, absent the improper use of the “relevant conduct, ” his Sentencing Guidelines range would have been 130 to 162 months, rather than the 204 months to which he was sentenced. Id. at 8. Mr. Spikes’s Presentence Investigation Report was prepared in January 2009, and then revised that August, ahead of his September 3, 2009 sentencing. Mr. Spikes seeks “to be sentenced using the original Presentence Investigation Report that did not contain the errors as the starting point of and departures as agreed upon in the Plea Agreement.” Id. at 2. As discussed by both the Government and Mr. Spikes, the revised Presentence Investigation Report included as relevant conduct other robberies to which Mr. Spikes had not pleaded guilty.
Because Mr. Spikes waived his right to collaterally attack his sentence by § 2255 Motion, and because he made this waiver knowing and voluntarily, and enforcing it will not work a miscarriage of justice against him, the Court is constrained to enforce the waiver and, therefore, deny Mr. Spikes’s § 2255 Motion.
A criminal defendant can waive his right to file a motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255. The waiver will only be enforced, however, if it is knowing and voluntary. United States v. Mabry, 536 F.3d 231, 237 (3d Cir. 2008). If the waiver is enforceable, the court must refrain from exercising subject matter jurisdiction to consider the merits of the motion unless enforcing the waiver would work a miscarriage of justice. Mabry, 536 F.3d at 237 n.4; United States v. Khattak, 273 F.3d 557, 558, 563 (3d Cir. 2001). A valid waiver also generally bars consideration of the merits of ineffective assistance of counsel claims raised in a § 2255 motion. Mabry, 536 F.3d at 241-44.
In a plea agreement, a criminal defendant may even “waive many of the most fundamental protections afforded by the Constitution, ” provided the waiver is knowing and voluntary. Khattak, 273 F.3d at 561 (citing United States. v. Mezzanatto, 513 U.S. 196, 201 (1995)). But, of course, a court has “an independent obligation to conduct an evaluation of the validity of a collateral waiver.” Mabry, 536 F.3d at 238. The court must examine (1) whether the waiver was “knowing and voluntary, ” based on what occurred ...