United States District Court, Western District of Pennsylvania
MEMORANDUM ORDER RE: DEFENDANT’S MOTION TO VACATE UNDER 28 U.S.C. § 2255 (DOC. NO. 1357)
Arthur J. Schwab, United States District Judge
In early 2011, Defendant, along with 24 others, was indicted for his role in a heroin distribution ring. Doc. Nos. 1 and 273. Defendant was charged with the following counts:
• Count I: conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin, a schedule I controlled substance, in violation of 21 U.S.C. § 846;
• Count VII: distribution and/or possession with intent to distribute a quantity of heroin, a schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C); and
• Count VIII: possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i)
Jury selection and trial were scheduled to begin on October 29, 2012. Doc. No. 965. On October 15, 2012, Defendant, through counsel, filed notice of his intention to waive his right to a jury trial pursuant to Rule 23(a)(1) of the Federal Rules of Criminal Procedure. Doc. No. 1078. On October 22, 2012, the Court held a Preliminary Pretrial Conference, during which time Defendant was colloquied on his desire to waive his right to a trial by jury. Doc. No. 1100. Defendant orally waived his right to a trial by jury during this conference. Id. On October 24, 2012, pursuant to a plea agreement, Defendant withdrew his plea of not guilty and pled guilty to a lesser included offense at Count 1 of the Superseding Indictment of conspiracy to distribute and possession with intent to distribute at least 100 grams, but less than one kilogram, of a mixture or substance containing a detectable amount of heroin. Doc. No. 1108. The plea agreement contained waiver of appellate rights clauses that provided that Defendant waived his right to take a direct appeal from his conviction or sentence except in three limited circumstances and that he “further waives the right to file a motion to vacate sentence, under 28 U.S.C. § 2255, attacking his conviction or sentence, and the right to file any other collateral proceeding attacking his conviction or sentence.”
On February 12, 2013, the Court held a sentencing hearing. The applicable advisory guideline range, based upon an offense level of 33 and a criminal history category IV, was 188-235 months imprisonment. Doc. No. 1236. A mandatory minimum of 120 months imprisonment applied. Id. The Court sentenced Defendant to a 170 month term of imprisonment to be followed by an 8 year term of supervised release. Doc. No. 1247. Counts 7 and 8 of the Indictments were dismissed based upon the Government’s oral motion to dismiss. Because Defendant was sentenced below the guideline range and the Government did not appeal Defendant’s sentence, none of the exceptions to Defendant’s waiver of appellate rights apply.
On February 18, 2013, Defendant filed a notice of appeal from this Court’s Judgment Order. Doc. No. 1258. The United States Court of Appeals for the Third Circuit granted the Government’s Motion for Appellate Waiver and Summary Affirmance and thereby affirmed this Court’s Judgment. Doc. No. 1308.
Presently before this Court is Defendant’s pro se Motion to Vacate under 28 U.S.C. § 2255. Doc. No. 1357. Defendant contends that his counsel, Lee Markovitz, was ineffective because counsel did not:
(1) adequately explain the consequences of his appellate and collateral waivers; or
(2) inform Defendant that he could elect to proceed to be tried by a jury after he waived that right;
Defendant also contends that:
(1) he did not knowingly, intelligently, and voluntarily waive ...