United States District Court, Eastern District of Pennsylvania
R. BARCLAY SURRICK, J.
Presently before the Court is Petitioner Barry Corbin's pro se Motion to Vacate/Set Aside/Correct Sentence under 28 U.S.C. § 2255. (No. 09-490, ECF No. 47; No. 10-573, ECF No. 20.) For the following reasons, the Motion will be denied.
On July 21, 2009, a federal grand jury returned a three-count Indictment charging Petitioner with: one count of uttering a forged treasury check, in violation of 18 U.S.C. § 510(a)(2); one count of producing a false identification document, in violation of 18 U.S.C. § 1028(a)(1); and one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A. On September 23, 2009, Petitioner entered an open plea of guilty to these charges. (No. 09-490, ECF Nos. 17, 18.)
On September 2, 2010, the United States Attorney charged Petitioner with: one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371; four counts of wire fraud, in violation of 18 U.S.C. § 1343, 1349 and 2; four counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A; and one count of possession of a document-making implement, in violation of 18 U.S.C. § 1028(a)(5). (No. 10-573, ECF No. 1.) On September 23, 2010, Petitioner entered a plea of guilty to all ten counts pursuant to a written plea agreement with the United States Attorney’s Office. (Sept. 23, 2010 Hr’g Tr., ECF No. 17; Plea Agreement, ECF No. 4.)
On February 28, 2011, a sentencing hearing was held for both cases. (Min. Entry, ECF No. 11; Feb. 28, 2011 Hr’g Tr. (on file with Court).) During the hearing, Petitioner made two objections to the Pre-Sentence Report (“PSR”). (Feb. 28 Hr’g Tr. 3-4, 6-7.) We sustained the objections and adopted the factual matter contained in the PSR, as adjusted by Petitioner’s objections. (Id. at 7.) Both parties agreed with the calculation of the United States Sentencing Guideline (“U.S.S.G.”) range of 164-295 months. (Id. at 3-4, 7.) After considering all of the relevant circumstances, we sentenced Petitioner to a prison term of 240 months, followed by a three-year period of supervised release. (Id. at 20; Judgment, ECF No. 12.) Petitioner filed a timely appeal to the Third Circuit Court of Appeals, challenging his sentence. (ECF No. 13.) On April 17, 2012, the Third Circuit affirmed the judgment of sentence. United States v. Corbin, 474 F. App’x 66, 67 (3d Cir. 2012).
On July 23, 2013, Petitioner filed the instant Motion to vacate, set aside, or correct his sentence. (Pet’r’s Mot., ECF No. 20.) The Motion makes reference to an attached memorandum of law, however, no memorandum was attached. On September 6, 2013, we sent Petitioner a letter advising him to send us a memorandum so that we could review it along with his Motion. (Ct.’s Sept. 6, 2013 Ltr. (on file with Court).) On October 18, 2013, Petitioner filed a request to be furnished with court documents. (ECF No. 22.) On November 8, 2013, after determining that Petitioner had been provided with copies of the guilty plea agreement, the Government’s change of plea memorandum, transcripts of the change of plea hearing, and a transcript of the sentencing hearing, we denied Petitioner’s request for documents as moot. (ECF No. 26.) Petitioner has not filed a memorandum of law in support of his Motion. Petitioner sent the Court a letter dated December 9, 2013, claiming that he had yet to receive materials from the case file and asking us to hold off on deciding his Motion until he was in possession of those materials. (Pet’r’s Dec. 9, 2013 Ltr. (on file with Court).) Since that time, we have heard nothing from Petitioner and no memorandum has been filed.
II. LEGAL STANDARD
Pursuant to 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct a sentence “upon the ground[s] that the 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). Relief under this provision is generally available “to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure.” United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989).
While the court may in its discretion hold an evidentiary hearing on a Section 2255 petition, Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989), such a hearing need not be held if the “motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992).
A. Parties’ Contentions
Petitioner claims ineffective assistance of trial counsel Nina C. Spizer, Esquire. Petitioner argues that prior to sentencing, Spizer failed to afford him the opportunity to view the PSR and failed to raise mitigating factual circumstances. (Pet’r’s Mot. 6-7, 12.) Petitioner also contends that he received ineffective assistance from appellate counsel Brett G. Swieitzer, Esquire. Petitioner alleges that Swieitzer failed to consult with him regarding meritorious appellate issues. (Id. at 9, 12.) Finally, Petitioner argues that he was denied the opportunity to review, read, and inspect the PSR, in violation of Federal Rule of Criminal Procedure 32. (Id. at 8.)
The Government responds that Petitioner’s claims are barred by the appellate waiver contained within his plea agreement. The Government further maintains that even if the appellate waiver does not apply, all of Petitioner’s ...