United States District Court, Western District of Pennsylvania
ALAN N. BLOCH UNITED STATES DISTRICT JUDGE
Petitioner has filed numerous motions in regard to his conviction and sentence in the above-captioned matter. Specifically, on November 21, 2013, he filed a pro se “Motion to Appeal Conviction and Sentence under 18 U.S.C. § 3742” (Doc. No. 180). On December 12, 2013, Petitioner filed a response to the Court’s December 2, 2013 show cause order (Doc. No. 183). On that same date, he filed a pro se “Motion to Compel Copies of Ordered Reports” (Doc. No. 182) and a pro se “Reconsideration of Motion for Discovery” (Doc. No. 184).
About a month and a half later, on February 3, 2014, he filed a pro se “Motion for Rule 60 – Relief from Judgment or Order” (Doc. No. 185), and about a month and a half after that, on March 27, 2014, he filed a pro se “Motion for the District Court to Properly Comply with the Provisions of Rule 32 and 18 U.S.C. § 3664” (Doc. No. 186) and a pro se “Motion to Properly Address No Established Victim and No Determination of Any Loss in Violation of Rule 32 and 18 U.S.C. § 3664 that Warrants Correction of Sentence” (Doc. No. 187). Less than a week later, on April 2, 2014, he filed a pro se “Motion to Properly Address an Unaccepted Factual Basis to Support a Conviction” (Doc. No. 188). A week later, on April 9, 2014, he filed a pro se “Motion under 18 U.S.C. § 3582(c)(1)(A) Compassionate Release/ Reduction in Sentence” (Doc. No. 189).
Just over a month later, on May 13, 2014, Petitioner filed a pro se “Motion for a Rule 29 Judgment of Acquittal Based on Actual Innocence” (Doc. No. 191). Approximately a month and a half after that, on July 2, 2014, he filed a pro se “Motion to Properly Calculate the Term of Imprisonment and Apply All Statute Credits” (Doc. No. 192). A month and a half after filing that document, on August 18, 2014, he filed a pro se “Motion for Summary Action to Vacate Judgment of Conviction Nunc Pro Tunc” (Doc. No. 193). Three days later, on August 21, 2014, he filed a pro se “Motion to Appeal for Compassionate Release/Reduction in Sentence  18 U.S.C. § 3582(c)(1)(A) and BOP Policy Statement 1B1.13(1)(A)(iv)” (Doc. No. 194). It took a week and a half before he filed a pro se “Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” (Doc. No. 195) on September 2, 2014. Finally, yesterday, September 9, 2014, Petitioner filed a second pro se “Motion for Rule 60 – Relief from Judgment or Order” (Doc. No. 196). For the reasons set forth herein, the Court finds no merit as to any of these filings, and denies and/or dismisses each with prejudice.
On October 17, 2011, Petitioner pled guilty to four counts of mail fraud, in violation of 18 U.S.C. § 1341 (Counts One through Three and Five), one count of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) (Count Four), and one count of mail fraud conspiracy, in violation of 18 U.S.C. § 1349 (Count Six). In connection with his plea, he and the Government entered into a plea agreement which contained a waiver of certain appellate rights as well as a provision that Petitioner “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.” The agreement further stated that it
sets forth the full and complete terms and conditions of the agreement between [Petitioner] and the [Government], and there are no other agreements, promises, terms or conditions, express or implied.
Petitioner signed the agreement and acknowledged at the plea hearing that he had agreed to the terms set forth in the agreement, which both the Government and the Court reviewed for him at that hearing. The Court accepted Petitioner’s plea.
On April 23, 2012, Petitioner was sentenced by this Court to 46 months’ imprisonment at each of Counts One through Six, to be served concurrently, to be followed by a term of supervised release of three years at each count, to be served concurrently. The Court further ordered that Petitioner pay restitution in the amount of $80, 145.95 and identified his victims. Judgment was entered on the next day. Although Petitioner filed a notice of appeal on May 7, 2012, the Third Circuit Court of Appeals summarily dismissed the appeal based on Petitioner’s waiver of his appellate rights.
On November 21, 2013, Petitioner filed the first of his numerous motions with this Court, his “Motion to Appeal Conviction and Sentence under 18 U.S.C. § 3742” (Doc. No. 180). Because the motion appeared to raise issues cognizable under 28 U.S.C. § 2255, the Court, on December 2, 2013, ordered Petitioner, no later than January 2, 2014, to file with this Court his position as to whether he elected for the Court to construe his motion as one filed pursuant to Section 2255, or whether he wanted the Court to rule on his motion as filed. The Court advised Petitioner that failure to respond would result in the Court ruling on the Motion as filed. Further, because the Court was aware of the waiver of Petitioner’s right to file a Section 2255 motion, and his right to file any other collateral proceeding attacking his conviction or sentence, contained in the plea agreement, it ordered Petitioner to show cause why his motion should not be dismissed on the basis of this waiver, regardless as to whether he elected for the Court to treat the motion as a Section 2255 motion or whether he elected for the Court to rule on it as originally filed. Petitioner filed a response indicating that his motion was not to be treated as one under Section 2255 and setting forth his position that the collateral waiver does not apply in this case.
Shortly after filing this motion, Petitioner sought mandamus from the Third Circuit regarding the issues contained in his motion, which was denied on May 5, 2014. While that motion was pending, Petitioner began filing his numerous other motions with this Court. Because these motions raise substantially overlapping issues, the Court has decided to adjudicate and discuss them together.
Pro se pleadings are held to less stringent standards than formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Holley v. Department of Veterans Affairs, 165 F.3d 244, 247 (3d Cir. 1999). However, even a pro se plaintiff must be able to prove a “set of facts in support of his claim which would entitle him to relief.” Haines, 404 U.S.at 520-21 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Even for pro se filings, Petitioner’s numerous motions are difficult to follow. Just by way of example, he routinely runs several unrelated concepts together, uses legal terms inappropriately, uses ellipses to eliminate essential text that changes the meaning of the quoted material significantly, and makes vague references to uncertain source material. The Court has, nonetheless, done its best to discern the nature of the arguments raised by Petitioner. It must be remembered, though, that Petitioner’s plea agreement contains a waiver of his right to attack his conviction and sentence collaterally, and that the Court must analyze each of his various filings with that fact in mind.
A. Motion to Appeal Conviction (Doc. No. 180)
As noted, Petitioner expressly declined for this motion to be construed as a motion under 28 U.S.C. § 2255. Instead, he chose to attempt to establish jurisdiction under 18 U.S.C. § 3742. Unfortunately for Petitioner, this statute merely establishes the procedure for an appellate court to review a sentence imposed by a United States district court. It does not give district courts any authority or jurisdiction to rule on decisions made by an appellate court, including findings that the right to appeal has been waived. Indeed, nothing in the language of Section 3742 suggests in any way that it provides a basis for a district court to act as Petitioner seeks here. As such, this Court has no jurisdiction to consider such a motion and must dismiss it with prejudice.
B. Motions under Rule 60, to Properly Address No Established Victim and No Determination of Any Loss, to Properly Address an Unaccepted Factual Basis to Support a Conviction, and for Summary Action to Vacate (Doc. Nos. 185, 187, 188, 193, and 196)
The issues raised in each of these motions substantially overlap the issues raised in each other and in the various other motions filed by Petitioner. They also seek essentially the same relief -- the vacation of Petitioner’s conviction and/or sentence. The first and fifth of these motions are raised pursuant to Federal Rule of Civil Procedure 60(b). The second and third do not really contain any attempt to establish a basis for this Court’s jurisdiction. The fourth is labeled as a motion to vacate judgment of conviction but purports to be filed under Local Appellate Rule 27.4(a). As the Court will discuss, the Court is treating all five as having been raised under Section 2255 to Petitioner’s benefit.
As to the first and fifth of these motions, Document Nos. 185 and 196,  Civil Rule 60(b) is an inappropriate vehicle to vacate a criminal sentence. See United States v. Mortimer, 256 Fed.Appx. 468 (3d Cir. 2007); United States v. Pope, 124 Fed.Appx. 680, 682 (2d Cir. 2005); United States v. Wallace, 82 Fed.Appx. 701, 701 (1st Cir. 2003). The Federal Rules of Civil Procedure govern “procedure in all civil actions and proceedings.” Fed.R.Civ.P. 1. They do not apply in criminal cases. Petitioner had no civil actions pending before this Court at the time he filed the first of these motions and, in any event, neither of these motions pertain to any adjudication of the civil actions opened in connection with his motions to vacate. Accordingly, Civil Rule 60 does not apply and provides no basis for jurisdiction for this Court to vacate Petitioner’s criminal conviction or sentence in this case. As to Document No. 193, the Third Circuit’s Local Appellate Rules, including Rule 27.4(a) which pertains to summary action, apply to cases before the Third Circuit, not to cases before the District Court.
Therefore, since Document Nos. 185, 193, and 196 set forth improper bases for jurisdiction, and since Document Nos. 187 and 188 set forth no bases for jurisdiction, the Court will construe all of them under Section 2255, since they appear to raise claims that could conceivably be raised pursuant to that statute. See United States v. Tyler, 207 Fed.Appx. 173, 177 (3d Cir. 2006); Enigwe, 142 Fed.Appx. at 643. Section 2255 permits a prisoner sentenced by a federal court to move the court that imposed the sentence to “vacate, set aside, or correct the sentence” where: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a). However, a criminal defendant may waive his right to file a motion under Section 2255 or to otherwise seek collateral relief. Such a waiver is valid if entered into “knowingly and voluntarily” unless it would work a “miscarriage of justice.” United States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001); United States v. Mabry, 536 F.3d 231, 237-38 (3d Cir. 2008). A district court has an affirmative duty to conduct an evaluation of the knowing and voluntary nature of the waiver and to assure itself that its enforcement works no miscarriage of justice. See Mabry, 536 F.3d at 237-38.
As the Court noted above, Petitioner entered into a plea agreement in which he waived his right to attack his conviction or sentence collaterally. The Court questioned ...