United States District Court, E.D. Pennsylvania
For USA, Plaintiff: JOSH A. DAVISON, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, PHILADELPHIA, PA.
Hon. Jan E. DuBois, J.
On September 15, 2010, petitioner Omar Bey plead guilty, pursuant to a plea agreement, to three counts of engaging in illicit sexual conduct in foreign places, in violation of 18 U.S.C. § 2423(c). Petitioner was thereafter sentenced, inter alia, to 97 months imprisonment. Presently before the Court are petitioner's pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (" § 2255 Motion"); pro se Petitioner's Memorandum of Law in Support of Petition Under § 2255; pro se Petitioner's Motion to Amend His Previously Filed 28 U.S.C. § 2255 Motion Pursuant to Federal Rules [of] Civil Procedure Rule 15(a) (" First Motion to Amend"); and Petitioner Omar Rashaad Bey's Answer to Oppose Respondent's Response to Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, construed as pro se petitioner's Second Motion to Amend. For the reasons that follow, the Motion to Vacate, Set Aside, or Correct a Sentence, as amended, is denied and dismissed. An evidentiary hearing to determine facts is not necessary because the motion and the record in the case conclusively show that Bey is not entitled to relief. Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989).
Bey is a citizen of the United States, and was born in 1977 in Philadelphia, Pennsylvania. Bey converted to Islam as a young adult in 1995 and reported travelling to Morocco, Senegal, and Egypt for religious and language studies. In approximately 2005, Bey entered into a union purporting to be an Islamic marriage with T.Y.D., a minor female who was fourteen to fifteen years old at the time. From approximately 2005 through 2007, Bey and T.Y.D. had a sexual relationship, including sexual intercourse, while both lived in Egypt. On February 21, 2006, at the age of fifteen, T.Y.D. gave birth to a son while living in Egypt. On April 15, 2008, at the age of seventeen, T.Y.D. gave birth to a daughter while living in Egypt. Bey is the biological father of both children.
From approximately 2004 through 2005, Bey also engaged in a sexual relationship, including sexual intercourse, with T.Y.D.'s sister, T.S.D., while she lived in Egypt. T.S.D. was under sixteen years of age at that time.
In 2006, Bey entered into another union purporting to be an Islamic marriage with A.G., who was approximately fifteen years old at the time. During the Islamic ceremony, A.G. was located in Philadelphia, Pennsylvania, and Bey participated via an internet video hookup. On August 24, 2006, Bey accompanied A.G. from Philadelphia, Pennsylvania to Egypt, and from approximately August 2006 through May 2007, Bey engaged in a sexual relationship, including sexual intercourse, with A.G. in Egypt. On March 20, 2007, at the age of fifteen, A.G. gave birth to a son while living in Egypt. Bey is the child's biological father.
On March 18, 2010, a grand jury in the Eastern District of Pennsylvania returned a seven-count indictment against Bey, in which he was charged with four counts of travelling in foreign commerce for the purpose of engaging in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b), and three counts of engaging in illicit sexual conduct in foreign places, in violation of 18 U.S.C. § 2423(c).
A. Bey's Plea Agreement and Waiver of His Right to Collaterally Attack His Conviction and Sentence
On September 15, 2010, Bey plead guilty, pursuant to a plea agreement, to three counts of engaging in illicit sexual conduct in foreign places, in violation of 18 U.S.C. § 2423(c) (Counts 4, 5, and 7). As part of Bey's plea agreement, the government agreed to move to dismiss all counts under 18 U.S.C. § 2423(b) -- Counts 1, 2, 3, and 6 -- at sentencing. The total maximum sentence for the counts to which defendant plead was 90 years imprisonment, lifetime supervised release, a $750, 000 fine, and a $300 special assessment. (Guilty Plea Agreement ¶ 4.) Pursuant to the U.S. Sentencing Guidelines (" U.S.S.G.") § 6B1.4, effective November 1, 2008, the parties entered into a number of stipulations: (1) pursuant to U.S.S.G. § 2G1.3, the base offense level for each of the three counts was 24; (2) Bey was eligible for a two level downward adjustment under U.S.S.G. § 3E1.1(a) as he had demonstrated acceptance of responsibility for his offense; and (3) Bey was eligible for a one level downward adjustment under U.S.S.G. § 3E1.1(b) for assisting authorities in the " investigation or prosecution of his own misconduct by timely notifying the government of his intent to plead guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently." (Guilty Plea Agreement ¶ ¶ 6(a)-(c).) The parties further agreed that:
... (1) the parties are free to argue the applicability of any other provision of the Sentencing Guidelines, including offense conduct, offense characteristics, criminal history, adjustments and departures; (2) these stipulations are not binding upon either the Probation Department or the Court; and (3) the Court may make factual and legal determinations that differ from these stipulations and that may result in an increase or decrease in the Sentencing Guidelines range and the sentence that may be imposed.
(Guilty Plea Agreement ¶ 6.) Finally, the plea agreement provided that Bey could not withdraw his plea because the Court declined to follow " any recommendation, motion or stipulation by the parties to [the] agreement" and affirmed that no one had promised or guaranteed Bey that the Court would impose a particular sentence. (Guilty Plea Agreement ¶ 5.)
As part of the plea agreement, Bey agreed to waive his right to appeal and collaterally attack his conviction, sentence, or any other matter relating to his prosecution. Specifically, Bey's agreement, in relevant part, stated:
In exchange for the undertakings made by the government in entering this plea agreement, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant's conviction, sentence, or any other matter relating to this prosecution, whether such a right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law. This waiver is not intended to bar the assertion of constitutional claims that the relevant case law holds cannot be waived.
(Guilty Plea Agreement ¶ 7.)
Bey agreed that he was " satisfied with the legal representation provided" by his counsel and that he had fully discussed the plea agreement with counsel. (Guilty Plea Agreement ¶ 9.) The parties further affirmed that the agreement " contains no additional promises, agreements or understandings other than those set forth in this written guilty plea agreement, and that no additional promises, agreements or understandings will be entered into unless in writing and signed by the parties." (Guilty Plea Agreement ¶ 10.)
B. Change of Plea Hearing
This Court held a Change of Plea Hearing on September 15, 2010. At the hearing, the Court engaged in an extensive colloquy with Bey pursuant to Federal Rule of Criminal Procedure 11(b), during which the Court discussed, inter alia, Bey's waiver of his right to collaterally attack his sentence and the potential length of his sentence.
As to Bey's waiver of the right to collaterally attack his sentence, the government explained at the hearing that the plea agreement provided that Bey voluntarily and expressly waived his right to collaterally attack his conviction, sentence, or any other matter related to his prosecution. (Change of Plea Hr'g Tr., Sept. 15, 2010, 19-20.) The government further explained that the waiver was " not intended to bar the assertion of constitutional claims that the relevant case law holds cannot be waived." Id. at 20. The Court reiterated that Bey would be giving up his right to file a habeas corpus motion and that the most common argument raised in such a motion was that defense counsel was ineffective. Id. at 20. The Court then engaged in the following exchange with Bey:
THE COURT: Did you understand what Mr. Davison [AUSA] said about...the giving up of your right to file a habeas corpus motion?
THE DEFENDANT: Yes, your Honor.
THE COURT: Have you discussed that provision of the plea agreement and indeed all the provisions of the plea agreement with Mr. Perri [defense counsel]?
THE DEFENDANT: Yes, yes, your Honor.
THE COURT: Do you have any questions about any of those things?
THE DEFENDANT: No, your Honor.
THE COURT: Do you understand them?
THE DEFENDANT: Yes.
THE COURT: Do you have any questions about the giving up of your right to file what I've referred to as a writ of -- a motion for writ of habeas corpus?
THE DEFENDANT: No, your Honor.
THE COURT: Alright, have you understood all of my questions so far?
THE DEFENDANT: Yes.
THE COURT: Have you answered them truthfully?
THE DEFENDANT: Yes, your Honor.
THE COURT: Do you understand that by pleading guilty and by waiving the rights I have discussed with you you cannot later come to any court and claim that you were not guilty or that your rights have been violated?
THE DEFENDANT: Yes, your ...