United States District Court, M.D. Pennsylvania
WILLIAM W. CALDWELL, District Judge.
Defendant, Roger Sedlak, has filed a pro se motion under 28 U.S.C. § 2255 to vacate his conviction and sentence, raising numerous grounds for relief.
On March 4, 2009, Defendant was named in a three-count indictment charging him with: (1) a single conspiracy under 18 U.S.C. § 371 to violate 18 U.S.C. § 2421, interstate transportation with the intent to engage in prostitution, and to violate 18 U.S.C. § 2422(a), persuading, inducing, coercing and enticing interstate travel to engage in prostitution; (2) a substantive offense of violating section 2421; and (3) a substantive offense of violating section 2422(a). Also named in the indictment were Defendant's wife, Marianna Sedlak, and Kelli Kaylor.
In November 2009, an eighteen-count superseding indictment was filed. This indictment repleaded the original three charges and added seven counts against Defendant of violating 18 U.S.C. § 1028A(a)(1), aggravated identity theft; seven counts of violating 18 U.S.C. § 1343, wire fraud; and one count of violating 18 U.S.C. § 1956(a)(1)(B)(i), money laundering.
In a written plea agreement, Defendant agreed to plead guilty to four counts of the superseding indictment, Counts 1, 3, 5 and 18. Count I was the conspiracy offense described above. Count 3 charged Defendant with the substantive offense of violating section 2422(a) by "knowingly persuad[ing], induc[ing], entic[ing] and coerc[ing]... an individual to travel in interstate commerce to engage in prostitution...." (Doc. 111, Superseding Indictment, p. 6). Count 5 charged Defendant with violating 18 U.S.C. § 1028A(a)(1), aggravated identity theft, by "possess[ing] and us[ing], without lawful authority, a means of identification of another person during and in relation to the commission of wire fraud, knowing that the means of identification belonged to another person...." ( Id., p. 7). Count 18 charged Defendant with a violation of 18 U.S.C. § 1956(a)(1)(B)(i), money laundering, by engaging in "financial transactions affecting interstate... commerce which involved the proceeds of... transport[ing]... individuals in interstate commerce for the purpose of prostitution, knowing that the transactions were" intended to "disguise, " in part, the "source, ownership and control of the proceeds...." ( Id., p. 10).
Defendant was sentenced to an aggregate term of 145 months' imprisonment and to ten years of supervised release. A fine of $5, 000 was also imposed. His conviction and sentence were affirmed on direct appeal. See United States v. Sedlak, 529 F.Appx. 253 (3d Cir. 2013)(nonprecedential).
II. Applicable Law
Under 28 U.S.C. § 2255, a federal prisoner may challenge his conviction or sentence as being in violation of the federal Constitution or federal law. See Massey v. United States, 581 F.3d 172, 174 (3d Cir. 2009)("A motion to vacate sentence pursuant to 28 U.S.C. § 2255 is the means to collaterally challenge a federal conviction or sentence"). See also 28 U.S.C. § 2255(a)(providing that a defendant can challenge the conviction, in part, "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States").
A motion for 2255 relief cannot rest upon vague and conclusory allegations. United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)(vague and conclusory allegations are insufficient for a section 2255 motion); Johnson v. United States, 294 F.Appx. 709, 710 (3d Cir. 2008)(nonprecedential). See also Rule 2(b)(2) of the rules governing section 2255 proceedings ("[t]he motion must... "state the facts supporting each ground" for relief). A district court may dispose of such allegations without further investigation. Thomas, 221 F.3d at 437. It might also consider an amendment that supplies the necessary specificity. Id. at 436.
In deciding a 2255 motion, the court need not consider clams that have already been decided on direct appeal. See United States v. Travillion, 759 F.3d 281, 288 (3d Cir. 2014)("issues resolved in a prior direct appeal will not be reviewed again by way of a § 2255 motion"); United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1993)(generally section 2255 "may not be employed to relitigate questions which were raised and considered on direct appeal")(quoting Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986)); United States v. Orejuela, 639 F.2d 1055, 1057 (3d Cir. 1981)("Once a legal argument has been litigated and decided adversely to a criminal defendant at his trial and on direct appeal, it is within the discretion of the district court to decline to reconsider those arguments if raised again in collateral proceedings under 28 U.S.C. § 2255.").
Defendant presents the following claims, principally through his 2255 motion, but also through a motion incorporated by reference in his 2255 motion, through his reply brief, and through motions to amend and to supplement the 2255 motion. We recognize that normally some of these claims would not be cognizable in 2255 proceedings as they should have been raised on direct appeal, and indeed some were. However, given the number of issues raised, and that some form the bases of ineffective-assistance-of-counsel claims, we think it best to simply address them all.
A. The Claim that Defendant's Sixth Amendment Right to Counsel Was Denied on Direct Appeal
Defendant claims that the Third Circuit denied him his right to counsel on his direct appeal. He maintains he suffered prejudice as a result, including the failure of the Third Circuit to take his pro se appellate brief seriously which resulted in the dismissal of his pro se arguments without opinion. (Doc. 381, ECF pp. 3-4). He also claims he was denied his right to counsel for the filing of a petition for a writ of certiorari with the United States Supreme Court. ( Id., ECF p. 3).
We provide some background on this claim. Counsel who represented Defendant before this court also represented Defendant on direct appeal. Counsel filed a brief on Defendant's behalf and a reply brief to the government's opposition brief. Sedlak, supra, 529 F.Appx. at 254. The Third Circuit docket reveals that Defendant filed a motion for new counsel, which the Third Circuit denied on May 17, 2012. United States v. Sedlak, No. 11-2892 (3d Cir.). Defendant then filed a motion to proceed pro se, which was granted on June 13, 2012, in the same order granting counsel's motion to withdraw. Thereafter, on July 12, 2012, the Third Circuit denied Defendant's motion to appoint standby counsel, and on November 19, 2012, denied Defendant's motion for counsel. On January 30, 2013, the court of appeals denied another motion for appointment of counsel.
We reject this claim. In regard to the direct appeal, the docket shows Defendant invoked his right to self-representation, so he could not have been denied his right to counsel. In regard to a certiorari petition, Defendant has no constitutional right to counsel on such a petition. See Ross v. Moffitt, 417 U.S. 600, 616-17, 94 S.Ct. 2437, 2447, 41 L.Ed.2d 341 (1974); In re Morton, 491 F.Appx. 291, 293 n.4 (3d Cir. 2012)(nonprecedential); Richards v. United States, 406 F.Appx. 447, 447 (11th Cir. 2010)(nonprecedential); United States v. Fernandez, 397 F.Appx. 433, 436 (10th Cir. 2010)(nonprecedential); Clark v. Johnson, 227 F.3d 273, 283 (5th Cir. 2000).
B. Defendant's Claim that the Government Violated His Sixth Amendment Right to Joint Representation With His Co-Defendant Spouse, Marianna Sedlak, and that the Government Intruded into the Attorney-Client Relationship and the Marital Relationship
Defendant claims that he and his co-defendant spouse had agreed on joint representation but that the prosecutor told the four lawyers who represented Defendant at different times that he would not allow it, thereby violating his right to a lawyer of his choice. (Doc. 381, ECF pp. 7-9). We reject this claim as it has already been decided on direct appeal. As the government notes, Defendant raised it on direct appeal in his pro se appellate brief filed on January 3, 2013, at pp. 60-64, and the claim was rejected by the Third Circuit as meritless. 529 F.Appx. at 256.
Defendant also claims that the government violated due process by intruding into the privileged communications between a husband and wife. (Doc. 381, ECF pp. 9-11). He asserts the government's conduct was so egregious that it warrants not only a vacatur of his conviction and sentence but also dismissal of the indictment.
We disagree. Defendant bases this claim on the monitoring of his telephone conversations while he was being detained pre-trial at the Adams County Prison. Defendant was advised these calls were being recorded. Defendant therefore cannot claim any improper intrusion into the marital relationship based on the government's use of these recorded conversations.
Nor do we find any merit in Defendant's assertion that the government's motivation for opposing his release pretrial was for the purpose of being able to eavesdrop on his conversations with his wife. At the several hearings held to decide on Defendant's pretrial release, the government argued he was a flight risk, and the court agreed. Defendant's argument that the government acted improperly by seeking his wife's services also fails. His wife was a defendant in the case as well. Seeking her "services" was merely seeking her cooperation, as is done in many criminal cases.
C. The Claim that Defendant Was Improperly Denied the Benefit of the Alleyne Case in the Calculation of his Guidelines Range and the Imposition of the Minimum Twenty-Four Month Sentence for the Aggravated Identity Theft Offense
Defendant maintains that the court improperly resolved a number of sentencing issues in violation of Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). In Alleyne, the Supreme Court held that any fact that increases the statutory mandatory minimum sentence for an offense is an element of the crime that must be submitted to the jury and cannot be determined by the court at sentencing. Id. at ___, 133 S.Ct. at 2155. See also United States v. Smith, 751 F.3d 107, 117 (3d Cir. 2014)(" Alleyne simply held that, as with facts necessary for the imposition of a statutory maximum sentence, facts that trigger a statutory mandatory minimum sentence must, under the Sixth Amendment, also be submitted to a jury.").
This claim has no merit. We begin by noting that Defendant is here on collateral review, and Alleyne does not apply to cases on collateral review. United States v. Reyes, 755 F.3d 210, 212 (3d Cir. 2014). We recognize that Defendant asserts he is entitled to invoke Alleyne because it was decided shortly before the Third Circuit ruled on his direct appeal and hence while his appeal was still pending. Nonetheless, that does not change the fact that he is before us on collateral review. We also note that Defendant sought reconsideration before the Third Circuit on the basis of Alleyne, but that the Third Circuit declined to grant reconsideration. See United States v. Sedlak, No. 11-2892 (3d Cir. Sept. 3, 2013).
Next, Defendant has no Alleyne claim in any event. He makes the following claims based on Alleyne . First, the section 1028A(a)(1) aggravated identity theft conviction in Count 5 violates Alleyne because that offense requires as an essential element a conviction for an underlying offense listed in 18 U.S.C. § 1028A(c). The superseding indictment charged Defendant with seven counts of wire fraud in violation of 18 U.S.C. § 1343, which can be an underlying offense, but those offenses were dismissed as part of the plea bargain. Hence, Defendant argues the aggravated identity offense lacked an essential element established either by a jury verdict or the guilty plea. In Defendant's view, the element was supplied by judicial fact finding in violation of Alleyne .
This claim lacks merit. All of the elements of this offense were established by Defendant's guilty plea. At the June 3, 2010, change-of-plea hearing, the prosecutor described the offenses to which Defendant was pleading guilty, including the offense of aggravated identity theft and its elements. (Doc. 253, change-of-plea transcript, ECF p. 3). He also summarized the facts the government was ready to prove if Defendant had gone to trial. Pertinent here is the description of Defendant's conduct that constituted the offense of aggravated identity theft. That offense facilitated Defendant's interstate prostitution business.
As summarized by the prosecutor, Defendant used prepaid debit cards to book the hotel rooms for the acts of prostitution. To activate the cards Defendant had to use the names of real persons along with their identifying information, but the cards did not need to have a person's name on them. Defendant was thus able to conceal his own identity when paying for the hotel rooms. ( Id., ECF pp. 13-14). The prosecutor mentioned the name of one such actual person and that his identifying information was used to activate a prepaid debit card that was used to pay for hotel rooms in Pennsylvania, New York and New Jersey. ( Id., ECF p. 15). The use of this person's identifying information was one of the wire fraud charges charged in Count 14 of the superseding indictment. Defendant's guilty plea established this element of the section 1028A(a)(1) offense, and there was no Alleyne violation. We add that the government did not have to charge Defendant with an underlying offense to charge him with a violation of section 1028A(a)(1). United States v. Jenkins-Watts, 574 F.3d 950, 970 (8th Cir. 2009).
Defendant claims that the following sentencing enhancements violate Alleyne because they were based on factual findings by the court: (1) two levels under U.S.S.G. § 3C1.1 for obstruction of justice; (2) five levels under U.S.S.G. § 3D1.4 for the number of victim prostitutes; (3) two levels under U.S.S.G. § 2S1.1(b)(3) because the offense involved sophisticated money laundering; and (4) four levels under U.S.S.G. § 3B1.1(a) because Defendant was the organizer or leader of a criminal activity that involved five or more participants and was otherwise extensive. Defendant also claims that our determination of the start date of the offenses violated Alleyne, as well as the imposition of a ten-year term of supervised release on the section 2422(a) interstate prostitution offense and the requirement that he comply with applicable state sex-offender registration requirements.
These claims lack merit. Alleyne held that any fact that increased the statutory mandatory minimum sentence has to be submitted to the jury. 133 S.Ct. at 2163-64. There are no statutory minimum sentences for Count 1, the conspiracy charge under 18 U.S.C. § 371; Count 3, the interstate prostitution charge under 18 U.S.C. § 2422(a); and Count 18, the money laundering charge under 18 U.S.C. § 1956(a)(1)(B)(i). Alleyne would therefore not apply to guidelines enhancements for these offenses because Defendant's sentencing range would have been established by the guidelines, not by the statutory minimum. Alleyne does not apply to fact finding by the sentencing court that leads to the imposition of sentencing enhancements within the statutory range. See United States v. Smith, 751 F.3d 107, 117 (3d Cir. 2014)(" Alleyne did not curtail a sentencing court's ability to find facts relevant in selecting a sentence within the prescribed statutory range.")(emphasis in original)(citing Alleyne, 133 S.Ct. at 2163).
As to the section 1028A(a)(1) aggravated identity theft charge in Count 5, there is a minimum sentence of two years. However, Alleyne does not apply because there was no judicial fact finding for the imposition of that sentence. As noted above, Defendant pled guilty to that offense, so his admission of guilt is the basis of that conviction, not judicial fact finding.
Nor does Alleyne assist Defendant in his challenge to the imposition of a ten-year term of supervised release on the section 2422(a) interstate prostitution offense. He asserts that under 18 U.S.C. §§ 3559(a)(3) and 3583(b)(2) the maximum term of supervised release for the offense is three years as a Class C felony. This is not an Alleyne claim, but Defendant is mistaken in any event. Under 18 U.S.C. § 3583(k), Defendant's maximum term of supervised release is life, so a ten-year term was proper. We also reject Defendant's challenge to the requirement that he comply with applicable state sex-offender registration requirements. This requirement did not result in an increased sentence, and Defendant himself admits he may be required to register as a sex offender. (Doc. 381, ECF p. 24).
D. The Claim that the Court and Government Breached the Plea Agreement
Defendant filed a "motion to resentence pursuant to the terms of the plea agreement." (Doc. 367). Defendant incorporated this motion into his 2255 motion. If the government enters into a plea agreement, it is held to the terms of that agreement. United States v. Davenport, 775 F.3d 605, 609 (3d Cir. 2015). Defendant claims in the motion to resentence the following breaches of the plea agreement.
The court breached the terms of the written plea agreement when as part of the sentence: (1) SORNA and state sex-offender registration requirements were imposed on Defendant; (2) a ten-year term of supervised release was imposed; and (3) the fine was payable by deducting every three months 50% of the amount deposited into Defendant's inmate trust account when Defendant only agreed in the plea agreement to deduction of up to 50% of his prison salary. (Doc. 207, plea agreement ¶ 9).
On its first two parts, this claim lacks merit for the simple reason that the court was not a party to the plea agreement. See Doc. 207, plea agreement. It therefore could not have breached it. The agreement itself recognized the court was not a party. ( Id. ¶ 19)(Defendant recognizes that "the Court is not a party to and is not bound by this Agreement nor any recommendation made by the parties"). Additionally, the first two claims were raised on direct appeal in the first section of Defendant's January 3, 2013, pro se brief and rejected by the Third Circuit. See note 3 above.
We reject the third part of the claim because the Defendant cannot rely on section 2255 to challenge the terms of a sentencing court's imposition of a fine. See United States v. Walker, 149 F.Appx. 55, 57 (3d Cir. 2005)(nonprecedential)("numerous courts have recognized that § 2255's language clearly and unambiguously limits its applicability to defendants seeking release from custody. It is not available to those, like the defendant, who challenge only fines or restitution orders.'")(quoted case omitted). See also Kaminski v. United States, 339 F.3d 84, 86-89 (2d Cir. 2003).
Defendant argues the government breached the terms of the agreement in the following ways. First, the government advocated for the imposition of: (1) SORNA and state sex-offender registration as part of the sentence; and (2) the ten-year term of supervised release on Count 3. Defendant argues there was a breach because language describing the minimum term of supervised release for Count 3 was stricken from paragraph 2 of the agreement along with paragraph 4. The following language from paragraph 2 was stricken from the agreement: "Count 3 carries a minimum term of supervised release of 5 years up to life." Paragraph 4 was also stricken. That paragraph dealt with SORNA requirements, and would have required Defendant to recognize that the court "must order" that he "comply with all sex offender registration requirements under the Sex Offender Registration and Notification Act...." Defendant also relies on defense counsel's remarks at the guilty-plea colloquy concerning the supervised-release term for Count 3. Counsel noted that the above-quoted language from paragraph 2 had been stricken. He also challenged the language in paragraph 1, what he called "similar language" to paragraph 2, which stated that Count 3 had "a maximum term of supervised release of at least 5 years and up to life." (Doc. 253, ECF p. 6). Focusing on the minimum term of supervised release, defense counsel stated his belief that a minimum term of supervised release of five years would apply only to a sex offense involving minors. ( Id. ).
Defendant argues that the striking of the language and defense counsel's questioning of the applicability of the maximum term stated in paragraph 1 means that the agreement barred sex-offender registration and the imposition of a ten-year term of supervised release.
We disagree. The claim is that the government should not have advocated for SORNA or state sex-offender registration or a ten-year term of supervised release, but Defendant actually asserts that the government breached the agreement by not arguing against the imposition of these terms when recommended by the probation office and adopted by the court in its sentencing order. (Doc. 367, ECF pp. 13-16). There is nothing in the agreement that bars the imposition of these requirements, and the government did not breach it by failing to argue against them.
Second, Defendant claims the government breached the agreement by advocating for a sentence based on guideline enhancements, which according to him were really additional charges. Defendant relies on paragraph 12 of the agreement in which the government agreed not to bring other criminal charges against Defendant arising out of the offenses described in the agreement. (Doc. 207, plea agreement ¶ 12).
We disagree. Defendant contends the government could not have argued for the following enhancements: (1) two levels under U.S.S.G. § 3C1.1 for obstruction of justice; (2) five levels under U.S.S.G. § 3D1.4 for the number of victim prostitutes; (3) two levels under U.S.S.G. § 2S1.1(b)(3) because the offense involved sophisticated money laundering; and (4) four levels under U.S.S.G. § 3B1.1(a) because Defendant was the organizer or leader of a criminal activity that involved five or more participants and was otherwise extensive. ...