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United States v. McGavitt

United States District Court, W.D. Pennsylvania

June 1, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
KENNETH McGAVITT, Defendant. Criminal No. 10-00114

MEMORANDUM OPINION

Arthur J. Schwab United States District Judge

I. Introduction

Before the Court is Petitioner Kenneth McGavitt’s Amended pro se Motion Under 28 U.S.C. ' 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (Doc. Nos. 138 and 160 at Criminal No. 10-00114) and Brief in Support thereof (Doc. No. 159). After careful consideration of Petitioner’s Motion and Brief in Support, the Government's Response thereto, Petitioner’s Reply and Affidavit, and the entire record in the case, including the trial transcript of this matter and the sentencing hearing, the Court will deny Petitioner’s Motion for relief pursuant to 28 U.S.C. ' 2255.

II. Procedural Background

On June 9, 2010, Petitioner was indicted and charged with two counts of mail fraud, in the Western District of Pennsylvania, in violation of 18 U.S.C. ' 1341. The Government charged that Petitioner committed mail fraud in real estate closing documents that Petitioner’s attorneys (Robert E. Lampl) had mailed, through Fed-Ex, to BLX in connection with a $3, 000, 000 loan, and a check drawn on the proceeds of the BLX loan which Petitioner’s attorney had Fed-Ex’ed to one of his creditors later that same day.

Petitioner pled not guilty, retained Attorney Robert E. Stewart, who filed several motions for extension (only the fifth motion was not granted), and filed numerous pretrial documents, including at least one Motion in Limine. The trial of this matter occurred on June 27, 2011, and concluded on June 29, 2011. The jury deliberated for approximately for 15 minutes and returned a verdict of Guilty on both counts in connection with the alleged fraud on BLX.

After the trial, Attorney Stewart withdrew his representation and Petitioner hired Attorneys Philip DiLucente and James Ecker, to represent him at the sentencing of this matter. On January 17, 2012, this Court sentenced Petitioner to 57 months of incarceration (which represented the low end of the Advisory Guideline Range) at Counts One and Two to be served concurrently, $3, 295, 717.11 in restitution, and 3 years of supervised release at both counts to be served concurrently. Petitioner then hired Attorney Martin Dietz, who represented him unsuccessfully at the appeal of this matter. On July 24, 2013, the United States Court of Appeals for the Third Circuit issued a non-precedential opinion affirming Petitioner’s conviction and finding that there was sufficient evidence to convict Petitioner and that this Court did not err in denying Attorney Stewart’s fifth motion to continue the trial (doc. no. 122).

On August 14, 2014, Petitioner filed his original Motion to Vacate Sentence (doc. no. 124), the Government filed its Response (doc. no. 125), and on September 23, 2014, Attorney Stanton Levenson filed his appearance on behalf of Petitioner (doc. no. 127), and the Court had originally set a hearing thereon. After counsel sought to continue the hearing and to amend the uncounseled Motion to Vacate (doc. nos. 130 and 133), the Court permitted counsel to file an Amended Petition no later than April 17, 2015 and continued the hearing pending the filing of the Amended Petition. On March 15, 2015, the counseled Amended Motion to Vacate was filed (doc. no. 138), and then on March 24, 2015, Attorney Levenson filed a Motion to Withdraw as counsel with affidavit in support thereof (doc. no. 142), which the Court granted by Order of March 30, 2015 (doc. no. 148).[1] Petitioner in his pro se capacity also filed several motions seeking the Court appoint new counsel, or a friend/surrogate to represent him (doc. nos. 143-145), which the Court denied by Memorandum Order of March 30, 2015. The text of that Order states as follows:

This is a proceeding brought pursuant to 28 U.S.C. § 2255. The procedural history relevant to the Section 2255 proceedings is as follows. On August 14, 2014, Petitioner filed an uncounseled Motion to Vacate Sentence under 28 U.S.C. § 2255, alleging claims of ineffectiveness of trial counsel (doc. no. 124), after an unsuccessful direct appeal of his conviction/sentence for fraud related offenses under 18 U.S.C. § 1341. Based upon response by Government (doc. no. 125), the Court set an evidentiary hearing thereon for November 10, 2014. On September 23, 2015, Attorney Stanton Levenson entered his appearance (doc. no. 127), and sought to continue the hearing, which the Court granted (thereby resetting the hearing for February 23, 2015). Defendant, through counsel Levenson, filed a Motion to Amend/Correct Motion to Vacate Sentence (doc. no. 133), and the Government responded thereto on February 17, 2015 (doc. no. 134), stating that the February 23, 2015 hearing should be cancelled until counsel for Petitioner was able to file an Amended Counseled Motion to Vacate. The Court then Ordered Petitioner to file an Amended Motion/Petition no later than April 17, 2015 detailing his claims and the basis for those claims; Ordered the Government to respond by May 1, 2015; cancelled the hearing for February 23, 2015 (doc. no. 137); and then, rescheduled the hearing for May 11, 2015. In connection therewith, counsel for Petitioner filed a Writ of Habeas Corpus Ad Testificandum for a proposed witness at the hearing (doc. no. 141) and filed his Amended Motion to Vacate (doc. no. 138).
On March 24, 2015, Petitioner, now proceeding pro se filed a flurry of motions (doc. nos. 142, 143, 144, and 145) seeking that the Court grant his Motion to Withdraw counselor Levenson on the basis of a purported conflict of interest. Petitioner filed an affidavit therewith (doc. no. 142-1). The Court observes that Petitioner has retained and subsequently terminated several able counsel of record, including Phillip DiLucente, James Ecker, and Robert Stewart (trial counsel), Martin Dietz (appeal counsel), and presently he seeks to terminate another experienced and well-respected counselor with whom this Court has had numerous criminal proceedings, Stanton Levenson. Counselor Levenson filed a Motion for Leave to Withdraw his Appearance, stating “[i]t is obvious from Defendant’s motion, that present counsel can and should no longer represent him.” Doc. No. 146.
In light of the nature of the allegations raised by Petitioner in his pro se Motion to Withdraw counselor Levinson, and in light of Attorney Levenson’s own Motion seeking to withdraw, the Court hereby GRANTS said Motions (doc. nos. 142 and 146). As for Petitioner’s “Motion to Supplement/Expand Section 2255 Pursuant to Rule 15(d), ” (doc. no. 143), the substance of the allegations he seeks to add relate to allegations of purported misconduct/conflict of interest as to Attorney Levenson, and he seeks to add this “new evidence” to the presentation at the evidentiary hearing. The Court will decline to allow another amended Motion (doc. nos. 143), as the uncounseled Motion to Supplement is sought merely to add another layer of allegations of misconduct against yet another attorney, whose representation was completely collateral to the trial and sentencing proceedings of which he complains, and therefore, not a cognizable basis for relief. The Court will cancel the evidentiary hearing scheduled for May 11, 2015, and will only reschedule, if necessary, once the Government responds to the current motion.
Petitioner also Motions this Court to have a friend (“surrogate”) help represent him at the evidentiary hearing (doc. no. 144), and for the Court to appoint yet another counsel to assist his “surrogate” (doc. no. 145) at the hearing. Petitioner has no statutory right to counsel under section 2255 unless and until the Court determines that an evidentiary hearing is warranted under Rule 8(c). Accordingly, the Petitioner’s motion to appoint “surrogate” and counsel is hereby DENIED, at this time, unless and until this Court determines that an evidentiary hearing is necessary.

After several further filings by Petitioner, on April 7, 2015, the Court entered the following text Order:

ORDER denying 152 Pro-Se Motion for Appointment of "Substitute" Counsel as to KENNETH MCGAVITT (1). As stated by prior Order (doc. no. 148), Petitioner has no statutory right to counsel unless and until a hearing is determined to be necessary, AND he qualifies to have counsel appointed under 18 U.S.C. Section 3006A, and under Rule 8 of 28 U.S.C. Section 2255. Petitioner previously had retained counsel who was preparing his case for a potential hearing, and he terminated him, through his numerous filings of record. The Court will again decline his request for substitute counsel at this ...

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