United States District Court, W.D. Pennsylvania
OPINION AND ORDER
Donetta W. Ambrose Senior Judge
January 23, 2013, Defendant pleaded guilty to one Count of
producing material depicting the sexual exploitation of a
minor, in violation of 18 U.S.C. § 2251; the remainder
of the seven-count superseding indictment was dismissed
pursuant to the plea agreement, although Defendant
acknowledged responsibility for the conduct charged therein.
Pursuant to a stipulation in the plea agreement, Defendant
was sentenced to a term of 180 months of imprisonment. Before
the Court is Defendant's counseled Motion pursuant to 28
U.S.C. § 2255. In his Motion, Defendant contends that
his counsel was ineffective when he failed to communicate
Defendant's acceptance of an earlier plea offer that
would have resulted in a five-year term of incarceration, and
that Defendant accepted a later, less favorable plea offer as
a result. The Government has filed a Motion to Dismiss
Defendant's petition based on a collateral attack waiver
in Defendant's plea agreement. On July 21, 2016, the
parties appeared at an evidentiary hearing on Defendant's
Motion, with a Hungarian interpreter present in a standby
capacity. Defendant's retained counsel participated in
the hearing, and filed pre- and post- hearing briefs, on his
behalf. For the following reasons, the Government's
Motion will be granted, and Defendant's denied.
is available under Section 2255 only under exceptional
circumstances, when the claimed errors of law are "a
fundamental defect which inherently results in a complete
miscarriage of justice, " or "an omission
inconsistent with the rudimentary demands of fair
procedure." Hill v. United States, 368 U.S.
424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962).
case, the Government has proffered a letter dated February
29, 2012, advising then-defense attorney Alexander Lindsay,
that it contemplated filing additional charges following a
forensic examination of Defendant's computer. That
examination led to the discovery of surreptitious video
recordings of young boys using Defendant's bathroom, and
the Government contemplated adding charges for producing
illegal materials in violation of 18 U.S.C. § 2251. The
Government, at that time, indicated that it was willing to
discuss a possible plea agreement prior to making a final
determination regarding additional charges.
by letter dated April 19, 2012, the Government proposed a
plea agreement, by way of a letter marked "DRAFT."
The proposal provided that Defendant would plead guilty to
Count I of the indictment, charging a violation of 18 U.S.C.
§ 2252(a)(2), and acknowledge responsibility for the
remaining Counts. It also included a waiver of collateral
attack rights. The proposed plea outlined and contemplated an
offense level of 28, which would have generated an advisory
guideline range of 78-97 months. Count I of the indictment
carried a mandatory minimum sentence of five years. The
agreement also noted that the penalty may be a term of
imprisonment of not more than ten years.
July 21, 2016 evidentiary hearing on Defendant's Motion,
Ms. Baker testified that she called Mr. Lindsay in mid-May,
2012, at Defendant's request, that she spoke with Mr.
Lindsay, and that she told him that Defendant wanted to
accept the Government's offer. Ms. Baker was not present
at any of Mr. Lindsay's conversations with Defendant, and
was not aware of conversations between the two after Ms.
Baker's telephone call to Mr. Lindsay. Ms. Baker does not
recall Mr. Lindsay stating that he would accept the offer,
but he indicated that he would discuss it. Evidentiary
Hearing Transcript, pp. 7-10, 12, 13.
testified that Mr. Lindsay discussed the plea offer with him,
and that he initially intended not to take it, and advised
counsel accordingly. Then, he consulted with his family and
decided to take the offer. He recalled discussing with Mr.
Lindsay "more than once" whether he would accept
the offer. He was unable to reach Mr. Lindsay at first, so he
contacted Ms. Baker. Later that day, Defendant reached Mr.
Lindsay by telephone. When he spoke to Mr. Lindsay, Defendant
said, "I asked him to please take the plea offer for
me." Mr. Lindsay advised Defendant "it was all
right. He would take it." Id. at 17-19.
offered the following testimony regarding his response to the
GOVERNMENT: Isn't it true that when Mr. Lindsay first
told you about the government's April of 2012 plea offer,
you told him you were innocent of the charges?
DEFENDANT: I can't recall.
Id. at 28.
DEFENSE COUNSEL: Did it take you a while to admit to yourself
you were not innocent?
COUNSEL: What did you tell Mr. Lindsay about the first plea
DEFENDANT: That originally I wasn't thinking of accepting
it but I had changed my mind.
COUNSEL: Would you have accepted that plea offer if you had
been able to?
Id. at 28-29.
Lindsay, in turn, testified that "what [Defendant]
continued to maintain is his absolute innocence in the case,
that he did not commit the crimes.. .we couldn't enter a
plea of guilty because he didn't admit his guilt."
Id. at 32. He stated as follows:
MR. LINDSAY: The problem with Mr. Tarnai was he insisted on
his innocence of the charges up until the very end and we
discussed this with him at substantial length, he could not
enter a plea of guilty - we didn't even get to the
specifics of the plea agreements because he steadfastly
indicated that he was innocent of the charges.
GOVERNMENT: And you couldn't have him plead guilty if he
was saying he was innocent of the charges why? **
MR. LINDSAY: We talked to Mr. Tarnai about the fact that
there would be a colloquy with the judge taking the plea.
It's a detailed, substantial colloquy in federal court
and that he would be asked in no uncertain terms whether he
admitted that he had done the acts with which he was accrued,
and if he could not say that he did it, then the Court would
not accept his plea regardless of whatever the terms were.
So, as far as what we discussed with Mr. Tarnai, can you
admit your guilt in this situation, and he would not and
could not. So our position was we couldn't ethically or
legally put him in front of a federal judge when he was
telling us he was innocent of the charges.
Id. at 38-39.
Lindsay further explained:
[E]very time there was a plea letter we received, what we
did, Mr. Smith and myself, would take the plea letter, go
over the terms of the plea letter with Mr. Tarnai and when we
would get to the point where we discussed whether or not he
could admit that he did these things, he said he could not.
Id. at 50.
Smith, a paralegal who worked with Mr. Lindsay on
Defendant's case, testified as follows:
I mean, he maintained his innocence throughout and we
explained to him that he would have to appear in front of a
judge of this Court and that there would be a colloquy and he
would have to acknowledge his guilt and that he would have to
convince a judge of his guilt and the facts that he would
have to admit to would be whatever the government proffered
as the evidence against him...As the evidence continued to