United States District Court, W.D. Pennsylvania
Stewart Cercone United States District Judge.
before the court is a motion filed by Petitioner Maurice F.
Foley (“Foley”) for relief under 28 U.S.C.
§2255 (Doc. No. 288). For the reasons set forth below,
the motion will be granted.
case stems from a criminal prosecution in which Foley was
charged with numerous offenses, including conspiracy to
traffick in marijuana, possession of methamphetamine with the
intent to distribute, use of a firearm during and in relation
to a drug trafficking crime, unlawful possession of a firearm
by a convicted felon, identity theft, and numerous counts of
money laundering. The case was originally assigned to
then-United States District Court Judge Sean J. McLaughlin.
April of 2005, Foley pled guilty to charges of conspiracy to
traffick in marijuana (Count I of the Indictment) and use of
a firearm during and in relation to a drug trafficking
offense (Count III). Pursuant to a written plea agreement,
Foley agreed to waive his rights to directly appeal or
collaterally attack the judgment, subject to certain limited
exceptions that are not presently relevant. (See
Doc. Nos. 126 and 256-2.) At the time he entered into this
agreement and pled guilty, Foley was represented by Attorney
28, 2005, Foley was sentenced in accordance with the 2004
version of the U.S. Sentencing Guidelines. After ruling on
Foley's objections to the presentence investigation
report (“PSIR”), Judge McLaughlin concluded that
Foley's total offense level was 33 and his criminal
history category was VI.
latter calculation was premised, in relevant part, upon two
convictions that appeared in the PSIR. The first concerned a
retail theft charge to which Foley reportedly had pled guilty
on October 27, 1992 before a magisterial district judge in
Erie, Pennsylvania. The second concerned charges of petty
larceny and criminal mischief to which Foley had reportedly
pled guilty on July 24, 1994 in Fredonia, New York. Each of
these convictions added one criminal history point toward
Foley's total of thirteen points. Discounting either
conviction would have reduced Foley's total criminal
history points to twelve (12), resulting in a Criminal
History Category of V rather than VI, and this, in turn,
would have produced a different advisory guideline range.
on the court's offense level calculation (i.e.,
33) and its criminal history calculation (i.e.,
Category VI), the 2004 guidelines suggested a period of
incarceration ranging from 235 to 293 months relative to the
conspiracy charge at Count I. Ultimately, Judge McLaughlin
sentenced Foley to a term of 270 months' imprisonment for
his conviction at Count I, to be followed by a mandatory,
consecutive 60-month term of imprisonment for the conviction
at Count III. (Doc. No. 169.) Foley's conviction and
sentence were subsequently affirmed on appeal. (See
Doc. No. 240.) Foley filed a petition for rehearing
en banc, which was denied in May of 2007.
Thereafter, Foley petitioned the United States Supreme Court
for a writ of certiorari, but the petition was denied.
(See Doc. 278 at 3-4.)
2008, Foley filed a motion to vacate his sentence pursuant to
28 U.S.C. §2255 (Doc. No. 244). In his motion, Foley
alleged that Attorney Schroeder had been ineffective by,
among other things, failing to raise certain challenges to
the court's criminal history calculation during the
sentencing proceedings. The court subsequently appointed
Attorney John J. Meade to represent Foley in connection with
his §2255 proceedings.
memorandum opinion and order entered on September 27, 2011,
Judge McLaughlin denied Foley's §2255 motion and
denied a certificate of appealability as well. (Doc. No.
278.) Judge McLaughlin ruled that Foley had waived his right
to collaterally challenge his sentence and alternatively
ruled that Foley had failed to demonstrate ineffectiveness on
the part of Attorney Schroeder. In so ruling, Judge
McLaughlin relied, in part, on a supplemental exhibit filed
by the Government on September 14, 2011 - namely, an
“Order Imposing Sentence” in the 1992 retail
theft case (see Doc. No. 277).
subsequently filed an application for a certificate of
appealability with the United States Court of Appeals for the
Third Circuit in Case No. 11-3849, but the application was
denied in an order dated December 20, 2011. (See
Doc. No. 281.) In denying Foley's application, the court
of appeals explained that Foley had “knowingly and
voluntarily waived his right to collaterally attack his
conviction and sentence through a motion pursuant to 28
U.S.C. §2255, and he ha[d] not established through his
ineffective assistance of counsel claims that enforcing the
waiver would work a miscarriage of justice in this
case.” (Doc. No. 281 (citing United States v.
Mabry, 536 F.3d 231, 237 (3d Cir. 2008).) Foley filed a
petition for an en banc rehearing, arguing that the
district court had failed to give him time to respond to Doc.
No. 277 --the “Order Imposing Sentence” in the
1992 retail theft case. Foley maintained that the underlying
retail theft conviction had been obtained without the benefit
of counsel, making Judge McLaughlin's reliance on that
conviction inappropriate. See United States v.
Foley, Case No. 11-3849 (3d Cir.), Pet. for Reh'g En
Banc, (filed Jan. 20, 2012). The petition was summarily
denied without an opinion. See id., Order (filed
Jan. 30, 2012).
in January 2012, Foley filed a document in the district court
styled “Motion Pursuant to Fed. Civ. Procedure Rule
60(b)(6) For a Reopening of Judgment Due to Extraordinary
Circumstances” (Doc. No. 284). In this motion, Foley
argued that neither the 1992 retail theft conviction nor the
1994 petty larceny conviction should have been considered by
the sentencing court as predicate offenses because the two
convictions had been obtained without the benefit of counsel
in violation of Foley's Sixth Amendment rights.
(See Doc. No. 284 at p. 1, citing Custis v.
United States, 511 U.S. 485 (1994), and Gideon v.
Wainwright, 372 U.S. 335 (1963)). Foley also challenged
the effectiveness of his sentencing counsel based on
counsel's failure to object to the court's
consideration of these two prior convictions. (Id.)
McLaughlin denied Foley's motion in an Order dated
January 25, 2012. (See Doc. No. 285.) In doing so,
Judge McLaughlin reasoned that:
the Court of Appeals has already issued a Certified Order
 denying Defendant a certificate of appealability in
this case and ruling that Defendant knowingly and voluntarily
waived his right to collaterally attack his conviction and
sentence through a motion pursuant to 28 U.S.C. § 2255
and [he] ha[s] not establish[ed] that enforcing the waiver
would work a miscarriage of justice in his case. To the
extent Defendant's motion raises new claims of alleged
ineffectiveness of counsel, the Court will construe his
motion as a second or successive § 2255 petition over
which this Court lacks jurisdiction inasmuch as Defendant has
failed to obtain the requisite pre-authorization from the
Third Circuit Court of Appeals pursuant to 28 U.S.C.
this ruling, Foley filed an application with the Third
Circuit Court of Appeals for permission to file a second or
successive §2255 petition. See In re Foley,
Case No. 12-1364 (3d Cir.), Application for Leave Under
Section 2244(b)(3)(A) to File a Second and Successive 2255
(“application”) (filed Feb. 13, 2012). In this
application, Foley again sought to vacate his sentence based
on: (a) the sentencing court's allegedly improper
consideration of the 1992 retail theft and the 1994 petty
larceny convictions, which Foley claimed were obtained in
violation of his Sixth Amendment right to counsel, and (b)
his sentencing counsel's alleged ineffectiveness in
failing to challenge the two convictions. (Id.) On
March 26, 2012, the application was denied on the ground that
Foley “ha[d] not satisfied the standards set forth in
28 U.S.C. §2255(h) for filing a second or successive
motion.” In re Foley, Case No. 12-1364 (3d
Cir.), Order (dated Mar. 26, 2012).
9, 2012, Foley filed the pending §2255 motion (Doc. No.
288), which was later transferred to the undersigned on
August 16, 2013, following Judge McLaughlin's resignation
from the bench. The proceedings surrounding this petition
have been protracted. They involve, among other things,
numerous motions by Foley to expand the record or submit
supplemental arguments or points in support of his challenge
to the two convictions in question. (See, e.g., Doc.
Nos. 287, 291, 293, 295, 300, 302, 308, 309, 314, 316, 321.)
In the interests of justice, this Court gave Foley
considerable latitude in developing the arguments he seeks to
pursue in his current §2255 motion. In large measure,
Foley's supplemented filings document his efforts to
expunge the 1992 retail theft and the 1994 petting larceny
convictions from his criminal record on the grounds that
these uncounseled proceedings violated his Sixth Amendment
rights. As matters presently stand, the 1992 retail theft
conviction has been expunged, and the 1994 petty larceny
conviction has been sealed with a notation that the
proceedings were terminated in Foley's favor.
(See ECF No. 302-1 at p. 1 and ECF No. 314-1 at p.
further advance the interests of justice, this court
appointed Attorney William C. Kaczynski to represent Foley in
connection with the pending §2255 motion. (See ECF No.
339.) In an attempt to posture these proceedings for final
resolution, the court directed counsel to file supplemental
briefing. Those briefs have been filed (see Doc.
Nos. 348, 358, and 363), the matter is now ripe for final
adjudication. The following constitute this court's
findings of fact and conclusions of law concerning
Foley's §2255 motion.
to 28 U.S.C. §2255, "[a] prisoner in custody under
sentence of a court established by Act of Congress claiming
the right to be released upon the ground that the sentence
was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence."
Id. §2255(a). This court previously recognized
that, despite the plethora of filings that Foley has
submitted in relation to the pending §2255 motion, his
argument is relatively narrow and straightforward.
forth above, Foley contends that his sentence should be
vacated inasmuch as its rests upon the district court's
improper consideration of his convictions for the 1992 retail
theft charge and the 1994 petty larceny charge, both of which
have now essentially been overturned and/or expunged. As
noted, Foley contends that these convictions were obtained in
violation of his right to counsel under the Sixth Amendment.
Foley further disputes that he was involved in the 1992
retail theft offense; he denies any recollection of being
prosecuted for that offense and questions the authenticity of
the sentencing order previously produced by the government
(see ECF No. 277). Foley accurately observes that,
if either of these two convictions had been discounted, his
criminal history category would have been V rather than VI,
and the resulting guideline range would have been 210 to 262
months of imprisonment at Count I, rather than 235 to 293
government contends that Foley's current motion is a
second or successive §2255 motion which this court lacks
jurisdiction to entertain. Alternatively, the government
contends that ...