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United States v. Foley

United States District Court, W.D. Pennsylvania

March 31, 2017

UNITED STATES OF AMERICA
v.
MAURICE F. FOLEY

          OPINION

          David Stewart Cercone United States District Judge.

         Pending 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.

         I. INTRODUCTION

         This 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.

         In 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 David Schroeder.

         On July 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.

         This 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.

         Based 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.)

         In May 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.

         In a 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).

         Foley 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).

         Meanwhile, 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.)

         Judge 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 [281] 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. §2244(b)(3)(A).

(Id.)

         Following 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).

         On May 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. 2.)

         To 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.[1] The following constitute this court's findings of fact and conclusions of law concerning Foley's §2255 motion.

         II. DISCUSSION

         Pursuant 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.

         As set 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 months.

         The 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 ...


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