United States District Court, M.D. Pennsylvania
Kane, District Judge United States District Court
the Court is Petitioner Devlon Saunders'
(“Petitioner” or “Saunders”), motion
to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. (Doc. No. 295.) For the reasons that
follow, the Court will deny Petitioner's motion.
March 3, 2010, a grand jury returned a three-count indictment
charging Saunders and three co-defendants with: conspiracy to
distribute and possess with intent to distribute 50 grams and
more of cocaine base and marijuana, in violation of 21 U.S.C.
§ 846 (Count 1); distribution and possession with intent
to distribute 50 grams and more of cocaine base, in violation
of 21 U.S.C. § 841(a)(1) (Count 2); and use of a
communication facility committing a drug trafficking crime,
in violation of 21 U.S.C. § 843(b) (Count 3). (Doc. No.
pled guilty to Count 1 of the indictment pursuant to a
written plea agreement on July 14, 2010. (Doc. Nos. 116,
125.) As part of his plea agreement, Saunders waived his
right to appeal any conviction and sentence on any grounds
set forth in 18 U.S.C. § 3742, or any other grounds.
(Doc. No. 116.) He also waived his right to challenge any
conviction and sentence in any collateral proceeding,
including pursuant to 28 U.S.C. § 2255. (Id.)
Court sentenced Saunders on March 3, 2011 to 180 months'
imprisonment, a three-year term of supervised release, a $1,
000 fine and a $100 special assessment. (Doc. No. 240.)
However, despite the waiver contained in his plea agreement,
Saunders filed a notice of appeal on March 8, 2011. (Doc. No.
244.) The United States Court of Appeals for the Third
Circuit (“Third Circuit”) affirmed Saunders'
conviction in an opinion filed January 30, 2012. (Doc. No.
272.) The mandate issued on February 21, 2012. (Doc. No.
24, 2016, Saunders filed the instant motion to vacate under
28 U.S.C. § 2255, alleging a potential entitlement to
relief under Johnson v. United States, 135 S.Ct.
2251 (2015), which invalidated the residual clause of the
Armed Career Criminal Act (“ACCA”), and its
definition of a “violent felony.” (Doc. No. 295.)
Pursuant to Standing Order 15-6 of the United States District
Court for the Middle District of Pennsylvania regarding
Appointment of Counsel in Proceedings Relating to the
Application of Johnson v. United States, Attorney
Melinda Ghilardi of the Federal Public Defender's Office
was appointed to represent Saunders. (Doc. No. 296.) After
reviewing Saunders' motion, on July 15, 2016, Attorney
Ghilardi filed a motion to withdraw as counsel on the basis
that Johnson's holding, invalidating the
residual clause of the ACCA and its definition of a
“violent felony, ” is inapplicable to
Saunders' case, as he was not sentenced as a career
offender. (Doc. No. 297 at 2.) The Court granted the motion
by Order dated July 19, 2016. (Doc. No. 298.)
September 13, 2016, Saunders filed a brief in support of his
Section 2255 motion (Doc. No. 300), and the Government filed
its brief in opposition to Saunders' motion on October
17, 2016 (Doc. No. 303). Accordingly, Petitioner's Section
2255 motion is now ripe for disposition.
28 U.S.C. § 2255(a), a federal prisoner may file a
motion requesting that the sentencing court vacate, set
aside, or correct his sentence on the basis “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.” 28 U.S.C.
§ 2255(a). However, Section 2255 does not afford a
remedy for all errors that may have been made at trial or
during sentencing. United States v. Essig, 10 F.3d
968, 977 n. 25 (3d Cir. 1993) (citing United States v.
Addonizio, 442 U.S. 178, 185 (1979)). Rather, Section
2255 is implicated only when the alleged error raises
“a fundamental defect which inherently results in a
complete miscarriage of justice.” Addonizio,
442 U.S. at 185. Under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), a petitioner has one year
from the time his conviction becomes final to file a Section
2255 motion. 28 U.S.C. § 2244.
opposing the motion filed by Saunders, the Government makes
the following two arguments: (1) the motion should be denied,
as Saunders expressly waived his right to file a collateral
attack of his sentence in his written plea agreement and
under oath at his guilty plea proceedings; and (2) the motion
should be denied as untimely. The Court declines to address
the validity of the appellate and collateral review waiver
signed by Petitioner, as it finds that, as detailed below,
even assuming that Petitioner did not waive his right to
bring the instant Section 2255 motion, the motion is
noted above, 28 U.S.C. § 2255 provides a one-year period
to file an initial motion to vacate that runs from “the
date on which the judgment of conviction becomes
final.” United States v. Davies, 394 F.3d 182,
186 n. 2 (3d Cir. 2005). “[A] ‘judgment of
conviction becomes final' within the meaning of §
2255 on the later of (1) the date on which the Supreme Court
affirms the conviction and sentence on the merits or denies
the defendant's timely filed petition for certiorari, or
(2) the date on which the defendant's time for filing a
timely petition for certiorari review expires.”
Kapral v. United States, 166 F.3d 565, 577 (3d Cir.
case, as Petitioner declined to file a petition for
certiorari review with the Supreme Court, Petitioner's
judgment of conviction became final 90 days after the
issuance of the Third Circuit's mandate, which is the
time period for filing a timely petition for certiorari
review. See Rule 13(1) of the Rules of the Supreme
Court (“[A] petition for a writ of certiorari to review
a judgment in any case, civil or criminal, entered by a state
court of last resort or a United States court of appeals . .
. is timely when it is filed with the Clerk of this Court
within 90 days after entry of judgment.”). Accordingly,
as the Third Circuit's mandate issued on February 21,
2012, Petitioner's conviction became final on May ...