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United States v. Mitchell

United States District Court, E.D. Pennsylvania

October 27, 2017

UNITED STATES OF AMERICA
v.
JOSEPH MITCHELL, SR. Defendant-pro se

          MEMORANDUM OPINION

          NITZA I. QUIÑONES ALEJANDRO, J.

         Before this Court is a motion under 28 U.S.C. §2255, to vacate, set aside, or correct sentence by a person in federal custody filed by Defendant Joseph Mitchell, Sr., (“Defendant'') (Doc. 773), proceeding pro se, and the Government's response in opposition. (Doc. 789). The issues raised in Defendant's motion have been fully briefed and are, therefore, ripe for disposition.

         For the reasons stated herein, Defendant's motion is denied.

         BACKGROUND

         On July 14, 2015, Defendant was charged in Count Two of the Second Superseding Indictment with conspiracy to distribute Schedule II controlled substances in violation of 21 U.S.C. § 846. (Doc. 74). This conspiracy charge arose from Defendant's participation in a pill-mill scheme to obtain prescriptions of controlled substances, including oxycodone, Percocet and methadone, for no legitimate medical purpose. On February 26, 2016, Defendant pled guilty to the conspiracy charge pursuant to a written plea agreement negotiated by the parties. As noted in the pertinent provisions of the plea agreement, Defendant agreed, inter alia, that he would not appeal or present any collateral challenge to his conviction and/or sentence, with the exception, under limited circumstances, for claims of constitutionally ineffective assistance of counsel. (See Guilty Plea Agreement, Doc. 343, at ¶10).

         Consistent with this Court's practice, the Probation Department prepared a presentence report (“PSR”) for use at sentencing. Based upon the criminal offense to which Defendant pled guilty and his prior criminal history, the advisory sentencing guidelines were calculated as follows: Defendant's total offense level was 31, with a criminal history of III, which resulted in an advisory sentencing guideline range of 135 to 168 months of imprisonment. At the sentencing hearing on October 13, 2016, the Government argued for a sentence within the advisory guidelines, citing to, inter alia, Defendant's gang affiliation, the opioid epidemic, and the seriousness of the offense. Defense counsel argued for a downward variance. After consideration of these arguments, Defendant's allocution, and the 18 U.S.C. §355(a) factors, Defendant was sentenced to a 108-month term of imprisonment, followed by three years of supervised release, a fine of $1, 500.00, and a special assessment of $100.00. Defendant did not appeal the conviction or sentence, but instead, on June 28, 2017, filed the instant motion, primarily arguing trial counsel's effectiveness.

         LEGAL STANDARD

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a prisoner serving a sentence in federal custody may move to vacate, set aside, or correct his/her sentence under 28 U.S.C. §2255 only on the grounds 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 review . . . .” 28 U.S.C. §2255(a). However, a motion under §2255 is a collateral challenge that is viewed less favorably than a direct appeal, and “relief under §2255 is available only when ‘the claimed error of law was a fundamental defect which inherently results in a complete miscarriage of justice, and ... present[s] exceptional circumstances where the need for the remedy afforded by the writ ... is apparent.'” United States v. Travillion, 759 F.3d 281, 288 (3d Cir. 2014) (quoting Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)). If a court finds that the judgment or sentence imposed was not authorized by law, or that there has been such a denial or an infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall either discharge the prisoner, resentence him, grant a new trial, or correct the sentence, as may appear appropriate. 28 U.S.C. §2255(b).

         DISCUSSION

         In his motion to vacate, set aside, or correct his sentence, Defendant contends that his trial counsel was ineffective for failing to: (1) file a direct appeal as instructed by Defendant; (2) order an IQ test, psychiatric or psychological evaluation prior to the sentencing; and (3) file a direct appeal to challenge the district court's decision to apply a two-level role enhancement. Defendant also challenges the disparity between his sentence and the sentences imposed on other codefendants.

         In its response, the Government essentially argued that in a transparent attempt to circumvent the appeal waiver provisions that Defendant voluntarily and knowingly agreed to in the plea agreement, Defendant is challenging the length of his sentence under the guise that counsel's assistance at sentencing was constitutionally ineffective. This Court's analysis begins with a consideration of whether Defendant knowingly and voluntarily waived his appellate rights.

         It is well-settled that “[c]riminal defendants may waive both constitutional and statutory rights, provided they do so voluntarily and with knowledge of the nature and consequences of the waiver.” United States v. Mabry, 536 F.3d 231, 236 (3d Cir. 2008) (citations omitted). Such waivers can include the waiver of the right to file a direct appeal and/or a motion to vacate, set aside or correct sentence under 28 U.S.C. §2255 in a plea agreement with the government. Id. at 236, 241; see also United States v. Fazio, 795 F.3d 421, 425 (3d Cir. 2015) (holding “we will enforce appellate or collateral-attack waivers when they are entered into knowingly and voluntarily and their enforcement does not work a miscarriage of justice.”). Waivers of appellate rights in criminal cases do not contravene public policy and should be strictly construed. See United States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001).

         In determining the validity of such a waiver, a district court must examine “the (1) knowing and voluntary nature, based on what occurred and what defendant contends, and (2) whether enforcement would work a miscarriage of justice.” Mabry, 536 F.3d at 237. A criminal defendant has the initial burden “of presenting an argument that would render his waiver unknowing or involuntary.” Id. at 237-38. The district court has “an affirmative duty both to examine the knowing and voluntary nature of the waiver and to assure itself that its enforcement works no miscarriage of justice, based on the record evidence before it.” Id.

         Here, unlike in Mabry where the defendant actually argued that his waivers of collateral and appellate review were not knowing and voluntary, Defendant has not asserted that his signed plea agreement, which provided for the waiver of his appellate rights, was not entered into knowingly and voluntarily, Defendant's first hurdle. Regardless, this Court has “an independent obligation to conduct an evaluation of the validity of [an appellate] waiver.” Id. at 238. In so doint, this Court will review the written plea agreement and the guilty ...


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