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United States v. Murin

United States District Court, W.D. Pennsylvania

December 27, 2017

UNITED STATES OF AMERICA
v.
ANDREW J. MURIN, JR., Defendant/Petitioner.

          ORDER

          Alan N. Bloch United States District Judge

         AND NOW, this 27th day of December, 2017, upon consideration of Defendant/Petitioner (“Petitioner”) Andrew J. Murin, Jr.'s pro se “Motion for Relief Pursuant to Rule 60(b) and Rule 59(e) of Federal Rules of Civil Procedure” (Doc. No. 438), filed in the above captioned matter on December 15, 2016, and upon further consideration of the Government's response to said motion (Doc. No. 442), filed on January 13, 2017, and on Petitioner's reply thereto (Doc. No. 450), filed on February 7, 2017, IT IS HEREBY ORDERED that said motion is DISMISSED.

         I. Background

         On June 21, 2011, Petitioner pled guilty to Count Twenty-four of the superseding indictment, charging him with aiding and abetting mail fraud, in violation of 18 U.S.C. §§ 1341 and 2. In connection with his plea, he and the Government entered into a plea agreement which provided that Petitioner would be subject to a term of imprisonment of not more than 10 years, a term of supervised release of 5 years, no fine, a special assessment of $100, and restitution as determined by the Court. The agreement also included a waiver of certain appellate rights as well as a provision that Petitioner “further waives the right to file a motion to vacate sentence, under 28 U.S.C. § 2255, attacking his conviction or sentence, and the right to file any other collateral proceeding attacking his conviction or sentence.” The agreement further stated that it

sets forth the full and complete terms and conditions of the agreement between [Petitioner] and the [Government], and there are no other agreements, promises, terms or conditions, express or implied.

         Petitioner signed the agreement and agreed at the plea hearing that he had agreed to the terms set forth in the agreement, which both the Government and the Court reviewed for him at that hearing. The Court accepted Petitioner's plea.

         On October 27, 2011, the Court sentenced Petitioner to 120 months' imprisonment and 5 years' supervised release and ordered restitution in the amount of $235, 637, 115.19. Judgment was entered on that date. Although Petitioner filed a notice of appeal on November 7, 2011, the Third Circuit Court of Appeals summarily dismissed the appeal based on Petitioner's waiver of his appellate rights. (Doc. No. 355). On August 8, 2012, Petitioner filed a motion pursuant to 28 U.S.C. § 2255. (Doc. No. 359). Because the Court was aware of the waiver of the right to file a Section 2255 motion contained in the plea agreement entered into by Petitioner, it ordered Petitioner to show cause why his motion should not be dismissed on the basis of this waiver. Petitioner filed a response, but the Court dismissed the motion pursuant to the waiver and declined to issue a certificate of appealability. (Doc. No. 363). Petitioner sought a certificate of appealability from the Third Circuit, but the Circuit Court denied his request. (Doc. No. 373).

         Petitioner subsequently sought certification from the Third Circuit to file another Section 2255 motion pursuant to 28 U.S.C. §§ 2244 and 2255(h). On November 15, 2016, the Third Circuit denied Petitioner's request. Petitioner then filed the present motion, purporting to rely not on Section 2255, but Rules 59 and 60 of the Federal Rules of Civil Procedure. The Government filed a response, to which Petitioner has replied.

         II. Discussion

         Pro se pleadings are held to less stringent standards than formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Holley v. Department of Veterans Affairs, 165 F.3d 244, 247 (3d Cir. 1999). However, even a pro se plaintiff must be able to prove a “set of facts in support of his claim which would entitle him to relief.” Haines, 404 U.S. at 520-21 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Perhaps not unexpectedly, given his pro se status, Petitioner's motion is premised on a fundamental misunderstanding of the nature of the sentencing process in federal criminal proceedings and a mischaracterization of his plea agreement. Indeed, the Government, in its response, sets forth nine separate reasons for the Court to dismiss and/or deny the present motion, all of which are essentially valid. While the Court need not address all of the nine reasons, it will set forth the fundamental reasons why it must dismiss Petitioner's motion.

         A. Petitioner's Claims Are Barred by the Waiver in His Plea Agreement

         As noted above, this is not the first post-conviction motion for relief filed by Petitioner in this case. His previous motion, filed pursuant to 28 U.S.C. § 2255 (Doc. No. 359), was dismissed by this Court because Petitioner had waived his right to file such a motion pursuant to his plea agreement. However, that waiver did not apply only to motions pursuant to Section 2255, but to “the right to file any other collateral proceeding attacking his conviction or sentence.” Although Petitioner attempts to argue that he is not in fact attacking his sentence, he clearly is. While on the one hand claiming that he is not seeking a reduction in his 120-month term of imprisonment, he also acknowledges that he is seeking for that sentence to be corrected, i.e., changed. In fact, he himself identifies the “primary issue” before the Court as the Court's alleged error in not reducing his sentence further based on language in his plea agreement. (Doc. No. 450 at 10).

         Accordingly, whether the present motion is characterized as a Section 2255 motion or any other type of collateral attack on Petitioner's sentence, it is covered by the waiver set forth in the plea agreement. This Court has already held, in its previous order dismissing Petitioner's earlier Section 2255 motion (Doc. No. 363), that the waiver was entered into knowingly and voluntarily. See United States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001); United States v. Mabry, 536 F.3d 231, 237 (3d Cir. 2008). Moreover, as with Petitioner's previous motion, no miscarriage of justice would result from enforcement of the collateral waiver. As explained herein, Petitioner cannot pursue his claims under the procedural vehicles he has chosen, and regardless, even if he could his claims lack merit. As such, the waiver in Petitioner's plea agreement is enforceable here.

         B. Federal Rules of Civil Procedure 60(b) and 59(e) Are Not AppropriateProcedural Grounds ...


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