United States District Court, W.D. Pennsylvania
N. Bloch United States District Judge
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
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.
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.
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).
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.
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
Petitioner's Claims Are Barred by the Waiver in His
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).
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.
Federal Rules of Civil Procedure 60(b) and 59(e) Are Not
AppropriateProcedural Grounds ...