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United States v. Michael

United States District Court, W.D. Pennsylvania

January 4, 2018

UNITED STATES
v.
KENNETH MICHAEL No. CR 9-105

          OPINION AND ORDER

          Donetta W. Ambrose Senior Judge

         SYNOPSIS

         In this action, Defendant pleaded guilty to two Counts, one each of conspiracy to possess with intent to distribute in violation of 21 U.S.C. § 846, and conspiracy to engage in money laundering in violation of 18 U.S.C.§ 1965(h). On August 15, 2014, the Court sentenced him to a term of 120 months imprisonment at each Count, to run concurrently, followed by a term of supervised release. On August 11, 2015, Defendant filed a Motion to Vacate his sentence pursuant to 28 U.S.C. § 2255. The Court issued a Miller notice, notifying Defendant that he must make an election by December 7, 2015. Defendant sought and received leave to withdraw his Motion to Vacate, and to submit a new Motion. He filed the new Motion on December 7, 2015.[1] Thereafter, he sought and received an opportunity to submit additional materials.[2] The Motion has been fully briefed and is ripe for review. For the following reasons, Defendant's Motion will be denied.

         OPINION

         I. LEGAL STANDARDS

         Relief is available under Section 2255 only under exceptional circumstances, when the claimed errors of law are "a fundamental defect which inherently results in a complete miscarriage of justice, " or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). A district court need not hold an evidentiary hearing on a Section 2255 motion if the motion, files, and records show conclusively that the defendant is not entitled to relief. United States v. Ritter, 93 Fed.Appx. 402 (3d Cir. 2004). Further, pro se pleadings are to be liberally construed, and I have considered Defendant's submissions accordingly. See United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007). In this case, a hearing is unnecessary, and the Motion will be disposed of on the record.

         II. DEFENDANT'S MOTION

         A. Timeliness

         The Government first challenges the timeliness of Defendant's Motion. Defendant filed a Motion to Vacate on 8/11/15. He withdrew his first Motion, pursuant to Miller notice, and elected to file a new Motion on December 7, 2015, within the deadline set by the Court. He then supplemented that Motion on February 24, 2016. The Government acknowledges that the initial Section 2255 Motion was timely filed. I will consider Defendant's substitute Motion, and the supplement thereto, timely.

         B. Waiver

         The Government next contends that Defendant, in his plea agreement, waived his right to file a Motion to Vacate.

         In this Circuit, generally speaking, waivers of the right to collateral attack are valid if entered into knowingly and voluntarily. United States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001); United States v. Goodson, 544 F.3d 529, 536 (3d Cir. 2008).[3] Claims challenging the voluntariness of a collateral attack waiver, or the effectiveness of counsel with respect to the waiver itself, may survive the waiver. United States v. Whitaker, 2005 U.S. Dist. LEXIS 23884, at **5-6 (E.D. Pa. Oct. 18, 2005). Similarly, courts will consider an ineffectiveness claim that relates directly to the negotiation of the waiver itself. United States v. Fagan, No. 2-75, 2004 U.S. Dist. LEXIS 22456, at **9-11 (E.D. Pa. Oct. 4, 2004). In other words, unless the negotiation of the waiver itself was tainted, the waiver may be upheld. Id.

         In this context, it is worthwhile to note the Supreme Court's observation that "the representations of the defendant, his lawyer, and the prosecutor at [a plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison,431 U.S. 63, 73-74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). Otherwise stated, "absent clear and convincing evidence to the contrary, a court must presume the veracity of a defendant's statements made while under oath in open court." Morris v. United States, No. 04-1570, 2008 U.S. Dist. LEXIS 31295, at *14 (D. Del. Apr. 16, 2008). ...


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