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United States v. Donahue

United States District Court, M.D. Pennsylvania

March 21, 2018

UNITED STATES OF AMERICA
v.
JOSEPH P. DONAHUE, Defendant/Petitioner.

          MEMORANDUM

          A. Richard Caputo United States District Judge

         Presently before me is the Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 465) filed by Joseph Donahue (“Donahue” or “Petitioner”). Donahue claims that his counsel labored at trial with a serious medical condition that left him “unconscious” and “in a stupor” during a substantial portion of the proceedings. Donahue further contends that his counsel failed to subpoena or call a crucial witness whose testimony would have changed the outcome of his trial. As a result, Donahue asserts that he was denied his Sixth Amendment right to effective assistance of counsel. Because Donahue fails to satisfy the standard for evaluating ineffective assistance claims set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), his § 2255 motion will be denied.

         I. Background

         On January 6, 2010, the Government filed a sixteen-count Second Superseding Indictment against Donahue in this Court. See United States v. Donahue, No. 08-CR-221 (M.D. Pa. Jan. 6, 2010), ECF No. 138.[1] That indictment contained charges of bank fraud, 18 U.S.C. § 1344; access device fraud (credit card fraud), 18 U.S.C. §§ 1029(a)(2), 1029(a)(2), 1029(b)(1) and 1029(b)(2); false statements to the government, 18 U.S.C. § 1001; and money laundering, 18 U.S.C. § 1956(a)(1)(A). See id.

         Following an eight-day trial, a jury convicted Donahue on all counts. See United States v. Donahue, 460 F. App'x 141, 142 (3d Cir. 2012).[2] Donahue was sentenced to a term of 121 months of imprisonment. See id. Donahue was scheduled to surrender at the Federal Correctional Institution, Fort Dix, New Jersey, to commence serving his sentence on January 4, 2011. See United Stats v. Donahue, No. 11-33, 2014 WL 6388446, at *1 (M.D. Pa. Nov. 14, 2014).

         On January 4, 2011, Donahue failed to appear at the institution designated for the service of his sentence. See id. The United States Attorney's Office, Middle District of Pennsylvania, thereafter obtained a warrant for Donahue's arrest. See id.

         On January 20, 2011, Donahue was arrested by the United States Marshals Service in Las Cruces, New Mexico. See id. Donahue's vehicle was taken to the U.S. Marshals' facility in Las Cruces, New Mexico, where the car was searched, pictures of the vehicle and its contents were taken, and the contents of the car were inventoried. See id. During a subsequent search of the vehicle, a Glock .40 caliber magazine with an extender was discovered in the automobile. See id. Subsequently, the bags seized from Donahue's vehicle were opened and searched, and a Glock semi-automatic pistol was found. See id.

         On July 24, 2012, the Grand Jury returned the First Superseding Indictment against Donahue in this case. (See Doc. 111, generally). Donahue was charged with: (1) knowingly failing to surrender for service of a federal sentence pursuant to a court order in violation of 18 U.S.C. § 3146(a)(2) and (b)(1)(A)(i) (Count One); (2) knowingly possessing, in and affecting commerce, a firearm (Glock, Model 27, .40 caliber semi-auto pistol, serial number GTB989) which had been shipped and transported in interstate and foreign commerce in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Two); (3) being a fugitive from justice and knowingly possessing, in and affecting commerce, a firearm (Glock, Model 27, .40 caliber semi-auto pistol, serial number GRB989) which had been shipped and transported in interstate and foreign commerce, in violation of 18 U .S.C. §§ 922(g)(2) and 924(a)(2) (Count Three); and (4) knowingly possessing a stolen firearm (Glock, Model 27, .40 caliber semiauto pistol, serial number GTB989) which had been shipped and transported in interstate and foreign commerce, knowing and having reasonable cause to believe the firearm was stolen in violation of 18 U.S.C. §§ 922(j) and 924(a)(2) (Count Four). (See id.). Donahue proceeded to trial on the charges, where a jury convicted him of all counts on September 1, 2015. (See Doc. 378, generally).

         Donahue appealed his conviction to the Third Circuit. (See Doc. 422, generally). The Third Circuit affirmed the judgment of conviction. See United States v. Donahue, 681 F. App'x 171, 174 (3d Cir. 2017). The Supreme Court denied Donahue's petition for writ of certiorari. See Donahue v. United States, 138 S.Ct. 128 (2017).

         The following month, Donahue filed the instant § 2255 motion and supporting memorandum of law in this Court, wherein he raises two ineffectiveness assistance of counsel claims. (See Doc. 465, generally).[3] Donahue first asserts that he “was deprived of his Sixth Amendment right to counsel when counsel was not concious [sic] during a substantial portion of defendant's trial.” (Id. at 4). Donahue summarizes this claim:

Defense counsel, due to a post-trial discovered serious medical condition involving arterial blockage of bloodflow to the brain, was rendered effectively incapacitated at numerous and crucial times during the trial. The condition essentially rendered defense [counsel] unconcious [sic] to what was going on at times during the trial. Emergency surgery was completed following trial upon discovery of the condition.

(Id.). Counsel was also ineffective, states Donahue, for “refus[ing] to call a crucial defense witness due to a personal relationship.” (Id. at 5). Donahue explains the basis of this claim:

Defense counsel refused to subpoena a crucial witness who defendant stressed could impact the trial outcome despite agreeing that the witness's testimony was of such importance because of the personal relationship between defense counsel and the witness - the presiding judge (James M. Munley) in the underlying related case. Defense counsel told defendant that he [would] quit if defendant demanded he subpoena the witness or requested that the court direct him to do so. Defense counsel stated that he would not do so because the judge was responsible for him becoming an attorney and accepted to the bar. He said that he would not subject this crucial witness to embarrassing public examination of conduct in the underlying case disclosed in newly discovered evidence, in government official reports including one by the prosecutor disclosing wrongful ex parte meetings and discussions, perjury and the withholding of relevant material evidence.

(Id.).

         On February 10, 2018, the Government filed its brief in opposition to the § 2255 motion, (see Doc. 471, generally), and Donahue filed a timely reply thereto. (See Doc. 473, generally). Donahue's § 2255 motion is thus fully briefed and ripe for disposition.

         II. Legal Standards

         A. 28 U.S.C. § 2255.

         “Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge their convictions or sentences that are allegedly in violation of the Constitution.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). Section 2255 permits a prisoner sentenced by a federal court to move the court that imposed the sentence to “vacate, set aside, or correct the sentence” where: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a).

         Section 2255(b) generally entitles a petitioner to a hearing on his motion, “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. . . .” 28 U.S.C. § 2255(b); see also Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts (“If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.”). The threshold the petitioner must meet to obtain an evidentiary hearing is considered to be “reasonably low.” United States v. Booth, 432 F.3d 542, 546 (3d Cir. 2005). In considering a § 2255 motion, the “district court must ‘accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record.'” Johnson v. United States, 294 F. App'x 709, 710 (3d Cir. 2008) (quoting Booth, 432 F.3d at 545-46). The district court may, however, dispose of “vague and conclusory allegations” contained in a § 2255 petition without further investigation. Id. at 710 (quoting United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).

         B. Ineffective ...


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