United States District Court, M.D. Pennsylvania
Richard Caputo United States District Judge
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.
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. 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.
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). 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).
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.
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.
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).
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.
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). 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.
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.
28 U.S.C. § 2255.
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).
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)).