United States District Court, W.D. Pennsylvania
BARRY FISCHER UNITED STATES DISTRICT JUDGE.
matter is before the Court on a Motion to Vacate, Set Aside
or Correct Sentence Under 28 U.S.C. § 2255
(“§ 2255 Motion”) filed by pro se
Defendant Patrick Joseph Kofalt (“Defendant”).
(Docket No. 131). Defendant claims that his trial counsel was
ineffective and seeks to vacate his sentence of 235
months' incarceration for receipt of material depicting
the sexual exploitation of a minor in violation of 18 U.S.C.
§ 2252(a)(2). (Docket Nos. 131, 132). The Government
filed a Motion to Enforce Collateral Rights Waiver, arguing
that Defendant's § 2255 Motion should be dismissed
because he waived his right to file a motion under 28 U.S.C.
§ 2255 in a plea agreement with the Government. (Docket
following reasons, the Court will enforce the valid waiver
contained in Defendant's plea agreement. Accordingly, the
Government's motion will be granted and Defendant's
§ 2255 Motion will be dismissed.
Factual Background and Procedural History
12, 2011, Defendant was charged in a two-count indictment
with the following: receipt of material depicting the sexual
exploitation of a minor, in violation of 18 U.S.C. §
2252(a)(2) (Count One); and possession/access with intent to
view material depicting the sexual exploitation of a minor,
in violation of 18 U.S.C. § 2252(a)(4)(B) (Count Two).
(Docket No. 1).
3, 2012, Defendant filed a motion to suppress child
pornography found on computers that were seized upon
execution of a search warrant at his residence on December 2,
2009. (Docket No. 37). On November 2, 2012, the Court issued
an opinion and order denying the motion to suppress. (Docket
Nos. 47, 48).
December 14, 2012, Defendant pled guilty to Count One of the
indictment pursuant to a plea agreement with the Government.
(Docket Nos. 54, 55, 86). As relevant here, Defendant agreed
to waive his right to take a direct appeal of his conviction
or sentence, except under limited circumstances specified in
the plea agreement. (Docket No. 86 at 19-20, 25-26).
Defendant also agreed to waive his right to collaterally
attack his conviction or sentence. (Id. at 20, 27).
Following an extensive colloquy by the Court to determine
Defendant's competency and understanding of the plea
agreement, the Court accepted Defendant's change of plea
and entered a judgment of guilty as to Count One of the
indictment. (Docket Nos. 54, 55, 86).
9, 2013, the Court conducted a sentencing hearing. (Docket
No. 79, 85). The Court noted that Defendant's total
offense level was 35 and his criminal history category was
II, which produced an advisory guideline sentencing range of
188 to 235 months' incarceration. (Docket No. 85 at 11).
After considering the factors set forth in 18 U.S.C. §
3553(a), the Court sentenced Defendant to 235 months'
incarceration. (Id. at 56-64).
with the terms of the plea agreement, Defendant filed a
direct appeal limited to his motion to suppress evidence. The
Third Circuit Court of Appeals affirmed this Court's
denial of Defendant's suppression motion for the reasons
explained by the Court in its Memorandum Opinion. United
States v. Kofalt, 668 Fed.Appx. 426, 427 (3d Cir. 2016).
February 5, 2018, Defendant filed his pro se §
2255 Motion. (Docket No. 131). The Court entered its standard
order pursuant to United States v. Miller, 197 F.3d
644 (3d Cir. 1999), advising Defendant that all federal
constitutional claims had to be included in a single habeas
corpus petition and of his right to: (1) withdraw the pending
motion and file one new, all-inclusive § 2255 motion
setting forth every ground which may entitle him to relief
from his conviction and sentence, provided that such motion
is timely; (2) amend the § 2255 motion presently on file
to include any additional claims or materials he wished to
raise; or (3) choose to proceed with the motion as filed.
(Docket No. 133). Defendant indicated that he wished to
proceed with his motion as filed. (Docket No. 135).
April 16, 2018, the Government filed a motion to enforce the
collateral rights waiver and dismiss Defendant's §
2255 Motion. (Docket No. 143). Defendant filed a brief in
opposition to the Government's motion on April 27, 2018.
(Docket No. 145). The official transcripts of the December
14, 2012, change of plea hearing and the July 9, 2013,
sentencing hearing were filed and considered by the Court.
(Docket Nos. 85, 86). This matter is now ripe for review.
Standard of Review
prisoner in federal custody may move to vacate his sentence
under 28 U.S.C. § 2255(a) if such “sentence was
imposed in violation of the Constitution or laws of the
United States.” 28 U.S.C. § 2255(a). “A
prisoner seeking relief on the grounds of ineffective
assistance of counsel bears the burden to demonstrate two
requirements, ” United States v. Seeley, 574
Fed.Appx. 75, 78 (3d Cir. 2014), which were initially set
forth by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). In order to prevail on
a claim of ineffective assistance of counsel under
Strickland, a defendant “must establish that
(1) the performance of counsel fell below an objective
standard of reasonableness; and, (2) counsel's deficient
performance prejudiced the defense.” United States
v. Otero, 502 F.3d 331, 334 (3d Cir. 2007) (citing
Strickland, 466 U.S. at 688, 694); see also
Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000)
(citing Strickland, 466 U.S. at 688, 694) (same).
The United States Court of Appeals for the Third Circuit has
“endorsed the practical suggestion in
Strickland [that the Court may] consider the
prejudice prong before examining the performance of counsel
prong ‘because this course of action is less burdensome
to defense counsel.'” United States v.
Lilly, 536 F.3d 190, 196 (3d Cir. 2008) (quoting
United States v. Booth, 432 F.3d 542, 546 (3d Cir.
2005)); see also Strickland, 466 U.S. at
697 (“If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be
a district court must order an evidentiary hearing in a
federal habeas case if a criminal defendant's § 2255
allegations raise an issue of material fact. United
States v. Biberfeld, 957 F.2d 98, 102 (3d Cir. 1992).
But, if there is “no legally cognizable claim or the
factual matters raised by the motion may be susceptible of
resolution through the district judge's review of the
motion and records in the case, ” the motion may be
decided without a hearing. United States v.
Costanzo, 625 F.2d 465, 470 (3d Cir. 1980); see
alsoLilly, 536 F.3d at 195. If a hearing is
not held, the district judge must accept the criminal
defendant's allegations as true “unless they are
clearly frivolous on the basis of the existing record.”
Gov't of Virgin Islands v. Bradshaw, 726 F.2d
115, 117 (3d Cir. 1984). Similarly, “vague and
conclusory allegations contained in a § 2255 petition
may be disposed of without ...