United States District Court, E.D. Pennsylvania
the Court is Defendant James A. Morgan's Motion to Reopen
his criminal case pursuant to Federal Rule of Civil Procedure
60(b)(3). (Doc. No. 95.) Defendant also has filed a Motion to
Amend His Rule 60(b)(3) Motion (Doc. No. 96), a Motion for
Appointment of Counsel (Doc. No. 97), a Motion for an Order
for the Bureau of Prisons (“BOP”) to Turn on His
Email (Doc. No. 98), and a Motion for an Order to the Clerk
to Send Him Documents for His Rule 60(b)(3) Motion (Doc No.
99). He also has filed a Motion for Leave to Proceed in
Forma Pauperis on His Rule 60(b)(3) Motion (Doc. No.
100) and an Application to Appeal in Forma Pauperis
(Doc. No. 101). For reasons that follow, Defendant's
Motions (Doc. Nos. 95-101) will be denied.
January 28, 2013, Defendant entered into a Guilty Plea
Agreement. (Doc. No. 50.) Pursuant to the appellate waiver
provision of the Guilty Plea Agreement, Defendant waived his
right to directly appeal and to collaterally attack his
conviction or sentence, with certain exceptions.
(Id. at 5.) The relevant provision of the Agreement
8. In exchange for the undertakings made by the government in
entering this agreement, the defendant voluntarily and
expressly waives all rights to appeal or collaterally attack
the defendant's conviction, sentence, or any other matter
relating to this prosecution, whether such right to appeal or
collateral attack arises under 18 U.S.C. § 3742, 28
U.S.C. § 1291, 18 U.S.C. § 2255, or any other
provision of law. This waiver is not intended to bar the
assertion of constitutional claims that the relevant case law
holds cannot be waived.
a. Notwithstanding the waiver provision above, if the
government appeals from the sentence, then the defendant may
file a direct appeal of his sentence.
b. If the government does not appeal, then notwithstanding
the waiver provision set forth in this paragraph, the
defendant may file a direct appeal but may raise only claims
(1) the defendant's sentence on any count of his
conviction exceeds the statutory maximum for that count set
forth in paragraph 3 above;
(2) the sentencing judge erroneously departed upward pursuant
to the Sentencing Guidelines;
(3) the sentencing judge, exercising the Court's
discretion pursuant to United States v. Booker, 543
U.S. 220 (2005), imposed an unreasonable sentence above the
final Sentencing Guideline range determined by the Court;
and/or (4) The district court decided adversely to the
defendant the following issue: The defendant's motion to
suppress the search of defendant's home and computer and
the statements made by the defendant at the time he was
interviewed by agents from the Federal Bureau of
If the defendant does appeal pursuant to this paragraph, no
issue may be presented by the defendant on appeal other than
those described in this paragraph.
(Id. at 5-6.)
August 1, 2013, Defendant was sentenced to 126 months'
imprisonment. (Doc. No. 60 at 3.) On April 23, 2014,
following Defendant's timely Notice of Appeal, the Third
Circuit affirmed Defendant's conviction and sentence.
(Doc. No. 68.) On July 7, 2014, Defendant filed a pro
se Motion to Vacate, Set Aside, or Correct His Sentence
Pursuant to 28 U.S.C. § 2255 (Doc. No. 69.) In his
Motion, Defendant raised the following two constitutional
claims: (1) the Government violated Brady v.
Maryland, 373 U.S. 83 (1963), because it failed to
disclose exculpatory evidence, including a lab report titled
“James Morgan; Innocent Images”; and (2) his
counsel was ineffective for failing to argue on appeal that
Defendant's conduct did not constitute “sexual
activity” within the meaning of 18 U.S.C. §
2422(b). (Id.) On July 25, 2014, the
Government filed a Motion to Dismiss Defendant's Motion.
(Doc. No. 71.)
August 22, 2014, the Court issued an Opinion and Order
granting the Government's Motion to Dismiss because the
appellate waiver provision in Defendant's Guilty Plea
Agreement precluded him from raising the claims in his Motion
for the following two reasons: (1) Defendant knowingly and
voluntarily entered into the Plea Agreement and the appellate
waiver provision; and (2) enforcing the waiver provision
against the two claims would not result in a miscarriage of
justice. (Doc. No. 73.) During the guilty plea colloquy, the
Court carefully reviewed each provision of the Agreement with
Defendant and “ensured that [Defendant] was competent,
that the plea agreement had been thoroughly explained to him,
and that [Defendant] had a full opportunity to discuss the
agreement with his lawyer and make an informed
decision.” (Id. at 10.) The relevant exchange
was as follows:
Court: Mr. Morgan, I want to go over the plea agreement with
you. I'm not going to read every word of it, but I just
want to make sure that you understand the essential terms.
And the first thing I'm going to ask you to do is turn to
page 7, and that's a signature page. Do you see it?
Court: Is that your signature on there?
Morgan: Yes, it is.
Court: All right. Now, did you voluntarily sign the plea
Court: Did you read it before you signed it?
Court: Did you discuss the plea agreement thoroughly with