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United States v. Morgan

United States District Court, E.D. Pennsylvania

July 27, 2018

UNITED STATES OF AMERICA,
v.
JAMES A. MORGAN, Defendant.

          OPINION

          Slomsky, J.

         I. INTRODUCTION

         Before 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.

         II. BACKGROUND

         On 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 states:

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 that:
(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 Investigations.
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.)

         On 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).[1] (Id.) On July 25, 2014, the Government filed a Motion to Dismiss Defendant's Motion. (Doc. No. 71.)

         On 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?
Morgan: Yes.
Court: Is that your signature on there?
Morgan: Yes, it is.
Court: All right. Now, did you voluntarily sign the plea agreement?
Morgan: Yes.
Court: Did you read it before you signed it?
Morgan: Yes.
Court: Did you discuss the plea agreement thoroughly with ...

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