United States District Court, W.D. Pennsylvania
BARRY FISCHER SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on a Motion under 28 U.S.C. §
2255 to Vacate, Set Aside or Correct Sentence (“§
2255 Motion”) filed by pro se Defendant
Clinton Robinson (“Defendant”) (Docket No. 448),
which is opposed by the Government. (Docket No. 483).
Defendant claims that his counsel was ineffective because he
inaccurately predicted Defendant's criminal history
category and seeks to vacate his sentence of 96 months'
incarceration for his controlled substance offense
convictions. For the following reasons, Defendant's
ineffectiveness claim lacks merit and will be denied.
However, Defendant's broad statement that his counsel
allegedly did not inquire with him about an appeal lacks
clarity, and he will be given leave to file an amended motion
on that issue only, if he believes such course is
Background and Procedural History
August 30, 2016, Defendant was charged at Count One of the
Indictment in this case with conspiracy to distribute and
possess with intent to distribute one kilogram or more of
heroin, contrary to the provisions of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(A)(i), in violation of 21 U.S.C.
§ 846, and at Count Two with attempt to distribute and
possess with intent to distribute 100 grams or more of
heroin, contrary to the provisions of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(B)(i), in violation of 21 U.S.C.
§ 846 (Docket No. 1). Defendant initially was
represented by Assistant Federal Public Defender Linda Cohn;
however, Ms. Cohn withdrew as counsel when Attorney Michael
J. DeRiso entered his appearance as Defendant's retained
counsel on December 14, 2016. (Docket No. 106). Attorney
DeRiso represented Defendant throughout the pendency of the
proceedings before this Court.
22, 2017, the Court conducted a change of plea hearing in
Defendant's case. Based on Defendant's responses to
the Court's inquiries, the Court found that he was
competent to participate in the hearing and to plead guilty
if that was his intent. (Docket No. 482 at 6). Among other
matters, the Court and the parties examined the terms of
their Rule 11(c)(1)(C) plea agreement. Pursuant to that
agreement, Defendant would plead guilty to a lesser included
offense at Count One of the Indictment, that is, conspiracy
to distribute and possess with intent to distribute 100 grams
or more of heroin, and to Count Two, and the parties
stipulated that Defendant was responsible for more than 700
grams but less than one kilogram of heroin. (Docket No.
483-1, ¶¶ A.1; C.2). In addition, the Government
agreed not to file an Information pursuant to 21 U.S.C.
§ 851, stating a prior conviction as a basis for
increased punishment, and Defendant agreed to waive his right
to take a direct appeal from his conviction or sentence,
except under certain limited circumstances. (Id.
¶¶ A.8, B.3). The plea agreement also specified
that Defendant was subject to a statutory penalty of not less
than five (5) years and not more than forty (40) years'
imprisonment at each of the lesser included offense at Count
One and Count Two. (Id. ¶ C.1). Finally,
pursuant to Rule 11(c)(1)(C), the parties stipulated and
agreed that the appropriate sentence was 96 months'
imprisonment, a four-year term of supervised release, a fine,
if any, in an amount to be determined by the Court and a
special assessment of $200. (Id. ¶ C.3).
the extensive change of plea colloquy, the Court determined
that Defendant understood the nature of the charges against
him, all of the elements of the offenses to which he was
pleading guilty and the potential statutory penalties he was
subject to for such violations,  the constitutional and
statutory rights he was waiving by entering guilty pleas, and
all of the terms and conditions of the plea agreement.
(Docket No. 482 at 10-26, 28-29, 37-38). Defendant further
assured the Court that he understood that the sentencing
guidelines are only advisory and that the Court could impose
a sentence outside of the advisory guidelines range but
within the applicable statutory minimum and/or maximum
penalties. (Id. at 31). Defendant also confirmed
that he understood the Court was not bound by any sentencing
recommendation that his counsel or anyone else may have
suggested to him and that the Court could sentence him up to
the maximum sentence permitted by statute. (Id. at
36-37). He acknowledged that no one had promised him what his
actual sentence would be, forced him to plead guilty, or made
any promises to him outside of the terms and conditions set
forth in the plea agreement. (Id. at 45-47). During
the hearing, Defendant twice asserted under oath that he was
satisfied with Attorney DeRiso's representation.
(Id. at 6, 47). Ultimately, the Court accepted
Defendant's pleas and entered a judgment of guilty as to
the lesser included offense at Count One of the Indictment
and Count Two. (Id. at 49).
Court held a sentencing hearing on February 9,
2018. The Court confirmed with Defendant that he
read the Presentence Investigation Report (“PIR”)
issued by the Probation Office, the Addendum thereto and the
Court's Tentative Findings and Rulings, he reviewed those
documents with Attorney DeRiso, who answered any questions
Defendant had concerning them, and he did not have any
questions for the Court about those documents. The Court
noted that the PIR and the Tentative Findings indicated that
Defendant had a total offense level of 25 and a criminal
history category of II, which provided for an advisory
guidelines range of 63 to 78 months' imprisonment.
(Docket Nos. 208, 213). However, the Court also noted that
the parties stipulated in the plea agreement that the
appropriate sentence in Defendant's case was 96
months' imprisonment and four (4) years' supervised
DeRiso correctly observed at the sentencing hearing that
Defendant's guilty plea to a lesser include offense at
Count One of the Indictment reduced the mandatory minimum
term of imprisonment from ten (10) years to five (5) years.
As Attorney DeRiso noted, Defendant would have faced a
ten-year mandatory term of imprisonment if the Government had
filed an Information pursuant to 21 U.S.C. § 851, but it
did not do so in accordance with the plea
agreement. Attorney DeRiso explained that background
provided the basis for the stipulated sentence of 96
months' imprisonment, which both parties asked the Court
to accept. Defendant did not raise any questions or concerns
about the stipulated sentence at any point during the
hearing, nor did he express any dissatisfaction with Attorney
DeRiso's representation. He did, however, make a
statement in which he apologized to the Court and his family
and friends for his conduct and accepted responsibility for
consideration of the facts and circumstances of
Defendant's case, the parties' positions and
Defendant's statement, the Court accepted the
parties' Rule 11(c)(1)(C) plea agreement. The Court
recognized that the agreed-upon sentence of 96 months'
imprisonment represented a variance above the advisory
guidelines range of 63 to 78 months' imprisonment, but
explained that such sentence was warranted because of
Defendant's role in the serious heroin trafficking
offenses and other relevant factors under 18 U.S.C. §
3553(a). Further, the Court explained that
Defendant avoided much more significant penalties by entering
into the Rule 11(c)(1)(C) plea agreement. As it were,
Defendant was subject to a statutory mandatory minimum term
of five (5) years and up to forty (40) years'
imprisonment. But for the plea agreement, the Government
could have filed an Information pursuant to 21 U.S.C. §
851, thereby subjecting Defendant to a mandatory minimum term
of ten (10) years and up to life imprisonment. The higher
mandatory term of ten (10) years and up to life imprisonment
also would have applied if the parties had not reached the
agreement permitting Defendant to plead guilty to the lesser
included offense at Count One of the Indictment. In that
event, if the Government had filed a § 851 Information,
Defendant would have faced a mandatory term of twenty (20)
years and up to life imprisonment under the law as it existed
at that time. In view of the parties' agreement and other
relevant § 3553(a) factors the Court addressed, the
Court sentenced Defendant to 96 months' imprisonment in
accordance with the Rule 11(c)(1)(C) plea agreement.
conclusion of the sentencing hearing, the Court advised
Defendant of his appellate rights, including the fact that a
notice of appeal must be filed within 14 days after the entry
of judgment. Defendant did not file a direct appeal of his
conviction or sentence.
February 8, 2019, Defendant filed the § 2255 Motion
arguing that Attorney DeRiso was ineffective in representing
him because he incorrectly predicted that Defendant's
criminal history category would be III or IV, but the PIR
subsequently revealed that it was category II. (Docket No.
448, ¶¶ 16, 17). Defendant now claims that Attorney
DeRiso's prediction was “pivotal” in his
decision to plead guilty pursuant to the Rule 11(c)(1)(C)
plea agreement, and he suggests that he would not have
assented to the agreement if Attorney DeRiso had provided an
accurate prediction. (Id. ¶¶ 16-19).
February 11, 2019, 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. 450 at 1-2). The order specified that Defendant
was required to notify the Court in writing of his choice
within 30 days of the date of the order. (Id. at 2).
If Defendant did not respond within that time, the Court
would proceed to decide the § 2255 Motion as filed.
did not respond to the Court's Miller notice;
thus, the Government was ordered to respond to
Defendant's § 2255 motion. After obtaining an
extension of time, the Government filed its response on May
23, 2019, arguing that Defendant is not entitled to §