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United States v. Hilts

United States District Court, W.D. Pennsylvania

December 18, 2019



          Donetta W. Ambrose Senior Judge.


         On June 18, 2014, a jury convicted Defendant of four counts, of coercion and enticement, travel with intent to engage in illicit sexual conduct, transportation of child pornography, and possession of child pornography, in violation of 18 U.S.C. §§ 2422(b), 2423(b), 2252(a)(1), and 2252(a)(4)(B). On December 10, 2014, Defendant was sentenced to a total term of imprisonment of 324 months, followed by a life term of supervised release. In a non-precedential Opinion filed December 3, 2015 (“Ct. App. Opinion”), a panel of the Court of Appeals for the Third Circuit affirmed his conviction and sentence. On December 7, 2015, Defendant filed a Motion to Vacate pursuant to 28 U.S.C. § 2255, arguing various instances of ineffective assistance of counsel. That Motion was assigned to civil docket No. 16-1826. The Court issued notice pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999). Defendant responded with a formal notice stating his intention to proceed with his Motion as filed. Then, on November 7, 2017, following several extensions of time, Defendant filed another lengthy Motion to Vacate. That Motion was assigned to civil docket No. 17-1453.

         By Opinion and Order dated April 26, 2018 (“April 26 Order), after Defendants' Motions had been fully briefed, the Court denied both Motions. Defendant filed a “motion for clarification” with the Court of Appeals, which the Court of Appeals construed as a request for a certificate of appealability of this Court's April 26 Order. By Order dated November 21, 2018, The Court of Appeals denied Defendant's request, finding as follows:

[R]easonable jurists would not debate the District Court's conclusion that Appellant's claims raised in his “first 2255 motion, ” including his claims of ineffective assistance of counsel, are meritless….[J]urists of reason would not debate that the claims in [Defendant's Motion filed at 17-1453] were either time-barred…or failed to state a valid claim for the denial of a constitutional right. Before the Court is Defendant's Motion pursuant to Fed.R.Civ.P. 60(b)(6).

         For the following reasons, Defendant's Motion will be denied.



         First, I will consider whether Defendant's Motion is a “true” Rule 60 motion, or instead a “disguised” second or successive Section 2255 petition. Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). If it qualifies as the latter, the request for relief is subject to 28 U.S.C. § 2255(h), which requires certification from the Court of Appeals. A Rule 60(b) Motion in this context is not a "true" Rule 60 motion if the movant is "'seek[ing] vindication of' or 'advanc[ing]' a claim by taking steps that lead inexorably to a merits-based attack on the prior dismissal of his habeas petition.'" Taylor v. Wetzel, No. 4-553, 2014 U.S. Dist. LEXIS 146782, at **17-18 (M.D. Pa. Oct. 15, 2014) (quoting Post v. Bradshaw, 422 F.3d 419, 424-25 (6th Cir. 2005)).

         As our Court of Appeals has stated:

[I]n those instances in which the factual predicate of a petitioner's Rule 60(b) motion attacks the manner in which the earlier habeas judgment was procured and not the underlying conviction, the Rule 60(b) motion may be adjudicated on the merits. However, when the Rule 60(b) motion seeks to collaterally attack the petitioner's underlying conviction, the motion should be treated as a successive habeas petition.

Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004).

         In the present case, Defendant's Motion is based on his assertion that counsel was ineffective because “he failed to read the charging statute to discover if it criminalized the alleged conduct that Mr. Hilts was accused of.” In terms of this alleged error, Defendant asserts that he “was then deprived of an opportunity to raise this plain error in direct appeal because it was caused by counsel error, ” because of the “Lower Court's belief that the Massaro holding forbids the raising of an ineffective assistance of counsel claim in direct appeal.” He also indicates that because he did not have counsel to assist him in bringing his ineffective assistance claim in his initial Section 2255 Motion, he was deprived of a meaningful opportunity to raise his present claim.

         Although Defendant couches his claim in terms that superficially implicate the Section 2255 process, he does not attack a defect in the proceeding. There is no absolute constitutional right to counsel in a Section 2255 proceeding. Donna v. United States, No. 10-1607, 2011 U.S. Dist. LEXIS 9142, at *24 (D.N.J. Jan. 31, 2011). Defendant also suggests that courts have ignored the principle that some ineffective assistance claims may be raised on direct review, as enunciated in Massaro v. United States,538 U.S. 500 (2003). This, he asserts, somehow prevented him from raising his present claim. It is true, however, that “[w]ith respect to allegations of ineffective assistance of counsel, such arguments are properly raised under § 2255 rather than on direct appeal.” United States ...

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