Opinion
2:16cr4-8 2:19cv293
03-28-2022
UNITED STATES OF AMERICA v. JAMAL EDDINGS
OPINION
DAVID STEWART CERCONE, SENIOR UNITED STATES DISTRICT JUDGE.
Electronic Filing
Movant Jamal Eddings ("Eddings" or "petitioner"), commenced this action by filing a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. The government opposes the motion and has filed a brief in opposition thereto. For the reasons set forth below, the motion will be denied.
Eddings received by any accurate assessment what can only be perceived as a very favorable plea agreement and reasonable sentence under the law that existed at the time he pled and was sentenced. Notwithstanding this result, he now seeks relief pursuant to § 2255, advancing the following purported grounds for relief: counsel's ineffectiveness for 1) not challenging the Presentence Investigation Report's use of his 2001 conviction in applying the career offender enhancement pursuant to U.S.S.G. §4B1.1, 2) failing to deliver on a pre-plea promise to obtain a 1-to-5 year sentence that assertedly was based on a pre-plea conference with the prosecutor and this member of the court; 3) failing to file a notice of appeal after being requested to do so by petitioner; and 4) failing to challenge his prior conviction for violation of 21 U.S.C. § 846 as a predicate offense triggering the application of the career offender provisions. Petitioner subsequently has raised a further challenge: his offense of conviction under 21 U.S.C. § 846 no longer qualifies as a triggering controlled substance offense under the guidelines in general and the career offender provisions in particular - as recognized by United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (en banc). See Petitioner's Motion to Amend (Doc. No. 872).
The government opposes the motion. It contends that petitioner's claims are not cognizable on collateral review and are procedurally defaulted in any event. As to petitioner's claims of ineffective assistance of counsel, the government asserts 1) petitioner cannot show prejudice because a) his prior predicate offenses properly were utilized by the Probation Office in identifying petitioner as a career offender, b) the instant offense was a controlled substance offense as defined by the guidelines and c) petitioner cannot show that but for counsel's errors, a different outcome would have been obtained; 2) petitioner's contention that he was prejudiced by the failure of counsel to deliver on an undisclosed promise of receiving a lower sentence sufficiently is undermined by petitioner's knowing, voluntary and informed entry of a guilty plea; and 3) petitioner's assertion that he directed counsel to file an appeal is a bald and conclusory allegation that lacks any evidentiary support and thus fails to provide a basis for further proceedings.
Petitioner entered a plea of guilty pursuant to the plea agreement petitioner negotiated with the government. As part of the agreement, petitioner received the benefit of a stipulated drug quantity that related only to his personal involvement in the conspiracy, as opposed to calculations based on accomplice attribution. In this regard defense counsel secured a stipulation to a drug quantity of 100 to 200 grams of cocaine, as opposed to the total amount of narcotics attributable to the entire conspiracy. See Doc. No. 679-1 at 3 (Section C, paragraph 2). In addition, counsel obtained a stipulation that the government would not file an information pursuant to 21 U.S.C. § 851, seeking enhanced penalties based on petitioner's prior conviction for a controlled substance offense. This kept the statutory maximum penalty for the offense of conviction at the lower level, and, consequently, kept his initial career offender offense level at 32 instead of 34. This decreased the corresponding guideline range from the potential of 188 to 235 to 151 to 188 months. Petitioner further reaped the benefit of a three-level reduction for timely acceptance of responsibility.
As part of the plea agreement, petitioner waived any right to pursue a collateral attack of his conviction, save a claim that petitioner was deprived of the assistance of counsel as secured by the Sixth Amendment. But as highlighted throughout the government's responsive brief, the record clearly demonstrates that petitioner's claims of ineffective assistance of counsel amount to nothing more than vague assertions and conclusory statements. The record likewise overwhelmingly supports an assessment that counsel was quite effective (given the prevailing jurisprudence) in any event. It follows that petitioner's claims to the contrary must be denied as meritless.
A § 2255 motion may be disposed of summarily where the motion fails to set forth a basis upon which relief can be granted or where the factual allegations advanced in support of the motion are vague, conclusory or patently frivolous. See Rule No. 4 of the Rules Governing § 2255 Proceedings; Blackledge v. Allison, 431 U.S. 63 (1977); Page v. United States, 462 F.2d 932, 933 (3d Cir. 1972) (where the record affirmatively indicates that a claim for relief is without merit, it may be decided summarily without a hearing). In Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985), the United States Court of Appeals for the Third Circuit stated:
A Section 2255 motion is addressed to the discretion of the trial judge in the first instance and where the record affirmatively indicates the claim for relief is without merit, the refusal to hold a hearing will not be deemed an abuse of discretion.Id.; accord United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000). Other courts have reached the same conclusion. See Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982) (proper for district court to dismiss portion of § 2255 petition without evidentiary hearing where allegations conclusively failed to state a claim for relief); United States v. Oliver, 865 F.2d 600, 604 (4th Cir.), cert. denied, 493 U.S. 830 (1989) (district court may dismiss § 2255 petition pursuant to Rule 4(b) where record conclusively demonstrates that movant is not entitled to relief as a matter of law); Mathews v. United States, 11 F.3d 583, 584-86 (6th Cir. 1993) (where § 2255 petition raises no factual disputes and bases for relief are without merit, district court need not hold an evidentiary hearing and may dismiss the motion summarily).
It is well settled that the first question to be resolved in assessing a § 2255 motion is whether the movant has alleged “an error sufficiently fundamental to come within the narrow limits of § 2255 [thus] making the conviction vulnerable to attack, ” United States v. Biberfeld, 957 F.2d 98, 102 (3d Cir. 1992) (citing Napue v. Illinois, 360 U.S. 264, 269 (1959)), and that non-fundamental errors which are not raised on direct appeal where there was an opportunity to do so are waived. United States v. Essig, 10 F.3d 968, 976-77 & n.25 (3d Cir. 1993; Grant v. United States, 72 F.3d 503, 505-06 (6th Cir.), cert. denied, 517 U.S. 1200 (1996) (claims which do not amount to serous defects meriting relief outside the normal appellate process are waived). “Habeas corpus has long been available to attack convictions and sentences entered . . . without jurisdiction [and more recently has been] expanded to encompass claims of constitutional error as well.” United States v. Addonizio, 422 U.S. 178, 185 (1979). In addition to presenting a claim falling within these limited substantive areas, significant procedural restrictions have been imposed in conjunction with claims for collateral relief that were not raised on direct appeal. Bousley v. United States, 523 U.S. 614, 621-22 (1998). As to alleged errors which are “based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) ‘cause' excusing his procedural default, and (2) ‘actual prejudice' resulting from the errors of which he complains.” United States v. Frady, 456 U.S. 152, 167-68 (1982).
Where review of a conviction or sentence is sought based only on an error of law, “the scope of collateral attack has remained far more limited.” Stone v. Powell, 428 U.S. 465, 477 & n.10 (1976); see also Reed v. Farley, 512 U.S. 339, 354 (1994) (citing Davis v. United States, 417 U.S. 333, 346 (1974) and Hill v. United States, 368 U.S. 424, 428 (1962)). In such circumstances ‘habeas review is available to check violations of federal laws when the error qualifies as ‘a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure.'” Reed, 512 U.S. at 348 (quoting Hill, 368 U.S. at 428); United States v. Essig, 10 F.3d 968, 977 n.25 (3d Cir. 1993); see also Coleman v. Thompson, 501 U.S. 722, 750 (1991); Grant v. United States, 72 F.3d 503, 505-06 (6th Cir. 1996) (“nonconstitutional claims not raised at trial or on direct appeal are waived for collateral review except where the errors amount to something akin to a denial of due process”).
The United States Court of Appeals for the Third Circuit recently considered whether a defendant's incorrect designation as a career offender under United States Sentencing Guidelines falls within the narrow scope of relief available for errors of law under § 2255. In United States v. Folk, 954 F.3d 597 (3d Cir. 2020), the court followed the general consensus of the other courts of appeals and held that an incorrect career-offender enhancement under the advisory guidelines is not cognizable under § 2255 because it is neither a procedural error that qualifies as “an omission inconsistent with the rudimentary demands of fair procedure” nor "a fundamental defect that inherently results in a complete miscarriage of justice." Id. at 604.
Folk advanced four principles in support of its holding. First, the challenged sentence was lawful because it was within the statutory maximum prescribed by Congress. Id. at 604-5 ("Even when based on an incorrect advisory career-offender enhancement, a sentence within the statutory maximum is lawful" and "a lawful sentence is not a complete miscarriage of justice."). Second, the guidelines were advisory when the defendant was sentenced and the erroneous designation therefore was only one of a number of factors the district court considered in arriving at an appropriate sentence within the statutory range. Id. at 605-6. Third, habeas corpus jurisprudence has always balanced the interests of the potential for an unjust sentence due to mistaken determinations in the sentencing process and the long-standing interest in finality. Given the non-binding nature of the guidelines and the district court's discretion in sentencing, permitting relief based on a guidelines error would inappropriately undermine the principles of finality. Finally, an attempt to fashion manageable principles to distinguish between all the varying forms of error that could occur under the guideline has the potential to reduce § 2255 to "a boundless opportunity" for defendants to rechallenge their sentences and thus would quickly deteriorate into an unmanageable situation. Id. at 606.
Folk precludes petitioner's ability to obtain relief, at least directly, on his claims that his predicate offenses and/or his offense of conviction were insufficient to trigger a career offender designation. Consequently, the bases underlying his first and fourth grounds for relief cannot be remedied through the instant motion.
Moreover, even assuming for the sake of argument that the court could and should somehow reach the merits of petitioner's claim that he was erroneously designated as a career offender, his contentions are without merit. First, petitioner conveniently overlooks that fact that he pled guilty to a three count information in 2000 before the Court of Common Pleas of Fayette County - as reflected in paragraph 27 of the Presentence Investigation Report ("PSIR"). Count two reflected a charge of unlawful restraint and that count clearly qualified as a crime of violence under the elements clause in the definition of a crime of violence. See also Gov. Response (Doc. No. 830-2).
Similarly, defendant's conviction in the United States District Court for the District of West Virginia reflected at paragraph 28 of the PSIR was for a violation of 21 U.S.C. § 841(a) and 841(b)(1)(C), and not for conspiracy pursuant to 21 U.S.C. § 846. As such, it unquestionably qualified as a controlled substance offense. See also Gov. Response (Doc. No. 830-2).
Finally, defendant's plea of guilty to the instant conspiracy was a plea to a controlled substance offense as that term was defined by United States v. Hightower, 25 F.3d 182 (3d Cir. 1994), which was controlling authority at the time petitioner was sentenced. Thus, at the time petitioner was sentenced he had the two qualifying predicate offenses consisting of either a crime of violence or a controlled substance offense within the meaning of U.S.S.G. § 4B1.1. And he correctly had been designated a career offender because his offense of conviction was a controlled substance offense as interpreted by the controlling case in the United States Court of Appeals for the Third Circuit. Consequently, there was nothing illegal or improper about petitioner's guidelines calculations at the time petitioner was sentenced and therefore petitioner has failed to even identify an error that occurred at sentencing, let alone one that would qualify for review under the limited scope of relief available through § 2255.
Petitioner's efforts to obtain relief pursuant to an ineffective assistant of counsel theory equally are meritless. As an initial matter, petitioner asserts that counsel told him that if he entered a guilty plea, this member of the court would only impose a "1-5 year sentence" and directed him to deny that any such promise had been made when questioned by the court because any other answer would preclude the court from accepting his change of plea. And he further asserts that all of this was conveyed with the understanding that defense counsel had engaged in a clandestine meeting with government counsel and this member of the court where the "1 to 5" year sentence was discussed and agreed upon as an acceptable resolution.
It is well settled that a judge may rely on personal knowledge or recollection of events that occurred in his or her presence in assessing the allegations of a motion to vacate sentence. See Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1077 (3rd Cir.1985) (“Moreover, it was appropriate for the trial judge to draw upon his personal knowledge and recollection in considering the factual allegations in the Nicholas' section 2255 petition that related to events that occurred in his presence.”); accord United States v. Best, 831 Fed.Appx. 610, 612 (3d Cir. Oct. 16, 2020) (a trial judge may draw in his personal knowledge of the events in the case in ferreting out the factual allegations of the motion that are groundless); United States v. Donahue, 792 Fed.Appx. 165, 167 (3d Cir. Nov. 1, 2019) (same). It follows a fortiori that asserted events involving the trial judge that he or she knows with certainty did not occur may be negated in the same fashion.
Here, it is beyond any doubt to this member of the court that the supposed meeting to discuss the "1 to 5" year sentence never occurred. Thus, this factual predicate of petitioner's motion cannot be given any credence in conducting the assessment at hand.
Moreover, petitioner cannot so easily discard the import of his testimony given under oath at the change of plea hearing. As recounted by the government, petitioner testified that he was satisfied with counsel's representation and understood the charges, the statutory maximum sentence the court could impose, the advisory nature of the guidelines, and the court's ultimate responsibility to make the determinations that would impact the guideline calculations based on information that was not yet available to the court. He also heard a summary of what the government's evidence would show if the matter proceeded to trial and admitted under oath that the factual basis was accurate as far as it pertained to his actual conduct. And he expressly verified that with the exception of the negotiations leading to the terms of the written plea agreement, no other promises or inducements had been made or offered to him in order to get him to change his plea. Similarly, he admitted that no one had made any threats or coerced or forced him into entering the guilty plea. In other words, as defendant stated under oath: he was entering the plea of guilty as a product of his own free will and as part of a voluntary and rational choice. Finally, defendant testified that he understood the impact of the appellate waiver in the agreement and was willing to accept it as part of the negotiated resolution of the charges against him.
“‘Solemn declarations in open court carry a strong presumption of verity.'” United States v. Schwartz, 403 Fed.Appx. 781, 784 (3d Cir. 2010) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)). And a thorough colloquy provides “substantial protection against later claims that the plea was the result of inadequate advice” as to those areas that were raised and sufficiently explored as part of the colloquy. Missouri v. Frye, 566 U.S. 134, 142 (2012); cf. United States v. Slane, Crim. No. 11-81, 2015 WL 728481, *20 (W.D. Pa. Feb. 19, 2015) (matters raised and covered by a defendant under oath in a thorough change of plea colloquy provide strong evidence of a defendant's knowing, voluntary and informed understanding of such matters and the verification that is produced by that process is not subject to displacement merely by offering up a self-serving, post-conviction assertion to the contrary).
Here, petitioner testified under oath that there were no other threats, promises or inducements that influenced his change of plea. His self-serving and bald proposition that there was such a promise at this juncture does not sufficiently displace his solemn declarations to the court or otherwise undermine them in a manner that warrants further proceedings on the issue. And his account of a promised "sentence" that was fashioned in the parlance of a sentence that would be given by a Court of Common Pleas as well as the purported discussion of this sentence in a clandestine meeting only further augment the support for this conclusion.
Petitioner's efforts to couch his claim of a promised sentence in the form of an ineffective assistance of counsel claim does not change the result. A two-part test is utilized to assess an ineffective counsel claim. See Strickland v. Washington, 466 U.S. 668 (1984). The first prong requires the petitioner to demonstrate that counsel's performance was deficient. This requirement is met where "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Flamer v. State of Delaware, 68 F.3d 710, 728 (3d Cir. 1995) (quoting Strickland, 466 U.S. at 687)). This prong requires proof that counsel's performance fell below an objective standard of reasonableness under the prevailing professional norms, which existed at the time. Id. The assessment begins with a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and the court's scrutiny of counsel's performance is to be highly deferential. Id. (citing Strickland, 466 U.S. at 689); see also Government of Virgin Islands v. Weatherwax, 77 F.3d 1425, 1431 (3d Cir. 1996). The assessment of counsel's performance must be made in light of all the circumstances and the ultimate objective of assuring vigorous advocacy of the petitioner's defense. Id. It also must be made without the "distorting effects of hindsight" and the petitioner has the burden of overcoming the strong presumption that counsel was effective. United States v. Kissick, 69 F.3d 1048, 1054 (10th Cir. 1995).
The second prong of the Strickland analysis requires a showing that counsel's ineffectiveness was prejudicial. Flamer, 68 F.3d at 728. This prong requires a petitioner to demonstrate that but for counsel's unprofessional errors, there is a reasonable probability that the result of the prosecution would have been different. In this context "[a] reasonable probability is one which is 'sufficient to undermine confidence in the outcome.'" Id. (quoting Strickland, 466 U.S. at 694). The assessment cannot be based upon generalities, but instead must be based upon a demonstration of how the "specific errors of counsel undermined the reliability of the [outcome]." Flamer, 68 F.3d at 729 (quoting United States v. Cronic, 466 U.S. 648, 659 n.26 (1984)). Where the alleged error is based upon a failure to make a reasonable investigation or the election to pursue one defense over another, a heavy measure of deference must be accorded to counsel's judgment. As long as there was a reasonable basis for counsel's strategic decision, counsel may not be found to be ineffective. See Weatherwax, 77 F.3d at 1432.
Petitioner has failed to advance a credible basis for proceeding with a claim that counsel's performance was deficient. As explained above, petitioner's assertion that counsel promised him a "1 to 5 year" sentence essentially is incredible on its face and sufficiently is undermined by petitioner's sworn testimony to the court. Thus, the record does not support even a colorable showing that counsel's performance somehow fell below the level of assistance mandated by the Sixth Amendment. Compare United States v. Fuentes, 2020 WL 4226473, *5-6 (E.D. Pa. July 23, 2020) (testimony to the court given pursuant to thorough change of plea colloquy sufficiently contradicted and thus undermined petitioner's post-conviction assertion that counsel forced him to plead guilty by refusing to take his case to trial) (citing Blackledge, 431 U.S. at 74 and collecting cases)
Moreover, petitioner's claim of a surreptitious promise of more leniency at sentencing fails under the second prong of the Strickland test. "Third Circuit precedent has made clear that 'misrepresentations' or 'erroneous predictions' of possible sentences or guideline ranges do not amount to prejudice and render a guilty plea involuntary or unknowing if the defendant had been informed by the Court of the maximum potential penalties for the convictions and of the Court's discretion to impose a sentence outside the advisory guidelines range." United States v. Hardy, 2013 WL 3830507, *11 (W.D. Pa. July 23, 2013) (citing United States v. Harris, 2013 WL 357236 *4, (W.D. Pa. Jan 29, 2013) (where the defendant admitted under oath that he knew the maximum sentence he faced, the court's retention of the ability to decide any guidelines issues, the advisory nature of the guidelines, and the inability to challenge his plea if he received a sentence different than his expectations, and he acknowledged that no other promises, threats or inducements had been made or offered, the assertion that counsel failed to advise the defendant of the career offender provision and its effects on the guidelines calculations did not supply a viable claim of prejudice regarding the potential sentence he would likely receive); United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007) (holding that defense counsel's estimates based upon a failure to consider potential enhancements or departures were “irrelevant” where the defendant signed a plea agreement and the court conducted a detailed colloquy advising the defendant of the maximum potential sentence and court's full discretion to levy the ultimate sentence); United States v. Jones, 336 F.3d 245, 254 (3d Cir. 2003) (no prejudice where the defendant was sentenced to a term greater than the range guaranteed by counsel because the district court engaged in an extensive colloquy which “clearly warned” the defendant of the maximum sentence and the defendant informed the court that no one had made any threat, promise or assurance to convince him to plead guilty); United States v. Mustafa, 238 F.3d 485, 492 (3d Cir. 2001) (any possible attorney error regarding a potential sentence was “dispelled when [the defendant] was informed in open court that there were no guarantees as to sentence, and that the court could sentence him to the statutory maximum”).
Here, petitioner was informed of and admitted under oath that he understood the maximum sentence he faced, the court's retention of the ability to decide any guidelines issues, the advisory nature of the guidelines, and the court's ability to vary or depart upward or downward from the guidelines range at sentencing, and he acknowledged that no other promises, threats or inducements had been made or offered. Against this backdrop, the assertion that counsel advised petitioner that he would receive a more favorable sentence simply could not have prejudiced petitioner.
Petitioner asserts that he instructed his counsel to file an appeal "after the sentencing proceeding" because he did not receive "the 1-to-5 year sentence," counsel stated that he would do so, and petitioner has been prejudiced by counsel's failure to effectuate this directive. Petitioner's Brief (Doc. No. 805) at 10. Petitioner does not advance any other specifics or nuanced details to support these assertions.
It has long been settled "that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (U.S. 2000) (citing Rodriquez v. United States, 395 U.S. 327, 89 (1969)). “This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice. Counsel's failure to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant's wishes.” Id. “[W]hen counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal.” Flores-Ortega, 528 U.S. at 484.
“[T]he presumption of prejudice recognized in Flores-Ortega applies regardless of whether the defendant has signed an appeal waiver.” Garza v. Idaho, 139 S.Ct. 738, 742 (2019); United States v. Lawbaugh, Crim. No. 1:16-CR-049, 2020 WL 954017, at *8 (M.D. Pa. Feb. 27, 2020) (granting defendant a renewed appellate deadline after finding that counsel should have inferred that the defendant wanted to appeal his sentence). “If the client explicitly instructs counsel to file an appeal, [he or she] must do so.” Lawbaugh, 2020 WL 954017, at *7 (citing United States v. Persaud, No. 1:15-cr-236, 2017 WL 6405866, at *3 (M.D. Pa. Dec. 15, 2017)). “If the client does not explicitly request the filing of an appeal, however, the court must ‘conduct a circumstance specific reasonableness inquiry.'” Id. (quoting Persaud, 2017 WL 6405866, at *3). “[W]hen counsel fails to file a requested appeal, a defendant is entitled to [a new] appeal without showing that his appeal would likely have had merit.” Peguero v. United States, 526 U.S. 23, 28 (1999).
The question raised is whether petitioner's generalized assertions concerning his directing counsel to file an appeal warrant further proceedings. Under the statute, an evidentiary hearing is required “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also, United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005). As the Third Circuit recently clarified, “[t]his involves a two-pronged inquiry.” United States v. Arrington, 13 F.4th 331, 334 (3d Cir. 2021). “First, the district court ‘must consider as true all appellant's nonfrivolous factual claims.'” Id. (quoting United States v. Dawson, 857 F.2d 923, 927 (3d Cir. 1988)). “Second, it ‘must determine whether, on the existing record, those claims that are nonfrivolous conclusively fail to show'” any entitlement to relief. Id.
In the context of ineffective assistance claims, “[i]f a nonfrivolous claim clearly fails to demonstrate either deficiency of counsel's performance or prejudice to the defendant, then the claim does not merit a hearing.” Arrington, 13 F.4th at 334 (citing Dawson, 857 F.2d at 928). “If, on the other hand, a claim, when taken as true and evaluated in light of the existing record, states a colorable claim for relief under Strickland, then further factual development in the form of a hearing is required.” Id. In other words, “if a nonfrivolous claim does not conclusively fail either prong of the Strickland test, then a hearing must be held.” Id. (emphasis in original). This sets a “reasonably low threshold for habeas petitioners to meet.” Id. (quoting United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005) (citation omitted). And a reviewing court is to be mindful that the concept of “colorable legal merit is distinct from actual merit.” Id. (quoting United States v. Begin, 696 F.3d 405, 413 (3d Cir. 2012)).
Bald assertions do not provide sufficient grounds to require an evidentiary hearing on a § 2255 motion. United States v. Donahue, 792 F. App'x. 165, 168 (3d Cir. 2019); Palmer v. Hendricks, 592 F.3d 386, 395 (3d Cir. 2010). Nor is the court required to accept or further investigate “vague and conclusory allegations.” United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000). In other words, where the motion, files and records conclusively show that the movant is not entitled to relief, courts maintain the discretion to summarily dismiss a § 2255 motion. United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994).
When examined within the context of the record, it is readily apparent that petitioner has made nothing more than a bald and conclusory assertion that he directed counsel to file an appeal. First, in order to warrant a hearing pursuant to the contention that counsel was ineffective under Flores-Ortega, petitioner must provide a colorable showing that he told counsel of his desire to appeal within the time for filing an appeal under Federal Rule of Appellate Procedure 4(b)(1), which is fourteen days from the date of the judgment order of conviction and sentence. Fed. App. R. 4(b)(1). Counsel had to have been aware of a desire by petitioner to consult about an appeal within that timeframe before a duty would have arisen to consult with petitioner and, if so directed, file an appeal. See United States v. Clancy, 2021 WL 6037583, *5-6 (W.D. Pa. Dec. 21, 2021) (before the performance prong under Strickland can be satisfied in a failure to appeal claim, the record must provide either credible evidence that counsel was aware of a defendant's desire to appeal or the record must contain grounds which make it reasonable to think that a rational defendant would want to appeal or that the particular defendant was interested in appealing) (citing Solis v. United States, 252 F.3d 289, 293 (3d Cir. 2001)).
The proceedings at sentencing and the record thereafter do not give rise to any basis to support the proposition that petitioner requested counsel to file an appeal or wanted counsel to consult with him about taking an appeal. Petitioner was sentenced on April 19, 2018. At the end of that hearing he was advised of his appellate rights and told that notwithstanding the appellate waiver, if he desired to appeal, he could notify the Clerk of Court and the Clerk would file a notice on his behalf. The court emphasized that if he wanted to have such a notice filed on his behalf, he had to make his desire known to the Clerk within fourteen days. The judgment order was entered on the docket on April 25, 2018, and by technical application he had fourteen days from that date to notify the Clerk and thereby gain the benefit of having a notice of appeal filed by the Clerk.
In addition, at the conclusion of the sentencing hearing defendant was permitted to self-report for service of sentence. His report date was June 29, 2018. Thus, petitioner did not face any obstacle in notifying the court or the Clerk of any desire to take an appeal.
Notwithstanding petitioner being advised of his right to appeal in open court and having an unrestricted ability to notify the Clerk or the court of any desire to take an appeal, petitioner never communicated any such desire at any time prior to the close of the fourteen day window or within any reasonable period of time thereafter. The inference is raised that petitioner did not express any desire to file or explore an appeal during that timeframe.
Other aspects of the record further corroborate this inference. At the time of sentencing, petitioner was designated a career offender under the controlling precedent. His prior predicate offenses satisfied § 4B1.1 and his offense of conviction was a triggering offense under controlling Third Circuit precedent. His guidelines sentencing range was 151 to 188 months. The court made a significant variance from that range and sentenced him to 120 months. It also permitted him to self-report. Petitioner also had agreed to an appellate waiver as part of his plea agreement, leaving virtually no meaningful grounds upon which to appeal. Given that the degree of relief obtained by counsel at sentencing was meaningful and there was an appellate waiver that greatly diminished the ability to appeal, the record at that juncture provided no reason to believe that a rational defendant would want to appeal or that defendant himself might at that juncture have such a desire.
Moreover, petitioner did not raise a desire to appeal or the loss of any such opportunity when he filed a pro se motion on May 4, 2018, seeking a new trial. The motion was predicated on the assertion that an § 851 notice had been filed and petitioner was thus subject to a 120 month mandatory minimum sentence. See Petitioner's Motion for New Trial (Doc. 752). This motion also was based on the erroneous assumption that petitioner could somehow benefit from an application of the Supreme Court's decision in United States v. Mathis, -- U.S. --, 136 S.Ct. 2243 (2016). That motion promptly was denied on May 16, 2016. See Doc. No. 760. Nowhere in the motion was there any indication or statement that petitioner had appealed or unsuccessfully attempted to appeal his recent judgment and sentence. The lack of such an assertion at that time is strong circumstantial evidence that petitioner did not instruct his counsel to take an appeal or even to further consult with him about taking an appeal. Compare United States v. Pridgen, 2019 WL 5537893, at *5-6 (W.D. Pa. Oct. 25, 2019) (denying defendant's § 2255 motion without a hearing because sentence was imposed pursuant to a Rule 11(c)(1)(C) plea agreement, defendant's assertions were vague and conclusory and the record of prior proceedings failed to supply any basis to support the propositions that 1) defendant had made the court or counsel aware that he had a desire to appeal or 2) there was reason for counsel to explore whether defendant might have a desire regarding the same).
Petitioner first raised his allegation that he instructed counsel to file an appeal in the instant motion to vacate, which was filed on May 18, 2019. Petitioner did not inquire about the status of any appeal prior to that date, nor did he provide any notice or complain to the court about the lack of an appeal. The length of time between the entry of the judgment order and the date on which the petitioner first asserted he had instructed counsel to file a notice of appeal significantly undermines the notion that there is any credible factual support for petitioner's claim.
The predicate for filing a notice of appeal also undercuts the assertion. Petitioner claims that he seeks to appeal (and thus sought an appeal) based on the clandestine meeting where a "1 to 5 year" sentence was discussed and the purported representations made by counsel regarding the same. Given that such a meeting never occurred and the reference to language used in imposing sentences in state court, any basis for presuming there is factual support for petitioner's assertion is further undercut.
It follows that petitioner's assertion that he instructed counsel to file an appeal, which is made without any context or detail, when viewed against petitioner's failure to raise the matter at an earlier date or even to allude to such a directive in his past submissions to the court - submissions that essentially raised the same subject as his instant motion: his career offender status, can only be viewed under the entirety of the record as a vague and conclusory assertion. Consequently, the court declines to conduct an evidentiary hearing on this aspect of the Strickland claim because a colorable showing that counsel failed to perform an undertaking in violation of the Sixth Amendment has not been presented.
Finally, petitioner's concomitant request for a certificate of appealability must be denied. "A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Where the district court has rejected a constitutional claim on its merits, to obtain a certificate "[t]he [movant ] must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). "[W]hen a district court denies a habeas petition on procedural grounds without reaching the merits of the underlying constitutional claim . . . a COA may issue only if the petitioner shows that: (1) 'jurists of reason would find it debatable whether the district court was correct in its procedural ruling;' and (2) 'jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.'" Pabon v. Superintendent, SCI-Mahanoy, 654 F.3d 385, 392 (3d Cir. 2011) (quoting Slack, 529 U.S. at 478).
Applying those standards here, jurists of reason would not find it debatable as to whether each of petitioner's claims supply a sufficient basis for further record development. As noted above, the applicable law and information of record demonstrate that his claims regarding his career offender status are not redressable through the instant motion and are otherwise without merit in any event; and he has failed to advance a colorable showing to support his Strickland claim that counsel failed to file an appeal. Reasonable jurists would not find these assessments to be debatable or wrong. Accordingly, petitioner's concomitant request for a certificate of appealability must be denied.
For the reasons set forth above, petitioner's motion pursuant to § 2255 will be denied as meritless and his concomitant request for a certificate of appealability likewise will be denied. Appropriate orders follow.