Opinion
16-CR-6084L, 21-CV-6640L
2022-06-27
UNITED STATES of America, Plaintiff, v. Scott T. WILBERT, Defendant.
Kyle P. Rossi, Melissa M. Marangola, Government Attorneys, U.S. Attorney's Office, Rochester, NY, for Plaintiff.
Kyle P. Rossi, Melissa M. Marangola, Government Attorneys, U.S. Attorney's Office, Rochester, NY, for Plaintiff.
DECISION AND ORDER
DAVID G. LARIMER, United States District Judge
Defendant Scott T. Wilbert was charged in an indictment (Dkt. #11) and a superseding indictment (Dkt. #87) with various offenses relating to the receipt, possession and distribution of child pornography. Wilbert and the Government eventually entered into a plea agreement, pursuant to which, on April 2, 2019, Wilbert entered a plea of guilty to Count 3 of the superseding indictment, charging him with possession of child pornography in violation of 18 U.S.C. § 2256(8). Pursuant to the Court's referral order entered that same date (Dkt. 93), the plea was taken by Magistrate Judge Jonathan W. Feldman, who recommended that it be accepted. (Dkt. #95.) No objections were filed to that recommendation.
On July 2, 2019, Wilbert appeared before me for sentencing. The Court adopted Judge Feldman's Report and Recommendation, and found that the plea was knowing and voluntary, and that there was a factual basis for the plea. (Dkt. #132-1 at 77.) The Court sentenced Wilbert to a 180-month term of imprisonment, plus eight years of supervised release, and imposed a penalty of $15,000 in restitution. The 180-month sentence had been specifically agreed upon by the parties pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. Plea Agrmt. (Dkt. #94) ¶ 15.
Wilbert's plea agreement expressly afforded him a limited right to appeal. Specifically, it provided that Wilbert reserved the right to appeal the Court's earlier denial of his motions to suppress evidence. Plea Agrmt. ¶ 32. Wilbert did appeal on that issue, and the Court of Appeals affirmed his conviction, stating in its Summary Order that "[f]or substantially the reasons set out in the district court's opinions, we conclude that Wilbert's arguments on appeal are without merit." United States v. Wilbert , 818 F.App'x 113, 114 (2d Cir.), cert. denied , ––– U.S. ––––, 141 S.Ct. 639, 208 L.Ed.2d 239 (2020).
On October 18, 2021, Wilbert filed a motion to vacate his conviction and sentence under 28 U.S.C. § 2255. (Dkt. #115.) The Court issued a Decision and Order (Dkt. #118) dismissing the motion on the ground that it did not comply with Local Rules 7 and 10, relating to the length and format of motions, but the Court gave Wilbert leave to file an amended petition. Wilbert did so on March 25, 2022. (Dkt. #128.) The Government has filed a response in opposition to the amended petition. (Dkt. #132.) The Court granted Wilbert's request for leave to file a reply, which he did on June 16, 2022. (Dkt. #136.)
DISCUSSION
A "federal court may not vacate a sentence of a prisoner in federal custody unless it ‘was imposed in violation of the Constitution or laws of the United States, or ... the court was without jurisdiction to impose such sentence, or ... the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.’ " United States v. Pitcher , 559 F.3d 120, 123 (2d Cir. 2009) (quoting 28 U.S.C. § 2255(a) and Moran v. Burbine , 475 U.S. 412, 429, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) ). To obtain relief pursuant to § 2255, a defendant must establish "a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Bokun , 73 F.3d 8, 12 (2d Cir. 1995) (internal quotation marks and citation omitted).
In his petition, Wilbert presents seven grounds for relief. Five of them assert ineffective assistance of his trial counsel, one asserts ineffective assistance of appellate counsel, and one asserts a violation of Wilbert's speedy trial rights.
Although the § 2255 motion sets forth five separate grounds relating to various aspects of trial counsel's performance, at bottom they rest on a single premise: that Wilbert's guilty plea was not knowingly, intelligently and voluntarily entered. He alleges that his attorney's failure to adequately investigate certain matters, pursue certain defenses, and raise certain defenses combined to induce defendant to enter an invalid plea.
A petitioner asserting such claims faces a heavy burden. First, he must show that his attorney's performance was constitutionally inadequate, under the standards established in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland ’s two-pronged test, the defendant must first demonstrate that counsel's performance fell below an objective level of reasonableness, to such an extent that the attorney was not functioning as counsel. Id. at 687, 104 S.Ct. 2052. In determining whether the defendant has made that showing, the court "must apply a ‘strong presumption’ that counsel's representation was within the ‘wide range’ of reasonable professional assistance." Harrington v. Richter , 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Strickland , 466 U.S. at 689, 104 S.Ct. 2052 ).
Even if he makes such a showing, the defendant must still establish that he was prejudiced by counsel's errors, i.e. , that there is a "reasonable probability" that but for counsel's performance, the outcome of the proceedings would have been different. Id. at 694, 104 S.Ct. 2052. In the context of a conviction based on a guilty plea, that means the defendant must show "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
A petitioner who was convicted after pleading guilty faces an additional burden. First, he is barred from raising any claims for relief based on his attorney's performance prior to the entry of the plea, except insofar as it relates to the voluntary and intelligent character of the plea. Id. at 56-57, 106 S.Ct. 366. See also Tollett v. Henderson , 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) ("[w]hen a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to deprivation of constitutional rights that occurred prior to the entry of a guilty plea"); accord Parisi v. United States , 529 F.3d 134, 138 (2d Cir. 2008) ; United States v. Garcia , 339 F.3d 116, 117 (2d Cir. 2003).
Second, the petitioner finds himself in the difficult position of trying to discredit his own sworn statements made during the plea colloquy. A defendant's statements at a plea proceeding admitting all the elements of the charge to which he is pleading guilty "carry a strong presumption of verity." United States v. Maher , 108 F.3d 1513, 1530 (2d Cir. 1997) (quoting Blackledge v. Allison , 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) ). Likewise, where a defendant "has explicitly stated in his allocution that he fully understands the consequences of his plea and that he has chosen to plead guilty after a thorough consultation with his attorney, a district court on habeas review may rely on the defendant's sworn statements and hold him to them." Padilla v. Keane , 331 F.Supp.2d 209, 217 (S.D.N.Y. 2004) (citing Blackledge v. Allison , 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) ("[T]he representations of the defendant at [a plea colloquy] ... constitute a formidable barrier in any subsequent collateral proceedings"). See also United States v. Torres , 129 F.3d 710, 715 (2d Cir. 1997) ("A defendant's bald statements that simply contradict what he said at his plea allocution are not sufficient grounds to withdraw the guilty plea").
That principle applies with particular force in this case, because as the transcript of the plea proceeding demonstrates, Magistrate Judge Feldman engaged in a thorough, if not exhaustive, plea colloquy to confirm that Wilbert fully understood the charges against him, his trial rights, and the terms of the plea agreement, that he freely admitted his guilt, and that he knowingly and voluntarily chose to enter a guilty plea. To quote every line from the transcript demonstrating as much would unduly lengthen this decision, but the Court will provide a brief summary of the salient portions. At the outset of the proceeding, Wilbert was placed under oath, and he confirmed his awareness of what that meant. Plea Transcript ("Tr.") (Dkt. #132-1) at 4. He stated that he had gone over both the superseding indictment and the plea agreement with his lawyer, that he understood them, and that he was satisfied with his attorney's representation and advice. Tr. at 6.
The prosecutor then orally went through the various sections of the plea agreement, concerning the charge to which Wilbert would be pleading guilty, the sentencing guidelines and other aspects of sentencing, and the parties’ respective rights and obligations. During this recitation, Magistrate Judge Feldman repeatedly paused to ask Wilbert if he understood and agreed with those terms, and he consistently answered that he did, and that he had no questions or concerns. At one point, Judge Feldman said to Wilbert, "I can tell you're listening to all my questions. That's a good thing." Tr. at 31.
The magistrate judge then proceeded to engage in a colloquy with Wilbert, stating before he did so, "It's going to take a little while but I want to make sure you understand exactly what you're doing here ...." Tr. at 32. He then reiterated in detail the salient terms of the agreement, repeatedly pausing to ask Wilbert if he had reviewed them, if he understood them, and if he had any questions. Wilbert stated that he had read the terms and that he understood them fully. Tr. at 32-35. In response to the court's questions, Wilbert stated that no one had threatened him in any way to persuade him to plead guilty, and that he was pleading guilty "of [his] own free will and because [he was] guilty." Tr. at 35.
After further colloquy to confirm that Wilbert understood various aspects of sentencing and which rights he was retaining and which he was giving up, Tr. at 36-46, the prosecutor, at the court's direction, set forth the factual basis for the plea, outlining the facts that the Government would have proved relative to Count 3, had the case gone to trial. When she was finished, the magistrate judge asked Wilbert, "Is anything she said incorrect or wrong?," and Wilbert replied, "No, your Honor." Tr. at 48. He also stated that he agreed with the factual basis as set forth in the plea agreement. Id.
Magistrate Judge Feldman then asked Wilbert directly, "What did you do wrong?," to which he replied, "Possessed a computer that had child porn on it." Tr. at 48. He also admitted that he had received those images over the Internet, that he knew that they depicted images of minors engaged in sexually explicit conduct, and that he knowingly possessed the images. Tr. at 48-49. He then formally entered his plea: "Guilty, your Honor." Tr. at 50.
It could hardly be clearer, then, that Wilbert thoroughly understood the charges against him–both the legal elements and the Government's specific factual allegations–and that he had decided, of his own free will, to enter into the plea agreement and to plead guilty to Count 3. His present claim that his plea was other than knowing and voluntary is flatly contradicted by his own sworn statements at the plea proceeding. Since that is plainly evident from the record in this case, I also reject Wilbert's suggestion that the Court hold a factual hearing on his motion. See United States v. Maher , 108 F.3d 1513, 1529 (2d Cir. 1997) (stating that while an evidentiary hearing may be appropriate where a defendant has demonstrated factual issues surrounding the voluntariness or general validity of his plea, no hearing is required "if the movant's allegations ‘merely contradict[ ] [his] earlier statements made under oath at his plea allocution’ ") (quoting United States v. Gonzalez , 970 F.2d 1095, 1101 (2d Cir. 1992) ) (brackets in original); accord United States v. Khammanivong , 357 F.App'x 316, 317 (2d Cir. 2009). See , e.g. , United States v. Dukagjini , 198 F.Supp.2d 299, 302 (W.D.N.Y. 2002) ("Dukagjini's claims of ineffective assistance are contradicted by the record, including his own sworn statements at the Rule 11 proceeding and, therefore, no factfinding hearing is necessary").
I also note that Wilbert now asserts that he is in fact innocent of the charges against him. As the above recitation makes clear, that claim too is refuted by Wilbert's statements at the plea proceeding. He did not just indicate his agreement with or lack of objection to the prosecutor's factual proffer; he affirmatively stated that he had knowingly possessed child pornography and that he knew it to be such.
Perhaps aware of this seemingly insurmountable hurdle, Wilbert now states that "after sentencing, it was learned that ... [he] is actually innocent ...." (Dkt. #128 at 19.) What he appears to mean by this remarkable assertion is that he now believes that the Government would not have been able to establish his guilt through admissible evidence at trial. Wilbert's reevaluation of the Government's case, in hindsight tinged with regret for his decision to plead guilty, does not amount to a claim of actual innocence. Wilbert fully and freely admitted his guilt, and he has presented nothing that casts any doubt on the veracity of that admission. See United States v. Farooq , No. 19-CR-100, 2020 WL 1083624, at *4 (E.D.N.Y. Mar. 6, 2020) ("this Court does not credit Defendant's statements at oral argument that his factual admissions during the plea proceeding that established his guilt to the charged crime were lies"); Islam v. United States , No. 12-CR-810, 2018 WL 6649764, at *3 (S.D.N.Y. Dec. 19, 2018) ("During his plea allocution, Islam swore he was guilty. Islam's bare assertion of innocence in his § 2255 petition does not overcome his sworn statements at his plea hearing") (citations to the record omitted).
In his affidavit in support of his petition, Wilbert states that "since the day of arraignment, [he has] asserted that [his roommate] was the most likely offender," Dkt. #128 at 32, in other words, that his roommate used a shared computer to receive or download the images in question. That also directly contradicts Wilbert's sworn statements at the plea proceeding, as well as his assertion that he "learned" of his innocence after sentencing.
As stated earlier, Wilbert's guilty plea forecloses any claims of ineffective assistance, other than claims relating to the validity of the guilty plea itself. A review of the record, however, amply demonstrates that there is no basis for his specific claims of ineffective assistance of trial counsel.
First, there is no support for Wilbert's claim that his attorney "induced" him to plead guilty. As demonstrated above, Wilbert expressed his satisfaction with his lawyer's representation and advice, stated that no one had coerced or threatened him in order to get him to plead guilty, and that his decision to do so was freely made.
As the Government's brief well explains, see Dkt. #132 at 14-16, Wilbert also cannot show prejudice resulting from his attorney's alleged errors. He has not asserted that but for those errors he would not have pleaded guilty and instead proceeded to trial, or that he would have been offered and accepted a more favorable plea deal. Had he gone to trial, Wilbert was facing a guideline sentencing range of 262 to 327 months, even before the filing of the superseding indictment, which charged him with additional offenses. With the plea offer, the sentencing range was lowered to 188 to 235 months, and he got a break even from that range when the Government agreed pursuant to Rule 11(c)(1)(C) to a specific term of 180 months. Considering the fact that the agreed-upon sentence was 7 to 12 years less than what he would have faced had he been convicted at trial, it hardly seems credible, much less reasonably probable, that Wilbert would have rejected the Government's offer and taken his chances at trial.
There is likewise nothing in the record suggesting that if defense counsel had done anything differently, the Government would have offered (and Wilbert would have accepted) a more favorable plea deal. The Government states that under no circumstances would it have agreed to a sentence below 180 months, and defendant has presented nothing to cast any doubt on that assertion.
In his papers, Wilbert alludes to a 120-month deal that he claims was offered by the Government at one point. He states that the Government insisted on bumping that up to 180 months as a condition of its agreement to allow Wilbert to preserve his right to appeal from this Court's denial of his suppression motions. See Dkt. #128 at 17, 40. The Government flatly denies ever making such an offer, see Dkt. #132 at 15.
Any factual dispute over this matter is inconsequential, however. For one thing, this has no relevance to Wilbert's ineffective-assistance claims. He does not assert that counsel inadvertently let a better plea offer slip by, or that he neglected to inform Wilbert of the offer. Even accepting the truth of Wilbert's allegations, it appears that he knowingly chose to accept a deal with an extra five years of prison time in exchange for preserving his right to appeal concerning the suppression issue. In any event, at the plea proceeding, Wilbert expressly affirmed that he agreed to and accepted a term of imprisonment of 180 months. See Tr. at 33, 40.
Finally, the record in this case belies Wilbert's claims of errors by trial counsel, much less errors of constitutional magnitude. Contrary to Wilbert's present assertions, his attorney did investigate the search warrant in this case, and challenged the admissibility of evidence obtained pursuant to the warrant. He filed two motions to suppress, which were ultimately found meritless by the magistrate judge, by this Court, and by the Court of Appeals, but it can scarcely be said that counsel failed for lack of trying.
Wilbert also raises a host of matters that he claims his attorney should have investigated further, and arguments that he should have made. Such claims are easy to make, and a convicted defendant understandably is apt to imagine that every unexplored avenue would have turned out not to be a blind alley, but the pathway to acquittal. Such speculation is not enough to establish ineffective assistance, however. See Berryman v. Morton , 100 F.3d 1089, 1101 (3d Cir. 1996) ("The right to counsel does not require that a criminal defense attorney leave no stone unturned and no witness unpursued").
As with all claims of ineffective assistance, the defendant must first show that it was objectively unreasonable for counsel not to investigate or pursue the matters in question. Where the defendant's "claim is that his trial counsel should have done something more, [the court] first looks at what the lawyer did in fact," and determines whether the course of action that was pursued might have been reasonable. Chandler v. United States , 218 F.3d 1305, 1320 (11th Cir. 2000).
Second, the defendant must again establish prejudice, by showing that it is reasonably probable that had counsel pursued a certain line of investigation or argument, the outcome of the proceeding would likely have been different, in a way favorable to the defendant. See Trevino v. Davis , 829 F.3d 328, 338 (5th Cir. 2016) ("An applicant [for habeas relief] who alleges a failure to investigate on the part of his counsel must allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial") (internal quotes omitted). See , e.g. , United States. v. Figueroa , No. 04-CR-6106, 2010 WL 2710514, at *2 (W.D.N.Y. July 7, 2010) ( § 2255 claim dismissed because petitioner failed to establish how any uninvestigated matters or witnesses "would have been helpful and beneficial to him").
Wilbert has not even come close to meeting either prong of the test. In his affidavit in support of his § 2255 motion (Dkt. #128 at 30-42), Wilbert has submitted an affidavit in which he recounts his recollection of the proceedings in this case, from his arrest to his appeal of his conviction. Much of the affidavit consists of a reargument of his suppression motion, and nothing in it suggests that counsel overlooked any key issues or promising lines of inquiry. There is no basis for this claim.
Wilbert's claim of ineffective assistance of appellate counsel fares no better. This claim is assessed under the same Strickland standard as the claim relating to trial counsel. See Smith v. Robbins , 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) ; Mayo v. Henderson , 13 F.3d 528, 533 (1994). In this context, appellate counsel is entitled to make strategic decisions and "need not (and should not) raise every nonfrivolous claim" on appeal. Robbins , 528 U.S. at 288, 120 S.Ct. 746. As a matter of strategy, appellate counsel "may select from among [colorable claims] in order to maximize the likelihood of success on appeal." Id.
Wilbert contends that his appellate lawyer was ineffective because she failed to raise a particular argument concerning Wilbert's suppression motion, as well as the litany of other claims presented in Wilbert's present § 2255 petition.
Wilbert's attorney submitted a 75-page brief to the Court of Appeals, in which she thoroughly argued why Wilbert's suppression motion should have been granted. See 2d Cir. Case No. 19-2173, Dkt. #31. To the extent that she did not raise every conceivable argument, or a particular argument that plaintiff now presses, that does not render her assistance ineffective. "[C]ounsel does not have a duty to ‘raise every "colorable" claim,’ and reviewing courts should not ‘second-guess reasonable professional judgments.’ " Delva v. United States , No. 12-CR-802-4, 2020 WL 2214801, at *4 (S.D.N.Y. May 7, 2020) (quoting Jones v. Barnes , 463 U.S. 745, 754, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)) ; see also Mayo v. Henderson , 13 F.3d 528, 533 (2d Cir. 1994) (finding no duty for counsel to "advance every nonfrivolous argument that could be made").
Wilbert's submissions to this Court include a copy of an email from his appellate attorney, responding to his complaint to her that she did not raise all of the issues that she could have concerning the suppression issues. Counsel responded, "we raised the issues that had the most merit. Your issues lacked merit." (Dkt. #128 at 46.)
That statement was as accurate as it was direct. Appellate counsel's performance here reflects not incompetence or laziness on her part, but strategic, informed decisionmaking. The Supreme Court has "emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues," Jones , 463 U.S. at 746, 103 S.Ct. 3308, and that is what occurred in Wilbert's case.
As to the other arguments mentioned by Wilbert that were not raised on appeal, to the extent that they relate to alleged ineffective assistance of trial counsel in connection with Wilbert's guilty plea, those arguments are meritless, as explained above, so appellate counsel can hardly be faulted for not raising them. See Carter v. Parris , 910 F.3d 835, 841-42 (6th Cir. 2018) ("If there is no reasonable probability that inclusion of the issue would have changed the result of the appeal, then habeas relief will not be granted") (internal quote omitted); accord Burgos v. Yarborough , 369 F.App'x 799, 801 (9th Cir. 2010). To the extent that those arguments bear upon matters not related to the validity of the plea or the suppression motions, Wilbert was barred from raising them on appeal, under the terms of the plea agreement. In short, there is no basis for a claim of ineffective assistance on the part of appellate counsel.
Wilbert's final ground for relief is his claim that he was denied his speedy trial rights under the Fifth and Sixth Amendments when the Government engaged in prosecutorial misconduct by filing a superseding indictment on the eve of trial in order to coerce him into accepting a plea offer.
At the time the superseding indictment was filed on March 14, 2019, trial was scheduled to begin on May 13, 2019. Wilbert entered his guilty plea on April 2, 2019.
The Government contends that Wilbert is procedurally barred from raising this claim because he did not raise it in his direct appeal. "Where ... a defendant did not raise an argument on direct appeal, he is procedurally barred from doing so on a collateral challenge under § 2255." Rajaratnam v. United States , 736 F.App'x 279, 281 (2d Cir. 2018) (citing Zhang v. United States , 506 F.3d 162, 166 (2d Cir. 2007) ). "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.’ " Bousley v. United States , 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (internal citations omitted).
It is not clear that Wilbert could have raised this claim on direct appeal, since it does not appear to fall within the scope of the limited appeal rights afforded him under the plea agreement. For that same reason, though, he is barred from raising it here. "It is well settled that a defendant who knowingly and voluntarily enters a guilty plea waives all non-jurisdictional defects in the prior proceedings." United States v. Garcia , 339 F.3d 116, 117 (2d Cir. 2003) (per curiam). See also Sanford v. United States , 841 F.3d 578, 579-80 (2d Cir. 2016) ("A defendant's knowing and voluntary waiver of the right to appeal or collaterally attack his conviction and/or sentence is enforceable") (citations omitted).
At the plea proceeding, Wilbert acknowledged his understanding that by pleading guilty, he was giving up the right to make any pretrial motions that his attorney had made or that could have been made, other than the suppression issues identified in the plea agreement. See Tr. at 44. That perforce includes any motions challenging the filing of the superseding indictment on speedy trial or due process grounds. See United States v. Coffin , 76 F.3d 494, 497 (2d Cir. 1996) ("Coffin's guilty plea was unconditional and effectively waived all non-jurisdictional defects in the proceedings below, including the alleged violation of the Speedy Trial Act"); United States v. Yunis , 723 F.2d 795, 796 (11th Cir. 1984) ("The right to a speedy trial has repeatedly been held to be nonjurisdictional, both before and after the passage of the Speedy Trial Act. ... A defendant cannot plead guilty and preserve for appeal a speedy trial claim"); Myree v. United States , No. 11-cr-76, 2016 WL 7187986, at *6 (W.D.N.Y. Dec. 12, 2016) ("by pleading guilty to the criminal information, Myree waived his right to assert Speedy Trial Act violations").
Finally, to the extent that Wilbert is attempting to use this claim to shoehorn in another attack on the validity of his guilty plea, I reject it for all the reasons stated above, in connection with his claims of ineffective assistance of trial counsel. Wilbert's plea was knowing, voluntary, and valid.
CONCLUSION
Defendant's motion to vacate his conviction and sentence under 28 U.S.C. § 2255 (Dkt. #115) and his amended motion to vacate (Dkt. #128) are denied in all respects. The Government's motion to dismiss defendant's § 2255 motion is granted.
IT IS SO ORDERED.