Opinion
CRIMINAL ACTION NO.: 13-137
04-27-2021
UNITED STATES OF AMERICA, v. RICHARD HAINES, Defendant/Petitioner.
MEMORANDUM Jones, II J.
I. Introduction
Richard Haines ("Petitioner") brings the instant pro se Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (ECF Nos. 68 and 83). In doing so, Petitioner makes several claims of ineffective assistance of counsel and a claim of legal innocence. In response, the Government filed a Motion to Dismiss (ECF No. 77), arguing that not only are Petitioner's claims are time-barred because he failed to bring the present claim within one (1) year of a final judgment, but even if they are timely, Petitioner waived any such claims through his guilty plea. Additionally, there is no evidence to suggest that Plaintiff's guilty plea was not knowingly and voluntarily made, and the evidence against Petitioner severely undercuts any allegations of innocence. For the reasons set forth herein, Petitioner's Motion is denied, and the Government's Motion to Dismiss is granted.
II. Factual and Procedural History
On January 30, 2012, Petitioner's ten (10) year old stepdaughter informed her mother that Petitioner had taken photos of her wearing various lingerie items. Concerned for the child's safety, the victim's mother searched for Petitioner's camera, two external hard drives, and a computer tower in his home office. She gave these devices to her friend examine. Using a program to recover deleted files, the friend discovered eighty-nine (89) photographs of the 10-year-old victim in various states of dress, in lingerie, and with her breasts and genitals exposed.
The photos were given to the East Coalico Township Police Department. After obtaining a search warrant for a forensic examination, the police also found the same 89 photos of the victim on Petitioner's computer. Thereafter, Petitioner was arrested, charged locally, and subsequently released on bail.
While on bail, on February 19, 2013, Petitioner was interviewed by the Federal Bureau of Investigation ("FBI"). During the interview, Petitioner admitted to taking and downloading approximately eighty (80) photos of victim between age nine (9) and ten (10) years old. Petitioner characterized the taking of these photos as "stupid," and further stated that, "if I have to do time, I'll behave myself." As a result of his admission, Petitioner was charged in the present federal case with two (2) counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). After consulting with his attorney, Jack McMahon, Jr., Esq., Petitioner entered a guilty plea on September 14, 2013. See Plea Agmt., ECF No. 25.
In the Agreement, petitioner waived his right to appeal or collaterally attack any aspect of his conviction or sentence. Petitioner also stated that he was satisfied with the legal representation provided by Mr. McMahon. Id. Petitioner repeatedly recounted these attestations during his Arraignment and Guilty Plea Hearing before Judge Gardner. See Plea Colloquy Tr., attached to Gov't Response in Opposition as Exhibit B [hereinafter Plea Colloquy Tr.]. Specifically, during said Hearing, this Court meticulously assessed Petitioner's capacity and state of mind before accepting his guilty plea. Upon finding him of sound mind, the Court then gave Petitioner the opportunity to express any concerns with respect to ineffective assistance of counsel and the conditions of his plea agreement. Specifically, Petitioner was asked by this Court if Attorney McMahon "had done everything for [him] that [he] wanted [McMahon] to do for [him]" in this case. Petitioner responded "yes." Id. at 30:6-8. When asked if he was "satisfied that Attorney McMahon [had] given [him] effective assistance as [his] lawyer in this matter," again, Petitioner responded "yes." Id. at 30:13-16.
The Court also went over the content of Petitioner's plea agreement on the record. Petitioner's plea agreement recommended a sentencing range between 10-13 years' incarceration. Plea Agmt. 2. In accordance with this recommendation, on June 17, 2014, this Court sentenced Petitioner to imprisonment of 144 months' imprisonment followed by a lifetime of supervised release, $200 in special assessments, forfeiture of the defendant's computer equipment, a $10,000 fine, and restitution to his stepdaughter in the amount of $9,338. See Sentencing Hearing Minute Entry, ECF No. 49.
Since his sentencing, Petitioner has filed various motions in attempts to modify his sentence and the terms of his supervised release. One such motion is the instant pro se Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence [hereinafter First § 2255 Mot.], claiming ineffective assistance of counsel and legal innocence on June 27, 2018. ECF No. 68. The Government submitted a Motion to Dismiss Petitioner's 28 U.S.C. § 2255 petition on February 19, 2019 (ECF No. 77). Petitioner filed an amended § 2255 Motion (ECF No. 83) [hereinafter Amended § 2255 Mot.] on March 16, 2020, and, on February 11, 2021, Petitioner filed a response in opposition to the Government's Motion to Dismiss and in support of his § 2255 petition (ECF No. 104). Thus, this matter is now ripe for the Court's review.
Plaintiff makes the following five (5) claims for ineffective assistance of counsel: (1) false representation of risk and advisement of perjury in exchange for no more than ten (10) years' imprisonment; (2) failing to object to a claim of actual innocence; (3) failing to file a motion to suppress illegally obtained evidence; (4) failure to challenge his confession obtained during a diabetic sugar crash; (5) considering the totality of the circumstances on the grounds of the first four (4) factors.
While, typically, amended petitions wholly replace originally filed petitions, Petitioner's Amended § 2255 Motion reads more as a supplemental filing than an amended filing. Liberally construing the intent of Petitioner's filing, this Court will consider the Amended Motion's content as a supplement to his original filing.
III. Standard of Review
A motion to vacate, set aside, and/or correct a sentence under 28 U.S.C. § 2255 may be granted when "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]" 28 U.S.C. § 2255(a). When assessing a pro se § 2255 petition particularly, the petition, itself, and any supporting submissions must be construed liberally and with a measure of tolerance. Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989).
The Court must grant an evidentiary hearing if the records in the case are "inconclusive on the issue of whether movant is entitled to relief." United States v. McCoy, 410 F.3d 124, 131 (3d Cir. 2005) (citing Solis v. United States, 252 F.3d 289, 294-95 (3d Cir. 2001)). "The standard governing...requests [for evidentiary hearings] establishes a reasonably low threshold for habeas petitioners to meet." Id. (citing Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001)). A § 2255 petition "can be dismissed without a hearing [only] if (1) the petitioner's allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." McCoy, 410 F.3d at 134 (citing Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)).
District Courts have discretion to conduct evidentiary hearings for § 2255 claims, but this discretion is not unrestrained. United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008), holding modified by Vickers v. Superintendent Graterford SCI, 858 F.3d 841 (3d Cir. 2017). "The District Court is required to hold an evidentiary hearing 'unless the motion and files and records of the case show conclusively that the movant is not entitled to relief.'" Id. (citing United States v. Booth, 432 F.3d 542 (3d Cir. 2005)). When considering a § 2255 motion, the Court "must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record." Gov't of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). Frivolous allegations are not entitled to an evidentiary hearing. See Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir. 1987) ("Bald assertions and conclusory allegations do not afford a sufficient ground for an evidentiary hearing."). The District Court may dispose of vague and conclusory allegations made in a § 2255 motion without investigating such claims any further. United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000). However, where the movant alleges sufficient supporting facts for a claim, the District Court should proceed in its consideration of their merit. Id. Nevertheless, the District Court may still find that such claims, while alleging specific facts, are frivolous. Id. at 438.
IV. Discussion
A. Statute of Limitations
To bring a successful § 2255 petition, Petitioner must first show his claim is timely. A § 2255 petition must be filed within one (1) year from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or28 U.S.C. §2255(f)(1)-(4). "Finality attaches when [the] Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." Clay v. United States, 537 U.S. 522, 527 (2003).
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
In the Eastern District of Pennsylvania, criminal defendants have fourteen (14) days from the date the order was entered to file a notice of appeal. Here, Petitioner failed to file an appeal within this period. Fourteen days after Petitioner's sentencing was July 1, 2014, and this is the date Petitioner's judgment of conviction became final. See Kapral v. United States, 166 F.3d 565, 570 (3d Cir. 1999) ("Accordingly, we hold that a judgment of conviction does not become 'final' within the meaning of § 2255 until the Supreme Court affirms the conviction and sentence on the merits or denies a timely filed petition for certiorari."). Though Petitioner's one-year statute of limitations prescribed by § 2255 ended on July 1, 2015, Petitioner failed to file the present Motion until June 27, 2018, nearly four (4) years after the statute of limitations expired.
While the Government may waive the statute of limitations as a defense, it has not done so in this case. United States v. Bendolph, 409 F.3d 155, 157-58 (3d Cir. 2005). Rather, the Government specifically states Petitioner's motion is untimely. See Gov't's. Mot. to Dismiss 5-7. Had the government not raised the timeliness issue, the Court would otherwise have still been empowered to raise statute of limitations concerns sua sponte. Bendolph, 409 F.3d at 158.
Not only is Petitioner's claim time-barred, but Petitioner has not stated a compelling reason for his failure to file within the one-year statute of limitations period. Petitioner claims broadly that his motion should be considered timely because "it is predicated on new evidence that [P]etitioner was not aware of which could not have been discovered more than a year prior to his filings." First § 2255 Mot. 2. Petitioner additionally contends that he is owed equitable tolling due to ineffective assistance of counsel. Id. Upon review of the record and Petitioner's Motion, this Court finds that there is no such "new evidence" as Petitioner claims. Despite claims of tampered evidence and broken chains of custody, such allegations are either recharacterizations of previously presented claims or could have been previously known or discovered through due diligence. Additionally, as the Court will discuss in further detail below, any such claims were waived through the entry and acceptance of Petitioner's guilty plea.
During his plea hearing, Judge Gardner explicitly informed Petitioner of this one-year statute of limitation. This Court specifically notes the following exchange:
THE COURT: You have one year form the date your conviction is final to file a collateral appeal[,] and you have 14 days from the date your conviction is final to file a direct appeal. If you miss those deadlines, you may give up forever your right to take those appeals. Do you understand that?Plea Colloquy Tr. 61: 16-22.
THE DEFENDANT: Yes, sir, Judge.
Both Petitioner and the Court's independent research have failed to reveal any case law suggesting how, without a compelling reason, the statute of limitations on a § 2255 petition can be overcome. On the contrary, dismissing § 2255 petitions because they are time-barred has been affirmed by this Circuit time and time again. See Mahasin v. Bledsoe, 505 F3d. App'x 85, 86-87 (3d Cir. 2012) (Despite claiming innocence and ineffective assistance of counsel, the Third Circuit affirmed dismissal of the petitioner's § 2255 petition where "[h]e waited almost two years after his conviction to file the first § 2255 petition, and thus it was deemed untimely."); Mejia v. Yost, 388 Fed. App'x 220, 222 (3d Cir. 2010) (Declining petitioner's later safety-valve petition under § 2241 where the district court appropriately dismissed petitioner's prior § 2255 petition for being time-barred); Cradle v. United States. ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002) (Affirming the dismissal of a § 2255 petition where the petitioner's claim was time-barred, and he failed to bring forth any evidence of newly discovered facts); United States v. Rogers, No. 99-CV-5196, 2000 WL 862817, at *1 (E.D. Pa. June 28, 2000) (Finding petitioner's § 2255 petition to be time-barred when it was filed over three (3) years after his conviction became final).
Such precedent aligns with the Third Circuit's belief that Congressional habeas reform, which created the one-year limitation period applicable to § 2255, was implicated by an interest in preventing abuses of the relief available under § 2255. See Bendolph, 409 F.3d at 163 ("It is thus clear, we believe, that Congress' intent with respect to habeas reform—one facet of which is the AEDPA statute of limitations—was not limited to interests of federalism and comity, which apply only to petitions filed under § 2254. Rather, Congress was concerned with abuses of, and the interests implicated by, habeas filings under both §§ 2254 and § 2255.").
Petitioner's broad, unsubstantiated claims of newly discovered evidence are insufficient to overcome the one-year statute of limitations period. Moreover, as the Court will address in further detail, Petitioner waived such claims through the entry of his guilty plea. Accordingly, this Court holds Petitioner's § 2255 Motion is time-barred.
B. Voluntary Waiver of Collateral Attack and Ineffective Assistance Claims
Assuming arguendo that Petitioner can overcome the one-year statute of limitations, his § 2255 petition would still fail because he waived any such right to a collateral attack. A guilty plea "is an admission of factual guilt so reliable that" it "renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt." Menna v. New York, 423 U.S. 61, 62 n.2 (1975). Therefore, a defendant who voluntarily and knowingly enters a guilty plea "may not...raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267 (1973).
Despite the strong reliance courts place in plea agreements and plea colloquies, "the barrier of the plea or sentencing proceeding record, although imposing, is not invariably insurmountable." Blackledge v. Allison, 431 U.S. 63, 74-75, 97 (1977). "In administering the writ of habeas corpus and its § 2255 counterpart, the federal courts cannot fairly adopt a per se rule excluding all possibility that a defendant's representations at the time his guilty plea was accepted were so much the product of such factors as misunderstanding, duress, or misrepresentation by others as to make the guilty plea a constitutionally inadequate basis for imprisonment." Id.
Considering such inadequacies of a guilty plea, "the Third Circuit has held that a waiver of appellate rights or rights to collaterally attack a conviction or sentence shall be enforced so long as it was entered knowingly and voluntarily, and enforcement of the waiver would not create a miscarriage of justice." United States v. Rivera, No. 10-CR-0003, 2018 WL 1693437, at *2 (E.D. Pa. April 5, 2018) (citing United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001)). "Courts apply the miscarriage of justice exception sparingly and without undue generosity, but with the aim of avoiding manifest injustice." United States v. Castro, 704 F.3d 125, 136 (3d Cir. 2013) (internal quotation marks and citation omitted). The Third Circuit has held that "[e]nforcing a collateral-attack waiver where constitutionally deficient lawyering prevented [the defendant] from understanding his plea...would result in a miscarriage of justice." United States v. Shedrick, 493 F.3d 292, 298 (3d Cir. 2007).
Though it is undisputed Petitioner's plea agreement waived his right to collateral attack and appeal, he appears to argue that, due to his ineffective assistance of counsel, enforcing this waiver would be a miscarriage of justice. Specifically, Petitioner states that he pled guilty because of the "duress" imposed on him by his counsel, Mr. John McMahon, Jr., who allegedly told Petitioner that the government would seek a life sentence if he failed to accept the plea. First § 2255 Mot. 10-12. Having reviewed all the filings in this case, the Court disagrees and finds that Petitioner fails to state a viable claim for ineffective assistance of counsel.
When Petitioner was sworn in at the plea colloquy, he stated that he understood his obligation to answer the Court's questions truthfully and completely and affirmed his understanding that he would be prosecuted for perjury for lying to the Court. See Plea Colloquy Tr. 3. This Court specifically asked Petitioner if he understood the content of the Guilty Plea Agreement and if he agreed with it. Id. at 32:1-8. Petitioner responded "yes." Id. at 32:8. Despite now claiming that he had never before seen the plea agreement, the Court further inquired if Petitioner read, agreed to, and signed the agreement. Id. at 32:1-2, 7. Again, Petitioner responded "yes." Id. at 32:6, 8. Having affirmed that he read the agreement, Petitioner was aware of his waiver of rights which clearly states,
In exchange for the undertakings made by the government in entering this plea 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...28 U.S.C. § 2255, or any other provision of law.Plea Agmt. ¶ 12.
The Sixth Amendment right to counsel "is the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). To prove that counsel was ineffective, Petitioner must establish that: (1) counsel's performance was constitutionally deficient; and (2) that deficiency prejudiced Petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance "requires showing that counsel made errors so serious that he or she was not functioning as the 'counsel' guaranteed to the defendant by the Sixth Amendment." Id.
In essence, Petitioner must show that "counsel's representation fell below an objective standard of reasonableness" under prevailing professional norms. Id. at 688. Petitioner must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Id. at 690 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Prejudice requires showing that counsel's errors were serious enough to deprive the defendant of a fair trial. Id. at 687. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694 (emphasis added). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
Here, Petitioner alleges five (5) claims of ineffective assistance of counsel. The Court will address each in turn.
1. Claim One: Counsel's False Representation of Risks and Advisement of Perjury in Exchange for No More than 10 Years' Imprisonment
Petitioner first argues his attorney promised him a more lenient sentence than he ended up receiving. First § 2255 Mot., 10-12. Specifically, Petitioner claims that his attorney promised him he would receive a sentence of just ten (10) years imprisonment and would serve eight and a half (8.5) years at a "camp with no fences." Id. To receive this deal, Petitioner claims Mr. McMahon advised to perjure himself in Court and admit guilt, otherwise, he would receive "no less than life in prison." Id.
When a defendant seeks to challenge his guilty plea based on the expectation of a lighter sentence, he bears the burden of showing that his expectation was objectively reasonable under the circumstances. United States v. Crusco, 536 F.2d 21, 24 (3d Cir. 1972). Even if a defendant has an incorrect belief about the length of his sentence in pleading guilty, the Third Circuit has "long held that any prejudice resulting from an erroneous sentencing prediction is cured by a thorough Rule 11 plea colloquy." United States v. Cormier, 758 Fed. App'x 269, 275 (3d Cir. 2018). See Masciola v. United States, 469 F.2d 1057, 1059 (3d Cir. 1972) (Holding that "[a]n erroneous prediction of a sentence by defendant's counsel does not render a guilty plea involuntary" where the record demonstrates that the court conducted a proper plea colloquy during which defendant acknowledged that he was aware of his maximum potential sentence); Shedrick, 493 F.3d at 299 (Concluding that defendant failed to demonstrate ineffective assistance when counsel erroneously informed him he would receive "a sentence of no more than 71 months' where [he] was advised in [an] open-court colloquy of [his] potential maximum sentence.") (internal citations omitted). In this case, neither party disputes the propriety of Judge Gardner's Rule 11 hearing, and, having thoroughly reviewed the hearing transcript, this Court finds that any misunderstanding in Petitioner's sentencing was cured by Judge Gardner's meticulous plea colloquy.
At the plea hearing, the Government recited material provisions of the Plea Agreement on the record, specifically stating a recommended sentence range of at least ten (10) years but no more than thirteen (13) years of incarceration. Plea Colloquy Tr. at 33:2-9. After this recitation, Judge Gardner directly asked Petitioner if the Government "correctly and completely summarized the terms of the Guilty Plea Agreement" as he understood it. Id. at 38:18-20. Petitioner unequivocally stated "yes." Id. at 38:21. Despite no mention of spending eight and a half (8.5) years in a camp with no fences, Petitioner responded "no" when asked if the Government omitted any terms or conditions previously agreed to from the Guilty Plea Agreement. Id. at 38:22-25.
Any claim that Petitioner was promised a particular sentence was further cured by the following exchange in the plea colloquy,
THE COURT: Mr. Haines, do you understand that no one can guarantee you what sentence you will get from me?
THE DEFENDANT: Yes, sir, your Honor.
THE COURT: At this point, I do not know what sentence I'm going to give you. And if someone told you that Judge Gardner, which is my name, is going to give you this or that particular sentence, that would be incorrect and inappropriate. I do not know what your sentence will be because I have not yet ordered or read a presentence report in your case[,] and we have not yet had a sentence hearing...Do you understand that?...
THE DEFENDANT: Yes, sir, your Honor.
THE COURT: But in terms of what I'm actually going to sentence you, did anyone promise you or suggest to you what sentence you would receive from me?Id. at 42:21-25; 43:1-6, 14-15, 20-23.
THE DEFENDANT: No, sir, your Honor.
This Court then asked Petitioner several times to confirm his understanding of and agreement to the Guilty Plea Agreement, to which Petitioner repeatedly replied in the affirmative. Id. at 38-39. Thereafter, when asked by this Court if anyone used violence, force, threats, coercion, intimidation, or any other improper or undue influence to get Petitioner to plead guilty, Petitioner responded "no" without any further elaboration. Id. at 42-43. In response to Judge Gardner asking if Petitioner was pleading guilty voluntarily and of his own free will, Petitioner simply stated "yes." Id. at 43.
Considering this record, the Court is convinced that any confusion or alleged duress Petitioner's counsel caused regarding the sentence he would ultimately receive was cured by Judge Gardner's thorough, meticulous plea colloquy. Accordingly, any claim of ineffective assistance regarding the length of Petitioner's sentence is meritless.
2. Claim Two: Counsel's Failure to Object During the Plea Hearing to Petitioner's Actual Innocence on Count Two of Information
Petitioner appears to combine his claim of innocence with an ineffective assistance of counsel allegation when Mr. McMahon allowed Petitioner to perjure himself and admit guilt, and Mr. McMahon did not object to such perjury or to Petitioner's innocence as to count two (2) of the Information. In support of his claims of innocence, Petitioner raises concerns about the chain of custody of evidence in this case and that the police did not investigate other suspects when pursuing his case. Notedly, Petitioner states "the entire case would cease to exist if a simple suppression hearing of evidence would show that a simple [s]uppression hearing of evidence would show that the evidence's [c]hain of [c]ustody was catastrophically violated and the evidence was damaged, altered, and possibly manufactured by a third party." First § 2255 Mot. 22 (emphasis added). Petitioner's Amended § 2255 petition attempts to supplement this allegation with specifics regarding the interview of Karen Brizzi, Petitioner's former spouse, and his stepdaughter. In addition to any alleged chain of custody concerns, Petitioner states that both he and Mr. McMahon realized Petitioner could not have committed the count two (2) allegation because he was not allowed in the marital home starting February 3, 2012 due to a Protection from Abuse Order. Id. 16.
The Court recognizes that Petitioner asserts these as two (2) separate claims between his First and Amended § 2255 petitions (one of legal innocence and that his counsel failed to object to Petitioner's innocence as to count two (2) at the plea hearing), but, given their similarity of substance and facts, this Court will consider them together.
Although this Court recognizes that "legal innocence" is a valid, constitutional defense, "[b]ald assertions of innocence are insufficient to permit a defendant to withdraw his guilty plea." United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003). "Assertions of innocence must be buttressed by facts in the record that support a claimed defense." United States v. Brown, 250 F.3d 811, 818 (3d Cir. 2001). Once a defendant has pleaded guilty, he "must then not only reassert innocence, but give sufficient reasons to explain why contradictory positions were taken before the district court and why permission should be given to withdraw the guilty plea and reclaim the right to trial." United States v. Jones, 979 F.2d 317, 318 (3d Cir. 2003).
Here, Petitioner asserts that he is "legally innocent" because without the evidence found on his computer, the Government would have been unable to prove its case beyond a reasonable doubt. However, Petitioner neither argues nor presents any evidence that he did not take photographs of his stepdaughter in various forms of lingerie or undress. In fact, Petitioner stated the direct contrary both under oath to this Court and in an FBI interview. Petitioner's Amended § 2255 Motion attempts to prove by innocence by noting that his stepdaughter, a minor, did not "assert that petitioner took any pictures of her that would be labeled as child pornography" because he never took any pictures of her entirely nude or of her "private parts." Amended § 2255 Mot. 6,-8. Not only is such an allegation a mischaracterization of the charge of child pornography, but when asked directly by the Court during his plea hearing whether he was guilty or not guilty of the alleged offenses, Petitioner affirmatively answered, "Guilty, your Honor." Plea Colloquy Tr. 9: 6-8.
Petitioner bases his claim of innocence entirely upon the Government's lack of information to convict him, a defense Petitioner failed to raise and, ultimately, waived when he knowingly and voluntarily gave up his right to trial. At no point does Petitioner conspicuously state that he never took photographs of his stepdaughter in various states of undress or lingerie. Accordingly, Petitioner not only has failed to meaningfully reassert his own innocence but also has failed to explain his contrary position taken before this Court.
As Petitioner is unable to raise a meritorious legal innocence claim, this Court cannot consider Mr. McMahon's failure to object to his innocence during the plea hearing to be ineffective assistance. Attempting to support his ineffective assistance claim, Petitioner states that, had Mr. McMahon properly investigated the case, he would have realized it was impossible for Petitioner to have committed count two (2) of the Information because Petitioner was out of the marital house on a temporary protection from abuse order at the time of the alleged crime, and he should, thus, have objected to Petitioner's innocence at the plea hearing. First § 2255 Mot. 16-17. While these are two, separate claims of ineffective assistance, their conclusions are related. Though Petitioner claims Mr. McMahon failed to thoroughly investigate count two (2) of the Information, Petitioner admits that knowledge of the temporary protection from abuse order was realized at the time of his guilty plea hearing. Id. at 16. Thus, any claim that Mr. McMahon's investigation failed to reveal this information logically fails.
With this information, Petitioner states that he attempted to object to his own innocence at his plea hearing, but Mr. McMahon advised him to "'simply say yes to everything the judge asks, or this hearing could easily go to shit.'" Id. Even if such conversation occurred, when asked by this Court if anyone used violence, force, threats, coercion, intimidation, or any other improper or undue influence to get Petitioner to plead guilty, Petitioner simply responded "no." Plea Colloquy Tr. at 42:24-25; 43:1-2. In response to Judge Gardner asking if Petitioner was pleading guilty voluntarily and of his own free will, Petitioner simply stated "yes." Id. at 43:3-5. Any allegation that Mr. McMahon did not object to his client's own innocence is not only unsubstantiated by an unpersuasive claim of legal innocence but also Petitioner's own affirmation to this Court of the contrary.
3. Claims Three and Four: Counsel's Failure and Refusal to Suppress Tampered Evidence and a Confession Acquired During a Diabetic Crash in an Interrogation
Petitioner next claims Mr. McMahon provided ineffective assistance when he failed to suppress evidence from Petitioner's computer after it was allegedly tampered with by his former spouse and a third party and during a police interrogation where Petitioner experienced a diabetic sugar crash and confessed to the crimes when he was not of sound mind. First § 2255 Mot. 18-19, 23; Amended § 2255 Mot.17-20, 32-33. Despite Petitioner's claim that this amounted to ineffective assistance of counsel, the Court agrees with the Government that this is a "poorly disguised attempt to undermine his appellate waiver by challenging the search of the evidence as a violation of his Fourth Amendment rights." Gov't Mot. to Dismiss 13. The Third Circuit has long held "that a guilty plea results in forfeiture of 'those defenses not explicitly preserved by entering a conditional guilty plea.'" United States v. Schweitzer, 454 F.3d 197, 205 (3d Cir. 2006) (citing United States v. Panarella, 277 F.3d 678, 689 (3d Cir. 2002)). Petitioner expressly waived the right to challenge the chain of custody of evidence or the consideration of an improper confession when he waived his right to trial. The Court is unable to consider such allegations nearly seven and a half (7.5) years after Petitioner waived them.
Even if such waiver did not exist, however, Petitioner's bald assertions are unsubstantiated by the record. Not only did Petitioner fail to raise any such concerns during Judge Gardner's thorough guilty plea colloquy, but, assuming arguendo that Mr. McMahon had successfully suppressed such evidence, Petitioner still does not counter the very real fact that his ten (10) year old stepdaughter came forward before an investigation ever began and accused him of taking over eighty (80) photographs of her dressed in various forms of undress and lingerie. Even if Petitioner successfully showed that it was deficient performance for Mr. McMahon to not request a suppression hearing as to the chain of custody and his confession, given the other evidence presented against Petitioner, he has not provided sufficient evidence to suggest that such performance prejudiced Petitioner (i.e. the result of the proceedings would have been different).
When explaining what Petitioner was giving up through pleading guilty, Court and Petitioner engaged in the following exchange:
THE COURT: During your trial...you would also have the right to challenge the admissibility of the Government's evidence, that is to ask the Court to keep out any evidence that violates the United States Constitution, your rights, or the rules of evidence or rules of procedure. Do you understand those things?...
THE DEFENDANT: Yes sir, your Honor.
THE COURT: If a defendant makes a statement or confession or an admission to a law enforcement official and if that statement were taken in violation of the law or in violation of any of the defendant's legal rights, a defendant could ordinarily ask the Court to throw that statement out and to not permit the Government to use it against the defendant at trial. Do you understand that?...
THE DEFENDANT: Yes, sir, your Honor.
THE COURT: And if the Government had taken anything from a defendant in a search and seizure of the defendant's home or office or car or computer or person, or other property, but had done so in violation of the law, the defendant could ask the Court to throw out that evidence and to not permit the Government to use it against the defendant at trial. Do you understand that as well?
THE DEFENDANT: Yes, sir, your Honor, I understand. Thank you.Plea Colloquy Tr. 75:22; 76:6-10; 78:4-25; 79:1-13.
THE COURT: Okay. Now, I understand that you did give a statement in this case to law enforcement officials and that law enforcement officials did conduct searches and seizures involving your property. Because of that, because you gave such statement and because such evidence was taken from you by law enforcement officials, by virtue of your guilty plea, you would be giving up your right to contest the use of your statements or confessions or of any property seized from you. By pleading guilty, you in effect would be withdrawing any pretrial motions or requests to suppress any statements you may have made, or to suppress the results of any search and seizure of your property by law enforcement officials. Do you understand that?
THE DEFENDANT: Yes, sir, your Honor.
4. Claim Five: Totality of the Circumstances of Grounds One Through Four Renders Counsel Ineffective
Finally, Petitioner argues that the totality of the alleged errors by Mr. McMahon, as noted in the first four counts of his petition, amount to ineffective assistance of counsel. The Court has addressed each of these arguments above and has failed to find one meritorious allegation of ineffective assistance. Considering these claims in conjunction does not change the Court's carefully considered conclusions.
Not only does the Court find Mr. McMahon's efforts to have not amounted to ineffective assistance, but apparently Petitioner also felt this way at the time of his plea hearing. Specifically, Petitioner responded "yes" when asked, "So far, has Attorney McMahon done everything for you that you wanted him to do for you in your case?" Plea Colloquy Tr. 30:6-8. Petitioner also said "yes" when asked, "Are you satisfied that Attorney McMahon has given you effective assistance as your lawyer in this matter?" Id. at 30:13-16. Petitioner had ample opportunity to speak on the record about Mr. McMahon's alleged deficient performance, but Petitioner failed to do so. Because the present record so clearly contradicts Petitioner's claims with respect to Mr. McMahon's representation, this Court finds the totality of Petitioner's claims for ineffective assistance of counsel meritless.
Accordingly, even if Petitioner's claims had not been time-barred and waived, his § 2255 petition would still fail to state an appropriate ground for relief and would warrant neither an evidentiary hearing nor further consideration of his petition.
E. Certificate of Appealability
When a District Court denies a § 2255 petition, a petitioner may not appeal such decision to the Court of Appeals unless he has obtained a certificate of appealability. 28 U.S.C. 2253. "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.A. § 2253(c)(2). Petitioner must apply to the District Court for such a certificate, pursuant to Local Appellate Rule 22.2.
The Third Circuit has denied requests for certificates of appealability where ineffective assistance of counsel was alleged by a petitioner but proved to be a baseless claim. See Santana v. United States, 98 F.3d 752, 753 (3d Cir. 1996) ("Since [the petitioner] has not made a substantial showing of the denial of a constitutional right [,despite his claims of ineffective assistance of counsel,] we deny the request for a certificate of appealability); Hadaway v. United States, No. 09-CR-161-01, 2014 WL 12709013, at *1 n.2 (E.D. Pa. July 23, 2014) ("In view of Petitioner's untimely motion and unpersuasive 'actual innocence' argument, a reasonable jurist would conclude that the Court would be correct in denying the Section 2255 motion as untimely. Accordingly, a certificate of appealability should not issue."). The Supreme Court had held that "where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner 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). However, if the district court denies a habeas petition on procedural grounds - without reaching the underlying constitutional claim - a certificate of appealability should "issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.
Here, the record is clear as to the baselessness of Petitioner's constitutional claims. For the reasons previously considered by the Court, Petitioner has not made the requisite showing that a constitutional right is being substantially denied, and no reasonable jurist would find that Petitioner's § 2255 petition was improperly denied. Accordingly, Petitioner's request for a certificate of appealability is denied
V. Conclusion
For the reasons set forth hereinabove, Petitioner's § 2255 is denied, and the Government's Motion to Dismiss is granted. An appropriate Order follows.
BY THE COURT:
/s/ C. Darnell Jones , II
C. Darnell Jones, II J.