Opinion
CRIMINAL 3:12-CR-179
03-01-2022
UNITED STATES OF AMERICA, v. EDWARD MCLAUGHLIN, Defendant
MARIANI, D.J.
REPORT & RECOMMENDATION
William I. Arbuckle U.S. Magistrate Judge
I. INTRODUCTION
Edward McLaughlin (“Defendant”) is a former marine diagnosed with bipolar disorder who was charged with federal crimes as a result of a plot to have his ex-wife killed. Presently pending before the Court is a motion filed under 28 U.S.C. § 2255 in which he challenges the combined 240-month (20 year) prison sentence imposed for those crimes.
This matter has been referred to me to prepare a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. In their briefs, both parties agree that the five year conviction for Count Three of the Third Superseding Indictment should be vacated.
Defendant also requests that the Court hold an evidentiary hearing on this motion and vacate the convictions for Counts One and Five of the Third Superseding Indictment.
Accordingly, it is RECOMMENDED that Defendant's Motion to Vacate (Doc. 418) be GRANTED in part and DENIED in part as follows:
(1) All pro se Motions to Vacate should be DENIED as MOOT.
(2) No evidentiary hearing is necessary to resolve the Rehaif claim because it is untimely.
(3) No evidentiary hearing is necessary to resolve the ineffective assistance of counsel claims because the record conclusively shows that Defendant is not entitled to relief.
(4) The conviction and five year mandatory minimum sentence imposed for Count Three of the Third Superseding Indictment should be VACATED.
(5) Defendant's request to vacate the remaining convictions under Counts One and Five of the Third Superseding Indictment on the basis of Rehaif and ineffective assistance of counsel should be DENIED.
II. BACKGROUND & PROCEDURAL HISTORY
According to the Government's proffer during the guilty plea hearing, in June 2011, Defendant and Gary Williams were cellmates at Pike County prison. (Doc. 191, p. 18). During that time, Defendant solicited Mr. Williams to kill Defendant's ex-wife, Joanna VanTine. Id. Defendant told Mr. Williams that Ms. VanTine was sexually abusing their children. Id. Mr. Williams agreed to kill Ms. VanTine. Id.
When Mr. Williams was released from the county prison, he went to live with his girlfriend, Gloria Soto. Id. Mr. Williams told Ms. Soto about the murder-for-hire plan. Id.
In December 2011, Defendant was released from prison. (Doc. 191, p. 19). On March 5, 2012, Defendant shipped a German Mauser rifle and a box of bullets from an address in Florida to Ms. Soto's apartment in Scranton, Pennsylvania. Id. On March 8, 2012, the rifle and ammo arrived. Id. Mr. Williams went to the shooting range to practice his aim. (Doc. 191, pp. 19-20). Defendant visited Mr. Williams, accompanied him to the shooting range, and made adjustments to the rife to improve its accuracy. (Doc. 191, p. 20).
On May 29, 2012, Mr. Williams used the rife to shoot at Ms. Soto. (Doc. 191, p. 21). The police responded to the incident and arrested Mr. Williams. Id. Five or six days later, Ms. Soto told Police about the murder-for-hire plan. Id. The police and the F.B.I. searched Ms. Soto's apartment and seized evidence, including the rife and the box it was shipped in. Id. The F.B.I. also recorded phone calls between Ms. Soto and Defendant. (Doc. 191, p. 22). Letters exchanged by Defendant and Mr. Williams were also recovered.
On June 18, 2012, the United States Government filed a criminal complaint alleging that Defendant used interstate commerce facilities in the commission of murder for hire, in violation of 18 U.S.C. § 1958. (Doc. 1).
On July 17, 2012, a grand jury in the Middle District of Pennsylvania indicted Defendant on the following three charges: (1) using interstate commerce facilities in the commissioner of murder for hire, in violation of 18 U.S.C. § 1958; (2) solicitation to commit a crime of violence, in violation of 18 U.S.C. § 373; and (3) using a deadly weapon in relation to any crime of violence, in violation of 18 U.S.C. § 924. (Doc. 10). Superseding indictments, adding a co-defendant and additional charges, were returned on August 28, 2012 (Doc. 30) (“First Superseding Indictment”), April 23, 2013 (Doc. 78) (“Second Superseding Indictment”), and September 10, 2013 (“Third Superseding Indictment”) (Doc. 145).
In the Third Superseding Indictment (filed 20 days before trial), Defendant was charged with:
(1) conspiracy to use interstate commerce facilities in the commission of murder for hire, in violation of 18 U.S.C. § 1958 (“Count One”);
(2) solicitation to commit a crime of violence, in violation of 18 U.S.C. § 373 (“Count Two”);
(3) carrying or possessing a firearm during and in relation to, or in furtherance of a crime of violence as an aider and abettor, in violation of 18 U.S.C. § 924(c) and 2 (“Count Three”);
(4) shipping and transporting a firearm and ammunition while being subject to a court order, in violation of 18 U.S.C. § 922(g)(8) and 18 U.S.C. § 924(a)(2) (“Count Four”);
(5) shipping a firearm and ammunition after having been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1) (“Count Five”);
(6) transferring in interstate commerce a firearm with knowledge that it would be used to commit a crime of violence, in violation of 18 U.S.C. § 924(h) (“Count Six”);
(7) shipping and transporting in interstate commerce a firearm and ammunition knowing or having reason to believe that a felony is to be committed therewith, in violation of 18 U.S.C. § 1958 and 18 U.S.C. § 924(b) (“Count Seven”);
(8) not being a licensed importer, dealer or collector of firearms and transferring, giving, or transporting a firearm to another person in another state who is not a licensed importer, dealer or collector of firearms, in violation of 18 U.S.C. § 922(a)(5) and 18 U.S.C. § 924(a)(1)(D) (“Count Eight”); and
(9) solicitation to commit a crime of violence - attempting to forcibly tamper with a witness, in violation of 18 U.S.C. § 1512(a)(A) and .18 U.S.C. § 373.(Doc. 145) (boldface added to identify the Counts Defendant pleaded guilty to).
A. Plea Agreement & Change of Plea Hearing
At 9:00 A.M. on September 30, 2013, jury selection began in this case. However, before selection was completed, Defendant accepted and signed a plea agreement. (Doc. 162). Defendant also signed a statement. (Doc. 163). Pursuant to the terms of that agreement, Defendant pleaded guilty to Counts One (use of interstate commerce facilities in the commissioner of murder for hire), Three (possession of a firearm to commit a crime of violence), and Five (transportation of a firearm by a felon). (Docs. 162, 191).
Before sentencing, Defendant sought to withdraw his guilty plea. During a hearing on the motion to withdraw that plea, Attorney Henry testified:
[Henry]: . . . .What he told me that day what he wanted was for his son to testify at trial and for me to attack his wife on the sexual assault, sexual abuse allegations. When he was
informed that his son would not testify and that he had— he knew the evidence against him, I think there was a concern that he would go to trial and lose and face a life sentence. So that is when we discussed over other options.
[Krasner]: What is the day when you were discussing the other options?
[Henry]: The morning of that—of the trial.
[Krasner]: Okay.
. . . .
[Henry]: I was prepared to go to trial. We were not prepared as we discussed the fact that we wouldn't be able to beat up his wife on the sexual abuse allegations and have—his son was not going to testify. That is when [Defendant] asked me to talk about other options.
[Krasner]: That discussion took place in the courtroom on the morning of the trial?
[Henry]: We had talked before. We talked about him cooperating against Mr. Williams at one point. So we had talked before about trial versus non-trial. Like many clients do, at the time that the bell was to ring, he no longer wanted to go to trial.
. . . .
[Krasner]: Then comes Saturday and Sunday. We get to Monday morning September 30, 2013, and decision about not going to trial are being made in court with Mr. McLaughlin, correct?
[Henry]: He changed his mind that morning, correct.
[Krasner]: Okay. What changed his mind?
[Henry]: You have to ask him.
[Krasner]: You had no idea?
[Henry]: Well, as I said, he wanted his son to be able to testify. That wasn't going to happen. He wanted me to go after his ex-wife on the sexual assault, sexual abuse angle. I told him that wasn't going to happen. Did he lose his nerve? Maybe he lost his nerve. He was the one that asked about a guilty plea.(Doc. 397, pp. 15-18).
During the change of plea hearing on September 30, 2013, Defendant testified:
[Court]: All right. I take it your willingness to enter a plea of guilty here is—at least in part due to the fact that you've reached a plea agreement with the government?
[Defendant]: that is correct, sir.
[Court]: All right. Now, did you have an opportunity to read and discuss this plea agreement with Mr. Henry before you signed it?
[Defendant]: Yes, sir.
[Court]: And does the plea agreement contain the complete and total understanding between you and the government?
[Defendant]: Yes sir, it does.
[The Court]: Do you understand the terms of the plea agreement?
[Defendant]: Yes, sir, I do.(Doc. 396, pp. 6-7).
As it pertains to Defendant's potential sentencing exposure, Defendant was advised of the Judge's sentencing discretion as follows:
Q You do understand that the terms of the plea agreement are simply recommendations to me, I am not bound by the terms of the plea agreement? Do you understand that?
A Yes, sir, I, do.
. . . .
Q And I can impose a sentence that may be more severe than the one you expect?
A I understand, sir.(Doc. 396, p. 7).
Defendant was also advised of his maximum potential exposure during the change of plea hearing:
Q Okay. Now, I am obliged to tell you what the maximum sentence is available for each of these counts. First, on count one, the use of interstate commerce facilities in the commissioner of murder for hire is ten years in prison $250,000 fine, up to three years of supervised release and a $100 special assessment.
Count three, possession and use of a firearm during and in relation to a crime of violence, aiding and abetting, that's five years mandatory minimum to life in prison, $250,000 fine, three years of supervised release, $100 special assessment. And count five, shipping and transporting a firearm in interstate commerce, maximum of ten years in prison, $250,000 fine, three years of supervised release, $100 special assessment. Granted that these terms involve the course of a mandatory minimum of five years no matter what and a maximum of life in prison in terms of an accumulation of these three counts, do you understand that?
A Yes, sir.(Doc. 396, pp. 8-9).
As to Defendant's mental state during the plea hearing, Defendant provided the following testimony at the hearing:
[Court]: All right. I'm asking you the next question because I want to make sure your mind is clear and you can make decision about your personal welfare. Have you recently been treated by a physician or psychiatrist for any sort of mental illness?
[Defendant]: No, sir.
[Court]: Are you currently under the influence of any medicine, drug, alcohol?
[Defendant]: No, sir.
[Court]: Your mind is clear?
[Defendant]: Yes, sir.
[Court]: And you can make decisions about your personal welfare?
[Defendant]: Yes, I can.(Doc. 396, p. 4).
B. Post-Plea Assessment by Dr. Baird & Motion for Psychiatric Evaluation
After Defendant pleaded guilty, Attorney Henry requested a psychological evaluation “for possible mitigation of sentencing.” (Doc. 192-2, p. 1). On December 6, 2013, approximately 60 days after Defendant pleaded guilty, psychologist John S. Baird, Ph.D. conducted that evaluation. Id. In his report, Dr. Baird concluded that Defendant had an IQ of 132, and was “definitely not . . . incompetent intellectually.” (Doc. 192-2, p. 5).
However, back in 2002, Defendant was evaluated for PTSD, and was diagnosed with Anxiety Disorder NOS with a GAD score of 50. (Doc. 192-2, p. 2). In 2007, Defendant was declared 100% disabled by Veteran's Affairs due to Post-Traumatic Stress Disorder (“PTSD”) and Agent-Orange-related physical ailments. Id. Defendant was not prescribed medication for mental illness at any point in his life before 2014. (Doc. 192-2, p. 6).
In December 2013, Dr. Baird assessed that Defendant's mental illness was misdiagnosed by Veteran's Affairs. Dr. Baird reported that Defendant suffers from “Bipolar I Disorder: Moderate, most recent episode manic (296.44) with mood-congruent psychotic features, ” antisocial personality disorder, and alcohol use disorder (in sustained remission). (Doc. 192-2, p. 5). Dr. Baird describes these as “serious mental illness.” (Doc. 192-2, p. 6).
In terms of symptoms, Dr. Baird reported that:
The predominant symptomology at the present time is Bipolar I (manic episode). McLaughlin's behavior is hyperactive, energetic, and agitated (“My mind never turns off”). He is unusually talkative, to the point that interviewing him is very difficult. He interrupts and doesn't like being interrupted. He is distractible and can be directed easily away from one subject to another. At the same time he is effusive about certain topics, in this case the alleged mistreatment of his children. The cognitive components of the diagnosis in McLaughlin's
case also include paranoid and schizoid delusions, mostly about his wife's behavior (“Morris County is crawling with lesbians”), his past history (“I was a highly paid child model; made tons of money”), and his children's situation (“they were taken to the ER over 65 different times”). Finally he is impaired by these moods, losing jobs, his marriage, his children and his social relationships.(Doc. 192-2, p. 5).
Dr. Baird anticipated that Defendant “may respond very positively to certain medications, ” suggested Lithium-type drugs along with anti-depressants, and concluded that:
The fact that he has been denied adequate psychiatric attention (diagnosis and treatment) constitutes grounds for mitigation appeal in the sentencing process, especially if a significant change can be demonstrated prior to sentencing. Evidence exists of an: “ongoing tendency of the Supreme Court to seek to include evidence of a defendant's potential for rehabilitation and a law-abiding future” as a mitigating factor (see J Amer Acad of Psychiatry and the Law (10-20-2007).
It goes without saying that such rehabilitation is wholly dependent upon total abstinence from alcohol. Given the likelihood that Edward McLaughlin will spend the greater part of his remaining life in jail, this aspect of “treatment” is all but assured. And should he respond positively to appropriate psychiatric medication in the next few months, perhaps a mitigated sentence will allow him to someday see the light of day and his three grown children.(Doc. 192-2, pp. 6-7).
On February 10, 2014, Attorney Henry filed a motion for psychiatric examination pursuant to 18 U.S.C. § 4241(a). In that motion, Attorney Henry— citing to Dr. Baird's report—requested a “thorough psychiatric evaluation to determine mental status, and treatment options for [Defendant's] current symptoms.” (Doc. 192).
On April 3, 2014, after new counsel (Attorneys Krasner and Collins) began representing Defendant, the motion for psychiatric examination was deemed withdrawn because no supporting brief was filed. (Doc. 206).
C. Motion to Withdraw Guilty Plea & Opinion Denying The Motion
On March 18, 2014, Attorneys Krasner and Collins filed a motion to withdraw Defendant's guilty plea. (Doc. 200). On March 21, 2014, a two-page brief in support was filed. (Doc. 202). In that motion, Defendant argued:
Mr. McLaughlin's plea was induced by either an unfulfilled or unfulfillable promise. According to Mr. McLaughlin's prior attorney, the Federal authorities agreed to investigate allegations involving Mr. McLaughlin's wife if he entered a guilty plea. Mr. McLaughlin and his counsel are unaware of any attempts to investigate Mr. McLaughlin's wife. Since this promise has gone unfulfilled, and Mr. McLaughlin would not have pled guilty without this promise, it would be fair and just to allow him to withdraw his plea. In addition, Mr. McLaughlin has consistently denied the Government's allegations in this matter. As such, Mr. McLaughlin has established appropriate grounds to withdraw his plea under Federal law and respectfully requests that this Court allow him to withdraw his plea.(Doc. 202, p. 2).
On March 31, 2014, the Government filed a brief in opposition. (Doc. 205).
On July 9, 2014, the Court held a hearing on Defendant's motion to withdraw his plea. (Doc. 247).
On July 23, 2014, the court issued an opinion on Defendant's motion to withdraw. Id. In its opinion, the court construed Defendant's motion as raising two issues in support of his motion to withdraw: (1) Defendant entered into the plea agreement in exchange for an investigation of his ex-wife; and (2) Defendant pleaded guilty as a result of allegedly erroneous sentencing advice from Attorney Henry. Id. The Court found that: (1) no evidence supports a finding that an investigation of Defendant's ex-wife was a condition to his entry of a guilty plea; and (2) even if Attorney Henry's sentencing prediction was not correct, counsel was not ineffective because Defendant was informed of the sentencing court's discretion and his maximum potential exposure during the plea colloquy. Id.
D. Presentence Investigation Report
On November 25, 2013, the presentence investigation report (“PSR”) was circulated. On February 11, 2014, Attorney Henry submitted one objection to the PSR. Attorney Krasner later withdrew that objection. (Doc. 394, pp. 2).
On February 26, 2014, the final PSR was circulated. The final PSR noted that a downward departure may be warranted under U.S.S.G. § 5H1.3 (mental and emotional conditions). Two addenda were circulated.
Paragraph 54 of the PSR includes a two point criminal history entry for criminal contempt in state court for a prior attempt to solicit two inmates to kill Ms. VanTine that took place the month before Defendant solicited Gary Williams to do so. That paragraph has been reproduced below:
54. 6/13/11 Contempt for Violation 7/29/11: 6 months § 4A1.1(b)
(age 62) Of Order or Agreement/ imprisonment; §4A1.2(c)(1)
Pike County Court of 12/18/11: released
Common Pleas, Milford upon expiration of
PA (MD-73-2011 sentence 2
Defense Counsel: Ronald M. Bugaj, Esq.
Between May 15, 2011 and May 20, 2011, the defendant, a prisoner at the Pike County Correctional Facility, Blooming Grove, Pennsylvania, solicited two inmates at the facility to kill his ex-wife and her boyfriend.
Ultimately, Defendant was found to have a total of seven criminal history points. Five based on past convictions, and two were added because Defendant was on probation in Morris County, N.J. when he committed this offense. Defendant had a criminal history category of four.
E. Sentencing
On January 4, 2015, Defendant filed a sentencing memorandum. (Doc. 273). In that memorandum, Defendant argued that he should be sentenced to five years in an institution close to his family where he could receive medical and psychiatric treatment due to his age, military service, mental health issues. Id.
During the sentencing hearing, the following discussion took place:
[Krasner]: Your Honor, the history of the case is that prior counsel, Mr. Henry, made an objection. We did not raise it. . . . We have, however, since we became involved in the case after the final pre-sentence
investigation, we have asserted in our sentencing memo that the prior history category overrepresents, and therefore, that either as a variance or as a departure or both, the Court should take into account.
The Court: Do you want to address that, sir?
[Krasner]: I can address that, sir.
The Court: Or do you want to address it on a 3553(a) context?
[Krasner]: Judge, I think the truth is the Court is well aware of the standard on variance is lower than the standard for a departure. However, in an abundance of caution, in light of the possibility of any sort of proceedings later, it may be just as well to address it in both fashions.
The Court: That's fine.
[Krasner]: Your Honor, with reference to the criminal history category, which is now listed as being a four, as we noted in our sentencing memorandum, the vast majority of the points that were counted for the purpose of coming to that criminal history category involve contempt of PFAs or PFA type activity. All of it involves the same complainant as the alleged victim in this particular case.
These were essentially matters that were raised in a domestic context, and they resulted in sentences of 30 days, 45 days, things of that sort.
His incident from 1972 was not counted, and properly not counted because it is remote in time, because it happened immediately after my client came out of combat in the United States military in Vietnam when he was not only under the influence of extreme experiences that he had, but also under the influence of an alcohol problem. So that's not counted. So really, if we look at it, the four points are based almost
exclusively upon the activity that involved the alleged victim of this particular case.
Of course, the other one has to do with an allegation of his firing the gun in the rear of his home and then of course there being certain guns that were found in his possession. Regardless, Judge, four points is just too much, it's too much. This is not someone like, for example Gary Williams who appeared before the court for sentencing who has a long history of violent offenses involving other people.
What we have here is a history of short periods of incarceration involving contempts that I think frankly simple overrepresents the history of this man now nearly 66 years old and his criminality.
The Court: All right. Mr. Sempa.
[Sempa]: Yes, your Honor, on that point we believe that this—the defendant's prior criminal history does not significantly over-represent the criminal history category. He seems to make light—defense counsel seems to make light of these contempt convictions. Well, those contempt convictions relate to refusing to obey court orders related to potential violence between he and his ex-wife. That's a serious matter.
Protection from abuse orders are in place to protect people, and Mr. McLaughlin had a history of violating those protection from abuse orders and simply refusing to obey orders of court. So those were properly counted.
In addition to that, the possession of these weapons and firing of the weapons, it's our allegations, that's a conviction. He says they're allegations. That's a conviction. And there was a points award for that. And finally, what he neglected to mention is that he also received points because he committed this offense while he was on supervision. He committed this offense
while he was on probation, which is also a very serious matter. And so we believe that the criminal history category of four is entirely appropriate in this case and does not significantly over-represent the category four criminal history.
The Court: All right. Any rejoinder, Mr. Krasner?
[Krasner]: Judge, I don't dispute the points that relate to the allegations in this matter. I don't dispute the couple points that are added for that. But your [sic] know, what you're going to hear through this entire sentencing is what you're hearing right now. It's a whole lot of talk about all these terrible things that could have happened and didn't. The fact is that it didn't. It is talking about potential, potential, potential, potential over and over and over and over. It is the same person who is accusing this man of things that didn't happen.
And therefore I do believe it overrepresents criminality. I've been doing federal practice for—certainly not as long as perhaps the Court has been in the system, but I've been doing it for over 25 years. And usually when I'm standing here with someone who has this kind of criminal history category, we're looking at a long history of disconnected, very serious offenses. It all comes down, almost all comes down to one person.
The Court: Hum. All right. Well, as far as the sentencing guidelines, as far as the departure is concerned, I'm going to deny your motion. It seems to be that from the standpoint of the sentencing guideline calculation, this is appropriately considered and counted; and therefore, I'm going to deny your motion.(Doc. 394, pp. 2-6).
The Court noted that the guideline calculation for an offense level of 35 with a criminal history category of four was 235 to 240 months on counts 1 and 5 running consecutively, with a mandatory minimum sentence of 60 months running consecutively to that for count 3 (which would result in a total prison term of 295 to 300 months). (Doc. 394, p. 6). The supervised release period is three to five years, the fine is $20,000 to $200,000 and a special assessment of $100 per count ($300 total). Id.
Although the Court did not impose the five year sentence requested by Defendant in his sentencing memorandum, or adjust Defendant's criminal history category as argued at the sentencing, he did determine that a downward departure from the sentencing guideline was appropriate based on the factors set forth in 18 U.S.C. § 3553(a). The Court sentenced Defendant to 120 months on Count One, 60 months on Count Three, and 60 months on Count Five. These sentences were ordered to run consecutively, for a total prison term of 240 months (20 years). (Doc. 277); (Doc. 394, p. 55). The Court also ordered Defendant to pay $2,200 in restitution and a $300 special assessment. Id.
F. Appeal & Motion to Vacate
On January 15, 2015, Defendant appealed the denial of his Motion to Withdraw his guilty plea. (Doc. 280). On April 25, 2016, the Third Circuit Court of Appeals affirmed the decision denying Defendant's Motion to Withdraw his guilty plea. (Doc. 290-1) (opinion affirming District Court decision).
On June 25, 2016, Defendant, through a new Attorney, Melinda Ghilardi, filed a Motion to Vacate under 28 U.S.C. § 2255. (Doc. 291). On June 26, 2016, Attorney Ghilardi filed a Motion to Stay. (Doc. 292). On June 27, 2016, Defendant's Motion to Stay was granted. (Doc. 298). The case was stayed “pending the filing of a supplemental pro se motion” by Defendant. Id.
Pursuant to the Court's Standing Order 15-6, the Office of the Federal Public Defender was appointed to represent all criminal defendants sentenced in the Middle District of Pennsylvania who may be eligible to seek a reduced sentence based upon the application of. Johnson v. United States, 135 S.Ct. 2551 (2015).
In that Motion, Attorney Ghilardi reported that the Motion to Vacate challenged Defendant's consecutive sentence for a violation of 18 U.S.C. § 942(c) based on the United States Supreme Court's decision in Johnson, 135 S.Ct. 2551. Attorney Ghilardi stated that any § 2255 motion under Johnson needed to be filed on or before June 26, 2016, and that to meet this deadline Attorney Ghilardi was required to file Defendant's § 2255 Motion without discussing it with Defendant. The stay was requested to allow Attorney Ghilardi to file a supplemental motion on Defendant's behalf after she had the opportunity to consult Defendant and incorporate any other additional issues Defendant might have.
On September 13, 2016, Defendant filed a Motion to Amend and Supplement the Record Pursuant to F.R.C.P. Rule 15(a)(1).” (Doc. 306). This Motion was construed both as a Motion to Supplement the Original Motion to Vacate, and as the Supplement itself, and was granted. (Doc. 316). In its order, the court directed the Government to respond to Defendant's petition, effectively lifting the stay. On August 9, 2017, the Government filed its Brief in Opposition. (Doc. 325). On August 17, 2017, Attorney Ghilardi filed a Reply Brief limited to the Johnson issue. (Doc. 326).
On August 23, 2017, Defendant filed a second motion seeking leave to amend the Original Motion to Vacate (Doc. 291). (Doc. 328). On September 8, 2017, Attorney Ghilardi filed a Motion requesting that the resolution of the pending Motion to Vacate (Doc. 291) be stayed until the United States Supreme Court ruled on petitions for writ of certiorari filed in United States v. Robinson, 844 F.3d 137 (3d Cir. 2016) and United States v. Galati, 844 F.3d 152 (3d Cir. 2016). (Doc. 329). On September 28, 2017, the Motion to Stay was granted. (Doc. 330).
The United States Supreme Court denied certiorari in United States v. Robinson on October 2, 2017. Robinson v. United States, 138 S.Ct. 215 (2017). The United States Supreme Court denied certiorari in United States v. Galati on January 8, 2018. Galati v. United States, 138 S.Ct. 636 (2018).
On March 12, 2018, Defendant filed a Motion requesting that his Johnson claim in his original Motion to Vacate (Doc. 291) be withdrawn. (Docs. 339, 340). Along with that Motion, Attorney Ghilardi filed a motion to withdraw as Defendant's Attorney. (Doc. 341). On March 15, 2018, the Court granted Defendant's Motion to Withdraw the § 2255 Motion and Attorney Ghilardi's motion to withdraw as counsel. (Docs. 342, 343).
On April 26, 2019, Defendant filed a Motion requesting modification of his sentence under the First Step Act, 18 U.S.C. § 3582. (Doc. 350). Pursuant to Standing Order 19-1, Attorney Frederick W. Ulrich was appointed to represent Defendant. (Docs. 351, 354). On June 7, 2019, Defendant filed a letter advising the Court that he would not allow a public defender to represent him, and Attorney Ulrich filed a motion to withdraw. (Docs. 353, 354). On June 11, 2019, that motion was granted. (Doc. 355). In its order, the Court advised Defendant that it would “consider Defendant's pro se filings (Docs. 350 & 353), in due course. Id. On June 19, 2019, the Government filed its response to Defendant's First Step Act Motion. (Doc. 356).
Pursuant to Standing Order 19-1, the Federal Public Defender's Office is appointed to represent all criminal defendants previously sentenced in the Middle District of Pennsylvania who may be eligible to seek a reduced sentence based on the application of Section 404 of the First Step Act. On June 7, 2019, Defendant filed a letter asking the Court whether he was entitled to relief under the First Step Act. (Doc. 353). In the same letter, Defendant stated that he was not willing to have a Public Defender represent him. Id. Also on June 7, 2019, Attorney Ulrich filed a Motion requesting leave to withdraw as counsel. (Doc. 354). On June 11. 2019, Attorney Ulrich's Motion to Withdraw was granted. (Doc. 355).
On October 29, 2019, Defendant filed several pro se Motions requesting leave to Amend his initial § 2255 Motion. (Docs. 363, 364, 365, 366). On November 11, 2019, a new pro se § 2255 motion was transferred to the Middle District of Pennsylvania from the District of New Jersey. (Doc. 370).
On March 18, 2019, Defendant filed a § 2241 Petition in the United States District Court for the District of New Jersey. (Doc. 370, p. 1). On October 10, 2019, Judge Renee Bumb issued an opinion and order transferring the § 2241 petition to the sentencing court because Defendant had a open § 2255 motion. (Doc. 370-4).
On November 26, 2019, Defendant filed a Motion requesting an evidentiary hearing. (Doc. 372). Also on November 26, 2019, the Court issued an Order denying the motion to recuse and referring this case to United States Magistrate Judge Martin C. Carlson. (Doc. 373).
On December 5, 2019, Defendant filed another series of Motions, including: a “Motion to Amend and Supplement the Record Pursuant to F.R.C.P. Rule 15(a)(1) for Defendant's Initial § 2255 Motion, ” (Doc. 375); a second Motion requesting that Judge Caputo recuse himself, (Doc. 376); an “Addendum” to his § 2255 Motion (Doc. 376); a Motion requesting an evidentiary hearing, (Doc. 377); a Motion requesting leave to amend his § 2255 Motion (Doc. 378); a second Motion requesting leave to amend his § 2255 Motion (Doc. 379); a Motion requesting to lift the September 2017 stay (Doc. 380); a request for copies of the first page of several motions (Doc. 381); and a letter informing the Court that he believes someone is interfering with his mail. (Doc. 382).
Also on December 5, 2019, Judge Carlson issued an Order. In his Order, Judge Carlson: (1) conditionally appointed the Federal Public Defender's Office, or a CJA attorney designated by that office, to represent Defendant; (2) conditionally granted all of Defendant's motions to amend or supplement his § 2255 Motion and directed appointed counsel to submit one comprehensive amended petition that addresses all of Defendant's claims. (Doc. 383). On December 9, 2020, Attorney Edward J. Rymsza, a private attorney on the CJA panel, was appointed to represent Defendant. (Doc. 384).
On March 17, 2020, this case was reassigned to United States District Judge Robert D. Mariani. On April 22, 2020, Judge Carlson recused himself in this case, and this case was referred to the undersigned. (Docs. 405, 407).
On June 1, 2020, Defendant, through his counsel, filed his Amended Comprehensive Motion to Vacate under § 2255. (Doc. 418). Along with his Motion, Defendant filed a Brief in Support. (Doc. 419). On August 5, 2020 the Government filed its Brief in Opposition. (Doc. 436). On September 2, 2020, Defendant filed his Reply. (Doc. 441). This motion (Doc. 418) is now ripe for decision.
III. STANDARD OF REVIEW
Section 2255 allows a prisoner who is in custody to challenge his sentence “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, ... 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). This remedy “does not encompass all claimed errors in conviction and sentencing, ” but rather “provides a basis for collateral attack [when] the claimed error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Defendants are generally entitled to a hearing on their motion under section 2255(b):
Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.28 U.S.C. § 2255(b).
This option to grant an evidentiary hearing falls within the discretion of the district court. See Gov't of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). “In exercising that discretion, the Court must decide whether the petitioner's claims, if proven, would entitle petitioner to relief and then consider whether an evidentiary hearing is needed to determine the truth of the allegations.” United States v. Cidone, No. 3:09-CR-61, 2013 U.S. Dist. LEXIS 177926, *7 (M.D. Pa. 2013) (citing Gov't of the Virgin Islands v. Weatherwax, 20 F.3d 572, 574 (3d. Cir. 1994)). Thus, a district court may decline to hold a hearing where the “motion, files, and records, ‘show conclusively that the movant is not entitled to relief.'” United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994) (quoting United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992)); see also Forte, 865 F.2d at 62.
IV. ANALYSIS
A. All Pro Se § 2255 Motions Filed Before The June 1, 2020 Amended Motion to Vacate Should be Denied as Moot
On December 5, 2019, the Court issued an order appointing counsel to represent Defendant in connection with his pending § 2255 motions, and to prepare and file a “comprehensive counseled petition and response.” (Doc. 383).
On June 1, 2020, a comprehensive counseled Motion to Vacate was filed by Defendant's appointed counsel, Attorney Rymsa. (Doc. 418). Upon the filing of this comprehensive counseled Motion to Vacate, any pro se motions to vacate filed before June 1, 2020 should be denied as moot. The Court's review is limited to the arguments presented in the June 1, 2020 Motion to Vacate (Doc. 418).
For the same reasons, the motion requesting that resolution of the now moot pro se motions to vacate filed before June 1, 2020 should also be denied as moot. (Doc. 409).
B. The Government Does Not Dispute that The Five-Year Mandatory Minimum Consecutive Sentence Imposed For Count Three of the Third Superseding Indictment Should be Vacated Because 18 U.S.C. § 924(c)(3)(B) Is Unconstitutionally Vague & Does Not Oppose Vacating That Conviction
In Count Three of the Third Superseding Indictment, Defendant was charged with a violation of 18 U.S.C. § 924(c). (Doc. 145). The version of Section 924(c) of Title 18 of the United States Code in effect when Defendant was charged and sentenced, provides in relevant part that:
(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—
(i) be sentenced to a term of imprisonment of not less than 5 years;
Section 924(c)(1)(D) specifies that the sentence for this offense cannot run “concurrent.” Section 924(c)(3) provides that:
(3) For purposes of this subsection the term “crime of violence” means an offense that is a felony and—
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.Courts refer to 18 U.S.C. § 924(c)(3)(A) as the elements clause and 18 U.S.C. § 924(c)(3)(B) as the residual clause.
On June 26, 2015, the United States Supreme Court held that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551 (2015).
On April 17, 2018, the United States Supreme Court held that the residual clause of the federal criminal code's definition of “crime of violence” in 18 U.S.C. § 16 was unconstitutionally vague. Sessions v. Dimaya, 138 S.Ct. 1204 (2018). On June 24, 2019, the United States Supreme Court held that the residual clause that Defendant was sentenced under for Count Three of the Third Superseding Indictment—18 U.S.C. § 924(c)(3)(B)—was unconstitutionally vague. United States v. Davis, 139 S.Ct. 2319 (2019).
Defendant argues that, with the residual clause of 18 U.S.C. § 924(c)(3)(B) invalidated, his conviction under 18 U.S.C. § 924(c) in Count Three of the Third Superseding Indictment cannot stand, because the predicate conspiracy to commit murder for hire conviction (Count One) is not a “crime of violence” under the surviving elements clause. (Doc. 419, pp. 10-14). Courts have held that a conviction under 18 U.S.C. § 1958 for conspiracy to commit murder for hire cannot serve as a predicate offense under the elements clause of 18 U.S.C. § 924(c)(3). See e.g. Qdar v. United States, No. 16-CV-3593, 2020 WL 3451658, at *2 (E.D.N.Y. June 24, 2020) (holding that a conspiracy to commit murder conviction under 18 U.S.C. § 1958 is not a crime of violence under the elements clause § 924(c)(3)). In its Brief, the Government states that it “does not oppose vacating McLaughlin's conviction on Count 3, a violation of 18 U.S.C. § 924(c).” (Doc. 436, pp. 31-32).
The Government has not raised the issue of procedural default in relation to this issue. The Court assumes, without deciding that this issue either has not been procedurally defaulted or that any default of this claim may be surmounted by a showing of cause and prejudice. See United States v. Mitchell, 218 F.Supp.3d 360, 366-67 (M.D. Pa. 2016).
C. Defendant's Rehaif Claim
In Count Five, Defendant was charged with, and pleaded guilty to, violating 18 U.S.C. § 922(g)(1). The Third Superseding Indictment states, in relevant part:
Count 5
On or about March 5, 2012, in Lackawanna County, within the Middle District of Pennsylvania, and elsewhere, the defendant
EDWARD MCLAUGHLIN,
having been convicted in court of the crime punishable by imprisonment for a term exceeding one year, knowingly shipped and transported in interstate commerce from the state of Florida to the
state of Pennsylvania, a firearm, namely, a Mauser bolt action rifle, Model 48, 8mm caliber, serial number M57032, and ammunition.
In violation of Title 18, United States Code, Section 922(g)(1)(Doc. 145).
Section 922(g) of Title 18 of the United States Code provides, in relevant part:
(g) It shall be unlawful for any person-(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
. . . .
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Section 924(a)(2) of Title 18 of the United States Code provides that anyone who “knowingly” violates 18 U.S.C. § 922(g) “shall be fined as provided in this title, imprisoned for not more than 10 years, or both.”
On September 25, 2013, the Government filed a stipulation entered into between the United States and counsel for Defendant. In that stipulation it states that:
The defendant Edward McLaughlin has a prior conviction for resisting arrest and malicious damage to public property in Bergen County, New Jersey on 5-4-1973; and a prior conviction for criminal mischief and three counts of unlawful possession of a weapon in Morris County, New Jersey on 7-1-2003; and those convictions are felonies and punishable by more than one year in prison.(Doc. 155).
On September 30, 2013, Defendant pleaded guilty to violating 18 U.S.C. § 922(g)(1).
The plea agreement signed by Defendant states in relevant part that:
The defendant also agrees to plead guilty to Count 5. Count 5 charges the defendant with unlawfully shipping in interstate commerce a firearm in violation of Title 18, United States Code, §922(g)(1). That charge carries a potential maximum sentence of ten (10) years in prison, a $250,000 fine, a maximum term of supervised release of up to three (3) years, to be determined by the court, which shall be served at the conclusion of and in addition to any term of imprisonment, as well as the costs of prosecution, imprisonment, probation, or supervised release order, denial of certain federal benefits and an assessment in the amount of $100. At the time the guilty plea is entered, the defendant shall admit to the Court that the defendant is in fact guilty of the offenses charged in those counts.(Doc. 162).
In its proffer at the guilty plea, the Government stated that it could prove that:
Mr. McLaughlin had a prior—had prior felony convictions in Morris County, New Jersey in 2003. 2002 was the commission of the offense. 2003 was the sentence. So, therefore, at the time that he shipped the rifle in 2012 he had prior felony conviction for unlawful possession of a firearm.(Doc. 191, p. 24). The agent who took Defendant's confession (Agent Whitehead) also testified that Defendant “acknowledged that he had a prior felony conviction from 2002.” (Doc. 191, p. 28).
In 2017, Defendant was sentenced to 60 months (5 years) in prison for this offense.
In 2019, the United States Supreme Court held that in a prosecution under 18 U.S.C. § 922(g) and 18 U.S.C. § 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. Rehaif v. United States, 139 S.Ct. 2191, 2200 (2019). Having a felony conviction alone is not enough. The Defendant must know that he has been convicted of a crime that had a potential sentence of more than one year.
Defendant alleges his conviction under Count Five of the Third Superseding Indictment is invalid pursuant to Rehaif because the indictment did not allege Defendant's knowledge of his status as a felon (at the time he shipped the rifle), and Defendant did not admit knowledge of his status as a felon when he entered his guilty plea. Defendant argues that because of these defects: (1) Defendant's plea is invalid because he was not given real notice of the true nature of the charge against him; and (2) the failure to allege or prove knowledge of his felon status when he shipped the rifle means that Defendant's conduct of shipping a gun and ammo was not a crime.
In response, the Government argues that Defendant's claim that his conviction under Count Five is invalid has been procedurally defaulted because it was not raised on direct appeal.
In reply, Defendant argues that his claim related to the defective indictment is a non-waivable jurisdictional issue. Defendant argues, in the alternative, that even if this issue is non-jurisdictional, procedural default should be excused because he can show “cause and prejudice” and “actual innocence.”
1. Defendant's Rehaif Claim is Untimely Because It Does Not Announce A New Retroactive Right
Courts have the power to raise the AEDPA limitations issue sua sponte in cases arising under 28 U.S.C. § 2254 and 2255, but must give the movant notice and an opportunity to respond to the timeliness issue before deciding it. United States v. Darden, No. 15-173-1, 2021 WL 4476889, at *n. 4 (E.D. Pa. Sept. 30, 2021) (citing United States v. Bendolph, 409 F.3d 155 (3d Cir. 2005). A magistrate judge's proposed findings and recommendations on dispositive matters, like those presented in Defendant's § 2255 motion, do not have the force of law unless a District Judge accepts those findings and recommendations. After service of my proposed findings on the issue of timeliness in this Report & Recommendation, either party may file written objections, which are considered de novo by the District Judge in determining whether to accept or reject my findings. Therefore, this Report serves as notice of the timeliness issue, and by virtue of the objection process both parties may, if they choose, respond before the District Judge decides this issue.
The United States Supreme Court issued its decision in Rehaif on June 21, 2019. Defendant raised his Rehaif claim for the first time on June 1, 2020. Defendant argues in a footnote, and the government does not dispute, that his Rehaif claim is timely because Defendant filed his motion within one year of the Supreme Court's decision. (Doc. 419, p. 18 n. 18); see also 28 U.S.C. § 2255(f)(3).
The question that follows, is whether Rehaif announced a new right made retroactive to cases on collateral review—like this § 2255 motion. The United States Supreme Court has not addressed this issue. The Third Circuit, along with several other Circuits, have held that Rehaif cannot be raised in a successive petition under § 2255(h)(2) because it did not announce a new rule of constitutional law, made retroactive by the Supreme Court on collateral review, that was previously unavailable. See In re Sampson, 954 F.3d 159, 161 (3d Cir. 2020); see also Mathis v. United States, No. 2:20-CV-8951, 2021 WL 1783285, at *3 (D. N. J. May 5, 2021) (citing Tate v. United States, 982 F.3d 1226, 1228 (9th Cir. 2020); Mata v. United States, 969 F.3d 91, 93 (2d Cir. 2020); Khamisi-El v. United States, 800 Fed.Appx. 344, 349 (6th Cir. 2020); In re Palacious, 931 F.3d 1314, 1315 (11th Cir. 2019)).
Defendant's motion, however, is an initial § 2255 motion that is “subject to a less stringent provision that does not require the ‘newly recognized right' to be a constitutional one.” Mathis, 2021 WL 1783285 at *3 (citing Boatwright v. Warden Fairton FCI, 742 Fed.Appx. 701, 703 (3d Cir. 2018) (“Unlike new rules permitted successive § 2255 motions, new ‘rights' triggering § 2255(f)(3) need not be constitutional.”). If Rehaif recognizes a new non-constitutional right or rule made retroactive, then an initial § 2255 motion brought pursuant to Rehaif but filed more than one year after the petitioner's final judgment is nevertheless timely, so long as the motion was filed within one year of the Rehaif decision. See 28 U.S.C. § 2255(f)(3). If Rehaif does not recognize such a right, these motions are time-barred.
The Third Circuit has not addressed whether Rehaif announced a new non-constitutional rule made retroactive to initial § 2255 motions. District Courts that have undertaken a retroactivity analysis under Teague v. Lane, 489 U.S. 288 (1989) and its progeny have reached different conclusions.
As a District Court in New Jersey has recently explained:
Under Teague, a new rule imposed by the Supreme Court is generally not to be applied retroactively to criminal cases on collateral review. 489 U.S. at 310 (holding “new” . . . rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced”). The two exceptions to this prohibition are: (1) new rules that are substantive; or (2) new “watershed rule[s] of criminal procedure.” Whorton v. Bockting, 549 U.S. 406, 416 (2007) (citation omitted). “A rule is substantive . . . if it alters the range of conduct or the class of persons that the law punishes.” Schriro v. Summerlin, 542 U.S. 348, 353 (2004). “In contrast, rules that regulate only the manner of determining the defendant's culpability are procedural.” Id. And a rule is a “watershed rule of criminal procedure” if it “implicat[es] the fundamental fairness and accuracy of the criminal proceeding.” Id. at 352 (citation and quotation marks omitted). The Supreme Court has explained that this latter class of rules “is extremely narrow.” Id. A new rule of procedure that “merely raise[s] the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise” is not enough to constitute a “watershed” procedural rules and generally does not apply retroactively to cases on collateral review. Id.Mathis, 2021 WL 1783285 at *3.
Applying the Teague framework to Rehaif, District Courts have held in opinions addressing initial § 2255 motions that the requirement that the Government prove “knowledge of status” at the time of possession to convicted under § 922(g) is neither substantive nor a “watershed” rule triggering retroactivity. See United States v. Battle, No. 16-017, 2020 WL 4925678, at *5 (W.D. Pa. Aug. 21, 2020) (holding that Defendant's § 2255 motion was barred by the applicable statute of limitations because Rehaif is not a retroactive rule) (citing United States v. Rushton, No. 18-329, 2020 WL 4734720, at *2 (N.D. Ohio Aug. 14, 2020); Chavez v. United States, No. 09-504, 2020 WL 4430381, at *4 (D.N.J. July 31, 2020); and Swindle v. United States, No. 17-158, 2020 WL 3167012 (W.D. Mich. June 15, 2020) appeal docketed, No. 21-1211 (6th Cir. Mar. 3, 2021)), appeal in Battle docketed, No. 20-2726 (3d Cir. Aug. 25, 2020).
However, some district court opinions in this Circuit find that Rehaif is retroactive. See United States v. Roberts, No 15-387, 2020 WL 6700918, at *2 n. 3 (E.D. Pa. Nov. 13, 2020). In Roberts, the Court reasoned that:
Rehaif has “nothing to do with the range of permissible methods a court might use to determine whether a defendant should be sentenced” pursuant to § 922(g). See Welch [v. United States, 136 S.Ct. 1257, 1265 (2016)]. Rather, Rehaif altered the class of persons that the law punishes by narrowing the scope of § 922(g), such that the statute may no longer be used to prosecute individuals who did not know of their felon status at the time they possessed the firearm. See
Rehaif, 139 S.Ct. at 2194; see also [United States v. Dace, 469 F.Supp.3d 1074, 1081 (D. Colo. 2020) (finding the same)].
Supreme Court precedent supports this reading of Rehaif. In Bousley v. United States, 523 U.S. 614 (1988), for instance, the Court considered whether to give retroactive effect to Bailey v. United States, 516 U.S. 137 (1995), which examined a statutory provision imposing increased penalties on the “use” of a firearm in relation to certain crimes. Contrary to lower court precedent, which interpreted “use” to apply to both the active employment of a firearm as well as the mere possession of a firearm, the Baily Court interpreted “use” to apply only to the active employment of the firearm. Bousley, 523 U.S. at 617. In Bousley, the Court found this decision substantive, and therefore retroactive, because it held that a criminal statute “does not reach certain conduct” that lower courts had previously criminalized, manly, the mere possession of a firearm in relations to certain crimes. See Id. at 620. Similarly Rehaif held that a substantive criminal statute does not reach a certain “class of persons” on which lower courts have previously imposed punishment, see Schriro, 542 U.S. at 352, namely, convicted felons who possess a firearm while unaware of their felon status. These persons are now outside the scope of § 922(g). Because Rehaif, like Bailey, “narrow[s] the scope of a criminal statute” see id., it presents a substantive rule that should be given retroactive effect.2020 WL 6700918 at *2 n. 3.
Appellate decisions outside of this Circuit about Rehaif's retroactivity to initial § 2255 motions are also in conflict. See United States v. Darden, No. 15-173-1, 2021 WL 4476889 at, n. 4 (E.D. Pa. Sept. 30, 2021) (citing Kelley v. United States, No. 2021 WL 2373896 at *2 (6th Cir. Feb. 5, 2021) (noting that the parties agree that the district court erred when it concluded that Rehaif was not retroactively applicable to initial § 2255 petitions, but affirming because the Rehaif claim was procedurally defaulted); United States v. Scuderi, 842 Fed.Appx. 304, 305 (10th Cir. 2021) (refusing to disturb district court's dismissal of § 2255 motion based on Rehaif for untimeliness); and Young v. United States, No. 20-10334, 2020 WL 4334037, at *1 (11th Cir. Apr. 29, 2020) (finding Rehaif argument in initial § 2255 motion untimely under 28 U.S.C. § 2255(f) because Rehaif is not retroactive)).
I am persuaded that Rehaif is not retroactive to cases on collateral review because the new requirement that the Government prove knowledge of status is a procedural rule clarifying the Government's burden to obtain a conviction under § 922(g). In Welch v. United States, the Supreme Court explained:
“A rule is substantive rather than procedural if it alters the range of conduct or the class of persons the law punishes.” Schriro, 542 U.S. at 353. “This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish.” Id. at 351-352; see Montgomery, supra, at __, 136 S.Ct. at 728. Procedural rules, by contrast, “regulate only the manner of determining the defendant's culpability.” Schriro, 542 U.S. at 353. Such rules alter “the range of permissible methods for determining whether a defendant's conduct is punishable.” Ibid. “They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.” Id. at 352.578 U.S. 120 (2016).
The new rule created by Rehaif is distinguishable from that created in Bailey. In Bailey, the rule at issue changed the nature of the prohibited conduct (i.e. “use” of a firearm). By contrast, the rule in Rehaif addresses the knowledge of the Defendant before and during the time he or she was in possession of a firearm. It does not change the prohibited conduct—possession of a firearm by a convicted felon—but instead requires new method of proving guilt. Accordingly, I find that Defendant's Rehaif claim is time-barred.
2. Whether Defendant's Rehaif Claim Has Been Procedurally Defaulted
In the interest of judicial economy, I have included alternative findings on the issue of procedural default addressed by the parties in their briefs. If the District Judge agrees with my analysis that Defendant's Rehaif argument is time-barred, he need not make any finding on the issue of procedural default.
a. Failure to Allege Knowledge in the Indictment is Not a Jurisdictional Issue
In his reply brief, Defendant argues:
[T]he failure to charge a defendant with a crime is jurisdictional error that is not subject to waiver. See United States v. Skinner, 180 F.3d 514 (3d Cir. 1999), abrogation recognized in United States v. Stevenson, 832 F.3d 412 (3d Cir. 2016) (defendant did not waive jurisdictional defect in indictment by entering plea); see also United States v. Peter, 310 F.3d 709, 713-14 (11th Cir. 2003) (district court had no jurisdiction to adjudicate defendant guilty when indictment charged conduct that fell outside the reach of mail fraud statute); United States v. Meacham, 626 F.2d 503 (5th Cir. 1980) (district court had no jurisdiction where indictment charged a “conspiracy to attempt” to import/distribute marijuana, which was not a federal offense).(Doc. 441, pp. 2-3).
I am not persuaded by Defendant's argument that the failure to allege knowledge in the indictment in this case is a jurisdictional issue. Other courts to look at this issue have held that the omission of the Rehaif element in an indictment does not deprive a district court of jurisdiction. For example in United States v. Weatherspoon, another court reasoned that:
The omission of an element from the indictment does not affect the court's jurisdiction. United States v. Cotton, 535 U.S. 625, 630 (2002); United States v. Ratigan, 351 F.3d 957, 962-63 (9th Cir. 2003); see also United States v. Jackson, 2020 WL 7624842, at *1 (9th Cir. Dec. 22, 2020) (unpublished disposition) (rejecting the defendant's argument that omission of the Rehaif element deprived the district court of jurisdiction); United States v. Burleson, 2020 WL 4218317, at *1 (July 23, 2020) (unpublished disposition) (same); Espinoza, 2020 WL 2844542, at *1 (same); United States v. Moore, 954 F.3d 1322, 1332 (11th Cir. 2020); United States v. Hobbs, 953 F.3d 853, 856 (6th Cir. 2020); United States v. Balde, 943 F.3d 73, 88-92 (2d Cir. 2019); United States v. Burghardt, 939 F.3d 397, 402 (1st Cir. 2019). Cf. United States v. Singh, 979 F.3d 697, 730 (9th Cir. 2020) (on direct appeal, reviewing omission of Rehaif element from indictment for plain error). The indictment otherwise sufficiently states a cognizable criminal offense: possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).No. 2:20-CV-1133, 2021 WL 2092987 at *2 (D. Nev. May 24, 2021). I agree with the Court's reasoning in Weatherspoon, and therefore am not persuaded by Defendant's argument that his Rehaif claim cannot be procedurally defaulted.
b. An Evidentiary Hearing May Be Necessary To Determine Whether Procedural Default Should be Excused on the Basis of Actual Innocence
There appears to be no dispute that Defendant did not raise the issue of whether the Government adequately alleged or proved knowledge of felon status during the plea or on direct appeal. When a Defendant fails to raise a claim on direct review, he “procedurally defaults” that claim for the purposes of collateral review under § 2255. United States v. Mitchell, 218 F.Supp.3d 360, 366-67 (M.D. Pa. 2016) (citing United States v. Bousley, 523 U.S. 614, 622 (1998)).
Procedural default may be excused only if a defendant can show “either cause and actual prejudice” or “that he is actually innocent.” Bousley, 523 U.S. at 622. Defendant alleges that procedural default should be excused in this case because he can show both cause and actual prejudice and because he is actually innocent.
In support of his argument that procedural default should be excused based on a showing of cause and actual prejudice, Defendant argues:
Mr. McLaughlin's Rehaif claim was not reasonably available to him or his counsel in earlier proceedings. See Reed v. Ross, 468 U.S. 1, 16-17 (1984) (when the Supreme Court explicitly overrules well-settled precedent which is retroactively applicable after the defendant's direct appeal is a claim that was not “reasonably available to counsel” at the time of default.). Thus, cause is established because the Rehaif decision constituted a clear break with past well-established authority in this circuit and all the others that § 922(g) did not require proof that the defendant knew of his prohibited status. See Rehaif, __ U.S.__, 139 S.Ct. at 2210 n. 6 (Alito, J., dissenting and
noting that all ten federal courts that held § 922(g) did not require proof of prohibited status); see also United States v. Huet, 665 F.3d 588, 596 (3d Cir. 2012) (§ 922(g) does not require proof that defendant aware of prohibited status).
Prejudice is also established by the fact that Mr. McLaughlin has sustained a conviction and is imprisoned for an act that is not a crime. When a conviction and sentence are for an act that the law no longer makes criminal, “[t]here can be no room for doubt that such circumstances ‘inherently results in a complete miscarriage of justice' and ‘presents[s] exceptional circumstances' that justify collateral relief under § 2255.” Davis v. United States, 417 U.S. 333, 346-47 (1974); see also United States v. Triggs, __ F.3d __, No. 19-1704, 2020 WL 3566909, at *1 (7th Cir. Jul. 1, 2020) (defendant charged with possession of a firearm by person convicted of domestic violence granted new trial after he entered guilty plea where defendant satisfied prejudice prong that but for the failure to inform him of the Rehaif knowledge element, he would not have entered a plea).(Doc. 441, pp. 3-5).
I am not persuaded that Defendant has shown cause to excuse his procedural default. Defendant argues that “cause” to excuse default exists because the Rehaif claim was not reasonably available to him or his counsel in earlier proceedings. Defendant is correct that, as a matter of law, cause has been found to exist when a claim “is so novel that its legal basis is not reasonably available to counsel” in earlier proceedings, see Bousley, 523 U.S. at 622, however it is not enough “that a claim was unacceptable to that particular court at that particular time, ” Engle v. Isaac, 456 U.S. 107, 130 (1982). Several courts, including this one, have held that a challenge under Rehaif is not a “novel” issue. United States v. Rosado, 2021 WL 392102 at *4 (M.D. Pa. Feb. 4, 2021) (“[i]n this circuit, arguments under Rehaif are not sufficiently novel in the § 2255 context, as the issue was percolating for years.”) (citing United States v. Ramos, No. 12-549, 2021 WL 229399, at *2 (E.D. Pa. Jan 22, 2021)); see also United States v. McLeon, No. 13-487-1, 2020 WL 7384898, at *1 (E.D. Pa. Dec. 16, 2020) (“Here it cannot be said that the question in Rehaif was novel where it was repeatedly litigated in circuit courts.”). Therefore, because Defendant cannot establish cause, the Court need not reach the issue of actual prejudice.
In support of his position that procedural default should be excused because of actual innocence, Defendant argues:
Next, contrary to the Government's assertion, actual innocence is also satisfied. Plainly, for the same reasons above, Mr. McLaughlin is actually innocent since his actions do not constitute a crime. Moreover, the Government studiously ignores that Mr. McLaughlin attempted to withdraw his guilty plea prior to sentencing, asserting his innocence. (Doc. 200).
Furthermore, the Government's tortured argument that Mr. McLaughlin knew he was a “convicted felon” is baseless. Nowhere in the Indictment did it identify the predicate offense to which the Government was relying on to satisfy the prior felony conviction element. (Doc. 145 at 8). Likewise, during the change of plea hearing, the Government never identified the predicate offense, but rather merely stated in a conclusory fashion that M[r]. McLaughlin had a “prior felony conviction in Morris County, New Jersey in 2003.” Plea Hr'g Tr. 24, Sept. 30, 2013. The Government never independently established that the offense was a true felony. Indeed, the actual sentence that Mr. McLaughlin received did not involve a sentence of incarceration of more than one-year. He was sentenced to a time-served (four-day) sentence with three years of probation. See PSR ¶ 50. Thus, his claim is not procedurally defaulted. See United States v. Cook, __F.3d __, No. 18-1343, 2020 WL 4782067, at *1 (7th Cir.
Aug. 17, 2020) (new trial granted for defendant convicted of Possession of Firearm by an “unlawful user” of marijuana, 18 U.S.C. § 922(g)(3), where on direct appeal Rehaif decided and holding that it was not enough to show that the defendant should have known he met the definition of an “unlawful user, ” even where he admitted it to police because the government required to show that defendant actually knew he met the definition of unlawful user).
Finally, the Government's argument that Mr. McLaughlin's required Rule 11 guilty plea colloquy somehow cured the missing element deficiency through osmosis is baseless. See United States v. Gary, 954 F.3d 194 (4th Cir. 2020). (guilty plea vacated where during the pendency of appeal Rehaif decided and court held that guilty plea could not be knowingly and intelligently made because the trial court failed to advise him of the additional element that he knew he had the relevant prohibited status when he possessed the firearm; failure to inform defendant of knowledge was structural error); United States v. Green, __ F.3d __, No. 1904348, 2020 WL 5087916, at *1 (4th Cir. Aug. 28, 2020) (new trial granted under Rehaif despite the fact that defendant had been convicted of several felonies and had served nearly a decade in prison); United States v. Lovelle, __ F.3d__, No. 18-4789, 2020 WL 5002706, at *1 (4th Cir. Aug. 21, 2020) (relief under Rehaif granted despite the fact that defendant was incarcerated for over sixteen years for murder and as a result likely had “knowledge” of his status as a person who had been convicted of an offense punishable by more than one-year in prison).(Doc. 441, pp. 5-7).
The record in this case shows that, although Defendant was convicted of several crimes, he never spent more than six months in prison. Therefore, it is not clear as to whether he was aware of his status as a felon before or on the day he possessed and shipped the rifle. Accordingly, an evidentiary hearing may be necessary to resolve this issue should the District Judge decide that Defendant's Rehaif claim is timely raised.
D. Defendant Is Not Entitled to Relief On His Ineffective Assistance Claims
The Sixth Amendment to the United States Constitution guarantees a criminal defendant “the assistance of counsel for his defense.” U.S. Const. Amend. VI. The U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984) established a two-prong test to evaluate the effectiveness of the assistance of counsel. In the first prong, the defendant must show “that counsel's performance was deficient, ” by “showing that counsel made errors so serious that counsel was not functioning as the ‘counsel guaranteed the defendant by the Sixth Amendment.” Id. at 687. In addition, the defendant must show that “counsel's representation fell below an objective standard of reasonableness.” Id. 687-688. As explained in Strickland,
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”Id. at 689.
In the second prong of the Strickland test, a defendant must show that the deficient performance so prejudiced the defense as to raise doubt as to the accuracy of the outcome of the trial or sentence. Id. at 693-694. Additionally, it “is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693; Harrington v. Richet, 562 U.S. 86, 111 (2011) (emphasizing recently that the “likelihood of a different result must be substantial, not just conceivable”). 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.” Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001) (quoting Strickland, 466 U.S. at 693).
In his brief, Defendant raises the following ineffective assistance claims:
1. Trial counsel Todd Henry, Esq. was ineffective for failing to adequately consult with Mr. McLaughlin, who maintained his innocence throughout the case, to plead guilty the morning of trial and consequently Mr. McLaughlin's plea was unlawfully induced and involuntary.
2. Trial counsel Todd Henry, Esq. was ineffective in advising Mr. McLaughlin to plead guilty where Mr. McLaughlin was diagnosed with, among other things, bipolar disorder and PTSD without first investigating Mr. McLaughlin's mental health history.
3. Trial counsel Todd Henry, Esq. was ineffective for failing to file a timely motion to withdraw Mr. McLaughlin's guilty plea when it became apparent that Mr. McLaughlin had serious mental health issues that may have affected a knowing and intelligent entry of his guilty plea.
4. Trial counsel Todd Henry, Esq. was ineffective for failing to advise Mr. McLaughlin prior to the entry of his guilty plea of the application of his sentencing guidelines and otherwise failed to adequately advise him of his true sentencing exposure.
5. Post-plea and sentencing counsel Lawrence Krasner, Esq. and Brian Collins, Esq. were ineffective for failing to assert specific arguments in support of the motion to withdraw the guilty plea, including that the plea was involuntary and was the product of ineffective assistance of
counsel and on due process grounds where Mr. McLaughlin was deprived of several basic constitutional rights under the Fifth and Sixth Amendments to the United States Constitution.
6. Post-plea and sentencing counsel Lawrence Krasner, Esq. and Brian Collins, Esq. were ineffective for failing to renew a request for a psychiatric examination where a prior request was made but dismissed for failing to file a supporting brief and where such examination was crucial for the motion to withdraw the guilty plea.
7. Post-plea and sentencing counsel Lawrence Krasner, Esq. and Brian Collins, Esq. were ineffective for failing to review with Mr. McLaughlin the pre-sentence report and object to the District Court's failure to inquire to Mr. McLaughlin or counsel if the pre-sentence report was reviewed pursuant to Fed. R. Crim. P. 32(i)(1)(a).
8. Sentencing counsel was ineffective for failing to object to an erroneous criminal history category where Mr. McLaughlin received two points for a prior state court sentence for indirect contempt that should have been excluded as relevant conduct pursuant to U.S.S.G. § 4A1.2.
9. The cumulative prejudice of all prior counsel's deficiencies resulted in ineffective assistance of counsel.
1. Whether Attorney Henry Was Ineffective for Failing to Adequately Consult with Defendant Before the Entry of the Guilty Plea
Defendant argues that Attorney Henry was ineffective for failing to adequately consult with Defendant about the plea agreement. (Doc. 419, pp. 21-28).
During a July 2014 hearing, Attorney Henry testified that, on the morning of trial he and Defendant learned that Defendant's son was not willing to testify. see Section II. A of this Report. Attorney Henry testified that the absence of this testimony had a significant impact on their trial strategy. As a result, Defendant asked Attorney Henry to speak with the prosecutor about a plea agreement.
During the change of plea hearing, Defendant testified under oath that Defendant read the plea agreement and discussed it with Attorney Henry. See Section II. A of this Report. Defendant also testified that he understood the terms of the plea agreement.
Having considered the evidence in the record, I find that Defendant is not entitled to relief on this claim. Attorney Henry's conduct of negotiating plea agreement on the morning of trial is not objectively unreasonable under these circumstances. Furthermore, Defendant testified that he fully understood the terms of that agreement during the change of plea hearing. Thus, it does not appear that Defendant was prejudiced.
2. Whether Attorney Henry was Ineffective for allowing Defendant to Plead Guilty Without Investigating Defendant's Competency
Defendant argues that Attorney Henry was ineffective for failing to investigate Defendant's competency before allowing Defendant to enter a plea agreement. (Doc. 419, pp. 28-32). In support of this allegation, Defendant cites to Attorney Henry's post-plea motion requesting a psychiatric examination pursuant to 18 U.S.C. § 4241 (Doc. 192) as evidence that Attorney Henry was aware of Defendant's “long history of untreated mental illness, ” before the plea was entered.
However, Defendant has not presented any evidence that Attorney Henry was aware of the nature or extent of Defendant's mental illness when Defendant entered the plea. During the change of plea hearing, Defendant testified that he had not had any recent treatment for mental illness, was not taking any medication, and was capable of making decisions about his personal welfare. See Section II. A of this Report. On November 25, 2013, Attorney Henry received a PSR that, under the conditions of supervision section, required that Defendant undergo mental health treatment. (Doc. 192-2, p. 1).
After receiving that initial November 2013 PSR, Attorney Henry requested a mental evaluation for “mitigation of sentencing.” (Doc. 192-2, p. 1). When that mental evaluation was complete, Attorney Henry filed a motion pursuant to 18 U.S.C. §§ 4241. (Doc. 192). Attorney Henry's motion was deemed withdrawn after Defendant retained new counsel.
Having reviewed the evidence I find that Defendant is not entitled to relief on this claim.
First, it does not appear that Attorney Henry was aware of the extent of Defendant's mental health issues at or before the time Defendant entered his plea. Defendant himself testified at the change of plea hearing that he had no recent medical treatment and was not taking any medications. See Section II. A. of this Report. Absent awareness of a mental health issue, Attorney Henry's conduct was not objectively unreasonable.
Second, it does not appear that Defendant suffered prejudice as a result of Attorney Henry's error. Defendant does not actually allege that he was not competent to stand trial or enter a plea, he does not allege his mental state was impaired when he committed the crimes at issue. Dr. Baird's report does not discuss the issue of competency, Defendant's mental state on the date of the guilty plea, or Defendant's mental state during the commission of the crimes at issue.
Furthermore, a motion under 18 U.S.C. § 4241(a) can be filed “[a]t any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant.” The § 4241(a) motion was deemed withdrawn in April of 2014.
Defendant was sentenced on January 8, 2015. Thus, Defendant could have, but did not, file a motion and brief under 18 U.S.C. § 4241(a) at any point during the eight months between the date Attorney Henry's motion was deemed withdrawn and the day Defendant was sentenced.
3. Whether Attorney Henry was Ineffective for Failing to File a Motion to Withdraw Defendant's Guilty Plea
Defendant argues that Attorney Henry was ineffective for failing to file a motion to withdraw his guilty plea. (Doc. 419, pp. 32-35). Rule 11(d) of the Federal Rules of Criminal Procedure provides that:
A defendant may withdraw a plea of guilty or nolo contendere:
(1) before the court accepts the plea, for any reason or no reason; or
(2) after the court accepts the plea, but before it imposes sentence if:
(A) the court rejects a plea agreement under Rule 11(c)(5); or
(B) the defendant can show a fair and just reason for requesting the withdrawal.
To the extent Defendant argues that Attorney Henry was ineffective for not filing a motion under Fed. R. Crim. P. 11(d)(2), he has not met his burden under Strickland. In this case, Defendant changed counsel after he entered his guilty plea. New counsel, Adam Klein (on behalf of Lawrence Krasner and Brian Collins who were in the process of being admitted in the middle district at that time), filed a motion to withdraw Defendant's guilty plea on March 18, 2014 (Doc. 200) and supporting brief (Doc. 202). A hearing was held on that motion on July 9, 2014. (Doc. 225). Because a timely motion to withdraw the guilty plea was filed by new counsel, no prejudice resulted from Attorney Henry's failure to do so.
4. Whether Attorney Henry was Ineffective For Failing to Advise Defendant of His Full Sentencing Exposure Before the Change of Plea Hearing
Defendant argues that Attorney Henry was ineffective for failing to advise Defendant of his full sentencing exposure under the plea agreement. (Doc. 419, pp. 35-36).
Having reviewed the evidence I find that Defendant is not entitled to relief on this claim, because Defendant did not suffer prejudice. Courts have explained:
In connection with the entry of a guilty plea, counsel must provide a defendant sufficient information “to make a reasonably informed decision to accept a plea offer.” See Shotts v. Wetzel, 724 F.3d 364, 476 (3d Cir. 2013). The Third Circuit has “identified potential sentencing exposure as an important factor in the decisionmaking process.” See United States v. Bui, 795 F.3d 363, 367 (3d Cir. 2015). This is so because “[k]nowledge of the comparative sentence exposure between standing trial and a plea offer will often be crucial to the decision whether to plead guilty.” See United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992). In advising a defendant, counsel is required to be familiar with the relevant sentencing guidelines and Circuit precedent. See Bui, 795 F.3d at 367. “However, ‘an erroneous sentencing prediction by counsel is not ineffective assistance of counsel where . . . an adequate plea hearing was conducted.' ” Id. (quoting United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007)).Janeski v. United States, No. 1:17-CR-16, 2021 WL 1906411, at *5 (M.D. Pa. May 12, 2021).
In this case, Defendant received an adequate plea hearing. During that hearing Defendant was advised of his full sentencing exposure under the plea agreement. See Section II. A. of this Report.
5. Whether Attorneys Krasner & Collins were Ineffective for Failing to Include Additional Arguments in the Motion to Withdraw Defendant's Guilty Plea
Defendant argues that Attorneys Krasner and Collins were ineffective because they did not assert the following arguments in the motion to withdraw Defendant's guilty plea (Doc. 200): (1) the plea was involuntary; and (2) the plea was the product of ineffective assistance by Attorney Henry. (Doc. 419, pp. 38-41). Defendant argues that prejudice resulted from this error because he was “forced” to waive his fifth and sixth amendment rights when he involuntarily pleaded guilty. He argues that this involuntary waiver of his constitutional rights violates due process.
Defendant is not entitled to relief on this claim because he has not shown prejudice resulted from counsel's omission. See e.g., U.S. v. Fake, 1:05-CR-426, 2009 WL 1507164 at *4 (M.D. Pa. May 27, 2009) (finding that counsel was not ineffective for his failure to file a motion to withdraw a guilty plea because the motion would be denied if made). “A defendant seeking to withdraw a guilty plea bears a substantial burden of ‘showing a fair and just reason for the withdrawal of his plea.” United States v. Siddons, 660 F.3d 699, 703 (3d Cir. 2011) (quoting United States v. King, 604 F.3d 125, 139 (3d Cir. 2010)).
As summarized in this Report, counsel raised one issue in Defendant's motion to withdraw the guilty plea—whether the plea was “involuntary” because it was induced by an unfulfilled promise. The Court, however, also evaluated a second argument raised by defense counsel at the hearing on the motion to withdraw—whether the plea was “unknowing” because Attorney Henry did not explain Defendant's full sentencing exposure. See Section II. C. in this Report. Thus, Defendant's counsel did raise arguments on the voluntariness of the plea, as well as an argument alleging ineffectiveness by plea counsel. Defendant's brief and reply do not specify in any detail what, if any, additional arguments should have been raised. (Doc. 419, pp. 38-41); (Doc. 441, pp. 14-15). At his change of plea hearing, Defendant was placed under oath, informed of the constitutional rights he was waiving by pleading guilty, and questioned about his understanding of the plea and its consequences. See Section II. A. of this Report. Defendant acknowledged that he was not promised anything in connection with his plea, was not threatened, reviewed the plea before signing it, and understood the plea. Id. Defendant made no mention of any impairment that suggested he did not understand, and testified that he was competent to make decisions about his own welfare. Id. Furthermore, I have considered and determined Defendant did not suffer prejudice due to Attorney Henry's allegedly incorrect sentencing advice. See Section IV. C. 4.
6. Whether Attorneys Krasner & Collins were Ineffective for Failing to Renew Attorney Henry's § 4241 Motion after the Motion was Deemed Withdrawn
Defendant argues that, after Attorney Henry's § 4241 motion was deemed withdrawn, Attorneys Krasner and Collins should have renewed it. (Doc. 419, pp. 41-42). He argues that this error resulted in prejudice because “had counsel properly developed that evidence it would have likely provided additional basis for the withdrawal of the guilty plea.” Id.
“When a defendant raises a competency claim after pleading guilty to a charge or after waiving his right to counsel or appellate rights, the defendant has the burden of proving by a preponderance of the evidence that he was incompetent at the time he entered the plea or waived his right to counsel or appellate rights.” U.S. v. Hammer, 404 F.Supp.2d 676, 792-793 (M.D. Pa. 2005) (citing Vogt v. United States, 88 F.3d 587, 591 (8th Cir. 1996)). The record in this case shows that Defendant was suffering from some level of mental illness on the date he pleaded guilty, but Defendant has not alleged or provided any evidence that he was incompetent at the time of the plea. Absent such evidence, I find he has not suffered any prejudice as a result of Attorney Krasner and Collins' failure to renew Attorney Henry's § 4241 motion.
7. Whether Attorneys Krasner & Collins were Ineffective for Failing to Review the Presentence Investigation Report with Defendant
Rule 32(i)(1)(A) provides that, at sentencing, the court “must verify that the defendant and the defendant's attorney have read and discussed the presentence report and any addendum to the report.” The sentencing transcript does not include any inquiry by the Court as to whether Defendant and his attorney read and discussed the presentence report, and the first and second addenda.
Defendant argues that Attorneys Krasner and Collins were ineffective for failing to object to the District Court's failure to inquire whether counsel reviewed the February 2014 PSR and addenda with Defendant. (Doc. 419, pp. 42-45). Defendant also argues that, “at no time prior to sentencing did trial counsel review with him the PSR. Moreover, nowhere at sentencing was there any inquiry by the Court, or, for that matter, of any indicia to provide verification that Mr. McLaughlin and his attorneys read and discussed the PSR.” (Doc. 419, pp. 43-44). Defendant argues he was prejudiced because he was “unaware of the true import of his ultimate sentencing exposure.” (Doc. 419, p. 44).
I am not persuaded that Defendant is entitled to relief on this claim. The record in this case suggests that Defendant reviewed and understood the PSR. Furthermore, given the nature of Defendant's motion to withdraw his guilty plea, the Court may reasonably infer Attorneys Krasner and Collins discussed the PSR with Defendant before his January 2015 sentencing. During the July 2014 hearing Defendant testified that he received the PSR. (Doc. 397, p. 142). The first addendum (issued in February 2014) to the presentence report states that the presentence report and first addendum were disclosed to “defendant, his attorney, and counsel for the Government.” The second addendum to the final PSR (issued in October 2014) states that a copy was sent to Defendant. (Doc. 269).
In March 2014, after the final PSR was distributed, Defendant filed a motion to withdraw his guilty plea. (Doc. 200). During the July 2014 hearing on that motion, Defendant argued that he did not understand his full sentencing exposure under the plea agreement. Given Defendant's testimony that day, the Court may reasonably infer that counsel discussed the final PSR with Defendant before that hearing took place. During the hearing Defendant demonstrated that he was acutely aware of his sentencing exposure before he was sentenced. Accordingly, Defendant was not prejudiced by Attorney Krasner and Collins' failure to object to the sentencing Judge's failure to ask whether counsel reviewed the PSR with Defendant.
8. Whether Attorneys Krasner & Collins were Ineffective for Failing to Object to Defendant's Criminal History Category in the PSR
In the PSR, Defendant was found to have a criminal history category of four. See Section II. D. of this Report. In the sentencing memorandum, and during the sentencing hearing, Attorneys Krasner and Collins argued that this criminal history category of four overrepresented Defendant's history. (Doc. 394, p. 4). Attorneys Krasner and Collins argued that a variance or departure from the guidelines may be appropriate. They also argued that the majority of the criminal history points involved contempt of PFAs or PFA-type activity against Ms. VanTine. (Doc. 394, p. 3).
Defendant argues that Attorneys Krasner and Collins were ineffective because they did not object to paragraph 54 of the PSR—which adds two points to Defendant's criminal history score for a 2011 contempt charge. The basis for that charge is that, the month before Defendant hired Gary Williams to kill Ms. VanTine, Defendant unsuccessfully attempted to hire two other Pike County inmates to kill Ms. VanTine. Defendant argues that the 2011 charge is “relevant conduct” pursuant to USSG § 4A1.2 and should have been excluded from Defendant's criminal history score. (Doc. 419, pp. 45-46). Defendant argues he was prejudiced by this error because, if successful, this objection would have lowered the guideline range in this case.
I am not persuaded that Defendant is entitled to relief on this claim. Although attorneys Krasner and Collins did not cite to USSG § 4A1.2 or paragraph 54 of the PSR during the sentencing hearing, they did argue that the criminal history score was too high, and they did assert that the prior offenses all involved the same victim—Ms. VanTine. The Court considered, and rejected this argument. See Section II. E. of this Report. Although Defendant argues that, if successful an argument would lower Defendant's guideline range, he has not cited any authority suggesting that, as a matter of law, it would have been successful. An unsuccessful effort to hire a hit man is not relevant to the conduct relating to a second successful attempt to hire a different hitman. Accordingly, I find that counsels' conduct did not result in prejudice.
9. Whether the Cumulative Prejudice of All Errors by Counsel Amounts to Ineffective Assistance
Last, Defendant argues that the cumulative errors of all counsel amounted to ineffective assistance. (Doc. 419, pp. 46-47).
I am not persuaded that Defendant is entitled to relief on this count. As explained above, each of the alleged errors of counsel did not result in prejudice. As such, there are no cumulative errors.
V. RECOMMENDATION
Accordingly, it is RECOMMENDED that Defendant's Motion to Vacate (Doc. 418) be GRANTED in part and DENIED in part as follows:
(1) All pro se Motions to Vacate should be DENIED as MOOT. (2) No evidentiary hearing is necessary to resolve the Rehaif claim because it is untimely. (3) No evidentiary hearing is necessary to resolve the ineffective assistance of counsel claims because the record conclusively shows that Defendant is not entitled to relief. (4) The conviction and five year mandatory minimum sentence imposed for Count Three of the Third Superseding Indictment should be VACATED. (5) Defendant's request to vacate the remaining convictions under Counts One and Five of the Third Superseding Indictment on the basis of Rehaif and ineffective assistance of counsel should be DENIED.