The opinion of the court was delivered by: Hon. Garrett E. Brown, Jr.
This matter comes before the Court upon the Petition of pro se Petitioner Quadir Snell to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, this Court will deny the Petition in part, and the Court will order the parties to file supplemental materials regarding Petitioner's claim predicated on counsel's failure to file a timely appeal of his sentence.
Petitioner, along with seven co-conspirators, was charged on July 11, 2008, in a ten-count Superceding Indictment with: one count of conspiracy to commit robbery affecting interstate commerce, one count of robbery affecting interstate commerce, and one count of receipt of stolen property. Petitioner pled guilty to the substantive Hobbs Act robbery count, Count VIII, on September 29, 2008, and this Court sentenced him to 96 months imprisonment on January 5, 2009. The Court's sentence was at the bottom of the Guidelines range for an offense level of 24 and criminal history category of V. As part of his plea agreement, Petitioner expressly waived the right to appeal or collaterally attack his sentence if it fell within or below Guidelines offense level 24.
Petitioner filed the instant Petition on April 23, 2010, and after advising Petitioner of his rights under United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and receiving Petitioner's consent to hear the Petition as filed (see Docs. No. 3, 4), the Court on July 20, 2010 ordered the Government to respond to the allegations in the Petition. The Government timely responded on July 29, 2010, and, after ordering that the Government's Answer be re-served upon Petitioner at his new place of incarceration, the Court permitted Petitioner to file any reply to the Government's Answer no later than November 29, 2010. (See Doc. No. 8.*fn1 ) Petitioner did not file any responsive documents to the Government's Answer.
Petitioner presents four grounds for vacating his sentence, all alleging ineffective assistance of counsel. First, Petitioner alleges that defense counsel Edward F. Borden "failed to properly investigate the law by immediately advising [him] that . . . . '[i]t would a [sic] huge mistake not to accept the pleas agreement,' without first investigating the circumstances of the offense." Petitioner claims that, "From the on-set [sic], I proclaim my innocence of this offense as it was written." (Petition ¶ 12, Ground 1.) Second, Petitioner claims that Mr. Borden failed to advise him of the maximum and minimum sentences for the charged offense "during the development of the plea in the case," and that defense counsel told him that he would not be sentenced to more than five years in prison. (Id., Ground 2.) Next, Petitioner claims that Mr. Borden failed to object to Rule 11 violations. Specifically, Petitioner claims that his counsel failed to inform the Court of Petitioner's learning disabilities; failed to inform the Court of inaccuracies in the factual basis for the guilty plea; that "he improperly informed the court that he had discuss [sic] the plea agreement and explain [sic] the plea colloquy proceedings with me"; and that he "improperly advises [sic] me during the plea colloquy to . . . 'just agree to everything.'" (Id. Ground 3.) Finally, Petitioner alleges that he told his defense counsel that his sentence was unreasonable and asked him to appeal that sentence, but his counsel "improperly informed [him] that [he] could not appeal [the] sentence," and did not appeal the sentence. Petitioner also claims that his counsel told him that his guidelines range was 51--63 months, as opposed to the 96-month sentence issued by the Court. Petitioner did not appeal his sentence. (Id. Ground 4.) In support of these allegations, Petitioner filed an unsworn affidavit that generally asserts the following facts: (1) that he has a learning disability and "therefore [has] had to rely on the services of 'jailhouse lawyers' to assist [him] in preparing and submitting [his] litigation"; (2) that his attorney "pressure [sic][him] into pleading guilty to criminal conduct [he] was innocent of . . . "; (3) that his attorney advised him that he did not have the time to develop a defense and that the Court would not permit him to subpoena defense witnesses; (4) that his attorney improperly advised him that the plea deal was "fair and just"; and (5) that he would not have pleaded guilty but for the improper advice of his counsel. (See id. Snell Aff.)
28 U.S.C. § 2255 permits a court to vacate, correct, or set aside a sentence that 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. Generally, "claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro v. United States, 538 U.S. 500, 504 (2003). Section 2255 also may not be used "to re-litigate questions which were raised and considered on direct appeal.'" United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1993) (quoting Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986)). However, the Court of Appeals has expressed a strong preference that an ineffective assistance of counsel claim be brought before the district court in the first instance in a motion under 28 U.S.C. § 2255. See DeRewal, 10 F.3d at 103 (citing United States v. Rieger, 942 F.2d 230, 235 (3d Cir. 1991)). Since it is appropriate to raise a claim of ineffective assistance of counsel under § 2255, rather than on direct appeal, "the failure to raise such a claim on direct appeal should not be treated as a procedural fault." Id.
A 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.'" United States v. Booth, 432 F.3d 542, 545--46 (3d Cir. 2005) (quoting Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)). In determining whether or not to conduct an evidentiary hearing, the Court "must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record," Forte, 865 F.2d at 62, and "abuses its discretion if it fails to hold an evidentiary hearing when the files and records of the case are inconclusive as to whether the movant is entitled to relief," Booth, 432 F.3d at 546 (citing United States v. McCoy, 410 F.3d 124, 131 (3d Cir. 2005)). However, "[v]ague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the District Court." United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000).
The Court is mindful of Petitioner's pro se status. Because Petitioner is a pro se litigant, the Court must apply a more liberal standard of review to his claims than it would to a petition filed with the aid of counsel. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972); Wade v. Yeager, 377 F.2d 841, 846 (3d Cir. 1967) (recognizing that a petition made without the benefit of counsel must be read with a measure of tolerance).
B. Plea Agreement Appellate / Collateral Attack Waiver
Petitioner's plea agreement contained an express provision stating that he "knows that he has and . . . voluntarily waives, the right to file any appeal, any collateral attack, or any other writ or motion, including but not limited to an appeal under 18 U.S.C. § 3742 or a motion under 28 U.S.C. § 2255, which challenges the sentence imposed by the sentencing court if that sentence falls within or below the Guidelines range that results from the agreed total Guidelines offense level of 24." (Gov't Answer Ex. 7 (Plea Agreement) at 3--4 & sched. A ¶ 13.) Petitioner does not contest that he received a sentence within the applicable Guidelines range for an offense level of 24, see U.S.S.G. Sentencing Table (2008 ed.) (providing a guidelines range of 92--115 months for an offense level of 24 and a criminal history category V), and the Court is satisfied from its review of the plea agreement that no exception to this waiver applies to Petitioner's claims.
The Third Circuit has made clear that, while appellate and collateral attack waivers do not strip this Court of jurisdiction to consider an appeal or collateral attack, such waivers will be enforced, and courts should not review the merits of such an appeal or collateral attack, if the criminal defendant knowingly and voluntarily waived his rights of appeal and/or collateral attack, unless enforcement of the waiver would work a miscarriage of justice. E.g., United States v. Shedrick, 493 F.3d 292, 297 (3d Cir. 2007); United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). In determining whether enforcement of the waiver would result in a miscarriage of justice, the Third Circuit has instructed courts to consider the following factors:
[T]he clarity of the error, its gravity, its character (e.g., whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact of the error on the defendant, the impact of correcting the error on the government, and the extent to which the defendant acquiesced in the result.
United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001) (quoting United States v. Teeter, 257 F.3d 14, 25--26 (1st Cir. 2001)). For instance, the Court of Appeals has recognized that "[e]nforcing a collateral-attack waiver where constitutionally deficient lawyering prevented [Petitioner] from understanding his plea or from filing a direct appeal as permitted by his plea agreement would result in a miscarriage of justice." Shedrick, 493 F.3d at 298. However, the Third Circuit has explained that procedural errors in computing a defendant's sentence do not constitute a miscarriage of justice, because such claims improperly "focus[ed] on the result of the proceeding, rather than the right relinquished" by the defendant. United States v. Corso, 549 F.3d 921, 931 (3d Cir. 2008) (quoting United States v. Smith, 500 F.3d 1206, 1213 (10th Cir.2007); United States v. Hahn, 359 F.3d 1315, 1326 n. 12 (10th Cir.2004)).
The record in this case satisfies the Court that Petitioner knowingly and voluntarily entered into the plea agreement and waived his rights of appeal and collateral attack, and the Court is persuaded that enforcement of the plea agreement against the first three grounds of the Petition would not result in a miscarriage of justice. During the plea hearing, the Court conducted a Rule 11 colloquy with Petitioner, wherein the Court specifically inquired about, inter alia: Petitioner's understanding of the plea agreement, including the sentencing factors and maximum sentence he could receive; whether he was satisfied with the legal services of his attorney; whether any person had asked him to lie during the plea hearing; whether he suffered from any mental illness; and whether the Government's allegations concerning his criminal conduct were accurate. Petitioner's sworn responses to these questions flatly contradict the allegations of ineffective assistance of counsel and innocence he now presents to the Court.
Specifically, the Court inquired regarding Petitioner's competency, truthfulness, and his satisfaction with the advice of counsel as follows:
Q: You're represented by Mr. Borden, is ...