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Mohamad Abdulaal v. United States of America

June 7, 2011

MOHAMAD ABDULAAL, PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.



The opinion of the court was delivered by: Hon. Dennis M. Cavanaugh

NOT FOR PUBLICATION

OPINION

DENNIS M. CAVANAUGH, U.S.D.J.:

This matter comes before the Court upon pro se Petitioner Mohamad Abdulaal's ("Petitioner") motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on three grounds-ineffective assistance of counsel during the plea negotiation process, ineffective assistance of council after plea negotiations up until sentencing, and that the appellate waiver contained in the plea agreement is unenforceable, invalid, and inapplicable. Pursuant to Fed. R. Civ. P. 78, no oral argument was heard. The Court has reviewed the submissions of the parties, and for the reasons set forth below, Petitioner's request for relief is denied.

I. FACTUAL BACKGROUND*fn1

Petitioner, Mohamad Abdulaal, was involved in an ongoing "Credit Card Bust-Out" scheme between 1999 and 2002. This type of scheme involves the procurement of stolen and fictitious credit cards, and the using of those cards to make fraudulent purchases. Throughout this scheme, Petitioner, and others, defrauded victims of more than $1 million. For his involvement in this scheme, Petitioner was charged in a two-count Information with credit card fraud, in violation of 18 U.S.C. § 1029(a)(5), and conspiracy to commit credit card fraud, in violation of 18 U.S.C. § 1029(b)(2). On April 4, 2006, Petitioner executed a Plea Agreement in which he agreed to plead guilty to the two-count Information, in exchange for the Government's sentencing concessions and its promise not to initiate further criminal charges against him relating to the "Credit Card Bust-Out" scheme. There are thirteen stipulations in the Plea Agreement. Resp't's Answer Ex. A at 6--8. The stipulations discuss the Sentencing Guidelines, determine Petitioner's offense level under the guidelines, and outline the parties' post-sentencing rights. Id.

Stipulation #1 notes that the Sentencing Guidelines are not binding on the Court and reflects the agreement of the parties that the Court should sentence Petitioner within the Guidelines range that corresponds with Petitioner's offence level. Id. at 6, ¶ 1. Stipulations numbered Two thru Eight (2--8) reflect the process by which Petitioner's total offense level was calculated. Id. at 6--7, ¶¶ 2--8.*fn2 Stipulations Nine and Eleven (9 & 11) establish the Petitioner's total offense level at 25 and set forth that a sentence within the Guideline's range for this offense level is reasonable. Stipulations numbered Ten, Twelve and Thirteen (10, 12 & 13) relate to additional rights the parties reserved and waived. Specifically, Petitioner's Plea Agreement included a "Waiver of Appeal and Post- Sentencing Rights."*fn3 The Waiver section of the Plea Agreement established that the Government and Petitioner Abdulaal "waive certain rights to file an appeal . . . including but not limited to . . . a motion under 28 U.S.C. § 2255." Resp't's Answer Ex. A at 3--4. Stipulation #12 of the Plea Agreement provides:

12. Mohamad Abdulaal knows that he has and, except as noted below in this paragraph, 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 25.

Id. at 7-8, ¶ 12 (emphasis added).

The Sentencing Guideline range for an offense level 25 was 63 to 78 months. Petitioner was sentenced to 70 months imprisonment. Despite the Plea Agreement Waiver, Petitioner now asks this Court, by way of 28 U.S.C. § 2255 "to vacate, set aside, or amend his conviction and/or sentence of January 22, 2007." Pet'r's Mem. in Supp. of Mot. for Relief Pursuant to 28 U.S.C. § 2255 at 1. In making this request, Petitioner makes three arguments. First, Petitioner argues that "the scope of the waiver does not preclude" the challenges raised in the instant proceeding. Id. at 4. Second, Petitioner argues that ineffective assistance of counsel, particularly with regards to Stipulation #5, "tainted his knowing, voluntary, and intelligent acceptance of the waiver." Id. at 25. And third, Petitioner argues that even if the waiver is enforceable, valid, and applicable to this Section 2255 motion, "enforcing the waiver would result in a miscarriage of justice." Id. at 25.

The Government contends that "Petitioner's Plea Agreement was unconditional, and did not reserve the right to appeal any pre-trial issues." Res't's Answer at 4. The Government argues that Petitioner's Section 2255 motion should be dismissed outright because "Petitioner knowingly and voluntarily waived his right to attack his guilty plea and sentence." Id. at 6. Even if this Court allows Petitioner's challenges, the Government argues that the motion should be dismissed because the Petitioner cannot prove his claim of ineffective assistance of counsel. Id.

II. DISCUSSION

A. Waiver of Right to Collateral Attack "Criminal defendants may waive both constitutional and statutory rights, provided they do so voluntarily and with knowledge of the nature and consequences of the waiver." United States v. Mabry, 536 F.3d 231, 236 (3d Cir. 2008). "The right to appeal in a criminal case is among those rights that may be waived." Id. Waivers of this type benefit the defendant, government and court system, and do not violate public policy. Id. at 237. Accordingly, courts are "willing to enforce such waivers, provided that they are entered into knowingly and voluntarily and their enforcement does not work a miscarriage of justice." Id. In order to determine whether enforcing a waiver will result in a miscarriage of justice, a court may consider "[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).

The record is replete with evidence that Petitioner agreed and signed the Plea Agreement both knowingly and voluntarily. Petitioner was an experienced and educated business owner who was represented by competent counsel throughout the plea negotiations; this was not Petitioner's first federal criminal plea; and the level of sophistication in Petitioner's pro se filings with this Court are further evidence of his cognitive ability to understand the scope of the legal documents he signed. Furthermore, the language from the actual Plea Agreement which Petitioner signed is explicit. The Plea Agreement reads in part, "Mohamad Abdulaal knows that he has and, except as noted below in this paragraph, 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 . . .." Resp't's Answer Ex. A at 7-8, ¶ 12 (emphasis added). Further still, Petitioner was questioned ...


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