The opinion of the court was delivered by: Hon. Jerome B. Simandle
SIMANDLE, District Judge:
This matter is before the Court on the motion of the United States of America [Docket Item 8] to dismiss Robert Gordon's amended petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence [Docket Item 3]. A federal jury found Mr. Gordon guilty of one count of conspiracy to commit wire fraud and securities fraud and one count of conspiracy to commit money laundering; this Court sentenced him to 60 months imprisonment for the first count and 240 months imprisonment for the second count, to be served concurrently. This matter also comes before the Court on the motion of Petitioner for an evidentiary hearing [Docket Item 15].
The principal issue raised by these motions is whether Petitioner's conviction was rendered invalid by the fact that the superseding indictment, proof at trial, and jury instructions did not explicitly define "proceeds" under the money laundering statute as "net profits," as the Supreme Court recently held was necessary in certain circumstances. United States v. Santos, 553 U.S. 507 (2008). The motions also require the Court to determine whether factual disputes raised by the parties related to Petitioner's ineffective assistance of counsel claims require an evidentiary hearing to resolve. For the reasons that follow, the Court will grant in part and deny in part the Government's motion to dismiss the Amended Petition, and will grant Petitioner's motion for a hearing to resolve factual disputes related to Petitioner's ineffective assistance of counsel grounds as to trial counsel Frank Louderback, Esq., and appellate counsel Richard F. Klineburger, III, Esq.
On September 28, 2005, a federal grand jury returned a two- count indictment, charging Petitioner Gordon and four co-defendants each with one count of conspiracy to commit securities and wire fraud in violation of 18 U.S.C. § 371 and one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). [Cr. No. 05-698, Docket Item 1.] A Superseding Indictment was subsequently filed on November 1, 2006. [Cr. Docket Item 88.]
The Superseding Indictment alleged in Count I that, inter alia, the defendants conspired among themselves and with others to manipulate the share price and illegally convert restricted shares to free-trading shares of stock from the company TeleServices Internet Group, Inc. and its predecessors and related companies (primarily traded under the stock symbol TSIG). Superseding Indictment Count I ¶¶ 32-40. In Count II, the Superseding Indictment alleged that, inter alia, the defendants conspired among themselves and with others to launder the money that such fraudulent stock transactions produced, in an effort to hide the fact that it had come from the underlying fraud. The Government alleged that the defendants conspired to engage in financial transactions involving property that represented the "proceeds" of unlawful activity, with the intent to conceal and disguise the illegal nature or origin of those "proceeds." Superseding Indictment Count II ¶ 2.
Petitioner's jury trial on these charges began in this Court on March 12, 2007; on April 4, 2007, Gordon filed a motion under Fed. R. Crim. P. 29 for a judgment by acquittal, which the Court denied. [Cr. Docket Item 148.] On April 9, 2007, the jury returned a verdict of guilty on both Counts of the Superseding Indictment. [Cr. Docket Item 147.] On September 25, 2007, the Court sentenced Petitioner to a term of 60 months imprisonment on Count I and a term of 240 months imprisonment on Count II, to be served concurrently. [Cr. Docket Item 154.] Additionally, the Court ordered that Petitioner pay restitution in the amount of $1l,620,179.90. [Cr. Docket Item 162.]
Petitioner timely appealed his conviction and sentence to the Third Circuit on October 2, 2007. Petitioner raised on appeal two issues: (1) whether the Court's Order denying his motion for acquittal at trial was wrongly decided, and (2) that he was denied effective assistance of counsel at trial. United States v. Gordon, 335 F. App'x 236, 237 (3d Cir. 2011). On July 1, 2009, the Third Circuit affirmed Gordon's conviction and sentence, and declined to decide Petitioner's ineffective assistance of counsel claim, preserving such claim for collateral challenge under § 2255. Id. On July 27, 2009, the Third Circuit denied Petitioner's motion for a rehearing en banc. Gordon did not file a petition for certiorari to the Supreme Court, so his conviction became final on October 27, 2009.
On October 1, 2010, the Court received Gordon's original Petition to vacate his conviction under 28 U.S.C. § 2255. [Civ. Docket Item 1.] On October 6, 2010, in accordance with United States v. Miller, 197 F.3d 644, 652 (3d Cir. 1999), the Court notified Petitioner of the requirement that he must include all his claims for relief in his § 2255 motion, and gave him an opportunity to add new claims. [Civ Docket Item 2.] Petitioner thereafter filed an Amended Petition, which was received on December 20, 2010. [Civ. Docket Item 3.] On May 15, 2011, the United States filed its motion to dismiss the petition as a matter of law without an evidentiary hearing. [Civ. Docket Item 8.] Petitioner thereafter filed his opposition to the Government's motion [Civ. Docket Item 13], and subsequently filed his motion for a hearing on his ineffective assistance of counsel claims. [Civ. Docket Item 15.]
Gordon's original Petition and Amended Petition were drafted without the assistance of an attorney, though he has subsequently retained his current attorney, William Norris, Esq., who drafted and submitted Gordon's opposition to the Government's motion to dismiss and Gordon's motion for an evidentiary hearing. In his Amended Petition, Gordon raises five grounds for relief: (1) ineffective assistance of his trial counsel for failure to review discovery materials and to interview and subpoena defense witnesses; (2) actual innocence of the money laundering count under the precedent of United States v. Santos, 553 U.S. 507 (2008); (3) erroneous jury instructions on the money laundering count pursuant to Santos; (4) ineffective assistance of his appellate counsel for failing to raise the Santos issue on appeal; and (5) ineffective assistance of his appellate counsel for failing to notify him of the Third Circuit's affirmance of his conviction, causing him to miss his deadline to move for rehearing and petition for certiorari in the Supreme Court, for which he seeks "reinstatement of his statutory right to petition for rehearing and seek certiorari review in the Supreme Court." Am. Pet'n at 30.
28 U.S.C. § 2255(a) allows a prisoner held on a federal sentence to apply to have the sentence vacated, set aside, or corrected if, among other things, the sentence was imposed in violation of the Constitution or is otherwise subject to collateral attack, as in the case of an error of law that amounts to a "fundamental defect which inherently results in a miscarriage of justice." Brecht v. Abrahamson, 507 U.S. 619, 634 n.8 (1993) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Under § 2255(b), the Court can dispose of a claim for collateral relief without a hearing when a petitioner's right to the relief sought can be decided conclusively on the motion and files and records of the case. 28 U.S.C. § 2255(b). When factual disputes are raised that cannot be decided on the existing record, however, the Court must "grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." Id.
Generally, issues not raised on direct appeal may not be raised in collateral proceedings unless a petitioner can show cause for default that justifies why the issue was not raised and actual prejudice that resulted. United States v. Findlay, 456 U.S. 152, 167 (1982). One of the ways a convicted defendant can show justifying cause is by demonstrating ineffective assistance of counsel. United States v. Mannino, 212 F.3d 835, 840 (3d Cir. 2000). Alternatively, a procedurally defaulted claim may be raised on collateral review if the petitioner can claim that he is "actually innocent" of the crime. Bousley v. United States, 523 U.S. 614, 623 (1998).
A pleading filed without a lawyer is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). Such a petition must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney Gen., 872 F.2d 714, 721-22 (3d Cir. 1989).
The Court will first examine Petitioner's arguments with respect to the lawfulness of his conviction in light of the Supreme Court's Santos decision, and then whether his counsel was ineffective on any of the asserted theories. As will be explained below, the Court finds that Petitioner is not entitled to the relief he seeks as a result of the Santos decision, but that factual ...