Muntasir v. United States

          OPINION

          KEVIN MCNULTY United States District Judge

         I. INTRODUCTION

         Petitioner, Kamau Alfahiym Muntasir, is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. For the following reasons, Mr. Muntasir's § 2255 motion will be denied.

         II. BACKGROUND AND PLEADINGS

         A. The Underlying Criminal Proceeding

         District Judge Dennis M. Cavanaugh, who presided over the original criminal proceedings, described the underlying facts as follows:

Defendant [Mr. Muntasir] was arrested in a previous case on September 18, 2008 and charged with two counts of illegal distribution of crack cocaine. Defendant appeared for five distinct proffer sessions at the United States Attorney Office in Newark in the Fall and Winter of 2008 and 2009 but no agreement was reached. On January 11, 2010, Defendant pled guilty to the second count of the indictment in that case, charging him with conspiracy to possess with intent to distribute cocaine. Defendant was sentenced to a prison term of 151 months on July 26, 2010. Defendant was designated to serve his sentence at a federal correctional facility in Butner, North Carolina ("FCI-Butner"). The United States alleges that on or about September 2011, while incarcerated at FCI-Butner, Defendant initiated discussions with fellow FCI-Butner inmate, Thomas Grady Brown, about a potential transaction involving 25 kilograms of cocaine. The United States further alleges that Defendant's purpose in initiating the discussion with Brown was to obtain a drug supplier for his friend Eugene "Wali" Braswell, who resided in New Jersey. The United States possesses and has produced a series of phone calls beginning on or around September 2011 and ending in March 2012, in which Defendant and Braswell discuss the cocaine deal. During the course of these calls, the United States alleges Defendant informed Braswell about his discussions with Brown, when Braswell could expect a call from Brown's associates, the price of the cocaine, and the profits each would receive from the deal.

On or about December 2011, Mike Mechalske, a Special Investigative Service Technician with the Bureau of Prisons staffed at FCI-Butner, notified the Federal Bureau of Investigations ("FBI") of what he believed to be a conspiracy between Muntasir and Braswell to purchase 25 kilograms of cocaine. Pursuant to an FBI sting operation and during the course of a recorded phone conversation, an undercover FBI agent contacted and arranged to meet Braswell in New Jersey on March 16, 2012, for the ostensible purpose of delivering the agreed-upon 25 kilograms of cocaine. When Braswell and the undercover agent met, Braswell requested that the first sale be for one kilogram in exchange for payment of $14, 000 and showed the undercover officer a collection of $100 bills. Braswell was then arrested and charged in a one-count complaint with conspiracy to distribute and possess with intent to distribute 5 kilograms or more of cocaine. Braswell pled guilty on March 16, 2012.

After Braswell's arrest, federal prosecutors attempted to gain Defendant's cooperation against individuals with pending federal and state charges in New Jersey but Defendant declined to participate. Defendant was subsequently transported to New Jersey and further attempts by the government to elicit Defendant's cooperation yielded the same result.

United States v. Muntasir, Crim. No. 12-524 (DMC), Op. (Oct. 16, 2012), ECF No. 15, at 2-4 (internal citations and footnotes omitted).

         In August 2012, a grand jury indicted Mr. Muntasir for conspiracy to distribute cocaine, under 21 U.S.C. §§ 841(a)(1), 84l(b)(1)(A)(ii), and 846. Crim. No. 12-524, ECF No. 10. Mr. Muntasir pleaded not guilty at his arraignment. Crim. No. 12-524, ECF No. 11. Judge Cavanaugh then issued an Order for Discovery and Inspection, which, among other things, ordered the government, within ten days, to permit defense counsel to inspect or reproduce all disclosure evidence encompassed by Federal Rule of Criminal Procedure 16(a)(1), all Brady material, and all Bruton material ("the Discovery Order"). Crim. No. 12-524, Order for Disc. & Inspection, ECF No. 12, ¶ 1. With regard to Jencks and Giglio material, the Discovery Order simply required the government to produce such materials "sufficiently in advance of the witness's testimony to avoid delay in the trial." Id. ¶ 4.

         On September 21, 2012, Mr. Muntasir, by his counsel, Michael V. Gilbert!, filed motions for various forms of pretrial relief. Crim. No. 12-524, Mots., ECF No. 13. Gilberti argued that the case should be dismissed based on over-involvement by the government in orchestrating the drug deal, or at least that an evidentiary hearing should be held on this topic. Crim. No. 12-524, Br. in Supp., ECF No. 13-1, at 6-7. He further sought a bill of particulars, arguing that the indictment provided no specific information concerning the charge. Id., at 8-10. Gilberti noted that, while the government had produced some discovery, it appeared that portions were missing, and he accordingly moved the Court to order complete production under the Discovery Order. Id. at 11-14. Among other items, he specifically urged that the government had failed to identify alleged coconspirators or produce recorded conversations between an identified coconspirator and an undercover agent. Id. at 11. He sought production of Brady and Agurs/Giglio material, noting that it appeared from the filings that at least one coconspirator was cooperating with the government. Id. at 11-13.

         At an October 15, 2012 hearing, Gilberti withdrew the motion seeking a bill of particulars and reached agreements with the government concerning the discovery motions, leaving only the dismissal motion still pending. Crim. No. 12-524, ECF No. 15 at 1-2. Judge Cavanaugh then denied the dismissal motion, finding that the government's conduct did not rise to the level of outrageousness. Id.

         Mr. Muntasir alleges that, during a meeting sometime following the October 15 hearing, Gilberti relayed a plea offer for up to twenty years with the possibility of the sentence running concurrently with his prior 151-month sentence that he was currently serving. (Mot., ECF No. 1, Mem. of Law, at 5-6.) Mr. Muntasir indicates that he rejected this plea based on his beliefs that the sentence could not run concurrently with his prior sentence and that the government had engaged in misconduct. (Id. at 6.) He asserts that Gilberti told him, "Something stinks about this case, but are you willing to risk your life to find out?" (Id.) Mr. Muntasir apparently told Gilberti that he would go to trial, and Gilberti said he would seek a better plea deal. (Id.)

         Mr. Muntasir indicates that Gilberti called him a few days later and said that the government had made an offer of eighty-four months' imprisonment, to run consecutive to his prior sentence. The offer would remain open, however, only until 5:00 p.m. that day. (Id.) Mr. Muntasir reports that when he expressed concerns about governmental misconduct, Gilberti advised him that it was "an excellent deal and that it wasn't worth risking at least fo[]rty more years in prison if [he] were to try the case" and, further, that no better plea deal would be offered. (Id. at 6-7.) Accordingly, Mr. Muntasir agreed to accept the offer. (Id. at 7.) He indicates that when he was signing the plea paperwork, Gilberti told him "that something was seriously wrong with the case especially with such a plea offer on the table." (Id.)

         During a plea hearing on November 7, 2012, Mr. Muntasir backtracked. He expressed reservations about the plea deal because of his uncertainty about the scope of an included waiver of appellate rights. See Crim. No. 12-524, Tr. of Nov. 7, 2012 Hr'g, ECF No. 33, at 17-25. After some discussion with counsel for both sides, Judge Cavanaugh adjourned the hearing for a week to give Mr. Muntasir more time to discuss the proposed appellate waiver with Gilberti. Id. at 24-28.

         Following this, Gilberti apparently explained to Mr. Muntasir that the appellate waiver would prevent him from raising any subsequently discovered governmental misconduct. (ECF No. 1, Mem. of Law at 8.) Mr. Muntasir recounts that, while Gilberti agreed that something "stunk" about the case, he "presented the question of was it worth the risk of trying to find out the extent of the alleged misconduct." (Id.)

         At a renewed hearing on November 13, 2012, Mr. Muntasir indicated that, after further consultation with Gilberti, he was not willing to waive his appellate rights, and consequently would not accept the plea offer. Crim. No. 12-524, Tr. of Nov. 13, 2012 Hr'g, ECF No. 31, at 3-4. The government indicated that it therefore considered the offer withdrawn. Id. at 4.

         During this hearing, Gilberti also indicated that he was hoping to receive hard copies of extensive Giglio (i.e., witness impeachment) material that the government "wanted [him] to come over and look at." Id. at 5. The government indicated that production had been put on hold while the plea offer was pending, but offered to make the materials available the following day. Id. at 5-6. Ultimately, Judge Cavanaugh directed the government to deliver hard copies of the material to Gilberti by the following day, as well as a list of anything not produced so that Gilberti could raise any relevant challenges. Id. at 8. Judge Cavanaugh set a trial date of November 27, 2012. Id. at 5.

         The government produced hard copies of the additional Giglio material to Gilberti the following day, and Gilberti brought it to the jail to discuss with Mr. Muntasir. (ECF No. 1, Mem. of Law at 9.) Presented with this evidence, Gilberti apparently told Mr. Muntasir that the case was "virtually undefendable." (Id.) Accordingly, Gilberti advised Mr. Muntasir to plead to the charge. (Id.) Mr. Muntasir then told Gilberti he would accept the initial plea deal of eighty-four months and asked Gilberti to "file a complaint against the government for its failure to disclose favorable material to the defense with the initial release of discovery." (Id. at 9-10.) Later that day, Gilberti told Mr. Muntasir that the government would not reoffer the 84-month deal, but mat it would offer a 120-month deal. (Id. at 10.) Mr. Muntasir represents that he again asked Gilberti to seek relief from the Court regarding governmental misconduct, but that Gilberti said that such a motion would not be successful. (Id.) Later that day, Mr. Muntasir agreed to accept the 120-month deal. (Id. at 10-11.) Mr. Muntasir appeared before the Court to enter his guilty plea on November 20, 2012. Crim. No. 12-524, ECF Nos. 20-22.

         On April 8, 2013, Judge Cavanaugh sentenced Mr. Muntasir to 120 months of imprisonment followed by five years of probation. Crim. No. 12-524, J., ECF No. 27. Mr. Muntasir filed a notice of appeal with the U.S. Court of Appeals for the Third Circuit on April 10, 2013. Crim. No. 12-524, Notice of Appeal, ECF No. 23. Gilberti, "upon conferring with [Mr, Muntasir], " subsequently withdrew the appeal, and the Third Circuit dismissed it on November 8, 2013. (ECF No. 1, Mem. of Law at 11-12); Crim. No. 12-524, Order of 3d Cir., ECF No. 34.

         B. The § 2255 Motion

         Mr. Muntasir, acting pro se, filed a § 2255 motion to vacate, set aside, or correct his sentence. (ECF No. 1.) The motion, dated January 26, 2015, was filed by the Court on February 3, 2015. In this motion, he alleges ineffective assistance of counsel on three bases. (See ECF No. 1, Mem. of Law.) He first argues that Gilbert! was ineffective in "failing to seek and obtain all evidence favorable to the defense prior to presenting and allowing [Mr. Muntasir] to enter into plea negotiations with the prosecution, entertaining a plea before the court, and subsequently rejecting said plea causing prejudice to petitioner." (Id. at 12-16.) Essentially he alleges that Gilbert! should not have moved forward with the initial plea discussions without the benefit of full discovery from the government. (Id.) Lacking such discovery, Mr. Muntasir rejected a plea offer of 84 months' imprisonment, only to subsequently accept an offer of 120 months. (Id.) He next alleges that Gilberti was ineffective in that he failed to raise any issues of government misconduct witfi the Court, particularly whether the government had improperly failed to produce discovery or to reinstate the 84-month plea offer. (Id. at 16-20.) Mr. Muntasir claims that the withheld discovery material "was critical to defenses case and petitioners plea to the charges." (Id. at 16.) Finally, Mr. Muntasir argues that Gilberti was ineffective in that he erroneously advised Mr. Muntasir that an appellate waiver would prevent him from subsequently raising newly discovered evidence or issues (Id. at 20-23.) Mr. Muntasir contends that it was based on this erroneous advice that he rejected the 84-month plea offer. (Id.)

         The government responds that Mr. Muntasir's motion is untimely, as it was filed more than a year after his judgment became final. (Letter Br. in Resp., ECF No. 5, at 2-3.) It further argues, in the alternative, that Mr. Muntasir cannot show ineffective assistance of counsel, because the government did not improperly withhold discovery and Mr. Muntasir had ample opportunity to consider the 84-month deal. (Id. at 3-4.) It adds that Mr. Muntasir has failed to identify any allegedly withheld materials that emerged between the 84-month offer and the 120-month offer, or to specify what other relief Gilberti should have sought. (Id.) The government points out that Gilberti in fact urged Muntasir to accept the 84-month deal. (Id.) Finally, the government argues that Mr. Muntasir has failed to identify any specific deficiency in Gilberti's advice concerning his appellate rights, and it notes that the ultimate 120-month plea agreement included the same appellate-waiver language as the rejected 84-month deal. (Id.)

         Mr. Muntasir argues, in reply, that his § 2255 motion was not untimely, as the one-year period to file it began with the expiration of his time to seek certiorari from the Supreme Court, not from the date of dismissal by the Court of Appeals. (Reply, ECF No. 6, at 2-3.) He urges that the transcript shows that Gilberti did not have all discovery while the 84-month offer was being considered, and asserts that Gilberti had thus failed to subject the case to sufficient adversarial testing. (Id. at 5-6.) Mr. Muntasir contends that Gilberti erroneously told him that the appellate-waiver provision was "inextricabl[y] intertwined with the plea, " and that, contrary to Gilberti's advice, various court rules permit litigants to raise arguments based on newly discovered evidence. (Id. at 6, 9-10.) He asserts that Gilberti's "insistence on Petitioner taking a plea offer, regardless of how good of a deal counsel felt it was, before acquisition and inspection of all discovery did not accord Petitioner the benefit of his right to effective assistance of counsel." (Id., at 7.)

         III. LEGAL STANDARD

         To grant relief on a federal prisoner's motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255, the Court must find 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." 28 U.S.C. § 2255(b). "In considering a motion to vacate a defendant's sentence, 'the court must accept the truth of the movant's factual allegations unless they are clearly frivolous based on the existing record."' United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (quoting Gov't of V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)). 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.'" Id. (quoting Forte, 865 F.2d at 62).

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