United States District Court, D. New Jersey
MCNULTY United States District Judge
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
BACKGROUND AND PLEADINGS
The Underlying Criminal Proceeding
Judge Dennis M. Cavanaugh, who presided over the original
criminal proceedings, described the underlying facts as
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
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
United States v. Muntasir, Crim. No. 12-524 (DMC),
Op. (Oct. 16, 2012), ECF No. 15, at 2-4 (internal citations
and footnotes omitted).
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.
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.
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.
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.)
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 forty 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.)
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
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
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.
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.
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
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.
The § 2255 Motion
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.
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.
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.)
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).