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Ingalls v. United States

United States District Court, D. New Jersey

September 6, 2018

MICHAEL A. INGALLS, JR., Petitioner,

          David W. Sufrin, Esq. ZUCKER, STEINBERG & WIXTED, P.A. Attorneys for Petitioner.

          Michael A. Ingalls, Jr. Reg. No. 65262-050 FCI ALLENWOOD LOW Federal Correctional Institution Petitioner Pro Se (Post-Judgment)

          CRAIG CARPENITO, UNITED STATES ATTORNEY By: Deborah Prisinzano Mikkelsen Assistant U.S. Attorney Attorneys for Respondent



         Michael A. Ingalls, Jr., Petitioner, was convicted before this Court upon his plea of guilty to the crimes of conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349, and theft of mail, in violation of 18 U.S.C. § 1708. His conviction and sentence were affirmed on appeal. United States v. Ingalls, App. No. 14-1409, 2015 WL 1189185 (Mar. 17, 2015) (non-precedential opinion).

         His retained attorneys, Zucker, Steinberg & Wixted, P.A., by Dennis Wixted, Esq. and David W. Sufrin, Esq., filed a petition for relief under 28 U.S.C. § 2255 on July 9, 2015, claiming that at sentencing the PSR contained factually incorrect information about the date of his sentencing for a 1995 felony offense that would place that conviction outside the 15-year time period of U.S.S.G. § 4A1.2(e) for considering such conviction in computing his Criminal History Category (“CHC”). Petitioner asserted that he was erroneously sentenced at CHC V and that the correct classification was CHC IV, resulting in a lower recommended Guideline Range.

         This Court denied the petition and denied a certificate of appealability in an Opinion and Order filed January 19, 2016. [Docket Items 7 & 8.] No appeal was taken.

         Thereafter, Mr. Ingalls, acting pro se, filed the present motion before the Court, seeking to vacate the January 19, 2016 Opinion and Order, and to add an ineffective assistance of counsel claim to his already-adjudicated § 2255 petition. [Docket Item 9, filed March 18, 2016.][1] Petitioner Ingalls, acting pro se, essentially claimed that his attorneys filed the § 2255 petition without his knowledge and permission, and that he sought to include a claim of ineffective assistance of his previous trial counsel (Richard Sparaco, Esq.) who advised him to plead guilty to the § 1349 charge of conspiracy to commit bank fraud when he was actually innocent of that crime, lacking the requisite intent to defraud a bank. [Docket Item 9.] He also alleged that Mr. Wixted, who was retained and substituted into the case for Mr. Sparaco and represented him at sentencing and on appeal, was constitutionally ineffective for failing to raise the § 1349 “intent” issue at sentencing or on appeal, and that Mr. Wixted was therefore conflicted in preparing the § 2255 petition containing no claim of ineffective assistance. [Docket Item 9.] He claimed that he had previously filed his amended new ground in a pro se filing dated December 14, 2015, while his counseled § 2255 petition was still pending decision.

         After Mr. Ingalls claimed that his attorneys filed his § 2255 petition without authorization, and that he purportedly filed a pro se amendment, and that Mr. Ingalls sought to add a new ground two months after his § 2255 petition had been decided, the Court addressed the situation in its Order of February 22, 2017. [Docket Item 12.] That Order required Ingalls' attorneys, David W. Sufrin, Esq., and Dennis Wixted, Esq., to respond to the allegations in Ingalls' motion. [Id.] Mr. Sufrin submitted his Reply [Docket Item 13], accompanied by his Certification in opposition [Docket Item 14], and a Corrected Certification [Docket Item 16], on March 9, 2017.

         Mr. Sufrin's certification refuted Ingalls' allegations, demonstrating that Ingalls authorized and knew about the § 2255 petition and developments. He offered to provide attorney-client privileged communications on this subject if Ingalls was deemed to have waived the privilege by raising allegations of non-authorized filing and incompetence of counsel.

         On May 2, 2017, Ingalls filed a response [Docket Item 17] claiming that attorney Sufrin was inaccurate but offering no evidence beyond generalized accusations. Ingalls specifically offered no proof that he ever submitted to the Clerk of Court a pro se motion on December 14, 2015, as he previously claimed, while his counseled § 2255 petition was pending. He did not refute the fact that attorney Sufrin kept him well-apprised of the filing of the § 2255 petition, the grounds raised, and developments in the case.

         Mr. Ingalls asked that the Court order Mr. Sufrin to produce copies of all documents mentioned in Mr. Sufrin's certification. [Docket Item 17 at ¶ 3.]

         The Court addressed these submissions in its Memorandum Opinion and Order filed August 9, 2017. [Docket Item 19.] After tracing the procedural history, the Court advised that neither the Clerk's Office nor the Judge's Chambers received Ingalls' alleged motion to amend in December of 2015, and that Mr. Sufrin also had indicated he found no copy of such pro se pleading by Ingalls to the Court seeking to amend or supplement his § 2255 petition. [Id. ¶ 5.] The Court determined that Ingalls “waived the privilege regarding his communications with counsel as well as the protection of counsel's work product within the subject matter of which Mr. Ingalls now complains.” [Id. ¶ 6] (citing, inter alia, Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994)). The Court found each of the documents cited in Mr. Sufrin's earlier corrected Certification [Docket Item 16 at ¶ 13] was within the scope of the subject-matter waiver of attorney-client privilege and should therefore be produced to Mr. Ingalls and filed under seal with the Court. [Docket Item 19 at ¶ 6.]

         The Court specifically ordered Mr. Ingalls “to submit and serve all evidence demonstrating that he composed and submitted his own motion to amend the § 2255 petition on or ...

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