United States District Court, D. New Jersey
MICHAEL F. DURANTE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
STANLEY R. CHESLER, U.S.D.J.
matter has been opened to the Court by Petitioner's
filing of a motion pursuant to vacate, correct, or set aside
sentence pursuant to 28 U.S.C. § 2255
(“Motion”). For the reasons explained in this
Opinion, the Court conduct a hearing on Ground Four of the
Motion and reserve judgment on that claim pending the outcome
of the hearing. The Court will otherwise deny the Motion for
the reasons stated in this Opinion and deny a certificate of
FACTUAL BACKGROUND AND PROCEDURAL
was a physician with a practice in New Jersey. A federal
sting operation revealed that he had been illegally selling
prescriptions for oxycodone to two drug-distribution
networks: one run by codefendant Andre Domando, and one by
codefendant Dennis Abato. Both Domando and Abato ultimately
cooperated with the Government.
December 2011, Durante was charged by Superseding Indictment
with conspiracy to distribute oxycodone and distribution of
oxycodone. Durante moved to suppress evidence and to obtain
certain information prior to trial. This Court held an
evidentiary hearing limited to the search of a safe found in
Durante's basement and Durante's post-arrest
statements and ultimately denied all of Durante's
2013, after a multi-week trial held before this Court, a jury
convicted Petitioner of one count of conspiracy to distribute
oxycodone and fifteen counts of distribution of oxycodone.
From the recordings played at trial, a jury could find that
Petitioner knew Domando was reselling the prescriptions for a
large profit. Petitioner was also captured on tape accepting
$300 from Domando in exchange for prescriptions, as well as
$100 for an extra prescription he sold to an undercover
agent. Neither Domando nor Abato testified at trial; however,
Abato's son testified that he delivered envelopes of cash
to Durante in exchange for extra prescriptions. Evidence was
also presented showing that Petitioner attempted to cover his
tracks through false medical records.
December 17, 2013, Petitioner was sentenced by this Court to
136 months of imprisonment on Count One and 136 months of
imprisonment on Counts Three through Seventeen to run
concurrently. See Crim. Dkt. No. 454, Judgment of
Conviction. Petitioner then filed a direct appeal challenging
several rulings made by this Court before and during trial,
all of which the Third Circuit rejected. See United
States v. Durante, 612 Fed.Appx. 129, 130 (2015),
cert. denied, 136 S.Ct. 537 (2015). In a separate
opinion, the Third Circuit also affirmed the District
Court's denial of Petitioner's motion for a new trial
under Federal Rule of Criminal Procedure 33 based on
allegations that the Government violated its obligations
under Brady v. Maryland. See United States v.
Durante, 689 Fed.Appx. 692, 693 (2017).
§ 2255 Motion is dated November 16, 2016, and was
docketed on December 1, 2016. ECF No. 1. In his § 2255
Motion, Petitioner raises 10 grounds for relief. Grounds
Three, Four, Five, Six, Seven, Eight, and Ten assert that his
attorney, Ms. Fleming, provided ineffective assistance of
counsel during pre-trial proceedings, at trial, during
sentencing, and on direct appeal. In Grounds One, Two, and
Nine, Petitioner contests his sentence, claiming that: (1) it
is unfairly disproportionate to that of this co-defendants;
(2) he was entitled to a 2-point reduction in the calculation
of his Sentencing Guidelines; (3) he should receive credit
from the Bureau of Prisons (“BOP”) for time
served on home confinement; and (4) the forfeiture portion of
his sentence was excessive. The government answered the
Motion on January 22, 2018. ECF No. 20. and Petitioner
submitted his reply on August 13, 2018, ECF No. 28, and a
supplemental brief on January 25, 2019. ECF No. 29. The
matter is fully briefed and ready for disposition.
STANDARD OF REVIEW
28, United States Code, Section 2255 permits a court to
vacate, correct, or set aside a sentence
upon the ground that the sentence was imposed in violation of
the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such a sentence, or
that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack. . . .
28 U.S.C. § 2255.
criminal defendant bears the burden of establishing his
entitlement to § 2255 relief. See United States v.
Davies, 394 F.3d 182, 189 (3d Cir. 2005). Moreover, as a
§ 2255 motion to vacate is a collateral attack on a
sentence, a criminal defendant “must clear a
significantly higher 2014) (citing United States v.
Frady, 456 U.S. 152, 166 (1982)). 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 on the basis of the
existing record.” United States v. Booth, 432
F.3d 542, 545 (3d Cir. 2005) (internal quotation marks and
citation omitted). “It is the policy of the courts to
give a liberal construction to pro se habeas
petitions.” Rainey v. Varner, 603 F.3d 189,
198 (3d Cir. 2010).
Court may dismiss the motion without holding an evidentiary
hearing where the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief. See 28 U.S.C. § 2255(b); Liu v.
United States, No. 11-4646, 2013 WL 4538293, at *9
(D.N.J. Aug. 26, 2013) (citing Booth, 432 F.3d at
545-46). Nevertheless, the Third Circuit has
“repeatedly emphasized that ‘bald assertions and
conclusory allegations do not afford a sufficient ground for
an evidentiary hearing' on a habeas petition.”
Palmer v. Hendricks, 592 F.3d 386, 395 (3d Cir.
2010) (citations omitted).
are additional important limitations on motions brought
pursuant to § 2255. Notably, § 2255
“generally ‘may not be employed to relitigate
questions which were raised and considered on direct
appeal.'” United States v. DeRewal, 10
F.3d 100, 105 n.4 (3d Cir. 1993) (citation omitted). Nor is
§ 2255 relief a substitute for a direct appeal. See
United States v. Frady, 456 U.S. 152, 165 (1982);
see also Bousley v. United States, 523 U.S. 614,
621-22 (1998). Accordingly, a defendant whose § 2255
motion raises a claim he failed to raise on appeal must show
both “cause” for that failure and “actual
prejudice” resulting from the claimed error.
Frady, 456 U.S. at 167-68; see United States v.
Essig, 10 F.3d 968, 979 (3d Cir. 1993). Section 2255
claims are also limited to issues pertaining to a
petitioner's custodial status and cannot be invoked to
challenge non-custodial aspects of their sentences. See
United States v. Ross, 801 F.3d 374, 380 (3d Cir. 2015)
(“monetary component of a sentence” does not
satisfy the “in custody” requirement of federal
Ineffective Assistance of Counsel Claims (Grounds Three,
Four, Five, Six, Seven, Eight, and Ten)
a petitioner can establish that he was denied his Sixth
Amendment right to the effective assistance of counsel, he
must make a two-part showing: (1) that his counsel's
performance was so deficient that the attorney was not
functioning as the professional counsel guaranteed by the
Sixth Amendment; and (2) that he was prejudiced by his
attorney's deficiencies, i.e., that “there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Strickland v.
Washington, 466 U.S. 668, 694 (1984).
Strickland, counsel “is strongly presumed to
have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment.” Id. at 690. Thus, to prove
deficiency, the petitioner must show that counsel's
performance “fell below an objective standard of
reasonableness under prevailing professional norms.”
Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999).
Courts evaluate the reasonableness of counsel's
performance “from counsel's perspective at the time
of the alleged error and in light of all the
circumstances.” Kimmelman v. Morrison, 477
U.S. 365, 381 (1986). Ultimately, it is the petitioner who
bears the burden of demonstrating that counsel's
representation was deficient. Id.
where a petitioner is able to show that counsel's
representation was deficient, he must still affirmatively
demonstrate that counsel's deficient performance
prejudiced the petitioner's defense. Strickland,
466 U.S. at 692-93. “It is not enough for the defendant
to show that the errors had some conceivable effect on the
outcome of the proceeding.” Id. at 693.
Ineffective Assistance during Plea Negotiations (Ground
asserts that his attorney was ineffective during plea
negotiations. He asserts that his counsel met privately with
government regarding the possibility of negotiating a guilty
plea to a financial crime, but it was not accomplished, and
Petitioner believes that the government made a plea offer
during this meeting that was not communicated to him by
counsel. After this meeting, Petitioner believed he had no
choice but to go to trial. Petitioner further states that
counsel never discussed the pros and cons of pleading guilty
versus going to trial, including the financial implications
of his sentence. ECF No. 1, at 15-16. In his reply,
Petitioner elaborates that counsel underestimated his maximum
sentencing exposure, which prevented him from ...