Difalco v. United States of America
Filing
2
ORDER denying 1 --motion to vacate/set aside/correct sentence (2255); denying a certificate of appealability; denying leave to proceed in forma pauperis; directing the clerk to ENTER JUDGMENT against DiFalco and to CLOSE the case. Signed by Judge Steven D. Merryday on 9/27/2017. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
v.
CASE NO. 8:13-cr-72-T-23MAP
8:17-cv-2168-T-23MAP
MICHAEL FRANCIS DiFALCO
/
ORDER
DiFalco moves under 28 U.S.C. § 2255 (Doc. 1) to vacate and challenges the
validity of his conviction for conspiring to possess with intent to distribute fifty grams
or more of methamphetamine, for which offense he is imprisoned for 240 months.
Although timely, DiFalco’s motion lacks merit because in the plea agreement
DiFalco waived the right to challenge the calculation of his sentence and because his
claims were denied on direct appeal.
Rule 4, Rules Governing Section 2255 Cases, requires both a preliminary
review of the motion to vacate and a summary dismissal “[i]f it plainly appears from
the face of the motion, any attached exhibits, and the record of prior proceedings that
the moving party is not entitled to relief . . . .” Accord Wright v. United States, 624 F.2d
557, 558 (5th Cir. 1980)1 (finding the summary dismissal of a Section 2255 motion
1
Unless later superseded by Eleventh Circuit precedent, a Fifth Circuit decision issued
before October 1, 1981, binds this court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.
1981) (en banc).
was proper “[b]ecause in this case the record, uncontradicted by [defendant], shows
that he is not entitled to relief”); Hart v. United States, 565 F.2d 360, 361 (5th Cir.
1978) (“Rule 4(b) [Rules Governing § 2255 Proceedings], allows the district court to
summarily dismiss the motion and notify the movant if ‘it plainly appears from the
face of the motion and any annexed exhibits and the prior proceedings in the case
that the movant is not entitled to relief . . . .’”). See United States v. Deal, 678 F.2d
1062, 1065 (11th Cir. 1982) (citing Wright and Hart). DiFalco’s motion to vacate
lacks merit.
DiFalco pleaded guilty with the benefit of a plea agreement and his sentence
was both calculated under the Sentencing Guidelines and in accord with his plea
agreement. On direct appeal DiFalco “claimed that his sentence was imposed in
error because the government did not file a proper information under 21 U.S.C. § 851
to support his enhanced sentence,” which claim was denied in United States v.
DiFalco, 837 F.3d 1207, 1211 (2016), as follows:
Because we hold that a defendant may waive § 851’s
requirements, and the record before us establishes that DiFalco
knowingly waived his right to appeal his sentence, we dismiss
his appeal. But, even if we found that the defendant had not
knowingly waived his right to challenge his sentence in this
Court, DiFalco has failed to meet his burden of establishing
that the district court erred, plainly or otherwise, in imposing a
240-month sentence.
In reaching that holding, the circuit court overturned circuit precedent, which held
that the notice requirements under Section 851 were jurisdictional. “We hold today
that our decisions that § 851 imposes a jurisdictional limit on a district court’s
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authority have been undermined to the point of abrogation by subsequent decisions
of the Supreme Court.” DiFalco, 837 F.3d at 1216.
In ground one DiFalco challenges the validity of the appeal-waiver, arguing
that “[t]he Eleventh Circuit overturned controlling circuit precedent after Mr.
DiFalco’s guilty plea was accepted. The change in governing authority rendered Mr.
DiFalco’s appeals waiver unintelligent and unknowing.” (Doc. 1 at 14) DiFalco, 837
F.3d at 1219–20, rejects this claim:
Having concluded that § 851’s requirements are not
jurisdictional — and, thus, subject to waiver — we turn to
whether DiFalco did knowingly and voluntarily waive his right
to challenge the § 851 notice when he signed the plea
agreement. Upon a fair review of this record, we are satisfied
that DiFalco knowingly and voluntarily waived his right to
appeal his sentence. [W]e have little difficulty concluding that
DiFalco entered into this appeal waiver knowingly and
voluntarily.
In ground two DiFalco contends that the district court erred by applying the
Section 851 enhancement, arguing that “[t]he sentencing court misperceived the
range of its penalty jurisdiction as a result of its failure to recognize the defective
§ 851 information. The sentencing court’s sentence was based on the mistake, thus
inherently dependent on unreliable information. Unreliability that transgresses due
process of law.” (Doc. 1 at 15) Because DiFalco holds that the Section 851 notice as
not defective, the underlying premise of ground two is erroneous, that is, the sentence
is not based on a mistake. Moreover, DiFalco concludes with “even if DiFalco has
not waived his right to contest his sentence, the judgment of the district court must be
affirmed,”id. at 1225, in part because, earlier in the order, DiFalco found that DiFalco
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“has not met his burden of showing an error, let alone an error that was plain or
obvious.” Id. at 1222.
Accordingly, the motion under Section 2255 to vacate the sentence (Doc. 1) is
DENIED. The clerk must enter a judgment against DiFalco, close this case, and
enter a copy of this order in the criminal action.
DENIAL OF BOTH A
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
DiFalco is not entitled to a certificate of appealability (“COA”). A prisoner
moving under Section 2255 has no absolute entitlement to appeal a district court’s
denial of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district court must
first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant
has made a substantial showing of the denial of a constitutional right.” To merit a
certificate of appealability, DiFalco must show that reasonable jurists would find
debatable both (1) the merits of the underlying claims and (2) the procedural issues he
seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478
(2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to show
that reasonable jurists would debate either the merits of the claims or the procedural
issues, DiFalco is entitled to neither a certificate of appealability nor an appeal in
forma pauperis.
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Accordingly, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. DiFalco must obtain authorization from the circuit court
to appeal in forma pauperis.
ORDERED in Tampa, Florida, on September 27, 2017.
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