SHNEWER v. UNITED STATES OF AMERICA
Filing
35
OPINION. Signed by Judge Robert B. Kugler on 3/2/16. (dd, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
MOHAMAD IBRAHIM SHNEWER,
:
:
Petitioner,
:
Civ. No. 13-3769 (RBK)
:
v.
:
:
UNITED STATES OF AMERICA,
:
OPINION
:
Respondent.
:
_________________________________________ :
ROBERT B. KUGLER, U.S.D.J.
I.
INTRODCUTION
Petitioner, Mohamad Ibrahim Shnewer, seeks relief under 28 U.S.C. § 2255 from his
federal conviction and sentence. Mr. Shnewer filed his § 2255 motion and his reply brief in
support pro se. However, Mr. Shnewer now has counsel representing him. Mr. Shnewer was
convicted after a jury trial (along with his coconspirators Dritan Duka, Shain Duka, Eljvir Duka
(collectively the “Duka brothers”) and Serdar Tatar) of conspiracy to murder members of the
United States military. Mr. Shnewer raises several claims in his § 2255 motion; specifically: (1)
ineffective assistance of counsel by failing to object to the sentencing court’s failure to give
meaningful consideration to the need to avoid unwarranted sentencing disparities (“Claim I”); (2)
ineffective assistance of counsel in failing to raise the sentencing court’s impermissible use of
religious beliefs to sentence him as well as a direct claim that this Court used his religion to
determine his sentence (“Claim II”); (3) ineffective assistance of counsel for failing to
communicate a plea offer to him or pursue plea discussions with the government (“Claim III”);
and (4) all claims raised by his codefendants in their separate § 2255 motions (“Claim IV”). The
respondent opposes the § 2255 motion. Mr. Shnewer then filed a reply brief along with an
accompanying memorandum of law. Respondent then was permitted to file a sur-reply brief in
response to Mr. Shnewer’s reply brief and memorandum of law. For the following reasons, the
Court will deny relief on all of the claims Mr. Shnewer raises in his § 2255 motion.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Shnewer, the Duka brothers, and Tatar are a group of young men
who lived in New Jersey and developed an interest in violent jihad,
particularly attacks against the United States military. Defendants,
who had known each other since high school, came to the FBI’s
attention after it received a copy of a video that was brought to a
Circuit City store in Mt. Laurel, New Jersey for copying. The
video dated from January 2006 and depicted the five defendants
and others at a firing range in the Pocono Mountains, shooting
weapons and shouting “Allah Akbar!” and “jihad in the States.”
Over the course of the next sixteen months, the FBI deployed two
cooperating witnesses, Mahmoud Omar and Besnik Bakalli, to
monitor defendants’ activities. The evidence presented at trial
showed that, between January 2006 and May 2007, defendants
viewed and shared videos of violent jihadist activities, including
beheadings, around the world; they viewed and shared videos of
lectures advocating violent jihad against non-Muslims; they sought
to acquire numerous weapons, including automatic firearms and
rocket-propelled grenades; they returned to the Poconos, where
they again engaged in shooting practice; they discussed plans to
attack the United States military; they conducted research and
surveillance on various potential targets for such an attack in New
Jersey, Pennsylvania, and Delaware; and they procured a map of
the United States Army Base at Fort Dix to use in planning and
coordinating such an attack.
With respect to the individual defendants, the evidence
demonstrated the following:
Mohamad Shnewer is a naturalized American citizen who was
born in Jordan. He admired and sought to emulate the “nineteen
brothers,” i.e., the September 11 hijackers, Osama bin Laden, and
the leader of Al Qaeda in Iraq, Abu Musab al-Zarqawi. Shnewer
openly discussed and planned attacks on military targets in New
Jersey, Pennsylvania, and Delaware. Along with Omar, the
government informant, he staked out the United States Army Base
at Fort Dix, McGuire Air Force Base, Lakehurst Naval Air Station,
and the United States Army Base at Fort Monmouth in New
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Jersey; the United States Coast Guard Base in Philadelphia,
Pennsylvania; and Dover Air Force Base in Delaware. Shnewer
also considered attacking the federal government building at 6th
and Arch Streets in Philadelphia and drove by the building to
determine whether such an attack would be feasible. To
accomplish an attack on these targets, Shnewer proposed
deploying a gas tanker truck as a bomb, using roadside bombs or
surface-to-air missiles, and spraying military targets with
machinegun fire. He sought to acquire AK-47 machineguns from
Omar to use in such an attack.
Dritan, Shain, and Eljvir Duka are brothers who were born in
Albania. During the events that were the subject of the trial, they
were in the United States illegally. In 2006 and 2007, the Dukas
took at least two trips to the Poconos to train for jihad by firing
weapons, attempting to buy automatic weapons, discussing jihad,
and watching violent jihadist videos. The Dukas befriended
government informant Bakalli, a fellow Albanian, and encouraged
him to join them in avenging Muslims who had been oppressed in
the United States and Israel. They viewed and praised a lecture,
Constants on the Path to Jihad, by Anwar al-Awlaki, the
prominent cleric and proponent of attacks against the United States
military, and videos depicting attacks on American soldiers by
violent jihadists in Iraq and elsewhere. In recorded conversations
presented at trial, the Dukas described beheadings depicted in the
videos as just punishment for traitors. The Dukas watched the
beheading videos over and over again until they became inured to
the spectacle. Dritan told Bakalli that, although at first he
“couldn’t take it,” “[n]ow I see it and it’s nothing, I do not care. I
saw hundreds being beheaded.” Similarly, Eljvir told Bakalli that
the beheadings were difficult to watch at first, but that “[n]ow we
can watch it no problem.”
Like Shnewer, the Dukas sought to acquire firearms to further their
plans. They could not acquire weapons lawfully because they were
in the country illegally, so they turned to the black market. By
January 2007, the three brothers told Bakalli they had acquired a
shotgun, two semi-automatic rifles, and a pistol, and they
continued to look for opportunities to buy machineguns.
Later that spring, Dritan Duka ordered nine fully automatic
weapons – AK 47s and M-16s – from a contact of Omar in
Baltimore. The FBI arranged a controlled transaction, and, on May
7, 2007, Dritan and Shain Duka went to Omar’s apartment to
retrieve their weapons. After handing Omar $1,400 in cash, Dritan
and Shain examined and handled four fully automatic machineguns
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and three semiautomatic assault rifles. They asked Omar for
garbage bags to conceal the weapons (so they would look like golf
clubs) as they carried them out to the car. Before they could get
there, however, federal and state law enforcement officers entered
Omar’s apartment and arrested them. The entire transaction was
captured on video by equipment installed in Omar’s apartment by
the FBI and was shown to the jury at trial.
Serdar Tatar is a lawful permanent resident in the United States
who was born in Turkey. Tatar appears in the video of defendants’
January 2006 training trip to the Poconos. After extensive
discussions with Omar about Shnewer’s plan to attack Fort Dix,
Tatar agreed to help by providing Omar with a map of Fort Dix to
use in planning such an attack. Regarding the overall plan to attack
Fort Dix, Tatar told Omar in a recorded conversation, “I’m in,
honestly, I’m in.”
All five defendants were arrested on May 7, 2007, after Dritan and
Shain Duka completed the controlled firearm purchase from Omar.
United States v. Duka, 671 F.3d 329, 333-35 (3d Cir. 2011).
Relevant to this Opinion, Mr. Shnewer was charged with one count of conspiracy to
murder members of the United States military in violation of 18 U.S.C. § 1117 (“Count 1”) and
one count of attempt to murder members of the United States military in violation of 18 U.S.C. §
1114 (“Count 2”). Mr. Shnewer was also charged with one count of attempted possession of
firearms in furtherance of a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A) &
(B)(ii). (“Count 4”).1 Mr. Shnewer was found guilty of Count 1 of conspiracy to kill United
States military personnel and Count 4 of attempted possession of firearms in furtherance of a
crime of violence. However, Mr. Shnewer, along with his codefendants, were found not guilty of
Count 2 of attempting to kill United States military personnel. This Court sentenced Mr.
1
The Duka brothers and Mr. Tatar were also charged in Count 1 and 2. Additionally, the
superceding indictment charged the Duka brothers with possession and attempted possession of
firearms in furtherance of a crime of violence (“Count 3”) and possession of firearms by an
illegal alien (“Count 7”). Shain and Dritan Duka were also charged with possession of machine
guns (“Count 5”) and possession of firearms by an illegal alien (“Count 6”).
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Shnewer to life imprisonment on Count 1 and 360 months to be served consecutively on Count
4.
On appeal, the government conceded that it would not defend Mr. Shnewer’s conviction
on Count 4 because it charged Mr. Shnewer with the non-existent crime of attempted possession
of firearms in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). See
Duka, 671 F.3d at 353. Thus, the Third Circuit reversed Mr. Shnewer’s conviction on Count 4.
On remand, Mr. Shnewer was resentenced to life imprisonment on his remaining conviction on
Count 1.
III.
LEGAL STANDARD FOR § 2255 MOTION
A motion to vacate, set aside or correct a sentence of a person in federal custody pursuant
to 28 U.S.C. § 2255 entitles a prisoner to relief if “the court finds ... [t]here has been such a
denial or infringement of the constitutional rights of the prisoner as to render 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 Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989))
(also citing R. Governing § 2255 Cases R. 4(b)). 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). The Third Circuit has
stated that this standard creates a ‘“reasonably low threshold for habeas petitioners to meet.’” Id.
(quoting United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005) (quoting Phillips v.
Woodford, 267 F.3d 966, 973 (9th Cir. 2001))). Accordingly, this Court abuses its discretion “if
5
it fails to hold an evidentiary hearing when the files and records of the case are inconclusive as to
whether the movant is entitled to relief.” Id. (citing McCoy, 410 F.3d at 134).
IV.
INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD
Mr. Shnewer’s claims involve whether counsel was ineffective at trial/sentencing and/or
on appeal. The Sixth Amendment guarantees effective assistance of counsel. In Strickland v.
Washington, 466 U.S. 668 (1984), the Supreme Court articulated the two-prong test for
demonstrating when counsel is deemed ineffective. First, the petitioner must show that
considering all of the circumstances, counsel's performance fell below an objective standard of
reasonableness. See id. at 688; see also Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013)
(noting that it is necessary to analyze an ineffectiveness claim in light of all of the circumstances)
(citation omitted). A petitioner must identify the acts or omissions that are alleged not to have
been the result of reasonable professional judgment. See Strickland, 466 U.S. at 690. Under this
first prong of the Strickland test, scrutiny of counsel's conduct must be “highly deferential.” See
id. at 689. Indeed, “[c]ounsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690.
The reviewing court must make every effort to “eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time.” Id. at 689. If counsel makes “a thorough investigation of law
and facts” about his plausible options, the strategic choices he makes accordingly are “virtually
unchallengeable.” Gov't of Virgin Islands v. Weatherwax, 77 F.3d 1425, 1432 (3d Cir. 2006)
(citing Strickland, 466 U.S. at 690–91). If, on the other hand, counsel pursues a certain strategy
after a less than complete investigation, his choices are considered reasonable “to the extent that
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reasonable professional judgments support the limitations on investigation.” Rolan v. Vaughn,
445 F.3d 671, 682 (3d Cir. 2006) (citing Strickland, 466 U.S. at 690–91).
The second prong of the Strickland test requires the petitioner to affirmatively prove
prejudice. See 466 U.S at 693. Prejudice is found where “there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. A reasonable probability is “a probability sufficient to undermine confidence in the
outcome.” Id.; see also McBridge v. Superintendent, SCI Houtzdale, 687 F.3d 92, 102 n.11 (3d
Cir. 2012). “This does not require that counsel's actions more likely than not altered the outcome,
but the difference between Strickland's prejudice standard and a more-probable-than-not
standard is slight and matters only in the rarest case. The likelihood of a different result must be
substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 111–12 (2011) (internal
quotation marks and citations omitted).
“With respect to the sequence of the two prongs, the Strickland Court held that ‘a court
need not determine whether counsel's performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be
followed.’” Rainey v. Varner, 603 F.3d 189, 201 (3d Cir. 2010) (quoting Strickland, 466 U.S. at
697). Additionally, “claims of ineffective assistance of appellate counsel are also governed by
the Strickland standard.” Lusick v. Palakovich, 270 F. App'x 108, 110 (3d Cir. 2008) (citing
United States v. Mannino, 212 F.3d 835, 840 (3d Cir. 2000)).
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V.
DISCUSSION
A. Claim I – Failure to Object to Sentencing Disparities
In Claim I, Mr. Shnewer makes two distinct arguments. First, he argues that his trial
counsel, Rocco C. Cipparone, Jr., Esq., was ineffective because he failed to object when this
Court purportedly did not give proper consideration at sentencing to the need to avoid
unwarranted sentencing disparities when it sentenced him to life imprisonment. Second, Mr.
Shnewer asserts that Mr. Cipparone was ineffective because he failed to advance a colorable
argument at sentencing that a life sentence constituted an unwarranted disparate sentence. Thus,
in the first argument, Mr. Shnewer is arguing that Mr. Cipparone should have objected to this
Court’s discussion of the 18 U.S.C. § 3553(a) factors based on the arguments presented. In the
second argument, Mr. Shnewer asserts that Mr. Cipparone should have presented better
arguments on the § 3553(a) factors (specifically § 3553(a)(6)). Each of these arguments is
considered in turn.
i.
Failure to Object to Sentencing Court’s Failure to Consider Need to Avoid
Unwarranted Sentencing Disparities
Mr. Shnewer’s first argument is that Mr. Cipparone failed to object when this Court
purportedly did not consider the need to avoid unwarranted sentence disparities among
defendants with similar records. At sentencing:
A district court must begin the process by first calculating the
applicable Guidelines range. After that initial calculation, the court
must then rule on any motions for departure and, if a motion is
granted, state how the departure affects the Guidelines calculation.
Finally, after allowing the parties an opportunity for argument, the
court must consider all of the § 3553(a) factors and determine the
appropriate sentence to impose, which may vary from the
sentencing range called for by the Guidelines.
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United States v. Levinson, 543 F.3d 190, 194-95 (3d Cir. 2008) (citations omitted). It is this
third-step of this process that Mr. Shnewer argues that Mr. Cipparone’s counsel amounted to
ineffective assistance.
Section 3553(a) of Title 18 of the United States Code states as follows:
The court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph (2) of
this subsection. The court, in determining the particular sentence to be
imposed, shall consider—
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed-(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical care, or
other correctional treatment in the most effective
manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for-(A) the applicable category of offense committed by
the applicable category of defendant as set forth in
the guidelines-(i) issued by the Sentencing Commission pursuant
to section 994(a)(1) of title 28, United States Code,
subject to any amendments made to such guidelines
by act of Congress (regardless of whether such
amendments have yet to be incorporated by the
Sentencing Commission into amendments issued
under section 994(p) of title 28); and
(ii) that, except as provided in section 3742(g), are
in effect on the date the defendant is sentenced; or
(B) in the case of a violation of probation or
supervised release, the applicable guidelines or
9
policy statements issued by the Sentencing
Commission pursuant to section 994(a)(3) of title
28, United States Code, taking into account any
amendments made to such guidelines or policy
statements by act of Congress (regardless of
whether such amendments have yet to be
incorporated by the Sentencing Commission into
amendments issued under section 994(p) of title
28);
(5) any pertinent policy statement-(A) issued by the Sentencing Commission pursuant
to section 994(a)(2) of title 28, United States Code,
subject to any amendments made to such policy
statement by act of Congress (regardless of whether
such amendments have yet to be incorporated by the
Sentencing Commission into amendments issued
under section 994(p) of title 28); and
(B) that, except as provided in section 3742(g), is in
effect on the date the defendant is sentenced.
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).
In [United States v.] Booker[, 543 U.S. 220 (2005)], the Supreme
Court held that appellate courts should insure that district courts
analyze the § 3553(a) factors when determining sentences for
criminal enterprises. 543 U.S. at 261, 125 S. Ct. 738. Sentencing
courts must give “meaningful consideration” to the factors in 18
U.S.C. § 3553(a). United States v. Olhovsky, 562 F.3d 530, 546 (3d
Cir. 2009). A district court's fail[ure] to consider the § 3553(a)
factors can create a procedurally unreasonable sentence. United
States v. Levinson, 543 F.3d 190, 196 (3d Cir. 2008).
“[T]he district court need not discuss and make findings as to each
of the § 3553(a) factors if the record makes clear that the court
took the factors into account in sentencing....” United States v.
Kononchuk, 485 F.3d 199, 204 (3d Cir. 2007). Still, “[w]here one
party raises a colorable argument about the applicability of one of
the factors, [ ] the court should respond to that argument as part of
its ‘meaningful consideration of the relevant statutory factors and
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the exercise of independent judgment.’ ” United States v. Merced,
603 F.3d 203, 221 (3d Cir. 2010) (quoting [United States v.] Grier,
475 F.3d [556,] 571–72 [3d Cir. 2007))].
United States v. Friedman, 658 F.3d 342, 362 (3d Cir. 2011). This Court discussed the § 3553(a)
factors as follows at Mr. Shnewer’s sentencing hearing:
So I turn now to the factors under 3553. The first and most
important in all these cases is the nature and circumstances of the
offense, and the history and characteristics of the defendant.
As has been mentioned he has no criminal record whatsoever. He
has four violations at FDC Philadelphia for refusing to obey an
order and possessing an unauthorized item and destroying
property, which are not terribly significant.
He was born in Jordan, lived in Cherry Hill; interesting, interesting
family history. His father was arrested in Palestine twice by the
Israelis. Claims that Israel wanted him to spy on his fellow
Muslims, which he refused. He relocated to Jordan and the
Jordanian officials thought he was an Israeli spy.
Moved to Saudi Arabia and eventually came to the United States,
settled in Philadelphia and moved to Cherry Hill in 1996.
Mr. Shnewer became a naturalized U.S. citizen in 2004. We know
it’s a family – and these are all so tragic and so sad. The
destruction of these families because of what these young men
have done.
One of his sisters is married to one of the Dukas. He’s single, has
no children. No drug or alcohol use or abuse. Graduated from
Cherry Hill High School West, was a fair student; has some
college at Camden County College.
He has a cab driver’s license, worked as a cab driver; worked at the
food market; worked as a waiter at a restaurant in Marlton; worked
for Cingular and Verizon; on a whole a fairly positive life to this
point.
But then we turn to the nature of the offense, and the Government
is correct, he was the epicenter of this conspiracy. He’s the one
who chose Fort Dix, he emphasized how easy this attack would be;
because Sadam [sic] knows it like the back of his hand.
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Dreamed of killing Jews, and that’s not the only reference in the
tapes. He did not have kind words for Jewish people.
He did the surveillances. And some of the things he said are just
horrifying. He’s very clear about the reasons why they wanted to
kill American soldiers, and destroy American buildings.
Eliminate any feeling that they have achieved anything with this
war on terror. Talked about attacking the national guard armory in
Cherry Hill, killing them all and taking the weapons they need.
And the videos, my gosh, the videos, just awful stuff. And he
seemed the [sic] revel in that stuff.
He says today he can’t believe he said some of these things
because he couldn’t consider taking another person’s life. All he
talked about – this wasn’t a one-time incident; all he talked about
was killing people, how best to do that, how to destroy things. And
why it was important to kill and destroy.
And I agree with his family, he’s an entirely different person that
they seemed to know, but that’s who he is. And that’s what he did.
There’s no question in my mind he was motivated by hatred of
Jews and Americans. He desired to kill, he agreed to kill, he
planned to kill.
This is a very serious crime. As I have stated repeatedly, it’s the
most serious crime I can imagine under the guidelines. It’s clear
the Commission wanted to punish this crime severely.
In order to promote respect for the law as to deterrence, I hear what
he says; of course I hear every defendant tell me they’ll never
commit another crime.
And I also heard the months after months of tapes. Which indicates
to me that he is so deeply committed to this ideology and this
desire to kill that he can’t be rehabilitated.
The public needs to be protected from him, because he will commit
other crimes if given a chance.
I have reviewed the sentences that are available; obviously we
spent a lot of time talking about the guidelines, and the policy
statements in the guidelines. The sentence disparity is really not an
issue in this case. Restitution as I have said will be ordered. I am
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left with a firm conclusion as difficult as it is that only a sentence
of life is sufficient to accomplish the goals of the law.
(Shnewer Sentencing Tr. at p. 48-51 (emphasis added)) Mr. Shnewer takes exception with the
emphasized portion of the sentencing transcript and argues as follows:
The sole reference to the § 3553(a)(6) factor by the sentencing
court in this case was this brief comment: “The sentence disparity
is really not an issue in this case.” As noted, although a district
court need not state or even address all the § 3553(a) factors, that is
true only “as long as the record makes clear that the factors have
been considered[.]” In this case, there is nothing in the record to
suggest that the court considered § 3553(a)(6) beyond that brief
comment, rendering it tantamount to a rote reference that was
simply insufficient to demonstrate that the court “reasonably
discharged its obligation” to give meaningful consideration to that
factor.
(Dkt. No. 13 at p. 4)
Mr. Shnewer is not entitled to relief based on this argument. This Court made clear at Mr.
Shnewer’s sentencing hearing that it took the § 3553(a) factors into account at sentencing. See
Friedman, 658 F.3d at 362 (stating district court need not discuss and make findings as to each
of the § 3553(a) factors as long as record makes clear factors were taken into account at
sentencing). Furthermore, this was not a case where Mr. Cipparone made a colorable argument
about § 3553(a)(6) that would have triggered this Court to specifically address it at sentencing.
See Friedman, 658 F.3d at 362 (noting that court should respond to party’s argument on one of
the § 3553(a) factors when party makes a colorable argument). Indeed, Mr. Cipparone’s
argument in his presentence brief with respect to § 3553(a)(6) stated in conclusory fashion that a
downward variance from the advisory guidelines range would not create an unwarranted
sentencing disparity. However, at no time did Mr. Cipparone make a colorable argument with
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respect to the need to prevent unwarranted sentencing disparities that required this Court’s
specific express attention.2
Additionally, it is worth noting that Mr. Shnewer received a life sentence, which was
within the advisory Sentencing Guidelines exclusive range. “[W]ithin-guidelines sentences . . .
generally do not lead to disparities requiring that a defendant be granted relief because
‘avoidance of unwarranted disparities was clearly considered by the Sentencing Commission
when setting the Guidelines ranges.’” United States v. Kluger, 722 F.3d 549, 568-69 (3d Cir.
2013) (quoting Gall v. United States, 552 U.S. 38, 54 (2007)).
Mr. Shnewer’s conviction on Count 1 was for any term of years with a maximum of life
imprisonment. See 18 U.S.C. § 1117. Furthermore, Mr. Shnewer had a total offense level of 51
and a criminal history category of VI. This placed Mr. Shnewer at an “off-of-the-chart” advisory
guidelines range of exclusively life imprisonment (the sentencing table only goes up to offense
level 43). Thus, Mr. Shnewer’s life sentence was within the applicable advisory guidelines range.
As noted above, this within guidelines sentence does not generally lead to sentencing disparities.
See Kluger, 722 F.3d at 568-69.
At one point during Mr. Shnewer’s sentencing hearing, Mr. Cipparone alluded to a sentence in
another case where an individual robbed five banks and a liquor store, discharged a gun at one of
them and had a prior conviction of stabbing someone in the chest. He also smuggled out a razor
blade after his arrest and tried to sexually assault his court appointed lawyer according to Mr.
Cipparone. Mr. Cipparone then told this Court that this individual received a sentence of 890
months. (See Shnewer Sentencing Tr. at p. 42-43) It is not altogether clear from the record
whether this was Mr. Cipparone’s attempt to raise an issue under § 3553(a)(6). However, such
comparisons by Mr. Cipparone to this case without any further factual detail or elaboration did
not present a “colorable” claim of unwarranted sentencing disparities that would have
necessitated a need by this Court to respond. Accordingly, Mr. Cipparone was not ineffective
when this Court did not expressly discuss its relevance to the § 3553(a)(6) factors. Furthermore,
at no point did Mr. Cipparone indicate to this Court that the defendant in that other case was
similarly situated to Mr. Shnewer, something that is important before determining whether there
is an unwarranted sentence disparity. See infra Part V.A.ii.
2
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Mr. Cipparone did not make a colorable argument with respect to section § 3553(a)(6) at
sentencing, such that the duty of this Court to respond to that argument as set forth in Friedman
was never triggered. See 658 F.3d at 362. Mr. Cipparone was not ineffective for failing to object
to this Court’s discussion of the § 3553(a)(6) factor in determining his sentence. This Court
adequately addressed and considered the § 3553(a) factors such that Mr. Shnewer is not entitled
to relief on this issue that Mr. Cipparone failed to object to this Court’s analysis. See Real v.
Shannon, 600 F.3d 302, 310 (3d Cir. 2010) (counsel not ineffective for failing to raise a meritless
claim). This Court gave meaningful consideration to the § 3553(a) factors and § 3553(a)(6) was
not particularly relevant because no colorable argument was ever brought to the attention of this
Court on that factor and Mr. Shnewer was sentenced to the within advisory guidelines range of
life.
ii.
Trial Counsel Failure to Advance Sentencing Disparity Issue
Mr. Shnewer also argues that Mr. Cipparone should have made a better attempt to argue
that a life sentence amounted to an unwarranted disparate sentence. Mr. Shnewer claims that Mr.
Cipparone was ineffective because he should have specifically cited several cases that illustrate
that his life sentence constituted an unwarranted disparate sentence. A brief recitation of each
case that Mr. Shnewer relies on and their relevant facts will be instructive in determining
whether Mr. Shnewer has adequately stated an ineffective assistance of counsel claim on this
issue.
In Polk v. United States, 118 F.3d 286, 289 (5th Cir. 1997), the petitioner was convicted
of attempting to use a weapon of mass destruction, solicitation to commit a crime of violence
under 18 U.S.C. § 844(f), solicitation to commit a crime of violence under 18 U.S.C. § 1114;
possession (carrying) of a firearm during a crime of violence, unlawful possession of a machine
15
gun and aiding and abetting the making of a false statement to a federally licensed firearms
dealer. While the Fifth Circuit’s opinion did not detail the sentencing guidelines range for Polk,
appellant’s brief did. See Brief for Appellant, Polk, 1997 WL 33562544 at *7 (No. 96-40836).
The guideline range of the attempt to use a weapon of mass destruction was 168 to 210 months.
The possession of a firearm conviction carried a mandatory 60-month consecutive term of
imprisonment and the remaining counts had a statutory maximum of 120 months. See id. Polk
was initially convicted to a sentence of 249 months. See Polk, 118 F.3d at 291. The Fifth Circuit
though held that the evidence was insufficient to sustain the possession (carrying ) of a firearm
during a crime of violence conviction as well as the abetting the making of a false statement to a
federally licensed firearms dealer and the matter was remanded for resentencing. See id. at 298.
On remand, Polk was resentenced to 189 months. See Polk v. Kastner, 07-0014, 2008 WL
177844, at *1 (E.D. Tex. Jan. 18, 2008).
Mr. Shnewer also cites to United States v. Kikumura, 706 F. Supp. 331 (D.N.J. 1989).
Kikumura was convicted of numerous weapons offenses as well as transportation and receipt of
explosive materials in interstate commerce without having obtained a proper license. See id. at
334. His Sentencing Guidelines range was calculated at twenty-seven to thirty-three months for
his conviction on twelve counts. See id. The District Court applied a number of upward
departures to eventually impose a sentence of 360 months. See id. at 346. On appeal, the Third
Circuit vacated the judgment of sentence and remanded with instructions to resentence
Kikimura. See United States v. Kikumura, 918 F.3d 1084 (3d Cir. 1990). On remand, the District
Court then imposed a sentence of 262 months. See United States v. Kikumura, 947 F.2d 72, 75
(3d Cir. 1991).
16
In United States v. Graham, 275 F.3d 490 (6th Cir. 2001), the defendant was convicted of
conspiracy to commit offenses against the United States as well as weapons and drug offenses.
His criminal history category was VI and his total offense level was calculated to be 41 such that
the Sentencing Guidelines range for Graham was 360 months to life imprisonment. Graham was
sentenced to 660 months imprisonment. See id. at 500. Ultimately, the Sixth Circuit remanded
Graham’s case for resentencing in light of the Supreme Court’s decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000). See Graham, 275 F.3d at 524. Subsequently, Graham was
resentenced to fifty years imprisonment which the Sixth Circuit affirmed. See United States v.
Graham, 327 F.3d 460, 466 (6th Cir. 2003).
Relying on Polk, Kikumura and Graham, Mr. Shnewer argues as follows:
Mr. Cipparone could have presented to the court [the cases
outlined above] as comparators in support of an argument that a
life sentence would create an unwarranted sentencing disparity in
relation to “defendants with similar records who have been found
guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). Petitioner had
no criminal record, so the records of the defendants in the cited
cases is irrelevant. And as for those defendants’ conduct . . . their
conduct was “similar” in the very least, and, in the case of Graham,
Polk, and Kikumura, their conduct was arguably much more
serious.
(Dkt. No. 13 at p. 17)3
“A defendant challenging his sentence based on § 3553(a)(6) must show that his
‘circumstances exactly paralleled’ those of the defendants who received lower sentences.”
3
In addition to relying on the three cases discussed supra, Mr. Shnewer also argues that Mr.
Cipparone should have relied on United States v. Amawi, 695 F.3d 457 (6th Cir. 2012) in making
a more forceful sentencing disparity argument under § 3553(a)(6) at his sentencing hearing.
However, the defendants in that case had their sentences imposed in October, 2009. (See Dkt.
No. 25-1 at p. 24-37) Mr. Shnewer was sentenced on April 29, 2009, or before the defendants in
the Amawi case. Thus, Mr. Cipparone cannot be deemed ineffective for failing to argue that Mr.
Shnewer’s sentence constituted an unwarranted disparate sentence compared to the defendants in
Amawi because the defendants in Amawi had not yet been sentenced at the time of Mr.
Shnewer’s sentencing in April, 2009.
17
United States v. Bannout, 509 F. App’x 169, 173 (3d Cir. 2013) (quoting United States v.
Iglesias, 535 F. 3d 150, 161 n.7 (3d Cir. 2008)); see also United States v. Bard, 625 F. App’x 57,
60 (3d Cir. 2015) (stating that § 3553(a)(6) “only requires the court to consider ‘sentence
disparities’ among defendants who are similarly situated in all relevant respects”) (citing United
States v. Vargas, 477 F.3d 94, 100 (3d Cir. 2007)). Furthermore, the Third Circuit has explained
as follows:
That [an appellant] can find another case where a defendant
charged with a somewhat similar crime and facing the same
advisory sentencing range received a sentence outside of the
applicable sentencing range does not make [defendant’s] withinGuidelines sentence unreasonable. If that were the law, any
sentence outside of the Guidelines range would set precedent for
all future similarly convicted defendants. That is not, and cannot
be, the law.
United States v. Jimenez, 513 F.3d 62, 91 (3d Cir. 2008).
In this case, the cases that Mr. Shnewer argues that Mr. Cipparone should have brought to
this Court’s attention under § 3553(a)(6) did not involve circumstances that exactly paralleled his
own. Indeed, Mr. Shnewer has not shown that any of the defendants in Polk, Kikumura and
Graham, had a criminal history category of VI and an offense level of 51 such that life
imprisonment was their exclusive advisory guidelines range. Furthermore, none of those
defendants were convicted of the same crime as Mr. Shnewer, namely violating 18 U.S.C. §
1117. Thus, Mr. Cipparone was not ineffective by failing to argue these cases as Mr. Shnewer
has not shown that they exactly paralleled Mr. Shnewer’s case with respect to sentencing
disparities since the defendants in those cases were not similarly situated to Mr. Shnewer. See
United States v. Vaughn, 722 F.3d 918, 937 (7th Cir. 2013) (sentencing disparity warranted in
light of different guidelines range); United States v. Jones, 208 F. App’x 507, 509 (8th Cir. 2006)
18
(sentencing disparity not unwarranted where defendant convicted of additional crime and had
higher offense level and Guidelines range).
For the reasons stated above, Mr. Shnewer is not entitled to relief on any of his arguments
in Claim I.
B. Failure to Object to Use of Religious Beliefs in Determining Sentence
In Claim II, Mr. Shnewer argues that Mr. Cipparone was ineffective by failing to object
when this Court purportedly based Mr. Shnewer’s sentence on his religion and was ineffective in
failing to raise this issue on appeal. Additionally, Mr. Shnewer also makes a direct claim aside
from ineffective assistance that this Court improperly used religion in sentencing him.
Mr. Shnewer bases Claim II on this Court’s discussion at one of Mr. Shnewer’s codefendant’s sentencing hearing, Serdar Tatar. More specifically, Mr. Shnewer relies on the
emphasized statements noted below that this Court made at Mr. Tatar’s sentencing hearing:
The government argues for a life sentence. There are significant
reasons why they are correct, and the life sentence is called for in
this case. But that’s not the end of the analysis. I thought long and
hard about Mr. Tatar in this case. The Constitution and the laws of
the United States give me the power to impose a sentence of life.
Simply affixing my signature to a judgment of conviction
condemns this man to spend the rest of his life in prison. I have the
power to dictate what he does every day for the rest of his life.
Enormous power. But with that comes tremendous responsibility.
Responsibility to make sure I get it right. Because I don’t have the
ability, none of us has as judges have the ability to review our
sentence in five years, 10 years, 20 years, 30 years. We have to get
it right now. During and after this trial I always got the sense that
Mr. Tatar was in a different category than the others. And we’ve
talked about that today. The quantum of evidence is different and it
may be as the government says. There just wasn’t the connection
that the other defendants had. But it was always something more to
me and I couldn’t put my finger on it. And I read, and I reread, and
I reread the Presentence Report and Mr. Sparaco’s brief and the
letter and I read the Government’s brief again and again and I
reviewed the evidence and I too stayed up most of the night
thinking about this and thinking about what I’m going to say. And
19
I finally put my finger on it. And what was said here today
confirmed it. I asked the government the question, what motivated
this man. And it’s the Government position its religious fervor. And
indeed he does say it, I’m doing it in the name of Allah. But that’s
all he ever really says. That’s the only time he ever invokes the
name of the Lord. The only time he ever invokes a religious reason
for doing any of this. And I’m not impressed with it. I know a lot
of people who invoke the name of their God. Very religious
people, and I come away with this, simply not convinced by a
preponderance of the evidence that he was driven to do this by any
ideology of hatred or any religious fervor. I am absolutely
convinced that he was going through with this, he was going to
help this, he would do what he can do and to make this happen.
That they were going to kill American soldiers merely because of
the status. But what drove him was not what drove the other four
defendants in this case. And that makes a difference. It makes a big
difference. Because he’s the only one of these defendants who I
have any hope of rehabilitating through a prison sentence. The
others are so consumed with hatred and their ideology of theirs that
they’re never going to change. I’m not convinced the same is true
of Mr. Tatar.
Accordingly, I am not going to give him a sentence of life
imprisonment. He’s going to be punished severely for his actions
and his desires and what he did that led up to his arrest.
Therefore, pursuant to the Sentencing Reform Act of 1984 it’s the
judgment of this court, that the defendant, Serdar Tatar, is hereby
committed to the custody of the Bureau of Prisons to be
imprisoned for a term of 396 months.
(Tatar Sentencing Tr. at p. 66-68 (emphasis added)) Relying on the emphasized portion of Mr.
Tatar’s sentencing transcript, Mr. Shnewer argues that “when the sentencing court relied upon
the number of times Tatar ‘invoke[d] the name of Lord” versus the number of times Petitioner
did so, he violated Petitioner’s First Amendment and due process rights[.]” (Dkt. No. 13 at p. 23)
More specifically, Mr. Shnewer asserts that this Court punished him for his mainstream religious
expression of being a Muslim and that such punishment based on his religion is unconstitutional.
It is constitutionally impermissible to increase a defendant’s sentence based on things
such as the defendant’s race, religion or political affiliation. See Zant v. Stephens, 462 U.S 862,
20
885 (1983); see also United States v. Fisher, 502 F.3d 293, 299 (3d Cir. 2007) (“[A] sentence is
acceptable as long as it was untainted by considerations of race, gender or similar forbidden
grounds) (citing Jones v. Superintendent of Rahway State Prison, 725 F.2d 40, 43 (3d Cir.
1984)). Nevertheless, ‘“the sentencing authority has always been free to consider a wide range of
relevant material.’” Dawson v. Delaware, 503 U.S. 159, 164 (1992) (quoting Payne v.
Tennessee, 501 U.S. 808, 820-21 (1991)) (other citations omitted). Indeed, “the Constitution
does not erect a per se barrier to the admission of evidence concerning one’s beliefs and
associations at sentencing simply because those beliefs and associations are protected by the
First Amendment.” Id. at 165.
At the outset, this Court expressly states that the fact that Mr. Shnewer is a practicing
devout Muslim had nothing to do with this Court’s decision to sentence him to the within
advisory Guideline range of life imprisonment. Instead, this Court made clear during Mr.
Shnewer’s sentencing hearing (and reiterated during Mr. Tatar’s sentencing hearing) that it was
Mr. Shnewer beliefs in violent radical Islamic ideology that led the Court to determine that Mr.
Shnewer would be sentenced to the within advisory Guidelines range of life imprisonment. It
was Mr. Shnewer’s belief in violent radical Islamic ideology that led this Court to conclude that
he could not be rehabilitated and that the public needed to be protected from him. Indeed, to
reiterate, at Mr. Shnewer’s sentencing, this Court stated as follows:
And I also heard the months after months of tapes. Which indicates
to me that he is so deeply committed to this ideology and this
desire to kill that he can’t be that he can’t be rehabilitated. [¶] The
public needs to be protected from him, because he will commit
other crimes if given a chance.
(Shnewer Sentencing Tr. at p. 51) Indeed, by way of example only, at one point, Mr. Shnewer
told one of the informants that he “love[s] to kill Jews,” and that it was a dream of his to kill
21
Jews. (See Dkt. No. 25-1 at p. 46) The § 3553(a) factors plainly permit this Court to consider the
need to afford adequate deterrence to criminal conduct and to protect the public from further
crimes by Mr. Shnewer. See 18 U.S.C. § 3553(a)(2)(B) & (C). This Court expressly made this
relevant distinction at Mr. Tatar’s sentencing hearing when it noted that Mr. Tatar’s codefendants (the Duka brothers and Mr. Shnewer) were “so consumed with hatred and their
ideology of theirs that they’re never going to change.” (Tatar Sentencing Tr. at p. 68) This Court
did not use Mr. Shnewer’s devout Muslim faith to help this Court reach the conclusion that it
would sentence him to the within advisory Guidelines range of life imprisonment, but rather, as
clearly stated in the sentencing transcript and reiterated in this Opinion, this Court believed that
Mr. Shnewer could not be rehabilitated and therefore posed a threat if released based upon his
violent radical Islamic beliefs. This did not run afoul of the Constitution and did not amount to
this Court using Mr. Shnewer’s devout Muslim faith to determine his sentence. Accord United
States v. Abu Ali, 410 F. App’x 673, 682 (4th Cir. 2011) (“The Court properly considered the
tenacity of Abu Ali’s violent beliefs and the likelihood that time in prison would entrench those
beliefs in analyzing the probability that Abu Ali would again act on those beliefs if released. In
light of Congress’s instruction for courts to consider the need to ‘protect the public from further
crimes of the defendant’ in imposing a sentence, it is hard to see how the district court’s actions
were erroneous.”) (citing 18 U.S.C. § 3553(a)(2)(C)); United States v. Yaghi, Crim. No. 09-0216,
2012 WL 147955, at *4 (E.D.N.C. Jan. 18, 2012) (noting defendant’s association with
individuals intent on advancing a destructive ideology, “cloaked in adherence to an extremist
view of Islam, which propagated violence against anyone perceived as being in Muslim lands
unjustly, coupled with his demonstrated disregard for the law, underscore this defendant’s
dangerousness” warrant a substantial sentence in deference “to the need to promote respect for
22
the law, deter this type of conduct, and protect the public”), aff’d, United States v. Hassan, 742
F.3d 104 (4th Cir. 2014). Comparatively, this Court sentenced Mr. Tatar to 396 months because
it concluded in part that Mr. Tatar did not possess the same violent radical beliefs that Mr.
Shnewer held. Thus, unlike Mr. Shnewer, Mr. Tatar had a chance to be rehabilitated.
Mr. Shnewer cites to United States v. Bakker, 925 F.2d 728 (4th Cir. 1991) in support of
Claim II. However, Bakker is easily distinguishable from Mr. Shnewer’s case. In Bakker, the
Fourth Circuit analyzed the sentence of the well-known televangelist James O. Bakker on his
convictions of fraud and conspiracy. During Bakker’s sentencing, the judge stated as follows:
“He had no thought whatever about his victims and those of us who do have a religion are
ridiculed as being saps from money-grubbing preachers or priests.” Id. at 740 (emphasis in
original). The Fourth Circuit noted that a judge acts impermissibly when he takes his own
religious characteristics into account at sentencing. See id. The Fourth Circuit held as follows:
Courts . . . cannot sanction sentencing procedures that create the
perception of the bench as a pulpit from which judges announce
their personal sense of religiosity and simultaneously punish
defendants for offending it. Whether or not the trial judge has a
religion is irrelevant for purposes of sentencing. Regrettably, we
are left with the apprehension that the imposition of a lengthy
prison term here may have reflected the fact that the court’s own
sense of religious propriety had somehow been betrayed. In this
way, we believe that the trial court abused its discretion in
sentencing Bakker.
Id. at 740-41.
Unlike Bakker, this Court never discussed its own religious characteristics at arriving at a
sentence for Mr. Shnewer (as well as arriving at Mr. Tatar’s sentence). Instead, as stated above,
this Court’s discussion at Mr. Shnewer and Mr. Tatar’s sentencing of their violent beliefs related
to the relevant considerations of whether this Court believed the public needed to be protected
from them and whether either could be rehabilitated. Ultimately, this Court determined that Mr.
23
Tatar had the chance to be rehabilitated and Mr. Shnewer did not. This Court determined that
Mr. Shnewer was so consumed with hatred that he was never going to change whereas Mr. Tatar
was not so consumed. Bakker is not applicable to this case.
To sum up Claim II, this Court did not sentence Mr. Shnewer to a life sentence based on
his devout Muslim faith. Instead, this Court properly applied the three-step sentencing process
outlined in Levinson. Ultimately, in analyzing the § 3553(a) factors, this Court determined that
Mr. Shnewer’s violent radical beliefs could not be changed, something that was plainly proper
for this Court to consider. It thus follows that Mr. Cipparone was not ineffective for failing to
raise this claim that lacks merit during Mr. Shnewer’s sentencing proceedings or on appeal. See
Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000) (“[C]ounsel cannot be deemed ineffective for
failing to raise a meritless claim.”) (citation omitted); United States v. Jackson, No. 09-5255,
2010 WL 1688543, at *8 (E.D. Pa. Apr. 27, 2010) (“Under Strickland, Jackson's appellate
counsel cannot be ineffective for failing to raise a meritless issue on appeal.”) (citing United
States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999)). Therefore, for the reasons stated above, Mr.
Shnewer is not entitled to relief on Claim II.
C. Claim III – Failure to Communicate Plea Offer and Pursue Plea Discussions
In Claim III, Mr. Shnewer argues that Mr. Cipparone was ineffective when he failed to
communicate a plea offer to him. Additionally, Mr. Shnewer argues that Mr. Cipparone was
ineffective for failing to pursue plea discussions with the respondent. Each of these issues is
considered in turn.
24
i.
Failure to Communicate Plea Offer
Mr. Shnewer first argues that Mr. Cipparone was ineffective when he failed to
communicate a plea offer to him. In support of this argument, Mr. Shnewer states as follows in
his declaration:
In 2009, while at the Communications Management Unit at U.S.P.
Marion, where I am still housed, Mr. Cipparone sent me a hard
drive containing documents pertaining to my case. Among those
documents was a letter from AUSA Stephen Stigall dated June 22,
2007, to Mr. Cipparone. The majority of the letter is devoted to
discovery issues. One paragraph, however, discusses the U.S.
Attorney’s Office’s position concerning the additional one-point
reduction under § 3E1.1(b) of the Sentencing Guidelines, “in the
event your client has not entered a plea of guilty before the filing
of pre-trial motions.” A second letter from Mr. Stigall dated July
16, 2007, repeats this information.
(Dkt. No. 13 at p. 52)4
In Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012), the Supreme Court affirmatively held
that, “defense counsel has the duty to communicate formal offers from the prosecution to accept
a plea on terms and conditions that may be favorable to the accused.” It further stated that “the
4
U.S.S.G. § 3E1.1 states as follows:
(a) If the defendant clearly demonstrates acceptance of
responsibility for his offense, decrease the offense level by 2
levels.
(b) If the defendant qualifies for a decrease under subsection (a),
the offense level determined prior to the operation of subsection (a)
is level 16 or greater, and upon motion of the government stating
that the defendant has assisted authorities in the investigation or
prosecution of his own misconduct by timely notifying authorities
of his intention to enter a plea of guilty, thereby permitting the
government to avoid preparing for trial and permitting the
government and the court to allocate their resources efficiently,
decrease the offense level by 1 additional level.
U.S.S.G. § 3E1.1.
25
fact of a formal offer means that its terms and its processing can be documented so that what
took place in the negotiation process becomes more clear if some later inquiry turns on the
conduct of earlier pretrial negotiations.” Id. at 1409. Thus, when defense counsel fails to
communicate formal plea offers to the defendant, it constitutes deficient performance under
Strickland. See id. Once the first prong of Strickland is met, then the petitioner has to show
prejudice. In this context, the Supreme Court in Frye also explained what is needed for a
petitioner to show prejudice:
To show prejudice from ineffective assistance of counsel where a
plea offer has lapsed or been rejected because of counsel's
deficient performance, defendants must demonstrate a reasonable
probability they would have accepted the earlier plea offer had
they been afforded effective assistance of counsel. Defendants
must also demonstrate a reasonable probability the plea would
have been entered without the prosecution canceling it or the trial
court refusing to accept it, if they had the authority to exercise that
discretion under state law. To establish prejudice in this instance, it
is necessary to show a reasonable probability that the end result of
the criminal process would have been more favorable by reason of
a plea to a lesser charge or a sentence of less prison time.
Frye, 132 S. Ct. at 1409 (citing Glover v. United States, 531 U.S. 198, 203 (2001)). As one court
has noted therefore:
A petitioner . . . who seeks to establish a claim of ineffective
assistance of counsel in the context of plea bargaining,
consequently must make a double showing – (1) that the
prosecutor extended the plea offer and (2) that his or her attorney
either failed to communicate the offer to him or misadvised him
concerning the advantages and disadvantages of the offer so as to
cause the non-acceptance of an otherwise beneficial outcome by a
favorable guilty plea.
Compean v. United States, No. 12-0730, 2013 WL 6196517, at *7 (W.D. Ky. Oct. 18, 2013)
(citing Lint v. Prelesnik, No. 09-10044, 2011 WL 3241840, at *11 (E.D. Mich. July 29, 2011);
Robinson v. United States, 744 F. Supp. 2d 684, 696 (E.D. Mich. 2010); report and
recommendation adopted by, 2013 WL 6196533 (W.D. Ky. Nov. 26, 2013).
26
Mr. Shnewer claims that the government has conceded the first prong of Strickland in
that Mr. Cipparone failed to inform him about a plea offer. (See Dkt. No. 12 at p. 13) However,
the respondent has not conceded anything with respect to the first prong of the Strickland
analysis. Instead, it asserts that there was never a plea offer for Mr. Cipparone to communicate to
Mr. Shnewer such that Mr. Cipparone was not ineffective because a plea offer never existed.
Whether Mr. Shnewer was ever offered a formal plea offer is obviously a vital factor in
determining whether Mr. Cipparone’s counsel was ineffective with respect to this claim as mere
informal plea discussions are not enough to trigger Mr. Cipparone’s duty to inform Mr. Shnewer.
See Hull v. United States, No. 15-0123, 2015 WL 5009998, at *2 (W.D. Wis. Aug. 15, 2015)
(“The Court made clear in Frye, that duty applies only when the plea offer is a ‘formal one.’ The
Court has never held that defense counsel can be found constitutionally ineffective for failing to
tell their clients about informal discussions they have with the government about possible plea
offers.”); Mavashev v. United States, No. 11-3724, 2015 WL 1508313, at *9 (E.D.N.Y. Mar. 31,
2015) (noting that there is a significant distinction between formal plea offers and informal plea
offers); United States v. McCall, No. 00-0505, 2014 WL 2581353, at *3 (N.D. Cal. June 9, 2014)
(“In reality, there is either a formal plea offer, or in its absence, mere discussions between
counsel. Mere conversations are rarely recorded and always subject to interpretation and misremembering. It would be a near-impossible burden to require defense counsel to update
defendant on each twist and turn in informal conversations. And it would be impossible for the
government to reconstruct and prove each such twist and turn in the communication, much less
prove that defense counsel passed on the twists and turns to their client. . . . Therefore, to
transmogrify mere conversation into an “informal plea offer” and then to further say it must be
communicated to an accused on pain of Section 2255 relief would be a nifty sleight of hand.”)
27
(citations omitted); United States v. Merlino, Crim. No. 99-10098, 2014 WL 793987, at *4 (D.
Mass. Feb. 28, 2014) (“A majority of courts . . . have held that a formal plea offer must consist of
something more than preliminary oral communications.”) (citations omitted); Montgomery v.
United States, No. Crim. 07-00036, 2013 WL 6196554, at *4 (W.D. Ky. Nov. 26, 2013)
(“Although there has been little exposition regarding the precise definition of the term “formal
offer,” the Court clearly intended to distinguish “offers” made during the course of preliminary
negotiations from those made once negotiations have concluded. In other words, while there is
no touchstone for assessing the formality of an offer, there must at the very least be some basis
for concluding that the alleged offer could have been accepted or rejected without further
discussion or negotiation.”); Compean, 2013 WL 6196517, at *7 (“The threshold issue for the
Court therefor is whether the Government ever extended a formal plea offer to the Defendant in
the first instance.”) (citing Guerrero v. United States, 383 F.3d 409, 417 (6th Cir. 2004); Strollo
v. United States, No. 05-0113, 2007 WL 2071940, at *3 (N.D. Ohio July 16, 2007)).
Neither party has provided this Court with definitive case law from either the United
States Supreme Court or the United States Court of Appeals for the Third Circuit on what
constitutes a “formal plea offer.” See, e.g., United States v. Waters, No. 13-0115, 2013 WL
3949092, at *8 (E. D. Pa. July 31, 2014) (“[W]e have been unable to find any authority defining
the requisite elements of a formal plea offer…”). Indeed, “District Court decisions construing the
term [formal plea offer] appear to largely rest on the unique facts of the case under
consideration.” Merlino, 2014 WL 793987, at *4. Nevertheless, courts look to several factors in
considering whether the prosecutor extended a formal plea offer. One court has noted that plea
agreements “are essentially contracts” and that “for a contractual offer to exist, it must contain
‘sufficiently definite terms to enable [a] fact finder to interpret and apply them.” United States v.
28
Petters, 986 F. Supp. 2d 1077, 1082 (D. Minn. 2013) (quoting Neb. Beef, Ltd. v. Wells Fargo
Bus. Credit, Inc., 470 F.3d 1249, 1251 (8th Cir. 2006)). Thus, in Petters, the District of
Minnesota determined that a formal plea offer had not been extended because there was “an
absence of any discussion of the charges to which Petters would acknowledge guilt, the factual
basis for a plea, or restitution or forfeiture issues.” Id. A court in this Circuit has similarly stated
that, “it is clear that an oral discussion of the sentencing range for a possible plea agreement that
does not include an agreement on the charges to which the defendant will plead guilty and the
facts that he will admit, does not constitute a formal plea offer.” Waters, 2013 WL 3949092, at
*8 (citing Enright v. United States, 347 F. Supp. 2d 159, 165 (D.N.J. 2004)).
Mr. Shnewer has not attached copies of Mr. Stigall’s letters that he relies upon to
establish that there was a formal plea offer because he states that institution staff will not let him
print them out. The respondent has also not provided this Court with copies of the Stigall letters
that Mr. Shnewer references. However, their omission does not prevent this Court from
determining whether they constituted a “formal plea offer.” Assuming for purposes of argument
that the letters say what Mr. Shnewer states they say, they did not constitute a formal plea offer.
Indeed, Mr. Shnewer merely states that Stigall referenced a possible additional one-point
reduction under U.S.S.G. § 3E1.1(b). However, Mr. Shnewer does not state that Stigall’s letters
discussed the charges to which he would have to plead guilty to nor does it discuss the factual
basis for the plea. Accordingly, even if Mr. Shnewer’s representations of the Stigall letters are
accurate, they do not constitute a formal plea offer. Therefore, they did not trigger a duty on Mr.
Cipparone to inform Mr. Shnewer about them.
The fact that the Stigall letters did not constitute a formal plea offer does not end this
Court’s analysis on this issue. Indeed, the government submitted declarations from Mr. William
29
E. Fitzpatrick, the lead prosecutor in this case, and Mr. Cipparone, which indicate that there
certainly were some preliminary discussions regarding a potential plea. The question then
becomes, like the Stigall letters, whether these discussions constituted a “formal plea offer” to
trigger a duty on Mr. Cipparone to inform.
Mr. Fitzpatrick states as follows in his declaration:
I engaged in informal plea discussions with Mr. Cipparone at an
early point in the District Court proceedings. In that context, we
discussed a possible plea agreement in which, in return for
Shnewer’s guilty plea to the charge of conspiracy to murder
uniformed soldiers of the United States, in violation of 18 U.S.C. §
1117, the Government would not subject Shnewer to the charge of
attempted possession of a firearm in furtherance of a crime of
violence, in violation of 18 U.S.C. § 924(c). The § 1117 charge
subjected Shnewer to a maximum term of incarceration of life
imprisonment.
I informed Mr. Cipparone, however, that the final decision
regarding any plea agreement involving Shnewer and his
codefendants would be made by then United States Attorney,
Christopher J. Christie, and that I had not been authorized to
commit the United States to any particular agreement.
During those discussions, I informed Mr. Cipparone that, at
sentencing, the Government would take the position that the
Sentencing Guidelines “terrorism enhancement,” U.S.S.G. §
3A1.4, applied to Shnewer, and that if the Court agreed, the
applicable Guidelines range would be exclusively life
imprisonment.
I also informed Mr. Cipparone that, based on the Government’s
assessment of the sentencing factors under 18 U.S.C. § 3553(a), a
sentence of life imprisonment would be the only reasonable
sentence in this case, and that the Government would advocate at
sentencing for a custodial term of life.
Under no circumstances would the Government have entered into a
guilty plea agreement with Shnewer that would not have allowed
for the imposition of a sentence of life imprisonment. At no point
would the Government have agreed to advocate for a sentence of
less than life imprisonment.
30
(Dkt. No. 29 at p. 1-3) Mr. Cipparone also states in his declaration that Mr. Fitzpatrick’s
declaration is consistent with his own recollection of discussions about a possible non-trial
disposition of the charges against Mr. Shnewer. (See Dkt. No. 25-1 at p. 4)
In determining whether a formal plea offer has been extended, a court in this Circuit
emphasized that a prosecutor’s lack of authority to bind the government means that the plea
offers lack the requisite formality to constitute a formal plea offer. See Waters, 2013 WL
3949092, at *10 n.3 (“[T]here is no evidence of record that Holtz, the only Assistant District
Attorney with the authority to make a formal plea offer to a defendant in a major case in April,
2010, made a formal plea offer to Waters.”) (emphasis added); see also Merlino, 2014 WL at
793987, at *4 (“In finding plea offers to lack the requisite formality, some courts have
emphasized the prosecutor’s lack of authority to bind the government.”) (citations omitted). In
this case, Mr. Fitzpatrick’s declaration makes clear that only Mr. Christie had the authority to
bind the respondent to a particular agreement. However, neither Mr. Shnewer nor the respondent
state that Mr. Christie ever gave his authority to permit Mr. Fitzpatrick to enter into a plea
agreement with Mr. Shnewer. Furthermore, the plea discussions between Mr. Fitzpatrick and Mr.
Cipparone never reached the level of a formal plea offer as neither indicates the facts that Mr.
Shnewer would have had to admit to if he was to plead guilty. See Petters, 986 F. Supp. 2d at
1082 (noting factual basis for the plea is important in determining whether a “formal plea offer”
has been extended); Waters, 2013 WL 3949092, at *8 (oral discussion of sentencing range for
possible plea agreement that does not include facts that he will admit does not constitute a formal
plea offer).
Therefore, neither Mr. Stigall’s letters (as represented by Mr. Shnewer), nor the
communications between Mr. Fitzpatrick and Mr. Cipparone reached the level of the government
31
extending a formal plea offer. Accordingly, Mr. Cipparone was not ineffective by failing to
communicate a formal plea offer to Mr. Shnewer because no formal plea offer ever existed in
this case.
ii.
Failure to Pursue Plea Discussions
In his § 2255 motion, Mr. Shnewer also alludes to a separate and distinct issue in Claim
III besides the one discussed supra Part V.C.i. Indeed, Mr. Shnewer asserts that Mr. Cipparone
was ineffective when he failed to pursue plea discussions with the prosecution when he learned
prosecutors were amenable to such discussions. (See Dkt. No. 1 at p. 5) Mr. Shnewer and Mr.
Cipparone differ with respect to what Mr. Shnewer told Mr. Cipparone regarding seeking a plea
offer from the respondent. Mr. Shnewer states as follows in his declaration:
I made it very clear to Mr. Cipparone that, in light of the near
certainty of conviction and life imprisonment resulting from a trial,
I was very interested in any plea offer from the prosecution. I
particularly recall having these conversations with Mr. Cipparone
during the conferences with my codefendants and their attorneys
we participated in at the Federal Detention Center in Philadelphia.
I and my codefendants discussed this with Mr. Cipparone as well
as with my codefendants’ attorneys.
In response to my questions and attempts to encourage Mr.
Cipparone to engage in guilty plea discussions with the
prosecution, he told me that he didn’t see the government offering
any plea deals, and that the government was more interested in
taking the case to trial. In particular, I recall Mr. Cipparone saying
that he believed then-United States Attorney Chris Christie wanted
to take the case to trial, rather than resolve it with guilty pleas, in
order to make political gains from our convictions.
Mr. Cipparone never told me about any plea offers or discussions
that he had with the prosecution, at any time before, during, or
after trial.
If I had been aware of any plea offer by the government that would
have increased my chances of avoiding a life sentence, I would
have accepted the offer and pleaded guilty. That is because I was
convinced of my dismal, virtually non-existent chance of acquittal
32
and avoiding a life sentence with a trial. In fact, the only reason I
went to trial is because I felt cornered into doing so by the apparent
lack of any plea offers.
(Dkt. No. 13 at p. 50-51) Mr. Cipparone has quite a different take on his discussions with Mr.
Shnewer as it related to his plea discussions with the government. Indeed, Mr. Cipparone states
as follows in his declaration:
After reviewing the substantial discovery provided by the
Government in the criminal case, and particularly the numerous
recorded conversations between Mr. Shnewer and the two persons
who acted as cooperating witnesses for the Government in this
investigation, as well as conversations between Mr. Shnewer and
his alleged co-conspirators, I concluded that the evidence against
Mr. Shnewer, on its face, was very strong.
I advised Mr. Shnewer that in my opinion, if he took the charges
against him to trial, he faced a substantial risk of conviction and
likely would be sentenced to life imprisonment or at least a very
substantial term of imprisonment that would keep him incarcerated
for most of his productive vital life years.
I also advised Mr. Shnewer that at trial the decision about whether
or not he would testify in his own defense exclusively was his, not
mine, and that although I would offer advice about the decision, he
had to make the decision at the appropriate time.
Notwithstanding the above, Mr. Shnewer did not direct me to
engage the Government in plea discussions.
Nevertheless, as is my practice in all federal criminal prosecutions
in which I represent a client, I initiated plea discussions with the
lead prosecutor in this case, then Deputy United States Attorney
William Fitzpatrick.
I have reviewed Mr. Fitzpatrick’s declaration that was filed on this
case on December 16, 2013, Docket 10-1. Mr. Fitzpatrick’s
statements in that declaration are in all material respects fully
consistent with my own recollection of our discussions about a
possible non-trial disposition of the charges in this case.
In particular, Mr. Fitzpatrick informed me that, given the nature
and significance of the charges against Mr. Shnewer, any decisions
regarding the terms of a possible plea agreement between the
33
Government and Mr. Shnewer would have to be approved by the
then United States Attorney, Christopher Christie.
Mr. Fitzpatrick also informed me that he would consider
recommending to Mr. Christie that the Government offer a plea
agreement with Mr. Shnewer in which he would plead guilty to
charge of the conspiracy to commit murder in the Indictment in
exchange for the Government dropping the weapons charge against
him.
Mr. Fitzpatrick said that he would not recommend to Mr. Christie
and Mr. Christie likely would not approve, any agreement that
would provide for a maximum sentence less than life
imprisonment for Mr. Shnewer.
Mr. Fitzpatrick also informed me that he would not recommend to
Mr. Christie, and Mr. Christie would not likely approve, an
agreement that would prevent the Government from
recommending to the Court a life imprisonment sentence for Mr.
Shnewer.
Mr. Fitzpatrick informed me (as I was of course aware) that the
statutory maximum sentence for the Count One charge of
conspiracy to commit murder was life imprisonment, and that if
Mr. Shnewer determined to plead guilty the Government would
insist on taking the position at sentencing that the properly
calculated Guidelines range also was life imprisonment, and that
the government would take the position that a sentence of life
imprisonment would be the appropriate and reasonable sentence
under 18 U.S.C. § 3553(a).
At no time did Mr. Fitzpatrick or anyone else convey to me a
formal offer for Mr. Shnewer to enter into a plea agreement with
the United States.
In the District of New Jersey, in my experience such offers are
invariably reduced to writing in the form of a letter from the
United States Attorney’s Office to the defense attorney. I never
received such a letter in this case, and never received an oral offer
form the Government containing the terms of a possible plea
agreement. The conversations with Mr. Fitzpatrick were
negotiations and exploratory conversations.
I kept Mr. Shnewer abreast of my conversations with Mr.
Fitzpatrick, limited as they were, about a possible non-trial
disposition of the charges.
34
Mr. Shnewer ultimately decided that he would not accept a plea
agreement that carried the possibility of life imprisonment, and
concerning which the government would recommend a life
sentence as I understood it would, and decided to exercise his
constitutional right to trial putting the government to its burden to
prove the charges at trial.
(Dkt. No. 25-1 at p. 3-6) It appears based on the above as if Mr. Shnewer and Mr. Cipparone are
at odds as to level of communication that they had with each other with respect to any plea
discussions and negotiations.
“[T]here is no constitutional right to a plea bargain; the prosecutor need not do so if he
prefers to go to trial.” Weatherford v. Bursey, 429 U.ZS. 545, 561 (1977). “The decision whether
to enter into a plea agreement or to pursue a trial is strictly within the discretion of the
prosecutor.” Bresko v. John, 87 F. App’x 800, 802-03 (3d Cir. 2004) (citing Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993); Santobello v. New York, 404 U.S. 257 (1971); Brooks v.
George County, Miss., 84 F.3d 157, 168 (5th Cir. 1996)); see also Morgano v. Ricci, No. 081524, 2010 WL 606503, at *5 (D.N.J. Feb. 18, 2010).
In this case, as outlined above, no formal plea offer was ever extended to Mr. Cipparone
for Mr. Shnewer. Since Frye, courts have examined whether counsel can be ineffective when
there has not been a formal plea offer to differing results. For example, in United States v. Cook,
No. 10-20716, 2014 WL 4704843, at *4 (E.D. Mich. Sept. 21, 2014), the court stated as follows:
Cook has not provided this Court with any case where a court
determined that an attorney provided ineffective assistance by
failing to engage in plea negotiations when no plea deal was ever
offered by the prosecutor. To the contrary, courts regularly dismiss
such claims where a plea offer was never made. See, e.g., Justice v.
Sepanek, No. 12–74, 2013 WL 954115, at *4 (E.D. Ky. Mar.11,
2013); Young v. United States, No. 08-0302, 2011 WL 4497869, at
*9 (E.D. Tenn. 2011). As there is no substantive right to pursue
and enter into plea negotiations with the Government, counsel
could not have been ineffective for failing to pursue a plea deal.
35
Cook, 2014 WL 4704843, at *4. District Judge Wolfson of this Court similarly stated in McClain
v. United States, 12-2205, 2013 WL 1163562, at *4 (D.N.J. Mar. 19, 2013) as follows:
Petitioner's challenges arising from his belief that counsel had a
constitutional duty to seek a plea deal and/or to counsel Petitioner
on the benefits and obligations of a hypothetical plea offer are
without merit. That Petitioner's counsel did not seek a plea deal
and did not discuss with Petitioner any aspects of a hypothetical
plea deal does not constitute deficient performance under
Strickland.
McClain, 2013 WL 1163562, at *4 (footnote omitted). However, this Court has also discovered
cases post-Frye where courts have noted that a petitioner can show that counsel’s performance
has the potential rise to the level of ineffectiveness in the absence of a formal plea offer. For
example, one court has stated as follows:
The court is also persuaded by Defendant's argument that “[i]t is
submitted that even if a firm offer is not conveyed to defense
counsel, when the government indicates it is willing to negotiate a
resolution in a case, defense counsel has a duty to engage in the
negotiation process. Counsel can be constitutionally ineffective in
the plea negotiation process if they fail to convey to the defendant
the government's articulated willingness to resolve a case by
negotiation or have proposed a resolution to the case.” (Def.'s
Mem. Supp. Mot. Compel 23 [Dkt. No. 332].) This reasoning is
consistent with the language and implications of Frye and Lafler:
“The reality is that plea bargains have become so central to the
administration of the criminal justice system that defense counsel
have responsibilities in the plea bargain process, responsibilities
that must be met to render the adequate assistance of counsel that
the Sixth Amendment requires in the criminal process at critical
stages.” Frye, 132 S. Ct. at 1407; accord Lafler [v. Cooper, 1376,]
1384 [(2012)].
United States v. Polatis, Crim. No. 10-0364, 2013 WL 1149842, at *10 n.16 (D. Utah Mar. 19,
2013). Indeed, more recently, a court in the District of Kansas cited to Polatis approvingly and
stated as follows:
[T]he Court cannot conclude that defendant may not pursue this
claim in the absence of a formal plea offer from the Government.
The Supreme Court emphasized in Frye that the plea bargain
36
process was a critical stage with respect to which defense counsel
has a duty to provide adequate representation under the Sixth
Amendment. If defense counsel acted unreasonably during that
process and defendant can establish that a plea agreement would
have resulted if not for that deficient performance, the Court sees
no reason why the usual two-part Strickland test should not be
applied. It may be more difficult for a defendant to establish the
necessary prejudice in the absence of a formal plea offer, since the
defendant would be required to show that the Government would
in fact have made a particular offer, that the defendant would have
accepted it, and that the Court would have accepted the plea
agreement. See Frye, 132 S. Ct. at 1410–11 (discussing required
showing for prejudice); see also Merzbacher [v. Shearin], 706 F.3d
[356,] 369–70 [(4th Cir. 2013)] (plea offer's “nascence figures
prominently in the calculus” of determining prejudice).
Defendant's claim in not necessarily foreclosed, however, by the
absence of a formal plea offer.
United States v. Brooks, No. 10-20078, 2015 WL 5837636, at *6 (D. Kan. Oct. 6, 2015).
This Court is hesitant to analyze this issue under the first prong of Strickland without at
least conducting an evidentiary hearing where the relevant witnesses’ credibility could be
analyzed in light of the different versions of events as stated in Mr. Shnewer and Mr.
Cipparone’s declarations. (Compare Dkt. No. 13 at p. 51 (“Mr. Cipparone never told me about
any plea offers or discussions that he had with the prosecution, at any time before, during, or
after trial.”), with Dkt. No. 25-1 at p. 3, 5 (“Mr. Shnewer did not direct me to engage the
Government in plea discussions. . . . I kept Mr. Shnewer abreast of my conversations with Mr.
Fitzpatrick, limited as they were, about a possible non-trial disposition of charges.”)) This is
particularly so given the differing opinions from various courts regarding whether a petitioner
can state an ineffectiveness claim absent a formal plea offer as outlined above. However, despite
this Court’s hesitancy to engage in a Strickland prong one analysis at this time, this does not
necessarily mean that this claim cannot be decided at this time absent an evidentiary hearing.
Indeed, this Court may decide this issue on prejudice grounds if it is possible to do so. See
Rainey, 603 F.3d at 201.
37
Mr. Shnewer admits in his memorandum or law (see Dkt. No. 13 at p. 27-28), that he
needs to show three things to a reasonable probability to establish prejudice: (1) he would have
accepted the plea; (2) the plea would have been entered; and (3) the end result of the criminal
process would have been more favorable by reason of pleading to a lesser charge or a shorter
prison sentence. See Frye, 132 S. Ct. at 1409 (citing Glover, 531 U.S. at 203). For the following
reasons, Mr. Shnewer fails to show that he was prejudiced had Mr. Cipparone pursued plea
negotiations further.
First, even assuming for purposes of argument only that Mr. Cipparone should have
pursued plea negotiations further, Mr. Shnewer would presumably have to show that the
government would have in fact made him a particular plea offer. See Brooks, 2015 WL 5837636,
at *6. That showing simply has not been made in this case. Indeed, to reiterate, Mr. Fitzpatrick’s
declaration states that the final decision regarding any plea agreement was up to Mr. Christie and
that he had no authority to bind the government. (See Dkt. No. 29 at p. 2) This case never
reached that stage. Nevertheless, Mr. Cipparone does state in his declaration that Mr. Fitzpatrick
informed him that he would consider recommending to Mr. Christie that the government offer a
plea agreement where Mr. Shnewer would plead guilty to Count 1 in exchange for dropping
Count 4. (See Dkt. No. 25-1 at p. 4) However, importantly, at no time does any party state that
Mr. Christie, the person with the authority to bind the government in this case, would have in
fact agreed to extend a formal plea offer to Mr. Shnewer. Thus, Mr. Shnewer fails to show that
he was prejudiced by Mr. Cipparone’s purported failure to engage in further plea discussions
because he has not shown that any formal plea offer would have ever been extended by Mr.
Christie in his case.
38
The precise contours of what a potential plea offer would have looked like amounts to
mere speculation in this case. However, both Mr. Fitzpatrick and Mr. Cipparone’s declarations
indicate that there was at least some discussion about a potential plea whereby Mr. Shnewer
would plead guilty to Count 1 – conspiracy to murder members of the United States military in
exchange for dropping Count 4 – attempted possession of a firearm in furtherance of a crime of
violence. Ultimately, after Mr. Shnewer’s conviction on Count 4 was reversed on direct appeal,
the judgment of conviction was entered against Mr. Shnewer only on Count 1. Thus, the
potential plea that was discussed by the government and Mr. Cipparone would not have
amounted to Mr. Shnewer pleading to a lesser charge than the one he was ultimately convicted
of. However, this does not necessarily end the prejudice analysis. Mr. Shnewer could potentially
show prejudice if he could show to a reasonable probability that he would have received a lesser
sentence in light of a hypothetical plea offer.
Mr. Shnewer’s conviction on Count 1 called for a base level offense of 33. See U.S.S.G.
§ 2A1.5(a); see also Presentence Investigation Report at p. 63. Additionally, Mr. Shnewer’s
conviction included a six-point adjustment for official victims and a twelve point terrorism
adjustment. Accordingly, his total offense level was 51.5 Furthermore, Mr. Shnewer’s criminal
Mr. Shnewer asserts that Mr. Fitzpatrick’s declaration asserts that the “proposed” plea
agreement would have advocated for the twelve point terrorism enhancement but omits any
mention of the official victims enhancement. According to Mr. Shnewer then, this would have
made his offense level 45, and with a three-point reduction for accepting responsibility, would
have placed him at offense level 42 which has an advisory Guidelines range of 360 months to
life imprisonment. (See Dkt. No. 12 at p. 15) While Mr. Fitzpatrick’s omits any discussion of the
official victim six-point enhncement, at no point does Mr. Fitzpatrick indicate that the
government would have ever offered a plea that did not include this enhancement. Thus, Mr.
Shnewer’s fails to show that the government would have in fact offered a particular plea deal that
took the official victim enhancement off of the table. Indeed, Mr. Fitzpatrick indicates that it
would have never agreed to advocate to a sentence of less than life imprisonment and that the
government believed a life sentence was the only reasonable sentence in this case. Thus, it would
certainly follow that the government would seek to include all relevant enhancements in
attempting to secure that this Court would sentence Mr. Shnewer according to an advisory
5
39
history category for his conviction was Category VI. See U.S.S.G. § 3A1.4(b). Thus, as
previously indicated, Mr. Shnewer’s advisory guidelines range was literally “off-of-the-chart”
and carried with it an exclusive advisory guidelines sentence of life imprisonment.
Mr. Shnewer’s memorandum of law in support of his § 2255 motion sets forth five
reasons why he would have received a lesser sentence of life imprisonment if he had pled guilty
pursuant to a hypothetical plea offer. Mr. Shnewer first argues that his sentence would have been
more lenient if he had pled guilty because of “the consideration he would have received for
helping to conserve judicial and government resources.” However, as respondent notes, this
would have given Mr. Shnewer a three-point reduction under U.S.S.G. § 3E1.1(b). Thus, his new
offense level would have been 48, which would still have placed Mr. Shnewer “off-of-the-chart”
at an advisory sentencing range of exclusively life. As courts have noted with respect to showing
prejudice, “[w]hen a defendant would have been subject to the same guideline range
notwithstanding counsel's alleged error, the defendant must demonstrate a reasonable probability
that, in the absence of the error, the specific sentence would have been lower.” Zelaya v. United
States, No. 10-2509, 2013 WL 4495788, at *4 (D. Md. Aug. 20, 2013) (citing Shaheed v. United
States, Civ. No. 07–1167, 2010 WL 3809854, at *6 (W.D. Pa. Sept. 22, 2010) (citing United
States v. Ivory, No. 09–2376, 2010 WL 1816236, at *3 (D. Kan. Feb. 26, 2010); Pena–Carrizoza
v. United States, No. 04–475, 2006 WL 2992556, at *4 (D. Utah Oct. 17, 2006))). Here, by
agreeing to this purported hypothetical plea offer, Mr. Shnewer would have remained at the same
advisory guideline range as he had if he went to trial as both were “off-of-the-chart.”
guideline range that only included life imprisonment. Furthermore, even under this scenario, Mr.
Shnewer’s advisory guideline range would still have included life imprisonment (albeit not
exclusively) and the § 3553(a) factors that this Court analyzed at sentencing for warranting a life
sentence would still be in play. Additionally, it is worth noting that the Third Circuit affirmed the
official victim enhancement on appeal. See Duka, 671 F.3d at 353.
40
Mr. Shnewer also argues that his sentence would have been lower than his life sentence if
he pled because he would have expressed remorse as part of his acceptance of responsibility.
However, as indicated above, Mr. Shnewer’s acceptance of responsibility would have only
reduced his guideline range by three points, which would have still placed him at the same
advisory guideline range of life imprisonment. Furthermore, Mr. Shnewer’s arguments that there
was a reasonable probability he would have received less than a life sentence as expressed in this
Claim does not particularly address this Court’s analysis of the § 3553(a) factors. For example,
among the factors that this Court discussed at Mr. Shnewer’s sentencing, and which still would
have been applicable had he pled, was this Court’s statement that Mr. Shnewer was deeply
committed to his violent radical beliefs and his desire to kill that could not be rehabilitated which
warranted a within advisory guideline sentence of life imprisonment.
Mr. Shnewer next argues that he would have received a lesser sentence if he pled because
this Court would not have been exposed to the “considerable amount of derogatory information”
that was presented against him at trial. However, contrary to Mr. Shnewer’s contentions, this
Court certainly would have been presented with his offense conduct prior to this Court
sentencing Mr. Shnewer if he pled in the Presentence Investigation Report. Furthermore, as
noted by respondent and confirmed by Mr. Fitzpatrick in his declaration, the government had a
firm stance in this case that it viewed life imprisonment as the only reasonable sentence against
Mr. Shnewer and that it would advocate at sentencing for a custodial term of life. (See Dkt. No.
29 at p. 2-3) It thus follows that the government would then have provided the Court with all of
the incriminating evidence against Mr. Shnewer in advocating for its recommended life sentence.
Mr. Shnewer also contends that his sentence would have been lower if he pled because
“effective counsel would have adduced at the sentencing hearing examples of defendants who
41
pleaded guilty to similar conduct and received sentences of less than life in prison.” (Dkt. No. 13
at p. 35-36) Mr. Shnewer relies on the cases discussed in Claim I in asserting that Mr. Cipparone
should have brought them to this Court’s attention. However, as this Court noted supra Part V.A,
Mr. Cipparone was not ineffective for failing to bring these cases to the Court’s attention because
they were not applicable to show that a life sentence for Mr. Shnewer would cause an
unwarranted sentencing disparity.
Finally, Mr. Shnewer asserts as follows:
The fifth reason that Petitioner’s sentence would likely have been
lower had he received effective assistance at the plea bargaining
stage is that effective counsel would have recognized that the
government had charged him with a non-existent offense, thereby
strengthening his bargaining position and increasing his chances
for a sentence more lenient than the one he received after trial.
(Dkt. No. 13 at p. 36) As previously noted, Mr. Shnewer was improperly charged and convicted
on Count 4, an error that was corrected during Mr. Shnewer’s direct appeal. Nevertheless, Mr.
Shnewer more specifically claims that:
effective counsel at the plea negotiation stage would have acted to
take the mischarged § 924(c) count off the table, thereby
strengthening Petitioner’s bargaining position and, it is reasonable
to assume, resulting in a plea offer that, at the very least, would
have had a reasonable probability of securing him a sentence of
less than life in prison.
(Dkt. No. 13 at p. 38) Thus, as this Court interprets Mr. Shnewer’s argument, had Count 4 been
dismissed during the plea negotiations, then Mr. Cipparone would have been in a stronger
position to negotiate with the government to obtain a lesser sentence because there would only
be one count against Mr. Shnewer remaining. The problem with this argument is that it
completely overlooks the government’s position in this case with respect to a potential plea as
espoused by Mr. Fitzpatrick in his declaration. Mr. Fitzpatrick makes clear that the government
42
would not have agreed to any plea agreement that did not allow the government to advocate for a
life sentence. Thus, it is pure speculation on the part of Mr. Shnewer that had Count 4 been
dismissed earlier against him, that the government would have offered a formal plea offer that
would have reduced his sentence to something less than life imprisonment. Accordingly, he fails
to make any showing whatsoever that a dismissal of Count 4 would have resulted in a particular
formal plea offer other than the one discussed by the government, namely guilty on Count I,
which, with the enhancements confirmed by the Third Circuit on direct appeal, would have kept
Mr. Shnewer at a life imprisonment advisory guidelines range. Indeed, Mr. Fitzpatrick makes
clear that he viewed life as the only reasonable sentence in this case and it was the government’s
position that it would not permit a plea offer that would not allow for the imposition of a life
sentence. Therefore, Mr. Shnewer fails to show that he was prejudiced because he has not shown
to a reasonable probability that he would have received a lesser sentence of life imprisonment
had Mr. Cipparone pursued further plea discussions.
To sum up Claim III, Mr. Shnewer is not entitled to relief on his claim that Mr.
Cipparone was ineffective by failing to disclose to him a plea offer since no formal plea offer
was ever extended to him by the government. Furthermore, to the extent that Mr. Shnewer argues
that Mr. Cipparone was ineffective for failing to pursue further plea negotiations, this Court finds
that Mr. Shnewer is not entitled to relief on that claim because he fails to show that he was
prejudiced. He has not shown to a reasonable probability that a particular plea offer would have
been offered, what terms this hypothetical plea offer would have looked like and fails to show to
a reasonable probability that he would have received a lesser sentence had Mr. Cipparone
pursued further plea negotiations.
43
D. Claim IV – Other Co-Defendants’ Claims
In Claim IV, Mr. Shnewer “wishes to join in the claims of his codefendant’s § 2255
motions, and incorporates them by reference.”6 (Dkt. No. 1 at p. 5) The government takes
exception to Mr. Shnewer’s attempt to join in the claims raised by his co-defendants (the Duka
brothers and Mr. Tatar) in their § 2255 motions because he does not plead them with specificity.
(See Dkt. No. 10 at p. 24-27)
This Court need not deny this claim on the procedural grounds asserted by the
respondent. Indeed, with the exception of one claim, all of the remaining claims brought by the
Duka brothers and Mr. Tatar have now been denied by this Court. See Tatar v. United States, No.
13-3317, 2016 WL 589671 (D.N.J. Feb. 11, 2016); Duka v. United States, Nos. 13-3664, 133665, 13-3666, 2015 WL 5768786 (D.N.J. Sept. 30, 2015). Accordingly, Mr. Shnewer is not
entitled to relief on those claims as well for the reasons discuss in those Opinions.7
The sole remaining claim with respect to the Duka brothers and Mr. Tatar in this case is
the Duka brothers’ claim that they did not voluntarily waive their right to testify at trial because
their decision was the product of attorney coercion. See Duka, 2015 WL 5768786, at *4-6. The
Duka brothers each submitted declarations in support of this claim and an evidentiary hearing
was conducted on this claim on January 6, 2016. However, Mr. Shnewer does not allege in any
6
Mr. Shnewer does not discuss this claim in his memorandum of law. However, as it is part of
his habeas petition, the Court construes it as part of Mr. Shnewer’s claims for relief.
It is also worth noting that some of the claims raised by Mr. Shnewer’s co-defendants appear to
have little to no relevance to Mr. Shnewer’s ability to obtain relief. By way of example only,
Dritan Duka made a specific claim in his § 2255 motion that appellate counsel was ineffective
for failing to argue on appeal that certain statements he made to Besnik Bakalli should have been
admitted into evidence. See Duka, 2015 WL 5768786, at *21-25. It is unclear exactly how such a
claim with respect only to Dritan Duka’s guilt or innocence on the conspiracy conviction would
have necessarily had an impact with respect to Mr. Shnewer’s guilt or innocence. However, this
claim by Dritan Duka was denied on the merits on September 30, 2015. See Duka, 2015 WL
5768786, at *21-25.
7
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fashion whatsoever that his decision not to testify was the result of attorney coercion due to Mr.
Cipparone stating to him that he was unprepared to have him testify. Therefore, this clearly
distinguishes the Duka brothers’ claims from Mr. Shnewer, who has made no showing (nor even
argument) that he did not voluntarily waive his right to testify because it was the result of
attorney coercion. Therefore, the fact that this Court conducted an evidentiary hearing on the
Duka brothers’ claim has no impact on Mr. Shnewer’s § 2255 motion that makes no such
allegations with respect to his right to testify. Accordingly, Mr. Shnewer is not entitled to relief
on Claim IV.
VI.
CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C. §
2255. A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies
this standard by demonstrating that jurists of reason could disagree with the district court's
resolution of his constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller–El v. Cockrell, 537 U.S. 322, 327
(2003). Applying this standard, the Court finds that a certificate of appealability shall not issue in
this case.
VII.
CONCLUSION
For the foregoing reasons, Mr. Shnewer is not entitled to relief on any of his claims set
forth in his § 2255 motion. An appropriate order will be entered.
DATED: March 2, 2016
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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