HULL v. UNITED STATES OF AMERICA
Filing
26
OPINION. Signed by Judge Stanley R. Chesler on 6/9/14. (gmd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
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ROBERT A. HULL,
Petitioner,
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v.
UNITED STATES OF AMERICA,
Civil Action No. 11-07332 (SRC)
OPINION
Respondent.
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CHESLER, District Judge
Robert Hull, a pro se petitioner (“Petitioner”), has moved to vacate, set aside, or modify his
sentence pursuant to 28 U.S.C. § 2255. The Petitioner argues that his sentence is excessive and
claims he has been provided ineffective assistance of counsel. See Hull v. United States, Civil
No. 11-7332, ECF Document #7, filed on Feb. 20, 2012. Petitioner requests an evidentiary
hearing addressing his claims. Id.
The Government moves to dismiss the Petition on various grounds. See Hull v. United
States, Civil No. 11-7332, ECF Document #19, filed on July 2, 2012. This Court has considered
the papers filed by both parties and, for the reasons set forth below, denies the Petition without
an evidentiary hearing. 1
1
No evidentiary hearing is warranted because Petitioner’s arguments are frivolous and
Petitioner is not entitled to relief. See Gov’t of V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989); see
also Solis v. United States, 252 F. 3d 289, 295 (3d Cir. 2001) (“a defendant [is] not entitled to a
hearing if his allegations [are] contradicted conclusively by the record, or if the allegations [are]
patently frivolous”); United States v. Essig, 10 F.3d 968, 976 (3d Cir.1993) (only when a § 2255
petition raises an issue of material fact, “the district court must hold a hearing to determine the
1
I.
BACKGROUND
On February 16, 2006, Petitioner was indicted for possession of material containing images
of child pornography, a crime he committed in 2002. 2 Petitioner was not arrested for possession
of child pornography until February 18, 2010 because he was serving a state sentence for an
unrelated crime at the time of the indictment. On January 26, 2011, Petitioner pled guilty.
Petitioner pled directly to the charged offense and there was no plea agreement. See Transcript
of the Plea Hearing at p. 9.
Petitioner and his counsel had the opportunity to examine a Presentence Investigation
Report before the sentencing proceeding. See Transcript of the Sentencing Proceeding at p. 3.
The Presentence Investigation Report indicated that the total offense level was 18 and Petitioner
had a criminal history category of IV. The report indicated that Sentencing Guideline range for
the offense was thus 41-51 months. This Court sentenced the Petitioner on June 23, 2011 to 30
months imprisonment, three years of supervised release, a condition that Petitioner participate in
a residential reentry center for a period of twelve months of the term of supervised release, and a
$100 special assessment fee. See Transcript of the Sentencing Proceeding at p. 7-10. During the
sentencing, this Court informed the Petitioner of his right to appeal the sentence. Id. at 11.
truth of the allegations”); accord Brown v. United States, 45 F. App'x 92, 95 (3d Cir.2002) (“if
[the claim] is nonfrivolous [but] fails to demonstrate either deficiency of counsel's performance
or prejudice to the defendant, then [the claim] does not merit a hearing”).
2
Petitioner pled to the following one-count indictment: “On or about October 16, 2002, in
Mercer County, in the District of New Jersey and elsewhere, defendant, ROBERT HULL, did
knowingly possess more than three magazines, films, videotapes, computer disks, and other
material containing images of child pornography, as that term is defined in Title 18, United
States Code, Section 2256(8)(A), each of which has been mailed and shipped and transported in
interstate and foreign commerce by any means, including computer, in violation of Title 18,
United States Code, Sections 2252(a)(5)(B) and (2).” See United States v. Hull, Criminal No.
06-120 ECF Document #1, filed on Feb. 16, 2006.
2
The Petitioner, through his counsel, then filed a Motion for Reconsideration to reduce his
term in a residential reentry center from twelve to six months. See United States v. Hull,
Criminal No. 06-120 ECF Document #25, filed on July 1, 2011; United States v. Hull, Criminal
No. 06-120 ECF Document #26, filed on July 6, 2011. This Court denied the Petitioner’s
application. See United States v. Hull, Criminal No. 06-120 ECF Document #28, filed on Sept.
7, 2011. 3
On December 15, 2011, Petitioner filed the initial § 2255 motion for relief that gave rise to
the instant matter. See Hull v. United States, Civil No. 11-7332, ECF Document #1, filed on
Dec. 15, 2011. Petitioner was advised that under United States v. Miller, 197 F.3d 644 (3d Cir.
1999), an incarcerated person convicted in federal court must make a petition under § 2255
setting forth all the potential claims which he or she wishes the court to review. See Hull v.
United States, Civil No. 11-7332, ECF Document #2, filed on Jan. 6, 2012. In response,
Petitioner withdrew his initial § 2255 motion, see Hull v. United States, Civil No. 11-7332, ECF
Document #4, filed on Feb. 3, 2011, and filed a Motion for Adjustment in which he requested
copies of the judgment of conviction. See Hull v. United States, Civil No. 11-7332, ECF
Document #5, filed on Feb. 6, 2012. Petitioner then filed two additional motions, requesting
court-appointed counsel for his habeas petition and moving to amend his sentence. See Hull v.
United States, Civil No. 11-7332, ECF Document #8, filed on Feb. 17, 2012. This Court issued
3
Petitioner’s Motion for Reconsideration argued that a twelve-month term in a residential
reentry center “sends the wrong message about how the judiciary views [Petitioner]” and places
an “undue psychological burden on him.” This Court determined that Petitioner’s claims lacked
merit and that the twelve-month term was necessary for Petitioner’s re-entry to society after
incarceration. See United States v. Hull, Criminal No. 06-120 ECF Document #28, filed on
Sept. 7, 2011. Thus, this Court denied Petitioner’s application to modify his sentence.
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an order on February 28, 2012, denying the Petitioner’s request for counsel. 4 See Hull v. United
States, Civil No. 11-7332, ECF Document #12, filed on Feb. 28, 2012. The order also deemed
Petitioner’s three motions filed in Docket Entries 7, 9, and 11 as collective components of
Petitioner’s all-inclusive § 2255 habeas petition. See Hull v. United States, Civil No. 11-7332,
ECF Document #12, filed on Feb. 28, 2012.
II.
DISCUSSION
Pursuant to 28 U.S.C. § 2255, a prisoner may move to vacate, set aside, or correct a
sentence if the prisoner is “in custody under sentence of a court established by Act of Congress”
and if he claims that “the sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral
attack....” 28 U.S.C. § 2255. The petitioner in this case is considered in “custody” because he is
serving a term of a supervised release. Ajao v. United States, 256 F. App'x 526, 527 (3d Cir.
2007) (citing United States v. Sandles, 469 F.3d 508, 517 (6th Cir. 2006)); see also Jones v.
Cunningham, 371 U.S. 236, 242-43 (1963) (finding custody requirement met where petitioner
was on parole at time of petition). Petitioner is also a pro se litigant. In contrast to a pleading
4
The Court’s decision to appoint pro bono counsel is guided by the framework stated in Tabron
v. Grace, 6 F.3d 147, 155 (3d Cir. 1993), “which first requires a court to consider the threshold
question of whether the litigant’s case has arguable merit in fact or law,” followed by
consideration of the following factors: “(1) the plaintiff’s ability to present his case; (2) the
difficulty of the legal issues; (3) the degree to which factual investigation will be necessary and
the plaintiff’s ability to pursue such investigation; (4) the plaintiff’s ability to retain counsel on
his own; (5) the extent to which the case is likely to turn on credibility determinations; and (6)
whether the case will require expert testimony.” Woodham v. Dubas, 2006 U.S. App. LEXIS
12556 at *4 (3d Cir. 2007). Petitioner’s claims failed to persuade the Court that his counsel was
ineffective or that his sentence was excessive. Furthermore, Petitioner’s presentation of his case
contained formal legal citations and arguments without assistance of counsel. Given that
Petitioner’s case lacks merit in law and in fact and Petitioner was able to present his case,
Petitioner was denied pro bono counsel.
4
filed by a lawyer, a pro se pleading is held to less stringent standards and construed with a
measure of tolerance. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Royce v. Hahn, 151 F.3d
116, 118 (3d Cir. 1998). Nevertheless, § 2225 motions are “generally available only in
exceptional circumstances to protect against a fundamental defect which inherently results in a
complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair
procedure.” United States v. Gordon, 979 F. Supp. 337, 339 (E.D. Pa. 1997) (emphasis added)
(citing Hill v. United States, 368 U.S. 424, 428 (1962)). 5 Even applying a generous standard to
the pro se pleading, the Court finds that the Petition must be denied.
A.
Failure to Raise Arguments on Direct Appeal
Petitioner was informed by this Court of his right to appeal his sentence during the
sentencing hearing but did not do so. Now, he challenges his sentence on collateral review. A
defendant must directly appeal before filing a § 2255 motion unless the petitioner shows both
“cause” for why he did not directly appeal and that he or she suffers “actual prejudice” as a result
of the issue under scrutiny. United States v. Frady, 456 U.S. 152, 167-168, 102 S. Ct. 1584,
1592-93, 71 L. Ed. 2d 816 (1982). In Frady, the Court discussed the goals of judicial efficiency
and respect for the trial system in setting forth the “higher hurdle” that prisoners face in attaining
collateral relief than in gaining a chance to directly appeal. Id. at 164-166. The Court held that a
5
Petitioner claims that his sentence is excessive. If a defendant claims that a sentence is
excessive when the sentence is actually within the range of the Sentencing Guidelines, there has
been no fundamental miscarriage of justice and no constitutional error of law. United States v.
Addonizio, 424 U.S. 178, 187 (1979); see also United States v. Cepero, 224 F.3d 256, 267 (3d
Cir. 2007) (holding that a misapplication of the Sentencing Guidelines is also not a constitutional
error). Here, this Court imposed a sentence much lower than that recommended by the
Sentencing Guidelines. Given that there is no fundamental miscarriage of justice or
constitutional error of law if the sentence is within the Sentencing Guidelines or even if the
Sentencing Guidelines are misapplied, there is no fundamental miscarriage of justice or
constitutional error of law if the sentence is well below the range in the Sentencing Guidelines.
5
mere “possibility of prejudice” is not enough to show an error at trial, but there must be proof of
“actual and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” Id.; see also Hill, 368 U.S. at 429 (holding that Congress created an organized
system of raising appeals to the appropriate Circuit Court of Appeals if there was no fundamental
miscarriage of justice).
The purpose of federal habeas corpus review is to provide defendants with a federal forum
to fully and fairly litigate their constitutional claims, not to require a federal court to secondguess itself in a “wasteful duplication of the federal judicial review process.” United States v.
Palumbo, 608 F.2d at 532-533 (3d Cir. 1979). In Winthrow v. Williams, 507 U.S. 680 (1993),
Justice Scalia explained that “a prior opportunity for full and fair litigation is normally
dispositive of a federal prisoner’s habeas claim.” 507 U.S. at 721 (1993) (Scalia, J., concurring).
Furthermore, Justice Scalia stated that “if the claim was not raised [on direct review], it is
procedurally defaulted and the habeas court will not adjudicate it absent countervailing
considerations (e.g., actual innocence or cause and prejudice).” Id. at 721.
Here, the Petitioner was fully and fairly heard in federal court when he entered his guilty
plea and appeared for his sentencing hearing. See Transcript of Plea Hearing at p. 7-9.
Petitioner had an adequate opportunity to review the Presentence Investigation Report. See
Transcript of Sentencing Proceeding at p. 3. This Court informed the Petitioner of his right to
appeal his sentence, but Petitioner did not directly appeal his sentence within the time period
allotted. Id. at p. 11. 6 Petitioner pled guilty and thus does not assert actual innocence.
6
This Court is not permitted to instruct Petitioner on how to properly raise his claim. See
Toolasprashad v. Wright, 2008 U.S. Dist. LEXIS 90220, 2008 WL 4845306 (D.N.J. Nov. 3,
2008) (observing that “[d]istrict judges have no obligation to act as counsel or paralegal to pro se
litigants” (quoting Pliler v. Ford, 542 U.S. 225, 231–32, 124 S.Ct. 2441, 159 L.Ed.2d 338
(2004))).
6
Furthermore, Petitioner does not explain any cause for why he did not appeal or how he suffered
actual prejudice. Therefore, Petitioner does not meet the high hurdle in attaining collateral relief
and he is precluded from collateral attack of his sentence.
B.
Ineffective Assistance of Counsel Argument
Petitioner raises a claim of ineffective assistance of counsel. The Supreme Court’s
decision in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
set forth a two-part test to establish when a petitioner’s Sixth Amendment right to effective
assistance of counsel has been violated.
Under the first prong of the test, “the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.
The petitioner must show “that counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms.” United States v. Sanders, 165 F.3d 248,
250 (3d Cir. 1999). Furthermore, “a convicted defendant making a claim of ineffective
assistance must identify the acts or omissions of counsel that are alleged not to have been the
result of reasonable professional judgment.” Strickland, 466 U.S. at 690.
Under the second prong, “the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. The Strickland Court
asserted that “[i]t is not enough for the defendant to show that the errors had some conceivable
effect on the outcome of the proceeding.” Id. at 692. Rather, the petitioner must demonstrate
that “there is a reasonable probability that, but for the counsel’s unprofessional errors, the result
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of the proceedings would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.
The convicted defendant must show both unreasonableness and prejudice and thus bears a
heavy burden in making an ineffective assistance of counsel claim. Id. at 689-90. The Court
must be “highly deferential” to counsel’s assistance because “[i]ntensive scrutiny of counsel and
rigid requirements for acceptance could dampen the ardor and impair the independence of
defense counsel, discourage the acceptance of cases, and undermine the trust between attorney
and client.” Id. at 689-690. The Court thus adheres to a “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Id. at 698; see also
George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001). “[I]t is ‘only the rare claim of
ineffectiveness of counsel that should succeed.’” Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir.
1999) (quoting United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989)).
1.
Petitioner’s Mental Illness Argument
Petitioner argues that his attorney was unreasonable because he did not emphasize
Petitioner’s diagnoses of paranoid schizophrenia and post-traumatic stress disorder. See Hull v.
United States, Civil No. 11-7332, ECF Document #7, filed on Feb. 20, 2012, at p. 24. Petitioner
asserts that the Court’s acknowledgement of his diagnoses could have reduced his sentence. Id.
This Court has, however, acknowledged Petitioner’s mental illness throughout the entire
case. In August 2010, this Court ordered Petitioner to be evaluated in a competency hearing.
See United States v. Hull, Criminal No. 06-120 ECF Document #18, filed on August 30, 2010.
This Court acknowledged the results of the evaluation at the plea hearing, when it discussed the
psychologists’ confirmation of Petitioner’s diagnoses. See Transcript of Plea Hearing at p. 3.
Furthermore, this Court discussed the psychologist’s conclusion that Petitioner was competent to
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stand trial at the plea hearing. Id. This Court considered Petitioner’s mental health at the
sentencing proceeding as well, stating “[i]t is clear that [the Petitioner] ha[s] psychiatric and
mental health issues which do need substantial assistance and treatment….” See Transcript of
Sentencing Proceeding at p.6. Petitioner fails to suggest what defense counsel should have
emphasized regarding his mental illnesses that was not already addressed by the Court. Because
the Court already considered Petitioner’s mental illness, the result of the proceedings would not
have been different if his attorney had further emphasized the Petitioner’s mental illnesses.
Petitioner’s claim therefore fails the Strickland test and must be dismissed.
2.
Petitioner’s Argument Regarding the Residential Reentry Center
Petitioner next asserts that counsel did not dispute or appeal his twelve-month sentence to a
residential reentry center. See Hull v. United States, Civil No. 11-7332, ECF Document #7, filed
on Feb. 20, 2012, at p. 24. Petitioner claims that this is an “improper enhancement[] by suspect
means” and caused “multiple punishments….” Id. He argues that his attorney did not object to
the “inappropriate guideline range, or the actual sentence.” Id.
Petitioner’s claim lacks merit in law and in fact. First, Petitioner actually received a
sentence well below the Sentencing Guidelines range and no enhancement took place. Petitioner
fails to assert how the twelve-month term in a residential reentry center is suspect. Furthermore,
Petitioner’s counsel did dispute the terms of the residential reentry center when counsel filed a
Motion for Reconsideration to modify the twelve-month sentence and this Court reaffirmed the
originally imposed sentence. See Transcript of the Sentencing Proceeding at p.12; United States
v. Hull, Criminal No. 06-120 ECF Document #28, filed on Sept. 7, 2011. Additional objections
by counsel would be frivolous and would not create a reasonable probability of a different
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outcome. Accordingly, counsel was not deficient and Petitioner did not experience prejudice as
required by the Strickland prongs. Petitioner’s claims therefore must be dismissed.
3.
Petitioner’s Criminal History Argument
Petitioner additionally argues that his attorney misrepresented the “nature of his criminal
history report….” See Hull v. United States, Civil No. 11-7332, ECF Document #7, filed on
Feb. 20, 2012, at p. 24. Petitioner’s attorney, however, contested Petitioner’s criminal history
category on behalf of Petitioner. Petitioner’s counsel highlighted the fact that the Government
did not indict Petitioner until after Petitioner served an unrelated state sentence. Petitioner’s
counsel asserted that when Petitioner committed the federal crime, Petitioner had not yet been
charged of a state crime and thus the Court should not consider the state crime as part of his
criminal history. See Transcript of Sentencing Proceeding at p. 3-4. This Court acknowledged
that the delay in this prosecution affected Petitioner’s criminal history categorization and
accordingly, sentenced Petitioner to a term almost a year less than that suggested by the
Sentencing Guidelines range. See Transcript of the Sentencing Proceeding at p. 5. Petitioner
fails to specify how counsel misrepresented Petitioner’s criminal history. Therefore, defendant’s
claim lacks a factual basis and must be dismissed.
4.
Petitioner’s Additional Arguments
Petitioner makes vague arguments that counsel failed to “present[] all possible current,
relevant information available….” See Hull v. United States, Civil No. 11-7332, ECF Document
#7, filed on Feb. 20, 2012, at p. 24. Nevertheless, Petitioner fails to specify what “relevant
information” counsel failed to raise. As the Government correctly argues, Petitioner fails to
assert specific “acts or omissions of counsel” that show any unreasonableness as required by
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Strickland. Petitioner’s motion carries a theme that the justice system in the United States is
unfair and counsel’s failure to raise these unpersuasive argument should not be considered a
Sixth Amendment violation. 7 Petitioner’s arguments regarding ineffective assistance of counsel
are therefore dismissed.
C.
Remaining Challenges
1.
Trial Judge Reviewing § 2255 Motion
Petitioner argues that it would be unfair if the trial judge who initially sentenced him were
also assigned to review his § 2255 motion to alter his sentence. See Hull v. United States, Civil
No. 11-7332, ECF Document #7, filed on Feb. 20, 2012, at p. 3. Nevertheless, § 2255 explicitly
states that a petitioner “may move the court which imposed the sentence to vacate, set aside, or
correct the sentence.” (emphasis added). Furthermore, in United States ex rel Leguillou v.
Davis, the Third Circuit held that: “one of the policy considerations underlying Section 2255 was
the belief that it is desirable to give the sentencing judge the first opportunity to re-examine all
circumstances of the conviction and sentence when they are said to have involved some
fundamental injustice or impropriety.” 212 F.2d 681, 684 (3d Cir. 1954). As the Government
correctly argues, the plain meaning of § 2255 itself demonstrates that Petitioner’s argument lacks
merit. In contrast to Petitioner’s argument, it is considered advantageous that the judge who
sentenced Petitioner hears a subsequent habeas petition. Petitioner’s argument thus lacks a basis
in law.
2.
Characterization as a Sexual Offender
7
The Petition asserts that three years of supervised release is an “unauthorized enhancement
which is void.” See Hull v. United States, Civil No. 11-7332, ECF Document #7, filed on Feb.
20, 2012, at p. 20. According to 18 USC §3583(b)(2), supervised release for up to three years is
explicitly permitted. Because sentence of supervised release is clearly permitted, his attorney
had no duty to put forth an unpersuasive argument. Petitioner’s argument lacks merit.
11
Petitioner argues that he should not be characterized as a sexual offender and therefore he
should not need to register with the state sex offender registry. See Hull v. United States, Civil
No. 11-7332, ECF Document #7, filed on Feb. 20, 2012, at p. 4. He argues that viewing or
possessing prohibited materials should not be considered a sexual offense because these acts
“lack … [sexual] contact.” Id. Petitioner also claims that “no victim has been identified” by his
crime. Id. at 4-5. Nonetheless, as the Government points out, the Adam Walsh Child Protection
and Safety Act of 2006 explicitly requires that defendants convicted for possession of child
pornography register as sexual offenders. See Adam Walsh Child Protection and Safety Act of
2006, PL 109-248, 120 Stat 587 (2006). Petitioner pled guilty to possession of child
pornography and accordingly must register with the state sex offender registry. Furthermore,
this Court has already noted that possession of child pornography is not a victimless offense,
because it promotes an industry in which every child pictured is raped or otherwise abused. See
Transcript of Sentencing Report, at p. 6. Thus, Petitioner’s argument that he should not be
characterized as a sexual offender is dismissed.
3.
Conditions of Confinement
Petitioner argues in his § 2255 motion that he was denied access to counsel and the law
library while in confinement. See Hull v. United States, Civil No. 11-7332, ECF Document #7,
filed on Feb. 20, 2012, at p. 16. Nevertheless, the Court of Appeals for the Third Circuit has
held that “when the challenge is to a condition of confinement such that a finding in plaintiff’s
favor would not alter his sentence or undo his conviction, a civil rights action under § 1983 is
appropriate.” McGee v. Martinez, 627 F.3d 933, 936 (3d Cir. 2010). Here, Petitioner’s
challenge to his conditions of confinement would not alter his sentence or undo his convictions
12
and therefore he must use a § 1983 claim to challenge the condition of confinement. This claim
cannot be addressed in a § 2255 motion.
4.
Indictment Delay
Petitioner asserts that his sentence was excessive because the Government did not indict
him until 2006, four years after he committed the offense in 2002. See Hull v. United States,
Civil No. 11-7332, ECF Document #7, filed on Feb. 20, 2012, at p. 19-20. 8 While a statute of
limitations requirement exists to safeguard against “oppressive delay,” the State need not “file
charges as soon as probable cause exists….” United States v. Lovasco, 431 U.S. 783, 78-791
(1977). The purpose of a statute of limitations is to “protect individuals from having to defend
themselves against charges when the basic facts may have become obscured by the passage of
time and to minimize the danger of official punishment because of acts in the far-distant past.”
United States v. Marion, 404 U.S. 307, 323, 92 S. Ct. 455, 465, 30 L. Ed. 2d 468 (1971).
Thus, in order for an indictment delay to be considered a violation of the Due Process
Clause, Petitioner must show “evidence of actual prejudice and intentional delay by the
Government.” United States v. Ismaili, 828 F.2d 153 (3d Cir. 1987). Even an indictment filed
five days prior to the expiration of a five-year statute of limitation has not been considered an
8
Petitioner claims that he was never served with an indictment and never officially arrested.
See Hull v. United States, Civil No. 11-7332, ECF Document #7, filed on Feb. 20, 2012, at p. 19.
Nevertheless, the Petitioner was indicted on February 16, 2006, although it was four years after
his offense in 2002. He was properly arrested after he served an unrelated state sentence on
February 18, 2010 and arraigned on March 4, 2010. This claim therefore must be dismissed.
Petitioner also argues that his sentence was enhanced because he was arrested after he served a
state sentence, and thus he could not serve his sentences concurrently. Id. This Court
acknowledged the government’s delay in arresting Petitioner and therefore imposed a sentence
that was almost a year below that recommended by the Sentencing Guidelines. Therefore,
Petitioner’s claim of a sentence enhancement lacks a factual basis.
13
oppressive delay if appellants do not show that the State’s delay was a deliberate strategic move.
United States v. Sebetich, 776 F. 2d 412, 430 (3d Cir. 1985).
Here, the Petitioner’s indictment was within four years of the offense, within the statute of
limitations period. Petitioner did not show any evidence of the Government’s intentional delay
or any actual prejudice that resulted. Considering that Petitioner pled guilty, there were no
witnesses and no trial evidence that the delay could affect and the Government did not gain an
unfair advantage as a result of the delay. Therefore, Petitioner’s claim of a sentence
enhancement is factually baseless.
5.
Failure to Receive a Copy of the Judgment of Conviction
Petitioner argues that, even though he requested a copy of the judgment of conviction, he
never received it. See Hull v. United States, Civil No. 11-7332, ECF Document #9, filed on Feb.
17, 2012, at p. 2; ECF Document #11, at p. 2, filed on Feb. 17, 2012. From that, Petitioner infers
that his sentence is unlawful. The Federal Rules of Criminal Procedure state that a court clerk
must provide notice of an order to litigants. Fed. R. Crim. P. 49. The rule includes a caveat that
“the clerk's failure to give notice does not affect the time to appeal, or relieve--or authorize the
court to relieve--a party’s failure to appeal within the allowed time.” Id. Furthermore, the
advisory committee notes on Rule 49 assert that “[n]o consequence attaches to the failure of the
clerk to give the prescribed notice.” Fed. R. Crim. P. 49, advisory committee note #3. Here,
even if Petitioner did not receive the judgment of conviction, it has no significance.
Furthermore, this Court informed Petitioner of his sentence at the sentencing hearing and
therefore Petitioner cannot claim he was unaware of its content. Petitioner’s claim therefore
must be denied.
III.
CERTIFICATE OF APPEALABILITY
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An appeal may not be taken from a final order in a § 2255 proceeding unless a judge issues
a certificate of appealability on the ground that “the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Here, this Court denies a certificate
of appealability since jurists of reason would not find it debatable that Petitioner failed to make
the requisite showing.
IV.
CONCLUSION
For all of the foregoing reasons, the Petition will be denied. No certificate of appealability
will issue.
An appropriate Order follows.
__s/ Stanley R. Chesler_______
STANLEY R. CHESLER
United States District Judge
Dated: June 9th, 2014
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