MANASSE v. UNITED STATES OF AMERICA
OPINION. Signed by Judge Jose L. Linares on 12/7/2016. (ld, )
UNITED STATES DISTRICT COURT
DISTRICT Of NEW JERSEY
Civil Action No. 15-4153 (ILL)
UNITED STATES OF AMERICA,
LINARES, District Judge:
Presently before the Court are the motions of Petitioner Mark Manasse seeking
reconsideration of this Court’s denial of his motion to vacate his sentence which are brought
pursuant to Federal Rule of Civil Procedure 59(e). (ECF Nos. 17, 20). For the following reasons,
this Court will deny Petitioner’s motions.
On or about June 8, 2015, Petitioner, Mark Manasse, filed a motion to vacate his sentence
in which he argued that his trial counsel had been constitutionally ineffective insomuch as she had
failed to adequately advise him regarding the plea deal he accepted and in failing to adequately
investigate the facts underlying Petitioner’s prosecution. (ECF No. 1). Petitioner also sought to
raise a claim of ineffective assistance of appellate counsel based on counsel’s failure to
successfully oppose the Government’s motion to dismiss his appeal based on the appellate waiver
contained in his plea agreement. (Id.). This Court ordered an answer in July 2015, and the
Government filed its response in October 2015. (ECF Nos. 3-4).
On or about October 30, 2015, Petitioner filed a reply to the Government’s response.
Although he suggests otherwise in his reply brief, Petitioner raised for the first time in his reply a
claim that his trial counsel had been ineffective for failing to raise a claim under Johnson v. United
135 S. Ct. 2551 (2015) (decided June 26, 2015), challenging his career offender
status. (ECF No. 6 at 2, 5-9). Even in his reply brief, however, it appears that Petitioner raised
his Johnson claim only as a claim of ineffective assistance
that trial and appellate counsel had
failed to raise a Johnson claim, and not as a stand-alone claim for relief, despite the fact that
Johnson was decided only after Petitioner filed his original
§ 2255 motion. (Id.).
In any event, this Court ordered that a hearing be held on Petitioner’s motion and appointed
Maria D. Noto, Esq. to represent Petitioner at that hearing. (ECF Nos. 7-8, 10). Following several
scheduling changes, that hearing was ultimately held on April 28, 2016. (ECF No. 13). At the
start of the hearing, the following colloquy was conducted by this Court:
THE COURT: All right. You all may be seated. I have received
and reviewed [Petitioner’s] motion pursuant to Section 2255. I
scheduled an evidentiary hearing today because I felt [Petitioner]
had raised enough of an issue with regard to this matter that a
hearing was necessary.
[Petitioner] originally in [his] application had made several
arguments, one of which included his allegation that he was not
properly informed with regard to his potential exposure prior to the
plea or what would result [from] the plea, and that is why I needed
to have an evidential hearing to make that determination.
He also made other arguments with regard to the lack of
some argument or investigations not having been made as part of his
representation [by trial and appellate counsel].
[Counsel for Petitioner], could you tell me the extent now of
what you intend to pursue in connection with this matter, so I know
whether or not the issues have been narrowed?
[Counsel for Petitioner]: Yes, your Honor. We have narrowed the
issues, and the only issue, which will be the subject of this hearing
is the representations made to [Petitioner] by his attorney as to his
exposure in the event that he entered a plea, a guilty plea, and
actually the representation of the specific sentence he would receive.
THE COURT: Okay. Are you waiving the other argument[s]? I
just want to know the scope of—
[Counsel for Petitioner]: Yes, your Honor. We are
what I have to write in terms of an opinion.
[Counsel for Petitioner]:
we are not pursuing any arguments
regarding lack of investigation and the like. I have discussed that
several times with [Petitioner], and I have provided him with my
recommendations and my evaluation of those issues, and he has
agreed with my recommendation that it would not be fruitful to
pursue those areas.
THE COURT: Okay. I will accept that representation from you in
the presence of [Petitioner] and we will limit this hearing and the
decision of the Court with regard to whether or not he was given
certain representations with regard to his exposure, if he in fact pled
guilty, in other words, what sentence he would get.
[Counsel for Petitioner]: Yes, your Honor.
(ECF No. 13 at 4-6). Petitioner, through counsel, also expressly withdrew any claims he had
against appellate counsel, stating as follows:
[Counsel for Petitioner]:
your Honor[,] I reviewed the materials
that had been submitted by [Petitioner] with regard to [appellate
counsel], and it is my belief that [Petitioner’s] complaints with
regard to [appellate counsel] are more in the area of a fee dispute
basically. He was contending that his family had paid for certain
services that were not performed, so I don’t see that as an ineffective
assistance of counsel argument, but rather as, you know, the type of
thing if it were in the state court, it would go to fee arbitration. I
don’t know how fee disputes are handled federally
services rendered by [appellate counsel] are not being pursued as
part of this 2255 motion.
(Id. at 8-9). Petitioner in no way contradicted his counsel’s statements that he wished to waive
all of his other claims. This Court thus deemed Petitioner’s other claims, including his Johnson
ineffective assistance claim, waived and ultimately denied Petitioner’s motion as the Court found
his assertions that counsel told him he would get a fifleen year sentence less credible than trial
counsel’s assertion that she properly advised Petitioner. (See ECF Nos. 14-15).
Following the grant of an extension, Petitioner file his motions for reconsideration of this
Court’s denial of his motion in November 2016. (ECF Nos. 17, 20). Petitioner also filed a notice
of appeal. (ECF No. 19). The Court of Appeals has stayed his appeal pending the outcome of
Petitioner’s reconsideration motions. (ECF No. 21). In his reconsideration motions, Petitioner
essentially asserts that he did not wish to waive his Johnson related claim, that his
§ 2255 motion
counsel improperly advised him to waive his Johnson claim based on her ineffective assistance,
and that he thus did not knowingly and intelligently waive his Johnson claim. (ECF Nos. 17, 20).
In his amendment to his reconsideration motion, Petitioner also asserts, contrary to the colloquy
recounted above, that he never in fact waived any of his claims. (ECF No. 20 at 2).
A. Legal Standard
The scope of a motion to amend a judgment pursuant to Rule 59(e) is extremely limited.
See Blvstone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011). A Rule 59(e) motion may be employed
“only to correct manifest errors of law or fact or to present newly discovered evidence.” Id.
“Accordingly, ajudgrnent may be altered or amended [only] if the party seeking reconsideration
shows at least one of the following grounds: (1) an intervening change in the controlling law; (2)
the availability of new evidence that was not available when the court [decided the motion], or (3)
the need to correct a clear error of law or fact or to prevent manifest injustice.” Id. (quoting
Howard Hess Dental Labs., Inc. v. Dentsply Int’l Inc., 602 F.3d 237, 251 (3d Cir. 2010)). In this
context, “manifest injustice’ ‘generally
means that the Court overlooked some dispositive
factual or legal matter that was presented to it,” or that a “direct, obvious, and observable” error
occurred. See Brown v. Zickefoose, Civil Action No. 11-3330, 2011 WL 5007829, at *2, n. 3
(D.N.J. 2011) (quoting In re Rose, 2007 U.S. Dist. LEXIS 64622, at *3 (D.N.J. Aug. 30, 2007)).
In his Rule 5 9(e) motion, Petitioner seeks to have this Court reconsider its decision denying
his motion to vacate sentence based on his assertion that he did not knowingly waive his Johnson
related claim, that he received ineffective assistance of counsel in relation to waiving that claim,
and that this Court should permit further briefing on his Johnson claim. Turning first factually to
Petitioner’s assertion that his Johnson claim was not waived, this Court finds that assertion to be
patently contradicted by the record.
As the colloquy quoted above clearly demonstrates,
Petitioner’s counsel clearly waived all of Petitioner’s
§ 2255 claims other than his claim that
counsel promised to secure Petitioner a fifleen year sentence, which this Court has previously
rejected on the merits. As Petitioner said nothing regarding counsel’s decision to waive that claim,
and did not seek to retract that waiver in the five months between the hearing in this matter and
the Court’s decision, it is clear that the claims Petitioner now seeks to re-raise were waived in open
court in Petitioner’s presence, and this Court did not err in concluding that those claims were no
longer before the Court in issuing its opinion. Indeed, Petitioner himself admits in his initial
reconsideration motion that appointed counsel “advised him that counsel was dropping
[Petitioner’s] claim under Johnson” because she believed that claim was not worth pursuing. (ECF
No. 17 at 2). Thus, it is clear that Petitioner knew that the claim was to be waived, was present
when it was waived, and cannot now claim, as he attempts to do, that no waiver of his claim was
made at the hearing. Because Petitioner waived his Johnson claim, he cannot now seek to undo
that waiver simply because the claim he chose to pursue did not bear fruit.
Moving beyond the factual issues with Petitioner’s motion, Petitioner’s assertion that he
should be permitted to reopen his motion and proceed on a claim based on the ineffective assistance
2255 counsel is without merit. A claim based on the alleged ineffectiveness of
collateral-review counsel “is anonstarter.” United States v. Doe, 810 F.3d 132, 154 (3d Cir. 2015).
This is because there “is no constitutional right to an attorney in.
Id. (quoting Coleman v. Thompson, 501 U.S. 722, 752 (1991)). As such, “a petitioner cannot claim
constitutionally ineffective assistance of counsel in [a collateral] proceeding[,]” such as in the
course of a
§ 2255 motion. Id. (quoting Coleman, 501 U.S. at 752). Thus, to the extent that
Petitioner now wishes to raise a claim that his
§ 2255 counsel was ineffective, such a claim would
be without a basis as he had no right to counsel in his collateral attack. Id. Thus, even if this Court
were to assume that counsel gave him bad advice in deciding to withdraw his Johnson claim, that
failing on counsel’s part would offer Petitioner no recourse here.
Even were this Court to consider Petitioner’s Johnson claim, Petitioner would still not be
entitled to relief because of the way in which Petitioner raised that claim. First, the Court notes
that, despite Petitioner’s suggestion otherwise in his reply brief, Petitioner’s Johnson claim was
raised for the first time in reply, and Petitioner never sought to amend his actual
include such a claim.
§ 2255 motion to
“It is axiomatic that reply briefs should respond to the respondent’s
arguments or explain a position in the initial brief that the respondent has refuted” and that new
arguments “cannot be raised for the first time in reply briefs.” See Elizabethtown Water Co. v.
Hartford Cas. Ins. Co., 998 F. Supp. 447,458 (D.N.J. 1998); Jurista v. Amerinox Processing, Inc.,
492 B.R. 707, 778-80 (D.N.J. 2013); see also Judge v. United States 119 F. Supp. 3d 270, 284
(D.N.J. 2015) (basic fairness “requires that an opposing party have.. fair notice of his adversary’s
claims, as well as an opportunity to address those claims” and courts may therefore reject claims
raised for the first time in a reply brief in a
§ 2255 proceeding). Because Petitioner raised his
Johnson claim for the first time in his reply, and because he thereafter withdrew that claim without
having provided the Government with an opportunity to respond to that claim, this Court would
be well within its authority to reject his claim for that reason. See Jitdge, 119 F. Supp. 3d at 284.
Putting aside this procedural issue for the moment, the Court notes that Petitioner also
raised his Johnson claim not as a stand-alone claim for relief (i.e. asserting that Johnson warrants
a re-sentencing or the like), but instead as part of a claim of ineffective assistance of trial and
appellate counsel. In his reply brief, Petitioner appears to raise his Johnson claim as part of a claim
that trial and appellate counsel should have challenged his criminal history category by arguing
that his eluding charge did not qualify as a violent felony sufficient to trigger career offender status,
and that they were thus ineffective in failing to do so. Counsel, however, cannot be ineffective in
failing to predict a change in the law. Doe, 810 F.3d at 154; see also Sistrunkv. Vaughn, 96 F.3d
666, 672 (3d Cir. 1996). As counsel could not reasonably be expected to foresee the Supreme
Court’s decision in Johnson altering the application of the Armed Career Criminal Act and, in
turn, the career offender guidelines, trial and appellate counsel could not be ineffective in failing
to raise such a claim at the time of Petitioner’s trial and direct appeal. Doe, 810 F.3d at 154. Thus,
Petitioner’s Johnson claim, in the form that Petitioner chose to raise it, is not cognizable in any
event as counsel could not have been ineffective in failing to raise challenges whose bases had not
yet been recognized at the time of Petitioner’s criminal matter. Thus, even if the Court were to
ignore all of the procedural issues standing in the way of his claim, which the Court will not do,
Petitioner’s Johnson claim would be without merit in the form he chose to raise it, and would not
form a proper basis for relief.
Ultimately, Petitioner’s motion for reconsideration is based on a series of faulty premises:
that he did not withdraw his Johnson claim, that even if he did withdraw his claim that withdrawal
forms a cognizable claim of ineffective assistance of
2255 appointed counsel, and that his
Johnson claim which was raised as a species of ineffective assistance of trial and appellate counsel
was meritorious. All of these assertions are either factually incorrect or legally without merit. As
such, this Court has not overlooked any dispositive factual or legal issues, and nothing before this
Court suggests that the denial of Petitioner’s Rule 59(e) motion would amount to a manifest
injustice. As such, Petitioner’s Rule 59(e) motion must be denied. Blystone, 664 F.3d at 415.
Petitioner has likewise provided no pertinent facts which were not previously available to the
Court, nor has he presented any intervening change in the law which occurred between this Court’s
decision on Petitioner’s
§ 2255 motion and the filing of his reconsideration motions, and his
motions must be denied for those reasons as well.’
For the reasons set forth above, Petitioner’s Rule 59(e) motions (ECF Nos. 17, 20) are
DENIED. An appropriate order follows.
To the extent that Petitioner contends that Johnson was a change in law, that change occurred in
June2016, shortly after the filing of Petitioner’s original § 2255 motions. Both Johnson and Welch
v. United States,
136 S. Ct. 1257 (Apr. 1$, 2016), which applied Johnson retroactively
to cases on collateral review, were decided prior to this Court’s decision in this matter and, indeed,
prior to Petitioner’s withdrawing of his claims at the April 28, 2016 hearing. Thus, although those
cases were decided following Petitioner’s filing of his motion, they were decided before the order
Petitioner now challenges, and were not an intervening change in the law for Rule 59(e) purposes
HoniT’ose L Linr s,
Upied States District Judge
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