SNELL v. UNITED STATES OF AMERICA

Filing 39

OPINION filed. Signed by Judge Joel A. Pisano on 8/7/2013. (jjc)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

____________________________________________
:
QUADIR SNELL,
:
:
Petitioner,
:
:
:
v.
:
:
UNITED STATES,
:
:
Respondent.
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____________________________________________:

Civil Action No. 10-2072 (JAP)
OPINION

APPEARANCES:
Petitioner, pro se
Quadir Snell
Reg. No. 29170-050
United States Penitentiary- Lewisburg
P.O. Box 1000
Lewisburg, PA 17837
Counsel for Respondent
Paul J. Fishman
United States Attorney
970 Broad Street, Suite 700
Newark, NJ 07102
PISANO, District Judge
Petitioner Quadir Snell (“Petitioner”), a federal prisoner currently confined at the United
States Penitentiary in Lewisburg, Pennsylvania, submitted a petition to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255. On April 30, 2013, the United States Attorney
answered the petition and Petitioner filed a reply on or about May 7, 2013.
For the reasons set forth below, this petition will be denied.

I.

BACKGROUND

On July 11, 2008, Petitioner was charged in a ten-count Superseding Indictment with one
count of conspiracy to commit robbery affecting interstate commerce, one count of robbery
affecting interstate commerce, and one count of receipt of stolen property. Petitioner pled guilty
to the substantive robbery count on September 29, 2008 and was sentenced to 96 months
imprisonment on January 5, 2009. That sentence was at the bottom of the Guidelines range for
Petitioner’s offense level of 24 and criminal history category of V. Pursuant to the plea
agreement, Petitioner expressly waived his right to appeal or collaterally attack his sentence if it
fell within or below Guidelines offense level 24.
Petitioner then filed a petition to vacate, set aside or correct his sentence pursuant to 28
U.S.C. § 2255. On January 14, 2011, Presiding Judge Garrett E. Brown, Jr. denied the Petition in
part and ordered the parties to file supplemental materials regarding Petitioner’s claim that his
counsel failed to file a timely appeal of his sentence. After an evidentiary hearing on April 11,
2011, Judge Brown found that certain sentencing determinations - namely, the criminal history
category and the period of supervised release - were not addressed by the plea agreement and
that Petitioner had not been consulted on a number of grounds following sentencing. For those
reasons, Petitioner was resentenced on May 31, 2011 to 92 months imprisonment.1
Nearly one year after the resentencing by Judge Brown, Petitioner filed the instant
Petition seeking a new resentencing.
II.

CLAIMS PRESENTED

Petitioner relies on a recent decision in Pepper v. United States, 131 S. Ct. 1229 (2011),
which held that post-sentencing rehabilitation is a factor to be considered at the time of

1

This matter was transferred to Judge Joel A. Pisano on June 14, 2012.

resentencing. Specifically, Petitioner claims that the Pepper decision entitles him to a
resentencing, during which his rehabilitation efforts should be fully discussed and considered.
III.

DISCUSSION

28 U.S.C. § 2255 permits a court to vacate, correct, or set aside a sentence that was
“imposed in violation of the Constitution or laws of the United States, or that the Court was
without jurisdiction to impose such a sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255.
Section 2255 may not be used to “re-litigate questions which were raised and considered on
direct appeal.” United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1993) (quoting Barton v.
United States, 791 F.2d 265, 267 (2d Cir. 1986)).
This Court is also mindful of Petitioner’s pro se status. Because Petitioner is a pro se
litigant, the Court must apply a more liberal standard of review to his claims than it would to a
petition filed with the aid of counsel. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972);
Wade v. Yeager, 377 F.2d 841, 846 (3d Cir. 1967) (recognizing that a petition made without the
benefit of counsel must be read with a measure of tolerance). Here, the Court construes
Petitioner’s filings liberally, as it is required to do, but nonetheless finds that the Petition should
be denied.
In Pepper, on which Petitioner relies, the Supreme Court held that “when a defendant’s
sentence has been set aside on appeal, a district court at resentencing may consider evidence of
the defendant’s post sentencing rehabilitation and that such evidence, in appropriate cases, [may]
support a downward variance from the now-advisory Federal Sentencing Guidelines range.”
Pepper, 131 S. Ct. at 1236. In Pepper, the Government appealed defendant Pepper’s 24-month
prison sentence, which reflected a nearly 40 percent departure from the guidelines based on

Pepper’s substantial assistance. The Eighth Circuit Court of Appeals reversed and remanded for
resentencing. On remand, the District Court conducted a re-sentencing hearing during which
there was testimony that Pepper successfully completed a drug treatment program, found
employment, and enrolled at a local community college after his release. Id. at 1236-37.
Following the hearing, the District Court sentenced Pepper to the same 24-month sentence,
which the Government again appealed. Finally, again on remand, the District Court stated it was
not bound to the previous reduction, refused to grant a further downward variance, and imposed
a 65-month sentence. Defendant appealed this sentence. In reversing, the Supreme Court held
that “the Court of Appeals erred in categorically precluding the District Court from considering
evidence of Pepper’s postsentencing rehabilitation after his initial sentence was set aside on
appeal. District courts post-Booker may consider evidence of a defendant’s postsentencing
rehabilitation at resentencing….” Id. at 1249.
In light of Pepper, Petitioner argues that he is entitled to a new resentencing to take into
account his rehabilitation efforts. In support of his petition, he has submitted to the Court records
of his post-sentencing activities. Since being sentenced, Petitioner has obtained a number of
educational credits including his GED, and has participated in parenting skills classes and an
industry safety training program. He argues that these rehabilitation efforts create the basis for a
resentencing based on Pepper.
While Petitioner’s rehabilitation efforts are laudable, they do not entitle Petitioner to a
resentencing. The Pepper decision does not create a right to resentencing solely on the basis of
post-sentencing rehabilitation. Rather, as was the case in Pepper, when a sentencing is properly
appealed, rehabilitation efforts are just one of a number of factors to be considered by the
sentencing judge. See id. at 1249 (holding that the district court may consider petitioner’s

postsentence rehabilitation efforts “after his initial sentence [i]s set aside on appeal”) (emphasis
added). In this case, Petitioner has not identified any basis to set aside his sentence and his
rehabilitation efforts alone do not entitle him to a resentencing.
Furthermore, Petitioner possessed the ability to present evidence of those rehabilitation
efforts, and in fact did so, during the resentencing before Judge Brown. There is nothing to
suggest that Judge Brown ignored those efforts. See, e.g., United States v. Diaz, 639 F.3d 616
(3d Cir. 2011) (finding that a sentencing judge’s failure to make note of rehabilitation efforts and
lack of mention of such efforts in a presentence report is enough to warrant a remand and
resentencing). Here, during Petitioner’s resentencing hearing, at which he was represented by
counsel, both counsel and Petitioner discussed in detail Petitioner’s ongoing rehabilitation
efforts, including those discussed supra. Furthermore, Judge Brown noted at the hearing his full
consideration of Petitioner’s ongoing efforts and specifically stated that they were a factor in
supporting a reduced sentence. These facts leave no doubt that Petitioner’s rehabilitation efforts
have already been considered by this Court and thus Petitioner’s claims are without merit.
IV.

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. §
2254. 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).

Here, Petitioner has failed to make a substantial showing of the denial of a constitutional
right. No certificate of appealability shall issue.
V.

CONCLUSION

For the reasons set forth above, the Petition must be dismissed. An appropriate order
follows.
/s/ Joel A. Pisano
JOEL A. PISANO
United States District Judge
Dated: August 7, 2013