FURESZ v. UNITED STATES OF AMERICA

Filing 38

OPINION filed. Signed by Judge Peter G. Sheridan on 8/31/2015. (eaj)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Daniel M. Furesz,

Civil Action No. 13-2909 (PGS)

Petitioner,
v.

OPINION

United States of America,
Respondent.

APPEARANCES:
Daniel Furesz, p se
#61883-050
Federal Correctional Center Petersburg
P.O. Box 1000
Petersburg, VA 23804
-

Aaron Mendelsohn
Assistant U.S. Attorney
United States Attorney’s Office
970 Broad Street
Newark, NJ 07102
SHERIDAN, District Judge
Petitioner, Daniel Furesz (“Petitioner,” or “Furesz”), filed the instant petition for habeas
corpus pursuant to 28 U.S.C.

§ 2255. (See ECF No. 5.) While Petitioner raises several claims

related to his firearm convictions, none of them warrant habeas relief. For the reasons set forth
below, the Petition is denied.
I. FACTS

On September 10, 2009, the Hasbrouck Heights Police Department (the “HHPD”)
received a complaint of a lewd act being performed by a man in an automobile while driving.
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(See ECF No. 18 at 4.) The witness provided the make and model of the driver’s car, which
allowed the HHPD to detain a vehicle matching that description. The witness then returned to the
scene and identified Petitioner as the performer of the lewd act. The HHPD arrested Petitioner,
issued him a citation, and released him pending his court date. Petitioner’s car was also towed
and impounded. (Id.) The following day, a firearm was found in Petitioner’s vehicle at the
impound lot. After finding the firearm, the HHPD interviewed Petitioner who admitted the
firearm was his.
Following this incident, on December 3, 2009, Petitioner’s sister reported to the
Washington Township Police Department (the “WTPD”) that Petitioner threatened to kill her
and her family. (Id.) Petitioner’s sister also told the WTPD that Petitioner had a large cache of
firearms and ammunition in his home. The Bergen County Municipal Court issued Petitioner’s
sister a temporary restraining order and a warrant to search Petitioner’s home for firearms. When
the WTPD executed the warrant, they found thirty-six firearms at Petitioner’s home. (Id.)
II. PROCEDURAL HISTORY

On June 11, 2010, a federal grand jury returned a two-count indictment charging
Petitioner with possessing a firearm as a felon, in violation of 18 U.S.C.

§ 922(g)(1), on two

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occasions. Count One charged Petitioner with possessing the firearm found in his car on
September 10, 2009, and Count Two charged Petitioner with possessing the thirty-six firearms
found in his home on December 3, 2009. (See ECF No. 18 at 5.) On August 26, 2010, the Court
ordered a mental health evaluation of Petitioner to determine if he was competent to stand trial.
Dr. William Ryan, a forensic psychologist, prepared an initial competency evaluation on October

‘Petitioner has several prior felony convictions regarding lewd acts in public. (See ECF No. 18 at
11.)
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26, 2010, and an addendum on February 11, 2011. (Id.) Dr. Ryan determined that Petitioner was
competent to stand trial though he suffered from Exhibitionism and Bipolar Disorder. (Id.)
Dissatisfied with his hired representation, in February 2011 Petitioner filed a request with
the Court to represent himself at trial. The Court granted the request, and required Petitioner’s
attorney to act as stand-by counsel. Shortly after, on February 22, 2011, Petitioner signed a
written plea agreement with the government. The plea agreement stipulated that Petitioner’s total
offense level was 23, and contained a mutual waiver of the right to file a collateral attack,
including under 28 U.S.C.

§ 2255, if Petitioner was sentenced within the Guidelines range for an

offense level of 23. (Id.; see also ECF No. 19-1 at 62.) On February 24, 2011, the Court
conducted a plea hearing and ultimately accepted Petitioner’s guilty plea. (See ECF No. 19-1 at
100-10 1.)
Subsequently, on March 8, 2011, Petitioner sent the Court a letter alleging his innocence
of the crimes charged and wishing to withdraw his guilty plea. (See ECF No. 19-1 at 103-106.)
The Court construed Petitioner’s letter as a motion to withdraw his guilty plea, and on April 26,
2011, heard argument on that motion. After argument, the Court denied Petitioner’s motion to
withdraw and placed its findings on the record. Soon thereafter, Petitioner sent another letter to
the Court that was construed as a motion to reconsider the Court’s denial of Petitioner’s motion
to withdraw his guilty plea.
On July 29, 2011, the Court heard argument on Petitioner’s motion to reconsider and
ultimately denied it, concluding that the “[the plea agreement] was voluntarily entered into.” (Id.
at 100.) Shortly thereafter, the Court held a sentencing hearing where Petitioner argued for a
downward departure because he felt his criminal history was overstated. The Court denied
Petitioner’s request, instead adopting the U.S. Probation Office’s recommendations for an

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offense level of 23, a criminal history category (“CHC”) of IV, and an applicable advisory
Guidelines range of 70 to 87 months for each Count. The Court then imposed a custodial
sentence of 70 months on each Count, to run concurrently.
Petitioner then filed a timely appeal with the Third Circuit Court of Appeals, arguing that
the plea agreement was not knowing, voluntary, and intelligent and that the sentence of 70
months was unreasonable because the Court erred in not granting Petitioner a downward
departure.
On September 25, 2012, the Third Circuit affirmed the conviction and sentence in a
written opinion. The Third Circuit concluded that (1) the District Court did not abuse its
discretion in determining that Petitioner’s plea was knowing, voluntary, and intelligent, and (2)
that Petitioner’s challenge to his sentence is precluded by the appellate waiver in said plea
agreement. (See ECF No. 18-8 at 4-5.) Petitioner then timely filed the present amended petition
to vacate his sentence pursuant to 28 U.S.C.

§ 2255 on June 27, 2013. (See ECF No. 6.) For the

reasons set forth below, Mr. Furesz’s petition is denied.
III. CLAIMS

(1) Ineffective assistance of trial counsel for failure to communicate
favorable plea offer to defendant before it lapsed.
(2) Ineffective assistance of trial counsel for failure to file a motion to
dismiss pursuant to the Speedy Trial Act.
(3) Ineffective assistance of appellate counsel for failure to challenge the
voluntariness of Petitioner’s waiver of counsel when electing to represent
himself.
(4) Ineffective assistance of appellate counsel for failing to challenge the
trial court’s decision not to hold a competency hearing before sentencing.
See ECF No. 5 at 4-24.

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IV. DISCUSSION
A. Standards Governing Petitioner’s Claims
Section 2255 of Title 28, United States Code, provides in relevant part that
[a] prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United States. may move the
court which imposed the sentence to vacate, set aside or correct the sentence.
.

28 U.S.C.

.

§ 2255(a).

The Sixth Amendment to the United States Constitution guarantees criminal defendants the
right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970).
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the test for
demonstrating an ineffective assistance of counsel claim. First, the petitioner must show that,
considering all of the circumstances, counsel’s performance fell below an objective standard of
reasonableness. Id. at 688; see also Ross v. Varano, 712 F.3d 784, 798 (3d Cir. 2013). This
means that Petitioner must identify acts or omissions that are alleged not to have been the result
of reasonable professional judgment. Strickland, 466 U.S. at 690. Second, Petitioner must
affirmatively show prejudice, which is found where “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at
694. Additionally, the Third Circuit has “reasoned that ‘there can be no Sixth Amendment
deprivation of effective counsel based on an attorney’s failure to raise a meritless argument.”
US. v. Bui, 769 F.3d 831, 835 (3d Cir. 2014) (citing United States v. Sanders, 165 F.3d 248, 253
(3d Cir. 1999)).
B. Waiver of the Right to Appeal
A criminal defendant may voluntarily waive his right to appeal a conviction and sentence.
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US. v. Mabry, 536 F.3d 231 (3d Cir. 2008). Such a waiver is considered comprehensive. United
States v. Gwinnett, 483 F.3d 200, 204 (3d Cir. 2007). The only instance where a court could
refuse to honor such a waiver occurs when either the defendant did not knowingly and
voluntarily agree to the waiver, or enforcing the waiver would result in a miscarriage ofjustice.
Mabry, 536 F.3d at 236-237. Such a waiver is typically enforceable because it is part of a bargain
made between two parties. United States v. Khattak, 273 F.3d 557, 561 (3d Cir. 2001).
Petitioner first argues that the waiver he signed as part of his plea agreement should not
be enforced because the plea agreement, was not signed voluntarily, knowingly, and
intelligently. (See ECF No. 5 at 24.) Worthy of note here is that “a defendant’s declarations in
open court carry a strong presumption of verity,” Blackledge v. Allison, 431 U.S. 63, 73-74
(1977), and that “bald assertions of innocence after the fact do not rebut that presumption.” US.
v. Robsinon, 427 F. App’x 163, 166 (3d Cir. 2011). To wit, “[a]ssertions of innocence must be
buttressed by facts in the record that support a claimed defense.” US. v. Brown, 250 F.3d 811,
818 (3d Cir. 2001). Once a defendant has pleaded guilty, “he must then not only reassert
innocence, but give sufficient reasons to explain why contradictory positions were taken before
the district court.

.

.

.“

United States v. Jones, 336 F.3d 245, 252-53 (3d Cir. 2003) (internal

quotations and citations omitted).
The Court has already addressed this matter three times: at the initial plea hearing,
finding Petitioner’s plea knowing and voluntary; at the hearing on Petitioner’s motion to
withdraw his plea, finding Petitioner’s plea knowing and voluntary; and at the hearing on
Petitioner’s motion to reconsider the Court’s denial of Petitioner’s request to withdraw his plea,
finding Petitioner’s plea knowing and voluntary and finding no manifest injustice resulting from
enforcing the plea. (See, e.g., ECF No. 19-1 at 93; ECF No. 23-1 at 14; ECF No. 25-1 at 34.) The

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Third Circuit also addressed this matter on direct appeal and found Petitioner’s plea knowing and
voluntary. (See ECF No. 18-8 at 4.)

(“. .

.the District Court questioned Furesz on his

understanding of the waiver of appeal provision in the plea agreement and concluded that Furesz
understood the waiver.”).
The Court will again look to the colloquy between the Court and Petitioner during the
plea hearing, because to “determin[e] whether a waiver of appeal is ‘knowing and voluntary,’ the
role of the sentencing judge is critical.” US. v. Price, 558 F.3d 270, 284 (3d Cir. 2009) (quoting
Khattak, 273 F.3d at 563). Here, there is an extensive colloquy between the Court and Petitioner,
during which Petitioner repeatedly swore to understand and accept the plea. To wit, Petitioner
swore, in open court, that he was agreeing to the plea voluntarily and specifically acceded to the
presence of the waiver:
THE COURT: So, [AUSA] Mendelsohn is there I know we talked about a
waiver of appeal, but could you please place that on record again?
MR. MENDELSOHN: Certainly, your Honor. There is a waiver of appeal, and
that waiver of appeal is included in the stipulations to the plea agreement, in
paragraphs 10, and 11, address appellate waiver ... The defendant, Mr. Furesz, he
waives his right to appeal any sentence that falls within or below the
guideline offense level of 23. Mr. Furesz also waives his right to file an appeal, a
2255 petition, writ, motion or collateral attack, challenging his term of
imprisonment or any other aspect of the sentence, if this Court imposes a term of
imprisonment within or below the guideline range of 23.
THE COURT: All right, thank you. So, Mr. Furesz, do you understand that under
certain circumstances you’re waiving your right to appeal?
THE DEFENDANT: Yes, your Honor.
THE COURT: That means once we decide it, the case is over; do you understand
that?
THE DEFENDANT: I understand, your Honor.
THE COURT: And have you discussed that matter with [your attorney]?
THE DEFENDANT: Yes, in pretty much detail.
--

THE COURT: Now, Mr. Furesz, you’re waiving your right to appeal, that’s a
knowing you are doing that knowingly and voluntarily; right?
THE DEFENDANT: Yes, your Honor.
--

See ECF No. 19-1 at 93-95 (emphasis added).
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The Court also noted during the same hearing that “[i]t’s obvious to [the Court] that
[Petitioner] appears to be a very intelligent person; he understood the questions, he answered
responsively; and I have no doubt in my mind he entered this plea intelligently, knowingly and
voluntarily.” (See ECF No. 19-1 at 100.) Soon thereafter, the Court held a hearing on Petitioner’s
motion to withdraw his guilty plea. During that hearing, the Court noted that Petitioner’s claims
of ineffective assistance of counsel made little sense, as he was representing himself at the time,
and found Petitioner’s “bald assertions” of innocence to be unavailing. (See ECF No. 22-1 at 3536; see also ECF No. 23-1 at 14) (“It seems to me that [the plea] was reasonably obtained
without coercion, and there’s really no basis to accept that Mr. Furesz is innocent of the
charges.”). Lastly, Petitioner moved the Court to reconsider its earlier decision not allowing
Petitioner to withdraw his guilty plea. There, the Court noted that “a reconsideration of a
decision after it’s entered is extraordinary remedy, requests

...

are granted usually sparingly.”

(ECF No. 25-1 at 16.) The Court again found no evidence to revisit its earlier decisions, finding
Petitioner’s plea agreement both knowing and voluntary. The Court also noted, in finding no
manifest injustice to enforcing the plea, that “Mr. Furesz’s demeanor [during his plea hearing]
was very calm, he understood the facts; I didn’t see any portion of that case where he was under
[any kind of] duress.” (See ECF No. 25-1 at 20.)
On direct appeal, the Third Circuit, in a written opinion, found that the District Court did
not abuse its discretion in finding Petitioner’s plea to be knowing and voluntary. (See ECF No.
18-8 at 4.) The Third Circuit noted that “Furesz’s contention that he was under duress at the
hearing from an implicit threat of a higher sentence” is belied by the District Court’s findings.
(Id. at 5.) The Third Circuit also noted that Petitioner’s challenge to his sentence is really a
challenge “to the Court’s failure to grant [Petitioner’s] motion for a downward variance” of his

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criminal history category, and is thus barred by the waiver contained in his plea agreement. (Id.
at 6.)
Here, Petitioner has presented no new evidence to the Court that would mandate a
reversal of the Court’s prior holdings that Petitioner’s plea agreement was both knowing and
voluntary. Because Petitioner presents no such evidence, the Court will affirm its earlier holdings
that Petitioner entered into his plea agreement knowingly, intelligently, and voluntarily, and thus
the appellate waiver contained within is enforceable.
That said, a waiver of appellate rights contained in a valid plea agreement may still be set
aside if enforcing such a waiver would result in a miscarriage ofjustice. It must be noted that “it
will be a rare and unusual situation when claims of an unreasonable sentence, standing alone,
will be sufficient to invalidate a waiver because of a miscarriage ofjustice.” United States v.
Stabile, 633 F.3d 219, 248 (3d Cir. 2011) (internal citations omitted). In deciding whether
enforcing a waiver would result in such a miscarriage, a court considers
The clarity of the error, its gravity, its character (e.g., whether it concerns a fact
issue, a sentencing guideline, or a statutory maximum), the impact of the error on
the defendant, the impact of correcting the error on the government, and the
extent to which the defendant acquiesced in the result.
Khattak, 273 F.3d at 563 (quoting United States v. Teeter, 257 F.3d 14, 26 (ist Cir.
2001)).

The Court in Khattak went on to note that the aforesaid factors “provide some guidelines
for determining when a particular sentencing error may warrant vacating an otherwise valid
waiver of appeal.” Id. It stands to reason, then, that if there is no sentencing error, there is no
miscarriage ofjustice. Here, Petitioner argued, before sentencing, for a downward departure of
his CHC. Petitioner had three convictions within 15 years of his arrest that led to the instant
petition, each worth three points. (See ECF No. 25-1 at 26.) A total of nine points warrants a
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Cl-IC of IV, advising a Sentencing Guidelines range of 70-87 months. Petitioner argued for a
departure downward due to an “overstatement” of his criminal history. (Id. 29.) Petitioner
argued, through counsel, that pre-trial services “overstated” his criminal history because his prior
convictions were all for various acts of lewdness, not violent crimes, and the court-appointed
psychologist had previously diagnosed Petitioner with Exhibitionism, which likely contributed to
the crimes of which Petitioner was convicted (Id. at 29-30.) The government argued against this
motion vociferously, noting that Petitioner’s antecedent criminal acts may not have been violent,
but they were not “minor misdemeanors” and thus should not be granted a downward departure.
(See ECF No. 25-1 at 33.) The government also argued that, though Petitioner only had three
convictions within 15 years of the instant arrest, there were some twenty convictions outside of
that range that were not counted. (See Id.) The Court denied Petitioner’s motion, agreeing with
the government and noting that Petitioner did not present anything “that would require that I
would deviate from the standards set forth in the guidelines for determining the number of points
under this category.” (Id. at 34.) The Court ultimately sentenced Petitioner to the bottom of the
Guidelines range, 70 months on each Count, to run concurrently. (See ECF No. 26-1 at 15.)
There is no evidence that upholding Petitioner’s waiver would work a miscarriage of
justice against him. Indeed, there is no evidence of a sentencing error at all. Petitioner was
sentenced within the Guidelines range, and does not argue that he is innocent of any of the
crimes charged. Petitioner is essentially arguing that the Court’s failure to grant a motion for a
downward departure is a sentencing error. It is not; by their definition, downward departures are
at the sole discretion of the sentencing judge. See US. v. Williams, 510 F.3d 416 (3d Cir. 2007);
US. v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir. 1991).

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V. CONCLUSION

The Court concludes that because the waiver at issue is contained within a plea
agreement that was signed knowingly, voluntarily, and intelligently, and because enforcing the
waiver will not work a miscarriage ofjustice against Petitioner, the instant action is barred and
Petitioner’s petition is denied with prejudice.

(D
PETER G. SHERIDAN, U.S.D.J.

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