SODANO v. UNITED STATES OF AMERICA

Filing 42

OPINION filed. Signed by Judge Peter G. Sheridan on 6/17/2020. (abr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
JAMES SODANO,
:
:
Petitioner,
:
Civ. No. 14-7630 (PGS)
:
v.
:
:
UNITED STATES OF AMERICA,
:
OPINION
:
Respondent.
:
_________________________________________ :
PETER G. SHERIDAN, U.S.D.J.
I.

INTRODUCTION
Petitioner, James Sodano (“Petitioner” or “Sodano”), is a federal prisoner proceeding pro

se with amended claims to his motion to vacate, set aside or correct his sentence pursuant to 28
U.S.C. § 2255. For the following reasons, Petitioner’s amended claims to his § 2255 motion are
denied and a certificate of appealability shall not issue.
II.

FACTUAL AND PROCEDURAL BACKGROUND
This Court laid out the factual background giving rise to Petitioner’s judgment and

conviction in a prior opinion as follows:
On the morning of May 19, 2011, money courier Steve Forlenza
(“Forlenza”) was making a delivery of $400, 000 in cash from C &
F Check Cashing (“C&F”) to El Escorial Bar (“Bar”). When he
arrived at the Bar, he was ambushed by Theodore Lada (“Lada”),
and a shootout ensued. Apparently surprised by the fact that
Forlenza had a gun, Lada fled the scene without obtaining the
money. A moment later, however, Forlenza was shot in the back
by an unidentified individual, who took the money. He then shot
Forlenza two more times, execution style, while Forlenza laid face
down on the ground, before fleeing in a car.
Minutes later, police w[ere] alerted to a car crash that occurred
four blocks away from the scene of the robbery. When they
investigated, they found Petitioner slumped over the steering

wheel, wearing camouflaged gear and a bullet-proof vest, bleeding
out from a serious gunshot wound in his leg. Police also found
several loaded guns, a revolver on his person with spent rounds,
and most damningly, a bloodied money bag with $400,000 in cash
with receipts indicating it was from C&F.
At Petitioner's trial, Lada testified that he and Petitioner conspired
to rob Forlenza that day, and that Petitioner was the mastermind
behind the conspiracy. Forlenza, who miraculously survived the
ordeal, positively identified Lada as the man with whom he
engaged in the initial shootout, but testified that he did not see the
second individual's face. He did, however, testify that he fired off
one shot, and he believed that it hit the individual behind him in
the lower part of the body. Prosecution also produced several
eyewitnesses who testified as to what they saw, with some
positively identifying Petitioner as the man who fled the scene in a
car.
Petitioner, however, presented an entirely different version of the
story. He testified that there were three individuals at the robbery
that day: Lada, himself, and a third individual named Paul Pace
(“Pace”). He further testified that Pace was a loan shark, and he
owed Pace a large sum of money. Fearing that he may be killed by
Pace over the debt, Petitioner agreed to participate in the robbery
under duress. According to Petitioner, that morning, both he and
Pace exited the car, and Pace fired the initial shot at Forlenza. He
then ordered Petitioner to grab the money bag, and when Petitioner
refused, he shot Petitioner in the leg, which caused Petitioner to
comply. Pace then ordered Petitioner to get into the car, and both
fled the scene in the car. Although unclear from the transcript, the
Court presumes that according to Petitioner's story, Pace was the
individual who fired the two additional shots at Forlenza before
they fled the scene. Petitioner further testified that before the car
crash, Pace ordered Petitioner to let him out, and told Petitioner to
“wipe down” the car, before Petitioner allegedly wrestled both the
gun and the money away from Pace. Beyond a police report
recounting one conflicting eyewitness account—from an
unidentified individual whom the police interviewed at the scene—
stating that two individuals fled the scene in the car, Petitioner
produced no evidence, other than his own testimony, to support his
three-person robbery theory.
Sodano v. United States, No. 14-7630, 2017 WL 4618754, at *1 (D.N.J. Oct. 16, 2017), vacated
and remanded on other grounds, 763 F. App'x 236 (3d Cir. 2019).

2

Petitioner was found guilty by a jury of conspiracy to commit robbery, robbery and
possession and use of a weapon in a robbery. (See Crim. No. 12-784 ECF 54). Petitioner was
sentenced to 168 months each on the conspiracy to commit robbery and robbery convictions to
be served consecutively. He was sentenced to 300 months imprisonment on the possession and
use of a weapon during a robbery to be served consecutively to his 168-month sentence for a
total sentence of 468 months imprisonment. (See id.).
Petitioner’s judgment and conviction was affirmed on direct appeal. See United States v.
Sodano, 592 F. App’x 114 (3d Cir. 2014). The United States Supreme Court denied Petitioner’s
petition for writ of certiorari in March, 2015. See Sodano v. United States, 575 U.S. 922 (2015).
Petitioner raised nine claims in his original § 2255 motion in December 2014. (See ECF
1). As explained by this Court, those claims were as follows:
(1) counsel failed to object to the use of shackles visible to the jury
to restrain Petitioner during trial; (2) counsel erroneously stipulated
to “the shootings,” ECF No. 1 at 6; (3) counsel failed to note at
trial that there was no struggle between Petitioner and Forlenza for
the money bag; (4) counsel failed to obtain a gun expert for trial;
(5) counsel failed to adequately challenge the inconsistencies and
the inaccuracies of eyewitness testimonies; (6) counsel failed to
call as witness the doctor who operated on Petitioner's gunshot
wound to the knee; (7) counsel failed to adequately challenge
Forlenza's testimony; (8) counsel failed to file a reply brief on
direct appeal; and (9) counsel failed to object to Lada's testimony
on the ground that “common law” bars the testimony of an
infamous person.
Sodano, 2017 WL 4618754, at *2 (footnote omitted). Respondent filed its response in opposition
in April, 2015. (See ECF 6). Petitioner filed a memorandum of law in support of his § 2255
motion in September, 2015. (See ECF 9). In that memorandum, Petitioner inartfully asserted a
claim pursuant to Lafler v. Cooper, 566 U.S. 156 (2012).
On October 24, 2016, this Court received Petitioner’s formal motion to amend his § 2255
motion to add his Lafler claim to these proceedings. (See ECF 13). On February 16, 2017, this
3

Court denied the motion to amend concluding that the Lafler claim was untimely. (See ECF 15).
On March 21, 2017, Respondent indicated that Petitioner raised a Lafler claim in his September,
2015 filing. (See ECF 18). Thus, according to Respondent, Petitioner’s Lafler claim was timely.
(See id.). On March 22, 2017, this Court held that Petitioner could not amend his petition by
raising a new claim in his reply brief. (See ECF 19).
Subsequently, in October, 2017, this Court denied all nine claims raised by Petitioner in
his original § 2255 motion and denied a certificate of appealability. (See ECF 23 & 24).
Petitioner appealed and the Third Circuit granted a certificate of appealability only on whether
this Court should have reached Petitioner’s Lafler claim on the merits. On April 17, 2019, the
Third Circuit remanded this case so that this Court could consider Petitioner’s Lafler claim on
the merits. See Sodano, 763 F. App’x at 237.
On May 20, 2019, Respondent submitted a letter in opposition to Petitioner’s Lafler
claim, arguing that the claim should be denied without an evidentiary hearing. (See ECF 31).
Thereafter, Petitioner filed a motion for the appointment of counsel and for an extension of time
in which to file a reply to the government’s May 20, 2019 response to his Lafler claim. (See ECF
33 & 34). On July 29, 2019, this Court denied Petitioner’s motion for the appointment of counsel
without prejudice, but granted his request for an extension of time to submit further argument.
(See ECF 26 & 37).
On August 29, 2019, Petitioner submitted further argument in support of his Lafler claim.
(See ECF 38). Additionally, Petitioner asserted that counsel was ineffective for failing to
investigate and request a competency hearing during the plea process. (See id.). On September
17, 2019, Respondent filed a reply to Petitioner’s August 29, 2019 filing. (See ECF 39).

4

Respondent argues that Petitioner’s claim regarding a failure to investigate or request a
competency hearing is untimely. (See id.). This matter is now ready for adjudication.1
III.

LEGAL STANDARD
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))
(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 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).

1

Petitioner also filed a request for compassionate release under the First Step Act in this § 2255
action. (See ECF 40). That request was also filed as a motion to reduce Petitioner’s sentence in
his criminal action. (See Crim. No. 12-784 ECF 69). Such a request is properly before the
sentencing court. See United States v. Raia, 954 F.3d 594, 596 (3d Cir. 2020). Thus, this opinion
takes no stance on that pending motion in the criminal action where it is properly filed.
5

IV.

DISCUSSION

A. Lafler Claim
Petitioner’s Lafler claim centers upon counsel’s purported advice, or lack thereof, that he
gave to Petitioner during the plea negotiation process. More specifically, Petitioner argues that
counsel failed to explain the following to him during while a proposed plea agreement offer was
still pending:
1. How the Pre-Sentence Report (“PSR”) would compute the sentencing guideline range
2. The requirement that the judge consider § 3553(a) factors and the mandatory minimum
sentence of ten years for a § 924(c) charge
3. Petitioner’s sentence if he was found guilty
4. The sentencing alternatives that would apply
5. The benefits of pleading guilty as provided by the guidelines including a three-level
offense level reduction
6. The possibility that Petitioner’s acknowledgement of guilt might motivate the judge to
impose a mandatory minimum term of imprisonment rathe rather than any higher
sentence, especially when there was a lengthy mandatory minimum.
(See ECF 38 at 9). According to Petitioner, his attorney negligently failed to recommend that he
accept the government’s thirteen-year plea offer. (See id.). Had counsel adequately explained all
the benefits of pleading guilty as outlined above, Petitioner asserts that he would have taken the
plea offer rather than gone to trial. (See id. at 9-10).
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

6

considering all 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 considering all 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
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

7

outcome, but the difference between Strickland’s prejudice standard and a more-probable-thannot 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).
Defendant’s Sixth Amendment right to counsel extends to the plea-bargaining process.
See Lafler v. Cooper, 566 U.S. 156, 162, 132 S. Ct. 1376, 1384 (2012). “When addressing a
guilty plea, counsel is required to give a defendant enough information “‘to make a reasonably
informed decision whether to accept a plea offer.’”” United States v. Bui, 795 F.3d 363, 367 (3d
Cir. 2015) (quoting Shotts v. Wetzel, 724 F.3d 364, 376 (3d Cir. 2013) (quoting United States v.
Day, 969 F.2d 39, 43 (3d Cir. 1992))). Potential sentencing exposure is an important factor in a
defendant’s decision-making process. See id. Indeed, as noted by the Third Circuit,
“[k]knowledge of the comparative exposure between standing trial and accepting a plea offer
will often be crucial to the decision whether to plead guilty.” Day, 969 F.2d at 43. “In order to
provide this necessary advice, counsel is required ‘to know the Guidelines and the relevant
Circuit precedent....’” Bui, 795 F.3d at 367 (quoting United States v. Smack, 347 F.3d 533, 538
(3d Cir. 2003)). “A defendant who rejects a guilty plea and receives a more severe sentence after
trial makes a claim of ineffective assistance when ‘he alleges that the advice he received was so

8

incorrect and so insufficient that it undermined his ability to make an intelligent decision about
whether to accept the offer.’” Morris v. Adm’r New Jersey State Prison, 770 F. App’x 601, 605
(3d Cir. 2019) (quoting Day, 969 F.2d at 43). In the context of rejecting a plea, petitioner must
show that “‘but for counsel’s deficient performance there is a reasonable probability he and the
trial court would have accepted the guilty plea’ and the resulting sentence would have been
lower.” Shotts, 724 F.3d at 376 (citing Lafler, 132 S. Ct. at 1391). However, the Third Circuit
has also cautioned that courts should be “wary” of claims that trial counsel did not adequately
advise a defendant about the benefits and consequences of a plea offer because “defendants will
always want the best of both worlds: the chance at acquittal at trial, yet the chance to plead guilty
if the trial defense fails.” Day, 969 F.2d at 46 n.9.
The proposed plea agreement offer at issue was set to expire on January 18, 2012. Prior
to that date, however, then Magistrate Judge Schwartz conducted a status conference. Petitioner
was present at this hearing and the proposed plea agreement was discussed at length. In open
court, the Assistant United States Attorney (“AUSA”) explained that the proposed plea
agreement offered called upon Petitioner to plead to one count of robbery only. (See ECF 31-2 at
5). The AUSA then noted that if the plea agreement was not agreed to by January 18, 2012, it
was likely that additional charges would be brought beyond the one in the proposed plea
agreement. (See id. at 6). The prosecutor then specifically noted that these additional charges
could result in what amounted to a life sentence against Petitioner. (See id. at 6-7). More
specifically, the prosecutor stated as follows:
So there is a great likelihood that the charges sought on February
2d will include a 924(c) or multiple 924(c)s.
And what that means -- of course the Court knows, but for the
defendant's sake and for the record, the defendant used those guns
in furtherance of the Hobbs Act robbery. And those -- that imposes
9

additional sentences on him which potentially could lead to what
amounts to a life sentence. Because he discharged the weapon, the
potential sentences, whatever he would get on the Hobbs Act -and I don't want to go through the guideline calculations, but, you
know, approximately at least 7, 8, or 9 years, or perhaps more,
consecutive to 10 years, because he discharged the weapon during
the robbery.
But on top of that, if there were additional 924(c)s -- and there is a
likelihood the government will charge those -- each one of those
would require a 25-year consecutive sentence; therefore, a
tremendous amount of time potentially.
And before the defendant, you know, rejects the plea, we wanted to
make sure, since it is a potential life sentence in this case, based on
the defendant's age, that he is aware of the consequences, aware of
the additional charges that likely will be brought on February 2d,
that he's aware of the deadlines in place, and that he's made an
informed and intelligent decision.
(ECF 31-2 at 6-7). After this explanation by the AUSA, Petitioner’s counsel, Mr. Mizzone, Esq.,
told Judge Schwartz that he had also explained this to Petitioner. (See id. at 8). Judge Schwartz
then asked whether Petitioner had heard all the things that the prosecutor had outlined on the
record, and specifically noted that if the case was not resolved, the grand jury could consider
other charges. (See id. at 9). Petitioner responded affirmatively. (See id.) Judge Schwartz then
engaged directly with Petitioner as follows:
What the -- I think what the prosecutor is trying to do by doing that
was simply to ensure that you understood the difference in terms of
the plea that they're proposing in terms of the amount of time you
may face, if you plead guilty, which is completely up to you, or
what you may be exposed to if the grand jury convenes and returns
an indictment that has these firearms charges included, because the
way that the law works is they have to run consecutive to any
sentence on the robbery.
And, sir, I -- this is a decision that's completely your own. But all I
think the prosecutor's looking to you and your lawyer to be sure
that you understand that if you are convicted of those sorts of
offenses, the consequences are very -- could be a very significant

10

sentence, which is greater than what the prosecutor's -- is
proposing to your lawyer as a possible resolution.
Do you understand all that?
(ECF 31-2 at 9-10). Petitioner responded, “I think so.” (See id. at 10). Thereafter, Judge
Schwartz gave Petitioner the opportunity to ask any questions. (See id.). Petitioner then inquired
about his right to a preliminary hearing. (See id.). Thereafter, there was a discussion between
Petitioner, Judge Schwartz and counsel about the waiver of the preliminary hearing in this case.
(See id. 10-19).
Next, Petitioner asked Judge Schwartz whether a mailed motion would “get to her?” (See
id. at 19). Judge Schwartz stated that she had received his motions, but that there was no right to
hybrid representation. (See id.) Thereafter, Mr. Mizzone spoke and stated that he had explained
the pros and cons of the plea offer to Petitioner. (See id. at 21). Mr. Mizzone then stated that he
told Petitioner that he would be back to talk with him before the plea agreement expired. (See
id.). Toward the end of the January 12, 2012 status conference, Judge Schwartz and the
Petitioner engaged in the following colloquy:
[THE COURT:] But I think what the government is trying to just
advise you of is that you have a right to accept it, you have a right
to reject it, and to give you just the notice that additional charges
may be sought from the grand jury if you choose to reject this plea
agreement, and that's totally up to you.
I think the other thing that's being conveyed here is that if for any
reason, you would like more time with your attorney to think about
whether to accept this offer or not, that they're -- the government is
completely fine with giving you that time. They're not looking to
rush you into a decision. And so if your attorney, you know,
believes that's in your interest -- and I imagine he would then that's
another thing that's sort of out there for your consideration.
You shouldn't make a decision on the fly, like to me directly.
That's sort of -- you've got to have a conversation with your
lawyer. It's very unusual for a judge to do what I'm doing with you
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today, having this direct discussion, because I don't want you to
inadvertently say something here in the courtroom in the presence
of the other side that's really privileged, that you have a right to
keep confidential with your lawyer.
But I thought that given the nature of the kind of inquiries you
have, that it made some sense for you to have a chance to ask those
questions and all of us discuss them together.
So I'm not here to make any rulings on anything, any of this that
we've been discussing. This is simply a conversation that we're all
having to make sure everyone understands the state of affairs.
Do you understand what all I'm talking about?
THE DEFENDANT: Yes.
(ECF 31-2 at 27-28). Thereafter, Judge Schwartz asked Mr. Mizzone whether there was anything
Mr. Mizzone and Petitioner wanted to discuss with her. (See id.) Mr. Mizzone then stated the
following:
So, you know, it's one thing to say, well, I've just gotten this, and I
have to understand -- it's a very serious offense. We're talking
about him potentially getting out in less 10 years as opposed to
doing life. Literally. And it's serious and significant.
....
But, you know, the suggestion that, you know, I want -- I don't
want any further continuances, I want the case to go to the grand
jury, I'll state on the record, in my experience, 20 years' practicing
down here, I don't see that to being any advantage whatsoever to
the defendant in this case.
(Id. at 29, 30). Judge Schwartz then gave Mr. Mizzone time to speak to Petitioner about the plea
agreement offer. (See id. at 30). After a short break in the status conference to permit Mr.
Mizzone to speak to Petitioner, Mr. Mizzone stated that he would have to convene with
Petitioner at a different time. (See id. at 31).
This status conference indicates that Petitioner was well-aware of his sentencing
exposure if he did not accept the proposed plea agreement offer. First, the AUSA in open court
12

with Petitioner present explained that by rejecting the plea agreement offer, Petitioner could
possibly be facing a life sentence. This included the likelihood that the grand jury would convene
and a weapons charge be brought. If convicted, Petitioner would then face an additional
consecutive twenty-five-year sentence. Petitioner affirmed that he had heard what the prosecutor
had said.
Next, Mr. Mizzone stated in open court that he had discussed with Petitioner the pros and
cons of the plea agreement. Petitioner did not state at the status conference that this was false.
Judge Schwartz then reiterated that Petitioner was potentially looking at a very significant
sentence if he did not accept the proposed plea agreement and was convicted at trial. Finally, Mr.
Mizzone noted that Petitioner was possibly facing a life sentence if he did not take the proposed
plea agreement. Mr. Mizzone then stated that Petitioner could possibly get out in ten years if he
agreed to the proposed plea.
Petitioner fails to show that he is entitled to an evidentiary hearing on this Lafler claim.
The status conference transcript before Judge Schwartz indicates that Petitioner was aware of the
plea agreement offer and sentencing exposure if he rejected the proposed plea agreement offer.
See, e.g., Kantete v. United States, No. 16-4801, 2019 WL 1500616, at 6 (D.N.J. Apr. 5, 2019)
(denying Lafler claim where record indicated that petitioner was aware of plea offer sentence and
sentencing exposure if convicted at trial and where counsel discussed potential penalties and
consequences of proceeding to trial rather than accepting the plea offer). Thus, Petitioner was
given enough information to make a reasonably informed decision on whether to accept the plea
agreement offer. His ability to make an informed decision on whether to accept the plea

13

agreement offer was not so undermined given what was expressly told him in open court before
Judge Schwartz. Accordingly, this claim is denied.2
B. Mental Competence
Next, Petitioner asserts that Mr. Mizzone should have requested that this Court conduct a
psychological evaluation on Petitioner to determine whether he was competent to enter a guilty
plea and/or whether he was able to assist his attorney and rationally consult about the proposed
plea agreement. (See ECF 38 at 14). Petitioner asserts that he was not of a clear mind at the
January 12, 2012 status conference hearing before Judge Schwartz.
Respondent asserts that this claim was first raised in Petitioner’s August, 2019 brief is a
new claim that is time-barred. This Court agrees for the following reasons.
Section § 2255(f) includes a one-year period in which a petitioner may file a request for
relief, which runs form the latest of four specified events:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created
by governmental action in violation of the Constitution or laws of
the United States is removed, if the movant was prevented from
making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by
the Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review; or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence[.]

It is also worth noting that in January, 2012, Petitioner himself indicated that counsel was
recommending that he take a plea. Indeed, Petitioner, in a pro se motion to dismiss the criminal
action against him dated January 23, 2012, referred to a meeting he had with Mr. Mizzone on
December 14, 2011. (See ECF 31-3). At that meeting, Petitioner states that Mr. Mizzone told him
he thought Petitioner would lose at trial and that he should consider taking a deal. (See id.). This
admission by Petitioner as to what counsel told him lends further support in denying the Lafler
claim.
2

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28 U.S.C. § 2255(f). Because Petitioner does not contend that new facts have been recently
discovered which would support his petition, nor has he pointed to a new right recognized by the
Supreme Court and made retroactively applicable nor that the government impeded Petitioner,
this Court will only examine § 2255(f)(1) as to whether his claim that counsel should have
requested a competency evaluation is time-barred.
Petitioner’s judgment became final under § 2255(f) on March 23, 2015 when the United
States Supreme Court denied certiorari on Petitioner’s direct appeal. See Sodano v. United States,
575 U.S. 922 (2015). Thus, he had one year from that date in which to file his § 2255 motion.
Petitioner did not bring his claim that counsel was ineffective for failing to request a competency
hearing until August, 2019. Thus, at first glance, this claim is clearly untimely. However, this
Court must next determine whether the claim “relates back” to any of Petitioner’s claims in his
timely filings.
Pursuant to Rule 15(c), an amendment that is otherwise untimely
“relates back to the date of the original pleading when ... the
amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out—or attempted to be set out—in
the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). The Supreme
Court has cautioned that courts should not interpret “conduct,
transaction, or occurrence” in such a broad manner so as to
construe essentially all amendments as permissible under the
relation-back doctrine. See Mayle v. Felix, 545 U.S. 644, 656–57,
125 S. Ct. 2562, 162 L. Ed. 2d 582 (2005). For example, in the
habeas context, the Supreme Court has refused to interpret
“conduct, transaction, or occurrence” as broadly encompassing a
“habeas petitioner's trial, conviction, or sentence,” reasoning that
“[u]nder that comprehensive definition, virtually any new claim
introduced in an amended petition will relate back, for federal
habeas claims, by their very nature, challenge the constitutionality
of a conviction or sentence, and commonly attack proceedings
anterior thereto.” Id. Instead, it has counseled that an amendment
relates back to a habeas petition under Rule 15(c) “[s]o long as the
original and amended petitions state claims that are tied to a
common core of operative facts.” Id. at 664, 125 S. Ct. 2562
(emphasis added).
15

In “search[ing] for a common core of operative facts in the two
pleadings,” Bensel v. Allied Pilots Ass'n, 387 F.3d 298, 310 (3d
Cir. 2004), courts should remain aware that “the touchstone for
relation back is fair notice, because Rule 15(c) is premised on the
theory that ‘a party who has been notified of litigation concerning
a particular occurrence has been given all the notice that statutes of
limitations were intended to provide,’” Glover v. FDIC, 698 F.3d
139, 146 (3d Cir. 2012). “Thus, only where the opposing party is
given ‘fair notice of the general fact situation and the legal theory
upon which the amending party proceeds’ will relation back be
allowed.” Glover, 698 F.3d at 146 (quoting Bensel, 387 F.3d at
310). For example, we have held that “amendments that restate the
original claim with greater particularity or amplify the factual
circumstances surrounding the pertinent conduct, transaction[,] or
occurrence in the preceding pleading fall within Rule 15(c)”
because the opposing party will have had sufficient notice of the
circumstances surrounding the allegations contained in the
amendment. Bensel, 387 F.3d at 310.
United States v. Santarelli, 929 F.3d 95, 101 (3d Cir. 2019).
Petitioner’s December, 2014 original § 2255 motion and his September, 2015
memorandum of law in support were both filed within the applicable one-year statute of
limitations. However, unlike Petitioner’s Lafler claim which was raised (albeit inartfully) in
Petitioner’s September, 2015 filing, neither the December 2014 nor the September 2015 filing
remotely raised a claim related to Mr. Mizzone’s purported ineffectiveness for failing to request
a competency hearing/evaluation. This claim is not tied to any common core of operative facts
that Petitioner raised in either of those two timely filings. Accordingly, because the claim does
not relate back, it is untimely. Therefore, it will be denied as time-barred.
V.

CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of

appealability (“COA”), 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

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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). In Slack v. McDaniel, 529 U.S. 473, 484 (2000), the United States Supreme Court
held: “[w]hen the district court denies a habeas petition on procedural grounds without reaching
the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at
least, that jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling." Id.
Petitioner has not met the standard for a COA on either of his claims discussed in this
opinion. Thus, a COA will not issue.
VI.

CONCLUSION
For the foregoing reasons, Petitioner’s Lafler claim is denied on the merits without the

need for an evidentiary hearing and his ineffective assistance of counsel for failing to
request/investigate a competency evaluation is time-barred. A certificate of appealability shall
not issue. An appropriate order will be entered.

DATED: June 17, 2020
s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.

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