HALL v. UNITED STATES OF AMERICA
Filing
13
OPINION filed. Signed by Judge Freda L. Wolfson on 9/21/2018. (mmh)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
MYKAL HALL,
:
:
Petitioner,
:
Civ. No. 15-4416 (FLW)
:
v.
:
:
UNITED STATES OF AMERICA,
:
OPINION
:
Respondent.
:
_________________________________________ :
FREDA L. WOLFSON, U.S.D.J.
I.
INTRODUCTION
Petitioner, Mykal Hall (“Hall” or “Petitioner”), is a federal prisoner proceeding pro se
with a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. For the
following reasons, Hall’s § 2255 motion is denied.
II.
BACKGROUND AND PLEADINGS
A. The Underlying Criminal Proceeding
Hall was arrested on July 8, 2013, on a criminal complaint charging him with one count
of assaulting a person having custody of United States property, with intent to rob, in violation of
18 U.S.C. § 2114. See United States v. Hall, Crim. No. 13-684 (FLW) (D.N.J.), Compl., ECF
No. 1. The Complaint alleged that, between February and May of 2013, Hall sold to a
confidential source seven firearms, including two sawed-off shotguns, one of which had a
defaced serial number. Id., Attach. A, ¶ 1. It alleged that Hall and the confidential source agreed
to meet on June 8, 2013 for another firearms sale and that Hall showed the confidential source a
handgun before stating that he had to go get a bag containing other guns. Id. ¶¶ 3–4. The
Complaint alleged that Hall returned, accompanied by another person, ultimately determined to
be codefendant Lachtavo R. Nance (“Nance”), that Hall placed a bag in the trunk of the
confidential source’s vehicle, and that Nance then robbed the confidential source of the purchase
money at gunpoint. 1 Id. ¶¶ 5–6.
A grand jury returned a two-count indictment on October 17, 2013, charging Hall and
Nance, in Count One, with assault with intent to rob property of the United States in violation of
18 U.S.C. §§ 2 and 2114 and, in Count Two, with use of a firearm in relation to a crime of
violence in violation of 18 U.S.C. §§ 2 and 9 24(c)(1)(a)(ii). Crim. No. 13-684, ECF No. 12.
The grand jury subsequently returned a superseding, three-count indictment, which added a
charge of engaging in the business of dealing firearms without a license in violation of 18 U.S.C.
§§ 2 and 922(a)(1)(A). Id., ECF No. 18. In May 2014, this Court dismissed without prejudice
the assault charge against Hall based on a violation of the Speedy Trial Act. Id., ECF Nos. 34–
36. One week later, a grand jury returned a second superseding indictment, with nine counts
against Hall, 2 for dealing firearms without a license under 18 U.S.C. §§ 2 and 922(a)(1)(A)
(Count One), two counts of possession of an unregistered short-barreled shotgun under 18 U.S.C.
§ 2 and 26 U.S.C. §§ 5841, 5861(d), and 5871 (Counts Two and Four), two counts of delivery of
an unregistered short-barreled shotgun under 18 U.S.C. § 2 and 26 U.S.C. §§ 5841, 5861(j), and
5871 (Counts Three and Six), possession of a firearm with a defaced serial number under 18
U.S.C. § 2 and 26 U.S.C. §§ 5842, 5861(h), and 5871 (Count Five), conspiracy to commit Hobbs
Act robbery under 18 U.S.C. § 1951 (Count Seven), and, as in the first superseding indictment,
assault with intent to rob property of the United States under 18 U.S.C. §§ 2 and 2114 and
1
The bag placed in the trunk apparently contained only bricks.
2
Prior to the second superseding indictment, the charges against Nance had been resolved by a
plea agreement. See Crim. No. 13-684, ECF Nos. 21–23 & 37.
2
possession of a firearm in relation to a crime of violence in violation of 18 U.S.C. §§ 2 and
924(c)(1)(a)(ii) (Counts Eight and Nine). Id., ECF No. 38.
On June 18, 2014, Hall pleaded guilty before this Court to Count Four of the Second
Superseding Indictment, for possession of an unregistered, short-barreled shotgun. 3 Id., ECF
Nos. 42–44, 49. As part of the plea agreement, Hall waived his right to file an appeal, collateral
attack, or challenge to a sentence within the range set forth by the United States Sentencing
Guidelines for an offense level of 29. Id., ECF No. 44 ¶¶ 12–13. On November 24, 2014, this
Court sentenced Hall to 108 months of imprisonment, to be followed by three years of
supervised release. Crim. No. 13-684, ECF Nos. 47–48, 56.
B. The § 2255 Motion
On June 25, 2015, Hall, acting pro se, filed a § 2255 motion to vacate, set aside, or
correct his sentence. (ECF No. 1.) The Court administratively terminated the petition as Hall’s
motion was not submitted on the proper form, as required by Local Civil Rule 81.2(a). (Order
(July 8, 2015), ECF No. 2.) Hall shortly thereafter filed a new § 2255 motion, which asserts
three grounds for relief, which are all based on a theory of ineffective assistance of counsel. (See
ECF Nos. 3 & 3-1.) Hall contends that his counsel misinformed him regarding the potential for
sentencing enhancements, allegedly leading Hall to believe he would receive a prison sentence of
no more than 36 months if he accepted the plea deal, and Hall asserts that he would have gone to
trial but for this advice. (Mem. of Points & Authorities, ECF No. 3-1, at 20–22.) Hall also
alleges that his attorney was ineffective by failing to object to the government’s use of
“sentencing factor manipulation,” by failing to argue that Hall’s sentence was substantively
3
The details of Hall’s plea hearing are further discussed in the Court’s analysis of his habeas
claims, infra.
3
unreasonable, and by failing to object to a sentence based on insufficiently established facts. (Id.
at 23–26.)
On April 7, 2016, Hall filed a “Motion to Amend and Supplement the Record,” in which
he seeks to add a claim that his sentencing enhancements violated the Supreme Court’s holding
in Johnson v. Untied States, 135 S. Ct. 2551 (2015). (ECF No. 7.) In October 2017, Hall filed
another motion seeking to amend his petition by alleging that his counsel provided ineffective
assistance by failing to challenge the sentence under Rosemond v. United States, 572 U.S. 65
(2014). (ECF No. 10.)
The government filed an Answer opposing Hall’s § 2255 motion, which included an
affidavit from the attorney who represented Hall during the plea and sentencing stage, Scott
Krasny (“Krasny”), as well as copies of correspondence between Krasny and Hall. (ECF Nos.
11 through 11-3.)
III.
ANALYSIS
A. Legal Standards
To grant relief on a federal prisoner’s motion to vacate, set aside, or correct a sentence
under 28 U.S.C. § 2255, the Court must find that “there has been such a denial or infringement of
the constitutional rights of the prisoner as to render the 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 V.I.
v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)). 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).
4
The bulk of Hall’s arguments are framed as claims for ineffective assistance of trial
counsel. (See ECF Nos. 3-1 & 10.) The Sixth Amendment guarantees defendants effective
assistance of counsel during critical portions of a criminal proceeding. See Lafler v. Cooper, 566
U.S. 156, 165 (2012). The Supreme Court, in Strickland v. Washington, 466 U.S. 668 (1984),
articulated a two-prong burden for demonstrating the ineffectiveness of counsel: (1) that,
considering all relevant circumstances, counsel’s performance fell below an objective standard of
reasonableness and (2) that the petitioner suffered prejudice as a result. Id. at 687–96; see also
Preston v. Superintendent Graterford SCI, ___ F.3d ___, 2018 WL 4212055, at *9, *12 (3d Cir.
Sept. 5, 2018); Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013).
In addressing the first prong, the petitioner “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. Judicial scrutiny of counsel's conduct must be “highly deferential.”
See id. at 689. “[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. Counsel’s strategic choices made after thorough
investigation of the relevant law and facts are “virtually unchallengeable,” while choices made
with less than entirely thorough investigation “are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation.” Id. at 690–91; see
also Rolan v. Vaughn, 445 F.3d 671, 682 (3d Cir. 2006); Gov't of V.I. v. Weatherwax, 77 F.3d
1425, 1432 (3d Cir. 1996). Whether counsel acted in a manner that was deficient is measured by
5
a standard of “reasonableness under prevailing professional norms.” Strickland, 466 U.S. at
687–88; see also Wiggins v. Smith, 539 U.S. 510, 521 (2003).
The second prong of the Strickland test requires the petitioner to affirmatively prove
resulting prejudice. See 466 U.S at 693. Prejudice is generally 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 McBride 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 outcome, but the difference between Strickland's prejudice standard and a
more-probable-than-not 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 citation omitted).
In the context of plea agreements, this prejudice requirement “focuses on whether
counsel’s constitutionally ineffective performance affected the outcome of the plea process.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985). “[T]he defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Id.; see also Lee v. United States, 137 S. Ct. 1958, 1965 (2017);
Lafler v. Cooper, 566 U.S. 156, 162–63 (2012); United States v. Jesus-Nunez, 576 F. App’x 103,
105 (3d Cir. 2014). In considering whether the prejudice prong has been satisfied, the Court
must consider the strength of the underlying evidence. See Saranchak v. Beard, 616 F.3d 292,
311 (3d Cir. 2010).
The Strickland Court made clear that a court may apply the two prongs in whatever order
it sees fit. 466 U.S. at 697 (“[A] court need not determine whether counsel’s performance was
6
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.”); see also Rainey v. Varner, 603 F.3d
189, 201 (3d Cir. 2010).
B. Alleged Misadvice as to Likely Sentence
As outlined above, Hall first asserts that his counsel misled him into believing that if he
accepted the plea deal he would likely receive a maximum sentence of 36 months of
imprisonment, thus causing him to accept a plea at issue. (See ECF No. 3-1 at 21, 24.) Hall
contends that, “but for petitioner’s trial counsel’s misadvice which led to the inducement of his
entering a plea of guilty, the petitioner would definitely have gone to trial.” (Id. at 22.)
Hall’s assertions that he only accepted the plea agreement because his counsel misled
him as to the duration of his sentence resulting from the plea deal are not supported by the
evidence in the record. The government submits an affidavit from Krasny, in which prior
counsel indicates that, when the government first offered a plea deal whereby Hall would plead
guilty to possession of an unregistered, short-barreled shotgun, Krasny informed Hall that the
plea contained a stipulation to a Sentencing Guidelines offense level of 31, which produced a
sentencing range of 108 to 135 months without enhancements for criminal history. (Krasny Aff.,
ECF No. 11-1 ¶¶ 18–19.) Krasny also includes a copy of a letter he sent Hall at that time, which
explained that the offered plea deal included an agreement that Hall’s adjusted offense level
would be 31 and that “[t]hat would produce a guideline sentence between 108 to 135 months in
criminal history category I and a higher guideline sentence if [Hall] had any criminal history.”
(Krasny Aff., Ex. A, Letter from Scott A. Krasny to Mykal Hall (Apr. 1, 2014), ECF No. 11-2, at
A-14 to A-15.) Krasny’s letter also informed Hall that the statutory maximum sentence for the
7
offense would be ten years, and that the sentence would thus not exceed that duration. (Id.)
Krasny attests that Hall rejected the plea deal at that time. (ECF No. 11-1 ¶ 19.)
Krasny further recounts that, on June 2, 2014, after the Second Superseding Indictment,
he went to the jail where Hall was detained and presented the government’s second plea offer to
Hall, explaining the sentencing guidelines at an offense level of 29. (ECF No. 11-1 ¶¶ 28–29.)
Krasny explains that, while going over this proposal with Hall, he “performed calculation
example [sic] using the maximum of the guideline range and explained the prison exposure to
Hall”; Krasny includes a copy of his handwritten sentencing calculations. (Id. ¶ 29; ECF No.
11-2 at A-5.) Krasny states that he again met with Hall a few days later and that, when Hall
asked about the shortest possible sentence he could receive, Krasny calculated that 87 months
would be the low end of the guidelines sentence. (ECF No. 11-1 ¶ 30.) Krasny also includes a
copy of handwritten calculations based on that hypothetical. (ECF No. 11-2 at A-4.) Krasny
indicates that Hall decided to accept the plea deal and signed the plea agreement immediately
following this discussion. (ECF No. 11-1 ¶ 30.) See also Crim. No. 13-684, ECF No. 44 (plea
agreement signed by Hall, dated June 2, 2014). Hall did not file any reply brief or otherwise
dispute Krasny’s representations.
During the June 18, 2014 plea hearing before this Court, Hall indicated that he had read
the plea agreement, discussed it with Krasny, and fully understood its terms. Crim. No. 13-684,
Tr. of Plea Hr’g (June 18, 2014), ECF No. 49, at 7–9. Hall indicated that he entered into the plea
agreement of his own free will because he was guilty. Id. at 9. Hall specifically indicated that he
understood that he waived his right to appeal any sentence that fell within or below the
Sentencing Guidelines range for offense level 29. Id. at 10–11. The Court explained to Hall the
penalties resulting from the charge to which he was pleading, including a prison sentence of up
8
to10 years, and Hall confirmed his understanding in that regard. Id. at 13–14. The Court then
explained the function and discretionary nature of the Sentencing Guidelines, and Hall again
confirmed his understanding. Id. at 14–17. Hall specifically remarked that he understood that he
would “not be able to withdraw [his] plea on the ground that anyone’s prediction as to the
Guideline range proved to be inaccurate” and that “the sentence imposed may be different from
any estimate [his] attorney may have given [him].” Id. at 16–17. Hall further admitted
committing the elements of the charge to which he was pleading and admitted to the underlying
facts of the firearms sales. Id. at 20–23. Following these concessions, Hall entered a plea of
guilty to the charge, and the Court found that his plea was knowing and voluntary. Id. at 23–24.
Krasny explains that, following the plea hearing, Hall sent Krasny a letter indicating his
belief that the Court would impose a sentence of between 84 and 109 months of imprisonment
and asking whether the probation office could recommend a lighter sentence; Krasny includes a
copy of this letter. (ECF No. 11-1 ¶¶ 31–32; Krasny Aff., Ex. A, Letter from Mykal Hall to
Scott Krasny (July 7, 2014), ECF No. 11-2 at A-38.) In response, Krasny sent a letter to Hall
explaining that, at offense level 29, Hall would face a sentence of 87 to 108 months and opining
that it was unlikely the probation office would recommend a lower sentence; Krasny has also
included a copy of this letter. (ECF No. 11-1 ¶ 33; Krasny Aff., Ex. A, Letter from Scott A.
Krasny to Mykal Hall (July 16, 2014), ECF No. 11-2 at A-3.)
During Hall’s sentencing on November 24, 2014, this Court noted that it would follow
the parties’ stipulation as to a two-point offense-level enhancement because the underlying
transactions involved three to eight guns, rather than the Presentencing Report’s recommendation
of a four-point enhancement due to the transaction involving eight guns. Crim. No. 13-684, Tr.
of Sentence (Nov. 24, 2014), ECF No. 56, at 4. The Court, considering the circumstances, found
9
that Hall’s adjusted offense level was 29, the same level stipulated to by the parties in the plea
agreement. Id. at 6–7. The Court determined that Hall had a criminal history level of 3 and that,
in conjunction with the offense level of 29, the Guideline range was 108 to 135 months, limited
by the 120-month maximum sentence under the applicable statute. Id. at 7–8. Considering all
applicable circumstances, the Court sentenced Hall to 108 months of imprisonment. Id. at 15–
20.
The above-recounted circumstances clearly rebut Hall’s assertions that the representation
by Hall’s trial counsel was deficient or that such deficiency caused Hall any prejudice. Even if
one of Hall’s attorneys 4 at some point, prior to the plea hearing, suggested to Hall that he could
only receive a 36-month prison sentence as part of a plea deal, it is clear that, by the time Hall
accepted the plea agreement, he had a full and accurate understanding of his sentencing
guidelines, and in that regard, the range of potential sentences. (See ECF No. 11-2, at A-4 to A5, A-14 to A-15.) See also Crim. No. 13-684, ECF No. 44; Crim. No. 13-684, ECF No. 49 at 7–
17. Indeed, Hall stated under oath, in open court, that he had discussed the plea agreement with
Krasny and understood its terms, that he was accepting the plea deal of his own free will, that he
understood that he was stipulating to a Guidelines offense level of 29, that he knew the
maximum prison sentence was 10 years, and that he understood that his attorney’s
representations as to a likely sentence might not result. Crim. No. 13-684, ECF No. 49 at 7–17.
Furthermore, Hall’s representations that he “definitely” would have chosen to proceed to
trial, rather than accept the plea deal, had his counsel provided accurate advice are simply not
credible. The “victim” to whom Hall repeatedly sold firearms, and who was ultimately robbed,
4
Hall was initially represented in the criminal proceeding by Joshua L. Markowitz
(“Markowitz”). After the return of the first superseding indictment, and at Hall’s request, the
representation by Markowitz was terminated, and Hall was assigned Krasny to represent him.
See Crim. No. 13-684, ECF Nos. 24, 26–27.
10
was a confidential source, and thus, these interactions were captured on audio and video
recordings. See Crim. No. 13-684, ECF No. 1, Attach. A. By the time Hall accepted his plea, he
had been indicted by a grand jury on nine charges relating to firearm possession, firearm dealing,
assault, and conspiracy to commit robbery, crimes with maximum sentences ranging from five to
20 years, as well as brandishing a firearm in connection with a felony, under which a minimum
seven-year sentence would have been added that would run consecutive to any other sentence.
See Crim. No. 13-684, ECF No. 38. I do not find convincing Hall’s argument that had he
properly understood that the plea deal would likely result in a prison sentence of nine years, he
would instead have chosen to go to trial on a nine-count indictment. Indeed, in the face of
mounting evidence from a confidential source and audio-video recordings of the crimes, at a
trial, Hall would almost certainly face a substantially longer sentence. Under these
circumstances, Hall has not met his burden of demonstrating prejudice from any alleged
ineffective assistance of counsel. See United States v. Babalola, 248 F. App’x 409, 414 (3d Cir.
2007) (“In light of the overwhelming evidence of her guilt and the lenity of the government’s
plea offer, it is highly unlikely that Babalola would have risked a trial which, the evidence shows
in any event almost certainly would have resulted in a conviction and imprisonment. Babalola
has thus failed to demonstrate that there is a reasonable probability that, but for counsel’s error,
the result of the proceeding would have been different.” (internal quotation marks and citation
omitted)); see also Garcia v. United States, Civ. A. No. 12-3020, 2014 WL 4352307, at *5
(D.N.J. Sept. 2, 2014); Gudiel-Soto v. United States, 761 F. Supp. 2d 234, 241 (D.N.J. 2011).
In any event, the Third Circuit has also held “that an erroneous sentencing prediction by
counsel is not ineffective assistance of counsel where, as here, an adequate plea hearing was
conducted.” United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007) (citing United States v.
11
Jones, 336 F.3d 245, 254 (3d Cir. 2003)). “[D]efense counsel’s conjectures to his client about
sentencing are irrelevant where the written plea agreement and in-court guilty plea colloquy
clearly establish the defendant’s maximum potential exposure and the sentencing court’s
discretion.” Id. As Hall fails to meet his burden of showing either the deficiency or the
prejudice prong related to his acceptance of the plea, relief on Ground One is denied.
C. Alleged Failure to Object to “Sentencing Factor Manipulation”
Hall’s second ground for relief concerns his counsel’s alleged failure to object to
“sentencing factor manipulation” by the government. (See ECF No. 3-1 at 23–24.) Hall argues
that his attorney “allowed the government, and the trial court to grossly enlarge the scope of him
[sic] crime for which he was being charged, and used the multiple charges as leverage to extract,
or secure an [sic] longer sentence on the back-end at the sentencing phase by applying 16-levels
of enhancements.” (Id. at 23.)
“Sentencing factor manipulation” is the term applied by courts in some circuits “when the
government unfairly exaggerates the defendant’s sentencing range by engaging in a longer-thanneeded investigation and, thus, increasing the drug quantities for which the defendant is
responsible.” See United States v. Sed, 601 F.3d 224, 229, 231 (3d Cir. 2010). The Third Circuit
has consistently declined to address the question of whether a theory of sentencing factor
manipulation may be asserted within this Circuit. Id. at 229–30; see also United States v.
Washington, 869 F.3d 193, 210 (3d Cir. 2017); United States v. Whitfield, 649 F. App’x 192, 199
(3d Cir. 2016).
Applying the highly deferential examination required by Strickland, the Court finds that
Hall fails to meet his burden of showing that his counsel was deficient by failing to raise a legal
theory that has not been recognized as the law within this Circuit and which, where applicable, is
12
primarily applied in drug cases. See Sed, 601 F.3d at 229, 231. Furthermore, Hall does not
demonstrate any resulting prejudice, as he cannot show a reasonable probability that the outcome
would have been different had his counsel raised a sentencing-factor-manipulation argument.
See Strickland, 466 U.S at 694. Even if this Court were to entertain the theory of sentencing
factor manipulation, there is no indication that this theory would have applied to reduce Hall’s
sentence. Here, it appears that Hall maintains that the government manipulated his sentencing
factors by intentionally engaging in additional gun transactions, and thereby, increasing the
number of guns involved. That argument does not hold water, however, because the
Presentencing Report indicated that the underlying transactions had involved eight guns, yet the
government agreed to stipulate that the underlying transactions involved “three to eight” guns.
See Washington, 869 F.3d at 210–11 (“[E]ven assuming some impropriety here on the part of the
government, most of the factors it created for the crime, and which were within its unique
control, were not the drivers of Washington’s actual sentence.”). Indeed, because of the
government’s stipulation, Hall was subject to a lesser sentence based on three to eight guns
rather than a longer one based on eight guns. See Crim. No. 13-684, ECF No. 56, at 3–4. This
does not evince a scheme by the government to unduly inflate Hall’s sentence.
Additionally, in considering sentencing-factor-manipulation arguments, the Third Circuit
has advised that “it does not offend due process for the police to ‘persist in ascertaining what
quantity [of drugs a defendant is] willing and able to deal.’” Sed, 601 F.3d at 231 (quoting
United States v. Shephard, 4 F.3d 647, 649 (8th Cir. 1993) (alterations in original)). This logic
appears applicable in the government’s attempts to continue buying guns from Hall. The Third
Circuit additionally citing approvingly that “‘the ultimate seizure of a larger quantity of illegal
drugs from a suspect in connection with the arrest has positive societal consequences; eradicating
13
illegal drugs from society is a legitimate, if not the primary, goal of drug enforcement officials.’”
Id. (quoting United States v. Lacey, 86 F.3d 956, 965 (10th Cir. 1996)). This reasoning appears
to apply even more forcefully to the government’s efforts to remove dangerous and unregistered
firearms from the streets. Having considered these issues, the Court finds that Hall has not
sustained his burden of demonstrating that relief is warranted on the basis of his attorney’s
failure to present arguments as to sentencing factor manipulation, and relief on this ground is
denied. 5
D. Alleged Failure to Argue Substantive Unreasonableness of Sentence
In his third ground for relief, Hall argues that his counsel was deficient by failing to argue
that the sentence imposed was substantively unreasonable. (ECF No. 3-1 at 25–26.) In this
ground, Hall argues that his counsel “failed to subject the prosecution to any meaningful
adversarial testing during the plea bargaining process” and that counsel “allowed the court to
sentence petitioner based on judicially found facts.” (Id.) Hall contends that his “sentence is
5
The Court notes that sentencing factor manipulation has sometimes been considered in
conjunction with arguments that a conviction is the product of outrageous government conduct,
under United States v. Twigg, 588 F.2d 373 (3d Cir. 1978). See Washington, 869 F.3d at 209–
10. In Twigg, the Third Circuit concluded that a scheme to manufacture methamphetamine was
substantially engineered by the government, as an informant supplied all chemicals, glassware,
and space used, and as the defendant was essentially subordinate to the informant. Twigg, 588
F.2d at 375–76, 380–81. The Twigg Court found this governmental conduct outrageous and
consequently reversed the defendant’s conviction. Id. at 380–81.
Hall has not explicitly raised a Twigg outrageous-conduct argument. Nonetheless, the Court
observes that, even if he had, such argument would necessarily fail. As the Third Circuit has
recently observed, there is only one reported Court of Appeals decision besides Twigg that has
found circumstances justifying the vacatur of a conviction based on outrageous government
conduct. Washington, 869 F.3d at 209; see also Greene v. United States, 454 F.2d 783 (9th Cir.
1971). Furthermore, the evidentiary burden placed on a defendant asserting a Twigg claim is
“‘exceedingly great.’” Washington, 869 F.3d at 210 (quoting United States v. Dennis, 826 F.3d
683, 694 (3d Cir. 2016)). Hall’s allegations do not come close to show any outrageous conduct
by the government in this case.
14
substantively unreasonable, and must be set-aside under the totality-of-the-circumstances
standard.” (Id. at 26.)
Hall’s allegations in support of this ground for relief are scattershot and conclusory. Rule
2 of the Rules Governing § 2255 Proceedings requires that the motion “state the facts supporting
each ground [for relief].” See Rules Governing § 2255 Proceedings, Rule 2(b)(2), 28 U.S.C.A.
foll. § 2255. A § 2255 motion cannot rest upon vague and conclusory allegations, and such
allegations “may be disposed of without further investigation by the District Court.” United
States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000) (citing United States v. Dawson, 857 F.2d
923, 928 (3d Cir. 1988)). It is impossible to discern from the petition what facts form the basis
for this claim, in what way Hall alleges that his counsel’s representation was deficient, or how
such deficiency allegedly resulted in prejudice. (See ECF No. 3-1 at 25–26.)
Furthermore, while a representation may be found deficient where an attorney “entirely
fails to subject the prosecution’s case to meaningful adversarial testing,” United States v. Cronic,
466 U.S. 648, 659 (1984), there is no suggestion that Krasny, who successfully filed a motion to
dismiss a charge under the Speedy Trial Act and who actively negotiated a plea deal on Hall’s
behalf, could be found to have essentially abdicated his duties, see Crim. No. 13-684, ECF Nos.
28, 32, 43–44. The transcript of the sentencing also makes clear that Krasny actively argued on
Hall’s behalf for a lower sentence. See Crim. No. 13-684, ECF No. 56 at 3–5, 9–11.)
Hall also argues under ground three that his counsel was deficient by “allow[ing] the
court to sentence petitioner based on judicially found facts which led to petitioner receiving a
sentences [sic] that was many more time [sic] longer than those the Guidelines otherwise would
have recommended.” (ECF No. 3-1 at 26.) Hall relatedly argues, “Any fact that increases the
15
penalty to which a defendant is exposed constitutes an element of a crime, Apprendi v. New
Jersey, 530 U.S. 466 (2000), and must be found by a jury, not a judge.” (Id.)
In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. The Third Circuit
has just reaffirmed, however, that “Apprendi does not apply when a district court makes factual
findings that affect the advisory guidelines but not the statutory maximum.” United States v.
Gonzalez, ___ F.3d ___, 2018 WL 4265966, at *27 (3d Cir. Sept. 7, 2018); see also United
States v. Smith, 751 F.3d 107, 117 (3d Cir. 2014); United States v. Grier, 475 F.3d 556, 565 (3d
Cir. 2007). This is the exact circumstances surrounding Hall’s sentence: his plea to the
possession of short-barreled shotgun subjected him to a prison sentence of up to ten years, see 26
U.S.C. § 5871, and the factual circumstances of the offense (to which Hall stipulated as part of
his plea agreement) were not applied to increase the range of legally permissible sentence, but
were merely assessed as part of the advisory guidelines to aid the Court in its discretionary
sentencing decision, see Crim. No. 13-684, ECF No. 56 a 6–8. Accordingly, relief on the ground
that Hall’s counsel failed to object to alleged sentencing errors is denied.
E. Alleged Johnson Claim
After the Court had screened Hall’s Petition, but before the government had filed its
Answer, Hall filed a submission seeking to amend his Petition by adding a claim pursuant to the
Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). (ECF No. 7.)
Hall argues that, in light of the holding in Johnson, it was improper for the Court to enhance his
Sentencing Guidelines offense level based on facts included in Schedule A of the plea agreement
and to impose a sentence based on that calculation. (Id.)
16
Even assuming that this amendment is permissible, this claim fails, as Hall has not
adequately raised a Johnson claim. In Johnson, the Supreme Court held that enhancing a
criminal defendant’s sentence under the Armed Career Criminal Act upon a finding that the
defendant had committed three prior violent felonies would violate due process if the finding
relied upon the Act’s so-called residual clause, which included within the definition of a violent
felony, any felony that “involves conduct that presents a serious potential risk of physical injury
to another.” See Johnson, 135 S. Ct. at 2555–63. Specifically, the Johnson Court found the
residual clause to be unconstitutionally vague because it “leaves grave uncertainty about how to
estimate the risk posed by a crime” and because it “leaves uncertainty about how much risk it
takes for a crime to qualify as a violent felony.” (Id. at 2557–58.) Subsequently, in Beckles v.
United States, ___ U.S. ___, 137 S. Ct. 886 (2017), the Supreme Court found that a similar
residual clause in the Sentencing Guidelines was not susceptible to a vagueness challenge, as the
Guidelines “do not fix the permissible range of sentences,” but instead “merely guide the
exercise of a court’s discretion in choosing an appropriate sentence within the statutory range.”
Id. at 892–95.
Hall’s challenge bears almost no similarities to the facts or legal issues considered in
Johnson and its progeny. Hall does not raise a challenge based on the residual clause of the
Armed Career Criminal Act nor on similar language contained in any other statute. He does not
make an argument that any statutory provision is unconstitutionally vague. Indeed, Hall’s
arguments in support of this claim solely concern enhancements under the Sentencing Guidelines
based on the circumstances of the offense being punished, not enhancements based on any prior
convictions. (See ECF No. 7.) Thus, it is clear that Hall does not present a Johnson claim.
Instead, Hall’s arguments concerning sentencing enhancements based on the factual
17
circumstances of the offense seem more closely related to the Apprendi line of cases. The Court
has already considered and rejected these arguments under controlling precedent. Accordingly,
relief is denied on the arguments asserted in Hall’s first attempt to amend his petition.
F. Alleged Rosemond Claim
After his first motion to amend, but before the government had filed its answer, Hall filed
a second motion to amend his petition. (ECF No. 10.) In this amendment, Pierce argues, as an
extension of his ineffective-assistance claim, that counsel was ineffective under the Supreme
Court’s holding in Rosemond v. United States, 572 U.S. 65 (2014), by permitting a plea
agreement that stipulated to a sentencing guidelines enhancement for Hall’s use of a firearm in
connection with a felony and by failing to object to the Court’s imposition of a sentencing
enhancement on this basis. (Mem. of Law in Supp., ECF No. 10, at ECF pp. 8–16.) Hall
reasons that, under Rosemond, he “could not be subjected to such an enhancement under the
guidelines unless the government had met its burden of showing that petitioner Hall had advance
knowledge that his alleged codefendant would possesse [sic] a firearm during the felony
offense.” (Id. at ECF pp. 8–9 (internal quotation marks omitted).) Hall concludes that his
sentence should not have been enhanced by the possession of a weapon by his codefendant,
Nance, as evidence did not establish that Hall “had advance knowledge of the gun.” (Id. at ECF
p. 9.)
As with Hall’s first attempt to amend his petition, even assuming that his proposed
amendment is permissible, it must fail on the merits. In Rosemond, the Supreme Court
considered the government’s burden of proof when prosecuting a defendant for aiding and
abetting the use of a firearm in connection with a drug-trafficking or violent crime, in violation
of 18 U.S.C. § 924(c). See Rosemond, 572 U.S. at 67–83. The Court reviewed the aiding and
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abetting statute, 18 U.S.C. § 2, in connection with § 924(c) and concluded that a conviction for
aiding and abetting a § 924(c) violation requires a showing that the defendant had advance
knowledge of a confederate’s intent to use a gun in the predicate crime. Id. at 70–81. The Court
further explained that aiding or abetting liability depended on the defendant having knowledge of
the confederate’s intent to use a gun far enough in advance that the defendant could still choose
to abandon the scheme. See id. at 78.
The only commonality that this case has with Rosemond is the fact that Hall was indicted
for a violation of § 924(c). 6 See Crim. No. 13-684, ECF Nos. 12, 18, & 38. The § 924(c) charge
against Hall was dropped as part of his plea deal, and he was thus neither convicted nor
sentenced under 18 U.S.C. § 2 or § 924(c). See Crim. No. 13-684, ECF Nos. 44 & 56.
Accordingly, at no point did the Court make a finding whether Hall could be found liable for
aiding and abetting a § 924(c) violation. Hall’s extensive arguments regarding the holding in
Rosemond are not a basis for granting him habeas relief. Rather, Hall’s contentions seem to
present a continuation of his Apprendi-based argument that his counsel was ineffective for
failing to challenge allegedly improper sentencing enhancements. The Court has already
rejected this argument for the reasons discussed above. Hall’s invocation of Rosemond does not
change this analysis; Krasny’s representation was not deficient based on his failure to raise
arguments under Rosemond, which were inapplicable to the circumstances here. See, e.g.,
Barrera v. United States, Civ. A. No. M-14-503, 2017 WL 4326090, at *2 (S.D. Tex. Mar. 6,
6
While every count (except for a conspiracy charge)in the indictments against Hall and his
codefendant Nance included citations to 18 U.S.C. § 2, there is no indication of whether each
defendant would be charged as a principal or accomplice. See Crim. No. 13-684, ECF Nos. 12,
18, & 38. As the Supreme Court has noted, however, 18 U.S.C. § 2 “‘abolishe[d] the distinction
between principals and accessories and [made] them all principals.” Standefer v. United States,
447 U.S. 10, 18 (1980) (alterations in original) (quoting Hammer v. United States, 271 U.S. 620,
628 (1926)).
19
2017) (“There is no authority to support Movant’s position that Rosemond applies to his sentence
or conviction. . . . . In sum, Rosemond is in applicable to Movant’s case and provides no basis
for collateral relief under § 2255.”) Furthermore, Hall cannot show any likelihood of a different
outcome had Krasny raised these inapplicable arguments during sentencing. Accordingly, relief
on this ground is denied.
IV.
CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c), a litigant may not appeal a final order in a § 2255 proceeding
unless the judge or a circuit justice issues a certificate of appealability (“COA”). That section
further directs courts to issue a COA “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also 28 U.S.C. § 2255(d). “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 this case, the Court denies a certificate of appealability because jurists
of reason would not find it debatable that Hall has failed to make a substantial showing of the
denial of a constitutional right.
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V.
CONCLUSION
For the foregoing reasons, Hall’s § 2255 motion is denied on the merits. Although courts
considering § 2255 motions are generally directed to hold evidentiary hearings, it is apparent
from the arguments before the Court and the record of the underlying criminal proceeding that,
regardless of the evidence adduced at such a proceeding, Hall would not be entitled to any relief
based on his motion. See Booth, 432 F.3d at 545. An appropriate order will be entered.
DATED: September 21, 2018
/s/ Freda L. Wolfson
FREDA L. WOLFSON
United States District Judge
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