DEEN-MITCHELL v. LAPPIN et al

Filing 86

ORDER (1) plaintiffs motions to amend and/or supplement his complaint, (Doc. No. 76) & (Doc. No. 81), are GRANTED, and plaintiff shall file one final all-inclusive amended complaint by February 15, 2012 in accordance with the directions provided abov e;(2)plaintiffs motion to have supplement to complaint held in abeyance, (Doc. No. 82), is DENIED as moot;(3)plaintiffs motions for the defendants to return his legal materials, (Doc. No. 71), (Doc. No. 73), (Doc. No. 83) & (Doc. No. 85), areDENIED; (4)plaintiffs motion for a court order regarding the preservation of evidence, (Doc. No. 78), is DENIED; and(5)plaintiffs supplemental complaint, (Doc. No. 77), is stricken from the record.Signed by Magistrate Judge Malachy E. Mannion on 1/10/12 (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s)) (bs, )

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UNITED STATES OF AMERICA, v. ADAM JOHN VERDEKAL
CIVIL ACTION NO. 3:09-cr-68
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA
2011 U.S. Dist. LEXIS 149616

December 22, 2011, Decided
December 30, 2011, Filed
COUNSEL: [*1] For USA, Plaintiff: John C. Gurganus,
Jr., LEAD ATTORNEY, Assistant U.S. Attorney - U.S.
Attorney's Office, Scranton, PA.
JUDGES: A. Richard Caputo, United States District
Judge.
OPINION BY: A. Richard Caputo
OPINION

MEMORANDUM
Petitioner Adam John Verdekal is an inmate at the
United States Penitentiary Lee in Jonesville, Virginia.
Presently before the Court is Verdekal's November 24,
2010 Motion to Vacate, Set Aside, or Correct a Sentence
by a Person in Federal Custody pursuant to 28 U.S.C. §
2255. (Doc. 49). Verdekal has also moved to amend this
Motion. (Doc. 54). In these two combined Motions,
Verdekal claims three separate grounds for ineffective
assistance of counsel. For the reasons below, the Court
will allow Verdekal to amend his Motion and will direct
the parties to submit updated briefs.
BACKGROUND
The following facts are not in dispute. On December
10, 2008, Verdekal was charged with retail theft in

Columbia County, Pennsylvania. While on pretrial
release for that charge, Verdekal was arrested for six
bank robberies. He was indicted on the six bank robbery
charges by a Federal Grand Jury on February, 24, 2009,
and was arraigned before Magistrate Judge Thomas M.
Blewitt on March 4, 2009, pleading not guilty [*2] to all
six charges. Attorney Thomas Helbig was appointed to
represent Verdekal on his federal charges. On April 29,
2009, the Columbia County Sheriffs took custody of
Verdekal. He then pled guilty in the Court of Common
Pleas of Columbia County to the retail theft charge, was
sentenced to a maximum of eighteen (18) months
imprisonment, and was returned to federal custody. On
July 17, 2009, Verdekal plead guilty to two counts of
armed bank robbery and four counts of bank robbery
pursuant to 18 U.S.C. § 2113(d) and (a), and was
sentenced to one hundred twenty (120) months on each
count to run concurrently on November 23, 2009. (J. at 2,
Doc. 45). Verdekal did not appeal this sentence.
Petitioner alleges the following, additional facts.
Verdekal informed his attorney in the Columbia County
action, Attorney Leslie Bryden, that he intended to plead
guilty on both the federal and state charges and asked for
strategic advice in doing so. Attorney Bryden informed
Verdekal that a plea on the federal charges would not
impact his Columbia County sentence, but that he would
need to consult with his federal attorney to determine
whether the inverse was also true. He did, and Attorney
Helbig similarly [*3] informed Verdekal that a plea in

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2011 U.S. Dist. LEXIS 149616, *3

Columbia County would not impact his sentence on the
federal charges. Relying on this representation, Verdekal
pled guilty on the Columbia County charges prior to
pleading on the federal charges. However, as a result, and
contrary to Attorney Helbig's representation, Petitioner's
criminal history category on the federal charges was
enhanced by three points due to his guilty plea in
Columbia County.
On November 24, 2010, Verdekal filed his Motion to
Vacate pursuant to 28 U.S.C. § 2255. In his Motion, he
brought two claims of ineffective assistance of counsel.
First, Petitioner contends that if Attorney Helbig had
advised him properly of the effect of pleading guilty in
Columbia County, he would not have pled there prior the
federal plea, which would have resulted in "a more
favorable criminal history category of III and a guideline
sentence of 87-108 months." (Mot. at 16, Doc. 49).
Secondly, Verdekal claims that the sentencing court
improperly found his criminal history to fall within
category IV of the U.S. Sentencing Guidelines Manual.
Specifically, he believes that under §4A1.1 of the
Guidelines, an earlier contempt of court charge in
Luzerne County [*4] should only have enhanced his
criminal history by one point instead of two actually
imposed.
On February 25, 2011, the Court directed Verdekal
to make a "Miller" election, informing Verdekal that his
Section 2255 claim would either be ruled on as filed,
possibly foreclosing future avenues of relief, or allowing
him an opportunity to withdraw and re-file the Motion.
See United States v. Miller, 197 F.3d 644, 652 (3d
Cir.1999). Verdekal elected to have the Court review his
Petition as filed, but moved on April 28, 2011 to amend
his Motion. (Doc. 54). In his Motion to Amend, Verdekal
further argues that if Attorney Helbig had properly
advised him about the effect of pleading in the Columbia
County matter, he would have exercised his right to a
jury trial in the federal action against him.
I. Standard of Review
Motions made under 28 U.S.C. § 2255 are a form of
habeas corpus, and "are the presumptive means by which
federal prisoners can challenge their convictions or
sentences that are allegedly in violation of the
Constitution." Okereke v. United States, 307 F.3d 117,
120 (3d Cir. 2002). Section 2255 allows prisoners to
collaterally attack their sentence by moving "the court
which imposed [*5] the sentence to vacate, set aside or

correct the sentence." 28 U.S.C. § 2255(a). In order to
prevail on a § 2255 motion, a petitioner must show "(1)
an error of constitutional magnitude; (2) a sentence
imposed outside the statutory limits; or (3) an error of
fact or law that was so fundamental as to render the entire
proceeding invalid." Mallett v. United States, 334 F.3d
491, 496-97 (6th Cir.2003). The remedy is intended only
where "the claimed error of law was 'a fundamental
defect which inherently results in a complete miscarriage
of justice.'" Davis v. United States, 417 U.S. 333, 346, 94
S. Ct. 2298, 41 L. Ed. 2d 109 (1974) (quoting Hill v.
United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed.
2d 417 (1962)).
Section 2255(b) generally entitles a petitioner to a
hearing on their motion:
Unless the motion and the files and
records of the case conclusively show that
the prisoner is entitled to no relief, the
court shall cause notice thereof to be
served upon the United States attorney,
grant a prompt hearing thereon, determine
the issues and make findings of fact and
conclusions of law with respect thereto. If
the court finds that the judgment was
rendered without jurisdiction, or that the
sentence imposed was not authorized by
law or otherwise [*6] open to collateral
attack, or 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, the court
shall vacate and set the judgment aside
and shall discharge the prisoner or
resentence him or grant a new trial or
correct the sentence as may appear
appropriate.
28 U.S.C. § 2255(b). Whether to conduct such a hearing
is within the discretion of the district court. U.S. v. Clive,
Criminal No. 05-0383, 2008 U.S. Dist. LEXIS 63357,
2008 WL 3889726 at *3 (W.D. Pa. Aug. 19, 2008). Rule 4
of the Rules Governing Section 2255 Proceedings for the
United States District Courts instructs that if "it plainly
appears from the motion, any attached exhibits, and he
record of prior proceedings that the moving party is not
entitled to relief, the judge must dismiss the motion." In
such instances, an evidentiary hearing is not required.
Gov't of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075

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2011 U.S. Dist. LEXIS 149616, *6

(3d Cir. 1985).
II. Motion to Amend
The Federal Rules of Civil Procedure apply fully to
motions to amend habeas corpus motions. United States
v. Duffus, 174 F.3d 333, 336 (3d Cir. 1999). As such, the
Court may give leave to amend such motions, and should
[*7] freely do so "when justice so requires." Fed.R.Civ.P.
15(a)(2). The Supreme Court has encouraged generous
application of this rule generally, allowing leave to
amend "in the absence of evidence of 'undue delay, bad
faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing
party by virtue of allowing the amendment [or] futility of
amendment.'" Duffus, 174 F.3d at 337 (citing Foman v.
Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222,
(1962)). Of course, pro se filings, such as Verdekal's
Motions, are to be construed liberally. Hartmann v.
Carroll, 492 F.3d 478, 482 n.8 (3d Cir. 2007).
In the instant case, the Court sees no bad faith,
dilatory motive, or undue prejudice in allowing Verdekal
leave to amend his Section 2255 Motion. Moreover, upon
reviewing his Motion to Amend, it appears that Verdekal
was attempting not to supplant his original Motion, but to
supplement it. Specifically, the Motion to Amend brought
a new assistance of counsel claim, alleging that Verdekal
would have exercised his right to trial in the federal
matter if Attorney Helbig had correctly appraised him of
the three point enhancement derived [*8] from his
pleading guilty at the state court level. While this claim is
somewhat derivative of the first ground for ineffective
assistance of counsel in his original Motion-that Verdekal
would not have pled guilty to the Columbia County
charges prior to the federal charges but-for his attorney's
inaccurate analysis-the Court does not find that this
additional claim is entirely redundant or futile.
The difference between these two claims is subtle,
but important. In its brief, the United States seizes upon
that Verdekal knew he faced a maximum sentence of 130
years imprisonment when he pled to the federal charge,
and that Verdekal could not have therefore been misled
or misadvised by Attorney Helbig as to the effect of the
his guilty plea at the state level. (Resp't's Br. at 12, Doc.
60). However, the United States has not briefed the issues
from the original § 2255 Motion, namely that Attorney
Helbig's misinformation allegedly caused Verdekal to
enter a plea at the Court of Common Pleas to his

detriment. The Court expresses no opinion as to the
viability of this particular claim, but believes that
Verdekal did not intend to waive it in filing his Motion to
Amend and that it should be [*9] properly briefed by
both parties before considering it on the merits. 1
1
The United States did address this issue
briefly, summarily that it is "within the range of
ordinary competence for an attorney to advise a
client to plead guilty to a state offense where the
evidence was apparently very strong." (Resp't's
Br. at 12, Doc. 60). The issue is not, however,
whether Verdekal was improperly advised to
plead guilty at the Court of Common Pleas, but
whether he was inaccurately informed when doing
so.
Moreover, the Court can find no indication that, by
filing a Motion to Amend, Verdekal was attempting to
waive the second ground he claimed for ineffective
assistance of counsel in his original Motion--that
Attorney Helbig failed to correct an enhancement made
in error under §4A1.1 of the U.S. Sentencing Guidelines
Manual. It may well be the case that, as the United States
claims, this issue is precluded by Verdekal's failure to
appeal. See United States v. Essig, 10 F.3d 968, 979 (3d
Cir. 1993) ("The procedure for registering objection to
errors in a sentencing proceeding is no longer obscure,
and § 2255 is no longer a necessary stand-in for the direct
appeal of a sentencing error because full [*10] review of
sentencing errors is now available on direct appeal.").
However, this claim also deserves a proper briefing by
both parties before the Court determines if Verdekal is
entitled to such relief.
Therefore, the Court will allow Verdekal's Motion to
Amend his Section 2255 Motion and will direct both
parties to submit complete briefs on the claims presented
therein.
CONCLUSION
The Court will allow Verdekal leave to amend his
Section 2255 Motion and will construe both the original
Motion and the Motion to Amend as a singular Motion to
Vacate, Set Aside, or Correct a Sentence by a Person in
Federal Custody pursuant to 28 U.S.C. § 2255. The Court
believes that allowing this amendment is within the
interests of justice as once a Section 2255 motion is
decided on the merits, a party is generally precluded from
filing a subsequent 2255 Motion, even on grounds not

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2011 U.S. Dist. LEXIS 149616, *10

considered in the prior motion. As the United States
elected to construe Verdekal's April 28, 2011 Motion to
Amend (Doc. 54) as superceding the original Motion
(Doc. 49), both parties will be given leave to file full
briefs pertaining to Verdekal's claims. An appropriate
order follows.
December 22, 2011
Date
/s/ A. Richard Caputo
A. Richard Caputo [*11]
United States District Judge

date of this Order, the United States shall
respond to the allegations in Petitioner's
28 U.S.C. § 2255 Motion (Docs. 49 and
54);
(2) Petitioner shall, if he so desires,
submit a reply to the United States's
response within twenty-one (21) days of
its filing;
(3) A determination of whether
Petitioner shall be produced for a hearing
will be held in abeyance pending
submission of a response.

ORDER

/s/ A. Richard Caputo

NOW, this 22nd day of December, 2011, IT IS
HEREBY ORDERED THAT:

A. Richard Caputo
United States District Judge

(1) Within twenty-one (21) days of the