FOLEY v. USA
Filing
2
MEMORANDUM OPINION AND ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255): AND NOW, this 27th Day of September, 2011, for the reasons set forth in the accompanying Memorandum Opinion, IT IS HEREBY ORDERED that the Defendant's Motion to Vacate Judgment under 28 U.S.C. § 2255 244 shall be, and hereby is, DENIED. Inasmuch as the Defendant has failed to make a substantial showing of the denial of any constitutional right, IT IS FURTHER ORDERED that no certificate of appealability shall issue. Signed by Judge Sean J. McLaughlin on 09/27/2011. (kas)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
)
)
)
)
)
v.
MAURICE F. FOLEY
Case No. 1:04-cr-36-SJM
MEMORANDUM OPINION
McLAUGHLIN, SEAN J., District J.,
Defendant Maurice F. Foley pleaded guilty to conspiracy to traffick in 100
kilograms or more of a mixture and substance containing a detectable amount of
marijuana and100 or more marijuana plants and the use and carrying of a firearm
during and in relation to a drug trafficking crime. He was sentenced to an aggregate
term of 330 months‟ imprisonment.
Presently pending before the Court is Foley‟s motion to vacate his sentence
pursuant to 28 U.S.C. § 2255. Because we conclude that the “files and records of the
case conclusively show that the prisoner is entitled to no relief,” 28 U.S.C. § 2255(b), his
motion will be denied.
I.
BACKGROUND
On August 10, 2004, a grand jury sitting in this district returned a 16-count
indictment against Foley and various other individuals charging them with a host of
drug-related crimes. In relevant part, the indictment accused Foley of conspiring with
seven other individuals to distribute and possess with the intent to distribute more than
1
100 kilograms of marijuana and 100 or more marijuana plants (Count I). In addition,
Foley was charged with one count of distribution and possession with intent to distribute
methamphetamine (Count II), one count of using and carrying a firearm during and in
relation to a drug trafficking crime (Count III), one count of possession of a firearm by a
convicted felon (Count IV), one count of identity theft in connection with the drug
trafficking conspiracy (Count VI), and ten counts of money laundering (Counts VII
through XVI).1
On April 29, 2005, in accordance with a written plea agreement, Foley entered a
plea of guilty to the conspiracy charge at Count I and the firearms charge at Count III.
Pursuant to Paragraph 7 of the agreement, Foley agreed to waive his rights to direct
appeal and collateral attack of the judgment as follows:
7.
MAURICE FRANCIS FOLEY waives the right to take a direct appeal from
his conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742, subject
to the following exceptions:
(a) If the United States appeals from the sentence, MAURICE FRANCIS
FOLEY may take a direct appeal from the sentence.
(b) If (1) the sentence exceeds the applicable statutory limits set forth in the
United States Code, or (2) the sentence unreasonably exceeds the
guideline range determined by the Court under the Sentencing Guidelines,
MAURICE FRANCIS FOLEY may take a direct appeal from the sentence.
(c) As a condition of his guilty plea, MAURICE FRANCIS FOLEY may take a
direct appeal from his conviction limited to the following issue: whether his
motion to suppress was properly denied. If MAURICE FRANCIS FOLEY
takes a direct appeal raising this issue and prevails in the appeal, he may
withdraw his plea of guilty. If he does not take a direct appeal or does not
prevail in the appeal, the plea of guilty shall stand.
The foregoing reservations of the right to appeal on the basis of specified
issues do not include the right to raise issues other than those specified.
1
Count V of the indictment pertained only to Jeffrey Scott Artello, one of Foley‟s co-Defendants.
2
MAURICE FRANCIS FOLEY further waives the right to file a motion to
vacate sentence, under 28 U.S.C. §2255, attacking his conviction or
sentence, and the right to file any other collateral proceeding attacking
his conviction or sentence.
(See Ex. A to Govt.‟s Response to Def.‟s §2255 Mot. [256-2] at pp.3-4 (emphasis
added).)2 At the time that he entered into this agreement and pleaded guilty, Foley was
represented by Attorney David Schroeder.
On July 28, 2005, this Court held a sentencing hearing. After ruling on Foley‟s
objections to the presentence investigative report, the Court determined that the total
offense level under the applicable guidelines was 33 and the appropriate criminal
history category was VI. Given these determinations, the suggested guideline range as
to Count I was 235 to 293 months‟ imprisonment. As to Count III, the guideline range
was 60 months of incarceration, to run consecutively to Count I.3 Based on its
consideration of the guidelines range and the relevant sentencing factors under 18
U.S.C. § 3553(a), this Court sentenced Foley to an aggregate prison term of 330
months comprised of 270 months at Count I and 60 (consecutive) months at Count III.
Foley subsequently took an appeal, claiming that this Court erred in denying his
motion to suppress physical evidence and in failing to adequately articulate the reasons
for its sentence. On February 27, 2007, the Third Circuit Court of Appeals affirmed
Foley‟s conviction and sentence, see United States v. Foley, 218 Fed. Appx. 139 (3d
2
All citations to the record herein will refer to the official CM/ECF pagination noted at the top of the
referenced document rather than to the original pagination appearing internally within the referenced
document.
3
Foley‟s sentence was computed based upon the 2004 version of the U.S. Sentencing Guidelines.
3
Cir. 2007), and on May 11, 2007, Foley‟s Petition for Rehearing En Banc was denied.
His petition for a writ of certiorari was later denied by the U.S. Supreme Court.
On May 22, 2008, Foley filed the instant motion, pro se. In it, Foley claims that
Attorney Schroeder was ineffective in that he: (1) failed to challenge the Court‟s
criminal history calculation; (2) failed to inform Foley of possible sentencing
enhancements prior to his plea; and (3) failed to raise certain “meritorious claims” at
time of sentencing which would have mitigated his culpability.
The Government has responded to Foley‟s § 2255 motion by way of two
arguments. First, the Government contends that the motion is barred by virtue of
Foley‟s waiver of his collateral review rights as set forth in the plea agreement. Second,
the Government contends that Foley‟s substantive arguments fail because no
ineffectiveness on the part of Mr. Schroeder can be demonstrated on this record.
Foley filed a reply to the Government‟s response and, thereafter, Attorney John
Mead was appointed to represent him. Mr. Mead has since amended Foley‟s motion so
as to incorporate a reference to United States v. Williams, 558 F.3d 166 (2d Cir. 2009),
wherein the Second Circuit Court of Appeals held that the 5-year mandatory minimum
sentence for possession of a firearm in furtherance of a drug trafficking crime did not
apply to a defendant who was subject to a 10-year mandatory minimum sentence on
the underlying drug trafficking crime. The Government has responded, and the matter
is now ripe for adjudication.
4
II.
A.
DISCUSSION
Foley‟s Waiver of Collateral Review Rights
We first consider the effect of the plea agreement language by which Foley
waived his right to obtain collateral review of his sentence pursuant to 28 U.S.C. §2255.
Our circuit court of appeals has said the following with respect to such provisions:
Waivers of collateral review are valid depending on “the (1) knowing and
voluntary nature, based on what occurred and what defendant contends, and (2)
whether enforcement would work a miscarriage of justice.” United States v.
Mabry, 536 F.3d 231, 237 (3d Cir.2008). Defendant bears the burden “of
presenting an argument that would render his waiver unknowing or involuntary.”
Id.
We have declined to enumerate specific instances where waivers are per
se invalid and instead examine whether the waiver was knowing and voluntary in
light of:
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.
[United States v.] Khattak, 273 F.3d [557, 563 (3d Cir. 2001)] (internal quotations
and alteration omitted).
U.S. v. Padilla-Castro, 2011 WL 1667167 at *1-2 (3d Cir. May 4, 2011). The
miscarriage-of-justice exception, it has been said, “should be applied „sparingly and
without undue generosity.‟” United States v. Ligons, 395 Fed. Appx. 916, 918 (3d Cir.
2010) (quoting United States v. Wilson, 429 F.3d 455, 458 (3d Cir. 2005)). It should not
be used as an avenue to pursue “garden-variety claims of error.” United States v.
Teeter, 257 F.3d 14, 26 (1st Cir. 2001) (cited in Watts v. United States, 386 Fed. Appx.
245, 249 (3d Cir. July 13, 2010).
5
In determining whether the waiver a knowing and voluntary, we must also
consider whether our plea colloquy conformed to the mandates of Rule 11 of the
Federal Rules of Criminal Procedure. United States v. McKoy, 350 Fed. Appx. 732, 735
(3d Cir. 2009) (quoting United States v. Mabry, 536 F.3d 231, 239 (3d Cir. 2008)).
Pursuant to Rule 11(b)(1)(N), the district court‟s plea colloquy must “inform the
defendant of, and determine that the defendant understands, ... the terms of any pleaagreement provision waiving the right to appeal or to collaterally attack the sentence.”
Fed. R. Crim. P. 11(b)(1)(N).
Here, Foley contends that he was misled and/or coerced into entering the plea
agreement by virtue of: (i) counsel‟s assurances that Foley would face a sentence of no
more than 16 years if he pleaded guilty; (ii) counsel‟s representations that the sentence
of Foley‟s co-defendant, John Kirkpatrick, would be much greater if Foley did not plead
guilty; and (iii) the fact that Foley was under the effect of medications at the time of the
plea hearing. Notably, Foley is not contending that his guilty plea was defective by
virtue of a Rule 11 error.
Nevertheless, we independently consider the requirements of Rule 11 and
conclude that the Court‟s colloquy did not include the requisite discussion concerning
Foley‟s waiver of appellate and post-conviction collateral rights. Since Foley did not
object at the time of his plea or sentencing to any Rule 11 error, this defect may not
serve as a basis for setting aside Foley‟s guilty plea unless he can satisfy, in light of the
whole record, that: (1) this Court committed an error, (2) that is plain or obvious, and (3)
which affects his substantial rights. United States v. Goodson, 544 F.3d 529, 539 (3d
Cir.2008) (citing Johnson v. United States, 520 U.S. 461, 467 (1997)). “If all three
6
conditions are met, an appellate court may then exercise its discretion to notice a
forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Id. (quoting Johnson, 520 U.S. at 467) (internal
quotation marks omitted). See also McKoy, 350 Fed. Appx. at 735.
Based on the technical violation of Rule 11 which exists here, we will assume
that the first two prongs (i.e., plain error) have been established. Yet, our inquiry does
not stop there.
Rather, we must determine whether Foley has demonstrated “that the deficient
colloquy affected his substantial rights by precluding him from knowing of and
understanding the significance of the binding … waiver in the plea agreement.”
Goodson, 544 F.3d at 540. See also United States v. Long, 304 Fed. Appx. 982, 984
(3d Cir. 2008) (defendant bears the burden of persuasion with respect to whether an
alleged Rule 11 error affected his substantial rights) (citing Goodson, 544 F.3d at 539).
Significantly, as we have noted, Foley does not even raise such a claim in his §2255
motion, much less has he attempted to prove the point. He also made no such claim in
his direct appeal where, to the contrary, he expressed his awareness of the appellate
waiver provision but attempted to get around it by arguing to the circuit court that the
particular sentencing challenge he was raising on appeal fell within an exception to the
waiver provision.
In any event, though, the record as a whole does not support the conclusion that
the deficiencies in this Court‟s plea colloquy precluded Foley from knowing of and
understanding the significance of the provision waiving his post-conviction collateral
rights. At the time of his guilty plea, Foley was a thirty-two year old man with a high
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school diploma equivalency who could communicate in English with his counsel, as
both Foley and his attorney verified. This Court, with both counsels‟ agreement, found
him to be competent. During the plea proceedings, the prosecutor discussed the terms
of the appellate waiver provision. Although he did not recite or specifically discuss the
provision that waived Foley‟s collateral rights under §2255, the prosecutor did recite the
various exceptions to the appellate waiver language, including an exception which
allowed Foley to challenge on appeal this Court‟s adverse ruling on his suppression
motion. The fact that these exceptions -- particularly the reservation of Foley‟s right to
challenge this Court‟s suppression ruling -- were written into the plea agreement
suggests that they were of particular importance to Foley and specifically bargained for
by him. (The importance of the suppression issue to Foley is further demonstrated by
the fact that it formed his primary issue on appeal.) The fact that the prosecutor
specifically discussed these exceptions to the appellate waiver clause during the plea
colloquy reinforces the notion that Foley would have been aware of the impact which
the plea agreement had on his ability to later attack his plea and sentence. I am
persuaded that the exception in the appellate rights waiver clause preserving Foley‟s
right to appeal this Court‟s suppression ruling, which was his primary challenge on
appeal, demonstrates that Foley knew of the appellate waiver and its terms, and
comprehended its significance.
In addition to the foregoing, the plea colloquy shows that Foley unequivocally
acknowledged having read and reviewed the plea agreement before coming to court.
Foley further acknowledged that he had discussed the agreement with his attorney and
that he was in full agreement with all of its terms and conditions as indicated by his
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signature on the document. Importantly, the following language appears immediately
above Foley‟s signature on the final page of the plea agreement:
I have received this letter from my attorney, David A. Schroeder, Esquire,
have read it and discussed it with him, and I hereby accept it and
acknowledge that it fully sets forth my agreement with the Office of the
United States Attorney for the Western District of Pennsylvania. I affirm
that there have been no additional promises or representations made to
me by any agents or officials of the United States in connection with this
matter.
(Govt.‟s Response to Def.‟s Motion under § 2255 [256-1] at p. 6.)
Based on all of the foregoing considerations, I conclude that Foley has failed to
demonstrate that this Court's Rule11 error precluded him from “knowing of and
understanding the significance of the binding [§ 2255] waiver in the plea agreement.”
Goodson, 544 F.3d at 540. Thus, Foley cannot show that his substantial rights were
affected by the technical violation of Rule 11(b)(1)(N).
I further conclude that Foley‟s substantial rights were not impaired by virtue of
any of the other alleged deficiencies in the plea proceedings. Specifically, I reject
Foley‟s arguments that his guilty plea was rendered unknowing and/or involuntary by
virtue of: (i) his counsel‟s assurances that Foley would face a sentence of no more than
16 years if he pleaded guilty; (ii) counsel‟s representations that the sentence of Foley‟s
co-defendant, John Kirkpatrick, would be much greater if Foley did not plead guilty; and
(iii) the fact that Foley was under the effect of medications at the time of the plea
hearing.4
4
Our Circuit Court of Appeals has not yet determined whether the ineffective assistance of counsel will
always, as a per se matter, invalidate a waiver of appellate or collateral review. See United States v.
Padilla-Castro, No. 09-4216, 2011 WL 1667167 at *2 (3d Cir. May 4, 2011) (citing United States v.
9
First, Foley cannot demonstrate on this record that his plea was induced by false
assurances that his term of imprisonment would not exceed sixteen years. During its
colloquy, this Court specifically informed Foley that Count I carried a maximum term of
imprisonment of 40 years and Count III carried a mandatory minimum prison sentence
of five years, consecutive to any other term of incarceration, and a maximum term of life
imprisonment. Foley acknowledged his awareness of these maximum penalties. (Plea
colloquy [186] at pp. 14-17.) Foley stated under oath that he was not changing his plea
“under duress or complaint or unwillingly.” (Id. at p. 20.) He specifically disavowed the
claim that anyone had made any promises to him in order to induce his plea aside from
what was stated in the plea agreement. (Id.) He was specifically advised, and indicated
his understanding, that this Court would not be able to determine the advisory guideline
sentencing range until after the presentence report had been completed and the
government had had the opportunity to challenge the report. (Id. at p. 23.) Foley was
also specifically advised and acknowledged that the Court could, under certain
circumstances, decide to impose a sentence that would be more severe than that called
for by the guidelines and that, in the event that the sentence was more severe than
expected, Foley would still be bound by his guilty plea. (Id. at 23-24.) Under oath,
Foley expressly denied that anyone had made predictions or promises to him
concerning what his sentence would be, and he further denied that the Court had in any
way suggested what his sentence might be. (Id. at pp. 24-25.)
Shedrick, 493 F.3d 292, 298 n. 6 (3d Cir. 2007)). Regardless, however, for the reasons discussed in this
Memorandum Opinion we find no basis for finding ineffectiveness on the part of Foley‟s counsel.
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Second, Foley cannot demonstrate on this record that his guilty plea was
coerced or induced by representations that his failure to plead guilty would result in a
much higher sentence for his co-Defendant, Kirkpatrick. Again, Foley specifically
disavowed the idea, both at the plea hearing and in his acknowledgment on the written
agreement, that his plea had been induced by promises outside of what was contained
in the agreement itself. With respect to Kirkpatrick, the record reflects the following
exchange concerning a letter which Foley had written prior to his change of plea:
THE COURT: Let me ask you a couple questions about the letter which I read
into the record earlier. Where you indicated that in part, “I don‟t think we should proceed
to trial when we have not exhausted our attempts to reach a plea agreement, which I still
think is possible. Please understand my situation.” That letter, is it accurate to say, as
your lawyer informed me, was written at a time before you had an opportunity to further
discuss your plea agreement with your counsel?
THE DEFENDANT: Yes, I just met with him and the other lawyer, Tim Lucas. I
had all these big decisions to make like really fast, I was just kind of confused at the time.
THE COURT: All right. You‟re not confused now, are you?
THE DEFENDANT: No, it‟s all right now.
THE COURT: And the fact that you are proceeding with your change of plea
today, you are not doing that under duress or complaint or unwillingly, is that correct?
THE DEFENDANT: That‟s correct.
THE COURT: All right. And you don‟t need anymore [sic] time to think about it,
is that right?
THE DEFENDANT: No.
THE COURT: All right. Has anybody made any promise, other than the plea
agreement, that has caused you to plead guilty today?
THE DEFENDANT: I don‟t know if it would be called a promise, concerning my
co-defendant, he was to get reduced charges and stuff.
THE COURT: Run that by me again?
THE DEFENDANT: Concerning my co-defendant, John Kirkpatrick, there were
certain things, he was going to get certain things.
THE COURT: I don‟t know what you‟re talking about, what do you mean?
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MR. SCHROEDER: Your Honor, if I may. As I indicated to you earlier, Attorney
Lucas, who represents Mr. Kirkpatrick, and myself visited with Mr. Foley Monday. And
we discussed what Mr. Kirkpatrick‟s plea was going to be, what the stipulations of the
government were going to be with respect to that. That‟s what Mr. Foley is referring to.
THE COURT: Okay. But is that what you were talking about, Mr. Foley?
THE DEFENDANT: Yes.
THE COURT: But no one, whether it be a lawyer or the U.S. Attorney or
anybody else in the world, has promised you anything beyond what was represented in
the plea agreement, in return for your guilty plea, is that correct?
THE DEFENDANT: That’s correct.
(Plea Colloquy [186] at pp. 19-22 (emphasis added).) In my view, the Court‟s colloquy,
coupled with Foley‟s written acknowledge on the plea agreement, was sufficient to
dispel any concerns that Foley‟s guilty plea was induced by promises concerning how
his co-Defendant, Mr. Kirkpatrick, would be treated.
Third, Foley cannot show that his plea was rendered unknowing and/or
involuntary by virtue of medication that he had taken prior to entering his plea. Foley
was specifically questioned on this point during the plea hearing:
THE COURT: Have you taken any drugs or medication or drunk any alcoholic
beverages in the past 24 hours?
THE DEFENDANT: Just medication prescribed for me at the jail, nothing
significant.
THE COURT: Well, you tell me what they are?
THE DEFENDANT: Clonopin, Benadryl –
***
THE COURT: … Do any of those medications in any way effect [sic] your ability
to think clearly?
THE DEFENDANT:
No.
THE COURT: Are you now or have you recently been hospitalized or treated for
narcotic addiction?
THE DEFENDANT: No.
12
THE COURT: Do you understand what‟s happening here today?
THE DEFENDANT: Yep.
THE COURT: Does either counsel have any doubt about the competence of this
defendant to plead guilty at this time to the charge in the Indictment; Mr. Trabold?
MR. TRABOLD: No, your Honor.
THE COURT: Mr. Schroeder?
MR. SCHROEDER: No, your Honor.
THE COURT: I find the defendant is competent to plead.
(Plea Colloquy [186] at pp. 5-6.)
Thus, during his plea colloquy, Foley specifically disavowed being under the
influence of any drug that would have affected his ability to think clearly and understand
the proceedings. Moreover, the drugs that he had ingested were administered by
prison staff, a fact which supports the inference that Foley‟s medications and dosages
were appropriate. Apart from that fact, however, this Court had the ability to observe
Foley first-hand during the proceedings. There was nothing about Foley‟s actions,
demeanor, or manner of speaking which suggested to the Court either that he lacked
the ability to fully understand the nature and consequences of his plea or that he was
entering his plea involuntarily. In addition, neither defense counsel nor the prosecutor
had any concerns about Foley‟s competence to change his plea. Accordingly, there is
no basis to conclude that Foley‟s medication on the day of his guilty plea rendered the
plea defective. See, e.g., United States v. Tuso, No. 10-4523, 2011 WL 2516054 (3d
Cir. June 24, 2011) (defendant‟s waiver of her right to deny the charges against her in a
supervised release hearing and put the government to its burden of proof was valid
notwithstanding her prior ingestion of medication, where the defendant was questioned
and had specifically denied that her medications interfered with her ability to understand
13
and perceive events and had affirmed that she understood what was happening at her
hearing and defendant‟s counsel had not doubted her client‟s competence to proceed).
In sum, I conclude that Foley‟s entry of a guilty plea in accordance with the terms
of his written plea agreement, including his waiver of rights under § 2255, was
undertaken knowingly and voluntarily. I further conclude that the subject waiver of
collateral rights provision applies to the challenges raised in the instant §2255 motion.
Finally, I conclude that enforcement of the waiver provision would not give rise to a
miscarriage of justice because Foley is merely attempting to litigate “garden-variety
claims” of ineffectiveness of counsel. Accordingly, Foley‟s substantive §2255 claims
should be barred by the waiver or collateral rights provision in his written plea
agreement.
B. Foley‟s Ineffectiveness of Counsel Claim
Even if Foley had not waived his right to bring the instant motion, however, his
substantive claims fail on the merits. Foley has claimed that his conviction and
sentence should be set aside because his attorney was ineffective in the following
respects: (1) failing to challenge the Court‟s criminal history calculation; (2) failing to
inform Foley of possible sentencing enhancements prior to his plea; and (3) failing to
raise any meritorious claims or 18 U.S.C. §3553 factors at time of sentencing which
would have mitigated his culpability.
To demonstrate ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984), Foley must demonstrate that his counsel's
performance “fell below an objective standard of reasonableness” and also “a
14
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. at 688. When the defendant has pleaded
guilty, he must show that his counsel provided “information that proves to be grossly
erroneous and ... that he would not have plead[ed] guilty in the absence of the
erroneous information.” Meyers v. Gillis, 142 F.3d 664, 666 (3d Cir.1998). With respect
to counsel‟s alleged errors during the sentencing process, Foley must establish
prejudice by showing that counsel‟s alleged ineffectiveness resulted in a longer
sentence than the Court otherwise would have imposed. See United States v. Tiggett,
421 Fed. Appx. 253, 255 (3d Cir. April 5, 2011) (where prisoner claimed that his counsel
was ineffective for failing to raise appellate challenge to prisoner‟s criminal history
score, prisoner would have to show that his counsel's alleged errors “caused a longer
sentence to be imposed”). Here, Foley cannot establish a Sixth Amendment violation in
connection with either his plea or his sentence.
(1) Counsel’s Alleged Failure to Challenge the Criminal History
Calculations
Foley‟s first claim as to the ineffectiveness of his counsel pertains to Mr.
Schroeder‟s alleged failure to challenge two offenses contained in the presentence
investigative report (“PSR”), each of which respectively contributed one point toward
Foley‟s criminal history calculation.5 The first challenged offense appears at Paragraph
62 of the PSR and pertains to a retail theft charge to which Foley reportedly pled guilty
5
Because of the Probation and Pretrial Services Office‟s calculation that Foley‟s record warranted 13 total
criminal history points, he was assigned a Criminal History Category of VI. This category VI rating,
coupled with the total offense level of 33, produced an advisory guideline range of 235 to 293 months of
imprisonment. Discounting either one of the offenses which Foley now challenges would have reduced
his total criminal history points and resulted in a lower Criminal History Category rating, thus producing a
different advisory guidelines range.
15
on October 27, 1992 before a magisterial district justice. That same day, Foley was
sentenced to fines and costs. (PSR at p. 24, ¶ 62.) According to the PSR, Foley was
arrested for this offense on August 31, 1992.
Foley contends that this offense was improperly attributed to him and that he
could not have committed it inasmuch as he was in jail as of August 31, 1992 serving
time for a different offense. Foley further contends that, “since his father and brother
both have the first name of Maurice, … this case may have been inadvertently …
placed on his NCIC rap sheet.” (Mem. of Law in Supp. of Mot. to Vacate Sentence
[244] at p. 6.) He maintains that it was apparent from the face of the PSR that he could
not have committed this retail theft offense and that his counsel therefore should have
challenged it.
This theory is flawed and fails to establish any ineffectiveness on the part of
Foley‟s counsel. As the Government points out, the fact that Foley was reportedly
arrested on August 31, 1992 does not mean that the crime in question occurred on that
date. In fact, as the PSR indicates, this particular matter was commenced by the filing
of a private criminal complaint for retail theft. The private criminal complaint was filed
on December 2, 1991, as is indicated on the Magisterial District Court‟s official Order
Imposing Sentence. (See Suppl. to Govt.‟s Response to §2255 Mot [277].) Thus, the
criminal conduct had to have occurred on or before December 2, 1991. Foley makes no
claim that he was imprisoned as of this time frame (and it does not appear that he was),
so even if Mr. Schroeder had pursued this particular challenge at the time of Foley‟s
sentencing, there is no reason to believe it would have been successful.
16
Moreover, the challenged retail theft offense was listed on Foley‟s NCIC report,
as the PSR makes clear. Because NCIC entries are based on fingerprint verification,
Foley‟s speculation that perhaps his father or brother actually committed this crime and
it got listed on his rap sheet by mistake is specious. Accordingly, Foley cannot
demonstrate that Mr. Schroeder‟s representation in this regard fell below the
constitutionally minimum standard of professionalism, nor can he show that he was
prejudiced by his counsel‟s conduct. See Parrish v. Fulcomer, 150 F.3d 326, 328 (3d
Cir.1998) (counsel cannot be ineffective for failing to raise a meritless argument).
The second challenged offense is set forth in paragraph 63 of the PSR and
pertains to charges of petty larceny and criminal mischief for which Foley was reportedly
arrested on July 24, 1994 in New York State and sentenced to time served. (PSR at p.
24, ¶ 63.) According to the PSR:
Information provided by the Pomfret Justice Court, Fredonia, New York,
indicates that the defendant, using the name of Joseph R. Long, was
arrested by the Pomfret Town Police Department, Fredonia, New York, on
July 24, 1994, and was charged with the afore-noted offenses. On that
same date, he appeared in the Pomfret Justice Court and was sentenced
as previously indicated.
(Presentence Report at p. 24, ¶ 63.)
As to this offense, Foley now contends that “there was absolutely no evidence to
demonstrate that the individual, Joseph Long, arrested and convicted for petty larceny
in Pomfret, New York was in fact Foley.” (Mem. of Law in Supp. of Mot. to Vacate
Sentence [244] at p. 6.) Foley maintains that the “criminal record and court papers,”
including the indictment, “never indicated that Long and Foley were one and the same
individual or that Foley ever use the alias „Joseph Long.‟” (Id.) Foley insists that his
17
counsel was ineffective because he conceded the validity and use of this offense in
calculating Foley‟s criminal history calculation rather than putting the Government to its
burden of proof.
Tellingly, Foley does not claim in his papers that he actually raised this issue with
Mr. Schroeder. Rather, it seems to be Foley‟s argument that Mr. Schroeder should
have realized on his own that the Government had not established, and would not be
able to prove, a connection between Foley and “Joseph R. Long.”
Once again, Foley‟s argument is specious. For one, it is clear that Mr. Schroeder
challenged the Court‟s use of the Pomfret, New York offense (as well as the Court‟s use
of the retail theft offense set forth in Paragraph 62 of the PSR) in its criminal history
calculation, albeit on different grounds: that is, Mr. Schroeder argued that the offenses
in question were too remote to be factored into the criminal history analysis. As the
Government points out, this objection by the defense was a major point of discussion
during Foley‟s sentencing proceedings, yet Foley apparently never raised with Mr.
Schroeder or with this Court the claim he is now making – that someone else besides
him committed the larceny offense in question. Unlike a purely legal argument, which is
uniquely within the ken of an attorney, Foley‟s claim of misidentification is the type of
purely factual claim which was more likely to be known by him than anyone else, yet he
apparently never thought to make an issue of it at the time of his sentencing. Under
these circumstances, the Court would be disinclined to conclude that Mr. Schroeder‟s
failure to discover this issue on his own amounts to constitutionally deficient legal
representation.
18
Furthermore, it is unlikely the argument would have been successful, even if Mr.
Schroeder had chosen to pursue it. Again, the Pomfret, New York offense, and the
alias “Joseph R. Long” were derived from Foley‟s NCIC rap sheet, and verification and
details of the case disposition were requested and obtained from the Pomfret Town
Court. Since entries to a person‟s NCIC rap sheet are made pursuant to fingerprint
verification, it is highly unlikely that Foley could have prevailed on his claim of mistaken
identity, even if Mr. Schroeder had pursued this line of argument at time of sentencing.
Foley has presented no other basis for striking the offense from his criminal history
calculation other than his assumption that no connection would have been proven by
the Government if the Government had been challenged on this point. Foley‟s
argument is unpersuasive, and I therefore find no ineffectiveness on the part of Mr.
Schroeder in failing to make this challenge. I also find no prejudice, because Foley has
failed to show a reasonable probability that his sentencing proceeding would have
turned out differently, but for his counsel‟s alleged errors.
(2) Counsel’s Alleged Failure to Inform of Possible Sentencing
Enhancements
Foley‟s next claim of ineffectiveness pertains to Mr. Schroeder‟s alleged failure to
advise him about possible sentencing enhancements. Specifically, Foley claims that he
was not advised as to the possibility that he would receive a 2-point enhancement in his
offense level for obstruction of justice and a 4-point enhancement for being a leader or
organizer of the conspiracy. These enhancements were ultimately applied by the Court
and they significantly affected Foley‟s advisory guideline range. Foley claims that Mr.
Schroeder also failed to inform him that the enhancements could only be applied if the
19
necessary underlying facts were charged in the indictment and found to exist beyond a
reasonable doubt by a jury, in accordance with Apprendi v. New Jersey, 530 U.S. 466
(2000).
In addition to failing to advise him about these two enhancements, Foley claims,
Mr. Schroeder also repeatedly assured him that he would not receive a sentence
greater than sixteen (16) years of incarceration. Foley now contends that, had he
known the true amount of jail time that he was facing, he would not have pleaded guilty
and would have instead gone to trial. He claims that Mr. Schroeder‟s errant advice
caused him to effectively waive his rights to a jury trial under Apprendi.
Foley further insists that, even if he had gone to trial and lost, his combined
sentences would not have exceeded the 330 month aggregate sentence that he
received as a result of his guilty plea. He contends that the only benefit he received as
a result of his plea was a 3-point reduction for acceptance of responsibility which, he
claims, was negated by the 6-point enhancements he received for his obstruction-ofjustice and leadership role.
In sum, Foley claims that he “could not make an intelligent and knowing decision
with regards to his plea agreement based upon counsel‟s failure to inform him about the
enhancements, counsel‟s assurance that his sentence would not exceed 16 years, and
counsel‟s failure to inform him about the limited benefits of the dismissed counts.”
(Def.‟s Mem. of Law in Supp. of Mot. to Vacate Judgment [244] at p. 25.) All of this, he
claims, resulted in an enhanced sentence, to his prejudice.
Foley‟s theory is misguided in several respects. First, Foley is mistaken in
assuming that the enhancements could only be applied following specific findings by a
20
jury using the “beyond a reasonable doubt” standard. In point of fact, this objection was
raised at the time of his sentencing by Mr. Schroeder and was rejected by this Court.
(See Sentencing Tr. [185] at pp. 65-67.) As the law presently stands, Foley‟s theory is
clearly foreclosed by the Third Circuit‟s decision in United States v. Grier, 475 F.3d 556
(3d Cir.2007) (en banc). In that case, the court of appeals affirmed the district court‟s
decision to apply the preponderance-of-the-evidence standard to all facts relevant to the
sentencing guidelines, stating, there could be “no question,” in light of the holding in
United States v. Booker, 543 U.S. 220 (2005), and the reasoning of Apprendi, “that the
right to proof beyond a reasonable doubt does not apply to facts relevant to
enhancements under an advisory Guidelines regime.” 475 F.3d at 565. The court
reasoned that,
[b]y excising the provisions of the United States Code requiring mandatory
application of the United States Sentencing Guidelines, the Supreme
Court in Booker altered the constitutional impact of the Guidelines. None
of the facts relevant to enhancements or departures under the Guidelines
can increase the maximum punishment to which the defendant is
exposed. The Due Process Clause thus affords no right to have these
facts proved beyond a reasonable doubt.
Grier, 475 F.3d at 565-66. Thus, “[o]nce a jury has found a defendant guilty of each
element of an offense [ ] beyond a reasonable doubt, he has been constitutionally
deprived of his liberty and may be sentenced up to the maximum sentence authorized
under the United States Code without additional findings beyond a reasonable doubt.”
Id. at 561 (footnote omitted). Accordingly, “[j]udicial factfinding in the course of selecting
a sentence within the permissible range does not offend the Fifth and Sixth Amendment
rights to a jury trial and proof beyond a reasonable doubt.” id., and the appropriate
standard in this regard is the preponderance-of-the-evidence. See Grier, 475 F.3d at
21
561 (“Under an advisory Guidelines scheme, district courts should continue to make
factual findings by a preponderance of the evidence and courts of appeals should
continue to review those findings for clear error.”).
Foley has not argued, nor could he, that his sentence exceeds the applicable
statutory maximum. Thus, this Court‟s manner of applying the sentencing enhancement
factors was appropriate and consistent both with Apprendi and the mandates of due
process, and Foley‟s counsel committed no error in failing to advise him otherwise.
Second, Foley is wrong to assume that he had nothing to lose by going to trial on
the fifteen counts he was facing. More specifically, he is wrong to assume that the
possible sentence he would have faced by going to trial was the same that he faced
after pleading guilty. There is no reason to doubt, on this record, that the Government
would have been able to prove its case against Foley, as the evidence against him was
strong. Had the Government successfully proved its case, Foley would have faced the
very same sentencing enhancements that were applied to him for obstruction of justice
and his leadership role; those enhancements would have been applied at sentencing in
the very same fashion, and based on the very same evidence that the prosecutor
presented at time of sentencing, had Foley been convicted by a jury rather than by
entering a guilty plea. Moreover, had Foley proceeded to trial and been convicted, he
would have lost the benefit of his 3-point reduction for acceptance of responsibility. This
alone would have resulted in an increased total offense level of 36.6 Coupled with his
Criminal History Category of VI, the recommended sentencing range would have been
6
The Court therefore need not, and will not, determine whether a conviction on the other remaining
counts would have resulted in a further increase in Foley‟s total offense level.
22
324 to 405 months, considerably higher than the range which was actually applied at his
sentencing (235 to 293 months).
Third, Foley is incorrect in assuming that he can establish ineffectiveness on the
part of Mr. Schroeder based upon Mr. Schroeder‟s alleged mistaken assurances about
possible jail time. Our court of appeals has observed that “[a]ny alleged error by
defense counsel in informing defendant of his sentence may be remedied by an
adequate change of plea hearing.” U.S. v. Padilla-Castro, 2011 WL 1667167 at *2 (3d
Cir. May 4, 2011).
In this case, as the Government points out, Foley‟s plea agreement expressly
stated: (1) that he faced a minimum prison sentence of ten years and a maximum
possible sentence of life imprisonment; (2) that the Government could argue any
sentencing issues to the Court; and (3) that there were no other agreements concerning
Foley‟s sentence. (See Ex. A to Govt.‟s Response to Def.‟s §2255 Mot. [256-2] at
¶C(1)(a), ¶B(2), and p. 6.) At the plea hearing, the Court specifically questioned Foley
and confirmed his understanding as to the fact that the possible sentence range for
Count I was at least 5 years of incarceration, and as much as 40 years, and that the
possible sentence range for Count III was not less than 5 years‟ and up to life
imprisonment. (Change of Plea Hrg. [186] at pp. 14-16.) The Court‟s colloquy further
established that no one had promised Foley anything regarding his sentence beyond
the terms of the plea agreement and no one had made any prediction or promise to him
concerning what his sentence would be. (Change of Plea Hrg. [186] at pp. 21-22, 2425.) Foley in fact represented to the Court that he and Mr. Schroeder had “discussed
what the guideline range was generally, that‟s it.” (Id. at p. 25.) Foley also
23
acknowledged this Court‟s authority, in some circumstances, to render a sentence that
could be more severe than that called for by the guidelines; Foley further acknowledged
that, if this were to happen, it would not be grounds for Foley to withdraw his guilty plea.
(Id. at 23-24.) Foley also confirmed for the Court that he had read the plea agreement,
discussed it with his attorney, and was in agreement with it as indicated by his
signature. (Id. at pp. 18-19.)
Under all these circumstances, the Court‟s plea colloquy was sufficient to ensure
the voluntary and knowing nature of Foley‟s guilty plea, notwithstanding any
misinformation which Foley may have received from his attorney concerning the terms
of his sentence. Since Foley cannot establish prejudice as a result of his attorney‟s
alleged misconduct, no Sixth Amendment violation is present here. See United States
v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007) (“[W]e have long 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. Mustafa, 238 F.3d 485,
492 (3d Cir.2001) (“[A]ny alleged misrepresentations ... were dispelled when [defendant]
was informed in open court that there were no guarantees as to sentence, and that the
court could sentence him to the maximum.”).
To recap, in order to establish a Sixth Amendment violation of his right to counsel
that would nullify his plea, Foley must show that his counsel provided “grossly
erroneous” information and that, but for the erroneous information, he would not have
pleaded guilty. Padilla-Castro, 2011 WL 1667167 at * 2 (citing Meyers v. Gillis, 142
F.3d 664, 666 (3d Cir. 1998)). Foley cannot satisfy this standard based on Mr.
Schroeder‟s alleged errors in advising him about his possible sentence.
24
(3) Counsel’s Alleged Failure to Raise Any of the “Meritorious Claims”
Foley‟s third and final allegation of ineffectiveness pertains to Mr. Schroeder‟s
alleged failure to raise various “meritorious claims” which, in Foley‟s view, could have
produced a lower sentence. According to Foley, Mr. Schroeder should have argued or
presented evidence showing that: Foley had achieved a high school diploma
equivalency and therefore did not require a lengthy prison sentence to obtain a higher
education level; Foley suffers from mental health conditions which may have accounted
for some of his past criminal behavior and which would have been better addressed in a
community-based treatment facility; Foley had been a drug user since the age of 14 and
may have benefited from confinement to a substance abuse facility in conjunction with a
lesser sentence; Foley was the product of a family environment which fostered
lawlessness; Foley‟s crime had no identifiable victims; and Foley had forfeited large
sums of cash to the Government in connection with his plea agreement which would aid
the Government‟s fight against crime. Absent these alleged failures by his counsel,
Foley claims, there is a reasonable probability that the result of the sentencing
proceedings would have been different.
Once again, Foley‟s claim about the alleged deficiencies in his counsel‟s
performance lacks merit. The short answer to this argument is that all of the information
which Foley believes should have been made known to the Court in support of a lesser
sentence was, in fact, made known to the Court either through the PSR, which this
Court had carefully reviewed prior to the sentencing hearing, or through the arguments
actually made by Mr. Schroeder at the time of the sentencing. At the sentencing
hearing, this Court outlined all of the factors set forth at 18 U.S.C. 3553(a) and indicated
25
that it had carefully considered each of those factors as well as the advisory guideline
range. The Court then articulated its reasoning for the sentence it was about to impose,
noting that the case involved a large-scale drug conspiracy, that Foley was a lifelong
criminal who appeared to be completely unrepentant for his crimes, and that factors
such as protection of the public and deterrence were important considerations in this
case. Having noted that Father Peterson had spoken on Foley‟s behalf, the Court
explained that its disagreement with Father Peterson as to Foley‟s rehabilitative
potential or threat to society was “simply a reflection of the fact that Father Peterson
sees the defendant through the eyes of a caring priest and friend, while I must view him,
of course, simply as a judge.” (Sentencing Tr. [185] at pp. 101-02.) The Court
concluded that “a significant sentence here is not only appropriate, but necessary, to
prevent this one man criminal Tsunami from continuing to roll over this community.” (Id.
at p. 102.) On direct appeal, the Third Circuit concluded that this Court had sufficiently
articulated its reasons for the sentence that was imposed. United States v. Foley, 218
Fed. Appx. 139, 144 (3d Cir. Feb. 27, 2007).
Considering all of the circumstances of the case, particularly as they pertain to
legitimate sentencing considerations, there is no basis for finding Mr. Schroeder
ineffective by virtue of his failure to articulate the “meritorious claims” Foley now
advocates. Simply put, the relevant information was known to and considered by this
Court, and Mr. Schroeder‟s failure to advocate more aggressively along these lines did
not make his representation constitutionally deficient. Nor is there a reasonable
probability that Foley would have obtained a shorter sentence, had Mr. Schroeder made
the arguments Foley now advances. A number of factors, as outlined by the
26
Government at the sentencing hearing, counseled against the imposition of a shorter
prison sentence for Foley. Among other things, the record showed that: (i) Foley had
no meaningful employment history, (ii) his criminal history was lengthy and included five
adjudications of delinquency as well as twelve adult convictions; (iii) his history involved
multiple probation or parole revocations; (iv) he had absconded from his parole
supervision in 2002 and was a fugitive for almost three years prior to his arrest in this
case; (v) he had convictions under different names; (vi) the amount of marijuana
involved in this conspiracy was in the range of 700 to 1,000 kilograms, an amount which
the prosecutor variously described as “enormous” and a “flood of drugs” that had been
“unleas[h]ed on this community over a relative short span of time” (Sentencing Tr. [185]
at p. 94); (vii) Foley had admitted to distributing methamphetamine during the course of
conspiracy; (viii) Foley had possessed a gun in connection with the conspiracy while
being prohibited from doing so because of his status as a convicted felon; (ix) Foley had
admitted to committing identify theft during the course of the conspiracy and had used
the identity of a legally blind individual whose only source of income was social security
disability benefits; (x) he had admitted to laundering money in connection with the
activity; and (xi) several peoples‟ lives had been “destroyed” because of their
connection to Foley because they had lost their careers, jeopardized their retirement
pensions, and/or developed drug dependencies.
In conclusion, there is no realistic possibility that Foley would have received a
shorter sentence had his counsel done as Foley now argues he should have.
Accordingly, Foley‟s ineffectiveness of counsel claim fails.
27
C. Foley‟s Claim Based on United States v. Williams
Foley‟s present counsel of record has moved the Court to amend Foley‟s §2255
motion so as to incorporate reference to United States v. Williams, 558 F.3d 166 (2d
Cir. 2009). In that case, the Second Circuit Court of Appeals held that the 5-year
mandatory minimum sentence for possession of a firearm in furtherance of a drug
trafficking crime did not apply to a defendant who was also subject to a 10-year
mandatory minimum sentence on the underlying drug trafficking crime. Presumably, the
reference is meant to suggest that Foley‟s sentence as to Count III is unlawful.
To the extent Foley is still pursuing this line of argument, we find it unavailing.
First, Williams’ holding is limited to a situation where the defendant facing a mandatory
minimum sentence under § 924(c) is also subject to a longer mandatory minimum
sentence on a separate drug trafficking charge that is part of the same criminal
transaction or operative facts as the § 924(c) charge. See 558 F.3d at 168; id. at 170
(quoting the introductory clause of § 924(c)(1)(A) which imposes certain mandatory
minimum penalties, “[e]xcept to the extent that a greater minimum sentence is otherwise
provided by this subsection nor by any other provision of law”). No such facts exists
here, because the mandatory minimum sentence which Foley faced at Count I (five
years) was not greater than the five-year mandatory minimum sentence he faced at
Count III.
In any event, however, Williams is no longer good law in light of the Supreme
Court‟s recent decision in Abbott v. United States, --- U.S. ---, 131 S. Ct. 18 (2010). In
that case, the Court unanimously held that defendants who are subject to a mandatory,
consecutive sentence for a conviction under 18 U.S.C. § 924(c) are “not spared from
28
that sentence by virtue of receiving a higher mandatory minimum on a different count of
conviction.” --- U.S. at ---, 131 S. Ct. 23. Accordingly, there is no basis for vacating
Foley‟s sentence at Count III.
III.
CONCLUSION
Based upon the foregoing reasons, I conclude that the files and records of hits
case conclusively show that Foley is entitled to no relief under 28 U.S.C. §2255.
Accordingly, no evidentiary hearing is warranted, and Foley‟s motion to vacate his
conviction and sentence will be denied.
Moreover, because Foley has failed to make a substantial showing of the denial
of a constitutional right, no certificate of appealability shall issue. An appropriate order
follows.
29
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
v.
MAURICE F. FOLEY
)
)
)
)
)
Case No. 1:04-cr-36-SJM
ORDER
AND NOW, this 27th Day of September, 2011, for the reasons set forth in the
accompanying Memorandum Opinion,
IT IS HEREBY ORDERED that the Defendant‟s Motion to Vacate Judgment
under 28 U.S.C. § 2255 [244] shall be, and hereby is, DENIED.
Inasmuch as the Defendant has failed to make a substantial showing of the
denial of any constitutional right, IT IS FURTHER ORDERED that no certificate of
appealability shall issue.
s/
Sean J. McLaughlin
Sean J. McLaughlin
United States District Judge
cc:
All counsel of record.
30
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