CLECKLEY v. USA
Filing
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MEMORANDUM OPINION AND ORDER denying Motion to Vacate (2255) as to Freddie Lamont Cleckley. Signed by Judge Terrence F. McVerry on 02/14/2012. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
v.
FREDDIE LAMONT CLECKLEY
)
)
)
)
)
02: 09-cr-0246
02: 11-cv-1220
MEMORANDUM OPINION AND ORDER
February 14, 2012
Presently before the Court for disposition is the MOTION UNDER 28 U.S.C. § 2255
TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL
CUSTODY (Document No. 51), the MOTION TO DISMISS MOTION TO VACATE
(Document No. 58), the MOTION FOR EXTENSION OF TIME TO FILE NEW MOTION TO
VACATE SENTENCE (Document No. 59) filed pro se by Petitioner / Defendant Freddie
Lamont Cleckley (“Cleckley”) and the RESPONSE in opposition filed by the government
(Document No. 61). For the reasons discussed below, the Court will deny the § 2255 motion
without holding an evidentiary hearing.
The relief sought under 28 U.S.C. § 2255 is reserved for extraordinary
circumstances. See Brecht v. Abrahamson, 507 U.S. 619 (1993). Section 2255 provides, in
relevant part:
A prisoner in custody under sentence of a [federal] court . . . claiming the
right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the sentence was
in excess of the maximum authorized by law or is otherwise subject to
collateral attack, may move the court which imposed the sentence to
vacate, set aside or correct the sentence.
Although § 2255 includes a provision for a prompt evidentiary hearing, a federal court may
deny a § 2255 motion without holding an evidentiary hearing if the “motion and the files and
records of the case conclusively show” that the petitioner is not entitled to relief. 28 U.S.C.
§ 2255; see also United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005); United States v.
McCoy, 410 F.3d 124, 131 (3d Cir. 2005); Rule 8(a), 28 U.S.C. foll. § 2255. Such is the case
in this instance.
Procedural and Factual Background
The parties and the Court are familiar with the extensive background facts of
Cleckley’s criminal prosecution, conviction, and sentence. Therefore, the Court will not detail
the facts again. However, the following is a brief recitation of the procedural facts salient to the
issues presently pending before the Court.
On August 5, 2009, a federal grand jury in the Western District of Pennsylvania
returned a three-count indictment in which Cleckley was charged at Count One with Possession
with Intent to Distribute 5 Grams or More of Cocaine Base in the Form Commonly Known as
Crack, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(B)(iii); at
Count Two with Possession of A Firearm in Furtherance of a Drug Trafficking Crime, in
violation of Title 18, United States Code, Section 924(c)(1)(A)(i); and at Count Three with
Possession of a Firearm by a Convicted Felon, in violation of Title 18, United States Code,
Section 922(g)(1).
On October 30, 2009, Defendant, with counsel, appeared at an arraignment and pled
Not Guilty to the charges. At that time, Defendant also waived his detention hearing and
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wavied the Interstate Agreement on Detainers Act. He was returned to Western Penitentiary to
continue serving his state sentence for a parole violation.
Through counsel, Cleckley filed a number of pretrial motions, including (i) a motion
to produce the cocaine for examination, (ii) a motion in limine to compel disclosure of
uncharged misconduct evidence, (iii) a motion for release of Brady materials and (iv) a motion
for production of Jencks material. By Memorandum Order of December 9, 2009, the Court
ordered the government to provide the cocaine for testing and provide the firearm for
fingerprinting.
On April 23, 2010, Defendant, with counsel, appeared before the Court and pled
guilty to Counts One, Two, and Three of the Indictment. There was no plea agreement between
the parties.
On July 20, 2010, a Presentence Investigation Report (“PSI”) was prepared by the
Probation Office. Due to Cleckley’s Career Offender Status, pursuant to USSG § 4B1.1, his
Base Offense Level was determined to be 34, which was reduced by 3 levels for his acceptance
of responsibility, which resulted in a Total Offense Level of 31. Cleckley’s Criminal History
Score was VI, based upon 16 criminal history points and the fact that he was considered a
career offender.
On August 18, 2010, Cleckley, through counsel, made several objections to the PSI.
First, Defendant argued that the Court should exercise its discretion to sentence him below the
applicable sentencing Guidelines in light of the crack / powder cocaine differential in the
Guidelines. The Court found this objection to be without merit as the crack / cocaine ratio
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disparity did not affect Defendant’s offense level calculations under the Career Offender
guidelines.
Next, Defendant objected to the two-level enhancement he received for possession of
a stolen firearm. According to Cleckley, he did not know that the firearm he possessed was
stolen. Again, the Court rejected this objection on the basis that Defendant’s offense
calculations were subject to and controlled by the Career Offender guidelines and, therefore, the
enhancement did not affect the calculations under the Career Offender guidelines.
Defendant’s next two objections involved the calculations of his Criminal History
Category. Although the Court agreed to reduce his Criminal History Score by one point, the
reduction did not affect the calculations under the Career Offender guidelines because a career
offender’s criminal history category in every case is a Category VI, which represents a criminal
history score of 13 or more.
Likewise, Defendant’s objection to the three (3) points he was assessed pursuant to
USSG 4A1.1(a) for his conviction for Driving Under the Influence was denied. The Court
pointed out that assuming arguendo that the Court would find that three (3) points
overrepresented the severity of that prior conviction, the calculations for Defendant’s criminal
history category would not change as § 4B1.1 specifically provides that “[a] career offender’s
criminal history in every case under this subsection shall be Category VI.” See Tentative
Findings and Rulings, Document No. 36.
Defendant was advised that as to Counts One and Three of the Indictment, he would
be sentenced based on the Career Offender guidelines which resulted in a total offense level of
31 with a Criminal History Category of VI. The applicable advisory guideline term of
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imprisonment range was 188 to 235 months. As to Count Two, the statute provides that
Defendant shall be sentenced to no less than five (5) years to life imprisonment, with such
sentence to be served consecutive to any other term of imprisonment imposed.
A sentencing hearing was conducted on August 27, 2010, at which time the Court
adopted its Tentative Findings and Rulings. Cleckley was thereafter sentenced to a term of
imprisonment of 248 months consisting of 188 months at Count One, a concurrent sentence of
120 months at Count Three, and a consecutive sentence of 60 months at Count Two, to be
followed by supervised release for a term of five (5) years at Counts One and Two, and three
(3) years at Count Three, with such terms to run concurrently. Judgment was entered that same
day.
A Notice of Appeal was timely filed on August 27, 2010. On July 28, 2011, the United
States District Court of Appeals for the Third Circuit issued its opinion in which it affirmed the
district court. The Court of Appeals issued its mandate on August 22, 2011. The time for the
filing of the petition for writ of certiorari expired ninety (90) days after the entry of the mandate
filed by the Court of Appeals, or on or about October 26, 2011. See Clay v. United States, 537
U.S. 522 (2003). Cleckley did not file a petition for writ of certiorari. Accordingly, the
judgment of conviction became final on or about August 22, 2011.
On September 22, 2011, Cleckley, pro se filed the instant Section 2255 motion in
which he raises four ineffective assistance of counsel claims: (i) that his trial counsel was
ineffective generally; (ii) that the court had a bias against him; (iii) that his trial counsel was
ineffective for failing to raise issues of suppression on appeal; and (iv) that his trial counsel was
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ineffective for failing to discuss with him the inclusion of matters of suppression in an appellate
brief.
Evidentiary Hearing
Under 28 U.S.C. § 2255, a judge must determine whether to summarily dismiss the
petition under Rule 4(b) of the Rules Governing § 2255 Proceedings ("If it plainly appears from
the motion, any attached exhibits, and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the
moving party."), or to order an evidentiary hearing under Rule 8 of the Rules Governing § 2255
Proceedings.
A district court should hold an evidentiary hearing in section 2255 cases unless "the
motion, files and records show conclusively that the movant is not entitled to relief." United
States v. Nahodil, 36 F.3d 323 (3d Cir. 1994). In deciding whether to hold a hearing, a judge
may draw upon personal knowledge and recollection of the events that occurred in his or her
presence. See Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1077 (3d Cir. 1985).
After reviewing the filings in this case, the complete record, and drawing upon the
Court’s personal knowledge and recollection of the events that occurred in its presence, the
Court finds that an evidentiary hearing is not required because Cleckley has failed to raise any
genuine issue of material fact. See United States v. Essig, 10 F.3d 968, 976 (3d Cir. 1993).
Additionally, the files and records of the case conclusively establish that Cleckley is not entitled
to relief. United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005); United States v. McCoy,
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410 F.3d 124, 131 (3d Cir. 2005). Therefore, the Court will proceed to the merits of the § 2255
motion.1
Standard of Review
The Sixth Amendment guarantees criminal defendants the right to effective assistance
of counsel and exists “in order to protect the fundamental right to a fair trial.” Lockhart v.
Fretwall, 506 U.S. 364, 368 (1993) (quoting Strickland v. Washington, 466 U.S. 668, 684
(1984)).
The United States Supreme Court has formulated a two-part test for determining
whether counsel rendered constitutionally ineffective assistance: (i) whether counsel’s
performance was unreasonable; and (ii) whether counsel’s unreasonable performance actually
prejudiced the defense. Strickland, 466 U.S. at 687. To determine whether counsel performed
below the level expected from a reasonably competent attorney, it is necessary to judge
counsel’s challenged conduct on the facts of the particular case, viewed at the time of counsel’s
conduct. Id. at 690. A petitioner who claims that he or she was denied effective assistance of
counsel carries the burden of proof. United States v. Cronic, 466 U.S. 648, 658 (1984).
The first prong of the Strickland test requires that a defendant establish that his
attorney’s representation fell below an objective standard of reasonableness by committing
errors so serious that he or she was not functioning as “counsel” guaranteed by the Sixth
Amendment. Strickland, 466 U.S. at 688. A court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the
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“When a motion is made under § 2255, the question of whether to order a hearing is
committed to the sound discretion of the district court.” United States v. Day, 969
F.2d 39, 41-42 (3d Cir. 1992).
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defendant must overcome the presumption that, under the totality of the circumstances, the
challenged action “might be considered sound trial strategy.” Id. at 689. The question is not
whether the defense was free from errors of judgment, but whether counsel exercised the
customary skill and knowledge that normally prevailed at the time and place. Id.
The second prong requires a defendant to demonstrate that counsel’s errors deprived
him of a fair trial and the result was unfair or unreliable. Id. To prove prejudice, a defendant
must show that 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 one that is sufficient to undermine confidence in the outcome. Id.
The Court of Appeals for the Third Circuit has endorsed the practical suggestion in
Strickland to consider the prejudice prong before examining the performance prong “because
this course of action is less burdensome to defense counsel.” United States v. McCoy, 410 F.3d
124, 132 n.6 (3d Cir. 2005); see Strickland, 466 U.S. at 694 (stating that, “[i]f it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so,” the prejudice prong should be examined before the performance prong
“to ensure that ineffectiveness claims do not become so burdensome to defense counsel that the
entire criminal justice system suffers as a result”).
Furthermore, the United States Supreme Court has determined that under the Strickland
test, a reviewing court must “assess counsel’s overall performance throughout the case to
determine whether the ‘identified acts or omissions’ overcome the presumption that counsel
rendered reasonable professional performance.” Kimmelman v. Morrison, 477 U.S. 365, 375
(1986).
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Discussion
As this Court observed, the government had substantial evidence of Cleckley’s guilt in
this case, of which he and his counsel were well aware when he pled guilty to the charges
contained in the Indictment. The Court will address Cleckley’s claims seriatim.
The first argument raised by Cleckley is that his trial counsel was generally ineffective.
Cleckley alleges that he “wrote Capone numerous letters for suppression, bond, fingerprints of
gun, and I never owned a vehicle they said was registere[ed] to me for my Indictment.”
However, Cleckley fails to identify any specific situations where his trial counsel was not
reasonably effective or any instance where his trial counsel’s performance fell below an
objective standard of reasonableness. Further, Cleckley has failed to demonstrate that his trial
counsel’s performance prejudiced him. Four (4) pretrial motions were filed on Cleckley’s
behalf by his trial counsel, which resulted in the government providing to the defense team the
cocaine for testing and the firearm for fingerprinting. Accordingly, the Court finds and rules
that Cleckley’s claim is based on nothing more than utter speculation and this claim will be
denied.
Next, Cleckley argues that the Court had a bias against him and made improper
statements at sentencing that “somebody died” in the case of Cleckley’s prior conviction. A
review of the sentencing hearing transcript reflects that the Court was addressing Cleckley’s
history and characteristics, which were set forth at length in the Presentence Investigation
Report. The Court stated as follows:
Mr. Cleckley, unfortunately, you have a history of theft, drug distribution, and
violence going back to your teens. . . . As an adult, you have been especially
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dangerous. You have two convictions for offenses that involve shooting other
people and, in one instance, the victim apparently died.
Sentencing Transcript, Document No. 44 at 14-15.
Defendant has made no showing that there was any bias by this Court. The Probation
Office had informed the Court that Cleckley had two convictions for offenses that involved him
shooting others, of which one of the victim’s died. In no way was the reference to the death of
the victim evidence of bias by the Court. In fact, the sentence imposed by the Court
demonstrates that the Court was not biased against Cleckley as he was sentenced on Counts
One and Three at the bottom end of the applicable Guidelines range (188 to 235 months
imprisonment). Accordingly, Cleckley’s claim will be denied.
Cleckley’s final two claims assert that his counsel was ineffective for failing to raise on
appeal issues of suppression. The Court finds these arguments to be without merit as Cleckley
has failed to identify any suppression issue(s) which he believes should have been raised on
appeal and, further, does not discuss the merits of any alleged suppression issue(s).
Accordingly, these claims likewise will be denied.
Conclusion
For the reasons stated, the Court will dismiss Cleckley’s motion without an evidentiary
hearing. His unsupported allegations of ineffectiveness, without more, do not satisfy the
standards set out in Strickland v. Washington, 466 U.S. 668, 690 (1984).
Certificate of Appealability
Upon the denial of a section 2255 motion by the district court, an appeal to the Court of
Appeals is not permitted unless the petitioner obtains a certificate of appealability from "a circuit
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justice or judge." 28 U.S.C. § 2253(c). "At the time a final order denying a petition under 28
U.S.C. § 2255 is issued, the district judge shall make a determination as to whether a certificate
of appealability should issue." United States Court of Appeals for the Third Circuit Local
Appellate Rule 22.2. The application for such a certification should therefore be made to
the district court in the first instance. See United States v. Williams, 158 F.3d 736, 742 n. 4 (3d
Cir. 1998).
The law permits the issuance of a certificate of appealability "only if the applicant has
made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In
order to establish the denial of a constitutional right, the mere allegation of a constitutional
wrong, such as deprivation of the rights to effective counsel, is insufficient; the petitioner must
make a substantial showing of such an error in order to present an appeal. Santana v. United
States, 98 F.3d 752, 757 (3d Cir. 1996). "The petitioner must demonstrate that reasonable jurists
would find the district court's assessment of the constitutional claims debatable or wrong." Slack
v. McDaniel, 529 U.S. 473, 484 (2000).
In this case, the Court finds that reasonable jurists would not find this Court's assessment
of Cleckley’s claims debatable or wrong. Thus, the Court will not issue a certificate of
appealability.
An appropriate Order follows.
McVerry, J.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
)
)
)
)
)
v.
FREDDIE LAMONT CLECKLEY
02: 09-cr-0246
02: 11-cv-1220
ORDER OF COURT
AND NOW, this 14th day of February, 2012, in accordance with the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED AND DECREED that:
1.
The Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by
a Person in Federal Custody filed pro se by Petitioner Freddie Lamont Cleckley is DISMISSED
and the relief requested therein is DENIED;
2.
The Motion To Dismiss is DENIED;
3.
The Motion to Amend is DENIED as futile; and
4.
A certificate of appealability is not granted because Petitioner, Freddie Lamont
Cleckley, has not made a substantial showing of the denial of a Constitutional right.
BY THE COURT:
s/Terrence F. McVerry
United States District Court Judge
cc:
Almon S. Burke, Jr.,
Assistant U.S. Attorney
Email: Almon.Burke@usdoj.gov
Freddie Lamont Cleckley,
Register No. 30583-068
USP Atwater
U.S. Penitentiary
P.O. Box 0190001
Atwater, CA 95301
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