WHITEHEAD v. USA

Filing 1

MEMORANDUM OPINION & ORDER denying Motion to Vacate, Set Aside or Correct Sentence (2255) filed by SHERRON WHITEHEAD. Signed by Judge Cathy Bissoon on 1/14/2015. (sje)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SHERRON WHITEHEAD,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action No. 14-977
Related case: Criminal Action No. 12-98
Judge Cathy Bissoon

MEMORANDUM AND ORDER
I. MEMORANDUM
For the reasons stated below, the Government’s Motion to Dismiss (Doc. 100) will be
granted, and Petitioner’s Motion to Vacate Sentence, pursuant to 28 U.S.C. § 2255 (“§ 2255
motion”) (Doc. 97), will be denied.1 Additionally, Petitioner’s Motion to Take Judicial Notice of
Adjudicative Facts (Doc. 98) and Motion for Discovery (Doc. 99) will be denied as moot.
BACKGROUND
On July 29, 2013, Petitioner pled guilty to a lesser included offense at Count I of the
Indictment at Criminal No. 12-98. At that time, the Court was informed that the parties had
entered into a plea agreement, pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal
Procedure, which included a waiver of Petitioner’s right to file a motion to vacate sentence under
28 U.S.C. § 2255. Upon conclusion of the hearing, the Court found Petitioner’s plea to be both
knowing and voluntary and accepted his plea of guilt. Subsequently, on November 14, 2013, the
Court accepted the terms of the parties’ plea agreement and sentenced Petitioner to 96 months
imprisonment, which was the sentence explicitly agreed upon by the parties in their agreement.
1

All citations to the docket are in criminal action number 12-cr-98, unless otherwise noted.

Petitioner has now filed the instant pro se § 2255 motion, arguing that he received
ineffective assistance of counsel during plea negotiations. Petitioner contemporaneously filed a
Motion to Take Judicial Notice of Adjudicative Facts (Doc. 88) and Motion for Discovery (Doc.
99), which both relate to the quantity of drugs attributed to Petitioner. Shortly thereafter, the
Government, relying on the § 2255 waiver in the plea agreement, filed a Motion to Dismiss the
§ 2255 motion (Doc. 100), to which Petitioner has filed a response (Doc. 101).
ANALYSIS
Waivers of appeal rights are enforceable, provided that they are (1) “entered into
knowingly and voluntarily” and (2) do not “work a miscarriage of justice.” United States v.
Marby, 536 F.3d 231, 237 (3d Cir. 2008). Here, Petitioner, in his response to the Government’s
motion to dismiss, does not appear to challenge the knowing and voluntary nature of his waiver,
but instead, argues that enforcing it “would work a miscarriage of justice.” Resp. (Doc. 101) at
5. The Court, however, “has an affirmative duty both to examine the knowing and voluntary
nature of the waiver and to assure itself that its enforcement works no miscarriage of justice,
based on the record evidence before it.” Marby, 536 F.3d at 237. As such, before enforcing the
waiver, the Court will examine the record to ensure that Petitioner’s waiver was knowing and
voluntary, and that its enforcement will not work a miscarriage of justice.
With respect to the knowing and voluntary nature of Petitioner’s § 2255 waiver, the
Court has carefully examined both the terms of the parties’ plea agreement and the transcript
from the Change of Plea Hearing held on July 29, 2013 (Doc. 103). The written plea agreement
was signed by both parties and clearly indicates that “Sherron Whitehead 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 and sentence.” At

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the Change of Plea Hearing, the Court informed Petitioner: “you have also waived the right to
file a motion to vacate his sentence under 28 U.S.C. § 2255 and the right to file any other
collateral proceeding attacking your conviction or sentence. Do you understand that?” Tr.
(Doc. 103) at 13. Petitioner responded “yes” to the Court’s question and did not indicate any
misunderstanding with regard to the waiver. Id. The Court, after questioning Petitioner, found
that he was both “competent and capable of entering an informed plea” and that his guilty plea
was both “knowing and voluntarily made.” Id. at 20. In light of the foregoing, and absent any
argument or evidence from Petitioner to the contrary, the Court is convinced that Petitioner’s
waiver was indeed knowing and voluntary.
With respect to whether enforcement of the waiver would work a miscarriage of justice,
the United States Court of Appeals for the Third Circuit has “adopted a common sense
approach” to this inquiry. Marby, 536 F.3d at 242. Rather than identifying particular
circumstances that amount to a miscarriage of justice, the Third Circuit has suggested several
relevant factors to consider, including “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.” Id. at 242-43. The Third Circuit also has
suggested that a miscarriage of justice could arise when a defendant’s attorney was “ineffective
or coercive in negotiating the very plea agreement that contained the waiver.” Id. at 243; see
also United States v. Akbar, 181 Fed. Appx. 283, 286 (3d Cir. 2006) (“[I]t is possible for there to
be a miscarriage of justice when plea proceedings were tainted by ineffective assistance of
counsel.”). However, “a waiver does not become unenforceable simply because a defendant
claims ineffective assistance, but only if the record of the criminal proceeding revealed that the

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claim that the waiver was the result of ineffective assistance of counsel was meritorious.”
Akbar, 181 Fed. Appx. at 286-87 (internal quotations omitted).
Here, Petitioner’s § 2255 motion lists two grounds for relief. First, Petitioner lists
“Ineffective Assistance of Counsel During Plea Negotiations Where [the attorney] Waived My
Rights to Collateral Attack Under 28 U.S.C. § 2255 & others.” Mot. (Doc. 97) at 5. As
supporting facts for this first ground, Petitioner merely states that his attorney “bargained for a
waiver of my right to file a motion to vacate sentence, under 28 U.S.C. § 2255 on page 2 ¶ 4 and
the right to file any other colattereral [sic] proceeding attacking my conviction or sentence.” Id.
Second, Petitioner lists “Ineffective Assistance of Counsel During Plea Negotiations Where [the
attorney] Negotiated the Quantity Without Having the AUSA Prove the Factually [sic]
Quantity.” Id. As supporting facts for this second ground, Petitioner states that his attorney
“bargained for a lesser included offense … [and] bargained on Page 2 ¶ 2 that I was responsible
for the conduct charged in Count two of the indictment also.” Id. Petitioner does not elaborate
on these arguments, even when faced with the Government’s motion to dismiss. Nor does
Petitioner explain how his counsel was ineffective in bargaining for these particular plea
agreement terms.
Upon careful review of these claims, and the record in this case, the Court finds simply
no indication that Petitioner received ineffective assistance of counsel, or that enforcing the
waiver would work a miscarriage of justice in this case. During the Change of Plea Hearing, the
Court explicitly asked Petitioner if he was satisfied with the job that his attorney had done for
him so far, and Petitioner answered affirmatively. Tr. (Doc. 103) at 4-5. Moreover, as described
more fully above, Petitioner acknowledged during the Change of Plea Hearing that he was
waiving his right to file a motion under § 2255, and expressed no misunderstanding with regard

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to such waiver. See id. at 13. To the extent Petitioner purports to challenge his counsel’s
effectiveness by pointing to the quantity of drugs attributed to him at sentencing, the parties
explicitly stipulated to this amount in their signed plea agreement. Indeed, the stipulation
allowed Petitioner to plead guilty to a lesser included offense and escape a ten-year mandatory
minimum sentence. Moreover, at the Change of Plea Hearing, the Government provided a
summary of its evidence, including the amounts of heroin involved in the investigation. See id.
at 18-20. When asked by the Court if he agreed with the Government’s summary of what he
did, Petitioner answered affirmatively. See id. at 20.
In sum, there is simply no indication in the record that Petitioner’s § 2255 waiver in his
plea agreement was the product of ineffective assistance of counsel. To the contrary, the record
shows that Petitioner knowingly and voluntarily waived his right to file a § 2255 motion and was
sentenced to the exact term of imprisonment explicitly agreed upon by the parties. Under these
facts, the Court cannot possibly find that enforcing Petitioner’s waiver in these circumstances
would work a miscarriage of justice, even in light of Petitioner’s unsupported allegations of
ineffective assistance of counsel.
Having found that Petitioner knowingly and voluntarily waived his right to file a motion
to vacate under 28 U.S.C. § 2255 and that enforcing such waiver would not work a miscarriage
of justice, the Court will enforce the waiver and grant the Government’s Motion to Dismiss
(Doc. 100). Accordingly, Petitioner’s Motion to Take Judicial Notice of Adjudicative Facts
(Doc. 98) and Motion for Discovery under MAS Rule 6(a) (Doc. 99), which relate to the quantity
of drugs attributed to him, will be denied as moot. Moreover, no certificate of appealability will
issue because jurists of reason would not find the Court’s conclusion debatable. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000).

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II. ORDER
Consistent with the foregoing, the Government’s Motion to Dismiss (Doc. 100) is hereby
GRANTED, Petitioner’s § 2255 Motion (Doc. 97) is DENIED, and Petitioner’s Motion to Take
Judicial Notice of Adjudicative Facts (Doc. 98) and Motion for Discovery (Doc. 99) are
DENIED AS MOOT. A certificate of appealability will not issue.
IT IS SO ORDERED.

January 14, 2015

s\Cathy Bissoon
Cathy Bissoon
United States District Judge

cc (via ECF email notification):
All Counsel of Record
cc (via First-Class U.S. Mail):
Sherron Whitehead
33507-068
FCI McKean
PO Box 8000
Bradford, PA 16701

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