CONROY v. USA
Filing
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MEMORANDUM OPINION & ORDER denying Motion to Vacate (2255) as to DOMINIC CONROY (1). Conroy is procedurally barred from filing a Motion to Vacate under 28 U.S.C. § 2255; Conroy knowingly and voluntarily waived his right to file a collateral appeal; Conroys claims of ineffective assistance of counsel are without merit. A Certificate of Appealability will not be issued with respect to this Motion. Signed by Judge Maurice B. Cohill on 10/22/2014. (cag)
IN THE UNITED STATES DISTRICT COURT
l<'OR THE WESTERN DISTRICT OF PENNSYL VANIA
UNITED STATES OF AMERICA
v.
DOMINIC CONROY,
Respondent.
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Civil Action No. 14-1120
Criminal Action No. 06-425
Senior District Judge
Maurice B. Cohill, Jr.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Dominic Conroy's ("Conroy") August 20, 2014 Motion to
Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody under 28 U.S.c. § 2255
[ECF No. 45]. On October 9,2007 Judge Gary L. Lancaster sentenced Conroy to 300 months of
incarceration for sexual exploitation of a minor. This sentence was to run concurrent to the state
court sentence that Conroy was serving at Case No. 200613617 in the Court of Common Pleas of
Allegheny (PA) County [ECF No. 40 and 41]. On October 19, 2007 Conroy filed a Motion for
Extension of Time to file a Notice of Appeal [ECF No. 42]. Judge Lancaster granted the Motion
and extended the time for Conroy to tile an Appeal to November 21,2007. Conroy never tiled a
direct appeal.
Conroy now seeks to have the Court vacate or set aside Judge Lancaster's sentence for a
new plea and sentence hearing despite the fact that Conroy signed a plea agreement [ECF 1\0. 49
1] waiving his right to take a direct appeal, as well as his right to collaterally attack his
conviction by way of a motion pursuant to 28 U.S.c. § 2255. Nevertheless, Conroy claims that
he should be granted a new plea and sentencing hearing due to the following two assertions:
1.
Counsel was ineffective for failing to present mitigating evidence in the form of
an expert report with regard to the ofTense.
2.
Counsel was ineffective for failing to move to dismiss charges where the
Petitioner was previously prosecuted in state court on the same matter.
The Government filed a Response in Opposition [ECF No. 49] to Conroy's Motion to Vacate
providing several bases for denying Conroy's Motion: (1) Conroy signed an enforceable plea
agreement waiving his right to attack the sentence; (2) Conroy did not take a direct appeal and,
therefore, his claims are foreclosed by a procedural bar; (3) Conroy's Motion is untimely as it
exceeds the 1 year time limit to challenge a conviction; and (4) Conroy's claims of ineffective
assistance of Counsel lack merit. The Government asserts that Conroy's claims fail as a matter
of law and the Court should refuse to issue a Certificate of Appealability.
I. Standard of Review
Section 2255 of Title 28 of the United States Code provides a means of collaterally attacking
a sentence imposed after a conviction. See U.S. v. Cannistraro, 734 F.Supp ] 1] 0, 1119 (D. N.J.
1989),
919 F.2d 137 (3d. Cir. ] 990), cert den'd 500 U.S. 916 (1991). Pursuant to 28 U.S.c.
§ 2255, a federal prisoner may move the sentencing court to vacate, set aside or correct a
sentence "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. .. " 28 U.S.c. § 2255(a). Relief under this provision is "generally available
only in 'exceptional circumstances' to protect against a fundamental defect which inherently
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results in a complete miscarriage ofjustice or an omission inconsistent with the rudimentary
demands of fair procedure." U.S. v. Gordon, 979 F.Supp. 337, 339 (E.D. Pa. ]997) (citing
v. U.S., 368 U.S. 424,428 (1962)).
A district court considering a Section 2255 motion "must accept the truth of the movant's
factual allegations unless they are clearly frivolous on the basis of the existing record," U.S. v.
Booth, 432 F.3d 542,545 (3d Cir. 2005) (quoting Virgin Islands v. Forte, 865 F.2d 59, 62 (3d
Cir. 1989)), and a court "abuses its discretion if it fails to hold an evidentiary hearing when the
files and records of the case are inconclusive as to whether the movant is entitled to relief"
Booth, 432 F.3d at 546 (citing U.S. v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005). However, the
final disposition of a Section 2255 motion lies with the discretion of the trial judge, see Virgin
Islands v. Nicholas, 759 F.2d ] 073, 1075 (3d Cir. 1985), and a district court may summarily
dismiss a Section 2255 motion where the motion, files, and records "show conclusively that the
movant is not entitled to relief" U.S. v. Mason, 2008 WL 938784, 1 (E.D. Pa. 2008) (citing
Forte, 865 F.2d at 62).
"Section 2255 generally may not be employed to relitigate questions which were raised and
considered on direct appeal." U.S. v. DeRewal, 10 F.3d 100, 105 n. 4 (3d Cir. 1993) (internal
quotations omitted). Moreover, "if a petitioner has failed to raise an objection at the time of trial
and has also failed to raise the issue on direct appeal, then collateral review of that claim is
procedurally barred unless the petitioner is able to show 'cause' excusing his procedural default
and 'actual prejudice' resulting from the alleged error or violation." Henry v. U.S., 913 F.Supp.
334,335 (M.D. Pa. 1996), affd 96 F.3d 1435 (3d Cir. 1996); see
u.s. v.
Essig, 10 F.3d 968,
979 (3d Cir. 1993) (holding that the "cause and prejudice" standard set forth in U.S. v. Frady,
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456 U.S. 152 (1982) "applies to § 2255 proceedings in which a petitioner seeks relief from
alleged errors in connection with his sentence that he has not directly appealed"); Massaro v.
United States, 538 U.S. 500, 504 (2003) (holding that an "ineffectiveness" claim can be brought
in a collateral proceeding under § 2255 regardless of whether the same issue could have been
addressed on direct appeal); DeRewal, 10 F.3d at 104. Finally, the collateral remedy available to
prisoners under § 2255 "does not encompass all claimed errors in conviction and sentencing."
United States v. Addonizio, 442 U.S. 178, 185 (1979). "The Court has held that an error of law
does not provide a basis for collateral attack unless the claimed error constituted 'a fundamental
defect which inherently results in a complete miscarriage ofjustice'." Id. (quoting Hill, 368
U.S. at 428).
III Legal Analysis
A. Procedural Issues
a. Knowing and Voluntary Waiver.
The Government responded to both of Conroy's claims by stating that the claims are
procedurally defaulted or waived. More specifically, the Government stated that Conroy is
barred from raising either claim due to the collateral attack waiver in his plea agreement and by
the fact that Conroy never filed a direct appeal and has sorely missed the deadline for filing any
appeal by no less than 6 years. Furthermore, Conroy's Motion to Vacate provides no legitimate
basis for exception to the procedural bars.
With regard to Conroy's plea agreement waiver, "A criminal defendant may knowingly and
voluntarily waive many of the most fundamental protections afforded by the Constitution." U.S.
v. Khattak, 273 F.3d 557, 561 (3d Cir. 2001) (citing C.S. v. Mezzanatto, 513 U.S. 196,201
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(1995»). Such waivers are enforceable "provided that they are entered into knowingly and
voluntarily and their enforcement does not work a miscarriage ofjustice." U.S. v. Mabry, 536
FJd 231,237 (3d. Cir. 2008), cert. den'd, 129 S.C!. 2789 (2009) (citing Khattak, 273 F.3d at
561). A court has "an independent obligation to conduct an evaluation of the validity of a
collateral waiver." Mabry, 536 F.3d at 238. Specifically, we must examine (1) the "knowing and
voluntary nature" of the waiver, based on what occurred and what the defendant contends, and
(2) whether the enforcement of the waiver would work a "miscarriage ofjustice." See id. at 237.
"Whereas a defendant bears the burden of presenting an argument that would render his waiver
unknowing or involuntary, a court 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." ld. at 237-38 (citing Khattak, 273 F. 3d at 563).
Paragraph A8 of the Plea Letter states:
Dominic Conroy 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, Dominic Conroy 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, Dominic Conroy may take a direct appeal from the
sentence.
Dominic Conroy 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. [ECF No. 49-1 at 4].
Conroy signed and dated the document June 7, 2007 and it was witnessed by his Counsel
W. Penn Hackney, Esquire indicating that Conroy knew and understood the appeal rights he was
waiving and that he did so voluntarily [ECF No. 49-1 at 6]. Conroy in his Motion to Vacate does
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not argue that he didn't understand his waiver and, therefore, we consider it a valid waiver of his
appellate rights.
h. Miscarriage of Justice.
The next step in our analysis is to determine whether enforcement of the waiver would
work a miscarriage of justice in this case. See Mabry, 536 F.3d at 238. In so considering, a court
is to use a "common sense approach in determining whether a miscarriage ofjustice would occur
if the waiver were enforced." Id. at 242-43. There is no identified list of specific circumstances
to consider before invalidating a waiver as involving a miscarriage ofjustice. See id. at 243.
The United States Court of Appeals for the Third Circuit has "endorsed the methodology of the
Court of Appeals for the First Circuit," and instructed that we should consider "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 (quoting U.S. v. Teeter, 257 F.3d 14,25-26 (Ist Cir. 2001»).
In this case we see no evidence of a miscarriage ofjustice. There is no reason to believe
Conroy didn't understand his actions and there is no reason to believe that the outcome of this
case was unjust. Conroy clearly waived his rights under the terms of the plea agreement and let
extended time lapse for filing an appeal. Furthermore, he let an extraordinary amount of time
pass before seeking relief from the Court. The only reason Conroy provides accounting for this
lapse of time is that he came into funds to support hiring an attorney who educated him about
expert testimony. The system provides defense attorneys for defendants who are not able to pay.
Ability to hire an attorney should not be an issue, therefore, Conroy had the ability to consult
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with an attorney regarding his appeal in a timely fashion. We see no legitimate ground upon
which Conroy can say justice was not served in his case. Therefore, we find Conroy's Motion to
Vacate is procedurally barred.
A. Substantive Issues
Conroy makes two claims based on ineffective assistance of counsel. First, Conroy
claims that his counsel was ineffective because he failed to present an expert report with regard
to
the evidence. More specificalJy, Conroy asserts that an expert witness could have testified
Conroy has a low risk of reoffending, which Conroy asserts would have resulted in a reduction of
sentence [ECF No. 45 at 3]. Conroy's second claim is that his counsel was ineffective because
counsel should have moved the Court to dismiss charges for which Conroy was already
sentenced in state court. Conroy claims double jeopardy applies here [ECF No. 45 at 3-4].
The Court will address Conroy's claims using the guidance provided by the court in
Strickland v. Washington, 466 U.S. 668 (1994). Under the first prong of Strickland, Conroy
must show that counsel's representation "fell below an objective standard of reasonableness."
United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002) (citing Strickland, 466 U.S. at 688). A
defendant can establish the first prong by showing that counsel performed below the level
expected from a reasonably competent attorney in criminal cases. See Strickland, 466 U.S. at
687-88. However, there is a "strong presumption that counsel's conduct falls within the range of
reasonable professional assistance." ld. at 689. To establish Strickland's second prong, Conroy
must show that counsel's deficient performance prej udiced the defense, to the extent that "there
is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
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undermine confidence in the outcome." Id. at 694.
Conroy asserts in his Motion to Vacate that defense counsel was ineffective because he
did not put forth mitigating evidence of Conroy's background. However, Conroy gives us no
specific detail regarding what in his background would cause the Court to reduce his sentence.
We must assume that defense counsel's decision to not put on expert evidence regarding
Conroy's likelihood of reoffending was a strategic decision which does not faH below the level of
reasonableness. A "tactical decision about which competent lawyers might disagree" does not
qualify as objectively unreasonable. Bell v. Cone, 535 U.S. 685, 702 (2002). It is our opinion
that Conroy's argument fails at this prong. In addition, Conroy's assertion fails at the second
prong of Strickland with regard to this issue because this Court cannot say with any modicum of
reasonable probability that had defense counsel put forward such hypothetical mitigating
evidence as Conroy suggests that the outcome of the case would have been any different. As the
Government stated in its Brief, Conroy was sentenced at the low end of the senteneing guideline
range and, therefore, had seemingly already been afforded some mitigating considerations. We
find that neither prong of Strickland is satisfied and Conroy's first claim of ineffective assistance
of counsel fails.
With regard to Conroy's second claim of ineffective assistance of counsel wherein
Conroy asserts that counsel should have moved to dismiss the federal charges based on double
jeopardy because he was already convicted for the same crime under state law, the law is clear
and well established on this issue. There is no constitutional bar that exists that prohibits
prosecution ofthe same act under both state and federal law.
Bartkus v. Illinois, 359 U.S.
121,128-29 (1959): U.S. v. Lanza, 260 U.S. 377, 383-84 (1922); Health v. Alabama, 474 U.S.
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82,88-9 (1985). Therefore, we find Conroy's double jeopardy claim futile and without merit.
IV
Conclusion
For the various reasons set forth above, it is the opinion of this Court that Conroy is
procedurally barred from filing a Motion to Vacate under 28 U.S.C. § 2255; that Conroy
knowingly and voluntarily waived his right to file a collateral appeal; and that Conroy's claims of
ineffective assistance of counsel are without merit. Conroy's sentencing was not defective
resulting in a miscarriage of justice. Conroy's Motion to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody under 28 U.S.c. § 2255 [ECF No. 46] is DENIED. Moreover, a
Certificate of Appealability will not be issued with respect to this Motion.
}I
October y(2014
~ ~.
Cc,iL:.u ,'fr.
Maurice B. Cohill, Jr.
Senior United States District Court Judge
Western District of Pennsylvania
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