SEARS v. USA

Filing 1

MEMORANDUM OPINION re: Motion to Vacate/Set Aside/Correct Sentence (2255) filed by RICCO SEARS. For the reasons set forth in this opinion, petitioner's § 2255 motion will be DENIED without prejudice; order to follow. The court mailed a copy of this opinion to petitioner at the address listed on the docket. Signed by Chief Judge Joy Flowers Conti on 2/26/2016. (bgm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RICCO SEARS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civ. No. 14-1268
Crim. No. 08-229
Crim. No. 08-297

OPINION
CONTI, Chief District Judge
I.

INTRODUCTION
Petitioner Ricco Sears (“petitioner”)—a prisoner in federal custody—filed

this pro se motion to vacate, set aside, or correct a sentence, pursuant to 28 U.S.C.
§ 2255 (“§ 2255”). (ECF No. 68;1 Crim. No. 08-229, ECF No. 94.) Having been
fully briefed, petitioner’s § 2255 motion is ripe for disposition. Because petitioner
fails to demonstrate a miscarriage of justice or prejudice in this case, the court will
deny petitioner’s § 2255 motion without prejudice.
II.

BACKGROUND AND PROCEDURAL HISTORY
A.

The 08-229 and 08-297 cases

On June 11, 2008, a federal grand jury returned an indictment at criminal
number 08-229 (the “08-229 case”) charging petitioner with possession with intent

1

Unless a different case number is specified, all ECF citations correspond to
docket in criminal number 08-297.
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to distribute less than 100 grams of heroin, in violation of 21 U.S.C. §§ 841(a) and
841(b)(1)(C). (Crim. No. 08-229, ECF No. 1.) On August 11, 2008, the
government filed an information at criminal number 08-297 (the “08-297 case”)
charging petitioner with receipt of a firearm by a person under indictment, in
violation of 18 U.S.C. § 922(n). (ECF No. 1.) The undersigned district judge
presided over all relevant phases of the 08-229 and 08-297 cases.
On August 15, 2008, petitioner:
 withdrew his plea of not guilty, waived his right to trial by jury, and
pleaded guilty to the charge in the indictment in the 08-229 case
(Crim. No. 08-229, ECF No. 37); and
 waived his right to a grand-jury indictment and pleaded guilty to the
charge in the information in the 08-297 case. (ECF Nos. 4–6.)
On November 25, 2008, the undersigned district judge sentenced petitioner
to concurrent sentences of forty-six months of imprisonment and three years of
supervised release at each of the charges in the 08-229 and 08-297 cases. (Crim.
No. 08-229, ECF Nos. 43, 44; ECF Nos. 12, 13.) As a condition of his supervised
release in the 08-229 and 08-297 cases, petitioner was prohibited from committing
another federal, state, or local crime. (Crim. No. 08-229, ECF No. 44 at 3; ECF
No. 13 at 3.)

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B.

The 12-200 and 12-309 cases and petitioner’s supervised release
violations in the 08-229 and 08-297 cases

On July 24, 2012—after petitioner was released from the custody of the
Bureau of Prisons (“BOP”) and during petitioner’s three-year supervised release
terms in the 08-229 and 08-297 cases—a federal grand jury returned an indictment
at criminal number 12-200 (the “12-200 case”) charging petitioner with conspiracy
to possess with intent to distribute and distribute one kilogram or more of heroin,
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i), and 846. (Crim. No. 12200, ECF No. 1.) On December 18, 2012—also during petitioner’s supervised
release term in the 08-229 and 08-297 cases—a federal grand jury returned an
indictment at criminal number 12-309 (the “12-309 case”) charging petitioner with
possession with intent to distribute a quantity of heroin, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C). (Crim. No. 12-309, ECF No. 1.) Another district
judge of this court presided over all relevant phases of the 12-200 and 12-309
cases.
On January 10, 2013, the probation office petitioned the undersigned district
judge to revoke petitioner’s three-year term of supervised release in the 08-229 and
08-297 cases because the conduct charged in the 12-200 and 12-309 cases violated
the condition of petitioner’s supervised release that he not commit another federal
crime. (Crim. No. 08-229, ECF No. 79; ECF No. 60.)

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On October 17, 2013, the district judge presiding over the 12-200 and 12309 cases held a hearing at which petitioner withdrew his pleas of not guilty,
waived his right to trial by jury, and pleaded guilty to the charges in the
indictments in the 12-200 and 12-309 cases. (Crim. No. 12-200, ECF Nos. 283,
284; Crim. No. 12-309, ECF Nos. 32, 33.) Petitioner pleaded guilty to the charges
in the 12-200 and 12-309 cases pursuant to a written plea agreement. Under the
plea agreement, the parties stipulated to concurrent sentences of sixty months of
imprisonment and six years of supervised release at each charge in the 12-200 and
12-309 cases, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).2
On February 11, 2014, the undersigned district judge held a supervised
release revocation hearing in the 08-229 and 08-297 cases based upon petitioner’s
guilty pleas in the 12-200 and 12-309 cases. (Crim. No. 08-229, Text Minute
Entry, 2/11/2014; Crim. No. 08-297, Text Minute Entry, 2/11/2014.) At the
hearing, the undersigned district judge revoked petitioner’s supervised release and
sentenced petitioner to concurrent sentences of eighteen months of imprisonment
at each supervised release violation in the 08-229 and 08-297 cases (the

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With a total offense level of twenty-one and petitioner’s criminal history
category of V, the United States Sentencing Guidelines called for a term of
imprisonment for the convictions in the 12-200 and 12-309 cases of seventy to
eighty-seven months and a term of supervised release of six years. See U.S.S.G.
Sentencing Table, § 5D1.2(c).
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“Supervised Release Sentences”),3 to be served consecutively to any sentence of
imprisonment yet-to-be imposed by the district judge presiding over the 12-200
and 12-309 cases. (Crim. No. 08-229, ECF No. 93; ECF No. 66.)
On February 19, 2014—eight days after the undersigned district judge
imposed the Supervised Release Sentences—the district judge presiding over the
12-200 and 12-309 cases sentenced petitioner to concurrent sentences of sixty
months of imprisonment and six years of supervised release at each of the charges
in the 12-200 and 12-309 cases (the “Substantive Sentences”), to be served
consecutively to the Supervised Release Sentences. (Crim. No. 12-200, ECF No.
371; Crim. No. 12-309, ECF No. 44.)
On September 16, 2014, the clerk of courts received and filed petitioner’s
timely4 pro se § 2255 motion. (ECF No. 68.) On November 30, 2014, the
government filed a response to petitioner’s § 2255 motion. (ECF No. 69.) On
December 23, 2014, petitioner filed a reply to the government’s response to
petitioner’s § 2255 motion. (ECF No. 74.) On February 9, 2015, the court held a
hearing at which the parties argued petitioner’s § 2255 motion. (Crim. No. 08-297,
Text Minute Entry, 2/9/2015.) At the hearing, the court granted petitioner leave to
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The sentencing guidelines recommended consecutive terms of imprisonment of
eighteen to twenty-four months at each supervised release violation in the 08-229
and 08-297 cases. U.S.S.G. § 7B1.4.
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See 28 U.S.C. § 2255(f)(1).
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file a supplement to his § 2255 motion. (Id.) On May 13, 2015, petitioner filed a
supplemental § 2255 motion. (ECF No. 85.) On August 3, 2015, the government
filed a response to petitioner’s supplemental § 2255 motion. (ECF No. 89.) On
August 18, 2015, petitioner filed a reply to the government’s response to
petitioner’s supplemental § 2255 motion. (ECF No. 90.)
III.

STANDARD OF REVIEW
A prisoner in federal custody may move the sentencing court to vacate, set

aside, or correct a sentence on grounds that it 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); Hill v. United States, 368 U.S. 424, 426–27 (1962). As a
remedy, the court must “vacate and set the judgment aside and . . . discharge the
prisoner or resentence him [or her] or grant a new trial or correct the sentence as
may appear appropriate.” 28 U.S.C. § 2255(b).
“As a collateral challenge, a motion pursuant to [§ 2255] is reviewed much
less favorably than a direct appeal of the sentence.” United States v. Travillion, 759
F.3d 281, 288 (3d Cir. 2014) (citing United States v. Frady, 456 U.S. 152, 167–68
(1982)). “Indeed, relief under § 2255 is available only when ‘the claimed error of
law was a fundamental defect [that] inherently results in a complete miscarriage of
justice, and . . . ‘present[s] exceptional circumstances where the need for the
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remedy afforded by the writ . . . is apparent.’” Id. (quoting Davis v. United States,
417 U.S. 333, 346 (1974) (internal quotation marks omitted)).
The court construes petitioner’s pro se § 2255 motion liberally, but
petitioner “must abide by the same rules that apply to all other litigants.” Mala v.
Crown Bay Marina, Inc., 704 F.3d 239, 244–45 (3d Cir. 2013).
IV.

DISCUSSION
In his § 2255 motion, petitioner argues:
(A)

the court exceeded its authority under 18 U.S.C. § 3584(a) by
imposing the Supervised Release Sentences to be served
consecutively to the anticipated, but not-yet imposed,
Substantive Sentences; and

(B)

petitioner’s counsel was ineffective for failing to object to the
Supervised Release Sentences.

The court addresses each of petitioner’s arguments in turn.5

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At petitioner’s February 11, 2014 supervised release revocation hearing in the
08-229 and 08-297 cases, petitioner and his then-counsel requested a sentence of
time served because petitioner was incarcerated for eighteen months leading up to
his revocation hearing. (ECF No. 76 at 29–31.) The court responded that petitioner
would receive credit for the time he served under the BOP’s sentencing-calculation
procedures, the court would recommend to the BOP that petitioner receive credit
for time served, and the BOP would decide how to allocate credit for time served.
(Id.)
At the February 9, 2015 hearing on petitioner’s § 2255 motion, petitioner argued
he suffered prejudice because his then-counsel failed to argue for—and the court
erred in not ordering—a sentence of time served. The court noted that petitioner
failed to raise this argument in his initial § 2255 motion. The court granted
petitioner the opportunity to brief the matter further in a supplement to his § 2255
motion.
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A.

Whether the court exceeded its authority under 18 U.S.C. §
3584(a)

Petitioner argues the court exceeded its authority under § 3584(a) by
imposing the Supervised Release Sentences to be served consecutively to the
anticipated, but not-yet imposed, Substantive Sentences.
The statute governing the manner in which multiple sentences of
imprisonment may be imposed is 18 U.S.C. § 3584(a). In relevant part, that statute
provides:
If multiple terms of imprisonment are imposed on a defendant at the
same time, or if a term of imprisonment is imposed on a defendant
who is already subject to an undischarged term of imprisonment, the
terms may run concurrently or consecutively. . . . Multiple terms of
imprisonment imposed at the same time run concurrently unless the
court orders or the statute mandates that the terms are to run
consecutively. Multiple terms of imprisonment imposed at different
times run consecutively unless the court orders that the terms are to
run concurrently.
Id.
In Setser v. United States, 132 S. Ct. 1463, 1473 (2012), the United States
Supreme Court held that § 3584(a) provides district courts discretion to order that a
federal sentence run consecutively to an anticipated, but not-yet imposed, state
sentence. In dicta, the Court implied that § 3584(a) does not allow a federal
In his supplemental § 2255 motion, petitioner does not argue that the court erred
in determining that the BOP—as opposed to the court—had power to decide
whether and how to allocate credit for the time petitioner served in this case. The
court, therefore, deems this argument abandoned. See Bultmeyer v. United States,
No. 13-2771, 2015 WL 852092, at *9–10 (D.N.J. Feb. 26, 2015).
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sentence to run consecutively to an anticipated, but not-yet imposed, federal
sentence:
[T]he text of § 3584(a) does not distinguish between state and federal
sentences. If a district court can enter a consecutive sentencing order
in advance of an anticipated state sentence, . . . what is to stop it from
issuing such an order in advance of an anticipated federal sentence? It
could be argued that § 3584(a) impliedly prohibits . . . an order [that a
federal sentence run consecutively to an anticipated, but not-yet
imposed, federal sentence] because it gives that decision to the federal
court that sentences the defendant when the other sentence is
“already” imposed—and does not speak (of course) to what a state
court must do when a sentence has already been imposed. It suffices
to say, however, that this question is not before us.
Id. at 1471 n.4 (emphasis in original).
The United States Courts of Appeal for the Fourth, Ninth, and Fifth Circuits
have held that § 3584(a) prohibits an order that a federal sentence run
consecutively to an anticipated, but not-yet imposed, federal sentence. United
States v. Obey, 790 F.3d 545, 548–50 (4th Cir. 2015) (reaffirming the holding of
United States v. Smith, 472 F.3d 222 (4th Cir. 2006), after Setser); United States v.
Montes-Ruiz, 745 F.3d 1286, 1290–93 (9th Cir. 2014); United States v. QuintanaGomez, 521 F.3d 495, 497–98 (5th Cir. 2008) (deciding the issue before Setser). In
Montes-Ruiz, the Ninth Circuit Court of Appeals observed that
permitting one federal court “to impose a sentence consecutive to an
anticipated federal sentence would present the second district court
judge with the Hobson’s choice of either ignoring his [or her] own
judgment that a concurrent sentence was appropriate or disobeying the
order of another district court.” [Quintana-Gomez, 521 F.3d at 498]
(citation, alteration, and internal quotation marks omitted). . . .
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Congress could not have intended such a consequence, and . . . a
contrary reading would violate the general principle that “one district
court has no authority to instruct another district court how, for a
different offense in a different case, it must confect its sentence. . . .”
Id.
...
We are persuaded by the language of [§ 3584(a)], the rationale of our
prior decisions, the decisions from our sister circuits, and [dicta] from
the . . . Court [in Setser] that § 3584 does not permit a federal
sentencing court to impose a sentence to run consecutively to another
federal sentence that has yet to be imposed.
Montes-Ruiz, 745 F.3d at 1292–93. No other federal appellate court—including the
United States Court of Appeals for the Third Circuit—has addressed this issue.
In this case, the court agrees with the reasoning of Montes-Ruiz and
concludes that the imposition of the consecutive running of the Supervised Release
Sentences to the yet-to-be imposed Substantive Sentences violated § 3584(a). See
Montes-Ruiz, 745 F.3d at 1292–93 (“‘[O]ne district court has no authority to
instruct another district court how, for a different offense in a different case, it
must confect its sentence.’” (quoting Quintana-Gomez, 521 F.3d at 498)).
This conclusion, however, is not dispositive of petitioner’s § 2255 motion.
Even if the court exceeded its authority under § 3584(a) in imposing the
consecutive running of the Supervised Release Sentences to the not-yet imposed
Substantive Sentences, petitioner fails to show that this “‘error of law was a
fundamental defect” that “inherently result[ed] in a complete miscarriage of
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justice’” against him, as required under § 2255. Travillion, 759 F.3d at 288
(quoting Davis, 417 U.S. at 346). The other district judge imposed the Substantive
Sentences to be served consecutively to the Supervised Release Sentences imposed
previously by the undersigned district judge. See (Crim. No. 12-200, ECF No. 371
at 2.) Therefore, even if this court vacated the Supervised Release Sentences, the
Substantive Sentences—which independently run consecutively to the Supervised
Release Sentences—would still apply to petitioner. Under those circumstances, the
court cannot conclude that the imposition of the consecutive running of the
Supervised Release Sentences to the not-yet imposed Substantive Sentences
resulted in a “‘complete miscarriage of justice’” against petitioner in this case.
Travillion, 759 F.3d at 288 (quoting Davis, 417 U.S. at 346).
Petitioner argues that: (1) the Supervised Release Sentences unduly
influenced the other district judge’s decision to impose the Substantive Sentences
to be served consecutively to the Supervised Release Sentences; (2) the evidence
supporting the charges against him in the 12-200 and 12-309 cases was
insufficient; and (3) petitioner pleaded guilty to the charges in the 12-200 and 12309 cases “out of fear and force.” (ECF No. 85 at 3–5.) These arguments are
inapposite with respect to this § 2255 motion.6 Section 2255 does not grant the

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Relevant to the Supervised Release Sentences, petitioner admitted that his guilty
pleas in the 12-200 and 12-309 cases violated the conditions of his supervised
release in the 08-229 and 08-297 cases. (ECF No. 76 at 4:1–13.)
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undersigned district judge authority to vacate or alter the Substantive Sentences
imposed by the other district judge in the 12-200 and 12-309 cases; petitioner may
only “move the court which imposed [those] sentence[s] to vacate, set aside[,] or
correct” them. 28 U.S.C. § 2255(a) (emphasis added).
Because petitioner is subject to the Substantive Sentences—which
independently run consecutively to the Supervised Release Sentences—petitioner
fails to show that this court’s error under § 3584(a) resulted in a miscarriage of
justice against him in this case, as required for relief under § 2255.
B.

Whether counsel’s representation of petitioner was ineffective

Petitioner argues his former counsel was ineffective for his failure to object
to the consecutive running of the Supervised Release Sentences imposed in this
case, in violation of petitioner’s Sixth Amendment right to counsel. Petitioner
argues his counsel’s failure to object prejudiced him and deprived him of the
opportunity to argue that the Supervised Release Sentences should run
concurrently with—not consecutively to—the Substantive Sentences. (ECF No. 85
at 11.)
Ineffective assistance of counsel claims are governed by Strickland v.
Washington, 466 U.S. 668 (1984). Under Strickland, petitioner must show that
counsel’s performance was deficient. This requires showing that
counsel made errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment. Second,
the defendant must show that the deficient performance prejudiced the
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defense. This requires showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is
reliable.
Id. at 687. Under Strickland’s deficiency requirement, petitioner “‘must show that
counsel’s representation fell below an objective standard of reasonableness[,]’
meaning ‘reasonableness under prevailing professional norms.’” Berryman v.
Morton, 100 F.3d 1089, 1094 (3d Cir. 1996) (quoting Strickland, 466 U.S. at 688).
Under Strickland’s prejudice requirement, petitioner must show there is a
“reasonable probability that, but for [his] counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland, 466 U.S. at 694. A
“totally speculative” harm, Baker v. Barbo, 177 F.3d 149, 154 (3d Cir. 1999), or
the “‘mere possibility’ of receiving a concurrent sentence” does not demonstrate
prejudice. United States v. Hopkins, 568 F. App’x 143, 148 (3d Cir. 2014) (quoting
Prewitt v. United States, 83 F.3d 812, 818–19 (7th Cir. 1996)).
In this case, the court need not determine whether counsel’s representation
of petitioner was deficient under Strickland because petitioner fails to show he
suffered prejudice from his counsel’s failure to object to the consecutive running of
the Supervised Release Sentences to the not-yet imposed Substantive Sentences.
As a result, petitioner fails to demonstrate that his counsel’s representation was
ineffective under Strickland and the Sixth Amendment. See Marshall v. Hendricks,
307 F.3d 36, 87 (3d Cir. 2002) (“‘[The] court need not determine whether
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counsel’s performance was deficient before examining the prejudice suffered by
the defendant as a result of the alleged deficiencies.’” (quoting Strickland, 466
U.S. at 697)).
As explained previously, the other district judge imposed the Substantive
Sentences to be served consecutively to the Supervised Release Sentences imposed
previously by the undersigned district judge. See (Crim. No. 12-200, ECF No. 371
at 2.) Therefore, even if counsel’s representation of petitioner was deficient under
Strickland during the supervised release revocation proceedings, the Substantive
Sentences—which independently run consecutively to the Supervised Release
Sentences—still apply to petitioner. These circumstances negate petitioner’s claim
that he suffered prejudice in the form of consecutive sentences from the Supervised
Release Sentences imposed in this case.
Petitioner argues the district judge presiding over the 12-200 and 12-309
cases likely would have imposed the Substantive Sentences to be served
concurrently with the Supervised Release Sentences if his then-counsel would have
objected to the consecutive running of the Supervised Release Sentences during the
revocation proceedings. See, e.g., (ECF No. 85 at 9–10.) This argument is too
speculative to show a “reasonable probability that, but for [his] counsel’s
unprofessional errors, the result of the proceeding[s] would have been different.”
Strickland, 466 U.S. at 694 (emphasis added). In imposing the Substantive
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Sentences to be served consecutively to the Supervised Release Sentences, the
other district judge took into account the relevant statutory minimum and
maximum penalties, the sentencing guidelines, and the sentencing factors set forth
in 18 U.S.C. § 3553(a). See (ECF No. 89-1.) The undersigned district judge
declines to speculate whether the other district judge would or would not have been
persuaded to impose concurrent sentences by the objection of petitioner’s thencounsel to consecutive sentences in this case. In any event, § 2255 does not grant
the undersigned district judge authority to vacate or alter the Substantive Sentences
imposed by the other district judge in the 12-200 and 12-309 cases. See 28 U.S.C.
§ 2255(a). For these reasons, petitioner fails to show he suffered prejudice from his
counsel’s failure to object to the consecutive running of the Supervised Release
Sentences to the not-yet imposed Substantive Sentences, as required to
demonstrate ineffective assistance of counsel under Strickland.
V.

CONCLUSION
Because petitioner’s arguments under § 3584(a) and Strickland are

insufficient for relief from the Supervised Release Sentences, and because
petitioner does not present any other grounds for relief, the court will deny
petitioner’s § 2255 motion.
The court notes that petitioner filed a § 2255 motion in the 12-200 and 12309 cases raising the same challenges under § 3584(a) and Strickland that he raises
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in this § 2255 motion. (Crim. No. 12-200, ECF No. 438; Crim. No. 12-309, ECF
No. 56.) In both the 12-200 and 12-309 cases, petitioner’s § 2255 motion was
denied without prejudice to its refiling after the disposition of this § 2255 motion.
(Crim. No. 12-200, ECF No. 479; Crim. No. 12-309, ECF No. 59.) In light of those
dismissals, dismissal of petitioner’s § 2255 motion in this case will be without
prejudice to petitioner refiling his § 2255 motion in the 12-200 and 12-209 cases to
raise the argument presented here. Petitioner may bring this court’s error to the
attention of the other district judge. This court recognizes it lacked authority to run
the Supervised Release Sentences consecutively to the Substantive Sentences, but
that error did not result in a miscarriage of justice or prejudice to petitioner because
the other district judge imposed the Substantive Sentences to be served
consecutively to the Supervised Release Sentences.
An appropriate order follows.

DATED:

February 26, 2016
/s/ JOY FLOWERS CONTI
Joy Flowers Conti
Chief United States District Judge

CC:
Ricco Sears (#09877-068)
FCI Beckley
P.O. Box 350
Beaver, WV 25813
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