SEARS v. USA
Filing
1
MEMORANDUM OPINION as to RICCO SEARS indicating that Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 is denied, with prejudice; The Court also holds that Defendant has failed to make a substantial showing of the denial of a Constitutional right and is not entitled to a certificate of appealability; An appropriate Order follows. Signed by Judge Nora Barry Fischer on 6/15/2016. (bdk)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
)
)
) Crim. Nos. 12-200 & 12-309
) Civil Action Nos. 14-1274 & 14-1275
) Judge Nora Barry Fischer
)
)
v.
RICCO SEARS,
Defendant.
MEMORANDUM OPINION
I.
INTRODUCTION
This matter is before the Court on a Renewed Motion to Vacate, Set Aside or Correct
Sentence under 28 U.S.C. § 2255 (“Motion”) filed by pro se Defendant Ricco Sears (“Defendant”
or “Sears”), (Docket No. 62)1, which is opposed by the Government, (Docket No. 64). On
February 19, 2014, this Court accepted the parties’ Rule 11(c)(1)(C) plea agreement and sentenced
Defendant to concurrent terms of incarceration of 60 months at each of Count 4 of Criminal
Number 12-200 and Count 1 of Criminal Number 12-309, and also ordered that the sentences run
consecutively to the sentences of 18 months’ incarceration, which were imposed by Chief Judge
Joy Flowers Conti, (“SRV Court”), on February 11, 2014 for supervised release violations at
Criminal Numbers 08-229 and 08-297. (Docket No. 44).
Through his § 2255 Motion, Defendant challenges the portion of this Court’s Judgments
designating that the sentences run consecutively rather than concurrently to the supervised release
sentences imposed by the SRV Court. (Docket Nos. 62, 63, 65). Defendant relies upon the SRV
Court’s Memorandum Opinion denying, without prejudice, his separately filed § 2255 Motion
1
The Court notes that the relevant pleadings and other submissions are dual-filed at Crim. Nos. 12-200 and
12-309. For convenience, the Court cites only to the documents filed at Crim. No. 12-309. The Court also refers to
Defendant’s submission singularly as “Motion” although it is filed at both case numbers.
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challenging the sentences received for the supervised release violations in Criminal Numbers
08-229 and 08-297. See Sears v. United States, Crim. Nos. 08-229, 08-297, 2016 WL 757763
(W.D. Pa. Feb. 26, 2016).2 In that decision, the SRV Court noted that lack of binding authority
from the United States Court of Appeals for the Third Circuit but accepted persuasive authority
from other Courts of Appeal holding that 18 U.S.C. § 3584(a) should be interpreted as meaning
that a Federal District Judge lacks the authority to prospectively order a federal sentence to run
consecutively (or concurrently) to an anticipated but yet to be imposed federal sentence. Id.
(citing Setser v. United States, 132 S.Ct. 1463, 1473 (2012); United States v. Obey, 790 F.3d 545,
548-50 (4th Cir. 2015); United States v. Montes-Ruiz, 745 F.3d 1286, 1290-93 (9th Cir. 2014)).
Defendant contends that this Court erroneously relied upon the SRV Court’s Order that the
supervised release sentences should run consecutively to any sentence imposed by this Court for
the substantive offenses at Criminal Numbers 12-200 and 12-309. (Docket Nos. 62, 63, 65). He
further maintains that he was provided ineffective assistance of counsel as his trial counsel did not
argue to this Court that he should be granted concurrent sentences. (Id.).
In its Response, the Government argues that Defendant waived his right to file a motion
under 28 U.S.C. § 2255 collaterally attacking his sentence in his plea agreement with the
Government and points out the Court of Appeals enforced the appellate waiver in the same plea
agreement and summarily dismissed Defendant’s appeal of the substantive sentences in these
matters. (Docket No. 64). The Government alternatively maintains that Defendant’s legal
arguments are otherwise without merit. (Id.).
After careful consideration of the parties’ arguments, and for the following reasons, the
2
The Court notes that both Defendant and the Government cite to and rely upon the SRV Court’s decision.
(See Docket Nos. 62-65). To the extent necessary, the Court also takes judicial notice of that decision and the
proceedings thereon.
2
Court will enforce the valid waiver contained in Defendant’s plea agreement as doing so would not
amount to a miscarriage of justice and also holds in the alternative that it would deny Defendant’s
Motion on the merits if his claim was not otherwise barred. Accordingly, Defendant’s § 2255
Motion [62] is denied.
II.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
As noted, the pending Motion relates to four separate criminal cases against Defendant:
Criminal Numbers 08-229 and 08-297 which are assigned to the SRV Court; and, Criminal
Numbers 12-200 and 12-309 which are presided over by the undersigned Judge. Defendant was
represented by appointed counsel, Stephen Begler, Esquire in all of these cases. The relevant
facts necessary to resolving the Motion follow.
On November 25, 2008, Defendant was sentenced at Criminal Numbers 08-229 and
08-297 to concurrent terms of 46 months’ incarceration upon his earlier guilty pleas to charges of
possession with intent to distribute less than 100 grams of heroin, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C), and receipt of a firearm by a person under indictment, in violation of
18 U.S.C. § 922(n). (Presentence Investigation Report dated 1/14/14; Docket No. 36 at ¶¶ 46,
47).
The record is undisputed that Defendant concluded the imprisonment portion of his
sentences and was placed on supervised release on November 4, 2011, with his three year term of
supervised release set to expire on November, 3, 2014. (Id.). However, on July 24, 2012 or less
than eight months after being released from the custody of the Bureau of Prisons, (“BOP”),
Defendant was indicted at Criminal Number 12-200, as part of a large heroin trafficking operation
and he was charged with conspiracy to distribute and possess with intent to distribute 1 kilogram or
more of heroin from October 2011 through June 28, 2012, in violation of 21 U.S.C. §§ 841(a)(1),
3
841(b)(1)(A), and 846, at Count 1 and a separate count of distribution of heroin on April 11, 2012
at Count 4, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). (Id. at ¶ 1). The Indictment
returned at Criminal Number 12-200 remained sealed for a few weeks and arrest warrants were
issued for all of the defendants on July 31, 2012. (Id.). Defendant was then arrested and
detained as of August 2, 2012. (Id. at ¶ 2). Upon execution of the arrest warrant, Defendant’s
residence was searched and he was found in possession of a quantity of heroin; $20,090 in United
States currency; and drug trafficking equipment and paraphernalia. (Id. at ¶¶ 20-23).
Naturally, a petition on supervised release action was dual-filed at Criminal Numbers
08-229 and 08-297 alleging that Defendant violated the terms of his supervised release based upon
his criminal conduct set forth in the Indictment at Criminal Number 12-200. (Docket No. 36 at ¶¶
46, 47). As is the typical practice in such situations, the supervised release hearing was continued
until the criminal charges against Defendant supporting the violations were resolved. Another
Indictment was returned against Defendant at Criminal Number 12-309 on December 18, 2012,
charging him with violating 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) as a result of his possession
with intent to distribute the quantity of heroin found during the search of his residence on August
2, 2012. (Id. at ¶ 4).
Defendant appeared before this Court for a change-of-plea proceeding on October 17, 2013
and after conducting an extensive colloquy to confirm that Defendant was competent, understood
the constitutional and other rights that he was waiving by entering guilty pleas, and was knowingly
and voluntarily pleading guilty, the Court accepted his guilty pleas to Count 4 of the Indictment at
Criminal Number 12-200 and Count 1 of the Indictment at Criminal Number 12-309. (Id. at ¶ 7).
During the proceeding, the Court was presented with a fully executed plea agreement signed by the
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parties, including Defendant and his counsel, wherein the parties had stipulated pursuant to Rule
11(c)(1)(C) of the Federal Rules of Criminal Procedure that the specific sentence in these matters
would be: concurrent terms of imprisonment of 60 months; concurrent terms of supervised release
of 6 years; no fine; and a special assessment of $200.00. (Docket No. 48 at 20-27). The Court
addressed the terms of the plea agreement directly with Defendant, who assented, under oath, that:
he had discussed all relevant matters pertaining to the plea agreement with his counsel; and, was
knowingly and voluntarily accepting the terms of the plea agreement and the waivers contained
therein, including waiving his right to appeal the judgments and sentences to the Court of Appeals
and to collaterally attack the sentences by filing a motion to vacate with this Court. (Id. at 24-27).
The Court accepted Defendant’s guilty pleas but deferred acceptance of the plea agreement and the
parties’ stipulated sentence pending its receipt of a Presentence Investigation Report, (“PIR”).
(Id. at 27-8). Thereafter, the PIR was filed with the Court on January 14, 2014, computing the
advisory guidelines range to be 70-87 months’ incarceration and noting that the supervised release
hearing was scheduled before the SRV Court to occur in the near future. (Docket No. 36 at ¶¶ 46,
47).
On February 11, 2014, Defendant appeared before the SRV Court for the supervised
release violation hearing at Criminal Numbers 08-229 and 08-297. See Sears, 2016 WL 757763
at *2. As of this date, Defendant had been in continuous custody of the federal government since
his initial arrest on August 2, 2012, i.e., he had been in jail for 1 year, 6 months and 9 days, without
counting February 11, 2014. (Docket No. 36 at ¶ 2). Stated another way, Defendant had been in
prison for 18 months and nine days before entering the courtroom for the proceeding. At that
time, Defendant admitted the violations set forth in the supervised release petitions, his terms of
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supervised release were revoked and he was sentenced to concurrent terms of 18 months’
imprisonment at each of Criminal Numbers 08-229 and 08-297.
See Sears, 2016 WL 757763 at
*2. The SRV Court also ordered that such sentences shall run consecutively to any sentence
imposed by this Court for the offenses at Criminal Numbers 12-200 and 12-309. Id. As part of
the Judgments, the SRV Court also recommended to the BOP that Defendant be granted credit for
time served, to the extent that he was eligible for same.
Id. at *3, n.5.
A few days later, on February 14, 2014, this Court held a telephone sentencing conference,
at which time the Court was advised by counsel for the parties and the Probation Officer that
Defendant had been sentenced for his supervised release violations. (See Text Minute Entry,
2/14/14). At the direction of the Court, the Probation Officer filed a Second Supplemental
Addendum on the same day, amending the PIR to include a summary of the disposition of the
supervised release petitions at Criminal Numbers 08-229 and 08-297, as was previously outlined
above. (Docket No. 42).
Defendant appeared before this Court for sentencing at Criminal Numbers 12-200 and
12-309 on February 19, 2014. (Docket Nos. 43, 49). As of this date, Defendant had been in
continuous custody of the federal government for 18 months and 17 days, not including the date of
the sentencing. Indeed, Defendant admits in his pro se filings that he had served the entirety of
the concurrent 18 month sentences of incarceration imposed by the SRV Court for his supervised
release violations as of this time.
(Docket No. 63 at 6 (“The ‘[SRV]’ Court denied the
petitioners[’] request to credit him with 18 months[’] time served toward the imposed sentence,
which the petitioner had already served in full at the time of sentencing.”)).
During the sentencing hearing, the Court noted the procedural background of the case
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which included the disposition of the supervised release proceedings, as was set forth in the
Second Supplemental Addendum. (Docket No. 49). Because there were no objections to the
PIR, the Addenda nor the Court’s Tentative Findings and Rulings, the Court found that the
advisory guidelines range was 70 to 87 months’ incarceration. (Id. at 7). Counsel for the parties
provided brief argument wherein they both advocated that the Court should accept the parties’
Rule 11(c)(1)(C) plea agreement and impose the stipulated sentence of 60 months’ incarceration; 6
years’ supervised release; and a special assessment of $200. (Id. at 12-13). Defendant made a
statement in allocution. (Id. at 13-14). Neither party made any recommendation to the Court
concerning whether the sentences at Criminal Numbers 12-200 and 12-309 should run
concurrently or consecutively to the supervised release sentences of 18 months. (Id. at 12-14).
The Court, however, relied upon the length of the supervised release sentences when setting forth
its reasons for accepting the parties’ plea agreement of 60 months’ incarceration which effectively
included a joint motion for a variance below the advisory guidelines range of 70-87 months’
incarceration.
(Id. at 14-15).
The Court commented that when considering 60 months’
incarceration in combination with the consecutive 18 month term for the supervised release
violations, the total sentence of 78 months’ incarceration fell squarely within the advisory
guidelines range of 70-87 months.
(Id.).
All told, this Court accepted the parties’ plea
agreement, imposed the agreed upon sentence, and like the SRV Court, ordered that the sentences
run consecutively to those imposed for the supervised release violations. (Docket Nos. 44; 49 at
18-19). As part of the plea agreement, Count 1 of the Indictment at Criminal Number 12-200 was
dismissed. (Docket No. 44).
Despite the appellate waiver in his plea agreement, Defendant filed a pro se notice of
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appeal which was received by the Clerk of Court and filed on March 5, 2014. (Docket No. 45).
Shortly thereafter, on May 28, 2014, the United States Court of Appeals for the Third Circuit
issued an Order granting the Government’s motion to enforce appellate waiver and for summary
affirmance of the Judgment. (Docket No. 50). Defendant later submitted a pro se petition for
rehearing with the Court of Appeals wherein he challenged this Court’s Order directing that the
sentences for the substantive offenses run consecutively to the supervised release sentences. (See
Docket No. 52 at 2). The petition for rehearing was also denied by the Court of Appeals. (Id.).
In September of 2014, Defendant separately filed pro se § 2255 Motions in the cases before
the SRV Court at Criminal Numbers 08-229 and 08-297 and the cases before this Court at
Criminal Numbers 12-200 and 12-309. See Docket No. 52; see also Sears, 2016 WL 757763 at
*1. With respect to Criminal Numbers 12-200 and 12-309, Defendant initially set forth four
separate grounds for relief under § 2255. (Docket No. 52). Yet, he affirmatively withdrew
grounds two, three and four of his initial § 2255 purporting to raise claims alleging ineffective
assistance of his trial counsel due to all of the following: negotiating a waiver of appeal in the plea
agreement (ground two); failing to pursue a motion to suppress evidence (ground three); and
failing to object to relevant conduct attributed to drug amount which increased his base offense
level and advisory guidelines sentencing range (ground four). (Docket No. 59). At Defendant’s
behest, this Court dismissed each of grounds two, three and four, with prejudice. (Id.). In
contrast, ground one set forth in the initial motion alleged error by the Court in ordering that the
sentence run consecutively in reliance upon the SRV Court’s prior Judgments in the supervised
release cases and claimed that he was provided ineffective assistance by his counsel as he failed to
argue at his sentencing before this Court that the substantive and supervised release sentences
8
should run concurrently.
(Docket No. 52).
This remaining claim was dismissed, without
prejudice, to Defendant renewing same after the parallel § 2255 proceedings before the SRV Court
had concluded. (Docket No. 59).
As noted, the SRV Court issued its decision denying Defendant relief under § 2255 on
February 26, 2016. See Sears, 206 WL 757763 at *1. Defendant filed a notice of appeal
challenging that decision. Subsequently, the SRV Court ruled that Defendant was not entitled to
a certificate of appealability to pursue his claims before the Court of Appeals. See Sears v. United
States, 2016 WL 2766039 (W.D. Pa. May 13, 2016). That matter remains pending before the
Court of Appeals.
On March 4, 2016, Defendant filed a notice advising this Court of the disposition of the
parallel § 2255 motion. (Docket No. 60). This Court then established a briefing schedule for the
litigation of Defendant’s renewed claims.
(Docket No. 61).
Pursuant to this schedule,
Defendant filed his pro se renewed § 2255 Motion on April 5, 2016 and an Addendum two days
later. (Docket Nos. 62, 63). The Government submitted its Response on April 26, 2016.
(Docket No. 64). Defendant then presented his “Answer” which the Court construes as a Reply
Brief, along with a number of attachments. (Docket No. 65).
The official transcripts of the October 17, 2013 change-of-plea hearing and February 19,
2014 sentencing hearing were all filed and considered by the Court. (Docket Nos. 48, 49). This
matter is now ripe for review.
III.
STANDARD OF REVIEW
A prisoner in federal custody may move to vacate his or her sentence under 28 U.S.C. §
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2255(a) if such “sentence was imposed in violation of the Constitution or laws of the United
States.” 28 U.S.C. § 2255(a). “A prisoner seeking relief on the grounds of ineffective assistance
of counsel bears the burden to demonstrate two requirements,” United States v. Seeley, 574 F.
App’x 75, 78 (3d Cir. 2014), which were initially set forth by the Supreme Court of the United
States in Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on a claim of
ineffective assistance of counsel under Strickland, a defendant “must establish that (1) the
performance of counsel fell below an objective standard of reasonableness; and, (2) counsel’s
deficient performance prejudiced the defense.” United States v. Otero, 502 F.3d 331, 334 (3d Cir.
2007) (citing Strickland, 466 U.S. at 688, 694); see also Roe v. Flores–Ortega, 528 U.S. 470, 476–
477 (2000) (citing Strickland, 466 U.S. at 688, 694) (same). The United States Court of Appeals
for the Third Circuit has “endorsed the practical suggestion in Strickland [that the Court may]
consider the prejudice prong before examining the performance of counsel prong ‘because this
course of action is less burdensome to defense counsel.’” United States v. Lilly, 536 F.3d 190,
196 (3d Cir. 2008) (quoting United States v. Booth, 432 F.3d 542, 546 (3d Cir. 2005), which
quoted United States v. McCoy, 410 F.3d 124, 132 n. 6 (3d Cir. 2005)); see also Strickland, 466
U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.”).
Generally, a district court must order an evidentiary hearing in a federal habeas case if a
criminal defendant’s § 2255 allegations raise an issue of material fact. United States v. Biberfeld,
957 F.2d 98, 102 (3d Cir. 1992). But, if there is “no legally cognizable claim or the factual
matters raised by the motion may be susceptible of resolution through the district judge’s review of
the motion and records in the case,” the motion may be decided without a hearing. United States
10
v. Costanzo, 625 F.2d 465, 470 (3d Cir. 1980); see also Lilly, 536 F.3d at 195. If a hearing is not
held, the district judge must accept the criminal defendant’s allegations as true “unless they are
clearly frivolous on the basis of the existing record.” Gov’t of Virgin Islands v. Bradshaw, 726
F.2d 115, 117 (3d Cir. 1984). Similarly, “vague and conclusory allegations contained in a § 2255
petition may be disposed of without further investigation.” United States v. Knight, 2009 WL
275596, at *13 (W.D. Pa. 2009) (quoting United States v. Thomas, 221 F.3d 430, 437 (3d Cir.
2000)).
IV.
DISCUSSION
The Court initially turns to the threshold issue raised by the Government which advocates
that the Court should enforce the collateral attack waiver in the parties’ plea agreement and dismiss
Defendant’s § 2255 Motion. (Docket No. 64). It is well-settled that “[c]riminal defendants may
waive both constitutional and statutory rights, provided they do so voluntarily and with knowledge
of the nature and consequences of the waiver.” United States v. Mabry, 536 F.3d 231, 236 (3d
Cir. 2008) (citations omitted). The United States Court of Appeals for the Third Circuit has
repeatedly held that a criminal defendant may effectively waive the right to file a motion to vacate,
set aside or correct sentence under 28 U.S.C. § 2255 in a plea agreement with the government.
Mabry, 536 F.3d at 241; see also United States v. Khattak, 273 F.3d 557, 561 (3d Cir. 2001) (“The
ability to waive statutory rights . . . logically flows from the ability to waive constitutional
rights.”). If the waiver is effective, a criminal defendant is jurisdictionally barred from pursuing
habeas relief. Mabry, 536 F.3d at 242.
In reaching this decision, the district court must examine “the (1) knowing and voluntary
nature, based on what occurred and what defendant contends, and (2) whether enforcement would
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work a miscarriage of justice.” Id. at 237. A criminal defendant has the initial burden “of
presenting an argument that would render his waiver unknowing or involuntary” but the district
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.” Id. at 237-38 (citing Khattak, 273 F.3d at 563).
A. Knowing and Voluntary Nature of the Plea Agreement
At the outset of Defendant’s change of plea hearing, the Court established that he was
competent to participate in the proceedings.
(See Docket No. 48).
Although he had not
completed high school, dropping out during the twelth grade, and had not subsequently earned his
GED, he had no history of mental or emotional health problems, and appeared to the Court to be
alert, knowledgeable and articulate. (Docket No. 48 at 4-6). Defendant averred that he was not
under the influence of drugs or alcohol and was not under the care of a physician, therapist,
psychologist, or psychiatrist for any ailments which would have affected his ability to understand
the proceedings. 3 (Id. at 4-5). Defense counsel asserted that his client was competent to
participate meaningfully in the hearing. (Id.). The Court observed Defendant’s demeanor and
responses during the colloquy and concluded that he understood the proceedings. (Id. at 6).
Based on the foregoing, the Court found that Defendant was competent to meaningfully participate
and to enter guilty pleas if he chose to do so. (Id. at 5).
After ensuring that Defendant was competent to plead, the Court queried Defendant to
determine whether he had discussed his case with his attorney and whether he was satisfied with
3
The Court notes that Defendant does have a substance abuse history, as is outlined in the PIR and was
discussed at the sentencing hearing. (Docket Nos. 36, 49). However, he was not under the influence of drugs during
the proceedings before the Court and, as noted, had been incarcerated for more than a year before the change of plea
hearing in October of 2013.
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the representation provided by counsel. (Id. at 6-7). Defendant answered each question in the
affirmative. (Id.).
The Court proceeded to advise Defendant of the constitutional rights and protections that
he would be giving up by pleading guilty, as well as the statutory penalties associated with the
charges against him. (Id. at 7-15). Defendant indicated that he understood each of those rights
and still wished to plead guilty. (Id. at 15).
In response to the Court’s request, government counsel summarized the terms of the
agreement on the record, including the parties’ stipulations as to the advisory guidelines range and
noted that this was a Rule 11(c)(1)(C) plea agreement wherein the parties had agreed to a
stipulated sentence of concurrent 60 month terms of incarceration at each count. (Id. at 20-23).
Among other important terms, Government counsel specifically stated that Defendant had
“waive[d] the right to file a motion to vacate sentence under Title 28, United States Code, Section
2255 attacking his conviction or sentence and the right to file any other collateral proceeding
attacking his conviction or sentence.” (Id. at 21). Defendant confirmed on the record that he
consented to each of the terms contained in the agreement. (Id. at 24). The Court then explored
the appellate and collateral attack waiver provisions with Defendant in greater detail:
THE COURT:
Mr. Sears, do you understand that generally you or the
government would have the right to appeal any sentence
that this Court could impose, but pursuant to Paragraph
A8, you might want to turn to A8 on Page 3 of the
agreement, I'm looking at the top of the page, it starts
out: Ricco Sears waives the right -- Do you see where I
am, sir?
THE DEFENDANT: Yes.
THE COURT:
Pursuant to Paragraph A8 on Page 3 of the plea
agreement, you have waived some or all of your appeal
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rights, including the right to take a direct appeal under
Title 28, United States Code, Section 1291, or Title 18,
United States Code, Section 3742, subject to the
exceptions that are spelled out in the plea agreement,
and those exceptions, Mr. Sears, they appear under 8
and I’m looking at A and B at the top of Page 3. If you
follow along, do you understand that those exceptions
permit you to appeal your sentence only if the United
States appeals your sentence, or if the sentence exceeds
the applicable statutory limits set out by the United
States Code, or, the sentence unreasonably exceeds the
guideline range which this Court will determine under
the sentencing guidelines.
Do you understand all that, sir?
THE DEFENDANT: Yes, I do.
THE COURT:
To repeat, by these provisions of the plea agreement,
you are giving up certain rights on appeal. Once again,
do you understand that?
THE DEFENDANT: Yes.
THE COURT:
Then let’s continue looking at Page 3, I'm going to call
your attention to the paragraph that begins:
Ricco Sears further waives the right to file -- Do you see
where I am?
THE DEFENDANT: Yes.
THE COURT:
Further, do you understand that pursuant to Page 3,
Paragraph A8, the paragraph that I just pointed out to
you, you have waived your right to file a motion to
vacate sentence under Title 28, United States Code,
Section 2255 attacking your conviction or sentence and
the right to file any other collateral proceeding attacking
your conviction or sentence.
Do you understand that?
THE DEFENDANT: Yes.
THE COURT:
So, all together, Mr. Sears, you have limited rights to an
appeal.
Now, let me ask you some additional questions.
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Has Mr. Begler reviewed with you what your appeal
rights are and what you may be waiving?
THE DEFENDANT: Yes, he has.
THE COURT:
So, once you have had a discussion with him, you
understand that your appeal rights are limited?
THE DEFENDANT: Yes.
THE COURT:
You should also understand that waivers of appeal are
generally permissible in this court and in the Third
Circuit Court of Appeals as long as they are knowingly
and voluntarily waived, unless there is some kind of a
miscarriage of justice.
Do you understand that?
THE DEFENDANT: Yes.
THE COURT:
Now, I have examined the record such as I know it in
your case and related cases and I have observed you
here in court, I’ve seen your interactions with Mr.
Begler, I’ve heard your responses to my questions, and
at this time, I don’t find any basis to invalidate or cancel
out your waiver in this case.
Do you understand that, sir --
THE DEFENDANT: Yes.
(Id. at 24-27). Defendant stated that he understood and agreed to each of the terms set forth in the
plea agreement and was satisfied with the agreement that he had reached with the Government.
(Id. at 6, 24-27, 44). He also told the Court that his guilty pleas were the product of his own
volition and denied that he had been threatened or forced to plead guilty or that anyone had made
him any promises as to what his actual sentences would be, outside of the plea agreement. (Id. at
43-44).
At the sentencing hearing, counsel for both parties advocated that the Court should accept
the parties’ plea agreement and impose the stipulated sentence. (Docket No. 49 at 12-14). After
15
careful consideration of the parties’ arguments, and all of the facts of record in light of the factors
under section 3553(a), the Court accepted the parties’ agreement, expressly noting that the
sentences represented a variance below the advisory guidelines range of 70 to 87 months, but,
when viewed in combination with the 18 month sentences, the total sentence of 78 months was
within the range of 70 to 87 months’ incarceration. (Id. at 14-17).
In this Court’s estimation, the record before the Court, including the fully executed written
plea letter and Defendant’s assertions under oath at the change-of-plea hearing, conclusively
establishes that Defendant knowingly and voluntarily agreed to waive his rights to collaterally
attack the sentences that he received as part of his Rule 11(c)(1)(C) plea agreement. Defendant’s
cursory assertions to the contrary in his subsequent pro se filings that he was forced to plead are
not credited in light of this overwhelming record. See e.g., Blackledge v. Allison, 431 U.S. 63,
73-74 (1977) (“the representations of the defendant, his lawyer, and the prosecutor at [a plea]
hearing, as well as any findings made by the judge accepting the plea, constitute a formidable
barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong
presumption of verity.”). As the Government advocates, Defendant received substantial benefits
from the plea agreement, most significantly that Count 1 of the Indictment at Criminal Number
12-200, which carried a mandatory minimum penalty of 10 years and up to a life term, was
dismissed by the Government. See e.g., Khattak, 273 F.3d at 562 (collateral attack waivers “may
assist defendants in making favorable plea bargains . . . providing defendants a valuable bargaining
chip in the plea process.”). Additionally, the 60 month terms represented a significant variance
below the advisory guidelines range of 70-87 months and the concurrent designation between the
two counts of conviction precluded the Court from ordering that the sentences run consecutively
16
under 18 U.S.C. § 3584(a). Overall, the Court finds that Defendant knowingly and voluntarily
waived his rights to collaterally attack his sentences under § 2255 in Criminal Numbers 12-200
and 12-309 and that this waiver is enforceable. See Mabry, 536 F.3d at 242.
B. Miscarriage of Justice
Having determined that the waiver was knowing and voluntary, the Court must next
consider “whether enforcement [of the waiver] would work a miscarriage of justice” under the
facts of this case. Mabry, 536 F.3d at 237. In so doing, the Court applies a “common sense
approach” that takes into account “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 that error on the government, and the extent to which the
defendant acquiesced in the result.” Id. at 242-43 (internal citations and quotations omitted).
“Courts apply the miscarriage of justice exception sparingly and without undue generosity, but
with the aim of avoiding manifest injustice.” United States v. Mitchell, 538 F. App’x 201, 203 (3d
Cir. 2013) (citing Khattak, 273 F.3d at 563).
Initially, a criminal defendant’s challenge to the designation of sentences to run
concurrently or consecutively is of the type that may be waived generally by a defendant under a
broad waiver clause. See e.g., United States v. Banks, 743 F.3d 56 (3d Cir. 2014) (District Court
order that sentences run consecutively barred by appellate waiver). Indeed, the Court of Appeals
enforced the appellate waiver in Defendant’s plea agreement with the Government and summarily
dismissed Defendant’s appeal of the Judgments through which he had requested appellate review
of the consecutive sentences that were imposed by this Court. (Docket No. 50).
Here, the broad waiver in the collateral attack provision barred Defendant from filing “a
17
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.” Plea Letter
dated 9/29/13 at ¶ A.8.
There are no exceptions set forth in the provision, demonstrating the
parties’ intent that all collateral attacks on the convictions and sentences would be barred. See
Banks, 743 F.3d at 58-9 (holding that a “broadly inclusive waiver” provision that included no
specific exceptions barred the appeal of a consecutive sentence). Thus, the only possible basis for
the Court to review the petition is if the Court determines that a “miscarriage of justice” would
result, as noted above. See Mabry, 536 F.3d at 237.
Defendant raises essentially two separate arguments in an effort to meet the miscarriage of
justice test. (Docket Nos. 62, 63, 65). First, he contends briefly that his trial counsel acted
unethically in recommending that he accept the collateral attack waiver provision that necessarily
barred a subsequent ineffective assistance of counsel claim. (Id.). Second, Defendant maintains
that the Judgments entered in the supervised release proceedings must have influenced this Court’s
sentencing decisions and points out that the SRV Court acknowledged that the Judgments should
not have contained an order designating the sentences to be served consecutively to the yet to be
imposed substantive sentences. (Id.). Having carefully considered these positions, the Court is
not persuaded that the miscarriage of justice exception applies in this case.
On the first point, this Court recently examined the ethical issues posed by the collateral
attack waiver in plea agreements that was previously used by the U.S. Attorney’s Office in United
States v. Gardner, Crim. No. 09-180, 2015 WL 4714927 at *5-7 (W.D. Pa. Aug. 7, 2015). In
Gardner, the Court declined to hold that the enforcement of the collateral attack waiver would
result in a miscarriage of justice because: the various ethics opinions confronting the issue were
18
non-binding; the Court of Appeals for the Third Circuit had expressly declined to establish
blanket, bright-line rules prohibiting the enforcement of such clauses; and many District Courts
had continued to enforce the provisions despite the U.S. Attorney’s decision to remove them from
future plea agreements. Id. at *5-7. Notably, the Court of Appeals subsequently denied Ms.
Gardner’s request for a certificate of appealability challenging this Court’s ruling and that decision
stands. See United States v. Gardner, App. No. 15-3147 (3d Cir. Feb. 19, 2016). Accordingly,
for the reasons expressed in Gardner, 2015 WL 4714927 at *5-7, this Court once again declines to
hold that the mere inclusion of the broad collateral attack waiver provision in the plea agreement
represents a miscarriage of justice and will proceed to evaluate the specific arguments lodged by
Defendant. See e.g., United States v. Mitchell, 538 F. App’x 201, 203 (3d Cir. 2013)
(acknowledging the ethical concerns raised by several state bar association ethical committees but
“adher[ing] to the case-by-case evaluation” set forth in Khattak “which requires determining the
validity of each appellate waiver based on its terms and the circumstances in that case.”); United
States v. Grimes, 739 F.3d 125, 130 (3d Cir. 2014).
The next inquiry for the Court is whether the order by the SRV Court prospectively
designating the supervised release sentences to run consecutively to the substantive sentences that
had yet to be imposed and which the SRV Court concluded was entered in error, represents a
miscarriage of justice warranting relief from the collateral attack provision in ¶ A.8 of the plea
agreement. After reviewing this matter, this Court finds that any errors occasioned by the SRV
Court’s Judgments were harmless and neither prejudiced Defendant nor affected his substantial
rights at the sentencing hearing before this Court. This holding is reached for several reasons.
First, a thorough review of the facts and circumstances of these matters demonstrate that
19
Defendant had already served the entirety of the supervised release sentences of 18 months before
he appeared in Court for his sentencing at Criminal Numbers 12-200 and 12-309. Defendant
admits as much in his pro se filings. (Docket No. 63 at 6 (“The ‘[SRV]’ Court denied the
petitioners[’] request to credit him with 18 months[’] time served toward the imposed sentence,
which the petitioner had already served in full at the time of sentencing.”)). To be clear, the
undisputed record shows that Defendant was in federal custody from August 2, 2012 through
February 18, 2014 or for a period of 18 months and 17 days before appearing for his sentencing at
Criminal Numbers 12-200 and 12-309 on February 19, 2014. (Docket No. 36 at ¶ 2). The cases
are legion that neither 18 U.S.C. § 3584(a) nor Guideline § 5G1.3 permit a court to order sentences
to run concurrently unless a defendant is subject to an undischarged term of imprisonment on the
date of the sentencing – which is the earliest date the sentences could have commenced under
federal law.4 See e.g., Hasan v. Sniezek, 379 F. App’x 232, 235 (3d Cir. 2010) (holding that §
5G1.3 “refers only to undischarged terms of imprisonment” and that as the defendant had
“completed his sentence for the supervised release violation approximately five months before he
was sentenced for the instant offense” his sentence had been discharged and the sentences could
4
As this Court held in United States v. Zwick,
[p]ursuant to 18 U.S.C. § 3584 and Guideline § 5G1.3, a district court has the
authority to order that a term of imprisonment run consecutively or concurrently
to another term of imprisonment imposed either at the same time or prior to the
imposition of sentence. See 18 U.S.C. § 3584; U.S.S.G. § 5G1.3. However, the
authority to order that a term of imprisonment run concurrently to a term of
imprisonment previously imposed remains limited by section 3585(a), and, even
if a concurrent sentence is ordered, the earliest date that the federal sentence
commences is the date of sentencing.
United States v. Zwick, Crim. No. 07-425, Civ. A. No. 10-1449, 2011 WL 666182, at *7 (W.D. Pa. Feb. 14, 2011).
“[A] district court is without authority to backdate a sentence to commence prior to the date that a sentence of
imprisonment is imposed.” Id. Further, “[u]nder 18 U.S.C. § 3585(b), the Bureau of Prisons has the exclusive
authority to determine if a defendant is entitled to presentence credit for time served prior to the commencement of his
sentence,” and any order issued by a district court granting credit for time served is treated as a non-binding
recommendation to the BOP. Id. (internal citations omitted).
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not run concurrently); Morales v. Zenk, 414 F. App’x 383, 386 (3d Cir. 2011) (holding that
because the federal sentence had been fully satisfied, the second District Judge lacked the authority
to order the sentences to run concurrently); Prescod, Jr. v. Schuylkill, 630 F. App’x 144, 147 (3d
Cir. 2015) (citing United States v. Lucas, 745 F.3d 626, 630 (2d Cir. 2014) (federal courts lack the
authority to order that a sentence run concurrently with a sentence which has been completely
discharged)).
Here, setting aside any computations by the BOP, (such as credits for good time or the
like), which may have reduced the actual time that Defendant had to serve below the concurrent 18
month terms that were ordered, Defendant’s supervised release sentences were undoubtedly
discharged and fully satisfied as of February 19, 2014 when he appeared before this Court for his
sentencing. 5
Hence, because Defendant was not subject to any undischarged term of
imprisonment at that time, this Court simply did not have the authority to order that the substantive
sentences run concurrently to the supervised release sentences, even if this Court believed that the
imposition of concurrent sentences was appropriate. See 18 U.S.C. § 3584(a) (“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.”). Therefore, any errors that
may have been committed by the SRV Court had no bearing on Defendant’s substantive sentences
and he was not prejudiced by his counsel failing to argue for concurrent sentences that this Court
5
The Court takes judicial notice of the Bureau of Prisons’ Inmate Locator tool available at www.bop.gov
which shows that Defendant’s projected release date is presently reported as May 5, 2018. See e.g., Perez v.
Zickefoose, 2014 WL 47727 (D.N.J. Jan. 7, 2014) (taking judicial notice of BOP inmate locator projection).
Considering that Defendant was initially detained upon his arrest on August 2, 2012, if his projected release date is
May 5, 2018, the BOP is presently projecting that Defendant will serve 5 years, 9 months and 3 days in prison (or
approximately 69 months) which, of course, is below the total of 78 months that were imposed in Criminal Numbers
08-229, 08-297, 12-200 and 12-309. Such projection plainly indicates that the BOP has granted Defendant credit for
time served in presentence custody and also believes that he will be eligible for good time credit, prompting an earlier
release date. To be clear, as Defendant is housed at FCI Beckley in the Southern District of West Virginia, this Court
lacks jurisdiction to consider any challenge to the BOP’s computation of Defendant’s sentence.
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lacked the authority to impose. See Real v. Shannon, 600 F.3d 302, 310 (3d Cir. 2010) (defense
counsel is not ineffective for failing to raise an unmeritorious claim). Further, given that the
specific relief that Defendant is requesting via his § 2255 Motion is an order designating the
substantive and supervised release sentences as concurrent, an order which this Court lacks the
authority to enter, his Motion must be denied.
Second, the Government is correct that this Court’s affirmative order that the sentences run
consecutively was unnecessary and that Defendant was not prejudiced by the Court’s inclusion of
such language in the Judgments. In addition to the reasons set forth above, section 3584(a)
provides, in relevant part, that “[m]ultiple terms of imprisonment imposed at different times run
consecutively unless the court orders that the terms are to run concurrently.” 18 U.S.C. § 3584(a).
Accordingly, if the Judgments were silent and contained no directives as to whether the sentences
should run concurrently or consecutively to those imposed by the SRV Court, the sentences would
run consecutively by default. See e.g., Rush v. Shartle, Civ. A. No. 13-4788, 2015 WL 5567307,
at *5 (D. N.J. Sept. 22, 2015) (“the default presumption is that Petitioner’s sentences should run
consecutively.”); 18 U.S.C. § 3584(a), supra.
Third, even if Defendant was eligible for concurrent sentences vis-à-vis the substantive and
supervised release sentences, this Court accepted the parties’ Rule 11(c)(1)(C) plea agreement as
part of an individualized assessment of all of the section 3553(a) factors and determined, in its
discretion, that concurrent sentences of 60 months’ incarceration were sufficient but not greater
than necessary to serve all the goals of sentencing in Defendant’s cases. See 18 U.S.C. § 3553(a).
While the Court recognized that 60 months’ incarceration represented a variance below the
advisory guidelines range of 70 to 87 months, the Court found that the combination of the
22
substantive and supervised release sentences of 78 months was within the range. To answer the
question posed by Defendant, this Court did not treat the decision by the SRV Court to be binding
– as the Court understands from prior matters that the decision of whether sentences run
concurrently or consecutively is generally left to the discretion of the second Judge that has the
opportunity to impose a sentence regardless of the language utilized by any order by the first
Judge. See e.g., United States v. Zwick, 2011 WL 666182, at *7 (W.D. Pa. Feb. 14, 2011).
Further, the consecutive designation ordered by the SRV Court was wholly consistent with
Guideline § 7B1.3(f) which “conveys a strong preference for a consecutive sentence” as between
sentences imposed for substantive offenses that form the underlying bases of supervised release
violations. Banks, 743 F.3d at 58. This is so because the sentence for the supervised release
violations is primarily meant to sanction Defendant’s breach of trust that was placed in him by the
original sentencing court rather than as punishment for the substantive offenses that he committed
while on release. See United States v. Dees, 467 F.3d 847, 853 (3d Cir. 2006) (“A district court’s
primary consideration in handing down a revocation sentence is the defendant’s breach of trust.”).
In this Court’s estimation, the imposition of concurrent sentences in Defendant’s cases vis-à-vis
the supervised release violations was simply inappropriate because he recidivated a few months
after being released from BOP custody and engaged in the same criminal behavior, heroin
trafficking, for which he was originally prosecuted at Criminal Number 08-229. The fact that this
Court and the SRV Court shared the same opinion is hardly controversial and cannot serve as a
basis to vacate the lawful sentences imposed in Criminal Numbers 12-200 and 12-309.
For all of these reasons, the Court finds that no miscarriage of justice will result from
enforcement of the collateral attack waiver set forth in the parties’ plea agreement. See Mabry,
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536 F.3d at 237.
Defendant received the exact sentences that he bargained for with the
Government as part of that agreement. See Plea Letter dated 9/29/13 at ¶ A.8.
Finally, the
Court holds alternatively that it lacked the authority to order the substantive and supervised release
sentences to run concurrently as Defendant had already served the supervised release sentences at
the time of his sentencing in these cases and that the Court’s Order designating such sentences to
run consecutively is fully consistent with the relevant law, i.e., 18 U.S.C. § 3584(a) and Guideline
§ 7B1.3(f), and was arrived at by this Court after careful consideration of all of the section 3553(a)
factors in Defendant’s cases. Accordingly, the Court would deny relief on the merits if Defendant
was not barred from pursuing this Motion under the valid waiver in his plea agreement with the
Government.
V.
CONCLUSION
Based on the foregoing, Defendant’s Motion to Vacate, Set Aside or Correct Sentence
under 28 U.S.C. § 2255 is denied, with prejudice. The Court also holds that Defendant has failed
to make a substantial showing of the denial of a Constitutional right and is not entitled to a
certificate of appealability. An appropriate Order follows.
s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Date: June 15, 2016
cc/ecf: All counsel of record
Defendant Ricco Sears, pro se
#09877-068
FCI Beckley
P.O. Box 350
Beaver, WV 25813
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