GARDNER v. USA
Filing
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MEMORANDUM OPINION as to BONNIE GARDNER indicating that, for reasons more fully stated within, Defendant's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 is denied. Moreover, the Court concludes that Petitioner 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 8/7/15. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
)
)
) Cr. No. 09-180
) Civil Action No. 14-1441
) Judge Nora Barry Fischer
)
)
v.
BONNIE GARDNER,
Defendant.
MEMORANDUM OPINION
I.
INTRODUCTION
This matter is before the Court on a Motion to Vacate, Set Aside or Correct Sentence under
28 U.S.C. ' 2255 (“Motion”) filed by pro se Defendant Bonnie Gardner (“Defendant” or
“Gardner”). (Docket No. 92). Defendant claims that her trial counsel was ineffective and seeks
to vacate her guilty plea and sentence of 42 months’ incarceration for mail and wire fraud
conspiracy in violation of 18 U.S.C. § 1349. (Docket Nos. 95, 97).
The Government filed a
Motion to Dismiss Defendant’s Motion on the basis that Defendant waived her right to file a
motion under 28 U.S.C. § 2255 in a plea agreement with the Government. (Docket No. 102).
For the following reasons, the Court will enforce the valid waiver contained in Defendant’s
plea agreement. Accordingly, the Government’s motion will be granted and Defendant’s § 2255
motion will be denied.
II.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On February 25, 2012, a federal grand jury returned a twenty-five count superseding
indictment against Defendant and a co-defendant, Frank S. Guzik.
(Docket No. 10). The
superseding indictment charged Defendant with one count of conspiracy to commit mail and wire
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fraud, in violation of 18 U.S.C. § 1349 (Count One), five counts of wire fraud, in violation of 18
U.S.C. § 1343 (Counts Two through Six), and nine counts of mail fraud, in violation of 18 U.S.C.
§ 1341 (Counts Seven through Fifteen). (Id.).
On May 10, 2013, Defendant pled guilty to Count One of the superseding indictment
pursuant to a plea agreement with the Government. (Docket Nos. 70-72, 76). In exchange for
the Government’s agreement to dismiss Counts Two through Fifteen, Defendant acknowledged
responsibility for the charges in the superseding indictment, agreed to pay mandatory restitution,
and agreed to waive her right to take a direct appeal from her sentence or to collaterally attack her
conviction or sentence, except under limited specified circumstances. (Docket No. 76 at 16-17).
The plea agreement also contained a proposed stipulated sentence of forty-two months’
incarceration.
(Id. at 18).
Following an extensive colloquy by the Court to determine
Defendant’s competency and understanding of the plea agreement, the Court accepted
Defendant’s change of plea and entered a judgment of guilt as to Count One of the superseding
indictment. (Docket Nos. 71, 76). The Court deferred acceptance of the plea agreement’s
stipulated sentence pending receipt of a Presentence Investigation Report. (Docket No. 76).
On October 18, 2013, the Court conducted a sentencing hearing. (Docket No. 88). The
Court noted that Defendant’s total offense level was 29 and her criminal history category was I,
producing an advisory guideline range of 87 to 107 months’ incarceration. (Id. at 6). After
considering the factors set forth in 18 U.S.C. § 3553(a), the Court sentenced Defendant to
forty-two months’ incarceration as stipulated in the plea agreement. (Id.).
On October 23, 2014, Defendant filed the instant pro se motion to vacate. (Docket No.
92). This Court responded by entering its standard order pursuant to United States v. Miller, 197
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F.3d 644 (3d Cir. 1999), advising Defendant that all federal constitutional claims had to be
included in a single habeas corpus petition and of her right to: (1) withdraw the pending petition
and file one new, all-inclusive § 2255 petition setting forth every ground which may entitle her to
relief from her conviction and sentence, provided that such motion is timely; (2) amend the § 2255
motion presently on file to include any additional claims or materials she wished to raise; or (3)
choose to proceed with the petition as filed. (Docket No. 93). Defendant indicated that she
wished to proceed (Docket No. 95) and filed a brief in support of her motion (Docket No. 97).
The Government filed the instant motion to dismiss on January 13, 2015. (Docket No.
102). Defendant filed a brief in opposition to the Government’s motion on February 12, 2015
(Docket No. 104), and the Government filed a reply on March 20, 2015 (Docket No. 107).
Defendant filed an “addendum” to her Section 2255 motion on April 13, 2015. (Docket No. 108).
The official transcripts of the May 7, 2013 final pretrial conference, May 10, 2013 change-of-plea
hearing and October 18, 2013 sentencing hearing were all filed and considered by the Court.
(Docket Nos. 76, 101, 106). 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. §
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
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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
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.
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2000)).
IV.
DISCUSSION
The Government seeks dismissal of Defendant’s motion on the basis that she knowingly
and voluntarily waived the right to file a motion to vacate in her plea agreement and enforcement
of the waiver would not result in a miscarriage of justice. 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 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.”). Determining whether a
waiver is effective is a threshold issue and, if the waiver is effective, a criminal defendant is
jurisdictionally barred from pursuing habeas relief. Mabry, 536 F.3d at 242.
In determining whether a waiver is effective, the district court must examine “the (1)
knowing and voluntary nature, based on what occurred and what defendant contends, and (2)
whether enforcement would 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
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At the outset of Defendant’s change of plea hearing, the Court established that Defendant
had completed high school, earned a nursing degree, attended college classes, and had no history
of mental or emotional health problems or drug and alcohol abuse. (Docket No. 76 at 4-6).
Defendant averred that she 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 her ability to understand the proceedings. (Id. at 5). The Court observed Defendant’s
demeanor and responses during her colloquy and concluded that she was an intelligent and
articulate individual with an acute understanding of the proceedings. (Id. at 6). Moreover, the
record reflected that Defendant was able to successfully cooperate with a co-conspirator to
perpetuate a sophisticated and calculated scheme of fraud. (Docket No. 78 ¶¶ 7-13). Based on
the foregoing, the Court concluded that Defendant was competent to meaningfully participate in
the proceedings and enter a guilty plea. (Docket No. 76 at 6).
After ensuring that Defendant was competent to plead, the Court queried Defendant to
determine whether she had discussed her case with her attorney and whether she was satisfied with
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
she would be giving up by virtue of her guilty plea, as well as the statutory penalties associated
with the charges against her. (Id. at 7-13). Defendant indicated that she understood each of
those rights and still wished to plead guilty. (Id. at 13).
Turning to the content of the plea agreement, the Court directed counsel to summarize the
terms of the agreement on the record. (Id. at 16). Counsel explained, inter alia, that Defendant
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had “agreed to waive her right to take a direct appeal from her sentence or to collaterally attack her
conviction or sentence . . .” (Id. at 17). Defendant confirmed on the record that she consented to
each of the terms contained in the agreement. (Id. at 19). The Court then explored the appellate
and collateral attack waiver provision with Defendant in greater detail:
The Court:
Immediately under (5) and subparagraphs (a) and (b), at
the bottom of page 2 and going on to page 3, there’s
another important provision because, pursuant to the
language there, you have further 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 see that
there?
Defendant:
Yes, I do.
The Court:
Do you understand that, ma’am?
Defendant:
Yes, I do.
The Court:
Accordingly, you have limited rights to an appeal. Has
Mr. Dietz reviewed with you your appeal rights and what
you may be waiving?
Defendant:
Yes, he has.
The Court:
And so, you understand that your rights to appeal are
limited?
Defendant:
Correct.
The Court:
You should also understand that waivers of appeal are
generally permissible if they’re entered into knowingly and
voluntarily, unless they would somehow work a
miscarriage of justice. I’ve examined the record, such as I
have it before me in this case, I’ve had the opportunity to
observe you here in Court today, in the jury selection,
pretrial trial proceedings, status conferences, and the like.
I’ve heard your responses to my questions and, at this time,
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I do not find any basis for invalidating your waivers in this
case.
(Id. at 20). At all times, Defendant stated that she understood and agreed to each of the terms set
forth in the plea agreement and was satisfied with the deal that she had reached with the
Government. (Id. at 14-23, 38-39).
The Court conducted a sentencing hearing on October 18, 2013. The Court noted that
Defendant’s total offense level was 29, her criminal history category was I, and her advisory
guideline range for Count One was 87 to 107 months. (Docket No. 101 at 6). However, the
Court acknowledged that the plea agreement contemplated a stipulated incarceration term of 42
months and that the probation office had offered no objection to that sentence. (Id.). Based on
the facts and circumstances of the case, as well careful consideration of all pertinent factors, the
Court agreed to adopt the stipulated sentence outlined in the plea agreement. (Id. at 6-11, 16-21).
That sentence represented a significant variance below the advisory guideline range. (Id. at 11).
In short, both counsel and the Court clearly outlined the contours of Defendant’s collateral
attack waiver on the record. The clear language of that waiver appears in a plea agreement
containing Defendant’s signature. Defendant, a savvy and intelligent individual, affirmatively
represented on several occasions that she understood the rights she was giving up and wished to
proceed with a plea of guilt. In exchange for her plea, Defendant received the precise sentence
stipulated in the plea agreement.
Based on the foregoing, the Court finds that Defendant
knowingly and voluntarily waived her right to collaterally attack her sentence under Section 2255
and that this waiver is enforceable.
B. Miscarriage of Justice
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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 at hand. 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).
Defendant contends that enforcement of the collateral attack waiver would effectuate a
miscarriage of justice because such waivers inherently create a conflict of interest between a
criminal defendant and her trial counsel. Defendant bases this argument on a recent decision by
the Kentucky Supreme Court and advisory opinions rendered by the Ethical Advisory Committee
of the National Association of Criminal Defense Lawyers (“NACDL”) and the Pennsylvania Bar
Association Legal Ethics and Professional Responsibility Committee (“PBA Committee). Each
concluded that it is a conflict of interest for a defense attorney to advise a client to accept a plea
agreement that contains a waiver of ineffective assistance of counsel claims related to defense
counsel’s own performance. See NACDL Formal Opinion 12-02 (Oct. 2012) (“[I]t is NACDL’s
position that defense counsel has an ethical and constitutional duty to object to and refuse to sign
any plea agreement provision that amounts to a waiver of post-conviction remedies.”); PBA
Committee Formal Opinion 2014-100 (opining that it is a conflict of interest for a lawyer to advise
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a client to accept a plea agreement that includes a waiver of ineffective assistance of counsel
claims concerning his or her own representation); United States v. Kentucky Bar Ass’n, 439
S.W.3d 136, 157-58 (Ky. 2014) (holding that collateral attack waivers create a non-waivable
conflict of interest between the defendant and his attorney).
As an initial matter, the Court notes that advisory opinions from ethics committees and
decisions by state courts are not binding on federal courts. See United States v. Joseph, 2014 WL
2002280, at *1 (W.D. Pa. May 15, 2014) (“Ethics Advisory Opinions are not binding on federal
courts.”); United States v. Shebetich, 2015 WL 2106013, at *1 (W.D. Pa. May 6. 2015)
(“[D]ecisions by . . . a State Court in Kentucky are not binding on this Court.”). Moreover, the
majority of courts in this district have continued to enforce knowing and voluntary collateral
attackers waivers despite the ethical considerations raised in the advisory opinions. As Judge
Ambrose recently explained:
Generally, in this Circuit, waivers of the right to collateral attack are valid
if entered into knowingly and voluntarily, and will divest the district court
of jurisdiction over a collateral attack. United States v. Khattak, 273 F.3d
557, 558 (3d Cir. 2001); United States v. Goodson, 544 F.3d 529, 536 (3d
Cir. 2008). Although the attorney ethics surrounding such waivers have
recently been called into question, our Court of Appeals has since
affirmed their enforceability as a legal matter. E.g., Muller v. Sauers,
523 Fed. Appx. 110, 111-12 (3d Cir. 2013). Khattak, which rejected an
argument similar to that which Defendant now advances, remains in force
in this Circuit generally, and in the collateral attack context specifically.
See, e.g., United States v. Murray, 483 Fed. Appx. 690 (3d Cir. 2012).
As the above-referenced Ethics Opinion acknowledges, the Advisory
Committee’s position is “aside from whether the courts might approve
such waivers.” Ethics Advisory Opinions are not binding on federal
courts. Although our Court of Appeals may someday declare collateral
attack waivers per se invalid in light of the ethical dilemmas they present,
it has not done so to date. Cf. United States v. Grimes, 739 F.3d 125 (3d
Cir. 2014). Absent guidance from our appellate court, I am unwilling to
arrive at such a rule.
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Joseph, 2014 WL 2002280, at *1. See also Shebetich, 2015 WL 2106013, at *1-2 (enforcing a
collateral attack waiver provision after concluding that Khattak, Mabry and Goodson each remain
binding despite the recent advisory opinions); Stitt v. United States, 2015 WL 1489477, at *1
(W.D. Pa. Mar. 31, 2015) (finding that collateral attack waivers remain binding in this district so
long as they are knowing and voluntary and will not work a miscarriage of justice); United States
v. Brownlee, 2014 WL 3735583, at *3 (W.D. Pa. July 28, 2014) (concluding that collateral attack
waivers remain “valid and enforceable” in this circuit despite the recent criticism from ethical
committees); United States v. Valentine, 2014 WL 1884211, at *2 (W.D. Pa. May 12, 2014)
(same). But see Williams v. United States, 2014 WL 4060263, at *13-14 (W.D. Pa. Aug. 14,
2014) (“[T]his court is of the opinion that it would not be in the interests of justice to enforce
[collateral attack] waivers now that the PBA Committee has indicated that such waivers should
never have been included in written plea agreements in the first instance.”).
The Court also recognizes that the Third Circuit has consistently upheld appellate and
collateral attack waivers under the premise that such waivers “may assist defendants in making
favorable plea bargains . . . providing defendants a valuable bargaining chip in the plea process.”
Khattak, 273 F.3d at 562. When confronted with the same ethical arguments raised in the instant
case, the Third Circuit recently declined to adopt a blanket rule prohibiting such waivers. See
Mitchell, 538 F. App’x at 203 (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.”). See also United States v. Grimes, 739 F.3d 125, 130 (3d Cir. 2014)
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(finding an appellate waiver valid and enforceable despite the defendant’s argument that such
waivers are per se invalid if they fail to “carve out claims of ineffective assistance concerning the
same attorney who counseled the plea,” but noting that the Court might revisit the issue in a future
decision under different facts).
After careful consideration, this Court agrees, consistent with Khattak and Mabry, that the
collateral attack waiver in Defendant’s plea agreement is enforceable.
As noted above,
Defendant’s agreement to that provision assisted her in negotiating a stipulated sentence that was
significantly lower than the advisory guideline range applicable to her crimes. At sentencing,
Defendant received the precise sentence that she bargained for. Under these facts, the Court finds
that no miscarriage of justice will result from enforcement of the waiver.
V.
CONCLUSION
For the reasons stated herein, Defendant=s Motion to Vacate, Set Aside or Correct Sentence
under 28 U.S.C. ' 2255 is denied. Moreover, the Court concludes that Petitioner 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: August 7, 2015
cc/ecf: All counsel of record
Defendant Bonnie Gardner, pro se
USMS 33388068
Federal Prison Camp Alderson
Post Office Box A
Alderson, WV 24910
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