ISABELLA v. USA
Filing
2
MEMORANDUM OPINION indicating that Defendant's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 175 is denied; 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 10/16/2015. (bdk)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
v.
DAVID ISABELLA,
Defendant.
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Criminal No. 13-175
Civil No. 15-76
Judge Nora Barry Fischer
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 David J. Isabella (“Defendant”). (Docket
No. 175). Defendant seeks to vacate his guilty pleas to three counts of wire fraud in violation of
18 U.S.C. § 1343 and/or to set aside the sentence of 6 months’ incarceration, and three years of
supervised release imposed by the Court. (Docket Nos. 90, 151).
The Government filed a
Response on July 13, 2015, advocating that Defendant’s Motion be denied as unmeritorious and
attaching a portion of the change-of-plea transcript in support of its position. (Docket No. 184).
The official transcript of the entire change-of-plea proceeding was then filed of record by the court
reporter on July 14, 2015.1 (Docket No. 185). After careful consideration of all of the facts of
record and for the following reasons, Defendant’s § 2255 Motion is denied.
II.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On June 18, 2013, a federal grand jury returned an eight count Indictment against
1
The official transcript of the sentencing proceeding was not ordered by the parties and the Court resolves the
instant motion by consulting a rough version of the transcript and its notes from that proceeding. See Sent. Trans.
9/29/14.
1
Defendant and his older brother, Daniel Isabella,2 alleging that they participated in a ticket fraud
scheme wherein they sold non-existent event tickets to unwitting customers through postings on
www.craigslist.com. (Docket No. 1). Defendants spoke to their victims over the telephone,
assuring them that the sales were legitimate, and induced the victims to wire money to them for
these supposed purchases. (Id.). Defendants kept the money they received for their own
personal uses and did not deliver tickets to the victims, as promised. (Id.). The Indictment
charged Defendant with one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. §
1349 (Count One), and three substantive counts of wire fraud, in violation of 18 U.S.C. § 1343
(Counts Two, Seven and Eight). (Id.).
Defendant’s trial counsel, Patrick K. Nightingale,
Esquire, (“trial counsel”) entered an appearance on his behalf and represented him throughout the
trial phases of this case.3 (Docket No. 14).
This Court conducted a change-of-plea hearing in Defendant’s case on March 6, 2014 at
which time he was 22 years old; he had a high school degree and had completed two years of
college courses, including a criminal justice course; he had no mental or physical ailments that
precluded his ability to participate in the proceedings; he also was not under the influence of any
alcohol or narcotics; and he had been successfully attending outpatient drug rehabilitation
programming set up by Pretrial Services. (Docket No. 185 at 3-4). The Court was aware from a
prior status conference that Defendant had been working at Joe’s Crab Shack. (Id. at 43). At the
change-of-plea hearing, he advised that he had started a new job as a cab driver for Yellow Cab
2
Defendant’s older brother, Daniel, pled guilty to Counts 3-6 of the Indictment on February 7, 2014. (Docket
Nos. 83, 84). Daniel was sentenced on July 9, 2014 to 18 months’ incarceration for his offenses, followed by three
years of supervised release and was also ordered to pay $53,426.79 in restitution and a special assessment of $300.00.
(Docket No. 139).
3
The Court notes that at a point later in the case, Mr. Nightingale was appointed to represent Defendant under
the Criminal Justice Act given his inability to pay the fees required. (Docket Nos. 79, 80).
2
approximately 2 weeks prior to the proceeding and was reportedly doing well at this new position.
(Id. at 43-44). Based on this record and the assertions of Defendant and his counsel, the Court
found that he was competent to participate in the hearing and to plead guilty if that was his intent.
(Id. at 6).
The Court and the parties examined the terms and conditions of Defendant’s plea
agreement which permitted him to plead guilty to Counts Two, Seven and Eight of the Indictment.
(See Docket Nos. 89, 90, 185; Plea Agreement). In exchange for the Government’s agreement to
dismiss Count One, Defendant acknowledged responsibility for the conduct charged in that count,
agreed to pay mandatory restitution, and agreed to waive his right to take a direct appeal from his
conviction or sentence, except under limited specified circumstances. (Docket No. 185 at 18,
21-23). The plea agreement also contained stipulations between the parties affecting the advisory
guidelines calculations in the case, e.g., the loss amount was between $30,000 to $70,000; that
there were more than 50 but less than 250 victims of the ticket fraud scheme; and that Defendant
qualified for a three level reduction for acceptance of responsibility and timeliness of his guilty
pleas. (Id. at 20). In addition, the plea agreement set forth the statutory penalties for the offenses
of conviction: a maximum term of incarceration of 20 years; a term of supervised release of 3
years; a special assessment of $300.00; mandatory restitution to be determined by the Court; and a
fine. (Id.).
Following an extensive colloquy, the Court determined that Defendant understood the
nature of the charges against him; all of the elements of the offenses to which he was pleading
guilty and the potential statutory penalties he was subject to for such violations; the constitutional
and statutory rights he was waiving by entering guilty pleas, such as his rights to a trial by jury and
3
the assistance of counsel throughout the processing of the charges against him; and all of the terms
and conditions of the plea agreement. (Docket No. 185). He further assured the Court that he
understood that the sentence he would receive for his criminal conduct would be imposed by the
Court pursuant to the advisory sentencing guidelines after considering a Presentence Investigation
Report, (“PIR”), any Addendum, and argument from counsel for the parties. (Id. at 12-13, 25,
30). He acknowledged that no one had promised him what his actual sentence would be, forced
him to plead guilty, or made any promises to him outside of the terms and conditions set forth in
the plea agreement. (Id. at 37).
Defendant accepted the Government’s entire proffer of his criminal conduct, without any
changes, admitting that he and his brother utilized their www.craigslist.com ticket fraud scheme to
defraud approximately 104 victims of around $29,700 over the period of January 2012 through
September 2012. (Id. at 32-34). During the change-of-plea hearing, Defendant twice asserted
under oath that he was satisfied with the representation of his trial counsel to date. (Id. at 6, 33).
Ultimately, the Court accepted Defendant’s change of pleas and entered a judgment of guilt as to
Counts Two, Five, and Seven. (Docket Nos. 89, 90, 185).
Defendant’s bond was continued until his sentencing.
The Court issued Tentative
Findings on June 18, 2014, noting the lack of objections by the parties to the PIR and finding that
Defendant’s total offense level was 14 and his criminal history category was I, producing an
advisory guideline range of 15 to 21 months incarceration. (Docket No. 124). In advance of
sentencing, Defendant, through his trial counsel, filed a Sentencing Memorandum advocating to
the Court for a variance below the range of 15 to 21 months and the imposition of a
non-incarceration sentence, highlighting, among other things, his lack of a criminal history; his
4
strong work history and progress in his position as a cab driver; and his ability to earn money
working in this position to pay off his expected restitution obligation. (Docket No. 137). The
Government disagreed, with its counsel arguing in a Sentencing Memorandum that a sentence of
incarceration within the range of 15 to 21 months was appropriate in Defendant’s case. (Docket
No. 136). Counsel for the parties advised the Court at a telephone sentencing conference that if a
sentence of imprisonment was imposed, there was no objection by the Government to Defendant
self-reporting to the Bureau of Prisons or to his request that the Court recommend that he be
designated at a facility as close to Pittsburgh, Pennsylvania, as possible. (Docket No. 148).
At the outset of the sentencing hearing on September 29, 2014, Defendant was sworn and
he confirmed to the Court that he had reviewed the PIR, Addendum and the Court’s Tentative
Findings and Rulings with his counsel and that he had no questions about same. (Docket No.
150). The Court heard evidence from the parties including witness testimony from three of
Defendant’s supporters and his allocution.
(Id.).
There was some discussion concerning
Defendant’s ability to make an immediate payment of $7,000 toward his restitution obligation but
he did not know to what entity or person to make out the check, leading the Court’s staff to confer
with the Clerk’s Office during the proceeding to obtain such information on his behalf. See Sent.
Hr’g Trans. 9/29/14. When the presentation of evidence concluded, counsel provided oral
argument, carrying forward the positions that they had previously made in their sentencing
memoranda, with defense counsel advocating for a variance and non-incarceration sentence and
the Government pushing for a sentence of incarceration within the advisory guidelines range.
(Id.). After considering the factors set forth 18 U.S.C. § 3553(a), the Court granted Defendant’s
motion for a variance, in part, and sentenced Defendant to a term of six months’ incarceration at
5
each of Counts Two, Seven and Eight, followed by three years’ supervised release and ordered him
to pay restitution in the amount of $30,199.91 and a special assessment of $300.00. (Docket No.
151).
Near the conclusion of the sentencing proceeding, on Defendant’s behalf, his counsel
advocated for the Court to make a recommendation that he be permitted to serve his sentence at the
Renewal Center, a local community corrections center or halfway house. See Sent. Hr’g Trans.
9/29/14. The Government opposed this position. (Id.). Once again, the Court sided with
Defendant and made the recommendation to the Bureau of Prisons that “Defendant’s term of
incarceration shall be served at a residential re-entry center (such as Renewal, Inc., 339 Blvd. of
the Allies, Pittsburgh, PA 15222).” (Docket No. 151 at 2) The Court also ordered Defendant to
self-surrender to the United States Marshal Service by 9:00 a.m. on November 10, 2014 unless he
was ordered to report sooner by the Bureau of Prisons. (Id.). Finally, the Court advised
Defendant of his appeal rights, specifically telling him that any notice of appeal must be filed with
the Clerk of Court within 14 days of the sentencing proceeding, making the filing of any appeal
due by Tuesday, October 14, 2014 given the Columbus Day Holiday on the 13th. (See Sent. Hr’g
Trans. 9/29/14).
Subsequent to the sentencing hearing, Defendant satisfied his special assessment
obligation and made the payment of $7,000 toward his restitution. (Docket Nos. 152, 154). On
November 12, 2014, trial counsel filed a “Motion to Permit Defendant to Operate a Common
Carrier” wherein he notified the Court that he had started to serve his sentence at the Renewal
Center but that he required an Order of Court for that entity to permit him to continue working as a
6
cab driver during his term of community confinement.4 (Docket No. 154). The Government
filed a Response in Opposition on November 21, 2014, arguing that the Court lacked jurisdiction
to grant Defendant’s request as he was in the custody of the Bureau of Prisons at the time and
further advised that representatives of the Renewal Center were contacted and they also opposed
the request because that type of work was against the policies of the community corrections center.
(Docket No. 155). This Court entered an Order on November 21, 2014 stating that “upon
consideration of Defendant’s Motion to Permit Defendant to Operate Taxicab While at Renewal
Center [154] and the Government’s well-taken Response in Opposition [155], … said Motion
[154] is DENIED.” (Docket No. 156).
Three days later, Defendant filed a Motion for Furlough, requesting that he be permitted to
spend Thanksgiving Day with his family between 8:00 a.m. and 8:00 p.m. rather than in custody of
the Renewal Center. (Docket No. 157). The Government once again opposed this Motion,
arguing that the Renewal Center did not consent to this request and it was outside the scope of his
restrictions as a community corrections detainee, which limited his access to the community
except for work, medical treatment and church services and did not permit recreational or leisure
passes. (Docket No. 158). The Court denied this Motion in a Text Order entered on November
24, 2014.
Later, on January 16, 2015, attorney Scott Wescott, Esquire (“§ 2255 counsel”) entered an
appearance on Defendant’s behalf and filed a Motion to Vacate under 28 U.S.C. § 2255 and Brief
4
The Court’s record contains a “Staff Note” on the CM/ECF System indicating that the Court’s deputy clerk
received a telephone call from an individual purporting to be David Isabella who requested to speak with the
undersigned. (See Text Staff Note 11/12/14). As required by this Court’s Practices and Procedures, the Court’s
deputy clerk advised this individual that any communications with the Court should be made through his counsel of
record. (Id.).
7
in Support. (Docket Nos. 162, 163). Among other things, Defendant sought to set aside his
sentence on the basis of alleged ineffective assistance of counsel due to his trial counsel’s
advocacy for a sentence in a community confinement center that later refused to permit him to
work as a cab driver. (Docket No. 163). He claimed, erroneously, that the Court’s sentence of 6
months imprisonment was part of a Rule 11(c)(1)(C) plea agreement with the Government and that
his ability to continue driving a cab was part of such agreement. (Id.). Defendant also complained
that he was not advised by his trial counsel of all of the elements of wire fraud prior to guilty plea;
had not been provided with a copy of the Addendum to the PIR; and, was not consulted about an
appeal of the sentence after realizing that he could not work as a cab driver while in community
confinement. (Id.). He further argued that the Indictment should be dismissed based on an
alleged unconstitutional composition of the grand jury as lacking minorities, despite the fact that
he is a Caucasian male. (Id.). Overall, Defendant asked the Court to set aside his convictions
and/or to resentence him to home confinement or probation so that he could continue to work as a
cab driver, a request which the Renewal Center had refused and the Court had denied. (Id.).
As § 2255 counsel had entered his appearance on Defendant’s behalf as retained counsel,
indicating that he now had the ability to pay for an attorney, the Court ordered him to purchase the
transcript of the sentencing proceeding so that it could fully evaluate his § 2255 Motion. (Docket
No. 165). The Court also separately ordered the Government to respond to his § 2255 Motion.
(Docket No. 164). Defendant replied by filing a Motion for Interim Payment and Amended
Motion for Interim Payment essentially seeking the Court to authorize the appropriation of CJA
funds to purchase the transcript and/or to direct the Government to purchase the transcript.
(Docket Nos. 166, 167). As expected, the Government opposed same, arguing that Defendant’s §
8
2255 Motion was frivolous and that it should not bear the costs of the transcript. (Docket No.
169). Defendant then filed a Reply Brief addressing the Government’s position. (Docket No.
170). Having reviewed all of these submissions, the Court entered an Order on February 18, 2015
directing § 2255 counsel and Defendant to file, under seal, a copy of their power of attorney and/or
retainer agreement, citing Guide to Judiciary Policy, Vol. 7, Pt. A, § 310.10.10 and § 310.10.20
(“(a) In responding to requests for services under 18 U.S.C. § 3006A(e) by a person represented by
retained counsel, the court should inquire into the fee arrangement between the retained attorney
and the client. (b) If the court finds the fee arrangement unreasonable... the court may order the
retained attorney to pay out of such fees all or such part of the costs and expenses as the court may
direct.”).
Rather than submit the fee arrangement to the Court, on February 25, 2015, § 2255 counsel
filed a Motion to Withdraw Defendant’s 2255 Motion to Vacate. (Docket No. 172). § 2255
counsel asserted that “[u]pon speaking with Defendant and reviewing the apparent pragmatic
timing issues with respect to this filing, counsel advised Defendant that it would not prove fruitful
to pursue the 2255 Motion to Vacate” and that “Defendant now agrees with counsel the pursuing
this 2255 Motion to Vacate would be fruitless and the waste of this Court’s resources.” (Id.).
Based on these representations, the Court granted the Motion to Withdraw and also terminated the
Motion for Interim Payment, as moot. (Docket No. 174).
On May 15, 2015, Defendant filed the instant pro se § 2255 Motion. (Docket No. 175).
He reported in his Motion that he had been released from the Renewal Center after serving all 6
months of the incarceration portion of his sentence. (Id.). Defendant generally makes the same
allegations as the initial counseled § 2255 Motion that was filed on his behalf by § 2255 counsel
9
but adds a claim that § 2255 counsel provided ineffective assistance of counsel by withdrawing the
prior § 2255 Motion without his consent. (Id.). In addition to vacating his conviction and
sentence, Defendant also seeks to have this Court order § 2255 counsel to return the attorneys’ fees
that were paid to him. (Id.).
This Court responded by entering its standard order pursuant to United States v. Miller, 197
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 his right to: (1) withdraw the pending motion and
file one new, all-inclusive § 2255 motion setting forth every ground which may entitle him to relief
from his conviction and sentence, provided that such motion is timely; (2) amend the § 2255
motion presently on file to include any additional claims or materials he wished to raise; or (3)
choose to proceed with the motion, as filed. (Docket No. 176). Defendant did not respond to the
Miller Order and the Court entered a follow-up order directing the Government to file its
Response, (Docket No. 181), which was filed on July 13, 2015. (Docket No. 184). The official
transcript of the change-of-plea proceeding was then filed with the Court on July 14, 2015.
(Docket No. 185). Neither party has sought leave of court to make any additional submissions
nor does the Court believe that further briefing is necessary. Accordingly, 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.
10
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
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
11
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 majority of Defendant’s grounds for relief raise ineffective assistance of counsel
claims as he challenges: his § 2255 counsel’s withdrawal of the prior § 2255 Motion without his
consent; his trial counsel’s failure to advise him of all of the elements of wire fraud, including the
materiality element; his trial counsel’s ineffective advocacy at sentencing resulting in him serving
a 6 month sentence at Renewal where he was not permitted to continue working as a cab driver; his
trial counsel’s failure to review the Addendum to the PIR with him; and, the subsequent failure of
trial counsel to consult with him about filing an appeal. (Docket No. 175). The Government
maintains that Defendant cannot show that he was prejudiced by his trial counsel or his § 2255
counsel on this record. (Docket No. 184). Having fully reviewed these matters, the Court finds
that Defendant has not demonstrated a right to relief under § 2255 as his allegations are
unsupported, conclusively refuted by the record and/or he cannot meet the requirements under
Strickland to demonstrate that either of his attorneys provided ineffective assistance of counsel to
him. Accordingly, the Court denies Defendant’s § 2255 Motion and his request for a hearing.
At the outset, despite the fact that Defendant has already served his 6 month sentence of
imprisonment in community confinement at the Renewal Center, his § 2255 Motion is not moot
because he is still subject to the remainder of his term of three years of supervised release. See
United States v. Doe, --- F.3d ---, 2015 WL 5131206, at *5 (3d Cir. Sept. 2, 2015) (holding that a §
12
2255 petition was not moot by the fact that a defendant had already served a challenged sentence
of imprisonment as he remained on a term of supervised release that could be reduced). The
Court cannot alter the six month sentence that has already been served. Id. However, in the
event that he met his burden of persuasion on this Motion, the Court could grant other relief to him,
such as reducing the term of supervised release. See id. Accordingly, the Court will continue
with its analysis explaining why Defendant has failed to meet his high burden to demonstrate
ineffectiveness of his counsel on each of the issues he has raised. See Padilla v. Kentucky, 559
U.S. 356, 371 (2010) (“Surmounting Strickland's high bar is never an easy task.”).
Moving on, Defendant has simply not demonstrated that he has been prejudiced by § 2255
counsel’s purported withdrawal of the earlier § 2255 Motion without his consent as he argues.5
(See Docket No. 175). He cannot establish that the outcome of these proceedings would be any
different if that earlier motion had not been withdrawn because he refiled his § 2255 Motion
raising almost identical arguments challenging the alleged deficient performance of his trial
counsel and the Court addresses below why none of those claims are meritorious.6 See United
5
The Court notes that there is a clear conflict in the record on this point because § 2255 counsel represented in
the Motion to Withdraw, as an officer of the court, that he had consulted with Defendant and that he agreed to the
withdrawal. (See Docket Nos. 172, 175). The Court doubts the veracity of Defendant’s version of events that
transpired between he and § 2255 counsel but the resolution of such factual disputes is unnecessary to the disposition
of Defendant’s claim that § 2255 counsel was ineffective because he cannot establish prejudice. (Id.). To the extent
that Defendant seeks the return of attorneys’ fees paid to his § 2255 counsel, this Court lacks jurisdiction over what
amounts to a civil breach of contract dispute for an amount that is likely well below the jurisdictional limit of
$75,000.00 between two non-diverse Pennsylvania residents. See 28 U.S.C. § 1332. The Court expresses no
opinion as to the merits of such a claim.
6
Insofar as Defendant complains about the delays caused by the withdrawal, as § 2255 counsel pointed out, the
timing of events was such that the Court would not have rendered a decision on the § 2255 Motion prior to his being
released from Renewal in May of 2015, which was the driving force behind his filing of the Motion. (Docket No.
172). The counseled § 2255 Motion was withdrawn on February 25, 2015, at a point in time when the official
transcripts of the proceedings had not even been ordered or filed on the record and the Government had yet to file a
substantive response. (Docket No. 174). Beyond these submissions, this Court has a non-binding internal policy or
procedure setting a goal of resolving these types of dispositive motions within 90 days of the matter being fully
13
States v. Fazio, 795 F.3d 421, 426 (3d Cir. 2015) (quoting Strickland, 466 U.S. at 694) (“Under the
second, or ‘prejudice’ prong, he must demonstrate that ‘there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.’”).
The Court now turns to its evaluation of the claimed ineffectiveness of Defendant’s trial
counsel, starting with the following legal principles. Where a criminal proceeding culminated in
the entry of guilty pleas, as in the instant case, prejudice is established by the defendant “show[ing]
that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Further, “an erroneous sentencing prediction by counsel is not ineffective assistance of counsel
where ... an adequate plea hearing was conducted.” United States v. Bui, 795 F.3d 363, 367 (3d Cir.
2015) (quoting United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007)). Finally, “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.”
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
Following this precedent, the Court has reviewed the record of the change-of-plea
proceedings in this matter including the transcript of the Court’s colloquy with Defendant and the
parties’ plea agreement, and finds no merit to Defendant’s claims of ineffectiveness by his trial
counsel. (See Docket No. 185; Plea Agreement).
briefed. Hence, as the § 2255 motion was not yet ripe at a point less than 90 days prior to his release date, it is more
than likely that Defendant would have been released from Renewal prior to any ruling being issued by the Court.
14
That record demonstrates that Defendant is intelligent, well-educated (i.e., a high school
graduate with some college courses), and articulate. (Docket No. 185 at 3-4). At the time of his
guilty pleas, he was not under the influence of any substances, nor operating under any infirmities.
(Id. at 4-6). The Court found him competent and capable to meaningfully participate in the
proceedings. (Id. at 6). Defendant twice asserted that he was satisfied with the performance of
his trial counsel. (Id. at 6, 33). This Court concluded that he had knowingly and voluntarily pled
guilty to the three counts of wire fraud pursuant to a plea agreement with the Government. (Id. at
39). He asserted, under oath, that he understood all of the terms of the plea agreement, including
the fact that he had waived his right to appeal his convictions and the Court’s sentence, absent the
narrow exceptions in the plea letter. (Id. at 13-26). Defendant acknowledged that he was aware
of the nature of the charges against him, all of the elements of wire fraud and the potential penalties
for his convictions. (Id. at 26-39). He told the Court that he understood that he would be
sentenced under the advisory sentencing guidelines and assured the undersigned that he had not
received any promises as to the actual sentence that would be imposed, with a recognition that any
predictions made by his counsel about a potential sentence were not binding on the Court. (Id. at
37-38). Overall, Defendant responded appropriately to all of the Court’s questions and was
provided an opportunity, as necessary, to consult with his trial counsel if he had any questions for
him. After undergoing this comprehensive colloquy with Defendant, the Court accepted his
guilty pleas. (Id. at 39).
With this backdrop, Defendant’s ineffective assistance of counsel claims can be addressed
with dispatch. To this end, Defendant makes a series of clearly erroneous statements in his §
2255 Motion about the nature of his plea agreement as a Rule 11(c)(1)(C) plea agreement
15
recommending the imposition of a 6 month sentence and a separate assertion that a central part of
the plea agreement was that he be able to continue to drive a cab while in community confinement
at Renewal. (See Docket No. 175). But, none of these alleged terms were included in the written
plea agreement nor were they made on the record at the change-of-plea hearing. (See Plea Letter;
Docket No. 185). The record is also clear that there were no other terms and conditions between
the parties outside of the written plea letter. Indeed, the plea letter contains a standard provision
stating that “[t]his letter sets forth the full and complete terms and conditions of the
agreement between DAVID J. ISABELLA and the United States Attorney for the Western District
of Pennsylvania, and there are no other agreements, promises, terms or conditions, express or
implied.” Plea Agreement at p. 6. Defendant acknowledged on the record that he signed the
plea agreement immediately following this passage and assented to its terms. (Docket No. 185 at
16).
Beyond these facts, Defendant’s present assertion that his being able to continue to drive a
cab was a central part of plea negotiations makes no sense because the plea letter was dated
January 8, 2014, with the change-of-plea proceeding being scheduled upon request of defense
counsel on February 19, 2014, prior to the time that he even started working as a cab driver. See
Plea Letter at 1; Docket No. 88. In this regard, Defendant told the Court on March 6, 2014 that he
had only been working as a cab driver for “about two weeks,” starting around February 20, 2014.
(Docket No. 185 at 43). Therefore, Defendant’s continuing to work at Yellow Cab could not have
played any meaningful part of the plea negotiations.
These same types of inconsistencies between Defendant’s admissions during the colloquy
that no additional promises were made to him, (Docket No. 185 at 37-38), and his later allegations
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also undermine any contentions that his trial counsel made an erroneous prediction or promise to
him that he would be able to work as a cab driver while at Renewal. See Bui, 795 F.3d at 367.
All that is constitutionally required is for counsel to provide accurate advice to the defendant
regarding his potential sentencing exposure under the relevant statutes and advisory guidelines
range and to explain that any prediction that is provided is indeed an estimate. Id.; see e.g.,
United States v. Hardy, Crim. No. 09–151, Civ. A. No. 13–355, 2013 WL 3830507, at *10 (W.D.
Pa. July 23, 2013) (“[C]ounsel’s representation is not constitutionally deficient if he advises his
client of an estimated advisory guidelines range that is later incorrect if Defendant understands it
was an estimate and is correctly advised of the potential statutory penalties for the offense.”). As
noted above, Defendant’s responses during the plea colloquy show that such requirements were
satisfied in this case. (Docket No. 185 at 37-38).
In any event, from the Court’s perspective, the sentencing advocacy by trial counsel was
constitutionally sufficient, as he provided able argument on Defendant’s behalf in a written
Sentencing Memorandum and at the sentencing hearing seeking a variance below the advisory
guidelines range of 15 to 21 months to a non-incarceration sentence – a position which was
strongly contested by counsel for the Government. See Sent. Hr’g Trans. 9/29/14. The Court
granted the variance motion, in part, sentencing Defendant to 6 months’ incarceration. Id.
Despite this ruling, trial counsel continued to argue on Defendant’s behalf, amid additional
opposition from Government counsel, and convinced the Court to make the recommendation that
Defendant be able to serve his sentence of 6 months’ incarceration at the Renewal Center, rather
than a federal penitentiary. See id.
Next, Defendant could not have been prejudiced by the alleged failure of his trial counsel
17
to advise him about the materiality element of wire fraud because, as is outlined in the following
passage, Defendant told the Court at the change-of-plea hearing that he understood that the
government was required to prove each of the elements of wire fraud, including materiality,
beyond a reasonable doubt.
THE COURT: Mr. Desai, as the Assistant U.S. Attorney on this
case, will you now please place on the record the elements of this
case to which the defendant intends to plead so it will be clear to him
and on this Court's record that he understands the nature of the
offenses to which he may be entering pleas of guilty.
MR. DESAI: Yes, Your Honor.
There are three elements to the crime of wire fraud, which is a
violation of 18 U.S.C. Section 1343. The first element is that the
defendant devised a scheme to defraud or to obtain money or
property by materially false or fraudulent pretenses, representations,
or promises, or willfully participated in such a scheme with
knowledge of its fraudulent nature. Two, the defendant acted with
the intent to defraud. And three, that in advancing, furthering or
carrying out the scheme, the defendant transmitted any writing,
signal or sound by means of a wire, radio or television
communication in interstate commerce or caused the
communication of any writing, signal, or sound of some kind by
means of wire, radio or television communication in interstate
commerce.
THE COURT: Thank you, Mr. Desai.
Mr. Isabella, do you understand that if you had decided you wanted
to go to trial, the government would have been required to prove
each element of the offenses charged as Mr. Desai just recited them
beyond a reasonable doubt in order to prove you're guilty?
Do you understand that?
THE DEFENDANT: Yes, Your Honor.
(Docket No. 185 at 32-33). The prosecutor’s recitation of the elements was essentially a verbatim
18
review of the elements set forth in the Indictment Memorandum, which Defendant does not claim
he failed to receive or review. (Docket No. 2). He also advised the Court several times that he
understood the charges and had no questions for his counsel or the Court about them. (See Docket
No. 185). Defendant’s sworn assertions are entitled to a strong presumption of verity, see
Blackledge, 431 U.S. at 73-74, and he has offered no evidence, let alone clear and convincing
evidence, to upset or undermine his earlier statements. See United States v. Jackson, Crim. No.
10-233, 2015 WL 1000089, at *1 (W.D. Pa. Mar. 5, 2015) (Ambrose, J.) (quoting Morris v. United
States, No. 04-1570, 2008 WL 1740679 (D. Del. Apr. 16, 2008)) (“absent clear and convincing
evidence to the contrary, a court must presume the veracity of a defendant’s statements made while
under oath in open court.”). Accordingly, as the record reflects that Defendant admitted to the
Court, under oath, that he understood the elements of wire fraud, including materiality, he cannot
establish prejudice by any error of his trial counsel by failing to review that particular element with
him. See id.
Defendant’s subsequent arguments that his trial counsel never provided him with a copy of
the Addendum to the PIR and that trial counsel never reviewed it with him fails for the same
reason. (Docket No. 175). Despite these averments, Defendant confirmed with the Court at the
sentencing hearing, under oath and on the record, that he had received the Addendum and that his
counsel reviewed it with him. (Docket No. 150) (“Oath administered to defendant; Court asks
defendant questions [regarding] Presentence Report, Addendum & Tentative Findings, defendant
answers [and] understands.”); see also Sent. Hr’g Trans. 9/29/14. Further, the Addendum
provided nothing of substance to Defendant’s case, with the Probation Officer merely noting that
the Government and Defendant had “filed no objections to the presentence report.” (Docket No.
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123). Again, prejudice is lacking.
The last issue raised in the context of an ineffective assistance of counsel claim is
Defendant’s assertion that his trial counsel failed to meaningfully consult him about filing an
appeal of his sentence. (Docket No. 175).
When a defendant claims counsel was ineffective in not taking an
appeal, “the first step in the analysis is to determine whether counsel
consulted with his client regarding an appeal ....” Harrington v.
Gillis, 456 F.3d 118, 125 (3d Cir. 2006). “‘If counsel has consulted
with the defendant, the question of deficient performance is easily
answered: Counsel performs in a professionally unreasonable
manner only by failing to follow the defendant’s express
instructions with respect to an appeal.’” Id. (quoting Roe v. Flores–
Ortega, 528 U.S. 470, 478, 120 S.Ct. 1029, 1035, 145 L.Ed.2d 985
(2000)). Counsel “consults” with his client when he “advis[es] the
defendant about the advantages and disadvantages of taking an
appeal and mak[es] a reasonable effort to discover the defendant’s
wishes.” Id. at n. 3 (quoting Flores–Ortega, 528 U.S. at 478, 120
S.Ct. 1029 at 1035, 145 L.Ed.2d 985).
United States v. Banks, CR-09-341, 2011 WL 3897961, at *3 (M.D. Pa. Sept. 6, 2011). But, 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). The Court of Appeals has
also held that prejudice under Strickland is not presumed if an attorney fails to consult a client
about a potential appeal when the record reveals that Defendant knowingly and voluntarily waived
his rights to appeal in a plea agreement with the Government and there would be no miscarriage of
justice if the waiver was enforced. See Mabry, 536 F.3d at 236-38. Indeed, the Court of Appeals
has recognized that filing an appeal in a case with a clear appellate waiver may constitute a breach
of the plea agreement which potentially subjects the defendant to a de novo resentencing under less
20
favorable terms. See United States v. Erwin, 765 F.3d 219 (3d Cir. 2014).
Like the other aspects of Defendant’s guilty pleas, the Court reviewed the terms of the
written plea agreement with Defendant at the change-of-plea hearing and also questioned him
about the appellate waiver during which he agreed to such terms and confirmed that he understood
them. (Docket No. 185 at 21-22). He acknowledged that he had consulted his trial counsel
about the appellate waiver, and stated that he was willing to give up his appellate rights in
exchange for the other benefits of the plea agreement. (Id.). Amid this questioning, the Court
specifically held that:
THE COURT: [Mr. Isabella,] [y]ou should also understand that
waivers of appeal are generally permissible if they’re entered into
knowingly and voluntarily, unless they would work a miscarriage of
justice. There's a whole series of Third Circuit cases that say that.
The latest one is United States versus Grimes that was handed down
this year.
Now, I have examined the record, such as I have it, and as you
know, because I have your brother's case, too, I know quite a bit
about this case. I've observed you here in this court, I've heard your
responses to my questions, and at this point, I don't see any basis to
invalidate your waivers in this case.
(Id. at 23).
Based on this record, the Court again finds that Defendant entered into this plea agreement
knowingly and voluntarily. 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
21
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 557, 563 (3d
Cir. 2001)).
Here, the asserted error is that trial counsel did not consult with Defendant concerning the
filing of an appeal. (Docket No. 175). Defendant admits that he did not ask that an appeal be
filed on his behalf. (Id.). However, he contends that he was under the impression at the
sentencing hearing that he would be able to continue to work as a cab driver while serving his
sentence at the Renewal Center. (Id.). He continues that after he learned of the Renewal
Center’s position, he had a conversation with trial counsel, asking him if there was anything they
could do to which trial counsel responded “no.” (Id.). Defendant maintains that he would have
appealed the sentence if he had been properly advised by trial counsel that he would not be able to
continue working as a cab driver during his time in community confinement. (Id.).
In his submission, Defendant has not provided any dates when these alleged conversations
occurred but he does not appear to account for the 14 day deadline to file an appeal after the
sentencing, (i.e., by Tuesday, October 14, 2014), which the Court reminded him of on the record,
(Docket No. 150), or the fact that Defendant self-reported to the Renewal Center approximately
6-weeks after the sentencing around November 10, 2014. To the extent that Defendant complains
that his counsel told him in November of 2014 that there was nothing he could do about the
22
Renewal Center’s decision denying his request to work as a cab driver,7 the time for filing an
appeal had already expired. (Docket No. 175). Thus, the Judgment had become final and there
literally was nothing that could be done to challenge the Court’s sentence via the filing of a direct
appeal. See Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999) (“If a defendant does not
pursue a timely direct appeal to the court of appeals, his or her conviction and sentence become
final [ … ] on the date on which the time for filing such an appeal expired.”).
In addition, the Court denied Defendant’s November 2014 Motion that his trial counsel
filed on his behalf because it lacked jurisdiction to review the Bureau of Prison’s decisions
concerning the execution of Defendant’s sentence including its designation of the Renewal Center
as the place of confinement and any policies restricting his activities while housed there. See
Galloway v. Warden of F.C.I. Ft. Dix, 385 F. App’x 59, 62 (3d Cir. 2010) (pursuant to 18 U.S.C. §
3621, the Bureau of Prisons is delegated the sole authority and discretion to designate the place of
Defendant’s confinement). Any appeal of that Order of Court would have been dismissed by the
Court of Appeals for the same reason. Id.
But, even if the Court assumes that Defendant’s interactions with his trial counsel occurred
prior to the expiration of the appeal period, his recitation of the conversations makes clear that he
actually did receive some counseling and the advice he received was not erroneous given the
appellate waiver in the plea agreement. See Plea Agreement at ¶ A.8. Again, he was authorized to
appeal his sentence only if: (1) the United States filed a direct appeal; or (2) if the sentence
exceeded the applicable statutory limits or unreasonably exceeded the advisory guideline range.
7
The Court notes that this is certainly plausible given trial counsel’s filing of the Motion seeking such relief
with this Court on November 12, 2014, (Docket No. 154), after someone purporting to be Defendant called Chambers.
23
Id. These exceptions could not be invoked because the United States did not appeal the sentence
and the length of same (6 months) was below the advisory guidelines range of 15 to 21 months and
well within the potential statutory penalties of 20 years’ incarceration at each count of conviction.
Id. If an appeal was filed, it would be a clear breach of the agreement and any advice to pursue
such an unmeritorious appeal would be erroneous and, if followed, could have potentially led to
adverse consequences for Defendant including rescission of the agreement and a de novo
resentencing. See Erwin, 765 F.3d 219. Again, the Court personally addressed Defendant about
the appellate waiver provisions during the plea colloquy and he advised that he understood such
terms and assented to same.
(Docket No. 185 at 18, 21-23).
In light of these facts, no
miscarriage of justice would result from enforcement of the appellate waiver and Defendant was
not prejudiced by the alleged failures of his trial counsel to consult him about an appeal.
Defendant’s final allegation in his § 2255 Motion is that the Indictment should be
dismissed because the grand jury that indicted him lacked any minorities in violation of the
Constitution. (Docket No. 175). The Supreme Court has held that this type of contest to a defect
in the Indictment must be made prior to the trial or entry of guilty plea, absent a showing of cause
and prejudice. See Davis v. United States, 411 U.S. 233, 242 (1973) (“We therefore hold that the
waiver standard expressed in Rule 12(b)(2) governs an untimely claim of grand jury
discrimination, not only during the criminal proceeding, but also later on collateral review.”); see
also United States v. Clark, 208 F. App’x 137, 142 n.5 (3d Cir. 2006) (arguments concerning
defects in indictment are waived if not raised before trial.). Here, during the plea colloquy,
Defendant expressly waived any challenges to the constitutionality of the Indictment.
THE COURT: Moreover, if you plead guilty, do you understand
24
you're giving up defenses that you might have had to the offenses
charged, including defenses or challenges to the indictment based
on the Constitution, and you won't be able to raise those defenses or
challenges after you plead guilty?
Do you understand that?
THE DEFENDANT: Yes, Your Honor.
(Docket No. 185 at 13). For the same reasons outlined above, this claim lacks merit as he entered
his guilty pleas with a full understanding that this type of defense to the Indictment was being
waived.
V.
CONCLUSION
For the reasons stated herein, Defendant’s Motion to Vacate, Set Aside or Correct Sentence
under 28 U.S.C. § 2255 [175] is denied. In addition, the Court concludes 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: October 16, 2015
cc/ecf: All counsel of record
Defendant David Isabella, pro se
759 Maytide Street
Pittsburgh, PA 15227
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