MCCLOSKEY v. UNITED STATES OF AMERICA
MEMORANDUM OPINION & ORDER regarding § 2255 motion filed at Crim. No. 09-225 and setting hearing for 8/3/17.. Signed by Chief Judge Joy Flowers Conti on 6/15/17. (mh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
Criminal No. 09-225
Civil No. 16-987
Conti, Chief District Judge.
Defendant David McCloskey (“McCloskey”) filed a motion, through counsel, to vacate his
conviction and/or sentence pursuant to 28 U.S.C. § 2255 (ECF No. 149), with numerous exhibits
and brief in support (ECF Nos. 150, 151). McCloskey alleges ineffective assistance by two of
his former attorneys, Michael DeRiso (“DeRiso”) and James Robinson (“Robinson”).1 The
government filed a response in opposition to the motion and McCloskey filed a reply brief (ECF
Nos. 153, 155). The motion is ripe for disposition, except for one matter on which the court
must hold an evidentiary hearing.
Factual and Procedural Background
On July 14, 2009, a federal grand jury returned a one-count indictment charging
McCloskey with Conspiracy to Commit Wire Fraud, a violation of 18 U.S.C. § 1349. (ECF No.
1.) On June 8, 2010, defendant pleaded guilty to the offense. (ECF Nos. 28.) There was no plea
agreement. During the plea hearing, McCloskey agreed with only part of the government’s
factual basis for the conspiracy charge. McCloskey admitted that he knew Kenneth Cowden
McCloskey does not allege ineffective assistance by his third attorney, Martin Dietz.
(“Cowden”) was not a licensed appraiser, but did not concede that he hired Cowden to perform
McCloskey acknowledged that the factual statements he agreed with
“satisf[y] the elements of wire fraud.” (Plea Hr’g Tr. at 17–20, ECF No. 78.) The court
questioned McCloskey thoroughly to confirm that McCloskey knew that he could be sentenced
to the statutory maximum of 20 years in prison and would be bound by his guilty plea even if his
counsel made a mistake in advising him regarding the likely sentence. The court accepted
defendant’s entry of a guilty plea as knowing and voluntary. (Id. at 20–21.)
The sentencing process was extensive and extended for over three years. The parties
vigorously disputed numerous sentencing issues, most notably, the relevant conduct and amount
of loss the government sought to attribute to McCloskey.2 The court held an evidentiary hearing
on March 19 and 20, 2012, to determine the correct application of the sentencing guidelines in
On May 22, 2012, attorney DeRiso filed a motion on behalf of McCloskey to withdraw his
guilty plea. (ECF No. 83.) In support of the motion to withdraw his guilty plea, McCloskey
executed an affidavit in which he made the following sworn representations to the court: “That I
have read the entirely [sic] of this motion and assert that each factual matter stated therein is true
and correct to the best of my knowledge, information and belief,” and “I assert that I am innocent
of the offense charged in the Indictment.” (ECF No. 83-1 ¶¶ 2, 5.) McCloskey acknowledged that
his affidavit was made subject to the criminal penalties for perjury. (Id.) The affidavit was signed
by McCloskey and witnessed by DeRiso. On June 5, 2012, the government opposed the motion
to withdraw the guilty plea, and noted that it “now objects to any reduction based on acceptance
McCloskey contended his responsibility should be limited to thirteen or fourteen loans within
the post-2004 indictment period leading to an amount of loss of $33,000. The government
initially sought to hold McCloskey responsible for the actions of more than a dozen mortgage
brokers, with an amount of loss in excess of $7,000,000. (See ECF No. 119.)
of responsibility and intends to assert that the two-level obstruction of justice enhancement
applies.” (ECF No. 84 at 10 n.7.)
The hearing on the motion to withdraw the guilty plea was postponed several times. In
August 2012, DeRiso filed a motion to withdraw as counsel and McCloskey filed a parallel
motion to remove DeRiso as his attorney. (ECF Nos. 95, 96). On September 4, 2012, the court
held a hearing. (ECF No. 144.) DeRiso informed the court that the impasse with McCloskey
arose over how to handle the motion to withdraw his guilty plea. (Id. at 5). Upon questioning
from the court, DeRiso explained that the dispute was not over whether the motion should have
been filed, that he was competent to handle it and had no problem doing so, and that the
allegation was in good faith and founded. The dispute instead involved strategy – who should be
called as witnesses, what evidence should be produced, and how the hearing should proceed.
(Id. at 5-6.)
McCloskey also presented his criticisms and concerns regarding DeRiso’s
representation to the court. (Id. at 6-10.) Because McCloskey’s accusations of ineffective
assistance of counsel created a conflict of interest, the court granted the motions and terminated
DeRiso’s representation. On September 14, 2012, Robinson was appointed as McCloskey’s
On January 2, 2013, the court held a hearing on the motion to withdraw the guilty plea.
When Robinson called DeRiso to testify as a witness, the government sought to clarify the record
regarding McCloskey’s waiver of the attorney-client privilege and the government’s intent to
pursue perjury charges. (ECF No. 150-8 at 7-17.) After conferring with attorney Robinson,
defendant abandoned the motion to withdraw his guilty plea. (Id. at 17.)
On June 6, 2013, attorney Martin Dietz (“Dietz”) was appointed as McCloskey’s counsel
and Robinson withdrew his appearance. On November 26, 2013, the court found that the
statements McCloskey made in the affidavit in support of his motion to withdraw his guilty plea
directly contradicted his knowing and voluntary admission in open court, under oath, that he
committed the offense charged in the indictment. (ECF No. 119 ¶ 18.) Based on the filing of the
motion to withdraw guilty plea and the attached affidavit, the court imposed a two-level
enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1 and denied the two-level
decrease for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) in determining the
advisory guideline range. (ECF No. 119 at ¶¶ 70-83.)
The guidelines considered by the court in imposing the sentence for McCloskey were
based on offense level 37 and criminal history category I, for an advisory range of 210-262
months (but capped at the statutory maximum of 240 months). Without the adjustments resulting
from the motion to withdraw the plea and affidavit, McCloskey’s offense level would have been
33 and criminal history category I, for an advisory guideline range of 135-168 months. The
court granted a downward variance and sentenced McCloskey to a term of imprisonment of 120
McCloskey pursued a direct appeal. His conviction and sentence were affirmed in a
nonprecedential opinion filed on April 8, 2015. (ECF No. 146-2.) In relevant part, the court of
appeals stated: (1) “The District Court questioned McCloskey thoroughly regarding his potential
sentence noting that he could be sentenced to the statutory maximum for his offense, which was
20 years in prison,” id. at 3; (2) the district court explicitly confirmed that McCloskey would be
bound by his guilty plea and have no right to withdraw it, even if his counsel made a mistake in
advising him regarding the likely sentence, id.; (3) the district court properly considered pre2004 actions as “relevant conduct,” id. at 5; (4) McCloskey does not deny that the sworn
statements in his affidavit (in support of the motion to withdraw his guilty plea) were false and
his assertions of “confusion” and “fear” fail, id. at 8; (5) a defendant who perjures himself in an
attempt to withdraw his guilty plea obstructs justice and thus, the district court did not err in
applying this enhancement, id.; and (6) McCoskey was commended for abandoning his motion
to withdraw his guilty plea, id. at 9. The court of appeals held that the district court properly
applied an enhancement for obstruction of justice and properly denied credit for acceptance of
McCloskey filed this § 2255 motion on June 30, 2016. It is timely pursuant to 28 U.S.C. §
2255(f)(1), because it was filed within one year of July 7, 2015, the date McCloskey’s conviction
became final (90 days after the court of appeals’ decision, when his right to file a petition for
certiorari to the Supreme Court expired).
McCloskey articulated numerous alleged deficiencies of counsel. McCloskey contends
that DeRiso (1) failed to investigate the case and obtain discovery; (2) failed to research and advise
him regarding conspiracy; (3) failed to safeguard him from the government’s theory of loss; (4)
failed to advise him about the ramifications of an “open” plea; (5) failed to advise him of
sentencing enhancements; (6) failed to explain the concept of “relevant conduct”; (7) failed to
preserve objections to the presentence investigation report (“PSI”); (8) failed to rebut the
government’s theory of loss; (9) failed “to understand explaining the implications of filing a
Motion to Withdraw Plea agreement and advising Petitioner of potential impact on his sentence”;
(10) failed “in advising Petitioner to sign a sworn affidavit filed with the Court professing
innocence after statements had been made to the FBI and after a guilty plea had been entered
before the Court”; and (11) failed “to file a proper motion to withdraw a guilty plea with legally
sufficient support, and attaching an affidavit wherein Petitioner essentially rebuts prior sworn
testimony.” (ECF No. 151 at 7-8.)
McCloskey contends that attorney Robinson: (1) failed to research the implications of
pressing forward with the motion to withdraw his guilty plea; (2) failed to advise him of the impact
if the motion to withdraw guilty plea were denied; and (3) failed to object to sentencing issues.
A. Standard of Review
Under 28 U.S.C. § 2255, a federal prisoner in custody may move the court which
imposed the sentence to vacate, set aside, or correct the sentence upon the ground that “the
sentence was imposed in violation of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255. The
Supreme Court reads § 2255 as stating four grounds upon which relief can be granted:
(1) “that the sentence was imposed in violation of the Constitution
or laws of the United States;” (2) “that the court was without
jurisdiction to impose such sentence;” (3) “that the sentence was in
excess of the maximum authorized by law;” and (4) that the
sentence “is otherwise subject to collateral attack.”
CHARLES A. WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 625 (4th ed. 2011) (quoting
Hill v. United States, 368 U.S. 424, 426-27 (1962)). The statute provides as a remedy for a
sentence imposed in violation of law that “the court shall vacate and set the judgment aside and
shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may
appear appropriate.” 28 U.S.C. § 2255.
“As a collateral challenge, a motion pursuant to [§ 2255] is reviewed much less favorably
than a direct appeal of the sentence.” United States v. Travillion, 759 F.3d 281, 288 (3d Cir.
2014) (citing United States v. Frady, 456 U.S. 152, 167–68 (1982)). “Indeed, relief under §
2255 is available only when ‘the claimed error of law was a fundamental defect [that] inherently
results in a complete miscarriage of justice, and... present[s] exceptional circumstances where the
need for the remedy afforded by the writ...is apparent.’” Id. (quoting Davis v. United States, 417
U.S. 333, 346 (1974) (internal quotation marks omitted)).
A district court is required to hold an evidentiary hearing on a § 2255 motion if “the files
and records of the case are inconclusive as to whether the movant is entitled to relief.” United
States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005). “[T]he court must accept the truth of the
movant’s factual allegations unless they are clearly frivolous on the basis of the existing record.”
Id. at 545.
To support a claim that counsel’s assistance was so defective as to amount to a
deprivation of one’s Sixth Amendment right to effective assistance of counsel and require
reversal of a conviction, a defendant must show two things: (1) counsel’s performance was
deficient; and (2) counsel’s deficient performance caused him prejudice. Williams v. Taylor, 529
U.S. 362, 390-91 (2000) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)); see Ross v.
Dist. Att’y of the Cnty. of Allegheny, 672 F.3d 198, 210 (3d Cir. 2012).
“To show deficient performance, ‘a person challenging a conviction must show that
counsel’s representation fell below an objective standard of reasonableness. . . The challenger’s
burden is to show that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.’” Ross, 672 F.3d at 210 (quoting
Harrington v. Richter, 562 U.S. 86, 104 (2011)).
When evaluating whether counsel’s
performance was deficient, the relevant inquiry is whether counsel’s assistance was reasonable
under the totality of the circumstances. Strickland, 466 U.S. at 688.
“The Supreme Court directs that our ‘scrutiny of counsel’s performance must be highly
deferential’ to avoid holding counsel incompetent because of reasonable strategic or tactical
judgments which, with the benefit of tactical hindsight, might prove not to have best served his
client’s interests.” United States v. Loughery, 908 F.2d 1014, 1018 (D.C. Cir. 1990) (quoting
Strickland, 466 U.S. at 689). “[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690.
“Because advocacy is an art and not a science, and because the adversary system requires
deference to counsel’s informed decisions, strategic choices must be respected . . . if they are
based on professional judgment.” Id. at 681. “Strickland and its progeny make clear that
counsel’s strategic choices will not be second-guessed by post-hoc determinations that a different
. . . strategy would have fared better.” Roland v. Vaughn, 445 F.3d 671, 681-82 (3d Cir. 2006).
In the context of criminal defense, “certain litigation decisions are considered
‘fundamental’ and are for the client to make. These include decisions on whether to plead guilty,
whether to testify, and whether to take an appeal. After consultation with the client, all other
decisions fall within the professional responsibility of counsel.” Sistrunk v. Vaughn, 96 F.3d 666,
670 (3d Cir. 1996) (citing Jones v. Barnes, 463 U.S. 745, 751 (1983)).
“With respect to prejudice, a challenger must demonstrate 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.”
Harrington, 562 U.S. at 104.
It is not enough to show that counsel’s errors had “some
conceivable effect on the outcome of the proceeding.” Id. (citing Strickland, 466 U.S. at 693).
The right to effective assistance of counsel extends to plea negotiations.
Cooper, 566 U.S. 156, 162 (2012). The performance prong requires a defendant to show that
counsel’s representation during the plea bargaining process fell below an objective standard of
reasonableness. Id. at 163. To show prejudice in the context of a guilty plea, a defendant must
show the outcome of the plea process would have been different with competent advice. Id. In
Hill v. Lockhart, 474 U.S. 52, 59 (1985), the Supreme Court explained that determining
prejudice in guilty plea cases will often require a prediction as to the outcome of a trial.
As both deficient performance and prejudice must be demonstrated to support a claim of
ineffective assistance, the absence of one negates the need to address the other. 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.”). A
court, therefore, need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies.
Marshall v. Hendricks, 307 F.3d 36, 87 (3d Cir. 2002) (citing Strickland, 466 U.S. at 697)); see
McAleese v. Mazurkiewicz, 1 F.3d 159, 170 (3d Cir. 1993), cert. denied, 510 U.S. 1028 (1993)
(“Indeed, this Court has read Strickland as requiring the courts to decide first whether the
assumed deficient conduct of counsel prejudiced the defendant.”) (internal quotations and
citations omitted). By the same token, where a defendant fails to prove the unreasonableness
prong of Strickland, a court need not reach the prejudice prong. Werts v. Vaughn, 228 F.3d 178,
224 n.24 (3d Cir. 2000).
B. Alleged misconduct by DeRiso related to the guilty plea and PSI
Allegations (1) through (8) against DeRiso will be denied. There was no prejudice to
McCloskey arising from DeRiso’s alleged errors prior to his entry of a guilty plea. As the court of
appeals recognized, this court conducted a thorough colloquy before accepting McCloskey’s guilty
plea as knowing and voluntary. The disputes in this case did not involve guilt, but sentencing. As
the government points out, there was never a possibility of a plea agreement because the parties’
were so far apart on the amount of loss. In the plea hearing, the court questioned McCloskey
specifically to ensure that he knew that if he pled guilty, he could be sentenced up to the statutory
maximum of 20 years and that he would be bound by his guilty plea even if he received mistaken
advice from his attorney about his likely sentence. McCloskey affirmed that he understood. (ECF
No. 153-1 at 11, 13, 16.)
It is well-established that a thorough colloquy cures any potential prejudice arising out of
an attorney’s mistaken advice regarding a likely sentence. See, e.g., United States v. Shedrick, 493
F.3d 292, 299 (3d Cir. 2007) (“we have long held that an erroneous sentencing prediction by
counsel is not ineffective assistance of counsel where, as here, an adequate plea hearing was
conducted”); United States v. Mustafa, 238 F.3d 485, 491 (3d Cir. 2001) (“Moreover, any alleged
misrepresentations that [defendant’s] former counsel may have made regarding sentencing
calculations were dispelled when [defendant] was informed in open court that there were no
guarantees as to sentence, and that the court could sentence him to the maximum”); Masciola v.
United States, 469 F.2d 1057, 1059 (3d Cir. 1972) (per curiam) (holding that “[a]n erroneous
prediction of a sentence by defendant’s counsel does not render a guilty plea involuntary” where
record demonstrates that a proper plea colloquy took place during which defendant acknowledged
that he was aware of his maximum potential sentence). As the court explained in Mustafa:
We recognize that the maximum sentence authorized by law is often so
extraordinarily long that few defendants other than “career criminals” plead guilty
with the expectation that the maximum sentence applies to them. However, all that
the law requires is that the defendant be informed of his/her exposure in pleading
guilty. The law does not require that a defendant be given a reasonably accurate
“best guess” as to what his/her actual sentence will be; nor could it, given the
vagaries and variables of each defendant’s circumstances and offending behavior.
See United States v. Cleary, 46 F.3d 307, 311 (3d Cir. 1995).
238 F.3d at 492 n.5.
McClaskey’s allegations of sentencing-related errors by DeRiso are also unavailing. The
record reflects that DeRiso did, in fact, file objections to the PSI. (See ECF Nos. 46, 75.) DeRiso
was replaced as counsel before the sentencing process was complete and, thus, did not have an
opportunity to finish that process. In light of the substantial sentencing proceedings that occurred
after DeRiso was replaced, McCloskey has not shown how his sentence may have been different
due to any alleged deficient performance by DeRiso.
C. Alleged misconduct by Robinson
All the allegations against Robinson will be denied. McCloskey has not established any
deficient performance by Robinson. The motion to withdraw guilty plea and the perjured affidavit
were filed before Robinson was involved in the case. The government raised the obstruction of
justice and acceptance of responsibility issues on June 5, 2012, several months before Robinson
was appointed as counsel. (ECF No. 84.) There was nothing Robinson could have done to “unring
the bell.” The court of appeals, in fact, commended Robinson’s decision to abandon that motion.
There was no prejudice to McCloskey from Robinson’s representation during the sentencing phase.
Robinson was replaced by Dietz as counsel before McCloskey was sentenced.
ultimately made numerous findings regarding sentencing factors, which were affirmed on appeal,
and awarded McCloskey a substantial downward variance to 120 months imprisonment.
McCloskey failed to allege how the outcome would have been better but for any alleged errors by
D. Motion to withdraw guilty plea and affidavit
The allegations of ineffective assistance of counsel relating to the filing of the motion to
withdraw the guilty plea and affidavit are more difficult and troubling. Counseling a client to
commit perjury falls below any reasonable standard of professional legal performance.
Pennsylvania Rule of Professional Conduct 3.3(a)(3) (“A lawyer shall not knowingly . . . (3) offer
evidence that the lawyer knows to be false.”). Because of the special protections historically
provided criminal defendants, however, a lawyer cannot “refuse to offer the testimony of such a
client where the lawyer reasonably believes but does not know that the testimony will be false.”
Id. at comment 9. It will be necessary, therefore, to fully understand the circumstances surrounding
the creation and filing of the motion and affidavit.
McCloskey adequately pled prejudice because his advisory guideline range nearly doubled
as a direct result of the motion and affidavit (from 135-168 months to 210-240 months). It is true
that the court granted a substantial downward variance to an even lower sentence of 120 months.
The court certainly considered the advisory guideline range, however, as the starting point and
initial benchmark. Gall v. United States, 552 U.S. 38, 49 (2007). There is a reasonable probability
that if McCloskey’s starting range had been 135-168 months, his ultimate sentence may have been
less than 120 months. “[W]hen the starting point for the § 3553(a) analysis is incorrect, the end
point, i.e., the resulting sentence can rarely be shown to be unaffected.” United States v. Langford,
516 F.3d 205, 217 (3d Cir. 2008).
Any increase in actual jail time has Sixth Amendment
significance. See United States v. Cobb, No. 09-733, 110 F. Supp.3d 591, 599-601 (D.N.J. 2015)
(granting § 2255 motion because it was reasonably probable that defendant’s sentence would have
been lower if based on a different advisory guideline range, even though the court granted a
downward variance in imposing the original sentence).
The court concludes that the existing record is not sufficient to resolve this issue. “[T]he
court must accept the truth of the movant’s factual allegations unless they are clearly frivolous on
the basis of the existing record.” Booth, 432 F.3d at 545-46. The court must hold an evidentiary
hearing if the record is inconclusive. Id. Attorney DeRiso was directly involved, as he filed the
motion and signed the affidavit as a witness. (ECF Nos. 83, 83-1.) McCloskey avers in an
affidavit in support of his § 2255 motion that neither DeRiso nor James Love reviewed the motion
or affidavit with him, he signed the affidavit as he was advised to do, and was never told that
signing the affidavit could be seen as admitting that he lied to the court during his plea hearing.
(ECF No. 150-1). DeRiso was called as a witness about the circumstances surrounding the motion
to withdraw the guilty plea in court on January 2, 2013, but the motion was withdrawn before he
testified. (ECF No. 150-8). The transcript of the hearing on September 4, 2012 (granting DeRiso’s
motion to withdraw as counsel) indicates that there may be factual disputes between McCloskey
and DeRiso. (ECF No. 150-6).
In the government’s response, the prosecutor suggests that DeRiso was “acting under
directions from the petitioner”; had an ethical obligation to file the motion; and was placed in “a
difficult position” with “little choice but to file the motion.” (ECF No. 153 at 11-12). The
government submitted no evidence and cited no legal authority to support these contentions.
Instead, the government refers vaguely to “the entirety of the record” and McCloskey’s persona as
a sophisticated and experienced business person who is not a shrinking violet. Id. at 11. In his
reply brief, McCloskey highlights the speculative inferences underlying the government’s
Accordingly, the court will conduct an evidentiary hearing for the limited purpose of
understanding the circumstances surrounding the creation and filing of the motion to withdraw
McCloskey’s guilty plea and attached affidavit.
McCloskey does not expressly deny the government’s proposed inferences.
The § 2255 motion (ECF No. 149) is taken under advisement as to the allegations related
to the filing of the motion to withdraw plea and attached affidavit and will be DENIED in all
other respects. An evidentiary hearing will be held on August 3, 2017 at 10:00 a.m.
An appropriate order follows.
June 15, 2017
/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
Criminal No. 09-225
Civil No. 16-987
AND NOW, this 15th day of June 2017, for the reasons set forth in the accompanying
opinion, IT IS HEREBY ORDERED that the § 2255 motion filed by David McCloskey (ECF
No. 149) is taken under advisement as to the allegations related to the filing of the motion to
withdraw his guilty plea and attached affidavit and is DENIED in all other respects. An
evidentiary hearing will be held on August 3, 2017 at 10:00 a.m.
/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge
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