Mondelice v. United States, CASE NO. 3:15-CR-295

GETHRO MONDELICE, Petitioner v. UNITED STATES OF AMERICA, Respondent

CASE NO. 3:15-CR-295

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

March 3, 2021

(JUDGE MANNION)

MEMORANDUM

Pending before the court is petitioner Gethro Mondelice's ("Mondelice") counseled Motion to Vacate, Set Aside, or Correct his judgment of conviction imposed on July 3, 2018. (Doc. 101). Mondelice served his 36 month prison sentence and was in the custody of ICE at Essex County Correctional Facility, Newark, New Jersey, serving his term of supervised release when he filed his motion on July 17, 2019. (Doc. 110). After he filed his motion, Mondelice, a lawful permanent resident of the United States but not a citizen, was removed from the United States to Haiti by ICE pursuant to a removal order. Mondelice's instant motion is filed pursuant to 28 U.S.C. §2255 and is based upon ineffective assistance of counsel claims against his two trial counsel. In particular, Mondelice claims that his first trial counsel was ineffective for failing to advise him, prior to his guilty plea, that he would be deported to Haiti based upon the charges to which he was going to plead guilty, and that he would be ineligible to file a request for relief from removal with the Immigration Court. Mondelice claims that his second trial counsel was ineffective for various reasons, including his failure to file a requested appeal of his judgment of sentence alleging that the court erred in denying his two motions in limine, his failure to advise him about deportation consequences, and his failure to properly consult with him about filing an appeal. As relief, Mondelice requests the court to vacate his judgment of conviction as to Counts 1-3 and to reinstate his appellate rights so that he can appeal the trial court's rulings regarding the admissibility of a telephone conversation defendant had with a CI who had died and the admissibility of the transcript of the defendant's testimony at his guilty plea withdrawal hearing. Mondelice also requests the court to allow him to withdraw his guilty plea to Count 4.

On September 20, 2019, the government filed a motion for an evidentiary hearing in this case. (Doc. 114). Mondelice did not oppose the motion. The court then scheduled the evidentiary hearing and granted motions to continue the hearing. The court finally scheduled the hearing for April 2, 2020. (Doc. 119). In the meantime, the judge who was assigned this case, the Honorable A. Richard Caputo, passed away prior to the hearing, and this case was re-assigned to the undersigned on March 17, 2020. OnMarch 31, 2020, this court issued an Order and cancelled the April 2, 2020 hearing since Mondelice was removed from the United States in November 2019, and his counsel was not able to locate him. (Doc. 121). After the court directed counsel to file briefs concerning whether this case should be dismissed for lack of prosecution and responses were filed, on November 3, 2020, the court scheduled the hearing for December 10, 2020. (Doc. 126). The court directed that Mondelice must appear for the hearing by video conference in Haiti.

The evidentiary hearing was conducted on December 10, 2020, and testimony was heard from Mondelice, Ingrid Cronin, first trial counsel, and Matthew Comerford, second trial counsel. At the conclusion of the hearing, the court issued a briefing schedule.

The transcript from the evidentiary hearing was filed on December 15, 2020. (Doc. 130).

After being granted an extension of time, Mondelice filed his brief in support of his motion under 28 U.S.C. §2255, on January 22, 2021. (Doc. 133).

Also, following an extension of time, the government filed its brief in opposition on February 16, 2021. (Doc. 136).

Mondelice has not filed a reply brief and the time to do so has expired.

Upon the court's review of the record in this case, Mondelice's §2255 motion, (Doc. 110), the hearing testimony and Exhibits, as well as the briefs of the parties, Mondelice's motion will be GRANTED IN PART and DENIED IN PART.

I. BACKGROUND¹

On December 15, 2015, an Indictment was filed against Mondelice charging him with three counts of Distribution of Cocaine, in violation of 21 U.S.C. §841(a)(1), (Counts 1-3), one count of Possession with Intent to Distribute Cocaine, in violation of 21 U.S.C. §841(a)(1), (Count 4), and one count of Possession of Firearms in furtherance of Drug Trafficking, in violation of 18 U.S.C. §924(c), (Count 5). (Doc. 1). The Indictment also contained a forfeiture count.

Cronin, an attorney with the Federal Public Defender's Office, was appointed by the court to represent Mondelice.

On April 4, 2016, Mondelice executed a plea agreement in which he agreed to plead guilty to Count 4 of the Indictment, Possession with Intent toDeliver Cocaine, and Count 5, Possession of a Firearm in Furtherance of a Drug Trafficking Crime. (Doc. 18).

On May 23, 2016, Mondelice pled guilty to Counts 4 and 5. (Doc. 26). Subsequently, on June 20, 2016, Cronin filed a motion to allow Mondelice to withdraw his guilty plea to only Count 5, the 18 U.S.C. §924(c) offense, and a brief in support. (Docs. 27 & 28). On July 20, 2016, Mondelice filed a motion for new counsel. (Doc. 32). The following day, Cronin filed a motion to withdraw as Mondelice's counsel. (Doc. 33).

On July 27, 2016, the court granted Mondelice's motion for new counsel and Cronin's motion to withdraw, and appointed Comerford, pursuant to the Criminal Justice Act, to be Mondelice's new counsel. (Docs. 35 & 36).

On December 1, 2016, the court conducted a hearing on Mondelice's motion to withdraw his guilty plea on Count 5. Mondelice testified at the hearing and made certain admissions about the drug offenses. On December 6, 2016, the court issued an Order and permitted Mondelice to withdraw his guilty plea with respect to only Count 5 since he stated that he was actually innocent of this firearm charge. (Docs. 42 & 43). Mondelice's guilty plea to the Count 4 drug offense (possession with intent to deliver cocaine) remained in effect. Also, Mondelice still faced the drug trafficking charges against him in Counts 1-3.

The court then scheduled a trial regarding the firearm charge pending against Mondelice, Count 5, as well as the three drug trafficking charges, Counts 1-3. However, the trial was continued after Comerford filed pre-trial motions, including a motion in limine to preclude the use by the government of a recorded conversation between Mondelice and a deceased CI, and a motion in limine to preclude the use of Mondelice's testimony at the hearing to withdraw his guilty plea. (Docs. 67 & 74). The court denied Mondelice's two stated motions.

The trial on the stated charges against Mondelice in Counts 1-3 and 5 commenced on June 5, 2018, and the jury returned a verdict on June 6, 2018. (Doc. 87). In particular, the jury found Mondelice guilty on the drug delivery charges in Counts 1-3, and not guilty on Count 5, the §924(c) charge. As indicated, Mondelice's guilty plea to Count 4 was not withdrawn. The court then directed the Probation Office to prepare a presentence investigation report.

On July 3, 2018, the court sentenced Mondelice to time served (after he served about 35 months in federal detention) on Counts 1-4, to run concurrently, followed by a 3-year term of supervised release. (Doc. 101). However, since the Bureau of Immigration and Customs Enforcement ("ICE") had a detainer lodged against Mondelice to commence removal proceedingsagainst him after his criminal case was finished, he remained in custody of the government.

Mondelice did not file a direct appeal of his conviction and sentence with the Third Circuit Court of Appeals.

On August 6, 2018, Mondelice was arrested by ICE agents and he was taken to the Essex County Correctional Facility where he was detained.

Mondelice was simultaneously served with a Notice to Appear by ICE commencing removal proceedings against him and charging him as being subject to removal under Section 237(a)(2)(B)(i) of the Immigration and Nationalities Act ("INA"), conviction of a controlled substance offense (other than marijuana possession), and INA Section 237(a)(2)(A)(iii), conviction of an offense relating to the illicit trafficking of a controlled substance. Also, since Mondelice was convicted of drug trafficking offenses, considered aggravated felonies by INA §101(a)(43)(B), he was ineligible for bail during the immigration proceedings under INA §236(c). As such, Mondelice remained in detention under ICE's custody pending his removal proceedings.

On April 30, 2019, Mondelice filed, through counsel, an application with the Executive Office of Immigration Review for relief from removal pursuant to the Convention Against Torture ("CAT"), as well as requests for Asylum and for Withholding of Removal. In his CAT application, Mondelice alleged that he was taken out of Haiti, his country of origin, when he was one yearold, and that if he was returned to Haiti he was in danger of being tortured by agents of the Haitian government. On June 24, 2019, Mondelice's requests for relief from removal were denied by an Immigration Judge and he was ordered removed from the United States to Haiti.

On July 05, 2019, Mondelice filed, pro se, an appeal of the Immigration Judge's removal order with the Board of Immigration Appeals ("BIA").

On July 17, 2019, Mondelice, filed, through counsel, his instant motion pursuant to 28 U.S.C. §2255 raising his claims of ineffective assistance of his two trial counsel and seeking to vacate his judgment of conviction and to reinstate his right to appeal. (Doc. 110). Specifically, Mondelice alleged that he was not informed by Cronin at the time he entered his guilty pleas to the drug trafficking offenses and the firearms offense that since he was not a United States citizen, and only a lawful permanent resident, he would be removed from the United States due to his conviction on the offenses. He also alleged that when he moved to withdraw...