Stevenson v. United States, Criminal No. 3:12-CR-145

TERRELL STEVENSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Criminal No. 3:12-CR-145

Civil Action No. 3:18-CV-0057¹

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

February 21, 2019

(JUDGE MARIANI)

MEMORANDUM OPINION

I. INTRODUCTION

Here the Court considers Petitioner's Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody under 28 U.S.C. § 2255 in which he alleges that he is actually innocent of the Career Offender sentencing enhancement applied at sentencing, he was denied effective assistance of counsel, and his conviction was obtained in violation of the constitutional protection against double jeopardy. (Doc. 593 at 5.) Petitioner's allegations relate to his October 20, 2014, conviction and April 9, 2015, sentencing. (Docs. 594, 598.) Petitioner also requests appointment of counsel and asserts that he is entitled to an evidentiary hearing. (Doc. 594 at 2, 65.) In conjunction with this Motion, Petitioner filed a Motion to Compel Production of the United States' June 24, 2014,Plea Agreement Proposal. (Doc. 605.) For the reasons discussed below, the Court concludes Petitioner's § 2255 Motion (Doc. 593) is properly granted in part and denied in part: the motion is granted in that the Court concludes Petitioner is entitled to relief on his claim related to multiple convictions for violations of 28 U.S.C. § 922(g); the motion is denied in all other respects. The Court further concludes Petitioner's Motion to Compel (Doc. 605) is properly denied.

II. BACKGROUND

Petitioner was originally charged in the June 5, 2012, federal grand jury indictment lodged against seven defendants. (Doc. 77.) The Indictment charged Petitioner as follows²: Count 1 - conspiracy to distribute 100 grams or more of heroin and an additional quantity of marijuana within 1,000 feet of a school in violation of 21 U.S.C. §§ 846, 841(a)(1), 860, and 841(b) (Doc. 77 at 1-4); Count 2 - unlawful use of a communications facility (i.e., using a cellphone in furtherance of his illegal activity) in violation of 21 U.S.C. § 843(b) (id. at 4-5); Count 4 - unlawful possession of a stolen firearm in violation of 18 U.S.C. §§ 922(j), and 924(a)(2) (id. at 5-6). A federal grand jury returned a superseding indictment on October 16, 2012, which set out the same charges against Petitioner but added an additional defendant. (Doc. 133.)

On June 24, 2014, a one-count Information was filed which charged Petitioner with a violation of 21 U.S.C. § 841(a)(1), Possession with Intent to Distribute a Controlled Substance. (M.D. Pa. Criminal Action No. 3:14-CR-157, Doc. 1.) On the same date, a Plea Agreement was filed. (Cr. A. No. 3:14-CR-157, Doc. 3.) It provided that the total maximum possible sentence for all charges included 20 years in prison and/or fines totaling $1,000,000. (Id. at 2 ¶ 3, 10 ¶ 17.) The Arraignment and Plea hearing was scheduled for July 8, 2014. (Cr. A. No. 3:14-CR-157, Doc. 4.) At the hearing, Petitioner's counsel, Gino . Bartolai, informed the Court that Petitioner would not be entering a plea and the Court set a pretrial conference and trial dates. (Cr. A. No. 3:14-CR-157, Doc. 6.) The scheduling order pertained to the operative indictment in 3:12-CR-145. (See Cr. A. No. 3:12-CR-145, Doc. 383.)

On July 15, 2015, a Second Superseding Indictment was filed in the above-captioned matter charging only Terrell Stevenson with the following seven counts: Count 1 - Conspiracy to distribute 100 grams or more of heroin and an additional quantity of marijuana within 1,000 feet of a school in violation of 21 U.S.C. §§ 846, 841(a)(1), 860, and 841(b); Count 2 - Possession with Intent to Distribute a Controlled Substance in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); Count 3 - Unlawful Use of a Communications Facility (i.e., using a cellphone in furtherance of his illegal activity) in violation of 21 U.S.C. § 843(b); Count 4 - Unlawful Possession of a Stolen Firearm in violation of 18 U.S.C. §§ 922(j), and 924(a)(2); Count 5 - Possession of a Firearm in Furtherance of Drug TraffickingCrime in violation of 18 U.S.C. §§ 924(c) and 924(c)(1)(D)(ii); Count 6 - Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and Count 7 - Possession of a Firearm while a Fugitive from Justice in violation of 18 U.S.C. §§ 922(g)(2) and 924(a)(2) (id. at 7). (Doc. 384 at 1-7.)

On September 9, 2014, the Third Superseding Indictment was filed. (Doc. 415.) As with the Second Superseding Indictment, only Defendant Terrell Stevenson was charged. (Id.) The Third Superseding Indictment charged him with the seven counts contained in the Second Superseding Indictment (Doc. 384) and added an eighth count for Fraud in Relation to Identification Documents in violation of 18 U.S.C. § 1028(a)(7). (Doc. 415 at 1-8.)

Petitioner proceeded to trial on all counts. On October 20, 2014, a jury found him guilty of all but Count 5 where the jury found him not guilty. (Docs. 478, 480.) The Final Presentence Investigation Report ("PSR") was filed on March 10, 2015. (Doc. 547.) Mr. Bartolai filed Objections to the Presentence Report in which he raised thirteen specific objections. (Doc. 548 at 6-13.) At sentencing, the Court noted for the record that all objections to the PSR had been overruled at a hearing held on April 7, 2015. (Doc. 584 at 2.) Mr. Bartolai also filed a "Motion for Downward Departure Career Offender Guideline Over-represents Pursuant to U.S.S.G. §4A1.3(b)" (Doc. 561) which was denied at the April 9, 2015, sentencing (Doc. 584 at 18). Petitioner was sentenced to the following terms of imprisonment: 360 months on each of Counts 1 and 2; ninety-six months on Count 3; 120 months on each of Counts 4, 6, and 7; and 240 months on Count 8. (Doc. 568 at 2.) TheCourt directed that all terms run concurrently with each other to the extent necessary to produce a total imprisonment term of 360 months. (Id.) The Court also imposed a fine of $100 on each count for a total of $700. (Id. at 3.)

Petitioner filed a Notice of Appeal on April 14, 2015. (Doc. 570.) On direct appeal, Petitioner argued errors related to an order entered by the District Court on a speedy trial issue, the failure of the indictment to charge all the elements of the crime of fraud in relation to identification documents, that the District Court improperly denied motions to suppress, and that his 360-month sentence was unreasonable. United States v. Stevenson, 832 F.3d 412, 416 (3d Cir. 2016). The Circuit Court affirmed the judgment of conviction and sentence with its August 9, 2016, Opinion. Id.

III. STANDARD OF REVIEW

In pertinent part, 28 U.S.C. § 2255 provides:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside, or correct the sentence.

28 U.S.C. § 2255. "Section 2255 petitions are not substitutes for direct appeals and serve only to protect a defendant from a violation of the constitution or from a statutory defect so fundamental that a complete miscarriage of justice has occurred." United States v. Cepero, 224 F.3d 256, 267 (3d Cir. 2000) (abrogated on other grounds by Gonzalez v. Thaler, 565 U.S. 134 (2012)) (citing Reed v. Farley, 512 U.S. 339, 348 (1994); Young v. United States,124 F.3d 794, 796 (7^th Cir. 1997)). Relief is available under Section 2255 only under exceptional circumstances, when the claimed errors of law are "a fundamental defect which inherently results in a complete miscarriage of justice," or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428, (1962).

Section 2255 also directs that, in some instances, the court "shall" hold an evidentiary hearing.

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.

28 U.S.C. § 2255(b) (emphasis added). In United States v. Booth, 432 F.3d 542 (3d Cir. 2005), the Court of Appeals for the Third Circuit explained the court's discretion in these matters:

Although a district court has discretion whether to order a hearing when a defendant brings a motion to vacate sentence pursuant to 28 U.S.C. § 2255, our caselaw has imposed limitations on the exercise of that discretion. In considering a motion to vacate a defendant's sentence, "the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record." Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). See also R. Governing § 2255 Cases R. 4(b). The District court is required to hold an evidentiary hearing "unless the motion and files and records of the case show conclusively that the movant is not entitled to relief." Id. We have characterized this standard as creating a "reasonably low threshold for habeas petitioners to meet." McCoy, 410 F.3d at 134 (quoting Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir.2001)). Thus, the district court abuses its discretion if it fails to hold an evidentiary hearing when the files and records of the case are inconclusive as to whether the movant is entitled to relief. Id. at 131, 134 ("If [the] petition allege[s] any facts warrantingrelief under § 2255 that are not clearly resolved by the record, the District Court [is] obligated to follow the statutory mandate to hold an evidentiary hearing.").

432 F.3d at 545-46.

As a general rule, the petitioner has the burden of proof in § 2255 proceedings. See United States v. Hollis, 569 F.2d 199, 205 (3d Cir.1977). However, as will be discussed in greater detail below, in certain cases involving...