United States v. Kuc, CRIMINAL NO. 11–10014–DPW

282 F.Supp.3d 443

UNITED STATES,

v.Matthew J. KUC, Defendant/Movant.

CRIMINAL NO. 11–10014–DPW

CIVIL ACTION NO. 14–14126–DPW

United States District Court, D. Massachusetts.

Signed October 17, 2017

Amy H. Burkart, Sarah E. Walters, Scott Garland, Veronica M. Lei, United States Attorney's Office MA, Boston, MA, for United States.

MEMORANDUM & ORDER

DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE

Pending before me is a collateral attack on the defendant/movant's conviction arising from charges of fraudulently obtaining computer parts and selling them for profit and for aggravated identity theft. The conviction was affirmed on direct appeal, United States v. Kuc , 737 F.3d 129 (1st Cir. 2013), as to which the defendant/movant was represented by counsel different than trial counsel.

This motion for relief under 28 U.S.C. § 2255 is presented by yet another attorney who seems unaware that he is the third counsel who has been engaged by the defendant in these matters. See "[Defendant/Movant's] Traverse" (Dkt. No. 165) at 3 (suggesting that trial counsel "failed to raise the claim based on his own Strickland performance on direct appeal," (emphasis in original)) and id. at 4 (asserting that trial counsel "represented Mr. Kuc in both the District Court and on direct appeal"). This lack of awareness can only be attributed to lack of attention to the record in this case since it is evident from the appellate docket that the direct appeal was briefed and argued by a separate appellate counsel after trial counsel withdrew. The instant collateral attack, evidencing unfamiliarity more broadly with the actual travel of this prosecution and record in the case, is without merit.

I act without setting the matter down for hearing in recognition of the First Circuit's longstanding direction that a " § 2255 motion may be denied without a hearing as to those allegations which, if accepted as true, entitle the movant to no relief, or which need not be accepted as true because they state conclusions instead of facts, contradict the record, or are ‘inherently incredible.’ " Shraiar v. United States , 736 F.2d 817, 818 (1st Cir. 1984) (citations omitted). The allegations advanced to support the claims in the § 2255 motion in this case are of that ilk.

Three basic grounds for relief are raised: first, that trial counsel failed to communicate a plea offer the defendant/movant would have accepted had he been aware of it; second, that trial counsel failed to provide adequate disclosure of the Presentence Report to the defendant/movant before sentencing; and third, that the court relied upon materially inaccurate information and an improper methodology (presumably at least in part as a result of the alleged failure to give adequate disclosure to defendant) and that appellate counsel (whom collateral attack counsel erroneously believes was trial counsel) was ineffective in failing to assert these issues on direct appeal.

The government's principal basis for opposition to this collateral attack is that the grounds are procedurally barred from pursuit on collateral attack, having been unasserted on direct appeal. While acknowledging the force of the government's argument, I will nevertheless address the merits of the claims because they are unsubstantiated in the record of this case.

I.

The first ground seems to be an effort belatedly to shoehorn a plainly insufficient claim into recent developments in Supreme Court treatment of plea bargaining. See generally Missouri v. Frye , 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). But Frye was handed down shortly before defendant/movant's trial, and well before the sentence was imposed and direct appeal was undertaken. In a foreshadowing of the concerns to which the decision in Frye was to be directed, I had a colloquy with defendant/movant's trial counsel nine days before Frye was issued, exploring whether the case would be resolved by trial or plea. Trial counsel reported that the government "had suggested this would be a good time to reach a bargain if we could. [But defendant] insists that he wants a trial." "Pretrial Conference and Motion Hearing–March 12, 2012" Tr. at 5 (Dkt. No. 100). Although it does not appear defendant/movant attended the March 12, 2012 conference, nothing in the development of the case thereafter evidences the existence of an actual plea agreement offer that was tendered, let alone any agreement that could have been reached with a defendant insisting he wanted a trial.

For his part, defendant/movant did not raise the issue until over two and one-half years later when he filed his collateral attack following his unsuccessful direct appeal. To be sure, in an unsigned Declaration filed on November 10, 2014, the defendant/movant asserts that "I have become aware of the fact...