ROBERT B. KUGLER, District Judge.
Petitioner, Mohamad Ibrahim Shnewer, seeks relief under 28 U.S.C. § 2255 from his federal conviction and sentence. Mr. Shnewer filed his § 2255 motion and his reply brief in support pro se. However, Mr. Shnewer now has counsel representing him. Mr. Shnewer was convicted after a jury trial (along with his coconspirators Dritan Duka, Shain Duka, Eljvir Duka (collectively the "Duka brothers") and Serdar Tatar) of conspiracy to murder members of the United States military. Mr. Shnewer raises several claims in his § 2255 motion; specifically: (1) ineffective assistance of counsel by failing to object to the sentencing court's failure to give meaningful consideration to the need to avoid unwarranted sentencing disparities ("Claim I"); (2) ineffective assistance of counsel in failing to raise the sentencing court's impermissible use of religious beliefs to sentence him as well as a direct claim that this Court used his religion to determine his sentence ("Claim II"); (3) ineffective assistance of counsel for failing to communicate a plea offer to him or pursue plea discussions with the government ("Claim III"); and (4) all claims raised by his codefendants in their separate § 2255 motions ("Claim IV"). The respondent opposes the § 2255 motion. Mr. Shnewer then filed a reply brief along with an accompanying memorandum of law. Respondent then was permitted to file a sur-reply brief in response to Mr. Shnewer's reply brief and memorandum of law. For the following reasons, the Court will deny relief on all of the claims Mr. Shnewer raises in his § 2255 motion.
United States v. Duka, 671 F.3d 329, 333-35 (3d Cir. 2011).
Relevant to this Opinion, Mr. Shnewer was charged with one count of conspiracy to murder members of the United States military in violation of 18 U.S.C. § 1117 ("Count 1") and one count of attempt to murder members of the United States military in violation of 18 U.S.C. § 1114 ("Count 2"). Mr. Shnewer was also charged with one count of attempted possession of firearms in furtherance of a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A) & (B)(ii). ("Count 4").
On appeal, the government conceded that it would not defend Mr. Shnewer's conviction on Count 4 because it charged Mr. Shnewer with the non-existent crime of attempted possession of firearms in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). See Duka, 671 F.3d at 353. Thus, the Third Circuit reversed Mr. Shnewer's conviction on Count 4. On remand, Mr. Shnewer was resentenced to life imprisonment on his remaining conviction on Count 1.
A motion to vacate, set aside or correct a sentence of a person in federal custody pursuant to 28 U.S.C. § 2255 entitles a prisoner to relief if "the court finds ... [t]here has been such a denial or infringement of the constitutional rights of the prisoner as to render judgment vulnerable to collateral attack." 28 U.S.C. § 2255(b). "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 based on the existing record.'" United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (quoting Gov't of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)) (also citing R. Governing § 2255 Cases R. 4(b)). A 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. (quoting Forte, 865 F.2d at 62). The Third Circuit has stated that this standard creates a `"reasonably low threshold for habeas petitioners to meet.'" Id. (quoting United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005) (quoting Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001))). Accordingly, this 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. (citing McCoy, 410 F.3d at 134).
Mr. Shnewer's claims involve whether counsel was ineffective at trial/sentencing and/or on appeal. The Sixth Amendment guarantees effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the two-prong test for demonstrating when counsel is deemed ineffective. First, the petitioner must show that considering all of the circumstances, counsel's performance fell below an objective standard of reasonableness. See id. at 688; see also Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (noting that it is necessary to analyze an ineffectiveness claim in light of all of the circumstances) (citation omitted). A petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. See Strickland, 466 U.S. at 690. Under this first prong of the Strickland test, scrutiny of counsel's conduct must be "highly deferential." See id. at 689. Indeed, "[c]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. The reviewing court must make every effort to "eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. If counsel makes "a thorough investigation of law and facts" about his plausible options, the strategic choices he makes accordingly are "virtually unchallengeable." Gov't of Virgin Islands v. Weatherwax, 77 F.3d 1425, 1432 (3d Cir. 2006) (citing Strickland, 466 U.S. at 690-91). If, on the other hand, counsel pursues a certain strategy after a less than complete investigation, his choices are considered reasonable "to the extent that reasonable professional judgments support the limitations on investigation." Rolan v. Vaughn, 445 F.3d 671, 682 (3d Cir. 2006) (citing Strickland, 466 U.S. at 690-91).
The second prong of the Strickland test requires the petitioner to affirmatively prove prejudice. See 466 U.S at 693. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id.; see also McBridge v. Superintendent, SCI Houtzdale, 687 F.3d 92, 102 n.11 (3d Cir. 2012). "This does not require that counsel's actions more likely than not altered the outcome, but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters only in the rarest case. The likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 562 U.S. 86, 111-12 (2011) (internal quotation marks and citations omitted).
"With respect to the sequence of the two prongs, the Strickland Court held that `a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.'" Rainey v. Varner, 603 F.3d 189, 201 (3d Cir. 2010) (quoting Strickland, 466 U.S. at 697). Additionally, "claims of ineffective assistance of appellate counsel are also governed by the Strickland standard." Lusick v. Palakovich, 270 F. App'x 108, 110 (3d Cir. 2008) (citing United States v. Mannino, 212 F.3d 835, 840 (3d Cir. 2000)).
In Claim I, Mr. Shnewer makes two distinct arguments. First, he argues that his trial counsel, Rocco C. Cipparone, Jr., Esq., was ineffective because he failed to object when this Court purportedly did not give proper consideration at sentencing to the need to avoid unwarranted sentencing disparities when it sentenced him to life imprisonment. Second, Mr. Shnewer asserts that Mr. Cipparone was ineffective because he failed to advance a colorable argument at sentencing that a life sentence constituted an unwarranted disparate sentence. Thus, in the first argument, Mr. Shnewer is arguing that Mr. Cipparone should have objected to this Court's discussion of the 18 U.S.C. § 3553(a) factors based on the arguments presented. In the second argument, Mr. Shnewer asserts that Mr. Cipparone should have presented better arguments on the § 3553(a) factors (specifically § 3553(a)(6)). Each of these arguments is considered in turn.
Mr. Shnewer's first argument is that Mr. Cipparone failed to object when this Court purportedly did not consider the need to avoid unwarranted sentence disparities among defendants with similar records. At sentencing:
United States v. Levinson, 543 F.3d 190, 194-95 (3d Cir. 2008) (citations omitted). It is this third-step of this process that Mr. Shnewer argues that Mr. Cipparone's counsel amounted to ineffective assistance.
Section 3553(a) of Title 18 of the United States Code states as follows:
18 U.S.C. § 3553(a).
United States v. Friedman, 658 F.3d 342, 362 (3d Cir. 2011). This Court discussed the § 3553(a) factors as follows at Mr. Shnewer's sentencing hearing:
(Shnewer Sentencing Tr. at p. 48-51 (emphasis added)) Mr. Shnewer takes exception with the emphasized portion of the sentencing transcript and argues as follows:
(Dkt. No. 13 at p. 4)
Mr. Shnewer is not entitled to relief based on this argument. This Court made clear at Mr. Shnewer's sentencing hearing that it took the § 3553(a) factors into account at sentencing. See Friedman, 658 F.3d at 362 (stating district court need not discuss and make findings as to each of the § 3553(a) factors as long as record makes clear factors were taken into account at sentencing). Furthermore, this was not a case where Mr. Cipparone made a colorable argument about § 3553(a)(6) that would have triggered this Court to specifically address it at sentencing. See Friedman, 658 F.3d at 362 (noting that court should respond to party's argument on one of the § 3553(a) factors when party makes a colorable argument). Indeed, Mr. Cipparone's argument in his presentence brief with respect to § 3553(a)(6) stated in conclusory fashion that a downward variance from the advisory guidelines range would not create an unwarranted sentencing disparity. However, at no time did Mr. Cipparone make a colorable argument with respect to the need to prevent unwarranted sentencing disparities that required this Court's specific express attention.
Additionally, it is worth noting that Mr. Shnewer received a life sentence, which was within the advisory Sentencing Guidelines exclusive range. "[W]ithin-guidelines sentences . . . generally do not lead to disparities requiring that a defendant be granted relief because `avoidance of unwarranted disparities was clearly considered by the Sentencing Commission when setting the Guidelines ranges.'" United States v. Kluger, 722 F.3d 549, 568-69 (3d Cir. 2013) (quoting Gall v. United States, 552 U.S. 38, 54 (2007)).
Mr. Shnewer's conviction on Count 1 was for any term of years with a maximum of life imprisonment. See 18 U.S.C. § 1117. Furthermore, Mr. Shnewer had a total offense level of 51 and a criminal history category of VI. This placed Mr. Shnewer at an "off-of-the-chart" advisory guidelines range of exclusively life imprisonment (the sentencing table only goes up to offense level 43). Thus, Mr. Shnewer's life sentence was within the applicable advisory guidelines range. As noted above, this within guidelines sentence does not generally lead to sentencing disparities. See Kluger, 722 F.3d at 568-69.
Mr. Cipparone did not make a colorable argument with respect to section § 3553(a)(6) at sentencing, such that the duty of this Court to respond to that argument as set forth in Friedman was never triggered. See 658 F.3d at 362. Mr. Cipparone was not ineffective for failing to object to this Court's discussion of the § 3553(a)(6) factor in determining his sentence. This Court adequately addressed and considered the § 3553(a) factors such that Mr. Shnewer is not entitled to relief on this issue that Mr. Cipparone failed to object to this Court's analysis. See Real v. Shannon, 600 F.3d 302, 310 (3d Cir. 2010) (counsel not ineffective for failing to raise a meritless claim). This Court gave meaningful consideration to the § 3553(a) factors and § 3553(a)(6) was not particularly relevant because no colorable argument was ever brought to the attention of this Court on that factor and Mr. Shnewer was sentenced to the within advisory guidelines range of life.
Mr. Shnewer also argues that Mr. Cipparone should have made a better attempt to argue that a life sentence amounted to an unwarranted disparate sentence. Mr. Shnewer claims that Mr. Cipparone was ineffective because he should have specifically cited several cases that illustrate that his life sentence constituted an unwarranted disparate sentence. A brief recitation of each case that Mr. Shnewer relies on and their relevant facts will be instructive in determining whether Mr. Shnewer has adequately stated an ineffective assistance of counsel claim on this issue.
In Polk v. United States, 118 F.3d 286, 289 (5th Cir. 1997), the petitioner was convicted of attempting to use a weapon of mass destruction, solicitation to commit a crime of violence under 18 U.S.C. § 844(f), solicitation to commit a crime of violence under 18 U.S.C. § 1114; possession (carrying) of a firearm during a crime of violence, unlawful possession of a machine gun and aiding and abetting the making of a false statement to a federally licensed firearms dealer. While the Fifth Circuit's opinion did not detail the sentencing guidelines range for Polk, appellant's brief did. See Brief for Appellant, Polk, 1997 WL 33562544 at *7 (No. 96-40836). The guideline range of the attempt to use a weapon of mass destruction was 168 to 210 months. The possession of a firearm conviction carried a mandatory 60-month consecutive term of imprisonment and the remaining counts had a statutory maximum of 120 months. See id. Polk was initially convicted to a sentence of 249 months. See Polk, 118 F.3d at 291. The Fifth Circuit though held that the evidence was insufficient to sustain the possession (carrying ) of a firearm during a crime of violence conviction as well as the abetting the making of a false statement to a federally licensed firearms dealer and the matter was remanded for resentencing. See id. at 298. On remand, Polk was resentenced to 189 months. See Polk v. Kastner, 07-0014, 2008 WL 177844, at *1 (E.D. Tex. Jan. 18, 2008).
Mr. Shnewer also cites to United States v. Kikumura, 706 F.Supp. 331 (D.N.J. 1989). Kikumura was convicted of numerous weapons offenses as well as transportation and receipt of explosive materials in interstate commerce without having obtained a proper license. See id. at 334. His Sentencing Guidelines range was calculated at twenty-seven to thirty-three months for his conviction on twelve counts. See id. The District Court applied a number of upward departures to eventually impose a sentence of 360 months. See id. at 346. On appeal, the Third Circuit vacated the judgment of sentence and remanded with instructions to resentence Kikimura. See United States v. Kikumura, 918 F.3d 1084 (3d Cir. 1990). On remand, the District Court then imposed a sentence of 262 months. See United States v. Kikumura, 947 F.2d 72, 75 (3d Cir. 1991).
In United States v. Graham, 275 F.3d 490 (6th Cir. 2001), the defendant was convicted of conspiracy to commit offenses against the United States as well as weapons and drug offenses. His criminal history category was VI and his total offense level was calculated to be 41 such that the Sentencing Guidelines range for Graham was 360 months to life imprisonment. Graham was sentenced to 660 months imprisonment. See id. at 500. Ultimately, the Sixth Circuit remanded Graham's case for resentencing in light of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). See Graham, 275 F.3d at 524. Subsequently, Graham was resentenced to fifty years imprisonment which the Sixth Circuit affirmed. See United States v. Graham, 327 F.3d 460, 466 (6th Cir. 2003).
Relying on Polk, Kikumura and Graham, Mr. Shnewer argues as follows:
(Dkt. No. 13 at p. 17)
"A defendant challenging his sentence based on § 3553(a)(6) must show that his `circumstances exactly paralleled' those of the defendants who received lower sentences." United States v. Bannout, 509 F. App'x 169, 173 (3d Cir. 2013) (quoting United States v. Iglesias, 535 F.3d 150, 161 n.7 (3d Cir. 2008)); see also United States v. Bard, 625 F. App'x 57, 60 (3d Cir. 2015) (stating that § 3553(a)(6) "only requires the court to consider `sentence disparities' among defendants who are similarly situated in all relevant respects") (citing United States v. Vargas, 477 F.3d 94, 100 (3d Cir. 2007)). Furthermore, the Third Circuit has explained as follows:
United States v. Jimenez, 513 F.3d 62, 91 (3d Cir. 2008).
In this case, the cases that Mr. Shnewer argues that Mr. Cipparone should have brought to this Court's attention under § 3553(a)(6) did not involve circumstances that exactly paralleled his own. Indeed, Mr. Shnewer has not shown that any of the defendants in Polk, Kikumura and Graham, had a criminal history category of VI and an offense level of 51 such that life imprisonment was their exclusive advisory guidelines range. Furthermore, none of those defendants were convicted of the same crime as Mr. Shnewer, namely violating 18 U.S.C. § 1117. Thus, Mr. Cipparone was not ineffective by failing to argue these cases as Mr. Shnewer has not shown that they exactly paralleled Mr. Shnewer's case with respect to sentencing disparities since the defendants in those cases were not similarly situated to Mr. Shnewer. See United States v. Vaughn, 722 F.3d 918, 937 (7th Cir. 2013) (sentencing disparity warranted in light of different guidelines range); United States v. Jones, 208 F. App'x 507, 509 (8th Cir. 2006) (sentencing disparity not unwarranted where defendant convicted of additional crime and had higher offense level and Guidelines range).
For the reasons stated above, Mr. Shnewer is not entitled to relief on any of his arguments in Claim I.
In Claim II, Mr. Shnewer argues that Mr. Cipparone was ineffective by failing to object when this Court purportedly based Mr. Shnewer's sentence on his religion and was ineffective in failing to raise this issue on appeal. Additionally, Mr. Shnewer also makes a direct claim aside from ineffective assistance that this Court improperly used religion in sentencing him.
Mr. Shnewer bases Claim II on this Court's discussion at one of Mr. Shnewer's codefendant's sentencing hearing, Serdar Tatar. More specifically, Mr. Shnewer relies on the emphasized statements noted below that this Court made at Mr. Tatar's sentencing hearing:
(Tatar Sentencing Tr. at p. 66-68 (emphasis added)) Relying on the emphasized portion of Mr. Tatar's sentencing transcript, Mr. Shnewer argues that "when the sentencing court relied upon the number of times Tatar `invoke[d] the name of Lord" versus the number of times Petitioner did so, he violated Petitioner's First Amendment and due process rights[.]" (Dkt. No. 13 at p. 23) More specifically, Mr. Shnewer asserts that this Court punished him for his mainstream religious expression of being a Muslim and that such punishment based on his religion is unconstitutional.
It is constitutionally impermissible to increase a defendant's sentence based on things such as the defendant's race, religion or political affiliation. See Zant v. Stephens, 462 U.S. 862, 885 (1983); see also United States v. Fisher, 502 F.3d 293, 299 (3d Cir. 2007) ("[A] sentence is acceptable as long as it was untainted by considerations of race, gender or similar forbidden grounds) (citing Jones v. Superintendent of Rahway State Prison, 725 F.2d 40, 43 (3d Cir. 1984)). Nevertheless, `"the sentencing authority has always been free to consider a wide range of relevant material.'" Dawson v. Delaware, 503 U.S. 159, 164 (1992) (quoting Payne v. Tennessee, 501 U.S. 808, 820-21 (1991)) (other citations omitted). Indeed, "the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment." Id. at 165.
At the outset, this Court expressly states that the fact that Mr. Shnewer is a practicing devout Muslim had nothing to do with this Court's decision to sentence him to the within advisory Guideline range of life imprisonment. Instead, this Court made clear during Mr. Shnewer's sentencing hearing (and reiterated during Mr. Tatar's sentencing hearing) that it was Mr. Shnewer beliefs in violent radical Islamic ideology that led the Court to determine that Mr. Shnewer would be sentenced to the within advisory Guidelines range of life imprisonment. It was Mr. Shnewer's belief in violent radical Islamic ideology that led this Court to conclude that he could not be rehabilitated and that the public needed to be protected from him. Indeed, to reiterate, at Mr. Shnewer's sentencing, this Court stated as follows:
(Shnewer Sentencing Tr. at p. 51) Indeed, by way of example only, at one point, Mr. Shnewer told one of the informants that he "love[s] to kill Jews," and that it was a dream of his to kill Jews. (See Dkt. No. 25-1 at p. 46) The § 3553(a) factors plainly permit this Court to consider the need to afford adequate deterrence to criminal conduct and to protect the public from further crimes by Mr. Shnewer. See 18 U.S.C. § 3553(a)(2)(B) & (C). This Court expressly made this relevant distinction at Mr. Tatar's sentencing hearing when it noted that Mr. Tatar's codefendants (the Duka brothers and Mr. Shnewer) were "so consumed with hatred and their ideology of theirs that they're never going to change." (Tatar Sentencing Tr. at p. 68) This Court did not use Mr. Shnewer's devout Muslim faith to help this Court reach the conclusion that it would sentence him to the within advisory Guidelines range of life imprisonment, but rather, as clearly stated in the sentencing transcript and reiterated in this Opinion, this Court believed that Mr. Shnewer could not be rehabilitated and therefore posed a threat if released based upon his violent radical Islamic beliefs. This did not run afoul of the Constitution and did not amount to this Court using Mr. Shnewer's devout Muslim faith to determine his sentence. Accord United States v. Abu Ali, 410 F. App'x 673, 682 (4th Cir. 2011) ("The Court properly considered the tenacity of Abu Ali's violent beliefs and the likelihood that time in prison would entrench those beliefs in analyzing the probability that Abu Ali would again act on those beliefs if released. In light of Congress's instruction for courts to consider the need to `protect the public from further crimes of the defendant' in imposing a sentence, it is hard to see how the district court's actions were erroneous.") (citing 18 U.S.C. § 3553(a)(2)(C)); United States v. Yaghi, Crim. No. 09-0216, 2012 WL 147955, at *4 (E.D.N.C. Jan. 18, 2012) (noting defendant's association with individuals intent on advancing a destructive ideology, "cloaked in adherence to an extremist view of Islam, which propagated violence against anyone perceived as being in Muslim lands unjustly, coupled with his demonstrated disregard for the law, underscore this defendant's dangerousness" warrant a substantial sentence in deference "to the need to promote respect for the law, deter this type of conduct, and protect the public"), aff'd, United States v. Hassan, 742 F.3d 104 (4th Cir. 2014). Comparatively, this Court sentenced Mr. Tatar to 396 months because it concluded in part that Mr. Tatar did not possess the same violent radical beliefs that Mr. Shnewer held. Thus, unlike Mr. Shnewer, Mr. Tatar had a chance to be rehabilitated.
Mr. Shnewer cites to United States v. Bakker, 925 F.2d 728 (4th Cir. 1991) in support of Claim II. However, Bakker is easily distinguishable from Mr. Shnewer's case. In Bakker, the Fourth Circuit analyzed the sentence of the well-known televangelist James O. Bakker on his convictions of fraud and conspiracy. During Bakker's sentencing, the judge stated as follows: "He had no thought whatever about his victims and those of us who do have a religion are ridiculed as being saps from money-grubbing preachers or priests." Id. at 740 (emphasis in original). The Fourth Circuit noted that a judge acts impermissibly when he takes his own religious characteristics into account at sentencing. See id. The Fourth Circuit held as follows:
Id. at 740-41.
Unlike Bakker, this Court never discussed its own religious characteristics at arriving at a sentence for Mr. Shnewer (as well as arriving at Mr. Tatar's sentence). Instead, as stated above, this Court's discussion at Mr. Shnewer and Mr. Tatar's sentencing of their violent beliefs related to the relevant considerations of whether this Court believed the public needed to be protected from them and whether either could be rehabilitated. Ultimately, this Court determined that Mr. Tatar had the chance to be rehabilitated and Mr. Shnewer did not. This Court determined that Mr. Shnewer was so consumed with hatred that he was never going to change whereas Mr. Tatar was not so consumed. Bakker is not applicable to this case.
To sum up Claim II, this Court did not sentence Mr. Shnewer to a life sentence based on his devout Muslim faith. Instead, this Court properly applied the three-step sentencing process outlined in Levinson. Ultimately, in analyzing the § 3553(a) factors, this Court determined that Mr. Shnewer's violent radical beliefs could not be changed, something that was plainly proper for this Court to consider. It thus follows that Mr. Cipparone was not ineffective for failing to raise this claim that lacks merit during Mr. Shnewer's sentencing proceedings or on appeal. See Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000) ("[C]ounsel cannot be deemed ineffective for failing to raise a meritless claim.") (citation omitted); United States v. Jackson, No. 09-5255, 2010 WL 1688543, at *8 (E.D. Pa. Apr. 27, 2010) ("Under Strickland, Jackson's appellate counsel cannot be ineffective for failing to raise a meritless issue on appeal.") (citing United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999)). Therefore, for the reasons stated above, Mr. Shnewer is not entitled to relief on Claim II.
In Claim III, Mr. Shnewer argues that Mr. Cipparone was ineffective when he failed to communicate a plea offer to him. Additionally, Mr. Shnewer argues that Mr. Cipparone was ineffective for failing to pursue plea discussions with the respondent. Each of these issues is considered in turn.
Mr. Shnewer first argues that Mr. Cipparone was ineffective when he failed to communicate a plea offer to him. In support of this argument, Mr. Shnewer states as follows in his declaration:
(Dkt. No. 13 at p. 52)
In Missouri v. Frye, 132 S.Ct. 1399, 1408 (2012), the Supreme Court affirmatively held that, "defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." It further stated that "the fact of a formal offer means that its terms and its processing can be documented so that what took place in the negotiation process becomes more clear if some later inquiry turns on the conduct of earlier pretrial negotiations." Id. at 1409. Thus, when defense counsel fails to communicate formal plea offers to the defendant, it constitutes deficient performance under Strickland. See id. Once the first prong of Strickland is met, then the petitioner has to show prejudice. In this context, the Supreme Court in Frye also explained what is needed for a petitioner to show prejudice:
Frye, 132 S. Ct. at 1409 (citing Glover v. United States, 531 U.S. 198, 203 (2001)). As one court has noted therefore:
Compean v. United States, No. 12-0730, 2013 WL 6196517, at *7 (W.D. Ky. Oct. 18, 2013) (citing Lint v. Prelesnik, No. 09-10044, 2011 WL 3241840, at *11 (E.D. Mich. July 29, 2011); Robinson v. United States, 744 F.Supp.2d 684, 696 (E.D. Mich. 2010); report and recommendation adopted by, 2013 WL 6196533 (W.D. Ky. Nov. 26, 2013).
Mr. Shnewer claims that the government has conceded the first prong of Strickland in that Mr. Cipparone failed to inform him about a plea offer. (See Dkt. No. 12 at p. 13) However, the respondent has not conceded anything with respect to the first prong of the Strickland analysis. Instead, it asserts that there was never a plea offer for Mr. Cipparone to communicate to Mr. Shnewer such that Mr. Cipparone was not ineffective because a plea offer never existed.
Whether Mr. Shnewer was ever offered a formal plea offer is obviously a vital factor in determining whether Mr. Cipparone's counsel was ineffective with respect to this claim as mere informal plea discussions are not enough to trigger Mr. Cipparone's duty to inform Mr. Shnewer. See Hull v. United States, No. 15-0123, 2015 WL 5009998, at *2 (W.D. Wis. Aug. 15, 2015) ("The Court made clear in Frye, that duty applies only when the plea offer is a `formal one.' The Court has never held that defense counsel can be found constitutionally ineffective for failing to tell their clients about informal discussions they have with the government about possible plea offers."); Mavashev v. United States, No. 11-3724, 2015 WL 1508313, at *9 (E.D.N.Y. Mar. 31, 2015) (noting that there is a significant distinction between formal plea offers and informal plea offers); United States v. McCall, No. 00-0505, 2014 WL 2581353, at *3 (N.D. Cal. June 9, 2014) ("In reality, there is either a formal plea offer, or in its absence, mere discussions between counsel. Mere conversations are rarely recorded and always subject to interpretation and misremembering. It would be a near-impossible burden to require defense counsel to update defendant on each twist and turn in informal conversations. And it would be impossible for the government to reconstruct and prove each such twist and turn in the communication, much less prove that defense counsel passed on the twists and turns to their client. . . . Therefore, to transmogrify mere conversation into an "informal plea offer" and then to further say it must be communicated to an accused on pain of Section 2255 relief would be a nifty sleight of hand.") (citations omitted); United States v. Merlino, Crim. No. 99-10098, 2014 WL 793987, at *4 (D. Mass. Feb. 28, 2014) ("A majority of courts . . . have held that a formal plea offer must consist of something more than preliminary oral communications.") (citations omitted); Montgomery v. United States, No. Crim. 07-00036, 2013 WL 6196554, at *4 (W.D. Ky. Nov. 26, 2013) ("Although there has been little exposition regarding the precise definition of the term "formal offer," the Court clearly intended to distinguish "offers" made during the course of preliminary negotiations from those made once negotiations have concluded. In other words, while there is no touchstone for assessing the formality of an offer, there must at the very least be some basis for concluding that the alleged offer could have been accepted or rejected without further discussion or negotiation."); Compean, 2013 WL 6196517, at *7 ("The threshold issue for the Court therefor is whether the Government ever extended a formal plea offer to the Defendant in the first instance.") (citing Guerrero v. United States, 383 F.3d 409, 417 (6th Cir. 2004); Strollo v. United States, No. 05-0113, 2007 WL 2071940, at *3 (N.D. Ohio July 16, 2007)).
Neither party has provided this Court with definitive case law from either the United States Supreme Court or the United States Court of Appeals for the Third Circuit on what constitutes a "formal plea offer." See, e.g., United States v. Waters, No. 13-0115, 2013 WL 3949092, at *8 (E. D. Pa. July 31, 2014) ("[W]e have been unable to find any authority defining the requisite elements of a formal plea offer..."). Indeed, "District Court decisions construing the term [formal plea offer] appear to largely rest on the unique facts of the case under consideration." Merlino, 2014 WL 793987, at *4. Nevertheless, courts look to several factors in considering whether the prosecutor extended a formal plea offer. One court has noted that plea agreements "are essentially contracts" and that "for a contractual offer to exist, it must contain `sufficiently definite terms to enable [a] fact finder to interpret and apply them." United States v. Petters, 986 F.Supp.2d 1077, 1082 (D. Minn. 2013) (quoting Neb. Beef, Ltd. v. Wells Fargo Bus. Credit, Inc., 470 F.3d 1249, 1251 (8th Cir. 2006)). Thus, in Petters, the District of Minnesota determined that a formal plea offer had not been extended because there was "an absence of any discussion of the charges to which Petters would acknowledge guilt, the factual basis for a plea, or restitution or forfeiture issues." Id. A court in this Circuit has similarly stated that, "it is clear that an oral discussion of the sentencing range for a possible plea agreement that does not include an agreement on the charges to which the defendant will plead guilty and the facts that he will admit, does not constitute a formal plea offer." Waters, 2013 WL 3949092, at *8 (citing Enright v. United States, 347 F.Supp.2d 159, 165 (D.N.J. 2004)).
Mr. Shnewer has not attached copies of Mr. Stigall's letters that he relies upon to establish that there was a formal plea offer because he states that institution staff will not let him print them out. The respondent has also not provided this Court with copies of the Stigall letters that Mr. Shnewer references. However, their omission does not prevent this Court from determining whether they constituted a "formal plea offer." Assuming for purposes of argument that the letters say what Mr. Shnewer states they say, they did not constitute a formal plea offer. Indeed, Mr. Shnewer merely states that Stigall referenced a possible additional one-point reduction under U.S.S.G. § 3E1.1(b). However, Mr. Shnewer does not state that Stigall's letters discussed the charges to which he would have to plead guilty to nor does it discuss the factual basis for the plea. Accordingly, even if Mr. Shnewer's representations of the Stigall letters are accurate, they do not constitute a formal plea offer. Therefore, they did not trigger a duty on Mr. Cipparone to inform Mr. Shnewer about them.
The fact that the Stigall letters did not constitute a formal plea offer does not end this Court's analysis on this issue. Indeed, the government submitted declarations from Mr. William E. Fitzpatrick, the lead prosecutor in this case, and Mr. Cipparone, which indicate that there certainly were some preliminary discussions regarding a potential plea. The question then becomes, like the Stigall letters, whether these discussions constituted a "formal plea offer" to trigger a duty on Mr. Cipparone to inform.
Mr. Fitzpatrick states as follows in his declaration:
(Dkt. No. 29 at p. 1-3) Mr. Cipparone also states in his declaration that Mr. Fitzpatrick's declaration is consistent with his own recollection of discussions about a possible non-trial disposition of the charges against Mr. Shnewer. (See Dkt. No. 25-1 at p. 4)
In determining whether a formal plea offer has been extended, a court in this Circuit emphasized that a prosecutor's lack of authority to bind the government means that the plea offers lack the requisite formality to constitute a formal plea offer. See Waters, 2013 WL 3949092, at *10 n.3 ("[T]here is no evidence of record that Holtz, the only Assistant District Attorney with the authority to make a formal plea offer to a defendant in a major case in April, 2010, made a formal plea offer to Waters.") (emphasis added); see also Merlino, 2014 WL at 793987, at *4 ("In finding plea offers to lack the requisite formality, some courts have emphasized the prosecutor's lack of authority to bind the government.") (citations omitted). In this case, Mr. Fitzpatrick's declaration makes clear that only Mr. Christie had the authority to bind the respondent to a particular agreement. However, neither Mr. Shnewer nor the respondent state that Mr. Christie ever gave his authority to permit Mr. Fitzpatrick to enter into a plea agreement with Mr. Shnewer. Furthermore, the plea discussions between Mr. Fitzpatrick and Mr. Cipparone never reached the level of a formal plea offer as neither indicates the facts that Mr. Shnewer would have had to admit to if he was to plead guilty. See Petters, 986 F. Supp. 2d at 1082 (noting factual basis for the plea is important in determining whether a "formal plea offer" has been extended); Waters, 2013 WL 3949092, at *8 (oral discussion of sentencing range for possible plea agreement that does not include facts that he will admit does not constitute a formal plea offer).
Therefore, neither Mr. Stigall's letters (as represented by Mr. Shnewer), nor the communications between Mr. Fitzpatrick and Mr. Cipparone reached the level of the government extending a formal plea offer. Accordingly, Mr. Cipparone was not ineffective by failing to communicate a formal plea offer to Mr. Shnewer because no formal plea offer ever existed in this case.
In his § 2255 motion, Mr. Shnewer also alludes to a separate and distinct issue in Claim III besides the one discussed supra Part V.C.i. Indeed, Mr. Shnewer asserts that Mr. Cipparone was ineffective when he failed to pursue plea discussions with the prosecution when he learned prosecutors were amenable to such discussions. (See Dkt. No. 1 at p. 5) Mr. Shnewer and Mr. Cipparone differ with respect to what Mr. Shnewer told Mr. Cipparone regarding seeking a plea offer from the respondent. Mr. Shnewer states as follows in his declaration:
(Dkt. No. 13 at p. 50-51) Mr. Cipparone has quite a different take on his discussions with Mr. Shnewer as it related to his plea discussions with the government. Indeed, Mr. Cipparone states as follows in his declaration:
(Dkt. No. 25-1 at p. 3-6) It appears based on the above as if Mr. Shnewer and Mr. Cipparone are at odds as to level of communication that they had with each other with respect to any plea discussions and negotiations.
"[T]here is no constitutional right to a plea bargain; the prosecutor need not do so if he prefers to go to trial." Weatherford v. Bursey, 429 U.ZS. 545, 561 (1977). "The decision whether to enter into a plea agreement or to pursue a trial is strictly within the discretion of the prosecutor." Bresko v. John, 87 F. App'x 800, 802-03 (3d Cir. 2004) (citing Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); Santobello v. New York, 404 U.S. 257 (1971); Brooks v. George County, Miss., 84 F.3d 157, 168 (5th Cir. 1996)); see also Morgano v. Ricci, No. 08-1524, 2010 WL 606503, at *5 (D.N.J. Feb. 18, 2010).
In this case, as outlined above, no formal plea offer was ever extended to Mr. Cipparone for Mr. Shnewer. Since Frye, courts have examined whether counsel can be ineffective when there has not been a formal plea offer to differing results. For example, in United States v. Cook, No. 10-20716, 2014 WL 4704843, at *4 (E.D. Mich. Sept. 21, 2014), the court stated as follows:
Cook, 2014 WL 4704843, at *4. District Judge Wolfson of this Court similarly stated in McClain v. United States, 12-2205, 2013 WL 1163562, at *4 (D.N.J. Mar. 19, 2013) as follows:
McClain, 2013 WL 1163562, at *4 (footnote omitted). However, this Court has also discovered cases post-Frye where courts have noted that a petitioner can show that counsel's performance has the potential rise to the level of ineffectiveness in the absence of a formal plea offer. For example, one court has stated as follows:
United States v. Polatis, Crim. No. 10-0364, 2013 WL 1149842, at *10 n.16 (D. Utah Mar. 19, 2013). Indeed, more recently, a court in the District of Kansas cited to Polatis approvingly and stated as follows:
United States v. Brooks, No. 10-20078, 2015 WL 5837636, at *6 (D. Kan. Oct. 6, 2015).
This Court is hesitant to analyze this issue under the first prong of Strickland without at least conducting an evidentiary hearing where the relevant witnesses' credibility could be analyzed in light of the different versions of events as stated in Mr. Shnewer and Mr. Cipparone's declarations. (Compare Dkt. No. 13 at p. 51 ("Mr. Cipparone never told me about any plea offers or discussions that he had with the prosecution, at any time before, during, or after trial."), with Dkt. No. 25-1 at p. 3, 5 ("Mr. Shnewer did not direct me to engage the Government in plea discussions. . . . I kept Mr. Shnewer abreast of my conversations with Mr. Fitzpatrick, limited as they were, about a possible non-trial disposition of charges.")) This is particularly so given the differing opinions from various courts regarding whether a petitioner can state an ineffectiveness claim absent a formal plea offer as outlined above. However, despite this Court's hesitancy to engage in a Strickland prong one analysis at this time, this does not necessarily mean that this claim cannot be decided at this time absent an evidentiary hearing. Indeed, this Court may decide this issue on prejudice grounds if it is possible to do so. See Rainey, 603 F.3d at 201.
Mr. Shnewer admits in his memorandum or law (see Dkt. No. 13 at p. 27-28), that he needs to show three things to a reasonable probability to establish prejudice: (1) he would have accepted the plea; (2) the plea would have been entered; and (3) the end result of the criminal process would have been more favorable by reason of pleading to a lesser charge or a shorter prison sentence. See Frye, 132 S. Ct. at 1409 (citing Glover, 531 U.S. at 203). For the following reasons, Mr. Shnewer fails to show that he was prejudiced had Mr. Cipparone pursued plea negotiations further.
First, even assuming for purposes of argument only that Mr. Cipparone should have pursued plea negotiations further, Mr. Shnewer would presumably have to show that the government would have in fact made him a particular plea offer. See Brooks, 2015 WL 5837636, at *6. That showing simply has not been made in this case. Indeed, to reiterate, Mr. Fitzpatrick's declaration states that the final decision regarding any plea agreement was up to Mr. Christie and that he had no authority to bind the government. (See Dkt. No. 29 at p. 2) This case never reached that stage. Nevertheless, Mr. Cipparone does state in his declaration that Mr. Fitzpatrick informed him that he would consider recommending to Mr. Christie that the government offer a plea agreement where Mr. Shnewer would plead guilty to Count 1 in exchange for dropping Count 4. (See Dkt. No. 25-1 at p. 4) However, importantly, at no time does any party state that Mr. Christie, the person with the authority to bind the government in this case, would have in fact agreed to extend a formal plea offer to Mr. Shnewer. Thus, Mr. Shnewer fails to show that he was prejudiced by Mr. Cipparone's purported failure to engage in further plea discussions because he has not shown that any formal plea offer would have ever been extended by Mr. Christie in his case.
The precise contours of what a potential plea offer would have looked like amounts to mere speculation in this case. However, both Mr. Fitzpatrick and Mr. Cipparone's declarations indicate that there was at least some discussion about a potential plea whereby Mr. Shnewer would plead guilty to Count 1 — conspiracy to murder members of the United States military in exchange for dropping Count 4 — attempted possession of a firearm in furtherance of a crime of violence. Ultimately, after Mr. Shnewer's conviction on Count 4 was reversed on direct appeal, the judgment of conviction was entered against Mr. Shnewer only on Count 1. Thus, the potential plea that was discussed by the government and Mr. Cipparone would not have amounted to Mr. Shnewer pleading to a lesser charge than the one he was ultimately convicted of. However, this does not necessarily end the prejudice analysis. Mr. Shnewer could potentially show prejudice if he could show to a reasonable probability that he would have received a lesser sentence in light of a hypothetical plea offer.
Mr. Shnewer's conviction on Count 1 called for a base level offense of 33. See U.S.S.G. § 2A1.5(a); see also Presentence Investigation Report at p. 63. Additionally, Mr. Shnewer's conviction included a six-point adjustment for official victims and a twelve point terrorism adjustment. Accordingly, his total offense level was 51.
Mr. Shnewer's memorandum of law in support of his § 2255 motion sets forth five reasons why he would have received a lesser sentence of life imprisonment if he had pled guilty pursuant to a hypothetical plea offer. Mr. Shnewer first argues that his sentence would have been more lenient if he had pled guilty because of "the consideration he would have received for helping to conserve judicial and government resources." However, as respondent notes, this would have given Mr. Shnewer a three-point reduction under U.S.S.G. § 3E1.1(b). Thus, his new offense level would have been 48, which would still have placed Mr. Shnewer "off-of-the-chart" at an advisory sentencing range of exclusively life. As courts have noted with respect to showing prejudice, "[w]hen a defendant would have been subject to the same guideline range notwithstanding counsel's alleged error, the defendant must demonstrate a reasonable probability that, in the absence of the error, the specific sentence would have been lower." Zelaya v. United States, No. 10-2509, 2013 WL 4495788, at *4 (D. Md. Aug. 20, 2013) (citing Shaheed v. United States, Civ. No. 07-1167, 2010 WL 3809854, at *6 (W.D. Pa. Sept. 22, 2010) (citing United States v. Ivory, No. 09-2376, 2010 WL 1816236, at *3 (D. Kan. Feb. 26, 2010); Pena-Carrizoza v. United States, No. 04-475, 2006 WL 2992556, at *4 (D. Utah Oct. 17, 2006))). Here, by agreeing to this purported hypothetical plea offer, Mr. Shnewer would have remained at the same advisory guideline range as he had if he went to trial as both were "off-of-the-chart."
Mr. Shnewer also argues that his sentence would have been lower than his life sentence if he pled because he would have expressed remorse as part of his acceptance of responsibility. However, as indicated above, Mr. Shnewer's acceptance of responsibility would have only reduced his guideline range by three points, which would have still placed him at the same advisory guideline range of life imprisonment. Furthermore, Mr. Shnewer's arguments that there was a reasonable probability he would have received less than a life sentence as expressed in this Claim does not particularly address this Court's analysis of the § 3553(a) factors. For example, among the factors that this Court discussed at Mr. Shnewer's sentencing, and which still would have been applicable had he pled, was this Court's statement that Mr. Shnewer was deeply committed to his violent radical beliefs and his desire to kill that could not be rehabilitated which warranted a within advisory guideline sentence of life imprisonment.
Mr. Shnewer next argues that he would have received a lesser sentence if he pled because this Court would not have been exposed to the "considerable amount of derogatory information" that was presented against him at trial. However, contrary to Mr. Shnewer's contentions, this Court certainly would have been presented with his offense conduct prior to this Court sentencing Mr. Shnewer if he pled in the Presentence Investigation Report. Furthermore, as noted by respondent and confirmed by Mr. Fitzpatrick in his declaration, the government had a firm stance in this case that it viewed life imprisonment as the only reasonable sentence against Mr. Shnewer and that it would advocate at sentencing for a custodial term of life. (See Dkt. No. 29 at p. 2-3) It thus follows that the government would then have provided the Court with all of the incriminating evidence against Mr. Shnewer in advocating for its recommended life sentence.
Mr. Shnewer also contends that his sentence would have been lower if he pled because "effective counsel would have adduced at the sentencing hearing examples of defendants who pleaded guilty to similar conduct and received sentences of less than life in prison." (Dkt. No. 13 at p. 35-36) Mr. Shnewer relies on the cases discussed in Claim I in asserting that Mr. Cipparone should have brought them to this Court's attention. However, as this Court noted supra Part V.A, Mr. Cipparone was not ineffective for failing to bring these cases to the Court's attention because they were not applicable to show that a life sentence for Mr. Shnewer would cause an unwarranted sentencing disparity.
Finally, Mr. Shnewer asserts as follows:
(Dkt. No. 13 at p. 36) As previously noted, Mr. Shnewer was improperly charged and convicted on Count 4, an error that was corrected during Mr. Shnewer's direct appeal. Nevertheless, Mr. Shnewer more specifically claims that:
(Dkt. No. 13 at p. 38) Thus, as this Court interprets Mr. Shnewer's argument, had Count 4 been dismissed during the plea negotiations, then Mr. Cipparone would have been in a stronger position to negotiate with the government to obtain a lesser sentence because there would only be one count against Mr. Shnewer remaining. The problem with this argument is that it completely overlooks the government's position in this case with respect to a potential plea as espoused by Mr. Fitzpatrick in his declaration. Mr. Fitzpatrick makes clear that the government would not have agreed to any plea agreement that did not allow the government to advocate for a life sentence. Thus, it is pure speculation on the part of Mr. Shnewer that had Count 4 been dismissed earlier against him, that the government would have offered a formal plea offer that would have reduced his sentence to something less than life imprisonment. Accordingly, he fails to make any showing whatsoever that a dismissal of Count 4 would have resulted in a particular formal plea offer other than the one discussed by the government, namely guilty on Count I, which, with the enhancements confirmed by the Third Circuit on direct appeal, would have kept Mr. Shnewer at a life imprisonment advisory guidelines range. Indeed, Mr. Fitzpatrick makes clear that he viewed life as the only reasonable sentence in this case and it was the government's position that it would not permit a plea offer that would not allow for the imposition of a life sentence. Therefore, Mr. Shnewer fails to show that he was prejudiced because he has not shown to a reasonable probability that he would have received a lesser sentence of life imprisonment had Mr. Cipparone pursued further plea discussions.
To sum up Claim III, Mr. Shnewer is not entitled to relief on his claim that Mr. Cipparone was ineffective by failing to disclose to him a plea offer since no formal plea offer was ever extended to him by the government. Furthermore, to the extent that Mr. Shnewer argues that Mr. Cipparone was ineffective for failing to pursue further plea negotiations, this Court finds that Mr. Shnewer is not entitled to relief on that claim because he fails to show that he was prejudiced. He has not shown to a reasonable probability that a particular plea offer would have been offered, what terms this hypothetical plea offer would have looked like and fails to show to a reasonable probability that he would have received a lesser sentence had Mr. Cipparone pursued further plea negotiations.
In Claim IV, Mr. Shnewer "wishes to join in the claims of his codefendant's § 2255 motions, and incorporates them by reference."
This Court need not deny this claim on the procedural grounds asserted by the respondent. Indeed, with the exception of one claim, all of the remaining claims brought by the Duka brothers and Mr. Tatar have now been denied by this Court. See Tatar v. United States, No. 13-3317, 2016 WL 589671 (D.N.J. Feb. 11, 2016); Duka v. United States, Nos. 13-3664, 13-3665, 13-3666, 2015 WL 5768786 (D.N.J. Sept. 30, 2015). Accordingly, Mr. Shnewer is not entitled to relief on those claims as well for the reasons discuss in those Opinions.
The sole remaining claim with respect to the Duka brothers and Mr. Tatar in this case is the Duka brothers' claim that they did not voluntarily waive their right to testify at trial because their decision was the product of attorney coercion. See Duka, 2015 WL 5768786, at *4-6. The Duka brothers each submitted declarations in support of this claim and an evidentiary hearing was conducted on this claim on January 6, 2016. However, Mr. Shnewer does not allege in any fashion whatsoever that his decision not to testify was the result of attorney coercion due to Mr. Cipparone stating to him that he was unprepared to have him testify. Therefore, this clearly distinguishes the Duka brothers' claims from Mr. Shnewer, who has made no showing (nor even argument) that he did not voluntarily waive his right to testify because it was the result of attorney coercion. Therefore, the fact that this Court conducted an evidentiary hearing on the Duka brothers' claim has no impact on Mr. Shnewer's § 2255 motion that makes no such allegations with respect to his right to testify. Accordingly, Mr. Shnewer is not entitled to relief on Claim IV.
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C. § 2255. A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Applying this standard, the Court finds that a certificate of appealability shall not issue in this case.
For the foregoing reasons, Mr. Shnewer is not entitled to relief on any of his claims set forth in his § 2255 motion. An appropriate order will be entered.
U.S.S.G. § 3E1.1.
