MICHAEL A. SHIPP, District Judge.
Pro se Petitioner Charles Hall, III, confined at a Federal Correctional Institution in Fort Dix, New Jersey, files the instant Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Motion"), challenging the sentence imposed by this Court on October 1, 2014 for a conspiracy to commit extortion offense. United States v. Hall, No. 13-cr-144 (D.N.J. filed Feb. 27, 2013) ("Crim. Dkt.").
On December 26, 2013, Petitioner pled guilty to one count of conspiracy to commit extortion under color of official right ("Count I"), and one count of conspiracy to distribute and possess with intent to distribute Oxycodone ("Count II"). (Plea Hr'g Tr. 15:13-19, Dec. 26, 2015, Crim. Dkt. No. 7.) The parties agreed, in the plea agreement, that the offense level for Count I would be 28, and would be 29 for Count II. (Plea Agreement 8-9, Crim. Dkt. No. 5.) Specifically, the parties agreed that the offense level for Count I derived from a factual stipulation that the payment obtained in the conspiracy to commit extortion was more than $70,000, but less than $120,000. (Id. at 8.) However, the parties stipulated that the agreement was not binding on the sentencing judge, and that the sentence to be imposed on Petitioner was within the sole discretion of the sentencing judge. (Id. at 2-3.) Petitioner confirmed this understanding at the plea hearing. (Plea Hr'g Tr. 13:12-23.) The agreement also contained a standard waiver clause, whereby Petitioner
(Plea Agreement 11.) Again, Petitioner confirmed his understanding of this waiver at the plea hearing. (Plea Hr'g Tr. 13:24-15:9.)
At the sentencing hearing, the Court rejected the factual stipulation concerning the amount of payment, and found that Petitioner was guilty of obtaining payment in excess of $120,000, which increased the offense level of Count I from 28 to 30. (Sentencing Tr. 9:4-14, Oct. 23, 2014, Crim. Dkt. No. 13.) The Court accepted the offense level of 29 for Count II. (Id. at 9:15-20.) The Court then applied a multiple-count adjustment for both Count I and Count II, resulting in a combined offense level of 32. (Id. at 9:24-10:3.) The Court then lowered the offense level to 24, based on Petitioner's acceptance of responsibility, his assistance to the government in other criminal matters, and a variance for "drug minus two,"
A prisoner in federal custody under sentence of a federal court "may move the court which imposed the sentence to vacate, set aside or correct the sentence" upon three grounds: (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;" or (3) "that the sentence was in excess of the maximum authorized by law." 28 U.S.C. § 2255(a).
A criminal defendant bears the burden of establishing his entitlement to § 2255 relief. See United States v. Davies, 394 F.3d 182, 189 (3d Cir. 2005). Moreover, as a § 2255 motion to vacate is a collateral attack on a sentence, a criminal defendant "must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982), cited in United States v. Travillion, 759 F.3d 281, 288 (3d Cir. 2014). 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." United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (internal quotation marks and citation omitted). Additionally, "[i]t is the policy of the courts to give a liberal construction to pro se habeas petitions." Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010). The Court may dismiss the motion without holding an evidentiary hearing if the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. See 28 U.S.C. § 2255(b); Liu v. United States, No. 11-4646, 2013 WL 4538293, at *9 (D.N.J. Aug. 26, 2013) (citing Booth, 432 F.3d at 545-46).
In the Motion, Petitioner asserts two grounds for relief. In Ground I, Petitioner contends that the Court erred in holding that the payment amount for Count I was in excess of $120,000, because the Court failed to make an individualized determination of the loss amount that was attributable to Petitioner, in violation of United States v. Collado, 975 F.2d 985 (3d Cir. 1992). (Pet. 4.) In Ground II, Petitioner alleges that trial counsel provided ineffective assistance because he failed to object, at the sentencing hearing, to the Court's finding of a loss amount greater than what was stipulated to in the plea agreement. (Id. at 5.) However, the Court need not address the merits of these assertions in light of the concurrent sentence doctrine.
"Under the concurrent sentence doctrine, a court has `discretion to avoid resolution of legal issues affecting less than all counts in an indictment if at least one will survive and sentences on all counts are concurrent.'" Parkin v. United States, 565 F. App'x 149, 152 (3d Cir. 2014) (quoting United States v. McKie, 112 F.3d 626, 628 n.4 (3d Cir. 1997)). "Since `the defendant remains sentenced in any event, reviewing the concurrently sentenced counts is of no utility. The practice is eminently practical and preserves judicial resources for more pressing needs.'" Id. (quoting Jones v. Zimmerman, 805 F.2d 1125, 1128 (3d Cir. 1986)). Although courts should be mindful not to apply the concurrent sentence doctrine when the aggregate sentence could encompass a wrongful conviction, it "may be appropriately applied when the alleged error is associated only with counts for which concurrent sentences are imposed and the other sentences are unassailable." Id. at 153 (quoting Jones, 805 F.2d at 1128).
Here, Petitioner was sentenced to 48 months imprisonment and three years of supervised release, for both Count I and Count II, with the two sentences to be served concurrently. As such, the concurrent sentence doctrine squarely applies here. Petitioner's claims in the Petition, even if successful, only affect the sentence of Count I — the amount of payment received under the extortion scheme is unrelated to the drug offense charged against Petitioner in Count II. None of the claims raised in the Petition, if successful, would invalidate or alter Petitioner's judgment of conviction or sentence for Count II. And since Petitioner received equal sentences for both Count I and Count II, no relief that the Court can grant, with respect to Count I only, would change Petitioner's total time of incarceration. See Parkin, 565 F. App'x at 153 (affirming the district court's application of the concurrent sentence doctrine because the petitioner was separately sentenced to a concurrent sentence of 90 months, which in no way would have been affected by the petitioner's challenge of his other 60-month concurrent sentence); Lewis v. United States, No. 13-1453, 2015 WL 3651721, at *8 (D.N.J. June 11, 2015) (finding that the concurrent sentence doctrine precludes the petitioner's challenge of a life sentence, when he was subject to another life sentence on a different count that would remain unchanged by his habeas challenge).
The Court makes note of Kendrick v. Dist. Atty. of Cty. of Phila., 488 F.3d 217 (3d Cir. 2007), which held that the district court erred in applying the concurrent sentence doctrine, finding that "[t]he doctrine is not jurisdictional, and is discretionary," and should not be applied when "a wrongful criminal conviction has continued collateral consequences." Id. at 220.
Furthermore, Petitioner does not point to, and this Court cannot envision, any collateral consequence which may result from the alleged invalid sentence under Count I, that Petitioner would not also suffer because of his conviction and sentence under Count II. Petitioner would still be classified as a convicted felon solely on the basis of his conviction under Count II, with all of the associated penalties and consequences that result. As such, the usual presumption of collateral consequences does not attach here, since Petitioner would suffer those same consequences via his conviction under Count II. Absent that presumption, "[courts] require[] collateral consequences of conviction to be specifically identified, and [accept] . . . only concrete disadvantages or disabilities that had in fact occurred, that were imminently threatened, or that were imposed as a matter of law." Spencer, 523 U.S. at 8. As stated above, that showing has not been made here. Accord Ryan v. United States, 688 F.3d 845, 849 (7th Cir. 2012) ("Ryan has not identified any collateral consequences of the mail-fraud convictions (such as deprivation of the right to vote or hold office) that would not equally be required by the RICO conviction.").
To the extent Petitioner may argue that his Count II conviction could be invalidated, set aside, or pardoned in the future, thus making the collateral consequences of his Count I conviction relevant again, as indicated in the Petition, Petitioner has already acknowledged that he must bring all of his habeas challenges to Count I and Count II in the instant Petition. (See Mot. 14, ECF No. 1.) As this is a habeas petition, it is likely the last real chance Petitioner has to meaningfully challenge his convictions. Nevertheless, Petitioner has not challenged his conviction and sentence under Count II. Thus, there is no substantial possibility of any additional consequences Petitioner would suffer, now or in the future, if the Court does not reach the merits of Petitioner's habeas claims that address only Count I of his criminal convictions. Accordingly, the Court finds it appropriate to invoke the concurrent sentence doctrine, and dismisses the Motion.
Even if the concurrent sentence doctrine does not apply here, Petitioner's habeas claims would be denied because, in his plea agreement, he waived his rights to appeal or otherwise collaterally attack his sentences. "A criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution. . . . [Courts] will enforce appellate or collateral-attack waivers when they are entered into knowingly and voluntarily and their enforcement does not work a miscarriage of justice." United States v. Fazio, 795 F.3d 421, 425 (3d Cir. 2015). Here, Petitioner's signed plea agreement explicitly contained a waiver of appellate and collateral attack rights if his sentence fell "within or below the Guidelines range that result[ed] from the agreed total Guidelines offense level of 28." (Plea Agreement 11.) As stated above, the Court entered a below-guidelines sentence for an offense level of 24, significantly lower than what was agreed to in the plea agreement. As such, even if the Court did not apply the concurrent sentence doctrine, the Court would conclude that Petitioner is barred by the waiver provision of the plea agreement from raising his habeas claims.
Lastly, the Court denies a certificate of appealability ("COA"). The Antiterrorism and Effective Death Penalty Act of 1996 provides that an appeal may not be taken to the court of appeals from a final order in a § 2255 proceeding unless a judge issues a certificate of appealability on the ground that "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In Slack v. McDaniel, 529 U.S. 473, 484 (2000), the United States Supreme Court held that "[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling."
Here, the Court denies a certificate of appealability pursuant to 28 U.S.C. § 2253(c) because jurists of reason would not find it debatable that dismissal of the Petition is correct.
For the reasons set forth above, Petitioner's Motion is DISMISSED and the Court denies a certificate of appealability.
