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govinfo:USCOURTS-pawd-1_10-cr-00056-0
1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA, )
) Civil No. 12-290 Erie
) Criminal No. 10-56 Erie
) Judge Sean J. McLaughlin
v . )
)
MIKE BEAULIEU, )
)
)
MEMORANDUM OPINION AND ORDER
McLAUGHLIN, SEAN J., J.
This matter is before the Court upon Defendant Mike Beaulieu =s Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. ' 2255.
1 [Dkt. 37]. In
37]. In his pro se Section 2255 motion, Defendant primarily asserts that his attorney
attorney induced him to plead guilty by promising him that he would receive a
sentence of only 37 months incarceration. The government responds that
Defendant has waived his right to file a motion collaterally attacking his sentence.
For the reasons which follow, Defendant’s motion is denied.
I. BACKGROUND
On September 14, 2010, a federal grand jury returned an indictment charging
1 Also before the Court is a document styled an “Emergency Motion for Clarification, and
Immediate Release Pursuant to 18 U.S.C. § 3583.” [Dkt. 36]. This motion will be separately
addressed infra.
Case 1:10-cr-00056-DSC Document 44 Filed 05/29/13 Page 1 of 13
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charging Defendant with aggravated sexual abuse, kidnapping, using and carrying a
carrying a firearm during a crime of vi olence, and possession of a firearm by a
convicted felon. On March 21, 2012, Defendant pleaded guilty to Count Two
(kidnapping) and Count Four (using and carrying a firearm during a crime of
violence) pursuant to a written plea agreement. Paragraph 6 of the plea agreement
agreement contained the following waiver provision:
MIKE BEAULIEU waives the right to take a direct appeal from
his conviction or sentence under 28 U.S.C. §1291 or 18 U.S.C.
§3742, subject to the following exceptions:
(a) If the United States appeals from the sentence, MIKE
BEAULIEU may take a direct appeal from the
sentence.
(b) If (1) the sentence exceeds the applicable statutory
limits set forth in the United States Code, or (2) the
sentence unreasonably exceeds the guideline range
determined by the Court under the Sentencing
Guidelines, MIKE BEAULIEU may take a direct appeal
from the sentence.
MIKE BEAULIEU further waives the right to file a motion to
vacate sentence, under 28 U.S.C. §2255, attacking his
conviction or sentence, and the right to file any other collateral
proceeding attacking his conviction or sentence.
(Plea Agreement, ¶ 6).
A change of plea hearing was held on March 21, 2012. At the hearing,
counsel for the government described the salient provisions of the plea agreement,
agreement, including the appellate and collateral attack waiver provision.
Case 1:10-cr-00056-DSC Document 44 Filed 05/29/13 Page 2 of 13
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(Transcript, March 12, 2012, at 12-14). The Court then directly addressed
Defendant to determine whether he had read and understood the plea agreement,
agreement, had reviewed it with counsel, had expressed any questions or concerns
concerns with the plea agreement to counsel, and had agreed to the terms therein
therein by signing the plea agreement. (Transcript, March 12, 2012, at 15-16).
Defendant answered each question in the affirmative. (Id. at 16). The Court then
then directly questioned Defendant concerning the waiver provision contained in the
the plea agreement:
The Court: Do you also understand, Mr. Beaulieu, that for
all intents and purposes by virtue of your plea
agreement, you have waived any right to appeal,
except if the sentence I impose would exceed a
statutory maximum, I can assure you it will not, or
it unreasonably exceeds the guideline range, I can
also assure you it will not, or if the government
chose to appeal. Do you also understand that in
addition to waiving your right to take a direct
appeal, you’ve also waived your right to collaterally
attack any aspect of these proceedings via a
Habeas Corpus petition; do you understand that?
Defendant: Yes, sir.
(Id. at 16). The Court also questioned Defendant concerning whether he had been
been promised anything outside of the contents of the plea agreement as an
inducement to plead guilty and whether he had been promised any particular
sentence:
Case 1:10-cr-00056-DSC Document 44 Filed 05/29/13 Page 3 of 13
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The Court: Now, has anybody made any promise to you,
other than the plea agreement, that has caused
you to plead guilty today?
Defendant: No, sir.
* * * * * * * *
The Court: Do you understand that if the sentence is more
severe than you expected, you will still be bound
by your guilty plea and you’ll have no right to
withdraw it?
Defendant: Yes, sir.
The Court: Except for your discussions with Mr. Patton
about the Sentencing Guidelines, has anyone
made any prediction or promise to you about what
your sentence will be?
Defendant: No, sir.
The Court: Has anything that I’ve said here today
suggested to you what your actual sentence will
be?
Defendant: No, sir.
The Court: Have you been instructed by your counsel, by
government counsel, or by anybody else to
respond untruthfully to any question about a
promised sentence?
Defendant: No, sir.
(Id. at 16, 19-20). The government then summarized the extensive and
overwhelming evidence against Defendant, including, inter alia, the rape victim’s
proposed testimony, Defendant’s confession, and the existence of DNA evidence
Case 1:10-cr-00056-DSC Document 44 Filed 05/29/13 Page 4 of 13
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linking Defendant to the rape. (Id. at 23-24). Defendant indicated that he had no
no objection to the factual summary provided by the government. (Id. at 24).
Shortly thereafter, a presentence report (“PSR”) was prepared wherein the
probation officer calculated Defendant’s total offense level at 37 and his criminal
history category at VI, resulting in a recommended sentencing guideline range of
444 months to life. (Dkt. 29, Presentence Report). On August 1, 2012, this Court
sentenced Beaulieu to a term of life imprisonment at Count Two and a consecutive
term of seven years imprisonment at Count Four, followed by a term of 5 years of
supervised release.
II. STANDARD OF REVIEW
Pursuant to 28 U.S.C. ' 2255, a federal prisoner may move the sentencing
court to vacate, set aside or correct a sentence Aupon the ground that the sentence
sentence was imposed in violation of the Constitution or laws of the United States, or
States, or that the court was without jurisdiction to impose such sentence, or that the
the sentence was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack.@ 28 U.S.C. ' 2255. When a motion is made pursuant to
pursuant to 28 U.S.C. ' 2255, the question of whether to order a hearing is
committed to the sound discretion of the district court. In exercising that discretion,
discretion, the court must accept the truth of the petitioner =s factual allegations
Case 1:10-cr-00056-DSC Document 44 Filed 05/29/13 Page 5 of 13
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unless they are clearly frivolous on the basis of the existing record. United States v.
States v. Day, 969 F.2d 39, 41-42 (3rd Cir. 1992). Further, the court must order an
an evidentiary hearing to determine the facts unless the motion and files and records
records of the case show conclusively that the petitioner is not entitled to relief. Id.
Id.
Here, upon consideration of Beaulieu’s petition, the government=s response
thereto, and the pleadings and documents of record, I conclude that no hearing is
warranted because Beaulieu’s claims can be entirely resolved based upon the
current record.
III. DISCUSSION
In his motion to vacate, Defendant asserts that his counsel provided
ineffective assistance by allowing him to enter into a plea agreement that contained
a waiver of his right to collaterally a ttack his sentence and by allegedly promising
Defendant that he would receive a total sentence of 37 years imprisonment.
Defendant indicates that he would not have pleaded guilty in the absence of
counsel’s allegedly deficient performance. (Motion to Vacate, Dkt. 37, at 1). The
government, in response, contends that Defendant has waived his right to file the
instant motion.
It is well-settled that an appellate and habeas corpus waiver provision in a
Case 1:10-cr-00056-DSC Document 44 Filed 05/29/13 Page 6 of 13
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plea agreement must be enforced, if entered into voluntarily and knowingly, unless to
unless to do so would work “a miscarriage of justice.” United States v. Khattak, 273
273 F.3d 557, 558 (3rd Cir. 2001). Thus, in order to determine whether a waiver is
is valid, the court must “specifically examine the (1) knowing and voluntary nature,
nature, based on what occurred and what defendant contends, and (2) whether
enforcement would work a miscarriage of justice.” United States v. Mabry, 536 F.3d
F.3d 231, 237 (3rd Cir. 2008). The defendant has the initial “burden of presenting an
an argument that would render his waiver unknowing or involuntary,” but the district
district court has “an affirmative duty both to examine the knowing and voluntary
nature of the waiver and to assure itself that its enforcement works no miscarriage of
miscarriage of justice, based on the record evidence before it.” Mabry, 536 F.3d at
at 237 (citing Khattak, 273 F.3d at 563).
Defendant has provided no supporting brief or argument in support of his
contention that he would not have pleaded guilty in the absence of counsel’s
allegedly deficient performance. However, the record contains extensive evidence
evidence from which the Court concludes that Defendant knowingly and voluntarily
voluntarily agreed to waive his appellate and collateral rights and plead guilty. As
As discussed above, Defendant was thoroughly examined by the Court and found
competent to enter a plea and waive his rights. (Transcript, March 12, 2012, at 4).
4). The language contained in Defendant’s plea agreement clearly and
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unequivocally states that Defendant “waive[d] the right to file a motion to vacate
sentence, under 28 U.S.C. §2255, attacking his conviction or sentence, and the right
right to file any other collateral proceeding attacking his conviction or sentence.”
(Plea Agreement, ¶ 6). Moreover, consistent with Rule 11(b)(1)(N) of the Federal
Federal Rules of Criminal Procedure and United States v. Goodson, 544 F.3d 529
529 (3rd Cir. 2007), Defendant was directly questioned by the Court concerning his
his decision to waive his appellate and collateral attack rights. See Fed. R. Crim. P.
P. 11(b)(1)(N) (“Before the court accepts a plea of guilty . . ., the defendant must be
be placed under oath, and the court must address the defendant personally . . . [to]
[to] inform the defendant of, and determine that the defendant understands . . ., the
the terms of any plea-agreement provision waiving the right to appeal or to
collaterally attack the sentence.”); United States v. Corso, 549 F.3d 921, 929-31 (3
rd
(3rd Cir. 2008) (holding that the district c ourt erred by not directly questioning the
defendant about the waivers in a plea agreement); Goodson, 544 F.3d at 540-41
(same). In response to the Court’s inquiry, Defendant clearly and affirmatively
indicated that he had familiarized himself with the contents of his plea agreement,
was specifically aware of the waiver provision contained therein, and understood and
and agreed that he was waiving his right to file an appeal or a Section 2255 motion.
motion. (Id. at 16). In sum, the evidence of record clearly demonstrates that
Defendant’s waiver of his right to file the instant Section 2255 motion was knowingly
Case 1:10-cr-00056-DSC Document 44 Filed 05/29/13 Page 8 of 13
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knowingly and voluntarily given. See, e.g., Mabry, 536 F.3d at 241; Khattak, 273
F.3d at 558.
We also conclude that enf orcement of the waiver provision in Defendant’s plea
agreement would not work a miscarriage of justice. It is well-settled that a
miscarriage of justice occurs only where an error “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Corso, 549 F.3d at 929. The
Third Circuit has declined to provide an express definition for this exception, instead
urging courts to utilize “a common sense approach [to] determining whether a
miscarriage of justice would occur if the waiver were enforced.” Mabry, 536 F.3d at
242; see also United States v. Calabretta, 385 Fed. Appx. 130, 131 (3rd Cir. 2010)
(noting that the court of appeals has not precisely defined the phrase “miscarriage of
justice”). Moreover, the Court has cautioned that the miscarriage of justice
“exception [should] be applied sparingly and without undue generosity.” United
States v. Stabile, 633 F.3d 219, 247 (3rd Cir. 2011) (internal citations omitted).
Here, the lone argument advanced by Defendant in his motion is that, based
based on a representation by his counsel, he believed he would only receive a
sentence of 37 years incarceration if he pleaded guilty. In addition to this argument
argument having been waived, it is also refuted by the record. At the change of plea
plea hearing, the Court asked Defendant whether he understood that the maximum
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maximum penalty for Count Two was “life imprisonment” and that the maximum
penalty for Count Four ranged from “seven years” to “life imprisonment.” (Transcript,
(Transcript, March 12, 2012, at 12-14). Defendant indicated that he did. (Id. at 14).
14). Moreover, the Plea Agreement which Defendant signed contemplates an
applicable guideline range of 444 months to life. (Id. at 15). Finally, the Court
explained to Defendant that he was bound by the terms of his guilty plea even “if the
the sentence is more severe than [he] expected,” and Defendant indicated that he
understood and agreed. (Id. at 18-19). Giv en the clarity of the plea colloquy and
and Defendant’s specific representations on the record, and consistent with the
“common sense” standard set forth in Mabry, the Court readily concludes that no
miscarriage of justice will occur as the result of enforcement of the waiver. See, e.g.,
e.g., United States v. Jones, 336 F.3d 245, 254 (3 rd Cir. 2003) (counsel not
ineffective for allegedly promising defendant a sentence of “no more than 71
months” where defendant was advised in open-court colloquy of potential maximum
maximum sentence and there were no other promises regarding sentence); United
United States v. Mustafa, 238 F.3d 485, 492 (3 rd Cir. 2001) (“[A]ny alleged
misrepresentations that [defendant's] former counsel may have made regarding
sentencing calculations were dispelled when [defendant] was informed in open court
court that there was no guarantee as to sentence, and that the court could sentence
sentence him to the maximum.”); Masciola v. United States , 469 F.2d 1057, 1059
Case 1:10-cr-00056-DSC Document 44 Filed 05/29/13 Page 10 of 13
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(3rd Cir. 1972) ( per curiam) (holding that “[a]n erroneous prediction of a sentence by
by defendant’s counsel does not render a guilty plea involuntary” where record
demonstrates that a proper plea colloquy took place during which defendant
acknowledged that he was aware of his maximum potential sentence).
Finally, Defendant has filed a document styled an “Emergency Motion for
Clarification, and Immediate Release Pursuant to 18 U.S.C. § 3583” wherein he
appears to argue that the imposition of a five year term of supervised release on top
top of his life sentence has taken his sentence out of the applicable guideline range.
range. The Third Circuit recently held that an identical motion filed by another
prisoner “effectively challenged the execution of his sentence” and thereby
“constituted a habeas corpus petition filed under 28 U.S.C. § 2241.” United States v.
States v. Moruzin, 483 Fed. Appx. 736, 737 (3rd Cir. 2012). It is axiomatic that such
such petitions must be filed “in the district in which the prisoner is incarcerated at the
the time he files the petition.” Id. (citing Rumsfield v. Padilla, 542 U.S. 426, 442-43
442-43 (2004)). As Defendant is currently incarcerated at USP Allenwood, located
located in Union County, Pennsylvania, jurisdiction for the disposition of his motion
motion lies exclusively in the United States District Court for the Middle District of
Pennsylvania. See Moruzin, 483 Fed. Appx. at 738 (noting that the Petitioner had
had failed to file his motion in the proper district and, as such, “the District Court
should have disposed of it on jurisdictional grounds instead of reaching the merits.”);
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merits.”); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 443 (3 rd Cir. 2005)
(noting that “for core habeas petitions challenging present physical confinement,
jurisdiction lies in only one district: the district of confinement.”). Accordingly, that
that motion is dismissed without prejudice.
IV. CONCLUSION
For the reasons stated herein, Defendant =s Motion to Vacate Judgment
pursuant to 28 U.S.C. ' 2255 is denied. An appropriate order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA, )
) Civil No. 12-290 Erie
) Criminal No. 10-56 Erie
) Judge Sean J. McLaughlin
v i . )
)
MIKE BEAULIEU, )
)
)
ORDER
AND NOW, this 29
th day of May, 2013, for the reasons set forth above, it is
hereby ORDERED that Defendant’s Motion to Vacate Judgment pursuant to 28
U.S.C. ' 2255 is DENIED. Defendant’s “Emergency Motion for Clarification, and
Immediate Release Pursuant to 18 U.S.C. § 3583” is dismissed without prejudice.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. ' 2253(c), Petitioner
has not made a substantial showing of the denial of a constitutional right and is not
entitled to a certificate of appealability.
/s/ - Sean J. McLaughlin
United States District Judge
cm: All parties of record.
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