U.S. v. Cleary, 94-3290
| Decision Date | 09 September 1994 |
| Docket Number | No. 94-3290,94-3290 |
| Citation | 46 F.3d 307 |
| Parties | UNITED STATES of America, v. Thomas J. CLEARY, Thomas James Cleary, Appellant. . Submitted Under Third Circuit LAR 34.1(a) |
| Court | U.S. Court of Appeals — Third Circuit |
Frederick W. Thieman, U.S. Atty., Michael L. Ivory, Asst. U.S. Atty., Pittsburgh, PA, for appellee.
Thomas James Cleary, pro se.
Before: BECKER, COWEN and ROTH, Circuit Judges.
I. INTRODUCTION
Thomas James Cleary ("Cleary") appeals from an order of the district court entered on May 24, 1994, denying Cleary's motion to vacate or correct an illegal sentence pursuant to 28 U.S.C. Sec. 2255. Cleary asserts that the district court violated Rule 11(c)(1) of the Federal Rules of Criminal Procedure by failing, at his change of plea hearing, to adequately inform him and determine that he understood the maximum penalty he could receive. In particular, Cleary contends that the court erred by failing to explain the effects of a term of special parole. Because of the court's alleged error, Cleary seeks a reduction of his special parole term from ten years to two, or, in the alternative, a vacatur of his guilty plea. For the reasons stated herein, we find that the district court's error did not rise to the level required to permit collateral relief under section 2255.
II. BACKGROUND AND FACTS
On September 8, 1982, a grand jury sitting in the Western District of Pennsylvania returned a two count indictment against Cleary, charging him with: (1) Count One--conspiracy to violate federal narcotics laws in violation of 21 U.S.C. Sec. 846; and (2) Count Two--manufacturing and distributing methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. On December 7, 1982, pursuant to an oral plea agreement, Cleary pled guilty to Count Two of the indictment. In exchange, the Government agreed to dismiss Count One of the indictment. On January 10, 1983, the district court judge sentenced Cleary to three years imprisonment to be followed by a special parole term of ten years on Count Two. Count One was dismissed. Cleary appealed his sentence, but because he became a fugitive pending appeal, this Court dismissed his appeal. See United States v. Cleary, No. 83-5044 (3d Cir. June 6, 1983).
On June 24, 1985, Cleary filed his first habeas motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. Sec. 2255. Acting pro se, Cleary advanced several arguments in support of his motion, including: (1) the presentence investigation report was factually inaccurate; 1 (2) the government illegally searched his car without a warrant and illegally seized money therefrom; (3) the prosecution withheld information favorable to the defense; and (4) the district court denied him the opportunity to present evidence on his behalf. The court appointed counsel for Cleary and, with the assistance of that counsel, Cleary amended his habeas motion to allege that the district court had violated Federal Rule of Criminal Procedure 32 by failing to: (1) determine whether or not the defendant and his counsel had an opportunity to read and discuss the presentence report; (2) afford counsel an opportunity to speak on behalf of the defendant prior to the imposition of sentence; and (3) address the defendant personally and ask him if he wished to make a statement on his own behalf and present information in mitigation of punishment.
By order dated January 17, 1986, the district court denied Cleary's motion. Cleary appealed, and on August 19, 1986, this Court affirmed the decision of the district court. See United States v. Cleary, Nos. 86-3083 and 86-3097 (3d Cir. August 19, 1986). Cleary subsequently petitioned the United States Supreme Court for a writ of certiorari, which was denied on November 3, 1986, 479 U.S. 938, 93 L.Ed.2d 369.
Cleary was released from prison on February 2, 1987, after serving his original three year sentence plus an additional year on an escape charge. He began serving his special parole term on January 14, 1989, after finishing a term of regular parole, and was to remain on special parole for ten years, until January 13, 1999. Supplemental Appendix ("S.App.") 9. However, on April 15, 1993, the United States Parole Commission ("Parole Commission") revoked Cleary's special parole term because Cleary, while on special parole, had been indicted for: (1) conspiracy to manufacture methamphetamine; (2) possession of methamphetamine for sale; and (3) manufacture of methamphetamine. S.App. 2. In addition, Cleary had been charged with reckless driving and associating with a person engaged in criminal activity. Id. The Parole Commission directed that Cleary was to be imprisoned until the expiration of his ten-year special parole term without credit for the time that he had already spent on special parole. Id. Cleary appealed the decision of the Parole Commission. The Commission, however, affirmed its prior decision.
On January 12, 1994, Cleary filed the present motion to correct or vacate his sentence pursuant to 28 U.S.C. Sec. 2255. In this motion, Cleary asserts that his sentence is illegal and should be reduced or vacated because at his change of plea hearing the district court failed to properly explain to him the effects of special parole as required by Federal Rule of Criminal Procedure 11(c)(1). The following exchange, at Cleary's change of plea hearing on December 7, 1982, is central to his present allegations:
In particular, Cleary alleges that the AUSA's statement regarding the penalty misled Cleary into believing that "the special parole term was with the five (5) year penalty." Cleary's Opening Brief at 4-5. We interpret Cleary's argument to mean that he believed that the special parole term was included within, the five year maximum length of imprisonment. Cleary further asserts that the district court's statements after the AUSA's comment did not dispel his mistaken belief. In addition, Cleary claims that the district court failed to explain that: his special parole term would begin only after he had finished his regular parole and that he could end up serving more than the five-year maximum sentence revealed to him at his change of plea hearing because, if he were to violate his special parole, he could be imprisoned for the entire length of the special parole term, without any credit for the time he had already spent on special parole.
After receiving the government's response to Cleary's motion, the district court, on March 31, 1994, denied that motion without explanation. Cleary filed additional documents with the district court in support of his motion, including: (1) an affidavit stating that he would not have pled guilty if he had been adequately instructed on the nature and possible consequences of special parole, on April 14, 1994 (App. 9-10); (2) a supplemental memorandum, on April 18, 1994; (3) a motion for reconsideration, on May 6, 1994; and (4) an addendum to the motion for reconsideration, on May 24, 1994.
On May 24, 1994, the district court denied Cleary's motion to reconsider, finding that: "(1) the court explained the provisions of special parole in complete and adequate terms during the guilty plea colloquy; (2) the contentions of petitioner are foreclosed by the holding of United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979); and (3) the petitioner has failed to exhaust administrative remedies." Appendix ("App.") 2 (citation omitted). Cleary filed the instant appeal on May 29, 1994.
III. JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction under 28 U.S.C. Sec. 2255. We have jurisdiction under 28 U.S.C. Sec. 2255 and 28 U.S.C. Sec. 1291. The decision whether to grant or deny a habeas corpus petition is reviewed de novo. See United States v. DeLuca, 889 F.2d 503, 505-508 (3d Cir.1989).
IV. DISCUSSION
Rule 11(c) of the Federal Rules of Criminal Procedure requires that before a district court may accept a guilty plea, the court must "inform the defendant of, and determine that the defendant understands," a laundry list of information regarding the defendant's rights and the consequences of his or her plea. Fed.R.Crim.P. 11(c). In particular, Rule 11(c)(1) requires the court to inform the defendant of, and make sure he or she understands, "the maximum possible penalty provided by law, including the effect of any special parole or supervised release term." 2 The Notes of the Advisory Committee on Rules regarding the 1982 amendment of Rule 11(c)(1) recommends that a judge inform the defendant, and determine that he or she understands, the four following items in a case involving special parole or supervised release:
(1) that a special parole term will be added to any prison sentence he [or she] receives;
(2)...
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