Costello v. United States
| Decision Date | 18 December 2020 |
| Docket Number | No. 5:14-cr-00107,No. 5:19-cv-00895,5:14-cr-00107,5:19-cv-00895 |
| Parties | KYLE COSTELLO, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Petitioner Kyle Costello was convicted of conspiracy to commit armed bank robbery, armed bank robbery, and using or carrying a firearm during and in relation to a crime of violence. He was sentenced to a total imprisonment term of 204 months, after which he appealed his conviction. The Third Circuit affirmed his conviction. Following his direct appeal, Costello filed the present Motion to Vacate/Set Aside/Correct Sentence under 28 U.S.C. § 2255. In addition, Costello filed a Motion for Equitable Tolling of 28 U.S.C. § 2255 Habeas Corpus Petition.
Costello's motion for equitable tolling is granted. For the reasons set forth below, Costello's motion to vacate, set aside, or correct his sentence is denied in part and dismissed in part, and a certificate of appealability shall not issue.
On November 7, 2013, two men robbed a National Penn Bank branch near Shillington, Pennsylvania. See United States v. Costello, 720 F. App'x 120, 121 (3d Cir. 2018). Costello's parole agent saw an image from the bank's surveillance video on a local news website, and the agent recognized Costello as one of the robbers in the video. See id. Costello was arrested in Texas on December 20, 2013, and later extradited back to Pennsylvania pursuant to a parole violation warrant. See id.
On March 6, 2014, a federal grand jury indicted Costello for the robbery, charging conspiracy to commit bank robbery, 18 U.S.C. § 371, armed bank robbery and aiding and abetting, 18 U.S.C. §§ 2, 2113(d), and carrying or using a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii). See id. at 122.
Costello went to trial, where he was convicted by a jury on all three counts. See id. Thereafter, following a multi-day sentencing hearing, Costello was sentenced to a total term of 204 months' imprisonment. See Judgment as to Kyle Costello 2, ECF No. 145. Costello appealed his conviction to the Third Circuit, asserting (1) a violation of his right to a speedy trial and (2) an improper inclusion of his previous aggravated assault conviction as a prior "crime of violence" for purposes of Career Offender status under USSG § 4B1.2(a). See Costello, 720 F. App'x at 122. The Third Circuit affirmed his conviction, finding neither a violation of Costello's speedy trial rights nor an improper inclusion of his aggravated assault conviction. See id. at 124. Following his direct appeal, Costello filed the present motion under 28 U.S.C. § 2255. See Mot., ECF No. 177. Following a series of responses and replies, the matter is ready for disposition. See ECF Nos. 179, 186, and 201.
Title 25 U.S.C § 2255(f) provides that motions filed under § 2255 carry with them a "1-year period of limitation . . . ." See 25 U.S.C. 2255(f). This period begins to run when thedefendant's conviction becomes final. See United States v. Bass, 268 F. App'x 196, 199 (3d Cir. 2008). Relevant to this matter, the limitations period runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." See 28 U.S.C. § 2244(d)(1)(A).
"A litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." See Bass, 246 F. App'x at 199 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The Third Circuit cautions that "[e]quitable tolling is a remedy which should be invoked 'only sparingly.'" See id. (citing United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)).
Motions filed under 28 U.S.C. § 2255 are the presumptive means by which federal defendants can challenge their convictions or sentences that are allegedly in violation of the Constitution or laws of the United States or are otherwise subject to collateral attack. See Davis v. United States, 417 U.S. 333, 343 (1974); O'Kereke v. United States, 307 F.3d 117, 122-23 (3d Cir. 2002). Section 2255 "states four grounds upon which such relief may be claimed: (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;' (3) 'that the sentence was in excess of the maximum authorized by law;' and (4) that the sentence 'is otherwise subject to collateral attack.'" Hill v. United States, 368 U.S. 424, 426-27 (1962) (quoting 28 U.S.C. § 2255(a)). "A district court must 'accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record.'" Johnson v. United States, 294 F. App'x 709, 710 (3d Cir. 2008) (quoting United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005) (citationsomitted)). But, "vague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the District Court." United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000).
A movant "procedurally default[s] all claims that he neglected to raise on direct appeal." Hodge v. United States, 554 F.3d 372, 379 (3d Cir. 2009) (citing Bousley v. United States, 523 U.S. 614, 621 (1998)). To overcome the procedural default, the movant must "prove either that he is actually innocent of the crime for which he was convicted, or that there is a valid cause for the default, as well as prejudice resulting from the default." Id. "[T]he cause standard requires the petitioner to show that some objective factor external to the defense impeded counsel's efforts to raise the claim. . . ." McCleskey v. Zant, 499 U.S. 467, 493-94 (1991) (internal quotations omitted). "Ineffective assistance of counsel that rises to the level of a Sixth Amendment violation constitutes cause for a procedural default." Hodge, 554 F.3d at 379 (citing McCleskey v. Zant, 499 U.S. 467, 494 (1991); Wise v. Fulcomer, 958 F.2d 30, 34 n.9 (3d Cir. 1992)).
To establish counsel's ineffectiveness, a petitioner must show: (1) counsel's performance fell below an objective standard of reasonableness; and (2) the performance was prejudicial to the defense. See Strickland v. Washington, 466 U.S. 668 (1984). There is a strong presumption that counsel is effective, and the courts, guarding against the temptation to engage in hindsight, must be "highly deferential" to counsel's reasonable strategic decisions. See Marshall v. Hendricks, 307 F.3d 36, 85 (3d Cir. 2002). The mere existence of alternative, even more preferable or more effective, strategies does not satisfy the first element of the Strickland test. See id. at 86. To establish prejudice under the second element, the petitioner must show thatthere is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Roe v. Flores-Ortega, 528 U.S. 470, 482 (2000) (quoting Strickland, 466 U.S. at 694). "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689 (). "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. The court must consider the totality of the evidence, and the burden is on the petitioner. See id. at 687, 695.
In Brady v. Maryland, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87 (1963). The evidence must not only be favorable, but also material, meaning "the defendant did not receive a fair trial because of its absence." See Hollman v. Wilson, 158 F.3d 177, 180 (3d Cir. 1998). Further, "[i]t is well established that impeachment evidence can constitute exculpatory evidence under Brady and its progeny." Id.
Costello contends that this Court should equitably toll the period for filing of his § 2255 motion. Costello's sentence was entered on the docket on November 1, 2016. See Judgment as to Kyle Costello. Costello timely appealed his conviction. See Costello, 720 F. App'x 120. The Third Circuit affirmed on January 12, 2018. See id. Thereafter, Costello filed a petition for writ of certiorari to the United State Supreme Court, which was denied on February 20, 2018. See Costello v. United States, 138 S. Ct. 1039 (2018) (denying certiorari).
Pursuant to 28 U.S.C. § 2244(d)(1)(A), Costello's judgment became final on February 20, 2018 when his petition for writ of certiorari was denied. Under the one-year limitations period, Costello was required to file any § 2255 motion by February 20, 2019. Costello filed his first motion § 2255 on March 1, 2019. See Motion to Vacate/Set Aside/Correct Sentence, ECF No. 165.
Costello asks this Court to equitably toll the statute of limitations, excusing his delay of nine days. See Tolling Mot. 2, ECF No. 175 ("Toll. ___"). Costello states that he was released from the custody of the Pennsylvania Department of Corrections on August 28, 2018, and he was to be placed into the custody of the Bureau of Prisons to serve his sentence for the armed bank robbery. See id. at 1. Thereafter, he was held in contract facilities through from September 2018 through October 2018. See id. Costello was eventually placed in USP Tucson in late October 2018. Costello states the he was "stripped of all...
To continue reading
Request your trial