Miserendino v. United States

• Decision Date: 02 April 2018
• Docket Number: CIVIL NO. 2:17cv339,ORIGINAL CRIMINAL NO. 2:14cr79
• Citation: 307 F.Supp.3d 480
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Scott B. MISERENDINO, Sr., Petitioner, v. UNITED STATES of America, Respondent.

307 F.Supp.3d 480

Scott B. MISERENDINO, Sr., Petitioner,

v.UNITED STATES of America, Respondent.

CIVIL NO. 2:17cv339

ORIGINAL CRIMINAL NO. 2:14cr79

United States District Court, E.D. Virginia, Norfolk Division.

Signed April 2, 2018

Filed April 3, 2018

David B. Benowitz, Esquire, Price Benowitz LLP, 409 7th Street NW, Washington, DC 20004, for Petitioner.

Stephen W. Haynie, Assistant United States Attorney, 101 W. Main Street, Suite 8000, Norfolk, VA 23510, for United States.

OPINION

REBECCA BEACH SMITH, CHIEF JUDGE

This matter comes before the court on the Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (" § 2255 Motion") and accompanying Memorandum in Support, filed respectively by counsel on June 23, 2017, and July 21, 2017. ECF Nos. 94, 103.¹

On July 21, 2017, the court ordered the government to file responsive pleadings to the Petitioner's § 2255 Motion within sixty (60) days of the entry of that order. ECF No. 102. On September 19, 2017, the United States filed a Response in Opposition. ECF No. 104. On September 29, 2017, the court granted the Petitioner's Motion for Leave to File a Reply. ECF No. 107. On October 18, 2017, the Petitioner filed, through counsel, a Reply to the government's Response in Opposition. ECF No. 108. The § 2255 Motion is now ripe for review.

I. FACTUAL AND PROCEDURAL HISTORY

On May 23, 2014, a grand jury returned a six-count Indictment, naming the Petitioner as one of two co-defendants. ECF No. 1. Count One charged the Petitioner with Conspiracy to Commit Bribery of a Public Official, in violation of 18 U.S.C. § 371. Id. at 3–11. Count Four charged the Petitioner with Acceptance of a Bribe by a Public Official, in violation of 18 U.S.C. § 201(b)(2)(A). Id. at 12–13. Count Five charged the Petitioner with Conspiracy to Commit Obstruction of Criminal Investigations and to Commit Tampering with a Witness, in violation of 18 U.S.C. § 371. Id. at 13–16. Count Six charged the Petitioner with Obstruction of Criminal Investigations, Aiding and Abetting, in violation of 18 U.S.C. § 1510(a). Id. at 16. The Indictment also contained a Forfeiture Notice to the defendants. Id. at 16–17. On August 12, 2014, the Petitioner, appearing with counsel, pleaded guilty to Counts One and Four, and a Plea Agreement was entered that same day. Plea Agreement Hearing, ECF No. 38; Plea Agreement, ECF No. 39. The Petitioner and the government agreed to a Statement of Facts, ECF No. 40, which describes the following foundations for the Petitioner's guilty plea.

At the time of his arrest, the Petitioner was a government contractor at the Military Sealift Command ("MSC"), which is an entity of the United States Navy that provides transportation for the Navy and the Department of Defense. Statement of Facts at 1. He was employed by two companies to provide information technology and communications services and support to MSC. Id. The Petitioner's duties included managing MSC's telecommunications projects, which involved writing Statements of Work as directed, preparing and executing budgets, reviewing proposals, and influencing the awarding of government task orders. Id.

From November 2004 to November 2009, the Petitioner and an MSC employee, Kenny Toy, "solicited and received, both directly and indirectly, for personal gain, cash payments and other things of value" from two companies: Mid–Atlantic Engineering Technical Services, Inc. ("MAETS") and Miller, Hardman Design, Inc. ("MHD"). Id. at 2.² In exchange for these cash payments and other things of value, the Petitioner provided, and promised to provide, official assistance to MAETS and MHD. Id.

In total, the Petitioner and Toy jointly received at least $265,000 in cash bribes from MAETS and MHD that were intended to influence their official acts. Id. at 4. The Petitioner and Toy also accepted other things of value to influence their official acts, including flat screen televisions, laptop computers, a paid vacation rental, signed sports memorabilia, and sporting equipment. Id. The official actions provided by the Petitioner and Toy on behalf of MSC that were favorable to MAETS and MHD included:

i. assisting in the preparation of Statements of Work for tasks that [MAETS] and [MHD] sought to perform under U.S. Government contracts, subcontracts, and task orders;

ii. influencing, or causing to be influenced, other government officials to further [MAETS's] and [MHD's] efforts to obtain U.S. Government contracts, subcontracts, and task orders;

iii. influencing, or causing to be influenced, MSC contractors to further [MAETS's] and [MHD's] efforts to obtain U.S. Government subcontracts and task orders; and

iv. providing favorable treatment to [MAETS] and [MHD] in connection with U.S. Government task orders.

Id. at 4–5. Further, during the period of time in which the Petitioner was accepting money and other things of value from MAETS and MHD, those companies received lucrative contracts, subcontracts, and task orders, totaling approximately $3 million for MAETS and $2.5 million for MHD. Id. at 5.

At the time he signed the Plea Agreement, the Petitioner confirmed, under oath, that he (1) "plead[s] guilty because [he] is in fact guilty of the charged offenses," (2) "admits the facts set forth in the statement of facts filed with this plea agreement[,] and [ (3) ] agrees that those facts establish guilt of the offenses charged beyond a reasonable doubt." Plea Agreement ¶ 2. On November 7, 2014, this court adjudged the Petitioner guilty and sentenced him to sixty (60) months imprisonment on Count One and ninety-six (96) months imprisonment on Count Four, to be served concurrently, as well as a three (3) year term of supervised release. Sentencing Hearing, ECF No. 74; Judgment, ECF No. 78. The Petitioner did not appeal.

II. GENERAL LEGAL PRINCIPLES

A prisoner may challenge a sentence imposed by a federal court, if (1) the sentence violates the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum; or (4) the sentence "is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). The prisoner bears the burden of proving one of those grounds by a preponderance of the evidence. See Jacobs v. United States, 350 F.2d 571, 574 (4th Cir. 1965) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958) ). If he satisfies that burden, the court may vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(b). However, if the motion, when viewed against the record, shows that the petitioner is entitled to no relief, the court may summarily deny the motion. Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

Further, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104–132, § 105, 110 Stat. 1214 (1996), imposes a one-year statute of limitations on § 2255 motions. Section 2255, as amended by AEDPA, provides in relevant part:

A 1–year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of—

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).

Neither party has argued that subsections (1), (2), or (4) apply in this case. The Petitioner's judgment became final on November 24, 2014. See Fed. R. App. P. 4(b) (mandating that a criminal defendant file a notice of appeal within fourteen days after the entry of judgment); Clay v. United States, 537 U.S. 522, 524–25, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003) (stating that a judgment is final when the time for seeking review expires). Therefore, the one-year period to file a § 2255 motion pursuant to § 2255 (f) (1) expired before the Petitioner filed this § 2255 Motion on June 23, 2017, making it untimely under 28 U.S.C. § 2255(f)(1). The Petitioner alleges no unlawful governmental action that prevented him from filing the § 2255 Motion, and the court finds none, so 28 U.S.C. § 2255(f)(2) is inapplicable. Lastly, the Petitioner provides no evidence of newly discovered facts that warrants the application of 28 U.S.C. § 2255(f)(4). Accordingly, the Petitioner must show that the § 2255 Motion is timely pursuant to 28 U.S.C. § 2255(f)(3) in order for the court to consider his claim on the merits. Namely, he must show a "newly recognized" right by the Supreme Court made "retroactively applicable to cases on collateral review." Id.

III. ANALYSIS

The crime to which the Petitioner pleaded guilty, Acceptance of a Bribe by a Public Official, which he now challenges, punishes any person who:

[B]eing a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for ... being influenced in the performance of any official act[.]

18 U.S.C. § 201(b)(2)(A).

The statute further defines "official act" to mean "any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit." 18 U.S.C. § 201(a)(3).

On June 27, 2016, the Supreme Court interpreted the meaning of "official act" for purposes of 18 U.S.C. § 201, thereby narrowing its application. McDonnell v....