Nickens v. United States, Civ. No. 09-4278 (PGS)
| Decision Date | 12 September 2011 |
| Docket Number | Civ. No. 09-4278 (PGS) |
| Parties | GILBERT NICKENS, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
This matter comes before the Court upon the August 17, 2009 motion of petitioner Gilbert Nickens ("Petitioner") to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 1). Respondent the United States of America (the "Government") filed an answer on November 2, 2010. (Doc. No. 20) Having considered the parties' submissions without oral argument pursuant to Federal Rule of Civil Procedure 78, this Court will deny Petitioner's motion.1
On June 27, 2007, an indictment was issued by a grand jury in the District of New Jersey that charged Petitioner with dealing in firearms without a license in violation of 18 U.S.C. § 922 (a)(1)(A) & 2, and possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922 (g)(1) & 2. (Gov.'s Answer Ex. A. ("Plea Agreement") at 1). On August 21, 2007, pursuant to a PleaAgreement, Petitioner entered a plea of guilty. (Id. Ex. B. ("Plea Hearing Transcript") at 2). During the Rule 11 hearing, the Hon. Garrett E. Brown, Jr., U.S.D.J., then-presiding, reviewed Petitioner's answers to the Rule 11 form (Id. Ex. C.) with Petitioner.2 (Id. Ex. B, at 6:2-7:4.). The Government and Petitioner also entered into a cooperation agreement. (Id. Ex. D.). On March 3, 2008, in United States v. Sean L. Hagins, 06-cr-485 (LDD), in the United States District Court in the Eastern District of Pennsylvania, Petitioner testified as a witness for the Government. (Id. Ex. E.). Prior to Petitioner's sentencing, the Government filed a motion pursuant to U.S.S.G. § 5K1.1 that set forth the assistance provided by Petitioner in the prosecution of others. At sentencing on April 1, 2008, the District Court granted the Government's motion, and departed downward five levels to a Sentencing Guideline level 25, with a criminal history category VI (14 points). As such, Petitioner was sentenced to a term of imprisonment of 114 months instead of a range of 168 - 210 months. (Id. Ex. F. at 16:3-16:14.). On April 11, 2008, Petitioner appealed the final judgment of the District Court, but later withdrew that appeal on August 25, 2008.
On or about August 17, 2009, Petitioner filed the instant motion to vacate, set aside or correct his sentence pursuant to Title 28 U.S.C. § 2255. (Doc. No. 1). Subsequently, in response to the Court's letter issued pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999), Petitioner informed the District Court that he desired his § 2255 motion ruled upon as filed. (Doc. No. 3).Ultimately, the Government filed its Answer on November 2, 2010 (Doc. No. 20), and Petitioner replied on November 16, 2010. (Doc. No. 21).
Petitioner's §2255 motion is based on 3 grounds. First, Petitioner contends that his right to due process of law as guaranteed by the Fifth Amendment to the United Stated Constitution was denied when the prosecution promised an unrealistic sentence of 60 months imprisonment. Second, he argues that his right to effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution was denied when his counsel thought a sentence of 60 months imprisonment would be incurred. Third, Petitioner claims that both issues led him to enter a constitutionally invalid plea; and he now argues that he is entitled to an evidentiary hearing on these allegations. (Petitioner's Memorandum of Law in Support of Motion to Vacate, Set Aside or Correct Sentence ( ) at 1). In its answer to Petitioner's §2255 motion, the Government asserts that Petitioner's Fifth Amendment claim is meritless. With regard to Petitioner's Sixth Amendment claim, the Government argues that Petitioner has failed to satisfy the legal test for ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). Finally, the Government argues that Petitioner is not entitled to an evidentiary hearing because his allegations are frivolous based upon the record.
Having reviewed the parties' submissions, this Court agrees with the Government and will deny Petitioner's petition for the following reasons.
By its terms, 28 U.S.C. § 2255 permits a court to vacate, correct or set aside a sentence that:
[w]as imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .
28 U.S.C. § 2255. Generally, "claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro v. United States, 538 U.S. 500, 504 (2003). However, the Third Circuit has expressed a strong preference that an ineffective assistance of counsel claim be brought before the district court in the first instance in a motion under Title 28 U.S.C. § 2255. See United States v. DeRewal, 10 F. 3d 100, 103 (citing United States v. Rieger, 942 F.2d 230, 235 (3d Cir. 1991)). Since it is appropriate to raise a claim of ineffective assistance of counsel under § 2255, rather than on direct appeal, "the failure to raise such a claim on direct appeal should not be treated as a procedural fault." Id. This Court must accept the truth of the petitioner's factual allegations unless they are clearly frivolous based on the existing record. Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d. Cir. 1989).
In his present petition, Petitioner argues that the prosecution engaged in misconduct during plea negotiations because Petitioner asserts that he was promised by the prosecution that a guilty plea would result in a 60 month term of incarceration, should assistance be provided to law enforcement personnel in the prosecution of other defendants. This Court concludes that this claim is meritless. Indeed, Petitioner was not denied his right to due process of law as guaranteed by the Fifth Amendment to the United States Constitution because the Government did not engage in misconduct during plea negotiations. Therefore, Petitioner's plea was constitutionally valid. Not only wasPetitioner's plea knowing and voluntary, but the evidence in the record also contradicts Petitioner's claims.
In order for a plea to be accepted, there must be a showing of a knowing and intelligent waiver of the defendant's constitutional rights (e.g. privilege against compulsory self-incrimination, right to trial by jury etc.). See Boykin v Alabama, 395 U.S. 238 (1996). A guilty plea "cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts." McCarthy v. United States, 394 U.S. 459, 466 (1969). Thus, Federal Rule of Criminal Procedure 11(b) requires a court to advise the defendant of his rights and to ascertain whether he waives those rights. The rationale for this rule is to assure, on the record, that the defendant is aware of the consequences of his plea. Consequently, "[a] habeas petitioner faces a heavy burden in challenging the voluntary nature of his guilty plea, for the plea hearing is specifically designed to uncover hidden promises or representations as to the consequences of a guilty plea." Lesko v. Lehman, 925 F.2d 1527, 1537 (3d Cir.1991); Zilich v. Reid, 36 F.3d 317, 320-21 (3d Cir. 1994). "A collateral challenge to a guilty plea may be summarily dismissed when [a petitioner's] allegations . . . are inconsistent with the bulk of his conduct, and when he offers no detailed and specific facts. . . ." Lesko, 925 F.2d 1527, 1537-38. Furthermore, "bald assertions and conclusory allegations do not afford sufficient ground for an evidentiary hearing." Mayberry v. Petsock, 821 F.2d 179, 185-86 (3d Cir. 1987). The Supreme Court has also made clear that a petitioner collaterally attacking his plea "may not ordinarily repudiate' statements made to the sentencing judge when the plea was entered." Blackedge v. Allison, 431 U.S. 63, 71 (1977).
The evidence in the record demonstrates that Petitioner's guilty plea was knowing and voluntary. Petitioner's claims are wholly contradicted by his sworn statements during a Rule 11hearing. Accordingly, Petitioner's previously sworn statements in court, and particularly those given during his plea colloquy, pose a "formidable barrier" to the success of his claim, Blackledge, 431 U.S. 63, 74, because "[s]olemn declarations in open court carry a strong presumption of verity." Id.; see Lesko v. Lehman, 925 F.2d 1527, 1537 (3d Cir.1991) ().
Petitioner appeared before the District Court on August 21, 2007 for a Rule 11 hearing. During the plea colloquy, Chief Judge Brown engaged Petitioner regarding the basis and the voluntariness of his plea. Petitioner agreed to all of the answers in the Rule 11 form and stated that he would give the same answers if he were asked those questions in open court. (Gov's Ans. Ex. B at 6:19-7:1). Twice during the Rule 11 hearing, Petitioner provided unequivocal confirmation that he understood that the Plea Agreement contained all of the terms of the deal that his counsel negotiated for him and that no one made any promises or offers to him of anything, other than what appears in his Plea Agreement. (Id. Ex. B at 10:10-10:12; 18:8-18:11). Petitioner also acknowledged that his sentence was entirely within the discretion of the sentencing judge so long as it does not exceed statutory maximum penalties. (Id. Ex. B. at 14:19-16:11). Thus, for the forgoing reasons, this Court concludes that Petitioner's plea was knowing and voluntary.
Furthermore, the evidence in the record contradicts Petitioner's...
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