United States v. Nelson, CRIMINAL NO 1:09-CR-00211
| Decision Date | 12 December 2013 |
| Docket Number | CRIMINAL NO 1:09-CR-00211 |
| Parties | UNITED STATES OF AMERICA v. ROBERT L. NELSON |
| Court | U.S. District Court — Middle District of Pennsylvania |
(Chief Judge Conner)
Presently before the court is defendant Robert L. Nelson's ("Nelson") pro se motion (Doc. 288) to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 22551 and his motion (Doc. 289) to proceed in forma pauperis. For the reasons that follow, the court will deny Nelson's § 2255 motion and deny his motion to proceed in forma pauperis as moot.
On July 1, 2009, Nelson and co-defendant Steven Ray Moreland ("Moreland") were indicted for possession with intent to distribute and conspiracy to distribute cocaine and cocaine base. (Doc. 1). On September 23, 2009, Nelson was charged in a three-count superseding indictment (Doc. 28) with: (1) possession with intent to distribute 50 grams and more of cocaine base and cocaine, in violation of 21 U.S.C. § 841(a)(1); (2) conspiracy to distribute 50 grams and more of cocaine base andcocaine, in violation of 21 U.S.C. § 846; and (3) being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).2
During the course of post-arrest proceedings, the court provided Nelson with three different court-appointed trial attorneys and one appellate attorney. (See Docs. 55, 76, 220). Nelson's first trial attorney was Attorney Thomas Thornton ("Attorney Thornton"). Nelson filed a motion to remove Attorney Thornton on October 6, 2009. (Doc. 46). The court granted the motion and appointed a second trial attorney, John Yaninek ("Attorney Yaninek"). (See Doc. 55). On December 1, 2009, Nelson filed a motion to remove Attorney Yaninek. (Doc. 64). On January 12, 2010, the court held a hearing and appointed Attorney Jeffrey A. Conrad ("Attorney Conrad") to represent Nelson. (Doc. 76).
Nelson, both pro se and through counsel, filed numerous letters and motions prior to his ultimate guilty plea. (Docs. 69, 94, 100, 104, 106, 112, 121, 122, 124, 145, 146, 147, 148, 161, 162, 171, 175, 179, 180, 181, 182, 185, 186, 187). Ultimately, at Nelson's request, the court removed Attorney Conrad and permitted Nelson to proceed with self-representation. Attorney Conrad was designated as standby counsel. (See Doc. 166). On the morning of December 6, 2010, immediately prior to the start of jury selection, the court reinstated Attorney Conrad as defense counsel,again at Nelson's request. (See Doc. 210). That same day, Nelson entered a guilty plea to all of the offenses in the superseding indictment. (Doc. 195).
On December 16, 2010, Nelson sought to withdraw his guilty plea. (See Doc. 202). The court denied this motion after a hearing. (See Doc. 219). Attorney Laurence C. Kress ("Attorney Kress") was thereafter appointed for sentencing purposes. (See Doc. 220). On September 30, 2011, the court imposed a sentence of 235 months of imprisonment, a $2,000 fine, $300 in special assessments, and five years of supervised release. (See Doc. 280).
Nelson appealed his sentence. See United States v. Nelson, 488 F. App'x 552, 554 (3d Cir. 2012). Attorney Kress represented Nelson in his appeal. See id. Attorney Kress filed an Anders brief which identified the issues that Nelson could raise on appeal and concluded that all lacked merit. Id. The Third Circuit permitted Nelson to file two pro se briefs to raise additional grounds for appeal. Id. at 553-554. The Third Circuit concluded that all issues raised by Attorney Kress and Nelson lacked merit and affirmed the court's judgment of sentence. Id. at 554.
On April 8, 2013, Nelson filed a motion to vacate under 28 U.S.C. § 2255.3 (Doc. 288). The motion is fully briefed and ripe for disposition.
Generally, a defendant may not use a § 2255 motion to relitigate questions previously raised and considered on direct appeal. United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1993); United States v. Orejuela, 639 F.2d 1055, 1057 (3d Cir. 1981). Further, a district court is not required to hold a hearing when the record conclusively shows that a movant is not entitled to relief. United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008); see also United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000) ().
Nelson argues that his sentence should be vacated on seven grounds. Nelson alleges (1) judicial misconduct; (2) ineffective assistance of trial counsel; (3) prosecutorial misconduct; (4) that his guilty plea (Doc. 195) was not knowingly and intelligently entered; (5) ineffective assistance of direct appeal counsel; (6) the denial of his Sixth Amendment right to a speedy trial; and (7) the denial of his right to be present at a suppression hearing. (Doc. 291 at iv).
As a threshold matter, the court notes that it previously disposed of Nelson's challenge to his guilty plea. (See Doc. 219). The Third Circuit specifically affirmed this court's denial of Nelson's motion to withdraw his guilty plea. Nelson, 488 F. App'x at 554 (). The court declines to rehearNelson's argument on a previously litigated matter. See DeRewal, 10 F.3d at 105 n.4.
Similarly, the majority of Nelson's arguments in the instant motion relate to a conspiracy theory that this court previously dismissed as ungrounded. (See Doc. 219 at 12-13). In broad strokes, Nelson alleges that the court, the government, and Nelson's court-appointed attorneys colluded in various ways to conduct a "sham prosecution" of Nelson. As the court noted in its memorandum denying Nelson's motion to withdraw his guilty plea, these allegations are meritless. (See Doc. 219 at 9-13). The Third Circuit affirmed the court's disposition of these claims. See Nelson, 488 F. App'x at 554. To the extent that Nelson's allegations in the instant motion concern this conspiracy theory, the court declines to revisit them. See DeRewal, 10 F.3d at 105 n.4. Thus, the court disposes of Nelson's judicial misconduct,4 prosecutorial misconduct, and ineffective assistance of trial counsel5claims in their entirety. This leaves Nelson's allegations of ineffective assistance of direct appeal counsel, including the failure to raise the alleged denial of his Sixth Amendment right to a speedy trial, and the alleged denial of his right to be present at a suppression hearing. The court will address each issue in turn.
Nelson contends that his appellate counsel was ineffective for failing to raise (1) the conflict of interest of trial counsel; (2) the trial court's abuse of discretion in various matters; (3) the violation of Nelson's Sixth Amendment right to a speedy trial; (4) the legal fact that a defendant cannot conspire with a government informant; and for failing to (5) consult with the defendant on the grounds for direct appeal. (Doc. 291 at 28).
The Sixth Amendment guarantee of effective assistance of counsel extends to the first appeal as of right. Lewis v. Johnson, 359 F.3d 646, 656 (3d Cir. 2004). The two-pronged Strickland v. Washington, 466 U.S. 668, 686 (1984), standard applies to a review of appellate counsel's decisions. See Lewis, 359 F.3d at 656. Under the first prong of Strickland, a defendant must show that counsel's performance fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687. Second, the defendant must show that counsel's deficient performance prejudiced the defendant. Id. at 693. After consideration of Nelson's contentions, the court finds that Nelson is unable to establish that Attorney Kress's appellate performance was ineffective under either prong of Strickland.
Attorney Kress filed an Anders brief and did not raise Attorney Thornton's alleged conflict of interest and trial counsels' assorted alleged misconduct. However, the Third Circuit granted Nelson the opportunity to file a pro se brief. Nelson, 488 F. App'x at 553. Nelson raised these issues in his pro se brief. Id. Nelson also argued that the trial court abused its discretion in various ways in this brief. The Third Circuit found these claims to lack merit. See Nelson, 488 F. App'x at 554. Thus, Nelson cannot establish that his counsel's failure to raise these arguments on appeal was deficient or that such failure prejudiced him under Strickland.6
Nelson contends that Attorney Kress failed to raise an alleged violation of Nelson's right to a speedy trial; Nelson also raises this alleged violation as a separate claim for relief. Nelson argues that Attorney Conrad procured four continuances which allowed the court and the government to conceal their alleged misconduct and Attorney Thornton's conflict of interest.
The Sixth Amendment guarantees all criminal defendants the right to a speedy trial. U.S. CONST. Amend. VI. However, by knowingly and voluntarilypleading guilty, Nelson waived his right to claim a violation of his right to a speedy trial. See United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992); Lebowitz v. United States, 877 F.2d 207, 209 (2d Cir. 1989); United States ex rel. Jenkins v. Hendricks, 405 F.2d 182, 183 (3d Cir. 1968).
Moreover, Nelson's claim is clearly without merit. The vast majority of delay in this case is attributable to Nelson. (See Docs. 22, 25, 52, 60, 81, 88, 99, 116). Nelson's assertion that Attorney Conrad procured the continuances in connection with an alleged conspiracy between the court, the government, and defense counsel is simply baseless. Indeed, it is clear from the record that Attorney Conrad procured several continuances in order to obtain further discovery from the government and to prepare for trial. (See...
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