United States v. Noble

• Decision Date: 08 July 2013
• Docket Number: Criminal No. 06-10 Erie,Civil No. 11-21 Erie
• Parties: UNITED STATES OF AMERICA, v. ROBERT EARL NOBLE
• Court: U.S. District Court — Western District of Pennsylvania

UNITED STATES OF AMERICA,

v.ROBERT EARL NOBLE

Civil No. 11-21 Erie

Criminal No. 06-10 Erie

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Dated: July 8, 2013

Chief Judge Sean J. McLaughlin

MEMORANDUM OPINION AND ORDER

McLAUGHLIN, SEAN J., Chief Judge

This matter is before the Court upon Defendant Robert Earl Noble's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. [Dkt. 81]. Also before the Court is a motion styled a "Motion to Amend" in which Defendant essentially seeks leave to supply additional facts and argument in support of his Section 2255 motion. [Dkt. 87]. In his motions, Defendant contends that both trial and appellate counsel were ineffective and that the Assistant United States Attorney engaged in prosecutorial misconduct. The government responds that Defendant's motion is untimely, procedurally barred, meritless, and that Defendant has waived his right to file a motion collaterally attacking his sentence. For the reasons which follow, Defendant's motion is denied.

I. BACKGROUND

On February 15, 2006, a federal grand jury returned an indictment charging Defendant with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count One), and making counterfeit obligations or securities, in violation of 18 U.S.C. § 471 (Count Two). On July 31, 2007, Defendant pleaded guilty to Count One pursuant to a written plea agreement. Following a sentencing hearing on December 17, 2007, this Court sentenced Defendant to 96 months imprisonment and three years of supervised release.

Prior to entering his plea agreement, Defendant had filed a motion to suppress evidence gathered by Pennsylvania State Parole agents during a search of his house, arguing that the search and his subsequent arrest were not supported by reasonable suspicion. The events leading up to the search were summarized by the Third Circuit as follows:

In 2001, Noble was paroled after having been convicted and sentenced for conspiracy to commit theft by unlawful taking and simple assault.

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Noble gave authorities cause to believe that he had violated conditions of his parole prior to his arrest on October 18, 2005. 2005. In February of 2005, he was issued a written warning for for failing to notify his parole officer, Agent Divell, of a change in in his employment status and for failing to attend a drug and alcohol counseling session. In March of 2005, he was issued another written warning after having traveled out of state without permission and having been cited by the state police forfor operating a motor vehicle without a license. On October 17, 17, 2005, Noble's ex-girlfriend contacted Divell and advised him him that she had seen Noble at his residence with a handgun, a handgun, a cell phone, and illegal drugs. She also informed Divell that Noble had stolen her car and that she had seen him him driving. The same day, Divell and another parole officer conducted surveillance at Noble's house. During the surveillance they witnessed Noble get into a car, but, when he he saw the parole officers, he got out of the car and went back back inside the house. Finally, Divell confirmed with the local police department that Noble had been issued two traffic citations for driving without a license.

On October 18, 2005, Agent Divell and accompanying state police officers went to Noble's residence to arrest him for parole violations. Noble's girlfriend let them in, and Divell and the officers saw Noble sitting on a couch with two cell phones on a coffee table in front of him. Divell arrested Noble for violating his parole by driving without a license and by possessing cell phones. In plain view, another parole officer spotted counterfeit money in a trash can in the living room. Then Divell and another parole officer began to search the home for evidence of additional parole violations, and Divell found a handgun in a shoebox under Noble's bed. After discovering the gun, Divell obtained a search warrant and, with the assistance of federal agents and local police, searched the remainder of the home, finding marijuana packets and more evidence of counterfeiting.

United States v. Noble, 326 Fed. Appx. 125, 126-27 (3rd Cir. 2009). This Court denied Defendant's motion to suppress on July 26, 2007. As a condition of his plea plea agreement, Defendant preserved his right to appeal the denial of the motion to to suppress. On appeal, the Third Circuit affirmed, concluding that Defendant's arrest and the search of his home were each supported by both reasonablesuspicion and probable cause. See Noble, 326 Fed. Appx. at 128. On October 13, 13, 2009, the United States Supreme Court denied Defendant's Petition for Writ of of Certiorari.

At some point during the spring of 2010, Petitioner obtained a 28 U.S.C. § 2255 application from the Clerk of Courts and began to research and draft his Section 2255 motion. On October 4, 2010, nine days before the expiration of the one-year statutory limitations period set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Defendant was transferred without notice from his cell at the United States Penitentiary-Canaan to the Federal Transfer Center in Oklahoma City, Oklahoma. On or about November 1, 2010, Defendant was transferred from FTC-Oklahoma to the United States Penitentiary in Atlanta, Georgia. On or about November 16, 2010, Defendant was transferred from USP-Atlanta to his final destination at the United States Penitentiary-Lee in Jonesville, Virginia.

During these transfers, Defendant's possessions, including his "nearly completed" Section 2255 motion and legal materials, were removed from him and packed separately for transfer. See Letter from Defendant, 11/1/10 [Dkt. 79]. As a As a result, on October 13, 2010, the last day on which Defendant could have filed a filed a timely Section 2255 motion, Defendant sent a letter to the Clerk of Courts requesting an extension of time. Id. On October 21, 2010, the Clerk of Courtsresponded by sending Defendant a new 28 U.S.C. § 2255 application. Id. On November 1, 2010, Defendant wrote a second letter to the Clerk of Courts clarifying clarifying that he was requesting an extension of time, rather than a fresh application application form. Id. On November 3, 2010, this Court entered an order granting granting Defendant's request for an extension of time and indicating that he would would have until February 3, 2011 to file his motion. See Order Granting Motion for for Extension of Time, 11/03/2010. Immediately thereafter, the Court entered a second order vacating the previous order and a third order directing the government government to respond to Petitioner's request for an extension of time. See Order Order Vacating Order Granting Motion for Extension of Time, 11/03/2010, and Order Order to Respond, 11/03/2010. Defendant received all three orders simultaneously simultaneously on December 6, 2010. See Defendant's Reply Brief, p. 23. On December 17, 2010, Defendant's personal property, including his legal materials and and Section 2255 motion, were returned to him at USP-Lee following his transfer.

On January 24, 2011, Defendant filed the instant Section 2255 Motion. [Dkt. 81]. The government responded on February 25, 2011, and Defendant filed reply briefs on March 29, 2011 [Dkt. 86] and April 5, 2012 [Dkt. 87]. This matter is ripe for review.

II. STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside or correct a sentence "upon the ground that the sentence was 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. When a motion is made pursuant to 28 U.S.C. § 2255, the question of whether to order a hearing is committed to the sound discretion of the district court. In exercising that discretion, the court must accept the truth of the petitioner's factual allegations unless they are clearly frivolous on the basis of the existing record. United States v. Day, 969 F.2d 39, 41-42 (3rd Cir. 1992). Further, the court must order an evidentiary hearing to determine the facts unless the motion and files and records of the case show conclusively that the petitioner is not entitled to relief. Id.

Here, upon consideration of Defendant's petition, the government's response thereto, and the pleadings and documents of record, I conclude that no hearing is warranted because Defendant's claims can be entirely resolved based upon the current record.

III. DISCUSSION

In his motion to vacate, Defendant primarily contends that his trial counsel was ineffective in failing to present defense witnesses or otherwise effectively impeach the government's witnesses. He further asserts that his appellate counsel was ineffective in failing to persuade the Third Circuit Court of Appeals to overturn this Court's ruling on the suppression motion. Defendant also contends that the prosecutor acted in bad faith during the suppression hearing by presenting perjured testimony and withholding exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Finally, Defendant contends that this Court erred during his Rule 11 colloquy by failing to adequately explain the impact of the appellate waiver provisions contained in his plea agreement.

In response, the government contends that Defendant's is untimely, that he has waived his right to file any collateral attack motions, and that each of the claims he is attempting to raise are procedurally barred and lack merit. Each of these arguments will be addressed in turn.

A. Timeliness

A motion for collateral relief pursuant to Section 2255 is subject to the one-one-year limitations period set forth in the AEDPA. Kapral v. United States, 166 F.3d 565, 567 (3rd Cir. 1999). As a general matter,...