United States v. Sedlak, CRIMINAL NO. 1:CR-09-079-01

• Decision Date: 10 March 2015
• Docket Number: CRIMINAL NO. 1:CR-09-079-01
• Court: U.S. District Court — Middle District of Pennsylvania
• Parties: UNITED STATES OF AMERICA v. ROGER SEDLAK, Defendant

UNITED STATES OF AMERICA v. ROGER SEDLAK, Defendant

CRIMINAL NO. 1:CR-09-079-01

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

March 10, 2015

(Judge Caldwell)

MEMORANDUM

I. Introduction

Defendant, Roger Sedlak, has filed a pro se motion under 28 U.S.C. § 2255 to vacate his conviction and sentence, raising numerous grounds for relief.

On March 4, 2009, Defendant was named in a three-count indictment charging him with: (1) a single conspiracy under 18 U.S.C. § 371 to violate 18 U.S.C. § 2421, interstate transportation with the intent to engage in prostitution, and to violate 18 U.S.C. § 2422(a), persuading, inducing, coercing and enticing interstate travel to engage in prostitution; (2) a substantive offense of violating section 2421; and (3) a substantive offense of violating section 2422(a).¹ Also named in the indictment were Defendant's wife, Marianna Sedlak, and Kelli Kaylor.

In November 2009, an eighteen-count superseding indictment was filed. This indictment repleaded the original three charges and added seven counts againstDefendant of violating 18 U.S.C. § 1028A(a)(1), aggravated identity theft; seven counts of violating 18 U.S.C. § 1343, wire fraud; and one count of violating 18 U.S.C. § 1956(a)(1)(B)(i), money laundering.

In a written plea agreement, Defendant agreed to plead guilty to four counts of the superseding indictment, Counts 1, 3, 5 and 18. Count I was the conspiracy offense described above. Count 3 charged Defendant with the substantive offense of violating section 2422(a) by "knowingly persuad[ing], induc[ing], entic[ing] and coerc[ing] . . . an individual to travel in interstate commerce to engage in prostitution . . . ." (Doc. 111, Superseding Indictment, p. 6). Count 5 charged Defendant with violating 18 U.S.C. § 1028A(a)(1), aggravated identity theft, by "possess[ing] and us[ing], without lawful authority, a means of identification of another person during and in relation to the commission of wire fraud, knowing that the means of identification belonged to another person . . . ." (Id., p. 7). Count 18 charged Defendant with a violation of 18 U.S.C. § 1956(a)(1)(B)(i), money laundering, by engaging in "financial transactions affecting interstate . . . commerce which involved the proceeds of . . . transport[ing] . . . individuals in interstate commerce for the purpose of prostitution, knowing that the transactions were" intended to "disguise," in part, the "source, ownership and control of the proceeds . . . ." (Id., p. 10).

Defendant was sentenced to an aggregate term of 145 months' imprisonment and to ten years of supervised release. A fine of $5,000 was also imposed.His conviction and sentence were affirmed on direct appeal. See United States v. Sedlak, 529 F. App'x 253 (3d Cir. 2013)(nonprecedential).

II. Applicable Law

Under 28 U.S.C. § 2255, a federal prisoner may challenge his conviction or sentence as being in violation of the federal Constitution or federal law. See Massey v. United States, 581 F.3d 172, 174 (3d Cir. 2009)("A motion to vacate sentence pursuant to 28 U.S.C. § 2255 is the means to collaterally challenge a federal conviction or sentence"). See also 28 U.S.C. § 2255(a)(providing that a defendant can challenge the conviction, in part, "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States").

A motion for 2255 relief cannot rest upon vague and conclusory allegations. United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)(vague and conclusory allegations are insufficient for a section 2255 motion); Johnson v. United States, 294 F. App'x 709, 710 (3d Cir. 2008)(nonprecedential). See also Rule 2(b)(2) of the rules governing section 2255 proceedings ("[t]he motion must . . . "state the facts supporting each ground" for relief). A district court may dispose of such allegations without further investigation. Thomas, 221 F.3d at 437. It might also consider an amendment that supplies the necessary specificity. Id. at 436.

In deciding a 2255 motion, the court need not consider clams that have already been decided on direct appeal. See United States v. Travillion, 759 F.3d 281, 288 (3d Cir. 2014)("issues resolved in a prior direct appeal will not be reviewed again byway of a § 2255 motion"); United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1993)(generally section 2255 "may not be employed to relitigate questions which were raised and considered on direct appeal")(quoting Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986)); United States v. Orejuela, 639 F.2d 1055, 1057 (3d Cir. 1981)("Once a legal argument has been litigated and decided adversely to a criminal defendant at his trial and on direct appeal, it is within the discretion of the district court to decline to reconsider those arguments if raised again in collateral proceedings under 28 U.S.C. § 2255.").

III. Discussion

Defendant presents the following claims, principally through his 2255 motion, but also through a motion incorporated by reference in his 2255 motion, through his reply brief, and through motions to amend and to supplement the 2255 motion. We recognize that normally some of these claims would not be cognizable in 2255 proceedings as they should have been raised on direct appeal, and indeed some were. However, given the number of issues raised, and that some form the bases of ineffective-assistance-of-counsel claims, we think it best to simply address them all.²

A. The Claim that Defendant's Sixth Amendment Right to Counsel Was Denied on Direct Appeal

Defendant claims that the Third Circuit denied him his right to counsel on his direct appeal. He maintains he suffered prejudice as a result, including the failure of the Third Circuit to take his pro se appellate brief seriously which resulted in the dismissal of his pro se arguments without opinion. (Doc. 381, ECF pp. 3-4). He also claims he was denied his right to counsel for the filing of a petition for a writ of certiorari with the United States Supreme Court. (Id., ECF p. 3).

We provide some background on this claim. Counsel who represented Defendant before this court also represented Defendant on direct appeal. Counsel filed a brief on Defendant's behalf and a reply brief to the government's opposition brief. Sedlak, supra, 529 F. App'x at 254. The Third Circuit docket reveals that Defendant filed a motion for new counsel, which the Third Circuit denied on May 17, 2012. United States v. Sedlak, No. 11-2892 (3d Cir.). Defendant then filed a motion to proceed pro se, which was granted on June 13, 2012, in the same order granting counsel's motion to withdraw. Thereafter, on July 12, 2012, the Third Circuit denied Defendant's motion to appoint standby counsel, and on November 19, 2012, denied Defendant's motion for counsel. On January 30, 2013, the court of appeals denied another motion for appointment of counsel.

We reject this claim. In regard to the direct appeal, the docket shows Defendant invoked his right to self-representation, so he could not have been denied his right to counsel. In regard to a certiorari petition, Defendant has no constitutional right tocounsel on such a petition. See Ross v. Moffitt, 417 U.S. 600, 616-17, 94 S.Ct. 2437, 2447, 41 L.Ed.2d 341 (1974); In re Morton, 491 F. App'x 291, 293 n.4 (3d Cir. 2012)(nonprecedential); Richards v. United States, 406 F. App'x 447, 447 (11th Cir. 2010)(nonprecedential); United States v. Fernandez, 397 F. App'x 433, 436 (10th Cir. 2010)(nonprecedential); Clark v. Johnson, 227 F.3d 273, 283 (5th Cir. 2000).

B. Defendant's Claim that the Government Violated His Sixth Amendment Right to Joint Representation With His Co-Defendant Spouse, Marianna Sedlak, and that the Government Intruded into the Attorney-Client Relationship and the Marital Relationship

Defendant claims that he and his co-defendant spouse had agreed on joint representation but that the prosecutor told the four lawyers who represented Defendant at different times that he would not allow it, thereby violating his right to a lawyer of his choice. (Doc. 381, ECF pp. 7-9). We reject this claim as it has already been decided on direct appeal. As the government notes, Defendant raised it on direct appeal in his pro se appellate brief filed on January 3, 2013, at pp. 60-64, and the claim was rejected by the Third Circuit as meritless. 529 F. App'x at 256.³

Defendant also claims that the government violated due process by intruding into the privileged communications between a husband and wife. (Doc. 381, ECF pp. 9-11). He asserts the government's conduct was so egregious that it warrants not only a vacatur of his conviction and sentence but also dismissal of the indictment.

We disagree. Defendant bases this claim on the monitoring of his telephone conversations while he was being detained pre-trial at the Adams County Prison.⁴ Defendant was advised these calls were being recorded. Defendant therefore cannot claim any improper intrusion into the marital relationship based on the government's use of these recorded conversations.⁵

Nor do we find any merit in Defendant's assertion that the government's motivation for opposing his release pretrial was for the purpose of being able to eavesdrop on his conversations with his wife. At the several hearings held to decide on Defendant's pretrial release, the government argued he was a flight risk, and the court agreed. Defendant's argument that the government acted improperly by seeking his wife's services also fails. His wife was a defendant in the case as well. Seeking her "services" was merely seeking her cooperation, as is done in many criminal cases.

C. The Claim that Defendant Was Improperly Denied the Benefit of the Alleyne Case in the Calculation of his Guidelines Range and the Imposition of the Minimum Twenty-Four Month Sentence for the Aggravated Identity Theft Offense

Defendant maintains that the court improperly resolved a number of sentencing issues in violation of Alleyne v. United States, ___ U.S. ___...