IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

: NO. 03-553-1

v. :

: CIVIL ACTION

STEPHEN IANIERI : NO. 14-2318

MEMORANDUM

Bartle, J. June 26, 2014

Defendant Stephen Ianieri has filed a pro se motion

under 28 U.S.C. § 2255 to vacate, set aside or correct his

sentence.

In 2004, Ianieri pleaded guilty to three counts of bank 

fraud in violation of 18 U.S.C. § 1344. The court sentenced him

to 15 months in prison and ordered him to pay $20,000 in

restitution. A term of five years of supervised release was also

imposed.

On December 2, 2009, in the last year of his supervised

release, Ianieri's probation officer filed a petition alleging

numerous violations of his supervised release, the most serious

of which was an arrest in New Jersey for illegally possessing two

rifles loaded with hollow point bullets. At a December 7, 2009

hearing, the court held in abeyance any decision with respect to

the New Jersey state charges since they were still pending. By

agreement of the parties, the court modified the conditions of

his supervised release and placed him on home confinement for

three months with electronic monitoring although he was permitted

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to work and obtain mental health treatment. The hearing was

otherwise continued until the New Jersey state gun charges were

resolved.

In May 2010, the probation officer filed an amended

petition setting forth two additional violations involving

stalking, theft by unlawful taking, and harassment in Otisville,

Pennsylvania and for failure to continue his participation in

mental health treatment. Per agreement of the parties, the court

approved modified conditions of supervised release and again

continued the hearing concerning the open New Jersey charges.

On July 4, 2010, Ianieri's supervised release expired. 

On October 10, 2010, Ianieri was charged in Bucks County,

Pennsylvania with theft by deception, receiving stolen property,

and other offenses.

On March 9, 2011, Ianieri was found guilty by a jury in

Hunterdon County, New Jersey of illegally possessing firearms and

hollow point ammunition and was sentenced in July to five years

in prison. On December 5, 2011, this court held a hearing on the

December 2, 2009 petition filed by his probation officer

concerning the New Jersey offenses now that he had been found

guilty and sentenced. A question arose as to what effect any

revocation of supervised release would have on programs that

might be available to him in the New Jersey prison system. The

hearing was continued so that the parties could obtain more

information for the court on this subject. The court was also

interested in what was happening with respect to the Bucks County

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charges as they might also have an effect on his situation in New

Jersey.

The court held a final revocation hearing on

February 27, 2012. At that time, the court learned that Ianieri

would have to serve his full five year sentence in New Jersey. 

The court was also informed that he had been convicted of theft

by deception and receiving stolen property in Bucks County and

received a sentence which was concurrent with his New Jersey

sentence. The court was advised that he would be eligible for

drug and alcohol treatment in New Jersey regardless of whether

this court imposed a consecutive or concurrent term of

imprisonment for the violation of his supervised release.

At the hearing, the court imposed a below the

guidelines sentence of 18 months to run consecutively to the

sentence of imprisonment that he was already serving in New

Jersey. Before sentencing, the court commented he had violated

his supervised release not only because of his New Jersey crimes

but also because of his Bucks County offenses. These latter

offenses had occurred after his supervised release had expired.

Ianieri appealed. The Court of Appeals concluded that

the Bucks County crimes should not have been considered as

constituting any part of his supervised release violation. While

the Court recognized that this court could have relied on the

Bucks County crimes as a factor under 18 U.S.C. § 3553(a) when

sentencing Ianieri, this court did not explicitly say it was

doing so. The Court of Appeals reversed and remanded for

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resentencing without this court's considering the Bucks County

crimes as a violation of supervised release. U.S. v. Ianieri,

534 F. App'x 124 (3d cir. 2013).

On remand, the court held a hearing on October 28, 2013

and sentenced Ianieri to 12 months in prison to run consecutively

to his New Jersey sentence. Ianieri appealed but pursuant to a

motion by his counsel, the Court of Appeals dismissed the appeal

on March 28, 2014. This pro se § 2255 motion followed.

Ianieri claims that his counsel was ineffective in

representing him with respect to his violation of supervised

release concerning his New Jersey crimes. Under Strickland v.

Washington, 466 U.S. 668 (1984), he must establish: (1) that his

"counsel's performance was deficient," that is, that it fell

below "an objective standard of reasonableness"; and (2) that

"the deficient performance prejudiced him." Id. at 687-88. In

order to show prejudice, Ianieri must demonstrate a "reasonable

probability that but for counsel's unprofessional error, the

result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence

in the outcome." Id. at 694. The Supreme Court cautioned that

"[j]udicial scrutiny of counsel's performance must be highly

deferential." Id. at 689.

Ianieri first argues that by the time of the

December 5, 2011 hearing the court had already adjudicated the

violation of his supervised release concerning his New Jersey

crimes and that his counsel was ineffective for not calling this

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to the court's attention so that it would not impose any further

sentence for this specific violation. Ianieri is simply wrong on

the facts. The court had held in abeyance any adjudication of

this violation pending the outcome of his New Jersey case. 

Moreover, there would have been no reason for the Court of

Appeals to remand for resentencing had the violation been

resolved before February 2012.

Ianieri also argues that his counsel was ineffective

for not arguing for a sentence of one year and one day so that he

would have received a 15% credit for good time. See 18 U.S.C.

§ 3624. This argument is without merit. Regardless of any

possible deficiency of his counsel, there was no prejudice. The

court, after considering the various relevant factors, would

still have imposed this same one year term of incarceration

which, we note, was below the recommended guideline sentence.

Accordingly, the motion of Stephen Ianieri under 28

U.S.C. § 2255 is being denied, and no certificate of

appealability will issue.

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