IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

_____________________________________

UNITED STATES OF AMERICA

v.

PRESTON LIT

_____________________________________

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:

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CRIMINAL ACTION

NO. 04-619

CIVIL ACTION 

NO. 07-903

DuBOIS, J. JUNE 12, 2007

M E M O R A N D U M

I. INTRODUCTION

Petitioner Preston Lit is incarcerated in the Federal Medical Center (FMC) Devens in

Devens, Massachusetts. On March 6, 2007, petitioner filed a counseled Motion to Vacate, Set

Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (“Section 2255 Motion”). Presently

before the Court is the government’s Motion to Dismiss the § 2255 Motion. For the reasons set

forth below, the Court concludes that the waiver provision of petitioner’s Guilty Plea Agreement

precludes petitioner from collaterally attacking his conviction or sentence under § 2255. Thus,

the government’s Motion to Dismiss is granted and petitioner’s § 2255 Motion is dismissed with

prejudice. 

II. BACKGROUND

Petitioner Preston Lit suffers from mental health disorders, including schizo-affective

disorder and bipolar type, which are controlled by medication. Tr. 8/10/05 at 52. He

“decompensates rapidly when not on medication.” Id. 

On February 18, 2004, petitioner placed “a device that purported to be and looked to be

and was received by the people who looked at it to be a bomb” in a men’s bathroom in the

Case 2:04-cr-00619-JD Document 103 Filed 06/12/07 Page 1 of 25
 At the May 23, 2005 change of plea hearing, petitioner admitted that he committed the 1

acts described in the Government’s Change of Plea and Sentencing Memorandum. Tr. 5/23/05 at

59. 

 The factual basis of Count 2 is not at issue in petitioner’s § 2255 Motion. 2

 Rule 11(c)(1)(C) provides, in relevant part, that: “the plea agreement may specify that 3

an attorney for the government will . . . agree that a specific sentence or sentencing range is the

appropriate disposition of the case . . . (such a recommendation or request binds the court once

2

Philadelphia International Airport. Tr. 5/23/05 at 60. The fake bomb was a white cardboard

shoe box and two notes attached to the box. It was described as follows:

White nylon cord was wrapped around the box and two pairs of blue and yellow

handled pliers were attached to the box with the nylon cord. There were also three

nails visible that were embedded into the top of the box. Written on the outside of

the box in red and blue ink were the words, “Al Quada Airport Device, (the incorrect

spelling of the name; the correct spelling is Al Qaeda).” Written in pencil on the

outside of the box were the words, “15 lbs C-4, 3 lbs TNT, 2 blast caps, 1 silent

timer.” Also drawn on the box in pencil was a clock face set at 7:00. Attached to the

box was a note which read; “all U.S. airspace closed to commercial traffic from 2-20-

04 noon, to 2-28-04 noon, only military aircraft may fly.” The note was signed,

“Preston.” A second note, written on a National Parks Conservation Association

mailer, was attached to the outside of the box. It was dated “14 Feb 2004” and read;

“Dear George W., get the fuck out of Iraq now. Be all gone by April 15th at noon

est. George Washington, Saddam Hussein, Jesus II.” 

Govt’s Change of Plea & Sentencing Mem. at 6. 

1

On May 23, 2005, petitioner pled guilty pursuant to a Guilty Plea Agreement to one count

of threatening to use a weapon of mass destruction in violation of 18 U.S.C. §§ 2332a(a)(2) and

(3) (Count 1) for the planting of the fake bomb and one count of malicious damage or destruction

of a building with fire in violation of 18 U.S.C. § 844(i) (Count 2).2

A. Guilty Plea Agreement and Waiver of Right to Collateral Attack

Petitioner’s Guilty Plea Agreement was a “C plea” under Federal Rule of Criminal

Procedure 11(c)(1)(C). Pursuant to the C plea, the government recommended a sentence of, 3

Case 2:04-cr-00619-JD Document 103 Filed 06/12/07 Page 2 of 25
the court accepts the plea agreement).” Fed. R. Crim. P. 11(c)(1)(C). 

 As stated below, the Court accepted the C plea at the sentencing hearing on August 10, 4

2005. Tr. 8/10/05 at 16, 44.

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inter alia, nine years imprisonment and five years supervised release. In exchange for the 4

recommended sentence, petitioner agreed to waive his appellate rights and his rights to

collaterally attack his conviction and sentence. Specifically, petitioner’s Guilty Plea Agreement

provided as follows: 

In exchange for the undertakings made by the government in entering this plea

agreement, the defendant voluntarily and expressly waives all rights to appeal or

collaterally attack the defendant’s conviction, sentence, or any other matter relating

to this prosecution, whether such a right to appeal or collateral attack arises

under . . . 28 U.S.C. § 2255, or any other provision of law. 

Guilty Plea Agreement ¶ 9, filed as Govt’s Change of Plea & Sentencing Mem., Ex. A

(hereinafter “Guilty Plea Agreement”). In addition, petitioner signed an Acknowledgment of

Rights, which stated “I understand that if I plead guilty, I have waived my right to appeal, except

as set forth in paragraph 9 of the guilty plea agreement.” Id. Attachment ¶ 6.

B. Change of Plea Hearing

At the May 23, 2005 change of plea hearing, the Court engaged in an colloquy with

petitioner about his mental health. See Tr. 5/23/05 at 10-14. Petitioner testified that he was

taking Seroquel for his bipolar disorder. Id. at 11-12. He further testified that the medication

would not prevent him from understanding the Court’s questions and answering them truthfully. 

Id. at 12. Maureen O’Hara, a mental health expert of the United States Probation Department

testified that Seroquel is an antipsychotic medication and that the medication would have no

impact on petitioner’s ability to understand and answer the Court’s questions. Id. at 13. 

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Thereafter, the Court engaged in a guilty plea colloquy with defendant pursuant to Federal

Rule of Criminal Procedure 11(b). At the Court’s request, the government explained the

provision of the plea agreement under which petitioner waived the right to appeal or collaterally

attack his conviction or sentence as follows: “[I]n paragraph 9 the defendant agrees that he’s

waiving all rights to a direct appeal as well as a collateral attack on his conviction, sentence or

any other matter related to the prosecution, whether this arises under 18 U.S.C. §§ 3742, 1291 or

2255 or any other provisions of law.” Tr. 5/23/05 at 39. The Court then engaged in the

following colloquy with petitioner:

The Court: Do you understand that, Mr. Lit, the further limitations on your right

to appeal?

Defendant: Yes, your Honor.

The Court: Do you have any questions about that?

Defendant: No, your Honor.

The Court: Do you understand that by waiving the rights I have discussed with

you you cannot later come to any court and claim that you were not

guilty or that your rights have been violated?

Defendant: If that’s true, yes, your Honor.

The Court: Well, it is true. Let me review it again. Do you understand that when

you plead guilty and by waiving the rights – let me do it again. Do

you understand that by pleading guilty and by waiving the rights I

have discussed with you, you cannot later come to any court and

claim that you were not guilty or that your rights have been violated?

Defendant: Yes, your honor. 

Id. at 40. 

The Court also asked petitioner whether he had read the Guilty Plea Agreement and

discussed it with plea counsel, Robert Donatoni, Esq. Petitioner responded that he had read the

agreement “[a] few times” and that he had discussed the agreement with plea counsel. Id. at 47. 

Petitioner further testified that plea counsel had answered any questions that he had regarding the

plea agreement. Id. at 47-48. 

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On the basis of petitioner’s testimony, the Court held that petitioner was “fully competent

and capable of entering an informed plea and that [the] plea of guilty [was] a knowing and

voluntary plea supported by an independent basis in fact containing each of the essential

elements of the offenses charged in Counts 1 and 2 . . .” Id. at 72. Accordingly, the Court

accepted petitioner’s guilty plea. Id.

C. Sentencing

Petitioner was sentenced on August 10, 2005. At the sentencing hearing, the Court

calculated petitioner’s advisory sentence under the 2004 edition of the United States Sentencing

Guidelines (“Sentencing Guidelines”). Tr. 8/10/05 at 9. The Court concluded that petitioner’s

total offense level for Counts 1 and 2, without consideration of Chapter 4 enhancements, was 34. 

Id. at 12. The Court further concluded that petitioner was a career offender under § 4(b)(1.1) of

the Sentencing Guidelines. Id. Under § 4(b)(1.1), the adjusted offense level was 37. Id. 

Petitioner was entitled to a three-level reduction for acceptance of responsibility. Id. Thus, the

total offense level for Counts 1 and 2 was 34. Id. Because petitioner was a career offender under

§ 4(b)(1.1), his Criminal History Category was VI. Id. at 13. Under the Sentencing Guidelines,

the applicable sentencing range was 262 to 327 months imprisonment. Id.

However, pursuant to the C plea, the government and petitioner agreed that a nine-year

term of imprisonment was an appropriate disposition. Id. The Court accepted the C plea. Id. at

16, 44. Specifically, the Court held that “a nine-year sentence [was] an appropriate sentence

under all the circumstances, weighing on the one hand the heinous nature of the crime and on the

other hand [petitioner’s] serious mental illness” and considering all of the factors set forth in 18

U.S.C. § 3553(a). Id. at 42, 51. The Court sentenced petitioner to inter alia, nine years

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imprisonment and five years supervised release. Id. at 44. 

D. Direct Appeal

On August 16, 2005, petitioner filed a pro se Notice of Intent to Appeal. Thereafter, the

government filed a motion to dismiss the appeal under the appellate waiver provision of

petitioner’s Guilty Plea Agreement. By Order dated March 14, 2006, the Court of Appeals for

the Third Circuit granted the government’s motion and dismissed petitioner’s direct appeal on

the basis of the appellate waiver. The March 14, 2006 Order made no reference to petitioner’s

waiver of his right to collateral attack under § 2255. 

E. Section 2255 Motion

On March 6, 2007, petitioner filed the instant § 2255 Motion, in which he raises two

grounds for relief: (1) that petitioner’s “conviction was obtained and sentence imposed in

violation of the Sixth Amendment Right to Counsel, and the right to Effective Assistance of

Counsel at all critical stages of the proceedings” and (2) that petitioner’s “conviction was

obtained and sentence imposed in violation of the Fifth and Sixth Amendments to the

Constitution of the United States.” Mot. ¶¶ 12(A) and (B). In support of both grounds for relief,

petitioner argues that there was no factual basis for his guilty plea to Count 1, threatening to use a

weapon of mass destruction under 18 U.S.C. §§ 2332a(a)(2) and (3). Mem. Law Supp. at 19-21. 

In addition, in the § 2255 Motion, petitioner challenges the validity of his waiver of the

right to collaterally attack his conviction and sentence. Petitioner argues that his waiver was not

knowing and voluntary under all of the evidence; that the waiver provision was the product of

ineffective assistance of plea counsel; and that enforcement of the waiver is “contrary to the

public interest.” Mem. Law Supp. at 10-13.

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On March 8, 2007, the government filed a Motion to Dismiss petitioner’s § 2255 Motion. 

In the Motion to Dismiss, the government argues that petitioner’s waiver of his right to collateral

attack bars petitioner’s claims for relief in the § 2255 Motion. 

F. Evidentiary Hearing

On May 3, 2007 the Court held an evidentiary hearing on petitioner’s claim that his

waiver of the right to collateral attack was the product of ineffective assistance of plea counsel. 

At the evidentiary hearing petitioner testified on his own behalf and the government presented

one witness, plea counsel. Tr. 5/3/07 at 3. The evidence presented at the May 3, 2007

evidentiary hearing may be summarized as follows:

Plea counsel testified that he explained the waiver of collateral attack provision to

petitioner. Tr. 5/3/07 at 13. Specifically, plea counsel told petitioner “that there would be no

appeal and collateral attack meant no attacking the sentence or the plea based on issues regarding

counsel’s performance or other, any other basis. So in essence it was all over.” Id. at 14. Plea

counsel further explained that “[t]here may have been concepts that originally [petitioner] didn’t

understand but he was a quick study. In other words, if there was some legal issue regarding a

guideline or a departure when we were talking about trial, he might not have understood that but

on further explanation he understood, I believe.” Id. at 14. As to the waiver provision, plea

counsel testified that “[t]here’s no doubt in my mind that he understood it.” Id. at 13. 

Petitioner testified that he could not recall whether plea counsel explained the waiver of

collateral attack provision of the Guilty Plea Agreement. Id. at 44. However, petitioner also

testified that plea counsel explained that a collateral attack was “like an appeal,” and that he

thought collateral attack “was an appeal, that we could come back into court.” Id. at 44-45. On

Case 2:04-cr-00619-JD Document 103 Filed 06/12/07 Page 7 of 25
 The Third Circuit has not yet ruled on the question whether a waiver of a right to

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collaterally attack a sentence under 28 U.S.C. § 2255 is valid and enforceable. Simon v. United

States, 2006 WL 3534600, *4 (D.N.J. Dec. 7, 2006); see also United States v. Wilson, 429 F.3d

455, 460 n.6 (3d Cir. 2005) (declining to reach the issue). This Court, like many others in this

Circuit, finds that the Khattak standard applies to waivers of the right to collateral attack under

§ 2255. See United States v. Miles, 2007 WL 218755, *6 (E.D. Pa. Jan. 26, 2007) (collecting

cases). 

8

cross-examination by Assistant United States Attorney Nancy Beam Winter, Esq., petitioner

testified as follows:

Q: And is it fair to say I also said that to you, that if you plead guilty and we

recommend a C plea, which is unique, a nine-year sentence, that the case will

be over. There will be no appeals, no attacks, it will be done, do you recall

that?

A: Not completely.

Q: Generally?

A: Generally.

Q: So it’s fair to say that Mr. Donatoni told you and I told you, correct?

A: Correct.

Id. at 57. 

III. LEGAL STANDARD

Waivers of the right to appeal are generally valid if entered into “knowingly and

voluntarily.” United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). “In determining

whether a waiver of appeal is ‘knowing and voluntary,’ the role of the sentencing judge is

critical.” United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001). 

5

However, “an error amounting to a miscarriage of justice may invalidate” a knowing and

voluntary waiver. Khattak, 273 F.3d at 558, 562; see also Gwinnett, 483 F.3d at 203. To

determine whether a “miscarriage of justice” has occurred, courts in this Circuit consider the

following factors: “ ‘the clarity of the error, its gravity, its character (e.g., whether it concerns a

fact issue, a sentencing guideline, or a statutory maximum), the impact of the error on the

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 There is also authority for the proposition that ineffective assistance of counsel as to an 6

appellate waiver may render the waiver unknowing and involuntary. See, e.g., United States v.

Hernandez, 242 F.3d 110, 112 (2d Cir. 2001); Perez, 2006 WL 3300376 at *3. For the sake of

clarity, this Court analyzes petitioner’s ineffective assistance of counsel claim under the

“miscarriage of justice” prong of Khattak. Were the Court to analyze petitioner’s claim under the

“knowing and voluntary” prong of Khattak, the result would be the same. 

9

defendant, the impact of correcting the error on the government, and the extent to which the

defendant acquiesced in the result.’ ” Khattak, 273 F.3d at 563 (quoting citing United States v.

Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001)).

The Third Circuit has expressly declined to “earmark specific situations,” in which

enforcement of a waiver would amount to a “miscarriage of justice.” Khattak, 273 F.3d at 563. 

However, courts in this Circuit have repeatedly held that enforcement of a waiver that is itself

based upon ineffective assistance of counsel may result in a miscarriage of justice. See States v.

Akbar, 181 Fed. App’x 283, 286 (3d Cir. 2006) (holding that “it is possible for there to be a

miscarriage of justice when ‘plea proceedings were tainted by ineffective assistance of counsel’”)

(quoting Teeter, 257 F.3d at 25 n.9); United States v. Barralaga-Rodriguez, 164 Fed. App’x 270,

274 (3d Cir. 2006); United States v. Perez, 2006 WL 3300376, *4 (E.D. Pa. Nov. 9, 2006);

United States v. Dancy, 2006 WL 2504028, *4 (M.D. Pa. Aug. 28, 2006); United States v.

Robinson, 2004 WL 1169112, *3 (E.D. Pa. Apr. 30, 2004) (collecting cases). However, an 6

ineffective assistance of counsel argument “survives only with respect to those discrete claims

which relate directly to the negotiation of the waiver.” Jones v. United States, 167 F.3d 1142,

1145 (7th Cir. 1998); see also Perez, 2006 WL at *4. 

IV. DISCUSSION

In the instant Motion to Dismiss, the government argues that all of petitioner’s claims are

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barred by the waiver provision of petitioner’s Guilty Plea Agreement. To determine whether the

waiver provision is valid, the Court must determine whether the waiver was entered “knowingly

and voluntarily” and whether enforcement of the waiver would result in a “miscarriage of

justice.” The Court considers each of these issues in turn. 

A. Petitioner Knowingly and Voluntarily Agreed to the Waiver Provision

In his § 2255 Motion, petitioner asserts that the waiver of his rights to collateral attack

was not knowing and voluntary under all of the evidence. The Court disagrees. 

Pursuant to paragraph 9 of his Guilty Plea Agreement, petitioner “voluntarily and

expressly waive[d] all rights to appeal or collaterally attack [his] conviction, sentence, or any

other matter relating to this prosecution, whether such a right to appeal or collateral attack arises

under . . . 28 U.S.C. § 2255, or any other provision of law.” Guilty Plea Agreement ¶ 9. 

At the May 23, 2005 change of plea hearing, the Court engaged in a Rule 11 colloquy

with petitioner regarding this waiver provision. Tr. 5/23/05 at 39-40. At the Court’s request, the

government explained paragraph 9 of the Guilty Plea Agreement to petitioner. Id. at 39-40. The

Court then asked petitioner whether he understood the waiver provision as follows: “Do you

understand that by pleading guilty and by waiving the rights I have discussed with you, you

cannot later come to any court and claim that you were not guilty or that your rights have been

violated?” Id. at 40. Petitioner answered “Yes.” Id. Petitioner further testified that he read the

Guilty Plea Agreement “[a] few times,” that he had discussed the agreement with counsel, and

that plea counsel had answered any questions he had regarding the plea agreement. Id. at 47-48. 

On the basis of petitioner’s testimony, the Court held that petitioner was “fully competent and

capable of entering an informed plea and that [the] plea of guilty [was] a knowing and voluntary

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 Petitioner also testified that he could not recall whether plea counsel explained the 7

waiver of collateral attack provision, and that he thought “we could come back into court.” Tr.

5/3/07 at 44-45. Assuming arguendo that this testimony is credible, it does not render the waiver

provision unknowing or involuntary under all of the evidence. 

11

plea.” Id. at 72.

The testimony of plea counsel and petitioner at the May 3, 2007 evidentiary hearing

corroborates that petitioner knowingly and voluntarily accepted the waiver provision of the

Guilty Plea Agreement. At the evidentiary hearing, plea counsel testified that he explained the

waiver provision to petitioner and that he had “no doubt” that petitioner understood it. Tr. 5/3/07

at 13. Petitioner himself testified that plea counsel explained that a collateral attack was “like an

appeal” and that both plea counsel and the government told him that if he pled guilty, the case

would be over. Id. at 44, 57.7

In sum, the Guilty Plea Agreement, this Court’s Rule 11 colloquy, and the testimony of

petitioner and plea counsel at the May 3, 2007 evidentiary hearing all demonstrate that petitioner

knowingly and voluntarily agreed to the waiver provision of his Guilty Plea Agreement. Thus,

the Court concludes that petitioner knowing and voluntarily waived his right to collateral attack

under Khattak.

B. Petitioner’s Arguments that the Waiver Was Unknowing and Involuntary Lack

Merit

The Court writes further to address three arguments raised by petitioner in support of his

claim that the waiver provision of his Guilty Plea Agreement was unknowing and involuntary. 

The Court concludes that each of these arguments is wholly without merit.

First, petitioner asserts the Court did not satisfy Rule 11 because the waiver of the right to

collateral attack was explained by the government rather than the Court. Mem. Law Supp. at 10-

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 Rule 11 provides, in relevant part, that: “Before the court accepts a plea of guilty or 8

nolo contendere, the defendant may be placed under oath, and the court must address the

defendant personally in open court. During this address, the court must inform the defendant of,

and determine that the defendant understands . . . (N) the terms of any plea-agreement provision

waiving the right to appeal or to collaterally attack the sentence.” Fed. R. Crim. P. 11(b)(1)(N). 

12

11. The Court rejects this argument. At the change of plea hearing, the government explained 8

the waiver provision to petitioner at the Court’s request. Tr. 5/23/05 at 39. The Court then

confirmed that petitioner understood the waiver provision. Id. at 40. As the Court held at the

May 3, 2007 evidentiary hearing, this procedure was proper. Tr. 5/3/07 at 79; see also United

States v. Medina, 2001 WL 869565, *1 n.5 (E.D. Pa. July 30, 2001) (“Contrary to petitioner’s

argument, a prosecutor may explain the charges in the indictment without violating Rule 11.”). 

Further, under Federal Rule of Criminal Procedure 11(h), “[a] variance from the requirements of

this rule is harmless error if it does not affect substantial rights.” Thus, no Rule 11 error

occurred.

Second, petitioner argues that the waiver provision was unknowing and involuntary

because the Guilty Plea Agreement is ambiguous as to the waiver of the right to collateral attack. 

Pet.’s Suppl. Resp. at 2; Post-Hearing Mem. Law at 2-3. In support of this argument, petitioner

points out that paragraph 6 of the Acknowledgment of Rights, which was attached to the Guilty

Plea Agreement, refers only to the waiver of appellate rights, and not the waiver of the right to

collateral attack. See Guilty Plea Agreement, Attachment ¶ 6. The Court disagrees with

petitioner’s characterization of the Guilty Plea Agreement. That document is unambiguous on its

face. See Guilty Plea Agreement ¶ 9; see also United States v. Schweitzer, 454 F.3d 197, 205

(holding that plea agreement with substantially identical language “contains an express and

unambiguous waiver”). The fact that the Acknowledgment of Rights contains some, but not all

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 As the government explained at the May 3, 2007 evidentiary hearing, the 9

Acknowledgment of Rights does not include the waiver of collateral attack provision because

that document is “a written shorthand of what the Court always covers in a guilty plea” and “[i]n

a normal guilty plea colloquy the Court does not address the question of the right to collaterally

attack.” Tr. 5/3/07 at 76.

13

of the provisions of the Guilty Plea Agreement does not change this fact.9

Third, petitioner asserts that he was “under the influence of anti-psychotic medication at

the time of the plea” and that the plea was therefore unknowing and involuntary. Mem. Law

Supp. at 13. The Court rejects this argument. At the May 23, 2005 change of plea hearing, the

Court engaged in an extended colloquy with petitioner about his mental health. Tr. 5/23/05 at

10-14. Both petitioner and a mental health expert of the United States Probation Department

testified that petitioner was taking medication that controlled the symptoms of his mental illness,

and that the mediation would not prevent petitioner from understanding the Court’s questions

and answering them truthfully. Id. The Court explicitly held that petitioner was “fully competent

and capable of entering an informed plea.” Id. at 72.

In addition, petitioner argues that the waiver provision in his Guilty Plea Agreement was

the product of ineffective assistance of plea counsel. The Court analyzes petitioner’s

ineffectiveness claim under the “miscarriage of justice” prong of Khattak. To the extent that the

issue is relevant to whether petitioner’s waiver was knowing and voluntary, the Court rejects

petitioner’s argument for the reasons set forth in Section IV(C)(1) below.

Under all of the evidence, the Court concludes that petitioner knowingly and voluntarily

waived his rights to collaterally attack the judgment against him. Absent a “miscarriage of

justice,” which does not exist in this case, the waiver provision of his Guilty Plea Agreement is

valid and bars petitioner’s claims for relief. 

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C. Enforcement of the Waiver Would Not Result in a Miscarriage of Justice

The remaining question before the Court is whether enforcement of the waiver would

amount to a “miscarriage of justice.” Khattak, 273 F.3d at 562. In order to answer this question,

the Court considers two arguments made by petitioner in the § 2255 Motion: (1) that the waiver

provision of petitioner’s Guilty Plea Agreement was the product of ineffective assistance of

counsel; and (2) that there was no factual basis for petitioner’s guilty plea to Count 1, threatening

to use a weapon of mass destruction in violation of 18 U.S.C. §§ 2332a(a)(2) and (3). The Court

addresses each of these issues in turn. The arguments in section IV(A) above are incorporated in

this section by reference. 

1. The Waiver Was Not the Product of Ineffective Assistance of Counsel

In the § 2255 Motion, petitioner asserts that the waiver of collateral attack provision of

his Guilty Plea Agreement is invalid because the waiver was the result of ineffective assistance

of plea counsel. The Court disagrees. 

a. Legal Standard: Strickland 

“Strickland v. Washington, 466 U.S. 668 (1984), supplies the standard for addressing a

claim of ineffective assistance of counsel.” United States v. Smack, 347 F.3d 533, 537 (3d Cir.

2003). This standard requires a familiar two-part inquiry. First, “the defendant must show that

counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466

U.S. at 688. “Second, the defendant must show that [counsel’s] deficient performance

prejudiced the defense.” Id. at 687. The measure for counsel’s performance under the first prong

of Strickland is “reasonableness under prevailing professional norms.” Id. at 688. As to the

second prong of Strickland, a petitioner must demonstrate that “there is a reasonable probability

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that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694.

In this case, the Court concludes that plea counsel’s representation was reasonable under

Strickland. Moreover, with respect to the prejudice prong, for the reasons stated in Section

IV(C)(2) of this Memorandum, which addresses the claim of miscarriage of justice, the Court

concludes that none of petitioner’s claims are meritorious and that he therefore fails to satisfy the

prejudice prong of Strickland. 

b. Plea Counsel’s Representation Was Reasonable Under Prevailing

Professional Norms

Under paragraph 9 of his Guilty Plea Agreement, petitioner “voluntarily and expressly”

waived his right to collateral attack under § 2255. Guilty Plea Agreement ¶ 9. Under paragraph

10 of the Guilty Plea Agreement, petitioner further asserted that he was “satisfied with the legal

representation provided by the defendant’s lawyer; the defendant and this lawyer have fully

discussed this plea agreement; and the defendant is agreeing to plead guilty because the

defendant admits that he is guilty.” Id. ¶ 10. 

During this Court’s Rule 11 colloquy, petitioner stated that he understood the waiver

provision. Tr. 5/23/05 at 40. Petitioner further testified that he read the Guilty Plea Agreement

“[a] few times,” that he had discussed the agreement with counsel, and that plea counsel had

answered any questions he had regarding the plea agreement. Id. at 47-48. At the May 3, 2007

evidentiary hearing, plea counsel corroborated that he explained the waiver provision to

petitioner and that he had “no doubt” that petitioner understood the waiver. Tr. 5/3/07 at 13. 

Petitioner testified that plea counsel explained that a collateral attack was “like an appeal” and

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that both plea counsel and the government told him that if he pled guilty, the case would be over. 

Id. at 44, 57.

Moreover, at the May 3, 2007 evidentiary hearing, plea counsel explained why he did not

object to the waiver provision of the Guilty Plea Agreement–the government required that

petitioner agree to that provision in exchange for the C plea. Plea counsel explained this to

petitioner, as follows: “I wanted to make it clear, and I’m sure I did, that with a negotiated

sentence of a specific term, if the Court accepted it, then the quid pro quo, a tradeoff would be

that the Government and the defense had made their peace and everyone would go their own

way.” Tr. 5/3/07 at 11. Plea counsel believed that the C plea was a favorable outcome, despite

the waiver provision, because “it would have been a very, very difficult case [to try]. An

assessment as to whether or not we would have an acquittal was slim/none.” Id. at 9. Had

petitioner been convicted, the applicable sentencing range under the Sentencing Guidelines

would have been 262 to 327 months imprisonment–more than double the 108 months

imprisonment petitioner received under the C plea. Tr. 8/10/05 at 13. 

Further, under the C plea, Count 2, which charged malicious damage or destruction of a

building with fire, was included in a Superceding Information filed in this Court. Prior to the

inclusion of Count 2 in the Superceding Information, there was a pending investigation into the

malicious destruction of a building in “the Middle District area of Pennsylvania.” Tr. 5/23/05 at

2. The inclusion of Count 2 in the case led to no increase in the sentencing guideline range. Tr.

8/10/05 at 11. That guideline range, 262 to 327 months, was based entirely on the charge in

Count 1. Id. Had defendant been separately charged and convicted on Count 2, he might have

been subject to an additional period of incarceration. Instead, Count 2 was incorporated in the C

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17

plea and petitioner eliminated the risk of a separate sentence on that charge. Tr. 5/3/07 at 10-11.

 The Guilty Plea Agreement, the Court’s Rule 11 colloquy, and the testimony of plea

counsel and petitioner at the evidentiary hearing all demonstrate that plea counsel’s

representation was objectively reasonable as to the negotiation of the waiver. Thus, the Court

concludes that waiver of the right to collateral attack in petitioner’s Guilty Plea Agreement was

not the product of ineffective assistance of counsel and that enforcement of the waiver would not

result in a miscarriage of justice.

2. There Was No Miscarriage of Justice: Petitioner’s Claims for Relief Are

Without Merit

In the § 2255 Motion, petitioner asserts that there was no factual basis for his guilty plea

to Count 1, threatening to use a weapon of mass destruction under 18 U.S.C. §§ 2332a(a)(2) and

(3). The Court considers this claim for the limited purpose of determining whether enforcing the

waiver of collateral attack provision would result in a “miscarriage of justice.” The Court

concludes that the § 2255 Motion raises no meritorious claim of constitutional error. As such,

there is no miscarriage of justice, and the waiver provision of petitioner’s Guilty Plea Agreement

is enforceable. 

a. Legal Standard: 18 U.S.C. §§ 2332a(a)(2) and (3)

In Count 1, petitioner pled guilty to threatening to use a weapon of mass destruction

under 18 U.S.C. §§ 2332a(a)(2) and (3). Section 2332a(a) provides, in relevant part, that:

A person who, without lawful authority, uses, threatens, or attempts or conspires to

use, a weapon of mass destruction 

* * * 

(2) against any person or property within the United States, and . . . (D) the

offense, or the results of the offense, affect interstate or foreign commerce,

or, in the case of a threat, attempt, or conspiracy, would have affected

Case 2:04-cr-00619-JD Document 103 Filed 06/12/07 Page 17 of 25
18

interstate or foreign commerce;

(3) against any property that is owned, leased or used by the United States or

by any department or agency of the United States, whether the property is

within or outside of the United States 

* * * 

shall be imprisoned for any term of years or for life, and if death results, shall be

punished by death or imprisoned for any term of years or for life.

18 U.S.C. § 2332a.

Under the § 2332a, the term “weapon of mass destruction” means–(A) any destructive

device as defined in section 921 of this title.” 18 U.S.C. § 2332a(c)(2). Section 921 defines

“destructive device” as, inter alia, “any explosive, incendiary, or poison gas–(i) bomb . . . .” 18

U.S.C. § 921(a)(4). 

The phrase “threatens . . . to use” is not defined in § 2332a. However, the Second Circuit

has defined “threat” in the context of § 2332a as a statement that “an ordinary, reasonable

recipient who is familiar with the context of the letter would interpret . . . as a threat of injury.”

United States v. Davila, 461 F.3d 298, 305 (2d Cir. 2006) (citing United States v. Malik, 16 F.3d

45, 49 (2d Cir. 1994)). Although the Third Circuit has not ruled on this issue, it is likely that it

would adopt a similar definition as the Second Circuit. See United States v. Zavrel, 384 F.3d

130, 136 (3d Cir. 2004) (adopting the Second Circuit’s definition of “threat” in the context of 18

U.S.C. § 876); see also United States. v. Guevara, 408 F.3d 252, 256 (5th Cir. 2005) (defining

“threat” as “a communication that has a reasonable tendency to create apprehension that [the]

originator of the communication will act as represented”). 

b. There Was a Factual Basis for Petitioner’s Guilty Plea to Count 1

In his § 2255 Motion, petitioner asserts that he did not threaten to use a weapon of mass

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19

destruction within the meaning of § 2332a, for five reasons. The gravamen of petitioner’s

arguments is that a hoax does not qualify as threatening to use a weapon of mass destruction

under § 2332a. The Court disagrees. Each of petitioner’s arguments is addressed in turn. 

First, petitioner argues that a “threat . . . to use” under § 2332a requires a threat of future

conduct, allegedly absent in this case. Mem. Law. at 19. In support of this argument, petitioner

cites United States v. Taylor, 2003 WL 22073040, *8 (S.D.N.Y. Sept. 5, 2003), in which a

district court held that “[t]he word ‘threatens,’ taken in conjunction with the words ‘to use,’

require[s] active employment of something in the future.” The Taylor court further held that a

hoax note that stated “Anthrax is here [at] ABC” did not imply future conduct, and so did not

constitute a violation of § 2332a. Id.

This Court, like many others, rejects the Taylor court’s interpretation of § 2332a. See

Davila, 461 F.3d at 304; United States v. Evans, 478 F.3d 1332 (11th Cir. 2007); Guevara, 408

F.3d at 256-57; United States v. Reynolds, 381 F.3d 404, 406 (5th Cir. 2004), cert. denied 543

U.S. 1073 (2005). See also Zavrel, 384 F.3d at136, 136 n.2 (holding that phrase “threat to

injure” in 18 U.S.C. § 876 does not require future action, but not considering the phrase “threat

to use” in § 2332a). The Court concludes that the phrase “threatens . . . to use” in § 2332a does

not require a threat of future conduct by the defendant. “An impression of impending injury is

created not only by a communication promising to commit a dangerous act in the future, but also

by the delivery of a substance that appears to be injurious.” Davila, 461 F.3d at 302. Moreover,

even if the Taylor holding were correct, persons who learned of the fake bomb planted by

petitioner would fear future harm. See Zavrel, 384 F.3d at 136, 136-37 (holding that person

exposed to fake anthrax would naturally “be fearful of future harm”).

Case 2:04-cr-00619-JD Document 103 Filed 06/12/07 Page 19 of 25
 Section 1038(a)(1) provides, in relevant part, that: 10

Whoever engages in any conduct with intent to convey false or misleading

information under circumstances where such information may reasonably be believed

and where such information indicates that an activity has taken, is taking, or will take

place that would constitute a violation of [various statutes relating to weapons and

explosives, terrorist acts, and related activities] shall [be guilty of a crime].

18 U.S.C. § 1038(a)(1). 

20

Second, petitioner argues that Congress did not intend § 2332a to apply to hoaxes. In

support of this argument, petitioner cites 18 U.S.C. § 1038(a)(1), a 2004 statute “apparently

aimed more directly at hoaxes” than § 2332a. Davila, 461 F.3d at 303-304. The Court 10

concludes that the passage of § 1038(a)(1) does not preclude the application of § 2332a to hoaxes

for two reasons. “First, the intent of Congress in 2004 is not necessarily indicative of the intent

of the earlier Congress that enacted section 2332a . . . Second, to the extent that the legislative

history is relevant, it merely indicates that Congress perceived a gap with respect to hoaxes that

did not involve a specific threat.” Id. at 304; see also Guevara, 408 F.3d at 256, 256 n.3 (holding

that § 1038(a)(1) argument was “unavailing” in hoax anthrax case and affirming conviction

under § 2332a). 

Third, petitioner argues that “[t]here was no evidence of use [under § 2332a] because

there was no [real] weapon of mass destruction.” Mem. Law. Supp. at 19. This argument fails

for the simple reason that defendant pled guilty to “threaten[ing] . . . to use, a weapon of mass

destruction,” not the actual “use” of such a weapon. See 18 U.S.C. § 2332a. Accordingly, “the

government need not prove that the weapon of mass destruction . . . was either used or carried.”

United States v. Khalil, 214 F.3d 111, 120 (2d Cir. 2000), cert. denied 531 U.S. 937 (2000).

Fourth, petitioner argues that “there was no evidence that the use of the non-existent

weapon of mass destruction would have had an effect on interstate commerce.” Mem. Law

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21

Supp. at 19 (emphasis in original). In this argument, petitioner misstates the interstate commerce

element of § 2332a. That element does not turn on the use of a fake weapon. Rather, it requires

that the threatened use of a weapon of mass destruction would have affected interstate commerce

if the weapon had been real. See Davila, 461 F.3d at 305 (holding that in case of “hoax anthrax

mailing, the proper inquiry . . . is whether commerce would have been affected if the letter had

actually contained anthrax”); United States v. Wise, 221 F.3d 140, 152 (5th Cir. 2000) (“The

statute does not require, in the case of a threat, an actual or substantial effect on commerce; it

requires only a showing that the use would have affected commerce.”). 

In this case, there was ample evidence to satisfy the interstate commerce element. 

Petitioner planted the fake bomb at Philadelphia International Airport. He admitted that he knew

that government property was in the immediate vicinity of the bathroom, that government agents

used the terminal, and that the fake bomb would disrupt at least a portion of the airport. Tr.

5/23/05 at 62-65. Accordingly, the Court properly held that petitioner’s plea to Count 1 was

“supported by an independent basis in fact” as to the interstate commerce element. Id. at 72. 

Finally, petitioner argues that he had “no specific intent” to use “the non-existent

weapon.” Mem. Law Supp. at 18. The Court rejects this argument because § 2332a is not a

specific intent crime. See United States v. McMorrow, 434 F.3d 1116, 1119 (8th Cir. 2006)

(holding that “the intent to carry through on a threat is not an element of” § 2332a(a)(2)). At the

change of plea hearing, petitioner testified that he placed the fake bomb knowing that it would

disrupt at least a portion of the airport. Tr. 5/23/07 at 65. This evidence was sufficient to

establish the mental state requirement of § 2332a. Id.

The Court concludes that there was a factual basis for petitioner’s guilty plea to Count 1,

Case 2:04-cr-00619-JD Document 103 Filed 06/12/07 Page 21 of 25
22

threatening to use a weapon of mass destruction in violation of § 2332a. Accordingly, enforcing

the waiver provision of petitioner’s Guilty Plea Agreement would not result in a miscarriage of

justice. 

V. CERTIFICATE OF APPEALABILITY

“At the time a final order denying a petition under 28 U.S.C. § 2255 is issued, the district

judge shall make a determination as to whether a certificate of appealability should issue.” Third

Cir. Loc. App. R. 22.2; see also United States v. Williams, 158 F.3d 736, 742 n.4 (3d Cir. 1998).

A certificate of appealability shall issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where the district court

rejects a § 2255 motion on procedural grounds, a certificate of appealability shall issue when

petitioner establishes: “[1] that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find

it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel,

529 U.S. 473, 484 (2000); see also Cooper v. Price, 82 Fed. Appx. 258, 259-60 (3d Cir. 2003). 

In this case, the Court concludes that jurists of reason would not debate the Court’s

conclusion that the§ 2255 Motion fails to state a valid claim of the denial of a constitutional

right. The Court further concludes that jurists of reason would not debate the Court’s conclusion

that the waiver provision of the Guilty Plea Agreement precludes petitioner from collaterally

attacking his conviction and sentence. Thus, a certificate of appealability will not issue. 

VI. CONCLUSION

For the foregoing reasons, the Court concludes that petitioner knowingly and voluntarily

accepted the waiver provision in the Guilty Plea Agreement and that enforcing the waiver would

Case 2:04-cr-00619-JD Document 103 Filed 06/12/07 Page 22 of 25
23

not work a miscarriage of justice. Accordingly, the government’s Motion to Dismiss is granted

and petitioner’s § 2255 Motion is dismissed with prejudice.

An appropriate order follows.

Case 2:04-cr-00619-JD Document 103 Filed 06/12/07 Page 23 of 25
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

_____________________________________

UNITED STATES OF AMERICA

v.

PRESTON LIT

_____________________________________

:

:

:

:

:

:

CRIMINAL ACTION

NO. 04-619

CIVIL ACTION 

NO. 07-903

O R D E R

AND NOW, this 12th day of June, 2007, upon consideration of petitioner’s Motion to

Vacate, Set Aside, or Correct Sentence Pursuant to Title 28, United States Code, Section 2255

(Document No. 88, filed March 6, 2007); the Government’s Motion to Dismiss Petition Under 28

U.S.C. § 2255 (Document No. 90, filed March 8, 2007); petitioner’s Response to Government’s

Response Opposing His Section 2255 Motion to Vacate, Set Aside or Correct Sentence

(Document No. 92, filed March 20, 2007); petitioner’s Supplemental Response to Government’s

Response Opposing His Section 2255 Motion to Vacate, Set Aside or Correct Sentence

(Document No. 96, filed May 1, 2007); petitioner’s Post Hearing Memorandum of Law in

Support of Motion to Vacate, Set Aside, or Correct Sentence Pursuant to Title 28, United States

Code, Section 2255 (Document No. 101, filed May 30, 2007); the Government’s Response to

Defendant’s Post Hearing Memorandum (Document No. 102, filed May 31, 2007); and the

testimony of petitioner and Robert Donatoni, Esq. at the evidentiary hearing on May 3, 2007, for

the reasons set forth in the attached Memorandum, IT IS ORDERED as follows: 

1. The Government’s Motion to Dismiss Petition Under 28 U.S.C. § 2255 is

GRANTED; 

Case 2:04-cr-00619-JD Document 103 Filed 06/12/07 Page 24 of 25
2. Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to Title

28, United States Code, Section 2255 is DISMISSED WITH PREJUDICE;

3. A certificate of appealability will not issue on the ground that petitioner has not

made a substantial showing of a denial of a constitutional right as required under 28 U.S.C.

§ 2253(c)(2).

BY THE COURT:

/s/ Honorable Jan E. DuBois 

JAN E. DUBOIS, J.

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