well settled that the failure to challenge certain errors on direct appeal constitutes a
procedural default that forestalls collateral attack of those errors under section 2255.

United States v. Essig, 10 F.3d 968, 979 (3d Cir.1993); see also Addonizio, 442 U.S. at

184-85; Government of the Virgin Islands v. Nicholas, 759 F.2d 1073, 1074 (3d Cir.

1988) (“A section 2255 petition is not a substitute for an appeal”).

Where, as here, there was no direct appeal taken of the issues raised in the instant
application, consideration of Petitioner’s claims of court error and prosecutorial
misconduct under section 2255 is permissible only if Petitioner can demonstrate both
“cause” for the failure to file a direct appeal and that he will suffer “actual prejudice’ if
review of his claims is denied. Frady, 456 U.S. at 167; United States v. Biberfield, 957
F.2d 98, 104 (3d Cir. 1982).

A. Court Error and Prosecutor Misconduct

Under the well established Frady frame work, the Court must determine whether
Russell has established cause for the procedural defect, and if so, that he suffered
prejudice as a result of the alleged errors. Frady, 456 U.S. at 167. Even if Russell could
establish cause for his failure to pursue his claims of court error and prosecutorial
misconduct on direct appeal, the Court finds that he suffered no actual prejudice

because these claims are without merit.’ The Court finds that an evidentiary hearing is

3Russell alleges that his failure to directly appeal is the fault of his counsel, who refused
to raise the issues on appeal. “[A] successful claim of ineffective assistance of counsel . . .
satisfies the ‘cause’ prong of a procedural default inquiry.” United States v. Garth, 188 F.3d 99,
107 (3d Cir. 1999) (citation omitted). Because the Court finds that Russell cannot satisfy the
“prejudice” prong of the default inquiry, it will not consider whether Russell has demonstrated
requisite cause. See Frady 456 U.S. at 168 (basing its holding only on the prejudice analysis,
without consideration of whether petitioner had demonstrated cause).

5


consecutive sentence. The Court considered the arguments of defense counsel, in
support of a concurrent sentence, and noted that they were “strong.” Tr. April 7, 2009.
However, the Court determined that a consecutive sentence was necessary to achieve
punishment for Russell’s actions. Even if Russell could demonstrate cause for his failure
to pursue these claims on direct appeal, he cannot establish actual prejudice and his
claims must fail.

B. Ineffective Assistance of Counsel

Russell’s claims of ineffective assistance of counsel are properly considered in a
section 2255 application. Ineffective assistance of counsel is established by satisfying a
two-prong test. Strickland, 466 U.S. 668. According to Strickland, a convicted
defendant must first show that the performance of counsel was somehow deficient. 466
U.S. at 687. Deficiency is present when counsel “made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. If deficiency is shown, a convicted defendant must then show that the
deficiency actually “prejudiced the defense.” Id. “Unless a defendant makes both
showings, it cannot be said that the conviction ... resulted from a breakdown in the
adversary process that renders the result unreliable.” Id. (emphasis added). Notably,
“(judicial scrutiny of counsel’s performance must be highly deferential .” Marshall v.
Cathel, 428 F.3d 452, 462 (3d Cir. 2005) (quoting Strickland, 466 U.S. at 689). This
deference is afforded because “counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment.” Strickland, supra, at 690.

Petitioner grounds his ineffective assistance of counsel claim on the fact that the

10


(2) the sentence for the instant offense shall be imposed to run
concurrently to the remainder of the undischarged term of imprisonment.

(c) (Policy Statement) In any other case involving an undischarged term of
imprisonment, the sentence for the instant offense may be imposed to run
concurrently, partially concurrently, or consecutively to the prior

undischarged term of imprisonment to achieve a reasonable punishment

for the instant offense.

In addition to the Sentencing Guidelines, the district court must consider the factors set
forth in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3584(b).

Inasmuch as Russell was being sentenced for sending a threatening
communication to a federal judge who had presided over a separate prosecution of him,
imposing a concurrent sentence would have been the equivalent of imposing no
sentence at all. The Court advised Mr. Russell that if the sentence “were to be made
concurrent with the record that you have, that means there will be no punishment at
all.” Tr. April 7, 2009 at p. 21. A consecutive sentence was permitted by the Guidelines
and furthered the policy of imposing an appropriate punishment. U.S.S.G § 5G1.3(c).

Russell’s contention that his federal sentences are related, triggering U.S.S.G.
§5G1.3(b), is unpersuasive. The only common threads in Russell’s undischarged federal
sentence and the current federal sentence are the presence of Judge Bartle and the fact
that Russell sent a threatening letter to both of the victims in those cases. In the first
instance, Judge Bartle was the sentencing judge and in the present case he is the victim.
The threatening letters served unrelated purposes. None of these commonalities qualify
as relevant conduct under U.S.S.G. § 1B1.3 and no relevant conduct was identified in the
pre-sentence report.

Moreover, “Section 5G1.3(b) appears to be aimed at the situation in which, unless

7


not warranted because “the claim for relief is without merit.” Government of the Virgin
Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985) (citations omitted).

To establish prejudice, Russell must show “not merely that the errors ... created a
possibility of prejudice, but that they worked to his actual and substantial disadvantage,
infecting his entire [sentencing] with error of constitutional dimensions.” Frady, 456
U.S. at 170; see Biberfeld, 957 F.2d at 105. Russell claims that the United States
Sentencing Guidelines require that his sentence run concurrent to his undischarged
federal sentence imposed by Judge Bartle because both federal sentences are based upon
related conduct. In addition, Russell claims that the Government “manipulated” the
Court into believing that it did not have the authority to impose a concurrent sentence.

Under 18 U.S.C. § 3584, a district court may sentence a defendant “who is already
subject to an undischarged term of imprisonment” to a term of imprisonment to run
either concurrently or consecutively. 18 U.S.C. § 3584(a). In Russell’s case, U.S.S.G. §
5G1.3 applies, which provides:

(a) If the instant offense was committed while the defendant was serving a

term of imprisonment (including work release, furlough, or escape status)

or after sentencing for, but before commencing service of, such term of

imprisonment, the sentence for the instant offense shall be imposed to run

consecutively to the undischarged term of imprisonment.

(b) If subsection (a) does not apply, and a term of imprisonment resulted

from another offense that is relevant conduct to the instant offense of

conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of §

1B1.3 (Relevant Conduct) and that was the basis for an increase in the

offense level for the instant offense under Chapter Two (Offense Conduct)

or Chapter Three (Adjustments), the sentence for the instant offense shall

be imposed as follows:

(1) the court shall adjust the sentence for any period of
imprisonment already served on the undischarged term of imprisonment if

the court determines that such period of imprisonment will not be credited
to the federal sentence by the Bureau of Prisons; and

6


memorandum regarding Russell’s re-sentence. Specifically, the Government stated that
because the Court was silent as to whether the sentence imposed on April 19, 2007 was
to run consecutive or concurrent to his undischarged federal sentence, the sentence
must be consecutive. On this point, the Government is correct, as 18 U.S.C. §3584(a)
requires such a finding. However, the Government’s sentencing memorandum cannot
be read as “manipulating the court” into thinking that a consecutive sentence on re-
sentence was required. It appropriately advocated for the imposition of a consecutive
sentence.

To the extent that Russell’s argument has any merit, no actual prejudice results.
As demonstrated by the Court’s colloquy with Russell, the decision to impose a
consecutive sentence was influenced by Russell’s criminal history and the need for
additional punishment, and not by the Government’s arguments:

THE COURT: Mr. Russell, with respect to consecutive or
concurrent. Your counsel has made a strong argument for it to be
considered. But you recognize that if it were to be made concurrent with
the record you have, that means there will be no punishment at all.

DEFENDANT: I respect and understand that, Your Honor.

THE COURT: Just so you understand the situation the court is put
in when someone has a criminal history that you do, and that
consideration. And like I say, the total arguments have been made by your
counsel.

DEFENDANT: Yep.

THE COURT: And I thought about it. But what we did in the
original sentence was to be consecutive

DEFENDANT: Now considering those factors that I know its going
to be consecutive, you know, and is consecutive, I’m really asking for some
leniency. Like I said, I don’t want to go scott free. I deserve a break at
least.

Tr. April 7, 2009 Sentencing at 21-22; 30-31.

At all times the Court was aware of its discretion to impose a concurrent or

9


UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,
Hon. Joseph H. Rodriguez
Civil Action No. 09-4710
v. : Criminal No. 05-721

JAMES A. RUSSELL,

OPINION
This matter is presently before the Court on an application by Petitioner James
Russell, who requests that the Court vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255. The Government now moves to dismiss Mr. Russell’s petition. The
Court has considered the submissions of the parties and for the following reasons will
deny Petitioner’s application without an evidentiary hearing.
I. FACTS
While an inmate at a Pennsylvania state correctional facility, James Russell sent
a threatening communication to the Eastern District of Pennsylvania District Court
judge who presided over an earlier federal prosecution of Russell.’ The case charging

Russell with sending the threatening letter to the judge, a violation of 18 U.S.C. § 876(c),

' The federal case in the Eastern District of Pennsylvania was presided over by Judge
Harvey Bartle, III. United States v. James A. Russell, Criminal Action Number 00-567-01
(E.D.Pa. 2000). In that case, Russell was charged with sending threatening letter to his state
prison cell-mate, a federal witness who was providing information against Russell’s mother. At
the time of the charge, Russell was serving a state sentence. For this offense, Judge Bartle
imposed a sentence of 53 months, to run consecutive to the state sentence that Russell was
serving. See Pre-Sentence Investigation Report (“PSI”), { 10.

1


States v. Swan, 275 F.3d 272, 280 (3d Cir. 2002). Given that Russell was currently
serving a term of imprisonment, Section 5G1.3 calls for “the sentence for the instant
offense . . . to run consecutively to the undischarged term of imprisonment.” As a result,
a departure request under this section of the Guidelines would provide no relief for
Russell; it instead produces an opposite result.

Rather, counsel asked for leniency given the fact that, at the outset of the
proceeding, the Court signaled its intent to impose a consecutive sentence. Tr. April 7,
2009 at p. 3. In addition, counsel argued for a downward departure predicated upon the
alleged poor conditions of Russell’s confinement at FDC Philadelphia. Id. at pp. 9-10.
With those parameters in place, counsel made successful arguments on Russell’s behalf
in favor of a sentence at the lower end of the applicable Guideline range; Russell’s
sentence was ultimately reduced from the initial 41 month sentence to a 33 month
sentence, Id.

Russell’s allegation that counsel failed to object to the Government’s request for a
consecutive sentence does not evidence ineffectiveness. As indicated above, the
Government’s arguments in favor of a consecutive sentence were proper and were
challenged during the sentencing hearing and in the Sentencing Memoranda prepared

by Russell’s current counsel and his previous counsel.>

5 In addition to the arguments in favor of a concurrent sentence made on the record by
Russell’s current counsel, the sentencing memorandum submitted requested that the Court
impose a “concurrent or partially concurrent sentence- which the defendant believes is warranted
under [18 U.S.C.] Section 3353(a).” Def.’s 2009 Sentencing Mem., Ex. B., p.2. In the
alternative, counsel requested a variance to achieve a lighter sentence. Id. at p. 1. Likewise,
Russell’s previous counsel submitted a sentencing memorandum in March 2007 that requested
Russell’s sentence run concurrent with his undischarged 53 month federal sentence. Def. 2007
Sentencing Mem, pp. 6-8. “Adding additional layers of time to Russell’s period of incarceration

12


sentence was imposed consecutively and that counsel failed to request a departure under
U.S.S.G. § 5G1.3, and that counsel failed to argue for credit for time served. Both
arguments fail to establish ineffectiveness.

As a preliminary matter, consideration of these claims does not require an

evidentiary hearing. See Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d

Cir. 1989). Even assuming arguendo that counsel was deficient, Petitioner cannot show
that the alleged failures of counsel actually “prejudiced the defense.” Strickland, 466
U.S. at 687. Because Petitioner cannot demonstrate prejudice, there is no need to

determine whether Petitioner’s allegations are truthful. See Zettlemoyer v. Fulcomer

923 F.2d 284, 291 (3d Cir. 1991) (where the court determines that a petitioner may be
entitled to relief, an evidentiary hearing is conducted to ascertain the truth of the
matter). Therefore, the Court will consider Petitioner’s claim on the papers.

Russell cannot demonstrate that his counsel was ineffective for failing to argue
for a concurrent sentence or for failing to request a downward departure pursuant to
U.S.S.G. § 5G1.3. In counsel’s written submissions and during the sentencing hearing
on April 7, 2009, counsel argued for the imposition of a concurrent sentence and for the
Court to show leniency towards Defendant. See Sentencing Memorandum pp. 1-2 and
Ex. A., pp. 6-7, 8 (all requesting that the sentence run concurrent to the 53 month
sentence imposed by Judge Bartle); Tr. April 7, 2009 at pp. 8, 9, 18, 19 (recognizing the
Court’s decision to impose a consecutive sentence but asking for leniency).

Although it does not appear from the record that counsel asked for a downward
departure pursuant to U.S.S.G. § 5G1.3, this failure is not tantamount to ineffectiveness.

To the contrary, such a request would produce a consecutive sentence. See United

11


the sentences were concurrent, the defendant would be serving two sentences for
essentially the identical offense.” United States v. Swan, 275 F.3d 272, 277 (3d Cir.
2001). That is not the case for Russell, who threatened the judge that sentenced him for
threatening someone else. For these reasons, U.S.S.G. 5G1.3(b) in inapplicable to
Russell’s case and the Court appropriately considered and imposed a consecutive
sentence. As a result, Russell cannot establish prejudice because there was no court
error in imposing a consecutive sentence.

Russell’s claim of court error with respect to sentencing credit also fails. Russell’s
request that he be credited for approximately 16 months that he spent in federal custody
for this offense is the province of the Attorney General, through the Bureau of Prisons.
United States v. Wilson, 503 U.S. 329, 335 (1992). The Court has no authority to order
credit for this time in imposing sentence. See id. Once Russell begins serving time for
his federal sentence and it appears that such a credit has not been considered, he may
move for relief at that time pursuant to 28 U.S.C. § 2241, which provides habeas relief
for the execution of a sentence. Coady v. Vaughn, 251 F.3d 480, 485-86 (3d Cir. 2001)
(citing U.S. v. Mares, 868 F.2d 151, 151 (5th Cir. 1989) (claim for credit for time served
must proceed under Section 2241)).4

Likewise, Russell’s claim of prosecutor misconduct does not find any support in
the record. The Government advocated for the imposition of a consecutive sentence, but
it never argued that a consecutive sentence was required. The only place where the

Government asserted that a consecutive sentence resulted was in its sentencing

* This Court takes no position as to whether Russell is entitled to any credit for time
served and leaves that determination solely to the Bureau of Prisons.

8


necessary, consider the substance of Petitioner’s claims.
IL. DISCUSSION
A petition filed pursuant to 28 U.S.C. § 2255 constitutes a collateral attack on the

validity of a sentence. See United States v. Eakman, 378 F.3d 294, 297 (3d Cir. 2004).

That statute provides in pertinent part:

A petitioner in custody under sentence of a court established by Act of
Congress claiming the right to be released 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, may move the court which imposed the sentence
to vacate, set aside or correct the sentence.

See 28 U.S.C. § 2255. A petitioner is entitled to habeas corpus relief under Section 2255
if the error amounts to “a fundamental defect which inherently results in a complete

miscarriage of justice or an omission inconsistent with the rudimentary demands of fair

procedure.” United States v. Cleary, 46 F.3d 307, 310-11 (3d Cir. 1995) (quoting United

States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989), cert. denied, 506 U.S. 895, 113 S. Ct.

270, 121 L.Ed.2d. 199 (1992)). The burden is on the petitioner to establish his claim in
the petition. See Gov’t of the Virgin Islands v. Nicholas, 759 F.2d 1073, 1081 (3d Cir.
1985).

A fundamental defect of this sort may result from ineffective assistance of
counsel. Strickland v. Washington, 466 U.S. 668 (1984). However, section 2255 is not
the remedy for all errors at sentencing, as the grounds for collateral attack of a sentence

are limited. United States v. Biberfeld, 957 F.2d 98, 102 (3d Cir.1992); see also United

States v. Addonizio, 442 U.S. at 178, 184 (1979). Significantly, “a collateral challenge

may not do service for an appeal.” United States v. Frady, 456 U.S. 152, 165 (1982). It is

4


his motion groups some of the claims.” For the sake of clarity the Court will set out each
argument for consideration. First, he claims trial court error because the sentence
imposed “should have been ordered to run concurrently per the United States
Sentencing Guidelines.” Petitioner’s (“Pet.”) Motion, p. 6, Ground A. Second, for the
same reason, Russell also claims that his counsel was ineffective. Id. Third, Russell
claims prosecution misconduct because the Government manipulated the Court into
believing that the Guidelines required a consecutive, as opposed to a concurrent or
partially concurrent sentence, for his offense. Id., Ground B. Fourth, for the same
reason, Russell also claims that his counsel was ineffective. Id. Fifth, Russell claims trial
court error because he did not receive credit toward his sentence for the 15-16 months
that he has spent in federal custody. Id., Ground C. Sixth, he claims that his counsel
was ineffective for the same reason. Id.

The Government challenges the Petitioner’s motion on both procedural and

substantive grounds. The Court will first address the procedural arguments and then, if

2 In his response to the Government’s opposition brief, Russell claims that he filed an
amended § 2255 Petition that included two additional grounds for relief. See Petitioner’s Reply
Br. at p. 9. In his Reply Brief, Russell claims that the Government breached the plea agreement
because it agreed to a concurrent sentence in exchange for Russell’s plea of guilty. Id. at pp. 14-
16. Russell’s second ground for relief is not apparent. He attempts to make a separate “due
process argument,” but this argument goes to the construction of a plea agreement and does not
allege a separate ground for relief. Id. at p. 15, F. At most, the due process argument provides
further support for his breach of plea agreement claim.

In any event, the Court is constrained from considering Russell’s breach of plea
agreement argument because it was not raised in the first instance and his “Amended Petition”
does not appear to have been filed. There is no record of such a filing on the Court’s Docket, and
the Court is not in receipt of a hard copy of such a document from the Petitioner. Russell does
not attach such a filing to his Reply Brief. Moreover, Russell openly plead guilty, without a plea
agreement. See Docket Numbers 14 and 17, Criminal No. 05-721. Thus, even construing his
filings liberally, Royce v. Hahn, 151 F.3d 116, 118 (3d Cir.1998), there is nothing for the Court
to consider in this regard. Asa result, the Court will not address this allegation.

3


was assigned to this Court. Russell entered an open plea of guilty on July 20, 2006. On
April 17, 2007, Russell was sentenced to a term of imprisonment of 41 months.

Russell timely appealed the sentence to the Third Circuit Court of Appeals
alleging that the Court failed to consider his pro-se motion for a downward departure
predicated upon the conditions of his confinement. In addition, Russell complained that
the judgment of sentence did not specify whether the sentence was to run consecutively
or concurrently to his undischarged federal sentence. The Government agreed that the
case should be remanded and the appeal was dismissed on December 20, 2007.

On August 28, 2008, Russell filed a motion under 28 U.S.C. § 2255 alleging that
his counsel was ineffective for various reasons. Given this allegation, new counsel was
assigned on November 18, 2008. Soon thereafter the Court denied Russell’s § 2255
motion without prejudice, vacated the April 19, 2007 judgment of sentence, and set a
new sentencing date for April 7, 2009.

In the meantime, the parties briefed Russell’s downward departure motion.
Then, on April 7, 2009, Russell was sentenced to a term of imprisonment of 33 months,
to run consecutively to the undischarged state and federal sentences that Russell was
already serving. At the conclusion of the sentencing hearing, Russell stated “[a]nd for
the record, I’m satisfied with the sentence. Thank you. And I would not be filing an
appeal on that. Thank you very much.” Transcript of Proceedings (“Tr.”) on April 7,
2009, p. 38.

However, on October 13, 2009, Russell filed the instant application for habeas

relief pursuant to 28 U.S.C. § 2255. He raises six grounds for consideration, although


Counsel was also not ineffective for brining a claim for an award of credit. As
discussed infra, the Court had no authority at the time of sentencing to award Russell
credit towards his federal sentence. See Coady, 251 F.3d at 485-86 (noting that a claim
for credit must proceed under Section 2241, not 2255)). Asa result, Russell cannot
demonstrate ineffectiveness or that he was prejudiced by any deficiency.

III. CONCLUSION

For the foregoing reasons, Petitioner’s application for habeas relief is denied.
Even if Russell could establish cause for his failure to directly appeal, his claims of court
error and prosecutor misconduct find no support in the record. As a result, Russell
cannot demonstrate the requisite prejudice and habeas review of these claims is denied.
In addition, Russell cannot establish that his counsel was deficient. Even if Russell
could demonstrate ineffectiveness of counsel, there is no probability that the sentence
imposed would have been different if not for counsel’s alleged deficiency. Therefore,
Petitioner cannot demonstrate prejudice and his claim for habeas relief must be denied.

Finally, because Petitioner failed to make “a substantial showing of the denial of a
constitutionally protected right,” pursuant to 28 U.S.C. § 2253(c)(2), no certificate of
appealability shall issue.

An appropriate Order shall issue.

Dated:

Ho#f|Josegh H. Rodriguez,
ITED STATES DISTRICT JUD

Neumbur) /$, 2010

will not serve to deter criminal conduct . .. Counsel submits that his sentence should be for 33
months of confinement to run concurrent to his impending federal sentence.” Id.

13