1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : No.4:Cr-99-089-03

: No.4:Cv-04-146

v. :

: (Judge McClure)

MICHAEL WALKER, :

Defendant/Movant :

MEMORANDUM

May 17, 2005

BACKGROUND:

On April 14, 1999, Michael Walker was initially indicted on federal drug

possession with intent to distribute charges. A superseding indictment was

returned on May 12, 1999, charging Walker, and others, with additional drug

charges. On June 9, 1999, Walker and two co-defendants were charged in a

second superseding indictment.

On December 3, 1999, Walker entered a guilty plea to the second

superseding indictment. On July 6, 2000, the court granted Walker’s motion to

withdraw his first guilty plea, with which the government concurred, because of the

Supreme Court’s ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000). (Rec.

Doc. No. 205.)

On March 1, 2001, Walker again entered into a plea agreement. In keeping

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with the second plea agreement, Walker pled guilty to count two of the second

superseding indictment. Count two of the second superseding indictment charged

Walker with possession with intent to distribute in excess of five (5) grams of crack

cocaine on or about March 15, 1999, in violation of Title 21 U.S.C. §§ 841(a)(1) &

841(b)(1)(B)(iii) and Title 18 U.S.C. § 2.

On November 6, 2001, through his trial counsel Douglas B. Chester, Esquire,

Walker moved the court to withdraw his guilty plea. (Rec. Doc. No. 328.) We

denied that motion on December 10, 2001. (Rec. Doc. No. 343.) Next, Walker

filed a pro se motion and supporting brief for reconsideration of our December 10,

2001 order (Rec. Doc. Nos. 352 & 357), which was denied on March 5, 2002. 

(Order, Rec. Doc. No. 365.)

On September 17, 2002, a sentencing hearing was held before this court. 

Walker was sentenced, as a career offender, to 262 months imprisonment, 4 years

supervised release, and $100 special assessment.

On July 11, 2003, the United States Court of Appeals for the Third Circuit

affirmed Walker’s conviction and sentence. United States v. Walker, 69

Fed.Appx. 546 (3d Cir. 2003).

On January 24, 2004, Walker filed pro se his first motion under 28 U.S.C. §

2255 to vacate, set aside, or correct the sentence. Then, on July 6, 2004, Walker

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filed a “supplemental motion under 28 U.S.C. § 2255” seeking to amend his motion

to include a Blakely claim. On December 16, 2004, we directed the government to

obtain and file an affidavit from Walker’s trial counsel Douglas B. Chester, Esquire,

that would address allegations made by Walker in his § 2255 motion. On February

7, 2005, we again directed government to obtain and file an affidavit from Douglas

B. Chester, Esquire. We received that affidavit on February 22, 2005. On March

7, 2005, Walker filed a second supplemental motion seeking to amend his motion

to include a Booker claim.

For the following reasons we will deny several grounds raised in Walker’s

motion and schedule a hearing on the remaining issue, i.e., attorney Chester’s

advice to Walker regarding his ability to withdraw his guilty plea.

DISCUSSION:

Walker’s January 20, 2004 motion under 28 U.S.C. § 2255 challenges his

conviction and sentence on two grounds: ineffective assistance of counsel and

“illegal confinement.” In his July 6, 2004 motion, Walker raises a Blakely claim. In

his March 7, 2005 motion, Walker raises a Booker claim. Due to Walker’s pro se

status we shall consider his supplemental motions as amendments to his original

motion.

I. Standard of Review

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A prisoner who is in custody pursuant to a sentence imposed by a federal

court who believes “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.” 28 U.S.C. § 2255, ¶1;

see United States v. Eakman, 378 F.3d 294, 297-98 (3d Cir. 2004).

It is within the court’s discretion whether to hold an evidentiary hearing on a

§ 2255 motion. See Gov’t of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir.

1989); United States v. Abbott, 975 F.Supp. 703, 712 (E.D. Pa. 1997). “[T]he

district court must accept the truth of the movant’s factual allegations unless they

are clearly frivolous on the basis of the existing record.” Abbott, 975 F.Supp. at

712 (quoting Gov’t of the Virgin Islands v. Bradshaw, 726 F.2d 115, 117 (3d Cir.

1984)). The court need not hold a hearing if the “motion and the files and records

conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255, ¶2;

see Rule 8(a) of the Rules Governing Section 2255 Proceedings for the United

States District Courts; United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992). If

the prisoner’s claim presents a close question, “[t]he district court need only

supplement the factual record when the merits of the section 2255 motion may turn

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on the truth of a non-frivolous allegation.” Abbott, 975 F.Supp. at 712 (quoting

Bradshaw, 726 F.2d at 117). Based on the following analysis, the court will

conduct a hearing only on Walker’s ineffective assistance claim that asserts Chester

advised Walker that he could always withdraw his plea.

II. Ground One: Ineffective Assistance of Counsel

In ground one of his § 2255 motion, Walker advances several theories as to

how he was denied effective assistance of counsel. Walker asserts that trial

counsel was ineffective for (1) not interviewing potential witnesses, (2) failing to

make motions to suppress evidence, (3) failing to hire a private investigator, and (4)

advising Walker that a plea could always be withdrawn. (Rec. Doc. No. 408, Ex.

1, at 8-11.)

By pleading guilty at trial, Walker waived his right to challenge his conviction

on any non-jurisdictional grounds other than the voluntariness of the plea. United

States v. Broce, 488 U.S. 563, 569 (1989). Thus, the court will limit its ineffective

assistance of counsel review to claims addressing advice given to Walker prior to

the entry of his guilty plea, i.e., his claim that trial counsel advised Walker “we can

always take back our plea.” (Rec. Doc. No. 408, Ex. 1, at 10.) At this time we

must consider whether Walker’s counsel was ineffective in advising defendant

about entering his plea of guilty, and whether the plea was knowing and voluntary. 

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The two prong Strickland ineffectiveness standard applies to post-conviction

challenges of guilty pleas. Hill v. Lockhart, 474 U.S. 52, 57 (1985). The

defendant must demonstrate (1) that counsel’s performance was objectively

unreasonable and (2) that counsel’s deficient performance prejudiced the

defendant. Strickland v. Washington, 466 U.S. 668, 687-688 (1984). In order for

a defendant challenging a guilty plea on ineffectiveness grounds to establish

prejudice, he must demonstrate that “there is a reasonable probability that, but for

counsel's errors, he would not have pleaded guilty and would have insisted on

going to trial.” Hill, 474 U.S. at 59.

Walker claims that it was counsel’s “unprofessional advice . . . that made

him (petitioner) accept the second plea.” (Mot. Vacate, Rec. Doc. No. 408, ex. 1,

at 8.) Walker asserts that his attorney, Douglas B. Chester, Esquire, informed him

that “we can always take back our plea.” (Rec. Doc. No. 408, Ex. 1, at 10.)

On December 16, 2004, pursuant to Rule 7 of the Rules Governing Section

2255 Proceedings for the United States District Courts, we directed the government

to expand the record on this issue by obtaining an affidavit from attorney Chester

addressing: (1) his best recollection of any and all advice he gave Walker regarding

his March 1, 2001guilty plea and the circumstances under which it was given; (2)

whether he told Walker he could always withdraw his guilty plea at a later time or

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that ‘we can always take back our plea’; (3) any other information Chester could

recollect regarding his representation of Michael Walker as it pertained to the entry

of his guilty plea on March 1, 2001. (Rec. Doc. No. 445.)

On February 22, 2005, after again directing the government to respond to our

December 16, 2004 order we received Chester’s affidavit. The affidavit described

Chester’s advice regarding withdrawing a guilty plea before sentencing as follows:

I explained that prior to sentencing we could file a motion

to withdraw his guilty plea, if he so chose. I told him the

courts are fairly liberal about granting a motion to

withdraw a guilty plea prior to sentencing. I explained

that, even prior to sentencing, there is no guarantee it

would be granted and that it was up to the judge. I told

him that it was very likely that any motion to withdraw his

guilty plea would be opposed by the U.S. Attorney.

(Aff., Rec. Doc. No. 447, at 2, ¶ 4.)

Walker states that he pled guilty as part of a compromise in strategies with his

attorney. He asserts that “Chester’s plan was to take the plea, motion what I

asked, then take the plea back. . . Under that misleading, brilliant idea is why I

agreed with him to take the plea. . . Chester never said taking the plea back would

be difficult. . . [What] Chester said [] he explained to me about withdrawing a plea

is a lie.” (Pet’s Affirmation Resp. To Douglas B. Chester’s Resp., Rec. Doc. No.

450, at 2.) It is worth noting that our plea colloquy did not address Walker’s ability

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to withdraw his guilty plea before sentencing, and Walker had already successfully

withdrawn a guilty plea in this case. We find that Walker’s factual allegations merit

a hearing on the issue. 

III. Ground Two: Illegal Confinement

Walker’s other ground in his motion is that he is illegally confined because

the statutes to which he pled guilty are not a part of positive law, and that “Title 21

is an unconstitutional statute in whole.” (Rec. Doc. No. 408, Ex. 1, at 2.) On

March 1, 2002, Walker pled guilty to count two of the second superseding

indictment charging Walker with violations of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(B)(iii) and 18 U.S.C. § 2.

The collateral review that post-conviction relief provides is not a substitute

for the appeals process. There must be respect for the finality of judgments,

particularly in the context of a guilty plea. United States v. Timmreck, 441 U.S.

780, 784 (1979); United States v. Cleary, 46 F.3d 307, 310 (3d Cir. 1995). On

direct appeal, Walker did not challenge the constitutionality of the statutes, nor did

he do so when he pled guilty to them. We choose to adhere to the doctrine of

procedural default which instructs that as a “general rule claims not raised on direct

appeal may not be raised on collateral review unless the petitioner shows cause and

prejudice.” Massaro v. United States, 538 U.S. 500, 504 (2003) (citing United

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States v. Frady, 456 U.S. 152,167-68 (1982); Bousley v. United States, 523 U.S.

614, 621-22 (1998)). This is not a case that warrants departure from this principle

just because Walker has characterized his claim as a constitutional challenge to the

statutes. Walker has not demonstrated why he did not raise this claim earlier before

this court, when he knowingly and voluntarily pled guilty to the offense, or on

appeal.

IV. Amended Ground (Three): Blakely Claim

In his first supplemental motion, Walker claims his sentence violates the

holding of Blakely v. Washington, – U.S. –, 124 S.Ct. 2531 (2004). He is

incorrect.

Blakely addressed the Washington State sentencing scheme and held that a

defendant may not be sentenced above the maximum the court could impose

“solely on the basis of facts reflected in the jury verdict or admitted by the

defendant. . . . without any additional findings.” Blakely, 124 S.Ct. at 2537

(citations omitted) (emphasis in original). In United States v. Booker, – U.S. –, 125

S.Ct. 738, (Jan. 12, 2005), the United States Supreme Court held that “the Sixth

Amendment as applied in Blakely does apply to the [Federal] sentencing

guidelines.” United States v. Ordaz, 398 F.3d 236, 238 (3d Cir. 2005) (quoting

Booker, – U.S. at –, 125 S.Ct. at 746 (Stevens, J.)). In light of our discussion of

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Booker in the proceeding section, we need not separately address Walker’s Blakely

argument.

V. Amended Ground (Four): Claim under Booker

On March 7, 2005, Walker filed another supplemental motion to add a claim

under United States v. Booker, – U.S. –, 125 S.Ct. 738 (2005). Booker did not

expressly state whether it was retroactively applicable to cases that became final

before Booker was decided. Several Courts of Appeals have addressed the issue

and have concluded that Booker does not retroactively apply to cases in collateral

proceedings. Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005) (“Booker

is not retroactive, i.e., it does not apply to cases on collateral review where the

defendant’s conviction was final as of January 12, 2005, the date that Booker was

issued.”); Humphress v. United States, 398 F.3d 855, 857 (6th Cir. 2005) (“Booker

. . . does not apply retroactively to cases already final on direct review.”);

McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005) (“Booker does

not apply retroactively to criminal cases that became final before its release on

January 12, 2005.”); Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005)

(“Booker’s constitutional rule falls squarely under the category of new rules of

criminal procedure that do not apply retroactively to § 2255 cases on collateral

review.”).

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1The text governing retroactivity determinations for second or successive

motions under § 2255 is slightly different from the text governing retroactivity for

purposes of the statute of limitations on a first motion under § 2255. For purposes

of second or successive motions the statute states “a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable.” 28 U.S.C. § 2255 (emphasis added). For purposes of the

statute of limitations on first motions the code states “the date on which the right

asserted was initially recognized by the Supreme Court, if that right has been newly

recognized by the Supreme Court and made retroactively applicable to cases on

collateral review.” Id. (emphasis added). Thus, the statute only explicitly requires

that the Supreme Court determine whether a new constitutional rule retroactively

applies to second or successive motions under § 2255.

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The Third Circuit, in the context of denying a second or successive motion

under § 2255 brought by a prisoner seeking to apply Booker retroactively,1stated

that “there is no combination of Supreme Court decisions that ‘dictates’ that

Booker has retroactive force on collateral review.” In re Olopade, 404 F.3d 159,

163 (3d Cir. 2005). The circuit court went on to discuss how the most analogous

Supreme Court precedent strongly suggests Booker is not retroactive. Id.

(discussing Schriro v. Summerlin, 542 U.S. –, 124 S.Ct. 2519 (2004)). Therefore,

Booker is not retroactively applicable to cases on collateral review that were final

before the January 12, 2005 decision. See United States v. Wheeler, (M.D. Pa.

Apr. 14, 2005) (No. CR-97-094) (Muir, J.). Consequently, Walker’s Booker claim

is denied.

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CONCLUSION:

For the reasons stated above, we will deny Walker’s motion under 28 U.S.C.

§ 2255 in all respects except for his claim of ineffective assistance of counsel in

advising him to plead guilty. A hearing will be scheduled on the ineffective

assistance claim and we will issue a final order on Walker’s petition after receiving

evidence on the matter. 

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

Case 4:99-cr-00089-MWB Document 452 Filed 05/17/05 Page 12 of 13
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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : No.4:Cr-99-089-03

: No.4:Cv-04-146

v. :

: (Judge McClure)

MICHAEL WALKER, :

Defendant/Movant :

O R D E R

May 17, 2005

For the reasons set forth in the accompanying memorandum,

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. All grounds in Walker’s motion under 28 U.S.C. § 2255 are denied

except for his claim that Chester gave ineffective assistance in advising him on his

ability to withdraw his guilty plea. (Rec. Doc. No. 408.) This is not a final order,

and therefore is not appealable. We will issue a final order after we conduct a

hearing on Walker’s remaining claim.

2. An accompanying order will schedule the hearing date and direct the

appointment of counsel to represent Walker at the hearing.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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