IN THE UNITED STATES DISTRICT COURT 


FOR THE WESTERN DISTRICT OF PENNSYLVANIA 


UNITED STATES OF AMERICA, 

Plaintiff, 

v. CR. NO. 08-27 E 

ROBERT LEE MARSH, JR., 

See Civil Action No. 1:09-cv-141 E 

Defendant. 

OPINION & ORDER 

Before the Court is Petitioner Robert Lee Marsh' Motion to Vacate under 28 U.S.C. § 

2255 filed at Criminal No. 08-27 E (Doc. 29), and assigned Civil Action No. 09-141 E. 

I. Background 

A federal grand jury returned a six-count indictment charging Mr. Marsh with possession 

and uttering counterfeit securities of an organization, in violation of 18 U.S.C. § 5l3(a). Mr. 

Marsh retained Philip B. Friedman, Esquire, to represent him in this matter. 

On October 15,2008, Mr. Marsh agreed to enter a plea of guilty as to count six ofthe 

indictment. Mr. Marsh's guilty plea was entered pursuant to a plea agreement that included a 

waiver of collateral rights provision. The Court conducted a plea colloquy with Mr. Marsh and 

accepted Mr. Marsh's guilty plea. (Transcript of Change of Plea, October 15,2007, Doc.38.) 

Based on an offense level of 13 and a criminal history of II, Mr. Marsh's guideline 

sentencing range was determined to be 15 to 21 months' imprisonment. On January 20, 2009, 

Mr. Marsh was sentenced within the guidelines range to 15 months' imprisonment, to be 

followed by 3 years' supervised release, and he was ordered to pay $58,137.65 in restitution. 

Counts one through 5 were dismissed. Defendant was permitted to self report to prison. 

Mr. Marsh did not file a direct appeal to the United States Court of Appeals for the Third 

Circuit. 

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On June 15,2009, Mr. Marsh timely filed a motion to vacate under section 2255, in 

which he raises numerous issues, many of which are incomprehensible. 

II. Standard of Review under 28 U.S.C. §2255 

Section 2255 ofTitle 28 ofthe United States Code provides a means of collaterally 

attacking a sentence imposed after a conviction. United States v. Cannistraro, 734 F.Supp. 1110, 

1119 (D. N.J. 1989), aff'd, 919 F.2d 133 and 919 F.2d 137 (3d Cir. 1990), cert. denied, 500 U.S. 

916. Pursuant to 28 U.S.C. §2255, a federal prisoner may move the sentencing court to vacate, 

set aside or correct a sentence "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 ofthe maximum authorized by law, or is 

otherwise subject to collateral attack." 28 U.S.C. § 2255. Relief under this provision is 

"generally available only in 'exceptional circumstances' to protect against a fundamental defect 

which inherently results in a complete miscarriage ofjustice or an omission inconsistent with the 

rudimentary demands of fair procedure." United States v. Gordon, 979 F. Supp. 337,339 (E.D. 

Pa. 1997), citing Hill v. United States, 368 U.S. 424,428 (1962). 

Evidentiary Hearing 

When a Motion is made under 28 U.S.C. §2255, the question of whether to order a 

hearing is committed to the sound discretion of the district court. In exercising that discretion, 

the court must accept the truth of the Petitioner's factual allegations unless they are clearly 

frivolous on the basis ofthe existing record. United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 

1992). Further, the court must order an evidentiary hearing to determine the facts unless the 

motion and files and records of the case show conclusively that the petitioner is not entitled to 

relief. Id.; United States v. Gordon, 979 F.Supp. 337, 339 (E.D. Pa. 1997). 

We find no need for an evidentiary hearing as the record conclusively establishes that the 

Mr. Marsh is not entitled to the relief sought in the petition. 28 U.S.C. § 2255. 

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III. Discussion 

Mr. Marsh has filed a motion to vacate despite agreeing in his plea agreement to waive 

the right to file such a motion. The government argues that Mr. Marsh's waiver be enforced, and 

his motion dismissed. Accordingly, we must first address whether Mr. Marsh's waiver of his 

right to file a motion pursuant to section 2255 is enforceable. 

"A criminal defendant may knowingly and voluntarily waive many of the most 

fundamental protections afforded by the Constitution." United States v. Khattak, 273 F.3d 557, 

561 (3d Cir. 2001), citing United States v. Mezzanatto, 513 U.S. 196,201 (1995). Such waivers 

are enforceable "provided that they are entered into knowingly and voluntarily and their 

enforcement does not work a miscarriage ofjustice." United States v. Mabry, 536 F.3d 231, 237 

(3d Cir. 2008), citing Khattak, 273 F.3d at 56l. 

We have "an independent obligation to conduct an evaluation of the validity of a 

collateral waiver." Mabry, 536 F.3d at 238. Specifically, we must examine the "(1) knowing 

and voluntary nature, based on what occurred and what defendant contends, and (2) whether 

enforcement would work a miscarriage ofjustice." Mabry, 536 F.3d at 237. "Whereas a 

defendant bears the burden of presenting an argument that would render his waiver unknowing or 

involuntary, a court has an affirmative duty both to examine the knowing and voluntary nature of 

the waiver and to assure itself that its enforcement works no miscarriage ofjustice, based on the 

record evidence before it." Id. at 237-238 (citing Khattak, 273 F.3d at 563.) 

A. Knowing and Voluntary Nature of the Waiver 

With regard to whether the waiver was knowing and voluntary we must, at a minimum, 

"review[] the terms ofthe plea agreement and change-of-plea colloquy and address[] their 

sufficiency." Mabry, 536 F.3d at 239. 

Pursuant to the plea agreement Mr. Marsh agreed to waive his right to take a direct 

appeal, except for limited reasons (Plea Agreement,,-r A.7 (a), Doc. 19.) Specifically, the parties 

agreed that Mr. Marsh could appeal if the United States appeals from the sentence, or if the 

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sentence exceeds the statutory limits or unreasonably exceeds the guideline range. (Plea 

Agreement, ~~ A.7.(b) (1) & (2).) Mr. Marsh also agreed to waive his right to file a motion to 

vacate sentence, under 28 U.S.C. § 2255, attacking his conviction or sentence, and the right to 

file any other collateral proceeding attacking his conviction or sentence. (Plea Agreement, ~ 

A.7.) Mr. Marsh signed the plea agreement acknowledging that he understood the terms ofthe 

agreement, and his attorney witnessed his signature. (Plea Agreement, p. 5) After a careful 

review, we find the terms ofthe plea agreement to be sufficient and clear with regard to the 

waiver of collateral rights. 

The knowing and voluntary nature ofMr. Marsh's waiver was reinforced during the plea 

colloquy. We have reviewed the transcript of our plea colloquy. (Transcript of Pie a Hearing, 

October 15, 2008, Doc.38). During the plea colloquy Mr. Marsh was determined to be 

competent to plead. (Id. at 4.) The Court explained to him what his rights would be if he went to 

trial. (Id. at 5·11.) The six counts were summarized by the court for Mr. Marsh, after he 

acknowledged receiving the indictment and having discussed it with Mr. Friedman. ilib at 7-8). 

The court also explained what the government would have to prove at trial with respect to each 

charge. (Id. at 10-11.) 

We also explained the penalties Mr. Marsh would be subject to, including restitution (I4, 

at 11-12.) In addition, the terms ofthe Plea agreement that Mr. Marsh signed clearly stated that 

the government and Mr. Marsh agree that he was subject to a "term of supervised release of eight 

(8) years." (Plea Agreement, Gov. Ex. 1, at C.l.(c». 

The terms of the plea agreement were explained to Mr. Marsh. (Id. at 15·17.) In 

particular, it was explained to Mr. Marsh that the Plea Agreement he was entering into 

included the waiver of the right to file a motion to vacate sentence under 28 U.S.C. §2255 

(Id. at 15-16) When Mr. Marsh indicated that he didn't understand some ofthe things explained 

by the assistant U.S. Attorney, he was given the opportunity to go off the record and have a 

private discussion with his attorney to clarify any questions he had. After the discussion with his 

attorney, the court asked Mr. Marsh, "So, you fully understand this now. Mr. Marsh?" to which 

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he responded, "Yes." (Id. at 18.) 

The government also set forth in detail what it expected to prove had it went to trial that 

day. <I9.: at 21-30.) The Court asked Mr. Marsh if it "was a fair and accurate statement of what 

happened," and Mr. Marsh stated, "Pretty much." <I9.: at 29.) He clarified: 

I mean, the first check, I treated it, it was a fraudulent check. Went 

through fine. And the thirty-one thousand dollars, I never heard anything. It was a 

month later before I actually found out when the second two checks - went to 

cash them and they called me a week later, said the checks are no good. And I 

never did a scheme and try to do anything. I had a failing business and that's the 

biggest reason I went on it, to get the money and this third check. 

THE COURT: But you knew when you were transferring those checks that 

what you were doing was not legal? 

THE DEFENDANT: Yes. The last three, three checks that I got, I realized 

that it was wrong. 

(Id. at 29-30) 

We would add to our examination ofthe colloquy that we also asked Mr. Marsh if "any 

out-of-court promises, representations or agreements been made which require you to respond 

untruthfully to any of my questions? For instance, has anyone told you to tell me that no promise 

ofleniency was made when, in fact, a promise of was so made? (Tr. of Change ofPlea, at 19.) 

Mr. Marsh responded by answering, "No, sir." <I9.: at 19.) We further asked: 

Do you understand that you may not at a later date after today claim that 

there were any promises, representations or agreements, understanding or threats 

made by any person that motivated or caused you to enter this plea other than 

those that you had the opportunity to tell me about here and now in open court? 

You understand that? 

THE DEFENDANT: Yes, sir. 

(Id. at 19-20.) 

Federal Rule of Criminal Procedure 11 (b)(1 )(N) requires that "[b]efore accepting a plea 

of guilty" the district court must "inform the defendant of, and determine that the defendant 

understands ... the terms of any plea-agreement provision waiving the right to appeal or to 

collaterally attack the sentence." For purposes of the present analysis we find that Mr. Marsh's 

guilty plea was knowing and voluntary and that specifically, his waiver of his collateral rights 

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was knowing and voluntary. 

B. Miscarriage of Justice 

We next address whether enforcement ofthe waiver "would work a miscarriage ofjustice 

in this case." Mabry, 536 F.3d at 239. We are to use a "common sense approach" and "look to 

the underlying facts to determine whether a miscarriage ofjustice would be worked by enforcing 

the waiver." Id. at 242,243. There is no identified list ofspecific circumstances to consider 

before invalidating a waiver as involving a miscarriage ofjustice. Id. However, the Third 

Circuit Court has "endorsed the methodology ofthe Court of Appeals for the First Circuit," and 

instructed that we should consider "'the clarity ofthe error, its gravity, its character (e.g., whether 

it concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact ofthe error 

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

the defendant acquiesced in the result ....m Id. at 242-243, quoting United States v. Teeter, 257 

FJd 14,25-26 (lst Cir. 2001). 

In Shedrick, the Court found a miscarriage ofjustice and so did not enforce the collateral 

attack waiver set forth in the plea agreement. In Shedrick, defense counsel had failed to file an 

appeal that the defendant had instructed counsel to file concerning an issue that the defendant 

"had explicitly preserved in his plea agreement and colloquy: the propriety of [an] upward 

departure." Shedrick, 493 F.3d at 303. The Third Circuit Court explained, 

At its essence, Shedrick's argument is that, as a result of counsel's deficient 

performance, he (l) failed to understand the full effect of his guilty plea as it 

related to upward departures, and (2) failed to timely appeal the District Court's 

upward departure, which he was entitled to appeal under the express terms ofthe 

plea agreement waiver. 

Shedrick, 493 F.3d at 298. Under these circumstances, the Court concluded that "[e]nforcing a 

collateral-attack waiver where constitutionally deficient lawyering prevented Shedrick from 

understanding his plea or from filing a direct plea agreement would result in a miscarriage of 

justice." Id. 

In Quiles Gonzalez, the District Court read Shedrick to "suggest[] that the Third Circuit is 

likely willing to adopt the Seventh Circuit's ineffective-assistance-constituting-miscarriage-of6 


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justice reasoning in the context of collateral-attack waivers." Quiles Gonzalez, 2007 WL 

2407288, *2 (referring to United States v. Joiner, 183 F.3d 635, 645 (7th Cir. 1999) ("ineffective 

assistance of counsel qualifies as a miscarriage ofjustice sufficient to overcome a waiver-ofappeal provision."). The District Court explained that it read Shedrick as holding that "a 

collateral-attack waiver should not be enforced if a habeas petitioner has alleged potentially 

viable ineffective-assistance-of-counsel claims, since refusing to consider and to remedy such 

claims, iftrue, would result in a miscarriage ofjustice." Id. at *3. The District Court later used 

more narrow language explaining that "under Shedrick, the Court should not enforce a collateralattack waiver in the face of allegations that constitutionally deficient lawyering may have 

prejudiced the habeas petitioner, including allegations that ineffective assistance may have 

caused the petitioner to enter a guilty plea that he did not understand or fully appreciate." Id., 

citing Shedrick, 493 F.3d at 298. In not enforcing the petitioner's collateral attack waiver the 

Quiles Gonzalez Court "err[ ed] on the side of caution" in light ofthe "absence of a more clear 

dictate" from the Third Circuit Court ofAppeals. rd. 

In Mabry, decided after Quiles Gonzalez the Third Circuit Court of Appeals has provided 

a more clear dictate. It is now clear that the mere allegation ofineffectiveness of counsel will not 

automatically invalidate a knowing and voluntary waiver of a collateral attack. Mabry, 536 F .3d 

at 243. 

In Mabry the defendant filed a section 2255 petition claiming that his counsel was 

ineffective in failing to file an appeal even though Mabry had asked his counsel to file such an 

appeal. The Mabry Court explained that Shedrick held that it would be a miscarriage ofjustice 

to enforce a waiver of a collateral attack that would result in barring an appeal expressly 

preserved in the plea agreement, a circumstance not present in Mabry's case. Mabry, 536 F.3d at 

243, construing Shedrick. All four issues Mabry wanted to raise on appeal were found to be 

"insubstantial and clearly encompassed by the broad waiver." Mabry, 536 F.3d at 243. In 

addition, Mabry did not allege that his "counsel was ineffective or coercive in negotiating the 

very plea agreement that contained the waiver." Mabry, 536 F.3d at 243. The Mabry Court thus 

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concluded that enforcement of the collateral attack waiver would not work a miscarriage of 

justice even though Mabry had raised the ineffectiveness of his counsel. Mabry, 536 F.3d at 243. 

We likewise find that enforcing the waiver in this case does not result in a miscarriage of 

justice. The waiver in this case is broad and admits of no exceptions. It reads as follows: 

ROBERT LEE MARSH, JR. further waives the right to file a motion to vacate 

sentence, under 28 U.S.C. §2255, attacking his conviction or sentence, and the 

right to file any other collateral proceeding attacking his conviction or sentence. 

(Plea Agreement, at A.7.) 

Mr. Marsh's case is not similar to Shedrick. He did not expressly reserve the right to 

appeal any particular issue he has set forth in his petition. He asserts that he failed to take a 

direct appeal because "My lawyer told me it would be better to accept a plea with less time. He 

then had me sign a paper stating that I would not be able to appeal after signing the plea 

agreement." (Motion to Vacate p. 5, ~ 1 1 (d).) 

Although Mr. Marsh's petition sets forth a multitude of incomprehensible arguments, we 

have carefully reviewed each ofthem and find that they are "insubstantial and clearly 

encompassed by the broad waiver." Mabry, 536 FJd at 243. At best, Mr. Marsh argues that his 

counsel was ineffective in negotiating the plea agreement that contained the waiver, but this 

argument fails. Before pleading guilty to the charge in the Indictment, the provisions of the plea 

agreement, specifically the waiver provision, were read to Mr. Marsh in open court. He 

knowingly and voluntarily agreed to the waiver. We realize that "[t]here may be an unusual 

circumstance where an error amounting to a miscarriage ofjustice may invalidate the waiver;" 

nevertheless, having considered the relevant factors (the clarity, gravity, and character of the 

alleged error; the error's impact on the parties; and the extent of the defendant's acquiescence in 

the result, United States v. Khattak, 273 F.3d 557,562-63 (3d Cir. 2001), we find that there is no 

basis to relieve Mr. Marsh from his waiver. 

Having found that Mr. Marsh knowingly and voluntarily waived his rights to file a 

collateral attack of his sentence and conviction, and that enforcement of the waiver does not 

work a miscarriage ofjustice, we will deny Mr. Marsh's petition. 

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C. Certificate of Appealability 

A court should issue a certificate of appealability where a petitioner makes a "substantial 

showing ofthe denial ofa constitutional right." 28 U.S.C. § 2253(c)(2). A petitioner meets this 

burden by showing that "reasonable jurists would find the district court's assessment ofthe 

constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473,484, 120 S.Ct. 1595 

(2000). We find that jurists ofreason would not find it debatable whether Mr. Marsh states a 

valid claim of the denial of a constitutional right and jurists of reason would not find it debatable 

whether we were correct in concluding that the petition does not present any claims upon which 

habeas relief may be granted. Therefore, the Court will deny a certificate of appealability. 

IV. Conclusion 

Mr. Marsh's section 2255 motion will be denied, and a certificate of appealability will 

not be issued. 

Accordingly, the following order is therefore entered. 

I' {$ AND NOW, to-wit, this day ofMarch, 2010, for the reasons stated above, it 

is hereby ORDERED, ADJUDGED, and DECREED as follows: 

1. Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. 

§ 2255 (Doc. 29), be and hereby is DENIED. 

2. The court declines to issue a Certificate ofAppealability. 

~~ t!atk:t.L. .k, auriCeB:Cohill, Jr. 

United States District Court Judge 

cc: Robert Lee Marsh, Jr. 

counsel ofrecord 

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