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Pumper v. United States

United States District Court, N.D. Ohio, Eastern Division

June 21, 2017




         Before the Court is the motion of petitioner Steven Pumper (“petitioner” or “Pumper”) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 30 [“Mot.”].) Respondent United States of America (“respondent” or “government”) opposes the motion (Doc. No. 32 [“Opp'n”]), and petitioner has filed a reply. (Doc. No. 33 [“Reply”].) For all of the foregoing reasons, petitioner's motion is denied as time-barred.

         I. Background

         In 2007, the Federal Bureau of Investigation launched a large-scale, multi-year probe into potential public corruption in Cuyahoga County, Ohio. The focus of the investigation was allegations that one of the county's three commissioners, James Dimora, along with the county auditor, Frank Russo, had orchestrated a conspiracy whereby the two men would benefit themselves, their co-conspirator's and their designees, by using the power and authority of their public offices to elicit monetary and in-kind bribes in exchange for public contracts and employment with the County.

         Pumper, a local contractor whose company received county building contracts, was one of the first individuals approached by the FBI, and one of the first to agree to cooperate with authorities. As part of his cooperation, petitioner participated in several proffer sessions with attorneys from the Office of the United States Attorney for the Northern District of Ohio. These sessions were governed by a proffer agreement, dated October 10, 2008, which provided, in pertinent part:

[N]o statements made or other information provided by [Pumper] during the proffer will be used directly against him in any criminal trial, unless it involves the commission of a crime of violence or a prosecution for perjury, making false statements or obstruction of justice. [Also], the government may make derivative use of any statement or information, and may pursue any investigation leads suggested by any statement or information, provided by [Pumper]. This provision is necessary in order to eliminate the necessity for a Kastigar hearing at which the government would have to prove that the evidence it would introduce at trial is not tainted by any statements made by or other information provided by [Pumper] during the proffer.

(Doc. No. 30-9 (Proffer Letter) at 442.[1]) Despite the fact that he signed the agreement, petitioner claims to “have no idea of [the] contents.” (Mot. at 396.)

         On July 17, 2009, pursuant to the terms of a plea agreement, petitioner entered a plea of guilty to Counts 1-9 of an Information charging petitioner with conspiracy to commit bribery and bribery concerning programs receiving federal funds, conspiracy to obstruct and obstruction of justice, making materially false statements to law enforcement, structuring, and mail fraud and honest services mail fraud. (Doc. No. 1 (Information); Doc. No. 8 (Plea Agreement); Doc. No. 5 (Minutes of Guilty Plea Hearing).) The plea agreement contained an express provision waiving the right to bring a direct appeal or to initiate post-conviction proceedings, “including a proceeding under 28 U.S.C. § 2255.” (Plea Agreement at 55.) Pumper further agreed “not to oppose any request of the United States that his sentencing be postponed until [Pumper's] cooperation is completed. [Pumper] knowingly waives any rights he may have under the Speedy Trial Act, 18 U.S.C. § 3161.” (Id. at 63.) The government, in turn, agreed to entertain any request by petitioner to schedule his sentencing hearing prior to completing his cooperation. (Id.)

         At the parties' request, the Court agreed to defer sentencing until Pumper had competed his cooperation. (Minutes of Guilty Plea Hearing at 42.) On January 21, 2011, the matter was reassigned to the undersigned, and petitioner's sentencing was set for June 25, 2012. (Doc. No. 15 (Notice of Sentencing Hearing).) At the government's request, the date was continued to permit petitioner to continue to provide assistance to the government and to allow him to testify at the trials of certain co-conspirators. On December 4, 2013, petitioner was sentenced to a term of 97 months of imprisonment, which represented a low-end guideline sentence that was in accordance with the plea agreement, including the recommended 3-level downward departure for his cooperation. (Doc. No. 23 (Judgment).)

         Petitioner did not take a direct appeal, but on March 8, 2016, he filed the present motion under 28 U.S.C. § 2255 to vacate his sentence. The primary contention in his petition is his belief that information he provided in his proffer was impermissibly used to charge him. He also claims that he was deprived of his right to a speedy trial by virtue of the delay in sentencing, and deprived the effective assistance of counsel, purportedly resulting from his counsel's representation that petitioner had waived his right to an appeal. Petitioner also maintains that the Court erred in enhancing his sentence. He requests an evidentiary hearing.

         II. Petitioner's Motion to Vacate Under § 2255

         A. Standard of Review

         A federal prisoner may attack the validity of his sentence by filing a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 in the district court where he was sentenced. Section 2255 sets forth four grounds upon which a federal prisoner may state a claim for relief: “[1] the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] [the sentence] is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255(a).

         A criminal defendant may not utilize a § 2255 motion as a substitute for a direct appeal. Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003); Capaldi v. Pontesso, 135 F.3d 1122, 1124 (6th Cir. 1998) (“An application under § 2255 . . . should not be considered a substitute for direct appeal.”); see Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999). To assert a claim not raised on direct appeal, a petitioner ordinarily must show cause for the default and prejudice. See Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1064, 140 L.Ed.2d 828 (1998); United States v. Frady, 456 U.S. 1584, 1603-04, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1998).

         A petitioner who entered a guilty plea must show an error of constitutional magnitude that had a substantial and injurious effect or influence on the proceedings. Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003) (citing Abrahamson, 507 U.S. at 637). Therefore, a court may only grant relief under § 2255 if the petitioner demonstrates “‘a fundamental defect which inherently results in a complete miscarriage of justice.'” Id. at 736 (quoting Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)). A petitioner further bears the burden of articulating sufficient facts to state a viable claim for relief under § 2255. Vague and conclusory claims which are not substantiated by allegations of specific facts with some probability of verity are not enough to warrant relief. A § 2255 motion may be dismissed if it only makes conclusory statements without substantiating allegations of specific facts and fails to state a claim cognizable under § 2255. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961).

         When a defendant challenges the validity of a plea, the representations of the defendant, his lawyer, the prosecutor, and the judge “constitute a formidable barrier in any subsequent collateral proceedings.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). Such “[s]olemn declarations in open court carry a strong presumption of verity.” Id. Subsequently-presented conclusory allegations that fly in the face of the record are subject to summary dismissal. Id. (citations omitted).

         A court should hold an evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief[.]” 28 U.S.C. § 2255(b). Thus, “no hearing is required if the petitioner's allegations ‘cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'” Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)); see also Napier v. United States, No. 93-5412, 1993 WL 406795, at *2 (6th Cir. Oct. 8, 1993) (“To be entitled to a hearing, the prisoner must set forth detailed factual allegations which, if true, would entitle him to relief under § 2255.”) (citing, among authorities, Machibroda v. United States, 368 U.S. 487, 496, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962)); cf. Valentine v. United States, 488 F.3d 325, 334 (6th Cir. 2007) (finding that the burden is met where the petitioner “offers more than a mere assertion . . . he presents a factual narrative of the events that is neither contradicted by the record nor ‘inherently incredible'”). Where (as here) the judge considering the § 2255 motion also presided over the sentencing hearing, the judge may rely on his or her recollections of those proceedings. See Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996) (citation omitted).

         The Court finds that an evidentiary hearing is not warranted in the present case. The undisputed facts in the record demonstrate that petitioner's motion-filed more than two years after his sentence became final-is time-barred under the governing statute, and petitioner has not come forward with any facts that would demonstrate that he is entitled to equitable tolling.

         B. Timeliness under ...

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