MENSAH-YAWSON v. USA, No. 2:2012cv01685 - Document 2 (W.D. Pa. 2013)

Court Description: MEMORANDUM AND ORDER denying Motion to Vacate/Set Aside/Correct Sentence (2255) filed by STEVEN MENSAH-YAWSON, without prejudice to his right to challenge the execution of his sentence under 28 U.S.C. § 2241; A Certificate of Appealability SHOULD NOT ISSUE with respect to the court's order dismissing petitioner's section 2255 motion, for the reasons set forth in the accompanying opinion. Signed by Chief Judge Gary L. Lancaster on 3/11/13. (map)

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MENSAH-YAWSON v. USA Doc. 2 IN THE UNITED ST.ATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNS)"LVANIA STEVEN MENSAH­YAWSON, Petitioner, Crim. Action No. 09­0276 Civil Action No. 12­1685 v. UNITED STATES OF AMERICA, Respondent. MEMORANDUM Gary L. Lancaster, Chief Judge. 2013 This is a motion to vacate sentence under the federal habeas statute, 28 U.S.C. § On December 15, 2010, a federal jury found petitioner Steven Mensah­Yawson, a citizen of Ghana, guilty of conspiring to commit an oEfense against the United States in violation of 18 U.S.C. 371. On January 7, 2011, this court sentenced Mensah­Yawson to time served with two years of supervised release, to begin on the date of his release from Immigration and Customs ( \\ ICE" ) custody, and also required him to make restitution. On November 5, court 2012, Mensah­ Yawson petitioned this se to vacate his Slentence on the grounds that he received ineffective assistancE! of counsel i:1 violation of the 1 All docket references in this opinion refer to U.S. v. Mensah­Yawson, Cr. No. 09 0276 (W.D.Pa. filed Sept. 15, 2009). Dockets.Justia.com Sixth Amendment at his crimina.1 trial and on appeal [doc. no. 236] . Ten days later, Mensah­ Yaws on was arrested on an ICE detainer. He is currently await.ing deportation. to Ghana. For the reasons set i:orth below, we will deny Mensah- Yawson's motion to vacate his sentence without a hearing. I. FACTUAL BACKGROUND A. The Criminal Case On September 15, 2009, a federal grand jury returned an indictment against Steven Mensah­Yawson and three co- conspirators for knowingly and willfully conspiring to engage in a fraudulent check­cashing scheme. [Doc. No. 1.] was alleged to be the leader of the conspiracy. the Immigration and Nationality Act, Mensah­Yawson [Id. ] Under if the amount of the pecunia.ry loss to the victims of the check­cashing scheme is found to be greater than $10,0:)0, Mensah­Yaws'on's offense rises to the level of an aggravated felony, thereby placing him at a severe risk of being deported. 8 U.S.C. § 1101(a) (43) (M). At the time the indictment was retm::­ned, Mensah­ Yawson was already in ICE custody on unrelated state charges. No. 13.] [Doc. Mensah­Yawson was arraigned on October 20, 2009, at which time he waived his detention hearing and thus remained in ICE custody. At various times prior to Mensah­ Yawson' s trial, 2 each of his three confederate::3 pled guilty to the conspiracy charge set forth in the indictment. Mensah­Yawson's trial began on December 13, 2010, and the jury returned a verdict of guilty on Dec:ember 15. During his trial, Mensah­Yawson was represented by Sally A. Frick, a private attorney in Pittsburgb., Pennsylvania:.. On January 7, 2011, this court sentenced Mensah­Yawson to time served, two years of supervised release to begin upon his release from ICE custody, and required him to ma.ke restitution in the amount of $43,645.98, to be paid jointly and several:.. y by him and his three co­conspirators. We also found at sentencing that the total loss resulting from the conspiracy was :?54, 586.82. During our review of the section 3553(a.) factors, we noted that MensahYawson's state and federal convictions made it eminently likely that he would be deported to Ghana. Mensah­Yawson was released from ICE custody on May 26, 2011, at which time he began the term of supervised release mandated by this CO.lrt. B . The Appeal Following his sentencing, Mensah­Yawson appealed his conviction on the ground that his right to a speedy trial under the Speedy Trial Act ("STAff) , 18 U.S.C. violated. U.S. v. June 20, 2012). § 3161 et ., was 2012 WL 2335317 at *1 (3d Cir. Mensah­Yawson based his STA claim on his having 3 "waited 456 days from the filing of the indictment, 421 days from the date he was arrai9ned, days 223 from when the government responded to his prE!trial motions, and 139 days from when he requested severance from his codefendants" before his trial began. ':7he alleged STl. violation was the Id. at *4 n.4. only claim Mensah­Yawson raised on appeal. Holding that Mensah­Yawson's calculations did not account for the STA's various tolling provisions, the court of appeals affirmed his conviction. Id. at *13. Sally Frick, the attorney who represented Mensa.h­Yawson at his criminal trial, also represented him during his appeal. C. The 2255 Petition On November 5, 2012, Mensah­Yawson signed, executed, and mailed to the clerk of this court a section 2255 petition to challenge his conviction and vacate his sentence. 'at 21.] [Doc. No. 236 Ten days later, on November 15, 2012, he was arrested by Homeland Security agents and was served with a notice of intent to administratively remove him from to his being convicted of an Ex . 1 at 423.] United States due felony. The following day, November 16, 2012, the clerk of court received and docketed Mensah­Yawson's 2255 petition. [Doc. No. 239, se section As of December 20, 2012, Mensah­Yawson remains 4 in ICE custody pending a credible fear interview with an Asylum Officer in York County, Pennsylvania. Id. ] In his section 2255 petition, Mensah­Yawson argues that his conviction and sentence resulted from his receiving ineffective assistance of counsel in violat:ion of the Sixth Amendment. He grounds his ineffecti veneeiS claims on his attorney's alleged failure to: (1) move for the dismissal of the indictment and (2) object to the total amount of the loss sustained as a result of the conspiracy, because he claims that he is responsible for a loss a.mount under $10, 000 rather than the $54,586.52 found by this CO'L:lrt at sentencirlg. 2 The government argues that tbis court lacks jurisdiction over Mensah­Yawson's petition because he was not "in custody" within the meaning of section 2255 when he filed his petition, that his ineffective assistance of counsel claims lack merit, and that he proc:edurally defaulted on any such ineffective assistance claims because he failed to raise them on direct appeal. Id. at 9.] 2 According to the U.S. Sentencing Guidelines Manual, the total loss for sentencing purposes is calculated as "the greater of actual loss or intended loss." §2B.1.1 cmt. n.3 (2011). "}l,ctual loss" refers to the "reasonably foreseeable pecuniary harm that resulted from the offense;" "intended loss" means lithe pecuniary harm that was intended to result from the offense," and "includes intended pecuniary harm would have been impossible or unlikely to occur." rd. at n.3 (A) (i) (ii). 5 II. LEGAL STANDARD The federal habeas statute permits an individual in custody to petition a court fo:::­ release on the ground that his sentence was imposed in violation of the Constitution or the laws of the United States. conviction relief is 28 U.S.C. available § only 2255 (a). in Post­ "exceptional circumstances" to correct either "a fundamemtal defect which inherently results in a complete miscarriage of justice" or "an omission inconsistent with tbe rudimentary demands of fair procedure. /I Hi 11 v. U. S ., 368 U. S . 424, 428 (1962) . Because a section 2255 motion is a collateral attack on a sentence, "a [petitioner] must clear a significantly higher hurdle than would exist on direct appeal" in proving that he is entitled to relief. U.S. v. Frady, 456 U.S. 152, 166 (1982) i U.S. v. Davies, 394 F.3d 182, 189 (3d Cir. 2005). To obtain petitioner must habeas demonstrate :::­elief under ':hat he is section "'in 2255, custody under sentence of a court established by an Act of Congress. " 2255 (a) . This requirement is ::iurisdictional in nature. v. Cook, 490 U. S . 488, 490 (1989). a § Maleng However, a petitioner need not be incarcerated to be "in custody" witlLin the meaning of section 2255(a) and may satisfy the custody requirement by being on supervised release at the time he files hiB petition. 6 Id. at 491. Custody is measured at the time the?etition is filed. Chong v. Dist. Dir., I.N.S., 264 F.3d 378, 382 (3d Cir. 2001). In seeking collateral review under section 2255, "a movant ordinarily may only raise claims in a 2255 motion that he sed on direct review" and ""rill have "procedurally defaulted all claims that he neglected to raise on direct appeal." Hodge v. U.S., 554 F.3d 372, 378­79 (3d Cir. 2009) (citing Bousley v. U,S" 523 U.S. 614, 621 (1998)). However, a movant will be exempted from the procedural default rule if he can prove "that there is a valid cause for the default, as well as prejudice resulting from the default." Id. A district court is ordinarily rel:;ruired to hold an evidentiary hearing on a section 2255 petition "[u] nless the motion and the files and records of the case conclusively show that the [petitioner] is entitled to no re] ief . #I § 2255 (b) i ­,,­­,­­,,­­,­_­,,­­,­____ , 536 F. 3d 190, 19:: (3d Cir. 2008). III. DISCUSSION In his section 2255 petition, Mensah­Yawson raises for the first time that he received ineffective assistance of counsel in violation of the Sixth Amendment at his trial and on appeal. 3 In response, the gO'lernment chall':mges this court' s jurisdiction to hear Mensah­Ya'ilTson's section 2255 petition and 3 Because Mensah­Yawson is a liberally as possible. U. se litigant, we construe his motion as 502 F.3d 331. (3d Cir. 2007). 7 also argues in the alternative that his ineffective assistance of counsel claims are meritless. While we reject the government's jurisdictional argument, we agree that Mensah­Yawson's Sixth Amendment claims are without merit and that he has failed to satisfy the cause requirement to save the claims from procedural default. We will therefore deny his motion to vacate his sentence without holding an evidentiary hearing. A. The Government's Jurisdi::tional As a preliminary the government challenges the court's jurisdiction to hear Mensah­Yawson':3 petition on the ground that he was not "in custody" as cLefined in section 2255 (a) . Specif ically, the government argues that ICE arrested Mensah­Yawson before he filed his section 2255 petition and that he was thus in ICE's custody rather than in custody under sentence of this court at the time of the petition's filing. Although our court of appeals has not decided this issue specifically, other courts of appeals have held that immigration detention is not "custody" for the purposes 0:1: a habeas petition filed under section 2255. See,. U. S. v. Esogbue, 357 F. 3d 532, 534 (5th Cir. 2004). The government s jurisdictional I is based on an incorrect understanding of the timeline of Mensah­Yawson's 8 Section 2255 motions of pro se petitioners are detention. deemed to be filed on the dc:.te they are signed. Morton, 134 F.3d 109, 113 (3d Cir. 1998). Burns v. Al though Mensah- Yawson's pro se petition was not docketed by the clerk of court until November 16, 2012, the day after his arrest and incarceration by ICE, Mensah-Ya1l'lson signed, executed, and mailed the petition on November 5 while he was still serving his term of supervised release. [Docs. No. 236; 239, Ex. 1 at 423; 240.] Consequently, he was not in ICE's custody on November 5, the day he signed and executed his section 2255 petit:i.on, but rather was "in custody" under the sentence of supervised release imposed by this court. B. Thus, we have juri!::diction over t::1e petition. Petitioner's Ineffective Assistance Claims In reviewing a section 2255 petition, a district court may consider only those claims previously raised on direct appeal, unless there is good cause for the petitioner's previous failure to raise them. Hodge, 554 F.3d 378-79. "[i]neffective assistance of counsel that a Sixth Amendment violation constitutes default." Yawson claims, may Id. at 379. proceed on Therefore, his A claim for the ses to the level of for a procedural to determlne whether Mensah- ineffective assistance of counsel the court must determine whether his attorney's alleged 9 deficient performance rose to the level deprivation of the right to counsel. of a constitutional Id. Every criminal defendant has a Sixth Amendment right to "reasonably effective 466 alleged poor U.S. [legal] 668, assistance." 687 performance (1984). gives Strickland v. However, rise to a not every constitutional violation. An attorney renders constitutionally defective legal assistance in a criminal proceeding "when [her] performance [falls] below an objective standard of reasonableness, given the particular circumstances of the case at hand," is more likely than not prejudiced as a result. at 379 does (quoting Strickland, not act unreasonably 466 U.S. or and the defendant Hodge, 554 F.3d at 688 .. 89). prejudice her client Real v. declines to raise a meritless argument. An attorney when she Shannon, 600 effects of F.3d 302, 309 (3d Cir. 2010). Moreover, "due to the distor:ing hindsight," the court's "scrutiny of counsel's performance must be highly deferential," because "it is I too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that unreasonable." a particular a=t or omission Strickland, 466 U.S. at 689. 10 of counsel was 1. Counsel's Alleged Failure To Move fO:l::- the Dismissal of the Indictment To prevail on his claim that constitutionally ineffective assistance the dismissal Ms. Frick's of the indictmer:.t, inaction was Ms. Frick in fctiling was prejudiced as a result. to move for Mensah- YaWE:on must obj ectively unreasonable rendered show that and that 554 F.3d at 379. he A review of the record shows that he cannot meet this burden. Mensah- Yawson submits that Ms. failing to move for violation against [Doc. No . the indictment's the United States 236 at 4.] Frick was deficient in Therefore, dismissal [] because occurred under he argues, This argument is without merit. section 371 crime, not Specifically, (1) criminalizes just Uni ted at directed to commit against the any federal government. section 371 "refers to two types of conspiracies: conspiracy another Id. It is well accepted that conspiracies those 371." § the court did not possess subject-matter jurisdiction to hear the case. 15. ] "no to statute" commit as States." well U.S. v. a as substantive "(2) offense conspiracy 77 F.3d to 713, proscribed defraud 718 (3d by the Cir. 1996) . The charge against Mensah-Yawson falls clearly within the first category. Therefore, Ms. Frick's decision not to move for the indictment's dismissal was not objectively unreasonable. 11 Having failed showing of to prove prejudice this, Mensah-Yawson required to sustain cannot a.n make ineffectiveness claim and has thus procedurally defaulted on the claim. 554 F.3d at His motion to vacate 379. hiE: the Hodge, sentence on this ground will be denied. 2. Counsel's Alleged Pecuniary Loss Amount Next, To Mensah-Yawson Object argues to that the Ms. Total Frick's representation was deficient because she did not challenge the total loss sentencing. loss to be figure of $54,586. 1:;2 Had she done so, less than that $10, ODD, See § court determined at and had the court found the total Mensah-Yawson would not guilty of an aggravated felony and, facing deportation. the consequen.tly, 1101 (a) (43) (M) . now be would not be .,l.\.gain, a review of the record shows that Mensah-Yawson has not met his burden in establishing a Sixth Amendment ineffectiveness claim. In support of his claim that he is not responsible for more than $10,000 of cashing scheme, shred of loss sustained as a result of the check- Mensah-Yawson alleges only tha.t "there is not a evidence that coconspirators reached No. 236 at 18-19.] ll his scope of [sic] a.greement with an amount greater tha.n $10,000. the [Doc. He does not challenge either the documentary evidence the government introduced or the witness testimony the government developed at trial, nor does he a:rgue that Ms. 12 Frick was unreasonable for not objecting to this evidence's admission. He also offers no alternative calculation showing that the total loss attributable to him is indE:ed less than $10,000. In fact, contrary allegation that there was not that he was involved with Mensah-Yawson's to "a shred more of evidence indicating II than $10,000 evidence presented at trial showed that he directed every aspect of the conclusory loss, the involved in and Wi;tS conspiracy. of Several of his co conspirators testified that he approached and struck deals with them to engage in and split [Doc. Ex. No. 239, at 1 the proceeds of A forensic 58-6].] laptop computer showed that it contained a design checks, numbers of as well as da:::a the fraud victims the files analysis of his software program to with the bank account (which had been deleted but were recovered by forensic specialists) and images of the counterfeit [Id. at 202-04, checks that were negotiated during the scheme. Addi tional evidence further showed that Mensah- Yawson 208-18.] had check fraud. ordered special "check-making ink" from a company that specializes in that product and that he subsequently asked the company to records. delete his name [Id. at ISO-54, and account information implicated testimony from Mensah-Yawson its Regarding the loss amount specifica:,.ly presented from t'wo in the 13 witnesses I who negotiation the government specifically or attempted negotiation of at least $10, 49H in fraudulent checks. 194 at 38 40, 99 102.] Id. at Testimony from the Secret Service agents assigned to the case further demonstrated that the loss to one of the fraud victims reached at least $20,000 and that the loss could be traced directly back to Mensah- Yaws,on. 244-54.] This Id. at 240, testimony overwhelmingly indicated that Mensah- Yawson was the driving force b€hind : Sentencing Guidelines, the scheme. Under the U.S. as the leader of the conspiracy, Mensah- Yawson is responsible not only for the loss he personally caused or intended to cause the fraud victims, but also any loss or intended loss that he knew or reasonably shou1d have known would occur in the course of the conspiracy. GUIDELINES MANUAL 2011, §§ See U. S . SENTENCING 1B1.3 (a) (1) (B), 2B1.1 cmt. n.3 (A) (2011). This evidence is sufficient to support a finding that Mensah­Yawson was responsible fDr more than $10,000 of pecuniary While the record shows that Ms. Frick brought to the loss. court 1 S attention the importc:.nce of the :;;10 1 000 figure to Mensah­Yawson ' s efforts to remcLin in the Uni!:ed States rid. at 6] 1 the evidence adduced at trial left no dou.bt that the actual and intended loss of the conspiracy far surpassed $10 1 000. Any obj ection by Ms. Frick at sentencing to the total loss amount would have been non­meritoriousi thus 1 obj ection was prejudicial. not unreasonable and Real, 600 F.3d at 309. 14 the lack of such an could, not have been Mensa,h­Yawson has thus failed to show that Ms. Frick rendered constitutionally ineffective assistance of counselor that he had cause for his procedural default. Consequently, we will deny his motion to vacate his sentence on this ground as well. Finally, in light of the foregoing analysis, we find that the motion and records of the case conclusively show that Mensah- Yaws on is not entitled to relief. his request for an evidentiary hearing. IV. We will thus decline Lilly, 536 F.3d at 195. CONCLUSION For the reasons set forth above, to vacate his sentence pursuant to 28 U.S.C. An appropriate order follows. 15 petitioner's motion § 2255 is denied. IN THE UNITED STA.TES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA STEVEN MENSAH-YAWSON, Petitioner, Crim. Action No. 09 0276 Civil Action No. 12-1685 v. UNITED STATES OF AMERICA, Respondent. ORDER AND NOW, ORDERED that this petitioner's correct sentence [Crim. No. day of motion March, 09-J276, to 2013, vacate, at doc. no. IT set IS HEREBY aside, 236] or is DENIED without prejudice to his right to challenge tb.e execution of his sentence under 28 U.S.C. § 2241. IT IS FURTHER ORDERED that a Certificate of Appealability SHOULD NOT ISSUE '1lTith respect tc the court's order dismissing petitioner's section 2255 motion, for the reasons set forth in the accompanying opinion. . J cc: All Counsel of Record Steven Mensah-Yawson, pro se York County Prison Pouch #193359 Housing: M-E8 3400 Concord Road York! PA 17402 .Ji '1 ____________________ ' C.J.

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