United States District Court, D. Delaware
Todd Yurgin, Pro se movant.
Robert Kravetz, Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Attorney for respondent.
GREGORY M. SLEET, District Judge.
Movant Todd Yurgin ("Yurgin") filed a pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (D.I. 99) The government filed an answer in opposition. (D.I. 109) For the reasons discussed, the court will grant the government's motion and deny Yurgin's § 2255 motion without holding an evidentiary hearing.
In February 2010, Yurgin and his co-defendant, Joseph Aughenbaugh, were indicted on eight counts stemming from a sophisticated fraud and identity theft scheme. The charges included conspiracy to commit mail fraud, wire fraud, and bank fraud, in violation of 18 U.S.C. § 371 (count one); mail fraud, in violation of mail fraud, in violation of 18 U.S.C. § 1341 (count two); social security fraud, in violation of 42 U.S.C. § 408(a)(7)(B) (counts three, four, and seven); money laundering, in violation of 18 U.S.C. § 1957 (count five): and aggravated identity theft, in violation of 18 U.S.C. § 1028A (count eight).
Yurgin was represented by his original attorney from September 2009 through the beginning of April 2010. In April 2010, the court appointed new counsel (hereinafter referred to as "plea counsel") to represent Yurgin. (D.I. 27)
On August 12, 2010, a superseding indictment added several related charges, as well as a charge of assaulting a federal agent (count sixteen). (D. I. 44) On August 30, 2010, Yurgin waived indictment and pled guilty to the following six counts of a criminal information, which consolidated certain charges and removed any reference to the alleged assault charge: (1) count one: conspiracy to commit mail fraud; (2) count two: mail fraud; (3) counts three and four: social security fraud; (4) count five: money laundering; and (5) count six: aggravated identity theft. The memorandum of plea agreement provided, in relevant part:
The defendant knows that he has, and voluntarily and expressly waives, the right to file any appeal, any collateral attack, or any other writ or motion after sentencing - including, but not limited to, an appeal under 18 U.S.C. § 3742 or 28 U.S.C. § 1291, or a motion under 28 U.S.C. § 2255 - except that the defendant reserves his right to appeal only if (1) the government appeals from the sentence, (2) the defendant's sentence exceeds the statutory maximum for the offense set forth in the United States Code, or (3) the sentence unreasonably exceeds the Sentencing Guidelines range determined by the District Court in applying the United States Sentencing Guidelines.
(D.I. 52 at ¶ 11)
During the plea colloquy, the court reviewed each paragraph and posed specific questions to Yurgin with respect to each section of the plea agreement. The court read the appellate and collateral attack waiver provision to Yurgin, confirmed that Yurgin had consulted with his attorney regarding the waiver, and discussed in detail the implications of the waiver. (D.I. 55 at 43-48) In response to the court's inquiries, Yurgin stated affirmatively that he understood the rights to be waived and that the plea agreement accurately reflected the agreement reached with the government. Id. at 47-55. Yurgin signed the plea agreement and the court adjudged him guilty.
In October 2010, Yurgin filed a letter motion requesting the appointment of new counsel. (D.I. 54) The court granted that motion, and new counsel (hereinafter referred to as "sentencing counsel") started representing Yurgin. Sentencing counsel filed a motion to withdraw Yurgin's guilty plea. (D.I. 67) The court denied the motion on February 3, 2011. (D.I. 83) On March 24, 2011, the court sentenced Yurgin to a total sentence of 199 months' imprisonment. Judgment was entered on March 30, 2011. (D.I. 88)
Yurgin filed a notice of appeal. The government filed a motion to enforce the appellate waiver and for summary affirmance. On July 20, 2011, the Third Circuit Court of Appeals issued an order enforcing the appellate waiver and summarily affirming this court's judgment. (D.I. 96)
Yurgin timely filed his § 2255 motion in March 2012, and then filed a supplemental opening brief. (D.I. 99; D.I. 106) After reviewing these two documents together, the court construes Yurgin's § 2255 motion as asserting the following four grounds for relief: (1) plea counsel provided ineffective assistance by coercing Yurgin to enter a guilty plea against his will, by permitting the court to involve itself in the plea proceedings, and by misleading Yurgin and providing erroneous advice; (2) sentencing counsel provided ineffective assistance by attaching an unsworn affidavit from Yurgin's co-defendant Aughenbaugh to the November 22, 2010 motion withdraw the guilty plea without requesting an evidentiary hearing to authenticate that affidavit (D.I. 67; D.I. 69; D.I. 73), by failing to make unspecified arguments regarding the proper amount of loss for relevant conduct purposes at sentencing, and by failing to inform Yurgin that the court had appointed two attorneys to represent him; (3) Yurgin did not enter his plea knowingly and intelligently because he did not possess a factual understanding of the elements of the charged offense; and (4) the court should have held an evidentiary hearing to determine Yurgin's competency despite plea counsel's request that the court deny the motion as moot. In response, the government moves for dismissal of the § 2255 motion, based on the collateral review waiver provision contained in Yurgin's plea agreement. (D.I. 109 at 5-8) Alternatively, the government contends that Yurgin's claims should be denied as meritless. (D.I. 109 at 813)
To summarize, plea counsel represented Yurgin from April 2010 (D.I. 27) through September 2010 (D.I. 54), which included the plea negotiations and plea colloquy. Sentencing counsel represent Yurgin from October 2010 (D.I. 59) through March 28, 2011 (D.I. 87), which included the period following the entry of the plea agreement up until the first day of the sentencing hearing. Yurgin elected to represent himself during the actual sentencing hearing.
A. Appellate/Collateral Waiver
As a general rule, courts will enforce a defendant's waiver of his appellate and collateral rights, if it is "entered knowingly and voluntarily and [its] enforcement does not work a miscarriage of justice." United States v. Mabry, 536 F.3d 231, 236-37 (3d Cir. 2008). The court has an affirmative and "an independent obligation to conduct an evaluation of the validity of a collateral waiver." Id. at 238. Specifically, the court must consider: (1) whether the waiver was knowing and voluntary; (2) whether there is an exception to the waiver which prevents its enforcement; and (3) whether enforcement of the waiver would cause a miscarriage of justice. United States v. Goodson, 544 F.3d 529, 536 (3d Cir. 2008).
When determining if a waiver of the right to collateral review was knowing and voluntary, the reviewing court must determine if "the district court inform[ed] the defendant of, and determine[d] that the defendant under[stood]... the terms of any plea agreement provision waiving the right to appeal or to collaterally attack the sentence as Federal Rule of Criminal Procedure 11(b)(1)(N) requires." Mabry, 536 F.3d at 239. When determining whether a miscarriage of justice would occur if the waiver were enforced, there is no specific list of circumstances that would constitute a miscarriage of justice. Id. at 242. Rather, the court must apply a common sense approach and evaluate "the clarity of the error, its gravity, its character (e.g., whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact of the error on the defendant, the impact of correcting the error on the government and the extent to which the ...