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Mathis v. United States

United States District Court, D. Delaware

March 27, 2017

DIWANN MATHIS, Movant/Defendant,
v.
UNITED STATES OF AMERICA, Respondent/Plaintiff. Civ. Act. 13-2008-LPS, 13-2007-LPS

          Diwann Mathis. Pro se Movant.

          Shannon Thee Hanson, Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Attorney for Respondent.

          MEMORANDUM OPINION

          STARK, U.S. District Judge:

         I. INTRODUCTION

         Diwann Mathis ("Movant") filed a Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255. (D.I. 99 in Crim. Act. No. 11-71-LPS-l; D.I. 17 in Crim. Act. No. 12-18-LPS) The United States ("Government") filed an Answer in Opposition. (D.I. 112 in Crim. Act. No. 11-71-LPS) For the reasons discussed, the Court will deny Movant's § 2255 Motion without holding an evidentiary hearing.

         II. BACKGROUND

         On April 3, 2012, Movant pled guilty to: (1) four counts of the Indictment in Crim Act. No. 11-71-LPS, charging him with conspiracy to commit bank fraud, bank fraud, social security fraud, and aggravated identity theft; and (2) three counts of the Felony Information in Crim. Act. No. 12-18-LPS, charging him with conspiracy to defraud the Government with respect to claims, identity theft, and misuse of a social security number. (D.I. 55 in Crim. Act. No. 11-71-LPS-l; D.I. 3 in Crim. Act. No. 12-18-LPS) On August 2, 2012, the Court sentenced Movant to a total of fifty-one months of imprisonment. (D.I. 76 in Crim. Act. No. 11-71-LPS-l; D.I. 7 in Crim. Act. No. 12-18-LPS) Movant appealed, and the Third Circuit Court of Appeals summarily affirmed his convictions due to his appellate waiver. (D.I. 96 in Crim. Act. No. 11-71-LPS-l; D.L 16 in Crim. Act. 12-18-LPS)

         Movant timely filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Pursuant To 28 U.S.C. § 2255. (D.I. 99 in Crim. Act. No. 11-71-LPS-l; D.I. 17 in Crim. Act. No. 12-18-LPS) The Government filed a Reply in Opposition. (D.L 112 in Crim. Act. No. 11-71-LPS-l) Movant also filed a Motion to Consolidate his § 2255 proceeding with his co-defendant wife's (Marketa Wright's) § 2255 proceeding. (D.I. 94 in Crim. Act. No. 11-71-2-LPS-l; D.I. 14 in Crim. Act. No. 12-18-LPS)

         III. MOTION TO CONSOLIDATE

         In his Motion to Consolidate, Movant seeks to consolidate his § 2255 proceeding with Wright's § 2255 Motion[1] because he and Wright are seeking to vacate their judgments in Crim. Act. No. 11-71-LPS on the same ground, and they are seeking identical relief. (D.I. 94 in Crim. Act. No. 11-71-2-LPS-l) After reviewing Movant's § 2255 Motion, Wright's § 2255 Motion, and the Government's Answer in Opposition, the Court concludes that consolidating Movant's § 2255 Motion with Wright's § 2255 Motion would be inappropriate. As explained below, the Court concludes that Movant's § 2255 Motion is meritless. In contrast, however, according to the Government's Response in Wright's § 2255 proceeding, Wright's § 2255 Motion is time-barred.[2]Accordingly, the Court will deny the Motion to Consolidate.

         IV. DISCUSSION

         In the instant Motion, Movant asserts that defense counsel provided ineffective assistance by: (1) failing to object to the enhancement for there being 50 or more victims; and (2) failing to object to the computation of his criminal history score at sentencing. The Government contends that these Claims should be denied as meritless.

         Movant has properly raised his ineffective assistance of counsel allegations in a § 2255 motion. See Massaro v. United States, 538 U.S. 500 (2003). Although Paragraph 9 of Movant's Plea Agreement contains the following waiver of Movant's right to file a direct appeal and/or a collateral attack on his conviction and sentence, the waiver expressly exempts ineffective assistance of counsel claims:

The defendant knows that he has, and voluntarily and expressly agrees to waive, the right to file any appeal, any collateral attack, or any other writ or motion in this criminal case after sentencing - including but not limited to, an appeal under Tide 18, United States Code, Section 3742 or Tide 28, United States Code Section 1291 or a motion under Title 28, United States Code Section 2255 - except that the Defendant reserves his right to appeal based on a claim that: (1) Defendant's sentence exceeded the statutory maximum; (2) ...

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