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Schliebener v. United States

United States District Court, W.D. New York

April 1, 2018

WILLIAM HERBERT SCHLIEBENER, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          DECISION AND ORDER

          HON. FRANK P. GERACI, JR. CHIEF JUDGE

         INTRODUCTION

         Pro se Petitioner William Herbert Schliebener, Jr. filed a Motion to Vacate, Set Aside, or Correct the Sentence pursuant to 28 U.S.C. § 2255. ECF No. 103.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         On April 4, 2014, Schliebener appeared before this Court and entered a guilty plea to four counts of a superseding information: Count 1, which charged a violation of 18 U.S.C. § 2423(a) (transportation of a minor), and Counts 2-4, which charged violations of 18 U.S.C. §§ 2251(a) and (e) (knowing production of child pornography). Following an extensive plea colloquy, Petitioner entered a guilty plea. ECF No. 98 (Transcript of April 14, 2014). The Plea Agreement was also executed in open court. ECF No. 84 (Plea Agreement).

         At the sentencing hearing, the Court sentenced Petitioner to a 300-month term of imprisonment. ECF No. 99 (Transcript of November 18, 2014). He appealed his conviction to the Second Circuit Court of Appeals, which affirmed his conviction on January 27, 2016. United States v. Schliebener, 632 F. App'x 28 (2d Cir. 2016). In that decision, the Second Circuit expressly rejected two arguments Petitioner made that are relevant here. The Second Circuit found that the application of the “One Book Rule” did not violate the Ex Post Facto Clause because Petitioner was given sufficient notice before the commission of the most recent offense. Specifically, the Second Circuit ruled that, because Schliebener could have been prosecuted in North Carolina on all four counts, “the location in which (on his consent) Schliebener was ultimately convicted and sentenced is irrelevant to our analysis of his ex post facto claim.” Id. at 29.

         Secondly, the Second Circuit expressly rejected Petitioner's claim regarding the imposition of a two level enhancement for the commission of a sex act in connection with the transportation count. “Although, as Schliebener observes, an analysis of a rape kit test produced no evidence of semen or saliva, the victim also stated that Schliebener had condoms and that she showered before the rape kit test was performed. Given the undisputed evidence in the record that Schliebener committed sex acts on other minors, it was not clear error for the district court to credit the victim's statements and to view them as explaining the seemingly inconsistent rape kit results.” Id.

         On April 6, 2017, Schliebener filed this Section 2255 petition, arguing that his plea was involuntary because he anticipated a shorter sentence based upon his attorney's and the government's expectations as to the sentencing guideline range. He further argues that his attorney, Mr. Ciccone, provided ineffective assistance of counsel because, had Petitioner “been sentence[d] in North Carolina for the North Carolina crimes, the 2013 Sentencing Guideline Manual would not have been applicable to those crimes, and as such, [he] would have been afforded a lesser guidelines rang[e].” ECF No. 103 at 5. Petitioner argues that he was prejudiced because he would not have entered a guilty plea had he been “properly informed.” Id. Petitioner's third argument is that counsel's performance was constitutionally deficient in “allowing a two-point enhancement to be added to [his] offense level as the ‘rape kit' showed that there had been no evidence of a sexual act.” Id. Because this argument rests on the assumption that the two point enhancement was error, which the Second Circuit expressly rejected on direct appeal, it will not be addressed further because it is procedurally barred. See Schliebener, 632 F. App'x at 29; United States v. Sanin, 252 F.3d 79 (2d Cir. 2001).

         The Government notes that the plea agreement was executed in open court after an extensive colloquy in which Petitioner was informed that he could be sentenced to life in prison, that the sentencing guidelines were non-binding, and that the plea was knowing and voluntary. The Government further contends that counsel was not ineffective for failing to correctly predict the sentence that would be imposed, and notes that even before United States v. Booker, 543 U.S. 220 (2005), rendered the sentencing guidelines merely advisory, the Second Circuit held that an erroneous sentencing estimate did not constitute ineffective assistance of counsel. ECF No. 106 at 9 (citing United States v. Sweeney, 878 F.2d 68 (2d Cir. 1989)).

         SECTION 2255

         Section 2255 provides, in relevant part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released 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 of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). Accordingly, collateral relief is available “only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Bokum, 73 F.3d 8, 12 (2d Cir. 1995) (internal quotations and citation omitted). A court may dismiss a Section 2255 motion without a hearing if the motion and the record conclusively show that the petitioner is not entitled to relief. See, e.g., Chang v. United States, 250 F.3d 79, 85-86 (2d Cir. 2001) (district court was not required to hold hearing before deciding federal prisoner's Section 2255 motion based on ineffective assistance of counsel claim alleging that counsel prevented him from exercising his right to testify on his own behalf, where the prisoner made only general allegations and the record contained affidavit from trial counsel credibly describing the circumstances concerning the prisoner's failure to testify). Petitioner “has the burden of meeting the two-pronged test for ineffective assistance set forth in [Strickland], by showing: (i) that counsel's performance was deficient and (ii) that the deficient performance prejudiced the defense.” Chang, 250 F.3d at 84 (internal citation and quotation marks omitted). A hearing is warranted only where the petitioner establishes that his claim is plausible. Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009).

         An ineffective assistance of counsel claim “may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal.” Massaro v. United States, 538 U.S. 500, 504 (2003); see also Barrie v. United States, 11 CIV 8913(RPP), 07 CR 158(RPP), 2012 WL 5464413, at * 3 (S.D.N.Y. Nov. 9, 2012) (“Ineffective assistance of counsel claims are not subject to the general procedural bar that prohibits a petitioner from raising issues in a § 2255 motion which could have been raised on direct appeal.”) (citing Massaro, 538 U.S. at 504). Accordingly, the Court will review Petitioner's claims below to determine whether he has established ineffective assistance of counsel or that his plea was involuntary.

         DISCUSSION

         Petitioner sets forth two grounds[1] for finding that counsel's performance was constitutionally deficient under Strickland, one of which ...


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