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Fekos v. Coakley

United States District Court, N.D. West Virginia, Martinsburg

April 24, 2018

CHRISTOPHER A. FEKOS, Petitioner,
v.
JOE COAKLEY, Warden, Respondent.

          KEELEY JUDGE.

          REPORT AND RECOMMENDATION

          ROBERT W. TRUMBLE UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         On March 3, 2017, Charles Fekos [hereinafter Petitioner or Defendant], filed a pro se Application for Habeas Corpus pursuant to 28 U.S.C. § 2241. Petitioner is a federal inmate housed at USP Hazelton and is challenging the validity of his conviction and sentence imposed in the United States District Court for the Western District of Pennsylvania. This matter is pending before the undersigned for an initial review and Report and Recommendation pursuant to LR PL P 2.

         II. FACTS[1]

         On June 28, 2006, an indictment filed at Criminal No. 2:06CR237-1 in the Western District of Pennsylvania charged Defendant with ten counts of conspiracy, bank fraud, mail fraud, bribing a bank employee, and money laundering. 2:06CR237-1, ECF No. I. On March 7, 2007, a criminal complaint filed at Criminal No. 2:07CR116 in the Western District of Pennsylvania charged Defendant with committing mail fraud, wire fraud, bank fraud, and bribing a bank official from April 2006 through March 6, 2007. 2:07CR116, ECF No. I. An indictment subsequently filed in the same matter charged Defendant with one count of mail fraud from October 2005 through March 2007. Id., ECF No. 20.

         On May 11, 2007, Defendant appeared before U.S. District Judge Kim R. Gibson for the Western District of Pennsylvania and pleaded guilty to Count 6 of the indictment at Criminal Number 2:06CR237-1, charging him with Bank Fraud from June 23, 2003, to December 2003, in violation of 18 U.S.C. § 1344(1), Count Thirteen of the indictment at Criminal Number 2:06CR237-1, charging him with Money Laundering on November 14, 2003, in violation of 18 U.S.C. § 1957(a), and Count One of the indictment at Criminal Number 2:07CR116, charging him with Mail Fraud, from October 2005 to March 2007, in violation of 18 U.S.C. § 1341. After consultation with counsel, Defendant entered into a guilty plea pursuant to a plea agreement that contained a provision waiving his right to file direct appeals and collateral attacks except if the sentence exceeded the applicable statutory limits, or in case his sentence "unreasonably exceeds the guideline range determined by the Court ." Defendant pursued direct appeals after his sentencing in September 2007. 2:07CR116, ECF No. 41 at 2. The Court of Appeals enforced the waiver, United States v. Fekos, 318 Fed.Appx. 122 (3d Cir. 2009), and the Supreme Court denied his petition for a writ of certiorari. Fekos v. United States, 558 U.S. 917 (Oct. 5, 2009). Almost four years later, in July 2013, Defendant filed motions to vacate his sentence under 28 U.S.C. § 2255, which were denied as untimely, see 28 U.S.C. § 2255(f), and as barred by the waiver in the plea agreement in September 2013. 2:07CR116, ECF No. 72. In February 2014, the Court of Appeals denied certificates of appealability, No. 13-4213 (3d Cir. February 12, 2014) and No. 13-3968 (3d Cir. February 12, 2014). In September of 2015, Defendant filed a Motion to Reduce Sentence and for De Novo Review of Newly Discovered Evidence. 2:06CR237, ECF No. 154. In that motion, Defendant sought what he describes as a commutation of his sentence "in place of a full appeal" on the grounds that events "[s]ometime in late 2003 or 2004" show that one of the fraudulent transactions he was held liable for was not fraudulent, and therefore the number of victims and the financial loss calculated at the time of the preparation of the presentence reports in 2007 overestimated the amount of loss for which he should be held liable. Id. Magistrate Judge Keith A. Pesto determined that the Court can correct a computation error within 14 days of sentence, Fed.R.Crim.P. 35, and a clerical error at any time, Fed.R.Crim.P. 36, but this was not a claim of computational or clerical error. Further Magistrate Judge Pesto determined that there was no such judicial entity as commutation of a sentence in lieu of appeal. Id. Defendant's claim that there was an error in the facts the Court relied on to compute the advisory guideline range was not equivalent to a claim that his sentence "unreasonably exceeds the guideline range determined by the Court" and therefore does not escape the bar on collateral attacks contained in the plea agreement. Id. Magistrate Judge Pesto recommended to the District Court that, in substance, this was a second motion to vacate, and under 28 U.S.C.§ 2244, it must be reviewed by the Court of Appeals before the District Court had jurisdiction to consider the issues raised. Id. District Judge Gibson agreed and adopted the report and recommendation dismissing the motion [154] for lack of jurisdiction without prejudice for not seeking preauthorization from the Court of Appeals for a second successive motion to vacate. Id., ECF No. 162.

         III. PETITIONER'S CLAIMS

         In support of his section 2241 petition before this Court, Petitioner claims four grounds for relief:

1. Waiver of collateral attack in plea agreements is not enforceable pursuant to mandate from “AAG James Cole” and Pennsylvania Bar Association.
2. Ineffective assistance of counsel because defense counsel advised him to take a plea instead of proceeding to trial, and he would not have received as lengthy of a sentence if he had proceeded to trial.
3. The Judge would not have determined he was a level 36 offender if he had properly determined the amount of financial harm caused by the offenses.
4. Prosecutorial misconduct regarding Petitioner's disparate sentence.

ECF No. 1 at 5-9. For relief, Petitioner requests his sentence be vacated and remanded with specific instructions that his new sentence not ...


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