United States District Court, N.D. West Virginia, Martinsburg
CHRISTOPHER A. FEKOS, Petitioner,
JOE COAKLEY, Warden, Respondent.
REPORT AND RECOMMENDATION
W. TRUMBLE UNITED STATES MAGISTRATE JUDGE.
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.
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
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  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.
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
ECF No. 1 at 5-9. For relief, Petitioner requests his
sentence be vacated and remanded with specific instructions
that his new sentence not ...