Sentencing • Habeas Corpus • Withdrawal of Plea Agreement

United States of America v. Burnett, PICS Case No. 14-0089 (E.D. Pa. Jan. 14, 2014) Pratter, J. (13 pages).

Following entry of a guilty plea to two counts of robbery, one count of conspiracy to commit robbery,and one count of using or carrying a firearm during and in relation to a violent crime, petitioner Dennis Burnett filed a pro se writ of habeas corpus under 28 U.S.C. §2255. Burnett’s petition was denied.

In May 2009, Burnett was charged with counts for robbery, conspiracy to commit robbery and carrying a firearm following allegations that he conspired to rob several pharmacies in Pennsylvania and Maryland to obtain drugs for resale on the streets. During jury selection and following consultation with his counsel, Burnett opted to plead guilty; the parties’ stipulated to a 25-year prison sentence which avoided a mandatory additional 25-year consecutive sentence. Based on the stipulation, Burnett demonstrated his acceptance of responsibility.

Burnett’s counsel withdrew representation with Burnett filing a pro se motion to withdraw his guilty plea; motion was denied. New counsel was appointment and filed a motion to withdraw his guilty plea arguing Burnett was emotionally distraught at the time of entry. The motion was denied with denial affirmed by the court of appeals.

Burnett filed the instant pro se motion for habeas corpus under 28 U.S.C. §2255 and requested the court recuse itself based on comments in the plea colloquy. The court declined recusal and was upheld by the Third Circuit. The motion for habeas corpus seeking to withdraw his guilty plea looks to four questions asked by the court during the plea colloquy and made pursuant to Rule 11; Burnett claimed the comments violated Rule 11(c)(1), in that they reflect impermissible court participation in plea negotiations; he further argues ineffective counsel for failure to raise this issue on appeal.

The government opposed the motion indicating Burnett waived his claims for failure to raise previously and the plea agreement contains waiver provisions which limit Burnett’s right to direct and collateral appeals.

The court agreed to consider the merits of Burnett’s claims as they can directly effect his rights to withdraw his plea given the court has previously ruled that pleas can be withdrawn if a court fails to follow stipulations in a plea agreement or if a defendant can demonstrate prejudice. With regards to the alleged Rule 11(c)(1) violation which bars a court from participating in plea negotiations, the court denied Burnett’s claim of violation and ineffective counsel. The court held that the comments made by the sentencing judge were derived from his required assessment of the validity of the plea pursuant to Rule 11 which require a defendant to have knowledge of the maximum penalties available and the consequences of his please. Fed.R.Crim.P.11(b)(1). Further the court denied the habeas corpus as Burnett’s argument that the court failed to include the 2-point adjustment did not fall within the grounds allowed for a withdraw of plea. As the court found that Burnett’s motion was without merit, an evidentiary hearing on the motion to vacate the sentence was not required and a certificate of appealability was not issued.