United States District Court, E.D. Virginia, Norfolk Division
SCOTT B. MISERENDINO, SR., Petitioner,
UNITED STATES OF AMERICA, Respondent.
REBECCA BEACH SMITH CHIEF JUDGE
matter comes before the court on the Petitioner's Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence (w§ 2255 Motion") and
accompanying Memorandum in Support, filed respectively by
counsel on June 23, 2017, and July 21, 2017. ECF Nos. 94,
21, 2017, the court ordered the government to file responsive
pleadings to the Petitioner's § 2255 Motion within
sixty (60) days of the entry of that order. ECF No. 102. On
September 19, 2017, the United States filed a Response in
Opposition. ECF No. 104. On September 29, 2017, the court
granted the Petitioner's Motion for Leave to File a
Reply. ECF No. 107. On October 18, 2017, the Petitioner
filed, through counsel, a Reply to the government's
Response in Opposition. ECF No. 108. The § 2255 Motion
is now ripe for review.
FACTUAL AND PROCEDURAL HISTORY
23, 2014, a grand jury returned a six-count Indictment,
naming the Petitioner as one of two co-defendants. ECF No. 1.
Count One charged the Petitioner with Conspiracy to Commit
Bribery of a Public Official, in violation of 18 U.S.C.
§ 371. Id. at 3-11. Count Four charged the
Petitioner with Acceptance of a Bribe by a Public Official,
in violation of 18 U.S.C. § 201(b)(2)(A). Id.
at 12-13. Count Five charged the Petitioner with Conspiracy
to Commit Obstruction of Criminal Investigations and to
Commit Tampering with a Witness, in violation of 18 U.S.C.
§ 371. Id. at 13-16. Count Six charged the
Petitioner with Obstruction of Criminal Investigations,
Aiding and Abetting, in violation of 18 U.S.C. §
1510(a). Id. at 16. The Indictment also contained a
Forfeiture Notice to the defendants. Id. at 16-17.
On August 12, 2014, the Petitioner, appearing with counsel,
pleaded guilty to Counts One and Four, and a Plea Agreement
was entered that same day. Plea Agreement Hearing, ECF No.
38/ Plea Agreement, ECF No. 39. The Petitioner and the
government agreed to a Statement of Facts, ECF No. 40, which
describes the following foundations for the Petitioner's
time of his arrest, the Petitioner was a government
contractor at the Military Sealift Command ("MSC"),
which is an entity of the United States Navy that provides
transportation for the Navy and the Department of Defense.
Statement of Facts ¶ 1. He was employed by two companies
to provide information technology and communications services
and support to MSC. Id. The Petitioner's duties
included managing MSC s telecommunications projects, which
involved writing Statements of Work as directed, preparing
and executing budgets, reviewing proposals, and influencing
the awarding of government task orders. Id.
November 2004 to November 2009, the Petitioner and an MSC
employee, Kenny Toy, "solicited and received, both
directly and indirectly, for personal gain, cash payments and
other things of value" from two companies: Mid-Atlantic
Engineering Technical Services, Inc. ("MAETS") and
Miller, Hardman Design, Inc. ("MHD"). Id.
at 2. In exchange for these cash payments and
other things of value, the Petitioner provided, and promised
to provide, official assistance to MAETS and MHD.
total, the Petitioner and Toy jointly received at least $265,
000 in cash bribes from MAETS and MHD that were intended to
influence their official acts. Id. at 4. The
Petitioner and Toy also accepted other things of value to
influence their official acts, including flat screen
televisions, laptop computers, a paid vacation rental, signed
sports memorabilia, and sporting equipment. Id. The
official actions provided by the Petitioner and Toy on behalf
of MSC that were favorable to MAETS and MHD included:
i. assisting in the preparation of Statements of Work for
tasks that [MAETS] and [MHD] sought to perform under U.S.
Government contracts, subcontracts, and task orders;
ii. influencing, or causing to be influenced, other
government officials to further [MAETS's] and [MHD's]
efforts to obtain U.S. Government contracts, subcontracts,
and task orders;
iii. influencing, or causing to be influenced, MSC
contractors to further [MAETS's] and [MHD's] efforts
to obtain U.S. Government subcontracts and task orders; and
iv. providing favorable treatment to [MAETS] and [MHD] in
connection with U.S. Government task orders.
Id. at 4-5. Further, during the period of time in
which the Petitioner was accepting money and other things of
value from MAETS and MHD, those companies received lucrative
contracts, subcontracts, and task orders, totaling
approximately $3 million for MAETS and $2.5 million for MHD.
Id. at 5.
time he signed the Plea Agreement, the Petitioner confirmed,
under oath, that he (1) "plead[s] guilty because [he] is
in fact guilty of the charged offenses, " (2)
"admits the facts set forth in the statement of facts
filed with this plea agreement[, ] and [(3)] agrees that
those facts establish guilt of the offenses charged beyond a
reasonable doubt." Plea Agreement ¶ 2. On November
7, 2014, this court adjudged the Petitioner guilty and
sentenced him to sixty (60) months imprisonment on Count One
and ninety-six (96) months imprisonment on Count Four, to be
served concurrently, as well as a three (3) year term of
supervised release. Sentencing Hearing, ECF No. 74; Judgment,
ECF No. 78. The Petitioner did not appeal.
GENERAL LEGAL PRINCIPLES
prisoner may challenge a sentence imposed by a federal court,
if (1) the sentence violates the Constitution or laws of the
United States; (2) the sentencing court lacked jurisdiction
to impose the sentence; (3) the sentence exceeds the
statutory maximum; or (4) the sentence "is otherwise
subject to collateral attack." 28 U.S.C. § 2255(a).
The prisoner bears the burden of proving one of those grounds
by a preponderance of the evidence. See Jacobs v. United
States, 350 F.2d 571, 574 (4th Cir. 1965) (citing
Miller v. United States, 261 F.2d 546, 547 (4th Cir.
1958)). If he satisfies that burden, the court may vacate,
set aside, or correct the sentence. 28 U.S.C. § 2255(b).
However, if the motion, when viewed against the record, shows
that the petitioner is entitled to no relief, the court may
summarily deny the motion. Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
the Antiterrorism and Effective Death Penalty Act of 1996
PAEDPA"), Pub. L. No. 104-132, § 105, 110 Stat.
1214 (1996), imposes a one-year statute of limitations on
§ 2255 motions. Section 2255, as amended by AEDPA,
provides in relevant part:
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f).
party has argued that subsections (1), (2), or (4) apply in
this case. The Petitioner's judgment became final on
November 24, 2014. See Fed. R. App. P. 4(b) (mandating that a
criminal defendant file a notice of appeal within fourteen
days after the entry of judgment); Clay v. United
States, 537 U.S. 522, 524-25 (2003) (stating that a
judgment is final when the time for seeking review expires).
Therefore, the one-year period to file a § 2255 motion
pursuant to § 2255(f)(1) expired before the Petitioner
filed this § 2255 Motion on June 23, 2017, making it
untimely under 28 U.S.C. § 2255(f)(1). The Petitioner
alleges no unlawful governmental action that prevented him
from filing the § 2255 Motion, and the court finds none,
so 28 U.S.C. § 2255(f)(2) is inapplicable. Lastly, the
Petitioner provides no evidence of newly discovered facts
that warrants the application of 28 U.S.C. § 2255(f)(4).
Accordingly, the Petitioner must show that the § 2255
Motion is timely pursuant to 28 U.S.C. § 2255(f)(3) in
order for the court to consider his claim on the merits.
Namely, he must show a "newly recognized" right by
the Supreme Court made "retroactively applicable to
cases on collateral review." Id.