# GALE v. United States

> District Court, W.D. Pennsylvania · December 20, 2022

URL: https://www.frixlaw.com/law-library/cases/10438552

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** December 20, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA )
)
v. ) Case Nos. 2:19-CR-12, 2:20-CR-40
)
JOSEPH T. GALE, )
)
Defendant. )
)

OPINION
Presently before the Court is Defendant Joseph T. Gale’s motion to vacate his
sentence (ECF 101).1 He argues that his conviction for violating 18 U.S.C. § 922(g)(1)
is unconstitutional under the Third Circuit’s decision in , 928
F.3d 144 (3d Cir. 2020), and that his lawyer was ineffective for failing to stay his case
pending and was otherwise ineffective during sentencing. After carefully
considering the record and the parties’ arguments, the Court finds that is
inapposite to Mr. Gale’s case, and Mr. Gale’s counsel was not ineffective (indeed, far
from it). So, the Court will deny Mr. Gale’s motion.
BACKGROUND
As the Court explained in its memorandum order on sentencing (ECF 82), Mr.
Gale was twice arrested and charged in June 2008 with selling heroin to a
confidential informant, an ungraded state felony charge with a maximum sentence of
15 years’ imprisonment. ECF 54, ¶¶ 43, 44; Docket No. 20-cr-40, ECF 11, ¶¶ 43, 44.
His two state-court sentencing hearings were supposed to be consolidated and the
sentences imposed on the same day, but due to an administrative error by the state
trial court system, they weren’t. ECF 69, p. 2. As a result, Mr. Gale was sentenced

1 All references to the record are to docket number 2:19-cr-12, unless otherwise stated.
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twice, six months apart: once to probation and an “intermediate punishment
program,” and once to time served. ECF 82, pp. 3-4.
Mr. Gale appeared to be living a life free of crime until November 5, 2018, when
officers recovered cash, cocaine, fentanyl, and a loaded .45 caliber pistol from his
vehicle. ECF 4; ECF 54, pp. 7-8. For these offenses, Mr. Gale pled guilty to two
counts of possession with intent to distribute fentanyl and cocaine in violation of 21
U.S.C. §§ 841(A)(1) and 841(b)(1)(C); and one count of possession of a firearm by a
felon in violation of 18 U.S.C. § 922(g)(1). ECF 50; Docket No. 20-40, ECF 7. He and
the government entered into a plea agreement pursuant to Rule 11(c)(1)(C) of the
Federal Rules of Criminal Procedure, in which the parties stipulated to a binding
sentence of 120 months’ imprisonment. ECF 106-3.
Because of his two prior state felony convictions, Mr. Gale qualified as a career
offender under the Sentencing Guidelines. U.S.S.G. § 4B1.1(a). All parties agreed
that Mr. Gale’s guidelines range as a career offender was 188 to 235 months’
imprisonment, which was significantly higher than the parties’ stipulated sentence.
ECF 54, pp. 16-17; ECF 82, p. 4. Further, the parties agreed that had Mr. Gale not
qualified as a career offender, his guidelines range would have been 78 to 97 months’
imprisonment. ECF 68, pp. 14-15; ECF 69, pp. 1-2.
Mr. Gale pled guilty to the charges on February 21, 2020. ECF 50. At that
time, the Court entered judgment finding Mr. Gale guilty of the charged offenses, but
deferred on whether to accept or reject the plea agreement until sentencing. ECF
107, pp. 31:21-32:4. In preparation for (and during) sentencing, the Court reviewed
the parties’ positions as to why the Court should accept Mr. Gale’s Rule 11(c)(1)(C)
plea agreement and the stipulated sentence below the guidelines range. ECF 78;
ECF 86, pp. 6:9-9:9, 14:9-18:6. On June 15, 2020, the Court ultimately accepted the
plea agreement and sentenced Mr. Gale to 120 months’ imprisonment as
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contemplated by the agreement.2 ECF 83. The Court later explained that the
variance from the guidelines range was justified because the state administrative
error and unfortunate timing “erroneously caused Mr. Gale to be treated as a career
offender,” and the stipulated sentence represented “an elegant solution by the parties
in compromising the two competing guidelines ranges, in light of the odd
circumstances giving rise to the application of the career-offender enhancement.”
ECF 82, pp. 5-6. Mr. Gale did not appeal his conviction or sentence. ECF 101, p. 2.
Just shy of one year later, Mr. Gale timely moved to vacate his sentence
under 28 U.S.C. § 2255. ECF 87. The Court provided a Notice to Mr. Gale on
July 6, 2021 (ECF 90), and Mr. Gale supplemented his original motion on April 28,
2022. ECF 101. The government filed its response to the supplemental motion on
June 8, 2022. ECF 106. Mr. Gale’s motion is now ready for disposition.
STANDARD OF REVIEW
“A Section 2255 petition enables a defendant to petition the court that imposed
the sentence, collaterally attacking a sentence imposed after a conviction. Pursuant
to 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set
aside or correct a sentence 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. Relief
is generally available only in ‘exceptional circumstances’ to protect against a
fundamental defect which inherently results in a complete miscarriage of justice or

2 The Court entered judgment against Mr. Gale and issued its memorandum order on
June 15, 2020, then amended the judgment twice (on June 17, 2020, and June 29,
2020). ECF 82-85. The judgment was amended to include technical information
that had no bearing on the term of the sentence.
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an omission inconsistent with the rudimentary demands of fair procedure.”
, No. 19-160, 2022 WL 2829948, at *1 (W.D. Pa. July 20, 2022)
(Schwab, J.) (cleaned up). However, a motion to vacate “is not a substitute for an
appeal.” , 759 F.2d 1073, 1074 (3d Cir. 1985)
(citation omitted).
In reviewing a motion to vacate under Section 2255, “[t]he court must accept
the truth of the movant’s factual allegations unless they are clearly frivolous on the
basis of the existing record.” , 432 F.3d 542, 545 (3d Cir. 2005)
(cleaned up). Where, as here, the petitioner files his motion , the Court
construes the pleadings liberally. , 551 U.S. 89, 94 (2007) (per
curiam). But “vague and conclusory allegations contained in a § 2255 petition may
be disposed of without further investigation[.]” , 221 F.3d
430, 437 (3d Cir.2000) (citation omitted). A district court “must hold an evidentiary
hearing when the files and records of the case are inconclusive as to whether the
movant is entitled to relief,” but “may summarily dismiss a § 2255 motion where the
motion, files, and records show conclusively that the movant is not entitled to relief.”
, No. 07-5101, 2008 WL 938784, at *1 (E.D. Pa. Apr. 4, 2008)
(cleaned up).
DISCUSSION & ANALYSIS
Mr. Gale raises two bases for relief. First, he asserts that his felon-in-
possession conviction must be vacated on constitutional grounds. ECF 101, pp. 5-6.
Mr. Gale claims that he was never made aware of his status as a felon because he
previously spent just one night in jail, never served time in a state or federal prison,
and was sentenced only to “intermediate punishment.” Id. Given his lack of
knowledge, he argues, the government’s case against him as to the felon-in-possession
charge is constitutionally infirm under . at 5.
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Second, Mr. Gale makes a claim for ineffective assistance of counsel, which can
be divided into two lines of argument. Mr. Gale first asserts that his attorney failed
to stay proceedings pending the Third Circuit’s resolution of , or else to
challenge his indictment following that decision. ECF 101, p. 8; ECF 102, pp. 2-3.
He also alleges his attorney committed several errors in failing to attack or otherwise
lower the sentencing range calculated in his Presentence Investigation Report, which
was based on his status as a career offender. ECF 101, p. 8; ECF 102, p. 3. Mr. Gale
alleges he suffered prejudice because he was sentenced to a longer term of
imprisonment than he otherwise would have been but for these errors. ECF 102, p.
4. He believes that had counsel objected or acted on any of these grounds, there is
“more than a reasonable probability” that the Court would have begun its guidelines
calculation at the correct range (78 to 96 months’ imprisonment) in crafting the
sentence. ECF 102, p. 4.
The Court has carefully reviewed the entire record, including the filings and
transcripts from Mr. Gale’s plea and sentencing, as well as the filings in connection
to the instant motion, and concludes that neither of Mr. Gale’s claims holds up on the
existing record.
I. Mr. Gale’s first ground for relief must be dismissed.
A. Mr. Gale waived his ability to make a Section 2255 claim under
the terms of the plea agreement.
Mr. Gale entered into a Rule 11(c)(1)(C) plea agreement with the government
in which both parties stipulated to a binding sentence of 120 months’ imprisonment—
a sentence that was significantly lower than the 188 to 235 months’ imprisonment
calculated under the Sentencing Guidelines. As part of that agreement, Mr. Gale also
waived many of his appellate and collateral-review rights, including the right to
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collaterally attack his sentence under 28 U.S.C. § 2255—in other words, he waived
his right to file this very motion.3
In deciding whether to enforce this waiver, the Court must (1) determine if it
was “knowing and voluntary” and (2) decide whether enforcing it would “work a
miscarriage of justice.” , No. 21-1752, 2022 WL 973737, at
*1 (W.D. Pa. Mar. 31, 2022) (Schwab, J.) (citing , 536 F.3d
231, 244 (3d Cir. 2008)). After carefully reviewing the record, the Court will enforce
Mr. Gale’s waiver.
The record shows that Mr. Gale’s waiver, and for that matter his guilty plea,
was knowing and voluntary. At Mr. Gale’s February 21, 2020, change-of-plea
hearing, the Court conducted a Rule 11 colloquy to ensure Mr. Gale understood the
charges against him, the terms of his plea agreement, and the rights he would forgo
by entering that plea agreement, including the nature and extent of the collateral-
rights waiver. ECF 107, pp. 3:9-7:18; 11:16-14:2; 18:16-19:9; 24:13-21. Mr. Gale
acknowledged that he reviewed his plea agreement with his attorney and understood
it, including that he was giving up his right to collaterally attack his sentence. at
19:10-26:17. Mr. Gale stated that his decision to plead was not coerced. . at 24:22-
26:8. The Court likewise found that Mr. Gale was competent to enter his plea. . at
31:16-32:2.
Mr. Gale’s in-court statements are owed a presumption of truth, and so will
stand in the absence of evidence of misunderstanding, duress, or misrepresentation
in his entering the plea. , 431 U.S. 63, 73-75 (1977) (“[T]he
representations of the defendant, his lawyer, and the prosecutor at such a hearing,

3 Mr. Gale’s plea agreement contained the following language: “Joseph T. Gale further
waives the right to file a motion to vacate sentence under 28 U.S.C. § 2255
challenging his conviction and sentence and the right to pursue any other collateral
proceeding challenging his conviction or sentence.” ECF 106-3, pp. 2-3.
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as well as any findings made by the judge accepting the plea, constitute a formidable
barrier in any subsequent collateral proceedings.”). Mr. Gale does not claim, or offer
evidence to suggest, that his waiver was not voluntary, and so the Court takes his in-
court statements acknowledging his acceptance and understanding of the waiver as
true. at 74 (“The subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary dismissal, as are contentions that in
the face of the record are wholly incredible.”).
Having found Mr. Gale’s waiver to be knowing and voluntary, the Court
considers whether enforcement will result in a miscarriage of justice. In making this
assessment, “a court should consider the clarity of the [erroneous waiver], its gravity,
its character, the impact of the error on the defendant, the impact of correcting the
error on the government and the extent to which the defendant acquiesced in the
result. A court should consider the listed factors and take a common-sense approach
in determining whether a miscarriage of justice would occur if the waiver were
enforced.” , 2022 WL 973737, at *2 (cleaned up).
Enforcing the waiver will not work a miscarriage of justice here. As discussed
in detail below, the record contains substantial evidence to demonstrate Mr. Gale’s
knowledge of his status as a felon and uphold his conviction.
Given these findings, the Court will enforce Mr. Gale’s waiver, and in turn
concludes that it lacks jurisdiction to consider his first ground for relief.
, No. 10-233, 2014 WL 2002280, at *1 (W.D. Pa. May 15, 2014)
(Ambrose, J.) (a valid waiver “will divest the district court of jurisdiction over a
collateral attack.” (citations omitted)).4

4 Notably, Mr. Gale did not waive in his plea agreement the right to raise claims of
ineffective assistance of counsel as part of any Section 2255 motion. ECF 106-3, p. 3.
Even construing the motion liberally, the Court does not read the first ground to make

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B. Mr. Gale’s first ground for relief is also procedurally defaulted.
Mr. Gale’s first ground for relief must be dismissed for the additional reason
that the claim is procedurally defaulted.
“Because collateral review under § 2255 is not a substitute for direct review, a
movant ordinarily may only raise claims in a 2255 motion that he raised on direct
review.” , 554 F.3d 372, 378-79 (3d Cir. 2009) (citing
, 523 U.S. 614, 621 (1998)). Where a movant has failed to raise his
claims on direct appeal, the claims are procedurally defaulted. at 379. However,
a court may excuse a procedural default if the movant is (1) actually innocent of the
crime for which he was convicted (and now challenges), or (2) there is a valid cause
for default and actual prejudice resulted from the default.
Mr. Gale here did not appeal his sentence, and so his claim is
procedurally defaulted. ECF 101, p. 2. The Court may only review the merits of the
claim if Mr. Gale can show he was either actually innocent of the crime or that he
had good cause for the procedural default and suffered prejudice from it. Neither
applies.
1. Mr. Gale has not shown that he is actually innocent.
Though Mr. Gale pled guilty to the Section 922(g) violation, he is nonetheless
entitled to show he is “actually innocent” of the crime. , 523 U.S. at 623.
Actual innocence “means factual innocence, not mere legal insufficiency.” . To
prove actual innocence, a movant must show that “in light of [ ] new evidence, no
juror, acting reasonably, would have voted to find him guilty beyond a reasonable
doubt.” , 281 F.3d 404, 420 (3d Cir. 2002) (cleaned up).

an ineffective-assistance claim; in any event, Mr. Gale specifically made such a claim
in his second ground for relief, which the Court will consider on the merits.
, No. 09-602-3, 2015 WL 4610897, at *5 (E.D. Pa. July 31, 2015).
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The record establishes that Mr. Gale knew that he was a felon. At each of the
2009 state court sentencings, the state court advised Mr. Gale that the crimes for
which he was charged were felonies with a maximum period of incarceration of 15
years. ECF 106-1, p. 4:11-13; ECF 106-2, p. 2:14-3:1. In each proceeding, the state-
court judge asked Mr. Gale if he understood the charge, and Mr. Gale responded “yes”
each time. ECF 106-1, p. 4:18-19; ECF 106-2, p. 3:1-3. Mr. Gale admitted to his
knowledge of his status and his possession of the gun again at his change-of-plea
hearing before this Court. ECF 107, pp. 30:10-19, 31:9-15. And throughout
proceedings in this case, Mr. Gale never raised that he was unaware of his status as
a felon when he possessed the weapon—until this motion, he has only objected to his
status as a career offender based on the uncoupling of his two state-court felonies.
, ECF 41; ECF 59; ECF 69.
Mr. Gale argues that he had no knowledge of his status as a felon because, for
his state crimes, he spent a single night in jail upon his arrest and was never
sentenced to a term of imprisonment. ECF 101, pp. 5-6. But Mr. Gale’s actual
sentence is of no import here—the relevant inquiry is whether he was aware of his
status as a felon, and the record indisputably shows he was. ,
No. 16-35, 2021 WL 1022693, at *10 (W.D. Pa. Mar. 17, 2021) (Schwab, J.) (reasonable
juror could only conclude defendant knew his status as a felon notwithstanding state
court’s recommended sentence of “boot camp” in lieu of prison),
, No. 21-1836, 2021 WL 5071873 (3d Cir. Oct. 25, 2021).
Given this evidence, the Court concludes that a reasonable juror would have
found, beyond a reasonable doubt, that Mr. Gale was aware of his status as a felon
when he possessed the firearm at issue. , No. 20-695, 2020
WL 4925678, at *7 (W.D. Pa. Aug. 21, 2020) (Schwab, J.).
2. Mr. Gale has not and cannot establish cause.
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Similarly, Mr. Gale cannot demonstrate a sufficient cause to excuse his
procedural default. The only argument Mr. Gale makes in his defense—one directly
related to his ineffective-assistance-of-counsel claim—is that his counsel and the
Court did not have the Third Circuit’s holding in to guide it, such that his
counsel “[should] have requested an extension [of his sentencing] pending the
outcome” of . ECF 101, p. 8.
It is true that cause for procedural default exists where “the legal basis for a
claim was not reasonably available to counsel.” , 810 F.3d 132,
153 (3d Cir. 2015) (cleaned up). But such cause does not exist here because
does not stand for any legal proposition that was not already available to counsel at
the time of Mr. Gale’s plea and sentencing.
The Third Circuit in vacated the defendant’s Section 922(g) conviction
based on the Supreme Court’s 2019 holding in —that case
held for the first time that in Section 922(g) cases, the government must prove not
only that the defendant knew he was in possession of a gun, but also that he knew of
his status as a felon. 139 S. Ct. 2191, 2200 (2019). In applying this new requirement
in , the Third Circuit found that “literally no evidence was presented concerning
Nasir’s knowledge of his status as a felon,” necessitating a new trial.5 , 982 F.
3d at 171, 177.
Thus, is merely a rearticulation of the holding in : that the
government must present evidence of the defendant’s knowledge of his status as a
felon in a Section 922(g) prosecution. , 141 S. Ct. 2090, 2095
(2021) (“[i]n felon-in-possession cases after , the Government must prove not
only that the defendant knew he possessed a firearm, but also that he knew he was

5 was later vacated by operation of the Supreme Court’s decision in
. , 211 L. Ed. 2d 1, 142 S. Ct. 56 (2021).

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a felon when he possessed the firearm.”). As was decided well before Mr. Gale
entered into his Rule 11(c)(1)(C) plea agreement, the pendency of had no
bearing on Mr. Gale’s ability to raise the issue during the proceedings in this Court.
For this reason, no cause exists to excuse the procedural default.
II. Mr. Gale’s second ground for relief must also be dismissed as he
cannot show that his counsel’s performance was deficient in any
respect.
Mr. Gale’s second ground for relief is one for ineffective assistance of counsel.
Unlike with the first ground for relief, the Court may proceed with analysis of this
second ground because Mr. Gale did not waive the right to raise an ineffective
assistance of counsel challenge as part of his appeal waiver, and a claim of ineffective
assistance of counsel is not procedurally defaulted at the Section 2255 stage. ECF
106-3, p. 3; , 36 F.3d 323, 326 (3d Cir. 1994) (“A § 2255 motion
is a proper and indeed the preferred vehicle for a federal prisoner to allege ineffective
assistance of counsel.” (citations omitted)).
Though Mr. Gale lists several perceived errors in his counsel’s performance,
his grievances boil down to two categories. First, he argues his counsel failed to take
more aggressive action in his case by moving to stay proceedings pending the Third
Circuit’s decision and to challenge the Section 922(g) charge after that decision.
ECF 102, p. 2. Second, he asserts counsel was an ineffective advocate during his
actual sentencing. at 2-3.
But neither purported challenge survives because Mr. Gale cannot show his
counsel’s performance was deficient under the first prong of the test pronounced in
, 466 U.S. 668 (1984).
To prove counsel’s deficient performance under , a defendant “must
show that counsel's representation fell below an objective standard of reasonableness
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under prevailing professional norms. Petitioner must overcome the presumption
that, under the circumstances, the challenged action might be considered sound trial
strategy.” , No. 09-602-3, 2015 WL 4610897, at *4 (E.D. Pa.
July 31, 2015) (cleaned up). In making this assessment, courts must be “highly
deferential” to counsel and “must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” , 466
U.S. at 689.
Nothing in the record here suggests Mr. Gale’s counsel performed deficiently—
in fact, the Court finds defense counsel’s efforts and advocacy to be extraordinary.
Mr. Gale’s deficient-performance claims related to fail for several
reasons. To begin with, and as explained above, offered no proposition of law
that was not already covered by . Thus, to move for a stay pending the
decision could have no possible effect on the law applicable to Mr. Gale’s case, and so
cannot amount to deficient performance. , 2015 WL 4610897, at *11 (the
failure to perform futile acts “cannot be ineffective assistance of counsel” (citing
228 F.3d 178, 206 (3d Cir. 2000))). Further, Mr. Gale’s admission that he
did possess the weapon at issue in this case and the government’s substantial
evidence demonstrating Mr. Gale’s knowledge of his status as a felon satisfied all of
the requirements for a Section 922(g) conviction under (and ). ECF
107, pp. 27:4-9, 28:25-29:17. There was simply nothing under the law defense counsel
could have done to alter that fact.
Mr. Gale’s grievances concerning counsel’s performance during sentencing fall
short for similar reasons. Mr. Gale had two prior state felony convictions, derived
from two separate informations and for which he was sentenced on two different days.
ECF 101-1, ¶¶ 4-5; ECF 106-1, 4:4-5:10; ECF 106-2, 2:10-3:8. Under the Sentencing
Guidelines, Mr. Gale’s prior convictions are considered separate, making him
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indisputably a career offender. U.S.S.G. § 4A1.2(a)(2); ,
537 F. App’x 102, 105 (3d Cir. 2013) (“Pender was charged in two separate
indictments and sentenced on two different days. The language of the Guidelines is
unambiguous: § 4A1.2(a)(2) mandates that Pender’s prior convictions be treated as
separate.”). Again, counsel could not have taken any possible action or made any
argument to change Mr. Gale’s career offender status. Considering this fact, none of
Mr. Gale’s assertions survives.
By contrast, Mr. Gale’s counsel was faced with a situation where his client was
a career offender, and was facing a guidelines range of 262-327 months in prison.
Counsel negotiated a plea that reduced the base offense level by three for acceptance
of responsibility, resulting in a guidelines range of 188-235 months. Counsel then
negotiated a stipulated sentence of 120 months—which is about a 36% downward
variance, and was able to convince this Court of justifiable reasons for such a large
variance. U.S.S.G. § 6B1.2(b)(2). This is excellent lawyering, not deficient.6
CONCLUSION
For these reasons, the Court will DENY Mr. Gale’s Section 2255 petition. An
order consistent with this opinion will follow.

Dated: December 20, 2022 BY THE COURT:

United States District Judge

6 One other thing. As is evident from the Court’s analysis, the record here speaks for
itself, and so the Court finds that it need not hold a hearing on Mr. Gale’s motion.
, 2008 WL 938784, at *1; , 759 F.2d at 1075 (“where the record
affirmatively indicates the claim for relief is without merit, the refusal to hold a
hearing will not be deemed an abuse of discretion.”).
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10438552. Public record. Not legal advice.