Antonello BOLDRINI, Appellant v. Martin R. WILSON; District Attorney D. Peter Johnson; Jane Doe, Personally and in his official capacity as Secretary of the District Attorney of Union County PA; Daniel J. Barrett, Esq; F. Cortez Bell, III; William A. Shaw, Jr.; Carol Ponce.
No. 13-1812
United States Court of Appeals, Third Circuit
Opinion filed Oct. 18, 2013
Submitted Pursuant to Third Circuit LAR 34.1(a) Oct. 15, 2013.
Appellate waivers, if entered into knowingly and voluntarily, are valid. United States v. Khattak, 273 F.3d 557, 562 (3d Cir.2001). We “will decline to exercise our jurisdiction to review the merits of an appeal where the defendant knowingly and voluntarily waived the right to appeal.” United States v. Jackson, 523 F.3d 234, 242 (3d Cir.2008). We have recognized, however, that “[t]here may be an unusual circumstance where an error amounting to a miscarriage of justice may invalidate the waiver, and in such cases we will exercise our jurisdiction over a waived appeal.” Id. (quoting Khattak, 273 F.3d at 562). In evaluating whether a “miscarriage of justice” has occurred, we consider factors including “the clarity of the error, its gravity, its character (e.g., whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), 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.” Khattak, 273 F.3d at 563 (quoting United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir.2001)).
The record demonstrates that Baird‘s waiver of appeal was knowing and voluntary. The District Court conducted a thorough plea colloquy to ensure that he understood each aspect of the plea agreement, including the waiver of his right to appeal. Moreover, Baird does not seriously contend that his appeal of the within-Guidelines sentence that did not exceed the statutory maximum falls within any of the limited circumstances that would have preserved his right to appeal.
In any event, Baird‘s substantive arguments regarding his sentence lack merit. While not disputing the amount of the loss, Baird argues that he should have received a “credit” against that amount to account for the fact that some victims received some compensation from third parties, compensation, we note, that was in no way attributable to Baird. Moreover, the District Court did not take issue with the positive testimony it received at the sentencing hearing from Baird‘s wife, grandson, and friend. That testimony, however, was simply not enough.
III. Conclusion
We will affirm the judgment of sentence.
Antonello Boldrini, Pittston, PA, pro se.
Joseph P. Green, Esq., Lee, Green & Reiter, Bellefonte, PA, M. Abbegael Giunta, Esq., Office of Attorney General of Pennsylvania, Harrisburg, PA, for Defendants-Appellees.
Before: AMBRO, HARDIMAN and ALDISERT, Circuit Judges.
OPINION
PER CURIAM.
Pro se appellant Antonello Boldrini appeals the District Court‘s orders granting the defendants’ motions to dismiss under
In Boldrini‘s complaint, he stated that, in 2004 and 2005, he had a business dispute with a well-connected customer, whom he later identified as Donald Ferrario. Ferrario, Boldrini alleged, induced Carol Ponce, a state trooper, to bring phony criminal charges against him; the idea, apparently, was that Boldrini would be found guilty of the charges and consequently ordered to pay restitution to Ferrario. Trooper Ponce duly filed a criminal complaint, accusing Boldrini of four counts of fraudulent business practices in violation of
Boldrini then brought an action under
We agree with the District Court‘s disposition of this case. In his complaint, Boldrini frames his claims as “malicious prosecution,” which accurately describes the alleged misconduct. See Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). To establish malicious prosecution, however, Boldrini must show that “the prior criminal proceedings have terminated in [his] favor.” Hector v. Watt, 235 F.3d 154, 156 (3d Cir.2000) (citing Heck, 512 U.S. at 484). Boldrini acknowledges1 that the criminal charges were resolved through ARD, which does not qualify as a favorable termination for these purposes. See Gilles v. Davis, 427 F.3d 197, 211 (3d Cir.2005). The malicious-prosecution claims are therefore not presently cognizable under
We likewise conclude that the District Court did not abuse its discretion in denying Boldrini‘s request to amend his complaint. While a district court should freely grant leave to a party to amend its pleadings when justice so requires, it may properly deny a party‘s motion to amend when amendment would be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002). We are satisfied that amendment here would be futile.2 As an initial matter, the amended complaint that
We further discern no abuse of discretion in the District Court‘s orders denying Boldrini‘s requests for reconsideration. A motion for reconsideration is a limited vehicle used “to correct manifest errors of law or fact or to present newly discovered evidence.” Max‘s Seafood, 176 F.3d at 677 (internal quotation marks omitted). In his motions, Boldrini presented many of the same arguments that the District Court had previously rejected; the District Court properly refused to allow Boldrini to relitigate issues that it had already decided. See Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir.2010).
Boldrini also presented what he called newly discovered evidence—a copy of his criminal record that does not list any of the felonies with which he was charged. Based on this evidence, he argued, in an apparent attempt to avoid the favorable-termination bar, that he had never been charged with any felonies or been through the ARD program. However, in addition to being flatly contrary to allegations in his complaint and other filings (indeed, these criminal charges were the very basis for his alleged damages), the absence of these charges can be explained by the documents that Boldrini himself has submitted. See generally ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 n. 8 (3d Cir.1994) (“Where there is a disparity between a written instrument annexed to a pleading and an allegation in the pleading based thereon, the written instrument will control.“). Boldrini filed both the trial court‘s order placing him in the ARD program and a subsequent “Order of Expungement“; the latter provided that, since Boldrini had completed the ARD program, the “keepers of criminal records shall expunge and destroy the official and unofficial arrest and other criminal records, files and other documents.” The Order of Expungement predates the criminal record that Boldrini has submitted; the fact that the records have, in fact, been expunged does not help Boldrini because “expungement under the ARD Program is not a result ‘favorable’ to the plaintiff.” Gilles, 427 F.3d at 209. The District Court was not required to grant reconsideration in these circumstances.
Finally, given that by the time he sought discovery, the District Court had already dismissed his complaint, it was entirely reasonable for the District Court to deny his discovery motions.
We will therefore affirm the District Court‘s judgment. Boldrini‘s August 16, 2013 motion for an extension of time to file a reply in support of his motion to disqualify appellees’ counsel is granted, and his reply brief is deemed filed as of August 22, 2013. We deny each of Boldrini‘s other pending motions.