Vailette v. USA

Filing 36

ORDER: Petitioner's Motion 1 to Vacate/Set Aside/Correct Sentence (2255) is GRANTED in part. The Court will resentence Petitioner in accordance with 21 U.S.C. section 22255(b). The Clerk is directed to close this case. Signed by Judge Janet Bond Arterton on 09/20/2012. (Bonneau, J)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
John J. Vailette,
Petitioner,

Civil No. 3:09cv1477 (JBA)

v.
United States of America,
Respondent.

September 20, 2012

RULING ON MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
On February 16, 2010, Petitioner John J. Vailette, through counsel, filed an Amended
Petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his 120–month sentence
following a guilty plea for violations of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). Vailette
argues that his confinement is illegal because (1) his court–appointed counsel failed to
subpoena telephone records of the Government’s confidential informant prior to Vailette’s
guilty plea and if those records had been subpoenaed, he would not have entered a guilty
plea; (2) his guilty plea was not “knowing, intelligent and voluntary” because his medications
created a “euphoric state” that interfered with his decision–making at the time he pled guilty;
(3) he entered his guilty plea under duress because it followed a meeting with Assistant
United States Attorney Chang in which he was pressured to make a rapid decision, felt
threatened, and as a result made a hasty and uninformed decision; (4) his court–appointed
counsel was constitutionally ineffective by erroneously advising him that he would lose his
three–point reduction in base offense level for acceptance of responsibility if he appealed the
sentence enhancements imposed by the Court under 21 U.S.C. § 851; and (5) his mandatory
minimum sentence was improperly enhanced under 21 U.S.C. § 851 on the basis of prior
convictions and his court–appointed counsel was constitutionally ineffective by failing to

object to and challenge the Government’s notice filed under § 851. For the reasons that
follow, Mr. Vailette’s petition will be granted in part.
I.

Background
On March 20, 2008, Petitioner pled guilty before Magistrate Judge Fitzsimmons to

Count Four of a Superseding Indictment charging him with distributing crack cocaine in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). (See Plea Agreement, Case No.
3:07cr138 [Doc. # 52] at 1.) The parties stipulated in the plea agreement that pursuant to
U.S.S.G. §§ 2D1.1(a)(3) & (c)(6), Petitioner’s base offense level was 28, which would be
reduced to 25 subject to Petitioner’s acceptance of responsibility. (Id. at 5.) The parties also
agreed that Petitioner was in criminal history category VI and that pursuant to U.S.S.G.
§ 5G1.1(c)(2), the advisory Sentencing Guidelines applicable to him called for a term of
imprisonment of 120–137 months. (Id.) The Government further agreed that it would not
oppose Petitioner’s request for 120–month sentence. (Id. at 5.) Petitioner waived his right
to appeal or collaterally attack a sentence in the range of 120–137 months. (Id. at 6.) Judge
Fitzsimmons accepted Petitioner’s guilty plea, and on March 26, 2008, the undersigned
approved and adopted the guilty plea as valid. On August 14, 2008, the Court sentenced
Petitioner to 120 months’ imprisonment, and entered judgment on August 15, 2008.
Petitioner did not appeal his sentence, which became final fourteen days later.
II.

Discussion
To obtain collateral relief under 28 U.S.C. § 2255, Petitioner must show that his

sentence “was imposed in violation of the Constitution or laws of the United States.” 28
U.S.C. § 2255. “As a general rule, relief is available under § 2255 only for constitutional
error, a lack of jurisdiction in the sentencing court, or an error of law that constitutes a
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fundamental defect which inherently results in a complete miscarriage of justice.” Napoli v.
United States, 32 F.3d 31, 35 (2d Cir. 1994) (internal quotation marks and citations omitted).
A claim of ineffective assistance of counsel challenging a guilty plea is assessed under
the two–pronged standard first articulated in Strickland v. Washington, 466 U.S. 668 (1984),
and as further construed by Hill v. Lockart, 474 U.S. 53 (1985). See Hill, 474 U.S. at 58 (“We
hold therefore that the two–part Strickland v. Washington test applies to challenges to guilty
pleas based on ineffective assistance of counsel.”). The first prong considers whether
counsel’s performance was objectively unreasonable “under prevailing professional norms.”
Strickland, 466 U.S. at 688. To satisfy this element, an error must be “so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,”
id. at 687, and counsel’s performance must have been “outside the wide range of
professionally competent assistance,” id. at 690. Second, the petitioner must affirmatively
prove prejudice by showing that counsel’s errors were so serious that “there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would
have been different.” Id. at 687, 694.
“A fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id.
at 689. “[T]he failure to make a meritless argument does not rise to the level of ineffective
assistance, and ‘strategic choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable.’” United States v. Kirsh, 54 F.3d 1062, 1071
(2d Cir. 1995) (quoting Strickland, 466 U.S. at 690.) “[A] court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
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assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound [] strategy.” Strickland, 466
U.S. at 689.
A.

Petitioner’s Challenge to His Guilty Plea

Petitioner challenges his guilty plea, arguing that it was not knowing, intelligent, and
voluntary because he was on medications that induced a “euphoric state” when he pled
guilty, that he was under duress from the Government when he agreed to plead guilty, and
that he would not have pled guilty but for his attorney’s failure to subpoena telephone
records that could have provided “useful and important impeachment material.”
1.

Ineffective Assistance of Counsel Claim

Petitioner claims that his attorney was constitutionally ineffective in failing to
subpoena telephone records of the Government’s confidential informant prior to his guilty
plea, and that had he done so, those records would have established that, contrary to the
informant’s statements, there were ongoing conversations between them for a substantial
period of time and would have provided “useful and important impeachment material.” The
Government responds that these telephone records would not have had evidentiary value
to Petitioner and defense counsel already received telephone records of the informant
through discovery. Petitioner has failed to identify what additional records he might have
expected to receive through a subpoena.
In support of his claim, Petitioner states only that these records would have
“materially assisted” his defense and that he would not have pled guilty if he had these
records. Other than stating his conclusion that these records would have provided useful
impeachment information, he does not show how these records would have assisted his
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defense or influenced his decision to plead guilty. See Hill, 474 U.S. at 370 (“[W]here the
alleged error of counsel is a failure to investigate or discover potentially exculpatory
evidence, the determination whether the error ‘prejudiced’ the defendant by causing him to
plead guilty rather than go to trial will depend on the likelihood that discovery of the
evidence would have led counsel to change his recommendation as to the plea.”) Petitioner
has accordingly failed to meet his burden to show that he was prejudiced by the absence of
subpoenaed telephone records and his claim with respect to these records is without merit.
Petitioner requested an evidentiary hearing regarding this claim, but because the
Court finds that the record plainly fails to demonstrate that Mr. Vailette is entitled to relief
on these grounds, an evidentiary hearing is unnecessary and his petition is denied with
respect to this claim. See United States v. Aiello, 900 F.2d 528, 534 (2d Cir. 1990) (“Where
a petition omits meritorious allegations that can be established by competent evidence, it
would go too far to say that it was error for the district court to have failed to conduct a full
evidentiary hearing.”).
2.

Circumstances of the Guilty Plea

Petitioner claims that his guilty plea was invalid because at the time of the plea his
medications were creating a “euphoric state” that interfered with his decision making and
that he entered his guilty plea under duress as the result of Chang’s pressure on him to make
a rapid decision. The Government argues that these claims are procedurally defaulted
because Petitioner failed to file a direct appeal.
“Where a criminal defendant has procedurally forfeited his claim by failing to raise
it on direct review, the claim may be raised in a § 2255 motion only if the defendant can
demonstrate either: (1) cause for failing to raise the issue, and prejudice resulting therefrom;
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or (2) actual innocence.” Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998).
Petitioner does not respond to the Government’s procedural default argument and has not
made any attempt to show cause for his failure to raise these issues on appeal, or prejudice,
or actual innocence. His failure to appeal is therefore fatal to his petition on these two
claims.
B.

Petitioner’s Challenge to His Sentence
Petitioner claims that his sentence was improperly and illegally enhanced by the

Court under 21 U.S.C. § 851 from a mandatory minimum of five years to a mandatory
minimum of ten years on the basis of a state court narcotics conviction in which he entered
an Alford plea, and that his court–appointed trial counsel was constitutionally ineffective by
failing to object to and challenge the Government’s § 851 notice seeking to enhance his
mandatory minimum sentence. In light of its position in Samas v. United States, No.
3:10cv422 (JCH), 2011 WL 221866 (D. Conn. Jan. 20, 2011), that a prior state drug
conviction resulting from an Alford plea that does not specify the drug involved does not
qualify as a predicate “serious drug offense” under the second offender enhancement, the
Government has conceded that it was error for Petitioner to be subject to a mandatory
minimum sentence under § 851. The Government nonetheless argues that the Court should
deny Mr. Vailette’s petition on this ground as time–barred.
1.

The Mandatory Minimum Under 21 U.S.C. § 851

On May 17, 2004, Petitioner pled guilty to possession of narcotics in violation of
Conn. Gen. Stat. § 21a-279(a) in Connecticut Superior Court, Judicial District of New
Haven, without recitation on the record of any of the underlying facts of the offense. (See
May 27, 2004 Tr., Ex. A to Reply, at 2–3.) The resulting conviction on June 16, 2004 served
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as the basis for the Government seeking at least the mandatory minimum sentence to ten
years’ imprisonment pursuant to 21 U.S.C. § 851. (Second Offender Information, Case No.
3:07cr138 [Doc. # 49].) Conn. Gen. Stat. § 21a-279(a) makes it illegal to possess “any
quantity of any narcotic substance” and provides for a maximum punishment of seven years’
imprisonment. Thus, this statute penalizes at least some conduct that falls within the
definition of a “controlled substance offense” under U.S.S.G. § 4B1.2(b).
However, as the Second Circuit held in United States v. Savage, 542 F.3d 959, 965–65
(2d Cir. 2008), a conviction under a Connecticut statute “cannot categorically qualify as a
‘controlled substance offense’ within the meaning of Guidelines § 4B1.2(b)” if the statute
criminalizes some conduct that falls outside the federal controlled substance statute. See 18
U.S.C. §§ 321, 802 The Second Circuit further held that where a criminal defendant pled
guilty under the Alford doctrine without stipulating to any specific facts regarding the
identity of the controlled substance, that underlying conviction cannot qualify as a
“controlled substance offense” within the meaning of § 4B1.2(b),1 unless the Government
can confirm the identity of the drug at issue via the charging document or the terms of the
plea agreement. Id. at 966–67. Prior to Vailette’s sentencing, Judge Droney similarly ruled

1

Savage addressed the enhancement of the defendant’s base offense level under
U.S.S.G. § 2K2.1(a)(2), which increases the applicable offense level where a defendant has
sustained at least two felony convictions of either a crime of violence or a controlled
substance offense. That Guideline section refers to the definition of “controlled substance
offense” under the career offender guideline at U.S.S.G. § 4B1.2. Here, Petitioner was
subject to an enhanced mandatory minimum under 21 U.S.C. §§ 841(b)(1)(B) and 851,
which provide for a higher mandatory minimum where a defendant has been previously
convicted of a “felony drug offense.” However, in previous cases, the Government has
conceded that the holding in Savage is applicable to the definition of a “felony drug offense”
under these statutes. (See Ex. A to Pet’r’s Suppl. Brief [Doc. # 17].)
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that “an Alford plea to the crime of possession of unspecified narcotics with the intent to
distribute” alone did not provide the necessary predicate for sentencing the defendant under
the Armed Career Criminal Act. United States v. Madera, 521 F. Supp. 2d 149, 154 (D.
Conn. 2007).
Conn. Gen. Stat. § 21a-279(a) criminalizes conduct involving the drugs
thenylfentanyl and benzylfenanyl, which are not included among the controlled substances
that can serve as the basis for a felony drug offense under 21 U.S.C. § 851. Samas, 2011 WL
221866 at *3–4. In entering his Alford plea, therefore, Petitioner conceivably could have pled
guilty to conduct that did not qualify as a predicate offense under § 851. See id. at *4.
Categorical reference to Petitioner’s conviction under Conn. Gen. Stat. § 21a-279(a) was
thus an insufficient basis for his enhancing his mandatory minimum under § 851. See
Savage, 542 at 966–67; Samas, 2011 WL 221866 at *4.
Because there was an insufficient basis for the enhancement of Petitioner’s
mandatory minimum sentence from five years to ten years under 21 U.S.C. § 851, which the
Government concedes, Petitioner is entitled to be resentenced without consideration of any
second offender enhancement. Due to what is now legal error in Petitioner’s sentencing
under current Second Circuit jurisprudence, the Court need not reach the issue of whether
his attorney’s conduct was constitutionally ineffective in failing to challenge the § 851 notice.
2.

Timeliness

A petition under 28 U.S.C. § 2255 must generally be filed “within one year
from . . . the date on which the judgment of conviction becomes final.” Moshier v. United
States, 402 F.3d 116, 118 (2d Cir. 2005). “[A]n unappealed federal criminal judgment
becomes final when the time for filing a direct appeal expires.” Id. A petitioner may,
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however, amend a timely § 2255 petition by adding a new claim, if that claim relates back
in that it “arose out of the conduct, transaction, or occurrence set out” in the original
petition. Fed. R. Civ. P. 15(c)(1)(B); Mayle v. Felix, 545 U.S. 644, 656 (2005). Relation back
requires “the existence of a common core of operative facts uniting the original and newly
asserted claims.” Mayle, 545 U.S. at 659 (internal quotations and citations omitted).
Petitioner challenged his § 851 mandatory minimum enhancement for the first time
in his amended petition, filed February 16, 2010, more than a year after his conviction
became final on August 29, 2008. He claims, however, that this amendment relates back to
the original § 2255 petition, filed pro se on August 13, 2009, because it arises out of the same
conduct, transaction, or occurrence that serves as the basis of his claim that his attorney was
ineffective by misinforming him regarding his appellate rights: “[My attorney] misinformed
me by stating if I appeal I would lose my 3 points for acceptance [of] responsibility, which
I’ve learned is false. I can appeal my enhancements alone, which he said I couldn’t. . . . I
could have appealed just my enhancements with no consequences of losing my acceptance
[of] responsibility.” (Pet. at 9.) According to Petitioner, this claim, asserted in his original
petition, put the Government on notice of claims connected to the enhancement of his
mandatory minimum sentence. The Government argues that the original petition did not
allege that the prior–felony information was improper, or that Vailette’s attorney was
ineffective for failing to challenge the § 851 notice, and thus the claims regarding defense
counsel’s appellate advice do not arise out of the same conduct, transaction or occurrence
as his challenge to the second offender information.
Although Vailette’s original petition does not explicitly raise his argument with
respect to the second offender enhancement, it does, through his claim that his attorney was
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ineffective by misinforming Vailette regarding the consequences of an appeal of the
enhancement of his mandatory minimum sentence, take aim at the Court’s application of
that enhancement. It is the increased statutory mandatory minimum under 21 U.S.C. § 851
that forms the “common core of operative facts” uniting his original claim regarding his
counsel’s appellate advice and his amended claim. Vailette’s amended petition therefore
relates back to his original petition in this regard and is not time–barred.2
III.

Conclusion
For the reasons stated above, Petitioner’s motion [Doc. # 1] to vacate, set aside, or

correct his sentence is GRANTED in part. The Court will resentence Mr. Vailette in
accordance with 21 U.S.C. § 2255(b). The Clerk is directed to close this case.

IT IS SO ORDERED.

/s/
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 20th day of September, 2012.

2

As regards Petitioner’s claims of ineffective assistance of counsel based on his
attorney’s appellate advice, counsel clarified at oral argument, that with respect to this claim
Petitioner only seeks the restoration of his right to appeal the application of the § 851 second
offender enhancement. (See August 16, 2012 Mandate, Case No. 07cr138 [Doc. # 80]
(denying Defendant’s appeal as untimely).) The Court’s finding above that Petitioner is
entitled to resentencing in light of the misapplication of that enhancement therefore moots
this claim as the enhancement he sought to appeal will be corrected by this Court.

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