Giordano v. USA

Filing 185

ORDER Re: Petitioner's Request for an Evidentiary Hearing. Signed by Judge Stefan R. Underhill on 5/28/2015. (Freuden, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

PHILIP GIORDANO,
Petitioner,

No. 3:11-cv-9 (SRU)

v.
UNITED STATES OF AMERICA,
Respondent.
ORDER
The petitioner, Philip Giordano, seeks to vacate and correct his sentence pursuant to 28
U.S.C. § 2255. Giordano is confined at United States Penitentiary Marion, in Marion, Illinois.
Giordano’s section 2255 petition, filed on January 4, 2011, raises numerous grounds for relief,
stemming from assertions that his attorney rendered constitutionally ineffective assistance, both
at trial and on appeal, and that the sentence imposed by the court was unconstitutional. See Mot.
to Vacate, Set Aside or Correct Sentence (doc. # 1). On December 2, 2011, Giordano filed an
amended petition, supplementing his claims and adding additional grounds for relief. See Am.
Mot. to Vacate, Set Aside or Correct Sentence (doc. # 84). Giordano’s amended section 2255
petition includes a claim that defense counsel was constitutionally ineffective because he failed
to communicate a plea offer to Giordano in advance of the trial.
In order to prevail on an ineffective assistance of counsel claim, Giordano must
demonstrate (1) that his counsel’s performance “fell below an objective standard of
reasonableness,” and (2) “that the deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687-91 (1984). It is well settled that defense counsel must always
communicate the terms of any plea bargain offered by the prosecution. Missouri v. Frye, 132 S.
Ct. 1399, 1408 (2012); Cullen v. United States, 194 F.3d 401, 404 (2d Cir. 1999). “Defense

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counsel have a constitutional duty to give their clients professional advice on the crucial decision
of whether to accept a plea offer from the government” and the failure to communicate a plea
offer falls below “an objective standard of reasonableness” under the first prong of Strickland.
Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003); Cullen, 194 F.3d at 403.
The failure to communicate a plea offer is prejudicial if there is a reasonable probability
that the defendant would have accepted the plea agreement if he had known of its terms. Id.; see
also Frye, 132 S. Ct. at 1409. A “significant disparity” between the sentence imposed and the
sentence in the plea offer, combined with the defendant’s credible statement that he would have
accepted the offer is sufficient to support a finding of prejudice. Pham, 317 F.3d at 182.
It is within the district court’s discretion to decide if an evidentiary hearing is required to
determine whether the plea offer was communicated and whether the defendant suffered any
prejudice. Pham, 317 F.3d at 184 (citing Chang v. United States, 250 F.3d 79, 85 (2d Cir.
2001)). If the paper record is sufficient to resolve the relevant issues, then the district court may
conclude that no hearing is necessary. See id.
Giordano’s amended section 2255 petition asserts that defense counsel failed to apprise
him of a plea offer from the government, which he would have accepted instead of proceeding to
trial. Giordano submitted an affidavit and a copy of a letter written by Andrew Bowman, his
attorney at trial and on direct appeal, to support this claim. Am. Mot. to Vacate 8 and Ex. 2. The
letter, dated February 27, 2003, states that the government previously offered Giordano a plea
deal with a fifteen-year sentencing cap and that the State of Connecticut was currently offering
Giordano a plea deal with an eighteen-year cap. The letter further states that although the
government rescinded its offer on February 10, 2003, there was “still a deal to be made.”
Finally, the letter explains Giordano’s constitutional right to reject the offers and proceed to trial,

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but emphasizes the damaging nature of the evidence against him and the potential consequences
at sentencing. Id. Ex. 2. Attorney Bowman signed the letter; Giordano did not. Bowman
initialed and dated the letter, noting that he gave it to Giordano, but that Giordano refused to
sign. Id. Giordano’s affidavit states that he did not know that an offer for a fifteen-year cap was
on the table and he would have accepted the offer had he been aware of its existence. Id.
The government contends that there is sufficient evidence to discredit Giordano’s selfserving statements without a hearing. Attorney Bowman submitted an affidavit, which states
that he read the letter out loud to Giordano on February 27, 2003 and that Giordano rejected the
government’s plea offer and refused to sign the letter. Bowman’s affidavit also states that he had
informed Giordano of the potential plea offer on numerous occasions prior to that date, and that
he repeatedly discussed the possibility of a plea deal prior to the start of trial. According to
Bowman, Giordano repeatedly and continuously rejected Bowman’s advice to take a plea.
Bowman Aff. (doc. # 130-1). The government argues that Bowman’s word is trustworthy while
Giordano’s is not, as evidenced by the two-level sentencing enhancement for obstruction of
justice in Giordano’s PSR calculations, among other things. Gov’t Resp. to Am. Mot. to Vacate
49 (doc. # 130).
If the government’s plea offer was communicated to Giordano in the manner described in
Attorney Bowman’s letter and affidavit, then Giordano was fully aware of the contents of the
offer and defense counsel was not ineffective. Giordano, however, did not sign the letter and his
affidavit states unequivocally that he never saw the letter and was unaware of the offer for a
fifteen-year cap. Even though Giordano has made false statements in the past, I cannot
definitively rule on his credibility, or that of Attorney Bowman, based on the paper record alone.
Thus, an evidentiary hearing is necessary to resolve this issue. The hearing, however, will be

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limited solely to the issue whether defense counsel communicated the plea offer that Giordano
asserts he would have accepted. At this time, it does not appear that a hearing is necessary to
resolve any of Giordano’s other claims and no evidence on other issues will be received at the
hearing.
Counsel shall confer to determine a feasible date for the hearing and shall report back to
the court no later than June 15, 2015 with a proposed date.
It is so ordered.
Dated at Bridgeport, Connecticut, this 28th day of May 2015.

/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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