Morales v. USA

Filing 18

ORDER granting in part and denying in part 4 Motion to Compel. Signed by Judge Stefan R. Underhill on 8/16/12. (Hungerford, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JORGE MORALES,
Petitioner,
No. 3:12-cv-194 (SRU)
v.
UNITED STATES,
Respondent.
RULING ON MOTION FOR DISCOVERY
The petitioner, Jorge Morales, has filed a motion for leave to serve requests for
admissions.1 Doc. 4. Morales seeks his former counsel’s answers to the following questions:
(1) Was counsel under any pain medication, considered to be controlled substance, while
representing Movant before the district court; if so, which medication(s)?
(2) Did counsel ever make an independent examination of the investigative reports, and
302 reports to make his own calculation of drugs foreseeable by Movant?
(3) Was counsel’s robing room meeting with the Honorable Alan H. Nevas concerning a
judicial offer of a specific sentence to be imposed?
(4) Was counsel’s initial intention on appeal to file an Ander’s brief?
(5) Was counsel relying on Movant for the development of the issue to be raised on
appeal?
The petitioner previously filed a motion to vacate, set aside, or correct his sentence under
28 U.S.C. § 2255; that motion is still pending. In his section 2255 motion, Morales argues that
he is entitled to relief because:
(1) The sentencing court erred when it failed to make specific findings of drug amounts
attributed and foreseeable by movant. Furthermore, he argues that his counsel was
ineffective for failing to adequately prepare himself to address the court as to this
relevant conduct inquiry.
(2) There was a defective filing of a notice of prior convictions under 21 U.S.C. § 851.
1

Although the petitioner describes his requests as “requests for admission,” the discovery sought is more akin to
deposition by written question.

(3) The district court violated Federal Rule of Criminal Procedure 11(e)(1) when it
became a participant and intervened in the plea negotiations. Morales further argues
that his counsel was ineffective, because he failed to notify the court of the Rule
11(e)(1) violation.
(4) The district court erred when it failed to order, sua sponte, a Factico hearing to
determine disputed facts relevant to sentencing, namely drug quantity. Morales also
argues that his counsel was ineffective for failing to request a Factico hearing.
(5) His counsel was ineffective for failing to object to the miscalculation of Morales’
criminal history category.
(6) His counsel was ineffective for failing to prepare an appeal brief.
(7) Finally, Morales argues that his counsel’s cumulative errors and omissions denied his
Sixth Amendment right to the effective assistance of counsel.
Under the Rules Governing Section 2255 Proceedings for the United States District
Court, a “judge may, for good cause, authorize a party to conduct discovery under the Federal
Rules of Criminal Procedure or Civil Procedure, or in accordance with the practices and
principles of law.” Rule 6(a).
Because much of Morales’ motion concerns his counsel’s allegedly ineffective
assistance, I find that his discovery requests (2), (3), (4), and (5) are appropriate. Accordingly,
doc. 4 is GRANTED with regard to those questions. Morales will now need to serve the stated
questions, along with a copy of this order, on Attorney Richard C. Marquette.
I find request (1) to be irrelevant, because ineffective assistance is an objective standard:
the reasons for counsel’s actions are irrelevant. Accordingly, doc. 4 is DENIED with regard to
questions (1).
It is so ordered.
Dated at Bridgeport, Connecticut, this 16th day of August 2012.
/s/ Stefan R. Underhill
Stefan R. Underhill
United States District Judge
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