DeFelice v. USA

Filing 17

RULING granting 1 Motion to Vacate/Set Aside/Correct Sentence (2255); terminating as moot 4 Motion to Vacate/Set Aside/Correct Sentence (2255); terminating as moot 8 Motion to Amend/Correct. The clerk is directed to vacate and subsequentl y reenter the court's Order of Judgment in this case. DeFelice shall have fourteen days following reentry of that judgment to file the appropriate Notice of Appeal.. Signed by Judge Janet C. Hall on 2/28/2013. (Lewis, D) Modified on 3/1/2013 (Lewis, D).

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ALEXANDER DEFELICE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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CIVIL ACTION NO.
3:12-CV-699 (JCH)

FEBRUARY 28, 2013

RULING RE: PETITIONER’S MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE (Doc. No. 1), PETITIONER’S MOTION FOR LEAVE TO FILE A
SUPPORTING MEMORANDUM OF LAW (Doc. No. 4) and PETITIONER’S MOTION
TO AMEND (Doc. No. 8)
I.

INTRODUCTION
Pursuant to section 2255 of title 28 of the United States Code (“2255”), petitioner

Alexander DeFelice brings this Motion to Vacate, Set Aside, or Correct Sentence (Doc.
No. 1) based upon his trial counsel’s alleged failure to appeal his sentence as requested
by DeFelice following sentencing. DeFelice initially brought this petition pro se, but
counsel was subsequently appointed for him. This Motion is identical to a Motion filed
in relation to a second, related criminal case that was resolved at sentencing
simultaneously. 1 The court held an evidentiary hearing on the claims presented in the
2255 Motion on January 22, 2013. For the following reasons, the court grants the
Motion. The court also terminates as moot DeFelice’s Motion for Leave to File a
Supporting Memorandum of Law (Doc. No. 4). In light of the court’s decision as to the
2255 Motion, the court further terminates as moot DeFelice’s Motion for Leave to
Amend his 2255 Motion (Doc. No. 8).

1

This case has been consolidated with case number 3:12-CV-727 (JCH). See Doc. No. 11.

1

II.

STANDARD OF REVIEW
Under 28 U.S.C. § 2255, a prisoner in custody, sentenced by a federal court,

may petition the court which imposed the sentence to vacate, set aside, or correct the
sentence. 28 U.S.C. § 2255. However, “[b]ecause requests for habeas corpus relief
are in tension with society’s strong interest in the finality of criminal convictions, the
courts have established rules that make it more difficult for a defendant to upset a
conviction by collateral, as opposed to direct, attack.” Ciak v. United States, 59 F.3d
296, 301 (2d Cir. 1995) (internal citations omitted) (abrogated on other grounds by
Mickens v. Taylor, 535 U.S. 162 (2002)). “As a general rule, relief is only available
under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court,
or an error of law that constitutes a fundamental defect which inherently results in a
complete miscarriage of justice.” Napoli v. United States, 32 F.3d 31, 35 (2d Cir. 1994)
(internal citations omitted).
III.

FACTUAL BACKGROUND
DeFelice was originally indicted in two related cases, 3:10-cr-68 (JCH) and 3:10-

cr-44 (JCH). In both of those cases, DeFelice was represented by the same attorney,
Michael Hillis. Following a jury trial in the 10-cr-68 case, DeFelice was found guilty of
Counts 3, 4, 5, 6, and 7 of the Indictment, on charges mainly relating to the sale or
transfer of firearms and explosive grenades to convicted felons. In that case post-trial,
DeFelice also pled guilty to Count 2 of that Indictment.2 DeFelice was sentenced to 120
months for Counts 2, 3, 4, 5, 6, and 7, and 60 months for Count 4, to run concurrently.
In the 10-cr-44 case, DeFelice pled guilty to a single count of possession of a firearm by

2

Count 1 of the Indictment in the 10-cr-68 case was dismissed upon motion by the government.
See Doc. No. 266.

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a convicted felon, for which he was sentenced to 120 months, to run concurrently with
the 10-cr-68 sentence. The sentences were all below the applicable sentencing
guidelines range. No direct appeal was filed in either case.
DeFelice is currently incarcerated at the Federal Correctional Institution in
Cumberland, Maryland.
DeFelice claims that he requested that his attorney file a notice of appeal as to
his sentences in both criminal cases. His attorney asserts that no such request was
ever made, and that both parties agreed to not file such notices.
IV.

DISCUSSION
The sole issue before this court is whether or not DeFelice received ineffective

assistance of counsel based on the non-filing of the notices of appeal. DeFelice asserts
that he wanted Attorney Hillis to file the notices and believed that they would be filed.
The Government argues that Attorney Hillis did not provide ineffective assistance of
counsel because Attorney Hillis and DeFelice discussed the advisability of appealing
the sentence and together decided not to appeal.
When raising a claim of ineffective assistance of counsel, the petitioner must
satisfy a two-part test. First, he must demonstrate that his counsel’s performance “fell
below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S.
668, 687-88 (1984); see also United States v. Abad, 514 F.3d 271, 275 (2d Cir. 2008).
Second, he must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at
688. A petitioner “bears the burden of proving that counsel’s representation was
unreasonable under the prevailing professional norms.” Kimmelman v. Morrison, 477

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U.S. 365, 381 (1986). The reasonableness of counsel’s performance is to be viewed
from the perspective of counsel, and “the standard of review is highly deferential.” Id.
Both parties agree that the conduct alleged here -- a failure by counsel to file a
notice of appeal after being asked to do so by DeFelice -- would satisfy the ineffective
assistance of counsel standard. See Petitioner’s Motion for Relief Under 28 U.S.C. §
2255 (“Pet’rs’ 2255 Motion”) (Doc. No. 1) at 3; Respondent’s Response to Order to
Show Cause (“Resp’t’s Response”) (Doc. No. 4) at 8. In Roe v. Flores-Ortega, the
Supreme Court observed that, “We have long held that a lawyer who disregards specific
instructions from the defendant to file a notice of appeal acts in a manner that is
professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). The
court continued:
[A] defendant who instructs counsel to initiate an appeal reasonably relies upon
counsel to file the necessary notice. Counsel’s failure to do so cannot be
considered a strategic decision; filing a notice of appeal is a purely ministerial
task, and the failure to file reflects inattention to the defendant’s wishes. At the
other end of the spectrum, a defendant who explicitly tells his attorney not to file
an appeal plainly cannot later complain that, by following his instructions, his
counsel performed deficiently.”
Id. (emphasis in original).
Sometimes, however, the circumstances surrounding a failure to file an appeal
are not as clear-cut as an unambiguous request for, or repudiation of, a notice of
appeal. The Flores-Ortega court squarely considered the issue of how courts should
respond to claims in circumstances in which the defendant’s preferences are not clearly
conveyed one way or the other. With regard to the first prong of Strickland, in such
scenarios, courts must first ask whether counsel “consulted” with the defendant about
the appeal. Id. at 478. This, of course, leads to two related questions: what does it

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mean to consult with a defendant, and when are such consultations required. The
Flores-Ortega court defined “consult” to mean, “advising the defendant about the
advantages and disadvantages of taking and appeal, and making a reasonable effort to
discover the defendant’s wishes.” Id. Next, turning to the question of when such
consultations are necessary, the court held, “counsel has a constitutionally imposed
duty to consult with the defendant about an appeal when there is reason to think either
(1) that a rational defendant would want to appeal (for example, because there are
nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably
demonstrated to counsel that he was interested in appealing.” Id. at 480. Making this
determination involves considering all of the relevant facts and factors present, including
whether the conviction followed a guilty plea or a trial, and whether the defendant
received his bargained-for sentence. Id. Notably, the court declined to impose a per se
requirement of consultation in all instances. Id.
Next, in considering the Strickland prejudice prong, the Flores-Ortega court held
that, “where counsel’s error leads to the ‘forfeiture of a proceeding itself,’ prejudice will
be presumed.” Campusano v. U.S., 442 F.3d 770, 773 (2d Cir. 2006) (quoting FloresOrtega, 528 U.S. at 483-84). “‘When counsel fails to file a requested appeal, a
defendant is entitled to a new appeal without showing that his appeal would likely have
had merit.’” Id. (quoting Flores-Ortega, 528 U.S. at 483-84) (internal quotation omitted).
In cases where there was no direct request for an appeal that was not acted upon, the
Flores-Ortega court outlines a separate inquiry for determining prejudice. The court
held, “[T]o show prejudice in these circumstances, a defendant must demonstrate that
there is a reasonable probability that, but for counsel’s deficient failure to consult with

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him about an appeal, he would have timely appealed.” Flores-Ortega, 528 U.S. at 484.
Determining whether there was a reasonable probability that the defendant would have
appealed “will turn on the facts of a particular case.” Id. at 485.
The Flores-Ortega court outlined a few examples of the sorts of evidence that
would be relevant to such an inquiry, chief among them whether there were nonfrivolous grounds for appeal or whether the defendant promptly expressed a desire to
appeal. Id. “To prove deficient performance, a defendant can rely on evidence that he
sufficiently demonstrated to counsel his interest in an appeal. But such evidence alone
is insufficient to establish that, had the defendant received reasonable advice from
counsel about the appeal, he would have instructed his counsel to file an appeal.” Id. at
486. However, a failure to show non-frivolous grounds for an appeal is not necessary
for such a demonstration. “[I]t is unfair to require an indigent, perhaps pro se, defendant
to demonstrate that his hypothetical appeal might have had merit before any advocate
has ever reviewed the record in his case in search of potentially meritorious grounds for
appeal. Rather, we require the defendant to demonstrate that, but for counsel’s
deficient conduct, he would have appealed.” Id.
The court now turns to the somewhat opaque facts of this case. The court held
an evidentiary hearing on the matter and heard testimony from DeFelice, DeFelice’s
wife, and Attorney Hillis.
The evidence presented in the hearing suggests that the context for
understanding the nature of the discussions that took place between DeFelice and
Attorney Hillis regarding an appeal begins with the date of the jury’s verdict against him
in his criminal trial. Both DeFelice and Attorney Hillis testified that, at the time of

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conviction, and in response to a question from the court regarding a possible appeal,
Attorney Hillis stated that he intended to appeal the conviction, ostensibly because of
the strength of the entrapment defense Attorney Hillis presented at trial. It does not
appear that any substantive discussions between DeFelice and Attorney Hillis regarding
a possible appeal took place between the date of the jury verdict and the date of
sentencing.
DeFelice and Attorney Hillis offer differing accounts, however, of what actually
took place on the day of sentencing. Attorney Hillis testified that, prior to sentencing, he
and DeFelice had a discussion -- in what Attorney Hillis described as generalized terms
-- that a sentence of ten years on the charges against him would constitute a very
favorable result and that an appeal of such a sentence would be unwise given the
eventual possibility of a longer sentence. He testified that he understood DeFelice to
have understood this recommendation and to agree with his conclusion that, if DeFelice
received a ten year sentence, then he would not appeal. Attorney Hillis further testified
that, immediately after the sentence was handed down, he expressed approval to
DeFelice about the length of the sentence. In a meeting following the sentencing,
Attorney Hillis testified that he opened the conversation with an assertion that the
sentence received was a good one, and that they should not seek to challenge it.
Attorney Hillis further testified that DeFelice understood the advice not to appeal to be
correct, although it was not clear how directly DeFelice expressed approval of this
strategic decision. Specifically, Attorney Hillis testified, in response to a question
concerning how DeFelice expressed this approval, “Alex is very bright and to keep him
focused on one thing at one time is always difficult because he’s moving on. He moves

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on to the next thought. So to the best of my recollection, I understood him to have
agreed.” See Transcript of Evidentiary Hearing (“Tr.”) (Doc. No. 15) at 47. Attorney
Hillis further elaborated, in response to a question about whether there was sufficient
time to discuss the decision with DeFelice, “You never have enough time but that’s one
of the issues dealing with Alex. He jumps around. He goes from point to point but
clearly I understood it that he wasn’t going to appeal the sentence because it was as
low as it probably could have been.” Id.
Attorney Hillis further testified that, in the context of these conversations,
DeFelice strongly represented to him that he did not wish to file an appeal. The
following exchange took place between Attorney Hillis and DeFelice’s counsel on crossexamination:
Q: Is it your testimony that Alex was adamant about not filing an appeal?
A: Right. That was after we had both [sic] were pleased with the fact he had
gotten 10 years when the Court could have given him more than 188 if the
government had pushed it or if the Court thought the sentence should have been
greater.
Q: Would it be fair to say that Alex represented to you that he was adamant
about not jeopardizing his nonguideline sentence?
A: He was clearly adamant about not jeopardizing the 120 months. To the other,
I don’t remember. I don’t think so.
Q: Now if he said to you if there’s grounds to appeal, file an appeal, what would
you have done?
A: We would have talked about it again because even if there were grounds for
appeal, you are going to effect [sic] your sentence if you are going to try. You
couldn’t ensure that you were going to get the 120 months. There was clearly no
ground to appeal the sentence.
Id. at 60-61.

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DeFelice offered a different account of these conversations. DeFelice testified
that at the meeting with Attorney Hillis prior to sentencing, the two discussed when they
might consider an appeal. DeFelice testified that they decided that any sentence over
eight years would be appealed. DeFelice further testified that following sentencing, he
and Attorney Hillis again met to discuss a possible appeal. DeFelice testified:
Q: Can you please tell the Court about that conversation?
A: Mr. Kopel had asked for a sentence at the high end of guidelines 188 months.
The judge found justification gave me 120 months under the low end of my
guidelines. I told Mike specifically don’t do anything that would, excuse my
French, piss the judge off, look like I was throwing it in the judge’s face for doing
me, for lack of a better term, a favor or giving me 120 months. If we had solid
ground to stand to fight anything, I could get it lower get it overturned, do so.
During that time I had Ms. Morales, Ms. Morales slamming on the door. It was
late in the day, opening the door in the lockup, pulling me out, telling me we’re
out. We have to go, call. So it was a conversation that was left half open, half up
in the air.
Q: How long did that conversation take place?
A: Maybe two and a half minutes, three.
Q: What was Attorney Hillis’ response to your statement?
A: Not 100 percent sure. Like I said, I was being pulled out of the room, having
the door slammed on me. Within a 15-minute-time period, I got 120 months
away my wife, had a mental emotional breakdown in the courtroom. I have an
officer from Rhode Island slamming on the door with three days no sleep.
Slamming on the door, we have to go. It was kind of a confusing moment.
Q: In your mind, was that you requesting your lawyer to file an appeal?
A: Yes, ma’am.
Id. at 9-10. DeFelice also testified that he tried to get in contact with Attorney Hillis by
phone following this encounter, and when that proved unsuccessful enlisted his wife to
phone Attorney Hillis as well. He also testified that he attempted to send a letter to

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Attorney Hillis. Attorney Hillis testified that he reviewed phone records and never
received these calls, and never received a letter regarding an appeal.
Based on presentation and demeanor at the evidentiary hearing, along with
corroborating factors from Attorney Hillis’ testimony, the court generally credits
DeFelice’s testimony, particularly his understanding that a possibility for appeal
remained even though he was generally satisfied with the 120 month sentence.
However, it is equally clear that DeFelice has failed to show that he directly requested
an appeal, and that this appeal was ignored. In other words, DeFelice’s actions were
not the kind of “specific instructions” to file an appeal contemplated by Flores-Ortega
when the court observed that it had long held that failure to follow such instructions
constituted professionally unreasonable representation.
Instead, the court is in the murky scenario considered by the remainder of the
Flores-Ortega decision, which governs how courts should evaluate ineffective
assistance claims in the context of a failure to file a notice of appeal.
Turning to the first prong of the Strickland standard as explained by FloresOrtega, the court asks whether Attorney Hillis had a duty to consult with DeFelice, and
whether such a consultation, as defined by Flores-Ortega, actually took place. FloresOrtega explained that, “counsel has a constitutionally imposed duty to consult with the
defendant about an appeal when there is reason to think either (1) that a rational
defendant would want to appeal (for example, because there are nonfrivolous grounds
for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that
he was interested in appealing.” Flores-Ortega, 528 U.S. at 480. Here, DeFelice has
offered no argument or evidence regarding a non-frivolous ground for appeal. Further,

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the court is sympathetic to Attorney Hillis’ argument that, given DeFelice’s below
guidelines sentence, there was, perhaps, less incentive to seek an appeal that could
result in a new trial and a new sentencing that could yield a longer sentence.
However, the court concludes that DeFelice has shown by a preponderance of
the evidence that he reasonably demonstrated to counsel that he was interested in
appealing. Attorney Hillis stated in open court at the time of the jury verdict that he
intended to appeal and at no point repudiated that statement. As for DeFelice himself,
the court has already credited his testimony that he was certainly discussing the
possibility of an appeal prior to sentencing and made statements indicating a conditional
willingness to pursue an appeal after his sentencing, in a meeting that was short and
interrupted by officers taking him back into detention. This is more than enough to
reasonably demonstrate to counsel that he was interested in appealing. See Sanchez
v. United States, No. 3:09cv1330, 2011 WL 1885348, *6 (D. Conn. 2011) (finding
petitioner had reasonably demonstrated to counsel that he was interested in appealing
because he had expressed to counsel disagreement with the government’s statutory
and guidelines calculations and because the plea agreement contained no appellate
waiver).
The court does note that it lacks some of the ancillary, corroborating evidence
present in some other cases that could confirm DeFelice’s intentions and meaning.
See, e.g., Grant v. United States, Nos. 05 Civ. 8994(RPP), 03 Cr. 725(RPP), 2007 WL
2469450, *8 (S.D.N.Y. Aug. 31, 2007) (finding insufficient demonstrated interest in
appealing where petitioner testified that his wife called counsel to inquire whether
petitioner could file a notice of appeal, petitioner had waived right to appeal, and

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petitioner did not file a notice of appeal on his own). Here, while DeFelice and his wife
testified that they called Attorney Hillis specifically to ask about pursuing an appeal,
there is no evidence that this call was ever received or that any message was left, and
the court will not infer from a mere call the demonstrated impression such a call would
have left with Attorney Hillis. Despite these shortcomings, as stated above, DeFelice
has carried his burden in showing that he reasonably demonstrated an interest in
appealing, particularly where, as here, sentencing followed a trial and did not involve
waiver of appellate rights. Accordingly, a consultation was required.
Concluding that a consultation was required, of course, does not end the inquiry.
The court next looks at whether a consultation actually took place. According to FloresOrtega, “consult” means, “advising the defendant about the advantages and
disadvantages of taking and appeal, and making a reasonable effort to discover the
defendant’s wishes.” Flores-Ortega, 528 U.S. at 478. While it is clear that some form of
discussion between Attorney Hillis and DeFelice took place both before and after
sentencing, it is clear that the discussion was not properly a “consultation” under FloresOrtega. The court particularly notes Attorney Hillis’ testimony regarding the nature of
the conversation between himself and DeFelice following sentencing, in which he states
that DeFelice’s attention during the conversation wandered from topic to topic, and that
Attorney Hillis’ determination of DeFelice’s intentions hinged more on impression and
tone rather than a clear statement of understanding and acceptance from DeFelice.
Indeed, Attorney Hillis observed that, “Alex is very bright and to keep him focused on
one thing at one time is always difficult because he’s moving on. He moves to the next
thought.” Tr. At 47. He also noted that DeFelice “jumps around,” a characteristic that

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surely calls for careful attention from counsel to ensure that DeFelice fully understood
the information being conveyed. The conclusion that a full consultation did not in fact
occur is further bolstered by DeFelice’s testimony, which the court credits, that the postsentencing conversation was short and, to a significant degree, left unresolved. The
conversation with Attorney Hillis was interrupted before it was completed. While
Attorney Hillis did not intentionally abbreviate the exchange, his actions were not a
reasonable effort to discover DeFelice’s wishes, particularly, as here, where sentencing
followed a jury trial, not a plea, and involved no waiver of appeal rights. See Stanton v.
United States, 397 Fed.Appx. 548, 550 (11th Cir. 2010) (“Counsel’s statement that there
were no appealable issues without further explanation did not constitute adequate
consultation.”); Thompson v. United States, 504 F.3d 1203, 1206 (11th Cir. 2007)
(finding inadequate consultation where petitioner expressed unhappiness with a
sentence after the sentence was imposed, counsel told the petitioner he had a right to
appeal but noted that he did not think the appeal would be worthwhile without explaining
the reasoning, petitioner responded “fine,” and the exchange lasted no more than five
minutes). Further, it is clear that discussion of potential sentencing outcomes before the
actual sentencing is not an adequate substitute for a post-sentencing consultation. See
Sanchez, 2011 WL 1885348 at *6 (“[A]lthough Sanchez’ attorney may have discussed
with his client the likelihood of different sentencing outcomes before sentencing, there is
no submitted evidence that Gulash ever consulted Sanchez concerning and appeal
following sentencing, even though the plea agreement specifically permitted Sanchez to
file such an appeal. Those facts lead the court to conclude that Sanchez’s attorney was

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deficient when he failed to consult his client after Sanchez had reasonably
demonstrated that he was interested in appealing his sentence.”).
Next, the court turns to the prejudice prong. The Flores-Ortega court explained,
“to show prejudice in these circumstances, a defendant must demonstrate that there is
a reasonable probability that, but for counsel’s deficient failure to consult with him about
an appeal, he would have timely appealed.” Flores-Ortega, 528 U.S. at 484. This
inquiry is somewhat similar to the inquiry as to whether a consultation is required and
can rest in large part on reasonably demonstrating to counsel an interest in appeal. For
the reasons stated above when considering that question, the court finds DeFelice
reasonably demonstrated to counsel his interest in appeal. This is further bolstered by
the fact that DeFelice’s sentence followed trial, not a plea agreement, and that he could
have reasonably assumed that Attorney Hillis’ statement following the guilty verdict that
he planned to appeal was still an accurate reflection of Attorney Hillis’ intentions. While
DeFelice has not come forward with any non-frivolous grounds for appeal, such a
demonstration is not necessary here, given the other facts present and the presumption
of prejudice. See id. at 486. Accordingly, because he was denied an appeal altogether,
DeFelice has satisfied the prejudice prong of Flores-Ortega and Strickland.
Accordingly, DeFelice has met his burden to prove his counsel’s ineffectiveness
for failing to file a notice of appeal on his behalf. He is therefore entitled to a reentry of
judgment, which will provide him an opportunity to file a notice of appeal with the Court
of Appeals within 14 days of the judgment’s reentry. See Sanchez, 2011 WL 1885348
at *7.

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V.

CONCLUSION
For the foregoing reasons, the court grants Petitioner’s Motion to Vacate, Set

Aside, or Correct Sentence (Doc. No. 1). The court further terminates as moot
Petitioner’s Motion for Leave to File a Supporting Memorandum of Law (Doc. No. 4). In
light of the court’s Ruling, the court also terminates as moot Petitioner’s Motion for
Leave to Amend his 2255 Motion (Doc. No. 8).3 The Clerk is directed to vacate and
subsequently reenter the court’s Order of Judgment in this case. DeFelice shall have
fourteen days following reentry of that judgment to file the appropriate Notice of Appeal.
SO ORDERED.
Dated at New Haven, Connecticut this 28th day of February, 2013.

___/s/ Janet C. Hall_______
Janet C. Hall
United States District Judge

3

The court notes that DeFelice originally brought his 2255 Motion pro se and had only limited
time to confer with counsel, once counsel was appointed, before counsel filed her supporting
memorandum. DeFelice filed his Motion for Leave to Amend in light of newly acquired information that
may have added additional grounds that would support the granting of his 2255 Motion. As this 2255
Motion has been granted, DeFelice may pursue those grounds on direct appeal.

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