Spaulding v. USA

Filing 6

ORDER: The petitioner's Motion to Vacate/Set Aside/Correct Sentence (2255) (Doc. No. 1 ) is hereby DENIED for the reasons set forth in the attached ruling. Signed by Judge Alvin W. Thompson on 9/23/15. (Mata, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
ANDRE SPAULDING,
:
:
Petitioner,
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
:
------------------------------x

Civil No. 3:12CV1264(AWT)

RULING ON MOTION PURSUANT TO 28 U.S.C. § 2255
Petitioner Andre Spaulding, proceeding pro se, has filed a
motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or
correct his sentence.

The petitioner claims that he is entitled

to relief because his counsel provided constitutionally
ineffective assistance.

For the reasons set forth below, the

petitioner’s contentions are without merit, and the motion is
being denied without a hearing.
I.

FACTUAL AND PROCEDURAL BACKGROUND
The government and the petitioner agree on the following

factual and procedural background.

(See Government’s Response

to Spaulding’s Petition Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence (Doc. No. 3) (“Response”) at 2-15;
Reply to Government’s Response to Spaulding’s Petition Under 28

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U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc.
No. 4) (“Reply”) at 2).
On December 2, 2009, a federal grand jury sitting in
Bridgeport returned a six-count Indictment against the
petitioner and sixteen others charging various narcotics
offenses.

The Indictment charged the petitioner with conspiracy

to possess with the intent to distribute powder cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 846.

Law

enforcement officers could not locate the petitioner when they
arrested his co-defendants on December 2 and 3, 2009.

He

remained a fugitive until approximately January 19, 2011, when
he was taken into state custody on a different state charge.
On February 3, 2010, after seven of the defendants had
pleaded guilty to the charges in the original Indictment, the
same grand jury returned a six-count Superseding Indictment
against the petitioner, the remaining nine co-defendants, and
two additional defendants.

Specifically, the Superseding

Indictment charged the petitioner in Count One with conspiring
to possess with the intent to distribute five grams or more of
crack cocaine and an unspecified quantity of powder cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 841(b)(1)(C)
and 846.

Between the time of the return of the Indictment and

the Superseding Indictment, the government accumulated
additional evidence showing that the petitioner had extensive

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involvement in the distribution of crack cocaine during the time
period of the charged conspiracy.
On March 11, 2010, the petitioner pleaded guilty to the
portion of Count One of the Superseding Indictment which charged
him with conspiracy to possess with the intent to distribute
five grams or more of crack cocaine.

Prior to the entry of the

guilty plea, the government filed a second offender notice
alleging that the petitioner had sustained a prior drug felony
conviction and, therefore, was subject to enhanced penalties
under 21 U.S.C. § 841(b)(1)(B).

Specifically, the filing of the

second offender notice caused the mandatory minimum
incarceration term to increase from five years to ten years.
At the time of the guilty plea, the petitioner entered into
a written plea agreement.

In the plea agreement, the petitioner

agreed that the quantity of crack cocaine involved in his
offense was greater than 150 grams, but not greater than 500
grams.

The government agreed to recommend a three-level

reduction for acceptance of responsibility, resulting in an
adjusted offense level of 29.

The parties also agreed that the

petitioner had accumulated at least thirteen criminal history
points and fell into Criminal History Category VI, so that his
Chapter Two guideline incarceration range was 151-188 months.
The parties indicated that the petitioner could be a career
offender under U.S.S.G. § 4B1.1 and, if so, the base offense

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level would be 37, instead of 32, and the adjusted guideline
range would be 262 to 327 months.

Finally, the government

agreed to defer to the court on the issue of whether the 100 to
1 ratio for crack and powder cocaine penalties reflected the
factors set forth in 18 U.S.C. § 3553(a), and the petitioner
agreed to waive his right to appeal or collaterally attack the
conviction or the sentence imposed, provided the sentence did
not exceed 188 months.
During the plea canvass, the court placed the petitioner
under oath and asked him “Mr. Spaulding, do you understand that
now that you’ve taken this oath, your answers to my questions
will be subject to the penalties for perjury or for making a
false statement if you do not answer truthfully,” to which the
petitioner replied “Yes, Your Honor.”

(Tr. 03/15/2010 at 5.)

In addition, the court asked the petitioner a number of
questions which are directly relevant to the claims he makes in
his habeas petition.

In particular, the court asked some basic

pedigree questions of the petitioner, and he answered them
clearly and concisely.

(See id. at 6-7.)

He confirmed that he

had not taken any drugs, medicine, pills or alcohol in the
preceding 48 hours and that his mind was clear and he understood
the proceedings.

(See id. at 7.)

The court also confirmed with

defense counsel that he had discussed the case with the
petitioner, that the petitioner “understands the rights he will

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be waiving by pleading guilty[,]” that the petitioner was
competent and “capable of understanding the nature of these
proceedings.”

(Id. at 7-8.)

The court then confirmed with the

petitioner that he had “had an opportunity to discuss [his] case
with [his] attorney and [was] . . . satisfied to have him
represent [him].”

(Id. at 8.)

After reviewing the charge against the petitioner and the
various trial rights that he was relinquishing (see Tr.
03/15/2010 at 8-13), the court asked him about his plea
agreement.

The petitioner signed the plea agreement in open

court and acknowledged that he had also signed it about eleven
days prior to the plea hearing.

(See Tr. 03/15/2010 at 14.)

He

said that he had read the agreement, understood the agreement,
discussed it with his attorney, and had no questions about it.
(See id. at 15.)

He also stated that he understood the

provision in the agreement under which he waived his right to
appeal or collaterally attack his conviction and sentence
provided that his sentence did not exceed 188 months’
incarceration.

(See id. at 15-16.)

Finally, he listened as the

prosecutor summarized the provisions of the plea agreement and
confirmed that “the agreement, as outlined by the Assistant
United States Attorney, fully and accurately reflect[ed] [his]
understanding of the agreement [had] entered into with the
government.”

(Id. at 16-19.)

The petitioner specifically

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stated that, other than the promises contained in the agreement,
no one had “made any promises” that were causing him to plead
guilty or waive his right to appeal or collaterally attack his
sentence.

(Id. at 20.)

He also stated that no one had “made

any threats against [him]” or had coerced him in any way to
plead guilty or waive his appeal and collateral attack rights.
(Id..)
After reviewing the plea agreement, the court discussed the
maximum statutory penalties and the sentencing process,
describing, in detail, the advisory nature of the Sentencing
Guidelines and the consideration that would be made under 18
U.S.C. § 3553(a).

(See Tr. 03/15/2010 at 20-23.)

The court

confirmed with the petitioner that he had reviewed with his
attorney “how the mandatory minimum sentence and the Sentencing
Guidelines relate[d] to [his] case.”

(Id. at 23.)

The

petitioner acknowledged that his attorney had explained how his
“sentence may be determined” and that the court was not “bound
by any explanation or recommendation made by [his] attorney or
by the government.”

(Id..)

The court also confirmed with

defense counsel that he had “discussed with [his] client how the
mandatory minimum sentence and the Sentencing Guidelines relate
to his case and explained to him how his sentence may be
determined.”

(Id. at 24.)

Defense counsel stated that he had

advised the petitioner that the court was not bound by any

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sentencing recommendation by defense counsel, the government or
the plea agreement.

(See id..)

After the petitioner had advised the court, in his own
words, of what he had done to make him guilty of the charged
offense and the petitioner had agreed to the government’s
factual basis for the offense, the court accepted the guilty
plea and specifically advised the petitioner of, inter alia, the
process by which he would meet with the Probation Officer to
provide information for the Presentence Report and the role of
the Presentence Report in the sentencing process.

(See Tr.

03/15/2010 at 34.)
The Presentence Report, last revised before sentencing on
August 19, 2011 (Doc. No. 760) (the “PSR”), stated that the base
offense level, under the November 1, 2009 version of the
Sentencing Guidelines, was 32 because the petitioner was
involved in distributing between 150 and 500 grams of crack
cocaine. 1

(See PSR ¶ 24.)

The base offense level then increased

to 37 because the petitioner was a career offender under
U.S.S.G. § 4B1.1.

(See PSR ¶ 30.)

1

A three-level reduction for

Under the November 1, 2010 guidelines, which applied the new 18
to 1 ratio for powder and crack cocaine penalties under the Fair
Sentencing Act of 2010, the adjusted offense level under Chapter
Two did not change from 32 because the quantity of crack cocaine
involved in the petitioner’s offense exceeded 280 grams, but did
not exceed 840 grams. See PSR, Third Addendum.
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acceptance of responsibility, resulted in a total offense level
of 34.

(See PSR ¶¶ 31-32.)

As to the petitioner’s criminal record, the PSR placed him
in Criminal History Category VI because he had accumulated 19
criminal history points, 16 of which were based on prior
convictions, two of which were based on the fact that the
petitioner committed the offense while serving a term of state
probation, and one of which was based on the fact that the
petitioner committed the offense within two years of having been
released from state incarceration.

(See PSR ¶ 45.)

The

petitioner had three prior convictions for sale of narcotics,
one prior conviction of possession of narcotics and two prior
convictions for third degree assault.

(See PSR ¶¶ 34-39.)

Specifically, in 2001, he was convicted, in three separate
cases, of one count of Sale of Narcotics and two counts of Third
Degree Assault and sentenced to a total effective term of three
years’ incarceration, execution suspended, and two years’
probation.

(See PSR ¶¶ 34-36.)

He later violated his probation

on this sentence and received two years’ incarceration.
PSR ¶ 34.)

(See

In 2003, he was convicted of Sale of Narcotics and

sentenced to six years’ incarceration, execution suspended after
18 months, and four years’ incarceration.

(See PSR ¶ 37.)

The

petitioner violated his probation on this sentence as well and
was later sentenced to an additional term of three years’

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incarceration.

(See PSR ¶ 37.)

In 2005, he was convicted of

Sale of Narcotics and sentenced to 10 years’ incarceration,
execution suspended after four years, and three years’
probation.

(See PSR ¶ 38.)

He violated the terms of his

probation stemming from this sentence by committing the offense
in this case. Finally, in 2010, he was convicted of Possession
of Narcotics and sentenced to two years’ incarceration.
PSR ¶ 39.)

(See

The arrest which gave rise to the conviction in this

case occurred on August 19, 2010.

(See PSR ¶ 39.)

The petitioner also was in Criminal History Category VI by
virtue of his status as a career offender.

At a Criminal

History Category VI and an adjusted offense level of 34, the
petitioner faced a Chapter Four guideline incarceration range of
262 to 327 months.

(See PSR ¶ 54.)

The petitioner submitted a sentencing memorandum and asked
for a sentence below the 262 to 327 month guideline range. In
its sentencing memorandum, the government advocated for
application of the Fair Sentencing Act of 2010 (“FSA”), which
would reduce the maximum statutory term of imprisonment from
life to thirty years and, as a result, reduce the total offense
level to 31 and the guideline incarceration range to 188 to 235
months. At sentencing on August 19, 2011, the court applied the
FSA’s new statutory penalties and concluded that the correct
guideline range was 188 to 235 months. After considering the

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petitioner’s various arguments for a lower sentence, the court
imposed a non-guidelines sentence of 150 months based largely on
the petitioner’s post-arrest rehabilitative efforts.
Neither the petitioner nor the government appealed the
sentence.
II.

LEGAL STANDARD
Federal prisoners can challenge a criminal sentence

pursuant to 28 U.S.C. § 2255 only in limited circumstances.

The

Second Circuit has held that a “collateral attack on a final
judgment in a criminal case is generally available under § 2255
only for a constitutional error, a lack of jurisdiction in the
sentencing court, or an error of law or fact that constitutes a
fundamental defect which inherently results in complete
miscarriage of justice.”

Graziano v. United States, 83 F.3d

587, 590 (2d Cir. 1996) (internal citation and quotation marks
omitted).

Section 2255 provides that a district court should

grant a hearing “[u]nless the motion and the files and records
of the case conclusively show that the prisoner is entitled to
no relief.”

28 U.S.C. § 2255(b).

However, “[t]he language of

the statute does not strip the district courts of all discretion
to exercise their common sense.”
368 U.S. 487, 495 (1962).

Machibroda v. United States,

In making its determination regarding

the necessity of a hearing, a district court may draw upon its
personal knowledge and recollection of the case.

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See Blackledge

v. Allison, 431 U.S. 63, 74 n.4 (1997); United States v. Aiello,
900 F.2d 528, 534 (2d Cir. 1990).

A section 2255 petition, or

any part of it, then, may be dismissed without a hearing if,
after a review of the record, the court determines that the
motion is without merit because the allegations are insufficient
as a matter of law.
III. DISCUSSION
A.

Ineffective Assistance of Counsel

The petitioner claims that his attorney provided
constitutionally ineffective assistance during the plea
negotiation stage, pursuant to Missouri v. Frye, 132 S. Ct. 1399
(2012) and Lafler v. Cooper, 132 S. Ct. 1376 (2012), by giving
him “faulty” advice that caused him to “accept the plea
agreement when there were no real benefits to [him].”
(Memorandum in Support of Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence (Doc. No. 1-1) (“Pet.’s
Memorandum”) at 2.)

The petitioner supports this claim by

alleging that his attorney: (1) failed to communicate with him
before the plea agreement; (2) failed to explain the legal
implications of his plea agreement (Pet.’s Memorandum at 11-12,
15-17); Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence (Doc. No. 1) (“Petition”) at 5; (Declaration at
1)); (3) caused him to be classified as a career criminal
(Declaration at 1); (4) told him that he knew the prosecutor,

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and the petitioner would receive a shorter sentence if he pled
than if he went to trial and lost (Pet.’s Memorandum at 14-15,
Petition at 5, Declaration of Andre Spaulding (Doc. No. 1-1,
Exhibit 1) (“Declaration”) at 1-2); and (5) told him that he
should enter into a plea agreement because he was “in the state
and not around any co-defendants,” so “there would not be anyone
to bother [him].”

(Petition at 5.)

To prevail on an ineffective assistance of counsel claim,
the petitioner must show that his “counsel’s representation fell
below an objective standard of reasonableness” and that “there
is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.”
88, 694 (1984).

Strickland v. Washington, 466 U.S. 668, 687The right to effective assistance of counsel

extends to the plea bargaining process.

See Missouri v. Frye,

132 S. Ct. 1399, 1407-08 (2012) (holding that defense counsel
provided ineffective assistance by failing to inform the
defendant of a favorable plea offer); Lafler v. Cooper, 132 S.
Ct. 1376, 1384 (2012) (holding that defense counsel provided
ineffective assistance where counsel informed the defendant of a
favorable plea offer which the defendant rejected based on the
deficient advice of counsel).

During plea negotiations

defendants are “entitled to the effective assistance of

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competent counsel.” McMann v. Richardson, 397 U.S. 759, 771
(1970).
“The court ‘must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance,’ bearing in mind that ‘[t]here are
countless ways to provide effective assistance in any given
case’ and that ‘[e]ven the best criminal defense attorneys would
not defend a particular client in the same way.’”

United States

v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting
Strickland, 466 U.S. at 689).

“The court’s central concern is

not with ‘grad[ing] counsel’s performance,’ but with discerning
‘whether, despite the strong presumption of reliability, the
result of the particular proceeding is unreliable because of a
breakdown in the adversarial process that our system counts on
to produce just results.’”

Id. at 560 (quoting Strickland, 466

U.S. at 696-67) (internal citations omitted).
An ineffective-assistance claim can function as a way
to escape rules of waiver and forfeiture and raise
issues not presented at trial, and so the Strickland
standard must be applied with scrupulous care, lest
intrusive post-trial inquiry threaten the integrity of
the very adversary process the right to counsel is
meant to serve. Even under de novo review, the
standard for judging counsel’s representation is a
most deferential one. Unlike a later reviewing court,
the attorney observed the relevant proceedings, knew
of materials outside the record, and interacted with
the client, with opposing counsel, and with the judge.
It is all too tempting to second-guess counsel’s
assistance after conviction or adverse sentence. The
question is whether an attorney’s representation

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amounted to incompetence under prevailing professional
norms, not whether it deviated from best practices or
most common custom.
Harrington v. Richter, 562 U.S. 86, 105 (2011) (internal
citations and quotation marks omitted).
1.

Failure to Communicate with the Petitioner

The petitioner asserts that his counsel provided
constitutionally ineffective assistance during the plea
negotiation stage because he “never showed [the petitioner] a
copy of the plea agreement” and “never spoke to [the petitioner]
when [the petitioner] would call him,” and “the only time [the
petitioner] saw [counsel] was when [the petitioner] pled guilty
and when [the petitioner] was sentenced.”

(Petition at 5.)

The

petitioner also asserts that counsel “never responded to [his]
letters or phone calls.”

(Declaration at 1.)

This claim is

without merit.
The petitioner’s claim is contradicted by his responses at
the plea hearing, where the court placed the petitioner under
oath and asked him: “Mr. Spaulding, do you understand that now
that you’ve taken this oath, your answers to my questions will
be subject to the penalties for perjury or for making a false
statement if you do not answer truthfully,” to which the
petitioner replied “Yes, Your Honor.”

(Tr. 03/15/2010 at 5.)

The petitioner then stated that he had read the plea agreement,

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discussed it with his attorney 2, and was satisfied with his
representation:
THE COURT: Mr. Spaulding, have you had an opportunity
to discuss your case with your attorney and are you
satisfied to have him represent you?
THE DEFENDANT: Yes, Your Honor.
. . .
THE COURT: . . . Mr. Spaulding, have you read this
plea agreement?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand it, sir?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Have you discussed it with your attorneys?
THE DEFENDANT: Yes, sir.
(Tr. 03/15/2010 at 8, 14-15.)

Furthermore, as explained in

Section 2 below, the petitioner also stated at the plea hearing
that he was aware of numerous specific elements of his plea
agreement.

The petitioner’s statements contradict his

contention now that he received ineffective assistance of
counsel because his attorney failed to communicate with him
before he entered into the plea agreement.

2

At times the transcript refers to “attorneys” because the
defendant’s counsel was assisted by an associate counsel.
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2.

Failure Explain the Legal Consequences of
Entering into the Plea Agreement

The petitioner asserts that defense counsel failed to
explain to him the legal implications of pleading guilty.

These

claims are without merit because they are contradicted by the
petitioner’s statements at the plea hearing.
a. Waiver of the Right to Appeal
The petitioner asserts that defense counsel failed to
explain that by entering into the plea agreement he waived
certain rights to appeal (Pet.’s Memorandum at 11-12, 15-17).
At the plea hearing, the court specifically asked the
petitioner if he understood that he would lose his right to
appeal his conviction as a consequence of his guilty plea, and
the petitioner responded that he did:
THE COURT: If you plead guilty and I accept your plea,
you will be giving up your constitutional right to a
trial and the other rights I have just discussed.
There will be no trial of any kind and no right to
appeal the conviction. The court will simply enter a
finding of guilty on the basis of your guilty plea. Do
you understand that, sir?
THE DEFENDANT: Yes, Your Honor.
(Tr. 03/15/2010 at 12-13.)

The petitioner also stated that he

understood that he would lose his right to appeal his sentence
if it did not exceed certain thresholds:
THE COURT: And I’m looking at page 5 now, Mr.
Spaulding. Do you understand -- it’s Paragraph Number
5 on page 5. Do you understand that under some

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circumstances, the defendant can appeal or
collaterally attack his sentence?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand that if the sentence in
your case does not exceed 188 months, you are giving
up your right to appeal or collaterally attack your
sentence?
THE DEFENDANT: Yes, Your Honor.
(Tr. 03/15/2010 at 16.)
b. Sentencing
The petitioner asserts that his attorney failed to explain
to him how much time in prison he faced and what information the
court would use to determine his sentence:
Counsel should have been fully prepared to explain the
[court’s] use of the PSR and to inform Spaulding as to what
sentence he would be exposed to . . . . [Counsel] failed to
explain to Spaulding . . . how the court would determine
the drug amounts that would be attributed to him, his role
in the conspiracy . . . .
(Pet.’s Memorandum at 11, 15-17.)

As to the petitioner’s claims

that counsel failed to explain what potential sentence he faced
if he pled guilty, the petitioner stated at the plea hearing
that he was aware of both the minimum and maximum sentence for
the crime to which he was pleading guilty.
THE COURT: Have you consulted with your attorneys
about the charges, sir?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand the charge?
THE DEFENDANT: Yes, Your Honor.

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THE COURT: Do you understand that the law provides for
a ten-year minimum sentence for the offense to which
you intend to plead guilty?
THE DEFENDANT: Yes, Your Honor.
(Tr. 03/15/2010 at 8-9.)
THE COURT: . . . Mr. Spaulding, I now want to talk
with you about the maximum sentence that could be
imposed in your case. You understand that if you plead
guilty, you could receive a sentence of imprisonment
that can be as long as life in prison?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand that you also face a
supervised release term of as much as a life term?
THE DEFENDANT: Yes, Your Honor.
(Tr. 03/15/2010 at 20.)
The petitioner also stated that he had reviewed the
application of the Sentencing Guidelines to his case with his
attorney:
THE COURT: Do you also understand that if I do not
accept any recommendation in your plea agreement
related to the Sentencing Guidelines, you will still
be bound by your plea? That means you will have no
right to withdraw your plea.
THE DEFENDANT: Yes, Your Honor.
THE COURT: Mr. Spaulding, have you reviewed with your
attorneys how the mandatory minimum sentence and the
Sentencing Guidelines relate to your case?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Have your attorneys explained to you how
your sentence may be determined?

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THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand that I am not bound by
any explanation or recommendation made by your
attorney or by the government?
THE DEFENDANT: Yes, Your Honor.
(Tr. 03/15/2010 at 23.)

Furthermore, the court explained how

the sentencing process works:
THE COURT: Also, in performing the Guidelines
calculation, the sentencing judge must first determine
the sentencing range that would typically result from
the combination of your particular offense and your
criminal history and, second, determine whether there
are facts about your case that would lead the Court to
conclude that a higher range or a lower range is the
appropriate recommendation under the Guidelines. Do
you understand that, sir?
THE DEFENDANT: Yes, Your Honor.
THE COURT: In addition, in your case the statute
provides for a mandatory minimum sentence. Thus, the
Court cannot impose a sentence in your case that is
less than the mandatory minimum sentence. Do you
understand that, sir?
THE DEFENDANT: Yes.
THE COURT: I want to emphasize that until the time of
sentencing when the Court has received a Presentence
Report about you and has heard from you and from your
attorney and from the government, you cannot know with
certainty what the recommended sentencing range
calculated using the Sentencing Guidelines will be or
know how much weight the Court will put on which
particular factors under the statute, including the
Sentencing Guidelines. Do you understand that, sir?
THE DEFENDANT: Yes, Your Honor.
(Tr. 03/15/2010 at 22-23.)

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With respect to the drug amounts that would be attributed
to the petitioner at sentencing, the court asked the petitioner
at the plea hearing if he had discussed with his attorney the
fact that the quantity of crack cocaine involved in his offense
was between 150 and 500 grams, and the petitioner replied that
he had:
THE COURT: Have you discussed with your attorneys that
on page 3 at the top you are agreeing that the
quantity of cocaine base, or crack cocaine, involved
in your offense is at least 150 grams but less than
500 grams?
THE DEFENDANT: Yes, Your Honor.
(Tr. 03/15/2010 at 15.)
With respect to the petitioner’s role in the conspiracy,
the petitioner described his offense conduct in his own words at
the plea hearing:
THE
me,
you
now

COURT: . . . Mr. Spaulding, would you please tell
in your own words, what you did that shows that
are in fact guilty of the charge to which you are
offering to plead guilty?

THE DEFENDANT: I called William Peña and ordered
cocaine, cocaine base. I cooked up the cocaine into
crack, resold it to my customers, and got more than 5
grams of crack for resale to my customers.
(Tr. 03/15/2010 at 27.)

The government then summarized its

evidence that the petitioner had engaged in the conspiracy, and
the petitioner stated that he agreed with the government’s
summary of his offense conduct:

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As for Mr. Spaulding, he was intercepted starting on
September 27, 2009 and going up through about November 27,
2009.
During the course of those months, he was involved in about
nine separate transactions based on the phone calls and the
surveillance. Two of those transactions he was surveilled
meeting up with these individuals in New York. And on one
of those occasions he was captured on video. I'll just go
through them very quickly.
On September 27, 2009, he negotiated the purchase of $1,000
of cocaine.
October 3, 2009 was $1,000 of cocaine.
October 22, 2009 was $1,100 worth of cocaine.
October 25, 2009 was $2,170 worth of cocaine, also
referenced as 56 grams.
October 30, 2009 was $1,350 worth of cocaine.
November 5, 2009 was $1,900 worth of cocaine.
November 17, 2009 was $1,500 worth of cocaine.
November 21, 2009 was $1,150 worth of cocaine.
And on November 27, 2009, it was talked about as $1,500
worth of cocaine, but he only provided them with $1,390.
On all those locations he dealt predominantly with William
Peña, although on two occasions Manny was also involved,
and on two occasions he dealt with Wilson Peña.
As far as whether it was cocaine powder or crack cocaine,
the calls themselves was only specific as to the price. And
typically they would charge around the same for powder and
crack, although it did vary a little bit. Typically, they
charged between $35 and $40 per gram. But both William and
Wilson Peña would testify that they mostly dealt crack
cocaine to Mr. Spaulding and specifically recalled certain
of the transactions I just mentioned that were crack
cocaine, that powder cocaine was the exception rather than
the rule. The one I'll mention is the October 25, 2009,
that was a day when they specifically recall selling him 56

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grams of crack cocaine. And there were several occasions
throughout the wire tap where they simply didn't have
powder cocaine to sell, was one of the ways we were able to
determine what they were selling. And they would say over
the phone that they didn't have any soft or they ran out of
soft; that was the way we knew what they were selling on
that particular day.
Thank you, Your Honor.
THE COURT: Thank you.
Mr. Spaulding, do you agree with Mr. Spector's summary of
what you did?
THE DEFENDANT: Yes, Your Honor.
(Tr. 03/15/2010 at 29-31.)
Moreover, the plea agreement sets out the elements of the
offense of conspiracy (Plea Agreement (Doc. No. 748) at 1), and
as noted above, the petitioner acknowledged at the plea hearing
that he had read the plea agreement and discussed it with his
attorney. (See Tr. 03/15/2010 at 14-15.)
Thus, the petitioner has failed to show that his counsel
provided ineffective assistance by failing to educate him about
the sentence he faced if he pleaded guilty.
3.

Classification as a Career Criminal

The petitioner asserts that his attorney caused the
government to use a misdemeanor assault case against him to make
him a career criminal.

(Declaration at 1.)

without merit.

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This claim is

Although the court increased the petitioner’s offense level
by two levels because he qualified as a career offender pursuant
to U.S.S.G. § 4B1.1(b)(A), the petitioner does not explain how
his attorney caused this outcome.

The PSR states:

A review of Connecticut Superior Court transcripts
indicates that the defendant does qualify as a career
offender. Specifically, three qualifying convictions
have been identified. On November 28, 2001, the
defendant appeared in docket number S01S- CR000135251-S, where he pled guilty to possession with
intent to sell narcotics, specifically, crack cocaine.
On May 8, 2003, the defendant appeared in docket
number S01S-CR02-0142739-S, where he pled guilty to
possession of narcotics with intent to sell or
distribute, specifically crack cocaine. On May 26,
2005, the defendant appeared in docket number F02BCR05-0206226-S, where he pled guilty to possession of
narcotics with intent to sell, specifically cocaine.
(PSR ¶ 21.)
To the extent that the petitioner argues that defense
counsel did not explain that he would be classified as a career
criminal when sentenced, this argument is also unavailing.

At

the plea hearing, the court specifically asked the petitioner if
he had discussed this issue with counsel:
THE COURT: I think on page 4 [of the plea agreement]
there’s a reference to an issue concerning whether or
not you may be a career offender. Have you discussed
that with your attorneys?
THE DEFENDANT: Yes, Your Honor
(Tr. 03/15/2010 at 16.)

Thus, the court finds that the

petitioner has failed to show that his counsel provided

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ineffective assistance by causing the government to use a
misdemeanor assault case to make him a career criminal.
4.

Counsel’s Familiarity with the Prosecutor and
Advice to Plead Guilty

The petitioner asserts that his counsel provided
constitutionally ineffective assistance by telling him that he
“knew the prosecutor,” and the petitioner “would be much better
[off] at sentencing [if he pled guilty] than if he would have
gone to trial and lost,” in which case he “would get a life
sentence.”

(Petition at 5, Pet.’s Memorandum at 15.)

This

claim is without merit.
The petitioner fails to explain how his attorney’s
familiarity with the prosecutor caused him to enter into a plea
agreement or made his counsel’s assistance ineffective.

The

petitioner’s assertions that his attorney had promised him a
“low sentence” if he pled guilty and told him that he “would get
a life sentence” if he went to trial and lost, contradict the
petitioner’s statement at the plea hearing that he had not
received any promises outside the plea agreement itself:
THE COURT: Other than the promises contained in the
written agreement, has anyone made any promises that
are causing you to plead guilty or any promises that
are causing you to waive your right to appeal or
collaterally attack your sentence?
THE DEFENDANT: No, not at all, Your Honor.

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(Tr. 03/15/2010 at 19-20.)

Moreover, to the extent defense

counsel stated that the petitioner was likely to receive a
shorter prison sentence if he pled guilty than if he was found
guilty at trial, this advice was objectively reasonable, as that
is typically the result.

Furthermore, the petitioner was

sentenced to 150 months’ imprisonment, which was below the
guidelines range of 188 to 235 months.
5.

Counsel’s Statement About the Location of the
Petitioner’s Co-Defendants

The petitioner asserts that his attorney told him that
“since [he] was in the state and not around any co-defendants
that [he] should take the plea as there would not be anyone to
bother [him].”

(Petition at 5.)

The petitioner does not

explain what this statement means, how it influenced him to
plead guilty, or how it in any way prejudiced him.

Thus, the

petitioner has failed to allege an ineffective assistance of
counsel claim with respect to this statement.
B.

Waiver

The petitioner’s motion to vacate, set aside or correct his
sentence also fails because the petitioner waived his right to
collaterally attack his sentence. 3

3

By memorandum dated October 14, 2014, the U.S. Department of
Justice announced a policy with respect to waivers of claims of
ineffective assistance of counsel, which provides in pertinent
part:

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“In no circumstance . . . may a defendant, who has secured
the benefits of a plea agreement and knowingly and voluntarily
waived the right to appeal a certain sentence, then appeal the
merits of a sentence conforming to the agreement. Such a remedy
would render the plea bargaining process and the resulting
agreement meaningless.” United States v. Salcido-Contreras, 990
F.2d 51, 53 (2d Cir. 1993) (dismissing defendant’s appeal
consistent with waiver in plea agreement).
In this case, the plea agreement that the petitioner
entered into included a waiver of the right to appeal or
collaterally attack his sentence:
The defendant acknowledges that under certain
circumstances he is entitled to challenge his
conviction and sentence. The defendant agrees not to
appeal or collaterally attack in any proceeding,
including but not limited to a motion under 28 U.S.C.
§ 2255 . . . the conviction or sentence imposed by the
For cases in which a defendant's ineffective assistance
claim would be barred by a previously executed waiver,
prosecutors should decline to enforce the waiver when
defense counsel rendered ineffective assistance resulting
in prejudice or when the defendant's ineffective assistance
claim raises a serious debatable issue that a court should
resolve.
See Mem. from James M. Cole, Deputy Att’y Gen., U.S. Dep’t of
Justice available at
http://www.justice.gov/sites/default/files/pressreleases/attachments/2014/10/15/dept-policy-on-waivers-ofclaims-of-ineffective-assistance-of-counsel.pdf.
Here, the foregoing discussion shows that the petitioner’s
claim of ineffective assistance of counsel does not raise a
serious debatable issue.

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Court if that sentence does not exceed 188 months. . .
. The defendant acknowledges that he is knowingly and
intelligently waiving these rights.
(Plea Agreement at 5).

The petitioner’s sentence was 150 months

of incarceration (less than the threshold of 188 months over
which the petitioner may collaterally challenge his sentence).
(See Pet.’s Memorandum at 1.)

To the extent that the petitioner

argues that he did not knowingly and voluntarily enter into the
plea agreement because defense counsel provided ineffective
assistance at the plea negotiation stage, those arguments are
addressed in Section III.A above.
IV.

CONCLUSION
For the reasons set forth above, the Motion to Vacate, Set

Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. No.
1) is hereby DENIED.

The court will not issue a certificate of

appealability because the petitioner has not made a substantial
showing of the denial of a constitutional right.

See 28 U.S.C.

§ 2253(c)(2).
The Clerk shall close this case.
It is so ordered.
Dated this 23rd day of September 2015, at Hartford,
Connecticut.

__________/s/AWT__________
Alvin W. Thompson
United States District Judge

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