Massey v. USA
Filing
15
ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence. Please see attached Ruling and Order. Signed by Judge Robert N. Chatigny on 7/15/15. (Reardon, C)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MICHAEL MASSEY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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PRISONER
Case No. 3:12cv1293 (RNC)
RULING AND ORDER
Petitioner Michael Massey brings this action pro se for a
writ of habeas corpus pursuant to 28 U.S.C. § 2255.
He was
convicted after a jury trial of bank robbery and possession of a
firearm in furtherance of a crime of violence.
appeal followed.
(2d Cir. 2012).
An unsuccessful
United States v. Massey, 465 Fed. Appx. 62, 65
The petition challenges the firearms conviction
on several grounds stemming from the allegedly improper admission
of his confession.
For reasons that follow, the petition is
denied.
BACKGROUND
On September 22, 2008, two men wearing masks robbed a bank
in Naugatuck.
The taller man, wearing white sneakers and
brandishing a firearm, guarded the lobby while the shorter man
went behind the counter and filled a bag with cash.
Soon after
the two robbers fled, petitioner Massey and another man, Devon
Patterson, were arrested following a high-speed vehicle chase.
Massey, who is taller than Patterson, was wearing white sneakers.
Police recovered from the vehicle a handgun, $24,307 in cash
(including "bait money"), money bands from the bank, and clothing
worn by the robbers during the robbery.
In the hours following
the arrest, Massey confessed in writing to committing the robbery
with Patterson and admitted orally that he was the one who had
brandished the gun.
Prior to trial, Massey moved to suppress his confession on
the basis that he had invoked his right to counsel before giving
any incriminating statements.
The motion to suppress centered on
the factual question of the timing of the confession: when Massey
was questioned by Detective Simpson, he waived his rights and
gave oral and written statements; when he spoke to Detective
Onofrio, he invoked his right to counsel.
After extensive
proceedings, I credited the testimony of several police officers
that the conversation with Detective Simpson occurred first and
thus the motion to suppress was denied.
DISCUSSION
Massey petitions for relief from his conviction on three
grounds: (1) his counsel provided ineffective assistance during
the plea bargaining process; (2) his counsel provided ineffective
assistance in failing to object to use of a misdated waiver of
rights form in the suppression hearings; and (3) the Court erred
in admitting the confession based on the misdated waiver of
rights form.
A fourth ground for relief, alleging insufficient
2
evidence to convict on the firearms charge, is best construed as
an argument that the admission of petitioner's confession was not
harmless error.
None of petitioner’s arguments provides a basis
for relief under § 2255.
To prevail on his claim of ineffective assistance of
counsel, petitioner must establish that (1) his counsel’s
performance fell below an objective standard of reasonableness
and (2) but for his counsel’s errors, there is a reasonable
probability that the result of the proceeding would have been
different.
Strickland v. Washington, 466 U.S. 668 (1984); Brown
v. Artuz, 124 F.3d 73, 79-80 (2d Cir. 1997).
When evaluating
claims of ineffective assistance, courts apply a "strong
presumption" that counsel’s representation was "within the ‘wide
range’ of reasonable professional assistance."
Harrington v.
Richter, 131 S. Ct. 770, 787 (2011) (quoting Strickland, 466 U.S.
at 689).
"The question is whether an attorney’s representation
amounted to incompetence under prevailing professional norms, not
whether it deviated from best practices or most common custom."
Id. at 788.
Courts have "declined to deem counsel ineffective
notwithstanding a course of action (or inaction) that seems
risky, unorthodox, or downright ill-advised."
Tippens v. Walker,
77 F.3d 682, 686 (2d Cir. 1996) (counsel was constitutionally
ineffective because he slept through significant portions of
trial).
3
Massey first argues that his counsel was ineffective in that
he failed to inform Massey of his "right" to enter a conditional
guilty plea (i.e. a plea that preserved a right to appeal the
denial of the motion to suppress the confession).
Massey asserts
that he would have pleaded guilty had he known he could receive
credit for acceptance of responsibility while still appealing the
suppression ruling.
The Sixth Amendment right to counsel extends
to the plea bargaining process.
1399, 1407 (2012).
Missouri v. Frye, 132 S. Ct.
In the plea negotiation context, the
performance prong of the Strickland test is met when counsel
affirmatively misadvises the defendant as to the consequences of
a plea or fails to inform him of a formal plea offer.
Id. at
1408-09; Kovacs v. United States, 744 F.3d 44, 51 (2d Cir. 2014).
But a defendant has no right to be offered a plea.
Ct. at 1410.
Frye, 132 S.
In the absence of a plea offer, the petitioner must
"demonstrate a reasonable probability that the prosecution would
have accepted, and the court would have approved," a plea deal
resulting in conviction on a lesser charge or a sentence of less
prison time.
See id. at 1409; Kovacs, 744 F.3d at 52.
Here, the government points out that a defendant needs
government and court approval to obtain a conditional plea, Fed.
R. Crim. P. 11(a)(2), and it submits an affidavit showing that it
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would have declined to agree to a conditional plea in this case.1
The Assistant United States Attorney who prosecuted Massey's
criminal proceeding states in the affidavit that at the time the
Court ruled on the suppression motion, the government had
invested significant time and resources in the case and was
substantially prepared for trial.
ECF No. 13-1, at ¶ 5.
Accordingly, offering a conditional plea "would not have saved
the government much time or conserved substantial resources," and
the government would not have agreed to one.
Id.
The Court has no reason to decline to credit this affidavit,
and it defeats Massey's claim.
Even if Massey could show that
his trial counsel was ineffective for failing to pursue a
conditional plea option that would have been rejected, he
certainly cannot demonstrate a reasonable probability that the
government would have consented to a conditional plea.
Because
Massey cannot show that he was prejudiced by his counsel's
alleged error, as Strickland requires, his claim is unavailing.2
1
Given that the government's amenability to a conditional
plea is a matter known only to the government, the question can
appropriately be determined by expanding the documentary record
rather than holding a full evidentiary hearing. See Chang v.
United States, 250 F.3d 79, 85–86 (2d Cir. 2001) (in appropriate
circumstances, a district court adjudicating a § 2255 case may
settle evidentiary questions by choosing this "middle road"
between summary dismissal and an in-court proceeding).
2
In his reply to the government's affidavit, Massey suggests
for the first time that his lawyer was ineffective because he did
not advise Massey that if he pled guilty unconditionally he could
nonetheless contest the suppression ruling by way of a § 2255
5
In ground two, petitioner argues that counsel was
constitutionally ineffective for failing to object to the
prosecution's use of a misdated Miranda waiver form to
substantiate the timing of Massey's waiver and confession.
Even
assuming counsel's failure to object to the admission of the form
fell below an objective standard of reasonableness, which it did
not, petitioner cannot establish prejudice.
The Court's decision
on the motion to suppress was based on the testimony of witnesses
regarding the order in which Detectives Simpson and Onofrio
questioned Massey, not the time and date on the written waiver.
See Transcript of Suppression Hearing (Oral Ruling) at 286:24290:15, Case No. 3:08-cr-246 (ECF No. 131).
Because the motion
to suppress would have been denied even if the written waiver had
been excluded, this claim is also unavailing.3
petition. This claim fails under Strickland because Massey's
premise is untrue. A defendant who enters a valid, unconditional
plea of guilty may not collaterally attack his conviction based
on constitutional errors preceding the plea. Parisi v. United
States, 529 F.3d 134, 138 (2d Cir. 2008) ("A defendant who pleads
guilty unconditionally while represented by counsel may not
assert independent claims relating to events occurring prior to
the entry of the guilty plea." (internal quotation marks and
citations omitted)); United States v. Salazar, 323 F.3d 852, 856
(10th Cir. 2003) ("[I]t is well established that a voluntary and
unconditional guilty plea waives all non-jurisdictional
defenses.").
3
A defendant need not sign a written form to waive his
rights. See United States v. Boston, 508 F.2d 1171, 1175 (2d
Cir. 1974) (affirming district court finding that defendant
waived his rights where defendant refused to sign waiver of
rights form but answered questions).
6
Ground three is styled as a claim of "actual innocence" on
the firearms charge, but it is better understood as a claim that,
in the absence of the confession, there was insufficient evidence
to convict on that charge.
The Court construes this as an
ineffective assistance claim based on counsel's failure to argue
that the evidence was insufficient.
demonstrate prejudice.
Here again, Massey cannot
Even if the confession had been
suppressed, the evidence was more than sufficient for the jury to
convict.4
Massey was arrested following a high-speed chase in a
vehicle that contained the fruits of the robbery.
Most
importantly for the firearms charge, Massey matched the
witnesses' description of the gunman: he was the taller of the
two men and was wearing white sneakers at the time of his arrest.
This circumstantial evidence was more than sufficient for the
jury to find Massey guilty beyond a reasonable doubt.
For this
reason, petitioner cannot meet his burden to demonstrate a
reasonable probability that the result of the trial would have
been different had the confession been suppressed.
CONCLUSION
Accordingly, the petition for a writ of habeas corpus is
hereby denied.
Because the petitioner has not shown that he was
deprived of a constitutional right, a certificate of
4
See United States v. Massey, 465 Fed. Appx. 62, 65 (2d
Cir. 2012) (finding that any error in admitting the confession
was harmless beyond a reasonable doubt).
7
appealability will not issue.
The Clerk may enter judgment and
close the case.
So ordered this 15th day of July 2015.
/s/
Robert N. Chatigny
United States District Judge
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