Joseph v. USA
Filing
114
RULING granting 66 Amended Motion for Relief under 28 U.S.C. § 2255; terminating as moot 1 Motion to Vacate/Set Aside/Correct Sentence (2255). The Plaintiff shall notify the court within seven (7) days of the date of this Ruling whether he intends to withdraw his plea of guilty on criminal case 3:09CR252 (JCH). Signed by Judge Janet C. Hall on 6/14/2016. (Anastasio, F.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RORY JOSEPH,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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CIVIL ACTION NO.
3:13-CV-00168 (JCH)
JUNE 14, 2016
RULING RE: AMENDED MOTION FOR RELIEF UNDER 28 U.S.C. § 2255 (DOC. NO.
66)
Petitioner Rory Joseph (“Joseph”) has moved to vacate his conviction, vacate his
sentence, or for such other relief as is authorized under section 2255 of title 28 of the
United States Code. See Am. Mot. for Relief under 28 U.S.C. § 2255 (“Am. Mot. for
Relief”) (Doc. No. 66). Joseph argues that his conviction and sentence should be
vacated because he received ineffective assistance of counsel and because he is
actually innocent. See id. He also alleges that he is entitled to relief because the court
failed to ensure that Joseph understood the elements of the charged offense before he
pled guilty and neglected to ensure that the elements of the charged offense were
satisfied by the facts of Joseph’s case. See id. at 2.
The government responded to Joseph’s claims in an Opposition filed on May 12,
2015. See The United States’ Mot. for Extension of Time to File Resp. to Am. 2255 Pet.
(“Gov’t’s Opp.”) (Doc. No. 75).1 Joseph filed a Reply to the government’s response on
July 8, 2015. See Pet’r’s Reply Mem. of Law in Supp. of Request for Summ. Relief
Despite its title, the government’s “Motion for Extension of Time” (Doc. No. 75) contains its
substantive response to Joseph’s claims.
1
1
under § 2255 or, In the Alternative, for an Evidentiary Hr’g (“Pet’r’s Reply”) (Doc. No.
82). The court held oral argument on Joseph’s Petition on October 2, 2015. See
Minute Entry (Doc. No. 86). Following oral argument, both Joseph and the government
filed supplemental briefing on issues related to the pending Petition. See Pet’r’s Suppl.
Mem. of Law (Doc. No. 89); the United States’ Suppl. Mem. in Opp. to Am. Section
2255 Pet. (“Gov’t’s Suppl. Mem. in Opp.”) (Doc. No. 92); Pet’r’s Second Suppl. Mem. of
Law (Doc. No. 93). Joseph also filed a Declaration in support of his Petition. See Decl.
of Rory Joseph (Doc. No. 94).
The court subsequently determined that “the motion and the files and records of
the case” did not show that Joseph “is entitled to no relief,” 28 U.S.C. § 2255(b), and
therefore scheduled an evidentiary hearing on Joseph’s Petition. The first evidentiary
hearing was held on April 19, 2016. See Minute Entry (Doc. No. 107). At that hearing,
Joseph attempted to introduce the testimony of an expert witness, to which the
government objected on the ground that Joseph had not sufficiently disclosed the
opinions of the proposed expert in advance of the hearing. See Evidentiary Hr’g Tr.
(“Tr.”) at 91 (Doc. No. 111). Although Rule 26 of the Federal Rules of Civil Procedure
does not necessarily apply in proceedings related to a Petition filed pursuant to section
2255, see Fed. R. Governing Section 2255 Proceedings 12 (noting that “[t]he Federal
Rules of Civil Procedure . . . may be applied to a proceeding under these rules”
(emphasis added)), the court adjourned the evidentiary hearing to allow Joseph to make
a formal disclosure of his proposed expert and to permit the government to obtain the
services of its own expert, if it so chose. See Tr. at 94 (Doc. No. 111). The continued
evidentiary hearing was held on May 18, 2016, see Minute Entry (Doc. No. 113), after
2
which the court took Joseph’s Petition and the related filings under advisement.
For the reasons that follow, Joseph’s Amended Motion for Relief (Doc. No. 66) is
GRANTED.
I.
BACKGROUND
In November 2009, a federal grand jury returned an Indictment charging Joseph
with one count of possessing a firearm while subject to a restraining order that included
a finding that Joseph was a credible threat to the physical safety of the protected person
in violation of sections 922(g)(8) and 924(a)(2) of title 18 of the U.S. Code. United
States v. Joseph, No. 3:09-cr-00252 (JCH), Indictment (Doc. No. 21). On December
22, 2009, Joseph pled guilty to Count One of the Indictment. See id., Minute Entry for
Proceedings Held before Judge Holly B. Fitzsimmons: Change of Plea Hr’g (Doc. No.
32); id., Plea Agreement (Doc. No. 36).
On June 24, 2010, the court sentenced Joseph to 120 months imprisonment
followed by three years of supervised release, as well as a $100 special assessment.
See id., Judgment (Doc. No. 69). The court found a base level offense of 14, a fourlevel enhancement for specific offense characteristics, and a two-level enhancement for
obstruction of justice. See id., Sentencing Hr’g Tr. at 110 (Doc. No. 75). The court
declined to subtract levels from Joseph’s offense level for acceptance of responsibility,
as Joseph urged. See id. at 110-11. Thus, Joseph’s total offense level was 20. When
combined with Joseph’s criminal history category of II, his offense level yielded a
Guidelines imprisonment range of 37-46 months. See id. However, the court departed
upward from the United States Sentencing Guidelines under section 5K2.3, based on
extreme psychological injury to the victim. See id. at 179-86; see also Judgment at 1
3
(Doc. No. 69). Joseph’s sentence was also a variance sentence imposed after United
States v. Booker, 543 U.S. 220 (2005), and after the court’s consideration of the factors
listed in section 3553(a) of title 18 of the U.S. Code. See Judgment at 1 (Doc. No. 69).
Joseph appealed his sentence, contending that it should be vacated because the
government breached the plea agreement and the court committed procedural and
substantive errors in sentencing him. The Second Circuit affirmed Joseph’s sentence
on February 16, 2012. United States v. Joseph, 462 F. App’x 52 (2d Cir. 2012)
(Summary Order).
On February 4, 2013, Joseph timely filed a Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. No. 1). Subsequently, and
through counsel, Joseph filed an Amended Motion for Relief (Doc. No. 66).
II.
FINDINGS OF FACT2
The lawyer who represented Rory Joseph in his criminal case (“defense
counsel”) was a solo practitioner who was appointed to represent Joseph pursuant to
the Criminal Justice Act (“CJA”). See United States v. Joseph, No. 3:09-cr-00252
(JCH), Attorney Appearance (Doc. No. 10). Joseph’s defense counsel has handled
approximately 15-20 cases as a CJA-appointed lawyer in his career, although he
stopped accepting CJA appointments a few years ago. See Tr. at 8 (Doc. No. 111).
Joseph’s case was the first case involving section 922(g)(8) that defense counsel had
ever handled. See id. at 50.
Defense counsel’s involvement in Joseph’s case began with his appearance at
2
The court has sought to separate its findings of fact from its conclusions of law. However, there
may be occasions when findings of fact are intertwined with the legal analysis in the Discussion section.
Additionally, the court notes that it finds only those facts necessary to resolve the pending Motion.
4
the initial presentment, at which point he met with Joseph for the first time. See id. at 9.
Defense counsel also received a copy of the criminal Complaint and supporting Affidavit
at the presentment. See id. at 9-10. The criminal Complaint indicates that Joseph has
violated “Title 18, United States Code, Sections 922(g)(8)(B), 922(g)(9) and 924(a)(2).”
Criminal Compl. (Gov’t’s Ex. 1A) (Doc. No. 112). Shortly after the presentment, defense
counsel received additional discovery materials from the government, including a sworn
statement Joseph gave to law enforcement officers after his arrest, see Rory Joseph
Statement (Gov’t’s Ex. 1B) (Doc. No. 112), a police report from the Branford Police
Department detailing Joseph’s alleged domestic violence against the mother of his
child, see Protection/Restraining Order (Gov’t’s Ex. 1C) (Doc. No. 112), and a copy of
the Restraining Order to which Joseph was subject at the time of the events giving rise
to his criminal prosecution, see id. Defense counsel reviewed this Restraining Order
and sections 922(g)(8) and 922(g)(9) of title 18 of the United States Code prior to
Joseph’s detention hearing and concluded that there was “[d]efinitely” probable cause
for the charges against Joseph listed in the criminal Complaint. Tr. at 14 (Doc. No.
111).
After Joseph was detained, defense counsel scheduled two proffer sessions with
the government at Joseph’s behest. See id. at 14-15. Both proffer sessions were
terminated by the government because the government believed Joseph was being
untruthful. See id. The government did not indict Joseph after the proffer sessions
because the Assistant United States Attorney assigned to Joseph’s case, Christopher
Mattei (“Attorney Mattei”), was working with defense counsel on a possible plea
agreement. See id. at 16-17. On June 30, 2009, Attorney Mattei provided defense
5
counsel with discovery materials related to Joseph’s case. See Discovery Materials
from AUSA Mattei to Defense Counsel (Gov’t’s Ex. 3) (Doc. No. 112). That set of
materials also contained a copy of the state court Restraining Order to which Joseph
was subject at the time of his arrest in the federal criminal case at issue here. See id.
On July 28, 2009, defense counsel sent Joseph a letter to which he attached a
proposed plea agreement prepared by Attorney Mattei. See Letter from Defense
Counsel to Joseph re Plea Agreement (Gov’t’s Ex. 4A) (Doc. No. 112). The draft plea
agreement indicates that Joseph would be pleading guilty to having violated sections
922(g)(8)(B) and 924(a)(2) of title 18 of the United States Code. See Plea Agreement
Draft July 2009 (Gov’t’s Ex. 4B) (Doc. No. 112). In the letter accompanying the
proposed plea agreement, defense counsel told Joseph that he “believe[d] [the plea
agreement] represents the best deal possible for [Joseph] in this case.” Letter from
Defense Counsel to Joseph re Plea Agreement (Gov’t’s Ex. 4A) (Doc. No. 112). At that
time, defense counsel continued to believe that the government could prove the
violations charged in the criminal Complaint and outlined in the plea agreement. See
Tr. at 21-22 (Doc. No. 111).
In August 2009, defense counsel had a two-hour meeting with Joseph at Wyatt
Detention Facility. See id. at 23. Defense counsel reviewed the proposed plea
agreement with Joseph paragraph by paragraph before informing him that defense
counsel thought Joseph should seriously consider signing this plea agreement, because
defense counsel thought Joseph would be convicted if he chose to go to trial. See id. at
23-24. Joseph told defense counsel he wanted to think about it. See id. at 24.
Several weeks after his meeting with Joseph, defense counsel received
6
additional discovery materials from the government. See id. These materials included
a copy of the transcript of the hearing that resulted in the issuance of the state court
Restraining Order against Joseph. See id.; see also Email from AUSA Mattei (Gov’t’s
Ex. 5) (Doc. No. 112); Additional Discovery Material (Gov’t’s Ex. 6) (Doc. No. 112).
Defense counsel reviewed these materials upon receipt. See Tr. at 25 (Doc. No. 111).
He also reviewed the section of the Connecticut General Statutes, section 46b-15,
pursuant to which the Restraining Order against Joseph was entered. See id. at 27.
Defense counsel provided a copy of the transcript from the state court Restraining
Order hearing to Joseph. See id. at 29-30; see also Copies of Transcripts in State
Court Proceedings (Gov’t’s Ex. 7) (Doc. No. 112).
Defense counsel received a revised plea agreement from Attorney Mattei in
September 2009. See Tr. at 30 (Doc. No. 111); see also Revised Plea Agreement
(Gov’t’s Ex. 8A) (Doc. No. 112). The revised plea agreement indicated that Joseph
would be pleading guilty to violating sections “922(g)(8) and 924(a)(2)” of title 18 of the
United States Code. See Revised Plea Agreement (Gov’t’s Ex. 8A) (Doc. No. 112). In
other words, the revised plea agreement changed the statutory citation for the first
violation with which Joseph was charged from section 922(g)(8)(B) to section 922(g)(8).
The revised plea agreement also recited the elements of section 922(g)(8), which
defense counsel continued to believe were satisfied by the facts of Joseph’s case. See
Tr. at 32 (Doc. No. 111). In particular, defense counsel believed that the fact that a
state court Restraining Order had been issued against Joseph meant that the element
of section 922(g)(8)(C)(i), which requires that a person be subject to a court order that
“includes a finding that such person represents a credible threat to the physical safety of
7
such intimate partner or child,” 18 U.S.C. § 922(g)(8)(C)(i), was met. See Tr. at 32-33
(Doc. No. 111). Defense counsel also believed the government could prove the
alternative element of section 922(g)(8)(C)(ii), which requires that the Restraining Order
“by its terms explicitly prohibit[ ] the use, attempted use, or threated use of physical
force” against the protected person. See Tr. at 33 (Doc. No. 111).
Defense counsel provided a copy of the revised plea agreement to Joseph
shortly after he received it. See id. In a letter attached to the plea agreement, defense
counsel advised Joseph that “[e]ssentially, the agreement is the same” as prior
versions, and that “[t]he only changes are that the government wanted to put more
specific language in the agreement regarding the offense conduct.” See Letter to
Joseph from Defense Counsel (Gov’t’s Ex. 8B) (Doc. No. 112). Defense counsel met
with Joseph again at the end of September, during which meeting defense counsel
again advised Joseph that he believed the elements of the violations the government
charged were satisfied and that, in defense counsel’s opinion, going to trial would be
foolish. See Tr. at 34 (Doc. No. 111). Defense counsel also advised Joseph that he
risked losing a reduction in his offense level for acceptance of responsibility if he elected
to go to trial instead of signing the plea agreement. See id. at 35.
After several months passed in which Joseph did not commit to pleading guilty by
signing the revised plea agreement, the government proceeded with an Indictment.
See Indictment (Gov’t’s Ex. 11) (Doc. No. 112). A federal grand jury charged Joseph
with violating sections 922(g)(8) and 924(a)(2), but the specific language of the
Indictment tracks the elements of sections 922(g)(8)(A), (B), and (C)(i). See id.; see
also Tr. at 40 (Doc. No. 111). Defense counsel reviewed the Indictment with Joseph
8
prior to his arraignment, and again informed Joseph that he believed the government
had enough evidence to convict Joseph of the violations charged. See Tr. at 41 (Doc.
No. 111). Shortly after the arraignment, Joseph called defense counsel and informed
him that he wanted to plead guilty. See id. at 42. Joseph pled guilty on December 22,
2009. See 12/22/09 Plea Agreement (Gov’t’s Ex. 12) (Doc. No. 112); see also United
States v. Joseph, No. 3:09-cr-00252 (JCH), Plea Agreement (Doc. No. 36).
Although defense counsel repeatedly advised Joseph that the government could
prove the violations with which Joseph was charged, defense counsel did not research
the elements of a violation of section 922(g)(8) beyond reading the text of that statute
and the text of the state restraining order statute, section 46b-15 of the Connecticut
General Statutes. See Tr. at 46-47, 55-56, 82 (Doc. No. 111). It never occurred to
defense counsel that the circumstances under which the state Restraining Order was
entered against Joseph—namely with Joseph’s complete agreement and without the
issuing court making findings of fact—could give rise to an argument about whether the
state Restraining Order was sufficient to satisfy the element of section 922(g)(8)(C)(i) of
title 18 of the United States Code. See id. at 64. At no point during his review of the
multiple plea agreements and Indictment did defense counsel look for and read cases
about section 922(g)(8), let alone cases that address the question of whether the
element of section 922(g)(8)(C)(i) could be satisfied by an implied finding; defense
counsel simply assumed that the issuance of the state court Restraining Order against
Joseph constituted an implied finding that Joseph was a threat to the mother of his
child, and he further assumed that an implied finding was sufficient for purposes of
section 922(g)(8)(C)(i). See id. at 64-75. Defense counsel’s repeated advice to
9
Joseph—that he should take the plea agreement because the government had
sufficient evidence to convict him—was predicated on these assumptions. See id.
Because defense counsel made the aforementioned assumptions about the
Restraining Order to which Joseph was subject satisfying the elements of a violation of
section 922(g)(8), he never discussed the possibility that the element of section
922(g)(8)(C)(i) might not be met in Joseph’s case—or even the possibility that an
argument to that effect could be made—with Joseph. Had defense counsel told Joseph
that there was a possible defense based on an argument that the facts of Joseph’s case
didn’t meet the element of section 922(g)(8)(C)(i), and that Joseph was therefore
factually innocent of the crime for which he had been indicted, Joseph would not have
pled guilty and would have proceeded to trial. In other words, Joseph would have
willingly risked the possibility of receiving a sentence longer than the one contemplated
by the plea agreement if the argument about section 922(g)(8)(C)(i) had failed and he
had been convicted after a trial in exchange for a chance, however slight, that he could
be acquitted. Joseph’s willingness to take this risk would have been informed, in part,
by the fact that he is not a U.S. citizen, which means that his conviction in this case
exposes him to possible deportation upon completion of his sentence.
III.
LEGAL STANDARDS
A.
Section 2255 Petition
“Because 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), abrogated on
10
other grounds by Mickens v. Taylor, 535 U.S. 162 (2002). Furthermore, “the concern
with finality served by the limitation on collateral attack has special force with respect to
convictions based on guilty pleas.” United States v. Timmreck, 441 U.S. 780, 784
(1979). “[C]ollateral attack on a final judgment in a criminal case is generally available
under [section] 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, 589-90 (2d Cir. 1996) (internal quotations and citation omitted).
In a section 2255 motion, the burden is on the petitioner to prove, by a
preponderance of the evidence, that he is entitled to relief. See Napoli v. United States,
45 F.3d 680, 683 (2d Cir. 1995). In deciding a section 2255 motion, the court must hold
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, a petitioner is
not automatically entitled to a hearing. See Gonzalez v. United States, 722 F.3d 118,
130 (2d Cir. 2013). “To warrant a hearing, the motion must set forth specific facts
supported by competent evidence, raising detailed and controverted issues of fact that,
if proved at a hearing, would entitle [the petitioner] to relief.” Id. at 131. The threshold
evaluation in determining the necessity for a hearing is whether the petitioner’s claim is
“plausible,” not whether that claim “will necessarily succeed.” Puglisi v. United States,
586 F.3d 209, 213 (2d Cir. 2009) (internal citations and quotation marks omitted).
B.
Ineffective Assistance of Counsel
Ineffective assistance of counsel is “[o]ne claim that may appropriately be raised
for the first time in a [section] 2255 motion, ‘whether or not the petitioner could have
11
raised the claim on direct appeal.’” Harrington v. United States, 689 F.3d 124, 129 (2d
Cir. 2012) (quoting Massaro v. United States, 538 U.S. 500, 504, 509 (2003)). A
petitioner claiming ineffective assistance of counsel “must show that (1) counsel’s
performance was objectively deficient, and (2) petitioner was actually prejudiced as a
result.” Id. (citing Strickland v. Washington, 466 U.S. 668, 687-88, 692-93 (1984)). This
two-part test applies both to cases in which the petitioner was convicted after trial and to
cases in which the petitioner pled guilty. See Hill v. Lockhart, 474 U.S. 52, 58 (1985)
(“We hold, therefore, that the two-part Strickland v. Washington test applies to
challenges to guilty pleas based on ineffective assistance of counsel.”).
The burden of showing ineffective assistance is “a heavy one because, at the
first step of analysis, [a court] must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Harrington, 689 F.3d
at 129 (internal quotations and citation omitted). “The determinative question at this
step is not whether counsel ‘deviated from best practices or most common custom,’ but
whether his ‘representation amounted to incompetence under prevailing professional
norms.’” Id. at 129-30 (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)). The
standard for evaluating the adequacy of counsel’s representation is “a most deferential
one,” Harrington, 562 U.S. at 105, because “counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment,” United States v. Thomas, 608 F. App’x 36, 38 (2d
Cir. 2015) (Summary Order) (quoting Strickland, 466 U.S. at 690).
To show the requisite prejudice at the second step, a petitioner must show “a
reasonable probability that his reliance on counsel’s ineffective assistance affected the
12
outcome of the proceedings.” Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003).
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. In the context of guilty pleas, the specific inquiry
is “whether counsel’s constitutionally ineffective performance affected the outcome of
the plea process.” Hill, 474 U.S. at 59. “In other words, in order to satisfy the ‘prejudice’
requirement, the defendant must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to
trial.” Id.
IV.
DISCUSSION
Although Joseph raises multiple grounds for relief in his Amended Motion, the
bulk of Joseph’s claims3 depend on the resolution of one question: was it reasonable
for defense counsel to assume that the issuance of a state court Restraining Order
against Joseph constituted an implied finding that Joseph was a threat to the protected
party, and further to assume that an implied finding of this kind was sufficient to meet
the element of section 922(g)(8)(C)(i)? For the sake of clarity and precision, the court
will approach this question in two parts. First, the court will analyze section 922(g)(8)
with an eye to assessing, from an objective perspective, whether an implied finding is
sufficient to meet the element of section 922(g)(8)(C)(i). The court will use the
conclusions drawn from this analysis to inform the discussion of the second, and more
important, question, i.e., whether it was professionally reasonable for defense counsel
3 Joseph has also alleged that relief pursuant to section 2255 is warranted because defense
counsel was ineffective in “fail[ing] to investigate or call material witnesses to the sentencing proceeding.”
Am. Mot. for Relief at 2 (Doc. No. 66). The question of whether the actions of Joseph’s counsel with
respect to the sentencing proceeding constituted ineffective assistance is distinct from the other grounds
for relief raised in Joseph’s Amended Motion, and the court will address this argument separately. See
infra part IV.B.1.
13
to answer this question as he did in 2009. Because the court concludes that defense
counsel’s actions were objectively unreasonable, the court must then turn to an
assessment of whether Joseph was prejudiced by defense counsel’s ineffective
assistance. For the reasons that follow, the court ultimately concludes that Joseph was
prejudiced and thus is entitled to the relief he seeks.
A.
Sufficiency of the State Court Restraining Order
Joseph was indicted for a violation of section 922(g)(8) of title 18 of the United
States Code, which bars firearm possession by anyone “who is subject to a court order
that”:
(A) was issued after a hearing of which such person received actual
notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an
intimate partner of such person or child of such intimate partner or person,
or engaging in other conduct that would place an intimate partner in
reasonable fear of bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible threat to
the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened
use of physical force against such intimate partner or child that would
reasonably be expected to cause bodily injury . . . .
18 U.S.C. §§ 922(g)(8)(A)-(C). Subsections (A), (B), and (C) of section 922(g)(8) are
conjunctive, meaning they must all be satisfied for an individual to be guilty of unlawful
possession of a firearm while subject to a restraining order. See United States v.
Sanchez, 639 F.3d 1201, 1204 (9th Cir. 2011). However, sections (C)(i) and (C)(ii) are
disjunctive, meaning that the satisfaction of either clause is sufficient for prosecution
under section 922(g)(8).
14
The Indictment in Joseph’s case generally stated that his actions were “in
violation of Title 18, United States Code §§ 922(g)(8) and 924(a)(2),” see Indictment at
1 (Gov’t’s Ex. 11) (Doc. No. 112), but the text of the Indictment specifically alleges that
Joseph possessed a firearm while he was “subject to a court order issued . . . after a
hearing of which he received actual notice, and at which he had an opportunity to
participate, restraining him from harassing, stalking, or threatening an intimate partner,
that included a finding that the defendant was a credible threat to the physical safety” of
the mother of his child, see id. In other words, the grand jury specifically found that
Joseph had violated section 922(g)(8) because his actions satisfied the elements of
subsections (A), (B), and (C)(i). See id. Notably, the Indictment did not allege that the
alternative basis of liability provided by section 922(g)(8)(C)(ii) was satisfied by Joseph’s
actions. See id.
The Indictment’s failure to charge that Joseph’s actions satisfied the alternative
element of section 922(g)(8)(C)(ii) is important, because “an indictment must set forth
each element of the crime that it charges.” United States v. Resendiz-Ponce, 549 U.S.
102, 107 (2007) (internal quotations, alterations, and citation omitted). Furthermore, “[a]
defendant is deprived of his right to be tried only on the charges returned by a grand
jury if the prosecution’s proof or theory constitute a modification at trial of an essential
element of the offense charged.” United States v. Weiss, 752 F.2d 777, 787 (2d Cir.
1985). In Joseph’s case, the “essential elements” of the crime charged in his Indictment
were provided by subsections (A), (B), and (C)(i) of section 922(g)(8). Thus, any
attempt to prove Joseph’s guilt by establishing that his actions satisfied the alternative
element of subsection (C)(ii) of section 922(g)(8) would have constituted an
15
impermissible amendment of Joseph’s Indictment.4 See Stirone v. United States, 361
U.S. 212, 216 (1960) (stating that charges in an indictment “may not be broadened
through amendment except by the grand jury itself”); United States v. Roshko, 969 F.2d
1, 5 (2d Cir. 1992) (noting that “an indictment is constructively amended where the proof
adduced at trial broadens the basis of conviction beyond that charged in the
indictment”) (internal quotations and citation omitted); see also Weiss, 752 F.2d at 787
(“An amendment of the indictment occurs when the charging terms of the indictment are
altered, either literally or in effect, while a variance occurs when the charging terms of
the indictment are left unaltered, but the evidence offered at trial proves facts materially
different from those alleged in the indictment.” (internal quotations, alterations, and
citation omitted)).
Joseph does not contest that the elements of 922(g)(8)(A) and (B) were met in
his case, and instead focuses on the contention that it was not possible that the
essential element of section 922(g)(8)(C)(i) was satisfied. In particular, Joseph argues
4 Joseph’s plea agreement recited both the elements of subsection (C)(i) and (C)(ii) as alternative
bases for liability under section 922(g)(8), see United States v. Joseph, No. 3:09-cr-00252 (JCH), Plea
Agreement at 1-2 (Doc. No. 36) (“The defendant understands that to be guilty of the offense charged in
Count One, the following essential elements must be satisfied . . . That [the state court restraining order]
included a finding that the defendant represented a credible threat to the physical safety of such intimate
partner or child; or by its terms explicitly prohibited the use, attempted use, or threatened use of physical
force against such intimate partner or child that would reasonably be expected to cause bodily injury . . .
.”), although the Stipulation of Offense Conduct appended to Joseph’s plea agreement only alleged
conduct that would satisfy the element of (C)(i), see id. at 10. Similarly, at Joseph’s Change of Plea
Hearing, the government recited both (C)(i) and (C)(ii) as alternative elements that could support a
conviction under section 922(g)(8), see Plea Hr’g Tr. at 18, 33 (Doc. No. 77), but when asked what
evidence the government would adduce to establish Joseph’s guilt under section 922(g)(8), the
government only recited facts related to section 922(g)(8)(C)(i), see id. at 35-36.
In sum, although the government recited the alternative elements of (C)(i) and (C)(ii) in the plea
agreement and again at the Change of Plea Hearing, it is not clear that this recitation was actually an
impermissible attempt to amend Joseph’s Indictment, because the specific facts offered by the
government in support of Joseph’s plea relate exclusively to the satisfaction of section 922(g)(8)(C)(i),
which is the element set forth in the Indictment. For purposes of this Ruling, therefore, the court assumes
that Joseph’s plea was based on the fact that his conduct purportedly violated section 922(g)(8) because
the elements of subsections (A), (B), and (C)(i) were satisfied by the facts in his case.
16
that the state court Restraining Order that formed the basis for his prosecution under
section 922(g)(8) contained “no ‘findings’ at all, much less a finding of a credible threat
to anyone’s physical safety.” Pet’r’s Initial Mem. of Law in Support of Request for
Summ. Relief under §2255, or, in the Alternative, for an Evidentiary Hr’g (“Pet’r’s Initial
Mem. of Law”) at 17 (Doc. No. 67). In response, the government argues that, although
the state court Restraining Order may not have contained an explicit finding of the kind
described in section 922(g)(8)(C)(i), the fact that the state Restraining Order issued
involved an implied and necessary finding that Joseph represented a credible threat to
the physical safety of the mother of his child. Gov’t’s Opp. at 29 (Doc. No. 75). For the
reasons that follow, the court agrees with Joseph.
The state court Restraining Order entered against Joseph in 2009 was issued
pursuant to section 46b-15 of the General Statutes of Connecticut (“C.G.S.A.”). At that
time,5 section 46b-15(a) provided that, “[a]ny family or household member . . . who has
been subjected to a continuous threat of present physical pain or physical injury . . .
may make an application to the Superior Court for relief under this section.” The next
section, 46b-15(b), provided that such an application “shall be accompanied by an
affidavit made under oath which includes a brief statement of the conditions from which
relief is sought,” and states that, when considering such an application, “[t]he court, in
its discretion, may make such orders as it deems appropriate for the protection of the
applicant and such dependent children or other persons as the court sees fit.” Although
the statute requires the court to order a hearing once it is in receipt of an application for
relief under section 46b-15, nothing in the statute requires the court to hold a contested
5
Section 46b-15 has since been amended and expanded.
17
evidentiary hearing or to make explicit findings of fact prior to entering orders pursuant
to the statute. See id. The Connecticut Supreme Court has also never held that the
issuance of protective orders pursuant to section 46b-15 requires the issuing court to
hold a formal evidentiary hearing or to make findings of fact on the record.6
Although the language of section 46b-15 does not require an issuing court to
make formal findings related to the issuance of a Restraining Order, it is certainly within
the power of the issuing court to make relevant findings prior to the entry of such an
Order. However, no such findings were made in Joseph’s case. Neither the text of the
Restraining Order itself nor the state court’s statements on the record at the hearing can
plausibly be read to contain a finding that Joseph posed a credible threat to the physical
safety of the mother of his child. See Restraining Order After Hr’g (Doc. No. 67-5);
Restraining Order Hr’g Tr. (Doc. No. 67-3). Thus, for the court to conclude that the
Restraining Order entered against Joseph contained a finding that Joseph was a
credible threat to the physical safety of the mother of his child as required by section
922(g)(8)(C)(i), the court would have to agree with the government that the entry of the
Restraining Order necessarily means that the issuing court made an implied finding that
Joseph’s behavior constituted “a continuous threat of present physical pain or physical
injury” to his victim. C.G.S.A. § 46b-15(a). However, after careful consideration of the
6
The Connecticut Supreme Court has stated that a protective order pursuant to section 46b-15
“will not issue in the absence of the showing of a threat of violence, specifically a ‘continuous threat of
present physical pain or physical injury’ to the applicant.” Putnam v. Kennedy, 279 Conn. 162, 171
(2006) (citation omitted). However, a showing is not the same thing as a finding. A showing relates to
what the applicant must allege and could be satisfied by the affidavit that is required by the statute. See
C.G.S.A. § 46b-15(b) (noting that “[t]he application shall be accompanied by an affidavit made under
oath”). In contrast, a finding is a determination made by a factfinder. As noted above, Connecticut law
does not appear to require that the issuing court make formal findings prior to the entry of an order
pursuant to section 46b-15. At most, it requires only that the court find that such a showing has been
made.
18
plain language definition of “finding,” the structure of section 922(g)(8), and precedents
from other Circuits, the court is persuaded that a “finding”—for purposes of section
922(g)(8)(C)(i)—must be explicit.
Black’s Law Dictionary defines a “finding of fact” as “[a] determination by a judge,
jury, or administrative agency of a fact supported by the evidence in the record.”
Finding of Fact, Black’s Law Dictionary (10th ed. 2014).7 The key term within that
definition—“determination”—is itself defined as “[t]he act of deciding something officially;
[especially] a final decision by a court or administrative agency.” Determination, Black’s
Law Dictionary (10th ed. 2014).8 These definitions suggest that the plain language
meaning of “finding” in the legal context generally refers to something that is stated and
explicit, as opposed to something that is implied and unstated.
In addition to following logically from the plain meaning of the term “finding,”
concluding that the “finding” required to satisfy the element of section 922(g)(8)(C)(i)
needs to be explicit is also consistent with the nature of the statute itself. The
requirement that a section 922(g)(8)(C)(i) finding be explicit allows a court overseeing a
prosecution pursuant to section 922(g)(8) to make sure that the essential elements of
that crime are satisfied by the facts of a given case. As Joseph notes, “not every
restraining order or protective order will support a prosecution under [section]
922(g)(8).” Pet’r’s Initial Mem. of Law at 15 (Doc. No. 67). The plain text of the statute
makes clear that, for the essential element of section 922(g)(8)(C)(i) to be met, the state
7 This definition is exactly the same in the Ninth Edition of Black’s Law Dictionary, published in
2009. Finding of Fact, Black’s Law Dictionary (9th ed. 2009).
In the 2009 version of Black’s Law Dictionary, “determination” is similarly defined as “[a] final
decision by a court or administrative agency.” Determination, Black’s Law Dictionary (9th ed. 2009).
8
19
court Restraining Order must contain a finding “that [the defendant] represents a
credible threat to the physical safety” of the person who holds the Restraining Order. 18
U.S.C. § 922(g)(8)(C)(i) (emphasis added). If the state court finding that satisfies
section 922(g)(8)(C)(i) need not be explicit, it becomes challenging for the court
overseeing a section 922(g)(8) prosecution to ensure that the relevant finding was both
that the threat posed by the defendant was credible, and that the threat was to the
physical safety of the protected person. Because section 922(g)(8)(C)(i) is an essential
element of a crime, the uncertainty introduced by allowing the finding for purposes of
section 922(g)(8)(C)(i) to be implicit is a problem with potentially constitutional
dimensions.9
Finally, requiring that the finding for purposes of section 922(g)(8)(C)(i) be explicit
is consistent with the decisions of other courts that have considered this question.
Although the Second Circuit has not addressed this issue, the Fourth, Fifth, Ninth, and
Eleventh Circuits have, although often in dicta. Of those, the Fifth, Ninth, and Eleventh
Circuits have stated that satisfaction of the element of section 922(g)(8)(C)(i) requires
an explicit finding in the state court Restraining Order. See Sanchez, 639 F.3d at 1206
(“If an individual’s threat could be presumed from the terms of the order, then there
would be no need for (8)(C)(i), which is satisfied only by an express finding that an
individual represents a credible threat.”); United States v. DuBose, 598 F.3d 726, 730
(11th Cir. 2010) (noting that the restraining order in that case “does not make any
9 It is perhaps because of this problem that the Criminal Resource Manual for United States
Attorneys notes that, for purposes of prosecution pursuant to section 922(g)(8)(C)(i), the state court
restraining order “must include a specific finding that the defendant represents a credible threat to the
physical safety of the victim.” U.S. Attorneys’ Manual, Criminal Resource Manual at 1116 (Doc. No. 82-1)
(emphasis added).
20
finding that DuBose represents a credible threat to the physical safety of his wife or her
daughters, as required by section 922(g)(8)(C)(i)” and that, as a result, “in order for
DuBose’s conviction under 922(g)(8) to be valid, the [restraining] order must comply
with 922(g)(8)(C)(ii)”); United States v. Emerson, 270 F.3d 203, 213-14 (5th Cir. 2001)
(noting that criminal liability pursuant to section 922(g)(8) can be established if either
(C)(i) or (C)(ii) are proven, and stating that (C)(i) requires “an express judicial finding of
future dangerousness”).10 Only the Fourth Circuit has suggested that an implied finding
might be sufficient for purposes of section 922(g)(8)(C)(i), on grounds that are similar to
the government’s argument in its briefing related to this Motion. See United States v.
Mahin, 668 F.3d 119, 126 (4th Cir. 2012). For the reasons outlined at length above, the
court finds the view of the section 922(g)(8)(C)(i) requirement expressed by the Fifth,
Ninth, and Eleventh Circuits to be more persuasive.
Having concluded that satisfaction of the element of section 922(g)(8)(C)(i)
requires the state court that issued a Restraining Order to have made an explicit finding
that the defendant is a credible threat to the physical safety of the protected party, and
having further determined that there was no such finding in Joseph’s case, the court will
now turn to the question of whether the fact that an essential element of the crime with
which Joseph was charged was not, and could not have been, established entitles
Joseph to relief under section 2255.
B.
Joseph’s Entitlement to Relief under Section 2255
Joseph alleges that he is entitled to relief under section 2255 both because
10
Although most of the cases discussed in this paragraph were decided after 2009, it is worth
noting that Emerson was decided long before 2009. See Emerson, 270 F.3d 203 (decided Oct. 16,
2001).
21
defense counsel provided ineffective assistance of counsel and because the court failed
to ensure that Joseph’s plea was knowing and voluntary and that the elements of the
charged offense were met prior to the entry of Joseph’s plea. See Am. Mot. for Relief at
1-2 (Doc. No. 66). Joseph also argues that, because the essential element of section
922(g)(8)(C)(i) could not have been met by the facts of his case, he is actually innocent
of the crime to which he pled guilty. See id. at 1. Because the court concludes that
Joseph is entitled to relief on the grounds that defense counsel provided ineffective
assistance, the court need not reach Joseph’s other arguments.
Joseph alleges defense counsel was ineffective in two separate ways: (1) that
defense counsel’s representation was deficient because he failed to complete adequate
research, failed to identify the possible issue with whether the facts of Joseph’s case
satisfied the element of section 922(g)(8)(C)(i), and therefore advised Joseph to plead
guilty without telling Joseph he had a viable defense; and (2) that defense counsel was
ineffective when he failed to investigate and call material witnesses at Joseph’s
sentencing hearing. Am. Mot. for Relief at 1-2 (Doc. No. 66). The court will consider
each of these arguments, but will take up the second argument first.
1.
Defense Counsel’s Failure to Call Witnesses at Sentencing
Joseph’s argument that defense counsel provided constitutionally deficient
assistance when he failed to call various witnesses who would purportedly have
rebutted the testimony offered by a government witness at Joseph’s sentencing does
not entitle Joseph to relief under section 2255. “The decision not to call a particular
witness is typically a question of trial strategy that . . . courts are ill-suited to secondguess.” United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998); see also United
22
States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 1997) (“[T]he tactical decision of whether to
call specific witnesses—even ones that might offer exculpatory evidence—is ordinarily
not viewed as a lapse in professional representation.”). Only rarely will courts in this
Circuit “disturb such ‘strategic’ decisions” as whether to call witnesses, and generally
only under circumstances indicating the lawyer’s decision was “not the sort of
conscious, reasonably informed decision made by an attorney with an eye to benefitting
his client.” Pavel v. Hollins, 261 F.3d 210, 217-18 (2d Cir. 2001). That is not the
situation here.
At Joseph’s original sentencing hearing on June 1, 2010, defense counsel asked
for, and was granted, time to investigate and prepare witnesses who Joseph indicated
would provide testimony that could rebut the testimony of government witness Cornelius
Taylor. See United States v. Joseph, No. 3:09-cr-00252 (JCH), Hr’g Tr. at 7, 10-11, 13,
17 (Doc. No. 82). In an Affidavit submitted in connection with the pending Motion,
defense counsel attests that he spoke to the witnesses identified by Joseph and
determined that “each of these individuals was susceptible to impeachment and likely
would not make a good witness.” Defense Counsel Aff. at 3 (Doc. No. 78-3). Defense
counsel determined that a better course of action would be “submitting the letters from
these individuals but focusing upon a cross-examination of Taylor to undermine Taylor’s
credibility” instead of relying on “the testimony of these reluctant and easily impeachable
witnesses.” Id.
At Joseph’s sentencing hearing on June 24, 2010, defense counsel did in fact
introduce letters from the witnesses identified by Joseph, which were admitted by the
court. Sentencing Hr’g Tr. at 47-48 (letter from Justin Green); 50-51 (letter from
23
Maurice Joyner); 52-53 (letter from Aaron Vaughan); 55 (letter from Willie Sanders)
(Doc. No. 75). Defense counsel’s offering of the letters was part of his extensive crossexamination of Cornelius Taylor, which covered Taylor’s relationship with Joseph,
Taylor’s criminal history, potential bias resulting from Taylor agreeing to testify against
Joseph in the hopes of getting a lesser sentence for himself, possible inconsistencies in
Taylor’s story, and the presentation of evidence (the letters referenced above) that
contradicted Taylor’s testimony. Id. at 24-65. In sum, the record indicates that defense
counsel investigated the witnesses identified by Joseph but ultimately decided to forgo
having those witnesses testify directly, opting instead for a vigorous cross-examination
of the government’s witness.
This conscious, informed, strategic decision did not render defense counsel’s
performance objectively deficient. Cf. Pavel, 261 F.3d at 217-18, 225-26 (finding the
performance of an attorney who failed to call witnesses objectively deficient where the
attorney’s reason for not calling witnesses was that he believed a motion to dismiss
would be granted). Additionally, there is no evidence that Joseph was actually
prejudiced as a result of defense counsel’s failure to call these witnesses. Thus,
Joseph has not carried his burden under either prong of Strickland for showing
ineffective assistance of counsel and is not entitled to relief on this claim.
2.
Defense Counsel’s Failure to Investigate the Sufficiency of the
State Court Restraining Order
Although the court concludes that defense counsel provided effective assistance
in connection with Joseph’s sentencing proceedings, the court reaches a different
conclusion with respect to the effectiveness of defense counsel’s representation during
plea negotiations. As discussed at length above, see supra part IV.A, the essential
24
elements of the crime for which Joseph was indicted were provided by subsections (A),
(B), and (C)(i) of section 922(g)(8). However, the Restraining Order that provided the
basis of Joseph’s prosecution under that statute did not contain a “finding that [Joseph]
represents a credible threat to the physical safety of” the mother of his child, and the
issuing court also failed to make such a finding on the record at the hearing, which
means that the essential element of (C)(i) was not met by the facts of Joseph’s case.
Nonetheless, the court is cognizant of the fact that the ultimate question before the court
is not whether the essential element of (C)(i) was satisfied by the facts of Joseph’s
case, but rather whether defense counsel’s actions related to his investigation of
Joseph’s case and his advice to Joseph that he should plead guilty because he did not
have a viable defense were reasonable when defense counsel undertook them in 2009.
Under Strickland, an attorney’s failure to satisfy the objective standard of
reasonableness means that “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687. Although the court is well aware that “counsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment,” id. at 690, the court concludes that
defense counsel’s actions were not professionally reasonable.
The Supreme Court has recognized that “counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” Id. at 691. In the context of a criminal case, one of the most basic duties
attendant on the defense attorney is to familiarize himself with the elements of the crime
with which his client is charged, and to make sure the government will be able to prove
25
each of those elements. Indeed, the Second Circuit recently noted that “defense
counsel’s failure to research the elements of [a crime with which a particular defendant
was charged] undoubtedly constitutes deficient performance.” Jackson v. Conway, 763
F.3d 115, 155 (2d Cir. 2014) (emphasis added). Thus, defense counsel had a clear
duty to familiarize himself with criminal liability pursuant to section 922(g)(8), and to
investigate whether the facts of Joseph’s case satisfied the elements of subsections (A),
(B), and (C)(i).
Assuming defense counsel completed a “thorough investigation of [the] law and
facts relevant to” Joseph’s case, any subsequent strategic choices made by defense
counsel would be “virtually unchallengeable.” Strickland, 466 U.S. at 690. In other
words, if defense counsel noticed that the state court Restraining Order to which Joseph
was subject did not contain an explicit finding that Joseph was a credible threat to the
physical safety of the mother of his child (and that the issuing court did not make such a
finding on the record at the hearing) but, following an adequate investigation, decided
that the word “finding” in the context of section 922(g)(8)(C)(i) could include an implied
finding, the court might not conclude that defense counsel’s actions were
constitutionally deficient. However, defense counsel did not conduct an adequate
investigation. In fact, defense counsel conducted no research at all beyond reading the
plain texts of the relevant federal and state statutes.11 Defense counsel’s failure
11
In his testimony at the first evidentiary hearing related to the pending Petition, defense counsel
was remarkably—and admirably—consistent on this point. See Tr. (Doc. No. 111). At the second
evidentiary hearing, counsel for the government advised the court that defense counsel has been
consistent in his admission that he conducted no research beyond the plain texts of the relevant statutes
since his very first conversations with the government on this matter. Based on its observations at the
hearings, the court finds defense counsel to be forthcoming and credible, and therefore credits his
testimony that he conducted no research (and in particular, no caselaw research) on the question of
whether the elements of section 922(g)(8) were satisfied by the facts of Joseph’s case.
26
thoroughly to investigate the law relevant to Joseph’s case and, in particular, the fact
that he failed to research the elements of a violation under section 922(g)(8), makes his
performance as Joseph’s lawyer objectively deficient. See Strickland, 466 U.S. at 691;
Jackson, 763 F.3d at 155 (stating that “defense counsel’s failure to research the
elements of first-degree sodomy under New York law undoubtedly constitutes deficient
performance”); Greiner v. Wells, 417 F.3d 305, 325 (2d Cir. 2005) (noting that “where a
habeas petitioner establishes that counsel’s choices were not the result of a conscious,
reasonably informed decision made by an attorney with an eye to benefitting his client,
courts may question such choices” (internal quotations and citation omitted)); see also
Kimmelman v. Morrison, 477 U.S. 365, 386-87 (1986) (finding ineffective assistance of
counsel where counsel failed to conduct pretrial investigation); DeLuca v. Lord, 77 F.3d
578, 587 (2d Cir. 1996) (finding counsel ineffective in case where counsel abandoned a
crucial and available defense “prematurely, for inadequate reasons, and without ever
giving it serious consideration”).
Several additional facts buttress the court’s conclusion that defense counsel’s
failure to research the elements of section 922(g)(8) constituted constitutionally
ineffective assistance of counsel.12 First, Joseph’s case was the first case involving
section 922(g)(8) that defense counsel had ever handled. In other words, this case
12
The court notes that some of the points raised in the following paragraphs were articulated by
criminal defense expert Sarah Russell (“Attorney Russell”) at the second evidentiary hearing held in this
case. The court found Attorney Russell’s testimony to be both helpful and credible. However, given the
legal nature of Attorney Russell’s testimony, many of the conclusions she reached are ones the court is
capable of reaching, and does reach, on the basis of the court’s independent research and analysis.
Thus, the court credits and relies on Attorney Russell’s testimony regarding the standard of care for a
reasonable defense attorney working in Connecticut in 2009, but the court does not rely on any part of
Attorney Russell’s testimony that arguably concerns the legal conclusions reserved for the court in this
case, e.g., whether Joseph’s defense counsel was, in fact, ineffective.
27
does not present a situation in which defense counsel was representing a person
accused of a crime with which defense counsel had extensive experience, such as a
federal drug crime. Because defense counsel had no experience with section 922(g)(8)
on which to draw, his failure to conduct basic research on the elements of section
922(g)(8) is even less understandable.
Second, there were red flags throughout the charging and plea documents given
to defense counsel by the government that should have prompted him to conduct
further investigation into the elements of the specific crimes with which Joseph was
charged. Most notably, both the criminal Complaint and the first plea agreement
charged Joseph with violating section 922(g)(8)(B),13 which is only one of the three
essential elements of a section 922(g)(8) violation and is not a standalone basis for
criminal liability. See Criminal Compl. (Gov’t’s Ex. 1A) (Doc. No. 112); Plea Agreement
Draft July 2009 (Gov’t’s Ex. 4B) (Doc. No. 112). Despite this strange defect, defense
counsel—without conducting further investigation or discussing the matter with
Joseph—advised Joseph to take the plea, telling him that the plea “represents the best
deal possible for you in this case.” Letter from Defense Counsel to Joseph re Plea
Agreement (Gov’t’s Ex. 4A) (Doc. No. 112).
Third, defense counsel’s failure to conduct even basic caselaw research means
that his representation does not meet the standards set by the American Bar
Association for criminal defense attorneys in effect in 2009, which provide that “[a]fter
13 Between the criminal Complaint and the first plea agreement, the government also dropped
one of the initial charges—that Joseph had violated section 922(g)(9)—apparently without explanation.
See Criminal Compl. (Gov’t’s Ex. 1A) (Doc. No. 112) (charging a violation of section 922(g)(9)); Plea
Agreement Draft July 2009 (Gov’t’s Ex. 4B) (Doc. No. 112) (omitting section 922(g)(9) charge); Tr. at 59
(Doc. No. 111) (testimony by defense counsel that he never discussed whether the government could
prove a violation of section 922(g)(9) with Attorney Mattei).
28
informing himself or herself fully on the facts and the law, defense counsel should
advise the accused with complete candor concerning all aspects of the case.” ABA
Standards for Defense Function 4-5.1(a) (3d ed. 1993) (emphasis added). As the
Supreme Court has long recognized, “prevailing norms of practice as reflected in
American Bar Association standards and the like are guides to determining what is
reasonable.” Padilla v. Kentucky, 559 U.S. 356, 366 (2010) (internal quotations,
alterations, and citations omitted); see also Strickland, 466 U.S. at 688 (“Prevailing
norms of practice as reflected in American Bar Association standards . . . are guides to
determining what is reasonable, but they are only guides.”). Furthermore, Attorney
Russell testified that a reasonably competent defense attorney working in Connecticut
in 2009 would have adhered to this standard, which testimony the court credits and
accepts. Thus, defense counsel’s failure to conduct his representation in accordance
with the ABA’s standards, in particular by failing to “inform[ ] himself . . . fully on . . . the
law” related to Joseph’s case, ABA Standards for Defense Function 4-5.1(a) (3d ed.
1993), provides further support for the conclusion that his representation was
constitutionally deficient.
Finally, if in 2009 defense counsel had conducted a “thorough investigation of
law and facts relevant to plausible options,” Strickland, 466 U.S. at 690, he could have
uncovered caselaw that suggested that a finding for purposes of section 922(g)(8)(C)(i)
must be specifically set forth in the state Restraining Order. At the Circuit level,14 the
14 There are also several district court decisions issued pre-2009 that could clue an attorney into
the possibility that a finding for purposes of satisfying section 922(g)(8)(C)(i) must be explicit, including at
least one in the Second Circuit. See United States v. Erwin, No. 1:07-CR-556 (LEK), 2008 WL 4534058
at *2 (N.D.N.Y. Oct. 6, 2008) (noting that for purposes of section 922(g)(8)(C)(i), “the court order must
make a specific finding of ‘a credible threat to the physical safety’ of an intimate partner or child”
(emphasis added)).
29
most notable pre-2009 cases are from the Fifth Circuit. For example, in Emerson,
which was decided in 2001, the Fifth Circuit characterized subsection (C)(i) as requiring
“an express judicial finding of future dangerousness.” 270 F.3d at 214. Building on that
decision a year later, in United States v. Spruill, the Fifth Circuit explained that possible
Second Amendment concerns regarding section 922(g)(8) “were not controlling” in
situations where “the state law and procedures were such that the [restraining] order
should not issue unless the issuing court actually concluded that absent the order there
was a realistic threat of imminent physical injury to the protected party.” United States
v. Spruill, 292 F.3d 207, 217 (5th Cir. 2002) (emphasis added). Importantly, in Spruill
the Fifth Circuit quoted at length from a Second Circuit case in which the court noted
that, “[w]ith a true ‘consent judgment’ all of the relief to be provided by the judgment and
all of the wording to effectuate that relief is agreed to by the parties. The court makes
no determination of the merits of the controversy or of the relief to be awarded.” Id.
(quoting Janus Films, Inc. v. Miller, 801 F.2d 578, 582 (2d Cir. 1986)). Had defense
counsel read these cases, he could have realized that there was a possible argument to
be made with respect to the sufficiency of the government’s evidence related to section
922(g)(8)(C)(i), because (1) Joseph consented to the Restraining Order that was
entered against him, meaning that arguably the judge had made “no determination of
the merits of the controversy,” Janus Films, Inc., 801 F.2d at 582, i.e., no explicit
findings related to the threat Joseph posed to the protected party, and (2) implied
findings are arguably not sufficient for purposes of section 922(g)(8)(C)(i), see, e.g.,
Emerson, 270 F.3d at 214. Because defense counsel did not conduct caselaw
research, however, he did not find these cases, and he therefore missed this possible
30
defense. More importantly, defense counsel’s failure to uncover this possible defense
meant that he repeatedly, and erroneously, advised Joseph that there were no defenses
available to him, that the government could easily prove the elements of a section
922(g)(8) violation at trial, and that Joseph should take the plea agreement offered by
the government.
For all of the foregoing reasons, the court concludes that Joseph has proven, by
a preponderance of the evidence, that defense counsel’s actions were objectively
unreasonable and his representation constitutionally deficient. Joseph has therefore
carried his burden with respect to Strickland’s first prong.
The second prong of the Strickland test requires a petitioner seeking relief
pursuant to section 2255 to “show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. In the context of a guilty plea, the petitioner
must specifically show that “there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill,
474 U.S. at 59.
The court concludes that Joseph has also met his burden of establishing that he
was prejudiced by defense counsel’s ineffective assistance. At the second evidentiary
hearing in this case, Joseph testified at length about his memory of defense counsel’s
representation and advice, as well as the choices he would have made if defense
counsel had advised him that there was a possible defense related to the fact that the
element of section 922(g)(8)(C)(i) was arguably not met by the facts of his case. See
31
Exhibit-Witness List at 2 (Doc. No. 112) (noting that Rory Joseph testified on 5/18/16).
Joseph’s testimony was generally consistent both with defense counsel’s testimony
about what transpired in the months leading up to Joseph’s decision to plead guilty in
2009 and with Joseph’s prior Declaration submitted in conjunction with this Petition.
See Decl. of Rory Joseph (Doc. No. 94). Based on its observations at the hearing, the
court found Joseph’s testimony on the issues related to this case to be credible, and
therefore credits Joseph’s repeated assertion that he would have rejected the plea and
proceeded to trial if defense counsel had advised him there was any possibility of a
viable defense. Furthermore, the court concludes that it would have been rational for
Joseph to reject the government’s plea offer under the circumstances. See Padilla, 559
U.S. at 372 (“Moreover, to obtain relief on this type of claim, a petitioner must convince
the court that a decision to reject the plea bargain would have been rational under the
circumstances.”).
As a defense strategy, rejecting the plea offer and proceeding to empanel a jury
so as to attach jeopardy to the charge against Joseph before raising the problems with
the Indictment would not have been without risk. Joseph and defense counsel could not
have been certain that the court would agree that a finding for purposes of section
922(g)(8)(C)(i) must be explicit.15 Furthermore, there is a possibility that the
government would have noticed the defect in the Indictment and sought to remedy it
before jeopardy attached. Weighing against the significance of these risks, however, is
15 Notwithstanding the fact that Joseph and defense counsel could not have known in advance
whether this defense would be successful, the court reiterates the conclusion set forth in part IV.A of this
Ruling that this defense would, in fact, have been successful. Thus, Joseph has met his burden of
establishing the portion of Strickland’s prejudice inquiry that depends “on whether the affirmative defense
likely would have succeeded at trial.” Kovacs v. United States, 744 F.3d 44, 53 (2d Cir. 2014) (quoting
Hill, 474 U.S. at 59).
32
the fact that the plea agreement was not particularly beneficial to Joseph. The
government did not dismiss any charges against Joseph in exchange for his plea; the
Indictment against Joseph only contained one Count. See Indictment (Gov’t’s Ex. 11)
(Doc. No. 112). As a result, the primary benefits to Joseph from pleading guilty were (1)
avoiding trial, and (2) getting the government’s commitment to recommend to the court
that Joseph receive a three-point reduction in his Guidelines calculation for acceptance
of responsibility. See Plea Agreement at 3 (Doc. No. 78-2). These benefits are not
insignificant, but they are also not particularly compelling when weighed against the real
possibility that Joseph could be deported after completing his sentence if he chose to
plead guilty. Under these circumstances, it would not have been irrational for Joseph to
conclude that he would be better served by rejecting the plea offer and proceeding to
trial in the hopes that he could get the charge against him dismissed because the
government could not prove the essential element of section 922(g)(8)(C)(i), knowing
that, if convicted, he risked a longer sentence. In this regard, the court notes that the
government has conceded that, had Joseph pursued this strategy and it played out as
he contends it would have, the Double Jeopardy Clause would have barred the
government from reindicting him with the alternative element of section 922(g)(8)(C)(ii).
See Gov’t’s Suppl. Mem. in Opp. at 3 (Doc. No. 92).
In sum, the risks that Joseph would have run by rejecting the plea agreement
stand in counterpoint to the possible advantage Joseph could have gained if pursuing
this strategy had resulted in him wholly avoiding criminal liability pursuant to section
922(g)(8) for the actions that led to his Indictment. A reasonable person facing this
calculus could decide that the best course of action would be to proceed to trial in the
33
hopes that the government would be unable to prove the element of section
922(g)(8)(C)(i). Because the court credits Joseph’s testimony that he would not have
pled guilty if he had understood the potential insufficiency of the state court Restraining
Order for purposes of a prosecution under section 922(g)(8), and because the court
concludes that a rational person facing these circumstances might decide not to plead
guilty, there is a “reasonable probability” that, but for defense counsel’s ineffective
assistance, “the result of the proceeding would have been different.” Strickland, 466
U.S. at 694.
Joseph has carried his burden of establishing both prongs of the Strickland test,
and he is therefore entitled to relief pursuant to section 2255 of title 28 of the United
States Code. Because the court concludes that Joseph is entitled to relief on the
grounds that his counsel during plea negotiations provided ineffective assistance, the
court will not reach the alternative grounds for relief raised by Joseph’s Motion. See
Am. Mot. for Relief at 1-2 (Doc. No. 66).
C.
Relief
When a person who pled guilty to a crime establishes that he is entitled to relief
under section 2255 of title 28 of the United States Code, the appropriate remedy is “an
opportunity to withdraw the plea and proceed to trial.” Padilla, 559 U.S. at 372-73.
Therefore, Joseph is entitled to withdraw his guilty plea, at which point his conviction
and sentence would be vacated and his criminal case would revert to pretrial status.
Joseph shall notify the court within seven (7) days of the date of this Ruling whether he
intends to withdraw his plea of guilty.16
16
The court notes that the parties have, at various points in the proceedings related to this
34
V.
CONCLUSION
For the foregoing reasons, the court GRANTS Joseph’s Amended Motion for
Relief under 28 U.S.C. § 2255 (Doc. No. 66). Joseph’s original Petition for Relief under
28 U.S.C. § 2255 (Doc. No. 1) is TERMINATED AS MOOT.
SO ORDERED.
Dated this 14th day of June, 2016, at New Haven, Connecticut.
_/s/ Janet C. Hall________
Janet C. Hall
United States District Judge
Petition, addressed issues such as whether either the Double Jeopardy Clause or the statute of
limitations would bar reindictment of Joseph pursuant to section 922(g)(8)(C)(ii). See Pet’r’s Suppl. Mem.
of Law at 10-12 (Doc. No. 89); Gov’t’s Suppl. Mem. in Opp. at 5-11 (Doc. No. 92). However, resolution of
these questions is not necessary to the court’s Ruling on Joseph’s pending Petition, and the court
therefore declines to address these issues at this time. In the event proceedings subsequent to this
Ruling result in the government attempting to reindict Joseph, the applicability of the Double Jeopardy
Clause and the running of the statute of limitations would be addressed at that time upon proper motion.
35
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