Glover v. USA
RULING denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255). Signed by Judge Janet C. Hall on 3/6/2014. (Malone, P.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA,
CIVIL ACTION NO.
MARCH 6, 2014
RULING RE: PETITIONER’S MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE (Doc. No. 1)
Petitioner Mauriel Glover (“Glover”) has filed a “Motion to Vacate, Set Aside, or
Correct Sentence, Pursuant to 28 U.S.C. [§] 2255” (“Pet.”) (Doc. No. 1) challenging his
sentence of 252 months imprisonment and 10 years supervised release for his
conviction of Conspiracy to Distribute a Controlled Substance. Glover alleges that the
government failed to comply with title 21, United States Code, section 851(a)(1) by filing
an untimely information and not serving said information upon Glover and his counsel
prior to the entry of his plea agreement.1 Pet. at 10. He also asserts that his appeal
counsel’s failure to raise the allegedly untimely filed information on appeal precluded
him from challenging the substance of the information on the grounds that it failed to
Glover also charges the trial court with abuse of discretion for enhancing his sentence
despite the government’s alleged failure to comply with section 851(a)(1), and the federal
prosecutor who allegedly failed to comply with said statute with prosecutorial misconduct.
“Motion to Vacate, Set Aside, or Correct Sentence, Pursuant to 28 U.S.C. [§] 2255” (“Pet.”)
(Doc. No. 1) at 17-22. In his Reply Memorandum, however, Glover retracts his charge of abuse
of discretion. See Petitioner’s Traverse (Reply) to the Government’s Response in Which
Respondent Request[s] That Petitioner’s Pending Motion Pursuant to Title 28 U.S.C. [§] 2255,
Be Summarily Dismissed (“Pet.’s Reply to Gov’t Response”) (Doc. No. 8) at 12 (“[P]etitioner
voluntarily withdraws [the abuse of discretion claim] from his pending motion . . . .”).
allege a qualifying prior conviction. Id. 18-21. For the reasons below, Glover cannot
prevail on this petition.
It first bears noting that Glover waived his right to collaterally attack his sentence
through section 2255. Glover agreed to waive this right if his sentence did not exceed
293 months, life supervised release, and a $ 4 million fine. Response of the United
States to Order to Show Cause (“Gov’t Reply”) (Doc. No. 5) at Ex. 2, at 4 (Glover Plea
Agreement). His imposed sentence of 252 months and 10 years supervised release
does not exceed this waiver’s parameters. Judgment (Doc. No. 1224).
Second, the record before the court clearly establishes that the information
enhancing Glover’s sentence was filed in compliance with section 851(a)(1).2 Section
851(a)(1) states, in part:
No person who stands convicted of an offense under this part shall be
sentenced to increased punishment by reason of one or more prior
convictions, unless before trial, or before entry of a plea of guilty, the
United States attorney files an information with the court (and serves a
copy of such information on the person or counsel for the person) stating
in writing the previous convictions to be relied upon.
21 U.S.C. § 851(a)(1) (emphasis added). Section 851(a)(1) has recently been
construed by the Eleventh Circuit Court of Appeals to impose a mandatory filing and
service requirement upon the government. U.S. v. Ladson, 643 F.3d 1335, 1343 (11th
Cir. 2011). To comply with section 851(a)(1), the government must, before entry of a
guilty plea, file with the court the information—identifying the prior convictions the
The record also shows that Glover was repeatedly advised, both by his counsel and
the government, of the information’s content and its implications for his sentence prior to the
information’s filing and Glover’s plea colloquy. See Affidavit of H. Gordon Hall (“Hall Aff.”) (Doc.
No. 10) at ¶ 3; Affidavit of Deidre A. Murray (Doc. No. 11) at ¶¶ 9, 11-14.
government will rely upon in seeking a sentence enhancement—and serve a copy of
the information on the defendant. U.S. v. Morales, 560 F.3d 112, 113 (2d Cir. 2009). It
is the government’s strict burden to prove its compliance with section 851(a)(1).
Ladson, 643 F.3d at 1344. The court concludes that the government has met its burden
Pursuant to an Order to Show Cause from the court, the prosecuting attorney in
Glover’s criminal case, H. Gordon Hall, and Glover’s counsel, Deirdre A. Murray,
submitted affidavits recounting when the information was served on Glover. See Order
(Doc. No. 9); Affidavit of H. Gordon Hall (“Hall Aff.”) (Doc. No. 10); Affidavit of Deirdre A.
Murray (“Murray Aff.”) (Doc. No. 11). Attorney Hall states, consistent with the transcript,
that the information was filed in open court at the outset of Glover’s plea colloquy. Hall
Aff. at ¶ 7; Plea Hearing Transcript at 3:5-11, 14:6-9, 45:5-16.3 This is corroborated by
Attorney Murray’s account of the colloquy as well. Murray Aff. at ¶ 12. Attorney Hall
The record plainly demonstrates that the information was filed before Glover entered
his guilty plea, as required by section 851(a)(1). At the beginning of the proceeding, the
following colloquy took place:
[Government Counsel] MR. HALL: I believe your Honor has an information that I
need to file.
THE COURT: It’s an information?
MR. HALL: It’s a notice.
THE COURT: Oh.
MR. HALL: If you wanted it.
THE COURT: All right.
Plea Hearing Transcript at 3:5-11. Later, Attorney Hall states that the government has filed the
MR. HALL: If Mr. Glover is convicted on the charges in Count One, and because
he is - - has a prior narcotics felony on which the Government has filed an
Information . . . .
Id. at 14:6-9 (emphasis added). Only later in the transcript does Glover enter his plea of guilty
to Count One. Id. at 45:5-16; see 21 U.S.C. § 851(a)(1) (“[B]efore entry of a plea of guilty, the
United States Attorney [must] file[ ] an information with the court . . . .”).
and Attorney Murray also state that Glover was given notice of the information, prior to
his plea hearing, through the following: multiple discussions between Glover and both
attorneys of the potential filing of an information and the effect it would have on his
sentence; multiple discussions between Glover and Attorney Murray regarding
questions Glover had about his plea and the information; Attorney Murray’s close review
with Glover, prior to the entry of the plea, of the plea agreement, which stated that a
section 851 information would be filed; and Glover’s receipt of two copies of the
information—one prior to the date of the plea hearing and one on the day of the hearing,
before its commencement. Hall Aff. at ¶¶ 3, 4, 6; Murray Aff. at ¶¶ 9, 11-14. Given that
the information was timely filed and served on Glover, he has no cause to assert that
his appeal counsel was ineffective for failing to raise the information’s timeliness on
Glover filed an untimely response to the affidavits of Attorney Hall and Attorney
Murray on March 3, 2014. Petitioner’s Response to the Sworn Affidavits Submitted by
Mr. Gordon Hall, Assistant United States Attorney, and Ms. Deidre A. Murray, Assistant
Federal Defender (“Pet.’s Reply to Aff.”) (Doc. No. 14); see Order (Doc. No. 13)
(instructing that “[a]ny reply by petitioner [to the affidavits of Attorney Hall and Attorney
Murray] is due no later than February 26, 2014”).
In his response, he appears to argue that Attorney Hall’s testimony that “[a]t the
outset of the proceeding, I noted for the record that I proposed to file the information,
and I handed the information to either U.S.M.J. Fitzsimmons or her courtroom deputy
for filing” is inconsistent with Attorney Hall’s assertion that the information was served to
Attorney Murray in open court. See Pet.’s Reply to Aff. at 1; Hall Aff. at ¶ 7; Gov’t Reply
at 3. Glover, however, neglects to cite Attorney Hall’s statement, within the same
affidavit, that “[i]n the courtroom, prior to the outset of the proceeding, I provided to Ms.
Murray a copy of the information . . . .” Hall Aff. at ¶ 6. While Attorney Hall’s statement
that the information was served in open court on Attorney Murray may be inconsistent
with his later statement that he served the information prior to the commencement of the
court proceeding, this inconsistency is immaterial. Section 851(a)(1) requires only that
the information be served on the defendant and his counsel before the entry of a guilty
plea, and the court has found that the record before it satisfies this requirement.
Glover’s selective quoting of Attorney Murray’s affidavit, wherein she states that
she has “no specific recollection of receiving” the information, does not undermine this
finding. Pet.’s Reply to Aff. at 1. Attorney Murray’s full statement was that she had no
specific recollection of when she first received the information. Murray Aff. at ¶ 10. The
remainder of Attorney Murray’s testimony—including her statements that she is “certain
that Mr. Glover saw the information prior to May 20, 2008,” that “[Glover] would have
seen it immediately prior to entering his guilty plea,” and that Glover’s claim that he was
unaware of an information having been filed “is entirely false”—assures the court that
the information at issue was timely filed and served on Glover in full compliance with
section 851(a)(1). Id. at ¶¶ 12, 13.
Further, the substance of Glover’s challenge to the information, i.e., that the prior
state conviction for possession of narcotics cited in the information would not be
classified under the Controlled Substance Act (“CSA”) as a felony drug offense
qualifying for a sentence enhancement, is legally unsound. Petitioner’s Traverse
(Reply) to the Government’s Response in Which Respondent Request[s] That
Petitioner’s Pending Motion Pursuant to Title 28 U.S.C. [§] 2255, Be Summarily
Dismissed (Doc. No. 8) at 8.
Glover cites Lopez v. Gonzalez, 549 U.S. 47 (2006), for its holding that a state
offense is a felony under the CSA only if it proscribes conduct that would be a felony
under federal law. Id.; Lopez, 549 U.S. at 60. Lopez, however, concerned the
interpretation of the term “aggravated felony” under the Immigration and Nationality
Act—specifically, whether an offense that was a felony under state law, but a
misdemeanor under the CSA, qualified as an aggravated felony. 549 U.S. at 50, 52-53.
Its holding is inapposite to Glover’s sentence,4 the enhancement of which is authorized
by title 21, United States Code, section 841(b)(1)(A). Section 841(b)(1)(A) allows for a
penalty enhancement where the defendant has a prior conviction for a “felony drug
offense,” which is defined as
an offense that is punishable by imprisonment for more than one year
under any law of the United States or of a State or foreign country that
restricts conduct relating to narcotic drugs, marihuana, anabolic steroids,
or depressant or stimulant substances.
21 U.S.C. § 802(44). Glover’s prior conviction was for possession of narcotics, in
violation of Connecticut General Statutes, section 21a-279(a), and was punishable by a
term of imprisonment exceeding one year. Gov’t Reply at 4. As such, it is a felony drug
offense under the CSA and thus qualified his sentence for enhancement.
The other cases Glover appears to believe disqualify his state conviction from a
sentence enhancement are similarly inapposite, as they concern aggravated felonies under the
Immigration and Nationality Act, not sentence enhancement under the CSA. See Pet.’s Reply
to Gov’t Response at 11 (moving the court to take notice of Alsol v. Mukasey, 548 F.3d 207 (2d
Cir. 2008) and Carachuri-Rosendo v. Holder, 560 U.S. 563, 130 S.Ct. 2577 (2010)); Alsol, 548
F.3d at 219 (holding that drug possession conviction is not an aggravated felony for immigration
purposes); Carachuri-Rosendo, 560 U.S. at ___, 130 S.Ct. at 2589 (holding that a defendant
convicted of a possession offense that has not been enhanced based on a prior conviction has
not been convicted of an aggravated felony).
For the aforementioned reasons, Glover’s Motion to Vacate, Set Aside, or
Correct Sentence, Pursuant to 28 U.S.C. [§] 2255 (Doc. No. 1) is DENIED.
Dated at New Haven, Connecticut this 6th day of March, 2014.
__/s/ Janet C. Hall_______
Janet C. Hall
United States District Judge
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