Edwards v. USA

Filing 7

ORDER dismissing in part and denying in part 1 Motion to Vacate/Set Aside/Correct Sentence (2255). Please see attached memorandum. The Clerk of Court is directed to enter a separate judgment and close this file. Signed by Judge Vanessa L. Bryant on 04/04/2016. (Thomas, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
BRANDON EDWARDS,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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CIVIL CASE NUMBER:
3:15-cv-00723 (VLB)
April 4, 2016

MEMORANDUM OF DECISION
Brandon Edwards, pro se and incarcerated, challenges his 2012 guilty-plea
conviction and sentence for unlawful possession of ammunition. In his 28 U.S.C.
§ 2255 motion, Edwards raises claims pertaining to the plea negotiation process,
sentencing, and appeal. He first argues that the Government committed fraud by
introducing, and Edwards’s first attorney erred by permitting, a collateral attack
waiver. Edwards next argues that his second attorney, appointed after the plea
proceedings, was generally uncommunicative and unprepared and failed to argue
that Edwards’s prior state conviction did not constitute a serious drug offense
under the Armed Career Criminal Act (“ACCA”) because the State recited facts
from a police report after Edwards entered his plea and because those facts, even
if confirmed by him, were too vague to ascertain the specific conduct or
controlled substance involved. He finally argues that his second attorney, who
also represented him on appeal, failed to brief Edwards’s preferred objections to
the ACCA enhancement.
these claims.

Edwards requests an evidentiary hearing to resolve

For the following reasons, the Court DISMISSES the claim

pertaining to the plea negotiation process for want of jurisdiction and DENIES the
remaining claims without an evidentiary hearing.
1

FACTUAL AND PROCEDURAL BACKGROUND
A.

Criminal Proceedings
1. Plea Negotiation Process
Edwards was charged with unlawful possession of ammunition by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). ECF No. 3-1
(Indictment). While represented by Attorney Howard Gemeiner (“Attorney One”),
Edwards and the Government entered into a plea agreement in which Edwards:
agree[d] not to appeal or collaterally attack in any proceeding,
including but not limited to a motion under 28 U.S.C. § 2255 and/or
§ 2241, the conviction or sentence imposed by the Court if that
sentence does not exceed 120 months of imprisonment, a term of
supervised release of three years, and a $250,000 fine . . . .
ECF No. 3-6 (Plea Agreement) at 6 (.pdf pagination). Edwards entered his plea
before a magistrate judge, who recommended that the trial court accept
Edwards’s plea as knowingly and voluntarily given. ECF No. 3-13 (Plea Tr.) at 36–
37. The trial court later accepted the plea, imposed a sentence exceeding 120
months’ imprisonment and exceeding three years’ supervised release, and
waived a fine because of Edwards’s inability to pay. ECF Nos. 3-7 (Sentencing
Tr.) at 49:16–20, 50:20–21; 3-15 (Text Order).
2. Sentencing Proceedings
Before Edwards entered into his plea agreement, the Government filed
notice of its intent to seek a sentence enhancement pursuant to the ACCA,
informing Edwards that the mandatory minimum sentence of fifteen years’
imprisonment applied because Edwards had three prior state narcotics
convictions, all in violation of Connecticut General Statutes § 21a-277(a). ECF

2

No. 3-2 (Notice). Edwards later filed a pro se sentencing memorandum objecting
to the ACCA enhancement. D. Conn. 10-cr-232, ECF No. 71 (Pro Se Mem.). He
reasoned that the plea colloquies from his underlying convictions were
insufficient because the factual circumstances merely consisted of the State
reading a police report into the record and Edwards could not have confirmed
those facts because he pleaded guilty before they had been read into the record.
Id. at 5–6.

He also argued that “even were not the case,” those facts were

insufficient to establish the controlled substance involved.

Id. at 7.

Shortly

thereafter, the trial court granted Edwards’s motion for new counsel and
appointed Attorney Jonathan J. Einhorn (“Attorney Two”) to represent Edwards.
D. Conn. 10-cr-232, ECF Nos. 61 (Mot.); 74 (Text Entry); 75 (Order).
In its sentencing memorandum, the Government argued for the ACCA
enhancement. Conn. 10-cr-232, ECF No. 99 (Sentencing Mem.). The Government
provided the change-of-plea transcripts from each of Edwards’s three prior
narcotics convictions because the prior convictions under state law did not
automatically qualify as serious drug offenses under the ACCA. Conn. 10-cr-232,
ECF No. 99-1–99-33 (Exs.). According to the change-of-plea transcript from the
last state conviction (the subject of Edwards’s challenge here), Edwards pleaded
guilty to “possession of narcotics with intent to sell under 21a-277a,” the
prosecutor stated that the police seized “36.3 grams of cocaine” and various
paraphernalia used to distribute narcotics, Edwards confirmed that he did what
the State had accused him of, and the Court then accepted the plea as knowingly
and voluntarily given.

Conn. 10-cr-232, ECF No. 99-3 (Ex. C).

3

In Edwards’s

sentencing memorandum, Attorney Two argued that Edwards’s prior narcotics
convictions could not serve as predicate offenses for three reasons: (1) none of
the plea colloquies established that the state courts made a finding concerning
the specific drugs; (2) none of the plea colloquies established that the state
courts made a finding concerning the quantity of drugs; and (3) the plea colloquy
concerning the last conviction did not indicate the statute of conviction. Conn.
10-cr-232, ECF No. 108 (Sentencing Mem.) at 3–7.
Edwards’s sentencing was scheduled for early September; however, the
Court pushed the date back to late September because Edwards had articulated
concerns about the adequacy of Attorney Two’s representation. Conn. 10-cr-232,
ECF No. 121 (Hr’g Tr.).

When Edwards appeared for sentencing in late

September, the Court granted a short recess so that Edwards could iron out his
disagreements with Attorney Two. ECF No. 3-7 (Sentencing Tr.) at 8:24–9:10.
After the recess, both Edwards and Attorney Two indicated that they were ready
to proceed with sentencing.

Id. at 10:1–5.

During sentencing, Attorney Two

reiterated his arguments from his sentencing memorandum, including his
argument that there was no specific finding concerning the narcotic involved, and
emphasized that the findings from the plea colloquies were generally insufficient,
“as your Honor knows from the Cohens decision.”1 Id. at 14:14–19:21. Edwards

1

The Cohens decision refers to United States v. Cohens, 2008 WL 3824758,
at *5 (D. Conn. Aug. 13, 2008). In that case, the district court ruled that the
defendant’s prior state conviction was not a serious drug offense because the
State read the police report into the record after the defendant pleaded guilty.
Edwards’s claim of ineffective assistance appears to be partially based on
counsel’s failure to raise the arguments from Cohens, i.e., the police report read
into the record at Edwards’s change-of-plea hearing was insufficient because he
4

also interjected, arguing that the plea colloquy from his last state conviction was
insufficient because he only confirmed what was alleged in the police report. Id.
at 20:15–22:2.
applied.

The trial court nonetheless ruled that the ACCA enhancement

Id. at 49:12–15.

Edwards was principally sentenced to 180 months’

imprisonment, to be followed by five years’ supervised release. Id. at 49:16–20.
The trial court did not impose a fine. Id. at 50:20–21.
3. Appeal Proceedings
On appeal, Attorney Two argued that that Edwards’s prior narcotics
convictions could not serve as predicate offenses for the reasons articulated in
his sentencing memorandum and during sentencing. ECF No. 3-8 (Appellant Br.)
at 8–14. Edwards also filed a pro se brief. ECF No. 3-9 (Pro Se Br.) Edwards
argued that the ACCA enhancement did not apply, but his arguments differed
slightly from the arguments that he raised below. Id. at 11–13. He argued that he
confirmed his guilt of the offense, not the underlying facts as alleged in the police
report. Id. at 11–12. He also argued that even if he had confirmed these facts,
they did not identify the specific conduct involved in the underlying offense. Id.
at 12–13.

Edwards separately challenged the denial of his motion for

appointment of new counsel, alleging that Attorney Two was generally not
communicative, was generally unprepared, and had specifically failed to raise
Edwards’s preferred preferred challenges to the ACCA enhancement. Id. at 13–
14. The Second Circuit summarily affirmed the judgment. ECF No. 10 (Summary
Order). It ruled that “[b]ased on the record before it, the [trial] court correctly
could not have confirmed the facts of the police report because he pleaded guilty
before those facts were read into the record.
5

found that each of the three convictions constituted serious drug offenses within
the meaning of Section 924(e).” Id. The Second Circuit further ruled that “the
remainder of Edwards’ arguments, both in his counseled and pro se briefs,” were
meritless. Id.
B.

Section 2255 Proceedings
Pursuant to Section 2255, Edwards now challenges his federal conviction

and sentence. ECF No. 1 (§ 2255 Mot.). His claims for relief relate to the plea
negotiation process, sentencing, and appeal, and he moves for an evidentiary
hearing on each of them.2

Id.

With respect to the plea negotiation process,

Edwards argues that “fraud was committed by the government[,] and
unconstitutionally ineffective assistance of defense counsel rendered[,] when
Edwards was advised to sign the offered plea agreement containing a collateral
attack waiver.” Id. at 6–8. He reasons that the collateral attack waiver created an
inherent conflict of interest: a criminal defendant has an interest in preserving his
post-conviction challenges and his attorney has an interest in having his client
waive such challenges because they relate to that attorney’s past and future
performance.

Id.

He further reasons that the Government commits fraud by

inducing another attorney to commit professional misconduct.

Id.

Edwards

relies on a Kentucky Supreme Court decision, United States v. Kentucky Bar
Ass’n, 439 S.W.3d 136, 140 (Ky. 2014), which held that “the use of ineffectiveassistance-of-counsel (IAC) waivers in plea agreements violates [Kentucky’s]
2

Edwards also argues that Attorney One provided constitutional ineffective
assistance and that the trial court erred by allowing him to give his guilty plea to
a magistrate judge. ECF No. 1 (§ 2255 Mot.) at 9–12. Edwards subsequently
moved to withdraw these claims. ECF No. 6 (Reply) at 3. The Court grants him
permission to do so and declines to address the withdrawn claims.
6

Rules of Professional Conduct.” Edwards also relies on a Department of Justice
memorandum, which informed federal prosecutors that they should no longer
seek such waivers and that they should decline to enforce any existing waivers.
ECF No. 3-12 (DOJ Mem.).
With respect to the sentencing proceedings, Edwards raises two claims. In
his first claim, Edwards argues that “counsel rendered constitutionally ineffective
assistance when failing to reasonably communicate with his client and properly
prepare a mitigating defense for the penalty phase of Edwards[’s] criminal
proceedings.” Id. at 19–20. Edwards alleges that he met Attorney Two only once
prior to appearing for sentencing in early September and that Edwards’s attempts
to contact him were fruitless. Id. Edwards does not allege how Attorney Two’s
lack of communication and preparedness affected the outcome of Edwards’s
sentencing proceedings. Id.
Edwards also argues that “[trial] counsel provided constitutionally
ineffective assistance of counsel resulting in the government and the court
mistakenly qualifying one of Edwards’ prior convictions as a predicate under the
ACCA.”

Id. at 13–18.

Although his argument is difficult to follow at points,

Edwards seems to argue that Attorney Two should have raised the following
objections to the ACCA enhancement.3 Id. Attorney Two should have argued
3

Edwards argues in his reply that he only needs to demonstrate that the
counsel’s arguments were frivolous and that the Court should conduct an
evidentiary hearing to determine what arguments competent counsel would have
presented. ECF No. 6 (Reply) at 10–12, 14. However, this is not how Section
2255 proceedings work: Edwards must allege a facially valid claim, i.e., facts
supporting both prongs of Strickland, before he is entitled to a hearing. See
Curshen v. United States, 596 F. App’x 14, 15 (2d Cir. 2015) (“[T]to be entitled to a
hearing, a movant must allege a “plausible or viable” claim.”). The fact that
7

that the plea colloquy was insufficient to establish any facts because it was
based on a police report read into the record after Edwards pleaded guilty. See
id. at 18 (“Moreover, there is no indication as to Edwards assenting . . . as he
plead[ed] guilty before the prosecutor gave any facts to the court.”). Attorney
Two also should have objected because the facts contained in the police report,
even if accepted as facts, were too “vague” to establish the “specific conduct or
specific substances under § 21a-277a.” Id. at 17–18.
With respect to the appeal proceedings, Edwards takes issue with Attorney
Two’s argument that the plea colloquy did not identify the statute of conviction.
Id. at 21–24. He contends that this argument was factually inaccurate because
the plea colloquy clearly identified the statute of conviction. Id. at 24. He also
argues that Attorney Two raised this argument rather than “other more prominent
factual arguments,” but Edwards does not articulate what those arguments
should have been.

Id.

Liberally construed, the Court assumes that those

arguments would have been his preferred objections to the ACCA and that
prejudice flowed from the application of the ACCA. Id. at 13–18.
DISCUSSION
A.

Timeliness
The Government argues that it is unclear whether Edwards’s Section 2255

motion is timely because the motion was received after, but dated before, the
expiration of the applicable limitations period, as calculated by the Government.
ECF No. 3 (Answer) at 10.

Specifically, the Government contends, without

counsel raised a bad argument does not necessarily imply that a better one
existed. The Court therefore construes Edwards’s claim to be predicated on the
purportedly better arguments that he identifies in his Section 2255 motion.
8

citation to authority, that the Court should not accept Edwards’s signature date
as the filing date unless he provides an averment, declaration, or notarized
statement indicating that he gave his Section 2255 motion to prison authorities
on the date it was signed. Id. at 12.
The Government is wrong. First, the requirement of a sworn statement
derives from the Federal Rules of Appellate Procedure, see Fed. R. App. P. 4(c)(1),
which do not apply here.

Second, even assuming that a sworn statement is

required, the Court doubts that Edwards bears the burden of producing such a
statement absent evidence from the Government that his signature date is
unreliable.

See Johnson v. Coombe, 156 F.Supp.2d 273, 277 (S.D.N.Y. 2001)

(“[A]bsent evidence to the contrary, the Court assumes that [the prisoner] gave
his petition to prison officials for mailing on the date he signed it.” (second
brackets in original) (footnote and quotation marks omitted)).

Third, even

assuming that Edwards must produce a sworn statement even in the absence of
contrary evidence, he subsequently submitted a notarized statement, ECF No. 6
(Reply) at 17, effectively mooting the Government’s argument, Covington v.
DiBiase, 1999 WL 48775, at *1 (2d Cir. 1999) (holding that prisoner’s letter,
submitted after complaint filed, established that complaint given to prison
officials prior to expiration of statute of limitations).
B.

Merits
Section 2255 enables a prisoner is federal custody to petition a federal

court to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). Relief
under Section 2255 is generally available “only for a constitutional error, a lack of

9

jurisdiction in the sentencing court, or an error of law or fact that constitutes a
fundamental defect which inherently results in complete miscarriage of justice.”
Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (internal quotation
marks and citation omitted). Section 2255 provides that a district court should
grant a hearing “[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).
For the following reasons, the Court DISMISSES the claim pertaining to the plea
negotiation process because Edwards lacks standing to raise it and DENIES the
remaining

claims

without

an

evidentiary

hearing

because

the

records

conclusively demonstrate that Edwards is not entitled to relief.
1. Plea Negotiation Process
Edwards first argues that the Government committed prosecutorial
misconduct rising to the level of a due process violation by introducing, and
Attorney One was constitutionally ineffective for permitting, a collateral attack
waiver in the plea agreement. ECF No. 1 (§ 2255 Mot.) at 6–8. Edwards reasons
that his collateral attack waiver created an actual conflict of interest between him
and his counsel and that the Government created the conflict by suggesting the
terms of the waiver. Id. The Court has profound reservations about the ethics of
plea agreements in which a criminal defendant, on the advice of his counsel and
at the initiation of the Government, agrees to waive past and prospective
ineffective assistance claims against the advising attorney. 4 See ABA Resolution
4

The Court does not question the validity of collateral attack waivers and
agrees that such waivers are generally enforceable, see Frederick v. Warden,
Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir. 2002), as well as “legal and
ethical,” ECF No. 12 (DOJ Mem.). But a collateral attack waiver is only
10

113E, Adopted by the House of Delegates (2013) (Report); NACDL Ethics
Advisory Committee Formal Opinion 12–02 (Oct. 2012); cf. Conn. R. Prof. Conduct
1.8(h). The Court doubts that such a waiver would be knowing, informed, and
enforceable. The Court also doubts that the pro forma collateral attack waiver
contained in Edwards’s plea agreement would not be narrowly construed so as to
not encompass any waiver of questionable ethics and constitutionality.

Cf.

United States v. Oladimeji, 463 F.3d 152, 157 (2d Cir. 2006) (eschewing “a broad
and literal reading of the [plea] agreement” when interpreting the word
“sentence”).
As interesting as these questions may be, the Court lacks the
constitutional power to adjudicate them.

Article III of the Constitution of the

United States confines the jurisdiction of federal courts to actual “cases” and
“controversies.”

See U.S. Const. Art. III § 2, cl. 1.

From this constitutional

limitation on the power of the judiciary, the Supreme Court has “deduced a set of
requirements that together make up the ‘irreducible constitutional minimum of
standing.’” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377,
1386 (2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). A
party has standing only if, inter alia, the injured party shows that it is “likely, as
opposed to merely speculative, that [his] injury will be redressed by a favorable
decision.”

Lujan, 504 U.S. at 561 (internal citations omitted). The issue of

enforceable if a defendant waives his rights knowingly, voluntarily, and
intelligently. See Frederick, 308 F.3d at 195. The issue that Edwards seeks to
raise, which the Court lacks the power to address, is how he could have
knowingly, voluntarily, and intelligently waived his right to a collateral challenge
when his trusted advisor’s interest in waiver was in direct conflict with Edwards’s
own interest.
11

standing is a threshold jurisdictional issue, which a federal court must decide
before reaching the merits. Ross v. Lantz, 408 F.3d 121 (2d Cir. 2005)
With respect to Edwards’s claims concerning his collateral attack waiver, a
favorable decision will not inure to Edwards’s benefit and would not have done
so even at the time Edwards’s filed his Section 2255 motion. To address the
question of standing, the Court must determine what the appropriate relief would
be for such a claim. Section 2243 of the Judicial Code requires federal courts to
“dispose of [habeas corpus petitions] as law and justice require.”
§ 2243.

28 U.S.C.

This command has been construed to permit courts to fashion any

appropriate equitable remedy. See Wilkinson v. Dotson, 544 U.S. 74, 87 (2005)
(Scalia, J., concurring) (“We have interpreted this broader remedial language to
permit relief short of release.”); United States v. Gordon, 156 F.3d 376, 381–82 (2d
Cir. 1998) (Ҥ 2255 leaves the choice of relief in a habeas case to the sound
discretion of the judge ruling on the motion.”).

When it comes to ineffective

assistance of counsel claims, the sound discretion of the district court is limited
only by the requirement that “the remedy ‘should be tailored to the injury suffered
from the constitutional violation and should not unnecessarily infringe on
competing interests.’” Id. at 381 (quoting United States v. Morrison, 449 U.S. 361,
364 (1981)).

Likewise, the remedy for a due process violation must only restore

the movant “‘to the circumstances that would have existed had there been no
constitutional error.’” Ferrara v. United States, 372 F.Supp.2d 108, 113 (D. Mass.
2005) (quoting United States v. Carmichael, 216 F.3d 224, 227 (2d Cir. 2000)).
Here, the only just and fair remedy would be to eliminate the collateral

12

attack waiver to the extent that it prevents Edwards from bringing ineffective
assistance claims. Edwards alleges that the purported constitutional violations
prevented him from understanding the collateral attack waiver and its
implications; he does not argue that the alleged violations impugned any aspect
of his conviction or sentence. ECF No. 1 (§2255 Mot.) at 6–8. Thus, returning him
to his original position simply means enforcing the non-suspect portions of the
plea agreement—that is, everything other than his agreement to waive ineffective
assistance of counsel claims in a collateral attack.
If the Court were to order such relief, however, Edwards would wind up in
exactly the same position as he occupied when his conviction became final
because his plea agreement does not bar him from launching a collateral attack.5
The collateral attack waiver does not bar Edwards from challenging his term of
imprisonment because Edwards was sentenced to more than 120 months’
imprisonment. The collateral attack waiver does not bar him from challenging his
term of supervised release because Edwards was sentenced to more than three
years’ supervised release. The remaining portion of the collateral attack waiver
concerns a fine, but the district court waived a fine because of Edwards’s inability
5

The Government also argues that the remedy would have no effect
because the DOJ memorandum prevents them from seeking to enforce a
collateral attack waiver. ECF No. 3 (Answer) at 24. This argument is essentially a
mootness argument because it implicates how the Government would chose to
behave after the Section 2255 motion was filed. See Alexander v. Yale Univ., 631
F.2d 178, 183 (2d Cir. 1980) (“This ‘time element of standing’ comes under the
rubric of mootness doctrine.”). However, a respondent’s voluntary cessation of
unlawful conduct generally does not moot a case or controversy. See Already,
LLC v. Nike, Inc., 133 S.Ct. 721, 727 (2013) (“[A] defendant claiming that its
voluntary compliance moots a case bears the formidable burden of showing that
it is absolutely clear the allegedly wrongful behavior could not reasonably be
expected to recur.”).
13

to pay.

In other words, there is nothing for the Court to modify because no

portion of the collateral waiver applies. The Court therefore lacks the power to
address Edwards’s claim because it could not have been redressed even at the
time that Edwards’s filed his Section 2255 motion. The claim is DISMISSED for
lack of jurisdiction.
2. Sentencing Proceedings
Edwards next challenges Attorney Two’s representation at sentencing.
These claims are analyzed pursuant to the well-established standards governing
ineffective assistance claims.

To prevail, a movant must both allege facts

demonstrating that “counsel’s representation fell below an objective standard of
reasonableness” and that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984). As to the
first showing, a movant must demonstrate that counsel’s performance
“amounted to incompetence under ‘prevailing professional norms’” rather than
demonstrating that the performance “deviated from best practices or most
common custom.”

Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting

Strickland, 466 U.S. at 690).

As to the second showing, a movant must

demonstrate “a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 964.

Edwards’s ineffective assistance of trial counsel

claims fall into one of two categories: (a) generalized complaints concerning
Attorney Two’s communication and preparation; and (b) specific complaints
concerning the objections that Attorney Two should have raised in opposition to

14

the ACCA enhancement. The Court addresses each in turn.
a. General Lack of Communication and Preparation
Edwards first argues that Attorney Two was generally uncommunicative
and unprepared for sentencing.

ECF No. 1 (§ 2255 Mot.) at 19–20. The

Government offers three reasons for denying this claim. It first argues that the
mandate rule applies because “Edwards made this very same argument to the
Second Circuit.” ECF No. 3 (Answer) at 32. This is simply not true. On direct
appeal, Edwards argued that the district court erred in denying his purported
motion for appointment of new counsel. ECF No. 3-10 (Pro Se Br.) at 13–14. The
mandate rule “also precludes re-litigation of issues impliedly resolved by the
appellate court's mandate,” Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir.
2010), but the Government’s second argument explains why the question of
ineffective assistance of counsel was not “impliedly resolved” by the Second
Circuit’s decision on direct appeal.
The Government’s second argument is premised on waiver. It contends
that Edwards waived his ineffective assistance claim because he eventually
assented to Attorney Two’s representation despite his purported motion for new
counsel.

ECF No. 3 (Answer) at 32–33.

The second argument fails because

Edwards’s conduct concerns waiving review of his purported motion for new
counsel rather than his current ineffective assistance claim.
demonstrates why the first argument fails.

It also helpfully

If Edwards waived review of his

purported motion for new counsel, the Second Circuit’s decision on this claim
had no bearing on its substance.

And, even assuming that Edwards did not

15

waive this claim or that his waiver resulted in plain error review, the Second
Circuit’s review would require examination of the following four factors:
(1) whether the defendant’s motion was timely; (2) whether the trial
court adequately inquired into the matter; (3) whether the conflict
between the defendant and his attorney was so great that it resulted
in a total lack of communication preventing an adequate defense;
and (4) whether the defendant substantially and unjustifiably
contributed to the breakdown in communication.
United States v. Carathers, 280 F. App’x 72, 76 (2d Cir. 2008). Because these
factors differ from the standard articulated in Strickland and because the Second
Circuit provided no rationale for ruling that Edwards’s pro se arguments were
meritless, this Court cannot definitely conclude that the Second Circuit’s decision
resolved the same legal issues undergirding the ineffective claim now asserted.
The Government finally attacks the merits of Edwards’s claim, arguing that
he cannot demonstrate prejudice because he received the mandatory minimum
term of imprisonment. ECF No. 3 (Answer) at 33. But this isn’t quite correct.
Edwards could argue that Attorney’s Two’s generalized shortcomings resulted in
the application of the mandatory minimum or in the unjust imposition of the other
non-incarceratory portions of his sentence. The problem is that Edwards has not
alleged prejudice with respect to these claims. As articulated, these claims rely
entirely on conclusory allegations concerning the quality of Attorney Two’s
performance. But even assuming these allegations are sufficient to meet the first
prong of Strickland, they are only half the battle. A federal court is not required
to imagine all the ways that a criminal defendant could have been prejudiced by
inadequate performance. The Court therefore DENIES the ineffective assistance
claims predicated on generalized complaints concerning Attorney Two’s
16

communication and preparedness.
b. Failure to Challenge ACCA Enhancement
Edwards also argues that Attorney Two erred by failing to raise the
following objections to the ACCA Enhancement: (1) the plea colloquy was
insufficient to establish any facts because it was based on a police report read
into the record after Edwards pleaded guilty; (2) the facts contained in the police
report, even if accepted as facts, were too vague to establish the specific conduct
or specific substances. The Government construes Edwards to be claiming that
Attorney Two failed to make any objection to the ACCA enhancement, and the
Government therefore argues that the claim is meritless because Attorney Two
did, in fact, object to the enhancement at sentencing and on appeal. ECF No. 3
(Answer) at 29–32 The Court, however, construes Edwards to be making a more
specific claim and because only a portion of Edwards’s preferred objections were
raised at sentencing and on appeal, the Government’s arguments do not fully
resolve this ineffective assistance claim.

Edwards’s claim nonetheless fails

because his preferred objections are meritless.
Edwards’s first preferred objection appears to be based on United States v.
Cohens, 2008 WL 3824758, at *5 (D. Conn. Aug. 13, 2008). In that case, the district
court ruled that the defendant’s prior state conviction was not a serious drug
offense because the State read the police report into the record after the
defendant pleaded guilty. The Cohens decision (decided by the same judge as
the judge presiding over Edwards’s sentence) is distinguishable because
Edwards confirmed the facts as stated by the State (which Edwards alleges were

17

contained in the police report), and his confirmation took place before his guilty
plea was accepted by the state court. 6 The trial court was thus entitled to rely on
those facts when applying the modified categorical approach.
Edwards’s second preferred objection rests on the assumption that the
facts were nonetheless insufficient to establish the specific conduct or substance
involved.

With respect to the specific conduct, federal courts employ the

modified categorical approach because Connecticut General Statute § 21a-277a
and 21 U.S.C. § 841 criminalize different conduct. See Carter v. United States, 731
F.Supp.2d 262, 271 (D. Conn. 2010) (“Because this statute criminalizes conduct
that does and conduct that does not constitute a controlled substance offense
under the guideline, i.e., the mere offer or gift of a controlled substance, it is not
categorically a ‘controlled substance offense.’”).

In this case, it is clear that

Edwards’s conduct involved possession of cocaine with intent to sell, which
would qualify as controlled substance offense. His conduct did not involve a
mere offer to sell, which would not qualify as controlled substance offense. The
change-of-plea hearing indicates that Edwards pleaded guilty to “possession of
narcotics with intent to sell under 21a-277a.” Conn. 10-cr-232, ECF No. 99-3 (Ex.
C). Edwards also confirmed that the police seized “36.3 grams” during his plea
hearing and before his plea was accepted and he was adjudicated guilty. Id.
Federal courts also employ the modified categorical approach to ascertain
the substance involved. See United States v. Madera, 521 F.Supp.2d 149, 154-55
6

Edwards operates under the assumption that his plea was entered when
he said the word “guilty” (which occurred before the State read facts into the
record) as opposed to when the state court accepted his plea as knowingly and
voluntarily given (which occurred after Edwards confirmed the truth of those
facts).
18

(D.

Conn.

2007)

(applying

the

modified

categorical

approach

because

Connecticut, unlike the United States, lists benzylfentanyl or thenylfentanyl as
controlled substances). Edwards’s state offense clearly involved “36.3 grams of
cocaine” rather than benzylfentanyl or thenylfentanyl. Conn. 10-cr-232, ECF No.
99-3 (Ex. C). Because Edwards’s preferred objections would have been rejected,
his claim for ineffective assistance of trial counsel fails, and the Court therefore
DENIES it.
3. Appellate Proceedings
Edwards also challenges Attorney Two’s representation on appeal, arguing
that he raised factually meritless objections to the ACCA at the expense of
Edwards’s preferred objections to the ACCA, which would have been meritorious.
The two-part Strickland test also applies in the appellate context.

See Smith v.

Robbins, 528 U.S. 259, 285 (2000). The Court need not expend significant time
addressing the claim because it is predicated on Edwards’s preferred objections
to the ACCA, which this Court has already found to be meritless. The Court
therefore also DENIES the claim for ineffective assistance of appellate counsel.
CONCLUSION
For the foregoing reasons, Edwards’s Section 2255 Motion is DISMISSED in
part and DENIED in part.

The Court does so without an evidentiary hearing

because the extant records conclusively establish that Edwards is entitled to no
relief. Moreover, the Court declines to issue a certificate of appealability. The
Court DENIES a certificate of appealability (“COA”) with respect to his claim
concerning the plea negotiations because Edwards cannot demonstrate “that

19

jurists of reason would find it debatable whether the district court was correct in
its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The remaining
claims, which were denied on the merits, do not warrant a COA because the
motion makes no substantial showing of a denial of a constitutional right.
Finally, the Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from the
Court’s judgment would not be taken in good faith.
IT IS SO ORDERED.
/s/_________________
Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: April 4, 2016

20