Ogman v. USA
ORDER denying 6 Motion for Discovery; denying 14 Motion to Vacate/Set Aside/Correct Sentence (2255); denying as moot 15 Motion for Default Entry 55(a). Ogman's motion for discovery is denied (doc. 6), and his habeas petition i s also denied (doc. 1). Because Ogman has failed to make a "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), a certificate of appealability will not issue. The Clerk shall enter judgment and close the file.Signed by Judge Stefan R. Underhill on 7/21/2017. (Buttrick, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
No. 3:16-cv-382 (SRU)
RULING AND ORDER ON PETITIONER’S
MOTION TO VACATE, CORRECT OR SET ASIDE SENTENCE
On March 10, 2015, after pleading guilty to one count of conspiracy to possess with
intent to distribute cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A),
Donald Ogman was sentenced by Judge Warren E. Eginton to 188 months’ imprisonment.
Judgment and Amended Judgment, United States v. Donald Ogman, No. 3:12-cr-74 (SRU) (D.
Conn.) (docs. 1104 and 1105). Ogman did not appeal that sentence. The case was subsequently
transferred to me on November 3, 2015. Order of Transfer, No. 3:12-cr-74 (SRU).
On March 7, 2016, Ogman, acting pro se and currently imprisoned at United States
Penitentiary Canaan in Waymart, Pennsylvania, filed a timely motion to vacate, set aside, or
correct his sentence (“habeas petition”), pursuant to 28 U.S.C. § 2255. (doc. 1) On March 9,
2016, I issued an Order to Show Cause requesting further detail about his claims. (doc. 3)
Ogman filed a response to that Order, which suggested that he sought to challenge the sentence
that he received on the basis that use of certain cooperating witness testimony violated his Fifth
Amendment right to due process. (doc. 7) He subsequently filed an amended petition suggesting
that his primary claim was that trial counsel had been ineffective for failing to move to suppress
wiretap evidence involving the cooperating witness. (doc. 14) Ogman has also moved for
discovery in support of his petition. (doc. 6)
Based on the entire record and for the following reasons, Ogman’s petition is denied, and
his motion for discovery is also denied.
Standard of Review
Section 2255 provides a prisoner in federal custody a limited opportunity to challenge the
legality of the sentence imposed upon him. United States v. Addonizio, 442 U.S. 178, 184 (1979).
In order to prevail, the petitioner must show either (1) that his sentence was imposed in violation
of the Constitution or the laws of the United States; (2) that the sentencing court lacked
jurisdiction to impose such a sentence; (3) that the sentence exceeded the maximum detention
authorized by law; or (4) that the sentence is otherwise subject to collateral attack. 28 U.S.C. §
2255(a). Collateral relief is only available for a constitutional error that constitutes a
“fundamental defect which inherently results in a complete miscarriage of justice.” Hill v. United
States, 368 U.S. 424, 428 (1962).
Section 2255 “may not be employed to relitigate questions which were raised and
considered on direct appeal.” Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992); see also
Reese v. United States, 329 F. App’x 324, 326 (2d Cir. 2009) (summary order) (quoting United
States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001)). If a petitioner fails to raise an issue upon direct
appeal, that issue will be deemed procedurally defaulted and unreviewable, absent a
demonstration of ineffective assistance of counsel, an “intervening change of controlling law, the
availability of new evidence, or the need to correct a clear error or prevent manifest injustice.”
United States v. Becker, 502 F.3d 122, 127 (2d Cir. 2007) (quoting United States v. Tenzer, 213
F.3d 34, 39 (2d Cir. 2000)); see also Bousley v. United States, 523 U.S. 614, 622 (1998);
Massaro v. United States, 538 U.S. 500, 504 (2003).
The petitioner bears the burden of proving, 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). A district court is
not required to accept the petitioner’s factual assertions “where the assertions are contradicted by
the record in the underlying proceeding.” Puglisi, 586 F.3d at 214. Section 2255 also requires
that the district court hold a hearing on the petitioner’s motion unless “the motion and the files
and records of the case conclusively show that the prisoner is entitled to no relief.” Chang v.
United States, 250 F.3d 79, 85 (2d Cir. 2001) (“[A]lthough a hearing may be warranted, that
conclusion does not imply that a movant must always be allowed to appear in a district court for
a full hearing if the record does not conclusively and expressly belie his claim”) (citing
Machibroda v. United States, 368 U.S. 487, 495 (1962)).
On March 28, 2012, the government filed a criminal complaint against Ogman alleging
his involvement in a conspiracy to distribute cocaine base and powder cocaine. Criminal
Complaint, United States v. Donald Ogman, No. 3:12-cr-74 (SRU) (doc. 1). Ogman was arrested
on the basis of that complaint the same day. An indictment to the same effect followed on April
9, 2012. Indictment (3:12-cr-74, doc. 12).
The parties appear to agree on the following facts, which also find support in the
documents filed in Ogman’s criminal case. The investigation leading up to Ogman’s arrest
involved multiple controlled purchases from Ogman and his co-defendants. One of the FBI
informants involved in the controlled purchases later illegally purchased crack cocaine from
Ogman independently of his or her cooperating agreement, and was accordingly “demoted” from
“CW,” which appears to indicate a “cooperating witness,” to a “CI,” which appears to indicate a
“confidential informant.” The controlled purchases provided the basis for authorizing wiretaps of
Ogman’s phone, which in turn provided additional and overwhelming evidence that Ogman was
acting as a distributor of crack cocaine.
Ogman was represented by several different attorneys over the course of his criminal case
who collectively filed various pre-trial motions. Relevant for these purposes, on July 20, 2012,
Ogman’s counsel moved for the disclosure of the identity of the confidential sources who had
provided the basis for the government’s probable cause in its wiretap authorizations. Motion for
Disclosure (3:12-cr-74, doc. 236). He argued that disclosure was necessary in order to determine
whether the government’s reliance was reasonable. On November 2, 2012, Magistrate Judge
Holly Fitzsimmons denied that motion insofar as it related to a need to avoid unfair surprise at
trial. Order (3:12-cr-74, doc. 366).
On September 5, 2012, Ogman’s counsel also filed a motion to suppress the wiretaps on
the basis that Ogman had not consented to being recorded and the government had not otherwise
sought court authorization for the pre-authorization recordings used to establish probable cause
for those wiretaps. Def.’s Mot. to Suppress, (3:12-cr-74, doc. 303). Judge Eginton denied that
motion on October 4, 2012. Order (3:12-cr-74, doc. 314). He held that the pre-authorization
recordings were lawful because the confidential source involved in those calls had consented to
recording, and the recordings had been conducted by special agents of the FBI. Id. at 2–3.
On June 13, 2013, Ogman filed a pro se motion1 to suppress the wiretaps on grounds
identical to those raised in his present habeas petition. Def.’s Pro Se Motion to Suppress (3:12cr-74, doc. 588). Specifically, he argued that because the cooperating source had been deemed
“no longer credible” after making an unsupervised purchase from Ogman, the source could not
Shortly after that motion was filed, the attorney acting on Ogman’s behalf at that time moved to withdraw from the
case. Def.’s Counsel’s Mot. to Withdraw, No. 3:12-cr-74 (SRU) (doc. 612).
be used to establish probable cause for the wiretaps or for Ogman’s arrest. Id. at 4. In its
Opposition Brief, the government provided both the initial affidavit in support of the wiretap
application, dated January 12, 2012, and the interim report disclosing the confidential source’s
unsupervised purchase of crack and subsequent demotion, dated March 5, 2012. Gov’t’s Opp’n
Br. (3:12-cr-74, doc. 593). It argued that the source’s misconduct did not implicate the validity of
any information previously obtained from that source, nor did it indicate that the initial affidavit
in support of the wiretap was false, misleading, or made with a reckless disregard of the truth. Id.
(discussing the standard established in Franks v. Delaware, 438 U.S. 154, 155–56 (1978)). On
July 30, 2013, Judge Eginton denied Ogman’s motion for the same reasons provided in his
previous Order holding that the wiretaps had been properly authorized. Order (3:12-cr-74, doc.
On March 14, 2014, Ogman pleaded guilty to Count One of a superseding indictment,
conspiracy to possess with an intent to distribute 280 or more grams of cocaine base in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Plea Agreement (3:12-cr-74, doc. 804). As a
result of his plea, Ogman faced a statutory mandatory minimum of ten years’ imprisonment, and
a maximum of life in prison. The Guideline stipulation in the Plea Agreement resulted in a range
of 235 to 293 months of imprisonment, and the government indicated that it would not object to
a downward departure to 188 months in light of some recently proposed amendments to the
Guideline range to the Drug Quantity Table in Guideline § 2D1.1. Id. at 4. On March 10, 2015,
Judge Eginton sentenced Ogman to 188 months of incarceration. Judgment (3:12-cr-74, doc.
1104). Ogman did not directly appeal his sentence.
Because there was no direct appeal in Ogman’s criminal case, the issues raised in his
habeas petition will be deemed procedurally defaulted unless he can demonstrate either
ineffective assistance of counsel, an “intervening change of controlling law, the availability of
new evidence, or the need to correct a clear error or prevent manifest injustice.” Becker, 502 F.3d
at 127 (quoting Tenzer, 213 F.3d at 39). Ogman’s petition raises exactly the same issues he
raised multiple times in his criminal case and appears to rely on exactly the same evidence, see
Def.’s Pro Se Mot. to Suppress (3:12-cr-74, doc. 588); accordingly, he cannot meet any of those
requirements.2 I note, in particular, that Ogman’s ineffective assistance of counsel argument fails
because, having raised and lost those arguments during the criminal proceeding in the first
instance, Ogman cannot show that he was “actually prejudiced” as a result of counsel’s failure to
make the same arguments—that is, he cannot show how counsel’s alleged inadequacy had any
impact on the outcome of his case. See Harrington v. United States, 689 F.3d 124, 129 (2d Cir.
2012) (citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984)).
Ogman’s motion for discovery can be understood as an attempt to uncover new evidence
in order to avoid a procedural default. The Second Circuit, relying on Supreme Court precedent,
has articulated the following standard for evaluating motions for discovery in habeas cases:
“A habeas petitioner, unlike the usual civil litigant in federal court, is not
entitled to discovery as a matter of ordinary course.” Bracy v. Gramley,
520 U.S. 899, 904, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). Rather,
discovery is allowed only if the district court, acting in its discretion, finds
“good cause” to allow it. Id. This “good cause” standard is satisfied
“‘where specific allegations before the court show reason to believe that
the petitioner may, if the facts are fully developed, be able to demonstrate
that he is ... entitled to relief.’ ” Id. at 908–09, 117 S.Ct. 1793 (quoting
Harris v. Nelson, 394 U.S. 286, 300, 89 S.Ct. 1082, 22 L.Ed.2d 281
Ogman also does not appear to meet the “cause and prejudice” or “actual innocence” standards that might permit
me to consider a procedurally defaulted claim. Harrington v. United States, 689 F.3d 124, 129 (2d Cir. 2012) (citing
Bousley v. United States, 523 U.S. 614, 622 (1998)); United States v. Thorn, 659 F.3d 227, 231 (2d Cir. 2011)).
(1969)). The district court enjoys “broad discretion” to determine whether
discovery is warranted in a habeas proceeding . . . .
Ferranti v. United States, 480 F. App’x 634, 638–39 (2d Cir. 2012); see also Drake v.
Portuondo, 321 F.3d 338, 346 (2d Cir. 2003) (same); Beatty v. Greiner, 50 F. App’x 494, 496–
97 (2d Cir. 2002) (same). Here, Ogman has failed to make the requisite “specific allegations”
showing that any new or previously undisclosed evidence might be uncovered if his request is
granted. His request relies on evidence that was made available to him years ago in the course of
his criminal case, and he has not indicated why he now believes new exculpatory evidence might
Moreover, the discovery Ogman requests does not appear to have the potential to change
his sentence. Ogman does not challenge his conviction, nor does he argue that the sentence he
received fell outside of the permissible statutory range. Instead, he asserts that, if the wiretaps
based on the confidential source’s information were suppressed, he would have received the
mandatory minimum sentence of 120 months’ incarceration instead of the 188 months he
received. Pet.’s Response at 3. That argument is pure speculation—additional evidence related to
the basis of the wiretaps would not change any aspect of the Guideline range considered, nor
would it call into question the legality of the below-Guidelines sentence ultimately imposed.
Accordingly, Ogman cannot rely on his motion for discovery to acquire new evidence,
nor can he otherwise avoid a procedural default on the claims raised in his petition.
Ogman’s motion for discovery is denied (doc. 6), and his habeas petition is also denied
(doc. 1). Because Ogman has failed to make a “substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), a certificate of appealability will not issue. The
Clerk shall enter judgment and close the file.
Dated at Bridgeport, Connecticut, this 21st day of July 2017.
/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge
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