Hanks v. USA
Filing
43
RULING denying 18 Motion to Vacate/Set Aside/Correct Sentence (2255). Having denied Hankss Amended Motion to Vacate, the court must now determine whether to issue a certificate of appealability pursuant to section 2253(c)(1)of title 28 of the Un ited States Code. The court may issue such a certificate only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). As the Second Circuit has explained, a substantial showing does not c ompel a petitioner to demonstrate that he would prevail on the merits, but merely that the issues involved in his case are debatable among jurists of reason; that a court could resolve the issues in a different manner; or that the questions are adequ ate to deserve encouragement to proceed further. Lucidore v. New York State Div. of Parole,209 F.3d 107, 112 (2d Cir. 2000) (emphasis in original, internal quotation marks and alterations omitted). Although the court does not believe that it erred in denying Hankss Motion to Vacate, Hanks has made a substantial showing of the denial of his constitutional right to the effective assistance of counsel. Accordingly, the court will issue a certificate of appealability.The Clerk is hereby directed to close this case.. Signed by Judge Janet C. Hall on 1/2/2019. (Lewis, D)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RONELL HANKS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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CIVIL CASE NO.
3:17-CV-00751 (JCH)
JANUARY 2, 2019
RULING RE: AMENDED MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE PURSUANT TO 28 U.S.C. § 2255 (DOC. NO. 18)
I. INTRODUCTION
Petitioner Ronell Hanks (“Hanks”) moves to vacate, set aside, or correct his
sentence pursuant to section 2255 of title 28 of the United States Code. See generally
Amended Motion to Vacate (“Am. Mot. to Vacate”) (Doc. No. 18). In his Amended
Petition, Hanks collaterally attacks his conviction on three grounds, all of which concern
Hanks’s decision to plead guilty to a lesser-included count of conspiracy to distribute
heroin and cocaine. See generally Memorandum in Support of Amended Motion to
Vacate (“Hanks’s Mem.”) (Doc. No. 18-1). First, Hanks contends that his trial counsel,
Attorney Robert Golger (“Attorney Golger”), provided ineffective assistance of counsel
during the plea negotiations by failing to correctly advise Hanks of his eligibility for a
sentencing enhancement. See id. at 29–41. Second, he argues that his guilty plea was
not voluntarily, knowingly, and intelligently made. See id. at 43–45. Third, he claims
that his waiver of appellate and collateral attack rights is unenforceable for lack of
consideration. See id. at 41–42.
For the reasons set forth below, Hanks’s Amended Motion to Vacate (Doc. No.
18) is denied.
1
II. BACKGROUND
On December 18, 2013, a federal grand jury returned an indictment charging
Hanks with four counts, namely: (1) conspiracy to distribute more than five kilograms of
cocaine and one kilogram of heroin, and other narcotics, in violation of sections
841(a)(1), 841(b)(1)(A)–(C), and 846 of title 21 of the United States Code; (2)
possession with intent to distribute and distribution of narcotics, in violation of sections
841(a)(1) and 841(b)(1)(C) of title 21 of the United States Code; (3) possession of a
firearm and ammunition by a convicted felon, in violation of sections 922(g)(1) and
924(a)(2) of title 18 of the United States Code; and (4) possession of a stolen firearm, in
violation of sections 922(j) and 924(a)(2) of title 18 of the United States Code. See U.S.
v. Hanks, No. 3:13-CR-229 (JCH) (“Hanks Criminal Docket”), Indictment (Doc. No. 14).
On January 6, 2014, Attorney Golger appeared on behalf of Hanks. See Hanks
Criminal Docket, Attorney Appearance (Doc. No. 22). On August 21, 2014, Hanks pled
guilty to a lesser-included count of conspiracy to distribute heroin and cocaine. See
Hanks Criminal Docket, Plea Agreement (Doc. No. 277).
On February 26, 2015, this court sentenced Hanks to 204 months’ imprisonment
and five years of supervised release. See Hanks Criminal Docket, Judgment (Doc. No.
528). Hanks appealed his conviction and sentence, and the Second Circuit denied his
appeal on May 16, 2016, on the basis that he had waived his appellate rights in his plea
agreement. See Hanks Criminal Docket, Mandate of USCA (Doc. No. 679).
On May 8, 2017, Hanks timely initiated the instant proceedings as a pro se
litigant under section 2255 of title 28 of the United States Code. See Motion to Vacate
(“Mot. to Vacate”) (Doc. No. 1). The respondent, the United States of America (“the
government”), opposed the Motion to Vacate on June 13, 2017. See United States’
2
Response to Defendant’s Motion Pursuant to 28 U.S.C. § 2255 (“Gov’t’s Resp.”) (Doc.
No. 4). Subsequently, this court appointed counsel to represent Hanks on July 26,
2017. Notice of Appearance (Doc. No. 10). On December 19, 2017, Hanks’s counsel
filed an Amended Motion to Vacate (Doc. No. 18), which is currently pending before this
court.
On March 6, 2018, Hanks filed a Motion for Entry of Default (Doc. No. 25) on the
basis that the government had not filed a response to Hanks’s Amended Motion to
Vacate. In its Response to Hanks’s Motion for Entry of Default, the government noted
that it had timely responded to the Motion to Vacate and that the Amended Motion to
Vacate did not address the arguments the government had set forth in its Response or
make additional points that warranted a further response. See United States’ Response
to Defendant’s Motion for Default Entry 55(a) (“Gov’t’s Resp. to 55(a) Mot.”) (Doc. No.
26). Hanks then submitted a Reply to the government’s Response to his pro se
Petition. Reply Memorandum of Ronell Hanks (“Reply”) (Doc. No. 27-1).
On July 23, 2018, the court ruled that there were outstanding issues of fact
concerning whether Attorney Golger provided Hanks with ineffective assistance of
counsel, including whether Attorney Golger investigated Hanks’s eligibility for a
sentencing enhancement, whether he communicated to Hanks that the application of a
sentencing enhancement was a certainty, and whether there is a reasonable probability
that, but for Attorney Golger’s advice regarding the sentencing enhancement, Hanks
would not have pled guilty and would have insisted on going to trial. See Ruling on
Amended Motion to Vacate (“First Ruling on Am. Mot. to Vacate”) (Doc. No. 29) at 2.
The court therefore conducted an evidentiary hearing and held argument on October 2,
3
2018. Both Attorney Golger and Hanks testified at the hearing. In addition, the
government and Hanks each introduced a number of exhibits. See generally Marked
Exhibit List (Doc. No. 36). After the hearing, both parties submitted additional briefing
and exhibits to supplement the record.
III. FINDINGS OF FACT
The government and Hanks engaged in plea negotiations during the Spring and
Summer of 2014. On April 2, the government emailed Attorney Golger a draft plea
agreement (“the April Agreement”), which proposed that Hanks plead guilty to Count
One of the Indictment for conspiracy to distribute and to possess with intent to distribute
at least one kilogram of heroin and at least five kilograms of cocaine. See Hanks’s
Exhibit 1, Plea Agreement Dated 4/2/14 (“April Agreement”), at 1. The charge carried a
mandatory minimum sentence of ten years’ imprisonment and a maximum sentence of
life in prison. Id. at 2. According to the April Agreement’s calculations, Hanks faced a
sentencing range of 292 to 365 months of imprisonment under the Sentencing
Guidelines. Id. at 7. This sentencing range was based, in part, on (1) the assumption
that the United States Sentencing Commission would adopt certain amendments to the
Sentencing Guidelines on November 1, 2014, that would reduce Hanks’s base offense
level by two points; and (2) the stipulation that Hanks’s offense conduct involved five
kilograms of heroin and five kilograms of cocaine. Id. at 6–7. The April Agreement also
contained, in bolded text, the following provision:
The parties acknowledge that in light of the defendant’s prior conviction for
a felony drug offense, the defendant could be eligible for a sentencing
enhancement under 21 U.S.C. §§ 841(b)(1)(B)(iii) and 851, which would
expose him to a mandatory minimum sentence of twenty years’
imprisonment. In light of this plea agreement, the Government agrees that
it will not file the information required by § 851, and therefore the defendant
will not be exposed to a mandatory term of twenty years’ imprisonment.
4
Id. at 7. The “prior conviction” referenced in this provision is Hanks’s 2007 conviction in
Connecticut state court, where he pled guilty to possession of narcotics with intent to
sell under section 21a-277(a) of the Connecticut General Statutes.
Between April 2 and August 21, the date on which Hanks pled guilty, the
government sent Hanks six additional plea proposals, each of which contained
language noting that “[Hanks] could be eligible for a sentencing enhancement” in light of
his prior conviction for a felony drug offense. During this time period, the government
also made a reverse proffer in which it presented the evidence that it had gathered for
its case against Hanks to both Attorney Golger and Hanks.
In response to Hanks’s filing of a Motion to Suppress, the court scheduled an
evidentiary hearing for August 19, 2014. On August 7, however, Attorney Golger
notified the court that Hanks intended to plead guilty. The court therefore scheduled a
change of plea hearing for August 18. Attorney Golger made this request for a change
of plea hearing based on his conversations with Hanks’s mother, who had informed him
that Hanks wanted to plead guilty. Hanks, however, claims that he never told his
mother that he intended to plead guilty, and that he did not know that a change of plea
hearing had been scheduled until he was brought to court on August 18. On that day,
the government presented Hanks with two revised plea agreements, both of which
Hanks rejected. In light of these developments, the court rescheduled Hanks’s
suppression hearing for August 21, 2014.
On the day of the suppression hearing, Attorney Golger met with Hanks at the
courthouse and updated him about Attorney Golger’s ongoing discussions with the
government. Specifically, the government had represented to Attorney Golger that, if
5
the suppression hearing went forward, the government would withdraw its plea
agreement and take steps towards pursuing a section 851 sentencing enhancement.
The parties dispute the precise language that Attorney Golger used when discussing
the risk posed by the government’s threat of a sentencing enhancement. According to
Hanks’s testimony, Attorney Golger told him that the government would file a section
851 information, which, in turn, would expose Hanks to a 20-year mandatory minimum
sentence upon a conviction on Count One of the Indictment. On the other hand,
Attorney Golger testified that he told Hanks that the government’s filing of a section 851
information could, not would, expose him to a sentencing enhancement. There is no
dispute, however, that Attorney Golger conveyed to Hanks that, if he proceeded with the
suppression hearing, he would lose the government’s plea offer and risk a sentencing
enhancement. Nor is there any dispute that, at the end of this meeting, Hanks
remained determined to move forward with the suppression hearing. Indeed, less than
an hour before the start of the suppression hearing, Attorney Golger informed the
government by email that he had met with Hanks for half an hour and that “Hanks
appears steadfast in his desire for a trial.” Government’s Exhibit C, Email from
8/21/2014.
Hanks’s mother and the mother of Hanks’s child were present when Hanks was
brought to the courtroom for the suppression hearing. Both of them urged Hanks to
follow Attorney Golger’s advice and to accept the plea deal. Shortly thereafter, Hanks
informed the court that he intended to plead guilty pursuant to the terms of a plea
agreement that was dated August 20 (the “August Plea Agreement”).
6
Under the terms of this revised plea deal, Hanks would plead guilty to a lesserincluded offense of Count One of the Indictment, charging him with conspiracy to
distribute and to possess with intent to distribute at least 100 grams of heroin and at
least 500 grams of cocaine. See Hanks Criminal Docket, Plea Agreement (“August
Plea Agreement”) (Doc. No. 277) at 1. This charge carried a mandatory minimum
sentence of five years’ imprisonment and a maximum sentence of forty years’
imprisonment. Id. at 2. The government agreed to recommend that the court reduce
Hanks’s offense level under the Sentencing Guidelines by two levels for acceptance of
responsibility. Id. at 4–5. Unlike the April Plea Agreement, however, the August Plea
Agreement did not stipulate a drug quantity. Compare April Plea Agreement at 6 with
August Plea Agreement at 5. Instead, the August Plea Agreement contemplated that
the court would hold a Fatico hearing to determine this issue of fact, at which time the
government would argue that Hanks’s drug quantity was at least three kilograms of
heroin and at least five kilograms of cocaine. See August Plea Agreement at 5–7. On
the basis of this drug quantity, the government estimated that Hanks’s guideline
sentence range would be 262 to 327 months of imprisonment, assuming, again, the
adoption of certain anticipated amendments to the Sentencing Guidelines. See id. at 5–
6.
As with the prior plea proposals, the August Plea Agreement noted that “[Hanks]
could be eligible for a sentencing enhancement,” but provided that the government
would not seek such an enhancement as part of the plea deal. Id. at 6. The
government also promised to dismiss the remaining counts charged against Hanks in
the Indictment. Id. at 9. For his part, Hanks agreed to waive his right to appeal or
7
collaterally attack his conviction and sentence, except through a claim of ineffective
assistance of counsel. Id. at 7.
Upon being informed of Hanks’s intentions to plead guilty, the court conducted a
plea colloquy that lasted for nearly an hour and a half. See Hanks Criminal Docket,
Transcript of Change of Plea Hearing on August 21, 2014 (“Plea Colloquy Tr.”) (Doc.
No. 581). On the basis of the answers given by Hanks under oath, as well as the
remarks made by the government’s counsel and Attorney Golger, the court found that
Hanks had knowingly and voluntarily entered into the August Plea Agreement.
Accordingly, Hanks was adjudged guilty.
IV. LEGAL STANDARD
“Because collateral challenges 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.”
Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010) (internal quotation marks
omitted). Section 2255 of title 28 of the United States Code permits a federal prisoner
to move to vacate, set aside, or correct his sentence “upon the ground that the sentence
was imposed in violation of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or that the sentence was in
excess of the maximum authorized by law, or is otherwise subject to collateral attack.”
28 U.S.C. § 2255(a) (2016). Therefore, relief is 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 a complete
miscarriage of justice.” Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000) (quoting
United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)) (internal quotation marks omitted).
8
The petitioner bears the burden of proving he is entitled to relief by a preponderance of
the evidence. See Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011).
V. DISCUSSION
Hanks advances three bases for vacating his guilty plea, judgment, and
sentence. First, he argues that he was deprived of his Sixth Amendment right to
effective assistance of counsel because Attorney Golger incorrectly informed him that
his prior state conviction would support a section 851 sentencing enhancement. See
Hanks’s Mem. at 29–41. Second, he argues that his misapprehension of the risk of a
sentencing enhancement, along with other circumstances surrounding the hearing on
August 21, rendered his guilty plea involuntary. See id. at 43–45. Third, Hanks claims
that the August Plea Agreement’s waiver of his rights to appeal or collaterally attack his
conviction and sentence lacks consideration and is therefore unenforceable. See id. at
41–42. The court will address each of these arguments in turn.
A.
Ineffective Assistance of Counsel
Hanks argues that his counsel was ineffective for advising him that he was
eligible for a twenty-year sentencing enhancement under sections 841 and 851 of title
21 of the United States Code. See id. at 29–41. As discussed at length in this court’s
prior Ruling, a defendant is subject to a mandatory minimum sentence of twenty years’
imprisonment if he commits a federal drug offense in violation of section 841(b) “after a
prior conviction for a felony drug offense has become final.” 21 U.S.C.A. § 841; see
also First Ruling on Am. Mot. to Vacate at 6–7. In order to seek such a sentencing
enhancement, the government must file a section 851 information with the court stating
the previous conviction that forms the basis for the sentencing enhancement. See 21
U.S.C. § 851(a)(1); see also United States v. Morales, 560 F.3d 112, 113 (2d Cir. 2009).
9
Hanks argues that his state drug conviction in 2007 does not qualify as “a prior
conviction for a felony drug offense” under section 841, meaning that the government
had no basis for threating to file a section 851 information. See Hanks’s Mem. at 13.
Hanks contends that Attorney Golger failed to investigate whether Hanks’s state
conviction made him eligible for a sentencing enhancement. See id. at 30. Instead,
Hanks claims, Attorney Golger incorrectly told him that, if he went forward with the
suppression hearing, the government would file a section 851 information and, as a
result, Hanks would face a twenty-year mandatory minimum if he were convicted at trial.
See id. at 36. Hanks asserts that Attorney Golger’s professional error caused him to
plead guilty in order to avoid the sentencing enhancement. See id. at 38.
A petitioner claiming ineffective assistance of counsel must satisfy a two-prong
test under Strickland v. Washington, 466 U.S. 668, 687 (1984). First, he must
demonstrate that his counsel’s performance “fell below an objective standard of
reasonableness.” Id. at 688; see also United States v. Abad, 514 F.3d 271, 275 (2d Cir.
2008). Second, he must show that he was actually prejudiced as a result of counsel’s
deficient performance. See Strickland, 466 U.S. at 687, 692; see also Harrington v.
United States, 689 F.3d 124, 129 (2d Cir. 2012). While the petitioner must prove
deficient performance and actual prejudice, “there is no reason for a court to address
both components of the inquiry if the [petitioner] makes an insufficient showing on one.”
Garner v. Lee, 908 F.3d 845, 861 (2d Cir. 2018) (internal quotation marks and
alterations omitted). Where, as here, “it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice, . . . that course should be followed.” Id.
(internal quotation marks omitted).
10
To satisfy the prejudice requirement in the context of a guilty plea, the petitioner
“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.” See Chhabra v.
United States, 720 F.3d 395, 408 (2d Cir. 2013) (quoting Hill v. Lockhart, 474 U.S. 52,
59 (1985)) (internal quotation marks omitted). Moreover, the petitioner “must convince
the court that a decision to reject the plea bargain would have been rational under the
circumstances.” United States v. Kimber, 777 F.3d 553, 563 n.1 (2d Cir. 2015) (internal
quotation marks omitted). Where the “defendant’s specific claim is that counsel has
misled him as to the possible sentence which might result from a plea of guilty, the
issue is whether the defendant was aware of actual sentencing possibilities, and if not,
whether accurate information would have made any difference in his decision to enter a
plea.” United States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005) (quoting Ventura v.
Meachum, 957 F.2d 1048, 1058 (2d Cir. 1992)) (internal quotation marks and
alterations omitted). In Chhabra, the Second Circuit identified four factors that the
district court should consider when determining whether a defendant would have
decided not to plead guilty and insisted instead on going to trial, namely: “[1] whether
the defendant pleaded guilty in spite of knowing that the advice on which he claims to
have relied might be inaccurate, [2] whether pleading guilty gained him a benefit in the
form of more lenient sentencing, [3] whether the defendant advanced any basis for
doubting the strength of the government’s case against him, and [4] whether the
government would have been free to prosecute the defendant on counts in addition to
those on which he pleaded guilty.” Chhabra, 720 F.3d at 408. However, the Second
Circuit has also cautioned against “adopt[ing] mechanistic rules for determining whether
11
an adequate showing of prejudice has been made[.]” Arteca, 411 F.3d at 321. Instead,
it has stressed that “the court should, before reaching a conclusion as to prejudice, take
into account all relevant factors.” Gonzalez v. United States, 722 F.3d 118, 132 (2d Cir.
2013).
In this case, the court need not decide whether Attorney Golger’s performance
fell below an objective standard of reasonableness because it concludes that Hanks’s
ineffective assistance claim fails to satisfy the prejudice prong of the Strickland test.
Assuming that Attorney Golger misinformed Hanks as to his sentencing possibilities by
erroneously telling him that he was eligible for a section 851 sentencing enhancement,
the court finds that accurate information would not have made “any difference in his
decision to enter a plea.” Arteca, 411 F.3d at 320. The court therefore assumes for the
purpose of these analyses that Attorney Golger incorrectly told Hanks that he would
face a twenty-year mandatory minimum if the government filed a section 851
information and Hanks was convicted at trial.
Beginning with the first Chhabra factor, the record contains evidence suggesting
that “[Hanks] pleaded guilty in spite of knowing that the advice on which he claims to
have relied might be incorrect[.]” Chhabra, 720 F.3d at 408. At the evidentiary hearing,
Attorney Golger testified that, in the months leading up to Hanks’s guilty plea on August
21, Hanks had said that he was not concerned about the government filing a section
851 information because he was confident that his 2007 guilty plea in state court was an
Alford plea, thus making him ineligible for a sentencing enhancement. Hanks does not
dispute this testimony, even though it suggests that, prior to pleading guilty, Hanks did
not view Attorney Golger’s advice as to Hanks’s eligibility for a section 851 sentencing
12
enhancement as correct. Nor does Hanks attempt to reconcile this testimony with his
own assertions that, on August 21, he fully believed Attorney Golger when he
represented that Hanks was eligible for a sentencing enhancement. In particular, the
record does not contain evidence that would help explain why Hanks doubted his
eligibility for a sentencing enhancement prior to August 21, but harbored no such doubts
on August 21. Instead, Hanks’s claim that he did not doubt Attorney Golger’s legal
advice on August 21 rests solely on his self-serving testimony, which this court does not
credit. Accordingly, the court concludes that the first Chhabra factor weighs against a
finding of actual prejudice because Hanks pled guilty in spite of harboring some doubts
about the accuracy of Attorney Golger’s legal advice concerning his exposure to a
section 851 sentencing enhancement.1
Turning to the second Chhabra factor, the court notes that, even if Hanks gained
nothing from the government’s promise to not seek a sentencing enhancement, Hanks
nonetheless received several benefits from pleading guilty. First, the August Plea
Agreement lowered his mandatory minimum sentence from ten years of imprisonment
to five years of imprisonment, and it reduced his maximum sentence of imprisonment
from life to forty years. During the evidentiary hearing, Hanks attempted to discount
these reductions in sentencing exposure, testifying that the August Plea Agreement’s
five-year mandatory minimum “didn’t mean anything” to him because his expected term
1
Furthermore, even the court were to find that the first Chhabra factor weighed in favor of Hanks,
it would nevertheless conclude that Hanks has failed to satisfy the prejudice prong of the Strickland test.
The Chhabra factors are not individually dispositive, but instead guide the court’s analysis in determining
whether the petitioner has been prejudiced in light of “all relevant factors.” Gonzalez, 722 F.3d at 132.
As discussed below, the remaining three Chhabra factors, as well as other relevant considerations,
establish that Hanks has not carried his burden of showing actual prejudice. See Patterson v. United
States, No. 12 CR. 823 (JFK), 2016 WL 3162069, at *5 (S.D.N.Y. June 2, 2016) (finding no prejudice
where three of the four Chhabra factors weighed against the petitioner).
13
of imprisonment under the Sentencing Guidelines was well above ten years. Transcript
of Evidentiary Hearing from October 2, 2018 (“Evidentiary Hearing Tr.”) (Doc. No. 38) at
101:2–16. Hanks forgets, however, that the Sentencing Guidelines are not binding on
this court. See United States v. Toro, 121 F. App'x 925 (2d Cir. 2005). Thus, as this
court explained to Hanks at his plea colloquy, Hanks’s sentence could potentially fall
anywhere between the statutory minimum and maximum sentence of imprisonment. As
a result, courts in this Circuit have routinely found that a defendant receives a benefit
from pleading guilty when the plea agreement reduces his minimum or maximum
exposure to imprisonment. See, e.g., Rodriguez v. United States, 185 F. Supp. 2d 311,
313 (S.D.N.Y. 2002); Nicholson v. United States, No. 09-CR-414 RJS, 2014 WL
4693615, at *9 (S.D.N.Y. Sept. 22, 2014), aff'd, 638 F. App'x 40 (2d Cir. 2016).
Moreover, Hanks overlooks the fact that the government promised to recommend a twolevel reduction from his adjusted offense level for acceptance of responsibility. The
Second Circuit has recognized that such a recommendation is a benefit that defendants
lose if they go to trial rather than plead guilty. See Arteca, 411 F.3d at 321.
With respect to the third Chhabra factor, Hanks has not advanced a basis for
doubting the strength of the government’s case against him. While Hanks disputes
whether the government could have filed a superseding indictment charging him with a
violation of section 924(c) of title 18 of the United States, see Supplementation of
Record (Doc. No. 39) at 7–15, he does not attack the strength of the government’s case
for prosecuting the four charges in the original Indictment. See Padilla v. Keane, 331 F.
Supp. 2d 209, 218 (S.D.N.Y. 2004) (finding no prejudice where the petitioner did not
indicate any weaknesses in the government’s case against him). On the other hand,
14
Attorney Golger testified that the evidence that the government had accumulated
against Hanks was “overwhelming.” Evidentiary Hearing Tr. at 66:19. The court credits
this testimony. During Hanks’s plea colloquy, the government represented that, had the
case gone to trial, it intended to introduce into evidence, inter alia, wiretapped
conversations and text messages, video and photographs taken during physical
surveillance, testimony from cooperating witnesses who were involved in the alleged
conspiracy to distribute narcotics, testimony from witnesses who had purchased
narcotics from Hanks, and the narcotics and firearms that were seized at the time of the
arrest. It is also noteworthy that seven of Hanks’s thirteen co-defendants had pled
guilty before Hanks accepted a plea deal, as courts in this Circuit have treated guilty
pleas by a petitioner’s co-defendants as indicative of the strength of the prosecution’s
case against the petitioner. See Arteca, 411 F.3d at 321; Alvarez-Estevez v. United
States, No. 13 CR. 380 (JFK), 2016 WL 427903, at *8 (S.D.N.Y. Feb. 3,
2016), certificate of appealability denied (Aug. 31, 2016) (noting that all of the
petitioner’s co-defendants chose to plead guilty when assessing the strength of the
government’s case against the petitioner).
The fourth Chhabra factor also weighs against Hanks because the August Plea
Agreement resulted in the dismissal of the three remaining counts in the Indictment. At
the evidentiary hearing, Hanks’s counsel sought to discount the benefits of this
dismissal by asserting, without any explanation, that convictions on these three counts
would not have increased Hanks’s offense level under the Sentencing Guidelines. It is
risky, however, to engage in such forecasting. Given that trials are inherently
unpredictable, neither this court nor Hanks’s present counsel can conclude with
15
absolute certainty that the government’s prosecution of the remaining counts in the
Indictment would not have exposed Hanks to greater liability and punishment. See
Phan v. McCoy, No. 94-CV-1596 (RSP/GJD), 1997 WL 570690, at *6 (N.D.N.Y. Aug.
28, 1997) (noting “the inherent risks of going to trial”); White v. Greene, No. 05-CV0545(VEB), 2010 WL 2104290, at *5 (W.D.N.Y. May 24, 2010) (“Given the inherently
unpredictable nature of trial, it is impossible to know with certainty how events are going
to unfold and what their impact on myriad, intertwined tactical decisions will be.”).2
Thus, at a minimum, the August Plea Agreement allowed Hanks to avoid the
unforeseen and unforeseeable risks of defending against the three dismissed counts.
See United States v. Reap, 391 F. App'x 99, 102 (2d Cir. 2010) (noting that the
defendant benefited from his plea deal because he, inter alia, “avoided having to defend
against the government’s case . . . [and] eliminated any element of risk in proceeding to
trial”). Put differently, the government’s dismissal of the remainder of the Indictment
benefited Hanks by providing him with greater certainty as to the extent of his liability
and punishment. See United States v. Morgan, 406 F.3d 135, 137 (2d Cir.2005) (noting
that the allocation of risk between the defendant and the government is a benefit of the
plea agreement process).3 As a result, the fourth Chhabra factor favors a finding of no
prejudice in this case.
2
Indeed, it appears that Hanks has overlooked at least one modest benefit that he gained from
not being convicted on the dismissed counts, namely: he was not required to pay a special assessment
on each of those counts. See United States v. Rosario, 111 F.3d 293, 301 (2d Cir. 1997) (recognizing
that special assessments are a form of punishment).
3
The court also notes that, in Chhabra, the Second Circuit did not suggest that the dismissal of
pending counts mattered to a prejudice analysis only when those counts increased a defendant’s offense
level under the Sentencing Guidelines. Instead, the court broadly articulated the factor as “whether the
government would have been free to prosecute the defendant on counts in addition to those on which he
pleaded guilty.” Chhabra, 720 F.3d at 408.
16
Furthermore, Hanks does not identify other relevant factors that are sufficient to
support a prejudice finding. In support of his claim that he would have gone to trial but
for the threat of a twenty-year mandatory minimum, Hanks relies on his own testimony
and the affidavits of two family members. Specifically, Hanks testified at the evidentiary
hearing that his conversations with Attorney Golger on August 21 led him to believe that
he was eligible for a section 851 enhancement and that the Government would file a
section 851 information if Hanks went forward with the hearing on his Motion to
Suppress. Hanks further testified that he only decided to plead guilty on August 21 in
order to avoid the twenty-year mandatory minimum. These types of “self-serving and
conclusory statement[s]” are generally insufficient to show prejudice in the context of
guilty pleas. Arteca, 411 F.3d at 322. In this case, however, Hanks’s statements find
some corroboration in the Affidavits submitted by his mother and the mother of his child,
both of whom were present at the August 21 hearing. See Hanks’s Exhibit 18, Affidavit
of Tracy Lyles; Hanks’s Exhibit 19, Affidavit of Shameka Rorie. In their Affidavits, these
women recount how Attorney Golger approached them just prior to the start of the
hearing, told them that Hanks remained determined to proceed to trial, and asked them
to convince Hanks to plead guilty in light of the sentencing enhancement that he would
face if he went to trial and was convicted. The two women further represent that they
spoke with Hanks before the hearing began and convinced him that a plea deal was in
his best interest.
Notwithstanding these Affidavits, the record as whole does not support Hanks’s
claim that the threat of a section 851 sentencing enhancement was the deciding factor
in his decision to plead guilty on August 21. First, the court notes that this threat was
17
present in the April Plea Agreement, which provided that, “[i]n light of this plea
agreement, the Government agrees that it will not file the information required by § 851,
and therefore [Hanks] will not be exposed to a mandatory term of twenty years’
imprisonment.” April Plea Agreement at 7. This language clearly ties the government’s
decision to forgo the filing of a section 851 information to Hanks’s decision to plead
guilty. Moreover, Hanks testified at the evidentiary hearing that he reviewed the April
Plea Agreement with Attorney Golger, including the provision concerning the section
851 sentencing enhancement. Thus, more than four months before pleading guilty,
Hanks was on notice of the government’s threat to pursue a sentencing enhancement if
Hanks chose to go to trial. The fact that this threat was present when Hanks declined to
accept each of the six preceding plea agreements undercuts his claim that he only pled
guilty because he discovered on August 21 that the government would, in fact, follow
through on its threats to file a section 851 information.
Second, although Hanks argues that the sentencing enhancement was “the crux
of [his] decision” to plead guilty, he also acknowledges that he remained determined to
go to trial even after Attorney Golger informed him on August 21 that the government
would withdraw its plea deal and file a section 851 information if Hanks proceeded with
the suppression hearing. See Reply at 12. In other words, even after spending thirty
minutes with Attorney Golger discussing the government’s threat to seek an enhanced
twenty-year mandatory minimum, Hanks remained steadfast in his decision to go to
trial. It was only at the suppression hearing, after Hanks entered the courtroom and
spoke with his family, that he decided to enter a guilty plea. This lag between Attorney
Golger’s conveyance of the government’s threat and Hanks’s change of plea weakens
18
the causal connection between the two, raising the possibility that intervening factors,
such as Hanks’s conversations with his family, caused the change of plea. Although
Hanks attributes this lag to the fact that the prospects of a twenty-year mandatory
minimum had not “sunk in yet,” Evidentiary Hearing Tr. at 108:22–24, the court does not
credit this explanation in light of the evidence in the record showing that Hanks had
been on notice of such a threat since April. As noted above, August 21 was not the first
time that Hanks was confronted with the risk that he would face a twenty-year
mandatory minimum if he proceeded to trial. See, supra, at 17–18. Thus, Hanks
should not have been surprised when the government indicated on August 21 that it
intended to make good on its threats to seek a section 851 enhancement.
Finally, the court notes that Hanks expressed no concerns about the threat of a
section 851 enhancement during his hour-and-a-half plea colloquy, even though he did
voice a number of concerns about other provisions in the August Plea Agreement. For
example, Hanks asked the court several questions about the Agreement’s forfeiture
provisions, see Plea Colloquy Tr. at 5:18–9:3; how the court aggregated drug quantities
for the purposes of sentencing, see id. at 10:2–15:4; and whether the plea agreement
limited his ability to contest certain issues of fact relevant to his term of imprisonment
under the Sentencing Guidelines, see id. at 15:11–18:14. These questions are notable
for two reasons. First, they suggest that, notwithstanding Hanks’s understanding that
the government would file a section 851 information if he proceeded with the
suppression hearing, Hanks harbored other concerns about the plea deal that might
have led him to not plead guilty on August 21. In other words, these questions indicate
that Hanks had not yet made up his mind to plead guilty, and further that his decision to
19
plead guilty depended, in part, on the court’s responses to his concerns about issues
that were important to him but none of which related to the section 851 sentencing
enhancement. Second, these questions highlight Hanks’s willingness to vocalize
concerns that he had about his plea deal, including concerns that he had already
discussed with Attorney Golger. According to Attorney Golger’s uncontested
representations at the plea colloquy, Attorney Golger had previously discussed with
Hanks several of the questions that Hanks posed to the court during the plea colloquy.
Hanks nevertheless wanted to confirm the accuracy of Attorney Golger’s advice with the
court. In light of Hanks’s willingness to seek clarification and confirmation from the court
on legal issues that he had already discussed with counsel, his failure to voice any
concerns about the section 851 sentencing enhancement seriously calls into question
his claim that the threat of this sentencing enhancement was pivotal to his decision to
plead guilty.
Taking all of these relevant factors into consideration, the court concludes that
Hanks has not met his burden of showing that there is a reasonable probability that, but
for Attorney Golger’s errors, he would not have pleaded guilty and would have insisted
on going to trial. Accordingly, the court dismisses Hanks’s ineffective assistance claim
without reaching the issue of whether Attorney Golger’s performance was deficient
under Strickland’s first prong.
B.
Knowing and Voluntary Plea
Hanks asserts that he did not voluntarily, knowingly, and intelligently enter into a
plea agreement on August 21. See Hanks’s Mem. at 37 –38, 43–45. This involuntary
plea claim rests on two bases. First, Hank argues that his plea was rendered
20
involuntary by Attorney Golger’s inaccurate advice about his exposure to a sentencing
enhancement. See id. at 37–38. Second, he argues that the circumstances
surrounding his guilty plea on August 21 were coercive. See id. at 43–45. In particular,
he contends that the government’s empty threat to file a section 851 information,
combined with the short period of time given to Hanks to respond to this threat, forced
him to plead guilty. See id.
It is well settled that “a guilty plea violates due process and is therefore invalid if
not entered voluntarily and intelligently.” United States v. Yang Chia Tien, 720 F.3d
464, 468 (2d Cir. 2013). A plea is deemed voluntary when “it is not the product of actual
or threatened physical harm, mental coercion overbearing the defendant's will, or the
defendant's sheer inability to weigh his options rationally.” Miller v. Angliker, 848 F.2d
1312, 1320 (2d Cir. 1988). It is deemed intelligent when “the [defendant] had the advice
of counsel and understood the consequences of his plea, even if only in a fairly
rudimentary way[.]” Id. As the Supreme Court has explained, “[t]he longstanding test
for determining the validity of a guilty plea is whether the plea represents a voluntary
and intelligent choice among the alternative courses of action open to the defendant.”
Hill v. Lockhart, 474 U.S. 52, 56 (1985) (internal quotation marks omitted). However,
where the petitioner claims that his plea was rendered involuntary as a result of
ineffective assistance of counsel, that claim must be analyzed under Strickland’s twopart test. See id. (applying the two-part Strickland test where the petitioner claimed that
his plea was involuntary because “his attorney supplied him with information . . . that
was erroneous”). In other words, petitioners cannot avoid the requirements of
Strickland by simply relabeling their ineffective assistance claims as involuntary plea
21
claims. See Forest v. United States, No. CIV A 3:08CV777(JCH), 2008 WL 5329296, at
*3 (D. Conn. Dec. 18, 2008) (applying Strickland when the grounds for the petitioner’s
involuntary plea claim were “intertwined” with the grounds for his ineffective assistance
claim). Instead, Strickland applies whenever a petitioner’s involuntary plea was the
product of ineffective assistance of counsel. See United States v. Hultman, No.
3:00CR13(JBA), 2004 WL 1920696, at *3 (D. Conn. Aug. 25, 2004) (“Where, as here, a
petitioner claims his plea was involuntary as a result of ineffective assistance of
counsel, to succeed, petitioner must satisfy the two-part test of Strickland[.]”).
In this case, the record does not support Hanks’s claim that he did not voluntarily,
knowingly, and intelligently plead guilty on August 21. To begin, neither Attorney
Golger’s legal advice nor the government’s threats of a sentencing enhancement
provide a basis for Hanks’s involuntary plea claim because both are derivative of his
ineffective assistance claim. In particular, if Attorney Golger had correctly informed
Hanks that he was not eligible for a sentencing enhancement, then Hanks would not
have erroneously believed that he would face a twenty-year mandatory minimum if he
did not plead guilty. Furthermore, if Hanks knew that he did not qualify for such a
sentencing enhancement, then the government’s threats to file a section 851
information would have lost most, if not all, of their coercive effects. In other words,
these purported grounds for Hanks’s involuntary plea claim are inseparable from the
bases for his ineffective assistance claim. Thus, to the extent that Hanks’s involuntary
plea claim rests on Attorney Golger’s legal advice concerning the section 851
enhancement or the government’s threats to seek such an enhancement, it is
22
subsumed by Hanks’s ineffective assistance claim, which this court has already
dismissed.
Furthermore, the record shows that Hanks had adequate time and opportunity on
August 21 to consider his options, notwithstanding his assertions to the contrary. After
Hanks indicated to the court his intentions to plead guilty, the court conducted a plea
colloquy that lasted for nearly an hour and a half. At the start of this proceeding, the
court informed Hanks that he should feel free to notify the court of any questions or
concerns that he had about the August Plea Agreement. As noted above, see, supra,
at 19–20, Hanks made good use of this invitation, asking the court a number of
questions during the plea colloquy. Hanks also stated under oath that he had sufficient
time to discuss his case with Attorney Golger, see Plea Colloquy Tr. at 23:15–19; that
he was satisfied with Attorney Golger’s representation and services, see id. at 23:10–
12; that he understood the consequences of pleading guilty, see id. at 48:13–16; that no
one had forced, threatened, or coerced him into pleading guilty, see id. at 47:16–18;
and that he was pleading guilty voluntarily and of his own free will, see id. at 48:8–12,
51:11–13. Hanks’s statements “carry a strong presumption of veracity,” and courts in
this Circuit do not lightly disregard the solemn declarations made by a defendant under
oath in a plea allocution. United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997); see
also United States v. Frayler, 229 F.3d 1136, 1136 (2d Cir. 2000) (discrediting the
petitioner’s claim that he had insufficient time to consider the plea because it
contradicted the “unequivocal admissions under oath” that he made at his plea
allocution).
23
Hanks offers no argument for why this court should disregard the statements that
he made during his plea colloquy, and the court sees no reason to do so. Instead, the
court finds that the record does not support Hanks’s assertions that time pressures or
other coercive factors rendered his guilty plea invalid. Accordingly, the court dismisses
Hanks’s claim that his plea was not voluntarily, knowingly, and intelligently made.
C.
Waiver of Appeal and Collateral Attack Rights
Finally, Hanks argues that he did not receive consideration for his waiver of
appellate and collateral attack rights, and that the waiver is therefore unenforceable. In
particular, Hanks notes the following language in the August Plea Agreement:
As noted above, the Government agrees that it will not file for a sentencing
enhancement under 21 U.S.C. § 851. In exchange, the defendant agrees
not to appeal or collaterally attack his conviction in any proceeding,
including but not limited to a motion under 28 U.S.C. § 2255 and/or § 2241,
except a claim of ineffective assistance of counsel.
August Plea Agreement at 7. Hanks argues that this language – and specifically the
use of the words “in exchange” – shows that the consideration for Hanks’s waiver of
appellate and collateral attack rights was the government’s promise to not file a section
851 information. However, because Hanks was not eligible for a sentencing
enhancement, Hanks contends that the government’s promise to not file a section 851
information was of no value to Hanks. Thus, Hanks argues, the August Plea
Agreement’s waiver provision is unenforceable for lack of consideration.
It is well established that “a guilty plea can be challenged for contractual
invalidity, including invalidity based on a lack of consideration.” United States v.
Brunetti, 376 F.3d 93, 95 (2d Cir. 2004). In examining a plea agreement’s validity,
“[courts] construe plea agreements according to contract law principles.” United States
24
v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011) (internal quotation marks omitted). However,
they also “temper the application of ordinary contract principles with special due process
concerns for fairness and the adequacy of procedural safeguards.” United States v.
Lutchman, No. 17-291, 2018 WL 6362603, at *2 (2d Cir. Dec. 6, 2018). In light of these
concerns, the Second Circuit has directed that plea agreements should be construed
“strictly against the Government,” and it has further authorized district courts to “apply
general fairness principles to invalidate particular terms of a plea agreement.” United
States v. Ready, 82 F.3d 551, 559 (2d Cir. 1996).
In this case, Hanks’s waiver of appeal and collateral attack rights was supported
by adequate consideration. Assuming that the government’s promise to not file a
section 851 information does not constitute valid consideration, Hanks received several
other benefits from the August Plea Agreement, including (1) the government’s
recommendation of a two-level reduction for Hanks’s acceptance of responsibility, and
(2) significant reductions in the minimum and maximum terms of imprisonment that
Hanks faced. These benefits constitute sufficient consideration for the promises that
Hanks made in the August Plea Agreement, including his waiver of appeal and
collateral attack rights. See United States v. Brunetti, 376 F.3d 93, 95 (2d Cir. 2004)
(finding adequate consideration where the plea agreement gave the defendant merely
“a chance at a reduced sentence”) (emphasis in original); United States v. Reap, 391 F.
App'x 99, 102 (2d Cir. 2010) (finding that the defendant received adequate
consideration from a plea agreement that allowed the defendant to avoid having to
defend against the government’s case and recommended a three-level reduction in his
offense level for acceptance of responsibility).
25
Furthermore, the court notes that these benefits serve as consideration for
Hanks’s waiver of appeal and collateral attack rights even though they do not appear in
the waiver provision itself. Although the waiver provision provides that the government
will not file a section 851 information “[i]n exchange” for Hanks’s promise to not appeal
or collaterally attack his conviction, this language does not prevent the waiver provision
from being supported by consideration found elsewhere in the August Plea Agreement.
“It is axiomatic that ‘when interpreting a contract, [courts] must look at the contract as a
whole, consider all relevant portions together and, if possible, give operative effect to
every provision in order to reach a reasonable overall result.’” Zahringer v. Zahringer,
124 Conn. App. 672, 684 (2010) (quoting Office of Labor Relations v. New England
Health Care Employees Union, Dist. 1199, AFL-CIO, 288 Conn. 223, 231–32 (2008))
(internal quotation marks omitted). Hanks does not point to any cases in which a court
deviated from this well-established rule by considering less than the entire contract
when determining whether there exists adequate consideration. Nor has the court’s
own research identified any cases requiring that consideration for a promise be located
in the same paragraph where the promise itself was made. See Lewis v. Don King
Prods., Inc., 94 F. Supp. 2d 430, 442 (S.D.N.Y. 2000) (“[I]n determining whether there is
consideration, one must look at the entire agreement, not merely at a single
paragraph.”) (citing, inter alia, 1 E. Allan Farnsworth, Farnsworth On Contracts § 2.3, at
76 (2d ed.1998)). Indeed, such a requirement would run contrary to another hornbook
principle of contract law, namely: that a single promise given by one party may serve as
consideration for multiple promises given by another party. See Restatement (Second)
Contracts § 79 (consideration need not be equivalent); id. at § 80 (multiple promises
26
from one side may be exchanged for one promise from the other). Thus, even where
some of the consideration to a contract is invalid, a contract may still be enforceable so
long as the remainder of the consideration is valid. See Osborne v. Locke Steel Chain
Co., 153 Conn. 527, 533–34 (1966) (concluding that a contract was enforceable even
though only part of the consideration was valid); Restatement (Second) of Contracts §
80 (1981) (“The fact that part of what is bargained for would not have been
consideration if that part alone had been bargained for does not prevent the whole from
being consideration.”).
In accordance with these ordinary principles of contract law, the Second Circuit
has considered the entirety of a plea agreement when determining whether a
defendant’s waiver of appeal and collateral attack rights is supported by consideration.
Cf. Lutchman, 2018 WL 6362603, at *2 (finding that the defendant’s waiver of the right
to appeal his sentence was unsupported by consideration because the defendant
“received no benefit from his plea beyond what he would have gotten by pleading guilty
without an agreement”); United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir.
1993) (“In no circumstance, however, may a defendant, who has secured the benefits of
a plea agreement and knowingly and voluntarily waived the right to appeal a certain
sentence, then appeal the merits of a sentence conforming to the agreement.”). Hanks
has not identified any special due process concerns that might temper the application of
ordinary contract law, and none are apparent to this court. Accordingly, the court finds
that the government provided Hanks with adequate consideration for pleading guilty and
waiving his appeal and collateral attack rights.
27
VI. CONCLUSION
For the reasons set forth above, Hanks’s Amended Motion to Vacate (Doc. No.
18) is DENIED.
Having denied Hanks’s Amended Motion to Vacate, the court must now
determine whether to issue a certificate of appealability pursuant to section 2253(c)(1)
of title 28 of the United States Code. The court may issue such a certificate “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). As the Second Circuit has explained, “a substantial showing does
not compel a petitioner to demonstrate that he would prevail on the merits, but merely
that the issues involved in his case are debatable among jurists of reason; that a court
could resolve the issues in a different manner; or that the questions are adequate to
deserve encouragement to proceed further.” Lucidore v. New York State Div. of Parole,
209 F.3d 107, 112 (2d Cir. 2000) (emphasis in original, internal quotation marks and
alterations omitted). Although the court does not believe that it erred in denying
Hanks’s Motion to Vacate, Hanks has made a substantial showing of the denial of his
constitutional right to the effective assistance of counsel. Accordingly, the court will
issue a certificate of appealability.
The Clerk is hereby directed to close this case.
SO ORDERED.
Dated at New Haven, Connecticut this 2nd day of January, 2019.
/s/ Janet C. Hall _
Janet C. Hall
United States District Judge
28
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