Prosper v. USA
ORDER: The Petition Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 1 ) is hereby DENIED for the reasons set forth in the attached ruling. The court will not issue a certificate of appealability because the petitioner has not made a substantial showing of the denial of a constitutional right. The Clerk shall close this case. Signed by Judge Alvin W. Thompson on 4/27/2021. (Mata, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Civ. No. 3:18-cv-00090-AWT
UNITED STATES OF AMERICA,
RULING ON MOTION PURSUANT TO 28 U.S.C. ' 2255
Petitioner Alejandro Prosper, proceeding pro se, filed a
petition pursuant to 28 U.S.C. ' 2255 to vacate, set aside or
correct his sentence.
As to one aspect of the petitioner=s
claims, the court concluded that a hearing was appropriate and
appointed counsel to represent the petitioner for purposes of
For the reasons set forth below, the petitioner=s
contentions are without merit and his motion is being denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 18, 2016, Prosper pleaded guilty to the
conspiracy charged in Count One of the Second Superseding
Indictment. The parties agreed in the plea agreement that the
total offense level was 21, based on a stipulated quantity of
not less than 2,000 oxycodone 30 mg tablets, and that the
defendant was in Criminal History Category IV.
This resulted in
an advisory Guidelines range for imprisonment of 57 to 71
At the plea hearing, Magistrate Judge Merriam asked the
defendant if he was satisfied with his attorney and, based on
the defendant’s response, the court gave him an opportunity to
speak to the court outside of the presence of government
counsel. Prosper then stated that while he was satisfied with
his counsel’s explanation of the plea agreement, he thought he
could have gotten a better deal with respect to the quantity of
narcotics involved had he been represented by a different
attorney. See 3:15-cr-00168-AWT-11 Plea Transcript (ECF No. 725)
at 14-17. Court was recessed so the defendant and his counsel
could speak privately. Once Prosper and his attorney finished
their conversation, Magistrate Judge Merriam asked Prosper if he
was comfortable with the plea agreement and his lawyer and he
replied as follows:
THE COURT: All right, and are you comfortable now
with the plea agreement? Or -THE DEFENDANT: Yeah, I understand it a little
THE COURT: Okay. Are you ready to go forward today?
THE DEFENDANT: Yes.
THE COURT: All right. So have you received enough
information from Mr. Brown?
THE DEFENDANT: Yes.
THE COURT: And are you satisfied with his advice?
THE DEFENDANT: Yes.
Id. at 17.
The plea agreement contained an appellate waiver.
defendant agreed not to appeal or collaterally attack the
sentence imposed by the court if the Asentence does not exceed 71
months, a three-year term of supervised release, a $100 special
assessment, and a fine of $1 million . . . .@
11 Plea Agreement (ECF No. 405) at 4. Government counsel talked
about the appellate waiver as part of a review of the terms of
the plea agreement. A bit later, Magistrate Judge Merriam
specifically directed the defendant=s attention to the part of
the plea agreement that set forth the appellate waiver. She had
the defendant sit down so he could read it better, stating, “And
Mr. Prosper, if you want to be seated, I want to make sure you
can really read that while we're talking about it.@
Transcript at 37. The judge then explained the appellate waiver
in detail to the defendant and asked him if he understood it.
Prosper responded in the affirmative. Magistrate Judge Merriam
made a finding and recommendation that the guilty plea should be
accepted, and it was accepted.
The Presentence Report concluded that the defendant was
actually in Criminal History Category V, as opposed to Criminal
History Category IV.
However, in light of the parties= plea
agreement, the court departed pursuant to United States v.
Fernandez, 877 F.3d 1138 (2d Cir. 1989) to the agreed upon
advisory Guideline range of 57 to 71 months. The court imposed a
sentence of 57 months of imprisonment, to be served concurrently
with the state sentence the defendant was serving and to be
followed by a four-year term of supervised release. Because the
appellate waiver only covered up to a three-year term of
supervised release, the court advised the defendant that he had
the right to appeal the imposition of a four-year term of
supervised release. The defendant replied in the affirmative to
the court=s inquiry as to whether he understood his right to
The petition sets forth a number of claims. In Claim One,
Prosper claims that his waiver of his right to appeal and
collaterally attack his sentence was entered into Awithout full
understanding of the rights he was relinquishing.@
No. ) at 6 of 9. Claim Two is a claim for ineffective
assistance of counsel, which has three parts: (1) the defendant=s
counsel failed to object to misstatements in the Presentence
Report; (2) the defendant’s counsel failed to argue for a
concurrent sentencing departure under ' 5G1.3 of the Sentencing
Guidelines; and (3) the defendant’s counsel failed to file a
direct appeal of the sentence when requested to do so. In Claim
Three, Prosper contends that he “was denied procedural due
process when the district court failed to apply the parsimony
principle.” Petition (ECF No. 1) at 7.
An evidentiary hearing was held with respect to the claim
that the defendant’s counsel failed to file a direct appeal of
the sentence when asked to do so.
II. LEGAL STANDARD
Federal prisoners can challenge a criminal sentence
pursuant to 28 U.S.C. § 2255 “only for a constitutional error, a
lack of jurisdiction in the sentencing court, or an error of law
or fact that constitutes a fundamental defect which inherently
results in complete miscarriage of justice.” Graziano v. United
States, 83 F.3d 587, 590 (2d Cir. 1996) (internal citation and
quotation marks omitted). A petitioner may obtain review of his
claims if he has raised them at trial or on direct appeal; if he
did not, such a procedural default can be overcome by a showing
of “cause” and “prejudice”, Ciak v. United States, 59 F.3d 296,
302 (2d Cir. 1995) abrogated on other grounds by Mickens v.
Taylor, 535 U.S. 162 (2002) (quoting Wainwright v. Sykes, 433
U.S. 72, 87 (1977)), or a showing of constitutionally
ineffective assistance of counsel, see Johnson v. United States,
313 F.3d 815, 817 (2d Cir. 2002); Murray v. Carrier, 477 U.S.
478, 487-88 (1986).
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). However, “[t]he language of the
statute does not strip the district courts of all discretion to
exercise their common sense.” Machibroda v. United States, 368
U.S. 487, 495 (1962). In making its determination regarding the
necessity for a hearing, a district court may draw upon its
personal knowledge and recollection of the case. See Blackledge
v. Allison, 431 U.S. 63, 74 n.4 (1997); United States v. Aiello,
900 F.2d 528, 534 (2d Cir. 1990). Thus, a § 2255 petition, or
any part of it, may be dismissed without a hearing if, after a
review of the record, the court determines that the motion is
without merit because the allegations are insufficient as a
matter of law.
The defendant has waived his right to raise all of his
claims except with respect to the imposition of a term of
supervised release that was more than three years. His
contentions with respect to his attorney not filing an appeal
with respect to the four-year term of supervised release are
A. Knowing and Voluntary Waiver
"[I]n no circumstances ... 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. Such a remedy
would render the plea bargaining process and the resulting
agreement meaningless." United States v. Hawkins, 513 F.3d 59,
61 (2d Cir. 2008), cert. denied, 553 U.S. 1060 (2008). See also
United States v. Djelevic, 161 F.3d 104, 106 (2d Cir. 1998) (per
curiam) (“It is by now well-settled that a defendant’s knowing
and voluntary waiver of his right to appeal a sentence within an
agreed upon guideline range is enforceable.”). A defendant’s
waiver of his right to file a collateral attack under § 2255 is
as enforceable as a waiver of his rights to file a direct
appeal. See Garcia-Santos v. United States, 273
F.3d 506, 509 (2d Cir. 2001) (“The reasons for enforcing waivers
of direct appeal in [cases where the grounds for appeal arose
after the plea agreement was entered] lead us to the same
conclusion as to waivers of collateral attack under § 2255.”).
Although there are certain limited exceptions to this rule,
none are applicable here. The exceptions are:
when the waiver was not made knowingly, voluntarily, and
competently, when the sentence was imposed based on
constitutionally impermissible factors, such as ethnic,
racial or other prohibited biases, when the Government
breached the plea agreement, or when the sentencing court
failed to enunciate any rationale for the defendant's
sentence, thus amounting to an abdication of judicial
responsibility . . . .
United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000)
(quotation marks and citations omitted).
Prosper contends that his waiver of his right to
collaterally attack his sentence was not knowing and voluntary.
But the record establishes that he knowingly and voluntarily
entered into a plea agreement with a valid and enforceable
waiver of his right to collaterally attack his sentence. As set
forth above, the waiver and its consequences were discussed, at
length, several times throughout the plea hearing before
Magistrate Judge Merriam. The waiver was discussed again at the
end of the sentencing hearing and Prosper did not voice any
concern about the waiver or his understanding of the provision
in the plea agreement.
Prosper argues that
Petitioner submits that he as a layperson standing before the
court while entering of the plea of guilty, was totally
reliant on the advice of counsel. In this regard, [i]t [i]s
unfair to presume that from whatever explanation counsel
might offer beyond reading the waiver provision, a reasonably
educated layperson will digest how little recourse exists to
bring a post-conviction challenge.
Petition (ECF No. 1) at 6.
This contention ignores what
actually happened at the plea hearing. As set forth above,
Prosper was not totally reliant on whatever explanation defense
counsel offered because the judge took pains to explain the
waiver provision to Prosper.
B. No Appeal of the Four-Year Supervised Release Term
The defendant waived the imposition of a term of supervised
release if it did not exceed three years, and the court imposed
a four-year term of supervised release.
Accordingly, his waiver
of the right to appeal or collaterally attack his sentence did
not cover the supervised release term. The defendant asserts
that he was denied effective assistance of counsel because the
attorney who represented him at sentencing failed to file a
direct appeal of the sentence when requested to do so.
To prevail on an ineffective assistance of counsel claim,
the petitioner must show, first, that his “counsel’s
representation fell below an objective standard of
reasonableness” and, second, 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, 688, 694 (1984).
To satisfy the first, or “performance,” prong, the defendant
must show that counsel’s performance was “outside the wide
range of professionally competent assistance,” [Strickland,
466 U.S.] at 690, and to satisfy the second, or “prejudice,”
prong, the defendant must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different,” id.
Brown v. Artuz, 124 F.3d 73, 79-80 (2d Cir. 1997). In this
context, “there is no relevant difference between an
[attorney’s] act of commission and an act of omission.” Padilla
v. Kentucky, 559 U.S. 356, 370 (2010) (internal quotation marks
omitted). Rather, “[t]he court must then determine whether, in
light of all the circumstances, the identified acts or omissions
were outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690.
Failure by defense counsel to file a direct appeal of his
client’s sentence when requested to do so is clearly outside
range of professionally competent assistance. However, the
evidence at the hearing shows that did not occur here.
As an initial matter the court notes that although the
petition alleges that defense counsel refused to file an appeal,
Prosper explained during the hearing that those were not his
words. Prosper and his family members hired a paralegal who
drafted the petition, and Prosper testified that the paralegal
did not do a thorough job and the “refused” language was not his
words. Rather, Prosper stated that his thinking was that,
because the court imposed a four-year supervised release term,
he could then appeal all aspects of his sentence, and he wanted
to appeal but his attorney talked him out of it. Prosper
testified that he had a conversation with his attorney, which
took place in the brief period between court being adjourned and
the marshals arriving at the defense table to place handcuffs on
him and escort him to the lockup. Prosper concedes that he had
only a brief moment during which he could have talked with his
attorney once the proceeding ended because the marshals took him
out of the courtroom as soon as it ended. He also concedes that
at the end of the proceeding he told his attorney that he was
content with the sentence. Overall, however, Prosper’s
recollection was very fuzzy, even as to the conversation he had
in prison that led him to conclude that he should file a habeas
petition. Also, he testified that he was feeling overwhelmed at
the end of the sentencing hearing because he had just been given
more time in prison than he was expecting.
Prosper’s sentencing counsel testified that once court
adjourned, the marshals arrived very quickly to usher Prosper
away and that Prosper was focused on looking at his family and
hearing remarks that family members were making to him as he was
taken from the courthouse. His counsel recalls shaking Prosper’s
hand and wishing him good luck and that, at that point, Prosper
indicated that he was content with his sentence. Prosper’s
counsel testified that there was no conversation about an
interest in appealing.
The court finds there was no conversation about an appeal.
Defense counsel’s testimony about there not being sufficient
time to have the type of conversation Prosper described is
consistent with the court’s observations with respect to how
quickly the marshals arrive at the defense table to place
handcuffs on a defendant once court is recessed or adjourned. In
addition, Prosper’s recollection of events is too fuzzy to be
reliable. This is not surprising, given that he was feeling
overwhelmed at the time because he had just received a prison
sentence that was longer than he was expecting and things were
happening very quickly. Thus, the court concludes that Prosper
did not receive ineffective assistance of counsel by virtue of
the fact that there was no appeal of the imposition of the fouryear term of supervised release.
Prosper does not identify the possible grounds for an
appeal of the imposition of a four-year term of supervised
release. But at sentencing the court explained that it was
particularly important to impose a sentence that deterred the
defendant from committing crimes in the future. See 3:15-cr00168-AWT-11 Sentencing Tr. (ECF No. 724) at 32-33. For the
reasons discussed during the sentencing hearing, the court
imposed the four-year term of supervised release, even though
the Guidelines range was three years.
Nor did Prosper indicate any grounds for appealing or
collaterally attacking the four-year term of supervised release
during his testimony at the hearing for this claim. Rather, he
indicated that he saw the right to appeal the imposition of the
four-year term of supervised release as an opportunity to appeal
the other aspects of the sentence.
The court finds Prosper’s allegations with respect to the
four-year term of supervised release to be without merit.
For the reasons set forth above, the Petition Pursuant to
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (ECF No. 1) is hereby DENIED. The
court will not issue a certificate of appealability because the
petitioner has not made a substantial showing of the denial of a
constitutional right. See 28 U.S.C. § 2253(c)(2).
The Clerk shall close this case.
It is so ordered.
Dated this 27th day of April, 2021, at Hartford,
Alvin W. Thompson
United States District Judge
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