Paulino v. USA

Filing 11

ORDER: For the reasons set forth in the attached ruling, Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 1 is DENIED. Signed by Judge Janet Bond Arterton on 4/29/20. (Davis, Caroline)

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UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

GABRIEL PAULINO,

Petitioner,

v.
UNITED STATES OF AMERICA,

Respondent.

Civil No. 3:18cv837 (JBA)

April 29, 2020

RULING DENYING MOTION UNDER § 2255

Petitioner Gabriel Paulino moves under 28 U.S.C. § 2255 to set aside the sentence

imposed in Criminal No. 3:16cr172(JBA). The Government opposes. For the reasons that
follow, Petitioner’s motion is denied.
I. Background
Petitioner Gabriel Paulino was convicted by guilty plea of Count One of the
Indictment, possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(C), and Count Three of the Indictment, possession of a firearm in furtherance of
a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(I) and (c)(2). (Judgment,
United States v. Paulino, No. 3:16cr172(JBA), ECF No. 44 (D. Conn. May 11, 2017).) Petitioner
pled guilty pursuant to an agreement with the Government. (Plea Agreement, United States
v. Paulino, No. 3:16cr172(JBA), ECF No. 29 (D. Conn. Feb. 8, 2017).) The Government agreed
to dismiss Count Two of the Indictment, which charged Petitioner with possession of a
firearm by a convicted felon. (Id. at 8.) The parties’ agreement recognized that under the
Sentencing Guidelines, Petitioner’s base offense level was thirteen and his Criminal History
Category was IV, producing a sentencing range of 24 to 30 months of imprisonment. (Id. at
5.) When combined with the statutory mandatory minimum consecutive term of
imprisonment of five years for Count Three, the parties recognized that Petitioner’s
Guidelines range was 84 to 90 months of imprisonment. (Id.) Petitioner also agreed to waive
his right to appeal or collaterally attack his conviction “in any proceeding, including but not
limited to a motion under 28 U.S.C. § 2255,” and his right to appeal or collaterally attack his

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sentence if that sentence did not exceed 84 months of imprisonment, although that waiver
did not preclude him “from raising a claim of ineffective assistance of counsel in an
appropriate forum.” (Id. at 5-6.)
Petitioner was sentenced by this Court to 24 months of imprisonment on Count One
and 60 months of imprisonment on Count Three, to be served consecutively as required by
statute, for a total of 84 months of imprisonment. (Judgment at 1.) Petitioner was
represented by Attorney Morad Fakhimi of the Office of the Federal Public Defender for the
District of Connecticut through the entry of his plea, and by Attorney James Maguire of the
Federal Defender’s office at sentencing.
II. Discussion
Petitioner moves to vacate, set aside, or correct his sentence under § 2255, claiming
both “ineffective assistance of counsel during pretrial stage of proceeding” and actual
innocence of the offense charged in Count Three. (§ 2255 Petition [Doc. # 1] at 5-6.)
A. Ineffective Assistance of Counsel
To succeed on a § 2255 petition for ineffective assistance of counsel, a petitioner must
demonstrate both 1) that his counsel did not provide “reasonably effective assistance,”
including “identify[ing] the acts or omissions [which] were outside the wide range of
professionally competent assistance,” and 2) that the allegedly ineffective acts or omissions
had an “effect on the judgment.” Strickland v. Washington, 466 U.S. 668, 687-91 (1984). In
other words, to demonstrate entitlement to relief for ineffective assistance of counsel under
§ 2255, Petitioner must demonstrate both that his counsel provided ineffective assistance
and that his counsel’s ineffective performance was “prejudicial to [his] defense.” Id. at 692.
i.

Attorney Fakhimi’s Representation

“Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689.
“Because of the difficulties inherent in making the evaluation, a court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable professional
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assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.” Id. (internal
quotation omitted).
Petitioner argues that Attorney Fakhimi provided constitutionally ineffective
assistance of counsel in violation of Petitioner’s Sixth Amendment rights by improperly
pressuring Petitioner to plead guilty and by failing to pursue the “available, viable, stronger
defense” to the offense charged in Count Three, i.e., that Petitioner was actually innocent of
that charge. (Mem. Supp. § 2255 Petition [Doc. # 1-2] at 6.) Petitioner claims that the
“evidence provided to” Attorney Fakhimi by the Government “does not meet the nexus
requirement” for a conviction under 18 U.S.C. § 924(c)1, and thus, Petitioner argues, Attorney
Fakhimi provided ineffective counsel by urging Petitioner to plead guilty to that charge.
In support of his position that the evidence against him on Count Three was
insufficient to support a conviction, Petitioner argues that “[t]he CI in this case never
identified the location” where the guns were found—that is, Petitioner’s apartment—“as one
where narcotics transactions took place.” (Id. at 4.) Petitioner further argues that “law
enforcement officers did not see any drug trafficking activity during their surveillance” of
that location. (Id.) Petitioner explains that if the “location [had] been one where drugs were
trafficked,” then his roommates, “who cooperated with the New London Police[,] . . . would
have conveyed that to investigators,” but they did not, suggesting that he did not traffic any
drugs from the location where the guns were found. (Id. at 5.) Petitioner also argues that the
video recording of his confession regarding “being a drug dealer” “did not corroborate” the
claim in an Investigation Report that Petitioner “stated he got the guns for his protection,”
and that “[t]his inconsistency would have created a credible issue before a jury, likely
providing a reasonable doubt.” (Id.) Petitioner suggests that alleged statement “is the only

1 Section § 924(c)(1)(A) criminalizes possession of a firearm “in furtherance of” a

drug trafficking crime.
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evidence available to provide a connection between possession of a firearm” and drug
trafficking, and “would not be enough” to support a conviction under § 924(c) because it
does not satisfy the “in furtherance” requirement. (Id.)
In light of this evidence, Petitioner argues that “any minimally competent attorney
would have found a viable, stronger defense to the 924(c) count.” (Id.) Instead, Petitioner
asserts that Attorney Fakhimi pressured him to plead guilty to Count Three. (See Petitioner’s
Aff. Supp. § 2255 Petition [Doc. # 1-1].) Specifically, Petitioner alleges that Attorney Fakhimi
“visited [him] only a few times” and “never explained to [him] what Count three actually
meant,” but rather Attorney Fakhimi’s “only explanation was having a gun and drugs in the
same place is a 924(c)[] and there was no way [] he could get” Count Three “dropped.” (Id. ¶
A.) Petitioner alleges that he told Attorney Fakhimi that he “didn[’]t feel comfortable taking
a plea when [he] didn’t understand the charge,” and Attorney Fakhimi responded that the
“feds do not lose at trial and judges sentence defendants to the max after trial conviction,” so
Petitioner should “do what he suggested” and “Take whatever plea the Government offered.”
(Id. ¶ B.) Following a conversation in which Attorney Fakhimi “contacted [Petitioner’s] wife,
Stacey Arbour, and told her she needs to convince [him] to take the deal,” Petitioner told
Attorney Fakhimi that he was “considering taking the plea offer.” (Id. ¶ C.) Petitioner alleges
that Attorney Fakhimi “explained [he] would plea[d] to count one and two and would get
between 46 and 57 months pleading to count one and two.” (Id.) Petitioner claims that
“[a]fter [he] signed the plea,” Attorney Fakhimi “told [him he] was facing 60 to 84 months
and there was nothing he could do about it,” but “assured” Petitioner that he would not get
more than sixty months and reminded him that he would have gotten “no less than 30 years
at trial.” (Id. ¶ D.) Petitioner alleges that before entering his guilty plea, he and Attorney
Fakhimi “rehearsed what [he] needed to say in front of the judge, ‘for it to work.’” (Id. ¶ E.)
The Government responds that the assistance provided by Attorney Fakhimi was not
constitutionally ineffective under the deferential Strickland standard. Specifically, the
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Government argues that “[c]ounsel’s conclusion as to how best to advise a client in order to
avoid, on the one hand, failing to give advice and, on the other, coercing a plea enjoys a wide
range of reasonableness because ‘[r]epresentation is an art,’” (Gov’t Opp. [Doc. # 10] at 11
(quoting Strickland, 466 U.S. at 693)), and that Attorney Fakhimi’s counsel regarding
whether to accept the Government’s plea offer was within that “wide range of
reasonableness.” Counsel “rendering advice” in the “critical area” of whether to accept a plea
offer “may take into account, among other factors, the defendant’s chances of prevailing at
trial, the likely disparity in sentencing after a full trial as compared to a guilty plea (whether
or not accompanied by an agreement with the Government), whether the defendant has
maintained his innocence, and the defendant’s comprehension of the various factors that will
inform his plea decision.” Purdy v. United States, 208 F.3d 41, 45 (2d Cir. 2000).
The Government relies heavily on the Declaration of Attorney Fakhimi, which refutes
the majority of Petitioner’s allegations regarding their interactions. (See Ex. D (Fakhimi
Decl.) to Gov’t Opp. [Doc. # 10-4].) Attorney Fakhimi represents that he “met with
[Petitioner] in person several times during the first three months of the pendency of his
federal case,” at which time Attorney Fakhimi “provide[d] Mr. Paulino a complete copy of the
evidence provided by the government,” and they “had lengthy discussions about the effect of
his recorded confession, as well as the effect of the statements that his roommates had given
the police against him.” (Id. ¶ 5.) Attorney Fakhimi also represents that “he never told Mr.
Paulino that mere proximity of drugs and guns automatically satisfies the elements” of a §
924(c) charge, but he did “warn [Petitioner] that the proximity of guns during drug selling
activities, if coupled with appropriate circumstances . . . could lead to a permissible inference
at trial that” the guns were possessed in furtherance of drug trafficking activity. (Id. ¶ 15.)
Attorney Fakhimi agrees that Petitioner “wanted a negotiated resolution, but on his
terms, one that would involve the government dropping the 924(c) charge in exchange for
his plea to the other two counts.” (Id. ¶ 8.) Attorney Fakhimi thus “spent a number of weeks
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attempting, to no ultimate avail, to convince the government to agree to a negotiated
disposition of the case in accordance with Mr. Paulino’s wishes – that is, a disposition in
which the government would drop the 924(c) charge in exchange for Mr. Paulino’s plea to”
the other two counts of the Indictment. (Id. ¶ 9.) Attorney Fakhimi agrees that he told
Petitioner that he was unable to get the § 924(c) charged “dropped” after he was unable to
persuade the Government to do so “[a]fter several weeks of what amounted to protracted
begging” on that point. (Id. ¶ 15.)
Attorney Fakhimi “informed Mr. Paulino that the time to decide between trial and”
the government’s existing plea offer “was at hand” only once “it eventually became clear that
the government was immovable” regarding the 924(c) charge. (Id. ¶ 10.) Attorney Fakhimi
represents that, at that time, he explained to Petitioner that he is “not afraid of defending any
and all cases at trial,” and that “whether or not to proceed to trial was exclusively
[Petitioner’s] decision to make,” but also that “the evidence against him was strong; and, that
[Attorney Fakhimi’s] recommendation was for him to decide to seek a negotiated
resolution.” (Id.)
According to Attorney Fakhimi, after he made that recommendation, “Mr. Paulino
said that he would make his decision in due time” and “[e]ventually . . . decided to accept the
government’s plea offer” and “never expressed any reservations about his guilty plea for any
reason.” (Id. ¶¶ 10, 16.) At that time, Attorney Fakhimi represents that he and Petitioner
“reviewed the plea agreement,” which required Petitioner to plead guilty to the § 924(c)
charge in Count Three, “and [Petitioner] repeatedly indicated that he understood that the
agreement did not bind the court, that the court could impose whatever sentence it thought
proper within the limits of the statutes involved.” (Id. ¶ 11.)
The Government argues that the Plea Agreement and the transcript of the hearing at
which Petitioner entered his guilty plea confirm Attorney Fakhimi’s representations
regarding Petitioner’s knowledge and decision-making. (Gov’t Opp. at 2.) The Agreement
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plainly sets out the charges to which Petitioner agreed to plead guilty, including the § 924(c)
charge in Count Three, and the applicable sentencing minimums and ranges, including the
60-month mandatory minimum on Count Three, required to be served consecutively,
producing a sentencing range of 84 to 90 months. (Plea Agreement at 2, 4-5.) Moreover,
during the entry of his guilty plea, Petitioner confirmed to the Court that he had not had any
difficulty communicating with Attorney Fakhimi, (Ex. B to Gov’t Opp. (Tr. of Plea Hearing)
[Doc. # 10-2] at 6), that he had enough opportunity and information about the Government’s
evidence to discuss his case with counsel and was fully satisfied with Attorney Fakhimi’s
advice and representation (id. at 10), that he had discussed the Plea Agreement with
Attorney Fakhimi, (id. at 18), and that no one had threatened him or intimidated him in any
way that caused him to plead guilty, (id. at 27).
The Court agrees that the Plea Agreement and the Hearing Transcript generally
corroborate Attorney Fakhimi’s representations about his communications with Petitioner
and contradict Petitioner’s allegations regarding his lack of knowledge and understanding in
agreeing to plead guilty to Counts One and Three. However, because the Court concludes that
Petitioner’s motion fails on other grounds, see infra p. 8-12, there is no need for a hearing
with regard to the effectiveness of Attorney Fakhimi’s representation of petitioner.
ii.

Prejudice

To demonstrate prejudice as required for any ineffective assistance of counsel claim
under § 2255, a petitioner 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.
at 694. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. “Even serious errors by counsel do not warrant granting habeas relief where
the conviction is supported by overwhelming evidence of guilt.” Lindstadt v. Keane, 239 F.3d
191, 204 (2d Cir. 2001).

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Petitioner argues that he was prejudiced by Attorney Fakhimi’s allegedly ineffective
assistance because, if he had access to adequate counsel, he “would have chose[n] to plead
guilty to count two, rather than the more punitive count three, and proceeded to trial on that
charge had the government not dismissed count three.” (Mem. Supp. § 2255 Petition at 6.)
Thus, the Court must determine whether there is a “reasonable probability” that but for the
alleged errors by Attorney Fakhimi, “the result of the proceeding would have been different”
such that Petitioner would have been offered the opportunity to plead to Count Two instead
of Count Three or would have been found not guilty of Count Three at trial.
Attorney Fakhimi represents that he “spent a number of weeks attempting, to no
ultimate avail, to convince the government to agree to a negotiated disposition of the case,”
which would allow Petitioner to plead guilty to Count Two instead of Count Three, but that—
even “[a]fter several weeks of what amounted to protracted begging”—Attorney Fakhimi
was unable to convince the Government to agree to such a disposition. (Fakhimi Decl. ¶ 9,
15.) The Government confirms that “[d]espite repeated requests from Attorney Fakhimi to
allow[] the defendant to plead to the felon in possession” charge instead of the § 924(c)
charge, “this offer was not made to the defendant and the defendant did not have that
option.” (Gov’t Opp. at 15.) Petitioner makes no allegations which contradict these
statements regarding Attorney Fakhimi’s failed efforts to reach an agreement which would
allow Petitioner to avoid a conviction on Count Three. (See generally Petitioner’s Aff.) Thus,
in light of Attorney Fakhimi’s efforts to secure an agreement which allowed Petitioner to
plead guilty to Count Two instead of Count Three and the Government’s representation that
no such plea agreement was available to Petitioner, there is not a “reasonable probability”
that Petitioner could have obtained such an agreement but for the alleged errors by Attorney
Fakhimi, and thus Petitioner has failed to demonstrate prejudice.
As to Petitioner’s suggestion that he would have “proceeded to trial” on Count Three
in the absence of such an agreement, the Government argues that the evidence which it
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would have introduced at trial was “sufficient . . . to establish Paulino’s guilt” of the offense
charged in Count Three. (Gov’t Opp. at 16.) At the plea hearing, the Government indicated
that it “would submit testimony, physical evidence, documentary evidence,” including
evidence that “[d]uring the execution of the warrant” at Petitioner’s apartment, “the agents
recovered . . . 94 individually knotted bags of heroin, weighing over 20 grams of heroin; . . .
identifications of Mr. Paulino; . . . two firearms; [including] a black-colored .9 millimeter
Beretta, and a Silver Pigeon .12 gauge pump action shotgun, also a Beretta; . . . and plastic
bags cut in a manner consistent with heroin packaging.” (Tr. of Plea Hearing at 37-38.) The
shotgun was found in the attic which served as Petitioner’s bedroom, while the 9 millimeter
Beretta was found underneath a sofa cushion on the first floor of the apartment. (Ex. 3 to §
2255 Petition (Investigation Report) [Doc. # 1-1].) After being advised of his Miranda rights,
Petitioner described both firearms and their locations within the apartment, “admitted to
being a drug dealer and stated he got the guns for his protection.” (Id.)2
The warrant was supported by an affidavit by officers of the New London Police
Department who detailed information provided by a reliable confidential informant. (Ex. 1
to § 2255 Petition (Warrant Aff.) [Doc. # 1-1].) The informant had been at a party at an
apartment, later identified as Petitioner’s apartment, where a resident of that apartment
known as “Tommy Good” “displayed a black colored ‘Beretta’ pistol and a pump action
shotgun which he laid on his bed” and indicated that he “wanted to shoot” another party
attendee. (Id.) The informant also indicated that he had “seen the pump action shotgun” at
that residence “on multiple occasions within the last several weeks” and “has also seen that
‘Tommy Good’ has been in possession of the black colored ‘Beretta’ pistol since the initial
fight” with the other party attendee. (Id.) Although Petitioner disputes that he is otherwise

2 Petitioner disputes that he made this statement regarding the purpose of the guns,

arguing that its credibility is weak because the statement was not captured during the video
recording of his confession. See supra p. 3.
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known as “Tommy Good,” an officer with the New London Police Department “view[ed]
‘Tommy Good’s’ public Facebook page” and “immediately recognized the photos of the male
named ‘Tommy Good’ as Gabriel Paulino.” (Id.) Moreover, the Investigation Report detailing
the execution of the warrant at Petitioner’s home indicates that both of Petitioner’s
roommates knew him as “Tommy.” (Investigation Report.) One roommate denied any
knowledge of guns in the apartment, while the other roommate stated that he had seen
“Tommy” with a “pistol . . . in his waistband.” (Id.)
“[T]he requirement in § 924(c)(1) that the gun be possessed in furtherance of a drug
crime may be satisfied by a showing of some nexus between the firearm and the drug selling
operation.” United States v. Finley, 245 F.3d 199, 203 (2d Cir. 2001). “The fact-intensive nexus
inquiry comes down to the question whether the firearm afforded some advantage (actual
or potential, real or contingent) relevant to the vicissitudes of drug trafficking.” United States
v. Alston, 899 F.3d 135, 146 (2d Cir. 2018). Factors to consider in this inquiry include “the
type of drug activity that is being conducted, accessibility of the firearm, the type of the
weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal),
whether the gun is loaded, proximity to drugs or drug profits, and the time and
circumstances under which the gun is found.” United States v. Chavez, 549 F.3d 119, 130 (2d
Cir. 2008) (internal quotations omitted).
Based on its review of the Government’s evidence, the Court concludes that there is
not a “reasonable probability” that Petitioner would have avoided a conviction on Count
Three had he proceeded to trial. The Government’s evidence demonstrates the required
“nexus,” especially in light of the accessibility of two firearms throughout the apartment, the
close proximity in his bedroom of Petitioner’s drugs for distribution and his shotgun, the
illegitimate status of his possession of weapons in light of his earlier felony convictions, and
Petitioner’s statement that the guns were obtained for his protection as described in the
Investigation Report. Thus Petitioner has not demonstrated that he suffered prejudice as a
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result of the allegedly ineffective assistance of Attorney Fakhimi, and he is not entitled to
relief under § 2255.
B. Actual Innocence
Separately, Petitioner argues that he is “actually innocent of possession of a firearm
in furtherance of a drug trafficking crime,” but he makes no additional arguments and offers
no additional evidence in support of that position, instead simply “realleg[ing] and
restat[ing] fully” his arguments regarding Attorney Fakhimi’s ineffective assistance. (Mem.
Supp. § 2255 Petition at 6.) The Government responds that Petitioner “clearly knowingly and
voluntarily pled guilty and entered into the [plea] agreement,” wherein he “validly waived
his right to collaterally attack his conviction and sentence for any other purpose other than
ineffective assistance of counsel in a proper forum.” (Gov’t Opp. at 2.) Thus, the Government
argues, Petitioner’s actual innocence claim is barred by that waiver. (Id.)
In light of Petitioner’s guilty plea and waiver of his right to collaterally attack his
conviction, (see Plea Agreement at 5-6; Tr. of Plea Hearing at 24), and the absence of any
evidence in support of his claim of actual innocence or any argument as to why such a claim
should now be permitted, Petitioner’s actual innocence claim is unavailing. See Herrera v.
Collins, 506 U.S. 390, 401 (1993) (“Few rulings would be more disruptive of our federal
system than to provide for federal habeas review of freestanding claims of actual innocence.
. . [O]ur habeas jurisprudence makes clear that a claim of ‘actual innocence’ is not itself a
constitutional claim, but instead a gateway through which a habeas petitioner must pass to
have his otherwise barred constitutional claim considered on the merits.”).

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III. Conclusion

For the foregoing reasons, Petitioner’s Motion to Vacate, Set Aside, or Correct

Sentence under 28 U.S.C. § 2255 [Doc. # 1] is DENIED.

IT IS SO ORDERED.
/s/
Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut this 29th day of April 2020.

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