CONNOLLY v. UNITED STATES OF AMERICA
OPINION. Signed by Judge William J. Martini on 1/30/17. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Docket No.: 14-3574
UNITED STATES OF AMERICA,
WILLIAM J. MARTINI, U.S.D.J.:
Petitioner David Connolly (“Connolly” or “Petitioner”) moves under 28 U.S.C.
2255 for habeas corpus relief based on actual innocence and ineffective assistance of
counsel. Connolly’s petition is DENIED.
On February 4, 2013, Connolly pleaded guilty to securities fraud under 15 U.S.C.
78(j)(b) and transacting in criminal proceeds under 18 U.S.C. 1957. Crim. No. 2:12-cr00343, ECF Nos. 24, 27. On June 5, 2013, the Court sentenced Connolly to a term of 108
months.1 Crim. No. 2:12-cr-00343, ECF No. 36. Connolly filed a § 2255 motion for habeas
relief on June 4, 2014. Civ. No. 14-3474, ECF No. 1. On March 8, 3016, the Court granted
Connolly’s request to amend his application for writ of habeas corpus. ECF No. 24.
Connolly’s amended § 2255 application asserts two grounds for relief. First,
Connolly asserts that he is ‘actually innocent’ of the crimes for which he was convicted.
See Bousley v. United States, 523 U.S. 614, 622 (1998) (permitting collateral review of
procedurally defaulted claim of “actual innocence” after petitioner pleaded guilty). He
argues that was indicted under the Securities Act of 1934 (“the 1934 Act”), which governs
the exchange of preexisting securities in secondary markets, yet his real estate business
Specifically, the Court sentenced Connolly to 108 months for Count 1 (securities fraud) and 60
months for Count 10 (engaging in a monetary transaction in criminally derived property greater
dealt only in creating new securities. The Securities Act of 1933 (“the 1933 Act”), which
governs issuance of new securities, was not referenced in the superseding indictment.
Connolly concludes that the indictment “is fatally defective as a matter of law.” Pet. Memo,
Second, Connolly argues that he received ineffective assistance of counsel in
violation of the Sixth Amendment. ECF. No. 31. Connolly claims he pleaded guilty only
because his counsel, Gerald Saluti, falsely advised him of “a secret deal with the United
[States] Attorney to have him re-sentenced to a term of probation at a later date.” Corrected
Memorandum in Support of Habeas Corpus Petition (“Pet. Memo”), at 10 (emphasis in
original). “Under the terms of the ‘secret deal,’ Saluti instructed Connolly to say yes to
every question at the plea hearing . . . Connolly would never have to go to prison.” Id.
Saluti has been disciplined for ethical violations in connection with other clients, and has
apparently left the practice of law. ECF Doc. 20.
Under 28 U.S.C. § 2255, a federal court may vacate, set aside or correct a 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). While a court may convene a hearing regarding
a Section 2255 motion, a hearing is not required where “the files and records of the case
conclusively show that the prisoner is entitled to no relief.” United States v. Padilla–
Castro, 426 Fed. App’x 60, 63 (3d Cir. 2011) (quoting 28 U.S.C. § 2255(b)); accord United
States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992).
Neither of Connolly’s arguments calls for the Court to “vacate, set aside or correct
a sentence.” 28 U.S.C. § 2255. A hearing is not required because the record conclusively
shows that Connolly is not entitled to relief. The Court examines his claims of actual
innocence and ineffective assistance of counsel below.
A. Actual Innocence
Petitioner argues that he could not have been guilty of violating the Securities
Exchange Act of 1934 because he was introducing newly-issue securities, whereas the
1934 Act governs the exchange of previously-issued securities (i.e. secondary markets).
The 1933 Act, governing primary securities, is not referenced in the superseding
indictment. Although this argument was not raised at trial or on direct appeal, Petitioner
asks for collateral review because he is “actually innocent” of the charges to which he
pleaded guilty. See Bousley v. United States, 523 U.S. 614, 622 (1998).
The doctrine of “actual innocence” is an equitable exception that developed in the
federal habeas setting to protect “victims of a fundamental miscarriage of justice.” Schlup
v. Delo, 513 U.S. 298, 320 (1995) (citation omitted). It applies where new facts make clear
that someone was “convicted of an act that the law does not make criminal.” Bousley v.
United States, 523 U.S. 614, 620 (1998). “‘[A]ctual innocence’ means factual innocence,
not mere legal insufficiency.” Id (citations omitted). See Cristin v. Brennan, 281 F.3d 404,
420 (3d Cir. 2002). Connolly’s argument is not that he is actually innocent, but that he is
actually guilty of a different crime. He alleges no new facts. The record remains highly
probative that Connolly misused funds and deceived investors regarding the performance
of their investments. Connolly has no claim to actual innocence.
B. Ineffective Assistance of Counsel
“[A] criminal defendant may demonstrate that his representation was
constitutionally inadequate by proving: (1) that his attorney's performance was deficient,
i.e., unreasonable under prevailing professional standards; and (2) that he was prejudiced
by the attorney's performance.” United States v. Booth, 432 F.3d 542, 546 (3d Cir. 2005)
(citing Strickland v. Washington, 466 U.S. 688, 687 (1984). “[I]n order to satisfy the
‘prejudice’ requirement, the defendant 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.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Petitioner raises two grounds for claiming his Sixth Amendment right to counsel
was violated. First, Petitioner argues that counsel failed to assert the defense that Petitioner
was not an original issuer of securities and thus could not have violated the 1934 Act. Even
assuming counsel’s performance was deficient, Connolly fails to show that he was
prejudiced by counsel’s failure to make this argument. He does not assert that he would
have received a lesser sentence under the 1993 Act. Connolly fails to “show that there is a
reasonable probability that, but for counsel’s errors, he would have not pleaded guilty and
would have insisted on going to trial.” Hill, 474 U.S. at 59.
Second, Connolly asserts that he pleaded guilty only because counsel claimed to
have arranged a “secret agreement” with the government that would allow Connolly to be
resentenced to probation in lieu of prison time. This argument also fails. For one, the
Petition does not assert that he would have proceeded to trial had counsel not told him
about the secret agreement with the government. Rather, Connolly argues that, but for
counsel’s unprofessional errors, “the result would have been different.” ECF. No. 31, at
The Third Circuit has held that “a defendant must make more than a bare allegation
that but for counsel's error he would have pleaded not guilty and gone to trial.” Rice v.
Wynder, 346 F. App’x 890, 893 (3d Cir. 2009). Sixth Amendment claims fail even where
a defendant has been misled by counsel about the severity of a sentence permitted by a plea
agreement, so long as the defendant acknowledges to the sentencing court that he
understands the implications of his plea. See Fahfleder v. Varner 32 F. App’x 621, 622 (3d
Cir. 2002). See also United States v. Mustafa, 238 F.3d 485, 492 (3d Cir.2001) (“[A]ny
alleged misrepresentations ... were dispelled when [defendant] was informed in open court
that there were no guarantees as to sentence, and that the court could sentence him to the
maximum.”). Here, the plea colloquy shows that Connolly fully understood his plea:
THE COURT: Do you understand that this is the full and complete
agreement between you and the Government? And that means if something
was said to you or promise[d] to you by either your lawyers or the
Government that’s not incorporated in this agreement, it’s of no binding
effect on you or the Government? Do you understand that?
CONNOLLY: Yes, your Honor.
THE COURT: Did you sign this agreement voluntarily, without anybody
forcing or threatening or coercing you to do it?
Plea Transcript, 10:8-17. Connolly cannot now disclaim his sworn representations
to the Court without producing evidence to corroborate his claim. This is particularly so
given that the terms of the agreement itself do not suggest prejudice: Petitioner was
sentenced to 108 months, significantly less than the advisory guideline range of 135-168
For the reasons above, Connolly’s Petition to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255 is DENIED and the action is DISMISSED pursuant to
the accompanying order.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
January 30, 2017
This range assume acceptance of responsibility. Section 3E.1.1(a) (“If the defendant
demonstrates acceptance of responsibility for his offense, decrease the offense level by 2
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