The opinion of the court was delivered by: Janet C. Hall United States District Judge
RULING RE: MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. 2255 [Doc. No. 2] AND MOTION TO AMEND THE MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE [Doc. No. 11]
On March 19, 2010, petitioner Rocky Samas filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. ("Petition," Doc. No. 2). On March 29, 2010, this court ordered the respondent to show cause as to why the requested relief should not be granted. On September 16, 2010, the government responded to the court's Order to Show Cause. (Doc. Nos. 15, 16). At that time, the government conceded that Samas' section 2255 petition should be granted with respect to Samas' claim that his prior state drug convictions do not qualify as predicate offenses for second offender enhancement. The court agrees. The court orders Samas to be resentenced without regard to the second offender enhancements imposed at his original sentencing pursuant to 21 U.S.C. §§ 841(b)(1) and 851.
On January 14, 2004, a federal grand jury indicted Samas on five different counts of possession and distribution of narcotics. United States v. Samas, 3:04-CR-5, Doc. No. 8. On January 27, 2004, the government filed a second offender information pursuant to 21 U.S.C. § 851. Samas, 3:04-CR-5, Doc. No. 11. The second offender enhancement increased the statutory minimum term of imprisonment for Counts Two, Three, and Five from five to ten years. The enhancement also increased the statutory minimum term of imprisonment for Counts One and Four from ten to twenty years. The information relied upon a Connecticut Superior Court conviction on October 6, 2000 for the Sale of Narcotics, in violation of Connecticut General Statutes § 21a-277(a).
On November 8, 2004, shortly before Samas entered his guilty plea, the government filed an additional second offender information, this time relying on Samas' conviction in Connecticut Superior Court on August 31, 1999 for Possession of Narcotics, in violation of Connecticut General Statutes § 21a-279(a). Samas, 3:04-CR-5, Doc. No. 55. The information advised Samas of the same potential increases in statutory mandatory minimums. On November 8, 2004, Samas entered a plea of guilty to Counts Two, Three, Four, and Five of the Indictment. Samas, 3:04-CR-5, Doc. No. 79.
Prior to incorporation of the second offender enhancements, the sentencing court found Samas to have a total offense level of 31 and a criminal history category of IV, resulting in a sentencing guidelines range of 151-188 months. Samas, 3:04-CR-5, Doc. No. 80, Sentencing Tr. 9/21/05, at 10-11. However, the enhancement to Samas' conviction on Count Four carried a statutory minimum sentence of 240 months. The court sentenced Samas to the mandatory minimum term of imprisonment of 240 months on Count Four and to concurrent terms of imprisonment of 151 months for Counts Two, Three, and Five. Samas, 3:04-CR-5, Doc. No. 71. At the sentencing hearing, the court stated that "it is certainly the court's view that the mandatory sentence required here is more than adequate to serve the needs of the sentence dictated by Congress." Samas, 3:04-CR-5, Doc. No. 80, Sentencing Tr. 9/21/05, at 19.
Judgment entered on September 29, 2005. Samas, 3:04-CR-5, Doc. No. 71. Samas appealed his sentence to the Second Circuit Court of Appeals. The Second Circuit affirmed the defendant's sentence on March 24, 2009. United States v. Samas, 561 F.3d 108 (2d Cir. 2009) (per curiam). Samas then filed for a petition for writ of certiorari with the United States Supreme Court. That petition was denied on October 5, 2009. Samas v. United States, 130 S. Ct. 184 (2009). Samas filed a petition for rehearing on October 26, 2009, which was denied on January 11, 2010. Samas v. United States, 130 S. Ct. 1131 (2010).
Samas raises three claims in his Petition. First, Samas argues that his prior state drug convictions did not qualify as predicate offenses for second offender enhancement. Petition, at 6. Second, Samas alleges that his attorney provided ineffective assistance of counsel at the change of plea hearing for his most recent offense, United States v. Samas, 3:04-CR-5(JCH). Id. at 6. Third, Samas contends that his attorney on appeal provided ineffective assistance because he failed to argue that Samas' prior state drug convictions were not predicate offenses under the second offender enhancement statute. Id. at 7. The court addresses each claim in turn.
A. Claim 1: State Narcotics Convictions Did Not Qualify as Predicate Offenses Samas argues that his prior state criminal convictions involved violations of Connecticut drug statutes that criminalize conduct that is covered by the federal second offender provision and conduct that falls outside of the second offender provision, and therefore the convictions cannot categorically qualify as predicate offenses. Samas further contends that the basis for his state criminal convictions cannot be narrowed to conduct covered by the second offender statute by applying a modified categorical approach, because the charging documents never specified the drug involved and the pleas were entered pursuant to North Carolina v. Alford, 400 U.S. 25, 37 (1970). The government agrees with both arguments and concedes that Samas should be accorded relief on the first claim of his section 2255 motion. Gov't Resp., at 8.
1. Whether Samas' Predicate Offenses May Be Established by a Pure Categorical Approach
If an individual violates 21 U.S.C. § 841(b)(1)(A), and that individual commits the violation "after a prior conviction for a felony drug offense," that individual will be subject to a mandatory minimum term of imprisonment of twenty years. Similarly, if an individual commits a violation of section 841(b)(1)(B), and that individual commits the violation "after a prior conviction for a felony drug offense," that individual will be subject to a mandatory minimum term of imprisonment of ten years.
For a prior state criminal drug conviction to qualify as a predicate offense under 21 U.S.C. §§ 841(b)(1), 851, it must have been a "felony drug offense." The term "felony drug offense" means "an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances." 21 U.S.C. § 802(44). These four classes of compounds are defined at 21 U.S.C. § 802(17) (narcotic drugs), 21 U.S.C. § 802(16) (marihuana), 21 U.S.C. § 802(41)(A) (anabolic steroids), and 21 U.S.C. § 802(9) (depressant or stimulant substances).
At issue in this Petition is whether Samas' prior convictions under Conn. Gen. Stat. §§ 21a-277(a) and -279(a) constitute felony drug offenses that validly triggered increases in his mandatory minimum sentence. In order to determine whether Samas' prior convictions can be used as categorical proof of prior felony drug offenses, the court must determine whether Conn. Gen. Stat. §§ 21a-277(a) and -279(a) criminalize any conduct that is not covered by the federal definition of "felony drug offense." If so, then convictions under Conn. Gen. Stat. §§ 21a-277(a) and -279(a) cannot provide categorical proof of ...