United States District Court, D. Connecticut
RULING DENYING PETITIONER'S § 2255 MOTION IN PART AND ORDERING AN EVIDENTIARY HEARING
JANET BOND ARTERTON, U.S.D.J.
On August 16, 2011, Petitioner Stefan Winston pled guilty to one count of conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin and 28 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(A)(i), and (b)(l)(B)(iii) and 21 U.S.C. § 846. He was sentenced on January 28, 2013 to 165 months imprisonment to be followed by five years supervised release. See United States V. Winston, No. 3:11crl (JBA) (D. Conn) Minute Entry [Doc. # 690] at 1. He then appealed his sentence to the Second Circuit on the grounds that this Court had not properly considered the factors set forth in 18 U.S.C. § 3553(a), but the judgment was affirmed. United States v. Winston, No. 13cvl093 [Doc. # 193] at 5.
Mr. Winston now moves [Doc. # 1] to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255 claiming ineffective assistance of counsel at the plea and sentencing stage. For the following reasons, the Court denies Mr. Winston's motion in part and orders an evidentiary hearing as to the claim that that his counsel neglected to inform him of the Government's initial plea offer.
Prisoners in federal custody may seek to have their sentences vacated, set aside, or corrected if their "sentence was imposed in violation of the Constitution or laws of the United States, or ... the court was without jurisdiction to impose such sentence, or ... the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Mr. Winston's § 2255 motion alleges ineffective assistance of counsel on two grounds: first, that his defense counsel neglected to inform him of an earlier, more favorable plea offer, which he would have accepted had he known of it; and second, that his defense counsel failed to address "disparities in the sentencing procedure resulting in additional jail time" for Mr. Winston in relation to his co-defendants. (Pet'r's Mem. Supp. [Doc. # 3] at 2.)
A. Failure to Communicate Earlier Plea Agreement
A claim of ineffective assistance of counsel at the plea negotiation stage is governed by the two-pronged standard articulated in Strickland v. Washington, 466 U.S. 668 (1984). See Missouri v. Frye, 132 S.Ct. 1399, 1405 (2012). Under this standard, a petitioner must prove that: (1) "counsel's representation fell below an objective standard of reasonableness"; and (2) "any deficiencies in counsel's performance [were] prejudicial to the defense." Strickland, 466 U.S. at 688, 692. To succeed on a claim of prejudice in this context,
a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in Hght of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.
Laflerv. Cooper, 132 S.Ct. 1376, 1385 (2012).
Under the Sixth Amendment, defense counsel has an affirmative duty "to communicate the terms of a formal offer to accept a plea on terms and conditions that may result in a lesser sentence, a conviction on lesser charges, or both, " and failure to do so provides grounds for an ineffective assistance of counsel claim. Frye, 132 S.Ct. at 1405. Petitioner claims that his attorney never communicated the Government's first plea offer, which would have subjected him to a 60-month mandatory minimum sentence on a cocaine charge. Instead, he pled guilty to a cocaine and heroin charge with a 120-month mandatory minimum sentence. In contrast, the Government contends that Mr. Winston was aware of this first plea deal as reflected in the record of the January 28, 2013 sentencing hearing and by then defense counsel Attorney Swaine's sworn statement [Doc. # 9] attesting that to be the case.
1. The January 28, 2013 Sentencing Hearing
The Government asserts, based on the following excerpt from the sentencing hearing transcript, that Mr. Winston was aware of the first plea agreement:
Mr. Swaine: And let me go back to the plea agreement initially. When this plea agreement was initially began [sic] to be negotiated with the government, we were approached with a plea agreement that had only one cocaine base in it, and at that point my client had entered into a proffer agreement, I believed we were on the road to cooperation, and quite frankly, and I need to admit it, I went back to the government and said, in terms of just discussing this, you are asking my client to potentially have to testify at trial against co-defendants, members of this gang, the indictment mentions both heroin and cocaine base, would it put my client-never thinking it was going to fall apart-in a better light if both narcotic substances were mentioned in our plea agreement, which had the effect of putting him up to a mandatory minimum 120 months and starting off at a much higher level.
(Gov't's Opp'n [Doc. # 8] at 15 (citing January 28, 2013 Tr. at 23.)) The Government maintains that this passage "reveals  counsel for Winston was aware of the initial plea agreement including the terms contained therein." (Gov'n't Opp'n at 15). The Court disagrees. Although counsel states that "we were approached with a plea agreement" in this ...