United States District Court, D. Connecticut
RULING RE: AMENDED MOTION FOR RELIEF UNDER 28 U.S.C.
§ 2255 (DOC. NO. 66)
C. Hall United States District Judge
Rory Joseph (“Joseph”) has moved to vacate his
conviction, vacate his sentence, or for such other relief as
is authorized under section 2255 of title 28 of the United
States Code. See Am. Mot. for Relief under 28 U.S.C.
§ 2255 (“Am. Mot. for Relief”) (Doc. No.
66). Joseph argues that his conviction and sentence should be
vacated because he received ineffective assistance of counsel
and because he is actually innocent. See id. He also
alleges that he is entitled to relief because the court
failed to ensure that Joseph understood the elements of the
charged offense before he pled guilty and neglected to ensure
that the elements of the charged offense were satisfied by
the facts of Joseph’s case. See id. at 2.
government responded to Joseph’s claims in an
Opposition filed on May 12, 2015. See The United
States’ Mot. for Extension of Time to File Resp. to Am.
2255 Pet. (“Gov’t’s Opp.”) (Doc. No.
Joseph filed a Reply to the government’s response on
July 8, 2015. See Pet’r’s Reply Mem. of
Law in Supp. of Request for Summ. Relief under § 2255
or, In the Alternative, for an Evidentiary Hr’g
(“Pet’r’s Reply”) (Doc. No. 82). The
court held oral argument on Joseph’s Petition on
October 2, 2015. See Minute Entry (Doc. No. 86).
Following oral argument, both Joseph and the government filed
supplemental briefing on issues related to the pending
Petition. See Pet’r’s Suppl. Mem. of Law
(Doc. No. 89); the United States’ Suppl. Mem. in Opp.
to Am. Section 2255 Pet. (“Gov’t’s Suppl.
Mem. in Opp.”) (Doc. No. 92); Pet’r’s
Second Suppl. Mem. of Law (Doc. No. 93). Joseph also filed a
Declaration in support of his Petition. See Decl. of
Rory Joseph (Doc. No. 94).
court subsequently determined that “the motion and the
files and records of the case” did not show that Joseph
“is entitled to no relief, ” 28 U.S.C. §
2255(b), and therefore scheduled an evidentiary hearing on
Joseph’s Petition. The first evidentiary hearing was
held on April 19, 2016. See Minute Entry (Doc. No.
107). At that hearing, Joseph attempted to introduce the
testimony of an expert witness, to which the government
objected on the ground that Joseph had not sufficiently
disclosed the opinions of the proposed expert in advance of
the hearing. See Evidentiary Hr’g Tr.
(“Tr.”) at 91 (Doc. No. 111). Although Rule 26 of
the Federal Rules of Civil Procedure does not necessarily
apply in proceedings related to a Petition filed pursuant to
section 2255, see Fed. R. Governing Section 2255
Proceedings 12 (noting that “[t]he Federal Rules of
Civil Procedure . . . may be applied to a proceeding
under these rules” (emphasis added)), the court
adjourned the evidentiary hearing to allow Joseph to make a
formal disclosure of his proposed expert and to permit the
government to obtain the services of its own expert, if it so
chose. See Tr. at 94 (Doc. No. 111). The continued
evidentiary hearing was held on May 18, 2016, see
Minute Entry (Doc. No. 113), after which the court took
Joseph’s Petition and the related filings under
reasons that follow, Joseph’s Amended Motion for Relief
(Doc. No. 66) is GRANTED.
November 2009, a federal grand jury returned an Indictment
charging Joseph with one count of possessing a firearm while
subject to a restraining order that included a finding that
Joseph was a credible threat to the physical safety of the
protected person in violation of sections 922(g)(8) and
924(a)(2) of title 18 of the U.S. Code. United States v.
Joseph, No. 3:09-cr-00252 (JCH), Indictment (Doc. No.
21). On December 22, 2009, Joseph pled guilty to Count One of
the Indictment. See id., Minute Entry for
Proceedings Held before Judge Holly B. Fitzsimmons: Change of
Plea Hr’g (Doc. No. 32); id., Plea Agreement
(Doc. No. 36).
24, 2010, the court sentenced Joseph to 120 months
imprisonment followed by three years of supervised release,
as well as a $100 special assessment. See id.,
Judgment (Doc. No. 69). The court found a base level offense
of 14, a four-level enhancement for specific offense
characteristics, and a two-level enhancement for obstruction
of justice. See id., Sentencing Hr’g Tr. at
110 (Doc. No. 75). The court declined to subtract levels from
Joseph’s offense level for acceptance of
responsibility, as Joseph urged. See id. at 110-11.
Thus, Joseph’s total offense level was 20. When
combined with Joseph’s criminal history category of II,
his offense level yielded a Guidelines imprisonment range of
37-46 months. See id. However, the court departed
upward from the United States Sentencing Guidelines under
section 5K2.3, based on extreme psychological injury to the
victim. See id. at 179-86; see also
Judgment at 1 (Doc. No. 69). Joseph’s sentence was also
a variance sentence imposed after United States v.
Booker, 543 U.S. 220 (2005), and after the court’s
consideration of the factors listed in section 3553(a) of
title 18 of the U.S. Code. See Judgment at 1 (Doc.
appealed his sentence, contending that it should be vacated
because the government breached the plea agreement and the
court committed procedural and substantive errors in
sentencing him. The Second Circuit affirmed Joseph’s
sentence on February 16, 2012. United States v.
Joseph, 462 F. App’x 52 (2d Cir. 2012) (Summary
February 4, 2013, Joseph timely filed a Motion to Vacate, Set
Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255
(Doc. No. 1). Subsequently, and through counsel, Joseph filed
an Amended Motion for Relief (Doc. No. 66).
FINDINGS OF FACT
lawyer who represented Rory Joseph in his criminal case
(“defense counsel”) was a solo practitioner who
was appointed to represent Joseph pursuant to the Criminal
Justice Act (“CJA”). See United States v.
Joseph, No. 3:09-cr-00252 (JCH), Attorney Appearance
(Doc. No. 10). Joseph’s defense counsel has handled
approximately 15-20 cases as a CJA-appointed lawyer in his
career, although he stopped accepting CJA appointments a few
years ago. See Tr. at 8 (Doc. No. 111).
Joseph’s case was the first case involving section
922(g)(8) that defense counsel had ever handled. See
id. at 50.
counsel’s involvement in Joseph’s case began with
his appearance at the initial presentment, at which point he
met with Joseph for the first time. See id. at 9.
Defense counsel also received a copy of the criminal
Complaint and supporting Affidavit at the presentment.
See id. at 9-10. The criminal Complaint indicates
that Joseph has violated “Title 18, United States Code,
Sections 922(g)(8)(B), 922(g)(9) and 924(a)(2).”
Criminal Compl. (Gov’t’s Ex. 1A) (Doc. No. 112).
Shortly after the presentment, defense counsel received
additional discovery materials from the government, including
a sworn statement Joseph gave to law enforcement officers
after his arrest, see Rory Joseph Statement
(Gov’t’s Ex. 1B) (Doc. No. 112), a police report
from the Branford Police Department detailing Joseph’s
alleged domestic violence against the mother of his child,
see Protection/Restraining Order
(Gov’t’s Ex. 1C) (Doc. No. 112), and a copy of
the Restraining Order to which Joseph was subject at the time
of the events giving rise to his criminal prosecution,
see id. Defense counsel reviewed this Restraining
Order and sections 922(g)(8) and 922(g)(9) of title 18 of the
United States Code prior to Joseph’s detention hearing
and concluded that there was “[d]efinitely”
probable cause for the charges against Joseph listed in the
criminal Complaint. Tr. at 14 (Doc. No. 111).
Joseph was detained, defense counsel scheduled two proffer
sessions with the government at Joseph’s behest.
See id. at 14-15. Both proffer sessions were
terminated by the government because the government believed
Joseph was being untruthful. See id. The government
did not indict Joseph after the proffer sessions because the
Assistant United States Attorney assigned to Joseph’s
case, Christopher Mattei (“Attorney Mattei”), was
working with defense counsel on a possible plea agreement.
See id. at 16-17. On June 30, 2009, Attorney Mattei
provided defense counsel with discovery materials related to
Joseph’s case. See Discovery Materials from
AUSA Mattei to Defense Counsel (Gov’t’s Ex. 3)
(Doc. No. 112). That set of materials also contained a copy
of the state court Restraining Order to which Joseph was
subject at the time of his arrest in the federal criminal
case at issue here. See id.
28, 2009, defense counsel sent Joseph a letter to which he
attached a proposed plea agreement prepared by Attorney
Mattei. See Letter from Defense Counsel to Joseph re
Plea Agreement (Gov’t’s Ex. 4A) (Doc. No. 112).
The draft plea agreement indicates that Joseph would be
pleading guilty to having violated sections 922(g)(8)(B) and
924(a)(2) of title 18 of the United States Code. See
Plea Agreement Draft July 2009 (Gov’t’s Ex. 4B)
(Doc. No. 112). In the letter accompanying the proposed plea
agreement, defense counsel told Joseph that he
“believe[d] [the plea agreement] represents the best
deal possible for [Joseph] in this case.” Letter from
Defense Counsel to Joseph re Plea Agreement
(Gov’t’s Ex. 4A) (Doc. No. 112). At that time,
defense counsel continued to believe that the government
could prove the violations charged in the criminal Complaint
and outlined in the plea agreement. See Tr. at 21-22
(Doc. No. 111).
August 2009, defense counsel had a two-hour meeting with
Joseph at Wyatt Detention Facility. See id. at 23.
Defense counsel reviewed the proposed plea agreement with
Joseph paragraph by paragraph before informing him that
defense counsel thought Joseph should seriously consider
signing this plea agreement, because defense counsel thought
Joseph would be convicted if he chose to go to trial. See
id. at 23-24. Joseph told defense counsel he wanted to
think about it. See id. at 24.
weeks after his meeting with Joseph, defense counsel received
additional discovery materials from the government. See
id. These materials included a copy of the transcript of
the hearing that resulted in the issuance of the state court
Restraining Order against Joseph. See id.; see
also Email from AUSA Mattei (Gov’t’s Ex. 5)
(Doc. No. 112); Additional Discovery Material
(Gov’t’s Ex. 6) (Doc. No. 112). Defense counsel
reviewed these materials upon receipt. See Tr. at 25
(Doc. No. 111). He also reviewed the section of the
Connecticut General Statutes, section 46b-15, pursuant to
which the Restraining Order against Joseph was entered.
See id. at 27. Defense counsel provided a copy of
the transcript from the state court Restraining Order hearing
to Joseph. See id. at 29-30; see also
Copies of Transcripts in State Court Proceedings
(Gov’t’s Ex. 7) (Doc. No. 112).
counsel received a revised plea agreement from Attorney
Mattei in September 2009. See Tr. at 30 (Doc. No.
111); see also Revised Plea Agreement
(Gov’t’s Ex. 8A) (Doc. No. 112). The revised plea
agreement indicated that Joseph would be pleading guilty to
violating sections “922(g)(8) and 924(a)(2)” of
title 18 of the United States Code. See Revised Plea
Agreement (Gov’t’s Ex. 8A) (Doc. No. 112). In
other words, the revised plea agreement changed the statutory
citation for the first violation with which Joseph was
charged from section 922(g)(8)(B) to section 922(g)(8). The
revised plea agreement also recited the elements of section
922(g)(8), which defense counsel continued to believe were
satisfied by the facts of Joseph’s case. See
Tr. at 32 (Doc. No. 111). In particular, defense counsel
believed that the fact that a state court Restraining Order
had been issued against Joseph meant that the element of
section 922(g)(8)(C)(i), which requires that a person be
subject to a court order that “includes a finding that
such person represents a credible threat to the physical
safety of such intimate partner or child, ” 18 U.S.C.
§ 922(g)(8)(C)(i), was met. See Tr. at 32-33
(Doc. No. 111). Defense counsel also believed the government
could prove the alternative element of section
922(g)(8)(C)(ii), which requires that the Restraining Order
“by its terms explicitly prohibit[ ] the use, attempted
use, or threated use of physical force” against the
protected person. See Tr. at 33 (Doc. No. 111).
counsel provided a copy of the revised plea agreement to
Joseph shortly after he received it. See id. In a
letter attached to the plea agreement, defense counsel
advised Joseph that “[e]ssentially, the agreement is
the same” as prior versions, and that “[t]he only
changes are that the government wanted to put more specific
language in the agreement regarding the offense
conduct.” See Letter to Joseph from Defense
Counsel (Gov’t’s Ex. 8B) (Doc. No. 112). Defense
counsel met with Joseph again at the end of September, during
which meeting defense counsel again advised Joseph that he
believed the elements of the violations the government
charged were satisfied and that, in defense counsel’s
opinion, going to trial would be foolish. See Tr. at
34 (Doc. No. 111). Defense counsel also advised Joseph that
he risked losing a reduction in his offense level for
acceptance of responsibility if he elected to go to trial
instead of signing the plea agreement. See id. at
several months passed in which Joseph did not commit to
pleading guilty by signing the revised plea agreement, the
government proceeded with an Indictment. See
Indictment (Gov’t’s Ex. 11) (Doc. No. 112). A
federal grand jury charged Joseph with violating sections
922(g)(8) and 924(a)(2), but the specific language of the
Indictment tracks the elements of sections 922(g)(8)(A), (B),
and (C)(i). See id.; see also Tr. at 40
(Doc. No. 111). Defense counsel reviewed the Indictment with
Joseph prior to his arraignment, and again informed Joseph
that he believed the government had enough evidence to
convict Joseph of the violations charged. See Tr. at
41 (Doc. No. 111). Shortly after the arraignment, Joseph
called defense counsel and informed him that he wanted to
plead guilty. See id. at 42. Joseph pled guilty on
December 22, 2009. See 12/22/09 Plea Agreement
(Gov’t’s Ex. 12) (Doc. No. 112); see also
United States v. Joseph, No. 3:09-cr-00252 (JCH), Plea
Agreement (Doc. No. 36).
defense counsel repeatedly advised Joseph that the government
could prove the violations with which Joseph was charged,
defense counsel did not research the elements of a violation
of section 922(g)(8) beyond reading the text of that statute
and the text of the state restraining order statute, section
46b-15 of the Connecticut General Statutes. See Tr.
at 46-47, 55-56, 82 (Doc. No. 111). It never occurred to
defense counsel that the circumstances under which the state
Restraining Order was entered against Joseph-namely with
Joseph’s complete agreement and without the issuing
court making findings of fact-could give rise to an argument
about whether the state Restraining Order was sufficient to
satisfy the element of section 922(g)(8)(C)(i) of title 18 of
the United States Code. See id. at 64. At no point
during his review of the multiple plea agreements and
Indictment did defense counsel look for and read cases about
section 922(g)(8), let alone cases that address the question
of whether the element of section 922(g)(8)(C)(i) could be
satisfied by an implied finding; defense counsel simply
assumed that the issuance of the state court Restraining
Order against Joseph constituted an implied finding that
Joseph was a threat to the mother of his child, and he
further assumed that an implied finding was sufficient for
purposes of section 922(g)(8)(C)(i). See id. at
64-75. Defense counsel’s repeated advice to Joseph-that
he should take the plea agreement because the government had
sufficient evidence to convict him-was predicated on these
assumptions. See Id.
defense counsel made the aforementioned assumptions about the
Restraining Order to which Joseph was subject satisfying the
elements of a violation of section 922(g)(8), he never
discussed the possibility that the element of section
922(g)(8)(C)(i) might not be met in Joseph’s case-or
even the possibility that an argument to that effect could be
made-with Joseph. Had defense counsel told Joseph that there
was a possible defense based on an argument that the facts of
Joseph’s case didn’t meet the element of section
922(g)(8)(C)(i), and that Joseph was therefore factually
innocent of the crime for which he had been indicted, Joseph
would not have pled guilty and would have proceeded to trial.
In other words, Joseph would have willingly risked the
possibility of receiving a sentence longer than the one
contemplated by the plea agreement if the argument about
section 922(g)(8)(C)(i) had failed and he had been convicted
after a trial in exchange for a chance, however slight, that
he could be acquitted. Joseph’s willingness to take
this risk would have been informed, in part, by the fact that
he is not a U.S. citizen, which means that his conviction in
this case exposes him to possible deportation upon completion
of his sentence.
Section 2255 Petition
requests for habeas corpus relief are in tension with
society’s strong interest in the finality of criminal
convictions, the courts have established rules that make it
more difficult for a defendant to upset a conviction by
collateral, as opposed to direct, attack.” Ciak v.
United States, 59 F.3d 296, 301 (2d Cir.1995),
abrogated on other grounds by Mickens v.
Taylor, 535 U.S. 162 (2002). Furthermore, “the
concern with finality served by the limitation on collateral
attack has special force with respect to convictions based on
guilty pleas.” United States v. Timmreck, 441
U.S. 780, 784 (1979). “[C]ollateral attack on a final
judgment in a criminal case is generally available under
[section] 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, 589-90 (2d
Cir. 1996) (internal quotations and citation omitted).
section 2255 motion, the burden is on the petitioner to
prove, by a preponderance of the evidence, that he is
entitled to relief. See Napoli v. United States, 45
F.3d 680, 683 (2d Cir. 1995). In deciding a section 2255
motion, the court must hold 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, a petitioner is not
automatically entitled to a hearing. See Gonzalez v.
United States, 722 F.3d 118, 130 (2d Cir. 2013).
“To warrant a hearing, the motion must set forth
specific facts supported by competent evidence, raising
detailed and controverted issues of fact that, if proved at a
hearing, would entitle [the petitioner] to relief.”
Id. at 131. The threshold evaluation in determining
the necessity for a hearing is whether the petitioner’s
claim is “plausible, ” not whether that claim
“will necessarily succeed.” Puglisi v. United
States, 586 F.3d 209, 213 (2d Cir. 2009) (internal
citations and quotation marks omitted).
Ineffective Assistance of Counsel
assistance of counsel is “[o]ne claim that may
appropriately be raised for the first time in a [section]
2255 motion, ‘whether or not the petitioner could have
raised the claim on direct appeal.’”
Harrington v. United States, 689 F.3d 124, 129 (2d
Cir. 2012) (quoting Massaro v. United States, 538
U.S. 500, 504, 509 (2003)). A petitioner claiming ineffective
assistance of counsel “must show that (1)
counsel’s performance was objectively deficient, and
(2) petitioner was actually prejudiced as a result.”
Id. (citing Strickland v. Washington, 466
U.S. 668, 687-88, 692-93 (1984)). This two-part test applies
both to cases in which the petitioner was convicted after
trial and to cases in which the petitioner pled guilty.