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Joseph v. United States

United States District Court, D. Connecticut

June 14, 2016

RORY JOSEPH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RULING RE: AMENDED MOTION FOR RELIEF UNDER 28 U.S.C. § 2255 (DOC. NO. 66)

          Janet C. Hall United States District Judge.

         Petitioner 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.

         The 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. 75).[1] 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).

         The 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 advisement.

         For the reasons that follow, Joseph’s Amended Motion for Relief (Doc. No. 66) is GRANTED.

         I. BACKGROUND

         In 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).

         On June 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. No. 69).

         Joseph 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 Order).

         On 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).

         II. FINDINGS OF FACT[2]

         The 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.

         Defense 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).

         After 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.

         On July 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).

         In 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.

         Several 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).

         Defense 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).

         Defense 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 35.

         After 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).

         Although 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.

         Because 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.

         III. LEGAL STANDARDS

         A. Section 2255 Petition

         “Because 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).

         In a 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).

         B. Ineffective Assistance of Counsel

         Ineffective 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. S ...


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