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Fisher v. United States

United States District Court, D. Connecticut

October 17, 2016

GWAYNE FISHER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RULING AND ORDER ON PETITIONER'S MOTION TO VACATE, CORRECT OR SET ASIDE SENTENCE

          Stefan R. Underhill, United States District Judge

         On January 29, 2013, pro se petitioner Gwayne Fisher, currently imprisoned at Federal Correctional Institution Schuylkill in Minersville, Pennsylvania, filed a timely motion to vacate, set aside, or correct his sentence ("habeas petition"), pursuant to 28 U.S.C. § 2255. On May 16, 2008, a jury convicted Fisher of conspiracy to possess with intent to distribute, and conspiracy to distribute, 500 grams or more of a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), and 846; possession with intent to distribute 500 grams or more of a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); and use of a telephone to facilitate the commission of a drug trafficking felony, in violation of 21 U.S.C. § 843(b). Verdict, United States v. Gwayne Fisher, No. 3:07-cr-120 (SRU) (D. Conn. May 16, 2008) (3:07-cr-120, doc. 199). After multiple hearings to determine whether Fisher qualified as a second offender, District Judge Mark R. Kravitz[1] sentenced Fisher to the statutory mandatory-minimum sentences of 120 months' imprisonment and 96 months' imprisonment, to run concurrently. Judgment (3:07-cr-120, doc. 333).

         Fisher seeks review of his underlying conviction and sentence and raises several grounds upon which he alleges he received ineffective assistance of counsel during his criminal trial and direct appeal in violation of the Sixth Amendment of the U.S. Constitution. Based on the entire record and for the reasons set forth in this ruling, Fisher's petition is denied.

         I. Standard of Review

         Section 2255 provides a prisoner in federal custody a limited opportunity to challenge the legality of the sentence imposed upon him. United States v. Addonizio, 442 U.S. 178, 184 (1979). In order to prevail, the petitioner must show either (1) that his sentence was imposed in violation of the U.S. Constitution or the laws of the United States; (2) that the sentencing court lacked jurisdiction to impose such a sentence; (3) that the sentence exceeded the maximum detention authorized by law; or (4) that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Collateral relief is only available for a constitutional error that constitutes a ―fundamental defect which inherently results in a complete miscarriage of justice." Hill v. United States, 368 U.S. 424, 428 (1962).

         Section 2255 ―may not be employed to relitigate questions which were raised and considered on direct appeal." Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992); see also Reese v. United States, 329 F.App'x 324, 326 (2d Cir. 2009) (summary order) (quoting United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001)). If a petitioner fails to raise an issue upon direct appeal, that issue will be deemed procedurally defaulted and unreviewable, absent a demonstration of ineffective assistance of counsel, an ―intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." United States v. Becker, 502 F.3d 122, 127 (2d Cir. 2007) (quoting United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000)); see also Bousley v. United States, 523 U.S. 614, 622 (1998); Massaro v. United States, 538 U.S. 500, 504 (2003).

         The petitioner bears the burden of proving, 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). A district court is not required to accept the petitioner's factual assertions as credible ―where the assertions are contradicted by the record in the underlying proceeding." Puglisi, 586 F.3d at 214. Section 2255 also requires that the district court hold a hearing on the petitioner's motion unless ―the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Chang v. United States, 250 F.3d 79, 85 (2d Cir. 2001) ("[A]lthough a hearing may be warranted, that conclusion does not imply that a movant must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim") (citing Machibroda v. United States, 368 U.S. 487, 495 (1962)).

         II. Background

         A. Pre-Trial and Trial Proceedings On May 22, 2007, a grand jury returned an indictment (3:07-cr-120, doc. 1) charging Fisher and six co-defendants with conspiracy to possess with intent to distribute, and conspiracy to distribute, cocaine and cocaine base ("crack"), in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii) or 841(b)(1)(C)(iii), and 846. On April 29, 2008, a second grand jury returned a superseding indictment (3:07-cr-120, doc. 165) that charged Fisher with conspiracy to possess with intent, and conspiracy to distribute, 500 grams or more of a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), and 846 [Count One]; possession with intent to distribute 500 grams or more of a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) [Count Two]; and use of a telephone to facilitate the commission of a drug trafficking felony, in violation of 21 U.S.C. § 843(b) [Count Three].

         On May 1, 2008, the government submitted notice pursuant to 21 U.S.C. § 851, stating that Fisher had committed prior felony drug offenses and should be designated as a second offender during sentencing (3:07-cr-120, docs. 169, 170). On May 6, 2008, the government moved to join Fisher's trial with that of Nicholas Rojas, a separately indicted defendant who, the government alleged, had participated in a different drug-distribution conspiracy with the same principal, Luis A. Colon, who headed the conspiracy in which Fisher was implicated. (3:07-cr-120, doc. 177) The government argued that joinder was justified based on the similarity between the two conspiracies and the substantially overlapping proof in the two cases, including a wiretap on which both defendants were intercepted. The government's motion was granted. (3:07-cr-120, doc. 178)

         The joint trial was held over four days, from May 12, 2008 through May 15, 2008. At trial, Fisher's counsel contended that Fisher had not conspired with Colon, but merely entered into a buyer-seller relationship with him. The jury apparently rejected that argument and returned a verdict convicting Fisher of all three counts in the superseding indictment. (3:07-cr-120, doc. 199)

         B. Post-Trial Proceedings

         On May 21, 2008 and October 28, 2008, Fisher moved for acquittal, or alternately, for a new trial, alleging that the record evidence was insufficient to support a finding beyond a reasonable doubt that he was a member of a drug conspiracy. Def.'s Post-Trial Mots. (3:07-cr-120, docs. 206, 207, 275). Judge Kravitz denied all of Fisher's post-conviction motions on the merits (3:07-cr-120, doc. 290).

         In preparation for sentencing, Fisher's trial counsel filed a response objecting to the government's second offender information and denying that he had been convicted of prior qualifying felonies (Fisher, doc. 303). Between Fisher's conviction and his sentencing, the Second Circuit issued its decision in United States v. Savage, 542 F.3d 959 (2d Cir. 2008), which held that the government bears the burden of providing proof beyond a reasonable doubt that the defendant has been convicted of a felony drug offense, as defined under federal law, in order for that conviction to qualify as a ―serious drug offense" under the Armed Career Criminal Act. Judge Kravitz then ordered the parties to submit briefing on Savage's potential application to the government's section 851 notice and Fisher's second-offender designation. (3:07-cr-120, doc. 308) On March 27, 2009, Judge Kravitz held oral argument on the government's notice. (3:07-cr-120, doc. 316) The hearing was continued to allow for further supplemental briefing. Mot. Hr'g Tr. at 43:5-44:21 (Mar. 27, 2008) (3:07-cr-120, doc. 374). On June 22, 2009, Judge Kravitz held an evidentiary hearing regarding the applicability of Fisher's alleged prior state felony drug convictions to his sentence (3:07-cr-120, doc. 327). At that evidentiary hearing, the government requested a partial continuance to allow its fingerprint expert to testify, and the parties consented to continue the hearing to July 8, 2009. Evid. Hr'g Tr. 6:5-17, 47:19-24 (June 22, 2009) (3:07-cr-120, doc. 367).

         At the continued hearing, Judge Kravitz held that the government had met its burden in demonstrating that Fisher previously had been convicted of at least one qualifying felony drug crime. Based on that determination, Judge Kravitz sentenced Fisher to the statutory mandatory-minimum for a second-offender who had violated 21 U.S.C. § 841(b)(1)(B)(iii)-120 months' imprisonment on Counts One and Two, and 96 months' imprisonment on Count Three, all to run concurrently. Sent. Hr'g Tr. 23:14-26:7 (3:07-cr-120, doc. 368); Judgment (3:07-cr-120, doc. 333).[2]

         Fisher timely appealed to the Second Circuit, where he was initially represented by his trial counsel. Fisher submitted several pro se letters to the Second Circuit, alleging that his trial counsel had provided ineffective assistance of counsel and requesting an extension of deadlines until new appellate counsel could be appointed. In light of Fisher's representations to the court, his counsel filed a motion to withdraw as appellate counsel, which the Second Circuit granted. Mot. To be Relieved as Counsel, United States v. Fisher, No. 09-3356-cr (May 24, 2010). The Second Circuit appointed new CJA appellate counsel, who represented Fisher throughout briefing and at oral argument. (No. 09-3356, June 1, 2010) Despite the appointment of new counsel, Fisher continued to submit independent filings to the Second Circuit, including a motion for leave to file pro se pleadings. (No. 09-3356-cr, June 7, 2011).

         On November 16, 2011, the Second Circuit issued a summary order affirming the judgment of the district court and holding that Fisher ―has failed to raise a plausible ineffectiveness claim because he cannot demonstrate that any alleged deficiencies in his trial counsel's performance deprived him of a fair trial." United States v. Fisher, 445 F.App'x 436, 437 (2d Cir. 2011) (summary order) (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). On December 9, 2011, the Second Circuit granted Fisher's motion to relieve counsel and allowed Fisher a thirty-day extension to file a pro se petition for rehearing. (No. 09-3356-cr, Dec. 9, 2011) When no petition was filed, on February 3, 2012, the Second Circuit issued its mandate and closed the case. (No. 09-3356-cr, Feb. 3, 2012) Fisher did not file a brief or motion for a rehearing or for en banc review, and he did not file a petition for a writ of certiorari.

         On January 29, 2013, within the statute of limitations set forth by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2255(f), Fisher filed a pro se habeas petition requesting that the district court vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Petition, Fisher v. United States, No. 3:13-cv-142 (SRU) (D. Conn.) (doc. 1). On October 25, 2013, with the leave of the court, Fisher filed an amended habeas petition (3:13-cv-142, doc. 15).

         III. ...


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