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Winston v. United States

United States District Court, D. Connecticut

January 5, 2017

STEFAN WINSTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RULING ON PETITIONER'S MOTION UNDER § 2255

          Janet Bond Arterton, U.S.D.J.

         On August 16, 2011 Petitioner Stefan Winston pled guilty to one count of conspiracy to distribute one kilogram or more of heroin and twenty-eight grams or more of cocaine base in violation of 21 U.S.C. § 846 and 841(a)(1) and 841(b)(1)(A). On January 28, 2013 he was sentenced to 165 months' imprisonment followed by five years of supervised release. Mr. Winston unsuccessfully appealed his conviction and sentence to the Second Circuit.[1] See United States v. Winston, No. 13-1093, Summary Order [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 that his defense counsel was ineffective in two respects: he failed to address "disparities in the sentencing procedure resulting in additional jail time" for Mr. Winston in relation to his co-defendants; and he neglected to inform Mr. Winston of an earlier, more favorable plea offer from the Government, which he would have accepted had he known of it. (Pet'r. Mem. Supp. [Doc. # 3] at 2.) The Court rejected [Doc. # 12] his claim that his defense counsel failed to meaningfully address sentencing disparities between him and his co-defendants, but ordered an evidentiary hearing on the second claim that Petitioner's counsel failed to communicate to him the terms of an earlier, more favorable plea offer than the one under which he pled guilty. That evidentiary hearing was held September 26, 2016. For the reasons discussed below, Mr. Winston's motion is granted.

         I. Discussion

         Petitioner claims that his attorney never conveyed to him the Government's first plea offer which would have subjected him to a sixty-month mandatory minimum sentence on a charge of conspiracy to distribute and to possess with intent to distribute mixtures and substances containing twenty-eight grams or more of cocaine base. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Instead, he pled guilty to a charge of conspiracy to distribute and possess with intent to distribute both the aforementioned cocaine and mixtures and substances containing one kilogram or more of heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B) and 846, which carried a 120-month mandatory minimum sentence.[2] The Government maintains that Mr. Winston was aware of this first plea deal and made a conscious decision to opt for the second agreement. Thus, the critical fact on which the evidentiary hearing was focused was whether Petitioner proved by a preponderance of the evidence that defense counsel for Mr. Winston during the relevant time period failed to inform his client of the initial plea agreement before Mr. Winston entered into the second agreement.

         a. Legal Standard

         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).

         A claim of constitutionally ineffective assistance of counsel at the plea negotiation stage is governed by Missouri v. Frye, which recognizes that the two-pronged standard articulated in Strickland v. Washington, 466 U.S. 668 (1984) applies. See 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. Because 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, " the failure to do so may constitute ineffective assistance of counsel. Frye, 132 S.Ct. at 1405. In assessing such claims a court "must be highly deferential" to counsel and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.

         To demonstrate prejudice

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 light 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.

Lafler v. Cooper, 132 S.Ct. 1376, 1385 (2012). "[A]any [increase in the] amount of actual jail time" may constitute prejudice. Glover v. United States, 531 U.S. 198, 203 (2001) ("Authority does not suggest that a minimal amount of additional time in prison cannot constitute prejudice. Quite to the contrary, our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance.").

         b. Evidence Related to Counsel's Communications With Mr. Winston Regarding the First Plea Agreement

         i. Undisputed Facts

         On January 5, 2011 Mr. Winston was indicted on one count of conspiracy to distribute and to possess with intent to distribute narcotics (one kilogram or more of a mixture and substance containing a detectable amount of heroin and twenty-eight grams or more of a mixture and substance containing a detectable amount of cocaine base) and one count of conspiracy to maintain a drug-involved premise within 1, 000 feet of a school and a housing facility.[3] Indictment [Doc. # 1], U.S.A v. Reyes et. al., No. 3:11-CV-1 (MRK) (D. Conn. Jan. 5, 2011). Counsel was appointed to represent Mr. Winston under the Criminal Justice Act (CJA). Beginning in May 2011 Mr. Winston and his counsel engaged in several proffer sessions with the Government. (See Pet'r. Ex. 3 at 6-7.[4]On August 16, 2011 Mr. Winston entered a guilty plea before the late Honorable Mark R. Kravitz. Id. [Doc # 199]. At that time he formally entered into a cooperation agreement with the Government. (See Pet'r. Ex. 4 at 1.)

         The plea agreement pursuant to which Mr. Winston pled, dated August 10, 2011 (the "August Agreement") (Pet'r. Ex. 2), required him to "agree[ ] to plead guilty to knowingly, intentionally and unlawfully conspiring to possess with intent to distribute, and to distribute, mixtures and substances containing 1 kilogram or more of heroin a Schedule I controlled substance and 28 grams or more of cocaine base, a Schedule II controlled substance" in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. (See Pet'r. Ex. 2.) The plea agreement set out the mandatory minimum sentence of ten years' (120 months) imprisonment but contained no reference to the relevant Sentencing Guidelines range.[5] Mr. Winston was offered this deal in contemplation of his agreeing to be a cooperating witness for the Government, although the two agreements were not facially interdependent. (See Pet'r. Ex. 4 at 2.)

         This case was transferred to the undersigned on May 16, 2012, and in connection with Mr. Winston's sentencing hearing, Defense Counsel filed his Memorandum in Aid of Sentencing, which informed the Court that "the first drafts of plea agreements between the Defendant and the Government only dealt with the cocaine base sales [and] it was in fact Defendant's counsel who suggested that if his client were to be credible as a cooperator his plea agreement should include a recognition on his part of the workings of the entire membership." (Pet'r. Ex. 4 at 2.) At Defendant's sentencing hearing Defense Counsel further explained:

When this plea agreement was initially beg[u]n to be negotiated with the government, we were approached with a plea agreement that had only 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, wouldn't 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.[6]

         Thus, it is clear that there was an earlier plea offer extended by the Government before the August Agreement. The primary factual dispute is whether Mr. Winston was aware of that plea offer before he signed the August Agreement, after which "the [cooperation] arrangement with Mr. Winston [broke] down" (Pet'r. Ex. 5 at 27-28) and the Government ultimately refused to file a § 5kl. 1 motion on his behalf such that the Court was bound by the ten-year statutory mandatory minimum (see Pet'r. Ex 4 at 10).

         ii. The Evidentiary Hearing

         At the evidentiary hearing both Mr. Winston and his former attorney testified. Among the records admitted was a copy of what both parties agree is the earlier plea agreement, dated June 15, 2011 (the "June Agreement") (Pet'r. Ex. 1), which Petitioner claims was never presented to him.[7] This Agreement, in contrast with the August Agreement, would have had Mr. Winston agree "to plead guilty to knowingly, intentionally and unlawfully conspiring to possess with intent to distribute, and to distribute, mixtures and substances containing 28 grams or more of cocaine base, a Schedule II controlled substance." (See id.) The offense charged in the June Agreement carried a mandatory minimum of sixty months (five years) as opposed to the 120-month (ten-year) minimum in the ...


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