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Deida v. United States

United States District Court, D. Connecticut

June 20, 2017

FRANCISCO DEIDA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RULING ON PETITION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          STEFAN R. UNDERHILL UNITED STATES DISTRICT JUDGE

         On November 1, 2013, Francisco Deida filed a petition to vacate, set aside, or correct his sentence under section 2255 of Title 28 of the United States Code (“section 2255”). See Mot. to Vacate (doc. # 1). Deida has since amended his petition and has filed additional briefing in which he seeks to add arguments that were not raised in his initial petition. I consider Deida's Amended Petition (doc. # 9) and treat Deida's additional briefing in support of that petition as a motion to amend to incorporate additional arguments. I grant that motion to amend and now consider all of the arguments that Deida has raised.

         For the reasons set forth below, Deida's Amended Petition is denied.

         I. Standard of Review

         Section 2255 provides a prisoner in federal custody an opportunity to challenge the legality of his sentence. To obtain relief under section 2255, the petitioner must show that his prior sentence was invalid because: (1) it was imposed in violation of the Constitution or the laws of the United States; (2) the court lacked jurisdiction to impose the sentence; (3) it exceeded the maximum detention authorized by law; or (4) it is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). The standard is a high one; even constitutional errors will not be redressed through a section 2255 petition unless they have had a “substantial and injurious effect” that results in “actual prejudice” to the petitioner. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (internal citations omitted); Underwood v. United States, 166 F.3d 84, 87 (2d Cir. 1999) (applying Brecht's harmless error standard to section 2255 petition).

         A section 2255 petition “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) (quoting United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001)). Such limitation prohibits relitigation of issues that were expressly or impliedly decided on direct appeal. United States v. Ben Zui, 242 F.3d 89, 95 (2d Cir. 2001). A court may only reconsider an earlier decision if it is “confronted with ‘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)).

         Furthermore, a section 2255 petition is not intended to be a substitute for a direct appeal. Harrington v. United States, 689 F.3d 124, 129 (2d Cir. 2012) (citing Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007)). A court will not review claims that the petitioner failed to properly raise on direct review “unless the petitioner shows (1) good cause to excuse the default and ensuing prejudice, or (2) actual innocence . . . .” Id. (citing Bousley v. United States, 523 U.S. 614, 622 (1998)).

         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 v. United States, 586 F.3d 209, 214 (2d Cir. 2009). 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. Indictment and Trial

         On June 2, 2009, a grand jury returned an indictment charging Deida with two counts of bank robbery, in violation of 18 U.S.C. § 2113(a). See United States v. Gonzalez, No. 3:09-cr-127 (SRU) (doc. # 1). On February 4, 2010, the government filed an information, pursuant to 18 U.S.C. § 3559(c) (“three-strikes statute”) and 21 U.S.C. § 851, notifying Deida that, should he be convicted, he would be subject to a mandatory life sentence under 18 U.S.C. § 3559(c).[1] Section 3559(c) requires imposition of a mandatory life sentence for any individual convicted of a qualifying offense if that individual had at least two prior convictions for “serious violent felonies, ” as defined by section 3559(c)(2)(F). The information alleged that Deida had the following qualifying convictions: (1) On or about January 21, 1983, Deida was convicted of Robbery in the First Degree, in violation of Connecticut General Statutes § 53a-134(a)(2); (2) on or about January 21, 1983, Deida was convicted of Assault in the First Degree, in violation of Connecticut General Statutes § 53a-59(a)(1); and (3) on or about September 6, 1988, Deida was convicted of Manslaughter in the First Degree, in violation of Connecticut General Statutes § 53a-55(a)(1). See Information, United States v. Gonzalez, No. 3:09-cr-127 (SRU) (doc. # 41).[2]

         At trial, Deida was represented by Donald Cretella. On March 3, 2010, after a full trial, a jury found Deida guilty of two counts of bank robbery, in violation of 18 U.S.C. § 2113(a).

         B. Sentencing

         At Deida's sentencing, on June 21, 2011, I found that the government had proved, by a preponderance of the evidence, that Deida had in fact been convicted of the three prior serious violent felonies identified in the section 851 information. Because Deida had been convicted of bank robbery, in violation of section 2113(a), after having been convicted of at least two “serious violent felonies, ” as defined by section 3559(c)(2)(F), I imposed the mandatory term of life imprisonment.

         C. Direct Appeal

         On July 6, 2011, Deida filed a Notice of Appeal that (1) challenged my evidentiary rulings; (2) argued that the three strikes provision of section 3559 violates the principle of separation of powers, and (3) argued that prior convictions subjecting a defendant to a statutory sentence enhancement must be found by a jury and not a judge. See United States v. Gonzalez, 682 F.3d 201, 203 (2d Cir. 2012). The Second Circuit held that (1) Deida's challenges to my evidentiary rulings were not preserved, and even if they were I committed no error; (2) Section 3559 is constitutional; and (3) “prior convictions leading to a recidivism-based statutory sentencing enhancement are not ‘elements' of an offense and are to be found by a judge rather than a jury.” Gonzalez, 682 F.3d at 204. Deida then petitioned for writ of certiorari to the United States Supreme Court, which was denied on October 29, 2012. Deida v. United States, 133 S.Ct. 553 (2012).

         D. Section 2255 Petition

         On November 1, 2013, Deida filed his initial section 2255 petition. See Mot. to Vacate (doc. # 1). In that motion, Deida asserted seven grounds for relief:

(1) The government violated his Fifth Amendment rights by allowing a witness to falsely testify on behalf of the government;
(2) The government violated his Fifth Amendment rights by relying on manufactured and/or misstated evidence in order to link Deida to the charged offenses;
(3) Deida's counsel was ineffective, in violation of Deida's Sixth Amendment rights, because he failed to move to suppress evidence that was allegedly found in Deida's vehicle;
(4) Deida's counsel was ineffective, in violation of Deida's Sixth Amendment rights, because counsel failed to investigate and/or present evidence to support Deida's innocence, and for counsel's failure to conduct an effective cross-examination;
(5) Deida's counsel was ineffective, in violation of Deida's Sixth Amendment rights, because he failed to raise “viable issues” on appeal; and
(6) Deida's sentence was illegal, in violation of the Sixth Amendment, because his sentence was based on facts found by a judge, not a jury.

Id.

         The government responded on May 16, 2014, arguing that the petition should be denied because it was filed more than a year after Deida's conviction became final. Moreover, the government argued that there is no evidence to support Deida's allegations of prosecutorial misconduct and ineffective assistance of counsel, and that Deida's remaining arguments are procedurally barred because he failed to raise them on direct appeal.

         On August 11, 2014, Deida filed a motion to amend his petition, followed by two memoranda in support of his petition. Docs. # 9-11. In his proposed amended petition, Deida argues that I erred in determining that his prior convictions were “serious violent felonies, ” as defined by section 3559(c), because I did not properly use the categorical and/or modified categorical approach to make such a determination. Deida also argues that the government failed to follow the requisite procedures outlined in Shepard v. United States, 544 U.S. 13 (2005), for proving the fact of Deida's prior convictions. I granted Deida's motion to amend and the government responded on November 4, 2014. The government argued that the three convictions that formed the basis of Deida's enhanced sentence were all categorically “serious violent felonies.” Thus, any potential error at sentencing in applying the categorical approach would be harmless. Further, the government argued that I did not rely solely on the Pre-Sentence Report to conclude that Deida had sustained three convictions. Rather, the government argued that I relied on state court documents, including a “mittimus, ” to support my finding that Deida had been convicted of at least three prior qualifying offenses.

         On December 15, 2014, Deida filed a supplemental memorandum in support of his amended petition. In his supplemental memorandum, Deida contends that his 1983 robbery and assault convictions were based on Alford pleas and thus there is no proof that Deida admitted the elements necessary for those offenses to be considered “serious violent felonies.”

         On June 26, 2015, the Supreme Court of the United States decided Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015) (“Johnson”), holding that the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) was unconstitutionally vague. Following that decision, on December 14, 2015, I appointed counsel to help Deida argue his section 2255 petition. On July 8, 2016, Deida's appointed counsel filed a memorandum in support of Deida's petition, followed by a supplemental memorandum, which was filed on August 8, 2016. The government responded to those two memoranda in a single opposition, on August 22, 2016. Deida, through counsel, submitted his reply on September 6, 2016.

         Because the two supplemental memoranda filed by Deida's appointed counsel raise arguments that were not raised by Deida in his initial or amended petition, I construe them as requesting leave to amend Deida's petition to incorporate such arguments. I grant that motion to amend and accordingly consider all of the arguments that Deida has raised on collateral review.

         III. Discussion

         In his petition for collateral review, Deida challenges his sentence and conviction on multiple grounds. First, Deida raises two claims of prosecutorial misconduct in violation of his Fifth Amendment rights. Second, Deida raises a Sixth Amendment claim based on three separate instances in which he contends his counsel was ineffective. Third, he argues that I erred in imposing his sentence based on a finding that he qualified for a mandatory life sentence pursuant to section 3559(c). In support of his third claim, Deida asserts that his sentence was illegal because (1) his sentence was based on facts found by a judge, not a jury; (2) I failed to properly sentence him using the categorical and/or modified categorical approach; (3) I failed to consider the correct documents in finding that he had been convicted of at least two qualifying offenses; and (4) the sentence imposed was based on a statute that is void for vagueness.

         As a preliminary matter, the government argues that I should not consider Deida's Amended Petition because the original petition was untimely filed. The record establishes that Deida's deadline to file a section 2255 petition expired on October 28, 2013, and Deida's petition was entered into the Court's electronic filing system on November 1, 2013. Although those facts suggest that Deida's initial petition was untimely, Rule 3(d) of the Rules Governing Section 2254 and 2255 Cases provides that a petition “filed by an inmate confined in an institution is timely if deposited in the institution's internal mailing system on or before the last day for filing.” Rule 3(d), Rules Governing Section 2254 and 2255 Cases. Rule 3 permits an inmate to prove timely filing by providing a declaration in compliance with 28 U.S.C. § 1746 or by submitting a notarized statement. Id.

         In his initial petition, Deida states that he submitted his petition to prison officials on October 28, 2013. On August 24, 2016, in accordance with Rule 3(d), Deida submitted an affidavit (doc. # 29) that attested to the fact that the petition was given to prison officials for mailing on October 28, 2013. The government has not provided any evidence that the petition was not in fact delivered to prison officials on that date. Moreover, given the time that it takes for mail to be processed by the BOP facility in Beaumont, Texas, sent to Bridgeport, Connecticut, and processed by the Clerk's Office, it is unlikely that Deida submitted the petition on any day after October 28, 2013. Accordingly, I find that the initial petition was timely and I take the arguments raised in the initial and amended petitions in turn.

         A. Prosecutorial Misconduct

         Deida argues that the government “knew or reasonably should have known that its key witness testified falsely;” and that the government “allegedly linked [Deida] to the charged crimes by relying on evidence . . . [that] arguably was manufactured and/or misstated in order to . . . establish [Deida's] involvement . . . .” Mot. to Vacate at 1.

         A conviction will be set aside whenever the prosecutor's tactics cause “substantial prejudice” to the petitioner, thereby depriving him of his right to a fair trial. United States v. Valentine, 820 F.2d 565, 570 (2d Cir. 1987). To determine whether prosecutorial misconduct caused the petitioner substantial prejudice, a court must consider three factors: (1) the severity of the misconduct; (2) the measures adopted to cure the effects of the misconduct; and (3) the certainty of conviction in its ...


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