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Ogman v. United States

United States District Court, D. Connecticut

July 21, 2017

DONALD OGMAN, Petitioner,
v.
UNITED STATES, Respondent.

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

          STEFAN R. UNDERHILL, UNITED STATES DISTRICT JUDGE

         On March 10, 2015, after pleading guilty to one count of conspiracy to possess with intent to distribute cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), Donald Ogman was sentenced by Judge Warren E. Eginton to 188 months' imprisonment. Judgment and Amended Judgment, United States v. Donald Ogman, No. 3:12-cr-74 (SRU) (D. Conn.) (docs. 1104 and 1105). Ogman did not appeal that sentence. The case was subsequently transferred to me on November 3, 2015. Order of Transfer, No. 3:12-cr-74 (SRU).

         On March 7, 2016, Ogman, acting pro se and currently imprisoned at United States Penitentiary Canaan in Waymart, Pennsylvania, filed a timely motion to vacate, set aside, or correct his sentence (“habeas petition”), pursuant to 28 U.S.C. § 2255. (doc. 1) On March 9, 2016, I issued an Order to Show Cause requesting further detail about his claims. (doc. 3) Ogman filed a response to that Order, which suggested that he sought to challenge the sentence that he received on the basis that use of certain cooperating witness testimony violated his Fifth Amendment right to due process. (doc. 7) He subsequently filed an amended petition suggesting that his primary claim was that trial counsel had been ineffective for failing to move to suppress wiretap evidence involving the cooperating witness. (doc. 14) Ogman has also moved for discovery in support of his petition. (doc. 6)

         Based on the entire record and for the following reasons, Ogman's petition is denied, and his motion for discovery is also 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 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 “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

         On March 28, 2012, the government filed a criminal complaint against Ogman alleging his involvement in a conspiracy to distribute cocaine base and powder cocaine. Criminal Complaint, United States v. Donald Ogman, No. 3:12-cr-74 (SRU) (doc. 1). Ogman was arrested on the basis of that complaint the same day. An indictment to the same effect followed on April 9, 2012. Indictment (3:12-cr-74, doc. 12).

         The parties appear to agree on the following facts, which also find support in the documents filed in Ogman's criminal case. The investigation leading up to Ogman's arrest involved multiple controlled purchases from Ogman and his co-defendants. One of the FBI informants involved in the controlled purchases later illegally purchased crack cocaine from Ogman independently of his or her cooperating agreement, and was accordingly “demoted” from “CW, ” which appears to indicate a “cooperating witness, ” to a “CI, ” which appears to indicate a “confidential informant.” The controlled purchases provided the basis for authorizing wiretaps of Ogman's phone, which in turn provided additional and overwhelming evidence that Ogman was acting as a distributor of crack cocaine.

         Ogman was represented by several different attorneys over the course of his criminal case who collectively filed various pre-trial motions. Relevant for these purposes, on July 20, 2012, Ogman's counsel moved for the disclosure of the identity of the confidential sources who had provided the basis for the government's probable cause in its wiretap authorizations. Motion for Disclosure (3:12-cr-74, doc. 236). He argued that disclosure was necessary in order to determine whether the government's reliance was reasonable. On November 2, 2012, Magistrate Judge Holly Fitzsimmons denied that motion insofar as it related to a need to avoid unfair surprise at trial. Order (3:12-cr-74, doc. 366).

         On September 5, 2012, Ogman's counsel also filed a motion to suppress the wiretaps on the basis that Ogman had not consented to being recorded and the government had not otherwise sought court authorization for the pre-authorization recordings used to establish probable cause for those wiretaps. Def.'s Mot. to Suppress, (3:12-cr-74, doc. 303). Judge Eginton denied that motion on October 4, 2012. Order (3:12-cr-74, doc. 314). He held that the pre-authorization recordings were lawful because the confidential source involved in those calls had consented to recording, and the recordings had been conducted by special agents of the FBI. Id. at 2-3.

         On June 13, 2013, Ogman filed a pro se motion[1] to suppress the wiretaps on grounds identical to those raised in his present habeas petition. Def.'s Pro Se Motion to Suppress (3:12-cr-74, doc. 588). Specifically, he argued that because the cooperating source had been deemed “no longer credible” after making an unsupervised purchase from Ogman, the source could not be used to establish probable cause for the wiretaps or for Ogman's arrest. Id. at 4. In its Opposition Brief, the government provided both the initial affidavit in support of the wiretap application, dated January 12, 2012, and the interim report disclosing the confidential source's unsupervised purchase of crack and subsequent demotion, dated March 5, 2012. Gov't's Opp'n Br. (3:12-cr-74, doc. 593). It argued that the source's misconduct did not implicate the validity of any information previously obtained from that source, nor did it indicate that the initial affidavit in support of the wiretap was false, misleading, or made with a reckless disregard of the truth. Id. ...


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