United States District Court, D. Connecticut
RULING AND ORDER ON PETITIONER'S MOTION TO
VACATE, CORRECT OR SET ASIDE SENTENCE
R. UNDERHILL, UNITED STATES DISTRICT JUDGE
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.
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)
on the entire record and for the following reasons,
Ogman's petition is denied, and his motion for discovery
is also denied.
Standard of Review
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,
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).
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)).
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).
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.
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).
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.
13, 2013, Ogman filed a pro se motion 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. ...